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Anibowei v. Wolf

United States District Court, N.D. Texas, Dallas Division

January 14, 2020

GEORGE ANIBOWEI, Plaintiff,
v.
CHAD WOLF, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER SENIOR JUDGE

         This is an action by plaintiff George Anibowei (“Anibowei”), a United States citizen and licensed attorney who maintains an office in Dallas, challenging three agency directives related to border searches and seizures of his cell phones. Anibowei moves for partial summary judgment, or, alternatively, for a preliminary injunction. The court has considered the briefing, including an amicus brief, and has heard oral argument. Concluding that Anibowei has in part failed to establish that he is entitled to partial summary judgment and that the record otherwise is not yet sufficiently developed for Anibowei to demonstrate that he is entitled to alternative relief in the form of a preliminary injunction, the court denies the motion.

         I

         Anibowei brings this action for vacatur of unlawful agency policies and declaratory and injunctive relief against various federal departments and agencies and individual department and agency heads.[1] He alleges violations of the First and Fourth Amendments and of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A) and (B), stemming from searches and seizures of his cell phones conducted at Dallas-Fort Worth International Airport (“DFW Airport”) when he entered the United States from foreign countries.[2]Anibowei challenges one directive of defendant U.S. Immigration and Customs Enforcement (“ICE”) and two directives of defendant U.S. Customs and Border Protection (“CBP”) that he complains are unconstitutional and violate the APA because they authorize such searches and seizures without probable cause and a search warrant.

         These three directives (collectively, “Directives”) are at issue: The first is ICE Directive No. 7-6.1, Border Searches of Electronic Devices (2009) (“2009 ICE Directive”), promulgated in 2009, which “provides legal guidance and establishes policy and procedures . . . with regard to border search authority to search, detain, seize, retain, and share information contained in electronic devices possessed by individuals at the border.” 2009 ICE Directive at ¶ 1.1. The 2009 ICE directive provides, in pertinent part, that “ICE Special Agents acting under border search authority may search, detain, seize, retain, and share electronic devices, or information contained therein, with or without individualized suspicion, consistent with the guidelines and applicable laws[.]” Id. at ¶ 6.1 (emphasis added).

         The second is CBP Directive No. 3340-049, Border Search of Electronic Devices Containing Information (2009) (“2009 CBP Directive”), also adopted in 2009. The 2009 CBP Directive authorizes CBP officers, in the course of a border search, to examine electronic devices and review and analyze the information encountered at the border “with or without individualized suspicion.” See Id. at ¶ 5.1.2 (“In the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border, subject to the requirements and limitations provided herein and applicable law.” (emphasis added)).

         The third is CBP Directive No. 3340-049A, Border Search of Electronic Devices (2018) (“2018 CBP Directive”), adopted in 2018. The 2018 CBP Directive supersedes CBP CBP Directive No. 3340-049 and authorizes two categories of searches. For the first category, “[w]ith or without suspicion, ” an officer may conduct a “basic search, ” during which the officer may examine an electronic device-including searching the information stored on the device-and may review and analyze information encountered at the border. Id. ¶¶ 5.1.2, 5.1.3. For the second category, an officer may conduct an “advanced search” “[i]n instances in which there is reasonable suspicion of activity in violation of the laws enforced or administered by CBP, or in which there is a national security concern, and with supervisory approval at the Grade 14 level or higher.” Id. ¶ 5.1.4. An “advanced search” is “any search in which an Officer connects external equipment, through a wired or wireless connection, to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents.” Id.

         According to Anibowei's second amended complaint, Anibowei is a naturalized U.S. citizen and licensed attorney who maintains an office in Dallas. Before immigrating to the United States, he lived and practiced law in Nigeria.

         Anibowei is a frequent traveler. He typically travels to Nigeria several times each year to visit family and friends, and is a frequent tourist in Europe, the Caribbean, and other African countries. From 2012 until 2015, Anibowei was a member of the Global Entry Trusted Traveler Program (“Global Entry”) administered by CBP. In 2015, however, CBP revoked Anibowei's membership in the program for the stated reason that he “d[id] not meet the eligibility requirements for the [Global Entry] program.” 2d Am. Compl. ¶ 95. Both before and after Anibowei's Global Entry membership was revoked, he was subjected to extensive secondary screening nearly every time he traveled.

         On October 10, 2016 border agents at the DFW Airport seized Anibowei's cell phone as he was returning to the Dallas area after a short vacation to Canada. Acting without a warrant, and pursuant to the 2009 CBP Directive, the agents searched Anibowei's cell phone and copied the data on it. Anibowei believes that the agents are still in possession of the data they copied from his cell phone. As a result of that search, Anibowei stopped carrying his work phone with him on international trips.

         Anibowei alleges that in the years since the October 2016 search, his personal cell phone has been searched without a warrant at least four more times by officers of the Department of Homeland Security. For example, on February 12, 2017, upon arrival at the DFW Airport following a trip to Nigeria, Anibowei was put into secondary inspection where, inter alia, border agents performed a search of his cell phone in his presence. Anibowei believes that officers viewed his text messages and encrypted messages he sent and received through WhatsApp, and possibly viewed his email.

         Anibowei seeks vacatur of the Directives and declaratory and injunctive relief based on alleged violations of the First and Fourth Amendments and the APA.

         After Anibowei filed the instant motion for partial summary judgment, defendants filed an unopposed motion to stay deadline to respond to Anibowei's second amended complaint. The court granted the motion, and ordered that defendants' response to the second amended complaint is not due until 14 days ...


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