Border Patrol Takes ‘No’ for an Answer at Internal Checkpoints

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A fascinating video is circulating on the Internet featuring motorists who decline to answer questions at Border Patrol checkpoints miles from the border. Questions like, “Are you a U.S. citizen?” or “Where are you headed?” are met with polite refusals. In the video, one pair of motorists stopped at a Laredo checkpoint refuse to answer an agent’s question about their citizenship. When the agent becomes agitated and orders the driver to pull over to secondary inspection, the driver politely says, “No thank you.” The agent calls over his supervisor. “Unless we’re living in a police state,” the driver says. “Unless this is Mexico or Nazi Germany … this is still America and I can travel down this road without having to answer questions from federal agents.” The kicker is the motorists get away with it; the supervisor ultimately waves them through.

This was a surprise to me because I grew up in the Rio Grande Valley where travelers must pass through an internal checkpoint in Sarita or Falfurrias to reach points north. The Border Patrol operates a total of 71 permanent and tactical checkpoints on the southwest border, according to a 2008 report by the U.S. Government Accountability Office. (Tactical checkpoints do not have permanent buildings. They support permanent checkpoints by monitoring and inspecting traffic on secondary roads that the Border Patrol determines are likely to be used by undocumented travelers or smugglers.) As the checkpoints have proliferated, so has concern over the rights of motorists. Critics of the internal checkpoints say they violate the Fourth Amendment prohibition on “unreasonable searches and seizures.”

Still, it was unclear to me if you are legally obligated to answer Border Patrol agents’ questions. What, exactly, are your rights and responsibilities at these checkpoints? I put the question to a few legal experts.

Denise Gilman, co-director of the immigration clinic at the University of Texas School of Law, says that Border Patrol agents at internal checkpoints are allowed to ask motorists basic questions about citizenship, identity and travel itinerary, but they cannot detain you or search your vehicle without probable cause. Your refusal to answer questions would not provide probable cause to allow for such a detention or search, she added.

“So, if you refuse to answer, they can pull you out of the line and over into ‘secondary inspection’ and they can probably hold you there for about 20 minutes or so,” she said. “But they cannot do anything more if you continue to refuse to respond unless something else develops during that time period that would lead to probable cause.”

More than one motorist in the video declined to pull over into secondary inspection, yet they were allowed to go on their way without incident.

“I don’t know of any case where the person has refused to go into secondary inspection as in the YouTube video,” says Barbara Hines, a clinical professor of law at UT who co-directs the immigration clinic with Gilman. “But it is a very interesting civil disobedience idea. Because in order to arrest the person, the Border Patrol, again, would need probable cause.”

I happened to have a trip planned to the Valley last weekend. On my way back to Austin, I stopped at the checkpoint in Sarita. Rather than refuse to answer the question, “Are you a U.S. citizen?” I asked the agent whether or not I was legally obligated to answer. She was taken aback at first, asking if I was going to pull a camera on her. I told her I was doing a story for the Texas Observer, which probably ensured that I would get out of there without a hassle.

Her supervisor referred me to the Border Patrol Public Affairs Office in Falfurrias and I went on my way never having revealed my citizenship.

By email later, a Border Patrol spokesman gave me the answer I was looking for: “Although motorists are not legally required to answer the questions ‘are you a U.S. citizen and where are you headed,’ they will not be allowed to proceed until the inspecting agent is satisfied that the occupants of vehicles traveling through the checkpoint are legally present in the U.S.”

Border Patrol agents are granted authority to question the occupants of vehicles traveling through an established checkpoint based on U.S. vs. Martinez-Fuerte. That was a 1976 Supreme Court decision that said permanent or fixed checkpoints set up by the U.S. Border patrol on public highways leading to or away from the Mexican border are not a violation of the Fourth Amendment.

Congress also gave the Department of Homeland Security authority, through the Immigration and Nationality Act, to conduct searches within a “reasonable distance” of the border, which DHS defines as 100 miles.

Hines points out, however, that federal laws and regulations are subordinate to the Constitution.

So it seems you are within your rights not to answer the Border Patrol agent at an internal checkpoint (this doesn’t go for actual borders!), but the agents are also within their rights to ask you about your citizenship. At least for a while. After that, they’d need probable cause to detain you.

Cindy Casares is a columnist for the Texas Observer. She is also the founding Editor of Guanabee Media, an English-language, pop culture blog network about Latinos established in 2007. She has a Master's in Mass Communications from Virginia Commonwealth University Brandcenter. Prior to her career in journalism, she spent ten years in New York City as an advertising copywriter. During her undergraduate career at the University of Texas she served under Governor Ann Richards as a Senate Messenger during the 72nd Texas Legislature.

  • http://www.facebook.com/rich.roth01 Rich Roth

    Let me check my bias up front: I am an old white balding grandfather, but my Hispanic Father in law was older and whiter than I, ok that’s done.
    I think being polite and answering the questions is what I would want people to do. The job is to find folks illegally entering the country, making their job harder does not help in anyway. It could come back to hurt us all. If harassment takes place then I think you have a right to get bitchy, but those questions asked are not harassment.

    As stated in the article, they do have the legal right to do so, and so if you get away by not answering questions, is that a win, not to me. I would check your legal opinions a little better as well. Not answering simple non threatening questions, can by itself be probable cause. If I go to a judge, the right judge of course, and say I have 100 people that answer the simple question with out a problem and one that does not, and I thought that was suspicious enough to ask for more information, they did not provide any so I reasonably believed they were not US Citizens, and arrested them. The judge will find for the officer almost every-time. But hey if you think it is worth it go for it. Lord help you if they ask me the guy behind you if I thought you were driving suspiciously like you wanted to avoid the check point, cuse I am going to say yes.

    I do not need any terrorists entering the US, and with 10 million illegal residents here, it terrorizes me.

    • http://www.facebook.com/jarrisjarris Jarris Macias Jrmx

      their job harder? they have technology which its supposed to be the best in the world (after all its the USA) and they take forever, they act lazy , they ask nonsense questions that they dont have ANYTHING TO DO with border crossing, besides the checkpoints from USA towards MEX are very OBSOLETE, the guys asking me where did I buy my sunglasses? Come on! i told him, what does this have to do with me crossing to Mexico ? … he said “Go ahead sir” …. they make it more difficult on them.

  • http://www.facebook.com/jarrisjarris Jarris Macias Jrmx

    oh is that so? well let me tell you guys i was almost beaten by CBP agents because i was using my ipod and one of the stupid racist caveman that the have abusing hispanics he cussed at me because I told him it was not a phone, it was an ipod, immediately he called for backup and the other cavemans ran for his help! finding nothing on my vehicle. I was there detained in there for hours in a cold room. so no matter what they do as they wish.

    • DakTo

      It sounds like you got what you asked for.

  • http://josedmorales.net/ Joe Morales

    Well, it is indeed a very interesting civil disobedience and even though the Border Patrol spokesman says that unless you agree to respond these questions they won’t allow you to go any further, it doesn’t happen in any case from the video. Either the border patrol agents are not informed about that (then why are there untrained agents on duty?) or something is wrong here.

  • Tony Trevino

    Plain and simple. Harassment. It goes on every day. I recall being stopped on highway 83 going to Laredo to visit sister in Laredo hospital and they asked me where I was going. What the f ___. Ridiculous. Idiots. I still don’t like to go down there- and I am from there.

  • http://www.facebook.com/skiprt Skip Tollifson

    Checkpoints have been reported many times to be obstructive and not respectful of the rights of U.S. citizens. The United Nations High Commission on Human Rights (UNHCR) repeatedly includes Immigration Customs Enforcement (ICE) among serious offenders in the world. Congress should find some other way to secure the borders. And, on the border is where the check points must be. Not in Milwaukee or a 100 miles from cheap gas in Mexico or duty free booze in Canada.

  • Robin Jones Massengill

    Yesterday while returning home from Las Cruces New Mexico, I went through the border check between Las Cruces and Deming. It is my understanding that they are looking for illegals and drugs. They did have 2 dogs working, which neither hit on my mini van. I was never asked if I was a US citizen. I am a white person, so maybe he figured I was, but he asked me where I was going, I told him home to Silver City. He asked where I had been, I told him Las Cruces for jury duty. He asked me which court. I told him I didn’t know, but I gave him the address of the court, which I knew because I put it in my gps to get there & then I asked him if he wanted to see my summons, he said no. Then he asked me if it was my van, I said yes, he asked me how long I had had it for, I am not sure, maybe since 2007. Then he sends me on my way. What was that all about? So, you have a white grandma, going home from jury duty selection in a mini van with cat stickers on her window and a front lic. plate that says “it’s all about me” I think that really screams, I am illegal drug carrier, stop me!! LOL