In March of 2021, Homeland Security Secretary Alejandro N. Mayorkas stated that the US was on pace “to encounter more individuals on the southwest border than we have in the last 20 years.” The detentions and arrests of undocumented immigrants in 2021 along the southern US border reached an all-time high of 1.9 million, with most arrests leading to deportation.
This year, in 2022, border crossings into the United States continue to increase due to violence, food insecurity, poverty, and a lack of economic opportunity in several countries in the Western Hemisphere, according to the Department of Homeland Security. Regardless of your immigration status or reason for entering the United States, you are entitled to certain rights when crossing the border. To understand your rights, you must first understand the agencies you will encounter at the border and beyond.
Who patrols the US borders?
The US Customs and Border Protection Agency (CBP), a Department of Homeland Security branch, oversees trade and travel in and out of the United States. CBP’s Border Patrol agents inspect immigrants and cargo at ports of entry and patrol thousands of miles of the border. In addition to preventing the entry of terrorists and terrorist weapons, Border Patrol agents detect and prevent drug smugglers and the illegal entry of non-citizens.
You will most likely encounter a Border Patrol agent at a US port of entry. A port of entry is where one may lawfully enter the nation. International airports are usually ports of entry, as are road and rail crossings on a land border and major seaports. US Customs and Border Protection enforces the import and export regulations and immigration programs of the US government.
Border Patrol agents may inspect your documentation, ask questions about your plans in the United States, and determine whether or not you are permitted to enter the country. Under CBP policy, agents are allowed to use force considered “objectively reasonable to affect an arrest,” taking into consideration whether a person poses a security threat or is resisting arrest. Excessive force by an agent is prohibited.
At airports, Transportation Security Administration (TSA) officers conduct security screenings. Most TSA officers are not commissioned law enforcement officers, and their role is to conduct screening of passengers, baggage, and cargo. TSA screeners can search you and your luggage at screening checkpoints, but they cannot arrest you.
TSA agents and Border Patrol are not active-duty military forces. The 1878 Posse Comitatus Act limits the US military’s role in enforcing domestic law, which includes immigration. As a result, it has been historically rare for US military forces to be sent to the border. In recent decades, their presence at the border has been limited to providing high-tech surveillance. US military forces can neither detain nor deport unauthorized immigrants nor conduct searches and seizures.
The 100-mile border
US Customs and Border Protection is tasked with patrolling the US border and areas that function like a border. Their territorial reach includes a 100-miles radius from any external boundary of the United States. Under federal law, CBP can board vehicles and vessels “within a reasonable distance from any external boundary of the United States” and search for people without immigration documentation without a warrant.
A “reasonable distance” is 100 air miles for any external US boundary. Most of the ten largest cities in the US, such as New York City, Los Angeles, and Chicago, fall within this region. In addition, Florida lies entirely within this border. As part of its immigration enforcement efforts, CBP boards buses and trains in the 100-mile border region either at the station or while the bus is on its journey. More than one officer usually boards the bus, and they will ask passengers questions about their immigration status, request passengers to show immigration documents, or both.
CBP operates immigration checkpoints along the interior of the United States at both major roads — permanent checkpoints — and secondary roads — “tactical checkpoints”— as part of its enforcement strategy. At these checkpoints, every motorist is stopped and asked about their immigration status. Agents do not need any suspicion to stop and ask questions at a lawful checkpoint, but their questions should be brief and related to verifying immigration status. They can also visually inspect your vehicle. Some motorists will be sent to secondary inspection areas at the checkpoint for further questioning.
While the Fourth Amendment of the US Constitution prohibits random and arbitrary stops and searches, federal authorities do not need a warrant to justify a “routine search,” such as searching luggage or a vehicle. However, Border Patrol cannot pull over anyone without “reasonable suspicion” of an immigration violation or crime. An agent must have specific facts about you that make it reasonable to believe you are committing or have committed a violation of immigration or federal law.
Can my documents be taken away at the border?
According to US Customs and Border Patrol policies regarding border searches, “When officers determine there is probable cause of unlawful activity, based on a review of information in documents or electronic devices encountered at the border or on other facts and circumstances, they may seize and retain the originals and/or copies of relevant documents or devices, as authorized by law.”
In the absence of probable cause, “CBP may only retain documents relating to immigration matters, consistent with the privacy and data protection standards of the system in which such information is retained.” Under Federal laws, CBP may examine documents, books, pamphlets, and other printed material. If documentation, including your passport, is confiscated, it will usually be retained until the end of your immigration court case.
Your rights when crossing a US border
Generally, CBP officers may stop people at the border to determine if they are admissible to the United States, and they may search luggage and other belongings for contraband. This includes searching laptops and cell phones. However, officers may not select you for a personal search based on your religion, race, national origin, gender, ethnicity, or political beliefs.
If you are stopped at the border by a CBP agent or anywhere within the United States by Immigration and Customs Enforcement (ICE), you have certain rights and protections regardless of your immigration status:
- You have the right to remain silent or request the presence of an attorney before answering any questions. However, if you do have permission to be in the US with a non-immigration visa, the law requires you to provide details about your immigration status when asked by authorities.
- If you are a lawful permanent resident (LPR), you only have to answer questions establishing your identity and permanent residency. Refusal to answer other questions will likely cause delay, but officials may not deny you entry into the United States for failure to answer additional questions.
- An immigration officer cannot detain you without “reasonable suspicion.” You may ask the detaining officer their basis for reasonable suspicion.
- If you are not at a port of entry or US border, you cannot be arrested or searched without “probable cause” or your consent. The agent must have facts about you that make it probable that you are committing or have committed a violation of immigration or federal law.
- If you are told you cannot enter the country and fear you might be persecuted or tortured if you are sent back to the country you traveled to, you have the right to request asylum.
- While CBP holds that primary and secondary inspections do not give you the right to an attorney, we recommend you request to contact a reputable immigration attorney if you feel your rights are being violated or if you have been detained for an unusually long period.
- If you are under arrest, or if it becomes clear you are suspected of committing a crime, you should ask to speak to a lawyer before answering any further questions — and if you wish to exercise your right to remain silent, you should say so out loud.
- You have the right to wear religious head coverings during airport screenings. However, you may be subject to additional screenings if the body scanner triggers an alarm. In that case, you have the right to request that the pat-down or removal of your head covering be conducted by a person of your gender and that it occurs in a private area.
Other important facts to keep in mind:
- Customs Border Patrol agents can search without a warrant at ports of entry. However, ICE officers must have a warrant signed by a judge to enter your home.
- If you have entered the US without inspection by CBP or an immigration official, you may be subject to expedited removal from the US. However, expedited removal proceedings only apply if you have entered without inspection within the last 14 days or have been encountered by an immigration officer within 100 miles of the border.
- If your laptop or cell phone is confiscated at the border, according to CBP policy, they are not required to return your device before you leave the airport or other port of entry, and they might choose to send it off for a more thorough “forensic” search. Unless “extenuating circumstances” apply, they can keep your device for five days. However, the policy does not define ” extenuating circumstances, and the period can be extended to seven days.
- If you leave the airport or other border checkpoint without your electronic devices, ask for a receipt, including information about your device and contact information, allowing you to follow up.
What should I do if I’m arrested or detained at the border?
If you are arrested or detained, meaning held in custody for a temporary period of time, you have the right to remain silent and to request to speak to a lawyer.
The following information may be helpful in this situation:
- Do not sign anything without first talking to a lawyer.
- Do not agree to a “voluntary departure” or agree to leave the United States without first talking to a lawyer. A voluntary departure removes your right to a court hearing and the risk of future barred entry to the United States.
- Do not sign “stipulated orders of removal” without discussing with a lawyer. A stipulated removal order waives your right to a hearing and serves as a final order of deportation signed by a judge.
- You have the right to call an attorney or your family if you are detained.
- You have the right to be visited by an attorney if you are detained or in an immigration detention center.
- You have the right to an attorney, but the government will not provide you with one for free.
- You have the right to contact your consulate.
- If detained, you have the right to ask to be released by paying a bond or for a bond hearing in front of a judge. A bond is money paid to the government that guarantees you will attend future court hearings.
In most cases, the immigration authorities have 48 hours to decide if you are to undergo immigration proceedings in front of a judge, to keep you in custody, or to release you on bond. If an immigration hearing is decided, you must receive a Notice to Appear within 72 hours with information regarding the hearing and your charges.
If you leave the US before your hearing, it’s essential to speak with an immigration attorney before departure. You may not be permitted back into the United States for several years if you leave. You may be arrested and barred indefinitely if caught entering the country before you’re allowed.
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Stump & Associates is Oklahoma City’s most respected immigration law firm. With more than 30 years of experience, we know how to handle cases just like yours.
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