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September 09, 2010

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Paul Karl Lukacs

The author has the law right, says I, the author.

The major points of the argument (compressed, and focused on the passport check and not the customs check):

1. “The only absolute and unqualified right of citizenship is to residence within the territorial boundaries of the United States; a citizen cannot be either deported or denied reentry.” U.S. v. Valentine, 288 F. Supp. 957, 980 (D.P.R. 1968).

2. The returning U.S. citizenship must provide evidence of citizenship. 8 CFR section 235.1 reads: “A person claiming U.S. citizenship must establish that fact to the examining officer’s satisfaction and must present a U.S. passport if such passport is required under the provisions of 22 CFR part 53. If such applicant for admission fails to satisfy the examining immigration officer that he or she is a U.S. citizen, he or she shall thereafter be inspected as an alien.”

3. Section 235.1 is not a wide-open grant of interrogation power to CBP officers. Quite the opposite. The regulation is titled “Scope of Examination,” and I content that the wording and intent of the regulation is to limit the examination to matters necessary to establish, to the officer’s “satisfaction,” the traveler’s U.S. citizenship.

4. The officer’s “satisfaction” is not an unbounded whim; like all matters of official discretion, the law imposes limits. At a minimum, a CBP officer’s skepticism of a traveler’s U.S. citizenship must be in good faith. (I have no legal citation for this rule. It is The Law According To Me, but I can’t see how it’s wrong, although Lounge visitors with a better knowledge of criminal procedure should feel free to correct me.)

5. Presentation of a U.S. passport or other citizenship paper establishes a prima facie presumption of citizenship. See, e.g., Lim v. Mitchell, 431 F.2d 197, 202 (9th Cir.1970); Delmore v. Brownell, 236 F.2d 598, 600 (3rd Cir.1956).

6. In addition, the CBP officer checks the passport against a database. And a few words from the traveler provide evidence of a native American accent. And I fly with a certified copy of my Ohio birth certificate. So there is no way a CBP officer could have a good faith question about my U.S. citizenship.

7. All that being said, the proof-of-citizenship debate is academic because CBP does not ask citizenship-related questions to people who are obviously Americans. CBP has never asked me a question like “In what state were you born?” or “Were your parents foreign diplomats on assignment to the U.S. at the time of your birth?” or “Are you one of those weird Swain’s Island people who are not U.S. citizens but are issued U.S. passports?”

8. Instead, CBP asks questions which have nothing to do with citizenship and which are fishing expeditions for non-immigration and non-customs crimes. CBP asks questions like “Why were you in Bahrain?” or “What do you do for a living?” or “Did you smoke pot in Amsterdam?”

9. I contend that asking non-immigration and non-customs questions is outside of the powers delegated by Congress to CBP. But it doesn’t really matter whether it is or isn’t. Once the traveler has presented written proof of citizenship, the traveler has no further burden, cannot be denied entry and has the right to remain silent as to all further questioning.

I’m open to a counter-analysis revealing flaws in the argument.

Paul Karl Lukacs

Greg McNeal

Great comment, thanks Paul. Hopefully we will get some feedback from our other readers.

John Nelson

I agree that the author has the law right as to his person. However, I think it is important to understand the separate powers as to allowing a person to enter and a person's luggage to enter.

The United State's power is at its zenith at the border. United States v. Montoya de Hernandez, 473 U.S. 531, 539-40 (1985) This power grants U.S. law enforcement the ability to search and seize luggage without a warrant or reasonable suspicion. Id. at 538.

Reasonable suspicion is only required in non-routine searches, and the primary example of a non-routine search are strip searches. United States v. Guadalupe-Garza, 421 F.2d 876, 878 (9th Cir. 1990) (classifying a strip search as non-routine); Asbury, 586 F.2d at 976 (strip search as a non-routine search). Therefore, the only cases really requiring reasonable suspicion are when your body is the subject of that search.

All this is to say that they might not have the right to ask him questions beyond those verifying his citizenship, they do have a right to detain all of his luggage unless he answers questions pertaining to the contents of that luggage. Given current criminal procedure jurisprudence, it is highly likely courts would view the questions being asked (such as the purpose of the visit overseas) as sufficiently related to determining the luggage's contents and admissibility into the U.S. as to be Constitutional.

At the same time, I do not believe a court would find detaining the traveler, rather than just his luggage, to be Constitutional if the traveler refused to answer those questions but did prove his right to enter as a citizen.

Fun stuff. I wrote a paper on laptop border searches a few years ago (which allowed the quick cut-and-past of caselaw above). It's exciting to see this area of law develop. For example, the Obama administration has sought to clarify the rules: http://www.esecurityplanet.com/news/article.php/3836671/US-Changes-Laptop-Border-Search-Rules.htm

bob

That man is behaving dangerously close to the way a citizen would act.

Tung Yin

In response to Greg's question about whether it was worth it, that's obviously something that each person can answer only for himself or herself. It seems clear that Mr. Lukacs felt it was worth 30 minutes of his time to stand up for an important principle, and I'm in no position to argue otherwise. It's highly unlikely that I would make the same determination, especially if I'm traveling with my family. For one thing, it's not like you know in advance that it's just going to be a 30 minute penalty for not answering the questions. It could have been much longer. Keeping my little boys occupied during that detention period of uncertain length, after a long international flight or cruise, is a pretty unappetizing thought. I'm pretty sure I would just answer the questions to be able to get through Customs.

To be clear, I'm not suggesting that Mr. Lukacs was "wrong" in his course of action. In fact, I suppose what it really means is that people like me free-ride off people like him. But that's also true with regard to people who push the boundaries of the First Amendment.

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