Retention Policy of Electronic Devices Seized at Border Under Review

A Chinese national with a lawful permanent resident status appealed a guilty finding due to border security holding on to their electronic devices for over 70 days, exceeding the retention policy guidelines set for border searches. The individual, who pled guilty to breaking export laws, claims the extended time no longer qualifies as a border search, due to the length of time held. As such, the individual is challenging the guilty finding, although they pled guilty. The government is claiming that due to the encryption of files on the individual’s computer, and the information stored requiring a translator, the extended hold time is justified.

The First Circuit court is considering the issue and determining what the appropriate length of time is for border officials to hold electronic devices. The court further is considering if the border agents are adequately prepared for such issues, as encryption and translation are likely required for many individuals crossing the border. The U.S. Circuit judge stated that some foresight and preparation may have reduced the delay.

The individual states the hold time for electronic devices is set at 22 days, per the First Circuit court. Even these 22 days were described as “reasonable but lengthy” in a previous suit.

Government attorneys argue that the courts should take a less hands-on approach to border searches and retention policy. Stating that second-guessing the decisions and processes that led to the 71 days hold of the electronic devices leads the government down a “rabbit hole”. In response, the judge stated it may be appropriate to intervene after a 22-day hold period.

The Judge ruled there was sufficient reason to suspect the individual and thereby search their electronic devices.

If you have questions about border entry and your electronic devices, or any other immigration-related issue, contact us at ILBSG. We actively monitor ongoing issues in immigration law to ensure our clients get the right advice for their specific situations.