Full opinion text
MEMORANDUM MOORE, District Judge. Imagine that you are at the Philadelphia airport for a flight to Atlanta. You present your ticket along with whatever form of identification the airline requires at the check-in counter. The airline agent then directs you to airport security and the airline departure gate. Imagine that as you approach the security and gate area, you are confronted by another set of counters, identified as an immigration departure checkpoint at which all travelers áre required to apply for admission into the United States before they may board their flights from Philadelphia to Atlanta and other U.S. cities. The signs tell all travelers that “proof of citizenship is required,” with words to the effect that travelers should have their documents ready. Imagine that everyone who wants to get on that airplane to Atlanta — permanent alien residents, visitors on temporary visas, United States citizens — must stand behind a yellow line until called 'by an immigration inspector to approach and prove their right to be in the United States. This Alice-in-Wonderland scenario must be imagined because it can exist nowhere within the fifty United States and the District of Columbia. It would clearly violate the constitutional right of free travel to require every person to apply for admission to the United States each time she flies from one State to another. Yet this is precisely the procedure the United States Government has imposed upon travelers, both citizens and non-citizens, from the Territory of the Virgin Islands. Before any person can fly directly from St. Thomas, Virgin Islands, to the continental United States, or even to Puerto Rico, she must apply to be admitted to the United States and must present herself in person to an immigration inspector for examination of her right to enter the United States. This criminal prosecution squarely presents the question whether the permanent immigration Departure Control Gate operated by the United States Immigration and Naturalization Service [“INS”] at the St. Thomas airport in the United States Virgin Islands is compatible with the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment or the equal protection component of the Due Process Clause of the Fifth Amendment. Although I am mindful of the nationwide concern and renewed congressional and executive efforts to tighten control of the flow of aliens across our international borders since the attacks of September 11, 2001, I nevertheless must conclude that the operation of this non-border, internal Departure Control checkpoint is inconsistent with both our well-settled principles of equal protection under the law and freedom from unreasonable searches and seizures. To paraphrase the Supreme Court, the law enforcement needs of the United States in the Virgin Islands are indistinguishable from those in many of the States: [The Virgin Islands] is not unique because it is an island; like [the Virgin Islands], neither Alaska nor Hawaii are contiguous to the continental body of the United States. Moreover, the majority of all the states have borders which coincide in part with the international frontier of the United States. Torres v. Commonwealth of Puerto Rico, 442 U.S. 465, 474, 99 S.Ct. 2425, 61 L.Ed.2d 1 (1979) (holding unconstitutional a search conducted by police pursuant to a local law authorizing them to search the luggage of persons arriving in Puerto Rico from the United States). I. BACKGROUND A. Regulatory and Statutory Authority Part 235 of title 8 of the Code of Federal Regulations, titled “Inspection of Persons Applying for Admission,” governs the procedure for the inspection of persons applying for lawful admission to the United States. Through the mechanism of “preinspection,” section 235.5 applies these procedures to the Virgin Islands. See 8 C.F.R. § 235.5(a) (providing for preinspection in United States territories and possessions). Before an aircraft may depart, each and every person, whether an alien or a United States citizen, flying “directly and without touching at a foreign port or place” from the United States Virgin Islands to Puerto Rico “or to one of the States of the United States or the District of Columbia” must be examined by an immigration officer to determine her or his admissibility to Puerto Rico or the continental United States. See id. § 235.1(d)(1) (“Alien applicants for admission”) (“Each alien seeking admission ... shall present whatever documents are required and shall establish to the satisfaction of the immigration officer that he or she is not subject to removal ... and is entitled ... to enter the United States.”); id. § 235.1(b) (“U.S. citizens”) (“A person claiming U.S. citizenship must establish that fact to the examining officer’s satisfaction. ... If such applicant for admission fails to satisfy the examining immigration officer that he or she is a U.S. citizen, he or she shall thereafter be inspected as an alien.”). According to the United States, subsection 235.5(a) is the regulatory implementation of section 212(d)(7) of the Immigration and Nationality Act: The provisions of subsection (a) [classes of aliens ineligible for visas or admission] (other than paragraph (7) [documentation requirements for immigrants and nonimmigrants]) shall be applicable to any alien who shall leave Guam, Puerto Rico, or the Virgin 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.... Immigration and Nationality Act § 212(d)(7), 8 U.S.C. § 1182(d)(7). The evidence in this case has established that the Departure Control Gate is the procedural equivalent of a Foreign Arrivals Gate. As will be demonstrated, these statutory and regulatory provisions as applied to the Territory of the Virgin Islands represent a vestigial appendage to the current immigration laws that has long outlived the reasons for'its original incorporation in the immigration laws of 1917. B. Factual History On May 13, 2001, the defendant arrived in the Virgin Islands on a Cape Air flight and presented herself at the Foreign Arrivals Gate at the St. Thomas Cyril E. King Airport as one Katisha Kenya Norris, resident of New York. At Foreign Arrivals, she was examined by an INS inspector and admitted to the United States as a United States citizen. Later that day, the defendant attempted to pass through the Departure Control checkpoint at issue here to board an outgoing flight to New York and encountered another immigration inspector, Allison Haywood. The defendant again presented herself as the U.S. citizen, Katisha Kenya Norris, using a “nongovernmental” New York identification card bearing that name. In response to Inspector Haywood’s routine request that she state her citizenship, the defendant replied that she was a United States citizen. Inspector Haywood then asked where the defendant was born, and the defendant responded that she was born in Queens, New York. Inspector Haywood asked for a birth certificate, and the defendant presented a New York birth certificate bearing the name Katisha Kenya Norris. Upon further questioning, the defendant stated that she had lived in New York all her life and went to school in New York. Because Inspector Haywood did not detect a “New York accent,” she asked the defendant if she could name her school in New York. The defendant could not remember the name of the school, nor could she recall her father’s middle name as it appeared on the birth certificate. Suspicious of these answers and the defendant’s “nervous” demeanor, Inspector Haywood called over a secondary inspector. The secondary inspector, James X. Beckerleg, took the defendant from the primary inspection line at the Departure Control Gate to the secondary inspection area near the Foreign Arrivals border checkpoint (through which the defendant had been admitted as a United States citizen only hours earlier). (See Aug. 30, 2001 Hr’g Tr. (excerpt) at 5 (testimony of James X. Beckerleg).) To Inspector Beckerleg, the defendant’s New York birth certificate appeared to be a “good document,” but he had never seen the kind of nongovernmental New York photo ID that she had presented to Haywood. Inspector Beckerleg asked a series of questions similar to those asked by Inspector Haywood. At the same time, he ran a background check on Katisha Kenya Norris on the FBI’s National Crime and Information Center database and the INS’s immigration database, which turned up nothing under that name. Concluding that the nongovernmental picture ID was fake, Inspector Beckerleg then read the defendant her Miranda rights on the belief that she had made a false claim to U.S. citizenship. The defendant waived her rights and admitted to Beckerleg that she is a citizen of Guyana and that her true name is Camille Pollard [“Pollard”]. She was charged with violating 18 U.S.C. § 911 (“Whoever falsely and willfully represents h[er]self to be a citizen of the United States shall be fined under this title or imprisoned not more than three years, or both.”). Pollard moved to suppress her statement made to Inspector Beckerleg on the ground that it was either involuntary or the product of an invalid waiver of her Miranda rights. At a hearing held August 30, 2001, and after it became clear that Pollard’s statement was the voluntary product of a valid waiver of her Miranda rights, Pollard raised the additional grounds that her statement should be suppressed because it was obtained as the result of an unconstitutional seizure under the Fourth Amendment and a violation of her right to equal protection under the law. I ordered supplemental briefing and held another hearing on the motion to suppress on April 4, 2002. II. DISCUSSION In considering the relative positions of Pollard and the United States, I recall the words of Mr. Justice Stewart as he reminded us of the abiding conflict between the interests of law enforcement agents and private individuals: “The needs of law enforcement stand in constant tension with the Constitution’s protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards.” Al-meida-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). These words are a particularly apt prelude to my analysis in this case, recognizing as I do the attention the cowardly attacks of September 11, 2001, have appropriately focused on the need for tighter control of the nation’s borders. It is most important for me to emphasize that this case does not involve procedures for interdicting aliens attempting to enter the United States at an international border. Indeed, the defendant already had been admitted to the United States by an immigration inspector at the Foreign Arrivals border checkpoint at the St. Thomas airport port-of-entry to the United States. {See Gov’t Opp’n to Mot. Suppress, Ex. 1.) What this case involves is the constitutionality of the non-border, internal Departure Control Gate at the St. Thomas airport and the statute and regulation on which it is based. My sworn duty is to require the Congress and the Executive Branch, acting through the INS, to conform the enactment and implementation of immigration laws to the confines of the Constitution. I first address Pollard’s contention that the seizure of her person at the checkpoint violated her Fifth and Fourteenth Amendment constitutional guarantee of equal protection. I then address her distinct but related contention that the seizure violated her right under the Fourth Amendment to be free from unreasonable seizure of her person. A. Equal Protection Before ruling on Pollard’s equal protection challenge, I describe the procedures set forth in the relevant statute and regulation as embodied in the St. Thomas airport Departure Control checkpoint. 1. The Statute, Regulation, and Departure Control Checkpoint I preface this discussion with the observation that the treatment of the Territory of the Virgin Islands under immigration law is at best described as schizophrenic. Even though Congress has defined the Territory of the Virgin Islands as a “state” and as part of the “United States” for immigration purposes, see 8 U.S.C. § 1101(36), (38), Congress at the same time has required that aliens already legally in the Virgin Islands must reapply for admission and entry into the continental and other parts of the United States: The provisions of subsection (a) (other than paragraph (7) [defining classes of aliens ineligible for visas or admission to the U.SJ) shall be applicable to any alien who shall leave ... the Virgin 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.... Immigration and Nationality Act § 212(d)(7), 8 U.S.C. § 1182(d)(7) (original version at ch. 477, § 212(d)(7), 66 Stat. 163, 188 (1952)) (emphasis added). The procedure and method devised by the Attorney General for implementing section 212(d)(7) is to require all persons, aliens and United States citizens alike, seeking to enter the continental United States by air from the Virgin Islands to submit to inspection and examination by INS officers as though they were traveling from a foreign country to the United States: (a) In United States territories and possessions. In the case of any aircraft proceeding from ... 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 [8 U.S.C. § 1222], 235 [8 U.S.C. § 1225], and 240 [8 U.S.C. § 1229a] of the Act and 8 CFR parts 235 and 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. 8 C.F.R. § 235.5(a) (footnote added). The physical manifestation in the Virgin Islands of 8 C.F.R. § 235.5(a) is the non-border Departure Control immigration checkpoint at the Cyril E. King Airport in St. Thomas, as described by Donnie R. Smith, Area Port Director for St. Thomas. (See Apr. 4, 2002 Hr’g Tr. at 35-50 (testimony of Donnie R. Smith, Area Port Director) [hereinafter “Tr.”].) The Departure Control Gate is the “primary” inspection area where all passengers are tunneled like cattle through chutes to stand before uniformed INS inspectors from the Inspections Division, a part of the Office of Examinations in the INS structure. Departure Control at the Cyril E. King Airport is located in a semi-secure area between the airline check-in counters and the airport security gate leading to all flights departing St. Thomas and bound for Puer-to Rico and other United States destinations. Passengers encounter the checkpoint, along with a sign reading “United States Immigration Inspections,” just after they have placed their checked luggage on a conveyor belt to be loaded on the aircraft. Stanchions guide the passengers in a line as they wait their turn to present themselves to an INS inspector for admission to the United States. Passengers are directed by signs to wait behind the yellow line and to have their documents ready for the immigration inspector. Once summoned to come forward by a uniformed INS inspector, the passenger is guided down a narrow chute to the inspector seated at one of six stalls, where the passenger is detained until she satisfies the inspector that she is entitled to enter the continental United States or Puerto Rico. According to Area Port Director Donnie Smith, once the passenger is thus detained, the inspector first asks where the person is traveling, even though where she is going has absolutely nothing to do with the passenger’s right to be admitted to the United States. (See Smith, Tr. at 43.) The inspector next asks “What is your citizenship?” (Id. at 37-44.) Again according to Smith, a person claiming United States citizenship need not present any identification, although “ninety-nine percent of the people that come through ... walk up to the immigration inspectors and throw their passports right on the counter.” (Id. at 44.) Mr. Smith further testified that if a person makes an oral declaration of U.S. citizenship, the inspector may “ask a question like, ‘Well, where were you born?’ ” (Id. at 47.) If the inspector is satisfied that the person is a United States citizen, the traveler proceeds. (Id.) As already noted, the regulations provide that if the citizen “applicant for admission fails to satisfy the examining immigration officer that he or she is a U.S. citizen, he or she shall thereafter be inspected as an alien.” 8 C.F.R. § 235.1(b). If the passenger is a foreign national, the inspector will look at the passport and “make sure the 1-94 [Arrival/Departure Record] is in place” and “everything is in compliance” before allowing the person to proceed. (Smith, Tr. at 47.) If the traveler is unable to satisfy the primary inspector of her right to enter and be admitted to the continental United States, the inspector has the passenger taken to a secondary inspector at a room located approximately fifteen to twenty feet away from the primary inspection stalls. At secondary, the traveler is further questioned while her passport or name is run through the Treasury Enforcement Communications System [TECS] and various computer databases, including INS databases and 'perhaps a database that “cross-designates” with the FBI’s National Crime Information System and detects any warrants or lookouts put in the system by Customs or INS. (See Smith, Tr. at 77-78.) Port Director Smith conceded that there are no written protocols or even guidelines for his inspectors to use in questioning the passengers or whether to require proof of citizenship from persons claiming to be U.S. citizens. (See id. at 45.) Indeed, Inspector Haywood testified that “[i]t was the practice of Immigration, my job, to ask for proper traveling documents that proved your citizenship, like the birth certificate or passport ... [I]t’s up to the passengers or the traveling public to prove to us that they are a U.S. citizen, if, they say that they are.” (See Haywood, Tr. at 111-12.) The record in this case demonstrates that, depending on their experience and training, inspectors simply go with their “gut” in deciding whether to demand documentation or ask further questions. (See Smith, Tr. at 46.) All the Circumstances of this case establish that the United States Immigration and Naturalization Service operates this Departure Control cattle chute as if it were examining persons at a border who seek entry into the United States, where detention and questioning without probable cause or reasonable suspicion are appropriate in the exercise of the sovereign’s authority to control who comes across its international borders. See, e.g., United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) (“Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant....”). “Gut feelings” not amounting to reasonable suspicion, let alone probable cause, are proper at border examinations but not at an internal checkpoint within the United States, such as the St. Thomas airport Departure Control Gate. As evidenced by Haywood’s testimony, inspectors at Departure Control do not make this crucial distinction. Indeed, the basic purpose of Part 235 is to prescribe the procedures for inspecting persons applying for admission to the United States from a foreign country. Although the United States does not argue that there is an international border or its “functional equivalent” between the Virgin Islands and other United States jurisdictions for immigration purposes, it does contend that Congress has the constitutional authority to treat the Virgin islands “as if’ it were a foreign country for purposes of inspecting travelers passing through the airport Departure Control checkpoint. To determine the constitutionality of the procedures embodied in the St. Thomas airport Departure Control checkpoint, I first examine the origin and purpose of the statute and regulations which purport to authorize it. Subsection 212(d)(7) has its origin in section 1 of the Immigration Act of 1917, which provided in relevant part: [B]ut if any alien shall leave the Canal Zone or any other insular possession of the United States and attempt to enter any other place under the jurisdiction of the United States, nothing contained in this chapter shall be construed as permitting him to enter under any other condition than those applicable to aliens. Immigration Act of 1917 § 1, 39 Stat. 874, 874 (1917). The purpose of this provision was “to make it perfectly clear that the admission of an alien to the insular possessions does not privilege such alien to come to the mainland without examination.” Sen.Rep. No. 64-352, at 3 (1916). The report further stated that “[t]he necessity for the provision is the fact that aliens have been using the insular territory (particularly the Philippines) as a ‘stepping stone’ to the continent, avoiding close inspection by first securing admission to the Philippines and then coming ‘coastwise’ to the United States proper.” Id. The language found in section 1 of the 1917 Act provided the basis for the above-quoted subsection 212(d)(7) of the Immigration and Nationality Act of 1952, which applied at that time to the territories of Hawaii, Alaska, Guam, Puerto Rico, and the Virgin Islands. See Immigration and Nationality Act of 1952 § 212(d)(7), ch. 477, 66 Stat. 163,188 (1952) (current version at 8 U.S.C. § 1182(d)(7)); see also U.S. ex rel. Alcantra v. Boyd, 222 F.2d 445 (9th Cir.1955) (setting forth the history of the 1952 provision). The legislative history of the original and later enactments of subsection 212(d)(7) confirms that it was intended to cover those persons in the noncontiguous territories who either had never been subject to examination for admission to the United States or were inadmissible aliens who were nevertheless permitted to reside in a territory. See, e.g., 98 Cong.Rec. 4405 (1952) (“Present restrictions covering the travel of aliens from the Territory of Hawaii to the United States were the outgrowth of the presence in Hawaii at the time of annexation in 1898 of a large number of aliens then ineligible to citizenship.”) (statement of Rep. Farrington, in urging an amendment to the proposed 1952 Act that would have exempted Alaska and Hawaii, which were not yet States, from the restrictions imposed by section 212(d)(7)). This original version of section 212(d)(7) conceivably could have had some application to the Virgin Islands from the time of its acquisition in 1917 from Denmark until Congress granted citizenship rights in 1927. During this period, the former Danish citizens in the Virgin Islands were considered to be mere “nationals” of the United States who were not necessarily entitled to enter the continental United States under United States immigration law. At least during the period from 1917 to 1927, and perhaps into the early 1930s, the application of border-like admission requirements to persons traveling from the Virgin Islands to other United States jurisdictions may have had some rational basis, namely, to control the northward flow of non-citizen aliens legally present in the territory but not necessarily entitled to enter the continental United States. Today, however, there is no suggestion that the same purpose animates the current checkpoint. At the April 4th hearing, Area Port Director Donnie R. Smith provided what the United States has adopted as the current purpose of the checkpoint: “The Departure Control checkpoint is basically designed 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.” (See Smith, Tr. at 36) (as adopted by the United States in its written response to the Court’s April 16, 2002 Order). 2. The Arguments, Standard of Review, and Legal Analysis Pollard argues that the permanent immigration Departure Control checkpoint set up for detaining, inspecting, and examining each individual traveler boarding an airplane for a direct flight to other destinations within the United States violates her right to eqüal protection under the law. As a consequence, she asserts, any statements obtained from her through this discriminatory and unconstitutional scheme cannot be used as evidence against her. According to Pollard, the checkpoint program’s disparate impact on the mostly black population of the Virgin Islands cannot survive strict scrutiny. At the very least, she continues, the intentionally discriminatory statutory scheme has no rational basis. Thé United States offers three procedural arguments in opposition: (1) Pollard has no standing to challenge the constitutionality of the statute because she is an alien illegally present in the United States; (2) Pollard has failed to carry her initial burden of showing that the challenged action or statute is discriminatory; and (3) even if the checkpoint operation constitutes an equal protection violation, suppression of evidence is not the proper remedy. Choosing to rest on these arguments and in the face of this Court’s order requiring supplemental briefing, the United States refused to provide any evidence of, or rational explanation for, its differing treatment of persons traveling from the Virgin Islands to another location in the United States, as compared with persons traveling from any other location within the United States to any place in the United States, including the Virgin Islands, a. Procedural Arguments Frankly, I cannot understand the United States’ argument that an alien such as Pollard, who has been snared in the INS’s facially discriminatory detention mechanism and is. thus subject to incarceration if convicted of a felony, cannot directly challenge the discriminatory nature of that mechanism. Having been directly and personally affected by the suspect statutory and regulatory inspection procedures, Pollard obviously has the immediate personal interest and potential injury needed for “standing” to test the constitutionality of these procedures. See, e.g., United States v. Payner, 447 U.S. 727, 735, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980) (holding, in the context of a motion to suppress for Fourth Amendment violation, that only the “victim of the challenged practices” can move to exclude the allegedly tainted evidence). I do not understand the government to contend that Pollard is without the equal protection of laws once she was admitted to the United States at the St. Thomas airport. Even illegal aliens enjoy constitutional protection from invidious discrimination by the federal government once within the jurisdiction of the United States. See Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (“Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”); Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) (“The Fifth Amendment, as well as the Fourteenth Amendment, protects [aliens] from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.”) (citations omitted). Within five years of the Virgin Islands becoming an appurtenance of the United States, the Court of Appeals for the Third Circuit in 1921 held that persons in the United States Virgin Islands are fully protected by the “fundamental right” of due process. See Soto v. United States, 1 V.I. 536, 545-46, 273 F. 628, 634 (3d Cir.1921). In 1968, Congress amended the Revised Organic Act of 1954 to make the Due Process Clause of the Fifth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment applicable in the Territory of the Virgin Islands, and further repealed all previously enacted laws of Congress that are inconsistent with those constitutional provisions: 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 not been previously extended to that territory and shall 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; ... the second sentence of section 1 of the fourteenth amendment.... All laws enacted by Congress with respect to the Virgin Islands ... which are inconsistent with the provisions of this subsection are repealed to the extent of such inconsistency. Revised Organic Act of 1954 § 3 (added Aug. 23, 1968, Pub.L. 90-496, § 11, 82 Stat. 841) [“Rev.Org.Act”]. Subsequent decisions of the Court of Appeals and this Court have held that aliens in the Virgin Islands are guaranteed the equal protection of the laws. See Chapman v. Gerard, 456 F.2d 577, 577-78 (3d Cir.1972) (“An alien lawfully residing in the United States is entitled to equal protection under the Fourteenth Amendment.”) (citing Graham v. Richardson, 403 U.S. 365, 371, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) and Hosier v. Evans, 314 F.Supp. 316, 319-20 (D.Vi.1970)). The Chapman court quoted from the Supreme Court’s Graham opinion that ‘“classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.’ ” Chapman, 456 F.2d at 578 (quoting 403 U.S. at 372, 91 S.Ct. 1848). The Court of Appeals concluded that the discriminatory requirement that participants in a territorial scholarship fund be United States citizens was “not constitutionally sustainable as being rationally related to a legitimate state object or purpose.” Id. at 579 (internal quotation marks omitted). In the Hosier decision, cited with approval by the Court of Appeals in Chapman, this Court held that a local regulation permitting alien children present in the Virgin Islands as non-immigrant visitors to enroll in public school only if their admission did not increase the class size beyond certain limits violated the equal protection clause of the Fourteenth Amendment as an unreasonable and invidious discrimination against alien children. See Hosier v. Evans, 314 F.Supp. at 318-19 (noting that minor plaintiffs, non-resident aliens of non-immigrant status, and temporary visitors to Virgin Islands, nevertheless are “persons” within Equal Protection Clause of Fourteenth Amendment and have standing to challenge the regulation). Finally, this Court has also extended the equal protection of the laws to an illegal alien who, though not lawfully present in the Virgin Islands, may not be denied access to Virgin Islands’ divorce courts solely because he is in violation of an immigration law. See Williams v. Williams, 328 F.Supp. 1380, 1384 (D.Vi. 1971) (noting that an alien may form the necessary intent to establish domicile in Virgin Islands even though illegally in Territory and therefore deportable). It is clear to me that Pollard, though an alien illegally present in the Virgin Islands, has “standing” to challenge, under principles of equal protection, the constitutionality of the discriminatory nature of the checkpoint mechanism itself. I likewise reject the United States’ blanket contention that it need not present any evidence of, or rational explanation for, the disparate treatment of the Virgin Islands and persons traveling from the Virgin Islands as compared with persons traveling from other locations in the jurisdiction of the United States to the Virgin Islands or any state or territory. I agree that, under ordinary equal protection analysis, the initial burden of showing intentional discrimination lies with the person challenging the action. In this case, however, 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. Thus, at the very least, the statute and regulation must have a rational basis. See Harris v. Rosario, 446 U.S. 651, 651-52, 100 S.Ct. 1929, 64 L.Ed.2d 587 (1980) (“Congress, which is empowered under the Territory Clause of the Constitution, U.S. Const., Art. IV, § 3, cl. 2, to ‘make all needful Rules and Regulations respecting the Territory ... belonging to the United States,’ may treat Puerto Rico differently from States so long as there is a rational basis for its actions.”)- In any event, this issue was raised on the defendant’s motion to suppress evidence obtained as the result of a warrantless seizure, which shifts to the United States the burden of establishing that its " actions are constitutional. See United States v. Johnson, 63 F.3d 242, 245 (3d Cir.1995) (“[0]nce the defendant has established a basis for his motion, ie., the search or seizure was conducted without a warrant, the burden shifts to the government to show that the search or seizure was reasonable.”). Since the United States has supplied no rational basis for this intentionally discriminatory checkpoint, I reasonably can infer, and do conclude, that there is none. The United States’ final argument is that suppression is not a remedy for an equal protection violation. I agree that Pollard cannot bring her equal protection claim under the Fourth Amendment by arguing that a seizure that is in violation of her right to equal protection is unreasonable under the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“[T]he constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.”). In neither the Whren case nor any of the other decisions cited by the United States, however, has the Supreme Court or the Court of Appeals for the Third Circuit ruled out suppression of evidence as a remedy for an equal protection violation. See United States v. Armstrong, 517 U.S. 456, 461 n. 2, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (noting that the Supreme Court has “never determined whether dismissal of the indictment, or some other sanction, is the proper remedy if a court determines that a defendant has been the victim of prosecution on the basis of race”). The Supreme Court has not closed the door on an equal protection violation forming an independent basis for a motion to suppress a search or seizure that results from such discriminatory action. I therefore join the lower courts' that have either assumed for the sake of argument that suppression can be a remedy, see United States v. Chavez, 281 F.3d 479, 486-87 (5th Cir.2002) (declining to reach the question whether suppression can be a remedy without evidence of discriminatory intent), or expressly held that suppression of evidence is a viable remedy for equal protection violations, see United States v. Avery, 137 F.3d 343, 355-58 (6th Cir.1997) (holding that equal protection principles provide an independent basis for a motion to suppress evidence, but finding that no equal protection violation occurred in that case). To remedy an equal protection violation by suppressing the evidentiary fruit of that violation fully comports with the aim of the exclusionary rule as “a judicially created remedy designed to safeguard ... rights generally.” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). As with all violations of fundamental rights, the same concern arises “that no [person] is to be convicted on unconstitutional evidence.” Mapp v. Ohio, 367 U.S. 643, 657, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). This is particularly true given the United States’ position, supported by the Supreme Court in Whren, that Pollard may not bring her equal protection claim under her Fourth Amendment motion to suppress. It would be a toothless and hollow remedy indeed if the defendant can only bring a separate civil lawsuit to vindicate her right to due process and equal protection, as the United States asserts, while she is helpless in her criminal prosecution to move to suppress evidence extracted from her during a seizure that violates those due process and equal protection rights. Even if she were not convicted and deported before her civil case could be heard, what would her remedy be if she is successful? Money damages? An apology from the United States? To follow what the Government of the United States suggests would mock the Constitution and its guarantees of due process and equal protection of the laws. I therefore expressly hold that suppression is a viable remedy for an equal protection violation, b. Standard of Review Before addressing Pollard’s claim that the immigration checkpoint at the Cyril E. King Airport defies even rational basis review, I comment on her claim that, because the Departure Control checkpoint has a disparate impact on the mostly black population of the Virgin Islands, the statute and regulation authorizing it must be examined with strict scrutiny. Although I can find no evidence in the record that the Departure Control Gate has a racially disparate impact on black Virgin Islanders, there is no denying that racial and cultural prejudice permeated the early years of, and still affects, the relationship of the United States with the Territory of the Virgin Islands. It took over fifty years and three tries for the United States to successfully negotiate a treaty with Denmark to buy the islands. Negotiations first began during the Civil War for the purchase of only St. Thomas and St. John as a strategically located naval station to protect the Atlantic coast. Completed in 1867, the negotiations almost broke down over Secretary of State William Seward’s strong opposition to allowing the inhabitants of the Danish Virgin Islands the opportunity to vote on the transfer. Seward ultimately relented and the ensuing vote was in favor of the transfer. Although the Danish Rigsdag (parliament) promptly ratified the treaty, the United States Senate did not. During the next negotiation for all three main islands of St. Thomas, St. Croix, and St. John in 1902, and ultimately for the successful treaty in 1917, the anti-democratic opposition of the United States to a local plebiscite prevailed. Only the unratified 1867 agreement would have given Virgin Islanders the choice of becoming United States citizens. The 1902 version, which was approved by the United States Senate but was not ratified by Denmark, did not mention citizenship and would have given only the option of allegiance to the United States, with Congress deciding the islanders’ political status and allocating their civil rights under American rule. The negotiating position of the United States in both the 1902 and 1917 treaties undoubtedly stemmed from the acquisition of the several insular possessions, including the Philippines and Puerto Rico, at the Treaty of Paris at the end of the Spanish-Ameriean War in 1898. The Supreme Court also had fabricated out of whole cloth a brand new constitutional doctrine to accommodate these territories populated by non-white, non-Anglo-Saxon, non-European peoples. This is the racist doctrine of the “unincorporated” territory, judicially created in the infamous series of decisions known as the Insular Cases, decided by the same the Supreme Court that gave us the equally racist but now thoroughly repudiated and overruled “separate but equal” doctrine. The unincorporation doctrine, simply put, holds that the Territorial Clause confers on Congress plenary power over territories that have not yet been “incorporated” into the United States. Under this rubric, the purely unilateral power of Congress is checked only by “fundamental restrictions,” which apparently are not necessarily even expressed in the Constitution. As stated by Mr. Justice Brown, “[t]here are certain principles of natural justice inherent in the Anglo-Saxon character which need no expression in constitutions or statutes to give them effect or to secure dependencies against legislation manifestly hostile to them real interests.” Downes v. Bidwell, 182 U.S. 244, 280, 21 S.Ct. 770, 45 L.Ed. 1088 (1901). Thus, according to the Insular Cases, those rights that we all grew up convinced were the fundamental bedrock of our system of justice, such as the right to trial by jury and the right to prosecution only upon indictment by grand jury, are mere “artificial or remedial rights” which those of us living in an unincorporated territory only deserve when Congress decides we are ready to handle them. See Dorr v. Unit ed States, 195 U.S. 138, 149, 24 S.Ct. 808, 49 L.Ed. 128 (1904). Such “non-fundamental,” “artificial,” and “remedial” rights for citizens inhabiting an unincorporated territory can only be conferred by Congress. By 1922, this racist reasoning had been fully adopted by the Court so that “[i]t is the locality that is determinative of the application of the Constitution ... and not the status of the people who live in it.” Balzac v. Porto Rico, 258 U.S. 298, 309, 42 S.Ct. 343, 66 L.Ed. 627 (1922) (“[A] citizen of the United States living in Porto Rico cannot there enjoy a right of trial by jury under the federal constitution” because such right is not a fundamental right.). Obviously, this simply can no longer be the case since a more enlightened Supreme Court has held that the right to trial by jury is such a fundamental right that it is incorporated in the Fourteenth Amendment’s Due Process Clause and thereby applicable to the States. See Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1958). Until Duncan, a jury trial was not considered a fundamental right constitutionally required in a state court. In case there is any doubt about the racism and cultural superiority that permeate these thoroughly ossified cases that embody the intrinsically racist imperialism of a previous era of United States colonial expansionism, I quote directly from the Insular Cases: If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible.... Downes v. Bidwell, 182 U.S. at 286-87, 21 S.Ct. 770 (Brown, J.) (emphasis added). We are also of the opinion that the power to acquire territories by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be in what Chief Justice Marshall termed the ‘American Empire’. There seems to be no middle ground between this position and the doctrine that if these inhabitants do not become, immediately upon annexation, citizens of the United States, their children thereafter born, ivhether savages or civilized, are such, and entitled to all the rights, privileges and immunity of citizens. If such be their status, the consequences will be extremely serious. Id. at 279, 21 S.Ct. 770 (Brown, J.) (underline emphasis added; italic emphasis in original). On the right to jury trial in the Philippines, the Court observed: If the right to trial by jury were a fundamental right which goes wherever the jurisdiction of the United States extends, or if Congress, in framing laws for outlying territory belonging to the United States, was obliged to establish that system by affirmative legislation, it would follow that, no matter what the needs or capacities of the people, trial by jury, and in no other way, must be forthwith established, although the result may be to work injustice and provoke disturbance rather than to aid the orderly administration of justice. If the United States, impelled by its duty or advantage, shall acquire territory peopled by savages, and of which it may dispose or not hold for ultimate admission to statehood, if this doctrine is sound, it must establish there the trial by jury. To state such a proposition demonstrates the impossibility of carrying it into practice. Dorr v. United States, 195 U.S. at 148, 24 S.Ct. 808 (emphasis added). This, then, exemplified the culturally superior and racially prejudiced attitude with which negotiations resumed for the purchase of the Danish West Indies in the early 1900s, motivated by the opening of the Panama Canal, the outbreak of World War I, and concern that Germany might gain a naval port in the Caribbean by treaty or conquest of Denmark. When Denmark was not receptive to the renewed approach in 1915 of President Wilson’s Secretary of State, Robert Lansing, the United States threatened to occupy the Islands militarily “if Denmark voluntarily, or under coercion, transferred title to the islands to another European power, which would seek to convert them into a naval base.” Acceding to the threat, the Danes reopened negotiations and again wanted to allow the islands’ inhabitants to vote on the transfer, requesting as well provisions conferring United States citizenship on the Islanders and granting free trade between the Islands and the continental United States. Lansing firmly rejected all these conditions. A treaty was signed without these stipulations, and the Senate promptly gave its advice and consent. See Convention Between the United States and Denmark, 39 Stat. 1706 (available at V.I.Code ÁNN. 27-38, Historical Documents, Organic Acts, & U.S. Constitution (1995) (preceding V.I.Code Ann. tit. 1)) [“Convention”]. After a national plebiscite in Denmark, both of its houses approved the transfer and the King ratified the Treaty on December 22, 1916, and President Wilson ratified the Treaty on January 16, 1917. The formal transfer took place on March 31,1917. The proposed 1867 Treaty would have given Virgin Islanders the choice of becoming citizens of the United States, whereas the 1917 Treaty gave them the option of accepting “citizenship in the United States.” See Convention art. 6, 39 Stat. 1706, 1712. This change of one little word' — two letters: “of’ to “in” — allowed Acting Secretary of State Frank Polk in 1920 to declare that Virgin Islanders “have Anerican nationality and are entitled to the protection of the government, but have no civil and political status of citizens of the United States.” Without even getting into the autocratic rule of the Virgin Islands from 1917 to 1931 by a racially segregated United States Navy, which is universally contemned as thoroughly racist, it would seem that the conclusions are inescapable ... that the United States induced Denmark to sell the Islands under a threat of force, that it took possession of the Islands without gaining the consent of their inhabitants, and that it deceived them into believing they were being accorded American citizenship when in fact the United States intended to deny them that status. The judiciary has followed suit. Even though not one of the Insular Cases touched on the nature of the relationship of the Virgin Islands with the United States, the Court of Appeals for the Third Circuit in 1921 concluded that the Virgin Islands were an unincorporated territory to which the Insular Cases applied. See Soto v. United States, 1 V.I. 536, 544-45, 273 F. 628, 633 (3d Cir.1921). The Soto court concluded that “[territory acquired by treaty is regarded as territory appurtenant to the United States, but not as a part of the United States” to which “artificial or remedial rights” such as “the right of presentment by grand jury and of trial by jury” do not automatically apply. Even though persons in the United States Virgin Islands were otherwise treated as aliens, the Court of Appeals held that they are nevertheless protected by the “fundamental right” of due process. In these [Insular ] cases the Supreme Court clearly expressed the opinion, not on the point of the decisions, to be sure, but as a logical corollary, that even if the people of such territories — not being possessed of the political rights of citizens' — are regarded as aliens, they are entitled in the spirit of the Constitution to be protected in life, liberty and property and not to be deprived thereof without due process of law. Id. at 545-46, 273 F. at 634 (emphasis added). As we have seen, the United States still regards all people of the Virgin Islands as aliens when they travel to the continental United States. Without any further analysis or consideration of changed circumstances, the Supreme Court and courts of appeals have continued, in knee-jerk fashion, to reiterate and apply this wholly judge-crafted and obviously race-based doctrine to justify the unequal treatment of citizens based solely upon where they live in the United States. See, e.g., Califano v. Torres, 435 U.S. 1, 2 n. 4, 98 S.Ct. 906, 55 L.Ed.2d 65 (1978) (citing Downes v. Bidwell and Balzac for the proposition that not all federal laws extend to Puerto Rico due to its “relationship to the United States that has no parallel in our history”) (internal quotations omitted); Granville-Smith v. Granville-Smith, 349 U.S. 1, 75 S.Ct. 553, 99 L.Ed. 773 (1955) (applying the doctrine of unincorporated territories to void the divorce law passed by the Virgin Islands Legislative Assembly under the Organic Act of 1936); United States v. Hyde, 37 F.3d 116, 120 (3d Cir.1994) (citing Downes v. Bidwvell as authority for Congress to create a one-way “customs border” between the Virgin Islands and the rest of the United States to conduct custom searches there without probable cause). Indeed, the Court of Appeals as recently as January of this year, relied on the Insular Cases to rule that, “[a]s a preliminary matter, we note that residents of the Virgin Islands have no constitutional right to indictment by a grand jury.” United States v. Ntreh, 279 F.3d 255, 256 (3d Cir.2002). I touch on one last point of double discrimination by Congress against the Virgin Islands and its residents. In 1966, Congress made the federal district court of Puerto Rico an Article III court whose judges serve during good behavior but left the District Court of the Virgin Islands as an Article IV court whose judges now serve ten-year terms. This is double discrimination because Congress not only treats the Virgin Islands differently from all the States but also treats it differently from our fellow unincorporated territory of Puerto Rico, a differing treatment for which there is absolutely no conceivable rational basis. The federal courts for both territories were set up by Congress under its authority to govern United States possessions granted by Article IV, Section 2, of the Constitution. U.S. Const, art. IV, § 3, cl. 2 (“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States....”). The Foraker Act of 1900 created the district court of Puerto Rico. See Foraker Act, ch. 191, § 34, 31 Stat. 77, 84 (1900). The 1936 Organic Act set up the District Court of the Virgin Islands. See Organic Act of 1936 ch. 699, § 25, 49 Stat. 1807, 1813 (1936). The terms of the judges of both courts started out at four years. See Foraker Act § 34, 31 Stat. at 84; Organic Act of 1936 § 26, 49 Stat. at 1813. Just as did the District Court of Puerto Rico in 1966, this Court has all the jurisdiction and powers of an Article III United States district court in any State. See, e.g., Walker v. Government of the Virgin Islands, 230 F.3d 82, 86 (2000) (“[Section] 22, as amended, affirmatively bestows on the District Court of the Virgin Islands the entire jurisdiction of a[n Arti-ele III] District Court of the United States.”); see also Rev.Org.Act § 22(a), 48 U.S.C. § 1612(a). The District Court of the Virgin Islands nevertheless remains an Article IV court whose judges are without the guarantees of judicial independence. Yet, the Congress brought the equivalent court in Puerto Rico under Article III in 1966, thirty-six years ago. In 1994, the Court of Appeals for the Third Circuit reaffirmed the Insular Cases when it held in United States v. Hyde that routine, warrantless “customs border” searches by customs agents at the Cyril E. Kong Airport in the Virgin Islands are reasonable under the Fourth Amendment. See 37 F.3d 116 (3d Cir.1994). I cite this case as further evidence of the continued application of the discriminatory unincor-poration doctrine to the Virgin Islands, and I would further point out that Hyde is factually inapposite in this case because the Congress has always included the Virgin Islands within the United States for immigration purposes, but not for customs purposes. Congress established the Virgin Islands as a separate customs territory in the 1917 Organic Act and has continued to exclude the Virgin Islands from the statutory definition of the United States for purposes of customs duties. Consistent with the approach of imposing duty on goods leaving the Virgin Islands for the mainland, an approach which remains in place today, the Tariff Act of 1930 specifies that the United States customs territory excludes the Virgin Islands. For purposes of that general tariff statute, “[t]he term ‘United States’ includes all Territories and possessions of the United States except the Virgin Islands.... ” 19 U.S.C. § 1401(h). Hyde, 37 F.3d at 121. According to Hyde, Congress can exercise its power under Article IV and the Insular Cases to establish an “internal border” only for customs purposes for commerce from an unincorporated territory of the United States to the rest of the United States. This distinction was carried into the regulation and statute authorizing customs preclearance border inspection and search of passengers and baggage on flights bound directly for the United States from the Virgin Islands. See 19 C.F.R. § 122.144(b); 19 U.S.C. § 1467; see also Hyde, 37 F.3d at 120-21. While the Court of Appeals agreed with me that this “internal customs border search” differed from the Supreme Court’s decisions on warrantless customs searches at international borders, the Hyde court somehow was nevertheless able to find that the rationale of those international border cases supported warrantless searches at St. Thomas’s one-way customs border. See Hyde, 37 F.3d at 122. 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. See id. (acknowledging that “the authority of the United States ... to exclude people ... at places other than its international borders is ... substantially restricted by the Constitution”). To its credit, the United States agrees and makes no argument that an international border or its “functional equivalent” exists between the Virgin Islands and other U.S. jurisdictions for immigration purposes. In sum, all three branches of the United States government — the Legislative Branch, the Executive Branch and the Judicial Branch — believe that the United States may treat persons residing in or visiting the Territory of the United States differently from persons in a State. Having fully set out the origins of the continued disparate treatment, I am inclined to view as not so far-fetched Pollard’s allegation that the implementation of section 212(d)(7) and 8 C.F.R. § 235.5, which are facially neutral in terms of race, nevertheless has a racially disparate impact as applied or is otherwise racially motivated. If I view the regulation as part and parcel of an undeniably racist doctrine, for which the territorial distinction is little more than a proxy for race, then strict scrutiny review of the statute could very well be warranted. The conclusion is simply unavoidable that the origin and structure of the unincorporation doctrine resonate with a racist ideology that has never had a place in our democratic system and its axiom that all persons are equal in the eyes of the law. Moreover, through its exclusive application to insular territories with populations that are largely nonwhite, the impact of the doctrine and any laws made or upheld pursuant to it is necessarily racially disparate. Rail as I may against the Insular Cases and their progeny, however, this federal trial court is bound by the view of the Supreme Court and the United States Court of Appeals for the Third Circuit that disparate treatment based on a territory’s unincorporated status need only have a basis in reason. See Harris v. Rosario, 446 U.S. at 651-52, 100 S.Ct. 1929; see also Government of the Virgin Islands v. Dowling, 866 F.2d 610, 615 (3d Cir.1989). Thus, I am forced to reject the defendant’s request for strict scrutiny review of the statute and regulation. c. Legal Analysis Even applying the lesser standard of rational basis review, the Departure Control checkpoint cannot survive scrutiny. I can find no conceivable basis in reason for the continued application of section 212(d)(7) and 8 C.F.R. § 235.5 to the Virgin Islands. Whether by choice or because it has nothing to present, the United States has provided no reasonable explanation for singling out the Virgin Islands for its special permanent, internal, non-border immigration Departure Control checkpoint, where the INS subjects all persons to suspicionless seizure until they prove their right to be in the United States. The United States’ argument that there is no disparate treatment here because every such air traveler leaving the Virgin Islands is subjected to the same mistreatment at the Departure Control Gate focuses too narrowly. The relevant comparison is 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 the District of Columbia. Nothing can more conclusively confirm the lack of any rational basis than the historical fact that political subdivisions of the United States, which are subject to the preinspection requirement of section 212(d)(7) and 8 C.F.R. § 235.5 while a territory, automatically come out from under the burden of the statute and regulation upon being accepted into the Union as a State. Thus, Congress immediately amended the law to remove the new States of Hawaii and Alaska from such immigration inspections of passengers flying from Honolulu to Los Angeles or from Juneau to Seattle. Nothing in the legislative history of Congress’s amendments to section 212(d)(7) even hints at any change in conditions at the international borders surrounding Alaska and Hawaii or of any diminished need for vigilance against illegal aliens using either Hawaii and Alaska as a “stepping stone” into the continental United States. Hawaii was and is still an island system in the Pacific Ocean some 2100 miles from California, and Alaska was., and is still separated from the continental U