A group of Canadians and French nationals trying to cross into the United States to participate in the Women's March in Washington, D.C. Saturday were detained by border guards and then turned away with no explanation, according to a member of the group.
Sasha Dyck, a 34-year-old nurse who was part of the group, has dual citizenship in the United States and Canada. He said he crosses the border about once a year and didn’t have any problems before Thursday.
He said he was with a group of six Canadians (including himself; Dyck’s U.S. passport is expired, he said, so he used his Canadian document) and two French visitors, all of whom were turned away. The Canadian Broadcasting Corporation (CBC) first reported Dyck’s denial on Friday.
“We were held for two hours, they searched our cars, searched our phones, fingerprinted us, and then sent us back to Montreal,” he said in an interview Friday.
Dyck said a Customs and Border Protection official told the group that they would be arrested if they attempt to enter the U.S. again over the weekend.
Ahead of Barack Obama’s inauguration in 2009, Dyck made the trip to Washington. He said the atmosphere at the border was very different when he crossed that time.
“It was just such a different feeling. The border crossing guards gave me high fives, everybody was so pleased to be open and celebrating with the world. D.C. was one big party,” he said. “I think it’s a very different feeling this time.”
Dyck said he used his American passport in 2009, which likely made it easier for him to get into the country then.
Danielle Rizzo, an immigration attorney in Buffalo, New York, is the chair of the American Immigration Lawyers Association’s liaison committee with U.S. Customs and Border Protection. She said no foreign visitors have a legal right to enter the United States, and that border authorities have broad authority to conduct searches without any suspicion of wrongdoing.
Her assessment of privacy rights at border crossings: “Very little.”
The Fourth Amendment protects against unreasonable searches, Rizzo said, but case law established by federal courts has granted the government the power to search vehicles, people and electronic devices as they cross into the United States.
“It’s often referred to as the border search exception,” Rizzo said, “which basically has upheld the right of CBP to do a suspicionless search on anybody that’s attempting to enter the United States, including U.S. citizens.”
"It's often referred to as the border search exception, which basically has upheld the right of CBP to do a suspicionless search on anybody that's attempting to enter the United States, including U.S. citizens." - Danielle Rizzo, Immigration Lawyer
Dyck said he entered the passcode for his cell phone to unlock it at the request of CBP officials, who then took the phone away.
“They confiscated our electronic devices, which surprised us, but they gave us a brochure saying that is their right at the border when you present yourself, and they also made us unlock them and give our passcodes,” he said. “So for two hours we were without them and we’re not sure what they were doing with them. The brochure said that they could keep all electronic information that might be of interest for national security.”
Rizzo said CBP officials can seize devices if the owner refuses to enter a passcode.
She said a 2014 Supreme Court decision – Riley v. California – created some doubt about the legality of warrantless searches of electronic devices.
“It didn’t involve a border issue at all, but the Supreme Court did hold that in order to search an electronic device within the U.S., that police need a warrant,” she said.
Rizzo said she’s not aware of any border cases since that decision which have challenged CBP’s legal authority to search electronics, but that the courts would need to rule on the legality of those searches with Riley v. California in mind if a legal case challenged that authority.
The alleged threat of arrest by a CBP official wasn’t as strongly based in law.
“In order to be arrested, there would have to be some sort of a criminal offense, if they’re talking about calling the police in to arrest the people,” she said.
But she also said it’s probably a good idea to comply with such a threat.
“CBP does have the authority to do an expedited removal, which is not an arrest, but it does bar people from entering the U.S. for a five-year period, and there’s no appeal for that,” she said.
A spokesman for Customs and Border Protection did not respond to requests for comment Friday.
Rizzo didn’t want to comment on Dyck’s case specifically because she isn’t familiar with it, but she pointed out that people are refused admission to the U.S. regularly for a wide range of reasons.
“If there was any indication that the people might be working in the U.S. or receiving remuneration for services of any kind, that would be a standard refusal … if there was any indication that they were coming to stay longer than they thought, I mean those kinds of refusals happen all the time,” she said.
Dyck said that now that he’s missed the events he was trying to get to in Washington, he doesn’t plan to challenge the denial of entry or raise the issue with CBP, which may still have information taken from his cell phone.
“I really don’t feel like a national security threat,” he said, “but I suppose it’s possible for them that it’s better just to have all information at all times.”
