FTCA Administrative Complaint on behalf of US Citizen deported by CBP

FTCA Administrative Complaint on behalf of US Citizen deported by CBP

In September of 2018, Julio Cesar Ovalle filed an administrative complaint against the Department of Homeland Security under the Federal Tort and Claims Act for being unlawfully seized and wrongfully deported last June. Mr. Ovalle, 24, is a U.S. citizen who was born in Los Angeles.

Ovalle, a resident of San Antonio, was stopped by a Border Patrol agent on June 11, 2018 while walking along Portanco Road toward his neighborhood. The agent asked for his “papers,” and refused to believe Ovalle’s assertions of his citizenship. Ovalle told the officer he had a passport and other documentation at home, but the agent did not listen and instead took Ovalle’s phone and transported him to the Border Patrol station in Cotulla. Ovalle was deported the next day to Nuevo Laredo.

In Mexico, Ovalle was kidnapped by cartel members and held for ransom with a group of about 80 other immigrants, including recent deportees. Ovalle’s family called Laredo police, who referred them to the FBI. Ovalle was eventually released at one of the international bridges in Nuevo Laredo, and returned to the U.S.

Counsel: Javier Espinoza Garcia | Espinoza Law Firm, PLLC

Contact: Sonia Rodriguez | (210) 229-1300

Press coverage:

Advertisements

Bressi v. Napier

Bressi v. Napier, No. 4:18-cv-00186-DCB (D. Ariz., amended complaint filed July 2, 2018)

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 for 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 it illegally detained him at a checkpoint erected at the direction of the Border Patrol.  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, the 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.

The 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.”  As of November 2018, the lawsuit is entering the discovery phase of litigation.

Counsel: Ralph E. Ellinwood Attorney at Law PLLC, the ACLU of Arizona

Contact: Billy Peard | ACLU Arizona | bpeard@acluaz.org

Resources:

AIC v. DHS

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.

The case is currently pending.

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

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

Press:

Crespo Cagnant v. United States

Crespo Cagnant v. United States, No: 1:18-cv-22267-FAM (S.D. Fla., filed June 7, 2018)

 On June 7, 2018, the American Immigration Council, Holland & Knight LLP, and the Northwest Immigrant Rights Project, and Kairys, Rudovsky, Messing, Feinberg & Lin LLP sued the United States on behalf of asylum-seeker, Jose Crespo Cagnant, under the Federal Tort Claims Act. The complaint alleges misconduct by agents of U.S. Customs and Border Protection (CBP) that involved falsifying Mr. Crespo’s paperwork and then deporting him in contravention of their statutory and regulatory duties to afford Mr. Crespo an opportunity to seek protection from persecution.

Mr. Crespo, a Mexican immigrant who has lived in the United States with his U.S.-citizen partner for more than a decade, was subjected to an expedited removal order after he entered the U.S. in 2012. Mr. Crespo feared persecution in Mexico on account of his sexual orientation; however, the border patrol agent who processed his paperwork did not speak Spanish, failed to seek an interpreter, and filled out the forms with invented information about Mr. Crespo’s reasons for coming to the United States and his family history. Based on this falsified information, CBP deported Mr. Crespo without affording him his legal right to have an asylum officer evaluate his protection claims.

Fearful for his safety upon returning to Mexico, Mr. Crespo returned to his partner—now husband—and sought to legalize his status. As a result, he was criminally charged with reentering the U.S. after deportation. A federal district court judge later dismissed the criminal case against Mr. Crespo, finding that the agent that deported him in 2012 did not testify credibly.

The case is currently pending.

Counsel: Holland & Knight LLP | American Immigration Council | Kairys, Rudovsky, Messing, Feinberg & Lin LLP | Northwest Immigrant Rights Project

Contact: Trina Realmuto | AIC | trealmuto@immcouncil.org

Press:

Kazazi v. CBP

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. Plaintiffs are finalizing the details necessary to formally end the case.

Counsel: BakerHostetler LLP | Institute for Justice

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

Press Release:

Nwaorie v. CBP, et al.

Nwaorie v. U.S. Customs and Border Protection, et al., No: 4:18-cv-1406 (S.D. Tex., filed May 3, 2018)

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.

Counsel: Institute for Justice

Contacts: 

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

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

Press Releases:

Michigan Immigrant Rights Center, et al., vs. United States Department of Homeland Security, and United States Customs and Border Patrol

Michigan Immigrant Rights Center, et al., vs. United States Department of Homeland Security, and United States Customs and Border Patrol, No. 5:16-cv-14192-JCO-EAS (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 will provide city-level information in apprehension reports about where apprehensions occur. Plaintiffs will receive these reports on a rolling three-month schedule through the end of the year.  A dispute continues about the remaining documents, and plaintiffs are waiting to get a production schedule from defendants.

Contact: Miriam Aukerman | maukerman@aclumich.org

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

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

J.I. v. USA, Case 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 for all named agencies and denied in full the administrative tort claim.

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 includes constitutional claims (violations of the Fourth and Fifth Amendments).

Counsel: ACLU of Northern California

Contact:  Julia Mass| ACLU of Northern California |jmass@aclunc.org

 

Wilwal v. Kelly

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 6 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 his constitutional rights, including the right against search and seizure and his 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.

Press coverage: