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Stateless in the Age of Islamophobia

The strange saga of Tareq Abufayyad’s foiled attempt to join his family of US citizens in California reveals how real people’s lives can be ruined by aggressive pre-emptive prosecution, Islamaphobic profiling, and incoherent immigration policies.

Twenty-eight-year-old Tareq Abufayyad was greeted by high-ranking American and Egyptian diplomats when he stepped off a private plane that had landed in Cairo’s international airport, just after sunset on June 27, 2011. Tareq had spent the last four and half years – the years that might have been the heady time of his young adulthood – languishing in California county jails, although he was never convicted of a crime.

“I thought, freedom. I need freedom; I need fresh air and sun. Just give me my freedom,” Tareq recollected in an intervew with Truthout via Skype from his home in Gaza in September, 2012.

Wearing the same clothes he had on when he had traveled to the United States for the first time in 2007 – blue jeans, a dark yellow jacket and collared shirt – Tareq waited in the Cairo airport through the night, waited for the sun to rise and the buses to begin operating. He, along with other travelers, would take a 10-hour bus trip from Cairo to Gaza’s Rafah crossing, opened only weeks earlier by the then-new interim Egyptian government, put in place following the fall of President Hosni Mubarak.

After arriving in Gaza, a place he had not been for nearly 10 years, Tareq would soon discover that he would not be allowed to leave the blockaded coastal enclave.

Back in 2007, all of the members of Tareq’s family were US citizens of California, and he had been on his way to join them after finishing college. Tareq had been excited to reunite with his family, and, equipped with a US entry permit granted prior to his departure from Cairo, he anticipated no problems entering the States, where he intended to continue his schooling and work on his English.

That is not what happened

Tareq Abufayyad is one of countless Muslim immigrants or Muslim Americans prosecuted by a justice system steeped in the executive authority’s “War on Terror” and the culture of counter-terrorism. His case is an example of what many see as America’s Islamophobic policies of preemptive prosecution and deportation, under which men are convicted of a crime before a crime has even been conceived of. But his is also the story of a stateless being – for whom it did not matter what he did or didn’t do, as he stayed in prison ultimately because there was simply no place to which he could be deported.

In early 2007, Tareq Abufayyad was 24 years old and preparing to leave his flat in Cairo. A Palestinian born in Saudi Arabia and raised in Gaza, he had been living in the Egyptian capital since 2001, earning a degree in computer engineering. Tareq would be the last of five siblings to join their father, Issa, in the United States.

Issa had immigrated to the United States in 1991, established a limousine company at San Francisco International Airport (SFO) and bought a house in the nearby town of San Mateo, which lies 20 minutes south of San Francisco. Naturalized as a US citizen in 1992, Issa invited his children to the United States after each one completed a baccalaureate degree in the Middle East. And each time one of his children made the pilgrimage, Issa would pick them up at SFO without a problem – driving to the airport was his business and a quick and easy trip from home.

But with Tareq it was different.

“I was waiting for Tareq for six or seven hours, and I started worrying,” said Issa, sitting under his gazebo in his front yard. A grape vine climbs the wooden structure; pink, red and yellow roses and fruit trees of all kinds surround it, evoking the luscious gardens of Palestine.

“Then two people came up to me and said, ‘You’re the father of Tareq.’

And I said, ‘Yes I am, how did you know?’

‘We know; we’ve been watching you from the monitor.’ “

The two men were from the FBI, and they assured Issa that Tareq would be “fine,” but would have to appear before an immigration judge a few days later.

Meanwhile, officers from Homeland Security’s Customs and Border Protection (CBP) and the San Francisco Joint Terrorism Task Force were interrogating Tareq in a backroom at the airport, threatening him with two options: be deported back to Cairo or face an immigration judge.

Running into Trouble

A few hours earlier, after Tareq had passed easily through SFO immigration control and was on his way to pick up his luggage, a CBP officer conducting a routine post-9/11 “passenger analysis” approached Tareq.

Tareq recalled that the agent seemed suspicious of him, “He was angry. It was like he was waiting for me to do something.”

Later, in court, that officer would describe Tareq as having been “confrontational” and that was why he took him aside to search his belongings.

On Tareq’s computer the agents at the airport found a library of images, videos, documents and programs on his hard drive. A computer science major who lived in a country with slow internet, Tareq said that he would frequently download material from the internet for later viewing, often without knowing what it was.

The officers sifted through each file and folder, selecting the troubling documents and discarding the others, as they pieced together a profile of Tareq.

By the end of this process, Tareq had been made to appear “sympathetic” to Hamas. Or worse – an agent of Hamas. It was unclear. The only facts they had were these: Tareq was from Gaza, a stronghold of Hamas, and he was a young male with videos of clerics denouncing the US invasions of Iraq and Afghanistan; photoshopped images of the “destruction” of Israel; and the writings of Sheikh Yassin, the founding cleric of Hamas.

Tareq’s English was weak, and the officers’ Arabic nonexistent; he strained to communicate with the FBI officials through an inept translator.

“There was a lot of misunderstanding, but I could tell what everyone was thinking: ‘Go back to your country. You are a big terrorist. Go back to your country,’ ” Tareq said in the interview.

Go back to your country – a simple directive in most cases – would be an impossible one for Tareq to obey. Even after he would spend two and a half years in a US jail, after which he begged and appealed to the Department of Justice to deport him, he would still not be able to Go back to his country. His country, his land, was not his to return to. The Gaza Strip had been locked up by Israel and Egypt and labeled a breeding ground for Hamas “terrorists” by both Israel and the United States.

As soon as the United States drew up allegations that Tareq had ties to Hamas, Israel refused to grant Tareq a transit visa to return to Gaza through the Erez Crossing. Tareq would not be able to return to Gaza until someone other than Israel controlled its entrances. It would take a popular uprising in Egypt to even begin to puncture holes in the otherwise sealed-off Rafah crossing.

But as Tareq sat in the small interrogation room at SFO, and his father returned home without his youngest son, neither could imagine the ordeal that lay ahead.

Court Proceedings

Love Macione, the immigration attorney who represented Tareq from the start of his troubles, initially expected his case to be a “piece of cake.”

“Everything they found on his computer was something that I could watch right now,” Macione said, while sitting in her San Jose office.

Macione said the state had no evidence that Tareq had ever engaged in terrorist activity. Rather, officials were alleging that he fit the profile of someone who could become a Hamas terrorist.

“Even the judge thought it was ridiculous at first,” she said, recalling that the judge initially likened the state’s case against Tareq to the film Minority Report, in which future behavior is predicted and prevented.

In 2007, when Tareq appeared before that immigration judge in San Francisco, the practice of convicting Muslims for potential crimes was already an established “counter-terrorism” tactic, one that had been aggressively pursued after the 2001 World Trade Center bombings but, according to civil liberties lawyer Steve Downs, is traceable as far back as the 1993 case against Omar Abdel Rahman. Also known as “The Blind Sheikh,” Rahman was convicted of conspiracy to bomb several New York City landmarks.

Furthermore, unbeknownst to Attorney Macione, the judge or the Abufayyad family, 2007 was the same year the NYPD published the now-infamous “Radicalization in the West: The Homegrown Threat,” a rare articulation of the government’s logic of profiling and prosecuting Muslims. The theory goes like this: There are four steps to becoming a terrorist: 1) pre-radicalization 2) self-identification 3) indoctrination 4) jihadization. In other words, as Downs puts it, the government functions under the assumption that all Muslims are essentially predisposed to committing acts of terrorism.

In a phone interview, Downs, executive director of the National Coalition to Protect Civil Freedoms, said that the government seeks to preemptively prosecute or deport individuals aligned with certain ideologies. Although this policy is one that is primarily surmised by assessing the number of baseless cases brought against Muslims (as in the case of Tareq), there have been revelations from the government that confirm the practice is in place.

For example, in Downs’ report “Victims of America’s Dirty Wars,” he cites one such instance that took place after the state successfully entrapped and then prosecuted Yassin Aref, who was charged with intending to take part in a terrorist plot, dubbed “The Albany Missile Plot,” with Mohammed Hossain. According to Downs, at a post-sentencing press conference in 2007, a journalist asked one of the state prosecutors if Aref was really a terrorist, to which the prosecutor replied, “We had no evidence of that, but he had the ideology.”

Reviewing a decade of Muslim persecution in American courts, a 2011 study conducted by New York University Law School’s Center for Human Rights and Global Justice notes that violent videos and radical religious speeches – the kind of material found on Tareq’s hard drive – are sufficient evidence to prove a case of “radicalization.”

Furthermore, in Tareq’s case in court, the Department of Homeland Security was allowed to harp on a few shekels Tareq had thrown into a collection tin at his mosque in Khan Younes when he was 15 years old. What amounted to a few dollars was deemed conclusive evidence, according to court documents (Board of Immigration Appeals, Case Number 1:10-cv-00070-DLB), that Tareq had provided material support to a “terrorist” group, Hamas, listed as such by the US Treasury in 1997.

The monetary contribution, in addition to the files found on his computer, led the DHS to argue, “The respondent [Tareq] has a general propensity for global jihad as evidenced by his meticulously and purposefully organized virtual library of jihadist materials.”

Macione, an immigration attorney who described herself as a bit “green” at the time, knew that the state’s evidence was flimsy, believed its accusations to be unsubstantiated and trusted that the truth would carry her case to victory. The judge’s initial reaction – incredulity at the state’s arguments – solidified her initial confidence. However, that all changed when FBI Special Agent Robert Miranda was called to testify as an expert witness. It was then that Macione realized the government was not going to back down.

“I walked into the courtroom that day, and the prosecution had stacked the room with “suits” – from the FBI, ICE (Immigration and Customs Enforcement), Homeland Security, TSA (Transportation Security Administration), you name it. That’s when the whole trial shifted its tone.”

Agent Miranda in 1998 joined the FBI’s Counter Terrorism Squad, where he was appointed a specialist on Hamas and other “rejectionist Palestinian terrorist groups,” as referred to in court documents. When he testified in Tareq’s case, he was in the midst of serving as the lead investigator in the government’s infamous case against the Holy Land Foundation, in which five US citizens, who had been distributing aid to USAID-endorsed charitable (zakat) organizations in the Gaza Strip, were accused of providing material support to Hamas.

Although Agent Miranda never spoke directly with Tareq, he testified that because Tareq was a well-educated man from Gaza, he would be “attractive to Hamas” as a possible recruit.

Furthermore, Tareq had by his own admission lived with student members of Hamas during his short enrollment at Birzeit University in the West Bank. In court, Agent Miranda said he had conferred with his colleagues in an unnamed “Israeli security agency,” and they asserted it was highly unlikely that Tareq could have roomed with Hamas affiliates if he was unsympathetic to the party.

Notably, one of the hallmarks of the Holy Land Foundation (HLF) case was that the court permitted an anonymous Israeli “expert” to testify against the HLF, making it the first time in the history of American courts that an expert witness was allowed to testify under a pseudonym and thus be exempt from cross-examination.

“I see the hand of Israel in a lot of these cases,” Downs said.

Indeed, in Miranda’s testimony against Tareq, according to the documents, he discussed how the United States obtains much information on alleged “agents of Hamas” from the government of Israel.

So in the end, the immigration judge, Michael Yamaguchi, ruled in favor of the prosecutors’ argument that Tareq was “inadmissible” to the United States. However, he also accepted the defense’s invocation of the United Nations Convention Against Torture (UNCAT), which argued that Tareq could not be deported back to Gaza on the grounds that he would likely be tortured by either Israel or the Palestinian Authority for being a Hamas operative. Being a signatory to the UNCAT, the United States cannot legally deport someone if there is a greater than 50 percent chance he or she will be tortured. The year was 2007, the height of the civil war between Hamas and Fatah, the ruling party of the Palestinian Authority.

However, the prosecutors successfully appealed the immigration judge’s invocation of the UNCAT, meaning Tareq had to be deported.

The family intended to appeal this decision to the Ninth Circuit Court of Appeals, where they would face off against President Obama’s attorney general, Eric H. Holder. But by that time, August 2009, Tareq just wanted to get out of jail.

“He said he’d rather be killed by Israelis than stay in jail,” Macione said. “So we lifted the stay on his removal.” In other words, they would allow Tareq to be deported.

And according to the law, the Department of Justice was required to release Tareq within 180 days of the family lifting the stay. But 180 days passed, and Tareq was still in jail.

Macione filed a habeas corpus motion with the US Attorney’s office to demand Tareq’s release. After that failed, Macione sued the US government for holding Tareq illegally.

But the gears of racist bureaucratic machinery didn’t move, and Tareq remained in its clutches because Israel would refuse to issue Tareq a transit visa. In what proved a futile gesture, the Departments of Justice and State asked Macione and Issa if Tareq had relatives in any other countries. He didn’t, so he stayed in county jail.

Meanwhile, at the Ninth Circuit Court of Appeals, Tareq was again found inadmissible on the grounds that he was “likely to engage in terrorist activity after entering the United States.”

But being inadmissible to the United States did not secure his now longed-for deportation.

What happened next is unclear. Since the government’s due date to release Tareq had come and gone, the Abufayyads and Macione had been furiously lobbying the State Department, California Senator Barbara Boxer and the Department of Justice to release Tareq.

Macione’s contacts in the Department of State told her that Tareq’s case had “gone to the highest level of the State Department,” which had allegedly contacted the new Egyptian foreign minister to help coordinate Tareq’s transit through Rafah.

Tareq’s father, Issa, was told during a conference call with representatives from the Department of State that they were in the process of actually negotiating an agreement with the new regime in Egypt, “They were using Tareq as a bargaining chip; the Egyptians wanted certain, secret things from the Americans,” Issa said.

And so suddenly, with no warning, explanation or fanfare, in late June 2011, Tareq was removed from his cell by a deportation officer who accompanied him onto a private plane that made a quick tour through Arizona and North Carolina before jetting off to Cairo.

“I called my family when I was in North Carolina, just to let them know I was leaving,” Tareq said.

And Tareq was gone.

Today for Tareq

After crossing the Rafah border, Tareq arrived at his family’s old home, now empty of its inhabitants and overgrown by an unkempt garden.

When his old friends first set eyes on him, they told him, “You look like you’re back from a hole, like you haven’t seen the sun for the past five years,” Tareq recalled.

Today Tareq still lives in this old family home in Khan Younes, Gaza.

Tareq’s father, Issa, said the Egyptian officials have told him that they “are under immense pressure from the US not to let Tareq leave Gaza.”

Tareq has applied to masters degree programs in France and Malaysia, and while he has been admitted, he cannot get permission from Egypt to travel.

“They told me I was on a blacklist.”

Tareq, now 29, was temporarily enrolled in the Islamic University of Gaza’s highly regarded computer science master’s program. When I talked to him in late November, after Israel’s eight-day assault on Gaza, he had dropped out of the program due to depression.

“They have destroyed him by isolating him in Gaza,” his father said.

“I talked to him through Skype, even though I really don’t like to. When he was in jail, I didn’t visit him very often because I hated to see him behind bars, and it’s the same now. Gaza is Tareq’s prison.”

The Department of Homeland Security did not respond to calls for comment.

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