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 and Watkins, LLP, filed a class action lawsuit challenging Customs and Border Protection’s (CBP) 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, along with 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 abuse and physical force, and coercion – to deny bona fide asylum seekers the opportunity to pursue their claims.  The Complaint alleges that the government’s refusal to allow asylum seekers to pursue their claims 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.

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

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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.

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

Lawsuits Filed against CBP Challenging President Trump’s Travel Ban

On January 27, 2017, President Trump signed an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” This executive order called for an immediate halt to entry for any immigrant or nonimmigrant from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, as well as an immediate 120-day halt to all entries by refugees and an indefinite suspension with respect to Syrian refugees. Many individuals who were in the air at the time the executive order was signed were detained by CBP upon arrival in the United States, including lawful permanent residents and individuals with valid visas for entry.

Individuals detained by CBP were held for extremely long times (over 24 hours in some cases), denied access to their families, prevented from talking to attorneys, and on some occasions pressured into signing documents renouncing their right to enter the United States and forcibly deported. Large numbers of attorneys soon arrived at airports across the United States to provide assistance, and multiple individuals filed habeas corpus petitions seeking the release of people detained by CBP.

During the weekend of January 28-29, 2017, courts in California, Massachusetts, New York, Virginia, and Washington issued temporary restraining orders blocking the executive order from going into effect and ordering that CBP release individuals from detention.

Subsequently, numerous other lawsuits were filed challenging the travel ban. A complete and up-to-date list of cases, as well as case status information, can be found on the University of Michigan Civil Rights Litigation Clearinghouse website.

For more detailed information on developments immediately following the executive order, as well as three sample habeas corpus petitions for individuals detained at airports, please see Challenging President Trump’s Ban on Entry, a practice advisory published by the American Immigration Council.

Complaint Against CBP Abuses Following President Trump’s Travel Ban

On February 6, 2017, the Center for Constitutional Rights and the Kathryn O. Greenberg Immigration Justice Clinic filed a letter with the Department of Homeland Security Office of the Inspector General (OIG), detailing the systemic abuses and violations of the rights of individuals lawfully entering the United States through airports in the days following the issuance of President Trump’s January 27, 2017 executive order (“Executive Order”). This Executive order suspended entry into the United States for individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The complaint to OIG contains 26 declarations from both noncitizens—including long-term LPRs—and attorneys about abuses at the hands of CBP. As the declarations discuss, both new arrivals with valid visas and long-time U.S. residents were detained for excessive periods, denied access to attorneys even after a court ordered CBP to provide access to counsel, and pressured into giving up their valid visas. The organizations conclude by calling on CBP to end its policy of detaining immigrants without allowing them access to counsel.

Ashcroft v. Abbasi

Ashcroft v. Abbasi, Nos. 15-1358, 15-1359 & 15-1363

The Supreme Court has accepted certiorari to determine, among other issues, whether a Bivens damages remedy is available to noncitizens who were arrested on civil immigration charges and thereafter subjected to the most restrictive conditions of administrative segregation that exist in the federal prison system. Although they were detained in the weeks following the tragic attacks of September 11, 2001, they were not actually suspected of terrorism. Nonetheless, under orders from then-Attorney General Ashcroft and others, they were treated as if the FBI had reason to believe they had ties to terrorist activity, simply because they were (or appeared to be) Arab or Muslim, and were encountered – even coincidentally – in the course of a terrorism investigation.

In its decision below, the Second Circuit held that, with respect to their 4th Amendment claims, their detention did not present a new “context” for a Bivens action and that allowing these claims to go forward would not extend Bivens. The Solicitor General sought certiorari from this decision. While the case does not involve CBP agents or officers, it is included here because the Supreme Court’s decision could impact the extent to which Bivens remains an available remedy in cases that do involve CBP agents.

On January 18, 2017, this case was argued in front of the Supreme Court. On June 19, 2017, the Supreme Court issued its decision. The Court held that Bivens did not extend to respondents’ claims and reversed the Court of Appeals’ decision with respect to the respondents’ 4th Amendment claim.

The Court reasoned that if there is a meaningful difference between a case and a previous Bivens case “then the context is new.” After giving a non-exhaustive list of possible meaningful differences, the Court determined that the claims at issue in this case bore “little resemblance” to past Bivens claims. Since the Court concluded that the case presented a “new Bivens context,” it went on to determine whether “special factors” counseled against recognizing a Bivens remedy.

The Court found that at least three special factors counseled against extending Bivens. These special factors were (1) that respondents’ claims would lead to an inquiry into sensitive national security issues; (2) that Congressional refusal to “extend to any person the kind of remedies that respondents seek,” despite its knowledge of the conditions at the detention facility at issue, was a telling indication of its intent not to allow damages remedies; and (3) that other remedies were available to respondents’ besides damages, including injunctive relief and possibly a writ of habeas corpus. In the presence of these factors, and despite its professed sympathy for the respondents, the Court determined that it is better for Congress to undertake “the proper balance” between deterring constitutional violations and allowing government officials to make national security decisions.

Counsel: Rachel A. Meeropol | Center for Constitutional Rights

Maria Fernanda Rico Andrade v. United States of America, et al.

Maria Fernanda Rico Andrade v. United States of America, et al., No  2:15-cv-00103 (S.D. Texas, filed Feb. 27, 2015)

On November 3, 2011, Gerardo Lozano Rico, an unarmed Mexican national, was driving along a rural road in Texas when his car was pulled over by two United States Border Patrol agents. After being pulled over, several passengers in Mr. Lozano’s car began to flee and the two Border Patrol officers attempted to apprehend them. After one agent smashed the driver’s side window of the car with a baton, Mr. Lozano attempted to drive away from them. In response, the two agents fired approximately 15 shots into the vehicle, killing Mr. Lozano. The two agents who fired the shots claimed that they had fired in self-defense because the vehicle was coming in their direction.

In June 2014, Maria Fernanda Rico Andrade, Mr. Lozano’s mother, filed an administrative complaint against the Border Patrol, which was denied in August 2014. On February 27, 2015, Ms. Rico filed a lawsuit in the District Court of Texas. The complaint alleges an unconstitutionally excessive use of force and a pattern and practice of border patrol agents who, by placing themselves in front of moving vehicles, intentionally expose themselves to additional risk which creates a justification for the use of deadly force. The complaint also alleges the fatal shots fired by the agents were from the side and the rear, occurring after the car had already passed them and making the decision to use force unreasonable. On October 6, 2015, the government filed a motion to dismiss. Following additional briefing from both parties, the motion is currently pending in front of the District Court.

On March 27, 2017, Defendants filed a Motion for Summary Judgment. On April 19, the Court granted Plaintiff’s Motion to Continue Defendants’ Motion for Summary Judgment.

Counsel: Robert C. Hilliard | Singleton Law Firm, APC; Hilliard Munoz Gonzales, LLP

Contact: Robert C. Hilliard | bobh@hmglawfirm.com | (361) 882-1612