Author Archives: American Immigration Council

ACLU San Diego et al. v. DHS et al. (SoCal Roving Patrols FOIA)

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American Civil Liberties Union of San Diego and Imperial Counties et al v. Department of Homeland Security et al., No. 8:15-cv-00229-JLS-RNB (C.D. Cal., filed Feb. 20, 2015)

This is a Freedom of Information Act (FOIA) case challenging defendant Department of Homeland Security (DHS) and Customs and Border Protection (CBP)’s failure to respond to Plaintiffs’ request for information regarding U.S. Border Patrol’s interior enforcement / “roving patrol” operations in Southern California.

There is little publicly-available information regarding the extent or impact of Border Patrol roving patrol operations, or regarding Border Patrol agents’ respect for regulatory or constitutional limitations on their authority. In Southern California, Border Patrol agents are present throughout a number of both major metropolitan and rural areas a considerable distance from the U.S.-Mexico border, including Fallbrook, CA (seventy miles north of the U.S.-Mexico border), Laguna Beach, CA (almost ninety miles north of the U.S.-Mexico border), and Long Beach, CA (over 100 miles north of the U.S.-Mexico border).

Because Border Patrol does not release stop data or other information related to roving patrol operations, Plaintiffs filed a FOIA request with Defendants in July 2014, seeking records related to U.S. Border Patrol’s “roving patrol” operations in the San Diego and El Centro Sectors, including relevant agency policies, stop data, and complaint records.

DHS entirely ignored the request. CBP sent the ACLU a series of contradictory emails, none of which were legally adequate responses under the FOIA itself or DHS regulations. In February 2015, Plaintiffs filed suit in the Central District of California to compel Defendants to release the requested records. On June 23, the Court issued a scheduling order requiring Defendants to produce all responsive records on or before November 2, 2015.

On January 27, 2017, the Court heard arguments on the parties’ respective Motions for Summary Judgment. On February 10, 2017, the Court issued an order denying both Motions for Summary Judgment, and additionally requiring (1) that the government provide specified documents to the Court for in camera review, and (2) that both parties submit supplemental briefing. The parties submitted supplemental briefing on April 5, 2017, and subsequent replies on April 19, 2017.

On August 18, 2017, the Court heard additional arguments on the parties’ Motions for Summary Judgment. On November 6, 2017, the Court issued an order granting in part and denying in party both Motions for Summary Judgment, and additionally requiring the government to submit specified documents to the Court for in camera review. On April 19, 2018, the Court issued a supplemental order granting in part and denying in part both of the parties’ motions. The Court entered a final judgment in the case on May 11, 2018. Neither party will appeal the order, and the parties reached a settlement on costs and fees in November 2018. Productions are now completed, and ACLU hopes to publish the documents sometime in 2019.

Related documents:

Counsel: ACLU of San Diego & Imperial Counties | ACLU of Southern California | University of California, Irvine School of Law Immigrant Rights Clinic

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

ACLU of Arizona et al. v. Office of Civil Rights and Civil Liberties, DHS et al. – CBP Child Abuse FOIA Litigation

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ACLU of Arizona et al. v. Office of Civil Rights and Civil Liberties, DHS et al., Nos. 15-00247 (D. Ariz., filed Feb. 11, 2015) and 18-15907 (9th Cir., filed May 18, 2018)

This lawsuit under the Freedom of Information Act (FOIA) challenges the failure of the Department of Homeland Security (DHS) and several of its component agencies to produce records related to the abuse and mistreatment of children in the custody of U.S. Customs and Border Protection (CBP) and its sub-agency, the U.S. Border Patrol. The ACLU affiliates sought the requested records to shed light on longstanding allegations of abusive treatment of children by Border Patrol, including prolonged detention in degrading and inhumane conditions. They also sought information on how the subcomponent agencies within DHS that are responsible for investigating and responding to complaints of abuse by agency personnel—including both the Office of Civil Rights and Civil Liberties (CRCL) and the Office of the Inspector General—have handled complaints related to Border Patrol’s abuse of children.

When the government failed to produce any requested records within the statutorily-allotted time period, Plaintiffs filed suit seeking a court order compelling production.

After lengthy production delays by the agencies, the parties cross moved for summary judgment. Finally, in August 2017, the District Court ordered the government to conduct supplemental searches. The Court also ordered the government to release the names of  CBP officials and Border Patrol agents credibly alleged to have mistreated children in their custody.

The government moved for reconsideration of the District Court’s ruling that certain DHS officials’ names should be released. In March 2018, the District Court denied the government’s motion for reconsideration and again ordered the agency to release the names of agents accused of misconduct. The government appealed that order to the Ninth Circuit. Briefing was completed in February 2019 and oral argument was held in San Francisco on May 16, 2019. The case was subsequently sent to mediation.

In October 2020, the parties reached a settlement that required the Defendant agencies to re-review production documents and re-produce them to Plaintiffs with the previously-redacted names of certain individuals who had been named in connection with an allegation of abuse against a minor in DHS custody replaced with unique alpha-numeric identifiers. The agencies must re-review and re-produce the documents in accordance with the settlement on a rolling basis through April 2022. Under the settlement, the District Court retains jurisdiction over the settlement to resolve any claims of a material breach of the settlement. Following entry of the stipulated settlement agreement, the Ninth Circuit dismissed the pending appeal.

Using the CRCL productions from this lawsuit, the ACLU and the University of Chicago Law School International Human Rights Clinic published a report in May 2018 highlighting some of the egregious abuses reported by children and calling out the lack of meaningful response from DHS’ oversight agencies. The CRCL productions that form the report’s evidentiary basis are attached as an appendix to the report itself. The rest of the productions from this lawsuit were published in summer 2019 (see below).

Related Documents:

Counsel: ACLU of San Diego and Imperial Counties & Cooley, LLP

The Estate of Anastacio Hernandez-Rojas v. United States

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The Estate of Anastacio Hernandez-Rojas v. United States
No. 3:11-cv-00522-L-DHB (S.D. Cal., Third Amended Complaint filed Mar. 23, 2012)

This case challenges Customs and Border Protection (CBP) and U.S. Border Patrol’s excessive use of force.  Anastacio Hernandez-Rojas died of a heart attack on May 28, 2010 near the San Ysidro Port of Entry after agents working for the U.S. Border Patrol and CBP beat him and shot him repeatedly with a Taser. Cell phone videos taken by witnesses show Hernandez-Rojas, a Mexican national and long-time San Diego resident, on the ground surrounded by agents and calling out for help.  He was 42 years old.

In this federal lawsuit brought under Bivens, the Federal Torts Claims Act, and the Alien Tort Claims Act, Hernandez-Rojas’s family alleges that his First and Fourth Amendment rights were violated when agents beat him after he asked for help, using excessive force. They also allege that their father’s death has deprived his children of their 14th Amendment due process right to associate with their father.

Eight agents and four supervisors were named as defendants in the lawsuit. They have claimed that using force against Hernandez-Rojas was justified because he posed a threat to the officers.

In September 2014, the district court denied defendants’ motion for summary judgment.  In his order, U.S. District Court Judge M. James Lorenz wrote: “The sheer number of officers available at the scene demonstrates rather strongly that there was no objectively reasonable threat to the safety of any one other than Anastasio.”

On November 6, 2015 the Department of Justice announced that it would not criminally prosecute the agents involved in his death, a decision that angered his family and border-rights advocates.

On March 30, 2017, the court issued an order approving a $1 million settlement, to be dispersed among Mr. Hernandez-Rojas’s five children.

In March 2016, Hernandez-Rojas’ family filed a complaint against the United States with the Inter-American Commission on Human Rights. The complaint alleged several violations of the American Declaration of the Rights and Duties of Man, including violation of the prohibition against torture, violation of the right to life and liberty, and failure to investigate, prosecute, and provide full reparations. On November 5, 2022, the Inter-American Commission conducted a hearing on the complaint. On February 14, 2023, Hernandez-Rojas’s family submitted a final written observation to the Inter-American Commission.

In April 2025, the Inter-American Commission of Human Rights found that the United States violated Anastacio’s rights to humane treatment, personal integrity, and life when it subjected him to the torture that led to his death.

Documents:

Counsel: Iredale & Yoo, APC

Contact: Julia Yoo | (619) 233-1525

Additional Links:

Press Coverage:

Arreaga v. United States of America

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Arreaga v. United States of America, 5:16-cv-00007 (S.D. Texas, Complaint filed January 19, 2016)

The complainant, a United States citizen, stopped at a U.S. Border Patrol checkpoint in Texas at approximately 11 a.m. on September 4, 2014. He told the agents that he was a United States citizen and showed them his citizenship card. The agents incorrectly believed that he was carrying drugs in his vehicle. They detained and questioned him and disassembled his truck. No drugs were found. Without probable cause, they continued to detain him for a total of approximately 17 hours, finally releasing him at about 4 a.m. the morning following his initial stop. In January 2016, Plaintiff Julio Adolfo Arreaga filed a complaint in the S.D. Tex. Discovery concluded as of December 2016.

The parties agreed to Court-hosted mediation on May 16, 2017. On July 13, 2017, the case was dismissed following a settlement between the parties.

Counsel: Javier Maldonado

Contact: Javier Maldonado | (210) 277-1603 | jmaldonado.law@gmail.com

FTCA Administrative Complaint of Pregnant Minor

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FTCA Administrative Complaint of Pregnant Minor (dated July 7, 2014)

Claimant, who is a minor, was taken into Border Patrol custody in May, 2014. Shortly after being taken into custody, agents took her to a hospital where it was determined that she was five months pregnant and in good health. She was released by the hospital back to the custody of Border Patrol. Sometime after her return to the Border Patrol station, she began to experience abdominal pain. She asked to be taken back to the hospital, but agents refused. The agents insisted that she remain seated even though the pain was so great she needed to lie down. Her water broke and she began to bleed. The agents refused to render aid or take her back to the hospital. Finally, another agent came to her aid and took her to the hospital. She alleges that she lost the baby because she did not receive immediate aid. The complainant decided not to file a federal lawsuit.

Counsel: Javier Maldonado

Contact: Javier Maldonado | (210) 277-1603 | jmaldonado.law@gmail.com

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