>>Immigrants have a uniquely difficult problem in the failure cases implied in that sentence, because they don't have access to many of the toothy, enshrined-for-generations remedies that citizens have with regards to overreach by agents of the government.

I was wondering about this as I read the article. She was technically on US soil (I think), which means most Constitutional protections apply to her regardless of whether she's a citizen. So she must have had the right to remain silent and ask to see a lawyer.

edit: I guess we can no longer have polite conversations on HN without getting downvoted.

That conversation goes something like:

"Tell me why you are coming to the United States."

"I refuse to answer, on the basis of the Constitution."

"I find that you have no legitimate purpose to be in the United States. You are accordingly denied entry, and will be briefly detained while we arrange for you to be sent to the last country you were in."

"I would like to speak with an attorney. You have to do that when you arrest people."

"You are not under arrest. This is not a criminal matter."

"My lawyer will disagree."

"He is welcome to take it up with the Supreme Court. It didn't work out that well the last three times. 'The power of the state is at it's zenith at the border.' I love that word zenith. Zenith, zenith, zenith. That implies your legal privileges are at their nadir, by the way."

"I will call him immediately. I get a call, right?"

"That's a convention in US movies, for some reason, but it has never been a legal requirement. Funny thing, movies."

All too true. Even though our founding documents say 'all men' have 'inalienable rights', somehow they don't apply to our neighbors. Because they are not men, or not deserving of rights. Always seemed hypocritical to me.

The Declaration of Independence isn't a binding legal document.

"American Consitutionalism rests on four pillars: the Declaration of Independence; the Articles of Confederation; the Northwest Ordinance of 1787; and the Constitution. These fundamental documents, which have the collective title "The Organic Laws of the United States of America", are the first section of THE UNITED STATES CODE, the official text of the statute laws of the federal government."

And? The Declaration of Independence is not a binding legal document. It's legal significance is exclusively as an input to the Constitution. (Well, that and severing us from England).

You probably ought to make the provenance of that quote known, too:

http://candst.tripod.com/doinotlaw.htm

Or, just read more of his site; the most recent SCOTUS decision he cites on it includes the text:

"The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts"

I have to ask... if you believe that the Declaration is a binding legal document, do you also believe, as the Declaration asserts, that all our rights come from God?

So, the statement of our founding principles are just verbal chaff to be ignored? Hypocrisy isn't a legal state; its a moral one.

That's a bit of a tangled mess, there. For starters, the unalienable rights are "Life, Liberty and the pursuit of Happiness". Not the right to a lawyer.

"Among them are ". Due process is part of it too. The bill of rights should figure in there somewhere as well.

According to the Supreme Court, the acceptable timeframe for a detention is around 20 minutes.

http://criminal-law.freeadvice.com/criminal-law/arrests_and_...

>>In a detention, the police only need reasonable suspicion to stop an individual, and a reasonable person would feel as though they could leave in a short amount of time. This timeframe can vary a bit based on the circumstances, but the U.S. Supreme Court has held that 20 minutes or so is a reasonable timeframe for detaining someone.

In other words, if you're being forced to wait in some office for hours (as is usually the case in these types of matters), the Supreme Court would say that it no longer counts as detention at that point.

But would it count as an arrest? Further down in that article, it says:

>>An arrest is characterized by the idea that a reasonable person would not feel free to leave due to the actions of the law enforcement officers. This usually means that the officers take the individual into custody. Custody can mean a number of things. An individual may be taken into custody by driving them back to the police station. However, courts have also held custody to mean any situation in which an individual reasonably believes that they will not be able to leave within a short period of time.

Aha. So being forced to wait in an office while they arrange for your return flight home is indeed an arrest.

Of course, like you point out, these are not the types of situations in which one can challenge the authority of the state officials. Still though, I do want them to detain the wrong person one of these days and get their asses pwned in a lawsuit.

But see, for example,

https://en.wikipedia.org/wiki/Border_search_exception

>Aha. So being forced to wait in an office while they arrange for your return flight home is indeed an arrest.

Not so sure about that. Are they detaining you, or simply not allowing you to enter the US?

Let's say you walk up to my front door, and I won't let you into my house. Would I be 'arresting' you on my front step by not granting you entry into my home?

> Let's say you walk up to my front door, and I won't let you into my house. Would I be 'arresting' you on my front step by not granting you entry into my home? No, but it'd be an arrest if you told me that I couldn't leave your porch unless you let me in or forced me out.

The government's position is that the rights that one has in an encounter with law enforcement don't apply in the same way during an admissibility or customs inspection prior to admission to the U.S. For example, they say that one does not have the right to assistance of counsel during these inspections.

Jacob Appelbaum tweeted a lot about how he used to get stopped and questioned when entering the U.S.; they apparently never granted his request to have the assistance of a lawyer during these events.

One difficulty is that the government's view is that refusal of admission to the U.S. (the border equivalent of deportation) is not in the same conceptual category as a criminal punishment. In fact, in their view it's not a punishment at all, just a core sovereign act of the state.

I worked with some lawyers to write a guide about border searches of electronic devices. One question that comes up a lot is whether there's a fifth amendment right to silence during a border inspection (whether about one's possessions generally, or about one's passwords). My recollection is that the lawyers I was working with considered this question somewhat unresolved. A common assumption has been that U.S. citizens and permanent residents will eventually be admitted even if they are uncooperative with an inspection, but they might be detained temporarily and their possessions might be seized in some circumstances. People who don't have either legal status might be refused admission (right then and also in the future!) as a punishment for declining to answer questions, but the government might argue that it's not a punishment at all.

Maybe I should emphasize that this is my recollection of what some people thought was likely to happen, and not a legal analysis of caselaw or an individual legal situation.

You're not on US soil until you've passed through customs and security. The international border (airports included) is a limbo zone, where the Constitution doesn't really apply.

Also not true.

There are many, many, many cites I could pull for this, but might as well grab the a pertinent graph where the Supreme Court considers the question of whether a seizure of contraband specifically authorized by an act of Congress at the border nonetheless violates the Fourth Amendment's prohibition on "unreasonable" search and seizure. After extensive analysis of relevant case law and the history of the United States they conclude:

Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be "reasonable" by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless "reasonable" has a history as old as the Fourth Amendment itself. We reaffirm it now.

http://www.law.cornell.edu/supremecourt//text/431/606

Reasonable people can disagree with the Supreme Court on whether their application of the Constitution is as broad or narrow as it should be in any particular circumstance, but it is fairly clear that they did not write "The Constitution does not apply at the border!"

thanks