2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-17-2003

USA v. Pollard

Precedential or Non-Precedential: Precedential

Docket 02-3018

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Pollard" (2003). 2003 Decisions. Paper 579.

http://digitalcommons.law.villanova.edu/thirdcircuit_2003/579
PRECEDENTIAL

Filed April 17, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-3018

UNITED STATES OF AMERICA,

Appellant

v.

CAMILLE POLLARD

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

Argued November 13, 2002

Before: SCIRICA, ALITO and RENDELL, Circuit Judges.

(Filed April 17, 2003)

David M. Nissman, Esq. [ARGUED]

Office of the U.S. Attorney

1108 King Street, Suite 201

Christiansted, St. Croix

USVI 00820

Counsel for Appellant
Kim L. Chisolm, Esq.

Office of the U.S. Attorney

U.S. Courthouse

5500 Veterans Bldg., Suite 260

Charlotte Amalie, St. Thomas

USVI, 00802-6924

Counsel for Appellant

Alice S. Fisher, Esq. [ARGUED]

U.S. Department of Justice

Appellate Section

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Counsel for Appellant

Nina Goodman, Esq.

U.S. Department of Justice

Criminal Division, Appellate Section

601 D Street, N.W.

Washington, DC 20530

Counsel for Appellant

Douglas J. Beevers, Esq. [ARGUED]

Office of Federal Public Defender

P.O. Box 1327, 51B Kongens Gade

Charlotte Amalie, St. Thomas

USVI 00804

Counsel for Appellee

OPINION OF THE COURT

RENDELL, Circuit Judge: 

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.

2
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. 

I.

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).1 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

1. The Immigration and Nationality Act requires that the Attorney

General administer and enforce “all [ ] laws relating to the immigration

and naturalization of aliens.” 8 U.S.C. § 1103(a) (2002). The Act

authorizes the Attorney General to deny a person admission to the

United States for various reasons, including for failure to possess valid

entry documents. Id. at § 1182. It also permits the Attorney General to

prescribe regulations “he deems necessary for carrying out his

authority.” Id. at § 1103(a)(3). 

3
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. 

4
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).2

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

2. Importantly, Pollard does not argue that the Checkpoint goes beyond

the scope of the Attorney General’s discretion in enacting regulations to

enforce section 212(d)(7) of the INA or that the Checkpoint is an

unreasonable implementation of regulation section 235.5. 

5
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 nongovernmental 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.3

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

3. The text of 18 U.S.C. § 911 reads as follows: “Whoever falsely and

willfully represents himself to be a citizen of the United States shall be

fined under this title or imprisoned not more than three years, or both.”

6
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

7
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 produce two forms of identification when traveling to

the continental U.S. because 8 C.F.R. § 235.5 does not

require a checkpoint in those locales. 

Pollard, in turn, filed a memorandum of law that she

entitled “Defendant’s Reply in Support of the Court’s

December 17th Orders” (hereinafter “Reply”), arguing that

her detention did not comply with the dictates of the Fourth

Amendment, and, for the first time, arguing that the

Checkpoint violated the guarantee of equal protection, as

race-based discrimination, given that “the Virgin Islands is

the only United States jurisdiction outside the continental

United States which has a black majority.”

4

4. Although Pollard mentioned this argument in the Reply, she did not

pursue the argument beyond the Reply and has not renewed the

argument on appeal. If Pollard had pursued the argument, she would

have had to show, inter alia, that a racial purpose or object motivated

either Congress or the Attorney General. Village of Arlington Heights v.

Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (“Proof of

racially discriminatory intent or purpose is required to show a violation

of the Equal Protection Clause.”). The record clearly does not contain

such a showing. Pollard argued in her Reply that the group subjected to

discrimination consisted of travelers leaving the Virgin Islands. That

group, however, includes not only residents of the Virgin Islands, but

also a huge number of tourists who travel to and from the Virgin Islands

each year — thus making the racial composition of the Virgin Islands not

really at issue. 

8
After receiving the submissions, the District Court

reopened the suppression hearing and heard additional

testimony. At the hearing, the Government called three

witnesses. The first, Donnie R. Smith, the Area Port

Director for Immigration in the Virgin Islands, testified

about a number of aspects of the Checkpoint, including its

procedures, set-up, protocol, and 2001 statistics. He

further testified that the purpose of the Checkpoint is “to

prevent people who are illegally here in the U.S. Virgin

Islands from gaining entry into either Puerto Rico or the

continental United States.” Next, Allison Haywood, the INS

inspector who conducted the primary inspection of Pollard,

testified as to her encounter with Pollard and her normal

operations as an inspector. Lastly, Todd L. Johnson, the

Supervisory Special Agent who managed the Investigations,

Detention and Removal Programs of the INS in its St.

Thomas office, testified to the INS’s experiences with illegal

aliens in the Virgin Islands generally, the “staggering”

number of illegal aliens that come to the Virgin Islands

each day,5 and the positive effect that the Checkpoint has

in deterring illegal immigration into the United States and

in apprehending illegal immigrants. He further testified that

the vast majority of the illegal aliens that the INS

encounters in the Virgin Islands intend to travel to the

continental United States. Pollard did not present any

evidence at the hearing. 

The District Court thereafter issued another order. In

that order, the District Court, “determined” that the

Government bore the burden “of establishing the

constitutionality of the checkpoint itself, as well as the

statutory and regulatory authority to which the checkpoint

was established,” and sought further briefing from the

Government regarding the history and purpose of the

Checkpoint and the rationale for amending the regulation

to remove Alaska and Hawaii from its coverage once they

became states.6

5. The District Court dismissed this part of his testimony as

“undocumented, unsupported, and exaggerated opinion testimony.”

Pollard, 209 F. Supp. 2d at 546 n.30. 

6. The Order, issued on April 16, 2002, reads, in pertinent part: 

9
The Government submitted a written response to the

Court’s order, outlining the history of 8 C.F.R. § 235.5, from

its inception in 1952 to its present form. While the

Government could not discover either an articulated

original purpose of the regulation or the origin of the

Checkpoint, it did assert that the purpose of the

Checkpoint was, as stated by Area Port Director Smith in

his testimony, “to prevent people who are illegally here in

the U.S. Virgin Islands from gaining entry into either Puerto

Rico or the Continental United States.” Pollard, 209 F.

Supp. 2d at 535. The Government also stated that the only

“apparent rationale” it could perceive for the amendment

that removed Alaska and Hawaii from the coverage of

section 235.5 was the elimination of the references to those

states in section 212(d)(7) of the INA. 

Thereafter, the Government supplemented this response

with 34 exhibits, submitted with a brief explanation of each

exhibit, that it believed “related to the subject.” The

Government informed the Court that it had no documents

that could “provide a complete or continuous history of the

origins and purpose” of the Checkpoint and that

“documents evidencing procedure and/or protocol

WHEREAS the Court has determined that the government bears the

burden here of establishing the constitutionality of the checkpoint

itself, as well as the statutory and regulatory authority to which the

checkpoint was established, and 

WHEREAS the above-described information would assist the Court

in resolving whether the checkpoint is necessary under MartinezFuerte, it is hereby 

ORDERED that the United States shall, no later than April 30,

2002, provide supplemental briefing on the history and purpose of

the pre-clearance checkpoints in general under 8 C.F.R. § 235.5, as

well as the rationale for amending the regulation to remove Alaska

and Hawaii from its coverage once they became states, and it is

further 

ORDERED that the United States shall have until April 30, 2002 to

provide the Court with information regarding the origins and

purpose of the permanent immigration checkpoint at the Cyril E.

King Airport. 

10
throughout the history of the checkpoint has [sic] either not

been memorialized or retained.” The Government concluded

its supplemental response with the following: “The United

States submits that the above documents do not bear on

the issues before the Court.” As far as we can discern from

the record, this submission constituted the last evidence or

argument received by the District Court. 

On June 18, 2002, the District Court, in a published

opinion, granted Pollard’s motion to suppress. Pollard, 209

F. Supp. 2d at 527, 548. The Court determined that section

212(d)(7) of the INA and the implementing regulation, 8

C.F.R. § 235.5 (together referred to hereinafter as “the

statute”), violated the equal protection guarantee of the Due

Process Clause of the Fifth Amendment. The Court also

held that the procedure put in place pursuant to this

statute — the Checkpoint — violated the protection against

unreasonable seizures found in the Fourth Amendment.7

Pollard, 209 F. Supp. 2d at 527, 559.

The District Court had jurisdiction under 18 U.S.C.

§ 3231. We have jurisdiction under 28 U.S.C. § 3731.

Because we are reviewing the District Court’s interpretation

and application of legal principles, our review is plenary.

Anderson v. City of Philadelphia, 845 F.2d 1216, 1220 (3d

Cir. 1988). In conducting our review, however, we must

keep in mind the “limited scope of judicial inquiry into

immigration legislation,” Fiallo, 430 U.S. at 792, see also De

Leon-Reynoso v. Ashcroft, 293 F.3d 633, 638 (3d Cir. 2002),

and that “Congress has developed a complex scheme

governing admission to our Nation and status within our

borders,” Plyler v. Doe, 457 U.S. 202, 225 (1982), that

requires “delicate policy judgments [counseling] the Judicial

Branch to avoid intrusion into this field.” Id.

8

7. The District Court did not address the Fifth Amendment Miranda

issue actually raised and argued by Pollard. Rather, the Court stated

that Pollard abandoned the argument “after it became clear that Pollard’s

statement (to the INS inspectors) was the voluntary product of a valid

waiver of her Miranda rights.” Pollard, 209 F. Supp. 2d at 530. 

8. Although raised in a different context, we previously characterized the

relationship between the judiciary and the other branches of government

in the context of immigration in our opinion in New Jersey v. United

States: 

11
II.

A. Equal Protection

The Due Process Clause of the Fifth Amendment to the

Constitution contains the same guarantee of equal

protection under law as that provided in the Fourteenth

Amendment. Bolling v. Sharpe, 347 U.S. 497, 499-500

(1954). The Due Process Clause was made applicable to the

Virgin Islands by the 1968 amendments to the Revised

Organic Act of 1954.9 48 U.S.C. § 1561. See generally

United States v. Hyde, 37 F.3d 116, 123 (3d Cir. 1994). 

For purposes of the equal protection analysis, the

relevant classifications are those among persons similarly

situated. Plyler, 457 U.S. at 216. As a result, equal

protection analysis often begins with identifying the

similarly situated persons. The District Court determined

that the relevant classification contained in the statute —

in its words “the relevant comparison” — was “between

persons traveling on flights within the United States

originating in the Virgin Islands and persons traveling on

flights within the United States originating in any State or

Decisions about how best to enforce the nation’s immigration laws

in order to minimize the number of illegal aliens crossing our

borders patently involve policy judgments about resource allocation

and enforcement methods. Such issues fall squarely within a

substantive area clearly committed by the Constitution to the

political branches; they are by their nature peculiarly appropriate to

resolution by the political branches of government both because

there are no “judicially discoverable and manageable standards for

resolving” them and because independent resolution of such issues

by a court would express a lack of the respect due a coordinate

branch of government. 

91 F.3d 463, 470 (3d Cir. 1996) (citation omitted). 

9. The relevant parts of the amended statute read: “The following

provisions of and amendments to the Constitution of the United States

are hereby extended to the Virgin Islands to the extent that they have

the same force and effect there as in the United States or in any State

of the United States . . . the first to ninth amendments inclusive . . . .”

48 U.S.C. § 1561. 

12
the District of Columbia.” Pollard, 209 F. Supp. 2d at 546.

The obvious difference in the Government’s treatment of

these “classes” of persons is that the Government does not

subject those in U.S. jurisdictions outside of the Virgin

Islands to questioning at a fixed checkpoint like the

Checkpoint. The District Court found this distinction

constitutionally impermissible.10 The District Court rejected

the Government’s argument that the relevant comparison

was solely between travelers leaving the Virgin Islands. Id.

Although the Government has challenged on appeal the

Court’s identification of the similarly situated persons, we

find its other arguments persuasive and will therefore

assume that the comparison articulated by the District

Court was appropriate. 

The District Court applied a rational-basis analysis to the

alleged classification in the statute. The Court correctly

rejected Pollard’s argument that strict scrutiny applied.

Romer v. Evans, 517 U.S. 620, 631 (1996) (stating that

strict scrutiny applies to a classification that implicates a

suspect class or burdens a fundamental right). Under

rational-basis review in an equal protection context, “a

classification cannot run afoul of the Equal Protection

Clause if there is a rational relationship between the

disparity of treatment and some legitimate governmental

purpose.” Heller v. Doe, 509 U.S. 312, 320 (1993). In other

words, the inquiry is “whether the difference in treatment

. . . rationally furthers a legitimate state interest.” Nodlinger

v. Hahn, 505 U.S. 1, 12 (1992). The District Court found

that the Checkpoint failed even this low level of scrutiny,

and concluded that it “unconstitutionally discriminate[d]

against visitors to and residents of the Virgin Islands.”

Pollard, 209 F. Supp. 2d at 548. 

Normally, under rational-basis review, the party alleging

an equal protection violation has the burden of showing the

10. The District Court conducted an extensive examination of the equal

protection issues and the opinion is replete with references to the United

States Government’s allegedly discriminatory historical practices towards

the U.S. Virgin Islands, finding all three branches of government to be

implicated. See Pollard, 209 F. Supp. 2d at 539-46. We find much of this

discussion to be not founded in evidence before the Court and not

necessary to our ruling. 

13
irrationality of the classification drawn by the statute. See

City of Cleburne v. Cleburne Living Center, 473 U.S. 432,

440-41 (1985). Here, as we already noted, the Court placed

the burden of proof on the Government to justify the

different treatment. Pollard, 209 F. Supp. 2d at 537-38. The

Court articulated two reasons for doing so: “Congress’s

intent to treat the Virgin Islands, and persons departing

therefrom, differently from similar travelers in a State

appears on the face of both the statute and regulation,” and

“this issue was raised on the defendant’s motion to

suppress evidence obtained as the result of a warrantless

seizure.” Id. 

Neither of these reasons finds support in our, or the

Supreme Court’s, jurisprudence. To the contrary, we have

said: “Under rational basis review, legislation enjoys a

presumption of validity, and the plaintiff must negate every

conceivable justification for the classification in order to

prove that the classification is wholly irrational.” Brian B. v.

Pennsylvania Dep’t of Educ., 230 F.3d 582, 586 (3d Cir.

2000); see also Lehnhausen v. Lake Shore Auto Parts Co.,

410 U.S. 356, 364 (1973) (“[T]he burden is on the one

attacking the legislative arrangement . . . .”); De LeonReynoso, 293 F.3d at 638 (stating that Congress “need not

justify the purpose or reasoning to support its

classification”). This presumption is not altered when the

alleged discrimination is on the face of the statute or the

issue arises in a criminal context. The Supreme Court has

made clear that “rational-basis review . . . does not require

the State to place any evidence in the record,” Heller, 509

U.S. at 319, or place on the Government an “obligation to

produce evidence to sustain the rationality of a statutory

classification.” Id. at 320. It would make no sense to alter

the burden of proving constitutionality based on the context

in which it was raised. A law is not presumed more or less

constitutional because it comes into play in a civil or

criminal context. Here, Pollard had the burden to “negative

every conceivable basis that might support” the

classification, id., and the District Court should have

required her to carry that burden. 

While we would normally remand based on the District

Court’s imposition of the burden on the Government to

14
prove that the Checkpoint did not violate the guarantee of

equal protection, we will not do so because we conclude

that there is no way that Pollard can succeed in arguing

that the statute fails rational-basis review. The threshold

for upholding distinctions in a statute under rational-basis

review is extremely low, and it is not within the purview of

the courts to conduct anything but a limited review of the

reasons that legislation subject to rational-basis review

classifies among similarly situated persons. See

Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 316

(1976) (“[Rational-basis] inquiry employs a relatively relaxed

standard reflecting the Court’s awareness that the drawing

of lines that create distinctions is peculiarly a legislative

task and an unavoidable one. Perfection in making the

necessary classifications is neither possible nor necessary.

. . . Such action by a legislature is presumed to be valid.”).

Pollard, as the one attacking the alleged classification

created by the statute, would bear the burden “to negative

every conceivable basis which might support it.”

Lehnhausen, 410 U.S. at 364 (emphasis added); see also De

Leon-Reynoso, 293 F.3d at 640 (stating that Congress only

needed to have “conceivably had good reasons to create . . .

the distinction”). In fact, even if the Government fails to

come forward with its own rationale, “[t]he court may . . .

hypothesize the motivations of the . . . legislature to find a

legitimate objective promoted by the provision under

attack.” Malmed v. Thornburgh, 621 F.2d 565, 569 (3d Cir.

1980). That is, “[w]e are free to consider any conceivable

legislative purpose so long as it reasonably could have been

entertained by the legislature.” Ramsgate Court Townhome

Ass’n v. West Chester Borough, 313 F.3d 157, 160 (3d Cir.

2002). Therefore, under rational basis review, Pollard not

only must show that any justifications for the classification

forwarded by the Government were not rational, but she

also must convince the court that no set of facts rationally

could justify the classification. This feat, she simply cannot

accomplish. 

In support of the statute, the Government argues that the

statute is intended to control illegal immigration in the

Virgin Islands and to prevent illegal immigrants from

traveling to the U.S. mainland. The District Court did not

15
accept this rationale. Instead, it conducted an in-depth

probe into whether the statute and its implementing

regulations accomplished this purpose and was justified.

See Pollard, 209 F. Supp. 2d at 546 n.30. This approach

was flawed. See F.C.C. v. Beach Communications, 508 U.S.

307, 313-14 (1993) (“A legislative choice is not subject to

courtroom fact-finding and may be based on rational

speculation unsupported by evidence or empirical data.”);

id. at 320 (“[The] assumptions underlying these rationales

may be erroneous, but the very fact that they are ‘arguable’

is sufficient, on rational-basis review, to ‘immuniz[e]’ the

congressional choice from constitutional challenge.”

(quoting Vance v. Bradley, 440 U.S. 93, 112 (1979))). 

While the Government’s insistence that the statute’s

purpose is to control immigration into the U.S. mainland

seems more of a justification for the statute itself than for

the alleged classification created in the statute, it is easy to

conceive of reasons supporting the classification. Congress,

in enacting the statute, and the Attorney General, in

promulgating the implementing regulation, could have

rationally believed that the Checkpoint was the best way to

deter illegal immigration from the Virgin Islands into the

continental U.S. In reaching this conclusion, Congress and

the Attorney General could have had in mind the difficulty

and expense of preventing the entry of illegal aliens into the

Virgins Islands’ shoreline and harbors, as well as the

proximity of foreign islands and the great number of vessels

of all types that ply the water surrounding the Virgin

Islands. They also could have rationally believed, as

testimony confirmed, that many of the illegal aliens who

enter the Virgin Islands intend to travel to the U.S.

mainland and that the Checkpoint would deter many of

these illegal aliens from entering the Virgin Islands. With

any of these conceivable reasons in mind, requiring persons

traveling from the Virgin Islands to pass through the

Checkpoint at the Airport is undoubtedly a rational means

of furthering the interest in interdicting aliens. Whether or

not the aforesaid reasons were in the contemplation of

Congress when it enacted the legislation is irrelevant.11 See

11. Therefore, the District Court’s examination of the known history of

the statute and the U.S. Government’s relationship with the Virgin

16
Beach Communications, 509 U.S. at 315 (“[B]ecause we

never require a legislature to articulate its reasons for

enacting a statute, it is entirely irrelevant for constitutional

purposes whether the conceived reason for the challenged

distinction actually motivated the legislature.”); see also

Heller, 509 U.S. at 321 (stating that the legislation only

needs to have “some footing in the realities of the subject

addressed by the legislation”); Flemming v. Nestor, 363 U.S.

603, 612 (1960) (“For these purposes, it is, of course,

constitutionally irrelevant whether this reasoning in fact

underlay the legislative decision . . . .”); De Leon-Reynoso,

293 F.3d at 640 (stating that the rationales need not

“command enthusiasm,” as along as “they form a plausible

justification for the distinction”). The District Court

conducted an improper investigation into whether the

Virgin Islands should be viewed differently from other

places in the U.S. for the purposes of controlling illegal

immigration. Instead, the Court should have asked itself if

Congress conceivably could have thought that the Virgin

Islands differed. The answer is clearly yes.12

Islands adds little, if anything, to the rational-basis inquiry. Pollard, 209

F. Supp. 2d at 539-48. The legislature did not need to justify the

classification when it passed the statute. Beach Communication, 509 U.S.

at 315; see also id. at 313 (stating that rational-basis review “is not a

license for courts to judge the wisdom, fairness, or logic of legislative

choices”). It is quite clear that justifications may be surmised post-hoc.

12. Moreover, Pollard’s argument that the fact that, unlike in other U.S.

jurisdictions, there is no border patrol in the U.S. Virgin Islands can be

presumed to be a part of any alleged discrimination toward the people of

that territory is irrelevant. She confuses the analysis. The similarly

situated persons identified by the District Court are not all persons in

the Virgin Islands and all persons in other U.S. jurisdictions, but, rather,

airplane travelers from the Virgin Islands and airplane travelers in states

and the District of Columbia. Pollard, 209 F. Supp.2d at 546. Thus, any

alleged discrimination against the whole population of the Virgin Islands

is not at issue. Regardless, Pollard’s argument fails either way. Under

rational-basis review, the Government need not treat all jurisdictions

exactly alike. Doing so would inappropriately subject the wisdom of

legislative choices to the whim of the courts. See Beach Communications,

508 U.S. at 313. As is explicit in the courts’ use of scrutiny levels in

determining the constitutionality of legislation, different treatment is not

necessarily impermissible discrimination. The Government may decide to

17
Accordingly, we reverse the District Court’s finding that

section 212(d)(7) of the INA and its enacting regulation, 8

C.F.R. § 235.5, violate the equal protection guarantee

embedded in the Due Process Clause of the Fifth

Amendment. The alleged distinction drawn by the statutory

provision passes constitutional muster because Congress

and the Attorney General rationally could have believed

that illegal immigration in the Virgin Islands needs to be

dealt with differently in the U.S. Virgin Islands than in

other U.S. jurisdictions. See generally Williamson v. Lee

Optical of Oklahoma, Inc., 348 US. 483, 489 (1955) (“Evils

in the same field may be of different dimensions and

proportions, requiring different remedies. Or so the

legislature may think.”). Taking our cue from the Supreme

Court that “[w]here there are ‘plausible reasons’ for

Congress’ action, our inquiry is at an end,” Beach

Communications, 508 U.S. at 313-14 (quoting United States

R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980)), we

accordingly turn our attention to the Fourth Amendment

issue. 

B. Fourth Amendment

The District Court granted Pollard’s motion to suppress

put in place a border patrol in one jurisdiction, such as Texas, but that

does not mean that the Government per se impermissibly discriminates

against Virgin Islanders in favor of Texans. Just as Congress and the

Executive may attack a perceived problem in piece-meal fashion without

running afoul of equal protection guarantees, see Williamson v. Lee

Optical of Oklahoma, Inc., 348 US. 483, 489 (1955) (stating that “reform

may take one step at a time,” permitting the legislature to “select one

phase of one field and apply a remedy there, neglecting the others”), it

may attack the problem — here, illegal immigration — in different ways

in different jurisdictions. See Reno v. Flores, 507 U.S. 292, 312 (1993)

(stating that, in the context of immigration regulation, “reordering of

priorities is for Congress”); Flemming v. Nestor, 363 U.S. 603, 612 (1960)

(“For these purposes, it is, of course, constitutionally irrelevant . . . that

the section does not extend to all to whom the postulated rationale might

in logic apply.”); cf. Harris v. Rosario, 446 U.S. 651, 652-53 (1980)

(holding that Congress may treat Puerto Rico “differently from states so

long as there is a rational basis for its actions”). 

18
on the alternative ground that the Checkpoint violated the

Fourth Amendment.13 It seems clear that Pollard was

subjected to a “seizure” when she was at the Checkpoint,

see id. at 556, see also Lopez v. Aran, 844 F.2d 898, 905

(1st Cir. 1988) (“Checkpoint stops are indubitably ‘seizures’

within the meaning of the Fourth Amendment.”), and it is

undisputed that the seizure occurred without individualized

suspicion. We therefore must determine whether the

Government is excused from having individualized

suspicion in order to detain persons at the Checkpoint. 

The Fourth Amendment’s “central concern . . . is to

protect liberty and privacy from arbitrary and oppressive

interference by government officials.” United States v. Ortiz,

422 U.S. 891, 895 (1975). The touchstone of Fourth

Amendment analysis is reasonableness. Michigan Dep’t of

State Police v. Sitz, 496 U.S. 444, 450 (1990). For the most

part, searches and seizures undertaken without a warrant

and probable cause or reasonable suspicion are

unreasonable and violative of the Fourth Amendment. See

Martinez-Fuerte, 428 U.S. at 560; see also U.S. Const.

amend. IV. The Supreme Court, however, has articulated

various exceptions to the Fourth Amendment’s general

requirements of probable cause and reasonable suspicion,

including border searches, see generally United States v.

Ramsey, 431 U.S. 606, 617-19 (1977), and searches at

internal checkpoints on the highways aimed at the

interdiction of illegal aliens. Martinez-Fuerte, 428 U.S. at

561-62. In determining whether an exception exists, the

Court balances the intrusion on the individual’s Fourth

Amendment rights against the legitimate governmental

interests at stake. United States v. Montoya de Hernandez,

473 U.S. 531, 537 (1985); see also Brown v. Texas, 443

U.S. 47, 50-51 (1979). Where the balance tilts in favor of

the government, the Court considers the suspicionless

13. We use the term “Checkpoint” to connote all of the set-up and

procedures used pursuant thereto, except for those occurring during the

secondary inspection. Pollard focused her argument before the District

Court, as she does on appeal, on the constitutionality of the primary

questioning at the Checkpoint, not the secondary inspection. Therefore,

we do the same. 

19
search reasonable. See, e.g., Martinez-Fuerte, 428 U.S. at

561. 

Because there is no case law on point, we will apply a

balancing test to the facts presented. In subjecting the

Checkpoint to this balancing test, however, we do not write

on a blank slate. We find guidance in a number of opinions,

but will focus on three. For our ultimate conclusion that

the Checkpoint passes muster under the Fourth

Amendment, we rely chiefly on the opinion of the Supreme

Court in United States v. Martinez-Fuerte, 428 U.S. 543,

551 (1976). We find, however, that the opinion of our Court

in United States v. Hyde, 37 F.3d 116 (3d Cir. 1994), and

the opinion of the Court of Appeals for the First Circuit in

Lopez v. Aran, 844 F.2d 898 (1st Cir. 1988), buttress this

conclusion. 

1. United States v. Martinez-Fuerte

The District Court likewise relied primarily upon the

Supreme Court’s opinion in Martinez-Fuerte. See Pollard,

209 F. Supp. 2d at 552-59. But, unlike the District Court,

we view Martinez-Fuerte as supporting the constitutionality

of the Checkpoint. 

In Martinez-Fuerte, the Supreme Court addressed the

constitutionality of procedures employed in connection with

various (consolidated) criminal prosecutions for

transporting illegal aliens from Mexico. Id. at 545. The

defendants were apprehended at fixed checkpoints on the

highway located 25 to 100 miles from the Mexican border

whose purpose was to interdict aliens. The Court addressed

the issue of whether, under the Fourth Amendment, “a

vehicle may be stopped at a fixed checkpoint for brief

questioning of its occupants even though there is no reason

to believe the particular vehicle contains illegal aliens.” Id.

The Court held that it may. The Court reached this

conclusion after applying the aforementioned balancing

test, “weigh[ing] the public interest against the Fourth

Amendment interest of the individual.” Id. at 554. In doing

so, the Court made a number of observations. First, the

Court examined the public interest and the practicality of

requiring individualized suspicion. The Court noted “the

20
substantiality of the public interest in the practice of

routine stops for inquiry at permanent checkpoints

[designed to control the flow of illegal aliens across the

border].” Id. at 556. The Court also noted that requiring

reasonable suspicion would be impractical given the

“heavy” flow of traffic and the fact that such a requirement

would “largely eliminate any deterrent to the conduct of

well-disguised smuggling operations.” Id. at 557. Thus, the

Court found that “the need to make routine checkpoint

stops is great.” Id. 

Next, the Court examined the resulting intrusion on

Fourth Amendment interests. The Court noted that the

checkpoint stops did intrude to some extent on “motorists’

right ‘to free passage without interruption’ and arguably on

their right to personal security.” Id. at 557-58 (citation

omitted) (quoting Carroll v. United States, 267 U.S. 132,

154 (1925)). Nonetheless, the Court dismissed this

intrusion as “quite limited.” Id. at 557. The Court found

that the stop did not involve a search, but, instead,

involved “only a brief detention during which ‘(a)ll that is

required of the vehicle’s occupants is a response to a brief

question or two and possibly the production of a document

evidencing the right to be in the United States.’ ” Id. at 558

(quoting United States v. Brignoni-Ponce, 422 U.S. 873, 880

(1975)). The Court further emphasized that the intrusion

did not occur in private dwellings, where the expectation of

privacy is much greater. Id. at 561. 

The Court also referenced the distinction drawn in the

case law between the permanent checkpoints at issue and

the roving patrol stops found repugnant to the Fourth

Amendment in Brignoni-Ponce, 422 U.S. at 882-83. The

Court noted that “the subjective intrusion — the generating

of concern or even fright on the part of lawful travelers —

is appreciably less in the case of a checkpoint stop,”

Martinez-Fuerte, 428 U.S. at 558, because the traveler “can

see visible signs of the officers’ authority.” Id. (quoting Ortiz,

422 U.S. at 894-95). See generally Sitz, 496 U.S. at 450

(discussing roving patrols). The Court also cited the

following characteristics of the permanent checkpoint as

distinguishing: “the potential interference with legitimate

traffic is minimal,” Martinez-Fuerte, 428 U.S. at 558-59;

21
“checkpoint operations both appear to and actually involve

less discretionary enforcement activity” given that the

checkpoint is operated in a “regularized manner” not

chosen by field officers, but by “officials responsible for

making overall decisions as to the most effective allocation

of limited enforcement resources,” id. at 559; “since field

officers may stop only those cars passing the checkpoint,

there is less room for abusive or harassing stops of

individuals,” id.; and “a claim that a particular exercise of

discretion in locating or operating a checkpoint is

unreasonable is subject to post-stop judicial review.” Id. 

Ultimately, the Court found that the government’s

interests outweighed those of the individual citizens, id. at

545, 561-62, and therefore held that the stops and

questioning at issue were constitutional without

individualized suspicion at “reasonably located

checkpoints.” Id. at 562. 

Applying the analysis of Martinez-Fuerte to the facts

before us, it seems clear that the checkpoint here does not

offend the Fourth Amendment. We begin, as the Supreme

Court did, by analyzing the public interest advanced by the

Checkpoint. The Government’s interest at issue is in

interdicting aliens illegally entering or present in the U.S. —

essentially the same interest identified in Martinez-Fuerte.

Id. at 556. As the Supreme Court noted: “It has been

national policy for many years to limit immigration into the

United States,” id. at 551, and “[m]any more aliens than

can be accommodated under the quota [annually set for

immigrants] want to live and work in the United States.” Id.

The public interest is clearly compelling. 

Next, we identify the intrusion. As in Martinez-Fuerte, the

Checkpoint stop “involves only a brief detention of travelers

during which ‘all that is required . . . is a response to a

brief question or two and possibly the production of a

document evidencing the right to be in the United States.’ ”

Id. (quoting Brignoni-Ponce, 422 U.S. at 880). The

Checkpoint also minimizes “the physical and psychological

intrusion,” Delaware v. Prouse, 440 U.S. 648, 657 (1979),

visited upon travelers because it serves as “visible evidence,

reassuring to lawabiding [travelers], that the stops are duly

authorized and believed to serve the public interest.”

22
Martinez-Fuerte, 428 U.S. at 559. It is not likely to result in

the “generating of concern or even fright on the part of

lawful travelers.” Id. at 558; see also Prouse, 440 U.S. at

656 (finding that the minimal “subjective intrusion” felt by

lawful travelers is “the crucial distinction” between

impermissible roving-patrol stops and the Border Patrol

checkpoint operations). Additionally, the Checkpoint in the

Airport mimics the checkpoints at issue in Martinez-Fuerte

in that it interferes minimally with traffic, and is conducted

in a regularized manner at a fixed location “not chosen by

officers in the field, but by officials responsible for making

overall decisions as to the most effective allocation of

limited enforcement resources,” Martinez-Fuerte, 428 U.S.

at 559, thus minimizing the possible evils of absolute

discretion. Id. at 559; see also Prouse, 440 U.S. at 656

(discussing the “danger” of leaving officers in the field with

discretion to make stops). These determinations, along with

the fact that one’s expectation of privacy in immigration

status and identification while traveling via airplane from

the U.S. Virgin Islands to the other parts of the U.S. is

extremely low, see Martinez-Fuerte 428 U.S. at 561, leads to

the ineluctable conclusion that stops and questioning

conducted at the Checkpoint are consistent with the

principles of the Fourth Amendment articulated in

Martinez-Fuerte, and, thus, may be made in the absence of

any individualized suspicion. 

2. United States v. Hyde

Although largely ignored by the parties and the District

Court, our decision in United States v. Hyde, 37 F.3d 116

(3d Cir. 1994), squarely supports the constitutionality of

the Checkpoint under Fourth Amendment analysis. In

Hyde, we addressed “whether an individual leaving the

Virgin Islands for one of the fifty states may be subjected to

a routine customs search prior to departure in the absence

of any degree of suspicion that the individual engaged in

wrongdoing.” Id. at 118. As in Martinez-Fuerte, we

emphasized that the constitutionality of the search

depended on the results of “balancing the ‘intrusion on the

individual’s Fourth Amendment interests’ [against] the

degree to which routine customs searches ‘promot[e]

23
legitimate governmental interests.’ ” Hyde, 37 F.3d at 122.

We concluded that the Government’s interest in conducting

warrantless searches without probable cause outweighed

the individual’s interest in not being subject to the

intrusion on Fourth Amendment interests. Id. at 122. 

The District Court read our analysis in Hyde as applying

strictly to customs searches. According to the Court, Hyde

is “factually inapposite . . . because the Congress has

always included the Virgin Islands within the United States

for immigration purposes, but not for customs purposes

. . . . Whatever else it may endorse, Hyde does not stand for

the proposition that there is an ‘internal’ border between

the Virgin Islands and the continental United States for

immigration purposes.” Pollard, 209 F. Supp. 2d at 545.

Inasmuch as the District Court believed that Hyde does not

support the constitutionality of the Checkpoint, we

disagree. While Hyde focused on customs searches, its

reasoning certainly applies to the immigration questioning

conducted at the Checkpoint. 

In applying the balancing test in Hyde, we noted that

“not all territory over which a sovereign exercises

sovereignty has the same legal status, and borders between

‘incorporated’ and ‘unincorporated’ territory[, such as the

Virgin Islands,] of a sovereign have many of the

characteristics of international borders.” 37 F.3d at 120.

Thus, we concluded that Congress’s “broad power to

regulate commerce between the United States and its

unincorporated territories,” id. at 122, enabled it to

constitutionally create a border for customs purposes

between the Virgin Islands and the United States. Id. We

focused on what we perceived to be the interest of the

Government in warrantless searches at the Airport and

found that interest “to be little different from its interest in

such searches at its international borders.” Id. 

After we determined that the Government has a

significant interest in customs searches, we noted that the

reasonable expectation of individual privacy of the

defendants in Hyde was not “materially greater than the

reasonable privacy expectations of travelers at an

international border.” Id. We also noted that customs

searches had been conducted consistently on the Islands

24
since the U.S. acquired them, and that the public was

sufficiently aware of the distinctive status of the Islands “to

alert such travelers to the possibility of border inquiries not

experienced at state lines.” Id. 

Although there are differences between customs interests

and immigration interests, we see no reason why the

balancing test would yield different results when applied to

the Checkpoint. While the power of Congress used in Hyde

was the power to regulate commerce, here, the power at

issue is the power to regulate immigration — which is at

least equally as compelling. Applying the balancing test, the

Government clearly has as great an interest in interdicting

aliens as it does in regulating customs. The intrusion on an

individual’s interests that results from the questioning at

the Checkpoint likewise does not seem to exceed the

intrusion that results from a customs inspection. Moreover,

the expectation of privacy is equally as low. As a result,

Hyde also supports the constitutionality of the Checkpoint.

3. Lopez v. Aran

Lastly, we believe that the well-reasoned opinion of the

Court of Appeals for the First Circuit in Lopez v. Aran, 844

F.2d 898 (1st Cir. 1988), also provides support for the

constitutionality of the Checkpoint. Lopez involved a civil

suit challenging the procedures of the departure checkpoint

at the international airport in Isla Verde, Puerto Rico (“Isla

Verde checkpoint”), which, like the Checkpoint in St.

Thomas, was also set up under the auspices of section 212

of the INA and 8 C.F.R. § 235.5. The plaintiff in Lopez v.

Aran sought a declaratory judgment that the Isla Verde

checkpoint violated various constitutional provisions,

including the Fourth Amendment. The Court of Appeals for

the First Circuit described the Isla Verde checkpoint as

follows: 

INS agents at the Isla Verde International Airport

conduct an initial inspection to determine the

immigration status of prospective passengers by asking

them about their citizenship. The question is usually

posed, as we understand it, while the subject is

walking toward the departure gate. He or she need not

25
halt — nor necessarily slow down — in order to

respond. When a traveller affirms that he or she is a

citizen of the United States, and no further suspicion is

aroused, the questioning stops and the individual

remains free to proceed. On the other hand, if an agent

comes to suspect that the traveller is an alien (or if the

legality of the person’s immigration status cannot

readily be determined), then the individual is referred

to secondary inspection. In that phase of the inquiry,

the INS officer takes the passenger to another section

of the airport for further interrogation. 

Lopez, 844 F.2d at 906. We view this procedure as

materially the same as that employed at the Checkpoint in

St. Thomas, except that the Isla Verde checkpoint operates

in a less systematic manner. 

The Lopez Court found the checkpoint stop at Isla Verde

“strikingly similar” to the checkpoint stops at issue in

Martinez-Fuerte and upheld the constitutionality of the

inspection chiefly for that reason. Lopez, 844 F.2d at 905.

Comparing the Isla Verde checkpoint to the checkpoints at

issue in Martinez-Fuerte, the court noted the following: the

inspections occurred at “fixed, plausibly located

checkpoints, the existence of which, arguably at least, was

practically necessary to control the flow of persons,” Lopez,

844 F.2d at 906 (internal quotations and citation omitted);

“the public interest justifying the questioning is legitimate

and important,” i.e., “the need to interdict the flow of illegal

aliens into the mainland United States,” id.; significant

numbers of illegal aliens had been apprehended at the

checkpoint, id.; traffic was forewarned of the interrogation,

id.; the checkpoints “were operated under a prearranged

format and in a ‘regularized manner,’ ” id. at 907; the

intrusion was minimal, id.; the scope of the inspections

“has been carefully tailored to the goal of intercepting illegal

aliens,” id.; and the expectation of privacy within an airport

is “at least equally low” as that on a highway. Id. 

The District Court, here, however, “categorically reject[ed]

the United States’ contention that the checkpoint in Lopez

is sufficiently similar to the Departure Control Checkpoint

here to help [ ] decide this case.” Id. at 559. According to

the Court, “the salient fact distinguishing the two

26
checkpoints is that all travelers are stopped at the St.

Thomas Departure Control checkpoint,” while Lopez

involved only some passengers being questioned “on the

fly.” Id. We fail to see the significance of the distinction

drawn by the District Court, as the differences between the

two checkpoints are immaterial to the Checkpoint’s

constitutionality. If anything, the primary inspection at

checkpoint in Puerto Rico would seem more likely to offend

constitutional principles than the one in the Virgin Islands

given both its greater susceptibility to arbitrary and

discriminatory enforcement and its greater likelihood to

arouse feelings of discomfort, fright, or annoyance in lawabiding citizens due to this seeming arbitrariness. See Sitz,

496 U.S. at 453. Therefore, we find that Lopez buttresses

our conclusion that the Checkpoint does not offend

principles of the Fourth Amendment. 

III.

The importance of the issues raised in this case have

been highlighted by the immigration concerns that have

arisen in the country subsequent to the central events at

issue here, but the principles applicable in the preSeptember 11th fact pattern before us nonetheless include

deference that courts are to give the legislative branch in

immigration matters, and the careful weighing undertaken

in addressing whether checkpoints such as this also

comport with the Fourth Amendment. In analyzing the

classification reflected in section 212 of the INA and 8

C.F.R. § 235.5, we have emphasized the nature of the

judiciary’s review of a classification’s constitutionality

where rational-basis review is appropriate. Quite simply, as

long as a conceivable rationale — which assumes

reasonableness — could support the classification, the

court should uphold the legislation’s constitutionality. As

for the Fourth Amendment question involved, we have

relied on the Supreme Court’s jurisprudence, namely

Martinez-Fuerte, and, also, but to a lesser extent, on our

opinion in Hyde and the opinion of the Court of Appeals for

the First Circuit in Lopez. In so doing, it becomes evident

that, when the Government’s compelling interest in

interdicting aliens — an interest undoubtedly addressed by

27
the Checkpoint — is measured against the Checkpoint’s

minimal intrusion on the liberty interests of travelers, the

Checkpoint comfortably squares with the Fourth

Amendment. 

We accordingly will reverse the order of the District Court

and remand for further proceedings.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

28