President Trump has sent a clear message to take control of our borders and the message has been given to the U.S. Customs and Border Protection (“CBP”) to increase enforcement at the U.S. border. Everyone who arrives at a U.S. port of entry is required to be inspected before they are admitted to the United States. CBP officers are required to determine the nationality of each applicant for admission (including U.S. citizens) and, if a non-U.S. citizen, a decision is made as to whether the applicant is admissible to the U.S. under the Immigration and Nationality Act. While this is changing, the goal of the U.S. border policy has been to balance the promotion of legitimate travel and cross-border commerce, with the U.S.’s sovereign right to protect itself from terrorist activities, unlawful migration, and contraband.
Five things all travelers to the U.S. should know:
- Border Search Authority. Federal regulations are clear regarding CBP’s authority to conduct a search: “All persons, baggage, and merchandise arriving in the Customs territory of the United States from places outside thereof are liable for inspection and search by a Customs officer.” For those traveling to the U.S. in a vehicle, a CPB officer may stop, search, and examine any vehicle or search any trunk wherever found. However, CBP cannot conduct intrusive searches (such as strip searches) or repeated detentions unless there is a “reasonable suspicion” of an immigration violation or crime. Additionally, CBP’s policy requires that all searches be “conducted in a manner that is safe, secure, humane, dignified, and professional.”
- Electronic Devices. CBP’s border search authority also includes the right to examine electronic devices, such as computers, disks, hard drives, cell phones, and other electronic or digital storage devices, without “reasonable suspicion”. CBP officers conduct border searches of electronic devices to determine whether a violation of U.S. law has occurred. While the U.S. Supreme Court has ruled that a warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional in violation of the Fourth Amendment right against unreasonable searches and seizures, there appears to be an exception for individuals desiring to enter the U.S. If your electronic device is seized for further examination, which may include copying of data, you will receive a written receipt (Form 6051-D) that details what item(s) are being detained, who at CBP will be your point of contact, and the contact information (including telephone number) you provide to facilitate the return of your property upon completion of the examination. Unless extenuating circumstances exist, the detention of devices should not exceed 5 days.
- Discrimination and Coercion. An individual may not be searched on any discriminatory basis (e.g. race, gender, religion, ethnic background). Nevertheless, a search based on consideration of citizenship or travel itinerary that includes a narcotics source or transit country is not deemed discriminatory. Additionally, CBP cannot threaten a person being questioned; if there is coercion, any statements obtained may be excluded in a subsequent removal proceeding under the Due Process Clause. You can file a complaint with the Office of Civil Rights and Civil Liberties within the U.S. Department of Homeland Security if you believe there has been improper discrimination, inappropriate questioning, or other civil rights and civil liberties violations.
- Right to Attorney. Any applicant for admission (including U.S. citizens) is not entitled to representation in primary or secondary inspections, unless he or she has become the focus of a criminal investigation and has been taken into custody. Foreign nationals attempting to come to the United States, either temporarily or permanently, have very few rights during the application and screening process.
- Right to Remain Silent, But Be Prepared to Answer Questions. Even though one has the right to remain silent, if you don’t answer questions to establish your citizenship, officials may deny entry to the U.S. or detain the person for a search and/or questioning. CBP officers can ask applicants for entry almost any question. Make sure you can answer the following questions:
- What is the purpose of your visit?
- Where will you be staying?
- Who will you be visiting?
- Did you bring anything back to the U.S. that you had when you left?
- How often do you travel to the U.S.?
While obvious, if not a U.S. citizen, it’s important to be clear that one’s purpose in seeking entry must be consistent with the visa category held. If a tourist, it is to engage in tourist activities, if a student, it’s to study, if a temporary worker it’s to work and if returning as a permanent resident, the purpose must be to the U.S. as a place of permanent residence.