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Tabbaa v. Chertoff

December 21, 2005

SAWSAAN TABBAA, HASSAN SHIBLY, ASMAA ELSHINAWY, KAREMA ATASSI AND GALEB RIZEK, PLAINTIFFS,
v.
MICHAEL CHERTOFF, SECRETARY OF THE UNITED STATES DEP'T OF HOMELAND SECURITY, ROBERT C. BONNER, COMM'R OF THE UNITED STATES CUSTOMS AND BORDER PROTECTION, MICHAEL D'AMBROSIO, UNITED STATES CUSTOMS AND BORDER PROTECTION AND JOSEPH J. WILSON, BUFFALO PORT DIRECTOR FOR THE UNITED STATES CUSTOMS AND BORDER PROTECTION, DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Almost one year ago, the government detained the five Muslim-American plaintiffs at the international border as they returned from attending an Islamic religious conference in Toronto, Canada. Plaintiffs were subjected to a special inspection operation, pursuant to which they were detained for several hours, questioned, patted-down, fingerprinted and photographed. The government implemented these investigatory measures in response to specific intelligence information it received that persons with known terrorist ties would be attending religious conferences in Toronto, including the one that Plaintiffs attended.

Plaintiffs challenge the government's actions as violative of the First and Fourth Amendments, as well as taken in contravention of the Religious Freedom Restoration Act ("RFRA") and the Administrative Procedure Act ("APA"). Because Plaintiffs wish to attend this year's conference without incident, they have moved for a preliminary injunction to bar the government from inspecting them upon their return in the same way it did last year. The government opposes Plaintiffs' request for injunctive relief and moves for summary judgment in its own favor.*fn1

I have carefully considered the parties' arguments and the applicable law. By all accounts, what happened to Plaintiffs at the border last year was unfortunate and understandably frustrating. 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 readily admits that Plaintiffs' experience at the border was not ideal, and the record bears out that it has taken steps to remedy the more aggravating aspects of the stop for future inspections.

As unfortunate as this incident may have been, I find that it was not unconstitutional. 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. 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. Having closely examined the facts and circumstances of this case, I find that the government conducted routine border searches, and that its actions were entirely consistent with the First and Fourth Amendments, as well as with the RFRA and the APA. Accordingly, Plaintiffs' motions will be denied and Defendants' motion will be granted.

II. BACKGROUND

A. Facts

1. Plaintiffs and the 2004 Reviving Islamic Spirit Conference

Each of the five Plaintiffs is Muslim and an American citizen. (Plaintiffs' Statement of Disputed Material Facts ("Plaintiffs' Statement"), ¶ 1.) They attended the 2004 Reviving Islamic Spirit ("RIS") conference at the Skydome in Toronto, Canada, in December 2004. (Plaintiffs' Statement, ¶ 1.) The RIS conference is billed as an annual gathering organized by Canadian youth to educate Muslims about their religion with an emphasis on the Islamic traditions of education, tolerance and introspection. (Ofer Decl., Exhibit 1.) The conference drew approximately 13,000 attendees from across North America. (Ofer Decl., Exhibit 2.)

Plaintiffs attended the 2004 RIS conference to learn more about their faith, participate in religious and cultural activities and to meet other Muslims. (Atassi Decl., ¶¶ 3-7; Elshinawy Decl., ¶¶ 3-7, Rizek Decl., ¶¶ 3-5, Shibly Decl., ¶¶ 3-7; Tabbaa Decl., ¶¶ 3-6.) Plaintiffs participated in various religious activities during the conference, including communal prayers three times a day. (Atassi Decl., ¶ 6; Elshinawy Decl., ¶ 6, Rizek Decl., ¶ 4, Shibly Decl., ¶ 6; Tabbaa Decl., ¶ 6.) Two of the plaintiffs view their participation in the annual RIS conference as their "Hajj" or pilgrimage. (Atassi Decl., ¶ 6; Tabbaa Decl., ¶ 3.)

2. U.S. Customs and Border Protection and RIS Conference Intelligence

United States Customs and Border Protection ("CBP") is the nation's unified border agency falling under the umbrella of the Department of Homeland Security ("DHS").

(Defendants' Statement of Undisputed Material Facts ("Defendants' Statement"), ¶ 3.) As part of the government reorganization that created the DHS, CBP was formed by consolidating all governmental inspection and patrol personnel with responsibilities for securing the nation's borders at more than 300 ports of entry. (Defendants' Statement, ¶ 4.)

Since the attacks of September 11, 2001, CBP's priority mission has been to prevent terrorists and terrorist weapons from entering this country. (Defendants' Statement, ¶ 5.) To carry out this mission, all persons seeking entry to the United States are subject to detention and search by CBP officers. (Defendants' Statement, ¶ 6.) CBP may, as a matter of standard operating procedure, refer individuals at any time for a detailed border examination, known as "secondary inspection." (Defendants' Statement, ¶ 7.) Such examinations involve more specific questioning of the traveler's activities outside of the United States, and a more detailed review of their documents, luggage and effects. (Defendants' Statement, ¶ 8.) These inspections are conducted to ensure compliance with customs and immigration requirements and to ensure that no harm is posed by the individual's entry into the United States. (Defendants' Statement, ¶ 8.) Secondary inspections may involve the collection of biometric information, including fingerprints and photographs of the individual as CBP deems necessary to verify their identity, to ensure that they may lawfully enter the United States, and to determine if they are otherwise involved in unlawful activities. (Jacksta Decl., ¶ 4.)

When appropriate, CBP undertakes particular, focused enforcement operations to address specific threats or potential risks to the United States. (Defendants' Statement, ¶ 10.) In December of 2004, CBP had specific concerns about certain national and international conferences, including the RIS conference that Plaintiffs attended. (Defendants' Statement, ¶ 11.) Specifically, CBP had reason to believe that these conferences would serve as meeting points for terrorists to exchange ideas and documents, coordinate operations, and raise funds intended for terrorist activities. (Defendants' Statement, ¶ 12.) In particular, CBP believed that certain individuals who were associated with terrorist organizations or activities and might pose a danger to the United States, or who were associated with organizations that provided financial support to terrorists, would be in attendance at the RIS conference.*fn2 (Defendants' Statement, ¶ 13; Jacksta Decl., ¶ 5; Jacksta Dep., 151:22-152:10; 178:20-181:19; 222:3-5.)

In response to this intelligence information, CBP prepared an Intelligence Driven Special Operation ("IDSO"). (Defendants' Statement, ¶ 14.) An IDSO is a directive to particular ports of entry to undertake special enforcement actions to meet specific concerns raised by intelligence information. (Defendants' Statement, ¶ 15.) Under the IDSO in this case, the Buffalo port of entry, among others, was instructed to identify and examine persons associated with the RIS conference or other similar conferences taking place in Toronto who sought entry to the United States. (Defendants' Statement, ¶ 16; Plaintiffs' Statement, ¶ 16.) The Buffalo port was directed to contact the National Targeting Center ("NTC") of CBP if persons identified in the IDSO were encountered in order to determine whether the individuals posed a particular threat. (Defendants' Statement, ¶ 17.)

Pursuant to the IDSO, those individuals who were identified as having attended the conference were processed pursuant to the Anti-terrorism Passenger Validation ("APV") protocol and sent to secondary inspection for questioning about their activities during their trip. (Defendants' Statement, ¶ 18; Plaintiffs' Statement, ¶ 22.) They also underwent further examination of their documents and were examined for evidence of terrorist-related activities such as plans, money or weapons. (Defendants' Statement, ¶ 18.) This inspection included search of vehicles, and in some ports, including the port of Buffalo, fingerprinting and photographing. (Defendants' Statement, ¶ 19.) These measures were employed to confirm each individual's identity and verify that they were not on any watch list of suspected terrorists or attempting to use the conference as cover to cross the border. (Defendants' Statement, ¶ 20.) CBP also sought to determine whether these individuals were carrying any illegal weapons, documents, monetary instruments, or any other prohibited items across the border, or were otherwise involved in illegal activity. (Defendants' Statement, ¶ 20.)

3. The Border Stops at Issue

Plaintiffs left the RIS conference and returned to the United States at various times on December 26 and 27, 2004.*fn3 Although Plaintiffs arrived at the Lewiston-Queenston international bridge at different times, they each experienced similar treatment when they presented themselves for admission to this country.

When Plaintiffs entered the primary inspection lane, the border officer in the booth requested their travel identification and inquired about their visit to Canada. (Atassi Decl., ¶ 9; Elshinawy Decl., ¶ 9; Rizek Decl., ¶ 6; Shibly Decl., ¶ 9; Tabbaa Decl., ¶ 9.) When the border officer determined that Plaintiffs had attended the RIS conference at the Skydome, he or she directed Plaintiffs to drive their vehicles to a nearby building for secondary inspection. (Atassi Decl., ¶ 9; Elshinawy Decl., ¶ 9; Rizek Decl., ¶ 7; Shibly Decl., ¶ 9; Tabbaa Decl., ¶ 9.)

When Plaintiffs entered the building, they encountered other attendees from the RIS conference who had also been referred for secondary inspection. (Atassi Decl., ¶ 10; Elshinawy Decl., ¶ 10; Rizek Decl., ¶ 8; Shibly Decl., ¶ 10; Tabbaa Decl., ¶¶ 12, 13.) Plaintiffs were directed to fill out forms and were questioned about their trip to Canada and the RIS conference. (Atassi Decl., ¶ 13; Elshinawy Decl., ¶ 13; Rizek Decl., ¶¶ 13, 16; Shibly Decl., ¶¶ 17, 22.)

Plaintiffs were thereafter summoned to another room where they were digitally fingerprinted and photographed. (Atassi Decl., ¶ 14; Elshinawy Decl., ¶ 17; Rizek Decl., ¶ 19; Shibly Decl., ¶ 20.) Border officers performed pat-downs on Plaintiffs prior to taking their fingerprints and photographs. (Atassi Decl., ¶ 14; Elshinawy Decl., ¶¶ 16-17; Rizek Decl., ¶ 18; Shibly Decl., ¶ 19.) Plaintiffs did not want to be fingerprinted and were not told why they were being fingerprinted and photographed. (Atassi Decl., ¶¶ 14; Elshinawy Decl., ¶ 17; Rizek Decl., ¶¶ 11, 14, 21; Shibly Decl., ¶¶ 20, 21; Tabbaa Decl., ¶¶ 19, 20, 21.)

After Plaintiffs were questioned, fingerprinted and photographed, they were released. (Atassi Decl., ¶ 16; Elshinawy Decl., ¶ 18; Rizek Decl., ¶ 21 Shibly Decl., ¶ 25; Tabbaa Decl., ¶ 26.) Plaintiff Atassi's inspection took five hours; Plaintiff Elshinawy's inspection took six hours; Plaintiff Rizek's inspection took between five and six hours; Plaintiffs Shibly and Tabbaa's inspections took four hours. (Atassi Decl., ¶¶ 8, 16; Elshinawy Decl., ¶¶ 8, 18; Rizek Decl., ¶¶ 6, 21; Shibly Decl., ¶¶ 8, 25; Tabbaa Decl., ¶¶ 8, 26.) Border officers did not explain to Plaintiffs why they had been detained and inspected so thoroughly. (Atassi Decl., ¶ 16; Rizek Decl., ¶ 21; Shibly Decl., ¶ 21; Tabbaa Decl., ¶ 26.)

There is no information whatsoever to suggest, and the government does not contend, that Plaintiffs are anything other than law-abiding American citizens. Each Plaintiff wishes to attend the 2005 RIS conference, but fears being subjected to similar inspection procedures as last year.*fn4 (Atassi Decl., ¶ 18; Elshinawy Decl., ¶ 20; Rizek Decl., ¶ 23; Shibly Decl., ¶ 27; Tabbaa Decl., ¶ 27.) They are also concerned that the government will use the information it collected during the investigation to target them for future border stops. (Atassi Decl., ¶ 19; Elshinawy Decl., ¶ 21; Rizek Decl., ¶ 24; Shibly Decl., ¶ 28; Tabbaa Decl., ¶ 29.)

B. Procedural History

Plaintiffs filed their initial Complaint in this action in the United States District Court for the Eastern District of New York on April 20, 2005. Plaintiffs filed an Amended Complaint in that district on July 20, 2005.

On August 12, 2005, this case was transferred here, to the United States District Court for the Western District of New York. On October 12, 2005, the parties agreed to a discovery and briefing schedule on their anticipated motions, all with an eye toward completing briefing and argument in time for this Court to render a decision prior to the start of the 2005 RIS conference on December 23, 2005.

On November 28, 2005, Plaintiffs filed a Motion for Preliminary Injunction.*fn5 On the same date, Defendants filed a Motion for Summary Judgment.*fn6 On December 12, 2005, Plaintiffs filed a Motion to Dismiss Defendants' Motion for Summary Judgment pursuant to Rule 56(f).*fn7 This Court heard oral argument on these three motions on December 15, 2005, and reserved decision at that time.

III. DISCUSSION

A. Procedural Legal Standards ...


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