Court Says There’s Nothing Unconstitutional About Warrantless Seizures, Searches Of An Immigration Lawyer’s Phone

There’s little that’s more impermeable than the US border. I mean, people flow across it all the time, often without being vetted, but courts seem to agree the only thing that really matters is what border agencies are trying (and failing) to accomplish. Whatever rights need to be abridged, paused, or outright discarded are just the price legal US residents need to pay for this illusion of national security.

Not for nothing are areas near our borders (which includes anything within 100 miles of a border crossing or international airport) referred to as “Constitution-free zones.” That these zones encompass a large percentage of the US population rarely seems to matter when courts handle cases involving warrantless border searches.

What was historically limited to pat downs of individuals and cursory searches of their vehicles and luggage has now been extended to invasive searches of all kinds of personal information, thanks to ubiquity and ever-increasing power of cell phones and laptops.

Given this table-setting, it’s not all that difficult to predict what’s being served up here. (via Courthouse News Service)

In an altogether unsurprising decision [PDF], a Texas federal court has ruled no one’s rights are violated when CBP or ICE agents seize an immigration lawyer’s phone without a warrant and run invasive searches to access the device’s contents.

Here’s the reality of George Anibowei’s day-to-day dealings with border security agencies, helpfully recounted by a court that ultimately doesn’t see anything wrong with this.

Anibowei, a lawyer, is a naturalized U.S. citizen who was born in Nigeria. He owns a small law practice where he primarily handles immigration matters. Anibowei travels several times a year, often internationally, for both work and personal reasons. In October 2016 CBP officers at the Dallas-Fort Worth International Airport seized Anibowei’s work cell phone, without his consent or a search warrant, and advised Anibowei that they were going to copy the hard drive. When Anibowei protested, the officers gave him a flyer explaining their legal authority to search and seize his phone under CBP Directive No. 3349-049, Border Search of Electronic Devices Containing Information (Aug. 20, 2009) (“2009 CBP Directive”). Anibowei’s work cell phone contains sensitive information about his clients and their cases, including call logs, voice mails, text messages, and an archive of Anibowei’s work emails with drafts of confidential filings and other information involving removal proceedings adverse to DHS.

At the time of filing his second amended complaint, CBP agents had searched Anibowei’s phone at least four additional times. He intends to continue traveling internationally, but he now does so without his work phone because of the risk of further invasions of his and his clients’ privacy. He continues to carry his personal phone when he travels, which also has access to his work email.

Now, this lawsuit may have failed because Aneibowei didn’t limit his proposed recourse to findings of unconstitutional behavior. He also sought to have the operative CBP and ICE directives nullified. But even if the court feels the latter goes too far (which it does), it somehow still arrives at the conclusion that searching a lawyer’s phone and accessing privileged communications is completely legal and constitutional.

The court says ICE and CBP have — since the original 2016 violation – altered (albeit minimally) their border device search policies, mainly in reaction to the extremely few court rulings that mandated new restrictions on these searches. Apparently, this means Aneibowei can’t seek any other form of relief (like a settlement for previous rights violations) because by the time this court finally got around to issuing a ruling on this case, the government had moved the goalposts. (All emphasis mine to highlight the operative dates of the citations, which are all years after the incidents detailed in this lawsuit.)

In the Fifth Circuit, the government does not need individualized suspicion to conduct a routine manual cell phone search at the border, and non-routine searches require only reasonable suspicion. See United States v. Castillo, 70 F.4th 894, 898 (5th Cir. 2023); Malik v. U.S. Dep’t of Homeland Sec., 78 F.4th 191, 200 (5th Cir 2023). Anibowei “recognizes the binding force of Castillo and Malik” and that this court is bound by them.

The 2018 CBP Directive requires reasonable suspicion or a national security concern for an advanced search of an electronic device. Similarly, the 2018 ICE Guidance, which updates the requirements for advanced border searches of electronic devices, instructs agents not to perform advanced border searches of electronic devices without reasonable suspicion. Accordingly, to plead a plausible claim for relief, Anibowei cannot rely on an allegation that the Directives’ policies—which comply with this circuit’s requirements for a border search of an electronic device to be reasonable—violate the Fourth Amendment.

I’m not sure what this is supposed to mean in terms of legal guidance, but it’s pretty clear what it means for the plaintiff: he’s screwed. Somehow, regular people are denied redress because the government did things after it was sued, but government employees are only expected to comply with judicial precedent/policy changes that went into effect before they committed the rights violations they’re being sued over. Heads, the government wins. Tails, the plaintiff loses.

And courts have actually refused to state claims are moot just because the government stopped doing the bad thing after being sued. In this case, the policy changes were prompted by court decisions. And while it’s never a good idea to apply this sort of thing retroactively, it’s a bit rich to claim the substance of the plaintiff’s complaint has been negated just because the government won’t be screwing him over quite as frequently in the future.

All that’s left for Aneibowei is the option to keep doing the thing that hasn’t worked for the past decade: amend his lawsuit and sue again. But, given the precedent that was delivered after the rights violations the lawyer has already experienced, it’s just going to be a waste of time and money. And, since “reasonable suspicion” generally doesn’t mean what those two words actually mean, he’s likely going to experience the same sort of plausible rights violations in the future, despite the belated policy changes. This decision helps no one but the government. Because of that, the government has no reason to alter its tactics and will continue to help itself to the contents of devices owned by US residents who dare to treat the federal government as an adversary when litigating on behalf of their clients.