Author Archives: NWIRP

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.

Amadei, et. al. v. Nielsen

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Amadei, et al. v. Nielsen, et al., No. 1:17-cv-05967 (E.D.N.Y., filed Oct. 12, 2017)

On October 12, 2017, the ACLU, along with Covington & Burling, LLP, filed suit against Customs and Border Protection over the February 22, 2017 search by CBP of passengers of a Delta Airlines flight that arrived at JFK. After the flight landed, CBP officers stood outside the plane and required every disembarking passenger to provide identification, even though the flight was a domestic flight. The ACLU brought suit on behalf of passengers on the plane who allege that this demand for identification violated their rights under the Fourth Amendment. The plaintiffs seek declaratory relief that the February 22, 2017 search was unconstitutional, as well as injunctive relief preventing CBP from conducting similar searches of passengers disembarking from domestic flights.

Defendants filed a motion to dismiss, arguing that the agency action was not final and that Plaintiffs lacked standing. The parties completed briefing on the motion on April 20, 2018. On December 13, 2018, the court denied the government’s motion and allowed the case to proceed. Following discovery, the parties agreed to settle the case.

Under the terms of the settlement, CBP will circulate a new policy directive to ports of entry nationwide clarifying that CBP does not have a policy or practice of checking the identification of deplaning domestic passengers. If CBP officers do seek to conduct document checks of deplaning domestic passengers in the future, they must make clear through their words and actions that participation is voluntary and request that airline personnel announce over the airplane’s public address system that participation in voluntary. The officers must also provide an unimpeded path for passengers to exit the airplane and explain, if asked, that passengers who decline to participate will face no law enforcement consequences as a result.

Press:

Serrano v. CBP

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Serrano v. U.S. Customs and Border Protection et al., Nos. 2:17-cv-00048 (W.D. Tex., filed Sept. 6, 2017) and 18-50977 (5th Cir., filed Nov. 21, 2018)

On September 6, 2017, the Institute for Justice brought a class action suit against Customs and Border Protection over the agency’s practice of engaging in civil forfeiture of vehicles at ports of entry on the U.S.-Mexico border. The plaintiff, Gerardo Serrano, was detained in 2015 when crossing into Mexico at the Eagle Pass, Texas port of entry. After CBP officers found a small amount of pistol ammunition in his truck, they seized the vehicle. CBP held his truck for over two years without ever filing a civil forfeiture action in court against him, despite requiring him to post thousands of dollars for a bond purportedly to allow him to challenge the seizure. Because the agency never filed a forfeiture action, Mr. Serrano was given no opportunity to have his day in court and challenge CBP’s seizure.

His complaint alleges that CBP seizes hundreds of vehicles owned by American citizens each year and refuses to hold prompt post-seizure hearings at which the owners can challenge the seizure. The class action suit seeks declaratory and injunctive relief requiring CBP to hold prompt post-seizure hearings, as well as compensation for Mr. Serrano. In October 2017, CBP returned Mr. Serrano’s truck without subjecting it to a forfeiture action. On December 13, 2017, Defendants moved to dismiss the suit. The parties completed briefing on January 19, 2018.

On July 23, 2018, the magistrate judge issued a Report and Recommendation in which he advised granting Defendants’ motions to dismiss.

On September 28, 2018, the district court adopted the magistrate judge’s recommendations and issued an order denying class certification and granting all motions to dismiss. Mr. Serrano appealed the district court decision to the Fifth Circuit on November 21, 2018.

In April 2019, the plaintiff filed his opening brief with the Fifth Circuit. Several amicus briefs were filed in support. The government’s answering brief was filed in August 2019. As of October 2019, those briefs are still pending. The government filed a notice of supplemental authority regarding Cantu v. Moody 933 F.3d 414 (5th Cir. Aug. 5, 2019) on January 28, 2020. The court heard oral argument on February 4, 2020. On February 26, 2020, the plaintiff filed a notice of supplemental authority regarding the Supreme Court’s decision in Hernandez v. Mesa.

The Fifth Circuit affirmed the lower court’s decision on September 16, 2020, holding (1) that CBP’s seizures of property without prompt judicial hearings on remission do not violate the Due Process Clause and (2) that Serrano failed to state a Bivens claim, as his complaint did not plausibly allege that CBP agents violated clearly establish law by seizing his truck and keeping it for 23 months without providing him with a post-seizure hearing.

On December 1, 2020, Plaintiffs petitioned the Supreme Court for a Writ of Certiorari. On March 2021, Respondent filed a brief in opposition and Petitioners filed their reply. On April 19, 2021, the Supreme Court denied the cert petition.

Fifth Circuit Pleadings:

Supreme Court:

Counsel: Anya Bidwell & Robert Everett Johnson | Institute for Justice

Merchant v. Mayorkas (formerly Alasaad v. Nielsen)

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Merchant v. Mayorkas (formerly Alasaad et al. v. Nielsen et al., No. 1:17-cv-11730-DJC  (D. Mass., filed Sept. 13, 2017), Nos. 20-1077, 20-1081 (1st Cir., filed Jan. 28, 2020), No. 20-1505 (Sup. Ct., filed Apr. 23, 2021)

On September 13, 2017, the Electronic Frontier Foundation, along with the ACLU and the ACLU of Massachusetts, brought suit against Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), challenging those agencies’ practices of seizing travelers’ electronic devices without a warrant or individualized suspicion of wrongdoing. The organizations filed on behalf of 10 U.S. citizens and one lawful permanent resident who had smartphones and other electronic devices seized when they arrived at the U.S. border. Many of the plaintiffs had their devices confiscated for extended periods of time. Plaintiffs seek the return of their devices, as well as declaratory and injunctive relief requiring the government to seek a warrant or have probable cause that a crime was committed prior to seizing a traveler’s cellphone. On December 15, 2017, Defendants filed a motion to dismiss.

On May 9, 2018, the court denied Defendants’ motion to dismiss, holding that Plaintiffs plausibly alleged that the government’s digital device search policies substantially burden travelers’ First Amendment rights.

Defendants filed an answer on June 1, 2018. Since then, the parties have been proceeding through the discovery process. In Spring 2019, the parties cross-moved for summary judgment, with plaintiffs arguing that CBP’s policy authorizing warrantless, suspicionless searches of electronic devices violates the First and Fourth Amendments and are seeking an injunction. Oral argument was held in July 2019. In November 2019, the court denied Defendants’ motion for summary judgment. The court allowed in part and denied in part Plaintiffs’ motion for summary judgment, denying the request for injunctive relief but allowing the request for declaratory relief. The district court then entered a judgment stating that border authorities may only search a traveler’s electronic device if they have reasonable suspicion that the device contains digital contraband. Defendants appealed the order, and Plaintiffs cross-appealed in January of 2020. Briefing on the cross-appeals was ongoing through July, and in August 2020, Harvard Immigration and Refugee Clinic, the Brennan Center for Justice, Constitutional Accountability Center, The National Association of Criminal Defense Lawyers, the Knight First Amendment Institute, and a number of other civil rights, immigration, privacy, and free speech organizations filed briefs as amicus curiae.

On February 9, 2021, the First Circuit issued its decision, holding that neither a warrant nor reasonable suspicion are required for CBP agents to conduct a basic search of electronic devices, and that neither a warrant nor probable cause is required to conduct an advanced search. It also held that CBP agents can retain an electronic device after a traveler crosses the border.

On April 23, 2021, Plaintiffs filed a petition for a writ of certiorari to the Supreme Court, asking the Court to clarify what level of suspicion (i.e., probable cause, reasonable suspicion, or none) is required to search a traveler’s electronic devices, and the scope of that search. The petition further asks the Supreme Court to impose a minimum requirement of reasonable suspicion for any such search conducted at the border. The Constitutional Accountability Center, the Center for Democracy & Technology, the Brennan Center for Justice, and TechFreedom submitted amicus briefs in support of the Plaintiff-Petitioners. On June 28, 2021, the Supreme Court denied the petition for certiorari.

Documents:

Counsel:  Electronic Frontier Foundation, American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Massachusetts

FTCA Administrative Complaint Against Border Patrol Re: Two Sisters Sexually Assaulted by CBP Officer in Texas

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FTCA Administrative Complaint Against Border Patrol Re: Two Sisters Sexually Assaulted by CBP Officer in Texas

In July 2016, two sisters — then 19 and 17 years old — lost their way while traveling to the United States from Guatemala, and encountered CBP officers after crossing the Texas-Chihuahua, Mexico, border. They asked for help and were taken to a CBP field office in Presidio, Texas. Once there, the sisters were led by a federal officer into a closet-like room one at a time, told to remove all their clothes, and sexually assaulted. The victims report that they continue to suffer severe emotional distress as a result of the assault.

The sisters reported the abuse shortly after it occurred to another CBP officer in the field office where they were held, and an investigation was launched by the Department of Homeland Security’s Office of Inspector General. The sisters were interviewed twice and asked to draw a depiction of the closet. Federal authorities have not pursued criminal charges against the officer, nor is it clear whether the officer has faced any disciplinary actions for his assaults on the sisters.

On March 22, 2017, the ACLU of Northern California filed two administrative claims under the Federal Tort Claims Act with the federal government on behalf of each of the sisters.

Media:

Counsel:  ACLU of Northern California

Contact: Angélica Salceda | asalceda@aclunc.org | (415) 621-2493

Alton Jones v. United States of America, et al.

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Alton Jones v. United States of America, et al., No. 3:16-cv-01986-W-WVG (S.D. Cal., filed Aug. 8, 2016)

In August 2014, Alton Jones, a U.S. citizen who served as a Navy SEAL from 1977 to 1990, was assaulted by Border Patrol agents while out for a run at the Border Field State Park / Tijuana Estuary. He was tackled to the ground and then detained, first at the State Park and then at the Imperial Beach Border Patrol Station, where he was held without charge or explanation overnight. All told, he spent seventeen hours in Border Patrol custody before being released. He was never charged with any offense.

On August 8, 2016, the ACLU of San Diego and Imperial Counties’ Border Litigation Project filed a federal complaint in the Southern District of California on Mr. Jones’s behalf, alleging violations of Mr. Jones’ Fourth Amendment rights. Additionally, under the Federal Tort Claims Act, Mr. Jones submitted an administrative complaint to the Department of Homeland Security and U.S. Customs and Border Protection, claiming $3 million in damages for false imprisonment, battery by a peace officer, assault, negligence, intentional infliction of emotional distress, and violation of the California Bane Act.

On October 20, 2017, CBP denied Mr. Jones’s administrative tort claim. On February 3, 2017, because his administrative claim was denied, the Border Litigation Project filed an amended complaint to add Mr. Jones’s tort claims. On April 7, 2017, Defendants filed an answer to Mr. Jones’s amended complaint. On April 10, 2017, Defendants filed a counterclaim against Mr. Jones, alleging assault.

Discovery commenced in May 2017 and concluded in April 2018. On January 12, 2018, Plaintiff and Counter-Defendant filed a motion for summary judgment on the government’s counterclaim, which the government opposed. On May 2, 2018, Defendants filed a combined motion for summary judgment as to all claims brought against them and on their counterclaim against Plaintiff. On May 16, 2018, Defendants, DHS and CBP, filed another motion for summary judgment, this time seeking to dismiss the FOIA claim. Plaintiff opposed both motions. On November 15, 2019, the court dismissed in part and granted in part both motions for summary judgment.

The court dismissed the constitutional claims against the CBP officers, finding that the CBP agents had probable cause to arrest Mr. Jones due to his presence in a restricted area and his failure to heed repeated warnings to leave. The court allowed several of the FTCA claims to proceed. Notably, Jones’ claim for battery survived summary judgment due to Jones’ testimony that officers hit him, supported by documented evidence of injuries. His claim for intentional infliction of emotional distress, based on his allegation that the agents locked him in a patrol car with the heat turned on and the windows rolled up (in August desert sun), also was allowed to proceed. The defendants won summary judgment on their counterclaim against Jones for negligence in causing injury to one of the officers.

The parties settled in March 2019, agreeing to drop the claims against each other without either party paying compensation.