Thoughts on Internal Passports

Ahh, central Maine. Real Maine. The Way Life Should Be. The land of moose and mountains. The land of dial-up. The land of no ambulance coverage. The land of no jobs. The absolute apotheosis of bright flight. The place where, in some counties, more than fifty percent of all homes are abandoned (not just empty, not just for-rent; abandoned). The place where, in some towns, the average age is north of fifty years old. One of the many corners of the developed world whose only hope for survival is immigration.

And now, indeed, we’re doing this.

As you can see, I have objections to this from a policy perspective. However, a friend asked for comments about it as a matter of law enforcement procedure. I said this:


My understanding is:

-At any point within 100 miles of a US border – AKA, in most of Maine – CBP can request information as to the legality of your presence on American soil (your “status”) without any suspicion, let alone probable cause, RAS, or exigency.

-(And I’m pretty sure there’s a justification for search if you’re within 100 miles of a Port Of Entry, such as Portland – so that’s all of Maine, really.)

-Any person can refuse to so self-identify.

-Doing so carries no penalties. You cannot be arrested or detained.

-HOWEVER, doing so creates a suspicion that you are out of status.

-AND, this suspicion DOES allow CBP to detain you.

-This detention can include their taking steps to determine your status; and, if you are out of status, arrest and/or remove you.

-It can also involve a full warrantless (“inventory”) search of your person, vehicle, and effects.

-I am unsure if a US citizen could face penalties for failure to produce identification *after* they have been detained. I am unsure if a non-US citizen who is in status (LPR, visa, TPS, etc.) could face penalties, either criminal or immigration-related.

-As things stand, this is all legal and constitutional – both as to people in and out of status.

-This is not, unfortunately, the legal definition of “entrapment.” Jacobson v. United States, 503 U.S. 540, 548 (1992)

-Even if this did meet the legal definition of a “police-created exigency,” we don’t care about that. Kentucky v. King, 563 U.S. 452 (2011).

I say “my understanding” because 1) I’m not primarily an immigration attorney, and 2) In the last 18 months, the field of immigration law has gone from “complex” to “chaos and uncertainty.”

I would also like to point out that CBP’s claims that this is intended to effect drug smuggling interdiction are pretty silly. I am not aware of any link between status and smuggling. Most drug smugglers in Maine are US citizens. (They are overwhelmingly white, native-born Mainers.) This check would not detect their activities. As such it would in no way deter them.

As a prosecutor I saw a number of smugglers who were non-US citizens. These were mostly white Canadians. However, they were all lawfully present in the US, either on long-term visas or just having driven their Harleys over for a few days. As a result, this check would not interrupt their activities either.

As such, this new “enforcement mechanism” will in no way result in a disruption of America’s drug supplies.

(Furthermore, it seems clear that disrupting America’s drug supplies will not actually alleviate America’s drug problem – another layer of policy difference.)

Also, while these status checks will cause a small reduction in the number of out-of-status people in America, 1) I am still unconvinced that this is really a thing we should be effecting, and 2) I am wildly unconvinced that doing so requires us to undergo these police-state indignities to our privacy and our liberty. And by “us” I mean both US citizens, non-citizens who are in status, and even non-citizens who are out of status.


~ by davekov on 21 June 2018.

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