There are hundreds of videos on YouTube filmed by drivers who refuse to show ID or give information to Border Control agents at interior (non-international border) checkpoints (permanent or arbitrarily) set up along roads, i.e. https://www.youtube.com/watch?v=jLIJF0BnwBU

According to United States Border Patrol interior checkpoints - Wikipedia,

No documentation is required at a Border Patrol checkpoint for US citizens...

Some of these check stations in YouTube videos are within 100 miles of a border; some are not.

The Border Patrol can be very adamant at demanding ID and information.

Do these drivers have a solid legal basis - stating that they have been illegally stopped for no reason, that there can be no probable cause solely by driving near a border, that the constitution forbids these kinds of stops - for refusing to show ID?

Can they legally refuse to show documents and refuse to answer questions as to where they may be traveling to and from? They don't appear to be getting arrested.

Can only US citizens refuse? What about Green card holders?

How does the Border Patrol know determine they may or may not be citizens if the individuals are successful at refusing to show ID?

  • Do you have any evidence supporting your assertion that some of these checkpoints are more than 100 miles from a border? – phoog Nov 3 '17 at 3:53

At an inland checkpoint, vehicles are stopped without individualized suspicion. The question quotes an unsourced statement from a Wikipedia article that US citizens are not required to produce documentation at such a checkpoint, but this statement is not necessarily correct.

If someone claims to a Border Patrol officer that he is a US citizen, the officer can either accept the claim or not. If the officer has a reasonable and articulable suspicion that the person is not actually a US citizen, the officer can continue to detain the person for the purpose of investigating the claim; this investigation can include demands for identification documents.

Furthermore, even if the officer accepts the claim of US citizenship, the officer is nonetheless empowered to investigate other crimes which he has a reasonable articulable suspicion are being committed or are about to be committed.

Finally, if the subject of an investigation disputes the existence of reasonable suspicion, the way to resolve that dispute is not by arguing with the officer. The only place where such a dispute may be resolved is in a courtroom. One can assert to the officer that there's no reasonable suspicion, but if someone refuses to show ID when the officer demands it, that person risks being arrested for impeding the officer's performance of his duties. At that point, you're just gambling that the officer's claim of reasonable suspicion won't convince the court -- but maybe it will. And whether or not it does, you've gotten yourself arrested.

You ask:

Do these drivers have a solid legal basis - stating that they have been illegally stopped for no reason, that there can be no probable cause solely by driving near a border, that the constitution forbids these kinds of stops - for refusing to show ID?

The stops are legal, as decided by the Supreme Court in United States v. Martinez Fuerte in 1976. The officers do not need probable cause to stop vehicles at a checkpoint. The constitution does not forbid the stops, because the Supreme Court has ruled that the constitution permits them.

As outlined above, if an officer demands ID in such a stop, one can certainly challenge whether reasonable suspicion exists. It is wise to clarify whether the officer is demanding ID or merely requesting it. If the officer says the production of ID is required, the subject should make it clear that he is cooperating only because of that fact, and is not producing the ID voluntarily. The same approach would apply if the officer wants to search the person or the vehicle.

Can they legally refuse to show documents and refuse to answer questions as to where they may be traveling to and from? They don't appear to be getting arrested.

In general, yes, it's legal to refuse to show documents unless there's reasonable suspicion of a crime. It's legal to refuse to answer questions even if there is a crime, because of the fifth amendment protection against self incrimination. However, as noted above, in the moment of the stop itself, it's impossible to know whether or not the officer really has reasonable suspicion of a crime. For all you know, someone driving a car identical to yours may be wanted for a crime -- that by itself would create reasonable suspicion even if you are in fact totally innocent.

Can only US citizens refuse? What about Green card holders?

A green card holder can claim that status when asked by the officer. Just as with a US citizen, the officer can accept the claim or ask for evidence to support it. With green card holders, however, there's an additional wrinkle, because unlike US citizens, they are in fact required to carry their green cards on their persons by 8 USC 1304(e); it is a misdemeanor not to have it, and failing to provide it could in fact constitute reasonable suspicion.

How does the Border Patrol know determine they may or may not be citizens if the individuals are successful at refusing to show ID?

They can't really know. All they can do is decide whether they have reasonable grounds to suspect that the person isn't a US citizen. The people that you see on YouTube being allowed to proceed without showing ID are people for whom the officers have determined there is no reason to suspect that they are not US citizens.

  • I just saw this answer, I don't believe showing your ID is legally required when reasonable suspicion exists. You just have to identify yourself. Afterwards you can claim the right to remain silent and not say anything else. You do not have to assist the officer in producing any documents, but you do have to follow lawful orders like get out of the car (obviously you cannot resist arrest, contest false arrest in a courtroom) – Viktor Jan 28 '18 at 22:05
  • I think that the Martinez Fuerte case only answered the question regarding permanent checkpoints, leaving the question of temporary, or ad-hoc, checkpoints still unanswered. Combining what's allowed in that case (a short, non-intrusive stop) with the Rodriguez case(supremecourt.gov/opinions/14pdf/13-9972_p8k0.pdf) should make an interesting test of what further investigations can occur. I've been through these checkpoints plenty of times and it's common to see drug-sniffing dogs. The one outside of Sierra Blanca, TX is famous for turning drug cases over to the local sheriff. – Dave D Sep 19 '18 at 17:14
  • @DaveD I believe you are correct about Martinez Fuerte applying only to fixed checkpoints. At help.cbp.gov/app/answers/detail/a_id/1084/~/… the CBP cites US v. Gordo Marin as a supreme court decision permitting temporary checkpoints, but I don't see evidence that this case was decided by the supreme court; there's a 5th circuit decision. – phoog Sep 19 '18 at 18:00
  • @Viktor you may be right. But if the officer doubts that you are a US citizen or have valid immigration status, it is reasonable to ask for ID in connection with the resulting investigation. If the officer suspects you are an alien not in possession of an "alien registration receipt" (green card or passport stamp, among others) then the officer suspects a crime, and the investigation of that suspicion requires asking for ID. If you don't resolve that suspicion by producing ID (or indeed if the ID itself is subject to suspicion) then the officer is supposed to detain you. – phoog Sep 19 '18 at 18:10
  • Bear in mind that "reasonable articulable suspicion" can be "<sniff sniff> I can smell marijuana". If no marijuana is subsequently found that does not change anything. – Paul Johnson Jan 2 '19 at 12:13

tl;dr According to the ACLU, who are experts on this… yes, it is perfectly legal for you to refuse to provide documentation or ID to border patrol, and your refusal cannot be used as a basis for reasonable suspicion of an immigration violation.

The ACLU has a very helpful guide to your rights when questioned at Border Patrol checkpoints, whether fixed or random. Emphasis in these excerpts is mine:

Refusing to answer CBP’s questions may result in the agent persisting with questioning. If this occurs, you should ask if you are being detained. Another way to ask this is to say, “am I free to leave?” If the agent wishes to actually detain you — in other words, you are not free to leave — the agent needs at least reasonable suspicion that you committed an immigration violation to do so.

As I understand it from other legal sources, this means that the agent must have a reasonable suspicion that you are:

  1. not a US citizen
  2. and that you have violated immigration law

And furthermore:

You do not have to answer questions about your immigration status. You may simply say that you do not wish to answer those questions. If you choose to remain silent, the agent will likely ask you questions for longer, but your silence alone is not enough to support probable cause or reasonable suspicion to arrest, detain, or search you or your belongings. … As before, when you are at a checkpoint, you can remain silent, inform the agent that you decline to answer their questions or tell the agent you will only answer questions in the presence of an attorney.

In the YouTube videos of checkpoint refusals, you'll see lots of folks declining to answer questions or stating that they will only answer questions from law enforcement in the presence of an attorney.

If you are held at the checkpoint for more than brief questioning, you can ask the agent if you are free to leave. If they say no, they need reasonable suspicion to continue holding you.

Lots of this in the checkpoint refusals too. The drivers ask if they're being detained and/or if they're free to leave. If you watch closely you'll probably see that many of the Border Patrol agents avoid answering these questions — because they know that they don't have sufficient suspicion to detain the drivers.

You can ask the agent to tell you their basis for probable cause, and they should be able to articulate their suspicion.

This is also seen in some of the videos.

There's a very important caveat about when you are required to provide documentation (other than at the border):

A limited exception does exist: for people who do have permission to be in the U.S. for a specific reason and for, usually, a limited amount of time (a “nonimmigrant” on a visa, for example), the law does require you to provide information about your immigration status if asked. While you can still choose to remain silent or decline a request to produce your documents, people in this category should be aware that they could face arrest consequences. If you want to know whether you fall into this category, you should consult an attorney. … If an agent asks you for documents, what you need to provide differs depending on your immigration status. U.S. citizens do not have to carry proof of citizenship on their person if they are in the United States. If you have valid immigration documents and are over the age of 18, the law does require you to carry those documents on you. If you are asked by an immigration agent to produce them, it is advisable to show the documents to the agent or you risk being arrested. If you are an immigrant without documents, you can decline the officer’s request. An agent may likely ask you more questions if you decline a request. No matter what category you fall into, never provide false documents to immigration officials.

  1. If you are a citizen you have no obligation to provide documents to establish this; it is not illegal for you to refuse.
  2. If you are undocumented, you do not have any obligation to provide documents; it is not illegal for you to refuse.
  3. If you are a non-citizen and do have valid documents, you are required to provide them — apparently, it is illegal for you not to do so.

So if you're a non-citizen who's legally present in the USA for a temporary term (e.g. tourist, student, business trip, etc.) then you are required to show documents proving this. But if you're undocumented you can — and should!! — do what you see in the videos, and refuse to provide documentation.

The Arizona ACLU has a helpful printable sheet with additional pithy points:

You may be asked where you were born, how you entered the U.S. or how long you’ve been here. You don’t ever have to answer those questions. Your responses may be used to detain and deport you. … NEVER FLEE A CHECKPOINT!

  • In practice, it seems unlikely that an undocumented immigrant is likely to get out of an investigation without answering questions, but I suppose it wouldn't (shouldn't) hurt to try. Unfortunately, since basic immigration violations are civil rather than criminal, the government does not have to provide a lawyer. But even for a citizen it's probably wise to consider the consequences of not answering: if you're in a hurry, you probably want to cooperate. – phoog Jan 2 '19 at 15:20
  • I've also seen at least one video in which the officer said "yes, you're being detained," for the officers indeed do have authority to detain people while they investigate their immigration status. The people who respond to that by asking "what's the suspicion" don't understand that suspicion is unnecessary under Martinez Fuerte, which explicitly authorizes "suspicionless" stops. – phoog Jan 2 '19 at 15:25
  • Back to the undocumented, the officer probably already has suspicion, possibly reasonable, before asking for the documents, in which case not showing them is unlikely to help. I believe the rules governing these stops vary, in particular between the fifth and ninth circuits. – phoog Jan 2 '19 at 15:29
  • @phoog, strongly disagree. Have you seen the videos of these BP stops? They're random and indiscriminate checkpoints or bus/train boardings. Almost by definition, the agents cannot ascribe any individualized suspicion to their initial questioning because they confront everyone. As I mentioned above, refusal to answer cannot be used as a reason for individualized suspicion of an immigration violation (nor can race/ethnicity, by the way). Therefore, an undocumented immigrant can and should refuse to answer. Answering cannot help them, and firmly but politely refusing cannot hurt them. – Dan Lenski Jan 2 '19 at 22:47
  • I've seen lots of these videos. I don't imagine many of these officers would actually let someone go who refused to answer their questions if the person appeared to be Latin American. Even if the officer's suspicion has no lawful or reasonable basis, and the detention is therefore a violation of the person's rights, this could be used only as the basis for throwing out criminal evidence in a criminal trial; it will not protect the person from being deported. The people whom they let go without seeing their documents are invariably white people who speak English natively with American accents. – phoog Jan 2 '19 at 23:05

Away from a border check point a border patrol agent needs "reasonable suspicion" of a violation of the law (and realistically, a violation of immigration laws) to demand that someone show ID. This is less than probable cause, but more than a suspicionless checkpoint stop or random stop. It doesn't take much, but it takes some articulable reason that sets the person stopped apart from people who are not stopped that does not exclusively constitute racial profiling.

Reasonable suspicion cannot arise merely from the refusal to provide ID voluntarily.

  • "Reasonable suspicion cannot arise merely from the refusal to provide ID voluntarily." So someone in the country illegally could bluff their way through such a border agent encounter by being adamant that they do not have to show ID? – BlueDogRanch Nov 2 '17 at 1:59
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    @BlueDogRanch Yes, they could. This said, lots of the time, a border agent can articulate a reasonable suspicion (which is a low bar), and the border agent doesn't have to tell you what the basis of the reasonable suspicion is until the case gets in front of a judge. For example, if the person stopped had an accent, referred to the agent as "La Migra" and had out of state license plates, for example, that would probably meet the test. – ohwilleke Nov 2 '17 at 2:03
  • This answer seems to overlook inland checkpoints, where people may be stopped without probable cause or even reasonable suspicion within 100 miles of the border for the purpose of determining immigration status (see US v Martinez Fuerte), yet the question appears to be asking specifically about these checkpoints. Actual border crossing checkpoints are staffed by CBP field officers, not Border Patrol officers. – phoog Nov 2 '17 at 7:56
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    "Some of these check stations in YouTube videos are within 100 miles of a border; some are not." I have assumed that the focus of the question is on the "some are not" given the thrust of the remainder of the question by starting my answer with "Away from a border check point" (which may not be complete), but you are right to point out the distinctions. – ohwilleke Nov 2 '17 at 19:23
  • Ah, I overlooked the "some are not" bit. I doubt very highly that that is correct. As far as I know the checkpoints are all in compliance with Martinez Fuerte. – phoog Nov 3 '17 at 0:30

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