Know Your Rights: Your Legal Protections When Crossing the U.S. Border
Millions of people cross the border into the United States every day. They come by boat, by plane, on foot, and by car. They go through the biggest and busiest portals, and they come in through out-of-the-way, unique ones. All have the same goal in mind: Get into the U.S. as quickly and efficiently as possible, without stirring up a hornet’s nest of Border Patrol and Customs agents.
And 99% of the time, there’s no problem at all. Sometimes, though, things get complicated. People can get hurt, their rights are violated, or they’re detained for a while. This can all happen legally or, in some cases, illegally. That’s what makes it so important to know your rights when it comes to dealing with federal law enforcement officers, particularly those working at the border.
Know your rights
Crossing the border into the U.S. can be nerve-wracking. Even if you have nothing to hide and no real reason to fear, being questioned and possibly searched by federal agents is off-putting, to say the least. What you should know before you go is you’re going to be asked questions, and all of your rights don’t necessarily apply at the border. That’s mostly because you’re not actually in the U.S. yet — you’re at an international border, a no-man’s land.
And in a no-man’s land, the traditional rules get tossed.
The border: A no-man’s land
- Border Patrol and Customs agents can operate anywhere within 100 miles of the border.
Here’s the thing about the border: It’s a no-man’s land. You’re not technically on American soil, and you’re not really in another country either. You’re in between, both physically and legally. That means you don’t have all the rights you would if you were at home. And it actually stretches out 100 miles from the border. This mostly affects stops, seizures, and searches, but there are all kinds of legal gray areas within the border zones that confuse travelers.
If you’re feeling uneasy, can you turn around?
- Thousands of people accidentally find themselves at border crossings every year.
Many border crossings have last-ditch turnarounds if you’re arriving by vehicle and change your mind. Or perhaps you just made a mistake and missed the last exit. Either way, you’re probably wondering whether there’s any consequence or suspicion cast for turning around at the last second. The answer is no, not really — as long as you don’t get all the way to the Customs officials who will wonder what the heck you’re doing.
Speaking of Customs, just what are the federal authorities you should expect to encounter? We’ll start with Border Patrol agents.
- There are more than 20,000 active U.S. Border Patrol agents.
Depending on where and how you enter the U.S., you’re likely to see a few types of agents. Border Patrol agents work under the U.S. Department of Homeland Security, often alongside Customs officials. Their job is to patrol the border and maintain safety and security standards. They typically wear green uniforms. Unless you end up going out of your way, you probably won’t run into these men and women if you’re crossing into or out of the U.S.
You should, however, expect to speak with Customs agents.
- On an average day, Customs agents welcome more than 1 million people into the U.S.
Whether you’re walking, driving, flying, or boating in, you’re going to be stopped and questioned by a U.S. Customs agent. These are the folks who will look at your passport, ask you some questions, and determine whether you get in free of hassle. They wear blue uniforms and look like police officers. For the majority of border crossings, the discussion will be brief. But if there’s an issue, you’ll be pulled aside for additional questioning and searches.
That brings us to the next point: your privacy rights.
Your right to privacy
- U.S. Customs and Border Protection has the authority to set up immigration checkpoints anywhere within 100 miles of the border, as strange as that may seem.
Here’s where we get into the meat of it all. You know you have a basic right to privacy in the U.S. — meaning you can’t be stopped, searched, or have your belongings seized. At the border, it’s a little different. Again, because you’re not technically in the U.S., there’s some gray area in which Customs officials operate. They don’t have unlimited power, but it does go beyond the scope of what you’d experience at home. Be prepared to answer questions, prove your identity, and perhaps be searched.
Your next question should probably concern privacy involving your phone and electronics.
What about your phone or computer?
- Cut to the chase: Yes, federal authorities at the border can search your phone. They can also make copies of what they find.
This is another tricky gray area that still has yet to be fully fleshed out by the courts. Basically, the question is whether Customs or other federal agents can force you to give up passwords and PINs to phones and computers and look through them. The short answer is yes, they can. There are a few reasons for justification that Customs and Border Protection can give, including “random” searches. This is a tricky privacy question, and agents will need your compliance to look through your phone. If you refuse, you could be denied entry.
What about your social media and email passwords?
Social media and email
- Again, the answer is yes(ish) to whether you have to hand over passwords.
This is where we get far into the weeds, legally speaking. Most of us wouldn’t hand over our passwords to our email or social media accounts to friends or family members, let alone a stranger at a border crossing. But many legal experts seem to think the government does have the authority to ask you to log in to your profiles as a part of a “forensic search.” This is a battle, though, that is still being fought in the courts. And agents will need your compliance to access your accounts.
What, then, amounts to an “illegal search” at the border?
- The “border search exception” is used to skirt Fourth Amendment protections
Even Customs and Border Patrol agents need to abide by the law, and that means they don’t have absolute power, as mentioned. But there’s a lot of gray — and this is where the potential for rights violations occur. You can, as a result, be detained or searched illegally. Sometimes, when agents get a little too power hungry, things go terribly wrong. And people can even be killed.
What you need to know is you don’t need to do everything Customs and Border Patrol agents tell you to do. They need “reasonable suspicion” to stop you within the 100-mile border zone, and at a crossing they should only ask you questions related to your travel plans and citizenship. They also can’t detain you without cause or engage in invasive searches without probable cause. As always, you shouldn’t sign anything or agree to anything without consulting a lawyer first.
What about restricted items?
- Customs and Border Patrol maintain a list of restricted and prohibited items that you are not allowed to take across the border — at least not without declaring them first.
Would you dare try to take a Haitian animal hide drum across the border? They are one of the several items on the prohibited and restricted items list, many of which are forbidden by law to be brought into the U.S. As the Customs and Border Patrol website explains, “The products CBP prevent from entering the United States are those that would injure community health, public safety, American workers, children, or domestic plant and animal life, or those that would defeat our national interests.”
Say you have one of those animal hide drums. Do you have to speak at all?
You have a right to remain silent
- Remember: You always have the right to remain silent — but it won’t always make things easier.
As you get older, you realize you could have saved yourself a lot of trouble if you had just shut up. That also applies to situations involving law enforcement. Expect to be questioned about your travel plans and citizenship. Other than that, you can remain silent. But this might come off as suspicious or rub agents the wrong way. And they might deny you entry or make things a lot more difficult for you. But know you always have that right.
What should you do if you feel discriminated against?
Discrimination is an issue that’s never going to go away. Is there anything you can do if you feel you’re being treated unfairly by agents due to your race, nationality, religion, etc.? Customs and Border Patrol do have an anti-discrimination policy. But there is clearly a lot of discrimination going on, and it seems to be supported at the highest levels of government. It’s hard to say what you should do if it happens to you, other than to be in touch with legal counsel and organizations, such as the American Civil Liberties Union.
Before heading to the border, take measures to protect your privacy.
Protecting yourself and your privacy
- Remember: Customs and Border Patrol can copy the files on your phone or computer, so take measures to protect yourself.
Is there really a way to protect your privacy at the border? No, not really. A basic rule of thumb is to take as little with you as possible, and that goes for the data on your phone and computer, too. You’re going to be stopped, and you’re going to be questioned. So you might as well prepare for it. There are some things you can do — such as take a device that’s free of sensitive information, encryption, etc. — but a border crossing isn’t going to be any easier if you clam up and make agents suspicious.
If you do clam up, though, can you be denied entry?
Can a citizen be denied entry?
- In 2016, more than 30,000 Americans were denied entry to the U.S. from Canada.
We’ve brought it up a few times: the prospect that you could be denied entry to the U.S. if you run afoul of Customs and Border Patrol. And just so we’re clear, you can be denied entry and turned away, but it’s very difficult and rare for American citizens. There are many reasons why it could potentially happen, and the numbers of Americans who are denied entry fluctuate from year to year. It’s actually pretty rare that a citizen won’t be allowed back into the country. But if things get difficult, you could be stopped and detained.
If you don’t want to be turned away at the border, you should follow some basic guidelines.
What you should never do
Now that you know your rights at the border, there are some things you shouldn’t do. They’re all pretty much obvious, too. Don’t brandish weapons, for example. And don’t try to bring prohibited or restricted items across. Definitely don’t bring drugs. Basically, don’t act like a jerk, and don’t go out of your way to break the rules. Stay in line, and you shouldn’t have any trouble getting across the border.