Know your rights at the US and Canadian Border

Under the new administration in the US presidency, there has been a huge and unfortunate change as to handling our borders.

If you’re entering or returning to the US soon — even if you’re a US citizen — you may be confused about your legal rights in the wake of President Trump’s contested travel ban.

Can officers detain you at airports or other border checkpoints? Can they scroll through your phone? What happens if you say no?

Can I be stopped or searched at the border?

Yes. It doesn’t matter if you’re an American citizen, a green card holder or a visa holder, Customs and Border Protection (CBP) officers can stop you or take you to secondary inspection. This might happen because officers need more information about you or your immigration status to decide whether you should be allowed into the country. It could also be a random search

Even if you have a visa to enter the United States, CBP agents are ultimately deciding your “admissibility” into the United States.

Do I have the same legal rights at the border that I would elsewhere?

No. The Fourth Amendment, which protects people from searches and seizures without probable cause of a crime being committed, doesn’t apply in the same way at the border.

Probable cause and reasonable suspicion are not needed to search people — Americans or foreign visitors — at the border.

Can CBP officers take my green card away and not allow me back in the country?

No. Officers at the border cannot make you sign a form that would abandon your permanent resident status.

In most cases (unless you’ve committed a serious crime and are being deported), legal permanent residents have a right to a hearing before an immigration judge. So you would be allowed back into the country to wait until that hearing.

Can my things be searched?

Yes, all people and their luggage and belongings entering the country are subject to search.

What if I bring prohibited or restricted items with me?

You will be asked to declare what items you’re bringing into the country. If you have prohibited items, such as fruit that could carry pests or diseases, they will be confiscated and destroyed.

Could my laptop, phone or other electronic devices be searched?

Yes, even if you’re a green card holder or an American citizen.

A US citizen and NASA engineer, was stopped by customs officers at Houston airport when he was returning from a vacation in Chile. He wasn’t from any of the seven countries listed in Trump’s executive order. But CBP officers asked for his phone and his PIN to access the phone.

According to CBP, your devices could be searched for many reasons, including incomplete travel documents or because your name matches a person of interest. It also could be a random search.

What about my data on my phone?

This is where it can get complicated.

Border agents are allowed to swipe through your phone or look through the documents on your laptop.

The government can also copy the data on your device.

But courts are still grappling with this issue. A federal appellate court ruled in 2013 that if border agents wanted to conduct a “forensic search” they have to suspect you of criminal wrongdoing.

What if I decline to hand over my passwords or PIN?

This is where people have to start making practical judgments about what the implications could be for them:

If you’re a foreign national:

If a foreign national is perceived as not being cooperative, there could be severe repercussions. If someone chooses not to hand over the information asked of them, CBP can deny them entry.

If you’re a green card holder:

You have more rights, but not as many as a US citizen, according to Rizzo.

Officers at the border cannot make you sign a form that would relinquish your permanent resident status. In most cases, legal permanent residents have a right to a hearing before an immigration judge. So you would likely be allowed back into the country to wait until that hearing.

If you’re a US citizen:

You cannot be denied entry into the United States, but you might be delayed.

For citizens, and likely for many green card holders, border agents can inconvenience you, but eventually, they’re going to have to let you back into the country.

There’s a risk you could be held, detained … for hours in an unpleasant, windowless secondary inspection room. There’s also a chance that authorities will seize your phone or laptop, he says, adding that he’s seen cases in which phones were held for months.

Can border agents keep my phone or laptop?

Yes. They could keep your device for further examination, which could include copying your data.

How can I safeguard my device when traveling internationally?

Some experts say – If you don’t want it searched, don’t carry it across the border.

The best advice may be to be really careful on how many devices and what kind of data you’re carrying with you.

People who are concerned should leave their primary phone or laptop at home and travel with another device, he says.

Or, you could back up your data to a secure server, wipe it from your phone and then restore the data after you pass through customs. But this also could raise suspicions at the border.

Basically, you do not have many rights at the border of the US. There are some caselaw though.  For example, United States v. Ortiz, 422 U.S. 891 (1975), was a United States Supreme Court case in which the Court held that the Fourth Amendment prevented Border Patrol officers from conducting warrantless, suspicion-less searches of private vehicle that were removed from the border or its functional equivalent.  However, under United States v. Martinez-Fuerte, 428 U.S. 543 (1976) was a decision of the United States Supreme Court that allowed the United States Border Patrol to set up permanent or fixed checkpoints on public highways leading to or away from the Mexican border, and that these checkpoints are not a violation of the Fourth Amendment.^[1][2]

The U.S. Customs and Border Protection (CBP) officers, U.S. Border Patrol agents, U.S. Immigration and Customs Enforcement Special Agents, and U.S. Coast Guard officers (E4 grade and above) who are all customs officers (those tasked with enforcing Title 19 of the United States Code) with the U.S. Department of Homeland Security, are permitted to search travelers and their belongings at the American border without probable cause or a warrant. Pursuant to this authority, customs officers may generally stop and search the property of any traveler entering or exiting the United States at random, or even based largely on ethnic profile.

Basically, within 100 miles of any border, you do not have as much rights as you do outside the 100 mile area. This would be in direct conflict of the higher standard of personal privacy under Washington state law and New York law where Washington state and New York state border Canada.  I can see it being utilized within 10 to 15 miles of the border, but not within 100 miles.  In my cases I have handled in Bellingham that is well within 100 miles of the Canadian border, I have never seen the automobile exception used that included the border exception to the 4^th amendment.  In these days of 2017, we shall see how these rules are tested and played out.

 

 

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Gregory Scott Hoover’s primary area of legal practice is in the form of civil, personal injury and criminal litigation, immigration law and assisting those involved in EB-5 transactions. Mr. Hoover is licensed in both Oregon and Washington, and New York, U.S.A., and England and Wales, U.K. Mr. Hoover is also a skilled negotiator, mediator and arbitrator. As a skilled negotiator and litigator, Mr. Hoover can skillfully resolve your situation through effective negotiations or, if necessary, aggressively represent your matter in court.

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