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United States v. Pollard

April 17, 2003


Appeal from the United States District Court of the Virgin Islands (D.C. Criminal No. 01-cr-00190) District Court Judge: Honorable Thomas K. Moore

Before: Scirica, Alito and Rendell, Circuit Judges.

The opinion of the court was delivered by: Rendell, Circuit Judge


Argued November 13, 2002


On May 13, 2001, Camille Pollard attempted to board an airplane departing from the United States Virgin Islands ("Virgin Islands") and destined for New York City. At the Departure Control Checkpoint ("Checkpoint") located in the airport, an officer of the Immigration and Naturalization Service (INS) questioned Pollard regarding her citizenship. Despite Pollard's representations to the contrary, the officer suspected that Pollard was not a U.S. citizen and escorted her to a room for further questioning. During this questioning, Pollard confessed that she was not a U.S. citizen and was subsequently arrested. Pollard moved to suppress her confession. The District Court granted the motion, ruling that the Checkpoint violates the Fifth Amendment's equal protection guarantee, and, alternatively, the Fourth Amendment's prohibition against unreasonable seizures. The United States (hereinafter "Government") now appeals. Because we agree with the Government that the Checkpoint does not run afoul of these constitutional protections, we will reverse the order dismissing the charges against Pollard and remand to the District Court.


The need for the U.S. Government to monitor the movement of aliens over and within its borders is undoubtedly great. While the procedures implemented to meet this need must be scrutinized to ensure that they comply with the Constitution, the legislative and executive branches have historically been given great leeway in developing and carrying them out. See generally Fiallo v. Bell, 430 U.S. 787 (1977).

We will provide a legal and factual overview before detailing the particular facts of this case. Much of the law governing the admissibility of aliens derives from the Immigration and Nationality Act (INA). *fn1 Important to the case before us, section 212 of the INA excludes several classes of aliens from admission to the United States. 8 U.S.C. § 1182. Most pertinent to our inquiry is subsection 212(d)(7), which reads:

The provisions of subsection (a) of this section (other than paragraph (7)) shall be applicable to any alien who shall leave Guam, Puerto Rico, or the Virgin Islands of the United States, and who seeks to enter the continental United States or any other place under the jurisdiction of the United States. The Attorney General shall by regulations provide a method and procedure for the temporary admission to the United States of the aliens described in this proviso. Any alien described in this paragraph, who is denied admission to the United States, shall be immediately removed in the manner provided by section 1231(c) of this title.

Immigration and Nationality Act § 212(d)(7), 8 U.S.C. § 1182(d)(7). The Attorney General has implemented this section through 8 C.F.R. § 235.5, which reads:

235.5 Preinspection.

(a) In United States territories and possessions. In the case of any aircraft proceeding from Guam, Puerto Rico, or the United States Virgin Islands destined directly and without touching at a foreign port or place, to any other of such places, or to one of the States of the United States or the District of Columbia, the examination of the passengers and crew required by the Act may be made prior to the departure of the aircraft, and in such event, final determination of admissibility shall be made immediately prior to such departure. The examination shall be conducted in accordance with sections 232, 235, and 240 of the Act and 8 CFR parts 235 and 240. If it appears to the examining immigration officer that any person in the United States being examined under this section is prima facie removable from the United States, further action with respect to his or her examination shall be deferred and further proceedings regarding removability conducted as provided in section 240 of the Act and 8 CFR part 240. When the foregoing inspection procedure is applied to any aircraft, persons examined and found admissible shall be placed aboard the aircraft, or kept at the airport separate and apart from the general public until they are permitted to board the aircraft. No other person shall be permitted to depart on such aircraft until and unless he or she is found to be admissible as provided in this section. 8 C.F.R. § 235.5(a). The INS developed the procedures at the Checkpoint as the means for conducting the examination required by the regulation, making the Checkpoint, as the District Court noted, the "physical manifestation" of section 235.5. United States v. Pollard, 209 F. Supp. 2d 525, 532 (2002). *fn2

Unlike in many other border areas of the U.S., the Government does not maintain a border patrol that monitors the shores of the Virgin Islands, but, instead, relies on ports of departure to interdict aliens. Id. at 554 n.45. All persons -- citizens and non-citizens -- traveling from the Cyril E. King Airport ("the Airport") in St. Thomas, Virgin Islands to the continental U.S. or Puerto Rico must pass through the Checkpoint. The Checkpoint is located at a fixed location between the departure check-in counters and the airport security gate leading to the departure area for all flights to the continental U.S. or Puerto Rico. The Checkpoint is identified with a sign reading "United States Immigration Inspections." At the Checkpoint, there are no written protocols or guidelines for inspectors to use in questioning the travelers or otherwise requiring proof of citizenship from persons claiming U.S. citizenship. Id. at 533. Usually, inspectors simply ask travelers their destination and their citizenship. Id. at 532. Although anyone claiming U.S. citizenship need not show a passport unless the inspecting officer is not "satisfied" that the traveler is a U.S. citizen, see 8 C.F.R. § 235.1(b), most show their passports reflexively and without request. Pollard, 209 F. Supp. 2d at 532. The primary inspection normally lasts less than fifteen seconds for citizens and less than a minute for non-citizens. A traveler suspected of lying about her citizenship is asked to move out of line for secondary inspection, where an INS agent further questions her and runs her name -- or the name she claims is hers --through various computer databases. Id. at 533.

The specific facts of this case are undisputed. See id. at 529-30. On May 13, 2001, Pollard attempted to pass through the Checkpoint in order to board a flight to New York City. At the Checkpoint, Pollard was asked whether she was a U.S. citizen. Pollard responded that she was, handed to the inspector a birth certificate and a non-governmental New York identification card -- each with the name "Katisha Kenya Norris" on it -- and told the inspector that she had lived in New York City her entire life. The inspector noticed that she did not speak with a New York accent and that she appeared nervous. The inspector also did not recognize the identification card, and, when questioned further, Pollard was unable to name the high school she attended or provide her father's middle name as it appeared on the birth certificate. The inspector then ordered Pollard to undergo secondary inspection. After a series of questions and a computer check that failed to uncover any probative information, the inspector concluded that the New York identification card was false and placed Pollard under arrest. After receiving her Miranda warnings, Pollard confessed her true name and that she was a citizen of Guyana. The Government charged her with violating 18 U.S.C. § 911 for falsely representing herself to be a U.S. citizen. *fn3

Pollard filed a motion to suppress the statements she made to the INS inspectors. She argued that her statements were taken in violation of her right to counsel under the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966), and, as a result, should be suppressed as the fruit of an unconstitutional custodial interrogation. In response, the Government argued that Pollard made some of the statements during a non-custodial situation and made the others voluntarily after having received Miranda warnings.

The District Court held a hearing and heard testimony regarding Pollard's motion to suppress. The day after the hearing, the District Court, sua sponte, ordered the parties to file supplemental briefs addressing three issues: (1) the authority of the INS to maintain a permanent checkpoint at the Airport; (2) the constitutional requirements for INS agents to detain travelers; and (3) whether the Checkpoint violated the equal protection guarantee of the Fifth Amendment. After the parties complied with this order and filed their briefs, the District Court entered two further orders, again sua sponte. One order required the Government to produce evidence regarding certain aspects of the procedures, protocol, and activity at the Checkpoint, as well as at Luis Munoz Marin International Airport in Puerto Rico and at airports in the continental United States that have flights to the Virgin Islands. The Court noted that this information was necessary to resolve Fourth Amendment and equal protection issues. The other order called for an explanation of the requirement to produce identification at the Checkpoint, information regarding whether residents of Alaska and Hawaii must do the same, and the attendance of "an appropriate representative of the U.S. Immigration and Naturalization Service for this District who can explain and justify the policy of requiring Virgin Islands residents to present identification before boarding planes."

As required, the Government filed a written response to these two orders. The response detailed the "set-up, procedure, and protocol" used by the INS at the Checkpoint. It also contained statistics from the year 2001 detailing the number of persons that passed through the Checkpoint each month, the number of persons referred to secondary inspections, and the number of illegal aliens apprehended on the islands of St. Thomas (outside of the Airport) and St. John. The response further informed the Court that the INS has not promulgated regulations to inspect persons traveling from the continental U.S. to the Virgin Islands because Congress has not enacted a statute requiring such inspection.

The Government, however, declined to produce other information requested by the Court. Regarding the "set-up, procedure, and protocol" in place at the Luis Munoz Marin International Airport in Puerto Rico, the Government stated that it "respectfully declines to produce this information." The Government listed two reasons for its refusal: (1) the information was "not determinative" of whether the Checkpoint violated Pollard's rights under the Fourth Amendment, and (2) Pollard had the burden to produce any information supporting an equal protection violation. The Government further noted that Pollard had failed even to raise an equal protection argument; thus, it argued that the issue was not properly before the Court.

In response to the Court's order to produce information regarding the source and the legality of the requirement that residents of the Virgin Islands present two forms of identification when traveling to the continental U.S. and whether residents of Hawaii or Alaska were required to do the same, the Government again noted that Pollard had never raised this issue, and that, because Pollard presented herself as a U.S. citizen residing in New York City, the inquiry was not relevant to her case. The Government did inform the Court that residents of Hawaii and Alaska need not ...

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