Nov. 14, 2002 – A three-judge panel of the 3rd Circuit Court of Appeals heard arguments this week in the U.S. Justice Department's appeal of a District Court ruling that it was unconstitutional for immigration authorities to challenge a Guyanese woman at a St. Thomas airport checkpoint.
The ultimate outcome of the criminal case of Camille Pollard could affect the way the Virgin Islands — or any other insular territory — deals with passengers traveling from one U.S. jurisdiction directly to another.
Pollard was arrested in May of 2001 after presenting a false identification before boarding a flight from St. Thomas to the U.S. mainland. She is now out on bail, awaiting the outcome of the Justice Department's appeal of the case.
Chief District Court Judge Thomas K. Moore ruled in June that the discovery by Immigration and Naturalization Service officials that Pollard had lied about being a U.S. citizen came about because of an unconstitutional action. He said the INS control area at Cyril E. King Airport violates the constitutional guarantee against unlawful search and seizure and goes against the principle of equal protection under the law. He stated that travelers from St. Thomas to the U.S. mainland should not have to show citizenship documents or answer questions about their immigration status, just as travelers between airports within the mainland United States are not required to do.
INS inspectors say Pollard made false claims to U.S. citizenship. Moore granted Pollard's request to suppress all evidence gathered at the immigration checkpoint, saying that the INS does not have the right to make unwarranted searches of travelers who are not crossing the U.S. border.
(For background on the case and Moore's ruling, see "V.I. INS operations 'schizophrenic,' judge says" and "INS official says ruling could have wide impact".)
In a weeklong session at the Federal Courthouse on St. Thomas, 3rd Circuit Judges Anthony J. Scirica, Samuel A. Alito and Marjorie O. Rendell heard arguments in the appeal of dozens of V.I. District Court cases. On Tuesday, they heard those in the Pollard case from U.S. Attorney David Nissman, representing the federal Justice Department, and federal public defender Doug Beevers, representing Pollard.
The panel is reviewing Moore's 80-page opinion, in which he said Pollard was discriminated against because she was given a different burden to prove she was a U.S. citizen than other travelers passing through the Cyril King checkpoint. He said that although she was using false identification, she was an immigrant on U.S. soil when the incident occurred and thus entitled to certain constitutional protections.
Moore challenged the legality of the checkpoint itself, saying that passengers traveling from the Virgin Islands to the U.S. mainland or Puerto Rico should be subject to the same identification requirements that would apply if they were flying from one state to another within the mainland.
Nissman told the appellate panel, "It is our view that the INS checkpoint does not violate either the Fourth Amendment [protection against unreasonable search and seizure] or the equal protection clause" of the constitution. He added, "Judge Moore, in his opinion, says that travelers leaving the Virgin Islands going to the continental U.S. are treated differently, say, from travelers going from New Jersey to Minnesota, and he's right. Travelers are treated differently, but there's a rational basis for that."
Both he and Beevers referred to a U.S. Supreme Court ruling in a California case upholding U.S. authority to stop Mexican immigrants crossing the border into the United States and ask them for identification.
Beevers told the appellate judges the test applied in that case was inappropriate for the Pollard case because the flow of illegal immigrants in the Virgin Islands is very small compared to that at the Mexican border. Moore found that the Pollard case "was different from the checkpoint the Supreme Court upheld in California," Beevers said. "That one applied to cars. This one was people walking. Here we are forced to prove their citizenship. In California they were only asked questions."
None of the attorneys who took part in Tuesday's proceedings would speculate as to how long it might be before the appellate panel renders a decision in the case.

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