Summertime is almost here and a common question we receive from our clients is whether they may travel within the United States. A person without lawful immigration status could be detained, placed in removal proceedings, or removed from the country if the person has an outstanding order of removal. Traveling within the U.S. has some risk associated with it, and the level of risk depends on a person’s individual case.
Common risk factors
What about Florida’s new “immigration law” SB 1718?
This new law does not take effect until July 1, 2023 and it only applies within the State of Florida. Based on the text of SB 1718, it would be considered “human smuggling” and a felony for a person to knowingly and willfully transport into Florida an individual whom the person knows, or reasonably should know, has entered the United States in violation of law and who has not been inspected by federal immigration authorities since entry.
What this can mean is that if a driver who is transporting passengers into Florida knows, or reasonably should know, that one or more of their passengers ever crossed a U.S. border without permission or with fraudulent documents and has not been inspected by immigration authorities since that entry, the driver can be criminally liable. This part of the law applies to individuals who violated the law when they entered the U.S., not to individuals who later fell out of immigration status.
According to SB 1718, Florida will also not accept driver’s licenses issued by other states to undocumented people and will require hospitals to ask about an individual’s immigration status.
This new law appears to ultimately punish others who assist undocumented people within Florida, and not the undocumented person themselves. Given this new law, it is a much higher risk for undocumented individuals and their families to travel to the State of Florida.
Can I board a flight?
If you have a valid foreign passport, state-issued enhanced driver’s license or valid USCIS Employment Authorization Card Form I-766, you can technically board a plane for domestic travel. In this scenario, it is best to travel with a state-issued enhanced driver’s license. The TSA checks passengers’ identity and whether a passenger has a boarding pass; generally, they are not screening for immigration status. However, the TSA can refer individuals to Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) for further questioning leading to removal proceedings, even if the person is not traveling internationally. It is also not advisable to travel outside of the 48 contiguous states.
Thus, if you don’t have a valid U.S. immigration status, there is some varying risk to flying domestically as the following examples illustrate:
For individuals already in removal proceedings
If a person is already in removal proceedings before the Executive Office for Immigration Review (EOIR) at the Immigration Court or Board of Immigration Appeals, there is generally little reason for the government to detain the individual for purposes of removal. This is a lower risk category, but it is possible for the government to detain the person anyway, particularly if there are changes in the person’s case. For example, if the person has new criminal charges pending or a new criminal conviction, the government may have an interest in detaining such a person since they may present a new danger to the community. Thus, the risk of travel is higher for a person in this category who has a new criminal case since removal proceedings began.
For individuals with Deferred Action
Generally, those with deferred action can travel within the U.S. without concern, so long as their deferred action is valid throughout the period of their travel. However, it is important to remember that Deferred Action is a discretionary benefit, and can be revoked by the government any time, particularly if there is a new criminal element in the person’s case. If the person has new criminal charges pending or a new criminal conviction, the government may revoke deferred action and initiate removal proceedings. Thus, the risk of travel is higher for a person in this category who has a new criminal case since their last application for deferred action.
For individuals without U.S. immigration status
A person who is “undocumented” in the United States has a higher travel risk, particularly if they travel within the border zone mentioned above. The risk increases for individuals with a criminal history or history of U.S. immigration violations, such as prior removal or deportation orders. Many individuals travel throughout the U.S. without a problem, it’s just a question if you are willing to take the risk associated with domestic travel.
If you have questions about travel within the United States or would like a full assessment of your U.S. immigration options, please schedule a consultation with one of our immigration attorneys: 312-427-6163.