Can I call a lawyer? Know your rights before crossing the border.

There is a lot of fear about crossing through the United States border these days. Many people are afraid of being detained, having their phones searched or taken, and not making it in – or out – of the US.

During times like these, the best thing you can do is know your rights. Information is the best way to prepare yourself, and smooth out as many difficulties as possible BEFORE you get to the border. With a little knowledge you can save yourself anxiety, and be prepared if there are any issues. Below are some of your basic rights at the US border, and what you should understand before you try to cross in or out of the United States.

REMEMBER: The US Customs and Border Protection (CBP) officers are not the police. The Miranda Rights you hear read on every cop show do not apply at the border. It is important that you are prepared beforehand with what is and is not legal.

What is “reasonable suspicion”?

“Reasonable suspicion” in terms of border crossing must be based on specific facts that lead to rational conclusions that can be explained using plain language to the person in question.  The suspicions must be associated with the specific individual who is being questioned, not other family members, or fellow travellers, or associations. It’s important to understand that while US Customs and Border Protection Officers have broader power than police officers do, they still have some rules that apply to them. They cannot discriminate against you because of your religion, race, skin color etc…This means they have to have a reasonable suspicion based on facts -not hunches or discrimination- before they can do more than visually search your car, or do a strip search of your body.

REMEMBER: refusing a search is not a basis for “reasonable suspicion” for a search.

What are my rights at border crossings into the US?

  1. US Customs and Border Protection (CBP) officers have the right to questions and detain. They can ask you questions about your citizenship, see your documents, and ask about what you are bringing into the country (if anything).
  2. You do have the right to remain silent. You do not have to provide information about where you were born, how you entered the U.S or how long you have been here. However if you remain silent you must be prepared to be turned away at the border, or be detained for further questioning.
  3. You have the right to a lawyer for all questioning ONLY IF you are a US citizen. 
  4. If you are a green card holder, visa holder etc…you generally DO NOT have the right to counsel UNLESS it is for questioning of anything not related to immigration. Only after you are legally detained, do you then have right to an attorney.
  5. If you are not a US citizen and you are refused at the border, but you fear that you will be persecuted or tortured if sent back to the country you came from, you may ask the officer who is detaining or refusing you entry for asylum.
  6. CBP officers have the right to SEARCH your phone/laptop/tablet, HOLD your device(s), and COPY FILES from your phone/laptop/tablet. If you don’t want that to happen, try to store anything essential elsewhere (like on the cloud) and travel with non-essential technology only.
  7. You don’t have to allow the officials at the border into your technology, but again, you may be held, detained, or turned back from the border.
  8. Officers are not allowed to damage personal property during an inspection.
  9. For permanent residents — CBP officers CANNOT make you sign anything that would end your immigration status.
  10. However, CBP may try to have certain green card holders sign Form I-407, Abandonment of Lawful Permanent Resident Status, but you can refuse to sign and request to see a judge for review of any Abandonment issues.
  11. Can they strip search? Strip search at the border is not a routine search and must be supported by “reasonable suspicion,” and must be done in a private area.
  12. Officers can ask for the removal of religious garb if it is deemed that items like a hijab or turban have issues with the metal detectors. They have the right to ask for a pat down or removal, and you have the right to request that take place in a private area.
  13. Officers cannot use excessive force when detaining you at any border.

Anytime you are targeted at the border for further inspection, try to get the name and number of the border agent who is doing the inspection. Also try to compose a detailed record of the events just in case they escalate. Finally, while videotaping or recording interactions with CBP on private property, in vehicle stops, and at checkpoints is not against the law, CBP prohibits videotaping or recording anything on government property at a port of entry.

If you have any questions about this, or any other immigration related questions please contact us at Harlan York & Associates.

Written by: Harlan York

Immigration Attorney Harlan York is Former Chair, Immigration Section, NJ State Bar Association and Former Co-Chair, NY State Bar Association CFLS Immigration Committee. Mr. York appeared on National Television on CBS This Morning with Charlie Rose and Primer Impacto on Univision, as well as Telemundo, NBC, and PBS. He was honored as First Ever Immigration Lawyer of The Year in NJ by Best Lawyers.

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