Texas and Missouri v. Biden

Texas & Missouri v. Biden, No. 2:21-cv-00067-Z (N.D. Tex., filed Apr. 13, 2021)

Within hours after President Biden’s inauguration, the Biden administration suspended new enrollments into the Trump administration’s Remain in Mexico program (also known as the “Migrant Protection Protocols” or “MPP”), which forcibly returned certain people seeking asylum at the southern U.S. border to Mexico, where they had to survive dangerous conditions during the pendency of their immigration proceedings in U.S. immigration courts. The program was notoriously a humanitarian disaster – as a result of the policy, people seeking asylum were murdered, raped, kidnapped, extorted, and compelled to live in squalid conditions. They also faced significant procedural barriers to meaningfully presenting their legal claims for protection.

On April 13, 2021, the states of Texas and Missouri (Plaintiffs) filed suit in the Northern District of Texas, arguing that the Biden administration’s January 2021 statement suspending new enrollments into MPP “functionally end[ed] the MPP” program and was arbitrary and capricious in violation of the Administrative Procedures Act (APA) given the “huge surge of Central American migrants, including thousands of unaccompanied minors, passing through Mexico in order to advance meritless asylum claims at the U.S. border.” Plaintiffs also argued that the Biden Administration’s decision to suspend MPP violated both the Constitution and an agreement between Texas and the federal government.

On May 14, 2021, Plaintiffs moved for a preliminary injunction. However, before the briefing was complete, DHS issued a new memo on June 1, 2021 formally terminating MPP. The Court concluded that the June 1 memorandum mooted Plaintiffs’ original complaint (which had focused on the January 2021 pronouncement), but allowed Plaintiffs to amend their complaint and file a new motion seeking to enjoin the June 1 memo. Plaintiffs did so. On June 25, 2021, Defendants filed their response to Plaintiffs’ preliminary injunction motion, and Plaintiffs filed their reply on June 30, 2021.

On July 22, 2021, the Court held a consolidated hearing and bench trial on the merits, and the parties then filed supplemental briefs on the scope of relief available to Plaintiffs. On August 13, 2021, the Court issued an order concluding that Plaintiffs were entitled to relief on both their APA and statutory claims and issued a nationwide injunction permanently enjoining Defendants from implementing or enforcing the June 1 memo, vacating the June 1 memo in its entirety, and ordering Defendants “to enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all [noncitizens] subject to mandatory detention under Section 1255 without releasing any [noncitizens] because of a lack of detention resources.”

The Court’s reasoning was rooted in a mistaken understanding of 8 U.S.C. § 1225(b)(2)(A) and its determination that MPP “demonstrated operational effectiveness” — a finding based on Trump Administration statements and flawed data analysis and which ignored hundreds of pages of record evidence detailing the dangers MPP respondents had experienced in Mexico.

The Court stayed its order for seven days to allow the federal government time to seek emergency relief from the Fifth Circuit. On August 16, 2021, the Biden administration sought an additional stay from the District Court, which the District Court summarily denied two days later. The Biden administration then appealed to the Fifth Circuit. The American Immigration Council, Center for Gender and Refugee Studies, Human Rights First, and Southern Poverty Law Center, filed an amicus brief in support of the government, asking the Fifth Circuit to prevent the reinstatement of MPP and arguing that the District Court’s order rests on inaccurate facts about the purported effectiveness of MPP in deterring migration and reducing meritless asylum claims. The brief also explains the ways in which the MPP program has been a humanitarian catastrophe. The ACLU and ACLU of Texas filed a separate amicus brief in support of the government primarily focusing on the District Court’s misinterpretation of 8 U.S.C. § 1225(b)(2)(A).

On August 19, 2021, the Fifth Circuit denied the government’s request for a stay in a published decision that wholly adopted as true the Trump administration’s claims about the effectiveness of MPP in deterring migration and ignored the mountainous evidence refuting such claims. The decision, however, stated that the administration does not have to restart MPP at any particular time, just “in good faith” (without defining the term) and clarified that the government “can choose to detain” someone in accordance with § 1225, so long as the government does not “simply release every [noncitizen] described in § 1225 en masse into the United States.”

On August 20, 2021, the Biden administration filed an application to stay the District Court’s injunction and for an emergency administrative stay with the Supreme Court. That same day – just minutes before the injunction was to go into effect – Justice Alito granted an emergency stay of the injunction until 11:59 pm EDT on August 24, 2021, to allow the full Court to consider the application. On August 23, 2021, the ACLU and ACLU of Texas filed an amicus brief in the Supreme Court in support of the stay application, again addressing the lower courts’ deeply flawed premise that the federal government must subject all people seeking asylum apprehended at the border to mandatory detention or return them to Mexico under MPP.

On August 24, 2021, the Supreme Court denied the government’s stay request in a 6-3 decision, stating that “[t]he applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” The decision, however, did not endorse the states’ incorrect claims that the government is actually required to return people to Mexico under the immigration statutes. That same day, DHS issued a statement saying that the Department “respectfully disagrees with the district court’s decision,” have appealed that order, and “will continue to vigorously challenge it.” However, the Department stated that “[a]s the appeal process continues . . . DHS will comply with the order in good faith.”

Documents:

Counsel for Amicus: ACLU Immigrants’ Rights Project; ACLU Foundation of Texas; American Immigration Council; Center for Gender & Refugee Studies; Human Rights First; Southern Poverty Law Center

United States v. Gustavo Carrillo-Lopez

United States v. Gustavo Carrillo-Lopez, No. 3:20-cr-00026-MMD-WGC (D. Nev., filed June 25, 2020)

On June 25, 2020, Gustavo Carrillo-Lopez was indicted on one count of being a deported noncitizen present in the United States in violation of 8 U.S.C. § 1326(a) and (b) (Section 1326). On October 19, 2020, Mr. Carrillo-Lopez moved to dismiss his indictment on the grounds that Section 1326 violates the equal protection guarantee of the Fifth Amendment under Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). In his motion to dismiss, Mr. Carrillo-Lopez argued that because Section 1326 was enacted with a discriminatory purpose and has a disparate impact on Latinx persons, the law is unconstitutional; as such, the Court must dismiss the indictment.

In his briefing, Mr. Carrillo-Lopez presented extensive historical evidence about the racist origins of Section 1326, including how it was first enacted at the height of the eugenics movement and how the “Undesirable Aliens Act of 1929” was conceived, drafted, and enacted by white supremacists out of a belief that the “Mexican race” would destroy the racial purity of the United States and that Mexicans were “poisoning the American citizen.” Although the statute was recodified in 1952, Mr. Carrillo-Lopez argued that the 1952 reenactment did not cleanse Section 1326 of its racist origins and was likewise motivated by discriminatory intent. Moreover, he argued that Section 1326 disproportionally impacts Mexican and Latinx defendants, given that the overwhelming number of Border Patrol arrests along the southern border are of Mexicans or people of Latinx origin.

On January 22, 2021, the Court held oral argument on the motion to dismiss, and on February 2, 2021, the Court held an evidentiary hearing. At the evidentiary hearing, Mr. Carrillo-Lopez presented the testimony of two experts. Professor Kelly Lytle Hernandez, an expert on policing in immigration and criminalization of migration, testified extensively on the racist origins of the 1929 act and that “the illegal re-entry provision of the 1929 law was intended to target Latinos.” Professor Benjamin Gonzalez O’Brien, an expert on political science, immigration policy, race, and public policy, testified to the historical link between the 1929 and 1952 codifications. Following the evidentiary hearing, Mr. Carrillo-Lopez submitted a post-hearing brief outlining for the Court how the 1952 recodification of Section 1326 made illegal reentry penalties even harsher and expanded grounds for deportation, all with the knowledge of the law’s disparate impact and over a presidential veto calling out the bill’s racism. Mr. Carrillo-Lopez explained that the 1952 Congress did not reenact the illegal reentry provision despite its racist origins – it reenacted it because of them. In light of these facts, Mr. Carrillo-Lopez argued he had met his burden under the Arlington Heights test.

On August 18, 2021, the Court issued an order granting Mr. Carrillo-Lopez’s motion to dismiss, finding that because Section 1326 was enacted with a discriminatory purpose, the law has a disparate impact on Latinx persons, and that because the government failed to show that Section 1326 would have been enacted absent racial animus, Section 1326 violates the Equal Protection Clause of the Fifth Amendment. As such, the Court ordered the United States to dismiss Mr. Carrillo-Lopez’s indictment and release him from federal custody. 

On August 19, 2021, the United States filed a notice of appeal to the Ninth Circuit.

Documents:

Counsel: Federal Public Defender of Nevada

Contact: Lauren Gorman, Assistant Federal Public Defender | Lauren_Gorman@fd.org

National Immigration Litigation Alliance et al. v. U.S. Customs and Border Protection

National Immigration Litigation Alliance et al. v. U.S. Customs and Border Protection, No. 1:2021-cv-11094 (D. Mass., filed July 1, 2021)

Since 2019, Customs and Border Protection (CBP) has engaged in the practice of expelling from the United States migrants who recently gave birth, along with their U.S. citizen infants, often without birth certificates. CBP has even expelled individuals from the United States who were in active labor. The National Immigration Litigation Alliance, Al Otro Lado, and the Haitian Bridge Alliance (Plaintiffs) submitted a FOIA request on March 18, 2021 to CBP seeking records relating to policies, guidance, or statistics regarding the treatment of pregnant people in CBP custody, people in CBP custody who have given birth within the United States within the last six months, U.S. citizen children in CBP custody who are under the age of six months, and non-U.S. citizen children of parents in CBP custody while their parent is giving birth at a U.S. hospital or other medical facility. Plaintiffs sought these records to better understand the scope and extent of CBP’s practice of expelling migrant parents and their infant children without considering the merits of their asylum applications.

When CBP failed to produce any responsive records or provide any other substantive response to the request, Plaintiffs filed suit on July 1, 2021.

Documents:

Counsel: Proskauer Rose LLP; National Immigration Litigation Alliance; Al Otro Lado; Haitian Bridge Alliance

Contact: Trina Realmuto, National Immigration Litigation Alliance | trina@immigrationlitigation.org

Additional Links:

Llamas et al. v. U.S. Customs and Border Protection et al.

Llamas et al. v. U.S. Customs and Border Protection et al., No. 6:2021-cv-01169 (M.D. Fla., filed July 18, 2021)

After the murder of George Floyd by Minneapolis, Minnesota police officer Derek Chauvin on May 25, 2020, civil unrest and protests spread across the United States. In response to the protests, the federal government deployed officials from Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), the Federal Bureau of Investigation (FBI), and the United States Marshals Service (USMS), among others, to different U.S. cities and engaged in aerial surveillance of those participating in the protests.

In January 2021, Noelle Llamas and Ken Klippenstein, respectively a college student and a reporter for The Intercept, submitted six FOIA requests to CBP, ICE, FBI, USMS, the Department of Homeland Security (DHS), and the Department of Justice (DOJ) seeking records related to emails sent from specific officials during the period of May 25, 2020 to August 15, 2020 in an attempt to learn more about the messaging related to each federal agency’s deployment of law enforcement officials during this period of time. In particular, the requests sought records concerning each agency’s internal messaging and responses to news media inquiries about the deployments.

Although the agencies acknowledged receipt of each request, Llamas and Klippenstein did not receive a final determination on any of them. On July 18, 2021, they filed suit against the agencies for the records sought in their FOIA requests.

Documents:

Counsel: Elizabeth E. Bourdon, B.C.S.

Contact: Elizabeth (Beth) Bourdon | bbourdon@me.com

Ortega, et al. v. U.S. Customs and Border Protection

Ortega, et al. v. U.S. Customs and Border Protection, No. 1:21-cv-11250-FDS (D. Mass, filed Aug. 2, 2021)

On August 2, 2021, the Boston College Civil Rights Clinic and Lawyers for Civil Rights filed a lawsuit against U.S. Customs and Border Protection (CBP) on behalf of Neisa Ortega and her 14-year-old daughter. On multiple occasions over the course of a year, Ms. Ortega and her daughter were separated for hours without explanation and Ms. Ortega subjected to repeated invasive body searches and sexual violations at the hands of CBP officers while travelling through Logan Airport in Boston.

The complaint alleges that CBP subjected Ms. Ortega to illegal and unconstitutional treatment upon her returns from family visits to the Dominican Republic. Beginning in April 2019, CBP officers assaulted, degraded, and humiliated Ms. Ortega on three separate occasions through invasive body cavity searches that contravened CBP’s internal guidelines prohibiting officers from conducting vaginal cavity searches. During these body cavity searches, CBP officers separated Ms. Ortega from her daughter for hours, during which time neither was given information as to the other’s whereabouts. Ms. Ortega and her daughter have been traumatized by their separation from each other, and Ms. Ortega still lives with the trauma of being physically abused and sexually violated. 

On November 5, 2020, Ms. Ortega filed a complaint with the Department of Homeland Security’s Office for Civil Rights and Civil Liberties (CRCL); CRCL summarily closed the complaint on March 30, 2021. On January 19, 2021, Ms. Ortega filed an administrative claim with CBP on behalf of herself and her daughter under the Federal Tort Claims Act (FTCA); CBP likewise denied the claim in full on June 17, 2021. Having exhausted administrative remedies under the FTCA, Ms. Ortega filed this lawsuit claiming Fourth and Fifth Amendment violations and seeking injunctive and declaratory relief, as well as compensatory relief pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) and the FTCA.

Documents:

Counsel: Boston College Civil Rights Clinic; Lawyers for Civil Rights

Contact: Arielle Sharma, Lawyers for Civil Rights | asharma@lawyersforcivilrights.org; Reena Parikh, Boston College Civil Rights Clinic | reena.parikh@bc.edu


P.J.E.S. v. Wolf

P.J.E.S. v. Wolf, No. 1:20-cv-02245 (D.D.C., filed Aug. 14, 2020)
J.B.B.C. v. Wolf, No. 1:20-cv-01509 (D.D.C., filed June 9, 2020)
Huisha-Huisha, et al. v. Gaynor, et al., No. 1:21-cv-0100 (D.D.C., filed Jan. 12, 2021)

A recent series of cases have challenged the government’s invocation of rarely-used public health laws to restrict immigration by unaccompanied children and asylum seekers.

On March 20, 2020, President Trump announced that the Centers for Disease Control and Prevention (CDC) would issue an order “to suspend the introduction of all individuals seeking to enter the U.S. without proper travel documentation” across the northern and southern borders. Would-be border crossers were to be “immediately return[ed]” to their country of origin “without delay.” To justify the order, the Administration invoked 42 U.S.C. § 265, a rarely-used provision dating back to 1893, which gives federal public-health authorities the ability to “prohibit . . . the introduction of persons or property” from designated places where “by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States.” This restriction has come to be known as “Title 42.”

On March 20, 2020, CDC issued an interim final rule and an order directing the “immediate suspension of the introduction” of certain persons, including those seeking to enter the United States at ports of entry “who do not have proper travel documents,” “whose entry is otherwise contrary to law,” and “apprehended near the border seeking to unlawfully enter the United States.” Reports indicate that although CDC objected to the order, saying that there was no valid public-health justification for it, White House officials overrode those objections. Though CDC initially limited the order to thirty days, it has since extended the order indefinitely. On October 13, CDC issued final rules concerning its regulatory authority under § 265. CDC then issued a revised order pursuant to those rules. In February 2021, the Biden administration called for a review of the CDC order to determine if it was still needed or if modifications should be made, but on August 2, 2021, CDC issued a new order once again indefinitely extending application of Title 42.

The CDC order and regulations apply to unaccompanied children (who are entitled to special safeguards under the Trafficking Victims Protection Reauthorization Act (TVPRA)) and people seeking asylum, withholding of removal, or protection under the Convention Against Torture. The ACLU, along with a number of ally organizations, have filed a series of lawsuits on behalf of unaccompanied children challenging their expulsion under the CDC’s directives, the two most significant of which are discussed below.

J.B.B.C.

J.B.B.C. v. Wolf challenged the unlawful expulsion of a sixteen-year-old Honduran boy pursuant to Title 42. J.B.B.C. was being held in a hotel awaiting expulsion when the ACLU and others filed a complaint and request for a temporary restraining order. Based on J.B.B.C.’s arguments that the Title 42 Process was not authorized by § 265, and that the CDC order conflicted with various Immigration and Nationality Act (INA) provisions, Judge Carl Nichols issued a preliminary injunction barring Defendants from expelling J.B.B.C. Defendants then voluntarily took J.B.B.C. out of the Title 42 Process and transferred him to Office of Refugee Resettlement (ORR) custody.

Another child similarly subject to expulsion under Title 42, E.Y., was later amended into the case. Hours after he was added, Defendants similarly took him out of the Title 42 Process. Plaintiffs subsequently voluntarily dismissed J.B.B.C.

P.J.E.S.

On August 14, 2020, the ACLU Immigrants’ Rights Project, the ACLU of Texas, the Texas Civil Rights Project, Oxfam America, and the ACLU Foundation of the District of Columbia filed P.J.E.S. v. Wolf, a nationwide class action challenging the application of the Title 42 Process to unaccompanied children. On August 20, 2020, Plaintiffs moved for a classwide preliminary injunction. The District Court judge then referred the case to a magistrate judge, who issued a report recommending that Plaintiffs’ motion for class certification be provisionally granted and that the motion for classwide preliminary injunction be granted. The magistrate judge concluded that Title 42 does not authorize summary expulsions and that if it were in fact read to permit expulsion of unaccompanied minors, it would conflict with statutory rights granted to them under the TVPRA and the INA.

On November 18, 2020, the court adopted the Report, provisionally granting Plaintiffs’ motion to certify class and motion for preliminary injunction. Defendants moved for reconsideration on their request to stay the preliminary injunction and appealed the order to the DC Circuit. On December 3, the court denied Defendants’ motion for reconsideration.

On December 12, 2020, Defendants filed a notice advising the court that approximately 34 class members had been expelled from the United States, in contravention of the court’s injunction. These 34 were in addition to another 32 unaccompanied children expelled the same day the court granted the preliminary injunction.

On January 29, 2021, a motions panel of the D.C. Circuit stayed the P.J.E.S. preliminary injunction pending appeal and expedited the appeal.

In February 2021, CDC published a Notice of Temporary Exception from Expulsion of Unaccompanied Noncitizen Children under Title 42, and on July 16, 2021, CDC issued an order formally excepting unaccompanied minors from Title 42.  

On March 2, 2021, the Court of Appeals issued an order holding Defendants’ appeal of the preliminary injunction in abeyance pending further order of the court. The District Court likewise granted the parties’ joint motion to hold the case in abeyance.

Note: Two other cases involving the treatment of unaccompanied minors under Title 42 include G.Y.J.P. v. Wolf, No. 1:20-cv-01511 (D.D.C., filed June 9, 2020) and Texas Civil Rights Project v. Wolf, No. 1:20-cv-02035 (D.D.C., filed July 24, 2020).

Huisha-Huisha

On January 21, 2021, the ACLU Immigrants’ Rights Project, the ACLU of Texas, the Refugee and Immigrant Center for Legal Education and Legal Services, Oxfam America, and the ACLU of the District of Colombia filed Huisha-Huisha, et al. v. Gaynor, et al., a class action on behalf of noncitizens who arrive in the United States as a family unit of at least one child and that child’s parent or legal guardian and are subject to Title 42. The named plaintiffs are three parents and their minor children who sought asylum in the United States.In January 2021, Plaintiffs moved to certify a class consisting of all noncitizens who “(1) are or will be in the United States; (2) come to the United States as a family unit composed of at least one child under 18 years old and that child’s parent or legal guardian; and (3) are or will be subjected to the Title 42 Process.” Plaintiffs also filed a series of emergency motions to stay the removal of the named petitioners. In February, the District Court granted the stays of removal over the government’s objections.

On February 5, 2021, Plaintiffs moved for a preliminary injunction prohibiting Defendants from applying the Title 42 Process to members of the putative class. On February 23, 2021, the District Court granted the parties’ joint motion to hold in abeyance the motions for class certification and a preliminary injunction. The case was held in abeyance until August 2, 2021, while the parties attempted to engage in settlement negotiations. On August 2, the parties jointly filed a motion to reset the briefing schedule on Plaintiffs’ motions for class certification and a preliminary injunction, indicating their intent to resume litigation. On August 11, 2021, Plaintiffs filed their reply in support of their motion for class certification and for a preliminary injunction.

Documents:

J.B.B.C. v. Wolf:

P.J.E.S. v. Wolf:

Huisha-Huisha, et al. v. Gaynor, et al.

Counsel: ACLU Foundation of Texas; ACLU Foundation Immigrants’ Rights Project; Texas Civil Rights Project; Center for Gender & Refugee Studies; Oxfam America; ACLU Foundation of the District of Columbia

Contact: Stephen Kang, ACLU Immigrants’ Rights Project | skang@aclu.org

Additional Links:

Administrative Complaint Series on CBP’s Abuse and Mistreatment of People Detained in its Custody

Administrative Complaint Series on CBP’s Abuse and Mistreatment of People Detained in its Custody

Between January and July 2020, the ACLU Foundation of San Diego & Imperial Counties, in tandem with the ACLU Border Rights Center, prepared and submitted a series of administrative complaints to the Department of Homeland Security’s Office of Inspector General (DHS OIG) detailing U.S. Customs and Border Protection (CBP)’s abuse and mistreatment of people in its custody. The complaints were based on a series of 103 interviews conducted with individuals recently released from CBP custody between March and July 2019.

Complaint #1 – Mistreatment of Pregnant People

The first complaint, filed January 22, 2020, focused on CBP’s abuse and mistreatment of detained pregnant people. One detained woman who was six months pregnant detailed how a Border Patrol  agent forcibly slammed her face against a chain link fence while other agents looked on and did nothing. Border Patrol then detained her for three days without medical care. Another woman reported her fear of her pregnant belly being kicked while having to sleep on the crowded floor of the holding cell. When she began to experience abdomen pain and other symptoms and asked for medical attention, Border Patrol agents told her she was lying.

The complaint contains numerous reports of pregnant individuals being denied not only medical care, but access to clean clothes and other basic hygienic necessities.

The complaint implores DHS OIG to conduct an immediate review of CBP’s treatment of pregnant people in its custody, including recommending CBP stop detaining pregnant people altogether and adopt explicit policies to ensure for adequate, timely medical care of pregnant individuals.

Complaint #2 – Mistreatment of Sick Children

The second complaint, filed on February 18, 2020, focused on the treatment of sick children in CBP and U.S. Border Patrol facilities. The complaint details how Border Patrol continued to hold a weeks-old infant who experienced significant weight loss while detained in custody against the express and repeated advice of medical professionals. In another case, Border Patrol held a five-year-old child for eight days without providing any medical attention for his persistent fever and diarrhea. The complaint also notes how, as of the time of its filing, at least seven children have died in CBP custody or shortly after being released, many of whom received delayed or no medical care. Finally, the complaint calls on DHS OIG to review CBP’s treatment of sick children in its custody, recommend that CBP prioritize the release of all children, and strictly prohibit continued detention of sick children.  

Complaint #3 – Separation of Families in CBP Processing & Detention

The third complaint, filed on April 15, 2020, focused on CBP’s separation of families during detention and processing and the agency’s refusal to implement a detainee locator system. The complaint noted that despite the supposed halting of DHS’s well-publicized separation of young children from their parents, family separations continue to occur as a result of CBP processing and detention practices. Border Patrol and DHS have adopted a very restrictive definition of “family” that includes only legal guardians accompanied by minor children and gives Border Patrol agents unilateral discretion to decide whether to separate family members, resulting in countless ongoing family separations. The ACLU’s investigation documented the separation of a grandmother and her nine-year-old grandson, a woman and her sister, and a mother and her non-minor son, among countless others. Noting the many ways in which family separations intensify trauma for already vulnerable asylum seekers of all ages and the many extreme barriers to locating and communicating with loved ones who are detained, the complaint calls on DHS OIG to recommend CBP implement a detainee locator system, refrain from detaining family units, and prioritize the prompt release of families. It also recommends adoption of a more expansive definition of “family”.

Complaint #4 – Verbal Abuse of Detained Individuals

The fourth complaint in the series, filed July 7, 2020, focused on U.S. Border Patrol’s verbal abuse of detained individuals. This complaint highlights Border Patrol’s “staggering culture of cruelty” and “systematic mistreatment and dehumanization of vulnerable people.” Detained individuals reported being told “Forget about asylum, we might just take away your daughter,” “Get out of here, what are you doing here if you don’t even speak English, you are worthless,” “If you keep complaining I will put you with the dogs,” “[Y]ou broke the law, you have no rights,” “I am treating you the way illegals should be treated,” and a litany of other abusive slurs. The complaint calls on DHS OIG to recommend CBP strictly prohibit personnel from verbally abusing individuals in its custody, adopt zero-tolerance policies for anti-immigrant and racist employee conduct, and create a new complaint process that allows for timely review and increased transparency.

Documents:

Counsel: ACLU Foundation of San Diego & Imperial Counties; ACLU Border Rights Center

Contact: Mitra Ebadolahi, ACLU Foundation of San Diego & Imperial Counties | mebadolahi@aclusandiego.org

Administrative Complaint Regarding U.S. Border Patrol’s Mistreatment of Honduran Family Seeking Asylum and Summary Expulsion of Newborn U.S. Citizen

Administrative Complaint Regarding U.S. Border Patrol’s Mistreatment of Honduran Family Seeking Asylum and Summary Expulsion of Newborn U.S. Citizen

On July 10, 2020, the ACLU Foundation of San Diego & Imperial Counties (ACLU-SDIC) and Jewish Family Service of San Diego (JFS) submitted an administrative complaint to the Department of Homeland Security’s Office of Inspector General (OIG) and the Office for Civil Rights and Civil Liberties (CRCL), regarding U.S. Border Patrol’s mistreatment of a Honduran family seeking asylum and the agency’s summary expulsion of the family, including their newborn U.S. citizen child, to Mexico. The family, including the mother, father, and their nine-year-old son, fled Honduras after gangs extorted them, made repeated death threats, beat the nine-year-old with a gun, and took over their house.

In early March 2020, the family made an initial attempt to seek asylum, but Border Patrol force them to wait in Mexico for an immigration court hearing. Fearing for their safety in Mexico, on June 27, 2020, the family, including the mother, who was now nine months pregnant, attempted to cross into the U.S. once again and turned themselves in to the Border Patrol. The Border Patrol agents separated the family, sending the father and son back to Mexico in the middle of the night, despite their repeated pleas to stay with the mother. Agents sent the mother to the hospital, where she gave birth to her child – a natural-born U.S. citizen. Just two days after giving birth, Border Patrol agents took the mother and her newborn U.S. citizen child to the border and directed them to walk over the border back into Mexico, even though the mother had repeatedly expressed a fear of persecution there. Once back in Mexico, the mother and child were eventually able to reunite with the father and son. The family contacted JFS from Tijuana, where they reported that neither the newborn child nor his mother had received any medical care since birth.

ACLU-SDIC and JFS filed an administrative complaint on the family’s behalf, calling for an urgent investigation of Border Patrol’s treatment of the family, including the forced expulsion of the newborn U.S. citizen and his mother to Mexico and the forced removal of the father and son. The complaint also emphasizes that Border Patrol twice failed to ensure that the family had access to non-refoulement interviews, which are intended to ensure people are not removed to countries where they are likely to face persecution – a clear violation of both U.S. law and agency policy. In addition to the investigation, the complaint calls on DHS OIG to recommend CBP immediately exempt all pregnant persons from MPP, promptly release people forced to give birth in CBP custody and their families as soon as possible after birth, and ensure CBP complies with their non-refoulement obligations and hold officers who do not accountable, among others.

Documents:

Counsel: ACLU Foundation of San Diego & Imperial Counties; Jewish Family Services of San Diego

Contact: Mitra Ebadolahi, ACLU Foundation of San Diego & Imperial Counties | mebadolahi@aclusandiego.org

Additional Links:

Santa Fe Dreamers Project v. U.S. Customs and Border Protection

Santa Fe Dreamers Project v. U.S. Customs & Border Protection, No. 1:20-cv-00490 (D.N.M., filed May 21, 2020)

In response to the Trump Administration’s implementation of a series of new policies designed to dissuade asylum seekers from coming to the United States, an increasing number of immigrants’ rights advocates began representing asylum seekers in the U.S.-Mexico border region. In late 2018 and early 2019, reports emerged that federal law enforcement was surveilling attorneys and immigrants’ rights advocates as a result of this increased human rights work. In mid-December 2018, federal officials subjected El Paso-area advocates to increased questioning and detention while traveling through ports of entry and abroad. In April 2019, the Santa Fe Dreamers Project (SFDP) submitted a Freedom of Information Act (“FOIA”) request to U.S. Customs and Border Protection (“CBP”) seeking records related to border enforcement and the potential targeting of human rights defenders by border enforcement agencies. SFDP did not receive a single responsive document.

On May 21, 2020, SFDP filed this FOIA lawsuit seeking to compel CBP to conduct a reasonable search and produce records responsive to their FOIA request. On June 24, 2020, Defendants filed their answer. Per their August scheduling order, Defendants were required to produce all responsive documents by November 6, 2020. However, on November 6, Defendants filed an unopposed motion to extend this production deadline. On December 28, the magistrate judge vacated all deadlines related to production of documents and briefing in the case, and on January 12, 2021, the magistrate judge ordered Defendants to produce all responsive documents no later than March 15, 2021.

Settlement conferences were held on April 6 and 7, 2021, and on June 14, 2021, after Defendants had agreed to pay fees and costs, Plaintiffs stipulated to dismiss the case.

Documents:

Counsel: Christopher Benoit, The Law Office of Lynn Coyle, PLLC

Contact: Christopher Benoit, The Law Office of Lynn Coyle, PLLC | chris@coylefirm.com

Texas Civil Rights Project v. U.S. Customs and Border Protection

Texas Civil Rights Project et al. v. U.S. Customs and Border Protection, No. 1:20-cv-02389 (D.D.C., filed Aug. 27, 2020)

In March 2020, the Trump Administration began carrying out summary expulsions pursuant to Title 42 § 265 of the U.S. Code and the CDC’s  implementing regulations. The Administration removed noncitizens without travel documents apprehended at the border – including unaccompanied minors and asylum seekers – without any legal process under the ruse of mitigating the spread of COVID-19. In late July 2020, news began breaking that the Department of Homeland Security (DHS) had been contracting with private contractors to detain immigrant children as young as one in hotels along the U.S.-Mexico border prior to carrying out such summary expulsions, regardless of whether the child had tested positive for COVID-19 or not. While detained in these hotels, children, including unaccompanied minors, were unable to contact family members, denied access to counsel, and denied any legal process before being removed to countries where many feared persecution.

In response, the Texas Civil Rights Project (TCRP) and the Institute for Constitutional Advocacy and Protection (ICAP) submitted three Freedom of Information Act (FOIA) requests to Customs and Border Protection (CBP), DHS, and Immigration and Customs Enforcement (ICE) to obtain more information about the government’s treatment of unaccompanied children who have crossed the border in recent months. Specifically, the organizations sought records encompassing (1) the standards use to determine whether unaccompanied and undocumented children are immediately expelled or allowed to apply for humanitarian relief; (2) statistics on how many children have been expelled and to where; (3) the secret locations where DHS detains children prior to Title 42 expulsion; and (4) the identity of the companies that DHS had contracted with to transport and detain children. Plaintiffs received no response to their requests.

On August 27, 2020, TCRP and ICAPfiled this suit seeking to compel CBP, ICE, and DHS to conduct a reasonable search and produce records responsive to their FOIA request. 

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Counsel: Robert D. Friedman, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center

Contact: Robert Friedman, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center | rdf34@georgetown.edu

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