A Libyan-born comic who was granted political asylum in the United States last year was pulled off a Greyhound bus and interrogated by Border Patrol agents who accused him of faking his identification over the weekend.
Mohanad Elshieky said he was headed home to Oregon from Spokane when the agents boarded the bus and started asking for ID and proof of citizenship from the passengers. Though at first he assumed they were Greyhound employees making sure everyone aboard had paid their fare, they quickly got him off the bus and “interrogated me for around 20 minutes then claimed my papers were fake and that I’m ‘illegal,’” the comedian tweeted Sunday.
Even after someone at their office confirmed Elshieky’s legal status by phone, he said the agents continued to accuse him of fakery. At one point, he said, one of them angrily demanded he take his hands out of his pockets as though convinced the comic posed a violent threat. When they finally let him back on the bus, he said, the agents warned him to start carrying the full original copy of the letter formally granting his asylum claim – something he isn’t required to do by law.
The since-viral story of an asylee with documents in hand being interrogated and falsely accused is emblematic of a widespread and legally dubious use of power by Customs and Border Protection’s armed law enforcement branch.
At 92 miles south of the U.S.-Canada border, Spokane sits just inside the 100-mile zone in which immigration officials exert special, constitutionally questionable authority. That wide swathe, home to roughly two-thirds of the total U.S. population, was established by regulatory fiat in 1953 without public comment. It’s been challenged repeatedly in court and questioned sternly by judges, but remains in effect because Congress hasn’t yet heeded calls to affirmatively shrink it in legislation.
For the 200 million people living in the zone, and anyone else passing through, the Fourth Amendment’s protections aren’t as sturdy as elsewhere. The legal standard justifying a detention or search by CBP agents inside that zone is lower than the Bill of Rights envisaged. Agents have allegedly claimed the authority to detain and interrogate people inside the zone simply because they were speaking Spanish to each other.
The zone is also home to a long-running and wide-ranging dispute between civil libertarians and immigration enforcement hardliners. Greyhound buses have become a flashpoint in that sparring, thanks to numerous news stories about the company’s customers being arrested by immigration authorities. Other mass transit operators have been targeted, too, but the name-brand bus operator has become the public face of the issue.
The ‘50s regulations give CBP a chapter-and-verse basis on which to pursue aggressive, constitutionally questionable enforcement practices deep within the interior of the U.S. Different administrations have applied the special powers conferred for “extended border searches” in the zone in quite different ways, of course. But the agency had used trains and buses as a sort of pseudo-checkpoint system for years, until the Obama administration wound down the practice in 2011.
The ACLU has urged Greyhound to exercise its right to refuse CBP agents access to their buses for warrantless searches such as these, based in substantial part on stories like Elshieky’s where agents appear to have abused their authority.
In response, the company has tried to walk a delicate line. Its October 2018 policy statement on the matter simultaneously expresses disapproval of CBP practices aboard its buses but refuses to force confrontations with the agency.
Greyhound decided that following the ACLU’s legal advice would “put our drivers’ safety or the safety of our passengers at risk” — an oblique phrase that can be interpreted as suggesting either that CBP agents’ ability to question passengers makes people safer, or that a CBP agent rebuffed by a bus driver might react in ways that endanger people. The company has been sued by customers over its non-interventionist stance toward the sweeps, and has published civil rights advisories for customers both on its website and in station placards. Greyhound did not respond to efforts to clarify its rationale for the cooperation policy.
Spokane in particular has become a hotbed of controversy over CBP’s scrutiny of bus passengers. The City Council there passed an ordinance barring federal law enforcement from private city-owned property such as the bus depot where Elshieky was detained. The mayor said it’s unenforceable. One local paper described the CBP’s twice-daily visits to the bus depot as routine, reporting separately that 200 people had been at least temporarily detained at the city bus depot since 2013.
Depending on the exact nature of the agency’s approach to the Spokane depot, either perspective might prove correct. CBP is allowed to operate checkpoints anywhere within the 100-mile zone without giving a reason, but agents who make targeted traffic stops and vehicle searches on an ad-hoc basis must — at least in theory — have a “reasonable suspicion” that an immigration crime is being committed. If CBP is asking every passenger on every bus that passes through the Spokane depot for proof they are legal residents or citizens, that’s a checkpoint. If they’re boarding some buses but letting others go, and targeting some passengers but ignoring others, they would need to have some specific justification – not as much as the Fourth Amendment is supposed to require within the U.S. interior, but more than none.
While a true checkpoint policy would be on sturdier legal ground, CBP practices aboard Greyhound buses as reported in some cases could be more vulnerable in court. In an email, a CBP spokesperson said the ID Elshieky’s lawyer had told him would be sufficient doesn’t meet the agency’s requirements and cited the statute and regulations underlying Border Patrol’s operations. But the spokesperson did not respond to questions about what had given officers a “reasonable suspicion” that Elshieky was breaking the law, or contradict Elshieky’s story in any detail.
Though the courtroom definition of “reasonable suspicion” is intended to require more than just an officer’s hunch to legitimate an interrogation, Elshieky’s story and others like it suggest CBP agents may be cutting some corners. And agency training materials published earlier this year by The Intercept seem designed to equip officers with tools for translating their hunches into legalese. Agents are trained that they can base a reasonable suspicion on people in a car who “avoid looking at the agent” but also on passengers “paying undue attention to the agent’s presence,” for example.