Ahmad Khorrami v. Michael Rolince ( 2017 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 8, 2017
Decided October 2, 2017
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16-3520
AHMAD FARID KHORRAMI, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division.
v. No. 03-cv-06579
MICHAEL E. ROLINCE, et al., James B. Zagel,
Defendants-Appellees. Judge.
ORDER
Shortly after the September 11, 2001, terrorist attacks on the United States, the
Department of Justice (“DOJ”) instituted a “Hold Until Cleared” policy. Under this
policy, the Federal Bureau of Investigation (“FBI”) notified the Immigration and
Naturalization Service (“INS”) of aliens potentially involved in, or with knowledge of,
the terrorist attacks. The INS placed these aliens on a custody list and then used all legal
means available to detain them until they were cleared by the government.
No. 16-3520 Page 2
Plaintiff Ahmad Farid Khorrami was one of the individuals held in INS custody
pursuant to the “Hold Until Cleared” policy. The INS had “paroled” Khorrami into this
country, pending adjudication of his Change of Status petition. But on September 18,
2001, after the FBI informed the INS of its investigative interest in Khorrami, the INS
revoked his parole and placed him in investigative detention. The government held
Khorrami in detention until December 14, 2001, when the INS granted him parole again.
After his release, Khorrami filed a civil action under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against several INS and FBI
agents, including defendant Michael Rolince, the then-current Section Chief of the FBI’s
International Terrorism Operations Section of the Counterterrorism Division.
Khorrami’s complaint alleged Rolince violated Khorrami’s due process rights by
signing a Declaration which falsely connected Khorrami to one of the September 11
terrorists. Following discovery, the district court granted Rolince summary judgment.
Khorrami now appeals. Because the Declaration Rolince signed did not cause or extend
Khorrami’s detention, we affirm.
I.
In 1997, Ahmad Farid Khorrami, an Iranian-born British citizen, entered the
United States on a temporary vocational visa. The visa expired in 2000. Two months
after the visa expired, Khorrami’s wife filed an I-130 petition for an alien adult relative
visa. Khorrami then filed an I-485 petition for an adjustment of status to legal
permanent resident as the spouse of a United States citizen. While those petitions were
pending, Khorrami sought to travel to Canada. Because at that time Khorrami did not
yet have legal status, he sought “advance parole” from the INS—“that is, assurance that
he would be readmitted to the United States notwithstanding the lack of a visa.”
Dimenski v. INS, 275 F.3d 574, 576 (7th Cir. 2001) (citing 8 U.S. C. § 1182(d)(5)). The INS
granted Khorrami advance parole in February 2001, and then, after visiting Canada, he
was paroled back into the United States.
In 2001, Khorrami worked for Skyway Airlines in Milwaukee, Wisconsin and
lived in Chicago, Illinois, with his wife. Following the September 11, 2001, terrorist
attacks, Khorrami learned that the FBI was investigating him and questioning his
friends and acquaintances. After learning of the government’s interest in him, Khorrami
contacted the FBI and voluntarily met with agents for several hours in his Chicago
home. INS and Milwaukee FBI agents also interviewed Khorrami at the airport where
he worked in Milwaukee and later at the FBI’s Milwaukee field office. Then on
No. 16-3520 Page 3
September 18, 2001, the INS revoked Khorrami’s parole, initiated removal proceedings,
and placed him in administrative detention in a jail in Waukesha, Wisconsin. He was
later transferred to an Illinois detention facility.
The government’s revocation of Khorrami’s parole and its administrative
detention of him were part of the “Hold Until Cleared” policy the DOJ enacted
following the September 11 attacks. The DOJ adopted this policy after discovering that
none of the September 11 terrorists were citizens of the United States; the government
sought to ensure that it did not accidently release complicit aliens from custody, or
remove them to another country where they could not be questioned.
Under the “Hold Until Cleared” policy, the FBI, INS,1 and several sections of the
DOJ worked together to monitor the status of aliens. In cases where “the FBI told the
INS that the FBI had an investigative interest in an INS detainee lawfully detained on
immigration charges,” then “the INS would place the alien on a custody list and use all
legal means to keep him in custody until the FBI no longer had an investigative interest
in the alien.”
Khorrami’s first INS removal hearing was held on October 10, 2001. Before that
hearing, Khorrami’s attorney had filed a Motion to Terminate Removal Proceedings. In
this motion, Khorrami’s attorney argued the INS incorrectly categorized Khorrami as an
arriving alien subject to removal and sought dismissal of the removal proceeding. His
attorney also sought Khorrami’s release on bond. The Immigration Judge (“IJ”) noted
she did not have authority to release Khorrami on bond, and then the court continued
the hearing until October 24, 2001, to allow the INS the chance to respond to Khorrami’s
Motion to Terminate Removal Proceedings.
At the October 24, 2001, hearing, the IJ denied Khorrami’s Motion to Terminate
and found that Khorrami was an arriving alien and subject to removal as charged. But
since Khorrami’s wife had previously filed an I-130 adult relative visa petition and
Khorrami had filed an I-485 petition for an adjustment of status to legal permanent
resident as a spouse of a United States citizen, the IJ explained that she would not order
Khorrami to be removed. Instead, the IJ continued the removal hearing until November
14, 2001, to allow the INS to process the pending I-130 petition. The IJ also noted, in
1 In 2003, the INS’s responsibilities were transferred to Immigration and Customs Enforcement.
Because the events underlying this lawsuit occurred before the change, we refer to the INS throughout
this order.
No. 16-3520 Page 4
response to Khorrami’s attorney’s request for bond, that bond was an entirely separate
decision from the removal proceedings, and that as an arriving alien bond was not
available.
The third hearing occurred on November 14. The IJ began those proceedings by
noting that the INS had indicated that it had not been able to adjudicate the I-130 visa
petition—a necessary prerequisite to an alien’s I-485 motion for change of status—and
that the INS anticipated it would be completed in two weeks. The court then handled a
few housekeeping matters, after which the court asked the parties if they had anything
further.
Khorrami’s attorney responded that he wanted to review for the record what had
occurred since the last hearing. The attorney then walked the judge through various
interactions he, his client, and his client’s wife had had with government agents over
the last month. He noted, “[q]uite frankly, I think that the I-130 investigation is finished
and this must have something to do with other issues. I understand you have no
jurisdiction until they get to it … . I would ask that you do whatever you can to keep the
pressure on the government to absolutely complete the investigation and come in with
a decision before the 28th.”
The IJ asked if the government had a response. At that point, the attorney for the
INS explained that “it’s also an investigation, as we all know, about what happened on
September 11th; and the FBI has shown, in fact, is interested [sic] in this man. I have a
declaration, … from the FBI which I found out yesterday, late, that could be released to
the Immigration judge’s office.” The IJ then noted for the record that the document was
“served.” After that, the IJ thanked the INS’s attorney for working to resolve the I-130
petition, and expressed hope it could be completed by the next hearing. The IJ then
continued the hearing until December 12, 2001.
The Declaration the INS’s attorney shared with the court had been signed by
Michael Rolince, the then-current Section Chief of the FBI’s International Terrorism
Operations Section of the Counterterrorism Division. Rolince had oversight
responsibility for the investigations conducted by the 96 domestic and international FBI
offices. The Declaration stated that Rolince was “personally involved in and [had]
significant supervisory responsibilities for the nationwide FBI investigation initiated in
response to the series of deadly terrorist attacks which occurred on September 11, 2001.
As such, I am privy both to the broad scope of and to particular details from the
investigation.”
No. 16-3520 Page 5
After then detailing some general aspects of the government’s investigation into
September 11, 2011, Rolince’s Declaration stated:
“In the context of this terrorism investigation, the FBI identified
individuals whose activities warranted further inquiry. When such
individuals were identified as aliens who were believed to have violated
their immigration status, the FBI notified the Immigration and
Naturalization Service (INS). The INS detained such aliens under the
authority of the Immigration and Nationality Act. At this point, the FBI
must consider the possibility that these aliens are somehow linked to, or
may possess knowledge useful to the investigation of, the terrorist attacks
on the World Trade Center and the Pentagon. The respondent, AHMAD
FARID KHORRAMI, … is one such individual.”
Rolince next explained the government’s interest in Khorrami, noting he was a
pilot who “previously resided at an apartment building in Daytona Beach, FL, the same
apartment building which is believed to be a known address for one suspected hijacker
and a possible address for a second suspected hijacker. The investigation further
indicates that KHORRAMI was a flight instructor at two flight instruction schools
located in Florida, both of which were attended by one or more suspected hijackers.”
Additionally, Rolince attested in the Declaration that “KHORRAMI possesses a bank
account which was opened prior to 1996, and which contains in excess of $100,000.
Initial indications show that KHORRAMI inquired with bank personnel as to the
potential traceability of the funds in that account and has shifted funds between
accounts in his name.”
Rolince signed the Declaration on November 9, 2001, attesting to the truthfulness
of the information under penalty of perjury. Rolince, however, had not prepared the
Declaration nor confirmed the veracity of the information contained in the Declaration.
Rather, he reviewed the Declaration to assure the information supported the FBI’s
position that it had an investigative interest in Khorrami.
Instead, an FBI lawyer stationed in Washington D.C.—in this case Keith
Eirinberg—drafted the Declaration. Eirinberg drafted the Declaration from information
provided to him from a report authored by Milwaukee Supervisory FBI Special Agent
Katherine Schweit. And Schweit compiled her report on Khorrami from information
provided by other Milwaukee FBI agents. Eirinberg did not independently verify the
No. 16-3520 Page 6
information Schweit had provided him in the report. Schweit also did not check the
accuracy of the details provided to her by the Milwaukee agents.
Unfortunately, the information the Milwaukee agents provided to Schweit was
not accurate. In turn, her report to Eirinberg was inaccurate and the Declaration
Eirinberg prepared for Rolince, and which Rolince signed under penalty of perjury, was
not accurate. Specifically, while Khorrami had lived in Florida and had attended a flight
school there, none of the terrorists lived in the same apartment complex or attended the
same flight school. The confusion apparently arose because a man with a name similar
to one of the terrorists had resided in the same set of apartments as Khorrami and had
attended the same flight school. (The terrorist was named Waleed Mohammed Al-
Shehri and the individual unconnected with the attacks was named Waleed Ahmed Al-
Shehri.)
While the FBI was initially suspicious of Khorrami following the September 11,
attacks, FBI agents in Chicago and Jacksonville investigated and quickly discovered the
errors. Additionally, a Chicago FBI agent had interviewed a bank employee and
determined that the allegations about Khorrami’s desire to transfer funds was not
accurate. Within days of the revocation of Khorrami’s parole, the Chicago FBI and the
Jacksonville FBI offices sent electronic communications to the Counterterrorism Section
clearing Khorrami.
Had Rolince reviewed the FBI’s computer system for the most current details on
the Bureau’s investigation into Khorrami, he would have known the statements
contained in the Declaration he signed were false. But he didn’t. Rather, Rolince merely
reviewed the Declaration and, trusting his team, he signed the Declaration believing the
information to be truthful and accurate. After Rolince signed the Declaration, it was
sent to INS field attorneys handling Khorrami’s removal proceedings.
As noted above, the INS attorney referred to the Declaration at the third
immigration hearing held on November 14, 2001, and the court noted it had been
served. The IJ, however, did nothing in response to the Declaration, instead continuing
the removal hearing until the December 12 hearing for another reason, so that the INS
could continue or possiblycomplete considering the I-130 and I-485 petitions for
Khorrami as the spouse of a U.S. citizen.
Before Khorrami’s next hearing, the government discovered the mistake and on
December 11, 2001, the Chicago FBI office sent a letter to the immigration court,
No. 16-3520 Page 7
informing the IJ that the Declaration submitted to the court was inaccurate and that
Khorrami was not, in fact, connected to the September 11, 2001, terrorists. Rolince also
sent a letter dated December 12, 2001, to the Executive Associate Commissioner of Field
Operations at the INS advising “that after consultation with FBI Headquarters and the
appropriate field offices, the FBI has determined that presently there is no investigative
interest” in Khorrami. Rolince added that “the FBI consents to the removal of
Khorrami” from the custody list.
At the December 12 hearing before the IJ, the INS stated that Khorrami’s
background check had been completed and that it had approved his alien adult relative
visa. The IJ stated she intended to continue the proceedings until January 9, 2002, so she
could adjudicate Khorrami’s petition for adjustment of status.
At that point, the IJ addressed Khorrami directly, stating: “Mr. Khorrami, they’ll
bring you back in on that day. If you’re paroled by the District Director which I have no
idea of what the District Director will do. I have no jurisdiction whatsoever over the
District Director. If you’re paroled, you will be set free into—to go back home, and your
case will be rescheduled for [another location]. If you’re still in custody, the case will be
here.”
Two days later, the District Director granted Khorrami parole and he was
released from custody. Khorrami later succeeded in obtaining an adjustment of status to
permanent resident, and he later became a United States citizen.
Following resolution of his immigration case, Khorrami sued various FBI and
INS agents. The district court dismissed all of Khorrami’s claims, except his Bivens
action against Rolince in which he alleged that Rolince violated his due process rights
by signing a false Declaration. Rolince had sought to dismiss Khorrami’s Bivens claim
based on qualified immunity in an interlocutory appeal to this court, but we held that
based on the complaint’s allegations it was premature to decide the issue of qualified
immunity at that early stage. Khorrami v. Rolince, 539 F.3d 782 (7th Cir. 2008).
On remand, the parties proceeded with discovery, after which Rolince moved for
summary judgment. The district court granted Rolince’s motion for summary
judgment, concluding it would be inappropriate to extend Bivens to the factual scenario
underlying this case. Alternatively, the court found that Rolince was entitled to
qualified immunity because he “committed no intentional wrongdoing or recklessness
with regard to the information in the Rolince Declaration, and did not intend to
No. 16-3520 Page 8
materially mislead this court with the attribution of the information in the Rolince
Declaration.” Khorrami appeals.
II.
On appeal, Khorrami argues the district court erred in granting Rolince summary
judgment on his Bivens claim. We review a decision to grant summary judgment de
novo, reviewing the facts in the light most favorable to the non-moving party. Jackson v.
Kotter, 541 F.3d 688, 697 (7th Cir. 2008). Summary judgment is appropriate only if there
are no genuine issues of material fact and the moving party is entitled to judgment as a
matter of law. Id. We can affirm a decision on any basis in the record. Kidwell v.
Eisenhauer, 679 F.3d 957, 965 n.1. (7th Cir. 2012).
Khorrami’s main argument on appeal is that the district court erred in holding
that he could not seek relief under Bivens. As we explained in Engel v. Buchan, 710 F.3d
698, 703 (7th Cir. 2013), “in Bivens the Supreme Court recognized an implied cause of
action for damages against federal officers to redress a constitutional violation.… The
Court did so notwithstanding the absence of a statutory right of action … .” But the
Supreme Court has been hesitant to expand the right to sue under an implied cause of
action, most recently demonstrating its reluctance to extend the Bivens doctrine to new
settings in Hernandez v. Mesa, — U.S. —, 137 S. Ct. 2003, 2006 (2017) (per curiam).
Nonetheless, Khorrami argues that his complaint “presents garden-variety Bivens
allegations,” under which an implied right of action is appropriate. The government
disagrees. We need not address this difficult question, however, for a very simple
reason: Khorrami’s due process claim against Rolince cannot possibly succeed because
Rolince’s signing of the false Declaration did not cause, or extend, Khorrami’s
detention.
In this case, Khorrami was detained in September when the INS revoked his
parole. And Rolince’s Declaration clearly did not cause the initial detention because he
did not sign the Declaration until nearly two months later. Likewise, the IJ’s decision
that she lacked authority to release Khorrami on bond because he was an “arriving
alien” was made before Rolince signed the Declaration. Further, the Declaration could
have had no impact on that decision because the IJ’s ruling was based solely on its
conclusion that Khorrami was an “arriving alien,” and as such, the court lacked
authority to release him on bond. Thus, the Declaration also did not cause the IJ to deny
Khorrami’s release on bond.
No. 16-3520 Page 9
It is true that the INS presented the Declaration to the IJ, but it did so in response
to Khorrami’s attorney’s comments that “[q]uite frankly, I think that the I-130
investigation is finished and this must have something to do with other issues,” and the
IJ’s request for a response. The INS replied that, yes, there was something more going
on, the investigation into September 11, and the government’s investigative interest in
Khorrami. But that comment and the Declaration had no impact on Khorrami’s
detention, as demonstrated by the IJ’s response: She took no further action in response
to the Declaration, but merely continued the removal hearing for another reason, to give
the INS more time to consider the pending I-130 and I-485 petitions.
Nor could the IJ have done anything in response to the Declaration. Khorrami
was already in detention and even if the Declaration had correctly stated that he was
not connected to the September 11 attacks, the IJ still could not have ordered
Khorrami’s release: the IJ lacked the authority to release Khorrami on bond and lacked
authority to parole him or order the INS to parole him.
The IJ made this later point abundantly clear at the December 12 hearing when,
after the INS informed the court that the Declaration was false and the government no
longer had an interest in Khorrami, the IJ stated that: “If you’re paroled by the District
Director which I have no idea of what the District Director will do. I have no
jurisdiction whatsoever over the District Director. If you’re paroled, you will be set free
into—to go back home, and your case will be rescheduled for [another location]. If
you’re still in custody, the case will be here.”
For Khorrami to sustain a due process claim premised on the false Declaration,
he must prove the evidence was used against him to deprive him of his liberty.
Armstrong v. Daily, 786 F.3d 529, 553 (7th Cir. 2015). The mere act of creating false
evidence does not implicate due process rights, unless that evidence is later used to
deprive the individual of liberty in some way. Whitlock v. Brueggemann, 682 F.3d 567,
582 (7th Cir. 2012). Because the Declaration did not cause the IJ to detain or extend
Khorrami’s detention, he cannot possibly succeed on his claim against Rolince.
In response, Khorrami argues that Rolince’s signing of the false Declaration
extended his detention because it caused the INS’s District Director to deny him parole.
The evidence, however, does not support Khorrami’s claim. Rather, the evidence shows
that Khorrami’s parole was revoked in September before Rolince signed the Declaration,
and under the “Hold Until Cleared” policy the INS would continue to deny Khorrami
No. 16-3520 Page 10
parole until it received a “no investigative interest” letter from Rolince stating that the
FBI consented to the removal of the alien from the INS “Custody List.” It was thus not
the Declaration which caused Khorrami’s continued detention, but the lack of a “no
investigative interest” letter from Rolince. When Rolince finally issued that letter on
December 12, 2001, the INS then released Khorrami on parole.
Khorrami posits that the Declaration nonetheless extended his detention because,
had Rolince actually reviewed the computer system before signing the Declaration, he
would have discovered the error and issued the “no investigative interest” letter at that
time, which would have led to his release. However, this theory does not establish that
the false Declaration actually caused Khorrami’s prolonged detention—something
required to prevail on his due process claim. Id. (explaining that to prevail on a due
process claim, the plaintiff must, as with tort liability, establish the violation was both a
“cause-in-fact” and the “proximate cause” of the alleged deprivation). Instead, this
theory seeks to hold Rolince liable for not investigating the veracity of the Declaration.
However, this court has held that there is no affirmative duty to investigate. Id. at 588.
Therefore, Khorrami’s attempt to side-step the lack of causation must fail. And because
the Declaration did not cause or prolong Khorrami’s detention, he cannot prevail on his
due process claim. Accordingly, the district court properly granted Rolince summary
judgment on his due process claim.2
III.
Many innocent people suffered as a result of the September 11, 2001, terrorist
attacks, including Khorrami. While tragic for all involved, Khorrami was legally
detained under immigration law and Rolince’s mistake in signing the false Declaration
did not cause—or extend—that detention. Accordingly, the district court properly
granted Rolince summary judgment on Khorrami’s due process claim. We AFFIRM.
2 The government also argued that Khorrami’s claim fails because, even though the Declaration
undisputedly included false information, there is no evidence that Rolince knew the information was
false or acted recklessly in signing the statement. Khorrami counters that Rolince’s Declaration falsely
created the impression that he had personal knowledge of the evidence tying Khorrami to one of the
September 11, 2001, terrorists, when in fact Rolince had no such knowledge. We need not resolve this
dispute, though, because as discussed above, the Declaration did not cause or extend Khorrami’s
detention.