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Abdelfattah v. United States Dep't of Homeland Security

United States Court of Appeals, District of Columbia Circuit

May 15, 2015

OSAMA ABDELFATTAH, APPELLANT
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., APPELLEES

Argued: December 4, 2014.

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Appeal from the United States District Court for the District of Columbia. (No. 1:07-cv-01842).

Erica L. Ross, appointed by the court, argued the cause as amicus curiae for appellant. With her on the briefs were David W. DeBruin and Paul M. Smith, appointed by the court.

Osama Abdelfattah, Pro se, filed the briefs on behalf of appellant.

Alan Burch, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Wyneva Johnson, Assistant U.S. Attorney, entered an appearance.

Before: BROWN and SRINIVASAN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

OPINION

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Brown, Circuit Judge.

Osama Abdelfattah filed a complaint identifying twenty-one causes of action against the United States Department of Homeland Security, several of its divisions, unnamed federal officials, and unnamed private individuals. Abdelfattah's claims stem from the Government's collection, maintenance, and use of information about him. The district court granted the federal

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defendants' motion to dismiss each of Abdelfattah's claims--some for lack of jurisdiction and some for failure to state a claim on which relief may be granted. We affirm the district court's judgment as to all claims except those brought under the Fair Credit Reporting Act.

I

A

When reviewing a motion to dismiss, we " treat the complaint's factual allegations as true" and " must grant [the plaintiff] the benefit of all inferences that can be derived from the facts alleged." Atherton v. D.C. Office of Mayor, 567 F.3d 672, 677, 386 U.S.App.D.C. 144 (D.C. Cir. 2009). The facts set forth below are compiled from the First Amended Complaint, Abdelfattah's Response in Opposition to the Motion to Dismiss or in the Alternative Motion to Amend the Complaint, two affidavits filed by Abdelfattah, and the exhibits attached thereto. We may consider the affidavits and exhibits in this appeal because they were filed by a pro se litigant and were intended to clarify the allegations in the complaint. Id. (considering affidavits and exhibits filed by a pro se litigant when evaluating a motion to dismiss); see also Greenhill v. Spellings, 482 F.3d 569, 572, 375 U.S.App.D.C. 477 (D.C. Cir. 2007) (consideration may be given to " supplemental materials filed by a pro se litigant in order to clarify the precise claims being urged" ). The district court considered the affidavits and exhibits under similar reasoning, Abdelfattah v. U.S. Dep't. of Homeland Sec., 893 F.Supp.2d 75, 76 n.2 (D.D.C. 2012), and neither the parties nor Amicus have raised an objection.

Mr. Abdelfattah, a Jordanian national, has lived in the United States since 1996, when he arrived on a student visa to attend the University of Bridgeport. While a student, he lived in a shared apartment with several roommates. For a six-month period in or around 1998, one of his roommates was a man who later became a person of interest in the investigation of the September 11, 2001 terrorist attacks. Abdelfattah did not know this man prior to living with him and has had no further communications with him, although he is aware that the man was arrested for fraud and deported.

Abdelfattah graduated with a master's degree in computer engineering in 1998 and accepted a job with an employer who sponsored his work visa. In December 2001, he submitted an I-485 application to adjust his immigration status to that of a permanent resident. He also submitted an I-765 application for employment authorization, which was approved for a one-year period expiring in January 2003. At some point in 2002, Abdelfattah moved to New Jersey and again filed an I-765 to renew his employment authorization. When this application had not been approved by early 2003, he phoned the United States Department of Homeland Security's (" the Department" or " DHS" ) Citizenship and Immigration Services' (" USCIS" ) Vermont Service Center.[1] Abdelfattah was informed that he was the subject of a " security background check" and that the amount of time needed to process his I-765 application was therefore " unknown." First Amend. Compl. ¶ 123. He visited immigration offices on multiple separate occasions attempting without success to obtain an interim employment authorization document. Each time he experienced a lengthy wait, and once he got into an argument with an

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immigration officer who threatened to call the police.

In September 2003, after a visit to an immigration office where he was " detained for about 8 hours but let go," id. ¶ 129, Abdelfattah obtained an interim employment authorization valid for eight months. In January 2004, Abdelfattah accepted a software engineering job with a company on Long Island, New York. In February 2004, DHS granted a four-month extension on Abdelfattah's employment authorization but did not send him the corresponding card. Abdelfattah's employment authorization was again extended in May 2004, this time for another eight months.

In June 2004, Abdelfattah moved to New York, and DHS approved his I-485 application and instructed him to appear at an immigration office in New York for Green Card processing. On July 2, 2004, Abdelfattah went to the immigration office and provided documentation, including his notice to appear, interim employment authorization document, and passport, to an immigration officer who fingerprinted him and asked him to wait. While waiting with his wife and one-year-old daughter in a room full of people, Abdelfattah was approached by six immigration officers with two dogs. He complied when asked to accompany one of the officers to a separate room where he was searched, his wallet's contents were examined, and he was questioned about his immigration status and employment.

Two Federal Bureau of Investigation (" FBI" ) agents arrived and questioned Abdelfattah about his former roommate. The agents then asked a series of questions including whether Abdelfattah had weapons training, where he had traveled, if he prayed, whether he gave money to charity, and what he thought about Americans. Finally, the agents inquired about his willingness to work as an FBI informant. He gave the agents the names of and contact information for some of his family and friends. After the interview ended, Abdelfattah proceeded to the Alien Documentation, Identification, and Telecommunications (" ADIT" ) unit and demanded that an immigration officer stamp his passport.[2] The officer refused, stating his application for permanent resident status had been approved by mistake. The officer returned Abdelfattah's passport, but kept his notice to appear and interim employment authorization document.

In September 2004, DHS visited both Abdelfattah's workplace and his home, inquiring about him at each location. On September 10, 2004, Abdelfattah returned to the New York immigration office with his counsel to request the ADIT passport stamp. After Abdelfattah waited in the office for six hours, an immigration officer then marked his passport with a stamp valid for 60 days. The officer advised him that the ADIT unit would be investigating the names he had used and his former addresses. In December 2004, an FBI agent contacted Abdelfattah via telephone and threatened him with deportation if he did not agree to work as an FBI informant. In May 2005, Abdelfattah sought another stamp for his passport at the New York immigration office. Officials refused. He filed suit against the federal government in the Eastern District of New York and reached a settlement under the terms

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of which Abdelfattah agreed to drop the lawsuit in exchange for an ADIT stamp valid for one year. While Abdelfattah did not immediately receive a physical Green Card, he does claim to currently possess one. Decl. of Abdelfattah ¶ 2 (Mar. 18, 2012).

Mr. Abdelfattah submitted a Freedom of Information Act (" FOIA" ) request for records pertaining to his I-485 application. After filing a FOIA lawsuit in the Eastern District of New York, he received 337 pages of information in March 2005. The FOIA response included a Significant Incident Report outlining the events of July 2, 2004. The report stated Abdelfattah was an " exact match on a terrorism lookout," Mtn. to Amend Compl. Ex. A, and that a TECS record indicated Abdelfattah may be associated with an individual, whose name is redacted, who was arrested in December 2001 for document fraud.

TECS, which is no longer an acronym but once stood for " Treasury Enforcement Communication System," is a federal government database containing " temporary and permanent enforcement, inspection and intelligence records relevant to the anti-terrorism and law enforcement mission of U.S. Customs and Border Protection and numerous other federal agencies that it supports." [3]Privacy Act of 1974; U.S. Customs and Border Protection -- 011 TECS System of Records Notice, 73 Fed.Reg. 77,778, 77,779 (Dec. 19, 2008). TECS records are retained for 75 years " from the date of collection of the information or for the life ...


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