Author Archives: American Immigration Council

Complaint by the ACLU to the Department of Homeland Security Denouncing Interior Checkpoint Abuses

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Complaint by ACLU of Arizona and ACLU Border Litigation Project to DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties Denouncing Interior Checkpoint Abuses

On January 15, 2014, the ACLU of Arizona and the ACLU Border Litigation Project submitted an administrative complaint to DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties concerning abuses committed by Border Patrol agents at interior vehicle checkpoints in southern Arizona.  The complaint was submitted on behalf of 15 U.S. citizens, aged 6-69 years old, and detailed 12 incidents in which their rights were violated when they were stopped at 6 checkpoints over a period of a year and a half.

The complaint calls for the investigation of all of the incidents identified; a comprehensive review of all complaints regarding Border Patrol checkpoints over the past five years; a thorough review of Border Patrol checkpoint policies and practices to ensure that operations are in fact limited to briefly verifying citizenship and that agents are receiving guidance regarding the limits of their authority; and a review of all policies and procedures related to service canines, in light of widespread reports of “false alerts” by the dogs.

Counsel: ACLU of Arizona

Contact: James Lyall | ACLU of Arizona | 602.650.1854 | jlyall@acluaz.org

Americans for Immigrant Justice, Inc. v. CBP, et al. (Rio Grande Hieleras FOIA)

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Americans for Immigrant Justice, Inc. v. CBP, et al.
No. 1:14-cv-20945 KMW (S.D. Fla. Filed Mar. 13, 2014)

Americans for Immigrant Justice, Inc. (AI Justice) has sued CBP and DHS under the Freedom of Information Act (FOIA) for their failure to produce any records in response to a request which sought records pertaining to CBP’s short-term detention policies and procedures, particularly as implemented in the Rio Grande Valley (Valley) in Texas.  In 2013, AI Justice interviewed over 100 individuals who had been detained in CBP holding cells in the Valley prior to being transferred to ICE detention in Miami.  These individuals uniformly reported deplorable conditions in the holding cells. They reported that Border Patrol agents refer to the cells as “hieleras,” which is Spanish for “iceboxes.”  The agents use this term because they keep the temperatures in the cells unbearably low, so that the detainees always are extremely cold.  Additionally, the holding cells are overcrowded; have no beds, although most detainees reported being there at least several days, with some being held up to two weeks; have no bathing facilities and few toiletries; and have toilets that are out in the open.  The detainees also complained of being served inadequate food.  The AI Justice FOIA seeks records relating to these holding cells for the period 2008 through 2013.

CBP finally produced some responsive records, and the parties subsequently agreed to dismiss the case by stipulation on September 10, 2015.

Counsel: Americans for Immigrant Justice

Contact: Jennie Santos | jsantos@aijustice.org

Doe v. El Paso County Hospital District, et al.

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Doe v. El Paso County Hospital District, et al., No. 3:13-cv-00406  (W.D. Tex., filed Dec. 18, 2013)

Jane Doe sued several CBP officers in their individual capacity (as well as medical personnel and a hospital) after being subjected to six hours of increasingly invasive searches of her body in violation of the United States Constitution.  She seeks both compensatory and punitive damages.

Jane Doe is a 54-year-old United States citizen who, when returning from a visit to Mexico and after having her valid passport swiped, was randomly picked by CBP officers for additional screening.  She was sent to secondary inspection and frisked by two female officers, one of whom put her finger in the crevice of Ms. Doe’s buttocks.  Although no contraband was found, she was placed in a line with others, where a dog allegedly alerted CBP officers that she possessed contraband.  She was not carrying any contraband, however, and thus the alert was either a false one or did not occur.  Thereafter, she was strip-searched by CBP officers and examined with a flashlight.  When this revealed no contraband, the defendant CBP officers transported her in handcuffs to the hospital, where she was forced to take a laxative and monitored while having a bowel movement.  Despite no evidence of contraband, she was then subjected to an x-ray, a physical examination of her vagina and rectum, and a C-T scan.  After each of these exams, defendants insisted on proceeding to the next, more invasive exam despite the fact that none of them produced any evidence.  After the C-T scan, Ms. Doe was informed that she could sign a statement indicating voluntary consent to the searches, in which case CBP would pay the hospital bill; if she refused to sign the consent form, she was told she would be billed for the hospital’s expenses.  She refused to sign and subsequently was billed $5,000.

On December 18, 2013, Ms. Doe filed a complaint against various CBP officers alleging constitutional violations for unreasonable seizure, false arrest, false imprisonment, unreasonable search, and deprivation of due process under Bivens. Her complaint also asserted multiple §1983 claims against the medical facilities and staff involved. The claims against the medical staff and facilities were subsequently settled for $1.1 million. The case against CBP continues.

In July 2015, Plaintiff filed an amended complaint, which the CBP Defendants answered in November 2015.  On June 14, 2016, the District Court accepted the parties’ stipulation of dismissal.  On July 21, 2016, the ACLU announced that CBP had agreed to pay Plaintiff $475,000.

Counsel: Edgar Saldivar, Rebecca Robertson | ACLU of Texas

Laura Schauer Ives, Kristen Love, Jesse Hale | ACLU of New Mexico

Contact: Edgar Saldivar | ACLU of Texas | esaldivar@aclutx.org

Laura Schauer Ives | Kennedy Kennedy & Ives, LLC | LSI@civilrightslawnewmexico.com

Von Der Haar v. Leiba, et al.

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Von Der Haar v. Leiba, et al., No. 1:14-cv-247 (S.D. Ind., filed Feb. 19, 2014)

Ms. Christine Von Der Haar sued two CBP officers individually for their role in unlawfully detaining and questioning her at an airport in violation of the Fourth Amendment to the United States Constitution.   Ms. Von Der Haar, a senior lecturer at Indiana University, accompanied a friend to the airport to pick up computer equipment he had shipped separately to the United States.  At the airport, she and her friend, who was in the United States on a valid B1/B2 visa, understood that they were there simply to pick up the computer equipment.  Instead, a CBP officer immediately asked them if they planned to marry.  They were then separated by CBP officers.  Ms. Von Der Haar was twice taken into a back room by the defendant officers, whom she believed were armed and who stood guard at the door and questioned her about her sexual relationship with her friend.  They specifically questioned her about their email communications.  Because the computer equipment shipped by the friend did not include his hard drive, the only way that the CBP officers could have known of the emails was if someone had surreptitiously monitored their communications.  Ms. Von Der Haar seeks compensatory damages for her unlawful detention.

A settlement conference was held on February 6, 2015, and resulted in the parties’ agreement on settlement terms. The case was dismissed with prejudice on April 14, 2015, with each party to bear its own costs.

Counsel: Kenneth J. Falk, Gavin M. Rose | ACLU of Indiana

Contact: Kenneth Falk | ACLU of Indiana | 317-635-4105 | kfalk@aclu-in.org

Muniz-Muniz, et al. v. United States Border Patrol, et al.

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Muniz-Muniz, et al. v. United States Border Patrol, et al., No. 09-02865 (N.D. Ohio, filed Dec. 10, 2009); No. 12-4419 (6th Cir.)

Fifteen individuals and two workers’ rights organizations brought this lawsuit to challenge Border Patrol (BP) agents and three local law enforcement agencies and their officers for their systematic racial profiling of Hispanic residents in three Ohio towns.  Plaintiffs have been stopped and questioned about their immigration status while driving, pumping gas, or walking their children home from school.  Plaintiffs allege that BP agents engaged in a pattern or practice of initiating these stops solely on the basis of their Hispanic appearance and did not have any reasonable suspicion or probable cause to suspect that they were present without authorization when they did so.  Additionally, the suit alleges that BP encouraged local law enforcement agencies to profile Hispanics and detain them for BP.

There have been considerable developments in this case since the original complaint was first filed in December 2009.  The parties have completed discovery; Plaintiffs have dismissed without prejudice their claims for monetary damages and claims against the federal agents in their individual capacity; and Plaintiffs have settled their claims against the three local law enforcement agencies for damages, attorney fees, and the adoption of non-discriminatory policing policies.  Additionally, Plaintiffs successfully appealed the lower court’s dismissal for lack of jurisdiction (sovereign immunity) to the Sixth Circuit Court of Appeals.  In its December 2013 decision, the Sixth Circuit reversed and remanded the district court’s holding, concluding that § 702 of the Administrative Procedures Act conferred jurisdiction upon the court to consider the remaining claims in the suit—all non-monetary in nature—without being limited by the requirements established by § 704 of the Act.

Back in district court, Judge Jack Zouhary denied plaintiffs’ motion to compel discovery related to the use of racial slurs by Border Patrol. The court also refused to let plaintiffs add two Federal Tort Claims Act (FTCA) cases to the suit, which had been separately filed against the United States regarding the conduct of BP agents.

On February 24, 2016, Judge Zouhary found in favor of the defendants on all claims. The court held that plaintiffs failed to prove a Fifth Amendment violation of equal protection; that anecdotal evidence proffered by plaintiffs failed to amount to a “pattern or practice” of racially profiling Hispanics; and that Border Patrol agents’ use of the word “wetbacks” merely represented “isolated instances of poor judgment.” Furthermore, Judge Zahoury held that plaintiffs failed to establish a Fourth Amendment violation of the right against unreasonable search and seizure. Despite plaintiffs’ testimony that they believed that they were unable to leave during police interrogations, the court found that, in all cases, the encounters either did not constitute seizures or were lawful interrogations or seizures based on reasonable suspicion or probable cause.

Plaintiffs filed a notice of appeal to the Sixth Circuit on April 19, 2016. The Sixth Circuit affirmed the district court’s decision on August 24, 2017.

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Counsel: Advocates for Basic Legal Equality, Inc. | Murray & Murray Co., L.P.A.

Contact: Mark Heller | ABLELAW | 419.255.0814 | mheller@ablelaw.org

Vargas Ramirez v. United States of America

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Vargas Ramirez v. United States of America, No. 2:13-cv-02325 (W.D. Wash., filed Dec. 27, 2013)

Mr. Gustavo Vargas Ramirez brought this Federal Tort Claims Act lawsuit against the United States for false arrest, false imprisonment, negligent and intentional infliction of emotional distress, and abuse of process arising from his unjustified arrest at the hands of Border Patrol (BP).

On June 23, 2011, Mr. Vargas was stopped by the Anacortes, Washington police, allegedly for failing to use his turn signal. He provided a valid license, registration, and proof of insurance. Despite this, the police officer called BP to check on Mr. Vargas’s immigration status. After failing to find any immigration or criminal history on Mr. Vargas, the BP agent asked the police officer to allow him to speak to Mr. Vargas directly, but Mr. Vargas refused to answer any of the agent’s questions without talking to a lawyer. The agent then instructed the police officer to detain Mr. Vargas, despite lacking any legal basis for doing so. Based on this request, the police officer transported Mr. Vargas, in handcuffs, to the city jail, where he waited in a cold prison cell until a BP agent arrived and took him to a nearby BP station. Once at the station, Mr. Vargas continued to refuse to answer any questions without a lawyer. The agents on duty ignored his efforts to assert his rights and attempted to pressure him into signing various documents without first explaining their contents to him. Mr. Vargas was eventually transferred to the Northwest Detention Center, where he was detained for almost ten weeks. His case was subsequently administratively closed.

The BP report of what transpired on June 23, 2011 contains blatant misrepresentations that purport to provide a legal justification for BP’s decision to have Mr. Vargas arrested, showing the agents involved knew their conduct was unlawful. The report wrongly states, for instance, that the Anacortes police officer called BP for help with interpretation issues and that a BP agent arrived at the scene of the traffic stop, where he took custody of Mr. Vargas after the latter admitted that he had been born in Mexico. Such an interaction never happened.

Mr. Vargas first filed formal administrative complaints against both the Anacortes Police Department and Border Patrol in mid 2013. He settled his claims against the Anacortes Police Department without going to trial. His complaint against Border Patrol went unanswered, however, and Mr. Vargas filed a complaint in the U.S. district court for the Western District of Washington seeking damages for the violations BP inflicted upon him. Following Mr. Vargas’s defeat of the government’s motion to dismiss or for summary judgment, the parties undertook discovery, after which they filed cross motions for summary judgment. On March 23, 2015, the district court entered an order granting Mr. Vargas’s motion for summary judgment with respect to the claims of false arrest and false imprisonment, and dismissed the secondary claims. The parties reached a settlement, agreeing to damages in the amount of $10,000. As a result of the settlement the district court issued a final order dismissing the claim on March 31, 2015.

Press: 

Counsel: Northwest Immigrant Rights Project | Bean Porter Hawkins PLLC

Contact: Matt Adams | NWIRP | 206.957.8611 | matt@nwirp.org

Ramirez-Rangel, et al. v. Kitsap County, et al.

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Ramirez-Rangel, et al. v. Kitsap County, et al., No. 12-2-09594-4 (Wash. Super. Ct., filed Jan. 31, 2012, decided Aug. 16, 2013)

Three individuals brought this lawsuit against Kitsap County and two Kitsap County deputy sheriffs for false arrest and violations of the Washington State Constitution.

Plaintiffs Samuel Ramirez Rangel, Leticia Gonzalez Santiago, and Jose Solis Leon were harvesting shellfish one February evening in 2010 when two Kitsap County deputy sheriffs noticed them speaking Spanish. The deputies waited for the group to exit the beach and followed their truck, eventually pulling them over to allegedly investigate a defective headlight and their shellfish licenses. Although the deputies resolved all issues relating to the headlight and shellfish, they prolonged the traffic stop to question the plaintiffs about their immigration status. The deputies proceeded to call U.S. Border Patrol to inform them they had stopped some individuals they suspected of having immigration issues, offering to detain them until Border Patrol could arrive. The deputies then called for additional law enforcement assistance and, after ordering the plaintiffs to sit in their truck, the officers kept the truck surrounded until Border Patrol agents arrived at the scene.

The court dismissed the false arrest claim but held that local law enforcement officers violate Article 1, Section 7 of the Washington State Constitution when they prolong a detention to question individuals about their immigration status, citizenship status, and/or country of origin. The court clarified that even when officers have reasonable suspicion or probable cause to seize someone for a legitimate reason unrelated to immigration enforcement, they are constitutionally forbidden from extending a detention to interrogate that detainee as to her or his immigration status once the officers have decided not to arrest that person for the original offense.

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Counsel: Northwest Immigrant Rights Project | American Civil Liberties Union of Washington State | Stoel Rives LLP

Contact: Matt Adams | NWIRP | 206.957.8611 | matt@nwirp.org

Frias v. Torrez et al.

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Daniel Frias v. Torrez et al., No. 3:12-CV-1296-B (N.D. Tex., filed Apr. 26, 2012) sub nom. De la Paz et al. v. Coy et al., No. 15-888 (U.S.)

Daniel Frias was driving a four-door pick-up truck on a highway outside of Abilene, Texas with a white colleague as a passenger when a Border Patrol agent stopped his vehicle.  It is undisputed that he had not committed any driving violations.  The Border Patrol agent justified the stop solely on the basis that he allegedly saw shapes in the back seat that appeared to be bodies, and that the route was a known one for smuggling.  Frias disputed that there was anything in the back seat at all.  Upon being stopped, Frias stated that the agent asked him for identification, that he produced his valid New Mexico driver’s license and that he was handcuffed almost immediately after this.  His white colleague was asked for his driver’s license and then not asked any additional questions.  Frias claims that the stop violated the Fourth Amendment to the United States Constitution and was motivated solely by his Hispanic appearance, and also that the agent committed the torts of false arrest and assault.

On October 31, 2013, the district court denied the government’s motion for summary judgment with respect to the constitutional claims against the individual Border Patrol agent and the tort claims against the United States.  The court found that the dispute as to the facts prevented it from granting the government’s motion.  Specifically, if there was nothing in the back seat of the truck, as Frias maintained, then the stop – which took place hundreds of miles from the border and involved no other suspicion of wrongdoing – would not have been justified under the Fourth Amendment.  For similar reasons, the court could not grant the United States’ motion for summary judgment on the false imprisonment and assault tort claims.

On December 30, 2013, the defendant Border Patrol agent filed an interlocutory appeal to the Fifth Circuit. The appeal raised two issues:

  1. Whether the district court improperly extended to a “new context” the remedy for unconstitutional law enforcement conduct first recognized in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); and
  2. Whether the agent was entitled to qualified immunity from suit.

The parties fully briefed these issues. The National Immigration Project of the National Lawyers’ Guild and the American Immigration Council submitted an amicus brief addressing the Bivens issue. Amici argued that the claims fell within Bivens’ core holding and purpose; the Immigration and Nationality Act was not a remedial or compensatory statute; there were no special factors counseling against a Bivens remedy in a case such as this; and the defendant’s position would create virtual immunity for unconstitutional conduct by immigration agents.

After hearing oral argument on September 3, 2014, the Fifth Circuit – in a consolidated opinion with De La Paz v. Coy – reversed the District Court on May 15, 2015.  The court held that a Bivens action was not available to redress the Border Patrol’s violation of the Fourth Amendment rights of an undocumented noncitizen. Notwithstanding the traditional Fourth Amendment claim presented, the court found that it presented a new “context” for a Bivens claim and refused to extend Bivens to this new context.  The court found that removal proceedings provided an alternative remedial scheme for the plaintiff. It also found that special factors cautioned against such an extension.

The Fifth Circuit, sua sponte, took a vote as to whether to rehear the case en banc. Only four judges voted in favor and on October 14, 2015, the court denied rehearing en banc. Three judges dissented from this denial in a strongly worded opinion which emphasized that this case fell squarely within the holding of Bivens.

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

Briefing on the petition for writ of certiorari ended on June 1, 2016. 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 February 15, 2018.

Counsel: Mayer Brown LLP and De Mott, McChesney, Curtright & Armendáriz, LLP

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

Leonel Ruiz o/b/o E.R. v. U.S.

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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 post-traumatic 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.

In March 2013, the girl’s father filed a lawsuit on behalf of his daughter alleging that CBP officers at Dulles Airport in Virginia unlawfully detained a U.S. citizen child for more than twenty hours, deprived her of contact with her parents, and then effectively deported her to Guatemala.  On October 30, 2013, the government moved to dismiss the case on the basis that the actions of the CBP officers fell within the discretionary function exception of the FTCA, and that the court thus lacked subject matter jurisdiction. Alternatively, the government alleged that the case should be dismissed because the plaintiff had failed to state a claim upon which relief may be granted. The government also moved to transfer the case to the Eastern District of Virginia.  Counsel for the girl’s father opposed the motions.

On September 18, 2014, the court found that the CBP officers’ actions did not fall within the discretionary function exception. The court also found that CBP’s treatment of the girl violated the settlement agreement in Flores v. Reno regarding the detention of minors and CBP’s internal policies promulgated to comply with the Flores agreement.  However, the court granted the government’s request to change venue and transferred the case to the Eastern District of Virginia. In June 2015, the case settled for $32,500. Because the case involved a minor, the Court reviewed and approved the final settlement.

Press:

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

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

FTCA Administrative Complaints of Four Women Denouncing Hieleras

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FTCA Administrative Complaints of Four Women Denouncing Hieleras (filed Mar. 12, 2013)

On various dates in early 2013, four women were apprehended at the United States Texas border by Customs and Border Protection (CBP) agents.  After being apprehended, they were taken by CBP to what the agents called a “hielera,” which is Spanish for “icebox” or “icemaker.”  The hieleras are holding cells which agents often maintain at very low temperature.  The women all describe cells in which dozens of detainees were crowded together.  The cells had no beds, no chairs and each had only a single toilet and sink sitting in the open in the corner.  The women were kept in the cells for as long as 13 days.

The cells were so cold that the women’s fingers and lips turned blue.  They often were fed only one meal a day consisting of a single sandwich, which frequently was frozen. They received nothing to drink other than water, which they had to retrieve from the sink, using their hands or a single cup shared by everyone in the cell.  They were not given blankets or pillows.  Sleeping on the freezing cold floor was next to impossible.  Pregnant women and women with children were present in the cells.

Two of the women are diabetics whose prescriptions were confiscated at the time they were apprehended and never returned.  Both suffered medical problems after their medication was taken from them.  One of them passed out twice and finally was taken to the local hospital’s emergency room.

None of the women were afforded access to a shower or a bath.  Two of them had their menstrual cycles while detained but had no access to a bathroom for bathing.  There was no soap, no change of underwear, and no toothbrushes or toothpaste.

CBP agents regularly asked each of the women to sign documents printed in English, which the women could not read and did not understand.  Agents threatened that they would be kept in the holding cell until they signed these documents.  These agents also referred to them in demeaning ways, including calling them “bitches.”  Only one of the women was asked whether she had a fear of returning to her country of origin, as required, though several of them do.  Eventually, most of the women signed the documents in order to end their suffering in the cold holding cells.  Though they did not understand it at the time, they had signed expedited removal orders. Each of the women was subsequently transferred to a Texas jail and then to a detention facility in Florida while awaiting removal.  All the women filed administrative complaints for damages against the United States for the suffering they endured at the hands of CBP agents. One of these women, Alba Quinonez Florez, subsequently sued the U.S. government in federal court based on the abuses described above.

The government failed to respond to the administrative complaint within the six-month deadline. None of the claimants decided to file a federal complaint.

Counsel: Americans for Immigrant Justice

Contact: Jennie Santos | AI Justice | jsantos@aijustice.org

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