8 USC 1357 - Powers of Immigration Officers (Interior Immigration Checkpoints)

[06venomgt]

What is the name of your state (only U.S. law)? Texas

A non-immigrant, who has been admitted through a Port of Entry into the United States, travels to a Border Patrol Checkpoint. Upon arriving at the checkpoint, the non-immigrant hands the Border Patrol Agent their valid BCC and valid I-94.

The Border Patrol Agent asks the non-immigrant questions regarding travel plans, etc..., and the non-immigrant does not wish to answer questions, as the Agent has already received the valid documents. The Agent cites 8 USC 1357, granting him the authority to interrogate any person he believes to be an alien or knows to be an alien. The non-immigrant responds the 5th Amendment protections granted to persons by the Constitution.

The Agent now detains the non-immigrant for being "out of status" for failing to answer the Immigration Officers questions.

Question.

Is it a condition of a non-immigrants status to answer questions posed by an Immigration Officer?

Does the Constitutional right, as it applies to non-immigrants to remain silent, supersede the authority granted to Immigration Officers to question them?

 

[CdwJava]

They have very broad powers of detention at the border and do not need either "reasonable suspicion" or "probable cause" to detain and/or search. They can refer someone to a secondary inspection area for grounds that constitute LESS than "reasonable suspicion," but cannot detain anyone for an "unreasonable" amount of time. However, what might be "unreasonable" can be fluid.

So, if you choose to stand on your right to silence, expect the Immigration folks to consider their right to detain you for further inspection and search. Your call ... you can make it easier on yourself, or you can make it harder.

 

[06venomgt]

They have very broad powers of detention at the border and do not need either "reasonable suspicion" or "probable cause" to detain and/or search. They can refer someone to a secondary inspection area for grounds that constitute LESS than "reasonable suspicion," but cannot detain anyone for an "unreasonable" amount of time. However, what might be "unreasonable" can be fluid.

So, if you choose to stand on your right to silence, expect the Immigration folks to consider their right to detain you for further inspection and search. Your call ... you can make it easier on yourself, or you can make it harder.

Thanks for your response.

The Supreme Court has found that an average of about five minutes to be reasonable, however, as you stated it can be "fluid" depending upon the circumstances. What I am most trying to find out is whether it is a violation of status, once a non-immigrant has been admitted through a Port of Entry, to refuse to answer questions posed to them by Immigration Officers?

 

[Zigner]

Why ?

 

[OHRoadwarrior]

The Inspector has broad leeway to conduct an investigation and can revoke a visa already granted as they choose, at the border. The only recourse is to file an appeal with USCIS if they do. Refusing to answer questions that are related to purpose and status for entering the US are fair game. You can refuse to answer. They can detain you and revoke your visa.

 

[CdwJava]

Thanks for your response.

The Supreme Court has found that an average of about five minutes to be reasonable, however, as you stated it can be "fluid" depending upon the circumstances.

Where have you found "five minutes?" That certainly is NOT the case with most detentions nor with those I glanced at on this issue with Immigration.

But, as with any Fourth Amendment issue, the totality of the circumstances would have to be reviewed by a court. And it is highly unlikely that you will be spending thousands of dollars on a court case that involves merely being inconvenienced for a few minutes.

What I am most trying to find out is whether it is a violation of status, once a non-immigrant has been admitted through a Port of Entry, to refuse to answer questions posed to them by Immigration Officers?

First, you gotta stop with the "non-immigrant" line. They can detain and speak to anyone crossing the border, immigrant or not. Their authority is NOT simply immigration, but also to control contraband and undesirables coming over the border and the law grants them a good deal of leeway to do it.

However, they cannot FORCE you to say anything. But, they can prolong your detention by singling you out if you choose to be uncooperative. Right or wrong, that can and does happen. So, you have to make a decision, is your silence worth the attention and the inconvenience? If you think it is, then go for it.

 

[06venomgt]

Where have you found "five minutes?" That certainly is NOT the case with most detentions nor with those I glanced at on this issue with Immigration.

But, as with any Fourth Amendment issue, the totality of the circumstances would have to be reviewed by a court. And it is highly unlikely that you will be spending thousands of dollars on a court case that involves merely being inconvenienced for a few minutes.


First, you gotta stop with the "non-immigrant" line. They can detain and speak to anyone crossing the border, immigrant or not. Their authority is NOT simply immigration, but also to control contraband and undesirables coming over the border and the law grants them a good deal of leeway to do it.

However, they cannot FORCE you to say anything. But, they can prolong your detention by singling you out if you choose to be uncooperative. Right or wrong, that can and does happen. So, you have to make a decision, is your silence worth the attention and the inconvenience? If you think it is, then go for it.

The reason that I use the non-immigrant line is due to the difference in information that I have received regarding this subject. Also, let me be clear that I am not talking about Border Crossings. I am talking about inland Border Patrol Immigration Checkpoints. I believe that once a person has been admitted through a Border Crossing, they are endowed with Constitutional protections in dealing with the government. I am wondering if these protections are limited to a non-immigrant when being engaged by Border Patrol Agents at Immigration Checkpoints?

 

[Zigner]

The reason that I use the non-immigrant line is due to the difference in information that I have received regarding this subject. Also, let me be clear that I am not talking about Border Crossings. I am talking about inland Border Patrol Immigration Checkpoints. I believe that once a person has been admitted through a Border Crossing, they are endowed with Constitutional protections in dealing with the government. I am wondering if these protections are limited to a non-immigrant when being engaged by Border Patrol Agents at Immigration Checkpoints?

The answers don't change no matter how many times you ask the question.

 

[06venomgt]

The answers don't change no matter how many times you ask the question.

My question isn't being answered as it pertains to immigration checkpoints, AFTER a non-immigrant has been admitted to the United States. The answers were based on a non-immigrant seeking admission at the Port of Entry, not at an Immigration Checkpoint.

I know certain "rights" are questionable at the border.

 

[Zigner]

My question isn't being answered as it pertains to immigration checkpoints, AFTER a non-immigrant has been admitted to the United States. The answers were based on a non-immigrant seeking admission at the Port of Entry, not at an Immigration Checkpoint.

I know certain "rights" are questionable at the border.

Read the thread again.

 

[tranquility]

My question isn't being answered as it pertains to immigration checkpoints, AFTER a non-immigrant has been admitted to the United States. The answers were based on a non-immigrant seeking admission at the Port of Entry, not at an Immigration Checkpoint.

I know certain "rights" are questionable at the border.

The problem develops from the difference between Supreme Court decisions and federal law.

8 USC § 1357 - Powers of immigration officers and employees
(a) Powers without warrant
Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—
(1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States;
(2) to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States;
(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States;
(4) to make arrests for felonies which have been committed and which are cognizable under any law of the United States regulating the admission, exclusion, expulsion, or removal of aliens, if he has reason to believe that the person so arrested is guilty of such felony and if there is likelihood of the person escaping before a warrant can be obtained for his arrest, but the person arrested shall be taken without unnecessary delay before the nearest available officer empowered to commit persons charged with offenses against the laws of the United States; and

Title 8: Aliens and Nationality

CHAPTER I: DEPARTMENT OF HOMELAND SECURITY

SUBCHAPTER B: IMMIGRATION REGULATIONS

PART 287: FIELD OFFICERS; POWERS AND DUTIES

287.1 - Definitions.

(a)(1) External boundary. The term external boundary, as used in section 287(a)(3) of the Act, means the land boundaries and the territorial sea of the United States extending 12 nautical miles from the baselines of the United States determined in accordance with international law.

(2) Reasonable distance. The term reasonable distance, as used in section 287(a) (3) of the Act, means within 100 air miles from any external boundary of the United States or any shorter distance which may be fixed by the chief patrol agent for CBP, or the special agent in charge for ICE, or, so far as the power to board and search aircraft is concerned any distance fixed pursuant to paragraph (b) of this section.

(b) Reasonable distance; fixing by chief patrol agents and special agents in charge. In fixing distances not exceeding 100 air miles pursuant to paragraph (a) of this section, chief patrol agents and special agents in charge shall take into consideration topography, confluence of arteries of transportation leading from external boundaries, density of population, possible inconvenience to the traveling public, types of conveyances used, and reliable information as to movements of persons effecting illegal entry into the United States: Provided, That whenever in the opinion of a chief patrol agent or special agent in charge a distance in his or her sector or district of more than 100 air miles from any external boundary of the United States would because of unusual circumstances be reasonable, such chief patrol agent or special agent in charge shall forward a complete report with respect to the matter to the Commissioner of CBP, or the Assistant Secretary for ICE, as appropriate, who may, if he determines that such action is justified, declare such distance to be reasonable.

(c) Patrolling the border. The phrase patrolling the border to prevent the illegal entry of aliens into the United States as used in section 287 of the Immigration and Nationality Act means conducting such activities as are customary, or reasonable and necessary, to prevent the illegal entry of aliens into the United States.

(d) Arrested by federal, state, or local law enforcement official. The term arrested, as used in section 287(d) of the Act (as amended by section 1701 (Subtitle M) of the Anti-Drug Abuse Act of 1986, Pub. L. 99-509), means that an alien has been?

Almeida-Sanchez v. United States - 413 U.S. 266 (1973)
Syllabus

Petitioner, a Mexican citizen and holder of a valid work permit, challenges the constitutionality of the Border Patrol's warrantless search of his automobile 25 air miles north of the Mexican border. The search, made without probable cause or consent, uncovered marihuana, which was used to convict petitioner of a federal crime. The Government seeks to justify the search on the basis of § 287(a)(3) of the Immigration and Nationality Act, which provides for warrantless searches of automobiles and other conveyances "within a reasonable distance from any external boundary of the United States," as authorized by regulations to be promulgated by the Attorney General. The Attorney General's regulation defines "reasonable distance" as "within 100 air miles from any external boundary of the United States." The Court of Appeals upheld the search on the basis of the Act and regulation.

Held: The warrantless search of petitioner's automobile, made without probable cause or consent, violated the Fourth Amendment. Pp. 413 U. S. 269-275.

(a) The search cannot be justified on the basis of any special rules applicable to automobile searches, as probable cause was lacking; nor can it be justified by analogy with administrative inspections, as the officers had no warrant or reason to believe that petitioner had crossed the border or committed an offense, and there was no consent by petitioner. Pp. 413 U. S. 269-272.

(b) The search was not a border search or the functional equivalent thereof. Pp. 413 U. S. 272-275.

452 F.2d 459, reversed.

STEWART, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 413 U. S. 275. WHITE, J., filed a dissenting opinion, in which BURGER, C.J., and BLACKMUN and REHNQUIST, JJ., joined, post, p. 413 U. S. 285.

Page 413 U. S. 267