Haitian Bridge Alliance, et al. v. Biden, et al., No. 1:21-cv-03317 (D.D.C., filed Dec.20, 2021)

Mirard Joseph is a Haitian man who was whipped by a U.S. Border Patrol agent while attempting to bring food to his family in a Texas migrant encampment. Mr. Joseph alleges his wife received only bread and water and a single diaper for their infant daughter each day—conditions that eventually drove him and others to leave the Del Rio encampment and return to Mexico to buy food. When they attempted to reenter the camp with their purchases, they were met by Border Patrol officers who grabbed Mr. Joseph’s shirt, “lashed at him with reins, attempted to drag him back into the water, and nearly trampled him.”

Mr. Joseph and ten other Haitian nationals held in the temporary Border Patrol camp allege that this mistreatment was part of a discriminatory policy by the Biden administration to target Haitians. Plaintiffs allege that the U.S. government differentially applied the Title 42 process—a summary expulsion process purportedly designed to protect public health during the COVID-19 pandemic. Specifically, Plaintiffs allege that the government used Title 42 at the Del Rio Port of Entry against Haitian and Haitian-appearing asylum seekers with the purpose of discouraging them from accessing their right to seek asylum. Plaintiffs assert that this Haitian Deterrence Policy diverges from standard practice for asylum seekers and is driven by discriminatory purpose. Despite ample warning that thousands of Haitian migrants were heading toward Del Rio, federal authorities refused to prepare adequate infrastructure to receive them when arrivals started ramping up in September. As a result, a makeshift processing center under the Del Rio International Bridge turned into an encampment, where up to 15,000 people were made to wait for days at a time in temperatures topping 100 degrees without adequate food, water, bedding, or medical attention.

Footage described in the complaint prompted a national outcry in September 2021, with White House press secretary Jen Psaki calling the tape “horrific” during her September 20 press briefing. DHS Secretary Alejandro Mayorkas launched an internal investigation into the encounter. While the Secretary initially called for findings to be released by the end of September, results are still pending.

Plaintiffs allege that the Haitian Deterrence Policy did not end with mistreatment in Del Rio. After being processed for admission, the U.S. government placed those Haitian asylum seekers in detention, split up families, and shackled and removed them to Haiti without providing the opportunity to request humanitarian protection in the United States. Plaintiff Wilson Doe testified that DHS officers lied and said his family was being transferred to another detention facility when they were actually being expelled pursuant to Title 42. Officers then beat him when he resisted boarding the plane.

Plaintiffs allege violations of the Fifth Amendment due process clause and the Administrative Procedure Act. They also seek certification for a class of all Haitian or presumed Haitian individuals who were denied access to the U.S. asylum process in or around the Del Rio encampment between September 9 and 24, 2021. Plaintiffs seek declaratory and injunctive relief enjoining the government from subjecting members of the proposed class to the Haitian Deterrence Policy or Title 42 expulsions. They also seek return of those already expelled under Title 42 to allow them to pursue their asylum claims. Plaintiffs filed their complaint on December 20, 2021.

Counsel: Innovation Law Lab; Haitian Bridge Alliance; Justice Action Center.

Contacts:
Taisha Santil | tsaintil@haitianbridge.org
Tasha Moro | tasha.moro@justiceactioncenter.org
Alex Mensing | alexm@innovationlawlab.org

Documents:
Complaint

Press:
Class Action Ties Alleged Whipping To Haitian Discrimination
Haitian Migrants File Lawsuit Protesting Treatment by Border Patrol

Dousa v. U.S. Department of Homeland Security, et al., No. 3:19-cv-01255 (S.D. Cal., filed Jul. 8, 2019)

Pastor Kaji Douša sued the Department of Homeland Security (DHS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE), to stop their unlawful retaliation against her for providing pastoral services to migrants and refugees—a central calling of her Christian faith. In 2018, Pastor Douša helped organize the “Sanctuary Caravan,” a mobile clinic of faith leaders to deliver pastoral services, such as prayer and church-blessed marriage ceremonies, to migrants seeking asylum in the United States. In December 2018, Pastor Douša traveled to Mexico to join the Sanctuary Caravan. But upon attempting to return to the United States, federal officials detained and interrogated her. She later learned that DHS had targeted her for heightened scrutiny and had revoked her clearance for expedited border crossing as part of Operation Secure Line, a DHS intelligence collection operation targeting activists, lawyers, and journalists working on issues related to the October 2018 migrant caravan and conditions at the U.S.-Mexico border. In March 2019, media outlet NBC 7 San Diego revealed existence of a “watchlist” that included the names, photos, and information of fifty-nine individuals purportedly tied to the migrant caravans, including Pastor Douša.

Pastor Douša brought this suit in July 2019, alleging retaliation in violation of the First Amendment, violation of the First Amendment’s free exercise clause, and violation of the Religious Freedom Restoration Act (RFRA). She seeks declaratory relief and an injunction compelling the government to stop surveilling, detaining, interrogating, or acting unlawfully against her in retaliation for how, when, and where she exercises her religion.

On January 28, 2020, the court denied Pastor Douša’s motion for a preliminary injunction and granted in part the government’s motion to dismiss. The court dismissed Plaintiff’s hybrid First Amendment rights claim, which asserted a Free Exercise claim in conjunction with a free speech and association claim, but allowed her to proceed with her First Amendment free exercise and RFRA claims. The parties have continued to engage in discovery. In December 2021, Pastor Douša moved to sanction DHS for misrepresentations, discovery delays, and failure to correct a false declaration. The hearing on the motion for sanctions is now set for May 12, 2022.

Further information can be found on the Protect Democracy website.

Two other lawsuits related to the unlawful targeting of journalists, attorneys, and advocates as part of Operation Secure Line are Guan v. Mayorkas and Phillips v. CBP.

Documents:

Counsel:
Arnold & Porter LLP; Protect Democracy

Contact:
Stanton Jones | stanton.jones@arnoldporter.com
Christine Kwon | christine.kwon@protectdemocracy.org

Press:
New York Pastor and Immigration Advocate Asks Court to Sanction Federal Officials
Source: Leaked Documents Show the U.S. Government Tracking Journalists and Immigration Advocates Through a Secret Database – NBC 7 San Diego (nbcsandiego.com)

Granillo v. United States of America, No. 2:21-cv-00777 (D.N.M., filed Aug. 18,2021)

Anastacio Granillo is a 64-year-old man who was assaulted by a Customs and Border Protection (CBP) officer at the Columbus Port of Entry while returning home from visiting family in Mexico in June 2019. On June 18, 2019, Mr. Granillo arrived at the Columbus Port of Entry with his wife’s cousin. At passport check, Mr. Granillo suggested to CBP Officer Oscar Orrantia that it would be helpful to open up another lane to allow for faster processing of vehicles in the heat. The officer responded in an angry tone and stated that CBP officers could do whatever they wanted. The CBP officer then asked what Mr. Granillo was bringing into the United States. Mr. Granillo responded that he was bringing allergy medication that he purchased in Mexico. He attempted to hand the medication to the officer, but accidentally dropped it, and it landed in the officer’s hands. The officer accused Mr. Granillo of throwing the medication at him before forcing him out of his vehicle and slamming him against the wall of the vehicle inspection bay, causing him to hit his head, fall to the ground, and suffer multiple injuries. CBP then detained him without medical help for close to an hour, despite him having a large visible bump on his forehead.

Mr. Granillo filed a complaint in the District of New Mexico on August 18, 2021. He alleged Officer Orrantia used excessive and unnecessary force against him and illegally detained him. Mr. Granillo claims the following causes of action under the Federal Tort Claims Act: assault, battery, false arrest, and negligence. The government filed an answer to the complaint on October 22, 2021. The parties met on December 16, 2021, and filed a joint status report outlining their provisional discovery plan on January 3, 2022.

Defendants attempted to stay discovery and release of a key piece of video evidence for six months. On March 8, 2022, the District Court denied the requested six-month stay and ordered release of the video on or before May 5, 2022. A Rule 16 conference is scheduled for May 6, 2022.

Documents:
Complaint
Answer
Joint Status Report

Counsel:
ACLU of New Mexico

Contact:
María Martínez Sánchez | msanchez@aclu-nm.org
Zoila Alvarez Hernández | zalvarez@aclu-nm.org
Rebecca Fae Sherman Sheff | rsheff@aclu-nm.org

Press:
ACLU Sues CBP for Excessive Force Against New Mexican Man at Columbus Port of Entry

Anas Elhady v. Unidentified CBP Agents, et al., No. 20-01339 (6th Cir., filed Apr 22, 2020); No. 2:17-cv-12969 (E.D. Mich,, filed Sept. 10, 2017)

In 2015, Customs and Border Protection (CBP) stopped Anas Elhady, a naturalized citizen living in Michigan who was returning to the United States from Canada. CBP detained him for six hours at the Ambassador Bridge Facility, where officers left him in a freezing cold cell without his outerwear.

Mr. Elhady sued several CBP officers in September 2017, seeking monetary damages under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). On February 10, 2020, the district court granted motions for summary judgment for all of the defendants except one, Officer Blake Bradley. Bradley appealed to the Sixth Circuit.

On November 19, 2021, the court of appeals reversed the district court’s denial of summary judgment and held that this case presented a new Bivens context under Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020), because it implicated national security and raised questions reserved for the political branches. The court of appeals rejected Mr. Elhady’s argument that it lacked jurisdiction to consider the issue on interlocutory appeal and that Bradley had waived the issue by failing to raise the availability of Bivens on appeal. The appeals court maintained that they held jurisdiction over the Bivens issue on interlocutory appeal because it was necessary to evaluate the defense of qualified immunity. On January 25, 2022, the Sixth Circuit denied Mr. Elhady’s petition for rehearing en banc.

Documents:
Complaint
Second Amended Complaint
Motion to Dismiss
Summary Judgment Order
Defendant-Appellant’s Opening Brief
Plaintiff-Appellee’s Opposition Brief
Defendant-Appellant’s Supplemental Brief
Plaintiff-Appellee’s Supplemental Brief
Sixth Circuit Decision

Counsel:
Council on American-Islamic Relations (CAIR)

Contact:
Justin Sadowsky | jsadowsky@cair.com
Lena Masri | lmasri@cair.com
Gadeir Abbas | gabbas@cair.com

Mendivil Perez v. United States

Angel Mendivil Perez v. United States, et al., 4:21-cv-00051-JEM (D. Ariz., filed Feb. 4, 2021)

On February 7, 2019, Alex Mendivil Perez, a U.S. citizen who was then 21 years old, was shot in the head by a Customs and Border Protection (CBP) officer while attempting to exit the U.S. into Mexico through the Nogales port of entry. At around 7 p.m. that day, Mr. Mendivil arrived at the border crossing driving a pickup truck with a passenger. CBP officers approached his truck, which had license plates registered to a different vehicle, and questioned him. During the questioning, Mr. Mendivil accelerated towards Mexico. As Mr. Mendivil drove away, an unknown CBP officer shot Mr. Mendivil in the head through the back window of his car. Though Mr. Mendivil was so gravely injured that he was believed dead at the scene of his shooting, he survived with permanent injuries, including brain damage.

In February 2021, Mr. Mendivil filed suit against the United States and the unknown CBP officer alleging claims under the Federal Tort Claims Act as well as violations of his Fourth and Fifth Amendment rights. Plaintiff filed an amended complaint on August 13, 2021, and Defendants filed their answer on August 24, 2021. The case is now in discovery.

Documents:

Counsel: Risner & Graham

Contact: William J. Risner & Kenneth K. Graham| bill@risnerandgraham.com | kk@risnerandgraham.com

Additional links:

• Dana Liebelson, A CBP Officer Shot a 21-Year-Old American in the Head. 6 Months Later, CBP Won’t Say Why, Huffington Post, Oct. 19, 2019.
• Ray Stern, A Tucson Man Shot by a Border Officer While Entering Mexico Has Filed a Lawsuit Against DHS, Phoenix New Times, Feb. 8, 2021.

No More Deaths v. U.S. Customs and Border Protection

No More Deaths, et al. v. U.S. Customs and Border Protection, 1:21-cv-00954 (S.D.N.Y., filed Feb. 3, 2021)

Every year hundreds—possibly thousands—of migrants die while crossing into the United States from Mexico. The U.S. Border Patrol, within Customs and Border Protection (CBP), is responsible for most emergency aid requests for assistance in the desert, in part because local law enforcement agencies often refer 911 calls for emergency to Border Patrol when Spanish-speaking individuals call seeking help. Border Patrol’s role as an emergency services provider at the border is directly at odds with its role as an immigration enforcement agency.

Documentation by No More Deaths (NMD), a border aid organization, suggests that Border Patrol has often failed to carry out its search and rescue responsibilities: in 63% of all border distress calls referred to Border Patrol, the agency did not conduct any confirmed search or rescue mobilization. And when Border Patrol does initiate searches, they are significantly less effective when compared to searches for missing or lost U.S. citizens. Some Border Patrol searches last less than a day, or scarcely an hour. Documentation by local human rights organizations shows that in over 100 cases over a two-year period, Border Patrol agents actively interfered with family and humanitarian-organization led search efforts. In April 2019, NMD and the Center for Constitutional Rights (CCR) filed a Freedom of Information Act (FOIA) request seeking information about CBP’s practices and policies relating to emergency services it claims to provide along the U.S.-Mexico border. In February 2021, after CBP failed to provide records for over 20 months, NMD and CCR filed a complaint seeking to compel an immediate, expedited search for and disclosure of requested records. The government filed its answer to the complaint in March 2021. As of April 2022, CBP’s production of responsive material is ongoing.

Documents:

Counsel: Center for Constitutional Rights

Contact: Angelo Guisado | aguisado@ccrjustice.org

Additional Links

Center for Democracy & Technology v. Department of Homeland Security

Center for Democracy & Technology v. Department of Homeland Security, et al., 1:21-cv-134 (D.D.C., filed Jan. 15, 2021)

In 2011, the Department of Homeland Security (DHS) announced a plan to implement “Publicly Available Social Media Monitoring and Situational Awareness Initiatives,” which were designed to collect, analyze, and disseminate social media content. DHS has since significantly expanded its collection and monitoring of social media information, using that information to inform who may travel to, enter, and remain in the United States, as well as decisions about naturalization.

In August and September 2019, the Center for Democracy & Technology (CDT) submitted a series of Freedom of Information Act (FOIA) requests to Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS) requesting documents and training materials related to the collection and use of First Amendment protected activity on social media. On January 15, 2021, CDT filed a complaint in the U.S. District Court for the District of Columbia seeking to compel DHS, CBP, and ICE to immediately process its FOIA requests and disclose all non-exempt documents to CDT. Defendants filed their answer on March 11, 2021, and the parties have filed periodic status reports as production in response to the FOIA request continues.

Documents:

Counsel: Davis Wright Tremaine, LLP

Contact: David M. Gossett, Davis Wright Tremaine LLP | davidgossett@dwt.com

American Civil Liberties Union v. Department of Homeland Security

American Civil Liberties Union v. Department of Homeland Security, 1:20-cv-10083 (S.D.N.Y., filed Dec. 2, 2020).

Many modern cell phone applications routinely gather users’ location information and sell it to third parties, who then use it for marketing and other purposes. In February 2020, the Wall Street Journal reported that Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and the Department of Homeland Security (DHS) were purchasing location information from private companies and using it to locate and arrest noncitizens. One company, Venntel, appears to be selling access to a large database to DHS, CBP, and ICE. This raises serious concerns that CBP and ICE are evading Fourth Amendment protections by purchasing location information instead of obtaining warrants.

In February 2020, the ACLU filed Freedom of Information Act (FOIA) requests with DHS, CBP, and ICE seeking: (1) records of contracts, letters of commitments, and other agreements concerning government access to or receipt of cell phone location information; (2) all communications with or about Venntel Inc.; (3) policies, guidelines, memoranda, and trainings relating to government access and use of cell phone information purchased from commercial vendors; (4) formal legal analysis concerning access to commercial databases containing cell phone location information purchased from a commercial vendor; (5) records sufficient to show the volume of cell phone location data contained in commercial databases for which DHS, CBP, and ICE have purchased access; (6) records showing how many times each year DHS, CBP, and ICE employees or contractors have accessed such databases; and (7) records concerning the use of commercially purchased cell phone information in any court application, trial, hearing, or other proceeding.

On December 2, 2020, the ACLU filed a complaint seeking to compel CBP, ICE, and DHS to conduct adequate searches for the records they requested through FOIA. Defendants filed their answer on January 27, 2021, and production in response to ACLU’s FOIA request is ongoing as of October 2021.

Documents:

Counsel: ACLU Foundation Speech, Privacy, and Technology Project

Contact: Nathan Freed Wessler, ACLU Foundation | (212) 549-2500 | nwessler@aclu.org

Additional links:

• Brian Tau and Michelle Hackman, Federal Agencies Use Cellphone Location Data for Immigration Enforcement, The Wall Street Journal, Feb. 7, 2020.

Malik v. U.S. Department of Homeland Security

Adam A. Malik, et al. v. U.S. Department of Homeland Security, et al., No. 4:21-cv-00088-P (N.D. Tex., filed Jan. 25, 2021)

Adam Malik is an immigration attorney based in Texas. In January 2021, Mr. Malik returned to the United States from a trip to Costa Rica, during which he had used his phone to contact clients and work on cases in which the Department of Homeland Security (DHS) is an opposing party. When he attempted to reenter the United States through Dallas-Fort Worth Airport, Mr. Malik was sent to secondary inspection. After extensive questioning, including about his legal practice, Customs and Border Protection (CBP) officers seized Mr. Malik’s phone and informed him that its contents would be searched.

On January 25, 2021, Mr. Malik filed suit against the DHS and CBP in the Northern District of Texas. He claims that the seizure and search of his phone without probable cause or a warrant violates the First and Fourth Amendments. He also claims that CBP Directive 3340-049A, which governs the search of digital devices at ports of entry, is arbitrary and capricious, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), because it fails to adequately protect privileged legal information and impermissibly permits CBP to conduct searches and seizures that violate the First and Fourth Amendments. In addition to the return of his phone and the destruction of information and documents seized by CBP, Mr. Malik seeks injunctive and declaratory relief enjoining enforcement of CBP Directive 3340-049A and declaring it unlawful. On March 29, 2021, Defendants filed their answer to Mr. Malik’s complaint.

Documents:

Counsel: Roy Petty & Associates, PLLC

Contact: Roy Petty, Roy Petty & Associates, PLLC | (214) 905-1420, roy@roypetty.com

Additional links:
• Tim Cushing, Texas Immigration Lawyer Sues DHS, CBP Over Seizure and Search of His Work Phone, TechDirt.com, Feb. 2, 2021.

I.M. v. U.S. Customs and Border Protection

I.M. v. U.S. Customs and Border Protection, et al., No. 1:20-cv-3576-DLF (D.D.C., filed Dec. 11, 2020)

I.M. is a sustainable agriculture entrepreneur and founder of a nonprofit organization that promotes sustainable farming who came to the United States on a B-1 visa to learn more about sustainable agricultural practices. Despite having been admitted for this purpose in 2019, when he attempted to reenter the country in 2020 on a valid B-1 visa he was detained on erroneous grounds by a Customs and Border Protection (CBP) officer, who unilaterally decided to revoke I.M.’s visa and expel him from the country under the expedited removal statute, 8 U.S.C. § 1225(b)(1)(A)(i). At no point did I.M. have an opportunity to obtain judicial review of CBP’s legally and factually incorrect decisions to detain him, revoke his visa, and deny him admission to the country.

On December 11, 2020, I.M. filed a habeas petition and complaint against federal government defendants, including CBP, seeking vacatur of his removal order and reinstatement of his B-1 visa. I.M. argued that an unappointed CBP employee exercising unreviewed, unilateral discretion to revoke his visa and remove him violated the Appointments Clause of the Constitution, U.S. Const. art. II, § 2, cl. 2. The Appointments Clause requires that federal government officials who exercise significant authority be appointed by the President or, with Congress’s authorization, by a Head of Department or a court of law. I.M. claims that the decisions of CBP employees to unilaterally order removal under the expedited removal statute are void unless those employees were appointed consistent with the requirements of the Appointments Clause.

The government filed a motion to dismiss the complaint and petition on jurisdictional grounds in late February 2021. Briefing was completed in early April and a decision is pending from the District Court.

Counsel: Democracy Forward Foundation, National Immigrant Justice Center, Latham & Watkins

Contact: Mark Fleming, National Immigrant Justice Center, mfleming@heartlandalliance.org

Additional links:
• NIJC, DHS and CBP Sued for Unconstitutionally Allowing Unappointed Border Employees to Deport Immigrants (Dec. 11, 2020).