Category Archives: All Cases

Saucedo-Carrillo, et al. v. United States

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Saucedo-Carrillo, et al. v. United States, U.S. District Court, Northern District of Ohio, Western Division (N.D. Ohio; 3:12-cv-2571)

U.S. Court of Appeals for the Sixth Circuit  (Sixth Cir. 13-4502)

In a related case to Muñiz v. United States Border Patrol, ABLE filed a Federal Tort Claims Action on behalf of a mother and daughter who allege that a Border Patrol Agent profiled them for arrest because they are Hispanic.  The Plaintiffs were purchasing gasoline at a gas station in Norwalk, Ohio, when an Agent blocked their vehicle and started questioning them.  This lawsuit against the United States alleges the Border Patrol Agent committed the Ohio torts of assault, false imprisonment, deprivation of civil rights through ethnic intimidation, and intentional and negligent infliction of emotional distress.  In 2013, the federal district court judge granted a motion for summary judgment filed by the United States.  The Sixth Circuit, in a decision on August 13, 2015, affirmed the grant of summary judgment 2 -1, with the dissenting opinion stating that a factfinder could find that the Plaintiffs were falsely imprisoned before the Border Patrol Agent developed probable cause for an arrest.

On a related note, the Plaintiffs had been placed in removal proceedings.  The Immigration Judge found that their Fourth Amendment rights were violated by the conduct of the Border Patrol Agent, but the violation was not egregious.  The removal cases were administratively closed.

Ohio State University Moritz College of Law Civil Clinic and Advocates for Basic Legal Equality v. U.S. Customs and Border Protection

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Ohio State University Moritz College of Law Civil Clinic and Advocates for Basic Legal Equality v. U.S. Customs and Border Protection, U.S. District Court, Southern District of Ohio, Eastern Division (S.D. Ohio; 2:14-cv-2329), transferred to U.S. District Court, Northern District of Ohio, Western Division (N.D. Ohio; 3:15-cv-833)

The Ohio State University College of Law Civil Clinic and ABLE filed a FOIA request with U.S. Customs and Border Protection on August 18, 2014.  The requested documents focus on enforcement efforts of the Sandusky Bay Station (Ohio) of the U.S. Border Patrol, including apprehension and arrest records; records relating to cooperation between Border Patrol and local police; and records of any civil rights investigations against the Border Patrol.  When no timely response was received, the requesters filed a lawsuit against CBP in the S.D. Ohio, Eastern Division (Columbus).  The U.S. Attorney filed a motion to transfer the case to the Northern District of Ohio; the Plaintiffs opposed the motion.  The motion was granted and the case was transferred to Judge Jack Zouhary in the Northern District based on his prior handling of a series of cases against the Sandusky Bay Station of the U.S. Border Patrol.  The Defendant has, as of October 12, 2015, started a phased delivery of requested information. In July of 2016, the parties stipulated to case dismissal with prejudice, and on July 28, 2016, the case was dismissed.

ACLU of Arizona v. DHS (Tucson Interior Enforcement FOIA)

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ACLU of Arizona v. DHS, No.4:14-cv-02052 (D. Ariz., filed April 28, 2014) (D. Az., filed April 28, 2014) (Tucson Interior Enforcement FOIA)

In January 2014, the Arizona ACLU and two University of Arizona law professors filed a FOIA request with DHS seeking records related to interior enforcement activities by the Border Patrol’s Tucson and Yuma Sectors (covering all of Arizona and a portion of southeastern California) from 2011 to 2014. The request specified that it included complaints and investigations, apprehension statistics, stop records, policies, and training materials.

DHS failed to respond to the FOIA request, prompting the Plaintiffs to sue in federal court in April 2014.  The government eventually identified at least 10,000 pages of responsive records, but has released only half of those records. Approximately 1,200 pages were withheld in full and the remaining records were heavily redacted; there was no legal justification or explanation for these redactions. CBP subsequently acknowledged the existence of substantially more responsive records, which it has refused to provide.

As of April 2017, litigation is ongoing. On January 26, 2017, the Magistrate Judge issued a report and recommendation that the District Court (1) grant in part and deny in part Defendant’s Motion for Summary Judgment, and (2) grant in party and deny in part Plaintiffs’ Cross-Motion for Summary Judgment. DHS filed its objection to the report and recommendation on March 15, 2017.

Even the limited records released to date provide troubling insights into Border Patrol’s internal enforcement operations.  In October 2015, the ACLU released a report, Record of Abuse, based on the agency records it obtained, which the ACLU also made available on its website.

The case settled and was dismissed pursuant to a joint motion on February 15, 2018.

Contact: Kathy Brody | ACLU of Arizona | kbrody@acluaz.org 

Resources:

Ashish Patel (a.k.a. Ash Kumar), et al. v. Jeh Johnson, et al.

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Ashish Patel (a.k.a. Ash Kumar), et al. v. Jeh Johnson, et al. (W.D. Wash., filed Feb. 05, 2015)

In September and October 2013, Mr. Patel submitted requests under the Freedom of Information Act (FOIA) to the Department of Homeland Security (DHS) and Department of State (DOS) respectively, seeking “any and all records” under his name. Mr. Patel sought the information in order to obtain records from an incident at the U.S.-Canada border in 2012 which potentially affected his later application for a U.S. visa.

In general, the FOIA statute requires agencies to respond to requests within 20 business days. After waiting more than three months for DHS and DOS to produce his records, Mr. Patel filed a lawsuit in January 2014 seeking a court order forcing DHS and DOS to conduct a search and produce records related to his request. Nearly one year after filing, DHS and DOS finally produced the documents. Mr. Patel and DHS/DOS subsequently settled the case and jointly moved to dismiss it.

FTCA Administrative Complaint by Immigrant Mothers’ Against DHS/CBP/ICE

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FTCA Administrative Complaint by Immigrant Mothers’ Against DHS/CBP/ICE

On August 10, 2015, five immigrant mothers sent administrative complaints to the Department of Homeland Security under the Federal Tort Claims Act for the abuses the women and their children had suffered while detained in ICE custody. These women, who fled their home countries due to endemic violence suffered at the hands of criminal gangs and intimate partners, sought asylum in the United States. After entering the custody of CBP/ICE, they endured deplorable detention conditions, including woefully inadequate medical and mental health care, little to no legal information as to their rights and/or fates, no educational services for the detained children, and lack of access to necessities such as food, water, clothing, and bathing facilities.

Counsel: R. Andrew Free | Barrett, Johnston, Martin & Garrison, LLC

Contact: R. Andrew Free | (615) 244-2202 | Andrew@ImmigrantCivilRights.com

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FTCA Administrative Complaint of Honduran Family Denouncing the Hieleras (dated July 18, 2015)

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John Doe and Jane Roe v. United States, 3:16-cv-856 (Mid. Dis. Nash. Filed May 12, 2016)

Claimants—a husband and wife—fled to the United States from their native Honduras in 2013 in an attempt to escape severe violence. In the six months preceding their trek north, Claimant Wife’s family had been targeted by a criminal organization, which murdered her brother outside the family business, beat her mother into a coma, and raped her 12-year-old cousin. Fearing for their safety, Claimant Wife (then nearly eight months pregnant) and Claimant Husband fled for the United States, taking their two-year-old son with them. After crossing the border, the family turned themselves in to CBP officers at the Weslaco Station in the Rio Grande Valley Sector and requested asylum. In July 2015, they filed an administrative complaint against the United States for the serious mistreatment they suffered while in CBP custody. They raise claims of negligence, gross negligence, invasion of privacy, false imprisonment, and intentional infliction of emotional distress.

The family was taken to a detention center referred to as a “hielera” (“freezer” or “icebox”), where they were stripped of extra layers of clothing and their baby supplies (including diapers) were confiscated. The cell was so cold that Claimant Wife’s fingers turned color and her teeth chattered. Claimant Wife and the couple’s toddler were placed in a female-only cell with about 65 other people, including about 40 children ranging in age from newborn to 18. They were fed cold burritos and bologna sandwiches, but the youngest children could not eat them as they could not yet eat adult food. Claimants’ toddler son developed severe diarrhea but Claimant Wife was not provided with adequate supplies to clean him, such that the diarrhea leaked through the boy’s diapers.

CBP failed to provide Claimant Wife, her son, and the rest of the women and children in their cell with a bed, warm clothes, blankets, adequate edible food and potable water, and enough toilet paper or other cleaning supplies. The lights were on the entire time the family was in detention. Those who requested even the slightest accommodation were ridiculed, mocked, and even yelled at by CBP officers. As a result of these conditions, Claimant Wife and her child were unable to sleep more than a few minutes at a time. Children cried incessantly about the cold and lack of food and water.

Experiencing severe stomach pain and concerned about having to give birth in those filthy conditions, Claimant Wife begged for medical treatment. She was eventually taken to a nearby hospital, where the medical staff determined that she was in the process of dilation and informed CBP in writing that Claimant Wife was not medically able to travel. The staff also instructed Claimant Wife and (upon information and belief) CBP staff that she should be released from detention so as to prevent preterm labor and minimize the risk of medical harm to her and the baby, but CBP returned Claimant Wife to detention instead.

Over the next day, the family attempted to obtain information about their release and were only released after successfully convincing a CBP officer to check the doctor’s release order. Previously, CBP officers had told Claimant that she should not have her baby in detention, threatening her with prolonged detention and her husband’s deportation back to Honduras if she did so. When Claimants asked for medical treatment for their young son, who was visibly ill and dehydrated form diarrhea, they were told that if the officers took him to get medical attention, it would take longer for the family to be released. The officers also made clear to the family that they did not qualify and could not apply for asylum.

After nearly 72 hours in the freezing hielera without access to adequate food, water, hygiene, necessities, blankets, bedding, warmth, sleep, and medical care, CBP released the family by leaving them at a bus station in the middle of the night.

Claimants filed an administrative FTCA complaint on July 18, 2015, and suit in federal district court in May 2016. On August 19, 2016, the government filed a motion to dismiss the case. On October 26, 2017, the Court denied the government’s motion to dismiss, holding that the plaintiffs had sufficiently alleged injuries caused by the Defendant’s misconduct.

On January 23, 2018, the case was resolved following a voluntary dismissal of the action.

Counsel: R. Andrew Free | Barrett, Johnston, Martin & Garrison, LLC

Contact: R. Andrew Free | (615) 244-2202 | Andrew@ImmigrantCivilRights.com

Rodriguez v. Swartz

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Rodriguez v. Swartz, No. 14-02251 (D. Ariz., filed Sept. 8, 2014)

This civil rights case involves the brazen and lawless killing of a sixteen-year-old boy, J.A., by U.S. Border Patrol Agent Lonnie Swartz. On the night of October 10, 2012, J.A., a Mexican national, was peacefully walking along a street in his hometown of Nogales, Sonora, Mexico. The street on which he was walking, Calle Internacional, runs parallel to the border fence. At approximately 11:30 pm, Agent Swartz, standing on the U.S. side of the fence, opened fire. An autopsy report shows that J.A. was fatally hit with ten bullets. At the time of the shooting, no official was under any threat by J.A. or anyone else standing near him — much less in immediate danger of deadly or serious bodily harm. J.A. death was senseless, unjustified, and unlawful. Plaintiff Araceli Rodriguez filed this Bivens action for monetary damages for the killing of her youngest son, alleging claims under the Fourth and Fifth Amendments to the United States Constitution.

On July 10, 2015, the District Court granted in part and denied in part Defendant’s motion to dismiss. Disagreeing with the en banc Fifth Circuit, Chief Judge Raner C. Collins held that Rodriguez’s Fourth Amendment claim could proceed and that Agent Swartz was not entitled to qualified immunity.

In mid-September 2015, the Department of Justice charged Swartz criminally with second degree murder. Following several postponements, the Swartz criminal trial began in Tucson on March 22, 2018.  The jury found Swartz not guilty of second-degree murder on April 23, 2018, after hearing several weeks of testimony from Nogales Police Department officers, Border Patrol agents, forensics experts, and Swartz himself.  The same jury failed to arrive at a unanimous decision as to the lesser-included offense of voluntary manslaughter, leaving open the door for a future criminal prosecution of the lower-level offense.  On May 12, 2018, the U.S. Attorney Office in Tucson announced that it would re-try Swartz on the lesser charge. Swartz was subsequently acquitted of involuntary manslaughter on November 21, 2018.

In the civil case, Defendant filed a Notice of Appeal with the Ninth Circuit. Briefing was completed as of June 1, 2016 and oral argument held on October 21, 2016. The panel indicated its intent to hold its decision pending the Supreme Court’s resolution of Hernandez v. United States, which was decided on June 26, 2017.

On August 7, 2018, the Ninth Circuit, in an opinion by Judge Kleinfeld with a dissent from Judge M. Smith, affirmed the District Court’s decision denying Defendant qualified immunity, reasoning that “J.A. had a Fourth Amendment right to be free from the unreasonable use of deadly force by an American agent acting on American soil, even though the agent’s bullets hit him in Mexico.” The Court extended a Bivens remedy, finding that Plaintiff had no other adequate alternative remedy and that no “special factors” counseled hesitation in extending such a remedy. The Court did not reach the Fifth Amendment arguments but stated that, if the Fourth Amendment did not apply because J.A. was in Mexico, the Fifth Amendment’s “shock the conscience” test may still apply.

Unfortunately, on May 28, 2019, the Supreme Court granted certiorari for a second time in Hernandez v. United States, sub nom. Hernandez v. Mesa, and the court stayed Rodriguez pending the outcome of Hernandez. On February 25, 2020, the Supreme Court issued a second decision in Hernandez, holding that the Hernandez family could not rely on Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) to bring their claims. This outcome essentially foreclosed the possibility of a Bivens remedy in Rodriguez as well. As a result, the Supreme Court granted certiorari in Rodriguez, vacated the Ninth Circuit’s 2018 opinion, and remanded the case back to the Ninth Circuit for consideration in light of Hernandez. On April 7, 2020, the Ninth Circuit likewise vacated the district court’s decision and remanded the proceedings. Following the remand, the case was dismissed and is now closed.

Documents:

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Doe v. Wolf

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Doe v. Wolf, No. 4:15-cv-00250-DCB (D. Ariz., filed June 8, 2015) and Nos. 20-15741, 20-15850 (9th Cir., filed Apr. 20 & May 1, 2020)

Three individuals filed a class action suit challenging detention conditions in the Tucson Sector of the U.S. Border Patrol. The complaint alleges that the Tucson Sector Border Patrol holds men, women, and children in freezing, overcrowded, and filthy cells for days at a time in violation of the U.S. Constitution and CBP’s own policies. Detained individuals are stripped of outer layers of clothing and forced to suffer in brutally cold temperatures; deprived of beds, bedding, and sleep; denied adequate food, water, medicine and medical care, and basic sanitation and hygiene items such as soap, sufficient toilet paper, sanitary napkins, diapers, and showers; and held virtually incommunicado in these conditions for days.

The American Immigration Council, the National Immigration Law Center, the ACLU of Arizona, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and Morrison & Foerster LLP represent the plaintiffs and class. Plaintiffs seek to compel the Tucson Sector to bring its detention facilities in line with Constitutional standards, including limiting the time a person may be detained in holding cells to a few hours, providing adequate food, water, and medical care, beds and bedding, access to showers and hygiene supplies, and maintaining appropriate capacity limits and temperature controls, among other reforms.

Subsequent to filing the suit, Plaintiffs sought and were granted expedited discovery, and thus were able to inspect 4 of the 8 Border Patrol facilities at issue, and were given copies of CBP video recordings of the holding cells and agency logs from these same 4 facilities dating back to the filing of the complaint. Thereafter, Plaintiffs filed a motion for sanctions over Defendants’ failure to fully comply with the expedited discovery order, which the Court granted in part.

On December 4, 2015, Plaintiffs moved for a preliminary injunction. Defendants’ moved to seal much of the evidence supporting Plaintiffs’ motion, and thus block public exposure to photographs and other revealing evidence.  On January 28, 2016, Phoenix Newspapers Inc., the parent corporation to the Arizona Republic, moved to intervene in the suit for the limited purpose of opposing Defendants’ Motion to Seal.  The Court granted the Arizona Republic’s motion and unsealed numerous documents.

In early 2016, the Court certified a class consisting of all detainees who now or in the future will be detained by the Border Patrol in the Tucson Sector. The Court also denied Defendants’ motion to dismiss with respect to the constitutional claims but did dismiss Plaintiffs’ APA claim.

In late 2016, following an evidentiary hearing, the District Court issued a preliminary injunction which held, among other things, that forcing a detainee to sleep on a concrete floor with no bedding was a violation of his or her constitutional rights. The Court ordered Border Patrol to provide sleeping mats to all individuals detained for 12 hours or more; afford individuals a means to clean themselves; provide them with toothbrushes and toothpaste; monitor cell conditions to ensure that they were sanitary and that toilets and sinks were in working condition; and adopt an enhanced medical screening form to use with all detained individuals. Both parties appealed to the Ninth Circuit. On December 22, 2017, the Ninth Circuit upheld the District Court’s decision in its entirety.

Plaintiffs’ partial motion for summary judgment was denied on March 15, 2019, with the Court ruling that all issues are best resolved at trial.

Following a seven-day trial in January 2020, the District Court granted Plaintiffs’ request for a permanent injunction finding that the conditions in detention facilities in Border Patrol’s Tucson Sector violate the U.S. Constitution. Under the court’s ruling, migrants may not be detained in these facilities for more than 48 hours, unless Border Patrol provides for their “basic human needs.” In addition to the requirements imposed under the preliminary injunction, further requirements imposed by the court after 48 hours include providing:

  • a bed with a blanket;
  • access to food that meets acceptable dietary standards and potable water; and
  • a medical assessment by a medical professional.

The court also clarified that the opportunity to shower, by definition, does not mean mere access to a “paper-shower” or “shower-wipe” and that Border Patrol must ensure that overcrowding in the detention cells does not result in migrants having to sleep in the toilet areas. On April 17, 2020, the court issued an order for permanent injunction specifying the exact terms governing how the court’s ruling will be implemented.  Defendants were given ninety days to fully comply with the court’s order.

Both parties subsequently filed notices of appeal to the Ninth Circuit. In November 2020, prior to any briefing, the parties stipulated to voluntary dismissal with prejudice of the government’s cross-appeal. In January 2021, the parties also stipulated to voluntary dismissal with prejudice of the Plaintiffs’ cross-appeal.

Counsel: The American Immigration Council, the National Immigration Litigation Alliance, the National Immigration Law Center, the ACLU of Arizona, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and Morrison & Foerster LLP

Contact: Mary Kenney | National Immigration Litigation Alliance | (617) 819-4681 | mary@immigrationlitigation.org

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Alba Quinonez Flores v. United States of America

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Alba Quinonez Flores v. United States of America
No. 1:14-cv-03166 (E.D.N.Y. Filed May 20, 2014)

Filed under the Federal Tort Claims Act, this suit seeks damages for the physical and psychological injury Ms. Quinonez Flores suffered at the hands of CBP while she was detained in holding cells, known as hieleras (iceboxes), in CBP’s Rio Grande Valley Sector. The complaint alleges that CBP negligently placed Ms. Quinonez Flores in detention conditions that they knew or should have known posed a substantial risk of harm, failed to oversee the agents who managed the day-to-day operations of the detention facilities, and that their acts and omissions constituted the intentional infliction of emotional distress. For more information regarding this case, see Texas, FTCA Administrative Complaints.

On December 30, 2014, Defendants moved to transfer venue, arguing that venue was not proper in the E.D.N.Y. because Plaintiff was not lawfully present in the U.S. The court denied Defendants’ motion on June 12, 2015.

Thereafter, CBP offered to settle the case for $80,000. On February 4, 2016, after Plaintiff accepted the offer, the parties stipulated to the dismissal of the suit.

Counsel: Law Office of David K.S. Kim, PC; Kurzban, Kurzban, Weinger; Americans for Immigrant Justice

Contact: Ira Kurzban | Kurzban, Kurzban, Weinger | 305-444-0060 | ira@kkwtlaw.com

Lopez-Venegas, et al. v. Johnson, et al.

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Lopez-Venegas, et al. v. Johnson, et al. No. 2:13-cv-03972 (C.D. Cal., filed June 4, 2013)

Filed by the ACLU and Cooley LLP on behalf of eleven Mexican nationals and three immigration advocacy organizations, this class action lawsuit challenged deceptive tactics used by Border Patrol agents and ICE officers to convince noncitizens to accept “voluntary return.” Each individual plaintiff had significant family ties in the United States and lacked any serious criminal history. Thus, they could have asserted strong claims to remain in the United States if they had been granted a hearing before an immigration judge.

The complaint alleged that Border Patrol agents and ICE officers have a pattern and practice of pressuring undocumented immigrants to sign what amount to their own summary expulsion documents. In recent years, this “voluntary return” procedure has been used to summarily expel hundreds of thousands of noncitizens from Southern California. Because of the coercive and deceptive tactics immigration officers employ, voluntary return regularly results in the involuntary waiver of core due process rights. An individual who signs for voluntary return forfeits his or her right to a hearing before an immigration judge and is usually expelled from the United States within a matter of hours.

Through the lawsuit, the individual plaintiffs sought to return to the United States and to receive a fair hearing before an immigration judge. The organizational plaintiffs, the Coalition for Humane Immigrant Rights of Los Angeles, the Pomona Economic Opportunity Center, and the San Bernardino Community Service Center, sought systemic reforms to the voluntary return process throughout Southern California.

Following more than a year of litigation, including intensive discovery and the deposition of key government officials, the government agreed to significant reforms of the voluntary return system in Southern California. Under a settlement reached by the parties, government officials must:

  • Provide detailed information – in writing, orally, and through a 1-800 hotline – regarding the consequences of accepting voluntary return to noncitizens asked to choose between voluntary return and a hearing before an immigration judge;
  • Cease “pre-checking” the box selecting voluntary return on the forms the immigration agencies provide to noncitizens;
  • Permit noncitizens to use a working phone, provide them with a list of legal service providers, and give them two hours to reach someone before deciding whether to accept voluntary return;
  • Provide lawyers meaningful access to clients detained by Border Patrol or ICE;
  • Cease pressuring or coercing individuals to accept voluntary return;
  • Allow some of the hundreds of thousands of Mexican nationals who have been subject to unlawful voluntary returns to reunite with their families in the United States; and
  • Allow ACLU attorneys to monitor compliance with the settlement agreement for three years.

Additional information on the class settlement is available here.

90 class members were identified under the settlement, and 82 of those individuals successfully returned to the United States. Others decided not to return, or could not be located. Monitoring of compliance of the settlement is ongoing. The ACLU of San Diego and their partners conducted visits to Border Patrol stations covered by the settlement in March 2017 to monitor compliance.

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Counsel: ACLU Foundation of San Diego & Imperial Counties; ACLU Foundation of Southern California; ACLU Immigrants’ Rights Project; Cooley LLP