Know your rights with border & immigration agents
Since taking office, President Donald Trump has made good on his campaign promise to crack down on the country's 11 million undocumented immigrants.
Apr 07, 2017 — Since taking office, President Donald Trump has made good on his campaign promise to crack down on the country's 11 million undocumented immigrants.
"We’re getting gang members out. We’re getting drug lords out," Trump said in February. "And it’s a military operation."
Critics say that military operation is catching people who haven’t committed any crimes. Farmworkers and their advocates have been arrested in New York and Vermont. Last month, agents with Immigration and Customs Enforcement, or ICE, detained a Guatemalan family in Geneseo, including several children and a baby born in the United States, triggering protests of several hundred people in nearby Rochester.
Civil liberties groups say Trump’s executive orders on immigration and border protection have emboldened federal agents to be more aggressive, even with U.S. citizens. Jordan Wells, a staff attorney with the New York Civil Liberties Union, says they’re aware of more incidents at U.S. borders and airports. "Invasive searches into electronic devices, questioning about religious beliefs and associations," says Wells, "things that, while not unheard of before this, seem to be cropping up a lot more than before."
All this talk – and action – on immigration has raised questions in many people’s minds – what are my rights at the border? What are my rights if I’m stopped by border patrol on a road, or a bus or a train?
NCPR has compiled a list of common questions and some answers, with the help of attorneys at the New York Civil Liberties Union. (This FAQ is an update of one NCPR published in 2015.)
At the international border / ports of entry:
What are my rights at an international border checkpoint, for example, when I re-eneter the U.S. from a trip to Canada?
Agents at ports of entry may question you about citizenship and what you are bringing with you into the United States. You have the right to remain silent, but if you don’t answer questions to establish your citizenship, they may deny you entry or detain you for search and/or questioning.
Agents may search you, the vehicle in which you are traveling, and your belongings. They do not need a warrant, any suspicion of wrongdoing, or consent to do any of these things. However, they may not conduct more intrusive searches such as strip searches absent reasonable suspicion.
Do I have to give border agents my laptop or cell phone if they ask for it? Do I have to give them my password to those devices so they can access them?
Unfortunately, the answer isn’t simple. This issue has become a major battle line in the legal debate between security and privacy. The government has long claimed that Fourth Amendment protections prohibiting warrantless searches don’t apply at the border. But civil liberties groups, including the ACLU, argue electronic devices are different than, say, a suitcase.
Our smartphones store detailed accounts of our conversations, professional lives, whereabouts, and web-browsing habits. They paint a far more detailed picture of our private lives. Searching them, these groups argue, is much more invasive.
The Supreme Court recognized this reality when it ruled in 2014 that the Constitution requires the police to obtain a warrant to search the smartphone of someone under arrest. The ACLU has argued in various court filings that that ruling should also apply when people travel internationally.
However, right now, if you refuse to let an agent check your phone, you could be detained for a long time, or your phone could be seized. So how you handle these situations depends on how much hassle you’re willing to deal with.
What do I do if I am pulled over for secondary inspection every time I cross the border, or every time I travel by air?
If you are certain there is no legitimate reason for you to be on a “no-fly” or other “national security” list, you can contact the TSA and file an inquiry using the Traveler Redress Inquiry Process and/or contact the DHS Office of Inspector General or DHS Office for Civil Rights and Civil Liberties. But if there is any chance a legitimate reason exists for why you may have been placed on such a list, you should seek the advice of an attorney.
General:
What’s the difference between ICE, CBP, and Border Patrol?
In 2003, the former Immigration and Naturalization Service and former U.S. Customs Service were dissolved, and their functions were spread across agencies within the newly created the U.S. Department of Homeland Security, including U.S. Immigration & Customs Enforcement (ICE) and U.S. Customs & Border Protection (CBP). (The Transportation Security Administration (TSA) is another agency within DHS that you may encounter at airports.) CBP employs tens of thousands of Customs & Border Protection officers at ports of entry as well as tens of thousands of Border Patrol officers. In general, as relevant here, ICE conducts immigration enforcement in the interior, while Border Patrol officers conduct enforcement at and near U.S. borders.
At interior roadside checkpoints:
What is the legal basis for these checkpoints?
Checkpoints stem from Border Patrol’s statutory authority to operate within “a reasonable distance” of the border. That distance was defined by federal regulations in 1953 as “100 air miles” from any external boundary, including coastal boundaries.
In United States v. Martinez-Fuerte (1976), the Supreme Court held that immigration checkpoints were permissible only insofar as they involve a “brief detention of travelers” during which all that is required of the vehicle’s occupants is “a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States." Neither vehicles nor occupants should be searched absent probable cause, and referrals to secondary inspection areas should involve “routine and limited inquiry into residence status” only.
When the Supreme Court ruled in Martinez (1976) that the detentions must be “brief,” what does that mean?
In general, this means that detention may be no longer than the time reasonably necessary to conduct a minimal inquiry into immigration status. Absent reasonable suspicion of a violation of the law, the detention cannot be extended for any length of time for non-immigration purposes.
What’s the difference between reasonable suspicion and probable cause?
In general, “reasonable suspicion” refers to when specific, articulable facts known to the officer would make an ordinarily prudent and cautious person under the circumstances believe that a crime has occurred, is occurring, or is about to occur. A hunch or gut feeling does not create reasonable suspicion; nor does a person’s mere nervousness, absent other factors indicative of criminality. “Probable cause” is a higher standard, which means that the facts and circumstances would lead a reasonable person to believe that the person under suspicion has committed an offense. Probable cause is also evaluated based on a reasonable interpretation of the facts known to the officer.
What is required for agents to search your car or trunk?
Generally, either consent or probable cause is required for a search of the car, including the trunk. Refusal to consent to a search does not create probable cause for a search or reasonable suspicion to justify extending a stop.
An officer may visually inspect the vehicle and its interior from outside the car without any level of suspicion or consent.
If you ask, do border patrol agents have to tell you why you’re being detained?
In general, no. Officers are not required at the time of the detention to explain their reason(s) justifying the detention.
If these checkpoints are intended to be to determine residence/immigration status, are drug-sniffing dogs allowed to be at a checkpoint?
As the question implies, the presence of drug-sniffing dogs at a checkpoint undermines the notion that the checkpoint is being used for limited immigration inquiries and suggests that the checkpoint is being used to conduct generalized criminal investigations, in violation of the Supreme Court’s opinions on the permissible uses of checkpoints. The NYCLU and other ACLU affiliates are concerned that investigations at Border Patrol checkpoints often exceed the limited scope permitted under the law.
I read somewhere that I do not have to answer any questions and should instead ask the officer "Am I being detained, or am I free to go?" What happens if I say nothing?
You have the right to remain silent, but as a practical matter, your refusal to respond could cause the officer to extend the duration of the stop — whether permissibly or impermissibly.
Is it wrong of me to assume that even Border Patrol falls under the jurisdiction of the Supreme Court?
The Border Patrol must conform its conduct to the laws of the United States, as interpreted by the courts, including the Supreme Court.
In what ways are border patrol officers similar to police (state and sheriffs)? In what ways are they different?
State and local police serve functions that are significantly different from that of Border Patrol. They may not prolong a stop based on a suspicion that an individual has committed a civil immigration violation. Moreover, in communities where encounters with state and local police are prolonged or involve questions about immigration status, this practice undermines public safety by creating fear and distrust of law enforcement. Neither border patrol nor state and local police may set up checkpoints designed primarily for general crime control purposes.
