By Darius Amiri, Rose Law Group Chair of Immigration Law
Many green card holders and non-immigrant visa holders have been reaching out to us concerned about reports of persons being denied, deported, or turned away from Ports of Entry and airports after US Customs and Border Protection (CBP) went through their phones and mobile devices to review their content. The primary question boils down to- “can they really do this to me even if I have a visa/green card/H-1B?” And the answer is, yes, they can!
Any non US citizen residing permanently or temporarily in the United States should be aware that CBP has broad authority over who gets let in to this country at our airports and ports of entry, and that includes their ability to review digital devices and content.
Under 8 U.S.C . § 1357 and 19 U.S.C. § 1581, CBP may:
- Question a person seeking admission to determine admissibility
- Conduct warrantless searches and seizures of belongings, including electronic devices
- Seize and copy data for further inspection or investigation
This can be done through a basic search which typically does not require a CBP officer’s suspicion, or an advanced search involving accessing cloud data or using forensic investigative tools if an officer can articulate a reasonable suspicion of a ground of inadmissibility or national security concern presented by the visa holder or applicant for admission.
Even green card holders can be detained and subjected to screening, questioning, or a search of their digital records when presenting for admission at the U.S. border. Typically, this is done when there is suspicion that the green card holder may be trafficking in controlled substances, or had spent too much time outside the country thus abandoning their status, but as this administration gets more and more aggressive on immigration, I expect them to invoke national security or the terrorism related inadmissibility grounds (TRIG) of the Immigration and Nationality Act as a means of searching, detaining, and even deporting individuals seeking admission after returning from visiting certain parts of the world. Even more so if (likely when) we see the next iteration of the Trump Travel Bans.
All this is to serve as a reminder that while the US Constitution protects freedom of speech under the First Amendment and protects against warrantless searches and seizures under the Fourth Amendment, there are limitations and restrictions to those protections for people seeking admission at the border. The content that one carries on their personal digital devices can be accessed by CBP, and there can be serious consequences for that content, especially if politically charged or critical of the current administration. Before traveling to the United States and seeking admission at the border or port of entry, one should be prepared for their devices to be searched, consider what content may have recently been posted or shared, and expect to be questioned or held accountable for that content.
