Mohammed Jibril v. Alejandro Mayorkas ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 20, 2021 Decided December 21, 2021
No. 20-5202
MOHAMMED JIBRIL, INDIVIDUALLY, AND ON BEHALF OF THEIR
MINOR CHILDREN Y.J., AND O.J., ET AL.,
APPELLANTS
v.
ALEJANDRO N. MAYORKAS, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY,
ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-02457)
Christina A. Jump argued the cause for appellants. With
her on the briefs was Charles D. Swift.
Joshua Waldman, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Acting Assistant Attorney General, and
Sharon Swingle, Attorney.
Before: HENDERSON and WALKER, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: In 2018, during extended
airline trips, the members of the Jibril family (“Jibrils” or
“Appellants”), a family of U.S. citizens, were forced to endure
extensive and intrusive security screenings at domestic and
international airports. As a result of these encounters with
Government agents, the Jibrils believed that they were on a
terrorist watchlist maintained by the U.S. Government. They
initially invoked an administrative redress process to challenge
their alleged inclusion on the watchlist. However, Government
officials refused to disclose the family’s watchlist status.
Finding the Government’s response inadequate to
safeguard them from similar treatment in the future, the Jibrils
filed suit in the District Court against the Secretary of the
Department of Homeland Security and various other federal
Government officials (collectively, “Government”). Their
complaint alleges violations of the Fourth and Fifth
Amendments and the Administrative Procedure Act, and it
seeks declaratory and injunctive relief. The Government filed
a motion to dismiss, which the District Court granted, with
prejudice, on the ground that Appellants lacked Article III
standing. Jibril v. Wolf, No. 19-cv-2457, slip op. at 6-10
(D.D.C. May 9, 2020), reprinted in Joint Appendix (“J.A.”)
161-65. The Jibrils now appeal.
Before this court, the Government contends that the
judgment of the District Court should be affirmed because the
Jibrils’ complaint fails to adequately allege any imminent
threat of future injury. We disagree. The Jibrils have plausibly
alleged that they have future travel plans. We easily infer from
the family’s travel history that they will soon fly again,
particularly if they secure the relief they now seek.
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Furthermore, the Jibrils’ uncontested factual allegations,
combined with the reasonable inferences we draw from them,
plausibly indicate that the family likely appeared on a terrorist
watchlist in 2018. The Jibrils also plausibly allege that the
treatment they endured went well beyond what typical travelers
reasonably expect during airport screenings. Finally, the
Jibrils’ factual allegations lead to the reasonable inference that
the family’s watchlist status remains the same today. Any
information to the contrary is within the Government’s
exclusive control, and we must draw all reasonable inferences
in the Jibrils’ favor at this stage of the litigation.
Because the Jibrils plausibly allege that they will travel
again soon and that they will again endure the alleged
illegalities, they have established an imminent threat of future
injury. Therefore, for the reasons that we explain below, we
conclude that the Jibrils have standing to pursue most of their
claims for prospective relief. However, we hold that the Jibrils
lack standing to pursue prospective relief relating to certain
actions taken by Government agents who detained them during
their travel in 2018. The Jibrils claim that these actions violated
established federal policies, but they lack standing because
they have not plausibly alleged any impending or substantial
risk of future harm. Accordingly, we affirm in part and reverse
in part the District Court’s judgment and remand the case for
further proceedings.
I. BACKGROUND
A. Statutory and Regulatory Framework
The Federal Bureau of Investigation (“FBI”) administers
the multi-agency Terrorist Screening Center, which manages
and operates the Terrorist Screening Database (“Database”).
Terrorist Screening Center, FBI, https://www.fbi.gov/about/
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leadership-and-structure/national-security-branch/tsc (last
visited Nov. 29, 2021). The Database has at least two subsets
intended to identify individuals who may pose a threat to civil
aviation: the “No Fly List” and the “Selectee List.” See Matar
v. Transp. Sec. Admin., 910 F.3d 538, 540 (D.C. Cir. 2018).
“Individuals on the No Fly [L]ist are prohibited from boarding
airplanes that are traveling to the United States, while
individuals on the Selectee List” may fly but “are subject to
more rigorous screening” than most passengers. Id. People
appearing on the Selectee List are not notified about their
placement on or removal from the list. Compl. ¶ 76, J.A. 14.
Selectee List travelers almost always receive enhanced
screening at border crossings, including airports. Id. ¶ 61, J.A.
12. They typically have “SSSS” printed on their boarding
passes, which stands for Secondary Screening Security
Selection. Id. ¶¶ 62-63, J.A. 12; see also 49 C.F.R.
§ 1560.105(b)(2) (2018) (requiring airlines to identify
passengers selected by the Transportation Security
Administration (“TSA”) for enhanced screening). Usually,
Selectee List travelers cannot obtain boarding passes at kiosks
or on their cell phones and instead must speak with airline staff
at ticketing counters, who then must contact government agents
before issuing the passes. Compl. ¶¶ 64-65, J.A. 13.
An individual who “believes he or she has been improperly
or unfairly delayed or prohibited from boarding an aircraft”
because he or she appears on the Selectee List may seek redress
through the Traveler Redress Inquiry Program (“TRIP”)
administered by the Department of Homeland Security
(“DHS”). 49 C.F.R. § 1560.205(a), (b) (2018). The individual
must submit “personal information and copies of the specified
identification documents” to the TRIP office, and TSA may
request additional information as needed. Id. § 1560.205(c).
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“[I]n coordination with the [Terrorist Screening Center]
and other appropriate Federal law enforcement or intelligence
agencies, if necessary,” TSA then “review[s] all the
documentation and information requested from the individual,
correct[s] any erroneous information, and provide[s] the
individual with a timely written response.” Id. § 1560.205(d).
The response neither confirms nor denies the individual’s
inclusion on the Selectee List. Compl. ¶ 83, J.A. 15. According
to the Government, an individual’s Selectee List status is
covered by the law enforcement privilege and statutorily
protected as Sensitive Security Information restricted from
public access. Final Br. for Appellees 11 (citing 49 U.S.C.
§ 114(r) and 49 C.F.R. § 1520.5(a)); see also Matar, 910 F.3d
at 540 (citing § 1520.5(b)(9)(ii)).
B. Facts and Procedural History
“Because we review the adequacy of the complaint as a
matter of pleading, and not the truth of its allegations, the facts
recited here are as [the Jibrils] allege[] them, with reasonable
inferences drawn in the [Jibrils’] favor. We take no position on
what might ultimately be proved.” VoteVets Action Fund v.
U.S. Dep’t of Veterans Affs., 992 F.3d 1097, 1102 (D.C. Cir.
2021).
Appellants are the married couple Mohammed Jibril (“Mr.
Jibril”) and Aida Shahin (“Ms. Shahin”) and their adult and
minor children: Ala’a Jibril, Khalid Jibril, Hamza Jibril, Y.J.,
and O.J. Compl. ¶¶ 1-7, J.A. 6; Final Br. in Chief for Appellants
ii. The Jibrils have sued the following federal officials in their
official capacities: Secretary of DHS, Administrator of TSA,
Commissioner of Customs and Border Protection (“CBP”),
Attorney General, Director of the FBI, and Director of the
Terrorist Screening Center. Compl. ¶¶ 8-13, J.A. 6.
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Ms. Shahin and Mr. Jibril are U.S. citizens of Jordanian
national origin. Id. ¶¶ 1-2, J.A. 6. Their children are also U.S.
citizens. Id. ¶¶ 3-7, J.A. 6. The Jibrils live in California. Id.
¶¶ 1-7, J.A. 6. The Jibril family has routinely traveled to Jordan
every two to three years, id. ¶ 140, J.A. 20, and Mr. Jibril has
visited relatives in Jordan between twelve and fifteen times
over the past twenty-five years, id. ¶ 141, J.A. 20. The Jibrils
are Muslims with sincerely held religious beliefs that require
traveling to Saudi Arabia to complete Hajj and pilgrimage
obligations. Id. ¶ 122, J.A. 18. In addition to needing to travel
overseas to fulfill these obligations, “the Jibril family wishes to
travel to Jordan to see family in the near future, as consistent
with their prior travel patterns.” Id. ¶ 139, J.A. 20.
In 2018, the Jibrils traveled to the Middle East to visit
family in Jordan. Id. ¶ 94, J.A. 16. After arriving at the airport
in Los Angeles for their departing flight, they waited about one
hour to receive their boarding passes, all of which had “SSSS”
printed on them. Id. ¶ 96, J.A. 16. The family members were
then searched for about two hours. Id. ¶ 97, J.A. 16. During the
searches, all members of the family – including the minor
children – were subject to pat-down searches. Id. Neither Mr.
Jibril nor Ms. Shahin was asked for permission prior to the
minor children’s pat-down searches. Id. ¶ 98, J.A. 16. DHS
agents then met the Jibrils at the gate for their departing flight.
Id. ¶ 99, J.A. 16. The agents took the family to a private area
and searched their luggage. Id. ¶ 100, J.A. 16. Due to this
extensive screening, the Jibrils nearly missed their flight. Id.
¶ 101, J.A. 16. Once the family arrived in Jordan, they “were
interrogated for about two hours,” id. ¶ 102, J.A. 16, although
the complaint does not specify by whom.
The Jibrils remained in Jordan for two months and then
began their trip home to California. Id. ¶ 103, J.A. 17. “At the
Jordanian airport, [Mr.] Jibril was told that American officials
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ha[d] an issue with him, and that the family’s names would
need to be cleared prior to the family boarding the plane.” Id.
¶ 104, J.A. 17. All family members again had “SSSS” printed
on their boarding passes. Id. ¶ 105, J.A. 17.
The family’s trip home involved a layover in Abu Dhabi,
United Arab Emirates. Id. ¶ 103, J.A. 17. “After arriving in
United Arab Emirates, the family was interrogated for roughly
[forty-five] minutes by Abu Dhabi officials.” Id. ¶ 106, J.A. 17.
Customs and Border Protection “agents at the Preclearance
location in Abu Dhabi” then detained the Jibrils, separated
them from one another, and interrogated them for at least four
hours. Id. ¶ 107, J.A. 17. Mr. Jibril, Ms. Shahin, and Khalid
Jibril were interrogated by themselves. Id. ¶¶ 108-10, J.A. 17.
Hamza Jibril, who was a minor at the time, was interrogated by
himself. See id. ¶ 111, J.A. 17. O.J., a minor, remained in the
waiting room without his parents at several points. Id. ¶ 112,J.A. 17. All electronic devices, including the Jibrils’ cell
phones, were searched. Id. ¶ 113, J.A. 17. The food and spices
the Jibrils had packed were searched and thrown out. Id. ¶ 116,J.A. 18. The minor children were not offered any food upon
their arrival in the CBP holding room. Id. ¶ 117, J.A. 18.
Due to their prolonged detention by CBP officials, the
Jibrils missed their scheduled flight to Los Angeles and stayed
in Abu Dhabi overnight. Id. ¶ 118, J.A. 18. No members of the
family were asked that night if they had any medical conditions
requiring treatment. Id. ¶ 119, J.A. 18. After returning to the
Abu Dhabi airport the next day, the Jibrils’ electronic devices
were searched again. Id. ¶ 120, J.A. 18. The security measures
involved a delay of at least one hour. Id. ¶ 121, J.A. 18.
The Jibrils believe the extensive and intrusive security
screenings they endured are consistent with the Government’s
treatment of Selectee List travelers. See id. ¶ 123, J.A. 18. In
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March 2019, all family members initiated redress inquiries
through the Traveler Redress Inquiry Program. Id. ¶¶ 126-34,J.A. 18-19. In June 2019, Ala’a Jibril received a response
stating, in part:
DHS has researched and completed our review of
your case. DHS TRIP can neither confirm nor deny
any information about you which may be within
federal watchlists or reveal any law enforcement
sensitive information. However, we have made any
corrections to our records that our inquiries
determined were necessary, including, as appropriate,
notations that may assist in avoiding incidents of
misidentification.
Id. ¶ 135, J.A. 19. According to the Jibrils, this is the standard
response sent to people who are not on the No Fly List, but who
could be on the Selectee List. Id. The next month, Mr. Jibril,
Ms. Shahin, Khalid Jibril, and Y.J. received similar responses.
See id. ¶¶ 136-37, J.A. 19-20. O.J. received a slightly different
response, which stated, in relevant part, that O.J.’s experience
“was most likely caused by a misidentification against a
government record or by random selection.” Id. ¶ 137 n.13,J.A. 20. According to the Jibrils, the response O.J. received “is
consistent with persons who are either taken off the No Fly
List, or who never were on the No Fly List, but is not standard
for persons who believe they are on the Selectee List.” Id.Hamza Jibril did not receive a responsive determination letter.
Id. ¶ 138, J.A. 20.
Finding the TRIP responses inadequate to guarantee that
they will not face similar treatment during their future travels,
the Jibrils filed the instant action. They bring the following
claims:
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Count I: violations of the Jibrils’ Fourth Amendment
rights due to unreasonable pat-down searches and
prolonged detentions;
Count II: violations of the Jibrils’ Fourth
Amendment rights due to warrantless searches of cell
phones without probable cause;
Count III: violations of the Jibrils’ Fifth Amendment
procedural rights to due process;
Count IV: violations of the Administrative Procedure
Act due to detention conditions; and
Count V: violations of the Administrative Procedure
Act due to lack of adequate procedural due process
through policies and available administrative remedy.
Id. ¶¶ 146-200, J.A. 21-27. Counts I, II, and IV describe events
that occurred during the 2018 trip. The Jibrils allege that, in
some instances, Government agents failed to follow their own
detention-related policies, which prohibit most pat-down
searches of minors and require that family units with juveniles
remain together in most instances. Id. ¶¶ 151, 184, 190, J.A.
22, 25, 26. Counts III and V allege the Jibrils lack an adequate
mechanism to challenge their apparent inclusion on the
Selectee List because the TRIP procedures are insufficient. Id.
¶¶ 164-79, 194-200, J.A. 23-25, 26-27. The complaint also
contains a sixth count, which seeks attorneys’ fees. Id. ¶¶ 201-
03, J.A. 27.
The Jibrils seek declaratory and injunctive relief. See
Compl. 24-25, J.A. 28-29. First, they ask the court to declare
that the Government’s actions, policies, practices, and customs
violate the Constitution and the Administrative Procedure Act.
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Compl. 24, J.A. 28; see 5 U.S.C. §§ 701–706. Second, they ask
the court to order the Government to revise its TRIP policies
and then re-examine the Jibrils’ inquiries. Compl. 24, J.A. 28.
Third, they seek an injunction barring the Government from
conducting warrantless pat-down searches of them or searching
their cell phones absent a warrant or probable cause. Id.
Finally, they seek attorneys’ fees and any additional relief the
court deems proper. Compl. 25, J.A. 29.
Before the District Court, the Government moved to
dismiss the complaint for lack of subject matter jurisdiction and
failure to state a claim. See Fed. R. Civ. P. 12(b)(1), (6). The
trial court concluded that the Jibrils lacked Article III standing
because they did not plausibly allege a risk of future injury.
Jibril v. Wolf, No. 19-cv-2457, slip op. at 6-10 (D.D.C. May 9,
2020), reprinted in J.A. 161-65. In the District Court’s view,
the Jibrils failed to establish that they would soon travel again
or that they would receive comparable treatment when they did.
Id. at 6, J.A. 161. The court dismissed the case with prejudice
for lack of subject matter jurisdiction and did not reach the
Government’s argument that the complaint failed to state a
claim. Id. at 10, J.A. 165; see id. at 6-10, J.A. 161-65.
The Jibrils timely challenged the District Court’s
judgment, and we have jurisdiction over their appeal. 28 U.S.C.
§ 1291.
II. ANALYSIS
A. Standard of Review
We review de novo the District Court’s standing
determination. Nat’l Council for Adoption v. Blinken, 4 F.4th
106, 110-11 n.3 (D.C. Cir. 2021) (citing Arpaio v. Obama, 797
F.3d 11, 19 (D.C. Cir. 2015)).
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B. The Jibrils’ Standing
We begin our analysis by noting that, because the
Government neither confirmed nor denied the Jibrils’ Selectee
List status, the Government’s responses to the Jibrils’ TRIP
inquiries did not moot the family’s requests for declaratory and
injunctive relief to safeguard them against alleged threats of
future injuries. See Cause of Action Inst. v. U.S. Dep’t of Just.,
999 F.3d 696, 703-04 (D.C. Cir. 2021) (holding that even if a
party receives relief on a particular claim, this does not moot the
party’s challenge to the policy or practice that gave rise to the
lawsuit) (citing Payne Enters., Inc. v. United States, 837 F.2d 486,
491 (D.C. Cir. 1988))); see also Super Tire Eng’g Co. v.
McCorkle, 416 U.S. 115, 121-22 (1974); Cierco v. Mnuchin, 857
F.3d 407, 416-17 (D.C. Cir. 2017). The Government maintains,
however, that the Jibrils lack standing to pursue prospective
relief because they have failed to allege any imminent risk of
future injury.
We agree with the Government that, “[f]or claims seeking
prospective relief, a plaintiff must show a threatened injury that
is certainly impending or a substantial risk that the future harm
will occur.” Final Br. for Appellees 24; see also, e.g., Union of
Concerned Scientists v. U.S. Dep’t of Energy, 998 F.3d 926,
929 (D.C. Cir. 2021) (quoting Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 158 (2014)). However, contrary to the
Government’s position, we find that Appellants’ complaint
adequately alleges facts sufficient to support most of their
claims for redress against a substantial risk of future harm. This
includes Appellants’ claims that their cell phones were
searched without probable cause, that they experienced
unreasonable treatment and prolonged detention in violation of
their constitutional rights, and that the TRIP redress process is
inadequate and violates the Administrative Procedure Act and
their constitutional rights.
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The Jibrils’ factual allegations, taken as true, lead to the
reasonable inference that the family will again be subjected to
many of the alleged illegalities they challenge in this action.
The Jibrils’ allegations plausibly support their claim that they
will soon fly again and that they remain on a terrorist watchlist.
This exposes them to an imminent risk of invasive and undue
Government actions that they plausibly allege the TRIP process
will not prevent. The Jibrils easily satisfy the remaining aspects
of our standing analysis. Therefore, for the reasons that we
explain below, we conclude that Appellants have standing to
pursue most of their claims for prospective relief.
There is one caveat, however. The Jibrils lack standing to
pursue certain claims for prospective relief relating to
Government agents allegedly violating established federal
policies when they detained Appellants during their travel in
2018. In particular, Count I alleges that under CBP policies,
“juveniles should not be subject to pat-down searches in almost
any circumstance, and not without prior supervisory
authorization, unless they are immediate pat-down searches
akin to Terry frisks,” and that “TSA states that it should keep
pat-down searches of minors to a minimum.” Compl. ¶¶ 151-
52, J.A. 22. Count IV alleges that Government policies “require
that family units with juveniles remain together unless they
must be separated, such as if the family members have different
immigration statuses.” Id. ¶ 184, J.A. 25. The Jibrils claim that
these policies were violated by Government agents in 2018.
However, because the Jibrils do not plausibly allege that these
alleged violations will recur, Appellants fail to establish any
imminent injuries with respect to these purported policy
violations. See Cruz v. Am. Airlines Inc., 356 F.3d 320, 329
(D.C. Cir. 2004) (relying on City of Los Angeles v. Lyons, 461
U.S. 95 (1983), to conclude that plaintiffs challenging the
prospective enforcement of American Airlines’ lost-baggage
policy lacked standing because it was “not likely” they
13
“w[ould] again lose their luggage on an international American
[Airlines] flight, much less again be denied compensation as a
result of the misapplication of [American Airlines’ lost-
baggage] rule”). Accordingly, the District Court did not err by
dismissing these claims.
Nevertheless, as the Government concedes, the District
Court’s dismissal of these claims should have been without
prejudice, as dismissal of the claims for lack of standing is not
an adjudication on the merits. See Havens v. Mabus, 759 F.3d
91, 98 (D.C. Cir. 2014) (“A jurisdictional dismissal—which is
not an adjudication on the merits under Rule 41(b)—is, then, a
dismissal without prejudice.”).
Finally, it should be noted that, although the Jibrils may
have had standing to seek damages – including nominal
damages – to redress the alleged harms they suffered during
their travels in 2018, they have not sought such relief. See
Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801-02 (2021)
(discussing the possibility of an award of nominal damages to
redress a past injury). Accordingly, in our analysis below, we
focus only on the Jibrils’ standing to seek declaratory and
injunctive relief to safeguard against cognizable alleged future
harms.
1. Legal Framework
Article III of the United States Constitution “confines the
federal judicial power to the resolution of ‘Cases’ and
‘Controversies.’ For there to be a case or controversy under
Article III, the plaintiff must have a ‘personal stake’ in the
case—in other words, standing.” TransUnion, 141 S. Ct. at
2203 (quotation marks omitted) (quoting Raines v. Byrd, 521
U.S. 811, 819 (1997)).
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The party invoking federal jurisdiction bears the burden of
demonstrating Article III standing. Id. at 2207-08 (citing Lujan
v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). The plaintiff
must demonstrate standing for each claim that is being pressed
and for each form of relief that is being sought. Id. at 2208(citations omitted). “[T]o establish standing, a plaintiff must
show (i) that he suffered an injury in fact that is concrete,
particularized, and actual or imminent; (ii) that the injury was
likely caused by the defendant; and (iii) that the injury would
likely be redressed by judicial relief.” Id. at 2203 (citing Lujan,
504 U.S. at 560-61).
As discussed above, an alleged future injury may suffice to
establish standing if the threatened injury is “certainly
impending” or there is a “substantial risk” it will occur. New
Jersey v. EPA, 989 F.3d 1038, 1047 (D.C. Cir. 2021) (quoting
Attias v. Carefirst, Inc., 865 F.3d 620, 626-27 (D.C. Cir. 2017))
(citing Dep’t of Com. v. New York, 139 S. Ct. 2551, 2565
(2019)); see also TransUnion, 141 S. Ct. at 2210 (“[A] person
exposed to a risk of future harm may pursue forward-looking,
injunctive relief to prevent the harm from occurring, at least so
long as the risk of harm is sufficiently imminent and
substantial.” (citing Clapper v. Amnesty Int’l USA, 568 U.S.
398, 414 n.5 (2013) and Lyons, 461 U.S. at 102)). Although a
plaintiff seeking prospective declaratory and injunctive relief
“may not rest on past injury” alone, Arpaio, 797 F.3d at 19,
“‘[p]ast wrongs’ may serve as ‘evidence bearing on whether
there is a real and immediate threat of repeated injury,’” N.B.
ex rel. Peacock v. District of Columbia, 682 F.3d 77, 84 (D.C.
Cir. 2012) (alteration in original) (quoting Lyons, 461 U.S. at
102).
Each element of the standing analysis “must be supported
in the same way as any other matter on which the plaintiff bears
the burden of proof, i.e., with the manner and degree of
15
evidence required at the successive stages of the litigation.”
Lujan, 504 U.S. at 561 (collecting cases). At the pleading stage,
“plaintiffs are required only to ‘state a plausible claim’ that
each of the standing elements is present.” Attias, 865 F.3d at
625-26 (quoting Food & Water Watch, Inc. v. Vilsack, 808 F.3d
905, 913 (D.C. Cir. 2015)) (citing Lujan, 504 U.S. at 561).
“Accordingly, ‘[t]o survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to state
a claim [of standing] that is plausible on its face.” Kareem v.
Haspel, 986 F.3d 859, 866 (D.C. Cir. 2021) (alterations in
original) (quotation marks omitted) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)), cert. denied, --- S. Ct. ---, 2021 WL
5284636 (Nov. 15, 2021). And the court “assume[s], for
purposes of the standing analysis, that plaintiffs will prevail on
the merits of their claim[s].” Attias, 865 F.3d at 629.
2. The Jibrils Have Standing to Pursue Their Claims for
Relief to Safeguard Them from Substantial Risks of
Future Harm
a. Future Travel Plans
The Jibrils’ history of traveling to Jordan every two years
to visit family, combined with their professed desire to
continue that pattern, strongly suggests that they will travel
internationally within the next year or two. See In re Navy
Chaplaincy, 697 F.3d 1171, 1176 (D.C. Cir. 2012) (concluding
that plaintiffs who “w[ould] probably appear” “in the near
future” “before selection boards” employing challenged
policies and procedures sufficiently alleged they would
“engage in the conduct they claim will cause them injury”). Mr.
Jibril’s history of visiting relatives in Jordan between twelve
and fifteen times over the past twenty-five years provides
support for this inference. It is also noteworthy that the family’s
sincerely held religious beliefs require them to travel to Saudi
16
Arabia to fulfill religious obligations. These allegations lead to
the reasonable inference that the Jibrils will soon travel again,
particularly if their names are removed from the Selectee List
and they can secure protection from the court against undue
searches and interrogations.
In opposing Appellants’ position, the Government points
out that, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 564
(1992), the Supreme Court stated that plaintiffs’ “‘some day’
intentions” to travel are insufficient to support standing. Final
Br. for Appellees 29-30 (quoting Lujan, 504 U.S. at 564).
However, the facts in Lujan are quite different from the facts
in this case. The plaintiffs in Lujan – “organizations dedicated
to wildlife conservation and other environmental causes” –
sought to prove future travel plans by pointing to affidavits
from two members. Lujan, 504 U.S. at 559, 563. The first
stated she had once visited Egypt and “intend[ed] to do so
again.” Id. at 563. The second averred she had once travelled
to Sri Lanka and “intend[ed] to go back” but “had no current
plans” to do so. Id. at 563-64. The instant case is easily
distinguishable, as the Jibrils allege an extensive travel history
supporting their future plans, which evince an imminence the
Lujan plaintiffs’ “‘some day’ intentions” lacked. See Ghedi v.
Mayorkas, 16 F.4th 456, 465 (5th Cir. 2021) (concluding that
a plaintiff who purportedly appeared on the Selectee List and
“allege[d] both a professional need for habitual travel and that
his injuries [we]re tied to the act of flying, not his destination”
plausibly alleged “that his next flight, and thus, injury, [wa]s
both real and immediate”).
b. 2018 Selectee List Status
The Jibrils also plausibly allege that they appeared on a
terrorist watchlist in 2018. We infer from the inclusion of
“SSSS” on the Jibrils’ boarding passes and the extensive
17
searches and interrogation the Jibrils endured during their
international travels in 2018 that the family members appeared
on a terrorist watchlist during that trip.
The Government does not dispute that the Jibrils’ 2018
experience is consistent with its treatment of Selectee List
passengers. It maintains, however, that the Jibrils’ allegations
are merely “compatible with,” but not “more likely explained
by,” the family’s Selectee List inclusion. Final Br. for
Appellees 37 (quoting Kareem, 986 F.3d at 869). In support of
this argument, the Government relies on: (1) declarations from
Government officials purporting to establish that the majority
of passengers designated for enhanced screening are so
designated for reasons other than inclusion in the Database and
(2) a Government report stating that 98% of TRIP inquires have
no connection to any Database identity. See, e.g., Final Br. for
Appellees 4 n.1; J.A. 94-104. This material falls far short of
justifying a rejection of Appellants’ complaint at the pleading
stage of this litigation on a motion to dismiss.
First, the declarations, which were filed in an unrelated out-
of-circuit action, were not before the District Court, and we
decline to take judicial notice of them. See Fed. R. Evid. 201(b)
(“The court may judicially notice a fact that is not subject to
reasonable dispute because it: (1) is generally known within the
trial court’s territorial jurisdiction; or (2) can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned.”); Hurd v. District of Columbia, 864
F.3d 671, 686 (D.C. Cir. 2017) (“[A] court cannot take judicial
notice of the truth of a document simply because someone put
it in the court’s files.” (alteration in original) (quoting 21B Fed.
Prac. & Proc. Evid. § 5106.4 (2d ed.))).
Second, the government report containing the 98% statistic
is devoid of any meaningful context. See Overview of the U.S.
18
Government’s Watchlisting Process and Procedures as of
January 2018, reprinted in J.A. 94-104. Although the report
states that approximately 98% of TRIP inquiries have no
connection to any watchlist identity, it does not indicate what
proportion of the redress inquiries the Government receives are
from travelers who experienced treatment as severe and time-
delaying as what the Jibrils encountered. See id. at 8, J.A. 102.
The Government also argues that the Jibrils’ extensive
travel history undermines their purported inclusion on the
Selectee List, as the family apparently traveled without
incident before 2018. Final Br. for Appellees 35. This is a
specious argument. The Jibrils’ factual allegations lead to the
reasonable inference that the Government placed the Jibrils on
the watchlist after their pre-2018 travels but before their 2018
trip.
c. Current Selectee List Status
Finally, the Jibrils’ factual allegations lead us to the
reasonable inference that the family members remain on the
Selectee List today. The Jibrils allege that although they have
completed the only redress process available to them, they
cannot determine their watchlist status because this
information is in the Government’s exclusive control, and the
Government refuses to disclose it. Drawing all reasonable
inferences in favor of the Jibrils, we presume that the family
members’ watchlist status “remains the same” “[u]nless the
[G]overnment provides documentation” to the contrary. See
Shearson v. Holder, 725 F.3d 588, 593 (6th Cir. 2013). Because
the Government has provided no information to the contrary,
we infer from the Jibrils’ factual allegations that the family
members remain on the watchlist.
19
The Government argues that even assuming the Jibrils
appeared on a watchlist in 2018, there is no indication they
remain on such a list today, as the family has completed the
TRIP redress process and Government agents consistently
audit and update the Selectee List. Final Br. for Appellees 41-
43. The Government maintains that presuming the Jibrils
remain on such a list today is tantamount to finding standing
based solely on the fact that necessary information is within a
defendant’s exclusive control. Id. at 47 n.11. We disagree.
In support of their argument, the Government points to our
decision in Kareem v. Haspel, 986 F.3d at 861, in which a U.S.
citizen journalist working in Syria claimed that he was
mistakenly placed on a list of individuals the United States had
determined were terrorists it could target and kill. The
journalist, who sought prospective relief, claimed he had
narrowly missed being hit by military strikes five times, and he
believed he was the target of those strikes. Id. at 862. The court
in Kareem noted that, although “[w]e have recognized that
‘pleadings on information and belief are permitted when the
necessary information lies within defendants’ control,”’ “we
also require that the allegations based on information and belief
‘be accompanied by a statement of the facts upon which the
allegations are based.’” Id. at 866 (quotation marks omitted)
(quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1279
n.3 (D.C. Cir. 1994)) (citing Tooley v. Napolitano, 586 F.3d
1006, 1007-08, 1010 (D.C. Cir. 2009)). We concluded that the
journalist’s factual allegations were insufficient to establish
standing, as they did not “create a plausible inference that the
described missile attacks were attributable to the United States
and specifically targeted” him. Id. at 865.
The situation in this case is quite different. As explained
above, the Jibrils allege facts supporting the conclusion that
they appeared on the Selectee List during their 2018 travels.
20
We simply draw the reasonable inference from those facts that
this remains the case today, particularly since the Government
has provided no evidence to the contrary.
At oral argument, Government counsel suggested that if the
Jibrils would like to determine whether they remain on a
terrorist watchlist, some or all members of the family can book
another trip to see whether they endure the same problems that
they faced in 2018. Whether this suggestion was meant to be a
tongue-in-cheek quip or simply a heartless argument, it makes
no sense. As explained above, the Supreme Court has made it
clear that “a person exposed to a risk of future harm may pursue
forward-looking, injunctive relief to prevent the harm from
occurring, at least so long as the risk of harm is sufficiently
imminent and substantial.” TransUnion, 141 S. Ct. at 2210
(emphasis added) (citations omitted). A plaintiff is not required
to wait for an injury to occur in order to satisfy Article III
standing requirements. On the record before us, we find that
the Jibrils’ complaint plausibly alleges a risk of harm that is
sufficiently imminent and substantial. Therefore, they have
standing to pursue a number of their claims for prospective
relief.
***
In sum, the Jibrils’ future travel plans, combined with the
reasonable inference that they remain on the Selectee List,
indicate they will soon be subjected to the challenged
Government actions again. Accordingly, the Jibrils adequately
allege an imminent threat of future injury for those claims
challenging the Government’s policies and the alleged lack of
adequate redress process. See In re Navy Chaplaincy, 697 F.3d
at 1178 (holding that plaintiffs plausibly alleged a future injury
where the defendant “neither dispute[d] plaintiffs’ claims that
21
they w[ould] expose themselves to potential injury . . . nor
argue[d] that it ha[d] any plans to change the procedures
alleged to injure plaintiffs”). This feared injury is concrete and
particularized, as the harm is real, rather than abstract, and it
affects the Jibrils “in a personal and individual way.” Spokeo,
Inc. v. Robins, 578 U.S. 330, 339 (2016) (collecting cases).
The Jibrils also satisfy the remaining aspects of our
standing inquiry. The imminent injury is plainly traceable to
the Government’s actions, and the prospective relief the Jibrils
seek, including revisions to the TRIP policies, would
ameliorate the alleged future harms with respect to which they
complain. We note, however, that because Selectee List status
constitutes Sensitive Security Information, see 49 U.S.C.
§ 114(r); 49 C.F.R. § 1520.5(a), and the Government maintains
that watchlist-status disclosure raises weighty national security
concerns, Final Br. for Appellees 11, revisions to the TRIP
policies may not exist that would allow the Jibrils to discover
whether they are – or ever were – on the Selectee List.
Accordingly, the Jibrils have standing to pursue their
claims for prospective relief discussed above.
III. CONCLUSION
For the foregoing reasons, we affirm in part and reverse in
part the District Court’s judgment and remand the case for
further proceedings consistent with this opinion.