Castellanos v. United States

Castellanos v. United States, No. 18-CV-2334-JM-BLM (S.D. Cal., filed Oct. 10, 2018)

In this case, U.S. Customs and Border Protection (CBP) agents’ excessive use of force during a routine inspection at Calexico Port of Entry left a seventy-five-year-old man in the hospital with a fractured elbow and displaced ribs. On December 17, 2017, Jesus and Raquel Castellanos, at the time seventy-five and seventy-one years old, and their adult son, Marco Castellanos, were in secondary inspection at the Calexico Port of Entry, when a CBP officer began yelling at Marco for using his cellphone. Marco explained he was responding to a message, put his cellphone away, and asked the CBP officer to bring a supervisor, but the CBP officer preceded to put Marco in a chokehold and a group of officers gathered and slammed him against a fence.

Jesus Castellanos pleaded with the officers to let his son go and stop assaulting him. CBP Officer Hedlund shoved Mr. Castellanos, threw him over a bench, and punched him in the chest and ribs multiple times. As Mr. Castellanos lay face down on the bench, Officer Hedlund continued to put all his weight on Mr. Castellanos and twisted his elbow with such force that it was fractured. Mr. Castellanos also suffered multiple displaced ribs from the assault.

Officer Hedlund and two other CBP officers took Mr. Castellanos to a holding cell and when he told them his arm had been injured, Officer Hedlund further bent his arm.  Mr. Castellanos was able to get the attention of a supervisor who called an ambulance that arrived thirty minutes later and took him to the hospital. While her husband was being assaulted and detained, Mrs. Castellanos, who suffers from dementia, pleaded for the officers to stop and became confused and distraught as CBP officials did not explain to her where they had taken her husband or son.

On January 12, 2017, Mr. and Mrs. Castellanos filed administrative complaints under the Federal Tort Claims Act (FTCA), but received no response. On October 10, 2018, they brought this action seeking damages under Bivens and the FTCA. The second amended complaint alleges Officer Hedlund is liable for Fourth Amendment violations under Bivens. The complaint further seeks to hold the United States liable under the FTCA for assault, battery, negligence, intentional infliction of emotional distress, and false imprisonment under the FTCA.

In February 2020, the district court denied the government’s motion for summary judgment. After the summary judgement motion was denied, the Castellanos family reached a settlement agreement with the government on April 24, 2020. Details of the settlement agreement have not been disclosed. It is unknown if Officer Hedlund or any of the other CBP officers involved were disciplined in any way.

Counsel: Iredale & Yoo, APC

Contact: Eugene Iredale | 619.233.1525 | contact@iredalelaw.com

D.A. v. United States

D.A., et al., v. United States of America, et al., No. 1:20-cv-03082 (E.D. Ill., filed May 22, 2020)

On the night of May 23, 2018, D.A. and A.A. entered the United States with their mother, Lucinda Padilla-Gonzales, seeking asylum from political violence in their native Honduras, along with other asylum seekers. Shortly after crossing the U.S. border, several U.S. Customs and Border Protection (CBP) officers approached the group and arrested them. The CBP officers loaded the group into a van without offering them food or water. They insulted Lucinda and her children, calling them liars and telling them that they were tired of immigrants, and questioned their motives for coming to the United States. The CBP officers also told the group that they would all lose their children.

CBP officers took Lucinda and her children to the Ysleta Port of Entry in El Paso, Texas. The type of holding center they were taken to is commonly referred to by asylum seekers as an “hielera” (an “icebox,” in Spanish) because of the freezing cold temperatures. D.A. and A.A., who were still wet from crossing the river, were forced to sit, shivering, on concrete steps in the hielera. CBP officers did not give them any blankets or jackets to protect them from the cold while they waited. Though Lucinda had crutches for her injured leg, CBP officers confiscated them. The family remained in the hielera for approximately one and a half days, during which time CBP officers repeatedly insulted them.

On approximately May 24, 2018, federal agents took Lucinda and told her that she was going to federal prison. The federal agents did not give Lucinda an opportunity to explain anything to D.A. and A.A., or hug and kiss them goodbye. As the federal agents took Lucinda away in handcuffs, fourteen-year-old D.A. and five-year-old A.A. screamed and cried for their mother through a plexiglass divider.

Lucinda and the children remained separated for almost three months. Both the mother and the children were mistreated in government custody, exacerbating the trauma of their separation. The family filed administrative claims for damages under the Federal Tort Claims Act (FTCA) to which the government failed to respond.

In this action, filed on May 22, 2020, the family seeks damages under the FTCA for the trauma they suffered and continue to suffer. They also brought claims against the government contractor responsible for the care and custody of the children. The complaint alleges that the United States is liable for intentional infliction of emotional distress, breach of fiduciary duty, negligence, negligent supervision, conversion, abuse of process, and loss of consortium.

Counsel: Loevy & Loevy; Asylum Seeker Advocacy Project (ASAP)

 Contact: Conchita Cruz | (305) 484-9260 | conchita.cruz@asylumadvocacy.org

 

Adlerstein v. U.S. Customs and Border Protection

Adlerstein, et al., v. U.S. Customs and Border Protection, et al., No. 4:19-cv-00500-CKJ (D. Ariz., filed Oct. 16, 2019)

Ana Adlerstein, Jeff Valenzuela, and Alex Mensing are humanitarian activists whom U.S. Customs and Border Protection (CBP) subjected to repeated and lengthy detentions, searches, and interrogations without any connection to legitimate border control functions. All three are U.S. citizens with a right to return to the United States and yet all three were targeted as part of the federal government’s surveillance of individuals and groups protesting United States immigration policies.

On May 5, 2019, Ms. Adlerstein lawfully accompanied an asylum seeker to the Lukeville, Arizona port of entry. Without any evidence that Ms. Adlerstein had committed a crime, a CBP officer arrested and handcuffed Ms. Adlerstein, subjected her to an intrusive search, and detained her for hours, denying her requests to speak to her attorney. When Ms. Adlerstein protested that the CBP officers were violating her rights, an officer responded: “The Fourth Amendment doesn’t apply here.”

Mr. Valenzuela, a photographer and humanitarian volunteer, attempted to drive back into the United States at a port of entry in San Diego in December 2018. When he arrived, border officers walked to his car, ordered him out, handcuffed him, and marched him into their offices. They took his belongings, searched his bags, and shackled him by his ankles to a steel bench. They left him there, chained, for hours. Eventually they brought him to a small room where they interrogated him about his volunteer work, his associations, and his political beliefs.

Mr. Mensing crossed into the United States from Mexico twenty-eight times during a period of six months between June 2018 and October 2019. On twenty-six of those entries, CBP agents summarily referred him for “secondary inspection,” which for him included detention, searches, and repeated interrogation. During these interrogations, officers repeatedly asked him the same questions about his work, his finances, his associations, and his personal writings. These seizures became a routine part of his life: cross the border, get detained for hours, and be forced to answer the same questions by the government.

In their complaint, filed on October 16, 2019, the activists allege that CBP’s conduct violated the Fourth and First Amendments. The complaint also alleges that the government’s collection of private and protected information from the activists violated the Privacy Act, 5 U.S.C. § 552a(a)-(l). The activists sought injunctive and declaratory relief. In April 2020, the parties completed briefing on the government’s motion to dismiss and motion for summary judgment.

Counsel: ACLU of Southern California; ACLU of Arizona; Kirkland & Ellis

Contact: Mohammad Tajsar | (213) 977-9500 | mtajsar@aclusocal.org

Sabra v. U.S. Customs and Border Protection

Sabra v. U.S. Customs and Border Protection, No. 1:20-cv-00681-CKK (D.D.C., filed Mar. 9, 2020)

On September 11, 2015, Fleta Christina Cousin Sabra—a U.S. Citizen and accredited humanitarian worker—traveled with a family of asylum-seeking Syrian refugees and the refugees’ lawful permanent resident relative from Mexico into the United States by way of a U.S. port of entry in Southern California. When Ms. Sabra explained to a U.S. Customs and Border Protection (CBP) officer that the family wished to seek asylum, the officer handcuffed all members of the group, including Ms. Sabra. CBP officers detained Ms. Sabra for several hours, during which time they insulted her Muslim faith, pulled off her hijab, and physically assaulted her.

In July 2016, Ms. Sabra submitted a request for agency records pursuant to the Freedom of Information Act (FOIA) regarding the September 11, 2015 encounter, CBP’s subsequent related records, CBP’s investigation, communications regarding the family of Syrian refugees, and other CBP records regarding Ms. Sabra. In response, CBP produced only five pages of records.

Ms. Sabra filed this action on March 9, 2020, seeking to compel CBP to conduct a reasonable search and produce records responsive to her FOIA request. On May 29, 2020, CBP made an initial production and reported that it anticipates making monthly, rolling releases. Ms. Sabra moved for judgment on the pleadings.

Counsel: Law Office of R. Andrew Free

Contact: R. Andrew Free | (844) 321-3221 | Andrew@ImmigrantCivilRights.com

FTCA Claim by Estate of Roxsana Hernandez Rodriguez

On November 22, 2019, the siblings of Roxsana Hernandez Rodriguez and a representative of her estate filed an administrative claim for damages under the Federal Tort Claims Act (FTCA) after Roxsana, a Honduran transgender woman, died in immigration custody.

After fleeing horrific violence in Honduras, Roxsana and seventeen other transgender asylum seekers presented themselves at the U.S. port of entry in San Ysidro, California on May 9, 2018. U.S. Customs and Border Protection (CBP) officers took Roxsana into custody and failed to conduct any medical screening, though she requested to see a doctor for what she described as an infection.

CBP held Roxsana in a processing facility commonly referred to as an “hielera” or “ice box” because of its frigid temperatures. While in CBP custody, Roxsana’s health rapidly deteriorated. She coughed so much that she had difficulty breathing and she vomited regularly. The food CBP officers offered caused her to suffer diarrhea, stomach pain, and further vomiting. CBP officers refused to provide any medical assistance until other asylum seekers stopped eating in protest.

CBP agents brought Roxsana to a hospital, but remained present during her exam and kept her in shackles. Rather than providing a Spanish interpreter, the officers primarily communicated with the doctors themselves. The hospital cleared Roxsana for immigration detention before learning that she was HIV positive.

Until her death on May 25, 2018, Roxsana remained in immigration custody, transferred between facilities as her health continued to deteriorate. By the time Immigration and Customs Enforcement (ICE) officers brought her to the hospital on May 17, 2018, doctors found her condition “way beyond” their ability to provide meaningful care. An independent autopsy determined the cause of death was “most probably severe complications of dehydration superimposed upon HIV infection, with the probable presence of one or more opportunistic infections.” The doctor also found evidence of physical abuse, with deep tissue bruising.

In the November 2019 claim, and a later supplement, Roxsana’s family and estate charged the United States as liable for wrongful death, negligence, negligent hiring and supervision, failure to provide medical care, medical malpractice, intentional infliction of emotional distress, negligent infliction of emotional distress, assault, battery, aggravated assault, false imprisonment, and loss of chance of survival.

Press Coverage:

https://www.nytimes.com/2018/11/27/us/trans-woman-roxsana-hernandez-ice-autopsy.html

https://www.buzzfeednews.com/article/adolfoflores/ice-surveillance-video-transgender-asylum-seeker

Counsel: Law Office of R. Andrew Free

Contact: R. Andrew Free | (844) 321-3221 | Andrew@ImmigrantCivilRights.com

A.B.-B. v. Morgan

A.B.-B., et al., v. Morgan, et al., No. 1:20-cv-00846-RJL (D.D.C., filed Mar. 27, 2020)

On March 27, 2020, five asylum-seeking mothers and their children filed this action challenging the use of U.S. Border Patrol agents to screen asylum seekers for their “credible fear” of persecution.

Many people seeking asylum at the border must first pass a “credible fear” screening interview before an immigration judge can more fully review their claims. At this interview, asylum seekers provide sensitive details about the persecution they suffered and the reasons they fled. These screenings are not supposed to be interrogations. They must be done by officers trained specifically to evaluate asylum claims and work with victims of trauma. And for decades, that is how these interviews were conducted.

Beginning in April 2019, however, the government quietly started to change who was responsible for conducting the interview. A pilot program replaced some experienced asylum officers with Border Patrol agents—a law enforcement agency with a history of abuse and misconduct toward asylum seekers.

Asylum seekers and attorneys report that Border Patrol agents conduct the interviews like criminal interrogations. Asylum seekers say they are yelled at, cut off when responding, and scolded if they cry or show other signs of trauma.

Border Patrol agents conducted credible fear interviews, and issued negative credible fear determinations, for the plaintiff families while they were detained at the South Texas Family Residential Center in Dilley, Texas. Their complaint alleges that the U.S. Customs and Border Protection (CBP) official who authorized Border Patrol agents to conduct these interviews was illegally appointed, that only U.S. Citizenship and Immigration Services (USCIS) has authority to conduct these interviews, and that, contrary to U.S. immigration laws, Border Patrol agents are not properly trained and cannot conduct non-adversarial interviews.

On April 2, 2020, the court granted Plaintiffs’ motion for a temporary restraining order and administrative stay and temporarily enjoined their removal. On May 12, 2020, the court heard oral argument on Plaintiffs’ motion seeking a preliminary injunction. The parties submitted supplemental briefing on June 1, 2020.

Counsel: Tahirih Justice Center; Constitutional Accountability Center

Contact: Julie M. Carpenter | Tahirih Justice Center | juliec@tahirih.org

Guan v. Wolf

Guan, et al., v. Wolf, et al., No. 1:19-cv-06570-PKC-JO (E.D.N.Y., filed Nov. 20, 2019)

In Guan v. Wolf, five journalists were tracked by U.S. Customs and Border Protection (CBP), and other government agencies, and then detained, and interrogated by CBP officials when attempting to re-enter the United States. In response to this unprecedented coordinated attack on the freedom of the press, Plaintiffs filed a federal lawsuit alleging violations of their First Amendment rights on November 20, 2019.

Bing Guan, Go Nakamura, Mark Abramson, Kitra Cahana, and Ariana Drehsler are all U.S. citizen professional photojournalists. Between November 2018 and January 2019, they separately traveled to Mexico to document people traveling north from Central America by caravan in an attempt to reach the U.S.-Mexico border. Border patrol agents referred each journalist to secondary inspection on their return to the United States and questioned them about their work as photojournalists, including their coverage of the caravan, their observations of conditions at the U.S.-Mexico border, and their knowledge of the identities of certain individuals. This questioning focused on what each journalist had observed in Mexico in the course of working as a journalist, and did not relate to any permissible immigration or customs purpose. A secret government database leaked to NBC San Diego in March 2019 revealed that the Department of Homeland Security (DHS) had engaged in wide-ranging intelligence collection targeting activists, lawyers, and journalists—including these five journalists—working on issues related to the October 2018 migrant caravan and conditions at the U.S.-Mexico border.

The five journalists filed this action alleging that CBP’s questioning aimed at uncovering their sources of information and their observations as journalists was unconstitutional. They seek a declaratory judgment that such conduct violated the First Amendment. The journalists further seek an injunction requiring the government to expunge any records it retained regarding the unlawful questioning and to inform the journalists whether those records have been disclosed to other agencies, governments, or individuals.

Counsel: ACLU San Diego & Imperial Counties; ACLU; NYCLU

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

Clear, et al. v. CBP

Clear, et al., v. U.S. Customs and Border Protection, No. 1:2019-cv-07079 (E.D.N.Y., filed Dec. 18, 2019)

The American Civil Liberties Union and Cuny Law School CLEAR Project filed a lawsuit against CBP in December 2019 over its Tactical Terrorism Response Teams (TTRT), which plaintiffs argue are discriminatory against individuals from the Middle East.

The complaint alleges that CBP is deploying secret teams across at least 46 airports and other U.S. ports of entry which target, detain, and interrogate innocent travelers. Frequently TTRT officers request that travelers unlock their electronic devices and subject them to search. While TTRTs operate largely in secret, CBP has publicly admitted the teams are explicitly targeting individuals who are not on any government watchlist and whom the government has never identified as posing a security risk. Former CBP Commissioner and form acting Secretary of the Department of Homeland Security, Kevin McAleenan, has indicated TTRT officers may rely on their “instincts” or hunches to target travelers.

Additionally, the ACLU of Northern California has filed an administrative complaint on behalf of an individual who was detained and interrogated by a TTRT.

 

Public statements by CBP officials about TTRTs:

 

Press:

https://theintercept.com/2019/05/13/customs-border-protection-profiling-airport/

https://www.aclu.org/news/immigrants-rights/a-secret-cbp-team-is-targeting-and-detaining-innocent-travelers-were-suing/

https://www.northjersey.com/story/news/2019/07/16/somali-man-wins-fight-to-join-wife-kids-in-us/1722751001/

Counsel: American Civil Liberties Union

Contact: Scarlet Kim| American Civil Liberties Union Foundation | ScarletK@aclu.org

 

 

Father and Son File FTCA Administrative Claims Based on Nine Months of Family Separation

On October 9, 2019, an asylum-seeking father, Mr. L.A., and his son, O.L., filed administrative claims for six million dollars in damages for the trauma they suffered when torn apart under the Trump administration’s family separation policy. The family endured nine months of forced separation in 2018 while the father was unlawfully deported to Guatemala, in spite of expressing a credible fear of persecution in that country.

While in the custody of the Office of Refugee Resettlement (ORR), at a youth facility called Lincoln Hall in New York, then-17-year-old O.L. was medicated without his parent’s consent in order to “calm” him and dissuade thoughts of escaping from the facility. O.L. was physically assaulted and insulted by a Lincoln Hall staff member; and facility staff simply transferred O.L. to a different part of the facility rather than discipline the offending staff member. Additionally, Lincoln Hall was an abusive and sexualized environment. On two separate occasions, staff completed an ORR Serious Incident Report or “Sexual Abuse SIR,” listing O.L. as a victim of sexualized staff actions. During one incident, a staff member showed O.L. and other children in the facility a pornographic video on his phone. In another incident, a staff member dropped a nude photo of herself in front of O.L.

Both Mr. L.A. and his son endured dehumanizing conditions while being held in the hielera DHS facility prior to and immediately after separation. Mr. L.A. reported freezing temperatures, very limited food, and limited access to drinking water other than from a bathroom sink. At one point, he was packed in a cell with 15 other men, with no beds and a shared toilet without privacy. As the men were not permitted to shower or brush their teeth, the smell in the cell was horrible. Officers left bright fluorescent lights on at all times, conducted rolls calls even at nighttime, and provided only Mylar emergency blankets for sleeping; as a result, Mr. L.A. reports experiencing sleep deprivation.

Mr. L.A. and his son spoke briefly on the phone only twice while they were detained and before Mr. L.A. was deported. Mr. L.A. was devastated to learn his son had been transported across the country to New York, while he remained detained in Texas. After being detained separately for more than one month, Mr. L.A. received word from officers that he would be reunited with his son. However, they were not reunited; and Mr. L.A. was instead put on a plane and deported to Guatemala.

Both Mr. L.A. and his son report prolonged and lasting effects from their forced separation. Mr. L.A. still experiences nightmares, anxiety, and depression, and also survived an attempt on his life once removed to the country from which he sought asylum. O.L. reports experiencing anxiety and depression in the wake of his detention and time spent separated from his father.

The claim letter charges the government with intentionally inflicting emotional pain on the family and punishing them for seeking asylum in the United States. The claims were filed against the Department of Homeland Security, Customs and Border Protection, Immigration and Customs Enforcement, the Department of Health and Human Services, and the Office of Refugee Resettlement. They are brought under the Federal Tort Claims Act, which allows individuals to sue the United States for injuries resulting from unlawful conduct of federal officers.

Counsel: Northwest Immigrant Rights Project and Morgan, Lewis, & Brockius, LLP

Contact: Matt Adams | Northwest Immigrant Rights Project | 206.957.8611 | matt@nwirp.org

 

 

Gonzalez Recinos et al. v. McAleenan et al.

Gonzalez Recinos et al. v. McAleenan et al., No. 1:19-cv-00138 (S.D. Tex. filed Aug. 16, 2019).

This lawsuit was brought as a writ of habeas corpus by individuals detained by CBP in various facilities within the Rio Grande Valley Sector of the U.S. Border Patrol.

The lawsuit alleges that CBP has subjected petitioners to inhumane treatment and harsh conditions in these facilities by: packing them into overcrowded cells for lengthy periods, where they are denied adequate food, water, medical attention, and sanitation facilities, providing inadequate food and water, unsanitary toilets, showering and bathing facilities, and no access to phones, beds, or medical assistance. Petitioners are also alleging that it is CBP’s pattern or practice to deny access to family members and legal counsel.

Plaintiff-petitioners filed an amended petition on July 20, 2019, and a motion for preliminary injunction on August 12. The district court held a hearing on that motion on September 6, 2019. In October of 2019, the court denied plaintiffs’ motion for preliminary injunction under the rationale that granting the requested relief would impose a substantial burden on CBP. The parties then stipulated to dismiss the case.

Counsel: Elisabeth (Lisa) Brodyaga, Refugio del Rio Grande; Jaime M. Diez, Jones and Crane; Thelma O. Garcia, Law Office of Thelma Garcia; Luis Campos, John Becker & Wesley D. Lewis, Haynes and Boone, LLP; Efrén C. Olivares, Texas Civil Rights Project

Contact: Lisa Brodyaga | Refugio del Rio Grande | 956-421-3226 | LisaBrodyaga@aol.com