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Border authorities' broad authority: Inside the court cases

By Tim O'Shei, For Buffalo News, On 10 April 2017, Read Original
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Akram Shibly’s recent frustration with United States border authorities is not a new battle for his family.

His father, Dr. Othman Shibly, who was recently named by The Buffalo News as one of Western New York’s Outstanding Citizens for performing dental work in his war-torn home country of Syria, has faced border questioning for years.

Dr. Othman Shibly, a dental professor at the University at Buffalo, in the school’s dental clinic on the South Campus Thursday, March 2, 2017. (Mark Mulville/Buffalo News)



But as the family knows, U.S. Border and Customs Protection has broad authority to question anyone – American or not, Muslim or not – crossing into the United States.

This point has been reinforced by their own losses in court.

In December 2004, Hassan Shibly – then a freshman at the University at Buffalo – and Tabbaa were among a group of Muslims detained at the Lewiston-Queenston Bridge when returning from the Reviving the Islamic Spirit convention in Toronto. They were detained for up to six hours. During that time they were questioned, fingerprinted, photographed and searched by pat-down. They didn’t realize this at the time, but CBP was operating under a directive to examine anyone at the border who had attended the RIS convention.

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She was blasting the car stereo, singing Ariana Grande. He was gripping the steering wheel, navigating the darkness on the southeastern end of the QEW. He was not in a singing mood on this chilly January night. Hours ago, at a lecture near Toronto with an Islamic scholar, he had been wearing a traditional, flowing Muslim thobe. Now, though, he … Continue readingFor U.S. citizen at border, ‘the fear of coming home’

Five of the people detained filed suit against the U.S. government in a case known as Tabbaa v. Chertoff (as in then-Secretary of Homeland Security Michael Chertoff). They contended that border authorities violated their First and Fourth Amendment rights – respectively, freedom of speech and expression, and protection from unreasonable search. They also cited violation of laws that protect religious freedom and balance the power of governmental agencies.

Tabbaa, Shibly and the other plaintiffs were interested in returning to the annual RIS convention and sought an injunction that would prevent the government from searching them again in the same way as they did the previous year.

They lost.

In this December 2005 decision – one year after the incident – a federal judge rejected the plaintiff’s claims and found in favor of the government.

U.S. District Judge William Skretny’s decision, and the appeals court ruling that later upheld it, reinforced the authority of Border and Customs Protection to conduct searches.

These court documents, which are public record, were sent to The News by a BCP spokesman as a way of illustrating Homeland Security's broad search authority at the border.

"These two decisions remain controlling law in our area," said Aaron Bowker, public affairs officer in BCP's Buffalo Field Office.

But Hassan Shibly also pointed to the decisions – particularly the appeal – to reinforce his contention that the government is "targeting people simply based on their religion." He and his fellow plaintiffs lost, but Shibly sees signs of encouragement embedded in the decision – and he hopes to take another shot in court.

"I think we'd have a much stronger case moving forward," he said, "bringing that kind of case up right now."

Here are some takeaways from each decision:

U.S. District Court

• Secondary inspections may happen based on information that is unbeknownst to the person being searched. In this case, Tabbaa, Shibly and many more Muslim Americans were searched “in response to specific intelligence information (the government) received that persons with known terrorist ties would be attending religious conferences in Toronto, including the one that Plaintiffs attended” (see page 1).

Which is not to say the people being searched had terrorist ties. Quite the opposite.

“There is no information whatsoever to suggest, and the government does not contend, that Plaintiffs are anything other than law-abiding American citizens,” Skretny wrote on page 8.

• Inconvenience is not illegal. “By all accounts, what happened to Plaintiffs at the border last year was unfortunate and understandably frustrating,” Skretny wrote on page 2. “Plaintiffs were delayed for an extended period of time and subjected to unexplained inspection techniques that were inconvenient and made them feel uncomfortable.”

The government admits this, said Skretny, who called the incident “unfortunate” but “not unconstitutional.”

The judge went on to essentially say this: The border is the government’s front line in the ongoing battle to protect the country. And at the border, the government has more power.

“It is well settled that the government’s interest in securing the nation against the entry of unwanted persons and things reaches its pinnacle at the border,” he said. “It is for this reason that the government’s authority to conduct routine searches and seizures at international crossings has long been recognized as plenary.”

• The government’s search authority at the border is broad. Skretny reinforced this point throughout his decision. To the plaintiffs’ argument that border authorities violated their First Amendment rights by questioning why they attended the RIS convention and what they did there, he wrote: “In the context of a person seeking entry to the United States, particularly in light of the government’s intelligence information in this case, these types of questions are perfectly reasonable investigatory inquiries tailored to determine whether Plaintiffs posed any risk to the United States” (page 22).

He also disagreed with the plaintiffs’ contention that they were “caught up in an unconstitutional ‘guilt-by-association dragnet.” On page 28, he acknowledges three cases cited by the plaintiffs – one from the 1930s; two from the 1960s –  in which courts knocked down the government’s efforts to punish people for supporting the Communist Party.

Skretny said there was no connection between those cases and this one. During the post-RIS convention searches, he wrote, “the government’s action was taken to prevent terrorists from entering this country, not to punish Plaintiffs for being Muslim or associating themselves with other Muslims at the RIS conference.”

Then he made what he called “the major distinction:” Those Communism-related cases didn’t happen at a border.

This one did.

“It is an inescapable truth,” Skretny wrote, “that the government enjoys plenary authority at the international border.”

U.S. Court of Appeals

The Second Circuit Court of Appeals upheld Skretny’s ruling.

“Our conclusion in this regard is informed, in part, by our belief that some measure of deference is owed to CBP due to its considered expertise in carrying out its mission of protecting the border,” the decision reads. (See page 28.)

But Hassan Shibly – then a college student, but now thinking as a lawyer and outspoken activist against what he considers to be BCP overreach – finds many of the passages in the decision to be encouraging. He provided The News with several examples; here are two:

• The appeals court acknowledged that Shibly, his family and the other Muslims involved rightfully felt stigmatized: “…Plaintiffs were gathered into a separate building along with several other Muslims who had attended the RIS Conference – and all of these attendees were subject to a form of border processing normally reserved for suspected terrorists. As a result, it is not unreasonable for plaintiffs to have felt there was a stigma attached to the searches” (page 14).

• A "routine" search is open to interpretation: The appeals court pointed out, as did Skretny in the original ruling, that “a suspicionless search at the border is permissible under the Fourth Amendment so long as it is considered to be ‘routine’ ” (page 13).

A nonroutine search, which legally requires suspicion, includes body cavity searches, strip searches, and involuntary X-rays. The plaintiffs were not subjected to these types of searches. But the court also acknowledged that the searches and inspections that did take place – fingerprinting, pat-downs and so on – while still considered routine, “were near the outer limits of what is permissible absent reasonable suspicion” (page 16).

"The judge made clear that they were at the outer limits of what's permissible," Hassan Shibly said. "They were almost falling into the impermissible, which is great, because it did set a limit."

Shibly's hope is to file another case that will challenge the results of Tabbaa v. Chertoff.

"I think there was a lot of deference to the idea back then ... that the government was not wrongfully targeting people simply based on their religion," he said. "I think now, the political rhetoric and the actions of the last decade have made it clear that's exactly what's happening. I think courts would look at this a little bit more rigorously."


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