Your immigration status will determine what agents can and cannot do with electronic devices. Hernández Rivera notes that CBP claims authority to search and copy data from phones and devices. Amato Lough, of Public Counsel’s Immigrants’ Rights Project, says: “Be aware of the content on your social media and phone accounts in case an immigration agent from the federal government reviews them.”
US citizens, green card holders and other lawful permanent residents have greater protections. They may refuse to unlock devices or share their passwords with others without being denied entry. Devices can be seized or delayed for inspection. Hernández Rivera explains, US citizens and lawful permanent residents “cannot be denied entry if they refuse to share their password or unlock their device… [but] “They can take it and inspect it further.” Visitors or visa holders who refuse risk being denied entry.
Preparation is key to protecting your digital privacy. Many travelers will leave their main phones behind or any sensitive data. If your device is stolen, you should document the name of the agent, their agency, badge number and ask for a receipt. It is important that you return the device.
Stay calm if things escalate. You can ask for a supervisor and request to call your attorney, though “the government position is that they do not have to let you speak to one,” says Hernández Rivera. Since immigration is a civil—not criminal—matter, you won’t be appointed an attorney, so it’s essential, especially for non-citizens, to have a trusted lawyer’s contact ready.
At the border
Immigration agents have more jurisdiction at the border because it is another point of entry and exit. Important rule: If you are within the “so-called 100-mile border zone, You can still be stopped and asked about your immigration status even if you are not traveling directly through a port-of-entry. As Hernández Rivera explains, “within a hundred miles of the border… [agents] Can, for example enter a bus and ask about immigration status without a warrant?”
The Constitution still applies to all citizens, regardless of their immigration status. “Once you’re in the United States, everybody is protected by the Constitution—whether documented or undocumented,” says Hernández Rivera. You have the right not to speak and to refuse to allow a search or seizure of your body or belongings unless there is probable cause. When approached, ask calmly “Am I allowed to leave?” If you are told yes, walk away calmly. If you answer no, then it is likely that you are being detained. You should state clearly: “I exercise my right to be silent and I refuse to consent to a search.”
Immigrants should avoid unnecessary paperwork that could reveal their immigration history in border areas, and they should be prepared for any questions. Bystanders can record videos (without interfering), make notes and share their observations. Staying calm, knowing your rights, having a plan and being prepared can all make a difference to the outcome of an encounter.
Home
It is not necessary to open the door for any ICE agents unless they have an official judicial search warrant. “Judicial” is the most important word in that sentence—there are different types of warrants, including a common administrative one, but a judicial warrant (a specific type of warrant that’s signed by a federal judge) is needed for an ICE officer to enter your home. Additionally, “the warrant needs to clearly state who they’re looking for or what they’re going to search,” says Hernández Rivera. It’s the same for private spaces, regardless of whether you own or rent them.
