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

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.


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  • identicon
    Canuck, 11 May 2018 @ 4:08am

    First, they came for the Muslims...

    Won't be long before they come for you.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 May 2018 @ 6:56am

      Re: First, they came for the Muslims...

      this no longer applies...

      They have already come for everyone. All they are doing now is playing the slowly tightening the noose here and there just a bit at a time game.

      reply to this | link to this | view in chronology ]

  • identicon
    David, 11 May 2018 @ 4:31am

    Just wait for the angry old men

    to discover that your parents are half-female and you don't even have proof that your father's parents were both male.

    You'll be deported to Lesbos unless you agree to report on your spouse. Or was that to Amazonia?

    You'll have to forgive me being rusty on chauvinism, it's been some time since I have been to the U.S.

    reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 11 May 2018 @ 5:48am

      Re: Just wait for the angry old men

      You'll have to forgive me being rusty on chauvinism, it's been some time since I have been to the U.S.

      C'mon; be fair. It's inspiring to watch America wrestle with difficult philosophical questions like this one, in addition to "Should people have health care" and "Are Nazis bad."

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 May 2018 @ 7:30am

        Re: Re: Just wait for the angry old men

        Yes - it is true, some members of society are nuts - most everywhere.

        It is of interest though, studying the "raise" of idiocy in the US. Seems that religious fundamentalism played a large part, even with the huge hypocrisy required some seemingly will accept anything in return for what? I don't get it because they get nothing, I think they end up worse. Are these the "useful idiots" I heard about?

        reply to this | link to this | view in chronology ]

        • identicon
          Wendy Cockcroft, 14 May 2018 @ 2:53am

          Re: Re: Re: Just wait for the angry old men

          Seems that religious fundamentalism played a large part, even with the huge hypocrisy required some seemingly will accept anything in return for what? I don't get it because they get nothing, I think they end up worse. Are these the "useful idiots" I heard about?

          They get to be The Decider. That's basically it. I've had conversation after conversation after conversation with these people and it all boils down to this:

          1. Anything outside the bubble they live in either doesn't exist or doesn't apply
          2. Anyone they don't personally know is automatically suspect
          3. It's their money, damn it, and it ain't going to anyone they don't approve of (see point #2)

          Rinse and repeat.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 May 2018 @ 8:09am

      Re: Just wait for the angry old men

      To any resident of not-US or reader of international news it's pretty clear the US is not alone in chauvinism, discrimination, or just about any other topic. It's fun to pick on the US but the rest of the world is just as bad if not worse at times.

      reply to this | link to this | view in chronology ]

      • identicon
        David, 11 May 2018 @ 10:49pm

        Re: Re: Just wait for the angry old men

        Of course the U.S. is not alone in chauvinism, discrimination, sexism. This is part of our tribal nature. It needs to be habitually checked as part of being a member of civilization rather than a tribe.

        The U.S. is pretty much alone in considering themselves above the necessity of such checking because of some ingrained sense of superiority while at the same time considering itself part of modern civilization.

        That defines their maddening stance towards "Nazis": they stand up to their person/hero cults, their names, their symbols and hate them for all that with a vengeance. They don't mind what they want to do and do it themselves.

        It's sort of cargo cult antinazism.

        reply to this | link to this | view in chronology ]

  • icon
    Dan (profile), 11 May 2018 @ 5:07am

    "No fly, no buy"

    ...and people wonder why Second Amendment advocates oppose "no fly, no buy" proposals.

    reply to this | link to this | view in chronology ]

    • identicon
      ryuugami, 11 May 2018 @ 5:52am

      Re: "No fly, no buy"

      On the other hand, such a proposal passing may be the only thing that puts pressure on the gov to fix the no-fly list.

      Of course, if those Second Amendment advocates cared about the Constitution, they'd be protesting the no-fly list altogether, not only when it threatens their toys.

      reply to this | link to this | view in chronology ]

  • identicon
    Valkor, 11 May 2018 @ 5:39am

    Add "Filed Under: Good News"

    reply to this | link to this | view in chronology ]

    • identicon
      Valkor, 11 May 2018 @ 5:43am

      Re: Add "Filed Under: Good News"

      Derp. Use tab not enter...

      So, this belongs in a news category that highlights people actually doing their job *right*.
      I'm happy that this is a judge telling a defendant that words mean what people think they mean, not the legal pretzel that lawyers think they mean. I just wish it didn't seem so surprising!

      reply to this | link to this | view in chronology ]

      • identicon
        David, 11 May 2018 @ 6:32am

        Re: Re: Add "Filed Under: Good News"

        It's not "lawyers", it's government lawyers in particular. They work from the premise that everything their clients do is legal and lawmakers just phrase it in a lot of different ways. It's then their job to explain to lesser gifted people how every single law means "the government cannot do wrong".

        There is an occasional judge who did not get the memo and gets annoyed.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 May 2018 @ 8:08am

    Thanks

    to Comey! The gift that keeps on giving!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 May 2018 @ 8:21am

    out_of_the_blue is not going to like this, is he?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 May 2018 @ 8:25am

    So, how many people who support the RFRA would surprised that it was used as a defense by, not just a non-Christian but, a Muslim? Further, how many of them would immediately contact their representative to tell them they need to fix this apparent defect in the law?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 May 2018 @ 8:44am

      Re: RFRA for Muslims

      While there are probably some people like that, I think a decent number of RFRA supporters would look at this case more in the context of individuals vs. Big Bad Government and decide that, if RFRA is the way to make the government lose, then that's a good use of RFRA, regardless of the religion of the plaintiffs.

      Personally, I think it's a bit weird that RFRA ends up being the vehicle for seeking relief from government misconduct, rather than a law more directly written to keep government agents on good behavior. I worry that if RFRA is the vehicle, then it may not be applicable for protecting plaintiffs who were harmed for reasons unrelated to their religion. However, if misbehaving government agents lose this round, and the court didn't need a "novel" interpretation of the law to make it happen, I'm not going to complain about exactly which law provided justice to these plaintiffs. I just hope it doesn't encourage the government to invent some non-religious pretext (such as national origin, or preferred countries of travel) for its next round of harassment.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 11 May 2018 @ 10:52am

        Re: Re: RFRA for Muslims

        I just hope it doesn't encourage the government to invent some non-religious pretext (such as national origin, or preferred countries of travel) for its next round of harassment.

        Whether they tried to extort them into becoming informers because they're muslim or because of where they came from/go to, the reason the judge granted this 'win' to the plaintiffs would still apply, because it was thanks to their religious beliefs, not where they came from, that they refused.

        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

        reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 11 May 2018 @ 11:05am

    "Sure we're guilty... you still can't touch us."

    I find it both disturbing and telling that the government didn't seem to even try to claim that what they did was anything other than mob-style extortion('Nice life you got there, be a shame if something were to happen to it...'), unless that was covered elsewhere in the document, and instead merely went straight to 'you can't sue us no matter what we did!'.

    While it's nice that the court found that the victims can go after the ones who wronged them directly, the fact that they had to go through such a convoluted mess to do so is anything but comforting.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 11 May 2018 @ 3:58pm

    Before this, was the FBI ever held accountable for no-fly?

    Last I checked, the FBI could put whoever they wanted on no-fly or terror-watch. Victims can petition to be taken off, which doesn't assure they are, and they can be put back on for no reason.

    So if they're being held accountable this time for putting someone on the no-fly list, it very well may be the first time ever they've been held accountable at all.

    So, this is a major step forward, but it's really that bad.

    reply to this | link to this | view in chronology ]

  • icon
    Matthew Cline (profile), 11 May 2018 @ 5:44pm

    Why the RFRA?

    I'm glad that the lawsuit can proceed, but why did the plaintiffs need to use the RFRA? If the FBI harrasses an agnostic/athiest immigrant about becoming an informant is that immigrant simply out of luck?

    reply to this | link to this | view in chronology ]

    • identicon
      Isma'il, 12 May 2018 @ 6:18pm

      Re: Why the RFRA?

      I would think that they would still be covered under the RFRA, because religious freedom, including the "practice" of no religious observances, is a right according to the First Amendment.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 12 May 2018 @ 9:32pm

        Re: Re: Why the RFRA?

        I believe the point they were making is that a muslim is able to refuse to become an informant due to religious reasons, and can use the RFRA as a shield and to sue. An atheist, or even a theist who doesn't have a 'religious reason' to refuse wouldn't have that to fall back on and would therefore have no grounds to sue(because extortion is apparently fine so long as it's not violating your religious beliefs).

        reply to this | link to this | view in chronology ]

  • identicon
    me, 14 May 2018 @ 6:47am

    After reading this and the Border Patrol story above

    One should refuse any and all contact with these people. There is NO benefit in dealing with them in any circumstance.

    reply to this | link to this | view in chronology ]


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