5

The Fifth Amendment states "no person shall be compelled to be a witness against himself". The Supreme Court, in US v. Miranda, ruled it unconstitutional for law enforcement officials to force a person to answer police questions, though ID may certainly be required.

CBP forces incoming persons to answer their questions on a daily basis. You don't answer, they get to hassle you. Under the 5th Amendment, is this illegal?

  • Doubtful. You might not be required to answer, but since you are crossing a border, you are subject to search without probable cause or reasonable suspicion or any other reason beyond the fact that you are crossing the border. If you refuse to answer, they'll just search you that much more thoroughly. On the other hand, if you do answer, they might not search you at all. – phoog Oct 31 '15 at 21:50
  • 1
    Also, you normally have no right to enter the US (certainly not if you aren't a national). The burden of proof of admissibility is on the traveller; in that respect, it's like pleading the Fifth when applying for a job at the FBI -- sure, you can, but good luck being hired. – cpast Nov 1 '15 at 7:44
  • 2
    @moonman US nationals may have the right to enter the US; I'm not sure. If you aren't a US national, you don't have that right. – cpast Nov 3 '15 at 16:52
  • 2
    Tuan Anh Nguyen v. INS 533 U.S. 53 would suggest that: "as a citizen entitled as of birth to the full protection of the United States, to the absolute right to enter its borders, and to full participation in the political process" – user6726 Aug 15 '16 at 2:13
  • 1
    @cpast US nationals certainly have a right to enter the US. If you don't answer CBP questions, you can expect to be thoroughly searched, but as long as you have US nationality, they have to let you in. – phoog Sep 14 '16 at 1:46
1

The 5th Amendment only prohibits a refusal to answer questions from being used against you in a criminal proceeding.

Civil consequences, like denying entry to a non-U.S. citizen, or subjecting a person in a place where they are subject to search to a more thorough search, or seizing assets like large amounts of cash that are not explained, as a consequence of not answering questions, are not prohibited by the 5th Amendment.

0

More accurately, while you have a right as a citizen to enter the country, that does not mean border patrol cannot question you and, as stated above, if they opt to search you as a result - or as a result of some entirely different reason - they may. The difference between the correct answer and the ones offered above is that those operate under the false notion that if something is a right that means you can do that thing whenever you want, without limitations.

This is a misunderstanding of U.S. Constitutional law as well as the very basic rights we enjoy as humans. Being part of a society governed by the rule of law, there are certainly many things citizens are entitled to possess, receive, or do. However, the society agrees to cede a varying fraction of each of their rights to the collective with the recognition that nearly all of those things will be subject to limitation should a member of the society behave in an objectionable manner.

This is why we have laws that say you will be locked in a cell for many years (and in some cases, killed) if you kill someone. That does not mean you don't have the right to walk down the street. It means the extent to which people are allowed to exercise their rights have limitations. Limiting rights does not render them no longer rights.

That said, traveling is fundamental right. Under the Fifth Amendment, a citizen's liberty is protected in the clause which states, in part,

nor be deprived of life, liberty, or property, without due process of law

The idea put forth above that the Fifth Amendment is

much more narrow than you think

is out of left field and wholly false. To the contrary,

The Fifth Amendment’s Due Process Clause does as much work as any provision in the Constitution. The Clause requires fundamental procedural fairness for those facing the deprivation of life, liberty, or property. The Clause also has been interpreted to place substantive limits on governmental authority

Obviously, denial of a passport does not mean that a right to travel is no longer a right. Bans on American citizens have been overturned as unconstitutional or upheld under the court's "rational basis" test. Cases include Aptheker (re: Cuba) and Zemel.

-1

You have to prove that you're a US citizen. That might mean answering questions about your citizenship.

Otherwise, no, you don't have to answer their other questions like "What were you doing in Venezuela?" "Who paid for your trip?" "What do you do for a living?", etc.

I have refused to answer on several occasions. It usually means being referred to secondary inspection, where they will stamp their feet a bit and threaten to hold you there until you answer. Then they just let you go.

  • 2
    This is a site about the law - while personal anecdotes are interesting they do not tell us anything about what the law is. It may be that you were acting illegally but border control couldn't be bothered dealing with it and waved you on, without telling us about the law, we don't know. Answers should ideally cite statutes, case law, government statements about the low or be based on accepted legal principles. "I did it and they let me in" is not an answer. – Dale M Aug 15 '16 at 0:07
-2

The US constitution grants its citizens the right to free travel within and without the United States of America: like all such rights they can be lost through due process of law. These include:

The applicant is in arrears on child support. The Secretary of Health and Human Services child support database is checked before the approval of any passport application.

The applicant has been deemed incompetent by a court of law and/or committed to a mental institution by a court of law.

The applicant has warrants for arrest or court orders or subpoenas on record requiring the applicant to remain in the U.S., including orders from the United States Armed Forces, or the applicant is on parole or probation and a condition of that parole or probation prohibits leaving the U.S. or the court’s jurisdiction. The Marshals Service WIN database is checked before a passport is issued.

The applicant or the applicant’s family has received federal loans for: repatriation of the applicant and/or the applicant's family members from a foreign country, emergency medical attention, dietary supplements and/or evacuation of the applicant and/or the applicant's family from a foreign country to the United States.

The applicant was denied a passport previously or had a passport revoked, unless the applicant can prove sufficient change of circumstances.

The applicant is deemed to be a threat to national security of the United States. The applicant was arrested and convicted for either a felony or misdemeanor related to the manufacture, distribution, or possession of a controlled substance involving the use of a U.S. passport.

A foreign country has requested the applicant be extradited, or if the U.S. Department of State is advised the applicant has a warrant out for arrest for a felony in another country.

For foreign nationals, of course, all bets are off and the government can deny entry for any (or no) reason subject to any treaty arrangements that are part of US law.

Further, the ambit of the fifth amendment is much more narrow than you think: it only applies to self-incrimination in criminal matters. Many of the questions CBP asks would not implicate you criminally, like "Why should we let you in?" you cannot claim the fifth. You can refuse to answer, of course, and they can refuse to admit you if you do so.

  • (Luckily I'm not an American) - Does Article 13(2) of the Universal Declaration of Human Rights not apply ? (It states "everyone has the right to leave any country, includinghis own, and to return to his country") – davidgo Aug 15 '16 at 7:10
  • 1
    UHDR is not law, but it is meant to be codified into law by the signatories. The USA is a signatory. So much for "land of freedom!" – davidgo Aug 15 '16 at 18:56
  • 2
    The fact that circumstances exist in which a person can be denied a passport does not imply that there's no right to travel outside the US. In fact there is (rights can be denied, after all, with due process of law). See en.wikipedia.org/wiki/Kent_v._Dulles. – phoog Sep 14 '16 at 1:50
  • 2
    There are a number of cases that outline an absolute right of US citizens to be able to enter the country - Nguyen v INS, Worthy v United States, Fikre v. FBI and Lyttle v US – Dave D Sep 14 '16 at 2:39
  • 1
    Also, actually a little concerning that above you mention and attempt to narrow the Fifth Amendment's application when, conversely, it takes no conlaw professor to know that it's precisely the Fifth Amendment which secures this right to travel. Travel is a fundamental right that, under the Fifth Amendment's protection of liberty, a citizen cannot be deprived of without due process. So yes, really. – A.fm. Jan 26 '18 at 0:54

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.