NYLAG v. DHS

New York Legal Assistance Group, Inc., v. United States Department of Homeland Security, et al., No. 1:22-cv-05928 (S.D.N.Y., filed Jul. 12, 2022)

New York Legal Assistance Group, Inc. (NYLAG), a not-for-profit civil legal services organization in New York, New York, filed a complaint in the Southern District of New York after the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) failed to produce responsive records to a Freedom of Information Act (FOIA) request for records related to the deployment of federal law enforcement personnel in New York City during protests related to the killing of George Floyd in 2020.

In June 2020, at a New York City protest against police brutality, a protestor was violently arrested on the Upper West Side by an officer identified as an agent for ICE or Homeland Security Investigations (HSI). After the identification of the officer, organizations like NYLAG raised concerns questioning the authority of the federal government to deploy federal agents to monitor local protests and surveil immigrant protestors.

NYLAG submitted an administrative FOIA request on September 29, 2020, requesting records from May 25, 2020, through the date of filing the request. Following their administrative request, NYLAG received some communications from DHS, ICE, Customs and Border Protection (CBP), the Secret Service (USSS), and the Office of Intelligence and Analysis (I&A), indicating that responsive records existed and were identified. However, after nearly two years, the agencies failed to produce to NYLAG any of the documents they identified as responsive to the FOIA request, prompting NYLAG to file suit.

Counsel: New York Legal Assistance Group | Cooley LLP

Contact: Danielle Tarantolo | NYLAG | (212) 613-5000
Marc Suskin | Cooley LLP | (212) 479-6000

Related Links: https://nylag.org/nylagvdhs/

Davis Wright Tremaine v. CBP

Davis Wright Tremaine LLP v. United States Customs and Border Protection, No. 2:19-cv-00334 (W.D. Wash., filed Mar. 6, 2019)

A Seattle-area law firm filed a Freedom of Information Act (FOIA) suit against CBP after the agency refused to respond to a FOIA request for information concerning CBP’s widely publicized policy and practice of denying entry to noncitizens due to their involvement with the legal cannabis industry in Canada. Individuals subjected to the policy in the past have been detained and at times even told they are banned for life from entering the United States. In one instance cited in the complaint, the executive commissioner for CBP’s Office of Field Operations, Todd Owen, was quoted as claiming, “If you work for the [cannabis] industry, that is grounds for inadmissibility.” Owens also claimed that CBP had the authority to permanently ban from entering the U.S. even those who only invested in legal cannabis business.

The firm which filed the suit, Davis Wright Tremaine LLP, sought access to records to assess whether CBP’s actions are within the scope of the authority granted to it by Congress, whether CBP was acting pursuant to any policies or procedures, and whether it promulgated any such policies or procedures consistent with the procedures Congress has required for agency rulemaking.

On June 16, 2020, plaintiff’s motion for summary judgment was granted in part and denied in part, and CBP’s motion for summary judgment was denied. The court found CBP’s production in response to the FOIA request inadequate, and the parties submitted periodic status reports on the agency’s ongoing production. Chief among the documents produced was a 2018 CBP Information Guide which acknowledged that foreign nationals who work in legal foreign cannabis industries are not inadmissible, assuming their visit to the United States is unrelated to domestic or cross-border cannabis operations – a policy which contradicts statements and actions by CBP in the past regarding Canadian citizens associated with the industry. The parties stipulated to dismiss the case in 2022.

Counsel: Davis Wright Tremaine LLP
Contact:
Bruce Johnson | brucejohnson@dwt.com
Caesar Kalinowski | caesarkalinowski@dwt.com

FTCA Suit on Behalf of U.S.-Citizen Child Held by CBP for 30 Hours

J.A.M., et al., v. United States of America, et al., No. 3:22-cv-00380 (S.D. Cal., filed Mar. 21, 2022)

The family of a 9-year-old girl and 14-year-old boy filed a damages suit under the Federal Tort Claims Act after the children, both U.S. citizens, were held in custody at the San Ysidro Port of Entry – the boy for more than 12 hours and his sister for more than 30 hours. The complaint recounts how J.A.M. and her brother O.A.M. were falsely imprisoned in San Ysidro and coerced into making false confessions about the girl’s identity. Officers insisted to the children that the girl was actually their cousin, who is not a U.S. citizen.

J.A.M. and her brother O.A.M. were on their way from Tijuana to school in San Diego with a family friend. Though both children presented officers with valid U.S. passports, a CBP officer sent them to secondary inspection, then to a holding area. According to the children, CBP officers interviewed them about other young relatives their age and then pressured them to sign false statements claiming that J.A.M. was actually their cousin. The children said they were told that O.A.M. would be taken to jail for smuggling if they did not sign. CBP allegedly intended to have the Mexican consulate interview J.A.M. to verify her identity, but claimed an appointment was not available until the following morning.

Upon learning her children had not made it out of the port of entry, their mother, Ms. Medina Navarro, left the medical facility where she was awaiting surgery to inquire at the port of entry for her children. At first, officers denied having the children in custody. More than 12 hours after her children were first taken into custody, Ms. Medina Navarro received a call that C.B.P. had her son in custody with a girl who was not her daughter, and was told she could come pick up her son. Though Ms. Medina Navarro took additional documents to prove the identity of her daughter, officers did not release J.A.M. to her mother until after J.A.M.’s interview with the Mexican consulate the following day, 33 hours after she was first taken into custody.

The family filed administrative Federal Tort Claims Act complaints. CBP denied the claims in full on September 29, 2021, and the family filed suit on March 21, 2022. The government filed a motion to dismiss for lack of jurisdiction or motion for summary judgment, which was denied on July 21, 2022, and subsequently filed an answer to the complaint on August 4, 2022.

Counsel: Law Offices of Joseph M. McMullen

Contact: Joseph Mark McMullen ǀ (619) 501-2000 ǀ joe@imm-legal.com

Press: Lawsuit alleging border officials falsely imprisoned 9-year-old U.S. citizen girl passes legal hurdle

Transgender Law Center v. Immigration & Customs Enforcement

Transgender Law Center v. Immigration & Customs Enforcement, No. 3:2019-cv-03032 (N.D. Cal., filed May 31, 2019) and No. 20-17416 (9th Cir., filed December 15, 2020)

On May 25, 2018, Roxsana Hernandez, a transgender woman, died in the custody of U.S. Immigration and Customs Enforcement (ICE) after Customs and Border Protection (CBP) and ICE refused to provide her medical treatment. Roxsana entered the United States approximately two weeks before her death, seeking protection after fleeing persecution in her home country of Honduras, and also persecution she experienced in Mexico, due to her gender identity. Roxsana, who was suffering from untreated HIV, suffered from several physical ailments including frequent vomiting, diarrhea, persistent fever, severe weight loss and a cough in which she spat up bloody phlegm. She disclosed her condition no later than May 11, 2018, and requested medical attention multiple times. ICE refused and instead shuttled her to various holding, processing, and detention facilities, depriving her of food, water, sleep, and opportunities to relieve herself. She finally received treatment on May 17, 2018. The treatment did not come soon enough, and she died in the hospital on May 25, 2018.

On January 29, 2019, Plaintiffs Transgender Law Center and Jolene K. Youngers filed a Freedom of Information Act (FOIA) request to ICE and the Department of Homeland Security (DHS) Office for Civil Rights and Civil Liberties for any documents pertaining to Roxsana. On April 19, 2019, Defendant ICE acknowledged the FOIA request and assigned it a tracking number. On May 31, 2019, after not receiving any records responsive to the FOIA request, the Plaintiffs filed a complaint for declaratory and injunctive relief.

On November 24, 2020, the district court granted in part and denied in part motions for summary judgment from both the Plaintiffs and the Defendants. The case was argued on appeal on November 16, 2021. On May 12, 2022, the Ninth Circuit Court of Appeals reversed, vacated, and remanded this case to the district court. The court of appeals held that ICE and DHS had failed to meet their burden to show that their search for records was adequate “beyond material doubt,” failed to support their withholding of responsive documents—including by relying on mere boilerplate justifications—and failed to adequately segregate responsive, non-exempt records.

Documents:

Counsel: Grant & Eisenhofer P.A.; Transgender Law Center; Law Office of R. Andrew Free

Contact: Dale Melchert | Dale@transgenderlawcenter.org

Harvard Immigration and Refugee Clinical Program v. U.S. Customs and Border Protection

Harvard Immigration and Refugee Clinical Program v. U.S. Customs and Border Protection, No. 1:22-cv-10301 (D. Mass., filed Feb. 23, 2022)

On February 23, 2020, the Harvard Immigration and Refugee Clinical Program (the Clinic) sued Customs and Border Protection (CBP) under the Freedom of Information Act (FOIA). The Clinic filed the FOIA in response to CBP denying entry to several Harvard students of Middle Eastern descent—many from Iran. Some were given expedited removal orders or had their visas revoked, even though the Department of State performed extended security checks during the visa processing.

The FOIA request identified three categories of information the Clinic sought from CBP: (1) records regarding the expedited removal of students at a port of entry; (2) records regarding withdrawal of admission by students at a port of entry; and (3) directives, policies, and communications by CBP regarding visa holders at ports of entry. CBP failed to provide an adequate response. The Clinic requested documents starting January 1, 2012, and the only documents CBP produced were from 2020. CBP also failed to produce any policy directives.

The Clinic filed an administrative appeal, requesting the responsive records and all non-exempt portions of the records. The administrative appeals unit ordered CBP to conduct a new search, but CBP failed to timely respond, and the Clinic sued.

Since the initial filing, CBP filed its answer to the complaint. On May 16, 2022, the court ordered a status report due July 15, 2022.

Counsel: Harvard Immigration and Refugee Clinical Program, Harvard Law School
Contact: Sabrineh Ardalan | sardalan@law.harvard.edu

Civil Rights Complaint Regarding CBP’s Mistreatment of Harvard Medical Fellow

On April 2, 2021, and April 18, 2021, Customs and Border Protection (CBP) denied Dr. Maryam, a Canadian citizen from Iran, entry into the United States. Dr. Maryam attempted to enter the United States using her Canadian passport and all necessary evidence to support her admission in J-1 status. She and her family planned to stay in the U.S. for two years during Dr. Maryam’s competitive two-year fellowship at Harvard Medical School and Beth Israel Deaconess Medical Center. The family planned to return to Canada after Dr. Maryam finished her fellowship.

During her first attempted entry, Dr. Maryam, her husband, and her two children drove with their belongings to the port of entry in Pembina, North Dakota. CBP pulled the family over for secondary inspection after seeing Dr. Maryam and her husband were born in Iran. CBP arbitrarily and discriminatorily interrogated Dr. Maryam’s husband for eight hours about his past in Iran, his thoughts and feelings about the killing of Qassem Soleimani, and his previous compulsory military service. Eventually, the family was turned back for allegedly failing to show non-immigrant intent—even after providing evidence of assets and ties to Canada. CBP issued an expedited removal order against Dr. Maryam’s husband and asked Dr. Maryam to withdraw her request for admission. CBP also took both fingerprints and DNA samples from Dr. Maryam and her husband before the family left the facility.

On April 18, 2021, Dr. Maryam attempted to enter the United States again. She planned to fly from Toronto to the United States, but CBP once again interrogated her and turned her back. This time, the CBP officer in secondary inspection denied her entry because (1) she allegedly had to wait until her husband’s case was resolved and (2) the CBP officer incorrectly told her that there that a “travel ban” against Iranian nationals prevented her from lawfully entering the country.

After her attempts to enter the U.S., Dr. Maryam filed an application for a J-1 visa with the U.S. Consulate (even though Canadian citizens are not required to apply for a visa in advance to enter the United States). The U.S. Consulate in Calgary refuses to adjudicate the case, saying that it is waiting for her husband’s case to first be resolved.

In response to the inhumane treatment and rejection of Dr. Maryam and her family, Harvard Law School’s Immigration and Refugee Clinical Program filed an administrative complaint to the Department of Homeland Security Office for Civil Rights and Civil Liberties (CRCL), requesting CRCL to further investigate the April 2 and April 18 incidents. Additionally, the Program filed a writ of mandamus in the district court, requesting the Department of State adjudicate Dr. Maryam’s visa within 15 days of an order, pursuant to the Administration Procedures Act (APA) or to the court’s Mandamus authority.

Counsel: Harvard Immigration and Refugee Clinical Program, Harvard Law School
Contact: Sabrineh Ardalan | sardalan@law.harvard.edu

Bouey v. United States of America

Bouey v. United States of America et al., No. 3:22-cv-0044 (S.D. Cal., filed April 4, 2022)

On July 16, 2020, Janine Bouey, a U.S. citizen, visited Tijuana, Mexico for the day for a dental appointment. When she attempted to return to the United States via the pedestrian lanes at the Otay Mesa Port of Entry (OMPOE), a CBP officer pulled her out of line. The CBP officer approached her, flirted with her, and ask her questions about both her trip to Mexico and her personal life. When Ms. Bouey refused to answer the questions about her personal life, the CBP officer retaliated by taking Ms. Bouey to the main building at the OMPOE.

Inside the OMPOE building, CBP performed multiple harmful and invasive searches of Ms. Bouey. On multiple occasions an officer fondled and penetrated Ms. Bouey’s genitalia without her consent and without justification. She was handcuffed to a bench, asked to strip down naked, and then ordered to bend over as an officer shined a flashlight into the areas of her genitalia. CBP officers also used a canine agent to invasively smell several of Ms. Bouey’s orifices. CBP officers never explained the reason for these searches, denied Ms. Bouey’s repeated requests to call an attorney, and failed to acknowledge her U.S. citizenship. The mistreatment by CBP caused Ms. Bouey physical pain and emotional distress, including anxiety, shock, humiliation, apprehension, and anguish. In response, on April 4, 2022, Ms. Bouey filed suit seeking damages under the Federal Tort Claims Act (FTCA) and Bivens. The FTCA claims included: (1) negligence, (2) intentional infliction of emotional distress, (3) battery, and (4) violation of the Bane Act. The Bivens claim sought a remedy for violation of her Fourth Amendment rights. On June 3, 2022, counsel for the U.S. government filed a motion to dismiss, which was denied on July 14, 2022, though the court did grant the government’s request to strike the demand for attorneys’ fees. Defendant United States then filed an answer to the complaint on July 28, 2022.

Counsel: Joseph M. McMullen | joe@imm-legal.com
Contact: Kendall Martin | kendall@alliancesd.org | (619) 629-0337

Press:
● Abuse, Assault and Impunity at DHS Must Stop: Former LAPD Officer Subjected to Sexual Assault by DHS Sues the Agency

Civil Right Complaints Regarding CBP Abuse of Children

On April 6, 2022, Americans for Immigrant Justice (AIJ), Kids in Need of Defense (KIND), Immigrant Defenders Law Center (ImmDef), and Florence Immigrant & Refugee Rights Project (FIRRP) filed separate administrative complaints with the Department of Homeland Security Office of Civil Rights and Civil Liberties (DHS CRCL) and the DHS Office of Inspector General (DHS OIG) about the treatment of unaccompanied children in Customs and Border Protection (CBP) custody in 2021. The organizations condemned CBP for violations of the Flores Settlement Agreement and the CBP National Standards on Transport, Escort, Detentions and Search (TEDS).

The complaints highlighted the sleeping conditions and the freezing temperatures in the facilities, the lack of water and food, the lack of access to personal hygiene, the inadequate medical care and the verbal and physical abuse by CBP officers. The complaints include stories of several minors who detail aspects of their treatment while in detention by CBP.

As shared by AIJ, 12-year-old N.A.E. was told “he would be reunited with his mother in the United States,” only to be illegally returned to Guatemala without his knowledge or consent. C.C.L., age 10, “had his mattress taken away,” which CBP did “if they felt someone was misbehaving.” At age 15, K.G.C. had to share a mattress with three other girls while detained, during which she contracted lice.

These stories, and others shared in the complaints, illustrate the inhumane conditions affecting the health and safety of children while in CBP custody. The administrative complaints contain recommendations for preventing CBP’s abuse of children. These recommendations include: CBP adherence to the Trafficking Victims Protection Reauthorization Act (TVRPA), to the CBP National Standards on TEDS, and to the Flores settlement agreement; providing comparable care to that of Office of Refugee Resettlement (ORR) facilities; additional training for CBP officers and staff; access to legal counsel; and the hiring and use of child welfare professionals.

Counsel: Americans for Immigrant Justice; Kids in Need of Defense (KIND)

Contact: Jennifer Anzardo | janzardo@aijustice.org | Carley Sessions | cesssions@supportkind.org

FOIA: Black Alliance for Just Immigration et al. v. U.S. Customs & Border Protection, No. 1:20-cv-05198 (E.D.N.Y., filed Oct. 28, 2020)

On May 25, 2020, George Floyd was killed by Minnesota police officers, triggering mass protests in cities across the United States calling for racial justice and police reform. These protests were met with heightened police presence as local law enforcement agencies throughout the country deployed additional officers to protests and gatherings. In early June 2020, media outlets began reporting that U.S. Customs and Border Protection (CBP) personnel and aerial surveillance, along with other Department of Homeland Security (DHS) and federal agency personnel, had been deployed to the protests. A leaked CBP document later revealed that requests from law enforcement agencies across the country resulted in 326.5 hours of federal aviation assets deployed and 2,174 agency personnel.

After then-President Trump issued Executive Order No. 13933, “Protecting American Monuments, Memorials, and Statutes and Combating Recent Criminal Violence,” DHS and the Department of Justice (DOJ) began taking steps to implement the directive, including by creating roving teams of federal law enforcement officers to disperse to protests. These deployments only served to exacerbate tensions and violence, drawing criticism from elected officials – especially given CBP’s track record of abusive policing tactics and use of excessive force.

Following these deployments, the Black Alliance for Just Immigration, the American Immigration Council, the American Civil Liberties Union of San Diego & Imperial Counties, and the American Civil Liberties Union of Texas filed a Freedom of Information Act (FOIA) request seeking records of requests for assistance to CBP by other entities regarding the deployment of CBP personnel to U.S. cities; policies, protocols, and directives outlining CBP’s legal authority to police and surveil protests; communications sent or received by CBP personnel relating to the deployments; and data regarding the total number of CBP personnel deployed, individuals apprehended or arrested by CBP, and the statutory basis for CBP’s enforcement action.

When CBP failed to respond to the request, Plaintiffs filed a lawsuit seeking an injunction ordering Defendant to conduct a search for responsive records and timely produce those records to Plaintiffs, as well as a declaration that Defendant’s conduct violated the FOIA. On January 6, 2021, Defendant filed its answer. Production of responsive records is currently underway.

Documents:
FOIA Request
Complaint
Answer

Counsel: Immigrant Legal Defense; American Immigration Council; ACLU Foundation of Texas

Contact:
Claudia Valenzuela | Immigrant Legal Defense | claudia@ild.org
Shaw Drake | ACLU Foundation of Texas | sdrake@aclutx.org

Press:
U.S. Watched George Floyd Protests in 15 Cities Using Aerial Surveillance

FOIA: Citizens for Responsibility & Ethics in Washington v. U.S. Customs & Border Protection, No. 1:22-cv-00496-TSC (D.D.C., filed Mar. 2, 2022)

In October 2021, the chief records officer of the National Archives and Records Administration, Laurence Brewer, wrote a letter to U.S. Customs and Border Protection (CBP) officials expressing concern about CBP’s use of Wickr, an Amazon-owned encrypted messaging platform known for its ability to automatically delete messages, which then become unrecoverable after a predetermined period of time. In the letter, Brewer wrote that he was “concerned about agencywide deployment of a messaging application that has this functionality without appropriate policies and procedures governing its use.” Public records have revealed that CBP – which has been widely criticized for its secrecy – has spent more than $1.6 million on Wickr since 2020 and is using the platform across all CBP components. However, little is known about how the agency has deployed the app. Its auto-deletion feature, in particular, has raised concern among both government record keepers and advocates, who worry that Wickr allows CBP officials to sidestep government transparency requirements and litigation obligations, especially considering the agency’s poor track record in complying with record-keeping laws.

In September 2021, Citizens for Responsibility and Ethics in Washington (CREW) submitted a Freedom of Information Act (FOIA) request to CBP, seeking all records and communications relating to CBP’s use of Wickr for official agency business. After CBP failed to respond to the request, CREW filed a lawsuit seeking a declaratory judgment that CBP is violating the FOIA and injunctive relief requiring CBP to immediately process and release the requested records. On April 4, 2022, Defendant filed its answer.

Documents:
Complaint
Answer

Counsel: The George Washington University Law School Jacob Burns Community Legal Clinics; Citizens for Responsibility and Ethics in Washington

Contact:
Jeffrey Gutman | The George Washington University Law School | jgutman@law.gwu.edu
Nikhel Sus | Citizens for Responsibility and Ethics in Washington | nsus@citizensforethics.org

Press:
Customs and Border Protection to Use Encrypted App Wickr Widely
Border Patrol’s Use of Amazon’s Wickr Messaging App Draws Scrutiny
CREW Submits FOIA Request to U.S. Customs and Border Protection Regarding Use of Wickr
CREW Sues for Records on CBP Contract with Wickr, “Auto-Burn” Encrypted Messaging App