Aug 08 2019

CBP lies about US citizen with ID detained at non-border checkpoint, held for 26 days

Francisco Erwin Galicia, an 18-year-old Dallas-born U.S. citizen, was detained by US Customs and Border protection officers at a checkpoint in Falfurrias, Texas, on June 27th, while on his way to a youth soccer event with a group of relatives and friends, and held until July 23rd. He was held incommunicado for the first several weeks, and was kept in  CBP custody even after he was able to contact his family and a lawyer. He was released less than 24 hours after his detention was reported by the Dallas News.

As what happened to Mr. Galicia has been more widely reported,  he’s become a poster child for everything that’s wrong with the CBP and it’s checkpoints. That’s appropriate, but it’s also worth noting that:

  1. This isn’t the worst mistreatment that’s been imposed on US citizens by CBP. Mr. Galicia was held in the US rather than being deported (because, despite threats and intimidation, he refused to consent to “voluntary” deportation), held for less than a month, and released without gross physical injuries (although presumably with psychological trauma) Other US citizens, including those cases have been tracked and documented by Prof. Jacqueline Stevens and her students at the Deportation Research Clinic at Northwestern University, whose  have been deported from the US, spend years or in some cases decades abroad before being able to return, or suffered permanent physical injuries from maltreatment, neglect, or violence in custody or in countries to which they were wrongfully deported.
  2. This isn’t about border security, immigration, or US borders. Mr. Galicia wasn’t detained at the US border, while trying to cross the border, or on the basis of any particularized suspicion that he had done so or tried to do so. He was detained at a suspicionless checkpoint operated for general law enforcement purposes (mainly to find small amounts of marijuana and sometimes other drugs) 60 miles from the border. This is about controls on internal movement within the US.
  3. This isn’t about not having, not carrying, or not showing ID. The permanent checkpoint in Falfurrias has been in continuous operation for years, and Mr. Galicia knew that — whether it was legal or not — he’d have to be interrogated by CBP officers, and quite likely have to show his papers, to get to the next town. Mr. Galica was carrying, and showed the CBP officers at the checkpoint, his birth certificate, state ID card, and Social Security card. Ironically, this is exactly the combination of documents that would be required to obtain a “REAL-ID Act compliant” ID: three separate documents providing evidence of citizenship (birth certificate showing birth in the US), state residence (Texas state ID), and Social security number.
  4. It wouldn’t matter if Mr. Galicia were a dual citizen. CBP later claimed to have been confused by other documents carried by Mr. Galicia that they though suggested he might have been a Mexican citizen. But it’s not a violation of US law or a bar to US citizenship to hold by birthright, or to acquire, citizenship of Mexico or of any other country or countries. Millions of US citizens are legal dual citizen or multiple citizens, with the largest numbers of US dual and multiple citizens holding citizenship in Mexico, Canada, Ireland, the UK, and/or Israel in addition to US citizenship. Evidence of Mexican or any other citizenship is not evidence of lack of US citizenship.
  5. CBP officials lied about what happened to try to justify their actions, with one CBP official perjuring himself before Congress in testimony whose falsehood is proven by official CBP records served on Mr. Galicia and his lawyer.  Brian S. Hastings, Chief of Law Enforcement Operations for the US Border Patrol division of CBP, told the House Judiciary Committee in response to questions at an oversight hearing on July 25th that throughout his time in custody Mr. Galicia had never told the CBP officers who arrested or detained him that he was a US citizen. (The question from Rep. Ted Lieu and Rep. Eric Swalwell and the perjured answer by Chief Hastings begin at 4:45:00 of this video of the hearing.) But the Notice to Appear served on Mr. Galicia and signed by the acting Border Patrol agent in charge, alleges on behalf of CBP that Mr. Galicia was “found” at the CBP checkpoint in Falfurrias, “more than 25 miles from the United States border with Mexico”,  on June 27th, and “At that time, you… represented yourself to be a citizen of the United States,” as in fact Mr. Galicia was and is. Rep. Lieu and several other members of Congress have asked for better answers from CBP, but that’s not enough. By now, Mr. Hastings should have been charged with perjury. So far as we can tell, he remains at large, on the job and on the payroll of CBP.
Aug 05 2019

Questions about the REAL-ID Act

Fragmentary and jumbled records related to the REAL-ID Act of 2005 released by the US Department of Homeland Security in response to one of our Freedom Of Information Act (FOIA) requests don’t reveal much about DHS policy, but do provide a glimpse of DHS practices and plans.

The DHS has been threatening to harass, interfere with, or bar access to facilities or passage through checkpoints (including, but not limited to, those at airports) to people who don’t have, don’t carry, or don’t show ID; show ID that the DHS doesn’t deem compliant with the REAL-ID Act; or show ID issued by states or territories that the DHS deems insufficiently compliant with the REAl_ID Act.

These threats to deny equal rights to residents of noncompliant states and territories have been central to the DHS campaign to extort compliance from state and territorial officials reluctant to upload their residents’ data to an outsourced, privately-held national ID database.

But what sort of enforcement problem, at what scale, is this likely to pose for the DHS and those collaborators carrying out its REAL-ID directives? How many people will be affected, at what sorts of facilities and locations, in what circumstances?  Inquiring minds want to know, including opponents of the REAL-ID Act like ourselves, but also including officials at DHS headquarters trying to devise a workable REAL-ID enforcement plan.

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Jul 12 2019

CBP settles lawsuit challenging demand for ID from arriving domestic airline passengers

The US Customs and Border Protection (CBP) division of DHS has agreed to a settlement with passengers who were ordered to show ID documents before they were allowed to leave a Delta Air Lines plane after it arrived in New York after a flight from San Francisco.

Nine of the passengers on the February 2017 flight , represented by the ACLU and cooperating lawyers from Covington & Burling, sued the CBP and CBP and Immigration and Customs Enforcement (ICE) officials. They complained that the warrantless, suspicionless dragnet search of the ID documents of everyone on the plane violated the 4th Amendment, and that the CBP policy for such searches was invalid.

In their answer to the court complaint, the defendants admitted “that the officers did not have a search warrant or probable cause to arrest Plaintiffs, the officers did not arrest Plaintiffs, and the officers did not have reasonable suspicion to conduct a Terry stop, nor did they conduct a Terry stop of the Plaintiffs.” But they claimed that this was an isolated incident, not a matter of CBP policy or practice. The CBP port director for JFK airport, who had told reporters that ID checks on arriving passengers were “routine” and happen “every day”, changed his story in court and submitted a declaration that had never heard of another such incident.

Noting the factual issue raised by the contradictions between the statements made by the same CBP officials to the press and to the court, the court denied the defendants’ motion to dismiss the complaint, and ordered the defendants to disclose their policies for “training of …  CBP officers as regards compliance with the Fourth Amendment to the U.S. Constitution in locations within the United States other than within a Customs security area.”

As the deadline for that discovery order was expiring, the defendants agreed to a settlement. The settlement requires CBP to pay the plaintiffs’ legal fees and train all CBP officers (a) that “CBP Office of Field Operations does not have a policy or routine practice of compelling or requesting that passengers deplaning domestic flights submit to suspicionless document checks”, and (b) that “to the extent feasible”, when CBP conducts “consensual encounters” (search and interrogation) of domestic airline passengers, they should inform those passengers that cooperation is voluntary and that “passengers who decline to cooperate will not suffer any enforcement consequence as a result”.

The settlement is a (small)step in the right direction. But it leaves unresolved several of the key legal issues raised by demands by law enforcement officers for airline passengers to show evidence of identity in order to be allowed to deplane:

  1. Does CBP (or any other law enforcement agency) have the legal authority to demand that airline passengers identify themselves? The settlement says that CBP doesn’t have a  “policy or routine practice ” of doing so, but is silent on whether it claims, or has, the legal authority to do so or to adopt such a policy or practice in the future.
  2. What about ID demands of arriving passengers that aren’t carried out pursuant to a “policy” or as part of a “routine practice”?  Are they reasonable or consistent with the Fourth Amendment? The ACLU continues to argue, and we agree, that, “If officers want to check [domestic] passengers’ identification documents, they can only do so with the passengers’ consent. And if a passenger does not consent, the officers cannot detain that person, even for a brief period, without reasonable suspicion of a violation of the law.” But the settlement is silent on the Constitutionality of such seizures or demands for ID, even if they affect every passenger on a particular flight.

Despite this settlement, it remains for a future case for the courts to squarely address and rule on the Constitutionality of demands for airline passengers to show ID.

 

Apr 04 2019

TSA plans to put new lying signs in airports

This sign is a lie.

According to a press release  issued today by the Transportation Security Administration, the TSA plans to start posting signs as shown above in airports throughout the USA, claiming that “ID Requirements Are Changing” and that  “Beginning Beginning October 1, 2020, you will need a REAL ID compliant license or another acceptable form of ID, such as a valid passport or U.S. military ID, to fly within the U.S.”

According to today’s TSA press release:

REAL ID-compliant licenses or other acceptable forms of ID, such as a valid passport, federal government PIV card or U.S. military ID, will be mandatory for air travel beginning on October 1, 2020. Critically important, on October 1, 2020, individuals who are unable to verify their identity will not be permitted to enter the TSA checkpoint and will not be allowed to fly.

These signs and this and similar press releases are lies.

This isn’t the first time, and probably won’t be the last, that the TSA and/or DHS have made lying statements, issued lying press releases, or posted lying signs about the REAL-ID Act and ID to fly.

Is ID required to fly? No.

One would expect “requirements” announced by a Federal agency to be contained in laws or regulations. But the TSA’s own lawyers, officials, and witnesses testifying under oath have told judges in every lawsuit ion which the issue has arisen that no law or regulation required domestic air travelers to have, carry, or show any ID cards or credentials.

The TSA’s responses to our Freedom Of Information Act (FOIA) requests for its records of people who show up at TSA and TSA-contractor checkpoints at airports without ID show that more than 98% of them — hundreds a day, and tens of thousands every year — are allowed to continue to board their flights without carrying or showing ID.

Is this scheduled to change? No.

Changes to Federal laws require action by Congress. No bill has been introduced in the current Congress (or ever, so far as we can tell) that would impose any ID requirement for air travel.

Changes to Federal regulations require a process governed by the Administrative Procedure Act that starts with a “Notice of Proposed Rulemaking” (NPRM) published in the Federal Register.  No notice of any proposed rules related to ID to fly has been published.

In 2016, the TSA published a notice that it planned to seek approval from the Office of Management and Budget (OMB) — but had not yet sought that approval — for a new version of a form some air travelers without ID have been asked to fill out. (Because the form has never been submitted to, or approved by, OMB, its use is illegal and no penalty can lawfully be imposed for declining to respond to the questions on the form.)

We pointed out to the TSA and OMB that it was improper to ask OMB to approve this form without first enacting a law or promulgating regulations providing a legal basis for the form. Other organizations and individuals also objected to the proposed form. The TSA has neither responded to any of the objections nor submitted the form for OMB approval.

Will the REAL-ID Act of 2005 change this? No.

The REAL-ID Act and implementing regulations are concerned only with which ID cards are considered “acceptable”, in circumstances in which some (other) valid Federal law regulations requires ID for some Federal purpose. The REAL-ID Act itself did not purport to impose any new ID requirements, either when it was enacted, in 2010, or ever.

Will I still be allowed to fly without ID in the future? Maybe, maybe not. That’s up to the TSA.  But if the TSA or its contractors prevent you from traveling, without a lawful basis, they will be violating your rights and breaking the law.

Since the TSA is wielding power by secret internal orders and security directives to staff, contractors, and airlines, announced (if at all) through press releases rather than through proper formal notices in the Federal Register, it’s impossible to say with certainty what it will try to do. What it will do is likely to depend, in significant part, on its assessment of how widely and strongly particular assertions of illegitimate authority will be resisted.

The TSA has been making threats to start harassing residents of states and territories that it hasn’t chosen — in what it has claimed is its standardless discretion — to certify as being sufficiently “compliant” with the REAL-ID Act, or to give extensions of time to comply. These certifications and extensions of time have had little apparent relationship with actual compliance, so they too are impossible to predict.

The next of these threats is an extension of time to California to comply with the REAL-ID Act which is scheduled to expire at the end of the day on April 10, 2019.

We suspect, especially after today’s press release — which focuses on an arbitrary date of October 1, 2020, rather than any of the “extension” expiration dates — that the DHS will either certify California and all of the other states and territories as “compliant” (even if they aren’t) or extend their time to comply until October 1, 2020.

Apr 01 2019

DHS continues to extort participation in REAL-ID database

If there is one truth hiding in the forest of DHS lies about the REAL-ID Act of 2005, it’s that the DHS doesn’t want to cause riots at airports by subjecting residents of disfavored states to  more intrusive searches and “ID verificationinterrogation when they travel by air.

The goal of the REAL-ID Act is to intimidate states into adding their residents drivers’ license and state ID data to the SPEXS national ID database, through threats to harass residents of states and territories that aren’t sufficiently compliant.

Like any extortionist, the DHS wants its victims to submit, and doesn’t really want (and may not even be prepared) to carry out its threats.

But what will the DHS do when its bluff is called by states or territories that are either unwilling or unable to comply?

Today, April Fools Day, we’re seeing the latest test of the answer to this question, with the US Virgin Islands as the target of DHS threats.

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Jan 22 2019

9th Circuit: Passengers in a car don’t have to identify themselves

Passengers in a car stopped by police don’t have to identify themselves, according to the 9th Circuit Court of Appeals.

That holds even in a state with a “stop and identify” law, and even if the initial stop of the car (for a traffic violation committed by the driver) was legal.

The opinion by a three-judge panel of the 9th Circuit earlier this month in US v. Landeros is one of the most significant decisions to date interpreting and applying the widely-misunderstood 2004 US Supreme Court decision in Hiibel v. Nevada.

Many police think that the Hiibel decision upheld the Constitutionality of requiring anyone stopped by police to show ID. But that’s not what the Supreme Court actually said.

The 9th Circuit panel that decided US v. Landeros read the Hiibel decision carefully and correctly, and gave important and explicit guidance on the narrowness of its findings and what it actually means for people who are stopped and asked for ID by police.

What does this mean for you, especially when or if you are in the 9th Circuit or want to raise the 9th Circuit’s latest decision as persuasive authority in another circuit?

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Jan 21 2019

“Refugees could travel to Europe or America by air. What’s stopping them?”

An article by Saad Hasan for TRT World (the English-language news service of Turkey’s national public broadcasting  network) highlights a life-and-death issue for refugees: Why are thousands of asylum seekers who could afford to buy a plane ticket to Europe or the USA dying every year trying to cross the Mediterranean Sea or the Sonoran Desert to reach a country where they can find sanctuary from persecution?

The answer, as we told TRT World, is that, “These deaths of the asylum seekers during migration are a direct consequence of carrier sanctions. Sanctions imposed by governments on airlines for transporting unsuccessful asylum seekers are killing thousands of people a year directly around the world.”

The article notes that, “The Geneva Convention allows an asylum seeker to board a commercial flight even without a visa. But airlines face the risk of paying a fine if that person’s application is rejected and he has to be flown back.”

We’ve raised this  issue repeatedly with the UN Office of the High Commissioner for Human Rights.  Just last week, we asked the UN Human Rights Committee to include it in its list of issues for the upcoming review of US implementation of the International Covenant on Civil and Political Rights:

An asylum claim cannot be made or adjudicated until after a claimant arrives in a country of refuge. Asylum seekers cannot be required to have any specific documents, and their inability to obtain travel documents from a government from which they arefleeing may be part of the evidence supporting their asylum claim.

A common carrier has an obligation to transport all passengers willing to pay the fare in its tariff.

But the U.S. imposes civil fines on airlines and other carriers that transport unsuccessful asylum seekers. These “carrier sanctions” turn inherently unqualified airline ticket sales and check-in clerks into de facto asylum judges of first and last resort, with a government-imposed financial incentive to err on the side of denial of transport. For asylum seekers, denial of air transportation either acts as a categorical bar to reaching U.S. territory to make a claim for asylum, or leads asylum seekers to use irregular and often fatally unsafe routes and modes of land or sea travel to reach the U.S.

Some other sources interviewed by TRT World suggested that the consequences of “carrier sanctions” could be mitigated by issuance of “humanitarian visas” for asylum seekers. But as we pointed out, “Foreign embassies and airports are closely watched by local police. If someone comes to the embassy seeking asylum and isn’t immediately given sanctuary then they can be subject to additional persecution.”

Solving the problem of deaths in transit doesn’t take a lengthy legislative process like introducing a humanitarian visa. Almost by definition, not everybody who applies will be given such a visa. And any visa will have to be applied for at a consulate or embassy in a country where an asylum seeker may be subject to retaliation for visiting such a consulate.

All it takes to reduce these deaths is a small change in administrative practice: Stop fining airlines when they bring people to a border or port of entry and the people are not admitted, and enforce their duty as common carriers to transport anyone willing to pay the fare in their tariff.

If the country and the airline don’t want the expense of returning failed applicants for asylum, airline regulations could require that an airline must transport passengers without visas if they have purchased a return ticket or a ticket onward to another country.  This is already required for most visitors to the US or the European Union, even if they have visas. This would double the revenue to the airline for each such refugee. For legitimate refugees, most of those return tickets would expire unused, making them free money for the airline — but not risking the lives of refugees by denying them access to safe air transport.

It’s tempting to some people to think of freedom of movement as something “abstract” or important only to the “jet set”. But nothing could be further from the truth. Administrative restrictions like carrier sanctions, and failure to enforce the duties of common carriers, are a life-and-death matter for some of the world’s most destitute and deserving refugees, those who would qualify for asylum if they could only reach a country of refuge.

Jan 09 2019

How many times will the DHS cry wolf on REAL-ID?

The last time we checked in on the status of the seemingly endless game of “chicken” being played by the US Department of Homeland Security with its threats to start harassing air travelers who reside in states the DHS deems insufficiently “compliant”, every state and territory had been given another “extension” of time to demonstrate commitment to compliance until at least January 10,  2019.

Since then, the DHS, in its standardless administrative discretion, has announced further extensions until at least April Fools Day, 2019 (for the US Virgin Islands), for every state and territory except California and Guam.

But as of today, the DHS website says that, “California has an extension for REAL ID enforcement, allowing Federal agencies to accept driver’s licenses and identification cards from California at Federal facilities, nuclear power plants and federally regulated commercial aircraft until January 10, 2019.”

As of this morning, with the “deadline” less than 48 hours away, we got the following response to our questions about this from a spokesperson for the California DMV:

The State of California has been working for the better part of a year to be deemed compliant with the REAL ID act, unfortunately due to a lack of response on the part of the Federal Government with the ongoing shutdown there has been no final confirmation.

So was that a real deadline for REAL-ID in California?

Is the DHS really prepared to have TSA checkpoint staff — working for indefinitely deferred pay — start trying to carry out time-consuming “ID verification procedures” for everyone who shows up at an airport checkpoint with a California drivers’ license or ID, starting the day after tomorrow?

The answer turns out to be, “No.”

The DHS and TSA have blinked yet again in the face of insufficient state “compliance”.

We’ve just received the following updated statement from the DMV:

The California DMV has confirmed with the Department of Homeland Security (DHS) that they will be granting California an extension to April 1, 2019. Due to the furlough, the letter might not arrive until tomorrow and DHS will likely not be updating their website until the furlough ends. All driver licenses will remain valid and can continue to be used for federal purposes.

And this from a spokesperson for the TSA:

I recently learned from DHS that California’s extension has been extended through April 1, 2019…. Updates to their website are underway.

California doesn’t actually comply with the REAL-ID Act. That would require uploading data about all California drivers’ licenses and ID cards to the SPEXS national ID database, which California hasn’t done and which would probably violate multiple provisions of California’s state constitution. But DHS certifications and extensions are discretionary, and need not be based on any specific criteria or on actual compliance.

There’s still no public word about Guam, the extension for which is also scheduled to expire tomorrow.

Phase 4b” of REAL-ID Act enforcement at airports supposedly started on January 22, 2018. Since then, the only state or territory where the DHS has let a REAL-ID  extension lapse, even temporarily, has been American Samoa, for which another extension has now been granted until October 10, 2019. We’re still waiting for any response to our FOIA request for records of what happened to American Samoans who tried to fly during the period last year when the extension had lapsed.

 

Jan 07 2019

Amtrak thinks it’s OK to spy on passengers because it makes the trains run on time

Buried in the final 500-page PDF file of redacted and munged e-mail messages released by Amtrak in December 2018 in response to a FOIA request we made in 2014, we got the first hint at an answer to one of the questions that originally prompted our request:

What did Amtrak  think was its legal basis for requiring passengers to show ID and provide other information, and for handing this data over to DHS components and other police agencies for general law enforcement purposes?

When US Customs and Border Protection (CBP) asked Amtrak to start transmitting passenger data electronically, it described this as a request for “voluntary” cooperation, noting that while the law requires airlines to collect and transmit this data to CBP, “these mandates do not currently extend to land modes of transportation” (as they still don’t today).

Despite this statement from CBP, someone at Amtrak came up with a way to describe the changes to Amtrak’s systems and procedures to require ID information in reservations for all international trains, and to transmit this data to CBP,  as “required by the U.S. Department of Homeland Security (DHS)” and as “being mandated by the US Border Inspection Agencies [sic].”

In 2004, an Amtrak technology manager was asked, “Do you know if such a [Federal] mandate [to collect information about passengers] exists, or is Amtrak not obliged to participate in this program?”

The unnamed Amtrak IT manager’s response was that:

By statute, the federal government … in cooperation with Amtrak “shall maintain, consistent with the effective enforcement of immigration and customs laws, en route customs inspections and immigration procedures for international intercity rail passenger transportation that will (1) be convenient for passenger; and (2) result in the quickest possible international rail passenger transportation.” 49 USC 24709.

In other words,someone at  Amtrak thinks it’s not merely permitted but required by this provision of Federal law to implement whatever level of intrusiveness of data collection and data sharing will make international trains run more quickly.

It’s arguable, to say the least, whether Congress intended this law as a mandate for ID credentials or data collection, whether collection of passenger data prior to ticketing actually expedites international trains (compared to, as used to happen, conducting customs and immigration  inspections onboard while trains are in motion), or whether demands for ID and passenger information are consistent with the clause of this section requiring that measures taken be “convenient for passengers”. But someone at Amtrak seems to have interpreted this statute as such a mandate, and represented it as such to other Amtrak staff and contractors.

Are there any limits to what information or actions Amtrak would think is required of passengers on international trains, if  that would keep US and Canadian border guards from stopping or delaying trains at the border for customs inspection?

Questions about whether Advance Passenger Information (APIS) was required had been asked not only within Amtrak but by Amtrak-appointed travel agencies, as was relayed to Amtrak by a product manager  for the “Worldspan by Travelport” reservation system:

There’s no indication in the documents we received as to whether this Worldspan subscriber, or any other travel agency, was given any answer to this question.

Notably, no legal basis whatsoever for requiring ID from passengers on domestic trains was mentioned anywhere in the records we’ve received from Amtrak. Nor were any records released that related to Amtrak’s privacy policy, or the legal basis for it, although such records were covered by our request.  We’re still following up with Amtrak on this and other issues, and will file administrative appeals if necessary.

As part of Amtrak’s response to a separate FOIA request, however, we’ve received a redacted copy of Amtrak’s internal directive to staff regarding passenger ID requirements. According to this document, Amtrak stopped requiring passengers to show ID in order to buy tickets as of October 25, 2017.  But no records related to this change, or the reasons for it, were released in response to our request.

Amtrak train crews are supposed to check ID of a randomly selected 10% or 20% of passengers. In our experience, however, Amtrak staff rarely require any passengers to show ID.

Although Amtrak is a Federal government entity, Amtrak’s of list of acceptable ID is much more inclusive than the list of ID that comply with the REAL-ID Act. Amtrak’s list of ID acceptable for train travel includes, among other acceptable credentials, any ID issued by a public or private middle school, high school, college, or university, and drivers’ licensed issued by US states and territories to otherwise undocumented residents.

Amtrak even accepts a “California state issued medical marijuana card“, which doesn’t have the cardholder’s name, only their photo. We’ll leave it as an exercise to our readers to figure out what relationship Amtrak thinks there is between being eligible for medical cannabis and being eligible for Amtrak train travel.

The most reasonable inference is that someone at Amtrak has decided that Amtrak should make a show of requiring ID, but that others at Amtrak don’t really want to turn away travelers without ID. Perhaps they recognize that travellers who don’t have or don’t want to show ID are a valuable Amtrak customer demographic.

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Dec 17 2018

Do you need ID to get OFF a plane?

We’ve reported on several legal challenges to demands for ID as a condition of boarding airline flights.

But what about demands for ID after such a flight, as a condition of disembarking or leaving the airport at your destination?  Is such a demand legal? Must you comply?

The first court case we are aware of to raise this issue began when DHS law enforcement officers from US Customs and Border Protection (CBP) blocked the only exit from a Delta Airlines plane when it arrived at its gate at JFK Airport in February 2017 after a flight from San Francisco, and required passengers to show ID before they were allowed to leave the plane.

Several passengers, represented by the ACLU, sued the DHS, the CBP and the responsible officials, supervisors, and front-officers in Federal court for the Eastern District of New York, which covers Brooklyn, Queens (where JFK Airport is located) and Long Island.

The plaintiffs in the lawsuit, originally Amadei v. Duke and now Amadei v. Neilsen, complain that the demand for ID violated their 4th Amendment right to be free from unreasonable searches and seizures. They also complain that the DHS policy or practice of demanding ID from some passengers disembarking from domestic airline flights was adopted without complying with the due process requirements of the Administrative Procedure Act (APA).

The first significant — although far from final — ruling in the case came on December 13, 2018. The District Court rejected government motions to dismiss the complaint. Judge Nicholas Garaufis found that the passengers had raised sufficiently credible allegations of violations of the 4th Amendment and the APA to entitle them to their day in court.

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