Author Archives: NWIRP

Bressi v. Napier

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Bressi v. Napier, No. 4:18-cv-00186 (D. Ariz., amended complaint filed July 2, 2018) and No. 22-15123 (9th Cir., filed Jan. 27, 2022)

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 based on 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 a deputy illegally detained him at a Border Patrol checkpoint. 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, a 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.

This 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.” The federal defendants answered the complaint on October 2, 2019. The Pima County defendants moved to dismiss the case.

On April 17, 2020, the court granted the motion to dismiss in part. Although the court dismissed Bressi’s claim that defendants improperly retaliated against him for exercising his First Amendment right not to speak during an immigration stop, Bressi’s Fourth Amendment claims regarding the constitutionality of the checkpoint and his arrest survived.

Discovery continued through June 2021. On June 10, 2021, Plaintiff filed a motion for partial summary judgment on Plaintiff’s claim that the checkpoint violates the Fourth Amendment and on June 17, 2021, Defendants filed a cross motion for summary judgment. On January 10, 2022, the district court granted Defendants’ motion for summary judgment and denied Plaintiff’s motion for partial summary judgment. Judgment was entered in favor of Defendants. Plaintiff has filed a notice of appeal to the Ninth Circuit.  On February 24, 2023, the Ninth Circuit affirmed the judgment of the district court, finding the evidence showed that the checkpoint was a permissible exercise of immigration enforcement authority and that Bressi’s arrest was supported by probable cause.

Documents:

Counsel: Ralph E. Ellinwood PLLC

Contact: Ralph E. Ellinwood | Ralph E Ellinwood Attorney at Law PLLC | ree@yourbestdefense.com

Resources:

AIC v. DHS

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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.

Ultimately, the parties reached settlement on the merits and on attorneys’ fees and the case was dismissed in June 2019. Records available at link below.

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

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

Records available at:

Kazazi v. CBP

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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. The parties later resolved their dispute concerning the additional $770 seized and filed a stipulated dismissal on November 19, 2018. On March 1, 2019, the court awarded $43,280.13 in attorneys’ fees and costs to Petitioners.

Press Release:

Counsel: BakerHostetler LLP | Institute for Justice

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

Nwaorie v. CBP, et al.

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Nwaorie v. U.S. Customs and Border Protection, et al., No: 4:18-cv-1406 (S.D. Tex., filed May 3, 2018); 19-20706 (5th Cir., filed Oct. 8, 2019)

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.

In May 2019, a magistrate judge recommended dismissal, finding that sovereign immunity barred the claims, and alternatively, the government’s return of Ms. Nwaorie’s money rendered her claims moot. The magistrate judge also recommended dismissal of Nwaorie’s constitutional claims, finding that CBP had a rational basis to subject her to additional searches because of the large amount of money she was carrying.

The plaintiff filed an objection to the magistrate’s memorandum and recommendations. • Unfortunately, the district court judge affirmed the magistrate judge’s recommendations and dismissed the case in August 2019. The Fifth Circuit Court of Appeals affirmed the lower court’s decision that Ms. Nwaorie lacked standing, failed to state a claim, and was barred by sovereign immunity. Ms. Nwaorie filed a petition for panel rehearing, followed by a petition for rehearing en banc, both of which were denied by the Fifth Circuit.

Press Releases:

Counsel: Institute for Justice

Contacts: 

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

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

DHS Family Separations FOIA

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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

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Michigan Immigrant Rights Center, et al., vs. United States Department of Homeland Security, and United States Customs and Border Patrol, No. 2:16-cv-14192 (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 would provide city-level information in apprehension reports about where apprehensions occur. Plaintiffs received these reports on a rolling three-month schedule through the end of 2018.  Plaintiffs moved for sanctions in January of 2020 based on Defendants’ failure to comply with production deadlines.

In March 2020, the parties stipulated that no disputes remained regarding Defendants’ production of documents and the case was dismissed with prejudice. On September 21, 2020, the court denied Plaintiffs’ motion for sanctions.

Contact: Miriam Aukerman | maukerman@aclumich.org

Gabriel Gomez Maciel v. Mylissa Coleman, in her official and individual capacities; City of Spokane

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Gabriel Gomez Maciel v. Mylissa Coleman, in her official and individual capacities; City of Spokane, No. 2:17-cv-00292 (E.D. Wa. filed August 21, 2017)

On August 24, 2014, Gabriel Gomez Maciel was driving to church when his pickup truck was struck by a minivan. Mylissa Coleman, who at the time was working as a police officer for the City of Spokane, arrived at the scene of the accident to investigate, and contacted the Border Patrol to ask whether the agency had any interest in Gomez. Coleman contacted the Border Patrol solely on the basis of Gomez’s race and ethnicity.

Even though Gomez had been injured in the accident, Coleman did not ask if he needed medical assistance. Even after she completed her investigation of the accident and cited the minivan driver, Coleman continued to detain Gomez Coleman’s continued detention of Gomez was not justified by reasonable suspicion, much less probable cause. Eventually, Border Patrol agents arrived and transferred Gomez to the Tacoma immigration detention center, where he remained for one month until he was able to post bond.

On August 21, 2017, the Northwest Immigrant Rights Project filed a complaint in the United States District Court in the Eastern District of Washington against Mylissa Coleman and the City of Spokane pursuant to42 U.S.C. § 1983 and Article 1, § 7 of the Constitution of the State of Washington. Gomez alleges that he suffered substantial physical, emotional, and economic harm as a result of his unlawful detention.

On November 13, 2017, the parties notified the Court that the case had settled. As part of the settlement agreement, the parties agreed to a number of conditions. The City of Spokane agreed to modify its policies to clarify that police officers “shall not contact, question, delay, detain, or arrest an individual [because] s/he is suspected of violating immigration laws.” The City has also agreed to provide training to City police officers regarding the policy change. As part of the settlement, the City also agreed to pay a total of $49,000 in damages and fees.

J.I. v. USA

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J.I. v. USA, No. 1:18-at-00185 (E.D. Cal., filed March 15, 2018)

In the summer of 2016, J.I., a minor, traveled from Guatemala with her older sister to reunite with their mother in the United States. The sisters became lost in the area near the Presidio, Texas and Ojinaga, Chihuahua border. Afraid and thirsty, the sisters flagged down Border Patrol agents for help. The sisters were then taken into custody.

Once J.I. was in custody, a Border Patrol agent removed her from the cell she was in with her sister and took her to a small room, where he forced J.I. to remove her clothing and expose her breasts and genitalia. He then assaulted and battered J.I.

On March 21, 2017, J.I. submitted an administrative claim to the U.S. Department of Homeland Security (“DHS”) and U.S. Customs and Border Protection (“CBP”), as required under the Federal Tort Claims Act (“FTCA”). In a letter dated September 27, 2017, CBP replied on behalf of all named agencies and denied the administrative tort claim in full.

On March 15, 2018, the ACLU of Northern California filed an FTCA lawsuit against CBP alleging assault and battery, false imprisonment, intentional infliction of emotional distress, and negligence. The lawsuit also included constitutional claims (violations of the Fourth and Fifth Amendments). The parties agreed to settle on October 19, 2018, and reached an agreement that includes a $125,000 payment to J.I. It is unclear whether CBP disciplined the agent, Fernando Saucedo III, and whether he is still employed by CBP.

Related Documents:

Counsel: ACLU of Northern California

Contact:  Angélica Salceda | ACLU of Northern California | asalceda@aclunc.org

 

Wilwal v. Kelly

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Wilwal, et al. v. Kelly, et al., No. 0:17-cv-02835 (D. Minn., filed July 13, 2017)

On July 13, 2017, the ACLU, the ACLU of Minnesota, and Robins Kaplan LLP brought suit on behalf of the Wilwal-Abdigani family, a family of six American citizens who were detained at a North Dakota port of entry for over ten hours when crossing back into the United States from Canada. When the family arrived at the border, CBP agents drew their weapons and handcuffed Abdisalam Wilwal, allegedly because his name appeared on a terrorism-related watchlist, which Mr. Wilwal believes was a wrongful placement. He was questioned for hours and ended up fainting while in custody due to the placement of his handcuffs. Agents allegedly questioned him for being a Muslim and demanded to know if he was involved with terrorism. When Mr. Wilwal’s teenage son called 911 and reported that he was being held against his will, CBP agents confiscated his phone and strip-searched him.

Mr. Wilwal and his family brought suit against CBP seeking declaratory and injunctive relief for violations of their constitutional rights, including the right against search and seizure and Mr. Wilwal’s right to due process because of his placement on a terrorism watchlist without any opportunity to challenge that placement. On October 12, 2017, the plaintiffs amended the complaint to add claims under the Federal Tort Claims Act for false imprisonment, assault, and battery. On November 8, 2017, the government moved to dismiss the case. Briefing was completed on the motion to dismiss on January 24, 2018.

On September 27, 2018 the court granted in part and denied in part the government’s motion to dismiss. Plaintiff’s claim alleging violation of substantive due process rights was dismissed with prejudice; and the government’s motion was denied in all other respects.

In May 2020, following successful settlement negotiations, the case was dismissed with prejudice.

Press coverage:

Counsel: ACLU Foundation; ACLU Foundation of Minnesota; Robins Kaplan LLP

R.M.H. v. Lloyd

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On October 30, 2017, the ACLU Immigrants’ Rights Project, the ACLU of Texas, and Washington Square Legal Services, Inc. filed suit against the Office of Refugee Resettlement and CBP following the arrest and detention of 10-year-old Rosa Maria Hernandez, who came to the United States when she was three months old and who suffers from cerebral palsy. On October 24, 2017, Rosa Maria was on her way to a children’s’ hospital for gall bladder surgery when the vehicle she was in, driven by a U.S. citizen, was stopped at a Border Patrol checkpoint. Despite being told that she was on her way to the hospital for an imminent surgery, Border Patrol agents detained her for thirty minutes before allowing her to depart.

Agents then followed her to the hospital, went inside, and tracked her movements up to and during the time that she was in surgery. When attorneys for the hospital told the agents that they had to leave, the agents refused to do so, telling the hospital that they intended to arrest Rosa Maria and deport her when she was released from the hospital. When she was discharged the day after her surgery, the agents arrested her directly from her hospital bed and forcibly took her to an Office of Refugee Resettlement Shelter for unaccompanied minors.

On October 30, 2017, counsel for Rosa Maria filed a lawsuit alleging that the Border Patrol’s actions violated Rosa Maria’s statutory and constitutional rights, and sought a temporary restraining order seeking her immediate release. On November 3, 2017, the government released her to the care of her family. The case was voluntarily dismissed the same day. On January 8, 2018, the Border Patrol announced that it would take steps to expedite emergency medical vehicles through checkpoints.