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 Freedom of Information Act (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. Defendants filed their answer on September 20, 2021. A scheduling order was entered in December 2021.

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.

On October 15, 2021, Defendants filed a motion to dismiss for lack of jurisdiction and failure to state a claim, along with their answer to the complaint, claiming the United States has not waived sovereign immunity to the claims set for by Plaintiffs. On July 14, 2022, the court granted Defendant’s motion to dismiss in part. On July 15, 2022, Plaintiffs filed an amended complaint, which the institutional Defendants answered on August 3, 2022. On September 19, 2022, the individual defendants moved to dismiss the amended complaint for failure to state a claim.  

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


Huisha-Huisha v. Gaynor

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. On October 17, 2022, the D.C. Circuit issued an order terminating the abeyance, vacating the preliminary injunction, and remanded the case to the district court for a determination of whether all or part of the case has become moot.

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, and Plaintiffs filed their reply in support of their motions on August 11, 2021.

The district court granted Plaintiffs’ motions for class certification and a preliminary injunction on September 16, 2021, enjoining Defendants from applying the Title 42 process, including the CDC’s August 2021 order, to class members. The court agreed that the government’s policy was not authorized by statute and that class members would face “real threats of violence and persecution” if returned to their home countries. The government appealed the order to the D.C. Circuit the following day. On September 30, 2021, the D.C. Circuit stayed the preliminary injunction pending appeal, and as such, the preliminary injunction did not go into effect.

On March 4, 2022, the U.S. Court of Appeals for the D.C. Circuit affirmed the district court’s preliminary injunction in part, holding that the government may expel Plaintiffs, but only to places where they will not be persecuted or tortured. As a result, the preliminary injunction is now in effect. The court of appeals remanded the case to the district court to decide in the first instance whether the Title 42 expulsion rule is arbitrary and capricious.

On remand, Plaintiffs filed a motion for a preliminary injunction and a motion for partial summary judgment. On November 15, 2022, the district court issued an order holding that the U.S. government acted arbitrarily and capriciously in instituting the Title 42 policy and enjoined Defendants from continuing to apply the policy. The court granted Defendants’ request to stay the injunction until December 21, 2022.

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: Shaw Drake | ACLU of Texas | sdrake@aclutx.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 Service of San Diego

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. Defendants filed their answer on October 8, 2020, and the parties have filed periodic status reports as production in response to the FOIA request continues.

Documents:

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

Additional Links:

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, 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 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 continues 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 Customs and Border Protection (CBP) from operating additional traffic checkpoints. On December 7, 2021, Plaintiff’s filed an amended complaint. On March 22, 2022, the official defendants moved to dismiss the amended complaint. As of November 2022, the motion to dismiss has been fully briefed and a decision is pending from the court.

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. Defendants filed their response to the motion on September 17, 2021, and Plaintiffs filed their reply on September 20. On September 24, 2021, the Ninth Circuit denied Plaintiffs’ motion for reconsideration.

Back at the district court, Defendants argued that the matter was moot and, in the alternative, moved to stay litigation pending the Supreme Court’s decision in Texas v. Biden. On March 14, 2022, the district court denied Defendants’ motion and ordered them to answer the complaint by May 3, 2022. Defendants have requested several extensions of time to answer the complaint. As of November 2022, no answer has been filed.

Documents:

Counsel: UCLA Center for Immigration Law and Policy

Contact: Monika Langarica | UCLA Center for Immigration Law and Policy | langarica@law.ucla.edu