Author Archives: American Immigration Council

Osorio v. U.S. Customs and Border Protection

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Osorio v. U.S. Customs and Border Protection, 8:14-cv-01758-DOC-AN (C.D. Cal. filed Nov. 4, 2014)

On June 6, 2014, Mr. Osorio filed with CBP a request under the Freedom of Information Act (FOIA) seeking “any and all records” under his name.  Mr. Osorio sought the information in order to obtain records from an incident at the border several years earlier, which potentially affected his eligibility to apply for lawful permanent resident status.  In general, with some exceptions, the FOIA statute requires agencies to respond to requests within 20 business days.  After having waited five months for CBP to produce his records, Mr. Osorio filed a lawsuit seeking a court order forcing CBP to conduct a search and produce records related to his request.  Immediately after filing, CBP produced the documents. Mr. Osorio and CBP subsequently settled the case and jointly moved to dismiss it, with the government agreeing to pay costs and attorney fees.

Counsel: Stacy Tolchin

Contact: Stacy Tolchin | 213-622-7450 | stacy@tolchinimmigration.com

Jacobson et al. v. DHS et al.

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Jacobson et al. v. DHS et al., Nos. 14-02485 (D. Ariz., filed Nov. 20, 2014) and 16-17199 (9th Cir., filed Nov. 30, 2016)

This is a First Amendment case brought against the U.S. Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP), and certain named Border Patrol agents for their interference with Plaintiffs’ right to protest, observe, and record law enforcement activity at the U.S. Border Patrol’s interior checkpoint on Arivaca Road in Arivaca, Arizona near the U.S.-Mexico border. Although CBP claimed that the Arivaca Road checkpoint was temporary, it had been in continuous existence since 2007. Many Arivaca residents had to drive through the checkpoint every day to reach jobs, schools, doctors, and shops.

Plaintiffs are members of a community organization called People Helping People (“PHP”), which organized a “checkpoint monitoring campaign” in response to public complaints that Border Patrol agents were violating individuals’ civil rights at the checkpoint. A number of these incidents were detailed in an administrative complaint filed with the DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties.

As part of the checkpoint monitoring campaign, community volunteers stood on a public right-of-way adjacent to the Arivaca Road checkpoint and took notes, photographs, and video recordings of Border Patrol agents’ conduct to collect data on checkpoint activity and deter abuse. Other individuals, also standing on the public right of way, held up signs protesting the checkpoint. Soon after the volunteers began their monitoring activity, Border Patrol agents, with the assistance of local law enforcement, ordered the monitors to move to a spot much farther away from the checkpoint and forbade the monitors from entering the area immediately surrounding the checkpoint. The agents eventually cordoned off this area, unilaterally deeming it “the enforcement zone.” Under threat of arrest, the monitors and protestors complied with the agents’ order to relocate. From outside the enforcement zone, however, it was virtually impossible for the monitors to observe agents’ conduct at the checkpoint.

Plaintiffs brought this suit, alleging that Defendants interfered with their First Amendment right to protest, observe, and record law enforcement activity at the checkpoint, as well as retaliated against them for engaging in constitutionally protected activity. Plaintiffs sought an injunction that would prevent Border Patrol agents from restricting their monitoring activity on the public right of way near the Arivaca Checkpoint.

In January 2015, Plaintiffs moved for a preliminary injunction. After oral arguments in April, the court denied Plaintiffs’ motion in September 2015. Defendants then moved to dismiss or, in the alternative, for summary judgment. In September 2016, the presiding magistrate judge granted Defendants’ motion and entered judgment against Plaintiffs, holding that the Arivaca checkpoint was a nonpublic forum and that the restriction placed on Plaintiffs’ speech was a valid “time, place, and manner restriction.”

Plaintiffs appealed in November 2016. Briefing was completed in August 2017 and oral argument held in December 2017, in San Francisco.

On February 13, 2018, the Ninth Circuit vacated the district court’s grant of summary judgment to Defendants, concluding that the limited record before the district court did not permit it to conclude that the enforcement zone was a nonpublic forum or, if it was, whether the government satisfied the requirements for excluding Plaintiffs from a nonpublic forum. The Ninth Circuit then remanded the case to allow discovery to proceed.

On July 15, 2020, Plaintiffs moved for sanctions on the basis of Defendants’ spoliation of relevant evidence and submission of a declaration without the requisite personal knowledge. After briefing and oral argument, the magistrate judge denied Plaintiffs’ motion for sanctions without prejudice.

On June 14, 2021, the parties filed a joint stipulation to dismiss the case with prejudice. The case is now closed. At the end of July 2021, the original Arivaca Checkpoint was dismantled.

Documents:

Related documents:

Counsel: ACLU of Arizona; ACLU of San Diego and Imperial Counties; Covington and Burling

In Re: Honduran minor

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In re: Honduran minor

In this matter, a Honduran citizen in removal proceedings moved to terminate the proceedings based upon the treatment he received as a minor in both CBP and ICE custody. In 2013, when he was 17 years old, he traveled alone from Honduras to the United States. Once in the United States, he was apprehended by a Border Patrol agent. He informed the agent of his age, but the agent responded that he did not believe him. Although he was initially placed in a holding cell with children, he was soon moved to one with only adult men, none of whom were related to him. He was not provided with the notice of rights that CBP is required to serve on minors. Instead, he was coerced into signing a voluntary departure form which incorrectly listed his birth date as a year earlier, thus implying that he was 18 rather than his actual age of 17.

After signing the voluntary departure order, he was made to shower in a cell with adult males. Soon after this, he was put on a plane and transferred to ICE custody in New Jersey. In all, he spent 8 days detained with adult men before finally convincing ICE officials that he was a minor.

In his motion to terminate, the Honduran citizen alleged that CBP and ICE officials violated his rights under the INA, federal regulations, and the settlement agreement in Reno v. Flores, 507 U.S. 292, 296 (1993). He argued that termination was a proper remedy because the rights that were violated were fundamental ones; because the officials conduct shocked the conscience; and because he suffered prejudice affecting his rights and the fundamental fairness of the removal proceeding.  Following the approval of the Honduran citizen’s I-360 petition for Special Immigrant Juvenile Status, the parties voluntarily terminated this action.

Counsel: The Door, Legal Service Center

Contact: Anthony Enriquez and Elizabeth Jordan | (212) 941-9090, ext. 3426 | ejordan@door.org

Castro Romo v. United States of America

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Castro Romo v. United States of America, No. 4:12-041 (D. Ariz. Feb. 6, 2015)

On February 6, 2015, the district court awarded the plaintiff, Jesus Castro Romo, $497,943 as damages for injuries he suffered when he was shot by a Border Patrol agent. Following a five day trial, the court found that the Border Patrol agent, who was on horseback, caught up with Mr. Castro and others as they were walking through the Arizona desert. Mr. Castro ran from the agent, who pursued him. Upon catching up to him, the agent threatened Castro, yelled obscenities at him, hit him with the horse’s reins, had the horse poke him from behind, and ultimately shot Castro in his lower back. The court credited Mr. Castro’s version of events and rejected as less credible the agent’s version that Castro was about to throw a rock at him—both because the agent changed his story over time and also because the agent previously had been convicted of taking a bribe while working for the Border Patrol.

Based upon these facts, the court concluded that the agent had committed an intentional battery under Arizona law; that his use of a gun constituted the use of deadly force; that he was not justified in using deadly force; and that the unresolved question of whether Castro had been operating as a “coyote” did not change the fact that it was unreasonable for the agent to use deadly force under these circumstances. The court considered Castro’s action in running from the agent and reduced the damage award by 10%.

The decision sets out in detail the evidence supporting the various types of damages and the court’s calculations of these damages, including past and future medical and psychiatric expenses, economic damages, and pain and suffering. On March 5, 2015, Mr. Castro filed a motion requesting that the court amend its findings of fact and conclusions of law and enter a new judgment increasing the amount of damages awarded. On July 21, 2015, the court agreed to recalculate Mr. Castro’s damages for future pain and suffering and loss of enjoyment of life to account for the effect of inflation. The court increased the original damages award by nearly $20,000 to a new total of $516, 320.82.

Counsel: Risner and Graham

Contact: William J. Risner | (520) 622-7494

In the Matter of XXXXX

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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 immigration judge denied the motion to terminate proceedings on February 4, 2015.  The Board of Immigration Appeals subsequently denied an interlocutory appeal.

Counsel: Bryan Johnson

Contact:  Amoachi & Johnson, PLLC | (631) 647-9701 | Bryan@amjolaw.com

Hernandez v. United States of America, sub nom. Hernandez v. Mesa

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Hernandez v. United States of America, Nos. 12-50217, 12-50301 (5th Cir.), sub. nom, Hernandez v. Mesa, No. 15-118 (U.S.)

On June 7, 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, was playing with a group of friends on the Mexican side of the border near the Paso del Norte Bridge in El Paso, Texas. The boy and his friends were playing a game in which they ran up the incline of a cement culvert, touched the fence separating the US and Mexico and then ran back down the incline. While they were playing, U.S. Border Patrol Agent Jesus Mesa, Jr. stopped one of Hernandez’s friends, and Hernandez retreated and observed from beneath the pillars of the Paso del Norte Bridge (on the Mexico side). Agent Mesa, standing on U.S. soil, fired at least two gun shots from within the country. One of the bullets hit the boy in the face and killed him.

The boy’s parents sued, raising claims against the United States, Agent Mesa, and unknown federal employees. The district court dismissed the claims for various reasons. On June 30, 2014, a three-judge panel of the Fifth Circuit Court of Appeals reversed the lower court in part and affirmed in part. Although the Court affirmed parts of the district court’s decision, significantly, it ruled that the boys’ parents could bring a Fifth Amendment claim against Agent Mesa. In so holding, the court determined that the child had a Fifth Amendment right to be free from actions that “shock the conscience.” Both the United States and Agent Mesa asked the Fifth Circuit to rehear (reconsider) the court’s decision.

On November 5, 2014, the court granted en banc rehearing and vacated its earlier decision. On January 21, 2015, the en banc panel heard oral argument. On April 24, 2015, the Fifth Circuit issued an en banc opinion. On the question of the violation of Sergio’s rights under the Fourth Amendment, the court held that Plaintiffs could not assert a Fourth Amendment claim because Sergio had no significant voluntary connection to the United States and because was physically in Mexico when Agent Mesa shot him. The court further held that Plaintiffs could not assert a Fifth Amendment claim because, at the time of the shooting, no case law reasonably warned Agent Mesa that the prohibition on excessive force applied in this situation.

On October 11, 2016, the Supreme Court granted certiorari and agreed to hear the case. On June 26, 2017, the Supreme Court vacated the judgment of the Fifth Circuit and remanded the case for further proceedings. In its opinion, the Court first addressed the Bivens claim. It determined that a recently decided Supreme Court decision—Ziglar v. Abbasi, which laid out special factors which counsel “hesitation” in applying a Bivens remedy—would inform the analysis of the Bivens question. The Court remanded to give the parties “the opportunity to brief and argue [Abbasi’s] significance” in answering that question. Second, the Court declined to resolve the Fourth Amendment issue before the Court of Appeals could weigh in under the guidance provided by Abbasi. Finally, with respect to the Fifth Amendment claims regarding Mesa’s qualified immunity, the Court held the Fifth Circuit erred when it granted qualified immunity because Hernandez was a noncitizen “who had no significant voluntary connection to…the United States.” Since that fact was not known to Mesa at the time he shot Hernandez, extending qualified immunity was not appropriate. The Court further declined to address the government’s arguments that Mesa was entitled to qualified immunity regardless of his uncertainty about Hernandez’s nationality at the time of the shooting, and that petitioners’ claim was not cognizable at all under the Fifth Amendment.

On remand from the Supreme Court following its decision in Ziglar v. Abbasi, 137 U.S. 1843 (2017), the Fifth Circuit en banc held that a cross-border shooting presented a “new context” for which federal courts do not have the authority to find an implied damages action under Bivens v. Six Unknown Named Agents of the FBI, 403 U.S. 388 (1971). As a result, the Fifth Circuit dismissed plaintiffs’ Bivens claims. On May 28, 2019, the Supreme Court granted certiorari for a second time.

On February 25, 2020, the Supreme Court issued a decision holding that Bivens was unavailable applying the two-part test outlined in Abbasi. The court first determined that the Hernandez family’s Bivens claims arose in a new context. Turning to the second step of the test, the court found “multiple, related factors” counseling hesitation about extending Bivens. The Hernandez family’s case implicates foreign relations, the court reasoned, because of the “legitimate and important interests” of both the United States and Mexico “that may be affected by the way in which this matter is handled.” “It is not our task,” the court said, “to arbitrate between them.” The court also held that the case implicates the “conduct of agents positioned at the border,” which has a “clear and strong connection to national security.” Writing in dissent, Justice Ginsburg argued that holding a rogue, low-ranking officer accountable for killing a teenager would not undermine U.S. diplomacy or national security.

Press Coverage

Edwards v. United States of America

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Edwards v. United States of America, No. 0:13-cv-02336-JRT-JJK (D. Minn., filed Aug. 26, 2013)

Adijat Edwards arrived at the Minneapolis-St. Paul International Airport from Nigeria.  U.S. Customs and Border Patrol (“CBP”) officers detained her upon arrival.  The officers confiscated $4,000 worth of her jewelry and, days later, forced her to withdraw $1,200 in cash using her bank card.  The officers told Ms. Edwards that the money was necessary to pay for her return flight to Nigeria as part of expedited removal proceedings.

Edwards later sued the United States for the torts of conversion and negligence based on the CBP officers’ misconduct.  The United States filed a motion to dismiss, which Edwards opposed.  The Court granted the government’s motion in most respects, but allowed the claim for conversion of property to move forward.  Following the Court’s decision, the parties reached a settlement. The Department of Homeland Security brought Edwards back to the United States; thereafter, Edwards obtained her green card and recently naturalized.

Counsel: Richard L. Breitman | (612) 822-4724 | breitman@ix.netcom.co

Moreno v. United States Customs and Border Protection Officer Mario Unate

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Moreno v. United States Customs and Border Protection Officer Mario Unate and the United States of America., No. 3:14-CV-04266-B (N.D. Tex., filed Dec. 3, 2014)

On December 2, 2012 around 5pm, Jorge Moreno Villegas, who is Hispanic, was driving a pick-up truck on a highway outside of Ozona, Texas with a Hispanic colleague as a passenger.  The men were on their way home from work.  Passing in the opposite direction, a Border Patrol agent saw the two men and, turning his vehicle around, squeezed it in between Mr. Moreno’s truck and the vehicle behind it. It is undisputed that Mr. Moreno had not committed any driving violations.  The agent stopped Mr. Moreno and began questioning him and his passenger about their immigration status and citizenship.  The men declined to respond.  The agent then began questioning them in Spanish and ordered Mr. Moreno to exit the truck.  The agent proceeded to handcuff Mr. Moreno and place him in the back of his vehicle.  He did the same for the passenger.

On December 3, 2014, Mr. Moreno filed a complaint against the agent.  He alleges that the agent stopped him without consent or legal authority and was motivated solely by his Hispanic appearance and that of his passenger.  Mr. Moreno brings a claim against the agent for violating the Fourth Amendment to the United States Constitution and an FTCA claim against the United States for false imprisonment and assault.

On February 12, 2015, Defendants moved to dismiss Mr. Moreno’s FTCA claim for false imprisonment on the basis that he had failed to plead facts regarding his immigration status, and that the arrest would have been lawful if he had told the agent that he was not legally present in the United States. Finding that the Border Patrol agent had pulled Mr. Moreno over solely based on his Hispanic appearance, the Court concluded that he lacked reasonable suspicion or probable cause for the stop and thus denied Defendants’ motion.

In late November 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). On June 26, 2017, the Supreme Court denied the petition for writ of certiorari in De la Paz. Following the parties’ subsequent stipulation of dismissal, the district court dismissed the case on January 4, 2018.

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

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

ACLU of San Diego and Imperial Counties v. DHS et al. (PERF Report FOIA)

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ACLU of San Diego and Imperial Counties v. US Department of Homeland Security, US Customs and Border Protection, No.  3:14-cv-01272-BTM-JMA (S.D. Cal., filed May 22, 2014)

In 2013, following intense public pressure and a letter from sixteen members of Congress calling upon Customs & Border Protection (CBP) to address numerous incidents involving excessive force, CBP undertook a comprehensive review of its use of force policies and practices. As part of this review, CBP commissioned a report from the Police Executive Research Forum (PERF), a non-partisan law enforcement think tank based in Washington, DC. PERF completed its review and issued a 23-page report that was highly critical of CBP’s use of force policies and practices. CBP refused to release the report or disclose PERF’s recommendations, and indicated that it would not adopt those recommendations.

In February 2014, the ACLU of San Diego’s Border Litigation Project filed a Freedom of Information Act (FOIA) request with CBP seeking immediate disclosure of the report. CBP failed to respond to the request, forcing the ACLU to file suit May 22, 2014 to compel disclosure.

The following week, CBP finally released the full report, along with a revised Use of Force Policy Handbook that reflected many of PERF’s recommendations. The parties then stipulated to dismissal of the case on June 19, 2014. The case is now closed.

Counsel: ACLU of San Diego and Imperial Counties

Administrative Complaint to DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties on Behalf of Unaccompanied Children Abused by CBP

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Administrative Complaint to DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties on Behalf of Unaccompanied Children Abused by CBP

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

Contact:  Alexandra Fung | National Immigrant Justice Center |  AFung@heartlandalliance.org

Royce Murray | National Immigrant Justice Center | RMurray@heartlandalliance.org