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Government officials have different authority at ports of entry than they do elsewhere.
That’s because people trying to enter into the United States are effectively presenting themselves to the government for search and analysis when they come through ports of entry, which are designated areas for entering the country like seaports, airports and land crossings.
As a result, interacting with U.S. Customs and Border Protection officers at one of these locations is not like interacting with a police officer after getting pulled over. The difference owes in part to the legal authority given to border officials that allows them to stop, detain and search any person or item at the border, even without probable cause.
The unique legal authority on the border is newly relevant after the discovery by NBC San Diego that border officials kept a database of advocates, attorneys and journalists who worked with or covered the fall’s migrant caravan. Officials kept dossiers of some individuals in the database, pulled others aside for additional questioning during crossing attempts and placed security alerts on the others.
It is not the first case to draw scrutiny on the limits of this special authority. The American Civil Liberties Union is challenging how that authority extends to electronic devices and whether people can take photos and record in parts of ports of entry that are in public view, for instance.
“The fact is that someone trying to enter the United States has fewer rights than someone who has actually entered,” said Barbara Hines, an adjunct law professor at the University of Texas at Austin.
Following NBC San Diego’s scoop, the Department of Homeland Security’s Office of the Inspector General announced it was investigating whether border officials had nonetheless infringed on those limited rights. The office said it opened an investigation to “ensure that all appropriate policies and practices were followed.”
But Josiah Heyman, director of the Center for Interamerican and Border Studies at the University of Texas El Paso, said it’s time for the public to debate how unrestrained the government’s authority should be at ports of entry. “None of that has been really fully resolved and I think it’s important for us to have a serious discussion just exactly how helpless are you before the power of the state at borders,” he said.
While law enforcement has greater power at the border than in the interior, it may not go as far as you think – especially if you’re a U.S. citizen. There’s still a lot of gray area involved in what happens at ports of entry, so we’ve laid out what we know about what CBP officers can and can’t do there, what rights people have when they’re crossing the border and what is still nebulous.
How CBP’s Authority at the Border Works
Border officials have broad powers in the 100-mile border zone.
CBP officers can inspect any person trying to enter the country and their belongings or vehicle. They can question individuals about their citizenship or immigration status and ask for documents that prove they can enter the United States. At ports of entry, officers don’t need a warrant or reasonable suspicion to do this.
A person’s first encounter at a port of entry is in primary inspection. It’s where a person either walks or drives up to an officer, and shows their documentation, like a passport, SENTRI card, green card or visa.
A lot of things happen during and before this encounter, Heyman said.
When people present themselves at the border, they are making themselves available to be searched, making it a suspicion-less search, Heyman said.
But large, sophisticated ports of entry, like the one in San Ysidro, gather information before you get to an officer. Technology can take pictures of people’s faces or read license plates and share the information with the inspectors. Sometimes travelers scan their documents before reaching the officer, giving the officer time to go through information about the person before they ask any questions.
CBP’s databases flag criminal history, warrants and other issues. Those flags can lead to secondary questioning.
To ensure flagging in these databases is accurate and not abused, CBP said it follows “standard operating procedures when inputting information into law enforcement databases which are reviewed by supervisors to ensure full compliance with all policies and procedures.” There have been instances of abuse in the past, though, like this case where an officer placed a bogus security alert on an innocent man.
Information in the databases isn’t the only thing that can lead to secondary. Inspectors also look at body language and gauge whether people’s explanations for why they’re crossing are suspicious.
“The officer looks at this person as a social caricature,” Heyman told me in August. “If you fit into a suspect story, they’ll wonder about you. That’s one part. At another level, they’ll look at bodily behavior. Do they look uptight? Are they clenching their teeth?”
Officers also randomly pull a certain percentage of travelers into secondary.
CBP officers have to maintain the flows of people crossing at ports of entry while trying to find those smuggling people or drugs or who may pose a threat to national security. Their authority comes with a lot of discretion.
Officers cannot, however, determine someone should be searched or sent to secondary inspection based on their religion, race, national origin, gender, ethnicity or political beliefs.
CBP has the same wide-ranging authority to conduct searches without a warrant in secondary as it does in primary inspection, an agency spokesperson told Voice of San Diego. That authority only ends when CBP decides to undertake a more invasive procedure, such as a body cavity search. For those kinds of actions, the CBP official needs to suspect a person is engaged in illicit activity.
Former Department of Homeland Security officials and other experts told the Union-Tribune that intelligence-gathering from travelers is also not out of the agency’s purview if it’s for national security purposes.
“I don’t think the gathering of the information is surprising or objectionable,” said Alan Bersin, who served as CBP commissioner under President Barack Obama, told the U-T.
The rights of travelers crossing the border vary by situation. They also differ if someone is a U.S. citizen versus a lawful permanent resident or a visa holder.
A U.S. citizen who has presented officials with a valid passport must be let into the country. They don’t have to answer officers’ questions, though refusing to answer questions, particularly about the nature and purpose of your travel, may result in further inspection. U.S. citizens can’t stop CBP officers from searching their vehicle or luggage at ports of entry.
“For U.S. citizens, once citizenship has been established, CBP has to admit you into the United States,” said Mitra Ebadolahi, a senior staff attorney for the ACLU’s Border Rights Project. “If that’s not happening that’s an abuse of authority. We’re seeing increased reports of that, which is troubling.”
Lawful permanent residents or non-citizen visa holders are in a stickier situation. Non-citizen visa holders in particular can be denied entry for refusing to answer officers’ questions.
“People always have the right to remain silent, but obviously a failure to answer questions at least sufficiently to establish citizenship can lead to denial to entry,” Ebadolahi said.
For questions that seek information beyond citizenship, the purpose of travel and what someone is bringing in the country, U.S. citizens and lawful permanent residents can push back a little harder.
One American photographer in the database unearthed by NBC 7, for example, told the outlet she was asked about what she observed at migrant shelters and whether she rented or owned her home.
U.S. citizens do not have to answer questions about religious or political beliefs, associations and practices, which are protected under the First Amendment. Non-citizen visa holders and lawful permanent residents don’t have to answer questions about their religious beliefs and political opinions, but that may lead to additional questioning or not being allowed into the country, Ebadolahi said.
The ACLU recommends requesting to speak to a supervisor if someone asks those sorts of questions. Hines said she doesn’t believe people should answer questions like that “because they are not related to your right to enter the United States nor any criminal activity.”
CBP told ProPublica travelers are not entitled to have an attorney present during primary or secondary inspection. Ebadolahi said she recommends travelers have a telephone number of an attorney on them anyway, and that they should ask to contact the attorney if they’ve been detained for an unusually long period.
Travelers who are told they’re under arrest, or for whom it’s become clear are suspected of committing a crime, should ask to speak with a lawyer before answering any further questions, the ACLU recommends.
People routinely pulled into secondary inspection can contact the Department of Homeland Security’s Travel Redress Inquiry Program to see if there is an erroneous information in DHS’s system that can be corrected. Incorrect information in the databases can also be removed through an expungement if a lawsuit is filed, Ebadolahi said.
There’s Still a Lot That’s Unclear
Several aspects of travelers’ rights and CBP’s authority are still nebulous.
One of the biggest gray areas is how CBP’s authority extends to travelers’ electronic devices. Searches of devices surged in 2017.
The ACLU sued DHS on behalf of 11 travelers subjected to warrantless searches of their devices. The lawsuit is making its way through the courts. The litigation seeks to establish that the government must have a warrant before conducting such searches.
In 2018, the agency released a new policy requiring a heightened level of suspicion for advanced or forensic searches, which involve external equipment that connect to an electronic device to scan, analyze or download its data. It also states that officers cannot search information located remotely, like on a cloud instead of on the device itself. But the policy reasserts CBP’s authority to conduct other searches of electronic devices without any specific suspicion.
If CBP asks travelers for a password to their electronic device, once again, the outcome depends on the situation. U.S. citizens cannot be denied entry to the United States for refusing to provide passwords or unlock devices, but refusal to do so might lead to delay, questioning or officers seizing a device for further inspection. Lawful permanent residents and non-citizen visa holders may be denied entry for refusing to cooperate.
Another gray area still working its way through the courts is the right to take photos or record parts of the port of entry that are in public view. Travelers are never allowed to record in private spaces, like holding cells while being questioned, but the lawsuit addresses whether they can take photos or record while in public areas, like while waiting in line to go through primary inspection.