FTCA Administrative Complaint against CBP and Border Patrol for False Arrest at a Greyhound Bus Station

FTCA Administrative Complaint against CBP and Border Patrol for False Arrest at a Greyhound Bus Station

On June 20, 2018 the ACLU of Washington and the Northwest Immigrant Rights Project filed a claim under the FTCA on behalf of Andres Sosa Segura, who was unlawfully seized and detained by Border Patrol agents at an intermodal transit station in Spokane, Washington.

Sosa, a resident of Washington, traveled regularly to Montana for work. On his return trip from Montana, after disembarking a bus at the Spokane station to make a transfer, Sosa was approached by Border Patrol agents who began to interrogate him about his legal status. Sosa had been the only Latinx-appearing passenger on the bus. He asserted his right to remain silent and showed the agents a “know your rights” card. Upon viewing the card, one of the agents called Sosa “illegal,” and both agents positioned their bodies so he could not leave, even once putting their hand on their gun as though to imply the use of force if Sosa did not comply.

The agents continued to question Sosa and to threaten him with deportation, even after he disclosed he had already been released from immigration detention and had an ankle monitor. They eventually drove him to a detention facility an hour away from the bus station and continued to detain him for several hours while they verified he had been released from immigration detention on bond. Eventually, Sosa was driven back to the Spokane bus station and released, though he had already missed all buses back to his home. The complaint letter asserts that Sosa experienced humiliation, emotional distress, and other damages during the time he was falsely arrested and falsely imprisoned.

Counsel: ACLU of Washington|Northwest Immigrant Rights Project

Contact: Matt Adams | Northwest Immigrant Rights Project | matt@nwirp.org

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FTCA Administrative Complaint against CBP for Unlawfully Deportation of an Individual in Removal Proceedings

FTCA Administrative Complaint against CBP for Unlawfully Deportation of an Individual in Removal Proceedings

On October 12, 2018, the Northwest Immigrant Rights Project filed an FTCA Administrative Complaint on behalf of an individual who was wrongfully deported by CBP in October of 2016. Already in removal proceedings, the individual was picked up by CBP while traveling in Texas and wrongfully deported to Mexico, in spite of having paperwork on his person which showed he already had a pending case in immigration court.

In December of 2014, the subject of the complaint, who had lived in the US for over 15 years, was detained by ICE after an arrest, after which DHS moved to reinstate a prior order of removal. In 2015, he passed a reasonable fear interview when an asylum officer found a significant possibility that he would be eligible for protection under the Convention Against Torture (CAT) due to his status as a target of two cartels. Accordingly, his case was referred to an Immigration Judge for withholding of removal proceedings and he was able to bond out of detention. After a competency hearing, the individual was found to be a Franco-Gonzalez class member due to his neurocognitive history and as such, was appointed counsel for immigration court.

While awaiting his next hearing, the individual traveled to Hidalgo, Texas to visit family. Border Patrol agents detained him as he was walking back from a party, assuming he was traveling with another larger group that had been walking nearby. The agents transported him to a detention center and refused to listen when he asserted he was already in removal proceedings and wished to speak to his lawyer. He spent at least two full days and nights in a detention center, constantly insisting to officers on speaking to his attorney, to no avail. Officers demanded that he sign a form agreeing to deportation, even at one time falsely assuring him his next court hearing had been “cancelled.” The officers kept the immigration court documents the individual showed them and forcibly removed him to Mexico.

While in Mexico, the subject was forced to flee for his life and remained in hiding until his immigration attorney was able to make arrangements for his return to the U.S. with agency officers. He was finally allowed to present himself at the border in January of 2017. The claim filed affirms he suffered significant, foreseeable, and direct emotional and financial harm as a result of the unlawful activity of ICE and CBP.

Counsel: Northwest Immigrant Rights Project

Contact: Aaron Korthuis | Northwest Immigrant Rights Project | aaron@nwirp.org

 

FTCA Administrative Complaint on behalf of US Citizen deported by CBP

FTCA Administrative Complaint on behalf of US Citizen deported by CBP

In September of 2018, Julio Cesar Ovalle filed an administrative complaint against the Department of Homeland Security under the Federal Tort and Claims Act for being unlawfully seized and wrongfully deported last June. Mr. Ovalle, 24, is a U.S. citizen who was born in Los Angeles.

Ovalle, a resident of San Antonio, was stopped by a Border Patrol agent on June 11, 2018 while walking along Portanco Road toward his neighborhood. The agent asked for his “papers,” and refused to believe Ovalle’s assertions of his citizenship. Ovalle told the officer he had a passport and other documentation at home, but the agent did not listen and instead took Ovalle’s phone and transported him to the Border Patrol station in Cotulla. Ovalle was deported the next day to Nuevo Laredo.

In Mexico, Ovalle was kidnapped by cartel members and held for ransom with a group of about 80 other immigrants, including recent deportees. Ovalle’s family called Laredo police, who referred them to the FBI. Ovalle was eventually released at one of the international bridges in Nuevo Laredo, and returned to the U.S.

Counsel: Javier Espinoza Garcia | Espinoza Law Firm, PLLC

Press coverage:

Bressi v. Napier

Bressi v. Napier, No. 4:18-cv-00186-DCB (D. Ariz., amended complaint filed July 2, 2018)

On July 2, 2018, Plaintiff Terry Bressi filed an amended complaint against Pima County Sheriff Mark Napier and other county defendants alleging that they violated his First and Fourth Amendment rights when Sheriff’s deputies arrested him at a Border Patrol checkpoint in April 2017 after refusing to answer Border Patrol’s citizenship questions.  Bressi has also lodged a federal notice of claim against the Border Patrol for the same incident.

Bressi, who has traveled the same route since 1993 from his Tucson home to his rural worksite west of Tucson, has contended many times with the abuses and excesses of the Border Patrol.  For example, Mr. Bressi previously sued another local police agency when it illegally detained him at a checkpoint erected at the direction of the Border Patrol.  See Bressi v. Ford, 575 F.3d 891, 894 (9th Cir. 2009). On April 10, 2017, Bressi was returning home from work when he passed through the Border Patrol checkpoint.  Consistent with his personal opposition to the existence of interior checkpoints, Bressi refused to answer the Border Patrol’s questions. Shortly after, the Pima County Sheriff’s deputy – who was stationed at the checkpoint under a federal grant program called Operation Stonegarden – took over the interaction with Bressi and insisted that he answer the Border Patrol’s questions. Eventually, the deputy arrested Bressi and placed him in handcuffs, purportedly because Bressi had “obstructed” the highway.

The lawsuit alleges that the deputy retaliated against Bressi for exercising his First Amendment right not to answer Border Patrol’s questions. Additionally, the lawsuit alleges that the pervasive presence of local law enforcement at the Border Patrol checkpoint materially altered the nature of the checkpoint itself, rendering the whole checkpoint unconstitutional under the long-standing Fourth Amendment principle that permanent checkpoints are permitted only for limited immigration-related purposes and not for the “general interest in crime control.”  As of November 2018, the lawsuit is entering the discovery phase of litigation.

Counsel: Ralph E. Ellinwood PLLC; the ACLU of Arizona

Contact: Billy Peard | ACLU Arizona | bpeard@acluaz.org

Resources:

AIC v. DHS

American Immigration Council et al. v. U.S. Department of Homeland Security et al., No: 1:17-cv-02142 (D.D.C., filed Oct. 17, 2017)

This lawsuit involves the Department of Homeland Security’s (DHS) failure to conduct an adequate search for and disclose records responsive to Plaintiffs’ 2012 and 2017 Freedom of Information Act (FOIA) requests, which sought documents pertaining to DHS’ policy and/or practice of permitting Customs and Border Protection (CBP) agents to provide interpretation services to local law enforcement and to respond to 9-1-1 calls. Most documents that Defendants did produce in response to the FOIA requests were unjustifiably redacted.

Due to Defendants’ deficient and unlawful FOIA responses over a five-year period, on October 17, 2017, Plaintiffs filed suit against DHS under the FOIA seeking to compel the production of records concerning (1) the use of CBP personnel to provide interpretation and/or translation services to local, state, or other federal law enforcement agencies, and (2) the participation of CBP personnel in 911 dispatch activities.

The case is currently pending.

Counsel: Gibson, Dunn & Crutcher LLP | American Immigration Council | Northwest Immigrant Rights Project

Contact: Kristin Macleod-Ball | AIC | kmacleod-ball@immcouncil.org

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Crespo Cagnant v. United States

Crespo Cagnant v. United States, No: 1:18-cv-22267-FAM (S.D. Fla., filed June 7, 2018)

 On June 7, 2018, the American Immigration Council, Holland & Knight LLP, and the Northwest Immigrant Rights Project, and Kairys, Rudovsky, Messing, Feinberg & Lin LLP sued the United States on behalf of asylum-seeker, Jose Crespo Cagnant, under the Federal Tort Claims Act. The complaint alleges misconduct by agents of U.S. Customs and Border Protection (CBP) that involved falsifying Mr. Crespo’s paperwork and then deporting him in contravention of their statutory and regulatory duties to afford Mr. Crespo an opportunity to seek protection from persecution.

Mr. Crespo, a Mexican immigrant who has lived in the United States with his U.S.-citizen partner for more than a decade, was subjected to an expedited removal order after he entered the U.S. in 2012. Mr. Crespo feared persecution in Mexico on account of his sexual orientation; however, the border patrol agent who processed his paperwork did not speak Spanish, failed to seek an interpreter, and filled out the forms with invented information about Mr. Crespo’s reasons for coming to the United States and his family history. Based on this falsified information, CBP deported Mr. Crespo without affording him his legal right to have an asylum officer evaluate his protection claims.

Fearful for his safety upon returning to Mexico, Mr. Crespo returned to his partner—now husband—and sought to legalize his status. As a result, he was criminally charged with reentering the U.S. after deportation. A federal district court judge later dismissed the criminal case against Mr. Crespo, finding that the agent that deported him in 2012 did not testify credibly.

The case is currently pending.

Counsel: Holland & Knight LLP | American Immigration Council | Kairys, Rudovsky, Messing, Feinberg & Lin LLP | Northwest Immigrant Rights Project

Contact: Trina Realmuto | AIC | trealmuto@immcouncil.org

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Kazazi v. CBP

Kazazi, et al. v. U.S. Customs and Border Protection, et al., No: 1:18-MC-51 (N.D. Ohio, filed May 31, 2018)

This lawsuit challenges U.S. Customs and Border Protection’s (CBP) unlawful seizure of Plaintiffs’ life savings. On October 24, 2017, while one of the Plaintiffs, Rustem Kazazi, a U.S. citizen, was in route to Albania, CBP seized the $58,100 that he was carrying to purchase a retirement home in Albania and assist family members in need. CBP neither arrested nor charged Mr. Kazazi or his family members with any crime. Later, CBP sought to justify the seizure by alleging that the money was involved in a smuggling/drug trafficking/money laundering operation—an unfounded allegation that CBP did not record when it confiscated the money nor one that CBP is willing to defend in court.

The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) requires the government to return seized property or begin civil forfeiture or criminal proceedings within 90 days of the government’s notice of the owner’s suit. CBP’s 90 days expired on April 17, 2018, and it did not fulfill any of the CAFRA requirements within that time period. As a result, CBP became legally obligated to return the property promptly to Plaintiffs. Given that CBP failed to do so, Plaintiffs filed suit on May 31, 2018.

After they did, CBP immediately capitulated and returned about 99% of the money it had seized. Plaintiffs are finalizing the details necessary to formally end the case.

Counsel: BakerHostetler LLP | Institute for Justice

Contact: Andrew H. Ward | Institute for Justice |ahward@ij.org

Press Release:

Nwaorie v. CBP, et al.

Nwaorie v. U.S. Customs and Border Protection, et al., No: 4:18-cv-1406 (S.D. Tex., filed May 3, 2018)

On May 3, 2018, the Institute for Justice filed a class-action lawsuit challenging U.S. Customs and Border Protection’s (CBP) policy or practice of demanding that owners of seized property sign “hold harmless” agreements for the return of their property, and thereby waive certain constitutional and statutory rights.

On October 31, 2017, CBP seized approximately $40,000 cash from the named Plaintiff, Anthonia Nwaorie, a U.S. citizen, while she was trying to board an international flight to Nigeria. Ms. Nwaorie intended to use more than $30,000 of the funds she had saved up from her work as a nurse to start a medical clinic in Nigeria for women and children.

In December 2017, Ms. Nwaorie, in compliance with the Civil Asset Forfeiture Reform Act (CAFRA), submitted a claim, requesting judicial forfeiture proceedings. When CBP failed to file a forfeiture complaint within 90 days, it became statutorily required to return the seized property.

However, instead of doing so, in April 2018, CBP mailed Ms. Nwaorie a letter, which conditioned the return of her seized cash on her signing a hold harmless agreement. If she did not sign the agreement to waive her statutory and constitutional rights and to indemnify the government for any claims brought by others related to the seized property, CBP threatened to initiate forfeiture proceedings against her. After filing the lawsuit, CBP finally sent her a check in the amount confiscated.

On July 23, 2018, Defendants moved to dismiss all claims, arguing that they are moot and barred by sovereign immunity. On August 27, Plaintiff filed her opposition to Defendants’ motion. Defendants filed a reply in support of their motion on September 4, and Plaintiff filed a surreply on October 3. As of October 2018, the motion is pending.

Counsel: Institute for Justice

Contacts: 

Dan Alban | Institute for Justice | dalban@ij.org

Anya Bidwell | Institute for Justice | abidwell@ij.org

Press Releases:

DHS Family Separations FOIA

DHS deliberately separates families in an extreme measure to discourage asylum seekers and other individuals from coming to the United States. Hundreds of immigrant children have been taken from family members at the U.S.-Mexico border, detaining them in separate facilities.

The American Immigration Council, in collaboration with the Florence Immigrant and Refugee Rights Project, National Immigrant Justice Center, Kids in Need of Defense, Women’s Refugee Commission and Wilmer Cutler Pickering Hale and Dorr LLP, filed requests for information under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552.

The requests ask for policies, guidelines, or procedures followed or used by the governmental agencies to address the processing and treatment of families at the U.S.-Mexico border and specifically, the separation of adult family members from minor children and the criminal prosecution of adult family members. Requests were filed with the Department of Justice, the Department of Homeland Security, the Office for Civil Rights and Civil Liberties, Immigration and Customs Enforcement, Customs and Border Protection, the Department of Health and Human Services and relevant sub-agencies.

FOIA Requests:

Michigan Immigrant Rights Center, et al., vs. United States Department of Homeland Security, and United States Customs and Border Patrol

Michigan Immigrant Rights Center, et al., vs. United States Department of Homeland Security, and United States Customs and Border Patrol, No. 5:16-cv-14192-JCO-EAS (E.D. Mich. filed November 30, 2016)

Citing concerns over potential Constitutional violations, the ACLU of Michigan, the Michigan Immigrant Rights Center, and researchers filed a federal lawsuit against DHS and CBP in 2016 for the agencies’ failure to provide information related to its “100-mile zone” policy—which CBP claims authorizes agents to engage in warrantless vehicle searches within 100 miles of any international border or waterway.

8 U.S.C. § 1357(a)(3) grants CBP authority to conduct warrantless vehicle searches and detentions within a “reasonable distance” of the border solely for the purpose of preventing illegal entry into the United States. 8 C.F.R. § 287.1(b) defines “reasonable distance” as 100 miles. The Great Lakes are considered the “functional equivalent” of an international border, and therefore the entire state of Michigan is within this “100-mile zone.”

To shed light on the 100-mile zone policy in Michigan, advocates and researchers submitted a FOIA request to DHS and CBP in 2015. Neither agency provided a legally adequate response. Instead, a few heavily-redacted documents were released. These documents underscored the need for greater public access to information about Border Patrol’s roving patrols operations and CBP’s claims that agents may search any motorist anywhere in the state without a warrant.

The requesters filed a federal lawsuit on November 30, 2016 in the United States District Court in the Eastern District of Michigan. Plaintiffs filed an amended complaint on July 28, 2017. On February 14, 2018, Defendants moved for summary judgment. On March 28, 2018, the Michigan Immigrant Rights Center filed a cross-motion for partial summary judgment and opposition to Defendants’ motion for partial summary judgment. Oral arguments were heard on the motions, and on September 7, 2018, the parties reached an agreement whereby the government will provide city-level information in apprehension reports about where apprehensions occur. Plaintiffs will receive these reports on a rolling three-month schedule through the end of the year.  A dispute continues about the remaining documents, and plaintiffs are waiting to get a production schedule from defendants.

Contact: Miriam Aukerman | maukerman@aclumich.org