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Trends in law & technology

Is an American citizen’s “unqualified right” to re-enter the country from abroad an open question?

The Electronic Frontier Foundation recently published a white paper addressing some of the privacy concerns that emerge after an individual attempts to re-enter the United States from abroad while carrying a digital device.  Further complicating the re-entry process is the citizenship status of the person crossing the border.

While the Immigration and Nationality Act provides a litany of grounds upon which a customs agent can exclude non-citizens, the status of U.S. citizens trying to re-enter remains surprisingly unclear.  Most U.S. citizens would assume that as Americans, they have the “unqualified right” to re-enter the United States (unless the government meets the high bar necessary for banishment).  But that assumption might be false.

As we put together research for our white paper, questions (or more accurately the lack of answers to those questions) about whether this “unqualified right” did in fact exist became troubling—particularly in the context of Interacting with Border Agents, where EFF discusses some of the consequences for refusing to cooperate with searches, answer questions, or turn over computer and smart phone passwords.  Because we found so much uncertainty surrounding this issue, we thought it was important enough to share what we found (and didn’t find) with you as well. 

Since 1964, only two courts have spoken directly to whether an American citizen has an absolute right to re-enter the United States from abroad.  Not a lot of guidance, we know. 

Further complicating what many might assume to be an open-and-shut question is that both courts addressed that issue in dicta, in other words, in language not directly related to the main issue in the case.  For example, in 1964 Worthy v. United States noted that:

We think it is inherent in the concept of citizenship that the citizen, when absent from the country to which he owes allegiance, has a right to return, again to set foot on its soil. 328 F.2d 386, 394 (5th Cir. 1964).

288 F. Supp. 957, 980 (D.P.R. 1968).