NYLAG v. DHS

New York Legal Assistance Group, Inc., v. United States Department of Homeland Security, et al., No. 1:22-cv-05928 (S.D.N.Y., filed Jul. 12, 2022)

New York Legal Assistance Group, Inc. (NYLAG), a not-for-profit civil legal services organization in New York, New York, filed a complaint in the Southern District of New York after the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) failed to produce responsive records to a Freedom of Information Act (FOIA) request for records related to the deployment of federal law enforcement personnel in New York City during protests related to the killing of George Floyd in 2020.

In June 2020, at a New York City protest against police brutality, a protestor was violently arrested on the Upper West Side by an officer identified as an agent for ICE or Homeland Security Investigations (HSI). After the identification of the officer, organizations like NYLAG raised concerns questioning the authority of the federal government to deploy federal agents to monitor local protests and surveil immigrant protestors.

NYLAG submitted an administrative FOIA request on September 29, 2020, requesting records from May 25, 2020, through the date of filing the request. Following their administrative request, NYLAG received some communications from DHS, ICE, Customs and Border Protection (CBP), the Secret Service (USSS), and the Office of Intelligence and Analysis (I&A), indicating that responsive records existed and were identified. However, after nearly two years, the agencies failed to produce to NYLAG any of the documents they identified as responsive to the FOIA request, prompting NYLAG to file suit.

Counsel: New York Legal Assistance Group | Cooley LLP

Contact: Danielle Tarantolo | NYLAG | (212) 613-5000
Marc Suskin | Cooley LLP | (212) 479-6000

Related Links: https://nylag.org/nylagvdhs/

Davis Wright Tremaine v. CBP

Davis Wright Tremaine LLP v. United States Customs and Border Protection, No. 2:19-cv-00334 (W.D. Wash., filed Mar. 6, 2019)

A Seattle-area law firm filed a Freedom of Information Act (FOIA) suit against CBP after the agency refused to respond to a FOIA request for information concerning CBP’s widely publicized policy and practice of denying entry to noncitizens due to their involvement with the legal cannabis industry in Canada. Individuals subjected to the policy in the past have been detained and at times even told they are banned for life from entering the United States. In one instance cited in the complaint, the executive commissioner for CBP’s Office of Field Operations, Todd Owen, was quoted as claiming, “If you work for the [cannabis] industry, that is grounds for inadmissibility.” Owens also claimed that CBP had the authority to permanently ban from entering the U.S. even those who only invested in legal cannabis business.

The firm which filed the suit, Davis Wright Tremaine LLP, sought access to records to assess whether CBP’s actions are within the scope of the authority granted to it by Congress, whether CBP was acting pursuant to any policies or procedures, and whether it promulgated any such policies or procedures consistent with the procedures Congress has required for agency rulemaking.

On June 16, 2020, plaintiff’s motion for summary judgment was granted in part and denied in part, and CBP’s motion for summary judgment was denied. The court found CBP’s production in response to the FOIA request inadequate, and the parties submitted periodic status reports on the agency’s ongoing production. Chief among the documents produced was a 2018 CBP Information Guide which acknowledged that foreign nationals who work in legal foreign cannabis industries are not inadmissible, assuming their visit to the United States is unrelated to domestic or cross-border cannabis operations – a policy which contradicts statements and actions by CBP in the past regarding Canadian citizens associated with the industry. The parties stipulated to dismiss the case in 2022.

Counsel: Davis Wright Tremaine LLP
Contact:
Bruce Johnson | brucejohnson@dwt.com
Caesar Kalinowski | caesarkalinowski@dwt.com

FTCA Suit on Behalf of U.S.-Citizen Child Held by CBP for 30 Hours

J.A.M., et al., v. United States of America, et al., No. 3:22-cv-00380 (S.D. Cal., filed Mar. 21, 2022)

The family of a 9-year-old girl and 14-year-old boy filed a damages suit under the Federal Tort Claims Act after the children, both U.S. citizens, were held in custody at the San Ysidro Port of Entry – the boy for more than 12 hours and his sister for more than 30 hours. The complaint recounts how J.A.M. and her brother O.A.M. were falsely imprisoned in San Ysidro and coerced into making false confessions about the girl’s identity. Officers insisted to the children that the girl was actually their cousin, who is not a U.S. citizen.

J.A.M. and her brother O.A.M. were on their way from Tijuana to school in San Diego with a family friend. Though both children presented officers with valid U.S. passports, a CBP officer sent them to secondary inspection, then to a holding area. According to the children, CBP officers interviewed them about other young relatives their age and then pressured them to sign false statements claiming that J.A.M. was actually their cousin. The children said they were told that O.A.M. would be taken to jail for smuggling if they did not sign. CBP allegedly intended to have the Mexican consulate interview J.A.M. to verify her identity, but claimed an appointment was not available until the following morning.

Upon learning her children had not made it out of the port of entry, their mother, Ms. Medina Navarro, left the medical facility where she was awaiting surgery to inquire at the port of entry for her children. At first, officers denied having the children in custody. More than 12 hours after her children were first taken into custody, Ms. Medina Navarro received a call that C.B.P. had her son in custody with a girl who was not her daughter, and was told she could come pick up her son. Though Ms. Medina Navarro took additional documents to prove the identity of her daughter, officers did not release J.A.M. to her mother until after J.A.M.’s interview with the Mexican consulate the following day, 33 hours after she was first taken into custody.

The family filed administrative Federal Tort Claims Act complaints. CBP denied the claims in full on September 29, 2021, and the family filed suit on March 21, 2022. The government filed a motion to dismiss for lack of jurisdiction or motion for summary judgment, which was denied on July 21, 2022, and subsequently filed an answer to the complaint on August 4, 2022.

Counsel: Law Offices of Joseph M. McMullen

Contact: Joseph Mark McMullen ǀ (619) 501-2000 ǀ joe@imm-legal.com

Press: Lawsuit alleging border officials falsely imprisoned 9-year-old U.S. citizen girl passes legal hurdle

State of Washington v. Greyhound Lines, Inc.

State of Washington v. Greyhound Lines, Inc., No. 20-2-01236-32 (Spokane Cnty. Sup. Ct., consent decree filed Sept. 26, 2021)

In April 2020, the Attorney General of Washington (Bob Ferguson) filed a lawsuit against Greyhound Lines challenging its practice of allowing U.S. Customs and Border Protection (CBP) agents on its buses to conduct warrantless and suspicionless immigration sweeps. Greyhound failed to warn customers of the sweeps, misrepresented its role in allowing the sweeps to occur on its buses, and subjected passengers to unlawful discrimination based on race, color, or national origin. The case was set for trial on September 27, 2021.

On September 26, 2021, the parties filed a consent decree which requires Greyhound to pay $2.2 million and to enact a number of corporate reforms to end its unlawful conduct. For example, Greyhound must establish and implement a clear policy that denies CBP agents permission to board its buses without warrants or reasonable suspicion in the state of Washington. The Attorney General has stated that the $2.2 million will be used to provide restitution to those passengers who were detained, arrested, or deported as a result of the immigration sweeps on Greyhound buses.

Documents:

Counsel: Lane Polozola, Yesica Hernandez, Brian J. Sutherland, and Emily C. Nelson (Washington State Attorney General’s Office)

Contact: Yesica Hernandez | Washington State Attorney General’s Office | civilrights@atg.wa.gov

Villalobos et al. v. United States

Villalobos et al. v. United States, No. 0:21-cv-02233 (D. Minn., filed Oct. 11, 2021)

Plaintiff Kerlin Sanchez Villalobos and her younger sister are suing the United States for the severe abuse and mistreatment they suffered while they were held in immigration custody. In June 2019, they entered the United States seeking safety from violence and persecution in Honduras, and were arrested by CBP agents. At the time, Kerlin was sixteen and her sister was fourteen. After their arrest, Kerlin and her sister were taken to a CBP detention facility in Clint, Texas and held there for nine days, after which they were forcibly separated and transferred to different group homes operated by Southwest Key Programs, Inc.

At the facility in Clint, Texas, CBP officers and government contractors mistreated Plaintiffs in a variety of ways, including physically assaulting them, depriving them of adequate food and water, denying them access to necessary medical care and medication, forcing them to watch the mistreatment of other children, and forcing them to care for younger children. Officers forced the girls to lift their shirts to be searched in a non-private setting, and threw away medicine one of the sisters brought with her to treat a recent injury. According to the siblings, officers ordered them to control the younger children who were crying because they were separated from their families. One of the sisters was injured by an officer who kicked her repeatedly. Additionally, the Clint facility was reported to have subpar sanitation for the number of children held there, and an MSNBC video from 2019 revealed children caged like animals. According to an ABC news report, staff had no training on caring for children.

In spite of initially assuring the sisters they would not be separated, officers traumatically separated the sisters without explanation and transported them to separate group homes. Despite prior reports of abuse at the Texas group homes where the sisters were held, the U.S. government has continued to place children there. In total, Kerlin spent twenty days in detention, and her sister spent twenty-nine days. Plaintiffs seek compensatory damages for negligence, negligent undertaking, battery, and assault under Texas law via the Federal Tort Claims Act.

Plaintiffs filed their complaint in October 2021. The U.S.A. answered in January 2022. The case is now in discovery.

Documents:

Counsel: Ian Bratlie,Teresa Nelson, Clare Diegel, and Paul Dimick (ACLU of Minnesota); Edgar Saldivar, Bernardo Rafael Cruz, and Andre Segura (ACLU of Texas); Jillian Kornblatt, Michael D. Stinson (Dorsey & Whitney LLP)

Contact: Claire Diegel | ACLU of Minnesota | 612-274-779 | cdiegel@aclu-mn.org

Doe et al. v. Mayorkas et al.

Doe et al. v. Mayorkas et al., No. 1:21-cv-11571-IT (D. Mass., filed Sept. 24, 2021)

Plaintiffs Jane Doe and her two 10-year-old sons are citizens of Haiti who entered the United States in September 2021 to seek asylum. They were among the thousands of Haitians forced to remain for days under the Del Rio International Bridge. Later, Plaintiffs were transported to San Antonio, Texas to be processed for expulsion pursuant to Title 42. As of September 24, 2021, they remained in CBP custody, and their expulsion under Title 42 was believed to be imminent.

Plaintiffs’ complaint asserts that the U.S. government’s Title 42 expulsion policy violates the Immigration and Nationality Act (INA), Title 42, the Administrative Procedure Act, the U.S. Constitution (equal protection and due process), and the United States’ nonrefoulement duty under international law. Plaintiffs request, among other things, that the court enjoin their expulsion under Title 42 and order Defendants to process their asylum claims in accordance with the INA.

As of November 2021, the government released the clients into removal proceedings and paroled them. Plaintiffs then voluntarily dismissed this case.

Documents:

Petition for Writ of Mandamus and Complaint

Counsel: Amy Maldonado | Law Office of Amy Maldonado

Bridget Cambria | Cambria & Kline, P.C.

Susan B. Church | Demissie & Church

Contact: Amy Maldonado | 517-803-2870 | amy@amaldonadolaw.com

Goldhar v. U.S. Customs and Border Protection et al.

Goldhar v. U.S. Customs and Border Protection et al., No. 1:21-cv-23197-BB (S.D. Fla., filed Sept. 3, 2021)

Plaintiff Gaby Or Goldhar, a citizen of Israel, challenges U.S. Customs and Border Protection (CBP)’s wrongful cancellation of her B-2 visitor visa in 2019. When entering the United States through the Miami International Airport on July 15, 2019, a CBP officer cancelled Ms. Goldhar’s B-2 visa based on an erroneous determination that she had accrued unlawful presence during her prior visits to the United States and thus was inadmissible. Ultimately, CBP acknowledged its mistake and admitted Ms. Goldhar into the United States after waiving the visa requirement on a Form I-193. However, because the visa in her passport was physically invalidated, Ms. Goldhar has been unable to travel to the United States ever since. Although she was invited to apply for a replacement visa, the COVID-19 pandemic has significantly restricted U.S. consular operations abroad, resulting in extremely long wait times for visa processing. Ms. Goldhar wishes to attend her grandson’s bar mitzvah in Florida in January 2022, but she likely will be unable to obtain a new B-2 visa by then.

Ms. Goldhar claims that CBP’s wrongful cancellation of her visa violated the Administrative Procedure Act (APA), as it constituted agency action that was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). Among other things, she requests that the district court order CBP to “immediately take such correction action as may be appropriate, including, but not limited to, reversing the cancellation of [her] B-2 visa” and “treating it as a valid entry document through its stated expiration date.”

On November 8, 2021, Plaintiff filed an expedited motion for summary judgment. Defendants filed motions to dismiss for lack of jurisdiction and a response to the expedited motion in November. Parties reached a settlement on December 2, 2021 and the case was administratively closed.

Documents:

Complaint

Counsel: David Elliott Gluckman | McCandlish Holton PC

Tammy Jean Fox-Isicoff | Rifkin & Fox-Isicoff, P.A.

Contact: David Gluckman | 804-775-3826 | dgluckman@lawmh.com

Djumaev v. U.S. Federal Bureau of Investigation et al.

Djumaev v. U.S. Federal Bureau of Investigation et al., No. 1:21-cv-05016-DG-MMH (E.D.N.Y., filed Sept. 8, 2021)

Plaintiff Akram Djumaev, a lawful permanent resident (LPR) of the United States, commenced this action against various federal agencies, including U.S. Customs and Border Protection (CBP), alleging violations of his rights under the Fourth and Fifth Amendments, the Immigration and Nationality Act (INA), and the Administrative Procedure Act (APA). Mr. Djumaev is a resident of Chicago and a citizen of Uzbekistan who has been a lawful permanent resident since 2013. In January 2016, he traveled to Uzbekistan for the purpose of visiting family and getting engaged. After going through the security checkpoint at John F. Kennedy International Airport in New York, four law enforcement agents approached him and interrogated him, specifically asking whether he knew anyone in Turkey, Syria, or Afghanistan. Without consent or warrant, the agents then searched and confiscated his smartphone without providing any reason for doing so. After an hour of questioning, Mr. Djumaev was allowed to board the plane to Uzbekistan. However, the agents did not return his smartphone to him. In fact, to date, they still have not done so.

When Mr. Djumaev attempted to return home to the United States in March 2016, the airline attendant at the airport informed him that he would not be able to board—presumably because he had been placed on the U.S. government’s “No Fly List.” That same day, Mr. Djumaev contacted the U.S. embassy in Tashkent, Uzbekistan, and filed a Traveler Redress Inquiry Program (TRIP) complaint with DHS shortly afterward.

Two months later, Mr. Djumaev was instructed to visit the embassy for an interview. When he arrived, he was taken to a windowless room and interrogated by Federal Bureau of Investigation (FBI), Department of Homeland Security (DHS), and State Department agents. The agents allegedly stated that Mr. Djumaev was a “threat to the U.S.” without any explanation or justification for that claim. They also suggested—again, without providing any basis—that they knew he had terrorist affiliations and had been involved in criminal activity. The agents repeatedly coerced Mr. Djumaev to admit that he was guilty and threatened that he would be arrested and imprisoned upon returning to the United States. After about two hours of interrogation, the agents told him that he had only two choices: either return to the United States. and be imprisoned, or agree to sign a form stating that he would not return to the United States. The agents handed him a pre-filled Form I-407, Record of Abandonment of Lawful Permanent Resident Status. Although Mr. Djumaev had no desire whatsoever to relinquish his LPR status, he signed the form, believing that he had no other choice. During this process, the agents never informed Mr. Djumaev of his rights.

After that incident, Mr. Djumaev attempted twice to return to the United States, but he was denied boarding each time. Although LPRs placed on the No Fly List are eligible for a one-time waiver to return to the United States, the embassy has refused to issue such a waiver to Mr. Djumaev. Later, Mr. Djumaev retained counsel and challenged the validity of the I-407, but the government has not provided any response. As a result of Defendants’ actions, Mr. Djumaev has been unable to return to the United States for over five years and has suffered significant financial and emotional harms.

Mr. Djumaev’s complaint alleges that Defendants violated his due process rights under the Fifth Amendment by placing him on the No Fly List without adequate notice or opportunity to challenge the decision, as well as by coercing him to abandon his LPR status. The complaint further asserts that Defendants’ actions violated his rights under the INA (depriving him of LPR status and excluding him from the United States without charge or a removal hearing) and the Fourth Amendment (unlawful search and seizure of his smartphone and its private contents). Finally, Mr. Djumaev claims that Defendants’ actions were “arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law,” in violation of the APA. He seeks declaratory and injunctive relief, and requests, among other things, that the district court issue an order voiding the improper I-407 form and directing Defendants to restore his LPR status.

On April 11, 2022, the parties filed a joint motion for a settlement conference and extension of time for Defendants to answer the complaint. The Court has granted this motion.

Documents:

Counsel: Jamila Marjani Hall & Sharnell S. Simon | Jones Day, Atlanta

Ramzi Kassem & Naz Ahmad | Main Street Legal Services, Inc.

Khalid v. Garland, et al.

Khalid v. Garland et al., No. 1:21-cv-02307-CRC (D.D.C., filed Aug. 31, 2021)

Plaintiff Saad Bin Khalid brought this action for declaratory and injunctive relief against various federal agencies, including U.S. Customs and Border Protection (CBP), claiming that the U.S. government has wrongfully placed him on its “No Fly List” which indefinitely bars him from flying to, from, or within the United States.

Mr. Khalid is a 27-year-old U.S. citizen of Pakistani descent. He was first designated by the U.S. government as a “known or suspected terrorist” in 2012, when he was still a minor. As a result, Mr. Khalid has been subject to multiple interrogations and intrusive searches by CBP and Federal Bureau of Investigation (FBI) officers. He learned that he had been placed on the No Fly List in 2019, when he tried to return to the U.S. from Karachi, Pakistan, but was prohibited from boarding his flight. He has been unable to return to the U.S.—his home country—for nearly two years due to his placement on the No Fly List. Mr. Khalid claims that the U.S. government has failed to provide any reason or justification for placing him on the list, or a fair process for challenging that placement.

The complaint alleges violations of Mr. Khalid’s rights under the Fifth Amendment (substantive and procedural due process), the First Amendment (retaliation for refusing to acquiesce to interrogations), the Religious Freedom Restoration Act (burden on his exercise of religion), and the Administrative Procedure Act. Mr. Khalid seeks a declaratory judgment that Defendants have violated his rights, as well as an injunction which, among other things, requires Defendants to remove Mr. Khalid from any watchlist or database that burdens his ability to enter the United States.

As of October 26, 2021, Defendants have not yet filed an answer or any responsive motion.

Documents:

Counsel: Council on American-Islamic Relations

Contact: Gadeir Abbas | gabbas@cair.com | 202-742-6420.

State of Texas and State of Louisiana v. United States

State of Texas and State of Louisiana v. United States, No. 6:21-cv-00016 (S.D. Tex., filed Apr. 6, 2021); 21-40618 (5th Cir., filed Aug. 20, 2021)

On April 6, 2021, the State of Texas and the State of Louisiana commenced this action seeking to enjoin the enforcement of interim immigration enforcement priorities outlined in two memoranda issued by the Department of Homeland Security (DHS) (dated Jan. 20, 2021) and Immigration and Customs Enforcement (ICE) (dated Feb. 18, 2021). Noting DHS’s limited resources and inability to respond to all immigration violations, those memos announced that the agency would prioritize enforcement against individuals who are purported to pose a threat to national security, individuals apprehended at or near the border while attempting to unlawfully enter the United States on or after November 1, 2020, and individuals convicted of an “aggravated felony” and recently released from criminal detention. Texas and Louisiana argue that these enforcement priorities are unlawful because:

(1) They violate the mandatory detention statute, 8 U.S.C. § 1226(c), as well as § 1231(a)’s requirement that noncitizens with final orders of removal be detained during the removal period;
(2) They unconstitutionally direct executive officials not to enforce federal immigration laws, in contravention of Article II’s “Take Care” Clause;
(3) They constitute arbitrary and capricious agency action in violation of the Administrative Procedure Act (APA);
(4) DHS and ICE issued the interim enforcement priorities without following the notice-and-comment procedures required by the APA; and
(5) The memos were issued without adherence to the notice and consultation requirements contained in DHS’s cooperation agreements with Texas and Louisiana.

On August 19, 2021, the district court granted a nationwide preliminary injunction, concluding that the memos violated the Immigration and Nationality Act (INA) and the APA. It thus enjoined the government from following the interim priorities outlined in the challenged memos. The U.S. government then sought an emergency stay pending appeal as well as a temporary administrative stay. The Fifth Circuit granted a temporary administrative stay and heard oral argument on the motion for emergency stay pending appeal.

On September 15, 2021, the Fifth Circuit published its decision granting in part and denying in part the government’s motion to stay the preliminary injunction. While staying much of the injunction, the Fifth Circuit left narrow portions of the order in place. Specifically, the court declined to stay the injunction only insofar as it restrained the Biden Administration from using the Priorities Memos to guide the discretion of immigration officials in deciding whether to release two specific categories of immigrants: (1) those subject to the mandatory provision under 8 U.S.C. §§ 1226(c)(1) against whom immigration officials have issued a detainer and (2) those with final removal orders and subject to mandatory detention under § 1231(a)(2). The injunction is stayed pending appeal in all other respects.

On September 30, 2021, DHS completed its review of its policies and practices concerning immigration enforcement and issued a new memorandum establishing its revised enforcement priorities. The new guidance is set to become effective on November 29, 2021, thereby superseding the challenged interim priorities. In light of this development, the government filed a motion for abeyance on October 6, 2021, arguing that the case would likely become moot before the court reaches a decision on merits. The government requested that the court hold the case in abeyance until the new priorities go into effect, and also that the court stay the briefing schedule pending resolution of the motion.

Texas and Louisiana filed a response opposing the motion for abeyance as well as a petition for rehearing en banc, arguing that the panel had erred by misconstruing the relevant INA provisions and also by failing to evaluate whether the challenged memos violated the APA. In the district court proceedings, the States filed an amended complaint, alleging that DHS’s September 30 memorandum “suffers from the same legal infirmities” as its earlier memos. They also filed a motion to postpone the effective date of the recent memorandum, or, in the alternative, to preliminarily enjoin its enforcement.

As of October 26, 2021, both the government’s motion for abeyance and the States’ petition for rehearing en banc are pending before the Fifth Circuit, while the district court is awaiting the government’s opposition to the States’ motion to postpone (due November 12, 2021). On November 12, 2021, Defendants filed their response in opposition to the motion to postpone.

In district court, parties held a pre-trial conference on January 25, 2022, to deal with evidentiary issues. A final pretrial conference was reset for February 22, 2022, with a bench trial set for the following day.


In the Fifth circuit, Appellee’s filed their brief on November 8, 2021, and Appellants filed their reply brief on January 18, 2022.

Documents:

Counsel: Brian M. Boynton, Jennifer B. Lowery, Sarah E. Harrington, H. Thomas Byron III, Michael Shih, and Sean Janda | U.S. Dep’t of Justice

Contact: Department of Justice