Youths Take On Homeland Security

Asmaa Elshinawy was on a holiday break road trip with her friends. The 20-year-old Brooklynite, a born-and-raised American citizen whose parents come from Egypt, decided to take a trip to Toronto to be part of a conference called Reviving the Islamic Spirit, held in December 2004. “I went with six girlfriends, and we rented a car from Jersey,” Asmaa, who works as an assistant at an early childhood center and wants to get a degree in speech therapy, says. They had a great time at the conference, and met countless new people.

At about 11:30 a.m. on the day they were slated to leave, Asmaa and her group got in their rental car in Toronto. At about 3 p.m., they reached the border between Canada and New York State. They didn’t leave the checkpoint until almost 9 pm -- with a new understanding, says Asmaa, of how the government views Muslims in America.

What happened to Asmaa, her friends, and dozens of other attendees of the conference at the border checkpoint is the subject of the lawsuit that she and four other co-plaintiffs are bringing against the national Department of Homeland Security. Border regulations, explains Udi Ofer, staff attorney at the NYCLU (New York Civil Liberties Union), allow agents to ask questions, look inside your car, ask you for your passport, and do a patdown. The search that the Buffalo group underwent “wasn’t routine because of how intrusive it was,” says Ofer. “We want to know what triggered that unusual behavior.”

The case doesn’t have a direct precedent, Ofer says. “This case combines several constitutional issues in one question. There is past law addressing when the government can punish you basically for engaging in religious expression. It’s clear that the government cannot do so unless it has a compelling interest that’s narrowly tailored.”

“And the second issue is watching what the government can do to a US citizen at the border,” Ofer continues. Under the Fourth Amendment, the government has authority to verify your citizenship and ask questions about what you were doing overseas. But to target people based solely on religious expression overseas? Your First Amendment rights should extend to that area.”

Unusual among lawsuits, this case doesn’t seek monetary damages. Rather, the plaintiffs want reassurance that people who leave the country to attend religious conferences, as they did, will not be detained on their return and treated, as Ofer says, “like criminals.”

Asmaa says that the official who came up to their car at the border asked where they were coming from. They said that they had been at an Islamic conference, and told him that they were all American citizens. The officer asked them to pull over into the customs building.

“I thought they were going to check our car for crops or something,” Asmaa remembers. “I thought I’d give them the benefit of the doubt, that this was a random search. But when I got into the building, I saw tens and twenties of Muslims -- women in hijabs, people who said As-Salaam-Alaikum to us. I thought, ‘This can’t be all of these Muslims’ lucky day.”

Asmaa and her friends, having waited for about two and a half hours, were clearly concerned about what was happening to them. Their confusion was compounded when they saw a couple of non-citizens who wanted to go shopping in Buffalo cross the border in about fifteen minutes flat. They asked one of the customs officials when it would be their turn. “Ma’am, this is not McDonald’s,” Asmaa remembers the official saying.

Hassan Shibley, 18, another plaintiff in the case who was at the checkpoint with his mother --also a plaintiff -- and two younger siblings, including a 3-year-old sister, had a similarly ominous experience with a rude customs official. One of his friends asked how long the wait would be, pointing out that some people had been there for four hours already. An official replied “Maybe we’ll keep you here for eight hours.” “I knew at that point that this was going to be an ordeal,” Hassan says. “My baby sister was crying, and there was an old couple with two baby kids in their laps. There was a young pregnant lady who was pretty sick. The bathrooms were outside, so if you had to go you went out in the freezing cold.”