It all depends on how you look at it.

Monday, February 21st, 2011
By: Jonathan MontagJ.D.

Sometimes when a court issues a decision, its rendition of the facts helps reinforce the decision it makes. What the court stresses and the order it presents the facts suggests the conclusions that will follow. Often, you can tell the outcome of a case just by reading the court’s statement of the facts. A different court will choose and arrange the facts a different way and come to a different conclusion. A new case out of the Ninth Circuit published on February 16, 2011, Abufayad v. Holder is a good example. Read the facts of the case as the court presents them and you have the following:

1. Abufayad was born in Saudi Arabia, lived in Gaza from age 6 to 19, went to attend university in the West Bank and, later, Egypt.

2. His father and five siblings are U.S. residents or permanent residents. Abufayad obtained an IR-2 immigrant visa to move from Egypt to move from Egypt to the United States with his father’s sponsorship in January of 2007.

3. When he came to the United States in February 2007, he had a confrontational attitude. He was arrested. When they checked his laptop the officers found “anti-American” and “jihadist” documentation including the writings of Skeikh Yassin, Hamas’s founder, whose religious teachings Abufayad respected, but not his political teachings.

4. There were hacking programs and stolen credit card numbers on Abufayad’s computer.

5. Abufayad was interviewed and said contradictory things about the material on the computer.

6. He was interviewed and disclosed that the main imam at his local mosque was Younis al-Astal who became a member of the Hamas government.

7. He has two cousins in Hamas, one who conducted a suicide attack in Gaza during the second Intifada in 2001.

8. Abufayad shared an apartment with Hamas sympathizers when he studied at Bir Zeit University in the West Bank. He was approached to join Hamas at least twice.

9. A terrorist expert from the FBI, Robert Miranda, testified that because of Abufayad’s computer science degree and green card he was a desirable recruitment target and it was reasonable to believe that Abufayad was likely to engage in terrorist activity in the United States.

10. Mr. Miranda’s hometown is a Hamas stronghold.

Based on these facts, the Ninth Circuit Court of Appeals upheld a Board of Immigration Appeals decision from December 23, 2008, in which the BIA concluded that Abufayad was inadmissible for being “likely to engage in terrorist activity after entering the United States.” He was ordered removed.

Many facts are missing from the narrative. I will try to fill in the interstices with what seems like logical factual suppositions. If I have something wrong, someone who knows more facts, please tell me.

Tareq Abufayad’s father and five younger brothers and sister’s were able to come to the United States after years of waiting for a visa to become available. Tareq reached age 21 and thus could not be with his family. He had to wait for a visa in a new category to become current before he could come to the United States, thus causing a multi-year separation from his family. A bright and enterprising fellow, Tareq was able to obtain a degree in computers through attendance at Bir Zeit University in the West Bank and then a university in Cairo. Though he did receive a degree, its value is not all that clear as the high tech computer science education opportunities at Bir Zeit and in Cairo are not quite cutting edge. Nonetheless, this attainment was no small accomplishment as it was only with great difficulty, perseverance, and expense could a Palestinian from Gaza cross to the West Bank as the Israeli occupation of the West Bank and Gaza makes direct travel impossible.

Further, pursuing an education at Bir Zeit was not easy what with the constant interruptions in his study due to closures of the university by Israeli military forces, Palestinian authorities, and the students themselves. His educational opportunities improved when he was given permission by Israeli occupation forces to study in Egypt, though his studies were punctuated by the indignities he endured by Israeli authorities whenever he sought to travel to or from Egypt and by Egyptian authorities when he studied in Egypt. At least he had some confidence that when a visa would become available to reunite with his father and little brothers and sisters, the fact that Egyptian security had been monitoring him for the years he studied there – the security apparatus in Egypt was quite pervasive – and Israeli security authorities considered him someone safe to travel within the occupied territories and abroad – and he has had plenty of occasions to “meet with” Israeli and Egyptian security officials – meant that the United States would let him in.

The long, frustrating, costly, and humiliating delay he faced in Cairo before the United States Consulate would issue him a permanent residence visa – administrative processing while the United States security machine cleared him – in consultation, most likely, with their Israeli, Egyptian, and possibly Palestinian Authority security counterparts – at least meant that once he left Egypt for the United States his ordeal would be over.

His expectations of an easy entry into the United States were dashed when he came to San Francisco International Airport when once again he was arrested and interrogated by virtue of being a stateless Palestinian. Unlike the humiliations he suffered in Palestine, by the Israelis, and in Egypt because he is Palestinian, the humiliations the Americans imposed on him were amplified by the fact that he stayed detained from the time he was first arrested at San Francisco International Airport in February 2007 until now – four years. Even now, as the two Palestinian entities, the West Bank and Gaza, have no control over admissions into their countries, it is up to Israel to decide if he can go “home” to Palestine. Should Israel decide that his right to reside in occupied Palestine has expired, he will remain detained in the United States for six months more and then released. Thus, his four year detention will have been for nothing if in fact as a stateless person he cannot be deported and smuest be set free – unless the President wants to send him to Cuba. The humiliations suffered under occupation and while in Egypt will continue in the United States with a burdensome regimen of supervision by Immigration and Customs Enforcement (ICE) until the day he can be deported somewhere.

When arrested at San Francisco International Airport, Tareq’s frustration at being interrogated once again because he was a Palestinian manifested itself in an irritation U.S. officials characterized  as “confrontational,” though it was he who was being confronted. Who could he, a stateless applicant for admission, confront? You’d think he would be used to interrogations and accusations at borders by now and take it in stride, but apparently he was not sanguine with the continuation of the same dehumanizing treatment.

Nonetheless Tareq was forthcoming during his interrogations and throughout his ordeal in immigration court, where he was ultimately sent. In fact the immigration judge, who is supposed to make adverse credibility findings, did not find Tareq to be a liar. Rather he was so forthcoming that it is the things he volunteered that caused him a lot of his troubles.

Several days after his initial arrest, Tareq was interrogated by an ICE special agent. He was asked about the contents of his laptop – none of which was illegal. He was found to have anti-American and jihadist material in his laptop. At first he did not recall having any. He probably should have known that a person’s internet surfing history remains on his computer’s memory even after it fades from ones own. With his knowledge of computers, one would think if he knew he had “bad stuff” on his computer he would have erased it. When he was confronted with material on his computer, he explained that he downloaded material relating to current events in his homeland and forgot about it. Some of it he did not even look at. Probably lacking 24 hour a day internet access, it was logical to download material instead of just reading it online. Lots of people, after all, download questionable material from time to time to satisfy personal curiosities and forget about it until the embarrassing moment when someone finds it. Tareq was obviously an internet user with no guilty conscience.

The interrogation of Tareq was not limited to items on his hard drive. He was also interrogated about his associations with Hamas. Hamas controls his homeland. Hamas won an election there after the United States pressured the Palestinian Authority to hold it. In Gaza, Hamas is not a small, secret organization. It runs the place. Tareq told interrogators that two of his many cousins were members. The imam of his local mosque was a member. A leading spiritual authority in Gaza was a founding member. This spiritual authority, a nearly blind paraplegic, was killed by an Israeli helicopter-launched rocket in 2004. Support for him was not isolated – 200,000 people went to his funeral. The current President of Israel condemned the assassination.

Tareq told interrogators that his other association with Hamas was that when he went to Bir Zeit University, he was assigned to a dorm with four other students. They were sympathetic to Hamas. No one ever said they were Hamas members or operatives. No one said they comprised a “Hamas cell.” No one charged or even accused Tareq with being part of a Hamas cell. In any case, he apparently did not enjoy his roommates’ company because he transferred out of the room after two or three months.

There was one fact disclosed in the case that is indeed troubling – the case facts state that Tareq had hacking software and stolen credit card numbers in his computer. No where in the case does anyone make anything of this – this true smoking gun. Tareq was not charged with a crime for possessing stolen credit card numbers or possessing with intent to use hacking software. If I was a law enforcement official, I would think that a criminal prosecution would have been in order if Tareq was indeed in possession of this material. A conviction would have led to an indisputable ground of inadmissibility – possessing stolen property and conspiracy to steal other’s property are morally turpitudinous crimes which could bar admission to the United States.

The court of appeals explained that it is constrained in cases like this. It cannot reverse the BIA unless the evidence compels it. The court also pointed out that Tareq has the burden of proof to prove his admissibility “clearly and beyond a doubt” after the government presents reasonable, substantial, and probative evidence of his inadmissibility. The court then refers to the evidence as “some evidence.” The court concluded that this “some evidence” was reasonable, substantial, and probative enough that it is not compelled to reverse the BIA.

The case highlights the great power of immigration authorities to prevent non-citizens from entering the United States without interference from the courts. On one hand, one can understand. Why take a chance of a guy with a bunch of offensive crap on his laptop who comes from a bad part of town in a place not friendly to us who had some questionable roommates and two bad cousins? If there is a one percent chance he is a bad guy, why take it? On the other hand, I would like to think before you would force a person to remain separated forever from his father and brothers and sisters, you would have something more than a bunch of offensive (but not illegal) crap on a laptop, and suspicion because of coming from a bad part of town in a place not friendly to the United States, having had some questionable roommates for a couple of months, and two bad cousins.

Read the case and let me know what you think?  Posted February 21, 2011.



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