(concurring in part; dissenting in part).
I concur in the majority’s opinion to the extent that it declares invalid that part of the INS’s inspection procedure which authorizes the taking of passengers' tickets during interrogation. Ante at 907-08. I also agree to the remand of the matters considered in Part VI of that opinion, ante at 908-910, although for different reasons than those expressed by my brethren. However, to the extent that the INS’s pre-boarding procedure in the San Juan, Puerto Rico airport is otherwise validated as applied to citizens of the United States or persons legally within its borders, I dissent.
One byproduct of the majority’s approval of the INS’s “protocol” is to bestow upon me the dubious distinction, alone among all judges of the United States, of having to prove my citizenship and of being subjected to a search and seizure, at least once a month, before I can travel to this Court’s place of sitting to exercise the duties of my commission. Although I do not rely on this personal example as rationale for my views, I recount it to dramatize the absurd*911ity of the predicament forced upon the over two million citizens of the United States,17 residents and non-residents of Puerto Rico, who annually pass thru San Juan’s airport on their way to the mainland. All are subjected to an unconstitutional procedure which is neither justified by the exigencies of the circumstances or the practical results achieved.
The intrusion into passengers’ rights caused by the INS “protocol” is particularly obnoxious because there are available to the authorities reasonable, more effective alternatives, and because the INS’s intrusion is not in itself isolated but rather is imposed as the third of several governmental interferences suffered upon citizens departing San Juan’s airport for the mainland. Such persons must first subject themselves to a stop and search by the United States Department of Agriculture.18 Next, the Federal Aviation Administration requires another checkpoint for security purposes.19 And finally, the INS stops and seizes the passenger pursuant to its “protocol.” 20 Thus the San Juan airport is truly a bureaucratic paradise in which each succeeding agency carves for itself its own empire within which to emulate an Orwellian “Big Brother.”
I
In an attempt to fit the facts of this case within the embrace of United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the majority “bifurcate[s] for analytic purposes” the INS “protocol.” Ante at 905. Although this alluring technique shows awareness of the warning in Martinez-Fuerte that its holding is limited “to the type of stops described in [that] opinion,” id. at 567, 96 S.Ct. at 3087, the present case cannot be so easily pigeon-holed.
The majority’s analysis is wrong for various reasons. First of all, by fragmenting what is in fact a unified procedure, it gives the government what amounts to a prohibited advisory opinion. United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 553, 5 L.Ed.2d 476 (1960). See also United States v. Sharpe, 470 U.S. 675, 726 n. 17, 105 S.Ct. 1568, 1596 n. 17, 84 L.Ed.2d 605 (1984) (Stevens, J., dissenting). The question presented to this Court is not, would the INS “protocol” be valid absent parts “A” or “B” of its procedure, or if “X” or “Y” were added. The issue presented below and before us is whether the existing “protocol,” all of it as presently constituted, passes constitutional muster. Contrary to the analysis in Part V of the Court’s opinion, ante at 905-08, the record does not show a practice in which the initial inspection and questioning of passengers by INS can be separated from the “instructions [given to the inspectors] to take the tickets of passengers while questioning them,” López v. Aran, 649 F.Supp. 853, 857 (D.P.R.1986).
The questioning and the ticket seizure are coetaneous. The facts of this case establish an amalgamated procedure under which, pursuant to 8 C.F.R. § 235(a) (1986), prior to allowing a citizen to depart Puerto Rico for the mainland, the passenger is subjected to interrogation about citizenship while his or her ticket is in possession of *912the INS inspector, and thereafter, if the inspector determines that the passenger is a citizen or is legally in the United States, the passenger must remain isolated from the general public until departure of the aircraft.
This procedure is patently distinguishable from Martinez-Fuerte in two important ways, only one of which is recognized as such by the majority. The first difference lays in the seizure during interrogation of the passenger’s ticket, even absent what the majority refers to as “some hint” that the passenger is illegally within the United States. Ante at 908. Of course more than a mere “hint” is required for such a seizure, Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), but be that as it may, the fact remains that this seizure is not a separate incident in the passenger’s stop and interrogation but rather an integral part of the same. Its obviously intended purpose is to prevent freedom of action by the subject. Royer, 461 U.S. at 501-02, 103 S.Ct. at 1326-27. The excision of this intrinsic act, for “analytic purposes” or otherwise, simply runs contrary not only to reason, but more importantly, to the record which unequivocably reveals that “[t]he agents ... receive instructions to take the tickets of passengers while questioning them,” López, 649 F.Supp. at 857 (emphasis supplied).
The second important distinguishing feature found in this case, not present in Martinez-Fuerte, is the isolation or quarantining of the passengers from the general population, once they have “passed” the INS’s “protocol.” The purpose of this imposed segregation is, of course, obvious; it is an effective means of keeping uncontaminated those passengers who have passed INS’s “protocol.” But I assume that no one would in this day and age suggest, merely because a law enforcement tool is effective, that it is automatically constitutional. I do not see how such an additional restriction, even if considered separately, and much less if weighted in the context of this entire procedure, can be valid.
The approval of such a restriction can only stem from an implicit acceptance that a border, “secondary” or otherwise, exists between Puerto Rico and the mainland, allowing INS to do between San Juan and the mainland what it normally could only do to passengers crossing an international border of the United States; that is, isolate them until they have entered or detain them upon reasonable suspicion of a crime being committed. United States v. Montoya de Hernández, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985). Yet this clearly is not permissible here, as no border exists between Puerto Rico and the mainland for immigration purposes, and legal residents of Puerto Rico can freely travel to the mainland without any restriction. Balzac v. People, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922); Savoretti v. Voiler, 214 F.2d 425, 427-28 (5th Cir.1954) (no “entry” for immigration purpose when resident alien returns to mainland from Puerto Rico); 8 U.S.C. § 1101(36), (38) (1982) (Puerto Rico is within the United States for immigration purposes). See also Torres v. Puerto Rico, 442 U.S. 465, 472-73, 99 S.Ct. 2425, 2430-31, 61 L.Ed.2d 1 (1979) (no “intermediate border” exists between Puerto Rico and United States); cf. Gonzales v. Williams, 192 U.S. 1, 24 S.Ct. 177, 48 L.Ed. 317 (1904).
The majority agrees that no “secondary” border exists, ante at 901-02, yet permits a procedure, quarantine, which is only valid, even in a criminal or public health context, when crossing international borders if a “reasonable suspicion” standard is met. United States v. Montoya de Hernández, supra. See 19 U.S.C. § 1582. In fact, the INS’s “protocol” is more intrusive of the passengers’ freedom than when crossing an international border. Not only is there a stop and seizure during the interrogation regarding citizenship, but even after the passenger “passes” this gauntlet, his freedom is further curtailed by his having to remain “separate and apart from the general public.” 8 C.F.R. § 235(a) (1986).
An alternative ground to explain this situation may be the possible misconception that INS can constitutionally do in Puerto Rico what it cannot do in the States of the *913Union. The basis for this assertion is the fact that the predecessor to 8 U.S.C. § 1182(d)(7), the statutory authority from which 8 C.F.R. § 235.5(a) derives, included not only Puerto Rico and the other territories mentioned in 8 U.S.C. § 1182(d)(7) and 8 C.F.R. § 235.5(a), but also Hawaii and Alaska. Upon their admission as states, the procedures questioned in this case were amended and made inapplicable to passengers traveling from Hawaii and Alaska to the mainland. See Sec. 23, Act of July 7, 1958, 72 Stat. 351 and Secs. 19-21, Act of March 18, 1959, 73 Stat. 12. See also 8 C.F.R. § 235.5 (1958 & 1959). However, Puerto Rico’s constitutional status is irrelevant to the validity of the challenged procedure because the requirements of the Fourth Amendment are as fully applicable in Puerto Rico as in the States. Torres v. Puerto Rico, supra. Yet notwithstanding recognition by the majority of this general concept, ante at 902, its decision validates a procedure which allows the restriction of a passenger’s movement, by isolation, not only when probable cause is lacking but even after the INS has full knowledge that no crime has been committed at all.
This brings to mind Footnote 4 of United States v. Carolene Products Co., 304 U.S. 144, 152-53 n. 4, 58 S.Ct. 778, 783-84 n. 4, 82 L.Ed. 1234 (1938), in which the Supreme Court established a standard of “strict scrutiny” for judicial review of regulations which discriminatorily treat “discrete and insular minorities” lacking significant access to the representative process. There is no question that appellant is a member of a class most seriously affected by this “valueless and discriminatory” regulation. It would be difficult to imagine a more “discrete and insular” minority, both geographically and constitutionally, than the residents of Puerto Rico. And these persons, despite their citizenship in the United States, 39 Stat. 1132 (1917), have virtually no access to “the operation of those political processes ordinarily to be relied upon to protect minorities.” Carolene Products Co., supra.
[T]he fact of powerlessness is crucial, for in combination with prejudice it is the minority group’s inability to assert its political interests that “curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities.” The very powerlessness of a discrete minority, then, is itself the factor that overcomes the usual presumption that “ ‘even improvident decisions [affecting minorities] will eventually be rectified by the democratic process.’ ”
Toll v. Moreno, 458 U.S. 1, 23, 102 S.Ct. 2977, 2989, 73 L.Ed.2d 563 (1982) (Blackmun, J., concurring) (citations and italics omitted). If proof of the above be needed, note the eloquent fact that Hawaii and Alaska have, since gaining access to the political processes, been excluded from the challenged “protocol.”
Yet notwithstanding the confluence of all of the Carolene Products factors, the majority applies, rather than strict scrutiny, a highly deferential standard of review to these procedures. I believe we owe a higher duty to the affected citizens. See Ball, Judicial Protection of Powerless Minorities, 59 Iowa L.Rev. 1059 (1974). Cf. Sugarman v. Dougall, 413 U.S. 634, 642, 93 S.Ct. 2842, 2847, 37 L.Ed.2d 853 (1973); In re Griffith, 413 U.S. 717, 721, 93 S.Ct. 2851, 2854, 37 L.Ed.2d 910 (1973). See also Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 556, 105 S.Ct. 1005, 1020, 83 L.Ed.2d 1016 (1984).
The statute and regulation in question require a double inspection and double showing of compliance with immigration requirements for persons entering a territory and then proceeding to mainland United States. Gordon and O. Rosenfeld, Immigration Law and Procedure, Vol. 1, 2.4c, 2-38. In its report to the President, the Commission on Immigration and Naturalization commented against the discriminatory nature of this procedure.21 The then Director of the Office of Territories, United States Department of the Interior, *914James P. Davis, testified as follows regarding the “protocol” in question:
The requirement appears to us to be burdensome, valueless and discriminatory.... [Moreover], in order adequately to enforce the provision, it appears that all persons traveling from the territories to the continental United States, whether they be citizens or aliens, will necessarily be screened in some manner. Until regulations for the enforcement of Section 212(d)(7) are issued, we cannot know what form this screening process will take. But enforcement authorities cannot determine whether an alien has met the requirements of Section 212(d)(7) unless they are first able to determine whether he is or is not an alien. It therefore appears reasonable to assume that United States citizens, as well as aliens will be required either to carry documentation or to .submit to questioning before they are allowed to enter the United States from the territories. Introducing such complications to travel between the territories and the continental United States can produce no salutary consequences.... We urge, therefore, that Section 212(d)(7) be entirely struck from the act, and that the territories to which the act applies be treated, for all purposes, as parts of the United States.22
The above discussion is relevant not only to establishing a distinction between Martinez-Fuerte and the present situation, but also as background to the application of the balancing test to which the INS’s “protocol” must be submitted pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967), and its progeny. See Martinez-Fuerte, 428 U.S. at 566, 96 S.Ct. at 3086; Brown, 443 U.S. at 51, 99 S.Ct. at 2640. Again, although the majority recognizes the relevance of this balancing test to the situation at hand, it misapplies the same. Ante at 905 et seq.
As the first component of this test one looks to the gravity of the public concerns served by the seizure.23 Brown, supra, 443 U.S. at 51, 99 S.Ct. at 2640. As noted recurrently by the Supreme Court, it cannot be disputed that the presence of large numbers of illegal aliens in this country is a national problem raising serious issues of public concern. See Martínez-Fuerte, supra, 428 U.S. at 551-53, 96 S.Ct. at 3080-81. It is, however, a problem which primarily concerns illegal entry along the 2,000 mile-long boundary with Mexico. Id. at 551, 96 S.Ct. at 3080. In comparison with that situation, the entry of illegal aliens into the United States through Puer-to Rico, almost exclusively from the Dominican Republic, is insignificant. See López, supra, 649 F.Supp. at 857-58, 867. Furthermore, when I consider the degree to which the seizures here in question advance the public interest, which is the second component of the Terry test, it is clear that the airport checkpoint in this case plays a de minimis role in the enforcement of the immigration laws of the United States. Cf. Martínez-Fuerte, supra, 428 U.S. at 554, 96 S.Ct. at 3081 (17,000 illegal aliens apprehended in the California checkpoint in one year) with López, supra, 649 F.Supp. at 858 (674 illegal aliens, out of 2,000,000 northbound passengers, apprehended in the San Juan airport checkpoint in 1984). These figures seem to establish that the principal effect of the San Juan airport checkpoint is the containment of illegal aliens in Puerto Rico, not their interception at the airport.24 Not only is there an absence of a record of empirical data demonstrative of the effectiveness of this airport checkpoint as a law enforcement technique, cf. Delaware v. Prouse, 440 U.S. 648, 659, 99 S.Ct. 1391, 1399, 59 L.Ed.2d 660 (1979), but the record is bare of any evidence that other, less intrusive methods, have been attempted but are ineffective. Cf. Martinez-Fuerte, supra, 428 *915U.S. at 552-53, 96 S.Ct. at 3080-81. There is, for example, no evidence that the Border Patrol is even active in Puerto Rico, or that the Mona Passage between the Dominican Republic and Puerto Rico, which is the crossing-point for the great majority of the illegal aliens into Puerto Rico, López, supra, 649 F.Supp. at 858, is patrolled with any regularity for the purpose of intercepting illegal entrants. What does appear is that the INS has taken the easiest way out, which regardless of effectiveness, causes a serious intrusion upon the millions of United States citizens transiting the San Juan airport on their way to the mainland.
Last should be considered the third Terry component, the severity of the interference with individual liberty which is caused by the seizure in question. As previously indicated, I believe that the stop and interrogation of the passengers at the airport checkpoint, when coupled with a seizure of their ticket and followed by their isolation, constitutes a major interference with the liberty of individuals subjected to this procedure. It cannot validly be equated to the minimal interference of the checkpoint stops in Martinez-Fuerte. In my view the INS “protocol” when taken as a whole is clearly unconstitutional.
The internal control of travel within the United States has never been constitutionally sanctioned and is contrary to our traditions. The Passenger Cases, 7 How. 283, 492, 12 L.Ed. 702 (1849) (“We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own states.”). See also Shapiro v. Thompson, 394 U.S. 618, 630, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600 (1969). Although Martinez-Fuerte can arguably be considered a step in the direction of allowing such internal travel controls, it may perhaps be justified on the scale of the Terry balancing test. The INS’s “protocol” in San Juan goes two steps further than Martinez-Fuerte, however. We should move slowly and with caution before approving the use of law enforcement methods which bring about wholesale intrusion into the privacy of large numbers of the citizenry, particularly where the need and effectiveness of those methods is questionable. The unwarranted validation of the application of these methods to the United States citizens traveling through the San Juan airport could well establish a precedent for its extension to the airport in Kansas, or Mississippi, or for that matter— Nantucket. See Catz, Fourth Amendment Limitations on Nonborder Searches for Illegal Aliens: The Immigration and Naturalization Service Meets the Constitution, 39 Ohio St.L.J. 60 (1978); Note, United States v. Martínez Fuerte: The Fourth Amendment — Close to the Edge?, 13 Cal. W.L.Rev. 333 (1977).
II
There only remains my explanation as to why I concur with the majority’s conclusion as to Part VI, but not as to its reasoning.
My objection to this reasoning is with reference to the majority’s conclusion regarding the INS’s actions in “imped[ing] López from boarding his plane.” Ante at 910. There can be no question that the INS harbored no reasonable suspicion that López was an illegal alien. Had this suspicion existed we can take for granted that he would have been detained further. Instead, he was allowed to retrieve his baggage and leave. In not allowing López to board after they obviously knew that he was not an illegal alien, the INS inspectors were manifestly harassing López for objecting to the unconstitutional procedures which were being applied to him. Thus no question of qualified immunity is presented by these clearly illegal actions and the remand should be solely for a determination of the damages suffered by López. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1981).25
*916III
In conclusion I can only hope, as was once expressed by Justice Field, “that this, like other errors, will, in the end ‘die among the worshipers.’ ” Baltimore & Ohio R.R. v. Baugh, 149 U.S. 368, 403, 13 S.Ct. 914, 928, 37 L.Ed. 772 (1893) (dissenting).
. The Tourism Industry of Puerto Rico, Selected Statistics (1986), Tourism Company of Puerto Rico, Office of Statistic & Economic Studies, Table I, p. 3.
. See 7 C.F.R. § 318.58-11, -14 (1987).
. See 14 C.F.R. § 107.3 (1987).
. See 8 C.F.R. § 235.5(a) (1986):
In the United States territories and possessions. In the case of any aircraft proceeding from Guam, Puerto Rico or the Virgin Islands of the United States destined directly and without touching on any foreign port or place ... to one of the States of the United States or the District of Columbia, the examination required by the act of the passengers and crew 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 ... 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 is found to be admissible as provided in this section.
. Whom We Shall Welcome, Report of the President's Commission on Immigration and Naturalization (1953) in Trelles and Bailey, Immigration and Nationality Acts — Legislative History and Related Documents, Vol. 6 at 183 (1979).
. Id. at 1431-32.
. There should be no question but that the INS's "protocol" is a seizure within the meaning of the Fourth Amendment. Martínez-Fuerte, 428 U.S. at 566, 96 S.Ct. at 3087.
.As can be seen from the statistics quoted by the district court, the apprehensions at the airport dropped to one third in 1984 from what they were in 1982. López, supra, 649 F.Supp. at 858.
. The majority correctly concludes that merely refusing to answer an agent's query is not grounds for any further detention, absent some minimal level of objective justification to validate such a seizure. Ante at 904-905, 909; discussing I.N.S. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 *916(1979). Nonetheless, contrary to the articulated standard, the court found that refusal to answer and passing a card with a “goading message" may have presented that minimal level of objective justification. Ante at 909. Given the circumstances of this search and seizure, it is difficult to conclude that showing the message in the card would have caused a higher level of suspicion in the minds of the agents than remaining totally silent; i.e., can it earnestly be argued that if López had remained silent, the INS agents would have allowed him to proceed? Quite obviously not. The card is thus immaterial in terms of meeting the standard enunciated in Brown, and accepted by the majority.