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The right to privacy is considered a fundamental human right in the United States and is generally protected by the U.S. Constitution. However, in matters related to immigration, privacy rights are not guaranteed, especially concerning rules governing entry into the country.
For example, when entering the U.S. through a port of entry at an airport, a Customs and Border Protection (CBP) officer has the discretionary authority to search your phone and other electronic devices. The officer needs only to request that you hand over your device for inspection. While you have the right to refuse, doing so may escalate the situation. Declining could lead the officer to suspect that you have something to hide, which could potentially raise the encounter to the level of reasonable suspicion. At this point, the officer can take your phone and other electronic devices for further inspection.
What Is Considered Reasonable Suspicion?
Reasonable suspicion is a standard that allows law enforcement officers to briefly stop an individual for questioning and sometimes frisk them if the officers feel that there is a reason to be suspicious of them. Because the laws around reasonable suspicion are open to interpretation, CBP officers can decide that refusing to hand over your phone is suspicious behavior on your part.
What Kind of Messages or Information on Your Phone Can Raise Suspicion?
For those entering the U.S. with a tourist or other nonimmigrant visa, the activities that may get an officer to ban your entry after searching your phone include the following:
- Discussing intentions to possibly stay in the U.S. and get married
- Discussing plans to stay beyond the expiration date on your nonimmigrant visa
- Messages related to finding a job or working while on a tourist status
- Engaging in drug use, including marijuana
- Coming to the U.S. while pregnant, for the sole purpose of having a child
- Engaging in any activity that is banned in your visa category
Even Lawful Permanent Residents are having their phones inspected at ports of entry into the U.S. and finding themselves in serious trouble. The type of issues that can jeopardize your Lawful Permanent Resident status at a port of entry include the following:
- Being involved in illegal online gambling
- Facilitating two people in plans to get together for sex
- Receiving money for having sex with someone
- Being involved in a crime
If CBP officers search your phone and find any of the above, or evidence of other suspicious activities, they may revoke your Green Card or cancel your visa. If your visa is cancelled, you may receive an expedited removal order and be forced to return to your country. Lawful Permanent Residents may still be allowed to enter the U.S. but may be processed for either further investigation or possible immigration violations that could also land them in removal proceedings.
The best step you can take before arriving at a port of entry is to review your messages and be careful about the information you may have on your phone or other electronic devices.
If CBP officers have gone through your phone at a port of entry, or if you have questions regarding another immigration legal matter, contact U.S. Immigration Law Counsel for a strategy session to discuss your case.
