Case: 20-10059 Document: 00516791350 Page: 1 Date Filed: 06/19/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED June 19, 2023 No. 20-10059 ____________ Lyle W. Cayce Clerk George Anibowei, Plaintiff—Appellant, versus Mark A. Morgan, Acting Commissioner of U.S. Customs and Border Protection, in his official capacity; Merrick Garland, U.S. Attorney General; Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security; Tae D. Johnson, Acting Director, U.S. Immigration and Customs Enforcement; David Pekoske, in his official capacity as Administrator of the Transportation Security Administration; United States Department of Homeland Security; United States Customs and Border Protection; United States Immigration and Customs Enforcement; Transportation Security Administration, Defendants—Appellees. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 3:16-CV-3495 ______________________________ Before Richman, Chief Judge, and King and Engelhardt, Circuit Judges. Priscilla Richman, Chief Judge: Case: 20-10059 Document: 00516791350 Page: 2 Date Filed: 06/19/2023 No. 20-10059 George Anibowei alleges that government agents searched his cell phone at the border without a warrant on at least five occasions, and that agents copied data from his cell phone at least once. Anibowei sued the U.S. Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), the Transportation Security Administration (TSA), and the respective heads of each entity in their official capacity (collectively, the government), challenging the searches, as well as ICE and CBP policies regarding border searches of electronic devices. In the district court, Anibowei filed a motion seeking, among other relief, a preliminary injunction preventing the government from searching his cell phone at the border without a warrant. The district court denied the preliminary injunction. Because Anibowei failed to demonstrate a substantial threat he will suffer irreparable injury if the injunction is not granted, we affirm. I George Anibowei is a naturalized citizen of the United States and an attorney in Texas. As an attorney, Anibowei primarily represents immigrants in removal proceedings adverse to DHS. In October 2016, Anibowei was traveling back to the United States from abroad. Upon landing in Dallas, ICE agents, along with DHS investigators, searched Anibowei’s cell phone and copied data from the phone. The agents did not have a warrant for the search. Anibowei believes that the government continues to retain his data. In the years following the incident, Anibowei alleges that border agents searched his cell phone without a warrant at least four additional times. During these searches, Anibowei witnessed border agents view his text messages and other communications, and claims that it is possible agents viewed his email. Anibowei does not explicitly assert that border agents copied data from his cell phone during the additional four searches. 2 Case: 20-10059 Document: 00516791350 Page: 3 Date Filed: 06/19/2023 No. 20-10059 However, he claims that it is “virtually certain that [border agents] viewed and copied privileged communications between Mr. Anibowei and his clients” at least once. Anibowei first brought suit against the government defendants in 2016. Acting pro …
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