Border-crossing rights: Agents can question, search and seize, immigration lawyers say

Border-crossing rights: Agents can question, search and seize, immigration lawyers say

By Jesse Feith

Montreal Gazette


A Muslim Canadian woman who’s lived in Quebec for the last 20 years was denied access to the United States last weekend, saying she was extensively questioned about her religion and U.S. President Donald Trump before being denied at a Vermont border crossing.

The woman, who was born in Morocco and lives in Brossard, told several media outlets she was also forced to hand over her phone and passwords to allow border patrol agents to access her videos. She had wanted to visit Burlington to go shopping, she said, but was turned around after four hours spent at the border. She was also fingerprinted.

The incident has raised questions about a person’s rights when trying to cross borders, and to what extent border patrol officers can probe into someone’s personal information. But remembering the context of when it happened is also important, said Montreal-based immigration lawyer David Cohen.

Cohen was referring to President Trump’s since-suspended executive order barring immigrants from seven mostly Muslim countries.

“There are a number of people that we are aware of who had issues and were turned back at the American border,” he said. “They would probably be admitted today were they to try again.”

Mary Keyork, a certified specialist in immigration law based in Toronto, said she wouldn’t be surprised if many Muslims were refused entry during the weekend for no other reason than the confusion that followed Trump’s executive order.

Cohen echoed the same theory.

“People didn’t know how to implement the executive order,” he said. “Were certain officers overbearing and asking questions that were intrusive to the point that they were illegal? Possibly, and maybe even likely.”

In general, both lawyers said, when approaching a border crossing, people should remember that they have to abide by the rules and questions of the country they’re trying to enter.

“As a visitor, you’re there by permission, not because you have the right to be,” Cohen said.

Anyone has the right to not answer questions they don’t feel comfortable answering, Cohen said, but they should be prepared to be turned around if they do.

Matthew Borowski, a Buffalo, New York-based immigration lawyer, said border-crossing agents benefit from the border search exception, which allows extensive questioning, searches and seizures without a warrant or probable cause.

In more recent years, he said, it’s extended to include the search of electronic devices, including cellphones and laptops.

“It’s been quite a contentious issue, and unfortunately the law hasn’t really settled on the topic yet,” Borowski said of device searches at border crossings.


In a statement released Wednesday, the U.S. Customs and Border Protection said it doesn’t discriminate on the entry of foreign nationals to the United States “based on religion, race, ethnicity or sexual orientation.”

Its top priority, the agency said, is the “prevention of the entry of terrorists and their weapons into the United States, while facilitating legitimate trade and travel.”

In an interview, spokesperson Dave Long said he could not comment on the Quebec woman’s specific case, but noted that American border patrol officers are trained to inspect identity and travel documents, as well as travellers’ behaviour.

“They look for signs to see if maybe there’s something that warrants a closer look before letting the person into the country,” he said, adding the signs can include odd behaviour, comments or speech.

If something seems suspicious, it can lead to more extensive searches. And as soon as you’re at the border crossing, Long added, everything you have on you is subject to search — including cellphones and laptops.

“It’s one of the very few places where normal rules don’t apply.”