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This Family Just Reminded CBP We Don’t Lose Our Rights at the Border

A U.S. Customs and Border Protection checking the identification of someone seated in a car.
A new settlement reminds CBP that we have rights at the border, and this the agency can be held accountable for violating those rights.
A U.S. Customs and Border Protection checking the identification of someone seated in a car.
Hugh Handeyside,
Former Senior Staff Attorney,
ACLU National Security Project
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May 22, 2020

U.S. Customs and Border Protection has a long track record of mistreating travelers — citizens and noncitizens alike — in the name of national security. It has subjected U.S. citizens to dehumanizing searches and detentions for no good reason, harassed and interrogated journalists, searched tens of thousands of travelers’ smartphones and laptops, and used nakedly discriminatory criteria to target travelers of Iranian, Lebanese, and Palestinian heritage — then lied about doing so. And that’s just the tip of the iceberg.

The thread running through all these abuses is CBP’s apparent belief that the border is some sort of magical bubble in which the Constitution does not apply, and where travelers are simply at CBP’s mercy.

That’s flat wrong. A recent settlement our clients obtained in their lawsuit against CBP reinforces not only that we have rights at the border, but also that CBP must be held accountable for violating those rights.

Our clients’ story is a disturbing one. Abdisalam Wilwal, Sagal Abdigani, and their four young children, all U.S. citizens, were returning home to the Minneapolis area from a visit to Canada when they arrived at the border station in Portal, North Dakota. Shortly after they handed over their passports and birth certificates, CBP officers swarmed the family’s minivan with guns drawn, forced Abdisalam out of the car, and handcuffed him. The officers held Abdisalam captive in the station for approximately 10 hours — handcuffed the entire time. At one point, he passed out from lack of food or water, requiring medical attention.

The officers held the rest of the family for the same period, prompting Sagal to use her son’s phone to try to call 911 and report that she and her family were being detained against their will at the border. Officers took the phone, searched it, and retained information from it, including information about the son’s Muslim faith.

The entire family was terrified, bewildered, and humiliated.

Hours into the detention, two agents with ICE’s Homeland Security Investigations (HSI) arrived at the station and interrogated Abdisalam using a standard questionnaire before directing the CBP officers to release the family.

Internal government records show that the officers treated the family this way not because there was any reason to believe that the family was violating the law or bringing in contraband. Indeed, the government admits they were not. They were treated this way because Abdisalam’s name appeared on an error-prone terrorism-related watchlist. He doesn’t know why he was watchlisted, and the government refused to tell him, despite his right to due process.

We filed suit on the family’s behalf, arguing that the government violated the family’s constitutional rights and seeking to prevent their rights from being violated again.

The government sought to dismiss our clients’ lawsuit, arguing as it has in other cases that the officers’ unlawful conduct was excusable because it happened at the border. The court rejected that argument and allowed the case to proceed.

Our clients have now reached a settlement with CBP that will help prevent such abuses from happening again. Under the settlement:

  • CBP will circulate a notice to officers assigned to land-border ports of entry in North Dakota and Minnesota reviewing what happened in our clients’ case and reiterating policies and rights regarding the use of force, personal searches, and detention procedures.
  • HSI will organize a training for agents and officers in Minnesota and North Dakota that similarly addresses this case and reiterates the rights of travelers against unreasonable searches and seizures, as well as due process rights.
  • HSI will issue a notice to all agents and officers in Minnesota and North Dakota reminding them to immediately review and remain in compliance with ICE’s directive on border searches of digital devices. (We are separately challenging that directive as unconstitutional.)
  • CBP will confirm that the notation in Abdisalam’s record that prompted the family’s detention is no longer accessible to front-line CBP officers and will not cause anyone in the family to be subjected to heightened scrutiny — called “secondary inspection” — at the border in the future.
  • CBP will ensure that the records describing the family’s detention will not serve as a basis for future referrals to secondary inspection.
  • CBP will confirm that the records documenting the family’s detention are not routinely accessible on CBP systems and that CBP is aware of no reason why any of the family members would experience problems returning home from abroad in the future.
  • The government will pay the family damages for the harms they suffered.

The settlement makes clear that what happened to the family was wrong and that the government cannot treat the border as a rights-free zone. It also exposes the human toll of the federal government’s bloated and secretive watchlisting system — a due-process disaster. As with other post-9/11 policies and programs, that toll has been paid disproportionately and tragically by Muslims and people of Arab, Middle Eastern, African, and South Asian descent.  

Much remains to be done to ensure that the border isn’t a place where we’re forced to surrender our rights and dignity on spurious national security grounds. Our clients’ settlement moves us farther down the path to achieving that goal.

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