I.A. et al. v. Barr et al.

I.A. et al. v. Barr et al., No. 1:19-cv-02530-TJK (D.D.C. filed Aug. 21, 2019)

On July 15, 2019, President Trump announced an interim final rule providing that noncitizens who pass through another country prior to reaching the southern border of the United States are ineligible for asylum here. The new rule has very few exceptions, and thus bars virtually every noncitizen fleeing persecution from obtaining asylum in the United States if they passed through another country on the way here, no matter the conditions or purpose of their journey through that country or their prospect of protection, rights, or status in that country. Accordingly, anyone fleeing persecution from the ongoing humanitarian crisis in several Central American countries who reasonably does not apply for protection while en route will be categorically denied the opportunity to seek asylum in the United States and likely forced to return to countries that are rife with danger in violence. In short, the rule virtually repeals the U.S. asylum system at the southern border.

On August 21, 2019, the ACLU Immigrants’ Rights Project, ACLU of D.C., and the National Immigrant Justice Center sued to enjoin this policy on behalf of several individual plaintiffs and the Tahirih Justice Center as an organizational plaintiff. The same day, these organizations filed a motion for a preliminary injunction of the policy. As of October 2019, that motion is still pending.

See also: East Bay Sanctuary Covenant v. Barr et al., Nos. 3:19-cv-04073 (N.D. Cal filed July 16, 2019); 19-16487 (9th Cir.); No. 19A230 (Supreme Court).

Counsel: Katrina Eiland, Cody Wofsy, Julie Veroff, Celso Perez, Lee Gelernt, Omar Jadwat, and Anand Balakrishnan, ACLU Immigrants’ Rights Project; Arthur Spitzer and Scott Michelman, ACLU of D.C.; Charles Roth, Keren H. Kwick, and Gianna Borroto, National Immigrant Justice Center

Contact: Katrina Eiland | ACLU Immigrants’ Rights Project | 415-343-0774 | keiland@aclu.org

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Gonzalez Recinos et al. v. McAleenan et al.

Gonzalez Recinos et al. v. McAleenan et al., No. 1:19-cv-00138 (S.D. Tex. filed Aug. 16, 2019).

This lawsuit was brought as a writ of habeas corpus by individuals detained by CBP in various facilities within the Rio Grande Valley Sector of the U.S. Border Patrol.

The lawsuit alleges that CBP has subjected petitioners to inhumane treatment and harsh conditions in these facilities by: packing them into overcrowded cells for lengthy periods, where they are denied adequate food, water, medical attention, and sanitation facilities, providing inadequate food and water, unsanitary toilets, showering and bathing facilities, and no access to phones, beds, or medical assistance. Petitioners are also alleging that it is CBP’s pattern or practice to deny access to family members and legal counsel.

Plaintiff-petitioners filed an amended petition on July 20, 2019, and a motion for preliminary injunction on August 12. The district court held a hearing on that motion on September 6, 2019. As of October 2019, that motion is currently pending.

Counsel: Elisabeth (Lisa) Brodyaga, Refugio del Rio Grande; Jaime M. Diez, Jones and Crane; Thelma O. Garcia, Law Office of Thelma Garcia; Luis Campos, John Becker & Wesley D. Lewis, Haynes and Boone, LLP; Efrén C. Olivares, Texas Civil Rights Project

Contact: Lisa Brodyaga | Refugio del Rio Grande | 956-421-3226 | LisaBrodyaga@aol.com

Make the Road New York et al. v. McAleenan et al.

Make the Road New York v. McAleenan, No. 1:19-cv-02369 (D.D.C. filed Aug. 6, 2019).

Expedited removal is a procedure that allows a Department of Homeland Security (DHS) official to summarily deport a noncitizen without a hearing before an immigration judge or meaningful review.

Individuals subjected to expedited removal may be removed within hours of apprehension, without an opportunity to: speak with an attorney, gather evidence or call witnesses, present a claim for relief from removal, other than a truncated process for expressing fear of persecution, peek review of their expedited removal order except under limited circumstances.

For over two decades, federal immigration authorities have authorized the use of expedited removal narrowly: to noncitizens who are seeking admission at a port of entry, who have been apprehended near the border shortly after they entered the country, or who arrive in the United States by sea.

On July 23, 2019, DHS issued a new rule to expand the reach of expedited removal to individuals who have been living in the United States for two years or less, and who live anywhere in the United States.

This case challenges this expansion of expedited removal. Plaintiffs are three organizations with members who are subject to the new rule. Plaintiffs claim that the new rule violates the Due Process Clause of the Fifth Amendment, the Administrative Procedure Act, and federal immigration laws.

The case was filed on August 6, 2019 in the U.S. District Court for the District of Columbia by the American Immigration Council, the American Civil Liberties Union, and the law firm of Simpson Thatcher & Bartlett LLP.

On September 27, 2019, the court granted Plaintiffs’ motion for a preliminary injunction, which blocks the expansion of expedited removal from taking effect while the case moves forward. As a result, expedited removal currently remains limited to people who are within 100 miles from the border and have been in the U.S. for 14 days or fewer, and to those who arrived by sea.

Counsel: Trina Realmuto, Kristin Macleod-Ball, Karolina J. Walters, American Immigration Council; Celso Perez, Anand Balakrishnan, Omar C. Jadwat, Lee Gelernt, Jennifer Chang Newell, Stephen B. Kang, Julie Veroff, ACLU Immigrant Rights’ Project; Jonathan K. Youngwood, Susannah Geltman, Joshua Polster, Adrienne V. Baxley, Simpson Thatcher & Bartlett LLP; Arthur B. Spitzer, Scott Michelman, ACLU of D.C.

Contact: Trina Realmuto | American Immigration Council | 857-305-3600 | TRealmuto@immcouncil.org
Celso Perez | ACLU Immigrant Rights’ Project | 212-549-2600 | cperez@aclu.org

East Bay Sanctuary Covenant et al. v. Barr et al.

East Bay Sanctuary Covenant et al. v. Barr et al., Nos. 3:19-cv-04073 (N.D. Cal filed July 16, 2019); 19-16487 (9th Cir.); 19A230 (Supreme Court)

On July 15, 2019, President Trump announced an interim final rule providing that noncitizens who pass through another country prior to reaching the southern border of the United States are ineligible for asylum here. The new rule has very few exceptions, and thus bars virtually every noncitizen fleeing persecution from obtaining asylum in the United States if they passed through another country on the way here, no matter the conditions or purpose of their journey through that country or their prospect of protection, rights, or status in that country. Accordingly, anyone fleeing persecution from the ongoing humanitarian crisis in several Central American countries who reasonably does not apply for protection while en route will be categorically denied the opportunity to seek asylum in the United States and likely forced to return to countries that are rife with danger in violence. In short, the rule virtually repeals the U.S. asylum system at the southern border.
On July 16, the Southern Poverty Law Center, ACLU Immigrants’ Rights Project, ACLU of Northern California, and Center for Constitutional Rights sued to enjoin this rule. On July 24, the district court judge granted a preliminary injunction, stopping the rule from being enforced nationwide. The government appealed that order, and the court of appeals narrowed the scope of the injunction to just the Ninth Circuit (the CA and AZ borders). Plaintiffs submitted supplemental evidence and filed a motion to restore the nationwide scope of the injunction, which the district court granted on September 9. In the meantime, the government filed an application for a stay pending appeal of the district court’s order directly to the United States Supreme Court, which it granted on September 11, 2019.

See also: I.A. et al. v. Barr., No. 1:19-cv-02530-TJK (D.D.C. filed Aug. 21, 2019)

Counsel: Katrine L. Eiland, Lee Gelernt, Anand Balakrishnan, Cody Wofsy, Omar Jadwat, Spencer Amdur & Julie Veroff, ACLU Immigrants’ Rights Project; Mary Bauer & Melissa Crow, Southern Poverty Law Center; Angelica Salceda & Vasudha Talla, ACLU of Northern California

Contact: Katrina Eiland | ACLU Immigrants’ Rights Project | 415-343-0770 | keiland@aclu.org

A.I.I.L. on behalf of herself and her minor children, J.A.H.I. and M.E.H.I., et al.

A.I.I.L. on behalf of herself and her minor children, J.A.H.I. and M.E.H.I., et al., No. 4:19-cv-00481-JAS (D. Ariz., filed Oct. 3, 2019)

This lawsuit seeks damages on behalf of thousands of traumatized children and parents who were forcibly torn from each other under the Trump administration’s illegal practice of separating families at the border.

Leading child welfare organizations, the American Academy of Pediatrics, and medical professionals have publicly denounced the forced separation of children from their parents, citing the long-lasting, detrimental effects on children’s emotional growth and cognitive development. Separated parents, meanwhile, face an increased risk of developing mental health disorders, with trauma linked to severe anxiety, depression, and suicidal thoughts.

Plaintiffs cited in the complaint include families from Guatemala and Honduras who were separated along the border in Arizona for up to 16 months. In addition to damages, the lawsuit seeks the creation of a fund to pay for professional mental health services for affected families.

The lawsuit, A.I.I.L. v. Sessions, cites violations of the Fourth Amendment (unreasonable seizure of children); the Fifth Amendment due process clause (fundamental right to family integrity; right to a hearing; right to adequate health care); and equal protection (prohibiting discrimination on the basis of race, ethnicity, or national origin).

Defendants include officials from the Departments of Justice, DHS and CBP, Health and Human Services/Office of Refugee Settlement, and the White House.

Counsel: Marty Lieberman, ACLU of Arizona; Lee Gelernt, Judy Rabinovitz, Anand Balakrishnan, Daniel Galindo, ACLU Immigrant Rights’ Project; Geoffry R. Chepiga, Jacqueline P. Rubin, Emily Goldberg, Hallie S. Goldblatt, Steven C. Herzog, Paul, Weiss, Rifkind, Wharton & Garrison LLP; Alexander A. Reinert, Benjamin N. Cardozo School of Law.

Contact: Marty Lieberman | ACLU of Arizona | 602-650-1854 | mlieberman@acluaz.org

Electronic Frontier Foundation v. Dep’t of Homeland Security

Electronic Frontier Foundation v. Dep’t of Homeland Security, No. 1:19-cv-02578 (D.D.C., filed Aug. 27, 2019)

In United States v. Jones, 565 U.S. 400 (2012), the Supreme Court unanimously held that warrantless GPS tracking violates the Fourth Amendment and is therefore unconstitutional. In a 2018 criminal case in California, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) disclosed that it is their policy and practice to install tracking devices on vehicles at the border without a warrant. An ICE official stated in a declaration that the policy did not violate the Jones ruling, but the court disagreed.
Neither agency submitted the actual policy to the court, so the Electronic Frontier Foundation (EFF) filed Freedom of Information Act (FOIA) requests with ICE and CBP. EFF asked the agencies to produce records pertaining to “[p]olicies and/or procedures regarding the use of GPS tracking devices on vehicles crossing the border” and “[t]raining manuals and/or training materials on the use of GPA tracking devices on vehicles crossing the border.” Four months after EFF made the request, ICE notified EFF that the agency would withhold all relevant documents because of an exemption that protects “law enforcement sensitive information” that might alert people of government agents attempting to place tracking devices on their vehicles at the border. CBP did not take any action in response to the request so in August 2019, EFF filed a federal lawsuit to enforce the FOIA and obtain the relevant records.

Counsel: David L. Sobel, Saira Hussain, Jennifer Lynch, Electronic Frontier Foundation

Contact: David L. Sobel | Electronic Frontier Foundation | 415-436-9333 | sobel@eff.org

American Immigration Council v. U.S. Customs and Border Protection et. al.

American Immigration Council v. U.S. Customs and Border Protection et. al., No. 1:19-cv-02965 (D.D.C filed Oct. 2, 2019)

This Freedom of Information Act (FOIA) lawsuit seeks to uncover information about the government’s troubling new practice of employing U.S. Custom and Border Protection (CBP) officers to screen asylum seekers. The suit, filed on October 2, 2019 on behalf of the American Immigration Council and Tahirih Justice Center, challenges the government’s failure to respond to multiple FOIA requests for records relating to the U.S. Department of Homeland Security’s (DHS) decision to train and utilize CBP officers to conduct asylum screenings known as credible fear interviews (CFIs).

Congress intended that CFIs serve as a safeguard from summary removal. If an asylum seeker passes this initial screening, he or she must be given the opportunity to file an asylum claim before an immigration judge. As threshold screenings, these interviews are not intended to be adversarial but rather function to provide the asylum seeker an opportunity to recount details of their feared persecution in their country of origin. Asylum seekers often describe instances of physical and sexual violence and other trauma to explain why they seek protection in the United States during a CFI. For decades, these interviews have been conducted by a corps of asylum officers employed by U.S. Citizenship and Immigration Services (USCIS), trained specifically to adjudicate asylum claims, including the handling of sensitive matters.
According to reports, DHS has begun to replace trained USCIS asylum officer with officers from CBP—a law enforcement agency with a history of abuse of and misconduct towards asylum seekers—in the credible fear screening process. Despite the significance of this change, there are no publicly available records documenting this shift in functions.

Counsel: Claudia Valenzuela, Mary Kenney, Emma Winger, American Immigration Council

Contact: Claudia Valenzuela | American Immigration Council | 202-507-7540 | cvalenzuela@immcouncil.org

ACLU of New Hampshire v. CBP

ACLU of New Hampshire v. CBP, No. 1:19-cv-00977 (D.N.H., filed Sept. 17, 2019)

In early 2019, the ACLU of New Hampshire (ACLU-NH) filed a Freedom of Information Act (FOIA) request with Customs and Border Protection (CBP) after obtaining documents that described plainclothes CBP officers as far as 100 miles from the border in New Hampshire driving in unmarked cars, following people around, and “asking probing questions” without identifying themselves. This practice enabled CBP to apprehend and detain many noncitizens in New Hampshire. ACLU-NH submitted a FOIA request for information pertaining to how CBP officers identified individuals who could potentially be undocumented immigrants in New Hampshire, but CBP did not respond adequately. Therefore, in September 2019, ACLU-NH filed a lawsuit in pursuit of the information detailed in the FOIA request.

Counsel: SangYeob Kim, Gilles R. Bissonnette, Henry R. Klementowicz, ACLU of New Hampshire

Contact: SanYeob Kim | ACLU-NH | 603-333-2081 | sangyeob@aclu-nh.org

FTCA Administrative Complaint Filed with CBP over Profiling, Detention, and Questioning Aboard Greyhound Bus

U.S. Customs and Border Protection (CBP) agents unlawfully seized and detained Mr. Elshieky, an asylum recipient lawfully present in the United States, aboard a Greyhound Bus in January 2019. Mr. Elshieky filed an administrative complaint under the Federal Tort Claims Act on April 25, 2019.

Shortly after Mr. Elshieky boarded a Greyhound bus in Spokane, Washington, CBP officers entered the bus and began questioning and detaining people of color. A CBP agent approached Mr. Elshieky and asked him to produce identification and to confirm his citizenship status. When Mr. Elshieky presented his valid Oregon driver’s license and valid USCIS employment authorization card, officers ordered him off the bus. Although Mr. Elshieky explained his immigration status—that he had been granted asylum recently—the officers accused him of possessing a forged employment authorization card and refused to believe him, saying “we’ve heard all this before” and “illegals say that all the time.” The officers continued to detain him and accuse him of being unlawfully present as they confirmed his immigration status.

Mr. Elshieky seeks $250,000 in damages for false arrest and false imprisonment.

Counsel: Northwest Immigrant Rights Project and American Civil Liberties Union of Washington

Contact: Matt Adams | 206-957-8611 | Northwest Immigrant Rights Project

Lisa Nowlin | 206-624-2184 | ACLU Washington

Lewis v. Unknown Agents of the Department of Homeland Security

Lewis v. Unknown Agents of the United States Department of Homeland Security, No. 3:19-cv-00600 (S.D. Cal., filed Apr. 1, 2019)

Sams v. Unknown Agents of the United States Department of Homeland Security, No. 3:19-cv-00612 (S.D. Cal., filed Apr. 2, 2019)

These lawsuits arise from the Department of Homeland Security (DHS)’s detention of two individuals who were experiencing withdrawal from opiates and alcohol and were denied medical treatment. The plaintiffs bring claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), alleging violations of their Fifth Amendment Rights.

Mr. Lewis, a U.S. citizen and military veteran, was arrested by DHS at the San Ysidro Port of Entry in February 2019. He alleges that he told the arresting officers of his history of substance abuse, prompting laughter. He began experiencing the symptoms of withdrawal, and instead of being given medical treatment, was transferred back-and-forth between the San Diego Metropolitan Correction Center and DHS custody. Mr. Lewis spent four days in DHS custody experiencing severe withdrawal symptoms, unable to move or eat, all the while requesting medical attention which was never given.

The facts of Ms. Sam’s case are similar. In January 2019, DHS officers interrogated and detained her. Despite advising officers of her substance abuse history, she was placed in a small holding cell. She remained in DHS custody for four days, during which time she experienced grave symptoms of withdrawal and repeatedly requested medical attention. Her requests were ignored.

Counsel: Brody McBride, Singleton Law Firm, APC