Likbez: your rights to the border and customs control of the United States
If in the near future you are going to enter or return to the United States, even if you are a citizen of the United States, you should be familiar with your rights. Can officers detain you at the airport or other border control points? Can they view the contents of your phone? What happens if you refuse them?
To find out the answers to these and other questions, the agency CNN talked to 3 experts in immigration and privacy: Daniel Rizzo and Lesley Holman from the American Association of Migration Lawyers and Nathan Freed Wessler, a lawyer from the American Civil Liberties Union (ACLU).
Can I be stopped or searched at the border?
Yes. It doesn't matter if you are a US citizen, a green card holder or a visa holder.
Border and customs officers have the right to stop you or take you away for a secondary inspection.
This happens if officers need to know more information about you or your migration status in order to decide whether you can be admitted to the country. It may also be a random search.
According to Holman, even if you have a visa to enter, it is the customs officers who make the final decision on whether you can enter the United States.
At the border, I have the same rights as in other places?
Not. The fourth amendment, which provides citizens with protection from searches and detentions without having sufficient grounds to commit a crime, does not have the same force at the border, says Rizzo.
According to Holman, the presence of sufficient reason and reasonable suspicion is not necessary in order to search people at the border, whether they are Americans or foreigners.
Can I talk to a lawyer?
Depends on the situation.
If you are a US citizenYou can ask for the presence of a lawyer during any interrogation.
If you are a permanent resident or a foreigner with a visathen, as a rule, you do not have the right to have a lawyer, unless you are charged with a criminal offense or want to be questioned about anything that does not concern your immigration status, says Rizzo.
As soon as traditional questions end (for example, where you come from and what you bring into the country) and questions about your political beliefs or the contents of your electronic gadgets begin, all travelers, including those without American citizenship, have the right to consult a lawyer, Wessler said.
Can border guards or customs officers take away my green card and not allow me to return to the country?
Border officers do not have the right to force you to sign a form in which you will refuse permanent resident status.
According to Rizzo, in most cases (except those if you committed a serious crime and deported you), legal US permanent residents have the right to a hearing before a migration judge. You must be let into the country so that you can wait for the hearing.
Do you have the right to search my things?
Yes. Anyone entering the country can be searched along with their luggage.
What should I do if I am taking prohibited or restricted items?
You will be asked to declare what you import. If you have goods prohibited for importation, for example, fruits in which there may be pests or diseases, they will be confiscated and destroyed.
Can I search my laptop, phone or other electronic devices?
Yes, even if you are a green card holder or a US citizen.
For example, Sidda Bikkannavar, an American citizen and a NASA engineer, was stopped by customs officers at the Houston airport when he was returning from a vacation in Chile. He is not a native of one of the 7 countries that Trump declared "off-entry". But the customs officers still asked for his phone number and access to it.
Customs officers say there are many reasons why they can search your devices. For example, incomplete documents or if your name pops up in the list of wanted persons. You can also be the object of a random search.
Can I ask for access to my social media accounts or email?
Yes, even if you are an American citizen. However, it remains unclear whether the request to provide such information is legitimate.
“This is a very difficult question,” says Rizzo. Wessler agrees with this: “The state of law is not regulated due to the fact that the government wants to have broad powers at the border.”
The US government began to ask some foreign visitors to the country to access their pages on social networks. This request, albeit on the principles of voluntariness, is now in a form that visitors from other countries (Great Britain, France and Spain, for example) are required to fill out upon arrival.
And what about the data of my phone?
This is where the difficulties begin.
Customs officers have the right to view the contents of your phone or documents in a laptop. Moreover, the government has the right to copy data from your device.
However, the courts are still trying to resolve this issue, says Wessler. The Federal Court of Appeals ruled in 2013 that if customs officers want to conduct a “forensic search” of your device, they should be a suspect in a criminal offense.
What if I refuse to provide my passwords or PIN codes?
Rizzo and Wessler say that a decision here must be made on the basis of possible practical consequences for you.
If you are a citizen of another country, and if you are suspected of not wanting to cooperate, severe punishment may follow, says Rizzo. If you decide not to provide the requested information, then, according to her, you may be denied entry.
If you are a green card holder, then you have more rights, but not as much as US citizens. Border control officers cannot force you to sign a form on depriving you of permanent resident status. According to Rizzo, in most cases, legal permanent residents of the United States have the right to a hearing before a judge on migration issues. You must be let into the country so that you can wait for the hearing.
If you are a US citizen, then you can not be allowed back into the country, but may delay the process of entry.
“Customs officers can be inconvenienced by both citizens and many green card holders. But in the end, they will let you in, ”says Wessler. “There is a risk that you will be delayed for several hours in an unpleasant room without windows for inspection.” It is also possible that the authorities will take away your phone or laptop, he adds. According to the lawyer, in his practice there were cases when the devices were delayed for several months.
Can border guards pick up my phone or laptop?
Can - for further inspection, including copying your data.
How can I secure my device when traveling abroad?
“If you don’t want to be searched, don’t take him across the border,” says Rizzo.
Similar advice is given by Wessler: “It is best to carefully analyze how many devices and what data to take with you. As for the devices, the government cannot search for those that you do not have with you. ”
To protect yourself, you can leave your primary phone or laptop at home, and travel with a spare. The second option is to transfer the data to a secure server, erase them from the phone, and then resume after customs control passes, says Wessler. But this may cause additional suspicions among border guards, lawyers say.
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