Author Archives: NWIRP

International Rights Advocates Sue CBP to Block Import of Cocoa Harvested by Child Labor

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International Rights Advocates v. Alejandro Mayorkas and Troy A. Miller, No. 1:23-cv-00165 (Ct. Intl. Trade, filed Aug. 10, 2023)

International Rights Advocates, a child welfare advocate organization, filed a federal lawsuit under the Administrative Procedures Act (APA) in August 2023 asking a judge to force the Biden administration to block imports of cocoa harvested by children in West Africa that can end up in America’s most popular chocolate desserts and candies.

The lawsuit seeks declaratory and injunctive relief and requests that the federal government enforce a 1930s-era federal law that requires the government to ban products created by child labor from entering the United States. In February 2020, International Rights Advocates, along with University of California Irvine Law School Human Rights Clinic and Corporate Accountability Lab, filed a petition to Customs and Border Protection (CBP) seeking to ban the import of cocoa from Cote d’Ivoire by seven major chocolate companies, harvested in whole or in part by forced child labor. CBP failed to respond to the petition or to a follow-up inquiry signed by interested parties and organizations requesting enforcement of the law. Because the agency failed to take any action in response, Plaintiff International Rights Advocates now seeks a court order requiring government entities to comply with the law and fulfill their statutory obligations.

The petition and the complaint rely on extensive evidence documenting children cultivating cocoa destined for well-known U.S. candy makers, including Hershey, Mars, Nestle, and Cargill. The major chocolate companies pledged to end their reliance on child labor to harvest their cocoa by 2005, though now have extended the deadline to eliminate the worst forms of child labor in their supply chains by 2025.

In response to media inquiries, CBP has said it is unable to disclose information or plans regarding forced labor enforcement due to the protections afforded to sensitive information related to law enforcement activities.

Documents

Counsel: International Rights Advocates
Contact: Terrence P. Collingsworth ǀ International Rights Advocates ǀ tc@iradvocates.org

Press:

Estate of Joel Reyes Munoz v. USA

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Estate of Joel Reyes Munoz, et al., v. United States of America, No. 3:23-cv-01422 (S.D. Cal., filed Aug. 3, 2023)

On August 3, 2023, the family of Joel Reyes Munoz filed a complaint under the Federal Tort Claims Act and California state law in the Southern District of California against the federal government for the wrongful death of Mr. Reyes Munoz, who died after falling from a border wall near the Otay Mesa Port of Entry. The complaint, filed on behalf of Mr. Reyes Munoz’s estate, his widow, and children, alleges that on January 12, 2022, law enforcement refused to seek medical attention for Mr. Reyes Munoz after he fell from the wall. Although it was obvious that he had sustained serious injuries and was in need of immediate emergency medical care, Border Patrol and U.S. Customs and Border Protection (CBP) officials refused to bring him to an emergency hospital facility. Instead, after the fall, Mr. Reyes Munoz was arrested and held in custody at the Otay Mesa Port of Entry. He later “became ill and eventually unresponsive,” according to CBP. Lifesaving efforts commenced, but he was pronounced dead about an hour and 45 minutes after his fall.

Only when Mr. Reyes Munoz became unconscious and stopped breathing did any government official summon emergency medical services. By that time, Mr. Reyes Munoz, because of the delay, had already died. Border fall deaths and injuries in the San Diego area had been on the rise around the time of Reyes Munoz’s death, according to the complaint. The suit alleges the increase in fall incidents should have put Border Patrol and CBP officials on notice of the potentially fatal consequences.

Figures from the San Diego County Medical Examiner indicate there were zero such deaths between 2016 and 2018, but 16 people died from border barrier falls between 2019 and 2021, according to the complaint. Fall injuries during those same time periods also increased from 67 between 2016 and 2018 to 375 between 2019 and 2021.

The government filed a motion to dismiss Plaintiffs claim under California’s Bane Act for lack of subject matter jurisdiction and failure to state a claim on October 20, 2023. The court granted the motion to dismiss that claim on February 13, 2024. On February 27, 2024, the government filed an answer to Plaintiffs’ complaint.

Documents

Counsel: Iredale & Yoo, APC

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ACLU New Hampshire v. CBP

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American Civil Liberties Union Foundation of New Hampshire v. United States Customs and Border Protection, No. 1:23-cv-00282 (D.N.H., filed May 22, 2023)

The ACLU of New Hampshire filed a lawsuit in federal court under the Freedom of Information Act (FOIA) seeking data from U.S. Customs and Border Protection (CBP) on the number of apprehensions and encounters at the New Hampshire-Canada border. In response to previous inquiries seeking this information, CBP has said it cannot release state-specific data. Rather, CBP has only produced aggregated apprehension numbers from all of the Swanton Sector, which covers a 295-mile section of the border spanning New Hampshire, Vermont, and parts of New York. New Hampshire’s border constitutes 58 of those 295 miles.

In early 2023, New Hampshire Governor Chris Sununu proposed a $1.4 million dollar state budget expansion for policing and surveillance efforts along the Canadian border, which he and state officials say is in response to an increase in unauthorized New Hampshire border crossings, though the state has not produced data on the increased crossings. In March, the ACLU of New Hampshire also filed right-to-know requests with Governor Sununu’s Office and the N.H. Department of Safety, but both offices said they could not provide materials in response to the requests.

Though the New Hampshire House of Representatives stripped this proposed increase in policing funding out of the state budget, in May 2023, the Senate Finance Committee voted to restore this funding to the budget in a proposal to be voted on by the full state senate.

As the lawsuit details, because there is a budget proposal that relies on the requested information, there is a compelling public interest in releasing this data. Yet in the face of this obvious public interest, CBP categorically rejected the ACLU-NH’s initial FOIA request because “CBP does not release enforcement statistics and/or enforcement data at less than a Sector or Field Officer level.” CBP made this statement despite the fact that a local news outlet, WMUR, reported the fact that no crossing was “recorded in New Hampshire” between October 2022 and January 2023, while “there were 94 people…taken into custody across Vermont and New York”—implying that CBP had previously provided disaggregated data to WMUR.  

The ACLU-NH filed an amended complaint on June 7, 2023. Briefing on cross motions for summary judgment was completed and the court set oral argument for January 5, 2024.

On January 26, 2024, the parties settled the case and stipulated to dismissal, with CBP releasing data showing that there were only 21 encounters and apprehensions in New Hampshire during the 15-month period between October 2022 and December 2023.

Documents

Contact

Ari Schechter ǀ ACLU of New Hampshire ǀ ariana@aclu-nh.org

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Al Otro Lado v. Mayorkas

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Al Otro Lado, et al., v. Alejandro Mayorkas, et al., No. 3:23-cv-01367 (S.D. Cal., filed Jul. 27, 2023) and No. 23-3396 (9th Cir., filed Nov. 9, 2023)

This lawsuit challenges the federal government’s border-wide policy and practice of turning back asylum seekers without an appointment scheduled through the CBP One mobile application at ports of entry (POEs) along the southern border, denying them access to the U.S. asylum process. The suit seeks to end U.S. Customs and Border Protection’s (CBP’s) newest iteration of unlawful metering, and to ensure that the government is complying with U.S. laws meant to protect asylum seekers’ rights and safety.

Restricting asylum access to only those individuals who can use a smartphone app imposes unfair and at times insurmountable barriers for asylum seekers. The CBP One Turnback Policy, under which CBP officers turn back most asylum seekers who cannot secure an appointment made via the CBP One app, creates language, literacy, and disability access issues. There is evidence that CBP in some cities is coordinating with Mexican officials to block asylum seekers without CBP One appointments from physically approaching ports of entry. The policy therefore causes unreasonable delays and endangers asylum seekers’ lives. Even those able to use the app are denied appointments due to limited slots, forcing indefinite waits in precarious conditions in Mexico.

The plaintiffs in the suit are immigrant rights organizations Al Otro Lado and Haitian Bridge Alliance, and 10 individuals turned away at the southern border by CBP and denied their fundamental right to seek asylum in the United States.

The CBP One Turnback Policy has harmed plaintiffs, leaving them vulnerable to assault, rape, kidnapping, and even murder in dangerous Mexican border towns. It also disrupts organizations’ missions, diverting resources to counteract the policy’s harmful effects.

On August 9, 2023, plaintiffs filed a motion for preliminary injunction to block the implementation of the policy until the case is decided, along with a motion to provisionally certify a class. If granted, the government would be required to follow its own binding guidance, and process all people seeking asylum at ports of entry, regardless of whether they are lucky enough to obtain a CBP One appointment.

On October 23, 2023, the court denied the motion for preliminary injunction in an oral opinion, holding that the jurisdictional bar at 8 U.S.C. § 1252(f)(1) barred injunctive relief. The court also denied the motion for provisional class certification as moot based on the denial of the preliminary injunction. On November 11, 2023, plaintiffs filed a notice of interlocutory appeal on both denied motions to the Ninth Circuit.

Documents

Counsel: American Immigration Council, the Center for Gender & Refugee Studies, Center for Constitutional Rights, Mayer Brown LLP, Vinson & Elkins LLP

Contact:  Gianna Borroto | American Immigration Council | gborroto@immcouncil.org

Press:

J.R.G. and M.A.R. v. United States of America

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J.R.G. and M.A.R. v. United States of America, No. 4:22-cv-5183 (N.D. Cal., filed Sept. 12, 2022)

In May 2018, J.R.G. and her then-eight-year-old daughter, M.A.R., entered the United States seeking asylum and fleeing persecution and torture in El Salvador. Shortly after they crossed the border, they were detained by U.S. Customs and Border Protection (CBP) officers. Within a day of their detention, CBP officers forcibly separated the mother and daughter from each other pursuant to the Trump administration’s family separation policy. Mother and daughter would not be reunited again until the end of March 2019 – after over ten months of forced separation.

As a direct result of the trauma inflicted upon them due to their forced separation, J.R.G. and M.A.R. suffered catastrophic emotional and mental harm that continues to this day. J.R.G. did not have any contact with her daughter for one month, after which she was finally able to speak to her daughter on the phone. During that month, she was provided almost no information about her daughter’s whereabouts, wellbeing, health, or safety, despite her relentless inquiries to detention officers. J.R.G. was unable to eat or sleep because of the stress during her months in detention, and she experienced depression and anxiety from worrying about her child. J.R.G. lost 20 pounds while incarcerated and began experiencing severe medical issues. Even after they were finally reunited, J.R.G. and M.A.R. experienced ongoing physical symptoms from the trauma they suffered.

On May 19, 2020, plaintiffs submitted a claim for damages under the Federal Tort Claims Act. Defendant agencies failed to make a final disposition on plaintiffs’ claims within six months, and J.R.G. and M.A.R. filed suit in the Northern District of California on September 12, 2022. The government filed a motion to dismiss and motion to transfer the court venue to the Western District of Texas (where the separation occurred) on December 5, 2022. A motions hearing was held on April 6, 2023, and on April 11, 2023, the court denied defendant’s motion to transfer venue and motion to dismiss. The discovery period is ongoing.

Documents:

Counsel: Northwest Immigrant Rights Project

Contact: Matt Adams | Northwest Immigrant Rights Project | 206.957.8611 | matt@nwirp.org

NYLAG v. DHS

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New York Legal Assistance Group, Inc., v. United States Department of Homeland Security, et al., No. 1:22-cv-05928 (S.D.N.Y., filed Jul. 12, 2022)

New York Legal Assistance Group, Inc. (NYLAG), a not-for-profit civil legal services organization in New York, New York, filed a complaint in the Southern District of New York after the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) failed to produce responsive records to a Freedom of Information Act (FOIA) request for records related to the deployment of federal law enforcement personnel in New York City during protests related to the killing of George Floyd in 2020.

In June 2020, at a New York City protest against police brutality, a protestor was violently arrested on the Upper West Side by an officer identified as an agent for ICE or Homeland Security Investigations (HSI). After the identification of the officer, organizations like NYLAG raised concerns questioning the authority of the federal government to deploy federal agents to monitor local protests and surveil immigrant protestors.

NYLAG submitted an administrative FOIA request on September 29, 2020, requesting records from May 25, 2020, through the date of filing the request. Following their administrative request, NYLAG received some communications from DHS, ICE, Customs and Border Protection (CBP), the Secret Service (USSS), and the Office of Intelligence and Analysis (I&A), indicating that responsive records existed and were identified. However, after nearly two years, the agencies failed to produce to NYLAG any of the documents they identified as responsive to the FOIA request, prompting NYLAG to file suit in July 2022. On September 16, 2022, Defendants filed an answer to the complaint. 

Defendants’ production of documents responsive to the FOIA request is ongoing, and they continue to meet and confer with NYLAG to narrow NYLAG’s scope of objections to the production.

Counsel: New York Legal Assistance Group | Cooley LLP

Contact: Danielle Tarantolo | NYLAG | (212) 613-5000
Marc Suskin | Cooley LLP | (212) 479-6000

Related Links: https://nylag.org/nylagvdhs/

Davis Wright Tremaine v. CBP

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Davis Wright Tremaine LLP v. United States Customs and Border Protection, No. 2:19-cv-00334 (W.D. Wash., filed Mar. 6, 2019)

A Seattle-area law firm filed a Freedom of Information Act (FOIA) suit against CBP after the agency refused to respond to a FOIA request for information concerning CBP’s widely publicized policy and practice of denying entry to noncitizens due to their involvement with the legal cannabis industry in Canada. Individuals subjected to the policy in the past have been detained and at times even told they are banned for life from entering the United States. In one instance cited in the complaint, the executive commissioner for CBP’s Office of Field Operations, Todd Owen, was quoted as claiming, “If you work for the [cannabis] industry, that is grounds for inadmissibility.” Owens also claimed that CBP had the authority to permanently ban from entering the U.S. even those who only invested in legal cannabis business.

The firm which filed the suit, Davis Wright Tremaine LLP, sought access to records to assess whether CBP’s actions are within the scope of the authority granted to it by Congress, whether CBP was acting pursuant to any policies or procedures, and whether it promulgated any such policies or procedures consistent with the procedures Congress has required for agency rulemaking.

On June 16, 2020, plaintiff’s motion for summary judgment was granted in part and denied in part, and CBP’s motion for summary judgment was denied. The court found CBP’s production in response to the FOIA request inadequate, and the parties submitted periodic status reports on the agency’s ongoing production. Chief among the documents produced was a 2018 CBP Information Guide which acknowledged that foreign nationals who work in legal foreign cannabis industries are not inadmissible, assuming their visit to the United States is unrelated to domestic or cross-border cannabis operations – a policy which contradicts statements and actions by CBP in the past regarding Canadian citizens associated with the industry. The parties stipulated to dismiss the case in 2022.

Counsel: Davis Wright Tremaine LLP
Contact: Bruce Johnson | brucejohnson@dwt.com
Caesar Kalinowski | caesarkalinowski@dwt.com

FTCA Suit on Behalf of U.S.-Citizen Child Held by CBP for 30 Hours

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J.A.M., et al., v. United States of America, et al., No. 3:22-cv-00380 (S.D. Cal., filed Mar. 21, 2022)

The family of a 9-year-old girl and 14-year-old boy filed a damages suit under the Federal Tort Claims Act after the children, both U.S. citizens, were held in custody at the San Ysidro Port of Entry – the boy for more than 12 hours and his sister for more than 30 hours. The complaint recounts how J.A.M. and her brother O.A.M. were falsely imprisoned in San Ysidro and coerced into making false confessions about the girl’s identity. Officers insisted to the children that the girl was actually their cousin, who is not a U.S. citizen.

J.A.M. and her brother O.A.M. were on their way from Tijuana to school in San Diego with a family friend. Though both children presented officers with valid U.S. passports, a CBP officer sent them to secondary inspection, then to a holding area. According to the children, CBP officers interviewed them about other young relatives their age and then pressured them to sign false statements claiming that J.A.M. was actually their cousin. The children said they were told that O.A.M. would be taken to jail for smuggling if they did not sign. CBP allegedly intended to have the Mexican consulate interview J.A.M. to verify her identity, but claimed an appointment was not available until the following morning.

Upon learning her children had not made it out of the port of entry, their mother, Ms. Medina Navarro, left the medical facility where she was awaiting surgery to inquire at the port of entry for her children. At first, officers denied having the children in custody. More than 12 hours after her children were first taken into custody, Ms. Medina Navarro received a call that C.B.P. had her son in custody with a girl who was not her daughter, and was told she could come pick up her son. Though Ms. Medina Navarro took additional documents to prove the identity of her daughter, officers did not release J.A.M. to her mother until after J.A.M.’s interview with the Mexican consulate the following day, 33 hours after she was first taken into custody.

The family filed administrative Federal Tort Claims Act complaints. CBP denied the claims in full on September 29, 2021, and the family filed suit on March 21, 2022. The government filed a motion to dismiss for lack of jurisdiction or motion for summary judgment, which was denied on July 21, 2022, and subsequently filed an answer to the complaint on August 4, 2022. On September 28, 2022, the court held a case management conference where settlement negotiations broke down. Discovery was completed and the case is set for a bench trial on March 19, 2024.  

Counsel: Law Offices of Joseph M. McMullen

Contact: Joseph Mark McMullen ǀ (619) 501-2000 ǀ joe@imm-legal.com

Press: Lawsuit alleging border officials falsely imprisoned 9-year-old U.S. citizen girl passes legal hurdle

State of Washington v. Greyhound Lines, Inc.

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State of Washington v. Greyhound Lines, Inc., No. 20-2-01236-32 (Spokane Cnty. Sup. Ct., consent decree filed Sept. 26, 2021)

In April 2020, the Attorney General of Washington (Bob Ferguson) filed a lawsuit against Greyhound Lines challenging its practice of allowing U.S. Customs and Border Protection (CBP) agents on its buses to conduct warrantless and suspicionless immigration sweeps. Greyhound failed to warn customers of the sweeps, misrepresented its role in allowing the sweeps to occur on its buses, and subjected passengers to unlawful discrimination based on race, color, or national origin. The case was set for trial on September 27, 2021.

On September 26, 2021, the parties filed a consent decree which requires Greyhound to pay $2.2 million and to enact a number of corporate reforms to end its unlawful conduct. For example, Greyhound must establish and implement a clear policy that denies CBP agents permission to board its buses without warrants or reasonable suspicion in the state of Washington. The Attorney General has stated that the $2.2 million will be used to provide restitution to those passengers who were detained, arrested, or deported as a result of the immigration sweeps on Greyhound buses. On March 31, 2022, the Washington Attorney General’s office closed the settlement claims process.

Documents:

Counsel: Lane Polozola, Yesica Hernandez, Brian J. Sutherland, and Emily C. Nelson (Washington State Attorney General’s Office)

Contact: Yesica Hernandez | Washington State Attorney General’s Office | civilrights@atg.wa.gov

Press:  Greyhound Agrees to Pay $2.2 Million Over Immigration Sweeps on Buses

Villalobos et al. v. United States

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Villalobos et al. v. United States, No. 0:21-cv-02233 (D. Minn., filed Oct. 11, 2021)

Plaintiff Kerlin Sanchez Villalobos and her younger sister are suing the United States for the severe abuse and mistreatment they suffered while they were held in immigration custody. In June 2019, they entered the United States seeking safety from violence and persecution in Honduras, and were arrested by CBP agents. At the time, Kerlin was sixteen and her sister was fourteen. After their arrest, Kerlin and her sister were taken to a CBP detention facility in Clint, Texas and held there for nine days, after which they were forcibly separated and transferred to different group homes operated by Southwest Key Programs, Inc.

At the facility in Clint, Texas, CBP officers and government contractors mistreated Plaintiffs in a variety of ways, including physically assaulting them, depriving them of adequate food and water, denying them access to necessary medical care and medication, forcing them to watch the mistreatment of other children, and forcing them to care for younger children. Officers forced the girls to lift their shirts to be searched in a non-private setting, and threw away medicine one of the sisters brought with her to treat a recent injury. According to the siblings, officers ordered them to control the younger children who were crying because they were separated from their families. One of the sisters was injured by an officer who kicked her repeatedly. Additionally, the Clint facility was reported to have subpar sanitation for the number of children held there, and an MSNBC video from 2019 revealed children caged like animals. According to an ABC news report, staff had no training on caring for children.

In spite of initially assuring the sisters they would not be separated, officers traumatically separated the sisters without explanation and transported them to separate group homes. Despite prior reports of abuse at the Texas group homes where the sisters were held, the U.S. government has continued to place children there. In total, Kerlin spent twenty days in detention, and her sister spent twenty-nine days. Plaintiffs seek compensatory damages for negligence, negligent undertaking, battery, and assault under Texas law via the Federal Tort Claims Act.

Plaintiffs filed their complaint in October 2021 and the United States answered in January 2022. After engaging in discovery, the parties reached a settlement, which was reviewed and approved by the court with regards to the minor plaintiff. The case was dismissed pursuant to a stipulation of dismissal by the parties.

Documents:
● Complaint
● Answer

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Documents:
● Complaint
● Answer

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Documents:
● Complaint
● Answer

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