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

Estrada v. United States, No. 3:22-cv-00373-AJB-BGS (S.D. Cal., filed Mar. 21, 2022)

On May 14, 2021, in Campo, California, a Border Patrol agent attempted to stop a vehicle suspected of being involved in migrant smuggling. The driver of the vehicle, Silvestre Estrada Vargas, who was accompanied by two other individuals, failed to yield before eventually stopping in a gas station parking lot. Without any legal justification or threat to their safety, an unknown number of Border Patrol agents then began shooting at the vehicle. Mr. Estrada, who was unarmed and had one hand on the steering wheel and another holding a cell phone up to his ear, was struck by an unknown number of bullets. He was transported to a local hospital where he was pronounced dead shortly after arrival. Luckily, the other two occupants of the vehicle, despite being directly in the line of fire, were uninjured.

Mr. Estrada’s minor son and mother, as well as the two other vehicle occupants, Francisco Madariaga and Jaime Madariaga-Gonzalez, filed this suit pursuant to the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named Agents alleging wrongful death, excessive use of force, assault and battery, and negligence.

The San Diego County Sheriff’s Department Homicide Division, the Federal Bureau of Investigation, the San Diego County Medical Examiner’s Office, the Department of Homeland Security Office of Inspector General, and CBP’s Office of Professional Responsibility had all responded to the scene and began an investigation. However, when Plaintiffs’ investigator spoke to the gas station manager, the manager said that one of the responding agencies had already seized a videotape from the gas station surveillance system and had been advised not to speak to anyone about the incident.

Documents:
Complaint

Counsel: Keith Rutman Law

Contact:
Keith Rutman | krutmanlaw.com

Press:
Border Patrol Sued Over San Diego Man’s Shooting Death in Campo

Kariye v. Mayorkas, No. 2:22-CV-01916 (C.D. Cal., filed Mar. 24, 2022)

On March 24, 2022, the ACLU, ACLU Foundation of Southern California, and ACLU of Minnesota filed a lawsuit on behalf of three Muslim Americans, Abdirahman Aden Kariye, Mohamad Mouslli, and Hameem Shah, who have all been subjected to intrusive questioning from U.S. Customs and Border Protection (CBP) and Homeland Security Investigations (HSI) officials about their religious beliefs, practices, and associations in violation of their First and Fifth Amendment rights. On multiple occasions when the three Plaintiffs returned home from abroad, these border officers asked them inappropriate religious questions, including whether they are Muslim, whether they attend a mosque, which mosque they attend, whether they are Sunni or Shi’a, and how often they pray. Border officers then retain the answers in a law enforcement database for up to 75 years.

In the lawsuit, Plaintiffs argue that this questioning by both CBP and HSI violates their First Amendment freedoms of religion and association, as well as the Religious Freedom Restoration Act (RFRA). In addition, because CBP and HSI specifically single out Muslim Americans for this questioning, the lawsuit alleges violations of the First and Fifth Amendments’ protections against unequal treatment on the basis of religion. Plaintiffs are seeking a declaration that border officers’ religious questioning violates the Constitution and RFRA, as well as an injunction barring CBP and HSI from questioning about their faith at ports of entry. The suit also seeks expungement of records reflecting information that border officers obtained about Plaintiffs through their unlawful questioning.

Documents:
Complaint

Counsel: ACLU Foundation of Southern California; ACLU Foundation; American Civil Liberties Union of Minnesota

Contact:
Mohammad Tajsar, ACLU Foundation of Southern California | mtajsar@aclusocal.org

Press:
ACLU Sues DHS, Says Muslim American Questioned About Faith at Border
Minnesota Imam on Intrusive Religious Questioning by CBP

FOIA: Advocates for Basic Legal Equality, et al. v. U.S. Customs and Border Protection, No. 3:22-cv-00149-JRK (N.D. Ohio, filed Jan. 28, 2022)

On March 12, 2021, Plaintiffs Advocates for Basic Legal Equality (ABLE) and the American Immigration Council (AIC) submitted three Freedom of Information Act (FOIA) requests to U.S. Customs and Border Protection (CBP) seeking documents related to the Border Patrol’s immigration enforcement activities in Ohio. Specifically, the requests sought policies and communications of the Sandusky Bay Border Patrol Station in Port Clinton, Ohio, as well as various forms documenting apprehensions by the Sandusky Bay Border Patrol Station.

On January 28, 2022, after Defendant failed to adequately respond to the request, Plaintiffs filed suit against Defendant seeking a declaration that Defendant’s failure to disclose responsive records and failure to promptly produce responsive records violates FOIA, as well as an order that Defendant immediately conduct a reasonable search for agency records and immediately produce all responsive agency records.

On March 9, 2022, the Court granted CBP’s motion for extension of time to answer the complaint until April 23, 2022.

Documents:
Complaint

Counsel: Advocates for Basic Legal Equality, Inc.; American Immigration Council; Immigrant Legal Defense

Contact:
Mark Heller | mheller@ablelaw.org
Emily Creighton | ECreighton@immcouncil.org
Claudia Valenzuela | claudia@ild.org

FOIA: Al Otro Lado v. U.S. Customs & Border Protection, et al., No. 2:22-cv-01450-DSF-AFM (S.D. Cal., filed March 3, 2022)

Over the past year, the media has reported multiple incidents of injuries and deaths along the U.S.-Mexico border as migrants cross to seek safety in the United States. In many of those instances, rather than transporting injured migrants to hospitals for medical treatment, both U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) have abandoned them at volunteer-run organizations not equipped to provide such medical care; taken them into custody and refused to provide them with medical care; or left them at border crossings without any assistance.

On July 20, 2021, Al Otro Lado submitted Freedom of Information Act (FOIA) requests to both CBP and ICE seeking information related to CBP and ICE’s unlawful treatment and processing of migrants injured falling from the border wall at the southern border. CBP denied Al Otro Lado’s request for expedited processing, and after seven months, neither CBP nor ICE have issued determinations regarding the request and both agencies have failed to produce even a single document in response. On March 3, 2022, Al Otro Lado filed suit seeking to compel CBP and ICE to issue determinations regarding the requests, arguing that the request is critically urgent because Defendants’ failure to adequately provide medical treatment to severely injured migrants and their expulsion of severely injured migrants is ongoing and continues to threaten migrants’ lives and safety. Plaintiffs seek a declaration that CBP and ICE have failed to timely respond to Plaintiff’s request for agency records and grant expedited processing of Plaintiff’s requests, as well as an order that Defendants must conduct a reasonable search for responsive records and produce non-exempt responsive records within twenty days of the Court’s order.

Documents:
Complaint

Counsel: Arent Fox LLP

Contacts:
Douglas Hewlett, Jr. | douglas.hewlett@arentfox.com
David Dubrow | david.dubrow@arentfox.com
Andrew Dykens | andrew.dykens@arentfox.com

Abdulkadir Nur v. Unknown U.S. Customs & Border Protection Agents, et al., No. 1:22-cv-00169-AJT-JFA (E.D. Va., filed Feb. 17, 2022)

Abdulkadir Nur is a 69-year-old U.S. citizen who was born in Somalia but lives in northern Virginia. Mr. Nur is also Muslim. As a business owner and humanitarian, Mr. Nur frequently travels internationally, and every single time he arrives back in the United States after traveling overseas, CBP officers have illegally seized any phone or laptop he has with him.

In September 2008, Mr. Nur was providing logistical support to a United Nations relief program in Somalia when his caravan was raided by local insurgents. Following the event, a United Nations Monitor Group launched an investigation, and ultimately found that Mr. Nur had not done anything improper. However, the investigation drew the attention of the FBI and U.S. Attorney’s Office, who demanded financial records and data from Mr. Nur and his company. Mr. Nur fully complied with the investigation, and both the FBI and U.S. Attorney’s Office told Mr. Nur that they wouldn’t be looking into the event any further.

However, since that time, Mr. Nur has been the target of increased scrutiny at airports and border crossings, always being subjected to secondary inspection and interrogation. In 2018, the intensity of this scrutiny increased – following every flight Mr. Nur has taken into the United States since then, CBP officers have seized Mr. Nur’s electronic devices and demanded the passwords. Believing he had no choice and not wanting to further prolong his detention, Mr. Nur gave his passwords to the officers, who then left the room with his devices, eventually returning them upon his release. When Mr. Nur eventually began refusing to give officers the passwords, the officers would still take Mr. Nur’s devices, sometimes seizing them and holding them for days or weeks.

Mr. Nur believes that following the incident in Somalia, he was placed on a federal terrorist watchlist known as the “Terrorism Screening Database” for those suspected to have ties to domestic terrorism. However, in order to be placed on the watchlist, the federal government need only have a “reasonable suspicion” that the individual is “reasonably suspected” of nefarious activities – a standard far lower than “reasonable suspicion” or “probable cause” that often leads to people being placed on the watchlist merely for being a friend or community member of someone on the watchlist, rendering the list highly over-inclusive. The FBI itself has admitted that it is “not aware of any instance where [the identifying information included on the watchlist] alone prevented an act of terrorism.” Mr. Nur believes that his placement on the watchlist has caused his repeated detention, interrogation, and seizure of his devices. 

On February 17, 2022, Mr. Nur filed a lawsuit alleging that CBP’s searches and seizures of his devices based solely on his inclusion on the watchlist violate the Fourth Amendment and that officers compelling him to provide his device passwords violates his Fifth Amendment right against self-incrimination. He also alleges that CBP’s policies of searching and seizing him and other U.S. citizens and lawful permanent residents included on the federal watchlist are unlawful under the Administrative Procedure Act.

He seeks, among other things, a declaratory judgment that Defendants must have reasonable suspicion apart from watchlist status before performing nonroutine search and seizures of persons on the watchlist or forensic searches of their electronic devices and that Mr. Nur’s placement on the watchlist imposed unlawful consequences on him. He also seeks an injunction prohibiting Defendants from searching someone’s device because of their watchlist status or ordering individuals at the border to provide passwords or other access to their electronic devices, and ordering Defendants to remove Mr. Nur’s watchlist status and expunge records regarding his status and information illegally seized from him. Mr. Nur also seeks damages pursuant to Bivens v. Six Unnamed Agents.

Documents:
Complaint

Counsel: CAIR Legal Defense Fund

Contacts:
Lena Masri | lmasri@cair.com
Gadeir Abbas | gabbas@cair.com
Justin Sadowsky | jsadowsky@cair.com
Kimberly Noe-Lehenbauer | knoelehenbauer@cair.com


Haitian Bridge Alliance, et al. v. Biden, et al., No. 1:21-cv-03317 (D.D.C., filed Dec.20, 2021)

Mirard Joseph is a Haitian man who was whipped by a U.S. Border Patrol agent while attempting to bring food to his family in a Texas migrant encampment. Mr. Joseph alleges his wife received only bread and water and a single diaper for their infant daughter each day—conditions that eventually drove him and others to leave the Del Rio encampment and return to Mexico to buy food. When they attempted to reenter the camp with their purchases, they were met by Border Patrol officers who grabbed Mr. Joseph’s shirt, “lashed at him with reins, attempted to drag him back into the water, and nearly trampled him.”

Mr. Joseph and ten other Haitian nationals held in the temporary Border Patrol camp allege that this mistreatment was part of a discriminatory policy by the Biden administration to target Haitians. Plaintiffs allege that the U.S. government differentially applied the Title 42 process—a summary expulsion process purportedly designed to protect public health during the COVID-19 pandemic. Specifically, Plaintiffs allege that the government used Title 42 at the Del Rio Port of Entry against Haitian and Haitian-appearing asylum seekers with the purpose of discouraging them from accessing their right to seek asylum. Plaintiffs assert that this Haitian Deterrence Policy diverges from standard practice for asylum seekers and is driven by discriminatory purpose. Despite ample warning that thousands of Haitian migrants were heading toward Del Rio, federal authorities refused to prepare adequate infrastructure to receive them when arrivals started ramping up in September. As a result, a makeshift processing center under the Del Rio International Bridge turned into an encampment, where up to 15,000 people were made to wait for days at a time in temperatures topping 100 degrees without adequate food, water, bedding, or medical attention.

Footage described in the complaint prompted a national outcry in September 2021, with White House press secretary Jen Psaki calling the tape “horrific” during her September 20 press briefing. DHS Secretary Alejandro Mayorkas launched an internal investigation into the encounter. While the Secretary initially called for findings to be released by the end of September, results are still pending.

Plaintiffs allege that the Haitian Deterrence Policy did not end with mistreatment in Del Rio. After being processed for admission, the U.S. government placed those Haitian asylum seekers in detention, split up families, and shackled and removed them to Haiti without providing the opportunity to request humanitarian protection in the United States. Plaintiff Wilson Doe testified that DHS officers lied and said his family was being transferred to another detention facility when they were actually being expelled pursuant to Title 42. Officers then beat him when he resisted boarding the plane.

Plaintiffs allege violations of the Fifth Amendment due process clause and the Administrative Procedure Act. They also seek certification for a class of all Haitian or presumed Haitian individuals who were denied access to the U.S. asylum process in or around the Del Rio encampment between September 9 and 24, 2021. Plaintiffs seek declaratory and injunctive relief enjoining the government from subjecting members of the proposed class to the Haitian Deterrence Policy or Title 42 expulsions. They also seek return of those already expelled under Title 42 to allow them to pursue their asylum claims. Plaintiffs filed their complaint on December 20, 2021.

Counsel: Innovation Law Lab; Haitian Bridge Alliance; Justice Action Center.

Contacts:
Taisha Santil | tsaintil@haitianbridge.org
Tasha Moro | tasha.moro@justiceactioncenter.org
Alex Mensing | alexm@innovationlawlab.org

Documents:
Complaint

Press:
Class Action Ties Alleged Whipping To Haitian Discrimination
Haitian Migrants File Lawsuit Protesting Treatment by Border Patrol

Dousa v. U.S. Department of Homeland Security, et al., No. 3:19-cv-01255 (S.D. Cal., filed Jul. 8, 2019)

Pastor Kaji Douša sued the Department of Homeland Security (DHS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE), to stop their unlawful retaliation against her for providing pastoral services to migrants and refugees—a central calling of her Christian faith. In 2018, Pastor Douša helped organize the “Sanctuary Caravan,” a mobile clinic of faith leaders to deliver pastoral services, such as prayer and church-blessed marriage ceremonies, to migrants seeking asylum in the United States. In December 2018, Pastor Douša traveled to Mexico to join the Sanctuary Caravan. But upon attempting to return to the United States, federal officials detained and interrogated her. She later learned that DHS had targeted her for heightened scrutiny and had revoked her clearance for expedited border crossing as part of Operation Secure Line, a DHS intelligence collection operation targeting activists, lawyers, and journalists working on issues related to the October 2018 migrant caravan and conditions at the U.S.-Mexico border. In March 2019, media outlet NBC 7 San Diego revealed existence of a “watchlist” that included the names, photos, and information of fifty-nine individuals purportedly tied to the migrant caravans, including Pastor Douša.

Pastor Douša brought this suit in July 2019, alleging retaliation in violation of the First Amendment, violation of the First Amendment’s free exercise clause, and violation of the Religious Freedom Restoration Act (RFRA). She seeks declaratory relief and an injunction compelling the government to stop surveilling, detaining, interrogating, or acting unlawfully against her in retaliation for how, when, and where she exercises her religion.

On January 28, 2020, the court denied Pastor Douša’s motion for a preliminary injunction and granted in part the government’s motion to dismiss. The court dismissed Plaintiff’s hybrid First Amendment rights claim, which asserted a Free Exercise claim in conjunction with a free speech and association claim, but allowed her to proceed with her First Amendment free exercise and RFRA claims. The parties have continued to engage in discovery. In December 2021, Pastor Douša moved to sanction DHS for misrepresentations, discovery delays, and failure to correct a false declaration. The hearing on the motion for sanctions is now set for May 12, 2022.

Further information can be found on the Protect Democracy website.

Two other lawsuits related to the unlawful targeting of journalists, attorneys, and advocates as part of Operation Secure Line are Guan v. Mayorkas and Phillips v. CBP.

Documents:

Counsel:
Arnold & Porter LLP; Protect Democracy

Contact:
Stanton Jones | stanton.jones@arnoldporter.com
Christine Kwon | christine.kwon@protectdemocracy.org

Press:
New York Pastor and Immigration Advocate Asks Court to Sanction Federal Officials
Source: Leaked Documents Show the U.S. Government Tracking Journalists and Immigration Advocates Through a Secret Database – NBC 7 San Diego (nbcsandiego.com)

Granillo v. United States of America, No. 2:21-cv-00777 (D.N.M., filed Aug. 18,2021)

Anastacio Granillo is a 64-year-old man who was assaulted by a Customs and Border Protection (CBP) officer at the Columbus Port of Entry while returning home from visiting family in Mexico in June 2019. On June 18, 2019, Mr. Granillo arrived at the Columbus Port of Entry with his wife’s cousin. At passport check, Mr. Granillo suggested to CBP Officer Oscar Orrantia that it would be helpful to open up another lane to allow for faster processing of vehicles in the heat. The officer responded in an angry tone and stated that CBP officers could do whatever they wanted. The CBP officer then asked what Mr. Granillo was bringing into the United States. Mr. Granillo responded that he was bringing allergy medication that he purchased in Mexico. He attempted to hand the medication to the officer, but accidentally dropped it, and it landed in the officer’s hands. The officer accused Mr. Granillo of throwing the medication at him before forcing him out of his vehicle and slamming him against the wall of the vehicle inspection bay, causing him to hit his head, fall to the ground, and suffer multiple injuries. CBP then detained him without medical help for close to an hour, despite him having a large visible bump on his forehead.

Mr. Granillo filed a complaint in the District of New Mexico on August 18, 2021. He alleged Officer Orrantia used excessive and unnecessary force against him and illegally detained him. Mr. Granillo claims the following causes of action under the Federal Tort Claims Act: assault, battery, false arrest, and negligence. The government filed an answer to the complaint on October 22, 2021. The parties met on December 16, 2021, and filed a joint status report outlining their provisional discovery plan on January 3, 2022.

Defendants attempted to stay discovery and release of a key piece of video evidence for six months. On March 8, 2022, the District Court denied the requested six-month stay and ordered release of the video on or before May 5, 2022. A Rule 16 conference is scheduled for May 6, 2022.

Documents:
Complaint
Answer
Joint Status Report

Counsel:
ACLU of New Mexico

Contact:
María Martínez Sánchez | msanchez@aclu-nm.org
Zoila Alvarez Hernández | zalvarez@aclu-nm.org
Rebecca Fae Sherman Sheff | rsheff@aclu-nm.org

Press:
ACLU Sues CBP for Excessive Force Against New Mexican Man at Columbus Port of Entry