Recently, we were tasked with trying to obtain records relating to an individual’s entries to and exits from the United States.
I was certain that these records were not considered public record, but the case related to an ongoing criminal defense matter in federal court, so obtaining a subpoena was not an issue.
[Crib Notes: You can obtain your own records through the FOIA or through a subpoena. There is no other way to do it.]
Early on in the research, I found information on the U.S. Department of State website relating to obtaining copies of passport records. Upon closer inspection, however, I determined that “passport records” with the Department of State do not include “evidence of travel such as entrance/exit stamps, visas, residence permits.”
While this may be useful in other cases, in this particular matter, I needed information relating to travels in and out of the United States—not just when the passport was issued.
After hours of research and telephone calls with a number of contacts and sources, I was able to get some more details on how to subpoena records relating to entries to and exits from the United States.
Border crossing records
Officially, the term is “border crossing records.” These records include any entries or departures by ground, sea, or air from the United States, and are housed in the U.S. Customs and Border Protection.
Sources indicated that border crossing records dating back 75 years are available through U.S. Customs and Border Protection.
TECS and BCI
There are two separate databases that can provide access to border crossing information: TECS and BCI.
TECS is the principal system used by U.S. Customs officers to assist with screening and determinations regarding the admissibility of arriving persons. TECS can also be accessed by law enforcement personnel. In addition to information relating to entries and departures, TECS also includes information such as wants and warrants and terrorist watchlists.
The Border Crossing Information (BCI) database is described as a “subset” of the TECS database; it is for information relating to requests from persons other than law enforcement officials, including FOIA requests.
Individuals can access information about themselves through the FOIA to the U.S. Customs and Border Protection.
Where to issue a subpoena?
For legal matters, border crossing information can be subpoenaed through the 20 regional operations offices, using the one that is closest to the court case at hand. (A subpoena can also be issued to the headquarters in D.C., but it would be forwarded to the closest regional office, which would add time to the process.)
What to expect …
I spoke to a representative of the regional office that was closest to the case we were working on, who provided the information outlined below. Keep in mind, each of the regional offices may operate differently, and I would strongly recommend speaking to someone in the legal department of the local regional office before obtaining a subpoena.
That person indicated that the subpoena should reference “border crossing records” and indicate the specific time period for which the border crossing records are needed.
Most subpoenas typically request two to five years of travel information. The representative was not clear if border crossing information was available for individuals who traveled into and out of the United States on a non-U.S. passport and was not clear how far back the records went; however, other sources indicated that U.S. Customs and Border Protection has 75 years’ worth of records.
In the subpoena, you should include information relating to the name of the person in question, their date of birth, and their passport number (if available).
The representative also suggested sending a copy of the criminal complaint with the subpoena or, alternatively, the case number so they could research the case themselves. I was told that they would respond to either a subpoena ordered by the court (“so ordered”) or a subpoena sent by an attorney, but that a subpoena ordered by the court would receive less scrutiny.
Once the subpoena is received and goes through the intake process, it will be assigned to an attorney in the office and will be responded to in due time. Typically, it takes a few weeks to respond.
The regional office that I contacted only accepted subpoenas by mail or certified mail; it did not accept personal service.
Also, the representative warned that the U.S. attorney assigned to the case would “probably” get notified of the request.
In closing …
So there you have it. Google didn’t help me clear up how to proceed when I was looking, but hopefully this information can be useful to someone else.
Great article. I am trying to navigate this process right now. I have dates the individual entered and exited via a copy of their passport (still wanting a full list as it seems the individual did not receive a stamp each and every crossing), but if I need to find out what airline the individual traveled on, do you know if any agency maintains this information or will I have to do like Scott and do a blanket subpoena?
Ultimately, I want to figure out what day the ticket was booked, as it will shed a lot of light on the purpose of the trip.
I don’t know the answer to that, John. My guess is that you are going to have to contact the airlines individually though.
Thank you for this excellent article Brian, and very useful. I have obtained records for a deceased person (FOIA through the DC headquarters) but now we have to obtain the CBP records of a living person, who is a party to the case, and the question of whether this person will be notified of our subpoena is pretty crucial.
5 months later, what did happen in your situation? Was the party notified?
Thanks and best, ew
Thanks for your comment Emmanuelle. Frankly, I do not know if the other side was told. I was told by a person in the U.S. Customs and Border Protection Office that the U.S. Attorney assigned to the case would be notified, so my guess is that while the person will not be notified, somebody probably will. Wish I could provide a more concrete answer, but unfortunately I can’t.
Question for you – since the person was deceased, you did not have to have permission and only needed a FOIA?
Yes, I only needed a FOIA but now we’re trying to obtain travel records for his spouse, who is very much alive… I followed your advice and contacted the regional branch of CBP and the senior attorney there called me back right away. What a difference it makes with contacting CBP in DC! That attorney told me that the individual is usually contacted, but that they review each case individually.
As an aside, I found that CBP treated by FOIA pretty quickly. The US State Department passport office has been much more difficult, though, denying requests, asking for additional documents etc.
Keep blogging and rocking, EW
Great tips Emmanuelle. I would have never guessed that you could get travel records with a FOIA.
Once again Brian, you’ve outdone yourself. I wanted to add in local travel, I have in the past, gone to LAX and made a list of every airline licensed there. I then proceeded to write what I call a “blanket subpoena” – 40 plus (SDT) subpoena duces tecum for every airline. At the end of it all, we received 40 some responses saying “No Record” and one with a list of flights. It is long and tedious, but when you have little information, it works.
Always a pleasure reading your stuff, Brian.
That sounds like a lot of work Scott; but like you said, when you’ve got little to work with, you’ve got to get creative.
This may come in very handy, and it’s also a salutary antidote to the widespread misconception that all you need is Google. Thank you.
Thanks for the comment Oliver. Google’s mantra is “organizing the worlds information”; sooner or later they may organize it all, but they are not there just yet.