Immigration crackdown: Know your rights at the U.S. border and other ports of entry

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Federal immigration and customs agents have long had lots of leeway to question and search people at U.S. ports of entry, but recent reports of some travelers from Western nations facing detention have spurred more concerns for travelers.

Amid the Trump administration’s immigration crackdown, which has also targeted visa-holders and permanent residents connected to pro-Palestinian protests and activities, immigration experts recommend travelers inform themselves about how they can respond to questioning according to their particular circumstances.

The U.S. Constitution generally affords people the right to remain silent and the right to refuse a search without a warrant, but the extent of these protections are not the same at airports and border ports of entry, especially for immigrants such as visa holders.

“What it really boils down to is the status that that person has in terms of how they should decide how to respond,” said Kate Lincoln-Goldfinch, an immigration attorney based in Austin.

And though people can choose to remain silent, some experts say it may be in a person’s best interest to advocate for themselves, such as by explaining to agents that they fear returning back to their home country or by proving they’ve been in the U.S. for more than two years to avoid expedited removal.

Here’s what citizens and immigrants need to know about their rights in these ports of entry.

What should people expect when traveling to or re-entering Texas?

Texas has 28 international bridges and crossings along the U.S.-Mexico border and more than a dozen international airports where Texans and people traveling into the state may encounter federal immigration and customs agents.

At these ports of entry, agents from the different branches of the Department of Homeland Security, most commonly from U.S. Customs and Border Protection, may inquire about the legal status of the people seeking entrance into the U.S. to determine if they can be admitted.

They may also ask about the purposes of travel or additional personal questions, particularly for visa or green card holders whose status is tied to conditions such as studies, employment or marriage, said Kathleen Martinez, an immigration attorney based in Dallas.

Federal agents may also search luggage without a warrant at the airport, as well as belongings inside vehicles at the border, according to the American Civil Liberties Union. Though there has been some debate about the legality of electronic device searches without warrant, CBP also may request to search cell phones and devices or confiscate them.

How much information or cooperation must be given to be admitted at ports of entry depends on a person’s immigration status.

What rights do citizens have at the border and airports?

A U.S. citizen cannot be denied entry and cannot be put into immigration detention, but they can have their items confiscated and face questioning or secondary inspections, said Kate Lincoln-Goldfinch, an Austin-based immigration attorney. This means a citizen could refuse to give their password for their phone to be searched, but their phone could be confiscated and their entry may be delayed. A citizen should only be detained if there’s a criminal issue against them, Lincoln-Goldfinch said.

If you do allow your phone to be searched, you can choose to unlock it yourself rather than give agents your password, said Valeria Alvarado, a legal assistant for the ACLU of Texas.

What rights do permanent residents have at the border and airports?

A permanent resident can face secondary inspection interviews and be detained if they're held to be deportable, Lincoln-Goldfinch said. Permanent legal residents can be deemed deportable for immigration fraud, such as falsifying a marriage for a green card or living outside of the U.S. for an extended time, and for certain crimes, such as murder, rape or drug-related offenses.

This could also include green card holders who have engaged in protest behavior, Lincoln-Goldfinch said. The Trump administration has targeted some legal residents for pro-Palestinian behavior, declaring it a threat to U.S. foreign policy interests.

Green card holders have the right to plead their case, and immigration judges, not agents, have the authority to decide whether a green card can be revoked.

If people do face detention or issues, Alvarado noted people have the right to translation and to not sign anything they don’t understand and wait for an attorney to be present.

What rights do visa holders have at the border and airports?

People seeking admission with a visa or a visa waiver have the least rights, Lincoln-Goldfinch said. CBP agents may question and search people to see if they meet the conditions of their visa, but the agent can decide to not allow them in.

“They probably want to consider being the most cooperative, because the consequence for non-cooperation will probably be denial of entry,” Lincoln-Goldfinch said.

Does Customs and Border Protection have authority beyond airports and border bridges?

CBP also has internal checkpoints, where Border Patrol agents typically stop vehicle drivers and passengers to ask about their citizenship or immigration status.

There are many permanently stationed checkpoints like these along the Texas-Mexico border, but CBP or Border Patrol agents can also choose to create a makeshift “tactical checkpoint” with markers like traffic cones, said Valeria Alvarado, a legal assistant for the ACLU of Texas.

Evading these checkpoints is a felony, so people should take them seriously, she said. Agents are supposed to generally keep questioning short, she added.

What is the 100-mile border zone?

CBP has also cited U.S. immigration law to be able to board a bus or train without a warrant anywhere within 100 air miles, or roughly 115 standard miles, of the U.S.’s borders and coastline. This includes cities not typically considered to be a part of the border like Houston and Los Angeles. CBP agents’ jurisdiction in this zone only applies to immigration violations and federal crimes, and a certain level of suspicion may be required for agents to hold you depending on the location and the length of the detention. Texas law requires people to provide their name, but people can still choose to otherwise remain silent within this zone, Alvarado said.

Read more about rights within the 100-mile border zone from the ACLU.

Can immigrants travel right now? How can people prepare to travel?

Both Martinez and Lincoln-Goldfinch said they are giving clients recommendations on whether they should travel out of the country on a case by case basis. If possible, they recommend that people consult with an immigration attorney or at least have contact information for a few attorneys in case they face issues while traveling.

Within the U.S., such as for domestic flights, Lincoln-Goldfinch said people can travel with a valid state ID. But for international flights or for crossing the border, people should make sure to have their U.S. passport and immigrants should also have their visa or green card on them.

Note that agents from the Transportation Security Administration on May 7 will begin checking that a traveler’s state ID was issued under federal Real ID standards. This is indicated with a star on the ID. As enforcement is phased in, those without a Real ID-compliant state ID may temporarily still be allowed to travel if they go through extra screening. Read how to get a Real ID-approved Texas drivers license or state ID here.

Due to the Trump administration's expedited removals for immigrants in the country for less than two years, immigrants may want to carry with them proof that they’ve been in the country for more than two years.

Immigration attorneys also suggest that people, and immigrants in particular, prepare for detention or any issues by making plans with their families, getting a power of attorney document to allow someone else to take care of their property and a voluntary caregiver authorization form for their children in case of deportation.

And if a relative goes missing without notice, families can see if they’re in detention through an Immigration and Customs Enforcement database.

For more information about undocumented immigrants’ rights at home or at work you can read this guide.

Editor's note: This story has been updated to clarify the mileage of the 100-mile border enforcement zone, which is based on air miles.

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