Court: FBI Agents Can Be Held Accountable For Tossing Immigrants On The No-Fly List Because They Refused To Be Informants

Legal Issues

from the time-for-some-settlements-and-retraining dept

The Second Circuit Appeals Court has revived a lawsuit brought by a group of Muslim men who allege the FBI placed them on the “no fly” list after they refused to become informants. This is not unusual behavior — on the part of the FBI. Documents obtained by The Intercept show the CBP and FBI routinely pressure immigrants and visitors to become informants, threatening them with deportation or adverse decisions on visa requests.

In this case, the lead plaintiff, Muhammad Tanvir, claims the FBI pursued him for months. The effort to convert Tanvir into an informant led to him being detained for hours any time he tried to fly, as well as being subjected to periodic visits from FBI agents at his workplace. Despite being a lawful resident, Tanvir was threatened with arrest and deportation for refusing to submit to a polygraph test. After returning from a trip to Pakistan to visit his family, Tanvir was detained for five hours by federal agents and his passport confiscated for six months. This confiscation was leveraged against Tanvir, with agents telling him he would be deported if he did not cooperate.

These tactics are expressly forbidden by the DOJ and yet, they appear to be in common use. Tanvir’s experience with the FBI roughly aligns with that of his co-litigants. They sued the FBI agents who harassed and threatened them, claiming the tactics violated their religious freedom. In the plaintiffs’ view, becoming an informant meant violating their religious beliefs. The district court ruled they could not pursue these claims against the federal agents under the Religious Freedom Restoration Act (RFRA).

The Appeals Court disagrees [PDF]. Violations and damages alleged by Tanvir — including the inability to travel by air, which resulted in the loss of his job as well as prevented him from visiting his family in Pakistan — can be recouped from the agents responsible.

The government argued RFRA does not permit lawsuits against individual government employees. The Appeals Court points out the plain language of the statute clearly permits doing exactly that.

RFRA’s use of the word “official” in the statutory definition of “government” does not mandate that a plaintiff may only obtain relief against federal officers in official capacity suits. In ordinary usage, an “official” is generally defined simply as “one who holds or is invested with an office” and is roughly synonymous with the term “officer.” Merriam?Webster Unabridged, http:/unabridged.merriam?webster.com/unabridged/official (noun definition). There is no reason to think that, in using this ordinary English word, Congress intended to invoke the technical legal concept of “official capacity,” rather than simply to state that government “officials” are amenable to suit. Moreover, the statute permits suits against “officials (or other person[s] acting under color of 7 law).” 42 U.S.C.A. § 2000bb?2(1). The specific authorization of actions broadly against “other person[s] acting under color of law,” undercuts the assertion that the term “official”’ was intended to limit the scope of available actions.

The wording of the statute is not as clear when it comes to defining “appropriate relief.” The government argues this does not include money damages, even if the court finds individual agents can be sued under RFRA. The court again disagrees. Precedential decisions — including those of the Supreme Court — dealt with lawsuits brought against government officials in their official capacity. Sovereign immunity may have ended those attempts to obtain “appropriate relief,” but are not helpful here. This suit is filed against agents personally, not against the agencies or the federal government as a whole.

Although the Supreme Court and our sister circuits declined to construe the phrase “appropriate relief” to amount to an explicit waiver of sovereign immunity, Plaintiffs’ individual capacity suits against Defendants present no sovereign immunity concerns here. This is so because Plaintiffs seek monetary relief from those officers personally, not from the federal or state government.

The government claimed this conclusion turns “appropriate relief” into “a chameleon,” leaving the government unsure of where its stands when facing lawsuits under RFRA. The court points out the definition of the term “appropriate relief” is malleable because circumstances surrounding claims brought under the statute are rarely static or easily comparable.

[W[e are tasked with interpreting the meaning of RFRA’s phrase “appropriate relief,” an inquiry that is “inherently context?dependent.” Sossamon, 563 U.S. at 286. Indeed, the word ‘appropriate’ does not change its meaning; rather, the question addressed in each of these various contexts is what sort of relief is ‘appropriate’ in that particular situation. And, since the relevant animating principles vary appreciably across legal contexts, the meaning of ‘appropriate’ may well take on different meanings in different settings.

Having decided the lawsuit can continue, the Appeals Court decides it doesn’t need to reach a finding on the agents’ qualified immunity assertions. This will be handled on remand by the lower court, which will first have to make this decision before deciding what (if any) damages the plaintiffs are entitled to.

This is far from a victory for the plaintiffs but it does open the door for similar lawsuits against federal officers for harassment and intimidation tactics deployed in hopes of turning lawful residents and visitors into government informants. Raising the possibility of a successful lawsuit above the previously-presumed zero percent should hopefully act as a minor deterrent against future abuses of power.

Filed Under: 2nd circuit, fbi, informants, muhammad tanvir, no fly list