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

Advertisements

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

Blanca Gomez Arellano v. United States

Blanca Gomez Arellano v. United States, No. 2:19-cv-00141 (S.D. Tex., filed May 13, 2019).

This is a wrongful death lawsuit brought by a mother whose son who died trapped in a tractor-trailer container while the vehicle was impounded by U.S. Customs and Border Protection (CBP). On October 13, 2017, CBP officers detained a tractor-trailer for inspection and discovered an undocumented individual inside. CBP then took the driver and undocumented individual into custody and impounded the truck. Three days later, CBP officers noticed a foul smell and liquid leaking from the truck, and they contacted the local sheriff’s department, who found a decomposing body.

The complaint alleges claims under the Federal Tort Claims Act for negligence, gross negligence, assault and battery, false imprisonment, and intentional infliction of emotional distress. A policy manual currently in effect directs CBP officers that “all closed containers must be opened and their contents inventoried” upon the impounding of a vehicle. The compartment in which the victim’s body was found was clearly marked as a “Liftable Lower Bunk.” The complaint alleges that the officers acted negligently or recklessly to cause the victim’s death.

Counsel: Texas Civil Rights Project

Contact: Efrén C. Olivares | efren@texascivilrightsproject.org

FTCA Administrative Complaint Filed with CBP over Killing of Unarmed Woman

An unnamed Border Patrol Agent shot and killed Claudia Patricia Gómez González in Rio Bravo, Texas on May 23, 2018.

According to an administrative Federal Tort Claims Act (FTCA) complaint filed by Claudia’s parents with the Department of Homeland Security (DHS), Claudia was walking in Rio Bravo with several other people when the group was approached by the unknown Border Patrol Agent. Four of the individuals fled, while Claudia and another person stayed in the vacant lot where the CBP agent had approached them. The agent drew his weapon and shot Claudia in the head. She was unarmed and no one in the group did anything threatening or violent.

CBP issued a statement soon after the incident claiming that members of Claudia’s group had attacked the agent with “blunt objects.” They later retracted this statement.

The administrative complaint raises claims for battery, negligence, gross negligence, recklessness, and wrongful death.

Counsel: Kirkland & Ellis LLP

Contact: Yosef J. Reimer | 212-446-4802 | Yosef.riemer@kirkland.com

NBC 7 San Diego v. United States Department of Homeland Security

NBC 7 San Diego et al v. United States Department of Homeland Security et al., No. 1:19-cv-01146 (D.D.C., filed Apr. 22, 2019).

In March 2019, NBC 7 San Diego reported that U.S. Customs and Border Protection (CBP) maintains a secret database of lawyers, journalists, and others who were covering the migrant caravan or advocating for asylum seekers. Several of those in the database reported spending hours in secondary screening, and at least three people reported being barred from crossing into Mexico.

NBC reported that CBP secretly tracks these individuals under the aegis of “Operation Secure Line,” the moniker for its efforts to deter and intimidate caravans of asylum seekers. The agency’s proffered justification for maintaining this secret database is that the people listed were somehow involved with an incident in which a large group of asylum seekers approached the border barrier, leading CBP to respond with tear gas.

The existence of this database attracted the attention of the House of Representatives’ Committee on Homeland Security, prompting a letter to DHS leadership requesting further information on the tracking of journalists and advocates.

On April 22, 2019, NBC 7 San Diego filed this lawsuit under the Freedom of Information Act (FOIA) seeking records that reference “Operation Secure Line” and the secret database.

Counsel: The Reporter’s Committee for Freedom of the Press

Contact: Katie Townsend | 202-795 – 9300 | ktownsend@rcfp.org

Innovation Law Lab v. Nielsen

Innovation Law Lab et al. v. Nielsen, No. 3:19-cv-00807 (N.D. Cal., filed Feb. 14, 2019)

On December 20, 2018, Secretary of Homeland Security Kirstjen M. Nielsen announced a new government policy, the “Migrant Protection Protocols,” that would force noncitizens seeking admission from Mexico to return to Mexico to await their removal proceedings. The administration voiced its intention to implement the policy “on a large scale basis,” beginning first with San Ysidro Port of Entry in California on January 28, 2019.

A lawsuit challenging the administration’s forced return policy, commonly known as the Remain in Mexico policy, was brought by legal organizations that serve asylum seekers and by eleven asylum seekers from Central America harmed by this policy. Defendants include DHS, CBP, USCIS and ICE. The complaint explains that the individual plaintiffs are particularly vulnerable to violence and discrimination in Mexico, of which many have already suffered. Furthermore, without access to legal representation, information regarding immigration court hearings, and financial resources, these asylum-seekers are meaningfully deprived of their right to apply for asylum.

In addition to alleging that the procedures for determining whether individuals will face persecution or torture in Mexico are unlawful, the complaint specifies the grossly deficient—and at times abusive—practices of CBP agents in carrying out these procedures. The complaint recounts cursory interviews during which plaintiffs routinely were not asked about their fear, were not provided explanations, were coerced into signing documents, and were questioned by agents who did not speak fluent Spanish and who interrupted, got angry with and threatened them. The procedural deficiencies undermine the U.S.’s domestic and international legal obligations to ensure nonrefoulement, or “withholding of removal” under the INA, which prohibits the return of any individual to a country where he or she would more likely than not face persecution.

The policy also substantially interferes with the ability of legal organizations serving asylum seekers and other immigrant populations, as it will strain and divert their resources to helping those in Mexico. Because the government failed to provide notice and comment before implementing this policy as required under the APA, the organizational plaintiffs did not have the opportunity to inform the defendants about the harmful consequences of such a policy or persuade them not to adopt it.

On February 20, 2019, Plaintiffs filed a motion for a temporary restraining order to enjoin the government’s policy of forced return until the court rules whether to grant a preliminary injunction. Defendants have since filed a motion to transfer the case to the Southern District of California.

Counsel: Judy Rabinovitz, Michael Tan, Omar Jadwat, Jennifer Chang Newell, Katrina Eiland, Julie Veroff, Lee Gelernt, Anand Balakrishnan, & Daniel Galindo, ACLU Immigrants’ Rights Project; Sean Riordan & Christine Sun, ACLU of Northern California; Melissa Crow, Mary Bauer, Saira Draper, & Gracie Willis, Southern Poverty Law Center; Blaine Bookey, Karen Musalo, Eunice Lee, Kathryn Jastram, & Sayoni Maitra, Center for Gender & Refugee Studies.

Contact: Judy Rabinovitz | ACLU Immigrants’ Rights Project | jrabinovitz@aclu.org
Jennifer Chang Newell | ACLU Immigrants’ Rights Project | jnewell@aclu.org

Suda and Hernandez v. U.S. Customs and Border Protection

Suda v. U.S. Customs and Border Protection, No. 4:19-cv-00010-BMM, (D. Mont., filed Feb. 14, 2019)

On May 16, 2018, Ana Suda and Martha Hernandez were shopping at a convenience store in the small town of Havre, Montana, where both reside, when they were seized and detained by CBP Agent Paul O’Neill. While in the checkout line, Ms. Hernandez gave a friendly hello to Defendant O’Neill who was in line behind them. He responded by asking the two women where they were born. Although Ms. Suda and Ms. Hernandez told the agent they were U.S. citizens, born in Texas and California, respectively, Defendant O’Neill proceeded to detain them. Even after giving Defendant O’Neill their Montana driver’s licenses, they were detained for forty minutes. The only reason both Defendant O’Neill and his supervisor subsequently gave for their detention was that Ms. Suda and Ms. Hernandez were speaking Spanish.

On February 14, 2019, the ACLU of Montana filed an action against CBP and its agents for violations of Ms. Suda and Ms. Hernandez’s Fourth and Fifth Amendment rights. The complaint alleges that Defendant O’Neill stated he had asked for identification “because I came in [the convenience store] and saw that you guys are speaking Spanish which is very unheard of up here.” Defendant O’Neill’s supervisor confirmed that the women had been singled out for speaking Spanish and specifically admitted that CBP doesn’t detain individuals for speaking French.

The complaint alleges that other Latinos in the community similarly have been targeted by CBP agents. The suit names as defendants CBP, its Commissioner, Defendant O’Neill, and 25 “John Doe” agents. Plaintiffs seek declaratory and injunctive relief aimed at preventing CBP officers from stopping and detaining individuals solely on the basis of race, accent, and/or speaking Spanish. The Plaintiffs also seek compensatory and punitive damages pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The government, which is representing all the defendants except for Defendant O’Neill, filed a motion to dismiss on April 19, 2019. Defendant O’Neill, through private counsel, submitted a motion to dismiss the claims for injunctive and declaratory relief. June 4, 2019. Defendant O’Neill did not seek dismissal of the Bivens claim for damages.

Counsel: ACLU Immigrant Rights Project, ACLU of Montana; Crowley Fleck

Contact: Alex Rate | ACLU of Montana Foundation, Inc. | 406.203.3375 | ratea@aclumontana.org

 

SIX FTCA ADMINISTRATIVE COMPLAINTS FILED WITH CBP AND OTHERS OVER SEPARATION OF PARENTS AND CHILDREN

SIX FTCA ADMINISTRATIVE COMPLAINTS FILED WITH CBP AND OTHERS OVER SEPARATION OF PARENTS AND CHILDREN

On February 11, 2019, six asylum-seeking mothers and their children filed administrative claims for money damages for the trauma they suffered when torn apart under the Trump Administration’s family separation policy. Each family was fleeing persecution in their country of origin. Instead of finding safety in the United States, the government forcibly took the children from their mothers and then left them in the dark about where they were taken and when—if ever—they would see each other again. The mothers and their children suffered greatly during the separations, which in some cases lasted for months. For example:

  • A 7-year-old girl is still unable to sleep unless her mom holds her;
  • A 7-year-old boy refuses to go to school, fearful of being separated from his mom again;
  • A 5-year-old girl now cries when she drops something, saying “Don’t get mad at me, don’t hit me.”
  • A 6-year-old boy separated from his mother for more than two months refuses to talk about his time in a New York shelter and is reluctant to eat.

The claims charge the government with intentionally inflicting emotional pain and suffering on these families in order to deter other Central Americans from seeking asylum in the United States. The claims were filed with the Department of Homeland Security and the Department of Health and Human Services. 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: The American Immigration Council, the National Immigrant Justice Center, Arnold & Porter, and Kairys, Rudovsky, Messing, Feinberg & Lin.

Contact: Trina Realmuto | American Immigration Council | 857.305.3600 | trealmuto@immcouncil.org
Mary Kenney | American Immigration Council | 202.507.7512 | mkenney@immcouncil.org

 

Lovell v. United States

Lovell v. United States of America, No. 1:18-cv-01867 (E.D.N.Y., filed Mar. 28, 2018)

On November 27, 2016, Tameika Lovell was returning from Jamaica and traveling through John F. Kennedy Airport when U.S. Customs and Border Protection (CBP) officers selected her for a “random search.” Officers took her to a secured area and conducted a physically invasive and traumatic search of her body, including a body cavity search, for which she later sought medical and psychological treatment.

Ms. Lovell filed a federal tort claim with CBP on May 10, 2017, but it was subsequently denied. On March 28, 2018, Ms. Lovell filed this action seeking damages under Bivens and alleging violations of her Fourth and Fifth Amendment rights. The complaint alleges that CBP’s search of Ms. Lovell was carried out in in violation of the Fourth Amendment and was conduct that “shocked the conscience” in violation of the Fifth Amendment. She further alleges that the search was not random but instead based on her race, and that CBP unlawfully singles out females and persons of color for searches. Furthermore, Ms. Lovell alleges that the United States and CBP condone employees’ intentional violations of the National Standards on Transportation, Escort, Detention, and Search—the agency’s written standards for searches. Ms. Lovell seeks compensatory and punitive damages against CBP.

Press Coverage:

Counsel: Eric Sanders, The Sanders Firm, P.C.

Boule v. Egbert

Boule v. Egbert et al., Nos. 2:17-cv-00106-RSM (W.D. Wash., filed Jan. 25, 2017) and 18-35789 (9th Cir., filed Sep. 20, 2018)

A U.S. citizen filed a Bivens action for damages he suffered when a U.S. Border Patrol agent unlawfully entered his property in violation of the Fourth Amendment, refused to leave when told to do so, and knocked him to the ground. The district court granted the defendant agent’s motion for summary judgment and dismissed the plaintiff’s Fourth Amendment claim. Although it found that the agent had violated the Fourth Amendment, it nevertheless held that the case presents a new context for Bivens and that special factors existed which counseled against extending Bivens. In particular, the court found that the case implicated national security issues because the plaintiff’s property—where the incident occurred—is located right on the United States’ side of the U.S-Canada border. The court indicated that the risk of personal liability would cause Border Patrol agents to hesitate and second guess their daily decisions about whether and how to investigate suspicious activity near the border.

The plaintiff appealed to the Ninth Circuit. Northwest Immigrant Rights Project and the American Immigration Council filed an amicus in support of the appeal. The appeal currently is pending.

Counsel: Breean L. Beggs, Paukert and Troppmann; Gregory Boos and W. Scott Railton, Cascadia Cross-Border Law

Contact: Gregory Boos | Cascadia Cross-Border Law | 360.671.5945 | gdboos@cascadia.com