Muslim Americans Appeal to Ninth Circuit Over Illegal Religious Questioning by Border Officers

LOS ANGELES — Three Muslim Americans filed their opening appeal brief in the United States Court of Appeals for the Ninth Circuit, challenging unconstitutional religious questioning by U.S. border officers. On numerous occasions, when the three men have returned home to the U.S. from traveling abroad, border officers have asked them inappropriate religious questions, including whether they are Muslim, whether they attend a mosque, whether they are Sunni or Shi’a, and how often they pray. Officers then input the answers in a law enforcement database, where the person’s private religious information is retained for up to 75 years.

“These types of questions would never be asked of Americans perceived as Christian or Jewish, and it’s clear that the questioning is a product of the Department of Homeland Security’s systemic discrimination against Muslims,” said Sara Robinson, a lawyer with the ACLU’s National Security Project. “Our clients are asking the court to uphold their constitutional rights to be treated equally and to practice their faith without undue government scrutiny.”

Filed in March of 2022, the lawsuit alleges that U.S. border officers’ questioning violates Fifth Amendment protections against unequal treatment on the basis of religion, as well as the First Amendment and the Religious Freedom Restoration Act. The district court correctly concluded that the plaintiffs had plausibly alleged that the government targets Muslims for religious questioning. Nevertheless, the court ultimately granted the government’s motion to dismiss.

This questioning is part of a broader decades-long practice of border officers targeting Muslim American travelers because of their religion. In 2010, for example, the ACLU and other organizations submitted complaints to the Department of Homeland Security (DHS) describing the questioning of Muslim Americans about their religious beliefs and practices at international airports and other border crossings. The DHS Office for Civil Rights and Civil Liberties opened an investigation on the basis of “numerous accounts from American citizens, legal permanent residents, and visitors who are Arab and/or Muslim, alleging that officials from CBP repeatedly question them and other members of their communities about their religious practices or other First Amendment protected activities, in violation of their civil rights or civil liberties.” And as recently as 2020, the same DHS office was investigating new allegations that CBP officers have inappropriately questioned travelers about their religious beliefs and practices.

The American Civil Liberties Union (ACLU), the ACLU of Minnesota, the ACLU Foundation of Southern California, and Cooley LLP represent the plaintiffs in the lawsuit. The defendants being sued are Alejandro Mayorkas, Secretary of the U.S. Department of Homeland Security; Troy Miller, Acting Commissioner of U.S. Customs and Border Protection; Patrick J. Lechleitner, Acting Director of U.S. Immigration and Customs Enforcement; and Katrina W. Berger, Executive Associate Director, Homeland Security Investigations.