Your Rights at Border Crossing Points (“Ports of Entry”)
Federal law gives law enforcement more legal authority at the border than they usually have in other places. Agents at ports of entry may question people about their citizenship and what they are bringing into the country. Law enforcement does not need a warrant, consent, or need to suspect wrongdoing to justify conducting a “routine search” such as searching your luggage or vehicle at the border. You have a right to remain silent, but officials may deny you entry to the U.S. or detain you for search and/or questioning.
Your Rights at Border Patrol Checkpoints within the 100-Mile Zone
U.S. Customs and Border Protection (CPB) has multiple Border Patrol Checkpoints within 100 miles of the border. At these Checkpoints:
- Checkpoint stops should be brief. All that is required is that you respond to a brief question or two. You may also be asked to produce documentation that shows you have a right to be in the U.S.
- You have the right to remain silent, though doing so will usually result in agents extending the stop of your car to verify your immigration status. Agents are not likely to let you proceed until they know whether you are legally in the U.S. (See below).
- Border Patrol can and will refer cars for secondary inspection (more intensive questioning and proof of legal status) if they have questions about someone’s legal status.
- Border Patrol agents have the right to interrogate, search and arrest any person they suspect is in the U.S. illegally. They do not have the right to search the inside of a vehicle without probable cause.
- It is a felony offense punishable by up to 5 years in prison to flee a federal law enforcement checkpoint at excessive speed.
- You may videotape Border Patrol interactions on private property, in vehicle stops, and at checkpoints, but not on government property at a port of entry.Secondary searches usually last less than half an hour, but some motorists placed in secondary search have been searched and detained for prolonged periods of time, pulled out of their cars, had their wallets taken, and charged with traffic violations. Others have been handcuffed, physically assaulted, tased and injured as agents broke into their cars.Your rights at these checkpoints may be different in practice than they are according to the law. Although Border Patrol agents are not supposed to search vehicles without a warrant or probable cause of a crime, in practice, they sometimes do. Although against the law, immigration agents frequently engage in racial profiling. Agents have also been known to subject people to extended detentions, interrogations unrelated to citizenship, invasive searches, verbal harassment, and even physical assault.
Engaging in Civil Disobedience with Border Patrol
Refusing to answer agents’ questions at a checkpoint is an important political decision, but can have consequences. If you choose to engage in civil disobedience by refusing to answer agents’ questions at a checkpoint, be prepared to stay for an extended period of time at the checkpoint. There is one prominent Arizona case where a motorist who refused to cooperate was pulled into secondary search, dragged out of their car, and arrested and charged with failure to follow orders of law enforcement and failure to show driver’s license upon request. No one has been prosecuted with federal or state criminal charges for failure to cooperate with border patrol agents, but those engaging in civil disobedience should be prepared to stay for an extended period of time at the checkpoint and be able to return to Arizona to face traffic charges.
You risk arrest if you place anything on, attempt to pass anything through, or climb on the Nogales border wall whether you are in the United States or Mexico.
Your rights with immigration agents and law enforcement outside of the border or Border Patrol Checkpoints
Outside of the border and checkpoints, Border Patrol and other immigration agents are bound by laws that bind other law enforcement agents:
- Border Patrol “roving patrols” cannot pull over vehicles to question occupants about their immigration status unless agents have a “reasonable suspicion” of an immigration violation or crime. Reasonable suspicion is more than just a “hunch.” It is illegal for Border Patrol to rely on the race or ethnicity of a driver or passenger to justify a stop.
- If you are approached on the street or in a public place, you do not have to answer officer’s questions or provide identification. Ask if you are free to go. If you are not free to go, you are under arrest and have the right to remain silent.
- The police can pat down the outside of your clothing only if they have “reasonable suspicion” that you might be armed and dangerous.
- During a car stop, the police can only search your car if they have your consent or have probable cause to believe that criminal activity is taking place, that you have been involved in a crime, or that evidence of a crime is in your car.
- If you are in jail, detention, or otherwise detained, you have the right to remain silent and the right to speak to an attorney. A citizen of another country also has the right to speak to their consulate. Do not sign papers without speaking to a lawyer.
Contact firstname.lastname@example.org with any legal questions.
SOAW Legal Hotlines will be staffed over the Convergence weekend 10/7-10/10:
English speaking hotline: 504-484-9710; Spanish legal hotline number is: 520-415-6331
Important and Necessary Travel Information
Many events and actions will take place this year in the Mexico-side of Nogales which means many demonstrators will be leaving and re-entering the U.S. In addition, Border Patrol checkpoints when leaving Nogales, AZ may require certain documentation such as a valid state Drivers License or other documents for non-US citizens. Please keep in mind the following:
- US Citizens are required to bring a valid US Passport or US Passport Card to re-enter the U.S. In practice, U.S. citizens often forget their Passport or Passport Card when traveling to Nogales, Mexico, yet are often allowed back in the U.S. However, CBP reserves the right to deny entry to any person. Those claiming U.S. Citizenship, even with a valid Passport, are likely to be profiled due to their race, skin color, accent, gender, and/or political affiliation. We therefore highly discourage traveling into Nogales, Sonora without a valid U.S. Passport or U.S. Passport Card, and do not have the capacity to support those that are denied entry into the U.S. for lack of required documentation.
- Permanent Residents are REQUIRED to present an unexpired Green Card (I-551, Permanent Resident Card) to re-enter the U.S. It is highly recommended that Permenent Residents also bring additional identity documents, such as a valid State or Federal ID card (eg, driver’s license) and/or a valid foreign passport to enter Mexico and re-enter the U.S. For additional information, please visit the USCIS website.
- DACA and TPS recipients – You are REQUIRED to obtain an I-131 Advance Parole Document to in addition to a valid foreign passport to re-enter the U.S. Processing times for Advance Parole Document are approximately 3 months, and you should therefore not plan on traveling into Mexico unless you have already obtained an Advance Parole Document, and/or knowingly risk/intend on permanently remaining outside of the U.S. and relinquishing your DACA or TPS status.
- Undocumented persons – Undocumented persons will not be able to re-enter the U.S. without authorization. Again, there will be a Person of Color Space in Tucson, Arizona so that undocumented persons who choose not to travel outside the country may attend the SOAW Border Convergence/Encuentro after learning about and accepting the risks related to traveling to Tucson. More travel information also available at: http://www.soaw.org/border/encuentroborder-convergence-travel-considerations-and-know-your-rights-resources/
For more information see:
- ACLU Border Litigation Project “US Border Patrol Interior Checkpoints: Frequently Asked Questions”;
- ACLU “The Constitution in the 100 Mile Border Zone”
- Wes Kimbell, “America’s Internal Checkpoints: Refuseniks fight back against feds demanding papers,” Reason.com 12/28/2013
- Cindy Casares, “Border Patrol Takes ‘No’ for an Answer at Internal Checkpoints,” Texas Observer 2013
- Hannah Robbins, “Holding the Line: Customs and Border Protection’s Expansion of the Border Search Exception, 36 Cardozo Law Review 2247 (2015)