Customs And Border Patrol Aircraft Stop Leaves More Questions Than Answers

Is the Trump administration bringing back Cold War, WWII-era European style to an airport near you? The Huffington Post reported that it was a U.S. Customs & Border Patrol (CPB) officer, not the Transportation Safety Administration (TSA), at the door of a domestic flight, Delta 1583, from San Francisco to JFK in New York, checking the identifications of deplaning passengers on Wednesday.

VICE Editor Anne Garrett tweeted this disturbing photo of a CPB officer screening every passenger disembarking:

Thursday, in response to passenger photos of the officers at the aircraft door that have been circulating on social media, CBP published a statement, saying that the agency was assisting Immigration & Customs Enforcement (ICE), looking for an individual who was targeted by an immigration judge for deportation.

“To assist our law enforcement partners, two CBP officers requested identification from those on the flight in order to help identify the individual. The individual was determined not to be on the flight.”

Aside from the obvious inconvenience to passengers making connections at one of the world’s busiest airports, there are several troubling aspects to the CPB’s story in the release that don’t add up:

  • CPB was assisting ICE to interdict an unnamed person whom a judge had ordered deported, but they did not have a specific person’s name or photograph to work with, so they had to check everyone on the aircraft?

  • Why was the person not interdicted at the TSA Checkpoint in San Francisco prior to boarding?

  • Why was the person not sought at a specific seat on the plane, which should be known, based on the manifest, and is standard procedure for CPB, TSA, and local police asked to detain or remove a passenger?

  • Why the dragnet, and the careful scrutiny of every passenger?

“I don’t think they had a clipboard or a list. I think they were just looking at everybody’s ID. They did it really carefully. You could tell they weren’t just looking for a name. They read my entire ID and looked at me the entire time. I was probably the tenth person off the plane, and they did the same for everyone in front of me,” Passenger Matt O’Rouke told Gothamist.

“They’ll occasionally pull someone off of a flight, or officers will come on and make an arrest,” Jordan Wells, a staff attorney with the New York Civil Liberties Union told the Washington Post. “That’s what is so alarming about the way that this played out.”

The Obama White House preferred, for its unorthodox searches, using the TSA’s VIPR program, short for Visible Intermodal Prevention and Response. It was used not only at airports, but at bus stations, AMTRAK platforms and even subway stops, where TSA is brought in by Immigration and Customs Enforcement (ICE), and the U.S. Border Patrol because TSA requires no probable cause to conduct “random” screenings.

"What we're looking for is threats to national security as well as immigration law violators," said Steve McDonald from US Border Patrol in the local video report from Tampa, where the search was conducted, to stop “the bad guys.”

Under the Obama Administration, the rule for ICE and CPB was to move on immigration violations of those with violent and/or criminal records, or those suspected of plotting acts of terror. Trump has lowered that threshold to any illegal immigrant, and ICE, accordingly, has become more aggressive, arresting over 600 people last week alone. The new rules issued by the Trump Administration give CBP and ICE a lot of individual discretion to act.

Police have to have probable cause to stop you, but the Supreme Court in United States v. Ramsey, 1977, gives TSA, CBP and ICE the ability to stop you without cause.

The government is allowed, under the Almeida-Sanchez v. United States decision of 1973 to act more aggressively with international flights, but not on domestic flights.

A DHS official, speaking on condition of anonymity, told the Washington Post: “When we’re asked by our law enforcement partners to assist in searching for a person of interest, we are able to, and will, help,” the official said. “This isn’t a new policy or related to any new executive order.”

While officials may protest that this new form of interdiction is business as usual, it’s not. What happened Wednesday at JFK with a domestic flight very much seems like the agencies testing the waters of the new Trump Justice Department to see how much latitude, and how much public resistance these door-exit checks will receive.

Travelers on the Delta flight can seek redress for the infringement of their rights to travel freely by contacting the Department of Homeland Security’s TRIP program and filing a complaint.