Access to legal counsel at port of entry

Old Jun 5, 2015, 5:31 am
  #1  
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Access to legal counsel at port of entry

Recently flew into BOS, something I've been doing somewhat regularly lately. While my previous entries were completely routine, this time the CBP officer sees someting on his screen (I don't know what, because they use a privacy filter, which is ridiculous given that they have to reveal what is that system in response to a FOIA request, so why should there be any concern about a traveller viewing something he has the right to see?) and sternly directs me to "wait over there," indicating a spot to the side. The officer refused to provide any sort of clarification, so at that point I had no idea what was going on so, "out of an abundance of caution," I pulled out my phone a rang my attorney. Immediately 6 CBP officers surround me and tell me I "can't" use my phone. While the line is ringing, I explain politely that I am ringing my attorney and that in fact I "can" do so. They continue to threaten me while I leave a voicemail message advising my attorney of the situation.

After I hang up, I am escorted downstairs to the secondary inspection area while my escort informs me that I "don't have the right to an attorney" because I "am not yet in the USA." I point out that if we're not in the USA, then he has no law enforcement authority, and ask just when, in his view, did I lose my right to contact my attorney? Surely I had that right prior to boarding at FRA, did I retain the right when I boarded my OnAir-equipped flight? Or did that right disappear somewhere over the Atlantic? Or on the jetway?

After asking me a lot of questions, which I declined to answer without my attorney present, and repeated threats to search my bags -- which I acknowledged as entirely within their legal authority -- I was sent on my way without a search.

Has anyone else experienced this? Any idea where they get the idea that the 4th, 5th and 6th amendments don't apply to them?

Last edited by Blogndog; Jun 5, 2015 at 5:36 am
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Old Jun 5, 2015, 6:46 am
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I suggest you send them a FOIA & Privacy Act request for all records related to this, and for all policy directives, administrative manuals, etc relating to access to an attorney.

Also, read this.

Also this and this.

Last edited by essxjay; Jul 4, 2015 at 11:03 am Reason: merge consecutive posts
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Old Jun 5, 2015, 6:55 am
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I'm no expert on this, but when entering a country, your rights are quite different than they are once you've been admitted into the country. For example, the right to unreasonable search and seizure does not exist until you have been admitted - border officers have the right to search your property even without reasonable cause.

I'm guessing at a certain point you would have the legal right to counsel but it may not be immediate. It may depend on what the officers intend of you.
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Old Jun 5, 2015, 6:58 am
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Originally Posted by PhotoJim
For example, the right to unreasonable search and seizure does not exist until you have been admitted
Not correct. Rather, "reasonable" is a laxer standard at the border.

CBP can make ordinary searches without suspicion, but need reasonable suspicion for intrusive searches (e.g. forensic computer search).
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Old Jun 5, 2015, 9:39 am
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Originally Posted by saizai
Also this and this.
Wow -- this beggars belief. The CBP internally acknowledges that there is a right to silence, but they have policies that explicitly forbid their agents from informing travellers of this right, because it might disuade them from making a self-incriminating statement. Disgusting.
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Old Jun 5, 2015, 9:49 am
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Originally Posted by Blogndog
Wow -- this beggars belief. The CBP internally acknowledges that there is a right to silence, but they have policies that explicitly forbid their agents from informing travellers of this right, because it might disuade them from making a self-incriminating statement. Disgusting.
Law enforcement in general never tells a person their rights until an arrest is made. They start out trying to chat you up in order to develop a case.

They can even lie to you and that is ok.
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Old Jun 5, 2015, 10:11 am
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This video is long but worth watching:

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Old Jun 5, 2015, 10:20 am
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sounds like miranda? where it has to be 'custodial interrogation' or whatever? which becomes vague with regards to immigration. but i would assume one could ask to be put on a flight out of the country? (like not flying.)

Originally Posted by Blogndog
After asking me a lot of questions, which I declined to answer without my attorney present, and repeated threats to search my bags -- which I acknowledged as entirely within their legal authority -- I was sent on my way without a search.
odd they didnt even search. more random fishing?
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Old Jun 5, 2015, 10:44 am
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Just to clear something up. People have rights. Government Agencies and their employees have authority. Two very different things.

I've had the "pleasure" of explaining that to many agents of the government and in its own way puts them in their place with out being too rude/aggresive. Especially when reminding them that my rights can't be taken away by them but their authority in doing their job can be taken away if they violate my rights.

As for the privacy filter on the screen I imagine it's there for many reasons. To prevent disclosure to someone else who could see the screen while going through Immigration, prevent viewing of personal data by someone you're traveling with. My family has traveling with my brother's gf before they got married and we were processed as one group so a disclosure of one person's information could cause internal family problems. Yes you can get the information that indicated for secondary inspection via requests about your own self. Do so if you feel it's worth it.

CBP does post signage about not using your cell phones in the immigration hall. Not sure if it's law or policy. I believed you did the right thing by identifying that you're contacting your legal rep and proceeding with the call. Proceed with your fight if you want but be ready for more secondary searches.
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Old Jun 5, 2015, 12:51 pm
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Originally Posted by Kagehitokiri
sounds like miranda? where it has to be 'custodial interrogation' or whatever? which becomes vague with regards to immigration. but i would assume one could ask to be put on a flight out of the country? (like not flying.)



odd they didnt even search. more random fishing?
Yeah, it was a bit weird it was lik "you know we can search, right?" And I'm like, "yeah, of course, go ahead if that's what u want." And then he unzips one of the bags and asks me to step back, and I'm like, "ok, it's your party". But then after opening it, he didn't really look -- there was a pair of trousers on top that covered everything underneath, and he never really moved them aside. Believe me, I don't travel with anything remotely interesting, unlike friends who travel with voodoo dolls, exotic herbs, dried animal parts, weird electronics, etc.
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Old Jun 5, 2015, 1:00 pm
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Originally Posted by PhotoJim
I'm no expert on this, but when entering a country, your rights are quite different than they are once you've been admitted into the country. For example, the right to unreasonable search and seizure does not exist until you have been admitted - border officers have the right to search your property even without reasonable cause.

I'm guessing at a certain point you would have the legal right to counsel but it may not be immediate. It may depend on what the officers intend of you.
Respectfully, your statement is not really accurate. Your rights are not at all "quite" different at the border, they are very slightly different. The only substantive difference is the relaxation of the 4th amendment requirement for a warrant in order to search. Things are otherwise identical -- free speech is guaranteed, the right to bear arms is protected, self-incrimination, due process, press freedom, prohibition of slavery, right of women to vote, all that cool stuff is there at the border and everywhere else.
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Old Jun 5, 2015, 1:20 pm
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I can't find the CFR cite, but use of mobile devices and video capture, e.g. photos, is prohibited at a FIS without CBP permission. If OP wanted to call his attorney, he needed to ask a Supervisor. While the response is theoretically discretionary, I strongly suspect that OP would have been escorted somewhere to make the call.
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Old Jun 5, 2015, 1:55 pm
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Originally Posted by saizai
Not correct. Rather, "reasonable" is a laxer standard at the border.

CBP can make ordinary searches without suspicion, but need reasonable suspicion for intrusive searches (e.g. forensic computer search).
Can you comment on the following and whether what the CBP did was right?
We were (FAMILY OF 3) about to board an outbound flight at ORD to Asia. 2 CBP officers (a female & a male officer) standing inside along side the flight crew checking to make sure all had boarding pass. The CBP officers were there to catch undeclared excessive cash I guess who know what else. While walking in line with other passenger to board, The female officer condescendingly, in angry and rude tone asked us asked how much we had and we had only $300, the officer said you can carry up to $5K. Took our passports. Asked to give her our carry on bags, wife's hand bag, jackets, baby's diaper bag. Searched everything inside including inside my wallet, her purse. Ordered us to write down the $300 cash we had with us and both of our signatures on a piece of paper she had with her. Continued to question us about what we do, why traveling, who is paying for trip, etc. There were at least 200 passenger walking in front and behind us to board during the search. I saw & heared the male officer asked one man how much cash he had and that he can carry up to $5k, the man replied, $5k. The male officer quickly looked inside his shoulder bag, no personal questions or anything else asked and the man was gone in just few seconds.
After not finding anything she wanted to find, she took down my passport info on piece of paper, didn't look at us , didn't say a word and gave back our passports. The whole search & questioning took about 15 mins.I first thought about talking to her but feared this would result in missing the flight after she gets really really mad and screw everything. We kept calm. Later we knew the officer was incorrect in the amount people were allowed to carry out. it is 10K max, not $5k. We don't have any criminal record. On return was a surprise with SSS on my boarding pass.

Can you please tell me if our rights were violated or this was unlawful or anything you find strange? Thanks for your honest opinion.

Last edited by Blueskyheaven; Jun 5, 2015 at 2:03 pm
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Old Jun 5, 2015, 2:16 pm
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Originally Posted by Blueskyheaven
ORD to Asia
I'm not aware of any authority to restrict cash going out of the country, or any other CBP screening when leaving the US, though I'm not certain on it. FinCEN 105 at least applies only to money coming into the US >$10k.

Continued to question us about what we do, why traveling, who is paying for trip, etc.
CBP can ask you whatever they want, if you were entering the US. AFAIK, you don't have to answer any questions, except for basic customs declaration on entry.

If you're not a US national / citizen, you can get turned away at the border for any reason. If you are one, you can't, though your stuff is subject to search & seizure.

On return was a surprise with SSS on my boarding pass.
It's possible that the scrutiny was because you were on a watchlist when you got to CBP, rather than the other way around.

Can you please tell me if our rights were violated or this was unlawful or anything you find strange?
I cannot. I am not a lawyer, I am not your lawyer, and I cannot give you any legal advice or opinion. I can only give information (to the best of my totally not official knowledge), not something about your particular situation.
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Old Jun 5, 2015, 3:55 pm
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Originally Posted by Blogndog
Wow -- this beggars belief. The CBP internally acknowledges that there is a right to silence, but they have policies that explicitly forbid their agents from informing travellers of this right, because it might disuade them from making a self-incriminating statement. Disgusting.

Can you tell me where they acknowledge this and where they have a policy forbidding agents from informing passengers? I believe you, but those links contain and awful lot of sub links and it would be great if you could direct us to the right ones. Thanks.

I once sent questions through the CBP website about the right to remain silent at ports of entry, hereare the questions and the response I got:


After submitting a truthful customs declaration (blue) form, may U.S. citizens choose not to answer further questions from CBP officers at ports of entry?

ANSWER: Travelers, no matter their nationality, must answer all questions truthfully and fully at Primary Inspection. Failure to answer questions asked by the CBP Officer can result in the traveler being sent to Secondary Inspection. The reason is that the traveler appears to have something to hide and warrants further scrutiny.

What treatment should a U.S. citizen expect to receive if he or she declines to answer questions from a CBP officer?

ANSWER: A traveler who refuses to answer the questions of a CBP Officer at Primary Inspection can expect to be sent to Secondary Inspection for further scrutiny.

Can U.S. citizens be arrested, deported or denied entry into the United States by CBP simply for declining to answer questions from CBP officers?

ANSWER: A USC cannot be denied entry to the United States or deported for refusing to answer questions. However, the refusal can result in being sent to Secondary Inspection for further scrutiny. A person may be held and their person and luggage searched and the person questioned until it is determined that they are not involved in illegal activity. This type of hostile action on the part of the traveler will likely result in being sent to Secondary every subsequent time they return to the U.S.

An additional problem with refusing to answer the basic Primary Inspection questions is that this type of person wastes precious time, money, and adversely affects security by taking the CBP Officers away from their duties to deal with a USC who may have nothing to hide, but chooses to be obstinate. Again, questioning travelers is how we detect people who are involved in illegal activity and the Supreme Court has upheld that the doctrine of CBP's search authority is unique and does not violate the Fourth Amendment protection against unreasonable searches and seizures.

Travelers are highly advised to comply by answering the CBP Officer's questions. If a traveler is uncomfortable with a question, he/she can always ask to speak with the Chief Officer on duty or a CBP Passenger Service Manager (PSM) on-site. A supervisor is always available to address the concerns of travelers during their CBP processing.

I have, on three occasions, refused to answer questions at ports of entry. The incidents went like this:

1. 2012. Returning from Cuba to Las Vegas via Mexico. I truthfully listed Cuba on the form. They asked why I went to Cuba. I refused to answer. A sh*tstorm ensues. Supervisor tells me "You have no rights the border, you relinquish them when you leave and you reapply for them when you return." As I had never refused before, and I hadn't full researched the issue, I said something like "Don't I have the right to remain silent?" which I now know is never how to address these guys. you need to be totally sure of yourself.

Anyway, the Officer tells me he's seizing my phone and computer. Since I needed my phone and computer, I told them "Fine, I went to Cuba to drink beer and talk to pretty Cuban girls in mangled Spanish." They kept me about 2-3 hours, let me go.

2. Returning from Cambodia, Thailand, Australia, and Tonga. Philadelphia airport. Iwas a bit curt with the primary inspection officer giving monotone, one word answers. Referred to secondary. Officer asks me how long I've been gone. I say "two and half months." He then asks when I left the US. I say "Two and half months ago." He tells me to wait in timeout. He calls me back up, asks more questions, at first I answered some, that's a mistake too.

If you're going to refuse to answer, refuse to answer everything (except any questions about your citizenship). don't for example, tell them what you were doing in Thailand but refuse to say what you were doing in Tonga, because even though it's your right, it makes you look guilty, and if you answer some questions it emboldens them and makes them keep asking questions. Anyway, it was come here, refuse, sit in timeout, repeat a few times, they let me go after an hour.

3. A week ago, flying back from Algeria, Uzbekistan, Tunisia, and Iraq to Las Vegas via Frankfurt. Primary officer asks what I do for work. I could have said "lawyer," I would have sailed through probably. However, I said "unemployed" (also true), knowing this would get his attention. He then asks how I pay for my trips I say "I have money." He asks how I have money, I remind him I'm a US citizen and I'm admissible regardless of how I have money. He says "Yes, but I can ask you anything I want."

I'm referred to secondary, where the officer starts to ask what I was doing in these countries, and I inform him that I'm a US citizen, I'm happy to answer any questions about my citizenship, but I won't answer questions about what I was doing outside the country.

He tells me to sit in the time out chair. I sit there for 90 minutes while they look up information about me, He then calls me back up, searches my bag, I leave.

Last edited by essxjay; Jul 4, 2015 at 12:01 pm Reason: merge consecutive posts
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