CBP Preclearance: “American Soil” Abroad

By: Michael Moran

What country are you “in” when you are in an international airport? For example, let’s say that you have decided to take a vacation to sightsee across Europe. You have a brief layover scheduled in Iceland as you cross the Atlantic Ocean. Once your plane has touched down in Reykjavik’s Keflavik International Airport, would you say that you are officially in Iceland?

The answer will probably depend on who you asked.[1] An Icelandic customs officer would likely say that you have not made it into Iceland yet as you sit on the tarmac. A police officer, on the other hand, may believe you are in Iceland if you decided to commit a crime while you were awaiting your next flight. If questions of jurisdiction and national borders were not complicated enough, the increasing prevalence of United States Customs and Border Protection (CBP) Preclearance stations in international airports only adds to this complexity.

CBP Preclearance operations allow for American customs officials to “conduct the same immigration, customs, and agriculture inspections of international air travelers typically performed upon arrival in the United States” in foreign airports.[2] Preclearance operations are established through a formal agreement between the United States and the host country.[3] These checkpoints are designed to provide for “domestic-style arrivals at U.S. airports to improve efficiency for business and pleasure travelers for flights bound for the United States.”[4]

The CBP’s operations in Ireland are prominent examples of the Preclearance program in action. Shannon Airport, a large commercial airport in Western Ireland, was the first airport in Europe to offer U.S. preclearance services in 1986.[5] The CBP also conducts preclearance at Dublin Airport, where all flights to the United States are now using preclearance.[6]

Currently, CBP has over 600 officers stationed at fifteen preclearance locations in six countries.[7] The agency is set to expand preclearance operations to additional airports in the future.[8] Aircraft are typically “precleared from a CBP Preclearance location to a specific, designated airport or airport.”[9] Without preclearance, travelers to the U.S. must arrive at U.S. international airports and go through the CBP entry and inspection process upon arrival.[10]

Therefore, if a passenger completes CBP Preclearance in Dublin Airport, then they may leave the airport in the United States as soon as they land as if they were a domestic traveler. Since the CBP requires “all travelers and articles that have been precleared by CBP [to] be kept isolated from uncleared travelers and articles until the time of departure,”[11] this hypothetical traveler may be considered to be already in “in the United States” in an immigration sense, despite being on Irish soil.

Although preclearance passengers may be in the United States according to U.S. Customs officials, they are still in Ireland in a legal sense. As part of the agreement, the CBP makes with foreign governments to establish preclearance facilities, “criminal violations identified by CBP officers are subject to referral to law enforcement officials with jurisdiction at the location of the preclearance facility.”[12] CBP preclearance officers do not have the authority to take action against crimes that occur at the airport—that remains the responsibility of local law enforcement.

These CBP officers are subject to American laws and regulations as preclearance agents. Officers must follow United States Constitutional standards regarding searches and seizures and the inspection facility must meet CBP’s technical design standards and regulations.[13] American CPB officials are afforded the “diplomatic privileges and immunities” for themselves and their dependents from the host country.[14]

In an increasingly globalizing world, the boundaries between nations are blurring. CBP Preclearance operations raise interesting questions about jurisdiction, international cooperation, and the extent of the United States’ influence abroad.

#BlogPost #MichaelMoran #CBP #InternationalLaw

[1] See Wendover Productions, Which Country are International Airports In?, Youtube.com (Jun. 6, 2017), https://www.youtube.com/watch?v=lkCeKc1GTMs&t=197s.

[2]CBP and Shannon, Ireland Airport Authority Sign MOU for Extended Preclearance Services, U.S. Customs and Border Protection (May 24, 2019), https://www.cbp.gov/newsroom/national-media-release/cbp-and-shannon-ireland-airport-authority-sign-mou-extended.

[3] U.S. Customs and Border Protection, Preclearance Operations Fact Sheet, (May 2013), https://www.cbp.gov/sites/default/files/documents/preclearance_factsheet_2.pdf. [Hereinafter Fact Sheet].

[4] Id.

[5] CBP and Shannon, Ireland Airport Authority Sign MOU for Extended Preclearance Services, U.S. Customs and Border Protection (May 24, 2019), https://www.cbp.gov/newsroom/national-media-release/cbp-and-shannon-ireland-airport-authority-sign-mou-extended.

[6] CBP Offering Preclearance Services for All U.S.-Bound Flights at Ireland’s Dublin Airport, U.S. Customs and Border Protection, (Apr. 22, 2011), https://www.cbp.gov/newsroom/spotlights/cbp-offering-preclearance-services-all-us-bound-flights-irelands-dublin-airport#wcm-survey-target-id.

[7] U.S. Customs and Border Protection, Preclearance Locations, (June 22, 2017), https://www.cbp.gov/border-security/ports-entry/operations/preclearance. The six countries include: Ireland; Aruba; the Bahamas; Bermuda; the United Arab Emirates; and Canada. 19 C.F.R. § 101.5.

[8] Id.

[9] U.S. Customs and Border Protection, Office of Field Operations, CBP Preclearance of General Aviation Summary Guide, (March 2014), https://www.cbp.gov/sites/default/files/documents/CBP%20Preclearance%20of%20General%20Aviation%20Summary%20Guide.pdf.

[10] CBP Offering Preclearance Services for All U.S.-Bound Flights at Ireland’s Dublin Airport, U.S. Customs and Border Protection, (Apr. 22, 2011), https://www.cbp.gov/newsroom/spotlights/cbp-offering-preclearance-services-all-us-bound-flights-irelands-dublin-airport#wcm-survey-target-id.

[11] U.S. Customs and Border Protection, Office of Field Operations, CBP Preclearance of General Aviation Summary Guide, (March 2014), https://www.cbp.gov/sites/default/files/documents/CBP%20Preclearance%20of%20General%20Aviation%20Summary%20Guide.pdf.

[12] Id.

[13] Fact Sheet, supra note 4.

[14] Id.