Custody Conditions

In the Matter of XXXXX – Redacted Motion to Terminate Removal Proceedings (based on custody conditions and failure to report child abuse)

Respondent, a 15 year old unaccompanied minor, was arrested by border patrol agents in Texas. CBP detained her in an icebox, and failed to provide her with sufficient food, water, clothing and shelter or medical assistance for approximately eleven days. Respondent was not permitted to shower, brush her teeth or go outside.  She was given only a nylon blanket and forced to sleep on the cold floor in a room crowded with other people.  She became physically sick with cough and fever.

Respondent subsequently was placed in removal proceedings. She subsequently moved to terminate the proceedings, arguing that the agency’s conduct violated the Fifth Amendment, the  terms of the settlement agreement in Flores v. Reno, 8 USC 1232(b) (requiring transfer of unaccompanied minors to custody of the Department of Health and Human Services within 72 hours), and that the agency’s failure to report the conduct as child abuse constituted a crime under 18 USC 2258.  The motion is pending.


Complaint by Immigrant Rights Groups to the Department of Homeland Security Denouncing Mistreatment of Unaccompanied Children (filed June 11, 2014)

On June 11, 2014, the National Immigrant Justice Center, Esperanza Immigrant Rights Project, Americans for Immigrant Justice, Florence Immigrant and Refugee Rights Project, and the ACLU Border Litigation Project submitted an administrative complaint to the DHS Office of Inspector General (OIG) and DHS Office of Civil Rights and Civil Liberties (CRCL) documenting 116 cases of unaccompanied immigrant children who were abused by Border Patrol agents and Customs and Border Protection officials.

Documented from approximately March to May of 2014, the complaints include numerous reports of physical and sexual abuse, as well as verbal abuse involving death threats and racial slurs. Approximately half of the children reported the denial of medical care, including CBP refusal to treat nursing and pregnant minors and infants as young as five months old. Children were forced into stress positions, strip searches, and painful shackling in three-point restraints during transport. Virtually all of the children describe being detained in squalid conditions characterized by extreme cold, overcrowding, and no privacy. More than 80 percent described denial of adequate food and water in CBP custody, including a child whose only available drinking water came from a toilet tank and others who received only frozen or spoiled food and subsequently became ill. Many children reported being separated from other family members, and almost one in three reported that their money and/or personal belongings were confiscated by CBP officials and not returned. Approximately 70 percent reported being held beyond the legally mandated 72-hour period.

For example, M.R., a 15-year-old girl, traveled from Guatemala with her two-year-old son. Both M.R. and her son became sick while in CBP custody, but M.R.’s requests for medical attention were ignored or dismissed for approximately five days, until she and her son were finally taken to a hospital. K.A., a 14-year-old girl, had her asthma medication confiscated by CBP officials and proceeded to suffer multiple asthma attacks in the filthy and overcrowded CBP holding cells. After the first asthma attack, officials threatened that they would punish her if she were faking. H.R., a seven-year-old boy, was severely developmentally disabled and suffering from acute malnourishment when he was apprehended, but CBP held him in custody for approximately five days without any medical treatment. He was eventually hospitalized and underwent emergency surgery.

The complaint notes that many of the same abuses have been documented and reported to DHS for years, but no reforms have been implemented. The complaint further notes that DHS oversight agencies have failed to respond to individual complaints of CBP abuse, conduct investigations, or hold agents accountable, and cites to AIC’s report, No Action Taken, which made similar findings. The complaint calls for the implementation of binding short-term detention standards, independent oversight, uniform complaint procedures, and the delegation of child screening responsibilities to an entity other than CBP, such as United States Citizenship and Immigration Services or the Department of Health and Human Services, among other recommendations.

Counsel: National Immigrant Justice Center | Esperanza Immigrant Rights Project | Americans for Immigrant Justice | Florence Immigrant and Refugee Rights Project | ACLU Border Litigation Project


Leonel Ruiz o/b/o E.R. v. U.S.

No. 1:13-cv-01241 (E.D.N.Y. filed Mar. 8, 2013)

On March 11, 2011, E.R., a four-year-old U.S. citizen, was detained by Customs and Border Protection following her arrival at Dulles Airport. E.R. was returning home to New York from a vacation in Guatemala with her grandfather, when her flight was diverted from JFK to Dulles airport due to bad weather. While E.R. was admitted with her U.S. passport, her grandfather was directed to secondary inspection due to an issue with his immigration paperwork. CBP detained E.R. with her grandfather for the next 20 plus hours, gave her only a cookie and soda during the entire time, and provided her nowhere to nap other than the cold floor.

Although CBP officers had the phone number of E.R’s parents, they failed to contact them for nearly 14 hours, and repeatedly refused her grandfather’s requests to be allowed to call them. E.R.’s father was frantic with worry this entire time. When CBP eventually did contact E.R.’s father, the officer promised to send E.R. to JFK as soon as arrangements could be made to do so, but also asked for identifying information about her parents. Hours later, CBP called again, and this time claimed that CBP could not return E.R. to “illegals.” The CBP officer gave E.R.’s father an hour to decide whether she should be sent back to Guatemala or to an “adoption center” in Virginia.  Fearing that he would otherwise lose custody of his daughter, E.R.’s father decided that the only viable option was for her to return to Guatemala. CBP officers put E.R. and her grandfather on the next flight to Guatemala.

E.R. was finally able to return home nearly three weeks later, after her father hired a local attorney to fly to Guatemala to retrieve her. Back in the United States, E.R. was diagnosed with posttraumatic stress disorder by a child psychologist, who concluded that the PTSD was a result of her detention, her separation from her parents, and her perception that she had been deported because her father did not pick her up from the airport. E.R.’s father seeks damages on her behalf for her unlawful treatment.

Complaint

Counsel: Cleary Gottlieb Steen & Hamilton, LLP | American Immigration Council

Contact: Melissa Crow l AIC l 202.507.7523 l mcrow@immcouncil.org


Muniz, et al. v. Gallegos, et al.
No. 09-02865 (N.D. Ohio. filed Dec. 10, 2009)
No. 12-4419 (appeal to the 6th Circuit, filed Nov. 29, 2012)

In this class action, individuals and two workers’ rights organizations challenge federal border patrol agents and local police officers, alleging that officers engage in systematic racial profiling of Hispanic residents in three Ohio towns. Several plaintiffs describe being stopped and questioned about their immigration status while driving, pumping gas, or walking their children home from school. Plaintiffs allege that Border Patrol officers act solely on the basis of their Hispanic appearance and do not have any reasonable suspicion or probable cause to suspect that they are present without authorization. Plaintiffs have appealed the lower court’s dismissal for lack of jurisdiction to the Sixth Circuit Court of Appeals, where the case is now pending.

Counsel: Advocates for Basic Legal Equality, Inc

Murray & Murray Co., L.P.A.

Contact: Mark Heller l 419-255-0814 l mheller@ablelaw.org

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