Tabbaa v. Chertoff
| Decision Date | 26 November 2007 |
| Docket Number | Docket No. 06-0119-cv. |
| Citation | 509 F.3d 89 |
| Parties | Sawsaan TABBAA, Hassan Shibly, Asmaa Elshinawy, Karema Atassi, Galeb Rizek, Plaintiff-Appellants, v. Michael CHERTOFF, Secretary of the United States Department of Homeland Security, Robert C. Bonner, Commissioner of the United States Customs and Border Protection, Michael D'Ambrosio, United States Customs and Border Protection, Joseph J. Wilson, Buffalo Port Director for the United States Customs and Border Protection, Defendant-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
D.C.; Terrance P. Flynn, United States Attorney, Western District of New York, Buffalo, N.Y.; Douglas N. Letter, Appellate Litigation Counsel, U.S. Department of Justice, Washington, D.C., on the brief), Washington, D.C., for Defendants-Appellees.
Before: STRAUB, POOLER, and B.D. PARKER, Circuit Judges.
In December 2004, officials at the U.S. Bureau of Customs and Border Protection ("CBP") received intelligence that gave them reason to believe that persons with known terrorist ties would be attending certain Islamic conferences to be held during the year-end holiday season of 2004, including the Reviving the Islamic Spirit Conference at the Skydome in Toronto, Canada. Based on that intelligence, CBP instituted a special inspection operation pursuant to which all individuals who attended these conferences and sought entry into the United States were subject to the kind of screening procedure normally reserved for suspected terrorists. As a result of this policy, plaintiffs — five U.S. citizens and practicing Muslims with no criminal records and of whom the government had no individualized suspicion of being associated with terrorism — were, upon returning from the Skydome conference into the United States, detained by CBP officials for several hours, questioned, patted-down, fingerprinted, and photographed.
Plaintiffs contend that these actions violated the Administrative Procedure Act, the Religious Freedom Restoration Act, their First Amendment rights of association and free expression, and their Fourth Amendment right to be free from unreasonable searches. They initially sought a preliminary injunction preventing the government from instituting a similar policy the following year, as well as expungement of all data received by the government as a result of the searches. The District Court denied this relief and instead granted summary judgment in favor of defendants. Tabbaa v. Chertoff, No. 05-CV-582, 2005 WL 3531828 (W.D.N.Y. Dec. 22, 2005). On appeal, plaintiffs no longer demand a preliminary injunction, but they continue to seek expungement, and on that basis ask us to reverse the District Court's grant of summary judgment to defendants.
We affirm the District Court's judgment because (a) CBP had statutory authority for its actions and thus did not violate the Administrative Procedure Act; (b) the searches, which took place at the border, where the government has plenary authority to control entry into the United States, were not so invasive of plaintiffs' privacy as to violate the Fourth Amendment; and, (c) given the intelligence CBP received, the inspection policy was narrowly tailored to achieve the compelling governmental interest in preventing potential terrorists from entering the United States, and thus did not violate the First Amendment or the Religious Freedom Restoration Act.
Because this is an appeal from the District Court's grant of summary judgment for defendants, the following factual recitation resolves all ambiguities and draws all inferences in plaintiffs' favor. McClellan v. Smith, 439 F.3d 137, 144 (2d Cir.2006).
After the passage of the Homeland Security Act of 2002, the agencies principally responsible for policing the U.S. border — the Customs Service, the Border Patrol, and the inspection division of the Immigration and Naturalization Service — were for the first time brought under a single umbrella: the newly-created Department of Homeland Security. See Pub.L. No. 107-296 §§ 101, 402, 403, 441, 116 Stat. 2135 (2002) (codified at 6 U.S.C. §§ 111, 202, 203, 251); Reorganization Plan for the Department of Homeland Security, H. Doc. 108-16 (2002) ("Reorganization Plan"), reprinted in 6 U.S.C.A. § 542 (2007), at 8, 16. Part of the "primary mission" of the Department of Homeland Security is to "prevent terrorist attacks within the United States" and "reduce the vulnerability of the United States to terrorism." 6 U.S.C. § 111(b)(1). After being consolidated within the Department of Homeland Security, the border agencies, which were renamed the U.S. Bureau of Customs and Border Protection, continued to be responsible for enforcing U.S. immigration laws, administering U.S. customs laws, and "[s]ecuring the borders," but were also given a new principal responsibility: "[p]reventing the entry of terrorists and the instruments of terrorism into the United States." 6 U.S.C. § 202; Reorganization Plan at 16; Reorganization Plan Modification for the Department of Homeland Security, H. Doc. 108-32 (2003) ("Modification Plan") at 4, reprinted in 6 U.S.C.A. § 542 (2007).
In December 2004, CBP received intelligence information that raised "specific concerns about certain national and international conferences," including the Reviving the Islamic Spirit Conference ("RIS Conference") that was being held from December 24 through December 26, 2004 at the Skydome in Toronto, Canada. Specifically, CBP had "reason to believe 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 provide financial support to terrorists, would be in attendance at the 2004 RIS conference." CBP also had reason to believe that the 2004 RIS Conference "would serve as a possible meeting point for terrorists" to "coordinate operations, and raise funds intended for terrorist activities," as well as "exchange ideas and documents," including "travel or identification documents such as passports or driver's licenses."1
Based on this intelligence, in late December 2004, CBP prepared an Intelligence Driven Special Operation ("IDSO"), which directed CBP officials at various ports of entry, including the one in Buffalo, where plaintiffs entered the United States, to undertake special enforcement actions. The IDSO instructed the officials to: (a) identify and examine all persons associated with any of the Islamic conferences at issue who sought entry into the United States, (b) contact CBP's National Targeting Center upon encountering conference participants "in order to determine whether individuals seeking to enter the United States posed a particular threat," and (c) question conference attendees about their activities during their trip and examine their documentation and persons and vehicles for "evidence of terrorist-related activities, such as plans, money, or even weapons." The IDSO also permitted, but did not require, border officials to fingerprint and photograph conference attendees. The purpose of these measures — which were designed to process travelers who are suspected terrorists — was to "confirm each individual's identity and verify that they were not on any watch list of suspected terrorists, or seeking to use the conference as a cover for crossing the U.S. border, or otherwise involved in illegal activity, or carrying any illegal weapons, documents, monetary instruments, or any other prohibited items across the border." Attendance at one of the Islamic conferences at issue was the sole factor that triggered the enhanced processing.
Plaintiffs — Sawsaan Tabbaa, Hassan Shibly, Asmaa Elshinawy, Karema Atassi, and Galeb Rizek — are U.S. citizens who were among an estimated 13,000 individuals from across North America who attended the RIS Conference. The conference, which lasted three days, included religious and cultural activities, musical performances, a series of prominent Islamic speakers, and communal prayer three times a day. Plaintiffs viewed participation in the conference as an act of religious observance and as a way to learn more about their religion. Tabbaa and Atassi viewed their participation as a "hajj," or pilgrimage; Tabbaa considered attendance to be part of her religious obligations.
Following the conference, plaintiffs reached the U.S. border at various times on December 26 and 27, 2004. Plaintiffs had no criminal records, and at no time did CBP have reasonable suspicion that any particular plaintiff had committed a crime or was associated with terrorists. Yet each experienced similar treatment. Plaintiffs were initially asked where they had been in Canada, and after responding that they had attended an Islamic conference at the Skydome, they were ordered to pull their cars into a separate area and enter a nearby building, where they saw several other people who appeared to be Muslims who also had attended the RIS Conference.
Inside this secondary inspection area, plaintiffs were directed to fill out several forms, and then were questioned about, inter alia, their past travels, their...
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