Author Archives: American Immigration Council

FTCA Administrative Complaint Regarding Woman Who Suffered Stroke While in CBP Custody

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FTCA Administrative Complaint Regarding Woman Who Suffered Stroke While in CBP Custody (filed Mar. 12, 2013)

Ms. Takem-aishetu is a 63-year-old woman who has lived in New York for eight years.  She works as the primary caregiver of a 96-year-old disabled widow, supports her orphaned grandson, and always pays her taxes.  She is a devout religious woman who has no criminal record.  In March 2011, Ms. Takem-aishetu was returning home from a cousin’s funeral in Minnesota when her bus made a routine stop in Toledo, Ohio.  There, a Border Patrol (BP) agent boarded the parked bus, a gun visible in his holster, and questioned her about her immigration status. Ms. Takem-aishetu was arrested and placed in a BP vehicle where she was forced to wait for eight hours without food and water.  When she asked to use the bathroom, an agent escorted her at gunpoint and waited outside the open door.

Ms. Takem-aishetu finally was taken to the Sandusky Bay Processing Center close to midnight, where she spent another several hours in questioning and processing, her leg shackled to a bench.  Eventually, she was placed in a small cell with room only to sit.  After repeatedly asking agents to use the bathroom, Ms. Takem-aishetu could wait no longer and urinated on herself.  She was forced to sit all night in her urine-soaked jeans until being transferred to immigration detention at the county jail the next morning.

Ms. Takem-aishetu was extremely embarrassed about her treatment by BP and ICE agents.  She feared their threats to deport her, knowing that she would be abandoning her 96-year-old employer without care and her orphaned grandson without any financial support.  Suffering from intense stress and fear, Ms. Takem-aishetu fell ill while at the jail with nausea, dizziness, and weakness in the left side of her body.  At the hospital, doctors determined that she had suffered an acute stroke.

Ms. Takem-aishetu never had any health problems before her detention.  After an extensive medical workup, her primary care physician determined that she did not exhibit any of the risk factors for a stroke, and that it was directly connected to the tremendous stress of her detention and treatment.  Ms. Takem-aishetu continues to suffer from the lasting effects of the stroke, with near-constant pain, numbness, and partial paralysis on the left side of her body.  She relies on a cane to walk, and her speech is impaired; these changes have severely affected her way of life.  Ms. Takem-aishetu seeks damages for her mistreatment.

The government failed to respond to the administrative complaint within the six-month deadline. Ms. Takem-aishetu decided not to file a federal complaint.

Press:

Counsel: Kathryn O. Greenberg Immigration Justice Clinic, Benjamin N. Cardozo Law School

Contact: Zsuzsanna Toth | 212. 790. 0411 | toth@yu.edu

Betsy Ginsberg | 347. 683. 2387 | betsy.ginsberg@yu.edu

Askins and Ramirez v. DHS et al.

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Askins and Ramirez v. Department of Homeland Security et al., Nos. 12-CV-2600 W BLM (S.D. Cal., filed Oct. 24, 2012) and 16-55719 (9th Cir., filed May 17, 2016)

This case is about preserving the fundamental First Amendment right to photograph and monitor publicly visible law enforcement activity and challenging CBP’s abusive behavior towards those who seek to exercise this right at or near ports of entry.

Ray Askins is a U.S. citizen and environmental activist. While standing on a public street in Calexico (inside the United States), he took photographs of the exterior of the Calexico Port of Entry building to illustrate a presentation he planned to give on vehicle emissions at ports of entry. Christian Ramirez is a U.S. citizen and human rights activist who, while standing on the U.S. side of the border, photographed male CBP officers improperly frisking female travelers at the San Ysidro Port of Entry.

When they took their photographs, both Mr. Askins and Mr. Ramirez were on the United States side of the border, in areas open to the public. The matters they photographed were publicly visible. In both cases, CBP officers detained, harassed, and threatened them, temporarily confiscated their cameras, and deleted their photographs. CBP officers also physically abused Mr. Askins.

This case seeks to prevent CBP from interfering with or otherwise suppressing the public’s lawful recording of federal public activities.

In September 2013, the district court denied in part and granted in part the government’s motion to dismiss. The government then filed a motion for clarification of the court’s order on the motion to dismiss. In April 2014, the district court granted in part and denied in part the government’s motion. In this order, the district court reaffirmed its First Amendment analysis in its September 2013 order on the government’s motion to dismiss. The court, however, ordered the parties to submit supplemental briefs relating to Plaintiffs’ Fourth Amendment claims. The parties filed supplemental briefs in late spring 2014.

In January 2015, the district court issued another order granting the government’s motion in part. This order addressed Plaintiffs’ Fourth Amendment claims, and invited Plaintiffs to file an amended complaint.

Plaintiffs did so; once more, the government moved to dismiss, and Plaintiffs opposed.

In March 2016, the district court dismissed Plaintiffs’ first amended complaint. Plaintiffs appealed to the Ninth Circuit; they filed their opening brief on September 26, 2016. The CATO Institute and the Reporters Committee for Freedom of the Press filed amicus briefs in support of Plaintiffs-Appellants. Appellate briefing was completed in February 2017. In February 2018, the Ninth Circuit heard oral argument on Plaintiff’s appeal to S.D. Cal’s dismissal of the first amended complaint.

On August 14, 2018, the Ninth Circuit issued its opinion and reversed the district court’s ruling, ordering the case to be remanded for discovery. The government filed an answer on March 8, 2019, and the parties spent several months in active discovery. In September 2020, a final settlement was entered and the case was dismissed.

If you would like to understand your rights under the settlement, please visit: https://www.aclu.org/news/free-speech/you-have-the-right-to-record-law-enforcement-officers-including-at-the-border.

If you believe your First Amendment rights have been violated while photographing or recording at a land Port of Entry in the United States, please submit an intake with the ACLU using this online form: https://action.aclu.org/webform/help-us-hold-cbp-officials-accountable.

Counsel: ACLU of San Diego & Imperial Counties; Arnold & Porter Kaye Scholer LLP; First Amendment Coalition

Contact:  David Loy | First Amendment Coalition | dloy@firstamendmentcoalition.org

FTCA Administrative Complaint Against the United States Denouncing Hieleras

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FTCA Administrative Complaint Against the United States Denouncing Hieleras (filed Mar. 12, 2013)

Jose Alberto* was apprehended at the United States Texas border by Customs and Border Protection and was told by an agent that he was being taken to a “hielera” (“freezer” or “icebox”). Mr. Alberto was placed in a small, freezing cold holding 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. The cold made it difficult to sleep, and the size of the cell made it impossible for all of the men in the cell to lie down at the same time. The only water provided to the men was in a single thermos, shared by all. The water smelled like bleach and burned Mr. Alberto’s throat when he drank it. Mr. Alberto was held in one “hielera” for one day and night, and was transferred to a second similar “hielera” at another location, where he spent another day before he was ultimately transported to Broward Transitional Center in Florida.

While in the holding cells, Mr. Alberto was called out to speak with an officer. After answering some questions about his family, Mr. Alberto was told he had to sign documents printed in English, which Mr. Alberto does not speak or read. He repeatedly refused to sign the documents and asked what the documents said. The CBP agent ultimately told Mr. Alberto they were for his “deportation.” Mr. Alberto refused to sign the documents, saying he was afraid to go back to his country because he would be killed by a gang. The CBP agent told Mr. Alberto that he would send him to federal prison if he did not sign. Mr. Alberto became upset and began crying, and the CBP agent laughed and mocked him. After he continued to refuse to sign the documents, Mr. Alberto was taken back to the holding cell and again threatened with being sent to federal prison.

After arriving at the Broward Transitional Center, Mr. Alberto filed an FTCA administrative complaint. 

The government failed to respond to the administrative complaint within the six-month deadline. Mr. Alberto decided not to file a federal complaint.

*Not his actual name.

Counsel: Americans for Immigrant Justice

Contact: Jennie Santos |  jsantos@aijustice.org

Jaimes v. Garibay, et al.

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Jaimes v. Garibay, et al., No. 3:13-CV-01040-P (N.D. Tex., filed Mar. 12, 2013)

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.

At the station, Mr. Jaimes was questioned by one of the arresting agents. Mr. Jaimes informed the agent that he did not want to sign a form agreeing to be sent out of the country. He then was questioned a second time by a different agent, who told him that he had to sign, and tried to convince him that it would be better for him to do so, telling him he was going to be deported anyway. Mr. Jaimes refused to sign, which appeared to upset the agent. CBP proceeded to hold Mr. Jaimes in a cell for three hours and then transported him to another holding facility where he spent the night in a room with 10 other people.

The case was stayed by the district court in 2014 pending a decision by the Fifth Circuit in De La Paz v. Coy, which also raised the issue of the availability of a Bivens remedy to address 4th Amendment violations arising from a Border Patrol roving patrol.

Following the Fifth Circuit’s decision in De la Paz, the district court, on September 30, 2015, granted the defendants’ motion for summary judgment with respect to the Bivens action but denied summary judgment with respect to plaintiff’s FTCA claims.

In December 2015, the parties filed a joint motion for a stay pending decision on a forthcoming petition for certiorari to the U.S. Supreme Court in De la Paz v. Coy et al., which was filed in January 2016 (No. 15-888) and denied June 2017. The case was administratively closed in district court.

Counsel: De Mott, McChesney, Curtright & Armendáriz, LLP

Contact: David Armendáriz | 210.534.1844 | davida@dmcausa.com

Custody Conditions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Complaint

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

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

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

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

Counsel: Advocates for Basic Legal Equality, Inc

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

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