For U.S. citizen at border, 'the fear of coming home' - The Buffalo News

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For U.S. citizen at border, 'the fear of coming home'

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 was wearing pants and a button-down. The picture of non-descriptiveness. The thobe was tucked in the trunk.

Akram Shibly and his fiancée Kelly McCormick were about to cross the Lewiston-Queenston Bridge back into the United States. They had done this three days earlier, and it didn’t go well. But McCormick, who is white and Catholic, figured this time would be fine. Shibly wasn’t as certain.

He is Muslim.

For the 15 years since 9/11, Muslims – including those like Shibly, who are U.S. citizens – have complained of long waits and more deeply probing questions by American officials at borders. Though President Trump’s executive orders that constituted what some called a “Muslim ban” have heated up the conversation over how outsiders are treated when coming (or not coming) here, that’s not Shibly. He is not an outsider; he’s a passport-carrying, natural-born American citizen with a clean criminal record.

As a little boy he fancied becoming president, even asked his barber to give him a JFK-styled cut. He was in the third grade when two planes struck the twin towers and reality toppled that dream.

Today he’s an American whose faith, name and life experiences make him feel more likely to get pulled in for secondary questioning at the border. Which is why, with the border approaching, Shibly said to his fiancée, “If they ask for my phone again, I’m not giving it to them.”

* * *

A series of devices in inspection bays at the Lewiston-Queenston Bridge and other Western New York border crossings feed information to customs offices even before the vehicle reaches the booth. (Courtesy U.S. Customs and Border Protection)

The organization responsible for conducting inspections is U.S. Customs and Border Protection, a 60,000-person federal agency that patrols the edges of the country and has the authority to examine anybody, and anything, coming in. That ranges from electronic equipment to unusual-looking bugs on imported fruit. And it can include any person — especially ones they deem worthy of deeper questioning.

It's a job with "a heavy burden," said one officer. The sheer notion of making a mistake by letting a bad guy slip through can be haunting.

“The person who wishes to cause harm to our country or our communities only has to get in once,” said Aaron Bowker, public affairs officer for CBP’s Buffalo Field Office, “but to keep the country safe from that person, our officers have to be right every time.”

Technology helps: At the border crossings in the Buffalo-Niagara region, a device instantly reads the chip embedded in every passport, enhanced license or Nexus card in a car, feeding names and other information to a computer before the vehicle even reaches the inspection booth. Other devices capture license plate information, take a photo of the passengers, and scan the car for radioactivity. If all the technology works smoothly, the officer in the booth has this information before you put your car in park. Sometimes, the computer in the booth commands a secondary inspection. But usually it's based on the officer’s judgment, which is driven by experience, training and instinct.

During inspections, U.S. Customs and Border Protection officers are aided by technology, but much of the job is driven by making quick judgements. (Courtesy U.S. Customs and Border Protection)

Steven MacMartin, who spent 31 years working for the Department of Homeland Security and the former U.S. Customs Service, offers a hypothetical: You’re in a booth, charged with protecting the border of the United States, and you have three cars with distinctly different sets of passengers. One is a group of elderly women coming from a bingo game. Another is members of a youth hockey team that was playing a game in Canada. The third car has two men who are Muslim.

“What they’re thinking is, ‘I have to do my job,’ ” said MacMartin, who now runs the Homeland Security program at Medaille College. (He was unfamiliar with the Shibly situation until The News described it for him.) “Which of those three cars should I search more?”

And though the officer in this example has the authority to follow his instinct, he also realizes his every move can be scrutinized.

“The law enforcement officer in that situation … is already at a disadvantage because he can’t go into his job full speed ahead,” MacMartin said. “He’s already thinking, ‘I could get in trouble here.’ And that’s a shame.”

Hassan Shibly, Akram’s older brother and a civil rights attorney, sees the shame differently. “Before I see this as Muslims getting targeted,” he said, “I see it as Americans getting targeted.”

There’s shame, there’s blame, but above all, there’s complication. Border inspections are imperfect. Border inspections are human.

* * *

At midday on Jan. 1 Shibly was coming home from Toronto. His fiancée McCormick was with him. They were heading to the Shibly family’s home in Williamsville, where they were planning to meet with Akram’s siblings to go skiing. First, though, they had to pass through the Canadian-U.S. border.

At the inspection booth, Shibly handed over his U.S. passport. The officer asked him to pop the trunk. The trunk was loaded with camera equipment, but that was easily explained: Shibly is a filmmaker. He has a company, True Intent Productions, and been away for 10 days in Toronto, shooting footage at the Reviving the Islamic Spirit convention.

But then they were asked to exit the car.

Inside the inspection building, Shibly and McCormick were handed forms that asked for their family history, email and social media information, and cellphone passwords. He handed in his forms, but left the password question blank.

Soon he was called forward to talk to an inspector who starts asking him about his travels. He recalled the questioning like this:

Why did you go to Lebanon?

Oh my grandpa lives in Lebanon. I was going to see family.

Why did you go to Jordan?

Oh, we went to do some humanitarian work.

Why did you go to Saudi Arabia?

I went to do my Umrah – my religious pilgrimage.

“I gave her (the agent) the truth,” said Shibly, who as a child visited his family’s home country, Syria, nearly every summer until about six years ago, when violence made it too dangerous. “It was just interesting to me, the way she felt so suspicious about me traveling.”

Shibly was asked about his films (along with corporate work, he makes short videos and mini-documentaries to combat Islamaphobia) and his social media. He was again asked for the password to unlock his cellphone. He refused to give it.

[CAIR complaint]

“Do you have something to hide?” the agent reportedly said, according to a letter of complaint later written by Shibly’s brother Hassan, the attorney. “If not, then unlock your phone.”

Shibly relented, unlocked the phone, and handed it over. After what seemed like an hour, Shibly and McCormick got their devices back and were told they were free to go.

“I was literally singled out and targeted, I believe, because of my name, because of who I was coming into this country,” he said. “Apparently it’s not just me. It’s a trend.”

At home, Akram finally met up with his brother, Hassan, 30, who is the executive director of the Florida chapter of Council for American Islam Relations. In the car, on the way to skiing, Hassan – with his brother and McCormick in the background – shot and uploaded a Facebook video that quickly gained thousands of views. It served as a warning to the Muslim American community: Customs officials can, and will, search your electronics. They’ll ask about your social media, your political beliefs, even your religious beliefs.

“You know how it is,” Hassan said into the camera.

* * *

Hassan Shibly and then-CBP Commissioner R. Gil Kerlikowske, who is sitting next to him, took part in a Florida forum on relations between the CBP and Muslim community. (Photo courtesy of Hassan Shibly)

This is a battle Hassan Shibly has been fighting since his freshman year of college at the University at Buffalo. That’s when, like his younger brother, he was detained with his family coming back from the 2004 Reviving the Islamic Spirit convention in Toronto.

“That night we pull up to the primary inspection booth and they tell my mom and I to go in for a random inspection,” Hassan Shibly said. “My mom was like, ‘What do you mean, random?’ I joked, ‘Mom, "random" means they saw your headscarf.' But I didn’t think that would be the case. I was joking.”

Border authorities' broad authority: Inside the court cases

Hassan, his mother, Sawsan Tabbaa, an orthodontist, and his two younger siblings – including Akram, then 11 – entered the secondary inspection building. Several other Muslim families – Shibly remembers it as a few dozen – were inside. Tabbaa and Hassan Shibly were held for four hours. They were patted down, fingerprinted, photographed, and questioned about the 13,000-person conference where, legal proceedings later revealed, the U.S. government had reason to believe some people with terrorist ties may have been in attendance.

Later, Tabbaa and Hassan Shibly were part of a lawsuit against the government, Tabbaa v. Chertoff (as in then-Secretary of Homeland Security Michael Chertoff). They contended that their constitutional rights were violated. They lost the initial case and an appeal; in fact, the CBP provided copies of the case to The News as an example of the courts upholding the government’s broad search authority at the border.

The case motivated Hassan Shibly to become a civil rights attorney. From his position as the head of CAIR in Florida, he has become a national figure in the American Muslim rights movement. He works late into the night sending emails, writing letters, filing complaints, posting on social media and giving interviews. He runs forums, delivers speeches and looks for opportunities far outside Florida to push his cause. A recent example: When the son of the late boxer Muhammad Ali and his ex-wife were questioned about their Muslim religion by Homeland Security officials, Shibly worked with Ali’s lawyer and political types to set up a forum in Washington, D.C.

When Hassan Shibly gives lectures, he sometimes asks how many people in the room have been stopped for secondary inspection. “Every time,” he said, “at least half the people raise their hand.”

But when he asks how often those people file complaints, the number is minuscule. He estimates it at 1 percent.

“People are too scared,” he said. “They came back home and forget about it, whatever. People aren’t filing the complaints they should be.”

* * *

On Jan. 4, 2017, three days after Akram Shibly’s detention at the border, his anger was just starting to ease. He and McCormick headed back to Canada. They dined at a Middle Eastern restaurant in Mississauga, and attended a lecture by a noted Islamic scholar. Shibly wore his traditional Muslim thobe for the lecture, but afterward tucked it in the trunk. He thought blue khakis and a button-down would attract less attention at the border. During the drive back to the U.S., McCormick was relaxed and playful, singing karaoke and using her hairbrush as a microphone. Shibly was quiet.

It was minutes before midnight when they pulled into the inspection booth. The officer took their passports and sent them inside. This time, in the middle of the night, Shibly and McCormick recalled the building being mostly empty, save for the officers on duty. One of those officers told the couple where to sit. Shibly pulled out his phone and texted his brother Hassan, who was now back in Florida, at 11:45 p.m.:

Akram: Well here we go again… I’m in the room.

Hassan: Which border? Lewiston?

Akram: Yes.

Hassan: Let them know your brother knows the CBP commissioner and has already reached out to the headquarters. Do not answer questions.

Akram: Copy. They haven’t summoned me yet.

Hassan wrapped the conversation by telling his brother he had called and spoken with a supervisor. “Keep me posted,” he told Akram.

During that conversation, one of the officers ordered Shibly to put his phone away. From where Shibly sat, several signs prohibiting the use of phones were visible. He told the officer he had to finish texting his family, then put the phone in the right front pocket of his pants.

The officers huddled. One of them asked Shibly to hand over the phone. Shibly refused. With McCormick watching, three of the officers approached Shibly – he says they “charged” – and removed the phone. One of the officers grabbed his neck from behind; a second grabbed his legs; and the third removed the phone from his right pocket.

Shibly was livid. “I’m an American citizen,” he recalls saying. “You’re violating my civil rights.”

He also recalls asking, “If I was not Muslim, would I be treated this way?”

About five minutes after his phone was taken, Shibly recalls being sent into a back room with another officer — not one of the three who took his phone. This officer told Shibly they knew who he was and had seen his brother’s video. The officer also told Shibly a report would be filed because physical force was used.

Meanwhile, out in the waiting area, McCormick was sitting alone, staring at a TV. An officer asked if she wanted a glass of water while she waited. McCormick declined.

“That’s called being white for you,” she said later, recounting the story with Shibly. “I’m offered a glass of water while you’re getting tackled.”

After the conversation in back, Shibly was told his car would be searched and he would then be able to leave. The search happened quickly, and in the wee hours of Jan. 5, Shibly and McCormick were heading home. He recorded a second video and posted it to Facebook.

“These incidents,” he said, “have put the fear of coming home in me.”

CBP's notification form for inspection of electronic devices:

When asked by The News for CBP’s response, Bowker responded in an email that the agency is aware of the allegations, which are under investigation, and declined to discuss specifics. He noted that Hassan Shibly threatened litigation.

“This is not the first time Hassan has tried to challenge CBP’s border search authority,” Bowker said, and then referenced the Tabbaa v. Chertoff case decisions, noting that federal courts found CBP’s actions, “including (Hassan Shibly’s) detention for a few hours, a pat-down search, fingerprinting, and photographing, were lawful border searches and part of the routine border inspection process. These two decisions remain controlling law in our area.”

Hassan Shibly would like to change that. When that case was filed, he was a college student. Now – and in large part, because of it – he's a lawyer.

“If this type of case were to be brought now, I think we’d have a much different and a better outcome, quite frankly,” he said, adding that in the current climate, one much further removed from 9/11, “I think courts would look at this a little more rigorously.”

Asked if he’s developing such a case right now, or hoping one may emerge, he texted this response: “They are in the works.”

* * *

R. Gil Kerlikowske, who was Buffalo's police commissioner in the 1990s, served as commissioner of U.S. Customs and Border Protection from 2014 to January 2017 under President Barack Obama.

 

The most frequent recipient of Hassan Shibly’s complaints is the CBP commissioner, who leads the agency’s 60,000 employees. For the past three years, until Trump’s inauguration on Jan. 20, that was R. Gil Kerlikowske, an Obama appointee who also happened to be Buffalo’s police commissioner in the 1990s. (Kerlikowske, who retired and is now a fellow at Harvard University, has been replaced by Acting Commissioner Kevin K. McAleenan.)

“We tried pretty hard to have an open dialogue,” said Kerlikowske, who came to know Hassan Shibly when the commissioner took part in a Florida forum on CBP-Muslim relations.

That dialogue may air the problems, which are emotionally charged on both sides, but it doesn’t solve them easily – if at all. For example, Hassan Shibly has complained about questions posed to Muslims Americans such as, “Are you a devout Muslim?” and “Are you Sunni or Shia?”

Kerlikowske acknowledged that in his view, CBP officers shouldn’t be asking questions about a person’s religion. “That would be the last thing that they should be doing,” he said.

Wiping away that practice, however, is difficult. Kerlikowske points out that most Americans may not even know somebody who is Muslim. That includes “a lot of people at Customs and Border Protection.” The lack of wide understanding complicates an already difficult problem.

“They work an eight-hour or 10-hour day, sometimes six days a week, they go back home, they’ve got their family, they’ve got lots of things,” Kerlikowske said. “How knowledgeable are they of that faith?”

* * *

After his recent experiences at the border, Akram Shibly's mother told him, "It runs in the family. Welcome." (Mark Mulville/The Buffalo News file photo)

As Akram Shibly’s story began to get attention, the very notion that CBP can – and will ­– search cellphones triggered public discussion. Multiple media outlets, including NBC Nightly News, reported stories about cellphone searches. The government’s ability to search electronics isn’t new, but CBP’s willingness to exercise that authority is becoming more noticed.

“The thing we tell people is, you don’t exactly have rights at the border,” said John A. Curr III, director of the Western Regional Office of the New York Civil Liberties Union. “Can they request it (your phone)? Yes. You can say no. If you do say no, you can find out like Mr. Shibly did that if they believe they have the authority to do so, they’ll seize it.”

In the days that followed his second detention at the border, Akram Shibly submitted civil rights complaints to the Department of Homeland Security and filed complaints and Freedom of Information Act requests with the CBP. (He’s seeking a written report on the second detention.)

“I worry about our future,” Shibly said, sitting with McCormick in the living room of his family home in Williamsville. “I worry about my kids. If I want to bring up Muslim kids here, this is just the beginning of Trump’s legacy. What’s going to happen in the next four years that could potentially affect their well-being in the future? It’s seriously shaken up my view.”

“Mine as well,” McCormick said. “My parents, obviously, they love Akram and they’ve really gotten to know a lot about his faith as well. But they really want to believe that this country is a great place. And it is. It totally is. But they don’t want to believe that things like this are happening.”

Sometimes, McCormick said, she’ll rant to her mother, who struggles with it.

“My mom is like, ‘I just can’t keep listening to this. You’re making me depressed,’ ” McCormick said. “I’m like, ‘Mom, but this is happening. And this is happening to him!’ ”

Shibly’s parents were upset, too – “my mother was distraught,” he said – but not surprised.

"It runs in the family," his mother told him. "Welcome."

Below is a copy of attorney Hassan Shibly's letter of complaint sent to U.S. Customs and Border Protection on behalf of his brother Akram. The recipients of the letter, other than then-CBP Commissioner R. Gil Kerlikowske, have been redacted at Hassan Shibly's request. The News has redacted the names of the officers mentioned in the complaint, which is still under investigation. 

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