Thursday, November 01, 2007
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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