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A few days ago, an editor at Vice tweeted a photo of what appears to be a CBP or ICE agent inspecting the documentation of individual passengers disembarking a flight. The caption states that it was a domestic flight from San Francisco to JFK, and that passengers "were told we couldn't disembark without showing our 'documents'". This has caused a bit of a splash, with some questioning the legality and prudence of the action.

I fly domestically quite frequently. In the event that I encounter a similar situation, I wish to know my own rights and to be able to inform other passengers of theirs.

I am only interested in the narrow case defined above, in which everyone on a domestic flight is asked to show documents before deplaning. Assume that I am flying for travel rather than immigration, and that I have not committed any immigration or travel violations.

  • Do I have the right to refuse compliance if asked for documentation?
  • Can officials in this situation detain or arrest me solely for refusing to comply or failing to produce documentation?
  • Are there possible long-term consequences if I refuse to comply, but otherwise have done nothing wrong?

I understand that immigration officials generally require probably cause to stop or detain someone, but have jurisdiction to detain someone who cannot demonstrate legal status at border crossings (source). I understand that this jurisdiction generally applies at airports for international arrivals. My question is whether it also can apply at an impromptu checkpoint for domestic travelers attempting to deplane.

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    @Dorothy Please don't post answers as comments. If you have the time to look up the precise section of US law that covers the situation, surely you have time to write it in the answer box with a little bit of formatting. – David Richerby Feb 25 '17 at 17:04
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    I'm voting to close this question as off-topic because we are not lawyers. This we can not answer. You need to ask the ACLU. Are you ready to risk being jailed based on the ramblings of a few random strangers off the Internet?? – chx Feb 25 '17 at 17:27
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    @phoog nothing of the sort. In this case I would want an opinion from a lawyer who is ready to fight for that opinion at the airport where I get jailed when the CBP/ICE is of a differing opinion. – chx Feb 25 '17 at 17:31
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    @chx from meta: "Customs and immigration laws that deal with travelers rather than immigrants would also be on topic." Anecdotally, it certainly seems like a lot of questions here ask about the legal nuances of customs, border, and immigration law and how to navigate the system. And my understanding is that just because a question is on-topic on one stack doesn't necessarily make it off-topic on another. – Joe Feb 25 '17 at 17:34
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    @chx and other close voters: I strenuously object to the idea that this is off topic. We have many questions about legal rights at fixed passport control checkpoints, customs checkpoints, and security checkpoints. Why should it be different if the question instead concerns a temporary checkpoint or other investigation? – phoog Feb 25 '17 at 18:34
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Constitutional law professor Garrett Epps has covered this incident in an article for the Atlantic. He concludes that by law, an agent in this situation should allow passengers who refuse to comply to pass.

Based on his research, Epps concludes that officials lack the authority to perform mandatory check of every passenger:

After days of research, I can find no legal authority for ICE or CBP to require passengers to show identification on an entirely domestic fight. The ICE authorizing statute, 8 U.S.C. § 1357, provides that agents can conduct warrantless searches of “any person seeking admission to the United States”—if, that is, the officer has “reasonable cause to suspect” that the individual searched may be deportable. CBP’s statute, 19 U.S.C. § 1467, grants search authority “whenever a vessel from a foreign port or place or from a port or place in any Territory or possession of the United States arrives at a port or place in the United States.” CBP regulations, set out at 19 C.F.R. § 162.6, allow agents to search “persons, baggage, and merchandise arriving in the Customs territory of the United States from places outside thereof.”

Epps further writes that "I asked two experts whether I had missed some general exception to the Fourth Amendment for passengers on a domestic flight", and quotes them in the piece agreeing that a mandatory check would not be legal, and that there is no exception for domestic aviation.

Epps also reached out to CPB, who are quoted claiming that the incident did not constitute a mandatory check, but a request for "consensual assistance":

In this situation, CBP was assisting ICE in locating an individual possibly aboard the flight that was ordered removed from the United States pursuant to the Immigration and Nationality Act. To assist ICE, CBP requested consensual assistance from passengers aboard the flight to determine whether the removable individual in question was in fact aboard the flight. In the course of seeking this assistance, CBP did not compel any of these domestic passengers to show identification. With much-appreciated cooperation from these passengers, CBP was able to resolve the issue with minimal delay to the traveling public.

Epps notes that such requests for "voluntary cooperation" are perfectly legal, even if the officers involved block an exit, ask for documents, and do not tell anyone that they are not legally required to comply.

At the end of the article, Epps concludes that passengers should be able to pass without complying, but suggests that there a degree of risk in doing so:

I have researched the matter, and feel reasonably confident that an agent would have to let me pass if I refused the demand for my papers. If not, I can afford counsel and my family knows excellent lawyers to call.

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    In New York, they could rely on US v. Martinez Fuerte, because it's less than 100 miles from the coastal border (indeed, JFK is on Jamaica Bay, which connects to the Atlantic around Rockaway Point), but perhaps they wouldn't want to because a challenge might induce a court to narrow the applicability of the earlier ruling. If they actually had information that a given person was aboard the aircraft, though, couldn't they could require people to identify themselves until they found that person? Would they then be exceeding their authority if they looked into others' immigration status? – phoog Feb 28 '17 at 4:37
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    Given that they asked for identification from passengers who could not possibly be the alleged target of the dragnet, I am inclined to view this as an ex post factor pretext. As far as the 100-mile zone, I think the problem is these passengers clearly embarked from somewhere else in the USA. It isn't like looking for improper land border-crossers. I agree CPB probably doesn't want to test this, as they could easily lose. – Andrew Lazarus Feb 28 '17 at 8:06
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    @AndrewLazarus with respect to the 100-mile zone, it doesn't matter whether the passengers embarked elsewhere in the USA. It possibly should matter, but it doesn't. Border Patrol has in the past routinely searched buses and trains on domestic routes. There's no reason to think they'd treat airplanes any differently. (And, in this case, the flight originated in the 100-mile zone, so there's no way to say that one of the passengers didn't sail into SF bay without immigration inspection and then board the plane. Highly unlikely, but possible enough for the legal justification.) – phoog Mar 4 '17 at 3:08
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    @phoog Is there any case law on domestic flights? It's obvious that a land border crosser could hop a bus as well as go in a private vehicle. But the law ties the zone to suspicion of illegal entry, and that would be a stretch for a flight. For surface transportation, still being near the border is significant. For the destination airport, it isn't. Papers, please! – Andrew Lazarus Mar 4 '17 at 6:02
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    @AndrewLazarus the act provides this power "for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States"; it does not mention suspicion. In practice, the courts have upheld Border Patrol checkpoints even though they hardly catch anyone who has recently crossed the border illegally. FYI, the executive branch has defined some statutory terms by regulation at 8 CFR 287.1. – phoog Mar 4 '17 at 6:29
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Do I have the right to refuse compliance if asked for documentation?

You have a fifth-amendment right against incriminating yourself, so you can refuse to comply. However, depending on the legal authority for checking your ID, the officers can probably detain you until they've determined your immigration status, or whatever other facts are relevant to their investigation. Under certain circumstances, they can search your person and property, which will most likely give them access to your documents even without your consent.

If I refuse compliance or cannot produce documentation, can officials detain me at the airport, pull me off a plane that hasn't yet departed, or prevent me from boarding a connecting flight?

Yes. If they have probable cause to suspect you of a crime, they can arrest you. If they have reasonable suspicion, they can detain you to investigate that suspicion. In some cases, reasonable suspicion is not required.

Are there possible long-term consequences if I refuse to comply? Are the consequences different if I am a US citizen, a foreign national with a valid visa or green card, or an alien in the country without proper documentation?

This is immigration enforcement, so of course the long-term consequences depend on your immigration status. If you can prove that are a US citizen, or that you are an alien in compliance with immigration law, there can be no long-term consequences related to immigration violations, so you only need to worry if you are charged with other crimes. For aliens who are present in violation of immigration law, the long-term consequences could be significant indeed, up to and including detention and deportation.

  • This is a good general answer, +1. I'm hoping for more information about this particular situation (requesting documents from every passenger deplaning from a domestic flight). Specifically, what might constitute probable cause for detention, arrest, or longer-term consequences, and whether this is a case where reasonable suspicion is not necessary for detention. However, I understand that more specific information may not be available in this case, so I will accept this answer in a few days if I don't get another. – Joe Feb 25 '17 at 23:48
  • @Joe I started with a discussion of US v. Martinez Fuerte, which is the key Supreme Court case regarding inland border patrol checkpoints, but I realized that the government probably wouldn't want to rely on that here, because it only applies within 100 miles of the border (therefore not, for example, in Denver). That's one reason I suggested posting at Law: there you are more likely to reach a user familiar with relevant case law, or with access to legal search tools to identify relevant precedents, if there are any. – phoog Feb 26 '17 at 17:51
  • I considered posting in law, but thought the community here was more specifically knowledgeable about customs, border, and immigration issues. Whether or not that's true, I've since found more information on this topic that comes close to answering my question completely (which I've added as a self-answer), so I see no reason to migrate or repost now. – Joe Feb 27 '17 at 21:49

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