Cherri v. Mueller, 2013 U.S. Dist. LEXIS 81679

Background

Four Muslim-American plaintiffs allege border questioning about Islamic beliefs and practices at U.S.–Canada crossings, under CBP/FBI/DHS policy, custom, and practice; they challenge this religious questioning as violations of the First and Fifth Amendments and RFRA; the first amended complaint asserts five counts and seeks declaratory and injunctive relief; the court bifurcated official-capacity from individual-capacity claims and now addresses only Official-Capacity Defendants; the court grants in part and denies in part the motion to dismiss, finding standing, a cognizable policy/custom, and a Fifth Amendment claim, but dismissing First Amendment, Establishment, RFRA, and retaliation claims; the remaining claim is Count IV (Fifth Amendment Equal Protection).
Plaintiffs are four Michigan residents who repeatedly crossed the U.S.–Canada border and were subjected to inspections and invasive questioning about Islam; the questioning questions included mosque attendance, prayer frequency, and religious leaders; CRCL and DHS memoranda and correspondence related to complaints about religious questioning are attached; CRCL advised that complaints would be reviewed but offered no remedies; the court considers the allegations and attached letters in ruling on the motion.
Defendants named include FBI Director Mueller, CBP Acting Commissioner Aguilar, DHS Secretary Napolitano (official-capacity), FBI agents Thompson and Sokolowski, and unnamed FBI/CBP agents; the court addresses only the Official-Capacity Defendants for this memorandum and order.
The court relies on factual allegations as true for dismissal posture and holds that the challenges to cross-border questioning raise injury in fact and a plausible official-policy theory, but the alleged burdens on religious exercise and RFRA lack factual support at this stage.
The court concludes that Counts I, II, III, and V are dismissed, Count IV survives, and discovery may be needed to determine the propriety of the challenged conduct at summary judgment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing and justiciability of the claims	Plaintiffs allege an injury in fact from fear of future border questioning.	Plaintiffs lack concrete, imminent injury since they no longer cross (or crossed long ago).	Plaintiffs have standing and claims are justiciable.
Sufficiency of pleading an official policy/custom	Allegations, CRCL memoranda, and complaints show an official policy.	Policy is vague; no concrete document shows policy.	Sufficient pleading of official policy/custom.
Viability of First Amendment and RFRA claims (Counts I, II, III, V)	Questions about religion at entry burden free exercise and establishment; RFRA claimed.	Burden on religious exercise not shown; establishment concerns not proven.	Counts I, II, III, V dismissed; only Fifth Amendment claim survives.
Survival of Fifth Amendment Equal Protection claim (Count IV)	Muslim travelers subjected to discriminatory questioning; suspect class; no rational basis.	No discriminatory policy shown at this stage.	Count IV survives; Fifth Amendment equal protection claim overruled for dismissal.

Key Cases Cited

City of Los Angeles v. Lyons, 463 U.S. 1 (U.S. 1983) (standing for prospective relief must show certainly impending injury (Lyons discussed in context))
Clapper v. Amnesty International USA, 133 S. Ct. 1138 (U.S. 2013) (threatened injury must be certainly impending; speculative future harm not enough)
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (U.S. 2000) (standing can be shown by ongoing or imminent injuries and diminished use of affected area)
Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir. 2007) (border searches; balancing Fourth Amendment entanglement with national security interests)
Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365 (6th Cir. 2011) (pleading policy, practice, or custom against targeted group; plausibility required)