Thursday, November 01, 2007
No Borders Camp: Guide to Crossing Borders and Encounters with Law Enforcement
Your Rights at a Border Crossing:
Hopefully, you already know your rights if stopped or questioned by the police. What you may not know is that slightly different rules apply at or near the border.
First, some terminology. Customs and Border Protection (CBP) is the branch of the Homeland Security Department that is in charge of enforcing U.S. trade and immigration laws, and the Border Patrol is the CBP's mobile law-enforcement arm. The CBP also has non-mobile law enforcement agents, whom you might encounter at places like airports.
No Borders Camp: Suggestions for Crossing Borders and Encounters with Law
Enforcement
Below is a guide for activists dealing with border crossing and encounters
with law enforcement during the Calexico / Mexicali No Borders Camp. It
was partially pirated from an article that appeared in July in the Earth
First! Journal.
Before we get started, we should be clear that this was written
specifically for crossing into the United States and dealing with U.S. law
enforcement. An entirely different set of laws and conditions exist in
Mexico. If you are crossing into or participating in activities in
Mexico, the best advice we can give you is to be smart and follow the lead
of our compañer@s down there.
Finally, in the interests of full disclosure and covering our butts, we
need to mention that we are not lawyers and these guidelines do not
constitute legal advice. So use your own best judgment, eh?
Your Rights at a Border Crossing:
Hopefully, you already know your rights if stopped or questioned by the
police. What you may not know is that slightly different rules apply at or
near the border.
First, some terminology. Customs and Border Protection (CBP) is the branch
of the Homeland Security Department that is in charge of enforcing U.S.
trade and immigration laws, and the Border Patrol is the CBP's mobile
law-enforcement arm. The CBP also has non-mobile law enforcement agents,
whom you might encounter at places like airports.
For the purposes of the law, an "entry point" is any place at which people
may legally enter the U.S.-such as a border crossing or an international
airport-regardless of how far that location is from the actual physical
boundary. The only place where it is legal to enter the United States is a
designated entry point. The "border" for the purposes of defining where a
Border Patrol search may take place, refers to the actual physical
boundary beyond which you are theoretically no longer in the U.S.
CBP agents do not need a warrant to search you, your luggage or your
vehicle at an entry point. You have no power to withhold consent for such
a search. One exception to this may be when it comes to personal
documents. Based on our conversations with lawyers, we believe that CBP
has no right to read your papers. Of course, this may happen anyway. If it
does, say “I do not consent to having my papers read”, and be careful what
you bring with you!
You are required to answer questions about your citizenship or migration
status, and you should probably answer basic questions about where you
went and what you’ve been up to. The key here is that CBP is only
authorized to make sure that you are legally entitled to enter the U.S.
and that you're not smuggling in any prohibited items.
That means the feds are allowed to make sure that there are actually
papers (not smuggled items) inside that briefcase, but for them to read
those papers probably constitutes an invasion of privacy. Likewise, any
particularly specific details (for example, questions about who you’ve
been with or any protests you might have attended, and especially
questions unrelated to your travel or luggage such as your political
beliefs or activist history) fall into the category of "I would rather not
answer, thanks"-just like if a cop asked you those questions during a
traffic stop.
Never forget that CBP can, and probably will, lie to you about what your
rights are. When one activist expressed his reluctance to answer CBP's
questions, he was threatened with not being allowed to enter the country.
If you are a U.S. citizen this threat will not hold water. If you are a
U.S. citizen, CBP cannot legally keep you out of the country. They can
arrest you if you have broken the law, but that is the extent of their
authority.
This gets trickier for non-citizens. People who are not citizens and don't
have green cards have the burden of showing that they are eligible to
enter the U.S. So it is important that you answer questions, and make sure
that all of your papers are in order and on your person before you go
through an entry point.
Anytime CBP has issues with a person, they will send the person to
secondary inspection, and then possibly deferred inspections. Questioning
can take hours, and may be rescheduled. To be clear, questions regarding
the exercise of constitutional rights (religion, political opinion, etc)
are inappropriate, but unfortunately they occur regularly. If you are
prohibited from entering the United States, CBP will have to give you a
reason. If this happens contact the No Borders Camp legal committee.
You have the right to have an attorney with you if you are being
questioned. This means that you can decline to answer questions without an
attorney present. Beyond the obligatory answers already mentioned, you
should treat questioning by CBP just like questioning by any other law
enforcement agent. They most likely do not have to provide you an
attorney, so you will have to ask to call someone from the legal team.
Make sure you have important phone numbers on you at all times.
Magic Words: “I’m going to remain silent, I want to speak with a lawyer.”
So what happens if CBP starts asking you inappropriate questions? You
refuse to answer, perhaps telling them that their questions are irrelevant
or that the answers are none of their business. If CBP insists, you should
politely request to speak to a lawyer. If they try to read your papers,
politely object that they have no right and clearly state your lack of
consent. Look at it this way: the worst they can do is arrest you, at
which point you still have the right to remain silent and speak with a
lawyer. And even this is pretty unlikely, as it's fairly standard
police policy to stop questioning people once they have unequivocally
refused to answer. So don't let them intimidate you!
Your Rights Near the Physical Boundary:
Near the physical boundary, your legal protections are even stronger than
at an entry point.
The Border Patrol is allowed to stop and question you at any permanent or
semi-permanent highway checkpoint within 50 miles of the boundary, to
determine if you are transporting contraband or undocumented migrants.
They may not, however, search your vehicle unless they have probable cause
(i.e., a good reason) to believe that you are breaking customs or
immigration law. That means that when they ask if you mind opening your
trunk, you can say, "Yes, I mind, and I'm not gonna do it." Likewise, you
can refuse to answer the same irrelevant questions as at an entry point.
If you're within 50 miles of the border but not at a checkpoint, the rules
for Border Patrol are more stringent still. Just like police, la migra
needs probable cause just to pull you over. Border Patrol officials have
no special right to question or search you. Treat these stops like any
stop by the police, keeping in mind that Border Patrol only has
jurisdiction over customs and migration law-they can't write you a
speeding ticket, although they might be able to detain you until a police
officer arrives if they really want to.
A Border Patrol checkpoint must be clearly posted in its approach. If you
are stopped by the Border Patrol at any location that is not clearly
posted, you should treat this like a regular traffic stop and act
accordingly.
Finally, within 50 miles of the border, the Border Patrol does not need a
warrant to cross a private property line, (and certainly not to enter
public property) but they do need a warrant to enter a residence.
Preventive Security Procedures:
Knowing your rights is all well and good, but we all know that illegal
searches happen all the time. So here are a few tips for making that CBP
search go as smoothly as possible:
*Do not carry any papers related to actions that you or your comrades
intend to or have participated in during the week of the camp. In the
interest of a general security culture, it's always a good idea to deny
them information.
*Do not carry personal information such as the names and addresses of
activist contacts. Do not carry personal correspondence. Do carry the
number of the legal hotline!
*If you are traveling with a laptop, consider crossing the battery
separately or taking other measures, such as whole disk encryption, to
make sure that the computer cannot be turned on and accessed by anyone
but you.
*Do not cross with photos, video or other materials that could be
incriminating to yourself or others. If you want to release video, do so
publicly, on the internet through the IMC. Do not allow the police to
confiscate or gain prior access to your footage, especially if this could
be used against somebody in court. [Never post potentially incriminating
information about other people on the internet. You are handing the
prosecutor the evidence they need to convict your comrades.]
*Maybe this should go without saying, but for crying out loud, do not
travel with contraband! You should assume that you will be subjected to
intense scrutiny at any entry point, and carrying drugs or other
prohibited items is like begging to be arrested.
*Avoid traveling and crossing the border alone, because it makes you more
emotionally vulnerable to police pressure tactics. If you must
travel/cross alone, make sure that someone knows you are going and knows
to start looking for you or to contact a lawyer if you do not get in
touch by a prearranged time. Even if you never need to put this plan into
effect, knowing that you have it will make you much calmer if the police
start making threats.
*Remember that you may be questioned on either end of your trip and that
different laws apply in the U.S. and Mexico. It should be clear that the
US government selectively shares information with other countries'
security forces.
You may be asked both very targeted questions and much more general or
bizarre ones (have you ever been arrested? do you know anyone in
Afghanistan?).
*Keep in mind that it's illegal to lie to a federal official who is
engaged in their duties. Who we are, what we are doing and our political
orientation will be no secret during the week of the camp. Mexicali is a
large city and there is a lot of traffic back and forth through the port
of entry. It may be possible to blend in and avoid being identified as a
no borders camper. But if questioned, "I don't want to answer" is a
perfectly valid answer.
*If you do choose to obscure what you are up to, you need to stick to
your story no matter what. It's a common interrogation technique to keep
asking the same question over and over, in the hopes of getting a suspect
to change their story. Don't fall for this highly effective technique!
Remember that a ridiculous story that is adhered to obstinately can be
more powerful than a complicated truth (just look at the government's
stories about Iraq and al-Qaida). And once you've backtracked on your
story, you can be damn sure that the cops are not going to leave you
alone-they're just gonna start digging harder.
*Finally, be prepared for the police to play mind games with you. A few
of the more common ones are: acting suspicious of everything you say;
"good cop, bad cop"; claiming that they "already know everything" or can
find out anyway; claiming that some piece of information is "not a big
deal"; and asking you why you're acting so nervous or claiming that your
own behavior caused them to be suspicious of you in the first place.
Don't let them psych you out. Stay calm, stay silent-and above all, if you
follow the advice above, you can be confident they won’t find any
information from searching you!
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