Like all law enforcement agents, Customs and Border Protection officers are bound by the Fourth Amendment to the U.S. Constitution, which prohibits “unreasonable searches and seizures,” as well as governing statutory and regulatory authority. In general, this means that CBP officers and Border Patrol agents must have “reasonable suspicion” that an individual is engaged in unlawful activity or “probable cause” that he or she violated the law before they may search, interrogate, and/or arrest an individual. However, it is widely reported that CBP officers search, interrogate, and arrest noncitizens without the requisite “reasonable suspicion” or “probable cause,” guided instead by factors such as race and ethnicity. Such violations by CBP take place along the border as well as in the interior. They commonly occur during roving patrols, “routine” traffic stops, raids of homes and/or businesses, and on public trains and buses.
In recent months, Border Patrol agents have increased aggressive interior enforcement operations, including by boarding buses and trains far removed from any physical U.S. borders to ask passengers for documents confirming lawful presence. Following reports of incidents on Greyhound buses, in late March 2018, ACLU affiliates in California, Washington, Vermont, New York, New Hampshire, Michigan, Florida, Maine, Texas, and Arizona sent a letter to senior Greyhound executives. The letter explains that Greyhound has Fourth Amendment rights to deny Border Patrol agents access to its buses, and advises Greyhound to prevent federal immigration officers from stopping, boarding, and/or searching Greyhound buses to question riders about citizenship and immigration status.
On May 16, 2018, Ana Suda and Martha Hernandez were shopping at a convenience store in the small town of Havre, Montana, where both reside, when they were seized and detained by CBP Agent Paul O’Neal. While in the checkout line, Ms. Hernandez gave a friendly hello to O’Neal who was in line behind them. He responded by asking the two women where they were born. Although Ms. Suda and Ms. Hernandez told the agent they were U.S. citizens, born in Texas and California, respectively, O’Neal proceeded to detain them. Even after giving O’Neal their Montana driver’s licenses, they were detained for forty minutes. The only reason both O’Neal and his supervisor subsequently gave for their detention was that Ms. Suda and Ms. Hernandez were speaking Spanish.
A U.S. citizen filed a Bivens action for damages he suffered when a U.S. Border Patrol agent unlawfully entered his property in violation of the Fourth Amendment, refused to leave when told to do so, and knocked him to the ground. The district court granted the defendant agent’s motion for summary judgment and dismissed the plaintiff’s Fourth Amendment claim. Although it found that the agent had violated the Fourth Amendment, it nevertheless held that the case presents a new context for Bivens and that special factors existed which counseled against extending Bivens. In particular, the court found that the case implicated national security issues because the plaintiff’s property—where the incident occurred—is located right on the United States’ side of the U.S-Canada border. The court indicated that the risk of personal liability would cause Border Patrol agents to hesitate and second guess their daily decisions about whether and how to investigate suspicious activity near the border.
On November 27, 2016, Tameika Lovell was returning from Jamaica and traveling through John F. Kennedy Airport when U.S. Customs and Border Protection (CBP) officers selected her for a “random search.” Officers took her to a secured area and conducted a physically invasive and traumatic search of her body, including a body cavity search, for which she later sought medical and psychological treatment.
Ray Askins is an activist concerned about environmental issues at the border. While standing on a public street in Calexico, he took photographs of the port of entry building to illustrate a presentation he planned to give on vehicle emissions at ports of entry. Christian Ramirez is a human rights activist who photographed male CBP officers frisking female travelers as they were preparing to leave the United States. Both Mr. Askins and Mr. Ramirez were on the United States side of the border in areas open to the public. In both cases, border enforcement officers detained, harassed, and threatened them, temporarily confiscated their cameras, and deleted their photographs.
On September 13, 2017, the Electronic Frontier Foundation, along with the ACLU and the ACLU of Massachusetts, brought suit against Customs and Border Protection and Immigration and Customs Enforcement, challenging those agencies’ practices of seizing travelers’ electronic devices without a warrant or individualized suspicion of wrongdoing. The organizations filed on behalf of 10 U.S. citizens and one lawful permanent resident who had smartphones and other electronic devices seized when they arrived at the U.S. border. Many of the plaintiffs had their devices confiscated for extended periods of times. The plaintiffs seek the return of their devices, as well as declaratory and injunctive relief requiring the government to seek a warrant or have probable cause that a crime was committed prior to seizing a travelers’ cellphone. On December 15, 2017, Defendants filed a motion to dismiss.
On September 6, 2017, the Institute for Justice brought a class action suit against Customs and Border Protection over the agency’s practice of engaging in civil forfeiture of vehicles at ports of entry on the U.S.-Mexico border. The plaintiff, Gerardo Serrano, was detained in 2015 when crossing into Mexico at the Eagle Pass, Texas port of entry. After CBP officers found a small amount of pistol ammunition in his truck, they seized the vehicle. CBP held his truck for over two years without ever filing a civil forfeiture action in court against him, despite requiring him to post thousands of dollars for a bond purportedly to allow him to challenge the seizure. Because the agency never filed a forfeiture action, Mr. Serrano was given no opportunity to have his day in court and challenge CBP’s seizure.
On June 8, 2016, Plaintiff, a teenage U.S. citizen, filed a law suit under Bivens, the Federal Tort Claim Act, and 42 U.S.C. 1983 seeking redress for seven hours of abusive and degrading searches and strip searches by Border Patrol agents. The complaint alleges that Plaintiff was walking home after eating breakfast in Nogales, Sonora when a Border Patrol agent accused her of carrying drugs. She was then directed her to a detention room, handcuffed to a chair, was sniffed by dogs, and strip-searched by female agents. After no drugs were found, CBP agents brought her to Holy Cross Hospital, in handcuffs, where hospital staff subjected her to invasive pelvic and rectal exams while CBP agents observed.
In June 2016, the ACLU of Arizona filed a complaint on behalf of ten individuals with U.S. Department of Homeland Security oversight agencies and the Department of Justice demanding investigations into abuses arising from Border Patrol checkpoint and roving patrol stops.
In the middle of 2014, a 14-year-old U.S. citizen, whose parents were from Guatemala, was traveling back to the U.S. with her older sister when she was taken into custody by Customs and Border Protection (CBP) agents.
Mr. Salem brought this damages case against the United States, the Los Angeles Fire Department, and unknown CBP officers. Mr. Salem is a U.S. citizen who is also a citizen of Egypt. An accomplished playwright, 75 year old Salem was at the Los Angeles airport to begin his annual trip to Egypt, where he taught a literature class as an adjunct professor at the University of Cairo. He passed through security without incident, handed over his boarding pass and entered the passenger bridge to board his plane. At that point he was pulled over by an officer he believes was with CBP, who asked to see his passport. When he asked why he had been singled out, he was immediately surrounded by three other officers who forcibly grabbed both of his arms. They searched his carry-on luggage and, after finding nothing objectionable, forcibly escorted him to an interrogation room. There he was questioned for several hours, during which time the officers forced his arm behind his back, breaking it in the process. After about 4 hours of questioning, he was released without being charged. He was in great pain, and a bone in his arm was visibly displaced.
In 2012, ABLE filed a federal court complaint on behalf of two Hispanic married couples from Norwalk, Ohio. The married couples, traveling in the same car and returning from work at a local nursery, were stopped by the Wakeman Police Department early one morning. Without reasonable suspicion or cause, the Wakeman police officer contacted the U.S. Border Patrol. When Border Patrol agents arrived at the scene, they proceeded to interrogate and verbally harass the occupants of the car. The individuals were aggressively removed from the car, handcuffed and taken to the Sandusky Bay Station. At the station, the individuals were then placed in a room where they were harassed and interrogated by ten to twelve different agents over the course of the day.
U.S. Court of Appeals for the Sixth Circuit (Sixth Cir. 13-4502)
In a related case to Muñiz v. United States Border Patrol, ABLE filed a Federal Tort Claims Action on behalf of a mother and daughter who allege that a Border Patrol Agent profiled them for arrest because they are Hispanic. The Plaintiffs were purchasing gasoline at a gas station in Norwalk, Ohio, when an Agent blocked their vehicle and started questioning them. This lawsuit against the United States alleges the Border Patrol Agent committed the Ohio torts of assault, false imprisonment, deprivation of civil rights through ethnic intimidation, and intentional and negligent infliction of emotional distress. In 2013, the federal district court judge granted a motion for summary judgment filed by the United States. The Sixth Circuit, in a decision on August 13, 2015, affirmed the grant of summary judgment 2 -1, with the dissenting opinion stating that a factfinder could find that the Plaintiffs were falsely imprisoned before the Border Patrol Agent developed probable cause for an arrest.
On the morning of January 31, 2012, Francisco Jaimes Villegas was driving with two of his Hispanic coworkers on Highway 84 outside Santa Anna, Texas, when he was pulled over by two Border Patrol (BP) agents using their emergency lights. Mr. Jaimes was driving an unaltered, uncovered pick up truck, with a tool box and a generator in the truck bed, and was obeying all relevant traffic laws when he was stopped. When the two BP agents approached, one on each side of the truck, one agent immediately handcuffed Mr. Jaimes to the person sitting in the rear, and the other agent handcuffed the person sitting in the passenger seat to himself, before asking them any questions. The agents then interrogated the handcuffed men as to whether they had any “papers,” after which they pulled the three men out of the truck and put them in the back seat of their own car. Mr. Jaimes and his co-workers remained in the car while the BP agents similarly stopped another truck and arrested two more men, who were then squeezed into the back seat of the BP vehicle as well. The agents continued looking for people on the same road, arresting one other man who was put in a second vehicle, until they finally brought the men to the Border Patrol station in San Angelo.
The complainant, a United States citizen, stopped at a U.S. Border Patrol checkpoint in Texas at approximately 11 a.m. on September 4, 2014. He told the agents that he was a United States citizen and showed them his citizenship card. The agents incorrectly believed that he was carrying drugs in his vehicle. They detained and questioned him and disassembled his truck. No drugs were found. Without probable cause, they continued to detain him for a total of approximately 17 hours, finally releasing him at about 4 a.m. the morning following his initial stop.
On December 2, 2012 around 5pm, Jorge Moreno Villegas, who is Hispanic, was driving a pick-up truck on a highway outside of Ozona, Texas with a Hispanic colleague as a passenger. The men were on their way home from work. Passing in the opposite direction, a Border Patrol agent saw the two men and, turning his vehicle around, squeezed it in between Mr. Moreno’s truck and the vehicle behind it. It is undisputed that Mr. Moreno had not committed any driving violations. The agent stopped Mr. Moreno and began questioning him and his passenger about their immigration status and citizenship. The men declined to respond. The agent began questioning them in Spanish and then ordered Mr. Moreno to exit the truck. The agent proceeded to handcuff Mr. Moreno and place him in the back of his vehicle. He did the same for the passenger.
On January 15, 2014, the ACLU of Arizona and the ACLU Border Litigation Project submitted an administrative complaint to DHS Office of Inspector General (OIG) and DHS Office of Civil Rights and Civil Liberties (OCRCL) concerning abuses committed by Border Patrol agents at interior vehicle checkpoints in southern Arizona. The complaint was submitted on behalf of 15 U.S. citizens, aged 6-69 years old, and detailed 12 incidents in which their rights were violated when they were stopped at 6 checkpoints over a period of a year and a half.
Jane Doe is a 54-year-old United States citizen who, when returning from a visit to Mexico and after having her valid passport swiped, was randomly picked by CBP officers for additional screening. She was sent to secondary inspection and frisked by two female officers, one of whom put her finger in the crevice of Ms. Doe’s buttocks. Although nothing was found, a dog allegedly alerted CBP officers that she possessed contraband. She was not carrying any contraband, however, and thus the alert was either a false one or did not occur. Thereafter, she was stripped searched by CBP officers and examined with a flashlight. When this revealed no contraband, the defendant CBP officers transported her in handcuffs to the hospital, where she was forced to take a laxative and monitored while having a bowel movement. Despite the fact that this search also produced no evidence of contraband, she was subjected to an x-ray, a physical examination of her vagina and rectum, and a C-T scan where, again, no contraband was found.
On October 9, 2013, the ACLU of Arizona and the ACLU Border Litigation Project submitted an administrative complaint to OIG and OCRCL concerning unlawful conduct of Border Patrol agents during roving patrols in Southern Arizona. The complaint was submitted on behalf of 5 U.S. citizens who detail very serious incidents of verbal or physical abuse when their vehicles were stopped without reasonable suspicion by Border Patrol agents. In at least two of the incidents, young children were traveling in the vehicles.
Ms. Christine Von Der Haar sued two CBP officers individually for their role in unlawfully detaining and questioning her at an airport in violation of the Fourth Amendment to the United States Constitution. Von Der Haar, a senior lecturer at Indiana University, accompanied a friend to the airport to pick up computer equipment he had shipped separately to the United States. At the airport, she and her friend, who was in the United States on a valid B1/B2 visa, understood that they were there simply to pick up the computer equipment. Instead, a CBP officer immediately asked them if they planned to marry. They were then separated by CBP officers. Ms. Von Der Haar was twice taken into a back room by the defendant officers, whom she believed were armed and who stood guard at the door and questioned her about her sexual relationship with her friend. They specifically questioned her about their email communications. Because the computer equipment shipped by the friend did not include his hard drive, the only way that the CBP officers could have known of the emails was if someone had surreptitiously monitored their communications.
In this class action, three U.S. citizen plaintiffs challenged U.S. Border Patrol’s practice of routinely stopping vehicles on Washington’s Olympic Peninsula and interrogating occupants about their immigration status based solely on the occupants’ racial and ethnic appearance, in violation of their constitutional rights. On behalf of themselves and others who have been subjected to similar stops, the plaintiffs asked the court to issue an injunction ordering Border Patrol to halt all such stops until its agents on the Peninsula have received training and demonstrated, through testing, that they understand the constitutional and other legal requirements necessary to stop and detain an individual.
Josue Hernandez-Carranco, traveling with his father and a friend, stopped in the parking lot of a gas station to use the restroom when two BP agents approached and stood in front of the doors of his truck. The agent on Mr. Hernandez-Carranco’s side opened his door, grabbed him by his arm, and, in Spanish, demanded his papers. Mr. Hernandez-Carranco replied in English that he had papers, and showed the agent his valid Texas driver’s license. The agent told him that this was insufficient. He then handcuffed Mr. Hernandez-Carranco, pulled him out of the truck, and placed him in a BP van with several other men.
Alejandro Garcia De La Paz was riding home from work in Texas in the passenger seat of his coworker’s truck, with two other coworkers riding in the backseat, when they were pulled over by two BP vehicles using their emergency flashers. The two agents approached the truck on both sides of the car and, without explaining the reason for the stop, asked whether the passengers were U.S. citizens. Upon hearing Mr. Garcia’s answer, the agent opened Mr. Garcia’s door, grabbed him by the arm, pulled him out of the truck, and brought him to his patrol car.
Jose Alberto was apprehended at the United States Texas border by CBP and told that he was being taken to a “hielera.” Mr. Alberto was placed in a small, freezing cold cell with approximately thirty men. The temperature was so cold that Mr. Alberto’s lips split and his face became red and felt sunburned. The cell had no beds or chairs, and had a single toilet, a sink, and two urinals out in the open.
Daniel Frias was driving a pick-up truck on a highway outside of Abilene, Texas when a BP agent stopped his vehicle. It is undisputed that he had not committed any driving violations. The agent justified the stop solely on the basis that he allegedly saw shapes in the back seat that appeared to be bodies, and that the route was a known one for smuggling. Frias claims that the stop violated the Fourth Amendment to the United States Constitution and was motivated solely by his Hispanic appearance.
Fifteen individuals and two workers’ rights organizations brought this lawsuit to challenge BP agents and three local law enforcement agencies and their officers for their systematic racial profiling of Hispanic residents in three Ohio towns. Plaintiffs were stopped and questioned about their immigration status while driving, pumping gas, or walking their children home from school. Plaintiffs allege that BP agents engaged in a pattern or practice of initiating these stops solely on the basis of their Hispanic appearance and did not have any reasonable suspicion or probable cause to suspect that they were present without authorization when they did so. Additionally, the suit alleges that BP encouraged local law enforcement agencies to profile Hispanics and detain them for BP.
On December 28, 2011, Lucy Rogers was driving toward the U.S./Canada border with two farmworkers of apparent Latino descent when a BP agent pulled her over without any reasonable suspicion. The agent told Ms. Rogers that he was conducting a “citizenship checkup” and asked her and her passengers whether they were U.S. citizens. Ms. Rogers replied that she was a U.S. citizen and provided the agent with her New York State drivers’ license. Because the two farmworkers traveling with her were unable to immediately provide proof of their immigration status, Ms. Rogers was arrested and searched, under the suspicion that she was trafficking undocumented immigrants in an attempt to escape inspection upon entry into the U.S.
On June 23, 2011, Mr. Vargas was stopped by the Anacortes, Washington police, allegedly for failing to use his turn signal. He provided a valid license, registration, and proof of insurance. Despite this, the police officer called BP to check on Mr. Vargas’s immigration status. After failing to find any immigration or criminal history on Mr. Vargas, the agent instructed the police officer to detain Mr. Vargas, despite lacking any legal basis for doing so. The police officer transported Mr. Vargas to the city jail, where he waited in a cold prison cell until a BP agent arrived and took him to a nearby BP station. The agents on duty attempted to pressure him into signing various documents without first explaining their contents to him. Mr. Vargas was eventually transferred to the Northwest Detention Center, where he was detained for almost ten weeks. He prevailed against the United States in demonstrating that this was an unlawful arrest.
Mr. Gerardo Vazquez-Mentado, a naturalized U.S. citizen, filed this suit in federal district court in the Northern District of New York based on the unlawful arrest by Border Patrol Agents. He brought a claim under the Federal Tort Claims Act for false arrest and false imprisonment and second claim under Bivens for violation of his Fourth Amendment rights.