Refusing To Answer Questions At Passport Control
Sherman Oaks, California
When I re-entered the United States, I wondered how the immigration officer had the authority to ask me questions about where I had traveled.
Turns out, he didn’t.
When a traveller enters the United States, the traveller's passport is reviewed by a Customs and Border Protection (CBP) officer. At the immigration checkpoint, the CBP officer has certain stated powers – and the power to question a U.S. citizen about his or her travels is not one of them.
Federal regulations state that, if a person entering the country claims to be a U.S. citizen, the traveller “must establish that fact to the examining officer’s satisfaction and must present a U.S. passport if such passport is required . . . .” 8 C.F.R. 235.1(b). If the officer is not satisfied with the claim of U.S. citizenship, the traveller is treated as an alien.
To help ascertain citizenship, a CBP officer can question the traveller under oath. 8 U.S.C. section 1225(a)(5).
However, the Act of Congress which grants CBP officers the right to examine travellers under oath specifically limits the scope of the questioning to inquiries “regarding the purposes and intentions of the applicant in seeking admission to the United States.” Id. These questions can include “the applicant’s intended length of stay and whether the applicant intends to remain permanently or become a U.S. citizen, and whether the applicant is [otherwise prohibited from entering the U.S.].”
Neither the statute nor any of its attendant regulations grants CBP a broad right to interrogate U.S. citizens as a condition of re-entry. Under the plain language of the law, if a U.S. citizen is not under oath, CBP can ask questions to “establish [the] fact” of citizenship and, if a U.S. citizen is placed under oath during the questioning, CBP can make inquiries “regarding the purposes and intentions of the applicant in seeking admission to the United States.”
Under my reading of the law, a U.S. citizen would be within his or her rights to present the CBP officer with a valid passport and refuse to answer any questions which did not bear directly on the issue of U.S. citizenship.
Not that I recommend it.
The moment a person refuses to answer additional questions, that traveller will have committed “contempt of cop.” The CBP officer is only supposed to detain a returning U.S. citizen if the officer has cause to think that the traveller is not a U.S. citizen or has otherwise committed a crime. But it’s eminently possible that a person who asserts his or her rights, however politely, will receive a disproportionate negative reaction. In a worst case scenario, a CBP officer with a bruised ego could make a bad faith determination that a returning U.S. citizen is actually an alien, consigning the traveler to the nether world of alien processing.
“Then why make a fuss over something so trivial?” you may ask.
Because trivial is in the eye of the beholder. Because government officers should not be duping citizens into revealing information the citizen has no obligation to reveal. Because, as the Identity Project reported last week, the information provided to CBP officers is entered into government databases. Because power ceded by citizens to government is rarely given back. Because, every once in a while, law enforcement officers need to be reminded that they only have the limited powers that citizens choose to give them.
And because it’s none of their damned business.
(Note: In this post, I am referring only to the passport inspection, not to the separate customs inspection. The ability of CBP officers at the customs checkpoint to ask questions, and a citizen's obligation to reveal information on Form 6059B, will be discussed in a later post.)