Category Archives: All Cases

A.I.I.L. et al. v. Sessions et al.

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A.I.I.L. on behalf of herself and her minor children, J.A.H.I. and M.E.H.I., et al., No. 4:19-cv-00481 (D. Ariz., filed Oct. 3, 2019); 4:23-cv-01383 (S.D. Tex.)

This lawsuit seeks damages on behalf of thousands of traumatized children and parents who were forcibly torn from each other under the Trump administration’s illegal practice of separating families at the border.

Leading child welfare organizations, the American Academy of Pediatrics, and medical professionals have publicly denounced the forced separation of children from their parents, citing the long-lasting, detrimental effects on children’s emotional growth and cognitive development. Separated parents, meanwhile, face an increased risk of developing mental health disorders, with trauma linked to severe anxiety, depression, and suicidal thoughts.

Plaintiffs cited in the complaint include families from Guatemala and Honduras who were separated along the border in Arizona for up to 16 months. In addition to damages, the lawsuit seeks the creation of a fund to pay for professional mental health services for affected families.

The lawsuit, A.I.I.L. v. Sessions, cites violations of the Fourth Amendment (unreasonable seizure of children); the Fifth Amendment due process clause (fundamental right to family integrity; right to a hearing; right to adequate health care); and equal protection (prohibiting discrimination on the basis of race, ethnicity, or national origin).

Defendants include officials from the Department of Justice, the Department of Homeland Security (DHS) and Customs and Border Protection (CBP), and Health and Human Services (HHS)/Office of Refugee Resettlement (ORR).

On February 14, 2020, Defendants filed a motion to dismiss Plaintiffs’ complaint, asserting lack of personal jurisdiction, failure to state a claim, and qualified immunity. Briefing on that motion is complete. On July 22, 2020, Plaintiffs sought leave to amend their complaint to include their administratively exhausted Federal Tort Claims Act (FTCA) claims. Defendants requested that the court defer a decision on Plaintiffs’ motion to amend pending the court’s decision on Defendants’ motion to dismiss. On August 31, 2020 the court granted Plaintiffs’ motion to amend and denied Defendants’ motion to dismiss.

On September 3, 2020, Plaintiffs filed their amended complaint. In February 2021, Defendants moved to dismiss the amended complaint for lack of jurisdiction, failure to state a claim, and on qualified immunity grounds.

On May 20, 2021, Plaintiffs sought a stay of the action to facilitate further settlement discussions in hopes of resolving their FTCA claims against the United States. The individual Defendants objected to the stay of the individual-capacity claims. The court lifted the abeyance on January 7, 2022.

On March 31, 2022, the court granted Defendants’ motion to dismiss all claims except for the FTCA claims of four of the five Plaintiff families. With respect to the FTCA claims, the court held, among other things, that those claims were not barred by the discretionary function or due care exceptions to the FTCA. With respect to the dismissed constitutional claims brought under Bivens, the court held, among other things, that special factors counseled against extending Bivens to a new context that challenged high level policy decisions. On July 14, 2022, the court denied the government’s motions to consolidate policy-level discovery in A.I.I.L. with related family separation cases in the district.

On July 15, 2022, the individual Defendants filed a Rule 54(b) motion for the entry of a final judgment as to the claims against the individual defendants. On March 31, 2023, the court denied the motion, finding that the dismissed individual claims and the pending FTCA claims raised related issues of fact and law and that two appeal tracks would complicate the case and burden Plaintiffs.

On April 11, 2023, the court transferred the claims of two of the named plaintiffs to the Southern District of Texas, where their separation occurred.

On March 6, 2024, the Plaintiffs filed an unopposed motion for court approval of the settlements of minor Plaintiffs’ claims. The settlements involved payment of stipulated amounts to the individual plaintiffs.

Documents:

Counsel: Christine Wee, ACLU of Arizona; Lee Gelernt, Anand Balakrishnan, Daniel Galindo, Stephen Kang, & Spencer Amdur, ACLU Immigrant Rights’ Project; Geoffry R. Chepiga, Jacqueline P. Rubin, Emily Goldberg, Hallie S. Goldblatt, Steven C. Herzog, Paul, Weiss, Rifkind, Wharton & Garrison LLP; Alexander A. Reinert, Benjamin N. Cardozo School of Law.

Contact: Lee Gelernt | ACLU Immigrants’ Rights Project | lgelernt@aclu.org

Electronic Frontier Foundation v. Dep’t of Homeland Security

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Electronic Frontier Foundation v. Dep’t of Homeland Security, No. 1:19-cv-02578 (D.D.C., filed Aug. 27, 2019)

In United States v. Jones, 565 U.S. 400 (2012), the Supreme Court unanimously held that warrantless GPS tracking violates the Fourth Amendment and is therefore unconstitutional. In a 2018 California criminal case, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) disclosed that it is their policy and practice to install tracking devices on vehicles at the border without a warrant. An ICE official stated in a declaration that the policy did not violate the Jones ruling, but the court disagreed.

Neither agency submitted the actual policy to the court, so the Electronic Frontier Foundation (EFF) filed Freedom of Information Act (FOIA) requests with ICE and CBP. EFF asked the agencies to produce records pertaining to “[p]olicies and/or procedures regarding the use of GPS tracking devices on vehicles crossing the border” and “[t]raining manuals and/or training materials on the use of GPA tracking devices on vehicles crossing the border.” Four months after EFF made the request, ICE notified EFF that the agency would withhold all relevant documents because of an exemption that protects “law enforcement sensitive information” that might alert people of government agents attempting to place tracking devices on their vehicles at the border. CBP did not take any action in response to the request, so in August 2019, EFF filed a federal lawsuit to enforce the FOIA and obtain the relevant records.

From December 2019 through April 2020, ICE and CBP made a small series of productions.

The parties filed cross-motions for summary judgment. Briefing on the motions for summary judgment was completed in May 2021.  On March 21, 2023, the court entered a minute order denying both motions for summary judgment without prejudice and ordering the parties to file a joint status report on the progress of the case. As of a joint status report filed August 9, 2023, the parties continue to meet and confer to evaluate the possibility of settlement.

Counsel: David L. Sobel, Saira Hussain, Jennifer Lynch, Electronic Frontier Foundation

Contact: David L. Sobel | Electronic Frontier Foundation | 415-436-9333 | sobel@eff.org

American Immigration Council v. U.S. Customs and Border Protection et. al.

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American Immigration Council v. U.S. Customs and Border Protection et. al., No. 1:19-cv-02965 (D.D.C filed Oct. 2, 2019)

This Freedom of Information Act (FOIA) lawsuit seeks to uncover information about the government’s troubling new practice of employing U.S. Custom and Border Protection (CBP) officers to screen asylum seekers. The suit, filed on October 2, 2019, on behalf of the American Immigration Council and Tahirih Justice Center, challenges the government’s failure to respond to multiple FOIA requests for records relating to the U.S. Department of Homeland Security’s (DHS) decision to train and utilize CBP officers to conduct asylum screenings known as credible fear interviews (CFIs).

Congress intended that CFIs serve as a safeguard from summary removal. If a person seeking asylum passes this initial screening, they must be given the opportunity to file an asylum claim before an immigration judge. As threshold screenings, these interviews are not intended to be adversarial, but rather function to provide the person seeking asylum an opportunity to recount details of their feared persecution in their country of origin. People seeking asylum often describe instances of physical and sexual violence and other trauma to explain why they seek protection in the United States during a CFI. For decades, these interviews have been conducted by a corps of asylum officers employed by U.S. Citizenship and Immigration Services (USCIS) trained specifically to adjudicate asylum claims, including the handling of sensitive matters.

According to reports, DHS has begun to replace trained USCIS asylum officer with officers from CBP—a law enforcement agency with a history of abuse of and misconduct towards people seeking asylum—in the credible fear screening process. Despite the significance of this change, there are no publicly available records documenting this shift in functions.

In response to this lawsuit, CBP produced a single document. DHS has produced hundreds of pages of entirely redacted records. USCIS produced thousands of pages, largely consisting of training materials. On June 18, 2021, Plaintiffs filed a brief outlining for the court why Defendants improperly withheld records under FOIA exemptions and why Defendant CBP failed to conduct an adequate search. Plaintiffs requested that the court order Defendants to produce the disputed records and order CBP to conduct an adequate search.

On March 11, 2022, the court partially granted and partially denied motions for summary judgment by both sides. The court ordered CBP to conduct a new, adequate search. The court further held that DHS and USCIS failed to meet their burden to show that a FOIA exemption applied to the withheld documents Plaintiffs challenged. The court ordered DHS and USCIS to produce all challenged documents for in camera inspection. The court will then determine whether the documents should be redacted partially, in full, or not at all. Additionally, the court ordered USCIS to produce an unredacted email that includes the names of the CBP officers who performed the CFIs. In ordering that release, the court found that the public’s interest in learning the full scope of the pilot program and the interest of individuals potentially subjected to the pilot program in learning whether they were subjected to the program outweighed any privacy interest of the officers.

On June 21, 2022, Defendants filed a motion for reconsideration of the order requiring production of the unredacted email containing CBP officer names. On February 16, 2023, the parties executed an agreement to resolve Defendants’ outstanding motion to reconsider and in lieu of production of the CBP officers names. Pursuant to the agreement, Defendants agreed to provide Plaintiffs with the dates and locations where the pilot program operated. Plaintiffs will provide Defendants with up to 1,000 names, along with Department of Homeland Security Form G-639 releases, for individuals who received credible fear interviews at those locations during the relevant period. Defendants will provide confirmation as to whether the individuals were interviewed by U.S. Border Patrol agents. Plaintiffs agreed to provide the names within six months of execution of the agreement, or by August 16, 2023.

On April 3, 2023, the court issued a decision on the remaining disputed documents reviewed in camera and ordered the production of three as not properly withheld under the deliberative process exception. The court affirmed the withholding of the other three disputed documents.

On October 23, 2023, the parties stipulated to dismissal

Counsel: Emma Winger, American Immigration Council

Contact: Emma Winger, American Immigration Council | 617-505-5375 | ewinger@immcouncil.org

Mohanad Elshieky v. USA

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Mohanad Elshieky v. United States of America, No. 2:20-cv-00064 (E.D. Wash., filed Feb. 14, 2020)

U.S. Customs and Border Protection (CBP) officials unlawfully seized and detained Mr. Elshieky, an asylum recipient lawfully present in the United States, aboard a Greyhound bus in January 2019. Shortly after Mr. Elshieky boarded a Greyhound bus in Spokane, Washington, CBP officials entered the bus and began questioning and detaining people of color. A CBP official approached Mr. Elshieky and asked him to produce identification and to confirm his citizenship status. When Mr. Elshieky presented his valid Oregon driver’s license and valid USCIS employment authorization card, officers ordered him off the bus. Although Mr. Elshieky explained his immigration status—that he had been granted asylum recently—the officers accused him of possessing a forged employment authorization card and refused to believe him, saying “we’ve heard all this before” and “illegals say that all the time.” The officials continued to detain him and accused him of being unlawfully present as they confirmed his immigration status.

Mr. Elshieky filed an administrative complaint under the Federal Tort Claims Act (FTCA) on April 25, 2019, seeking $250,000 in damages for wrongful arrest and false imprisonment. CBP issued a final disposition denying the claim on September 11, 2019. On February 14, 2020, Mr. Elshieky filed a complaint in federal district court under the FTCA. On June 23, 2020, the court denied Defendant’s motion to dismiss Mr. Elshieky’s claim of discrimination under the Washington Law Against Discrimination.

After the court denied Defendants’ motion to dismiss as to Mr. Elshieky’s discrimination claim, Defendants filed their answer. Discovery is now beginning, and a bench trial has been postponed due to the pandemic. After a bench trial was postponed due to the pandemic, the case was referred to mediation and all deadlines were vacated. In March 2021, the government reached a settlement with Mr. Elshieky which included an award for damages. 

Counsel: Northwest Immigrant Rights Project | American Civil Liberties Union of Washington | Davis Wright Tremaine LLP

Contact: Matt Adams | 206-957-8611 | Northwest Immigrant Rights Project

Lisa Nowlin | 206-624-2184 | ACLU Washington

Lewis v. Unknown Agents of the Department of Homeland Security

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Lewis v. Unknown Agents of the United States Department of Homeland Security, No. 3:19-cv-00600 (S.D. Cal., filed Apr. 1, 2019)

Sams v. Unknown Agents of the United States Department of Homeland Security, No. 3:19-cv-00612 (S.D. Cal., filed Apr. 2, 2019)

These lawsuits arise from the Department of Homeland Security (DHS)’s detention of two individuals who were experiencing withdrawal from opiates and alcohol and were denied medical treatment. The plaintiffs bring claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), alleging violations of their Fifth Amendment Rights.

Mr. Lewis, a U.S. citizen and military veteran, was arrested by DHS at the San Ysidro Port of Entry in February 2019. He alleges that he told the arresting officers of his history of substance abuse, prompting laughter. He began experiencing the symptoms of withdrawal, and instead of being given medical treatment, was transferred back-and-forth between the San Diego Metropolitan Correction Center and DHS custody. Mr. Lewis spent four days in DHS custody experiencing severe withdrawal symptoms, unable to move or eat, all the while requesting medical attention which was never given.

The facts of Ms. Sam’s case are similar. In January 2019, DHS officers interrogated and detained her. Despite advising officers of her substance abuse history, she was placed in a small holding cell. She remained in DHS custody for four days, during which time she experienced grave symptoms of withdrawal and repeatedly requested medical attention. Her requests were ignored.

In April 2020, both cases settled for an undisclosed amount.

Counsel: Brody McBride, Singleton Law Firm, APC

Blanca Gomez Arellano v. United States

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Blanca Gomez Arellano v. United States, No. 2:19-cv-00141 (S.D. Tex., filed May 13, 2019).

This is a wrongful death lawsuit brought by a mother whose son died trapped in a tractor-trailer container while the vehicle was impounded by U.S. Customs and Border Protection (CBP). On October 13, 2017, CBP officers detained a tractor-trailer for inspection and discovered an undocumented individual inside. CBP then took the driver and undocumented individual into custody and impounded the truck. Three days later, CBP officers noticed a foul smell and liquid leaking from the truck, and they contacted the local sheriff’s department, who found a decomposing body.

The complaint alleges claims under the Federal Tort Claims Act for negligence, gross negligence, assault and battery, false imprisonment, and intentional infliction of emotional distress. A policy manual currently in effect directs CBP officers that “all closed containers must be opened and their contents inventoried” upon the impounding of a vehicle. The compartment in which the victim’s body was found was clearly marked as a “Liftable Lower Bunk.” The complaint alleges that the officers acted negligently or recklessly to cause the victim’s death. The government moved to dismiss the complaint in May of 2019. The case was consolidated with a related case filed by the decedent’s widow, Ramirez v. Garcia, No. 2:18-cv-446 (S.D. Tex.).

On October 30, 2019, the court dismissed all of the plaintiffs’ FTCA claims on the basis that the customs-duty exception to the FTCA’s waiver of sovereign immunity applied and barred recovery. The court then remanded the remaining state law claims to the 92nd Judicial District of Hidalgo County, Texas.

Counsel: Texas Civil Rights Project

Contact: Efrén C. Olivares | efren@texascivilrightsproject.org

Gomez Vincente v. United States of America & Barrera

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Gomez Vincente, et al., v. United States of America, et al., No. 5:20-cv-00081 (S.D. Tex., filed May 12, 2020)

On May 24, 2018, Border Patrol agent Romualdo Barrera shot and killed Claudia Patricia Gómez González, a twenty-year-old Guatemalan woman, several hundred yards from the U.S.-Mexico border in Rio Bravo, Texas. Claudia was walking through Rio Bravo with a few other people when Agent Barrera confronted the group. Although several members of the group began running, Claudia remained where she was. Agent Barrera drew his weapon, and when Claudia – a petite woman who was not carrying anything that could even remotely be perceived to be a weapon – took a step forward, the agent aimed at her, pulled the trigger, and shot her in the head.

Following the shooting, U.S. Customs and Border Protection (CBP) issued a press release claiming that members of Claudia’s group had attacked the agent with “blunt objects” and that Claudia was one of the assailants. It later retracted that statement and issued a new one, removing any references to the blunt objects or allegations that Claudia had assaulted the agent.

On May 23, 2019, Claudia’s family filed an administrative claim under the Federal Tort Claims Act (FTCA) for Claudia’s wrongful death, seeking substantial damages and hoping to ensure accountability for the officials’ unlawful acts. When more than six months passed after filing the claim without any action by the agencies, Claudia’s family filed a federal suit against the United States for common law battery, negligence, gross negligence, and reckless conduct pursuant to the FTCA, and against the agent who killed Claudia for excessive, unreasonable force and deprivation of due process in violation of the Fourth and Fifth Amendments to the U.S. Constitution.

On May 13, 2020, the Plaintiffs filed an emergency motion to expedite discovery, which the court granted in part and denied in part on May 19, 2020. On September 9, 2020, Defendants filed their answer. On September 29, 2020, Defendant Barrera filed a motion to dismiss the Bivens claims against him. On December 1, 2020, the court granted the U.S.’s motion to stay the case pending an FBI investigation of Claudia’s death.

The stay was lifted on July 8, 2021. On July 19, 2021, Magistrate Judge John Kazen issued a Report and Recommendation (R&R) recommending the district court dismiss all Bivens claims. On August 2021, Plaintiffs filed their objections to the R&R. On September 29, 2021, United States District Judge Diana Saldaña adopted the Magistrate Judge’s R&R in part and dismissed all Bivens claims.

The parties settled the remaining FTCA claims for an undisclosed amount. The case was dismissed pursuant to a stipulation of dismissal.

Counsel: Kirkland & Ellis LLP; ACLU of Texas; ACLU Immigrant Rights Project

Contact: Edgar Saldivar | ACLU of Texas | esaldivar@aclutx.org

NBC 7 San Diego v. United States Department of Homeland Security

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NBC 7 San Diego et al v. United States Department of Homeland Security et al., No. 1:19-cv-01146 (D.D.C., filed Apr. 22, 2019)

In March 2019, NBC 7 San Diego reported that U.S. Customs and Border Protection (CBP) maintains a secret database of lawyers, journalists, and others who were covering the migrant caravan or advocating for asylum seekers. Several of those in the database reported spending hours in secondary screening, and at least three people reported being barred from crossing into Mexico.

NBC reported that CBP secretly tracks these individuals under the aegis of “Operation Secure Line,” the moniker for its efforts to deter and intimidate caravans of asylum seekers. The agency’s proffered justification for maintaining this secret database is that the people listed were somehow involved with an incident in which a large group of asylum seekers approached the border barrier, leading CBP to respond with tear gas.

The existence of this database attracted the attention of the House of Representatives’ Committee on Homeland Security, prompting a letter to DHS leadership requesting further information on the tracking of journalists and advocates.

On April 22, 2019, NBC 7 San Diego filed this lawsuit under the Freedom of Information Act (FOIA) seeking records that reference “Operation Secure Line” and the secret database. CBP continues to deny the database sought exists. The parties have filed cross motions for summary judgment. Defendants have not yet completed their production of responsive records as of April 2022.

On December 20, 2022, the court denied in part and denied without prejudice in part Defendants’ motion for summary judgment, and granted in part and denied without prejudice in part Plaintiffs’ cross-motion. Following the court’s summary judgment order, Defendants have produced thousands of records to NBC 7.

Documents:   

Counsel: The Reporter’s Committee for Freedom of the Press

Contact: Katie Townsend | (202) 795-9300 | ktownsend@rcfp.org

Press: Tom Jones, Secure Line Secrets: Documents Released Behind Border Surveillance of Journalists, Attorneys and Humanitarian Aid Workers, NBC 7 San Diego (Mar. 24, 2023, 4:12 PM), https://www.nbcsandiego.com/news/investigations/secure-line-secrets-documents-released-behind-border-surveillance-of-journalists-attorneys-and-humanitarian-aid-workers/3194760/

Innovation Law Lab v. Nielsen

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Innovation Law Lab et al. v. Nielsen, No. 3:19-cv-00807 (N.D. Cal., filed Feb. 14, 2019)

On December 20, 2018, then-Secretary of Homeland Security, Kirstjen M. Nielsen, announced a new government policy, the so-called “Migrant Protection Protocols” (MPP), which would force noncitizens seeking admission from Mexico to return to Mexico to await their removal proceedings. The Trump Administration voiced its intention to implement the policy “on a large scale basis,” beginning first with San Ysidro Port of Entry in California on January 28, 2019.

A lawsuit challenging this forced return policy (commonly known as “Remain in Mexico”), was brought on behalf of legal organizations that serve asylum seekers and eleven asylum seekers from Central America. Defendants include DHS, CBP, USCIS and ICE. The complaint explains that the individual plaintiffs are particularly vulnerable to, and many have already suffered, serious violence and discrimination while stranded in Mexico. Furthermore, without access to legal representation, information regarding immigration court hearings, or the right to lawfully work in Mexico, these individuals have been effectively deprived of the right to apply for asylum in the United States as a result of the MPP policy.

The lawsuit alleges that procedural deficiencies in the MPP policy undermine the United States’ domestic and international legal obligations to ensure non-refoulement of individuals who have expressed a fear of return to Mexico. In addition, the complaint specifies the grossly deficient—and at times abusive—practices of CBP officers in implementing the MPP policy. The complaint recounts cursory interviews during which plaintiffs routinely were not asked about fear of return to Mexico; were not provided explanations of the process to which they were subjected; were coerced into signing documents they did not understand or wish to sign; and were questioned by U.S. government officers who did not speak their language and who verbally abused or threatened them.

MPP also substantially interferes with legal organizations seeking to serve asylum seekers and other immigrant populations, straining and diverting these organizations’ resources as they scramble to assist asylum seekers stranded in Mexico. The complaint alleges that Defendants’ failure to comply with the notice and comment requirements established under the Administrative Procedures Act is also a violation of law.

On April 8, 2019, the federal district court issued a preliminary injunction blocking MPP. The government appealed, and on May 7, 2019, the Ninth Circuit granted DHS’s motion for a stay of the preliminary injunction while the appeal remained pending; this permitted MPP to go back into effect. The Ninth Circuit heard oral argument on the merits of the government’s appeal of the preliminary injunction grant on October 1, 2019.

On February 28, 2020, the Ninth Circuit denied the government’s appeal. That same day, the government filed an emergency motion requesting a stay of the preliminary injunction pending disposition of a petition for certiorari to the Supreme Court or an immediate administrative stay. That evening, the Ninth Circuit granted the government an administrative stay pending briefing by the parties. On March 4, 2020, following briefing, the Ninth Circuit granted the government’s stay motion in part and denied it in part. The stay was denied with respect to the Ninth Circuit’s holding that MPP violated federal law, affirming the Ninth Circuit’s belief in the policy’s illegality. However, the stay was granted in part and denied in part with respect to the injunctive relief. The order permitted enforcement of MPP nationwide through March 11, 2020, but thereafter prohibited MPP from operating only in the Ninth Circuit.

On March 11, 2020, the government applied for a stay of the preliminary injunction to the Supreme Court, which granted a stay pending filing and disposition of a petition for a writ of certiorari. On April 10, 2020, DHS petitioned for a writ of certiorari to the Supreme Court and on October 19, 2020, the Court granted certiorari.

On January 20, 2021, DHS announced that on January 21, it would stop enrolling people into MPP. On February 11, 2021, DHS then announced a phased winddown of the program. Finally, on June 1, 2021, DHS announced that it was terminating the MPP program altogether. On June 21, 2021, the Supreme Court vacated the Ninth Circuit’s judgment as moot, given the winddown and termination of the MPP program.

On August 6, 2021, the district court issued an order to show cause to the Plaintiffs to demonstrate why the case should not be dismissed as moot.

However, on August 13, 2021, the district court for the Northern District of Texas issued a nationwide injunction in Texas et al. v. Biden requiring the Biden administration to restart the MPP program “in good faith.”

After the Supreme Court declined to stay the injunction on August 24, 2021, DHS issued a statement indicating their intent to appeal the injunction but stating that while the appeals process continues, DHS “will comply with the order in good faith.” However, on October 29, 2021, DHS issued a new memo terminating MPP again. In the interim, DHS reimplemented MPP. The government also filed a petition for certiorari seeking review of the Fifth Circuit decision affirming the injunction. The Supreme Court granted certiorari and reversed the Fifth Circuit’s decision on June 30, 2022.

Pursuant to the Supreme Court’s decision and a subsequent remand from the Fifth Circuit, the district court in Texas v. Biden vacated the injunction on August 8, 2022.

Additionally, DHS has announced that it will no longer enroll new individuals in MPP, and will disenroll individuals currently in MPP when they return for their next scheduled court date.

On October 21, 2023, the parties stipulated to the dismissal of all claims. The stipulation includes several terms for immigration relief for the Plaintiffs, including that several Plaintiffs within the United States will submit requests for parole; all Plaintiffs currently residing outside of the United States will submit requests for parole; all Plaintiffs within the United States previously ordered removed will provide Defendants with draft joint motions to reopen and dismiss; and more terms listed in the document.

Documents:

Counsel: Judy Rabinovitz, Michael Tan, Omar Jadwat, Katrina Eiland, Lee Gelernt, Anand Balakrishnan, & Daniel Galindo, ACLU Immigrants’ Rights Project; Sean Riordan, ACLU of Northern California; Mary Bauer, Saira Draper, & Gracie Willis, Southern Poverty Law Center; Melissa Crow, Karen Musalo, Kathryn Jastram, & Sayoni Maitra, Center for Gender & Refugee Studies.

Contact: Judy Rabinovitz | ACLU Immigrants’ Rights Project | jrabinovitz@aclu.org

Suda and Hernandez v. U.S. Customs and Border Protection

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Suda v. U.S. Customs and Border Protection, No. 4:19-cv-00010-BMM, (D. Mont., filed Feb. 14, 2019)

On May 16, 2018, Ana Suda and Martha Hernandez were shopping at a convenience store in the small town of Havre, Montana, where both reside, when they were seized and detained by CBP Agent Paul O’Neill. While in the checkout line, Ms. Hernandez gave a friendly hello to Defendant O’Neill who was in line behind them. He responded by asking the two women where they were born. Although Ms. Suda and Ms. Hernandez told the agent they were U.S. citizens, born in Texas and California, respectively, Defendant O’Neill proceeded to detain them. Even after giving Defendant O’Neill their Montana driver’s licenses, they were detained for forty minutes. The only reason both Defendant O’Neill and his supervisor subsequently gave for their detention was that Ms. Suda and Ms. Hernandez were speaking Spanish.

On February 14, 2019, the ACLU of Montana filed an action against CBP and its agents for violations of Ms. Suda and Ms. Hernandez’s Fourth and Fifth Amendment rights. The complaint alleges that Defendant O’Neill stated he had asked for identification “because I came in [the convenience store] and saw that you guys are speaking Spanish which is very unheard of up here.” Defendant O’Neill’s supervisor confirmed that the women had been singled out for speaking Spanish and specifically admitted that CBP doesn’t detain individuals for speaking French.

The complaint alleges that other Latinos in the community similarly have been targeted by CBP agents. The suit names as defendants CBP, its Commissioner, Defendant O’Neal, and 25 “John Doe” agents. Plaintiffs seek declaratory and injunctive relief aimed at preventing CBP officers from stopping and detaining individuals solely on the basis of race, accent, and/or speaking Spanish. The Plaintiffs also seek compensatory and punitive damages pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The Plaintiffs amended their complaint to add claims of negligence and false arrest under the Federal Tort Claims Act (FTCA).

The government, which is representing all the defendants except for Defendant O’Neal, filed a motion to dismiss on April 19, 2019. Defendant O’Neal, through private counsel, submitted a motion to dismiss the claims for injunctive and declaratory relief on June 4, 2019. Defendant O’Neal did not seek dismissal of the Bivens claim for damages. Plaintiffs amended their complaint on January 29, 2020. The district court denied Defendant O’Neal’s motion to dismiss and denied in part and granted in part the government’s motion to dismiss on February 26, 2020. The court found that Plaintiffs had standing to seek injunctive relief and that Plaintiffs’ claims for declaratory relief are ripe. The court dismissed Plaintiffs’ damages claims against the defendants in their official capacity. Plaintiffs’ FTCA claims for damages survived.

The parties reached an undisclosed monetary settlement in November 2020.

Counsel: ACLU Immigrant Rights Project, ACLU of Montana; Crowley Fleck

Contact: Alex Rate | ACLU of Montana Foundation, Inc. | 406.203.3375 | ratea@aclumontana.org

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