Drewniak v. U.S. Customs and Border Protection

Drewniak v. U.S. Customs and Border Protection, et al., No. 1:20-cv-00852 (D.N.H., filed August 11, 2020)

Throughout northern New England, the Border Patrol operates temporary checkpoints to detain hundreds – if not thousands – of individuals without any suspicion. This case challenges these checkpoints.

On August 26, 2017, Plaintiff Jesse Drewniak, a New Hampshire resident and U.S. citizen, was returning home from a fishing trip when the Border Patrol stopped him at one such temporary interior checkpoint. During this encounter, heavily-armed Border Patrol agents illegally detained and searched Mr. Drewniak for almost an hour. After detecting a small quantity of hashish oil, agents arrested Mr. Drewniak for the state law violation-level offense of unlawful possession of a prohibited substance.

In May 2018, the Plymouth Circuit Court reviewed the charges against Mr. Drewniak and fifteen other individuals arising out of the August 2017 checkpoint, eventually suppressing all the evidence as seized in violation of the Fourth Amendment and the New Hampshire Constitution. The state judge further found that Border Patrol was impermissibly using the checkpoint for the purpose of general crime control, not immigration enforcement, thereby making the checkpoint unconstitutional under federal law. The State then voluntarily dropped all charges against Mr. Drewniak and the fifteen other individuals. However, despite this victory, Border Patrol has continued to use these unconstitutional checkpoints in northern New England.

Mr. Drewniak now seeks compensatory and punitive damages against the Border Patrol agents involved in his unconstitutional search and seizure pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, as well as declaratory and injunctive relief to stop Border Patrol from conducting these illegal checkpoints in Woodstock, New Hampshire. In November 2020, defendants moved to dismiss the case for failure to state a claim and lack of subject matter jurisdiction. The parties stipulated to dismissal of claims against one defendant, and the court set a briefing schedule.

On April 8, 2021, the District Court issued an order granting in part and denying in part Defendants’ motions to dismiss. The Court dismissed count one of the complaint, which sought Bivens damages against a Border Patrol agent for violations of his Fourth Amendment rights. It denied the motion to dismiss the second count, which sought declaratory and injunctive relief precluding CBP from operating additional traffic checkpoints.

Mr. Drewniak is represented by the ACLU of New Hampshire, the ACLU of Maine Foundation, the ACLU Foundation of Vermont, McLane Middleton, Mark Sisti, and Albert Scherr.

Documents:

Counsel: ACLU of New Hampshire Foundation; ACLU of Maine Foundation; ACLU Foundation of Vermont; McLane Middleton; Mark Sisti; Albert Scherr

Contact: Gilles Bissonnette, ACLU of New Hampshire Foundation | gilles@aclu-nh.org

Doe v. Wolf

Doe v. Wolf, No. 3:19-cv-02119-DMS-AGS (S.D. Cal., filed Nov. 5, 2019) and 20-55279 (9th Cir., filed Mar. 13, 2020)

People who are seeking asylum but have been forced to wait in Mexico under the Trump Administration’s so-called “Migrant Protection Protocols” (MPP) have a right to not be returned to Mexico if it is more likely than not that they will be persecuted or tortured there. But the U.S. Department of Homeland Security (DHS) blocked such individuals from consulting with their lawyers prior to and during life-or-death interviews on this matter, known as non-refoulement interviews. The ACLU Foundation of San Diego & Imperial Counties filed a class action lawsuit to challenge this systemic denial of the right to counsel in U.S. Customs and Border Protection (CBP) custody.

On January 14, 2020, the District Court entered a preliminary injunction guaranteeing access to counsel to a class of people detained in CBP custody while awaiting and undergoing non-refoulement interviews. The District Court first found that 8 U.S.C. § 1252(a)(2)(b)(ii), which prohibits judicial review of a “decision or action” that is “in the discretion of the Attorney General or the Secretary of Homeland Security,” did not foreclose review of the Plaintiffs’ claims. The Court further found that 5 U.S.C. § 555(b), which provides that “[a] person compelled to appear in person before an agency . . . is entitled to be accompanied, represented, and advised by counsel,” applies to non-refoulement interviews. As such, the District Court ordered that “Respondents may not conduct class members’ non-refoulement interviews without first affording the interviewees access to their retained counsel both before and during any such interview.” 

The government appealed to the Ninth Circuit. After oral argument, submission of the appeal was vacated pending the Supreme Court’s disposition of Wolf, et al. v. Innovation Law Lab, et al., No. 19-1212 (Innovation Law Lab), which challenged the legality of the MPP program as a whole.

On June 21, 2021, the Supreme Court vacated the decision in Innovation Law Lab as moot, given the Biden administration’s winddown and eventual termination of the MPP program (announced on June 1, 2021). In response, the Ninth Circuit ordered the parties in Doe to submit supplemental briefing on the question of whether the District Court’s January 14, 2020 preliminary injunction should also be vacated as moot. On July 19, 2021, the Ninth Circuit concluded that because the Supreme Court had decided that the challenge to MPP as a whole in Innovation Law Lab was moot, that the narrower question presented in Doe was also moot. As a result, the Ninth Circuit remanded the case to the District Court with instructions to vacate the January 14, 2020 preliminary injunction as moot. The parties subsequently entered into a stay of the litigation.

However, on August 13, 2021, the District Court for the Northern District of Texas issued a nationwide injunction in Texas et al. v. Biden requiring the Biden administration to restart the MPP program “in good faith.” After the Supreme Court declined to stay the injunction on August 24, 2021, DHS issued a statement indicating its intent to appeal the injunction but stating that while the appeals process continues, DHS “will comply with the order in good faith.” As a result, on September 1, 2021, Plaintiffs filed a motion for reconsideration with the Ninth Circuit asking the court to vacate its July 19 order directing the District Court to vacate the preliminary injunction and to direct the District Court to reinstate the preliminary injunction based on changed circumstances. That motion is currently pending.

Documents:

Counsel: ACLU Foundation of San Diego & Imperial Counties

Contact: Monika Langarica, Immigrants’ Rights Staff Attorney, ACLU Foundation of San Diego & Imperial Counties | mlangarica@aclusandiego.org