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. The motions are pending.

Contact: Miriam Aukerman | maukerman@aclumich.org

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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 (N.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

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, something with 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.

As of February 2018, a decision on the Motion to Dismiss is still pending.

Al Otro Lado, et al. v. John Kelly, et al.

Al Otro Lado, et al. v. John Kelly, et al., Case No. 2:170cv05111 (C. D. Cal. filed July 12, 2017)

On July 12, 2017, the American Immigration Council, along with the Center for Constitutional Rights and Latham & Watkins, LLP, filed a class action lawsuit challenging U.S. Customs and Border Protection (“CBP”)’s unlawful practice of turning away asylum seekers who present themselves at ports of entry along the U.S.-Mexico border.

The Plaintiffs in the case are Al Otro Lado (a non-profit legal services organization that serves indigent deportees, migrants, and refugees in Los Angeles and Tijuana) and six courageous asylum seekers who experienced CBP’s unlawful conduct firsthand.  Their experiences demonstrate that CBP uses a variety of tactics—including misrepresentation, threats and intimidation, verbal and physical abuse, and coercion—to deny bona fide asylum seekers the opportunity to pursue their claims.  The complaint alleges that CBP’s conduct violates the Immigration and Nationality Act, the Administrative Procedure Act, the Due Process Clause of the Fifth Amendment, and the doctrine of non-refoulement under international law.

On November 13, 2017, Plaintiffs filed a motion for class certification, which included dozens of declarations from asylum seekers CBP had turned away at the border. On November 28, 2017, the Court granted Defendants’ motion to transfer venue to the Southern District of California and dismissed all pending motions without prejudice. On December 15, 2017, Defendants again filed a motion to dismiss, and Plaintiffs opposed that motion. On February 5, 2018, Defendants filed a reply to Plaintiff’s opposition. The decision is pending as of April 2018.

Counsel: Latham & Watkins LLP | American Immigration Council | Center for Constitutional Rights

Contact: Manuel A. Abascal | Latham & Watkins LLP | manny.abascal@lw.com | 213-485-1234

American Immigration Lawyers Association v. DHS, et al.

American Immigration Lawyers Association v. DHS, et al., No. 1:16-cv-02470 (D.D.C. filed December 19, 2016)

On July 10, 2013, the American Immigration Lawyers Association (AILA), submitted a FOIA request to Customs and Border Patrol (CBP), seeking records relating to the issuance and implementation of the Officers’ Resource Tool (ORT) and how it has come to replace the Inspector’s Field Manual (IFM). The ORT replaced the IFM, which previously provided guidance regarding the inspection and admission of individuals into the United States at U.S. ports of entry. CBP failed to produce any responsive records and did not respond to AILA’s administrative appeal.

In December 2016, the American Immigration Council, in cooperation with Foley and Lardner, LLP, filed the lawsuit on AILA’s behalf seeking to compel CBP to release the ORT. As of June 2017, the case is still pending.

American-Arab Anti-Discrimination Committee v. CBP

American-Arab Anti-Discrimination Committee v. U.S. Customs and Border Protection, No. 1:17-cv-00708 (D.D.C. filed April 18, 2017)

In March 2017, the American-Arab Anti-Discrimination Committee (ADC) filed a Freedom of Information Act request with CBP seeking agency records relating to Global Entry System (GES) revocations, suspensions, terminations, confirmations, and policy practices. ADC alleged that after the November 2016 presidential election, and significantly accelerating following President Trump’s attempted travel ban implementation, CBP began revoking—without explanation—Global Entry System approval for Arabs and Muslims who previously had been approved for Global Entry. ADC further alleged that the revocations were not isolated incidents but rather part of a wider pattern in which CBP singled out travelers with Arab or Muslim names or ancestries and revoked their GES approval without any accompanying material change in circumstance or security risk. Those singled out for revocation included doctors, bankers, students, and businesspeople. These revocations also corresponded with inexplicably heightened scrutiny by CBP agents towards Arab and Muslim travelers in the wake of the travel ban.

Through its FOIA request, ADC specifically sought agency records relating to each revocation, suspension, or termination of GES participation beginning November 9, 2016, as well as additional records that would show a pattern of CBP’s singling out Arab and Muslim travelers from whom to revoke GES approval, including agency records created on or after November 9, 2016, relating to the operation or functioning of the GES program and containing the words or phrases “Muslim,” “Arab,” “ban,” “Muslim ban,” or “travel ban.”

CBP failed to disclose the requested records within the designated timeframe. In April 2017 ADC sought declaratory and injunctive relief to compel DHS to produce the requested records.

As of June 2017, this case is still pending.

Co-Counsel: R. Andrew Free | Law Office of R. Andrew Free

Co-Counsel: Gregory H. Siskind | Siskind Susser, PC

Contact: R. Andrew Free | andrew@immigrationcivilrights.com | 844-321-3221

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

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.

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 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. The motion is still pending before the district court.

Counsel: ACLU of San Diego & Imperial Counties

Contact:  Mitra Ebadolahi | ACLU of San Diego & Imperial Counties | mebadolahi@aclusandiego.org

FTCA Administrative Complaints Challenging Abuses from CBP Roving Patrols

FTCA Administrative Complaints Challenging Abuses from CBP Roving Patrols

When conducting enforcement operations within the United States, CBP regularly sends its officers on “roving patrols.” These patrols, conducted many miles away from the U.S. Border, often lead to the detention and interrogation of U.S. citizens without reasonable suspicion of any crime. Many of the U.S. citizens detained by CBP were targeted because of their ethnicity, and CBP officers have subjected citizens to verbal and physical abuse while checking their citizenship status. Collected here are examples of complaints that the ACLU has filed against CBP to address the continued violation of U.S. citizens’ rights at the hands of CBP.

2013 Office of the Inspector General Complaint

On October 9, 2013, the ACLU of Arizona and the ACLU Border Litigation Project  submitted an administrative complaint to the DHS Office of Inspector General (OIG) and DHS Office of Civil Rights and Civil Liberties (CRCL) concerning unlawful conduct of Border Patrol agents during roving patrols in Southern Arizona.  The complaint was submitted on behalf of 5 U.S. citizens who detail very serious incidents of verbal or physical abuse when their vehicles were stopped without reasonable suspicion by Border Patrol agents.  In at least two of the incidents, young children were traveling in the vehicles.

The complaint calls for the investigation of these incidents; a comprehensive review of complaints involving CBP roving patrols to determine whether Border Patrol agents are complying with their obligations under agency guidelines, the U.S. Constitution, and international law; and recommendations from OIG and CRCL regarding significant changes in CBP training, oversight, and accountability mechanisms necessary to address the problems and prevent further abuses.

2014 Office of the Inspector General Complaint

On January 15, 2014, the ACLU of Arizona and the ACLU Border Litigation Project submitted an administrative complaint to DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties concerning abuses committed by Border Patrol agents at interior vehicle checkpoints in southern Arizona.  The complaint was submitted on behalf of 15 U.S. citizens, aged 6-69 years old, and detailed 12 incidents in which their rights were violated when they were stopped at 6 checkpoints over a period of a year and a half.

The complaint calls for the investigation of all of the incidents identified; a comprehensive review of all complaints regarding Border Patrol checkpoints over the past five years; a thorough review of Border Patrol checkpoint policies and practices to ensure that operations are in fact limited to briefly verifying citizenship and that agents are receiving guidance regarding the limits of their authority; and a review of all policies and procedures related to service canines, in light of widespread reports of “false alerts” by the dogs.

2015 Federal Tort Claims Act Administrative Complaint

On May 19, 2015, the ACLU of Arizona filed two claims with the federal government under the Federal Tort Claims Act (“FTCA”) on behalf of an Arizona woman seeking monetary damages for egregious and repeated rights violations by U.S. Border Patrol agents.

The first claim arises out of an incident on May 21, 2013, in which Border Patrol agents stopped Clarisa Christiansen and her two young children without cause while the family was driving home from school.  After Ms. Christiansen demanded an explanation, the agents threatened to deploy a Taser and then threatened to cut her out of her seatbelt with a knife.  The agents subsequently slashed a rear tire and left Ms. Christiansen and her children stranded on a hot desert road with a flat tire and no explanation.

In October 2013, the ACLU submitted a complaint to DHS oversight agencies on behalf of Ms. Christiansen and four others who were subjected to unlawful “roving patrol” stops by Border Patrol.  More than a year and a half later, those agencies have yet to respond.

The second claim was filed in response to years of unauthorized and unlawful entries by Border Patrol agents onto the family’s private property west of Tucson.  On a weekly basis, Border Patrol helicopters buzz the family’s home at extremely low altitudes, causing dwellings to shake, and often disrupting the family’s sleep with deafening noise and bright lights.  Agents have also repeatedly entered the Christiansens’ property on foot and on motorized vehicles, despite numerous posted “No Trespassing” signs.

Federal law currently grants Border Patrol authority to enter onto private property within twenty-five miles of the border “to prevent illegal entry.”  Agents are further empowered to conduct interior enforcement within 100 miles of any national boundary, an area that encompasses most of the U.S. population.  As in Ms. Christiansen’s case, agents routinely ignore the legal limits of their authority in the course of these operations.

Counsel: ACLU of Arizona