Council on American-Islamic Relations-Washington v. CBP

Council on American-Islamic Relations-Washington v. U.S. Customs and Border Protection, No. 2:20-cv-217 (W.D. Wash., filed Feb. 12, 2020)

The Council on American-Islamic Relations–Washington (CAIR-WA) filed a complaint in U.S. District Court for the Western District of Washington challenging CBP’s refusal to reveal the directive issued to CBP officers to detain and interrogate Iranian-Americans, among others, who were returning to the United States in early January 2020. CBP has repeatedly denied that they issued any such directive. In light of CBP’s denials, on January 8, 2020, CAIR-WA filed a request under the Freedom of Information Act (FOIA), asking the agency to produce any directives or instructions provided to CBP officers regarding the detention and interrogation of individuals of Iranian heritage, as well as any responses from CBP headquarters regarding the operation. Because CBP failed to respond pursuant to FOIA, CAIR-WA filed a lawsuit in federal district court seeking to ensure that CBP remains accountable for taking such actions.

The complaint alleges that on January 4, 2020, dozens of persons of Iranian heritage, including U.S. citizens and lawful permanent residents, returned to the Unites States after visiting British Columbia. But rather than allowing them to return, CBP officers at the Blaine Port of Entry in Blaine, Washington, detained these individuals based on their Iranian heritage for several hours, and in some cases, through most of the night of January 4 and into the morning hours of January 5, 2020. CBP officials repeatedly denied that they were detaining Iranian-Americans and denied that orders had been given to target such individuals for additional questioning. According to a statement issued by CBP’s press secretary on January 5, 2020, “Social media posts that CBP is detaining Iranian-Americans and refusing their entry into the U.S. because of their country of origin are false. Reports that DHS/CBP has issued a related directive are also false.”

However, dozens of individuals reported their detention at the Blaine Port of Entry, discrediting CBP’s denials that individuals of Iranian heritage were detained. Most recently, media outlets have also reported the existence a leaked memorandum issued by CBP’s Seattle Field Office, which directed officers at the border to detain and question individuals based solely on their place of birth.

Under FOIA, CBP had twenty days to respond to CAIR’s request. Despite the statutory obligation, CBP neglected to provide a response within the timeline, much less provide a copy of the directive that CBP refused to acknowledge. The initial complaint asked the Court to order CBP to immediately provide all documents and records relating to the detention and interrogation that occurred, targeting persons of Iranian heritage (as well as those from Libya and Palestine).

On April 15, 2020, counsel for CBP provided counsel for CAIR a redacted and incomplete FOIA response. On April 30, 2020, counsel for CAIR was provided a supplemental response to the FOIA request, still far short of the responsive records identified by the agency. On May 1, 2020, CAIR amended the complaint to add claims challenging CBP’s continued delay in producing responsive records.

Press:

https://www.seattletimes.com/seattle-news/border-officials-were-overzealous-stopping-iranian-americans-at-washington-canada-border-cbp-chief-says/

Counsel: Northwest Immigrant Rights Project

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

Clear, et al. v. CBP

Clear, et al., v. U.S. Customs and Border Protection, No. 1:2019-cv-07079 (E.D.N.Y., filed Dec. 18, 2019)

The American Civil Liberties Union and CUNY Law School CLEAR Project filed a FOIA lawsuit against U.S. Customs and Border Protection (CBP) in December 2019 over its Tactical Terrorism Response Teams (TTRT), which plaintiffs argue are discriminatory against individuals from the Middle East.

The complaint alleges that CBP is deploying secret teams across at least 46 airports and other U.S. ports of entry which target, detain, and interrogate innocent travelers. Frequently TTRT officers request that travelers unlock their electronic devices and subject them to search. While TTRTs operate largely in secret, CBP has publicly admitted the teams are explicitly targeting individuals who are not on any government watchlist and whom the government has never identified as posing a security risk. Former CBP Commissioner and form acting Secretary of the Department of Homeland Security, Kevin McAleenan, has indicated TTRT officers may rely on their “instincts” or hunches to target travelers.

CBP’s production and production disputes remain ongoing.

Additionally, the ACLU of Northern California has filed an administrative complaint on behalf of an individual who was detained and interrogated by a TTRT.

CBP’s Public Statements about TTRTs:

Press:

Counsel: American Civil Liberties Union

Contact: Scarlet Kim | American Civil Liberties Union Foundation | ScarletK@aclu.org

Father and Son File FTCA Administrative Claims Based on Nine Months of Family Separation

On October 9, 2019, an asylum-seeking father, Mr. L.A., and his son, O.L., filed administrative claims for six million dollars in damages for the trauma they suffered when torn apart under the Trump administration’s family separation policy. The family endured nine months of forced separation in 2018 while the father was unlawfully deported to Guatemala, in spite of expressing a credible fear of persecution in that country.

While in the custody of the Office of Refugee Resettlement (ORR), at a youth facility called Lincoln Hall in New York, then-17-year-old O.L. was medicated without his parent’s consent in order to “calm” him and dissuade thoughts of escaping from the facility. O.L. was physically assaulted and insulted by a Lincoln Hall staff member; and facility staff simply transferred O.L. to a different part of the facility rather than discipline the offending staff member. Additionally, Lincoln Hall was an abusive and sexualized environment. On two separate occasions, staff completed an ORR Serious Incident Report or “Sexual Abuse SIR,” listing O.L. as a victim of sexualized staff actions. During one incident, a staff member showed O.L. and other children in the facility a pornographic video on his phone. In another incident, a staff member dropped a nude photo of herself in front of O.L.

Both Mr. L.A. and his son endured dehumanizing conditions while being held in the hielera DHS facility prior to and immediately after separation. Mr. L.A. reported freezing temperatures, very limited food, and limited access to drinking water other than from a bathroom sink. At one point, he was packed in a cell with 15 other men, with no beds and a shared toilet without privacy. As the men were not permitted to shower or brush their teeth, the smell in the cell was horrible. Officers left bright fluorescent lights on at all times, conducted rolls calls even at nighttime, and provided only Mylar emergency blankets for sleeping; as a result, Mr. L.A. reports experiencing sleep deprivation.

Mr. L.A. and his son spoke briefly on the phone only twice while they were detained and before Mr. L.A. was deported. Mr. L.A. was devastated to learn his son had been transported across the country to New York, while he remained detained in Texas. After being detained separately for more than one month, Mr. L.A. received word from officers that he would be reunited with his son. However, they were not reunited; and Mr. L.A. was instead put on a plane and deported to Guatemala.

Both Mr. L.A. and his son report prolonged and lasting effects from their forced separation. Mr. L.A. still experiences nightmares, anxiety, and depression, and also survived an attempt on his life once removed to the country from which he sought asylum. O.L. reports experiencing anxiety and depression in the wake of his detention and time spent separated from his father.

The claim letter charges the government with intentionally inflicting emotional pain on the family and punishing them for seeking asylum in the United States. The claims were filed against the Department of Homeland Security, Customs and Border Protection, Immigration and Customs Enforcement, the Department of Health and Human Services, and the Office of Refugee Resettlement. They are brought under the Federal Tort Claims Act, which allows individuals to sue the United States for injuries resulting from unlawful conduct of federal officers.

Counsel: Northwest Immigrant Rights Project and Morgan, Lewis, & Brockius, LLP

Contact: Matt Adams | Northwest Immigrant Rights Project | 206.957.8611 | matt@nwirp.org

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. In October of 2019, the court denied plaintiffs’ motion for preliminary injunction under the rationale that granting the requested relief would impose a substantial burden on CBP. The parties then stipulated to dismiss the case.

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

A.I.I.L. et al. v. Sessions 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.

On February 14, 2020, Defendants filed a motion to dismiss Plaintiffs’ complaint, asserting lack of personal jurisdiction, failure to state a claim, and qualified immunity. Briefing on that motion is complete. On July 22, 2020, Plaintiffs sought leave to amend their complaint to include their administratively exhausted Federal Tort Claims Act (FTCA) claims. Defendants requested that the court defer a decision on Plaintiffs’ motion to amend pending the court’s decision on Defendants’ motion to dismiss. On August 31, 2020 the court granted Plaintiffs’ motion to amend and denied Defendants’ motion to dismiss. On September 3, 2020 Plaintiffs filed their amended complaint.

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 California criminal case, 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.

From December 2019 through April 2020, ICE and CBP made a small series of productions. The parties now anticipate that litigation will proceed to cross-motions for summary judgment. Summary judgment motions are due October 23, 2020 (for Defendants) and December 7, 2020 (for Plaintiffs).

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.

In response to this lawsuit, CBP has produced a single document. DHS has produced hundreds of pages of entirely redacted records. USCIS continues to produce approximately 500 pages per month.

Counsel: Claudia Valenzuela, 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

Mohanad Elshieky v. USA

Mohanad Elshieky v. United States of America, No. 2:20-cv-00064 (E.D. Wash., filed Feb. 14, 2020)

U.S. Customs and Border Protection (CBP) officials unlawfully seized and detained Mr. Elshieky, an asylum recipient lawfully present in the United States, aboard a Greyhound bus in January 2019. Shortly after Mr. Elshieky boarded a Greyhound bus in Spokane, Washington, CBP officials entered the bus and began questioning and detaining people of color. A CBP official 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 officials continued to detain him and accused him of being unlawfully present as they confirmed his immigration status.

Mr. Elshieky filed an administrative complaint under the Federal Tort Claims Act (FTCA) on April 25, 2019, seeking $250,000 in damages for wrongful arrest and false imprisonment. CBP issued a final disposition denying the claim on September 11, 2019. On February 14, 2020, Mr. Elshieky filed a complaint in federal district court under the FTCA. On June 23, 2020, the court denied Defendant’s motion to dismiss Mr. Elshieky’s claim of discrimination under the Washington Law Against Discrimination.

After the court denied Defendants’ motion to dismiss as to Mr. Elshieky’s discrimination claim, Defendants filed their answer. Discovery is now beginning, and a bench trial has been scheduled for August 23, 2021.

Counsel: Northwest Immigrant Rights Project | American Civil Liberties Union of Washington | Davis Wright Tremaine LLP

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