                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-17-2003

USA v. Pollard
Precedential or Non-Precedential: Precedential

Docket 02-3018




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                         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
                              2


                      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.
                                   3


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).
                             4


    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.
                                   5


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.
                                    6


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 non-
governmental 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.”
                             7


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
                                   8


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.
                                   9


   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:
                                  10


   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 Martinez-
   Fuerte, 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.
                                   11


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:
                                    12


                                    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.
                                   13


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.
                              14


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 Leon-
Reynoso, 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
                             15


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
                                  16


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
                                     17


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
                                     18


   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”).
                                  19


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.
                              20


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
                               21


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;
                              22


“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.”
                              23


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]
                              24


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
                              25


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
                              26


    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
                             27


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 law-
abiding 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 pre-
September 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
                              28


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
