I feel so break up...

September 19, 2006 12:08 PM

What rights do I have when re-entering the US? Let's say that I, a natural-born US citizen, am returning to the US after a vacation. Does the bill of rights still apply to me when speaking to the nice man at Customs/Immigration?

For the sake of argument, let's further say that I've got a valid passport with me and I'm not bringing anything back other than the clothes on my back and some postcards. I'm not smuggling any drugs, I have no criminal record or warrants and I haven't gone anyplace naughty like Cuba or North Korea.

There seems to be ample information on the web about what my responsibilities are:

I must declare anything I bring back.
I must identify myself as a US citizen.

But beyond those requirements, am I compelled to answer any question that I'm asked? Do I have the right to remain silent? Can I demand an attorney? Or are my rights on hold until I'm past Customs & Immigration?

Do I have a right to re-enter the United States? For what reasons can I be refused re-entry?

Just asking for curiosity's sake. I'm aware that the Border Dudes have wide discretion to ruin you day if you get uppity and uncooperative.

posted by kc8nod to law & government (25 comments total)

Customs and Border Patrol has the right to search you, but various government and ACLU sites seem to indicate that once you reach Customs you are on US soil and therefore have the protections of US law, so you have the right to refuse to answer questions.
posted by oliver at 12:26 PM on September 19, 2006

Is any of the U.S. Customs operation outsourced? Since due process only applies to the government, a private security corporation may not have to abide by these principles.
posted by chef_boyardee at 12:29 PM on September 19, 2006

But beyond those requirements, am I compelled to answer any question that I'm asked?

As a US citizen, at customs/immigration, you are afforded the rights of a US citizen on US soil. I think that means you either don't have to answer, or can request an attorney if you desire one.

That said, I have traveled abroad at least once a year for various reasons, and have never been asked anything beyond where I was, how long I was gone, and what I had brought back into the country with me.

Do I have a right to re-enter the United States? For what reasons can I be refused re-entry?

As a US citizen, you have the right to re-enter the United States - that's what your passport does for you. I suspect you could be refused re-entry for smuggling/lying/defrauding the customs agent, if caught, but I think that "refused re-entry" in cases like that means "go directly to a US jail" rather than "go back to Australia" or wherever you're arriving from.
posted by pdb at 12:32 PM on September 19, 2006

My understanding (garnered from "Law and Order" episodes) is that any informer or other agent in the employ of Law Enforcement has to adhere to the same restrictions in re searches and obtaining confessions, etc.
posted by BigLankyBastard at 12:33 PM on September 19, 2006

Really, they can make up any reasons they want.

"The government is conditioning the return to their home on cooperation with law enforcement."
posted by mikepop at 12:34 PM on September 19, 2006

Is any of the U.S. Customs operation outsourced? Since due process only applies to the government, a private security corporation may not have to abide by these principles.

That's not the case at all. Anyone acting as an agent of the government has to abide by the Bill of Rights to the same degree as the government would.
posted by reverendX at 12:34 PM on September 19, 2006

mikepop writes "Really, they can make up any reasons they want."

That's kind of a strange twist on the whole thing, though. Technically, they're not being refused entry to the country, they're just being refused access to flights into the U.S. (via the very questionable "no-fly" list). Presumably, if they could swim over, they'd be allowed in. It's really not a customs or immigration issue at this point.

It is deeply bizarre, though.
posted by mr_roboto at 12:40 PM on September 19, 2006

mikepop: that was in the blue a week or two ago. those guys aren't being denied admission--they are being denied air transport.
posted by lester's sock puppet at 12:41 PM on September 19, 2006

I missed it in the blue, sorry - had it in the back of my mind from when it first happened. So, if they flew into Mexico and drove over, that would be no problem?
posted by mikepop at 12:46 PM on September 19, 2006

The questions, as noted, are routine and non-intrusive. If you refuse, just on general principles, to answer a question like, how long have you been away, you're likely to be led into a little room and asked a lot more questions. You will not enjoy this procedure. This is not a whole lot different from dealing with your friendly local constable when he/she stops you for having a dysfunctional tail light.
posted by beagle at 12:48 PM on September 19, 2006

That's not the case at all. Anyone acting as an agent of the government has to abide by the Bill of Rights to the same degree as the government would.

I stand corrected... thanks.
posted by chef_boyardee at 12:55 PM on September 19, 2006

I've lived outside the US for about a decade now and can tell you from personal experience that the Border Agents get a little concerned if you can't tell them the amount of time you've been outside the US.

About three years ago I was entering the country at O'Hare (from Heathrow) and couldn't recall the last time I'd been on US soil. After several guesses on my part, the Agent called another over and the three of us talked it through, but for several minutes there I was pretty sure I'd be missing a connecting flight.

So I made their jobs (and my trip) a hell of a lot easier on all of us by showing them brokerage and bank statements that proved I lived in Europe. They didn't ask for this level of detail but were sorta skirting around the issue by being sceptical about my claim that I didn't remember the last time I was in the US. They also asked why I was spending so much time in Sub Saharan Africa and The Middle East.

My passport already had three extension books in it, and even then was dense with visas and entry stamps so it all sorta fit. I realise that I didn't have to answer their queries, but I sensed the balance of power was on their side and accomodated.

At that point I hadn't been back in the US for well over three years so my recollection of specific dates was pretty poor and that's what set them off.

Now I track it in my PDA so even though I've been doing some day trips to New York we're fine.
posted by Mutant at 12:57 PM on September 19, 2006

oliver writes "once you reach Customs you are on US soil and therefore have the protections of US law, so you have the right to refuse to answer questions."

Note that you have no right to refuse to be seached or to have your belongings searched. This includes the complete contents of any electronic storage devices you might be transporting. If it takes 3 hours for them to search your video iPod they are within their rights to do so.
posted by Mitheral at 1:09 PM on September 19, 2006

Does the bill of rights still apply to me when speaking to the nice man at Customs/Immigration?

First, consider that while you're in the airport's international zone, you technically aren't in the United States yet, and you can be refused entry for any number of reasons -- even something as simple as losing your passport. So while you're speaking the nice man from Homeland Security, you're not "in" the U.S. just yet.

Moreover, you are not validated to even BE a U.S. citizen until you provide proper documentation, so it's questionable just what rights you really have at this point.

So, going along with your idea of refusing to cooperate ... if you really just clammed up and didn't cooperate at all, and didn't provide any kind of documentation ... at the end of the discussion, you could simply be denied entry and pointed back to the airline gates with instructions to go back to where you came from. And if you refused that, the guys from Homeland Security would arrest you and treat you as a foreign national until you proved otherwise.
posted by frogan at 1:16 PM on September 19, 2006

First, consider that while you're in the airport's international zone, you technically aren't in the United States yet, and you can be refused entry for any number of reasons -- even something as simple as losing your passport.

I'm pretty sure that you are technically in the US. If you punched someone in the "international zone" would you be able to be prosecuted in a US court? I'm pretty sure you would. Do you have the same rights to due process, etc.? Yep, pretty sure.

Do you have any documentation that indicates otherwise.
posted by bshort at 1:55 PM on September 19, 2006

... if you really just clammed up and didn't cooperate at all...

Sure, I can understand being denied entry in that case. But let's say that I comply with the minimum requirements, like providing my passport and stating that I have nothing to declare. Then I decide to be a royal prick and announce that I'll answer no further questions without the presence of my lawyer.

Once my belongings are searched with a microscope, and I've undergone several body cavity searches. Can they still keep me out? Or will they grudgingly let me in?
posted by kc8nod at 2:07 PM on September 19, 2006

Then I decide to be a royal prick and announce that I'll answer no further questions without the presence of my lawyer.

Once my belongings are searched with a microscope, and I've undergone several body cavity searches. Can they still keep me out? Or will they grudgingly let me in?

Apart from the obvious "why the hell would anybody be stupid enough to want to do this" question, I would think they would let you in. But it would take a lot longer and be a lot more uncomfortable than one would want...and don't forget, the US Passport is controlled by the State Department, so some sort of notation of assholeness would probably go into some gubmint file somewhere.
posted by pdb at 2:14 PM on September 19, 2006

mikepop: yeah, they could do that ... but the problem is that they are on the 'no fly' list--and they apparently would have problems flying into other countries near the us. not sure about mexico, but probably can't fly into canada.

here's the link to the blue
posted by lester's sock puppet at 2:15 PM on September 19, 2006

Once my belongings are searched with a microscope, and I've undergone several body cavity searches. Can they still keep me out? Or will they grudgingly let me in?

They are, according to the CBP website, at liberty to use their discretion about who to detain, and for how long, and what pressure they might exert to find out if you're a threat to national security. Given the Bush administrations continual pushing to detain any and all people, including US citizens, for as long as they like under the flimsiest pretenses without any sort of actual trial, no, I don't think you can assume you will eventually grudgingly be let in.

(You likely would be, of course, but I'm not sure you have much legal protection to assume that's positively going to happen.)
posted by oliver at 2:28 PM on September 19, 2006

This is a moderate derail, but coming back from BC to Washington on the ferry, there were American border patrol agents on the Canadian side of the border. Is their inspection area technically US soil? How do they have any jurisdiction there? Is it just a matter of time before this practice gets extended to the departure point for all sorts of travel methods as a "safety precaution?"
posted by heresiarch at 4:09 PM on September 19, 2006

Once my belongings are searched with a microscope, and I've undergone several body cavity searches. Can they still keep me out? Or will they grudgingly let me in?

From what I understand from the case of Gregory Depres, since you haven't done anything illegal, yes, they have to let you in.

IANAL, though.
posted by INTPLibrarian at 4:40 PM on September 19, 2006

heresiarch,

This is a moderate derail, but coming back from BC to Washington on the ferry, there were American border patrol agents on the Canadian side of the border. Is their inspection area technically US soil?

Yes, it is technically US soil.

How do they have any jurisdiction there?

By agreement with the Canadian government, the same way an embassy is technically foreign land.

Is it just a matter of time before this practice gets extended to the departure point for all sorts of travel methods as a "safety precaution?"

Maybe so. It's certainly the case also at Vancouver International Airport -- you go through US Customs and Immigration before getting on your plane.

My take on this that this is beneficial for Canadians, given how many of them visit the US every year. If you get refused entry, you don't have to take another plane home because you never left. For non-political, non-terrorist offences, (e.g. getting caught with a joint of marijuana), you are likely to be turned over to the RCMP and given a slap on the wrist rather than sitting in jail in the US.
posted by randomstriker at 5:06 PM on September 19, 2006

heresiarch:

That's the norm in Canadian airports and was before 9/11.

The idea is that you clear customs in Canada, and then the US treats your flight (or ferry, I guess) as domestic travel.
posted by ROU_Xenophobe at 5:06 PM on September 19, 2006

The idea is that you clear customs in Canada, and then the US treats your flight (or ferry, I guess) as domestic travel.

It's good if you have to make connections. Having to go through customs after leaving Canada (especially if you do it in Boston) sucks, mainly because you have go to through security again.
posted by oaf at 8:39 PM on September 19, 2006

There are really two questions here: (1) do you have the right to reenter; and (2) do the normal constitutional protections apply to you?

The answer to the second is easier. There are several court cases holding that when you are exiting the United States, the protections of the Bill of Rights do not apply. So, for instance, customs officials can do suspicionless searches of your computer hard drive, luggage, &c. There are no cases holding the contrary (that I know of). I assume the same holding would apply to people seeking to enter the United States; there's as much danger (or, really, more) to the United States on entry than on exit.

But that just means they can question you without counsel, search you, &c. It doesn't mean they can necessarily make you talk.

Then there's the question whether they have to let you in if they determine you are a US citizen who has not committed any crimes. (Setting aside for now the question of "enemy combatants" and other fringe categories the Bush administration comes up with. In any event, it looks like they have lost those cases with respect to US citizens.) This one is more complicated. There's a good case to be made that there's a constitutional right to be in the US if you are a US citizen. (For instance, the first amendment's assembly clause might so require.) I would bet money that, were things to come to it, the Supreme Court would find such a right. But I'm not aware of a case so holding. There are cases finding a right to travel, which would be a logical place to start, but I think (off the top of my head) that any of them specifically apply to travel into the United States. There's also some treaty obligations that would obligate the US to admit a citizen. See here for a decent overview.

(I am a lawyer, but this is not legal advice; I am probably not licensed in your jurisdiction, and I do not represent you. Consult competent counsel.)
posted by raf at 9:59 PM on September 19, 2006 [1 favorite]