Since Donald Trump returned to the White House, he has carried out the hardline immigration policies he promised on the campaign trail.
Trump’s administration sent migrants to the Guantánamo Bay naval base in Cuba – with little access to legal counsel – and singled out two pro-Palestinian academics for deportation. The administration also failed to return El Salvador-destined deportation flights in potential violation of a court order.
But in recent weeks, immigration authorities have also repeatedly detained US-bound tourists at the border, sparking public and diplomatic outrage abroad and fears among many people planning trips to the US, or living in the country on visas.
Examples have made global headlines. A British woman said that Immigration and Customs Enforcement (Ice) detained her for three weeks after a mixup at the US-Canada border. Canadian businesswoman and actor Jasmine Mooney said she was detained by Ice for two weeks. Jessica Brösche, a 29-year-old tattoo artist from Germany, was held in immigration detention for six weeks before returning home.
There’s suspicion that in some cases people were turned away over anti-Trump views. Among them is a French scientist who was denied entry after immigration officers at an airport found messages on his phone that were critical of Trump, France’s minister of higher education said.
With serious concerns growing about whether visitors can safely travel to the US without fear of landing in immigration detention, here is a brief guide to international visitors’ rights.
I have valid travel documents. Can customs officers stop and search me?
Yes. US customs officers can stop people at entry points to assess whether they can come into the US. They are permitted to search travelers’ belongings for contraband, according to the ACLU of Pennsylvania.
They can do this even if there’s nothing suspicious about you or your belongings. Customs agents are not allowed to search you or conduct another inspection “based on your religion, race, national origin, gender, ethnicity or political beliefs”.
What about my mobile phone?
The government asserts that their authority to search travelers without individualized suspicion also includes searches of electronic devices, including cellphones and laptops. That said, this assertion remains “a contested legal issue”, the ACLU said. Customs officers have at times asked travelers to give them their phone or laptop passwords when they going to or from the US.
And if I refuse to unlock my devices?
Citizens of the US can’t be denied entry if they refuse to provide passwords or unlock their devices. However, if they refuse, it could prompt a delay, still more questioning and customs officers taking their phone for further inspection.
This should also be true for US lawful permanent residents who have been admitted to the US before and maintain their immigration status, as their green cards “can’t be revoked without a hearing before an immigration judge”. For visa holders and travelers from visa waiver countries, they are at risk of being denied entry if they refuse to unlock devices, the ACLU said.
If my country is in the visa waiver program, can I enter?
In general, the visa waiver program allows citizens of about four dozen countries to enter for up to 90 days without a visa for tourism or business. Citizens of the US, in turn, can travel up to 90 days in program countries.
However, travelers from waiver program countries still need valid Electronic System for Travel Authorization (ESTA) approval before they come here for at least 72 hours prior to getting on a flight, the New York Times explains.
The tricky part is that you can’t get an ESTA if you traveled to certain places after specified times, such as Cuba after 12 January 2021, the Times said. Without an ESTA, a tourist visa is necessary.
I have an ESTA. Does that mean I can work?
Visitors coming to the US with an ESTA are prohibited from studying or engaging in permanent work. ESTA visitors also give up many rights, such as the right to fight deportation – meaning that persons traveling with an ESTA could wind up facing “mandatory detention”, the Times said.
Does a visa allow me to work?
There are three types of visas for non-immigrant visitors to the US. There is a visitor visa allowing temporary entry for business purposes, a tourism visa, and a visa for business and travel.
The three visas last as long as a decade but visitors with these visas can stay a maximum of six months in the US. Among other things, visitors with these visas are not allowed to do permanent work or study, or engage in paid performances, according to the New York Times.
Even if your documents are in order, that doesn’t guarantee admission into the US. According to the Department of State, customs officials “have authority to permit or deny admission to the United States”.
What happens if I’m detained?
Civil rights advocates now suggest that visitors into the US, especially people who are not citizens, bring information to call an immigration lawyer or emergency contact if they encounter problems. “The stories are definitely concerning,” Noor Zafar, senior staff attorney with the ACLU’s Immigrants’ Rights Project, told the Washington Post.
Zafar reportedly said that if travelers are detained, it’s advisable to comply with immigration officers’ directions – and get in touch with a lawyer immediately.
So what rights do I actually have?
Visitors to the US do have the right to remain silent. But choosing to do so at an entry point could jeopardize entry.
If a customs agent asks a visitor with a tourist visa whether they were going to work during their stay, and that person doesn’t answer, then it could result in their being denied entry.
If a visitor is not allowed to enter the US, they can “withdraw” their intent to do so and be permitted to return home. Typically their visa gets canceled and they fly back right away.
An officer could deny this withdrawal, however, and detain the visitor. That is because these encounters technically take place outside the US and constitutional protections don’t hold. As a result, detainees in this situation don’t automatically have the right to an attorney.
How does this work?
“If you’re a foreign national, first understand you haven’t affected an entry despite being physically on US soil until you’re admitted properly,” said immigration attorney Michael Wildes, managing partner of Wildes and Weinberg and a professor at the Cardozo School of Law.
“It’s a term of art when you’re admitted fully to the United States,” he said. When a person lands on US soil but is not technically admitted, “you might be considered to be what’s called an ‘arriving alien’.
“You have greater rights as a criminal than as a foreign national coming with a visa.”
