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According to the Customs and Border Protection Site:

A U.S. Customs and Border Protection (CBP) officer’s border search authority is derived from federal statutes and regulations, including 19 C.F.R. 162.6, which states that, “All persons, baggage and merchandise arriving in the Customs territory of the United States from places outside thereof are liable to inspection by a CBP officer.” Unless exempt by diplomatic status, all persons entering the United States, including U.S. citizens, are subject to examination and search by CBP officers.

This was not the case when Customs and Border Protection (CBP) officers, whose statutory authority is generally limited to international arrivals shocked passengers of a domestic Delta flight from San Francisco to New York last February 2017.  The confused passengers were told to show their identity documents to uniformed agents of the CBP upon their arrival at John F. Kennedy airport. The two CBP officers positioned themselves on the jetbridge by the door of the airplane, forcing passengers to queue inside and delaying their exit.

The distraught passengers had no choice but to present their identification upon exit. While  CBP spokesman claimed that the process was “nothing new” and consistent with agency policy, it could not have come at a more inopportune time. Days earlier, the Department of Homeland Security outlined their initiatives in support of President Trump’s sweeping executive order targeting millions of “removable aliens” for deportation. The CBP said that its agents acted on an  Immigration and Customs Enforcement (ICE) request and asked to see passengers’ identification as they searched for an immigrant who had received a deportation order after multiple criminal convictions. It was later found out that the individual they are looking for was not on that flight.

Tweets from various passengers bearing photos of the scrutiny on the jet generated public outcry because of a possible violation of the Fourth Amendment. While the government has greater power within 100 miles of a border where two-thirds of the population lives there are both constitutional and statutory limits and they’ve conceded that they lack the authority to stop people generally who are arriving on domestic flights and detaining individual passengers requires reasonable suspicion of a violation of the law. If officers want to check those passengers’ identification documents, they can only do so with the passengers’ consent.

Up in arms

As a result, the Department of Homeland Security faced a class-action lawsuit over the incident potentially caused by a violation of the US constitution.

The action, filed in New York, was part of an ACLU-backed effort to force the department and it’s subsidiary agencies, CBP and ICE, to clarify their position on an unusual and potentially unconstitutional inspection procedure they described as “routine” and consistent with agency policy at the time. The suit sought a permanent injunction barring the government from seizing and conducting warrantless and/or suspicionless identification checks of passengers disembarking from domestic flights.

A better way

Two years later, ACLU announced a settlement agreement to prevent what happened on that fateful February 2017 from happening again.

As part of the agreement, CBP will circulate a nationwide directive to clarify that it is not the agency’s policy or practice of checking the identification of deplaning domestic passengers. If CBP officers need to do so, there are clear protocols restricting those checks:

  • CBP officers must  make sure their words and actions communicate that passenger cooperation is voluntary
  • CBP Officers cannot block a passenger’s ability to get off the plane.
  • CBP officers must make it clear if asked, that a passenger who chooses not to participate will not be punished.
  • CBP officers must ask airline personnel to announce over the plane’s speaker that passenger participation is voluntary.

These protocols clearly outline that detention of domestic flight passengers for suspicionless searches is not allowed. To make sure that every personnel is kept abreast of these guidelines, CBP will be required to recirculate the directive nationwide again in two years.

Legal Assistance

Know your legal rights.

The fourth amendment to the US constitution, adopted in 1792, reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

You are protected by the Constitution whether you are on a domestic flight, on the road, or in your car.

If you or anyone you know believe that your rights have been violated, consulting a legal professional is the best move you can make. Whether you are a U.S. Citizen or a legal immigrant, you are afforded your rights stipulated in the U.S. Constitution. Consult an immigration lawyer in New Jersey as soon as possible for advice on your next step. Immigration attorneys provide legal representation and other legal services in cases involving US immigration issues. Call us at Andres Mejer Law for a free initial consultation.