Category Archives: All Cases

Alton Jones v. United States of America, et al.

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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 and Imperial Counties’ Border Litigation Project filed a federal complaint in the Southern District of California on Mr. Jones’s behalf, alleging violations of Mr. Jones’ Fourth Amendment rights. Additionally, under the Federal Tort Claims Act, Mr. Jones submitted an administrative complaint to the Department of Homeland Security and U.S. Customs and Border Protection, claiming $3 million in damages for false imprisonment, battery by a peace officer, assault, negligence, intentional infliction of emotional distress, and violation of the California Bane Act.

On October 20, 2017, CBP denied Mr. Jones’s administrative tort claim. On February 3, 2017, because his administrative claim was denied, the Border Litigation Project filed an amended complaint to add Mr. Jones’s tort claims. On April 7, 2017, Defendants filed an answer to Mr. Jones’s amended complaint. On April 10, 2017, Defendants filed a counterclaim against Mr. Jones, alleging assault.

Discovery commenced in May 2017 and concluded in April 2018. On January 12, 2018, Plaintiff and Counter-Defendant filed a motion for summary judgment on the government’s counterclaim, which the government opposed. On May 2, 2018, Defendants filed a combined motion for summary judgment as to all claims brought against them and on their counterclaim against Plaintiff. On May 16, 2018, Defendants, DHS and CBP, filed another motion for summary judgment, this time seeking to dismiss the FOIA claim. Plaintiff opposed both motions. On November 15, 2019, the court dismissed in part and granted in part both motions for summary judgment.

The court dismissed the constitutional claims against the CBP officers, finding that the CBP agents had probable cause to arrest Mr. Jones due to his presence in a restricted area and his failure to heed repeated warnings to leave. The court allowed several of the FTCA claims to proceed. Notably, Jones’ claim for battery survived summary judgment due to Jones’ testimony that officers hit him, supported by documented evidence of injuries. His claim for intentional infliction of emotional distress, based on his allegation that the agents locked him in a patrol car with the heat turned on and the windows rolled up (in August desert sun), also was allowed to proceed. The defendants won summary judgment on their counterclaim against Jones for negligence in causing injury to one of the officers.

The parties settled in March 2019, agreeing to drop the claims against each other without either party paying compensation.

FTCA Administrative Complaints Challenging Abuses from CBP Roving Patrols

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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

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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. On June 26, 2018, the Supreme Court upheld the travel ban, and reversed and remanded the 9th Circuit decision in Hawaii v. Trump. Since this decision, many of the travel ban lawsuits have been stayed.

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

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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.

On January 18, 2018, the Department of Homeland Security’s Office of Inspector General released a report following a year-long investigation into the events immediately following the implementation of the first travel ban on January 27, 2017. Although the Office of Inspector General was unable to substantiate any individual claims of misconduct against CBP officers at ports of entry within the United States, the OIG found that CBP had violated two separate court orders when it was “aggressive in preventing affected travelers from boarding aircraft bound for the United States.

Ashcroft v. Abbasi

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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.

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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, Defendants filed a motion to dismiss. On March 27, 2017, Defendants filed a motion for summary judgment.

On July 12, 2017, the court granted Defendants’ motion to dismiss on Plaintiff’s FTCA and Bivens claims and struck as moot Defendants’ motion for summary judgment. The court ruled that it lacked subject matter jurisdiction over the FTCA claims and that the statute of limitations on the FTCA and Bivens claims had run.

In August 2017, Plaintiff moved for reconsideration of the decision, which Defendants opposed. On September 18, 2017, the court denied Plaintiff’s motion for reconsideration.

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

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

Murphy v. CBP

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Murphy v. CBP, No. 3:15-cv-00133-GMG-RWT (N.D.W.V., filed Dec. 4, 2015)

Acting pro se, a former armed security guard under federal contract at the CBP Training Center in Harpers Ferry, West Virginia filed a Freedom of Information Act complaint against CBP on December 4, 2015.  The complaint alleged that CBP unlawfully redacted or withheld over 80% of the responsive documents that Plaintiff sought in conjunction with an Equal Employment Opportunity complaint he filed alleging that CBP unlawfully terminated him due to his race and his wife’s race and religion.

After initially moving to dismiss the complaint due to insufficient service, which the district court denied, CBP moved for summary judgment.  Plaintiff opposed the motion, cross-filed for summary judgment, and filed a motion to compel as well as for in camera review of the documents.  After the completing of briefing, on August 5, 2016, the district court denied CBP’s motion for summary judgment, holding that CBP failed to meet its burden of demonstrating that documents responsive to the Plaintiff’s FOIA request were withheld pursuant to a recognized FOIA exemption under FOIA.  The court further established a schedule for the filing of a Vaughn index and for additional briefing from the parties. The court also denied without prejudice Plaintiff’s motion for in camera review of the responsive documents.

On August 8, 2015, CBP filed its answer to the complaint.

On June 13, 2017, the court denied Defendant’s third motion for summary judgment, granted Plaintiff’s cross motion for summary judgment, and ordered Defendant to reimburse Plaintiff for the expenses he incurred in bringing the suit.

Cervantes v. United States, et al.

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Cervantes v. United States, et al., No. 4:16-cv-00334-CKJ (D. Ariz., filed June 8, 2016) 

On June 8, 2016, Plaintiff, a teenage U.S. citizen, filed a law suit under Bivens, the Federal Tort Claim Act, and 42 U.S.C. 1983 seeking redress for seven hours of abusive and degrading searches and strip searches by Border Patrol agents.  The complaint alleges that Plaintiff was walking home after eating breakfast in Nogales, Sonora when a Border Patrol agent accused her of carrying drugs.  She was then directed to a detention room, handcuffed to a chair, sniffed by dogs, and strip-searched by female agents.   After no drugs were found, CBP agents brought her to Holy Cross Hospital, in handcuffs, where hospital staff subjected her to invasive pelvic and rectal exams while CBP agents observed.

On October 24, 2016, the Government filed their answer to the complaint.

On February 7, 2017, the government filed a motion to dismiss Plaintiff’s Bivens claims against Defendant Patrick F. Martinez, M.D. On February 21, 2017, Plaintiff filed a response to Defendant Martinez’s motion to dismiss. Subsequently, Defendant Martinez withdrew his motion to dismiss on February 28, 2017.

On November 10, 2017, Defendant Quantum Plus filed a motion for summary judgment, arguing that Plaintiff erroneously brought a negligent hiring claim based solely on a Bivens action against an agent. Several days later, Defendant Holy Cross Hospital moved to join in Quantum Plus’ motion. On February 19, 2018, Defendant Martinez filed a separate motion for summary judgment, arguing that Plaintiff could not bring a Bivens action against him because he was privately employed and not acting under claim of federal authority at the time of the medical examination.

The court granted the motions on July 18, 2018, dismissing the complaint with prejudice. With respect to Quantum Plus and Holy Cross Hospitals’ motion, the court reasoned that Plaintiff could not hold Defendants liable on a negligent hiring, training, and supervision claim in a Bivens cause of action. Regarding Defendant Martinez’ motion, the court held that it may not impose Bivens liability because Plaintiff may pursue an alternate state court action.

Counsel: Brian Marchetti, Marchetti Law PLC and Matthew C. Davidson | Law Offices of Matthew C Davidson Limited

Arizona Interior Enforcement Complaint

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Arizona Interior Enforcement Complaint

In June 2016, the ACLU of Arizona filed a complaint on behalf of ten individuals with U.S. Department of Homeland Security oversight agencies and the Department of Justice demanding investigations into abuses arising from Border Patrol interior operations.

Most of the incidents described in the ACLU’s complaint arose in the course of Border Patrol checkpoint and “roving patrol” stops.  Several describe agents wrongfully detaining innocent residents for days in filthy, frigid, and overcrowded detention facilities.  Although these individuals were not charged with any crime or immigration violation, their property was confiscated and some had to pay thousands of dollars to recover a vehicle.

In other cases, residents describe facing constant surveillance and harassment on their own property, including frequent incursions by low-flying Border Patrol helicopters.

A copy of the ACLU complaint to CBP and DOJ is available here.

A district court case was filed but was dismissed on February 15, 2018.

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

American Immigration Council v. United States Department of Homeland Security

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American Immigration Council v. United States Department of Homeland Security, No. 16-cv-01050-RJL (D.C. District Court, Filed June 6, 2016)

The American Immigration Council filed a FOIA request with U.S. Customs and Border Protection (CBP) in October, 2015 seeking information about complaints filed against the U.S. Border Patrol since January, 2012. This request followed-up on an earlier FOIA request by the Council in response to which CBP produced data concerning 809 complaints of abuse lodged against U.S. Border Patrol (USBP) agents between January 2009 and January 2012. The Council analyzed this earlier data in a May 2014 report entitled, No Action Taken: Lack of CBP Accountability in Responding to Complaints of Abuse, revealing that the recorded outcome in 97 percent of the cases CBP claimed to have resolved was “no action.” The data further showed that “physical abuse” by USBP agents was the most prevalent reason given for filing a complaint (cited in 40 percent of the complaints), with “excessive use of force” referenced in 38 percent of the cases. The October 2015 FOIA was filed in order for the Council to determine whether CBP and USBP had made any improvements to the complaint system, and in particular whether the response to complaints filed against agents had changed.

Over 8 months later, CBP had not responded to the October 2015 FOIA. The Council, represented by Drinker Biddle & Reath LLP, filed a lawsuit on June 6, 2016, to compel the release of documents related to the complaints process. CBP subsequently produced a multiple-page spreadsheet listing abbreviated information about thousands of complaints. The case was referred for mediation in May of 2019.

The parties settled and dismissed the case in December 2019. Pursuant to the settlement, CBP produced a second spreadsheet identifying all complaints made against Border Patrol officers by noncitizens or on behalf of noncitizens for the period from the last spreadsheet through August 2019.

Counsel: The American Immigration Council, Drinker Biddle & Reath LLP

Contact: Mary Kenney | American Immigration Council | 202.507.7512 | mkenney@immcouncil.org