Anas Elhady v. Unidentified CBP Agents

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. Mr. Elhady filed a petition for writ of certiorari to the Supreme Court on May 25, 2022.

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 parties are engaged in settlement talks.

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 November 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 filed periodic status reports as Defendants produced documents responsive to the FOIA requests. The parties stipulated to dismiss the case on June 21, 2022.

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.

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) and No. 22-10772 (5th Cir.)

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.

The parties filed cross-motions for summary judgment in early 2022. On August 4, 2022, the court granted summary judgment in favor of Defendants, holding both that Mr. Malik did not have standing to sue for declaratory relief under the APA and that no constitutional violation occurred to support the constitutional claims. Mr. Malik appealed the judgment to the Fifth Circuit.

The district court also ordered that Defendants may recover $4,542 dollars from Mr. Malik in taxable costs.

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) and No. 22-5071 (D.C. Cir., filed Mar. 18, 2022)

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. On January 1, 2022, the court granted the Defendants’ motion to dismiss in a sealed opinion. On March 18, 2022, Plaintiff filed a notice of appeal with the D.C. Circuit.

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).

Grays v. Mayorkas

Johnny Grays, et al. v. Mayorkas, et al., No. 3:21-cv-10526-RHC-KGA (E.D. Mich., filed Mar. 9, 2021)

Johnny Grays, Mikal Williams, and Jermaine O. Broderick, Sr., are all Black Customs and Border Protection (“CBP”) officers at the Blue Water Bridge in Port Huron, Michigan, where only four out of 275 CBP officers are Black. They claim that, for over a decade, CBP management at the Port Huron Port of Entry systematically targeted Black drivers for stops; subjected them to additional scrutiny, including criminal record checks; and treated them in an unprofessional and demeaning fashion. They also claim that as Black CBP officers they were subjected to a hostile, racist work environment in which other CBP officers repeatedly made racist comments and were demeaning.

On March 9, 2021, Grays, Williams, and Broderick, Sr. filed a lawsuit in the Eastern District of Michigan alleging widespread discrimination against Black travelers and Black CBP officers at the Port Huron, Michigan Port of Entry. Defendants moved to dismiss the complaint, and on July 29, 2021, the court granted in part and denied in part the motion, dismissing Plaintiffs’ claim for discrimination under § 1981 as preempted by Title VII, but allowing Plaintiffs to proceed on their Title VII disparate treatment claim and allowing Grays to proceed on his Title VII hostile work environment and retaliation claims. The court also expressly permitted Plaintiffs Williams and Broderick to amend their complaint by August 20, 2021 to include Title VII retaliation claims after administratively exhausting. On August 12, 2021, Defendants filed their answer to the complaint. On August 23, 2021, after Plaintiffs advised the Court that their administrative remedies would not be exhausted by August 20 (as such claims can only be filed 180 days after filing an Equal Employment Opportunity administrative complaint), the Court issued an order permitting Plaintiffs to file their retaliation claims subsequent to this deadline. As such, the Court amended the case caption to reflect that Johnny Grays is the sole remaining Plaintiff in this action. The parties engaged in discovery throughout the first half of 2022. In June 2022, Defendants filed a motion for summary judgment. Briefing was completed in August 2022 and a decision is pending from the district court.

Counsel: Deborah Gordon Law

Contact: Deborah Gordon, Deborah Gordon Law | (248) 258-2500 | dgordon@deborahgordonlaw.com

Additional Links:

• Zack Linly, 3 Black Border Patrol Officers File Lawsuit Against CBP Alleging Constant Racial Profiling and Harassment of Black Travelers, The Root, Apr. 21, 2021.