Category Archives: All Cases

Vazquez-Mentado v. Buitron, et al.

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Vazquez-Mentado v. Buitron, et al., 5:12­-cv-­00797 (N.D. N.Y., filed Nov. 6, 2012)

Mr. Gerardo Vazquez-Mentado, a naturalized U.S. citizen, filed this suit in federal district court in the Northern District of New York based on his unlawful arrest by Border Patrol agents. He brought a claim under the Federal Tort Claims Act for false arrest and false imprisonment and a second claim under Bivens for violation of his Fourth Amendment rights.

On September 29, 2009, Mr. Vazquez, a resident of Oswego, New York, was driving into the city of Oswego. His wife and two children were with him in the family van. He was pulled over by Border Patrol agents who demanded his ID. He then presented his New York state driver’s license. After the agents accused him of being undocumented, Mr. Vazquez responded that he was a U.S. citizen. The Border Patrol agents ignored him, and instead placed him in handcuffs and transported him, with the help of the Oswego Police Department, to the Border Patrol station. He was released only after his wife returned to the station with his U.S. passport and Certificate of Naturalization, approximately 90 minutes after he was first stopped.

Mr. Vazquez first filed a complaint in federal court on May 14, 2002. Defendants filed a motion to dismiss on September 28, 2012. Plaintiffs filed an amended complaint on November 6, 2012. Defendants then filed a renewed motion to dismiss on December 7, 2012. After briefing by the parties, the federal court issued an order on May 28, 2013, denying the defendants’ motion to dismiss the FTCA claim as well as the Bivens claim as to the two arresting agents, and granting Mr. Vazquez leave to further amend the complaint to include additional allegations needed to maintain the Bivens claim against the supervising officer.

After subsequent filings, including a second amended complaint, a motion to dismiss by the supervisor officer, and summary judgment motions by the arresting officers, the parties entered into settlement negotiations which culminated in a settlement approved by the court on November 10, 2014.

Brown, et al. v. CBP and DHS – FOIA Class Action Against CBP

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Brown, et al. v. CBP and DHS, 15-cv-01181-JD (N.D. Cal.)

On March 12, 2015, fourteen plaintiffs, including three immigration attorneys and eleven noncitizens filed a complaint with class allegations in federal district court in the Northern District of California against Defendant U.S. Customs and Border Protection (CBP), seeking redress for CBP’s failure to comply with the statutory timelines under the Freedom of Information Act (FOIA). Plaintiffs challenge a pattern or practice that has resulted in the agency having a backlog of over thirty thousand unanswered requests under FOIA. On April 22, 2015, Plaintiffs filed an amended complaint against both CBP and the U.S. Department of Homeland Security, as well as a motion to certify a nationwide class.

On May 18, 2015, Defendants filed a motion to dismiss, arguing that Plaintiffs failed to allege any actionable claim under the FOIA, lacked standing, and did not identify a discrete CBP policy or practice. Plaintiffs filed an opposition on June 1, 2015. On September 17, 2015, the court denied CBP’s motion to dismiss in its entirety.

The court held a hearing on the pending motion for class certification on October 7, 2015, but did not rule on the motion. Instead, the court requested that the parties engage in discovery and file amended briefs on class certification following this discovery.

During the course of the lawsuit, CBP implemented new procedures for handling FOIA requests and added staff. In light of this, the parties reached a settlement and, On October 5, 2016, the district court dismissed the case pursuant to this settlement.  At the time of the settlement, CBP’s backlog had been reduced to approximately 3,000 FOIA requests, most of which were complex, and CBP generally was responding to new requests within 20 days. In the settlement, CBP committed to continuing its efforts to timely process FOIA requests.  Additionally, the agency committed to increased transparency about its performance; CBP will now post monthly FOIA statistics to its website, including the total number of FOIA requests pending, how long they have been pending, how many new requests are received each month, and how many are processed.

Contact: Stacy Tolchin | stacy@tolchinimmigration.com

Mendiola v. Department of Homeland Security

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Mendiola v. Department of Homeland Security, U.S. Merit Systems Protection Board, Western Regional Office

In this individual right of action appeal before the U.S. Merit Systems Protection Board, Western Regional Office, Border Patrol Agent Froylan Mendiola challenged his removal from the Border Patrol and the agency’s efforts to require him to undergo a Fitness-for-Duty examination in retaliation for his protected activity as a whistleblower.  Mr. Mendiola, a sixteen-year Border Patrol veteran with a consistently excellent work performance record, reported incidents of racial profiling which he witnessed at the Murrieta Border Patrol Station in early 2012.  He was retaliated against as a result.

In a lengthy decision, the Board explains why Mr. Mendiola’s whistleblowing activities are protected, and details how Border Patrol took systematic steps to retaliate against Mr. Mendiola as a result.

Counsel: Anne Richardson | Hadsell Stormer | 866.457.2590

ACLU San Diego et al. v. DHS et al. (SoCal Roving Patrols FOIA)

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American Civil Liberties Union of San Diego and Imperial Counties et al v. Department of Homeland Security et al., No. 8:15-cv-00229-JLS-RNB (C.D. Cal., filed Feb. 20, 2015)

This is a Freedom of Information Act (FOIA) case challenging defendant Department of Homeland Security (DHS) and Customs and Border Protection (CBP)’s failure to respond to Plaintiffs’ request for information regarding U.S. Border Patrol’s interior enforcement / “roving patrol” operations in Southern California.

There is little publicly-available information regarding the extent or impact of Border Patrol roving patrol operations, or regarding Border Patrol agents’ respect for regulatory or constitutional limitations on their authority. In Southern California, Border Patrol agents are present throughout a number of both major metropolitan and rural areas a considerable distance from the U.S.-Mexico border, including Fallbrook, CA (seventy miles north of the U.S.-Mexico border), Laguna Beach, CA (almost ninety miles north of the U.S.-Mexico border), and Long Beach, CA (over 100 miles north of the U.S.-Mexico border).

Because Border Patrol does not release stop data or other information related to roving patrol operations, Plaintiffs filed a FOIA request with Defendants in July 2014, seeking records related to U.S. Border Patrol’s “roving patrol” operations in the San Diego and El Centro Sectors, including relevant agency policies, stop data, and complaint records.

DHS entirely ignored the request. CBP sent the ACLU a series of contradictory emails, none of which were legally adequate responses under the FOIA itself or DHS regulations. In February 2015, Plaintiffs filed suit in the Central District of California to compel Defendants to release the requested records. On June 23, the Court issued a scheduling order requiring Defendants to produce all responsive records on or before November 2, 2015.

On January 27, 2017, the Court heard arguments on the parties’ respective Motions for Summary Judgment. On February 10, 2017, the Court issued an order denying both Motions for Summary Judgment, and additionally requiring (1) that the government provide specified documents to the Court for in camera review, and (2) that both parties submit supplemental briefing. The parties submitted supplemental briefing on April 5, 2017, and subsequent replies on April 19, 2017.

On August 18, 2017, the Court heard additional arguments on the parties’ Motions for Summary Judgment. On November 6, 2017, the Court issued an order granting in part and denying in party both Motions for Summary Judgment, and additionally requiring the government to submit specified documents to the Court for in camera review. On April 19, 2018, the Court issued a supplemental order granting in part and denying in part both of the parties’ motions. The Court entered a final judgment in the case on May 11, 2018. Neither party will appeal the order, and the parties reached a settlement on costs and fees in November 2018. Productions are now completed, and ACLU hopes to publish the documents sometime in 2019.

Related documents:

Counsel: ACLU of San Diego & Imperial Counties | ACLU of Southern California | University of California, Irvine School of Law Immigrant Rights Clinic

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

ACLU of Arizona et al. v. Office of Civil Rights and Civil Liberties, DHS et al. – CBP Child Abuse FOIA Litigation

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ACLU of Arizona et al. v. Office of Civil Rights and Civil Liberties, DHS et al., Nos. 15-00247 (D. Ariz., filed Feb. 11, 2015) and 18-15907 (9th Cir., filed May 18, 2018)

This lawsuit under the Freedom of Information Act (FOIA) challenges the failure of the Department of Homeland Security (DHS) and several of its component agencies to produce records related to the abuse and mistreatment of children in the custody of U.S. Customs and Border Protection (CBP) and its sub-agency, the U.S. Border Patrol. The ACLU affiliates sought the requested records to shed light on longstanding allegations of abusive treatment of children by Border Patrol, including prolonged detention in degrading and inhumane conditions. They also sought information on how the subcomponent agencies within DHS that are responsible for investigating and responding to complaints of abuse by agency personnel—including both the Office of Civil Rights and Civil Liberties (CRCL) and the Office of the Inspector General—have handled complaints related to Border Patrol’s abuse of children.

When the government failed to produce any requested records within the statutorily-allotted time period, Plaintiffs filed suit seeking a court order compelling production.

After lengthy production delays by the agencies, the parties cross moved for summary judgment. Finally, in August 2017, the District Court ordered the government to conduct supplemental searches. The Court also ordered the government to release the names of  CBP officials and Border Patrol agents credibly alleged to have mistreated children in their custody.

The government moved for reconsideration of the District Court’s ruling that certain DHS officials’ names should be released. In March 2018, the District Court denied the government’s motion for reconsideration and again ordered the agency to release the names of agents accused of misconduct. The government appealed that order to the Ninth Circuit. Briefing was completed in February 2019 and oral argument was held in San Francisco on May 16, 2019. The case was subsequently sent to mediation.

In October 2020, the parties reached a settlement that required the Defendant agencies to re-review production documents and re-produce them to Plaintiffs with the previously-redacted names of certain individuals who had been named in connection with an allegation of abuse against a minor in DHS custody replaced with unique alpha-numeric identifiers. The agencies must re-review and re-produce the documents in accordance with the settlement on a rolling basis through April 2022. Under the settlement, the District Court retains jurisdiction over the settlement to resolve any claims of a material breach of the settlement. Following entry of the stipulated settlement agreement, the Ninth Circuit dismissed the pending appeal.

Using the CRCL productions from this lawsuit, the ACLU and the University of Chicago Law School International Human Rights Clinic published a report in May 2018 highlighting some of the egregious abuses reported by children and calling out the lack of meaningful response from DHS’ oversight agencies. The CRCL productions that form the report’s evidentiary basis are attached as an appendix to the report itself. The rest of the productions from this lawsuit were published in summer 2019 (see below).

Related Documents:

Counsel: ACLU of San Diego and Imperial Counties & Cooley, LLP

The Estate of Anastacio Hernandez-Rojas v. United States

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The Estate of Anastacio Hernandez-Rojas v. United States
No. 3:11-cv-00522-L-DHB (S.D. Cal., Third Amended Complaint filed Mar. 23, 2012)

This case challenges CBP and U.S. Border Patrol’s excessive use of force.  Anastacio Hernandez-Rojas died of a heart attack on May 28, 2010 near the San Ysidro Port of Entry after agents working for the U.S. Border Patrol and Customs and Border Protection beat him and shot him repeatedly with a Taser. Cell phone videos taken by witnesses show Hernandez-Rojas, a Mexican national and long-time San Diego resident, on the ground surrounded by agents and calling out for help.  He was 42 years old.

In this federal lawsuit brought under Bivens, the Federal Torts Claims Act, and the Alien Tort Claims Act, Hernandez-Rojas’s family alleges that his First and Fourth Amendment rights were violated when agents beat him after he asked for help, using excessive force. They also allege that their father’s death has deprived his children of their 14th Amendment due process right to associate with their father.

Eight agents and four supervisors are named as defendants in the lawsuit. They have claimed that using force against Hernandez-Rojas was justified because he posed a threat to the officers.

In September 2014, the district court denied defendants’ motion for summary judgment.  In his order, U.S. District Court Judge M. James Lorenz wrote: “The sheer number of officers available at the scene demonstrates rather strongly that there was no objectively reasonable threat to the safety of any one other than Anastasio.” That decision is currently on appeal to the Ninth Circuit; Plaintiffs have filed a motion in the district court to declare that appeal frivolous. On December 31, 2015, the district court denied that motion, and the matter is stayed pending the resolution of Defendants’ appeal to the Ninth Circuit.

On November 6, 2015 the Department of Justice announced that it would not criminally prosecute the agents involved in his death, a decision that angered his family and border-rights advocates.

On March 30, 2017, the court issued an order approving a $1 million settlement, to be dispersed among Mr. Hernandez-Rojas’s five children.

In March 2016, Hernandez-Rojas’ family filed a complaint against the United States with the Inter-American Commission on Human Rights. The complaint alleged several violations of the American Declaration of the Rights and Duties of Man, including violation of the prohibition against torture, violation of the right to life and liberty, and failure to investigate, prosecute, and provide full reparations. On November 5, 2022, the Inter-American Commission conducted a hearing on the complaint. On February 14, 2023, Hernandez-Rojas’s family submitted a final written observation to the Inter-American Commission. A report with the Commission’s findings is forthcoming.

Documents:

Counsel: Iredale & Yoo, APC

Contact: Julia Yoo | (619) 233-1525

Additional Links:

Press Coverage:

Arreaga v. United States of America

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Arreaga v. United States of America, 5:16-cv-00007 (S.D. Texas, Complaint filed January 19, 2016)

The complainant, a United States citizen, stopped at a U.S. Border Patrol checkpoint in Texas at approximately 11 a.m. on September 4, 2014. He told the agents that he was a United States citizen and showed them his citizenship card. The agents incorrectly believed that he was carrying drugs in his vehicle. They detained and questioned him and disassembled his truck. No drugs were found. Without probable cause, they continued to detain him for a total of approximately 17 hours, finally releasing him at about 4 a.m. the morning following his initial stop. In January 2016, Plaintiff Julio Adolfo Arreaga filed a complaint in the S.D. Tex. Discovery concluded as of December 2016.

The parties agreed to Court-hosted mediation on May 16, 2017. On July 13, 2017, the case was dismissed following a settlement between the parties.

Counsel: Javier Maldonado

Contact: Javier Maldonado | (210) 277-1603 | jmaldonado.law@gmail.com

FTCA Administrative Complaint of Pregnant Minor

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FTCA Administrative Complaint of Pregnant Minor (dated July 7, 2014)

Claimant, who is a minor, was taken into Border Patrol custody in May, 2014. Shortly after being taken into custody, agents took her to a hospital where it was determined that she was five months pregnant and in good health. She was released by the hospital back to the custody of Border Patrol. Sometime after her return to the Border Patrol station, she began to experience abdominal pain. She asked to be taken back to the hospital, but agents refused. The agents insisted that she remain seated even though the pain was so great she needed to lie down. Her water broke and she began to bleed. The agents refused to render aid or take her back to the hospital. Finally, another agent came to her aid and took her to the hospital. She alleges that she lost the baby because she did not receive immediate aid. The complainant decided not to file a federal lawsuit.

Counsel: Javier Maldonado

Contact: Javier Maldonado | (210) 277-1603 | jmaldonado.law@gmail.com

Osorio v. U.S. Customs and Border Protection

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Osorio v. U.S. Customs and Border Protection, 8:14-cv-01758-DOC-AN (C.D. Cal. filed Nov. 4, 2014)

On June 6, 2014, Mr. Osorio filed with CBP a request under the Freedom of Information Act (FOIA) seeking “any and all records” under his name.  Mr. Osorio sought the information in order to obtain records from an incident at the border several years earlier, which potentially affected his eligibility to apply for lawful permanent resident status.  In general, with some exceptions, the FOIA statute requires agencies to respond to requests within 20 business days.  After having waited five months for CBP to produce his records, Mr. Osorio filed a lawsuit seeking a court order forcing CBP to conduct a search and produce records related to his request.  Immediately after filing, CBP produced the documents. Mr. Osorio and CBP subsequently settled the case and jointly moved to dismiss it, with the government agreeing to pay costs and attorney fees.

Counsel: Stacy Tolchin

Contact: Stacy Tolchin | 213-622-7450 | stacy@tolchinimmigration.com

Jacobson et al. v. DHS et al.

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Jacobson et al. v. DHS et al., Nos. 14-02485 (D. Ariz., filed Nov. 20, 2014) and 16-17199 (9th Cir., filed Nov. 30, 2016)

This is a First Amendment case brought against the U.S. Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP), and certain named Border Patrol agents for their interference with Plaintiffs’ right to protest, observe, and record law enforcement activity at the U.S. Border Patrol’s interior checkpoint on Arivaca Road in Arivaca, Arizona near the U.S.-Mexico border. Although CBP claimed that the Arivaca Road checkpoint was temporary, it had been in continuous existence since 2007. Many Arivaca residents had to drive through the checkpoint every day to reach jobs, schools, doctors, and shops.

Plaintiffs are members of a community organization called People Helping People (“PHP”), which organized a “checkpoint monitoring campaign” in response to public complaints that Border Patrol agents were violating individuals’ civil rights at the checkpoint. A number of these incidents were detailed in an administrative complaint filed with the DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties.

As part of the checkpoint monitoring campaign, community volunteers stood on a public right-of-way adjacent to the Arivaca Road checkpoint and took notes, photographs, and video recordings of Border Patrol agents’ conduct to collect data on checkpoint activity and deter abuse. Other individuals, also standing on the public right of way, held up signs protesting the checkpoint. Soon after the volunteers began their monitoring activity, Border Patrol agents, with the assistance of local law enforcement, ordered the monitors to move to a spot much farther away from the checkpoint and forbade the monitors from entering the area immediately surrounding the checkpoint. The agents eventually cordoned off this area, unilaterally deeming it “the enforcement zone.” Under threat of arrest, the monitors and protestors complied with the agents’ order to relocate. From outside the enforcement zone, however, it was virtually impossible for the monitors to observe agents’ conduct at the checkpoint.

Plaintiffs brought this suit, alleging that Defendants interfered with their First Amendment right to protest, observe, and record law enforcement activity at the checkpoint, as well as retaliated against them for engaging in constitutionally protected activity. Plaintiffs sought an injunction that would prevent Border Patrol agents from restricting their monitoring activity on the public right of way near the Arivaca Checkpoint.

In January 2015, Plaintiffs moved for a preliminary injunction. After oral arguments in April, the court denied Plaintiffs’ motion in September 2015. Defendants then moved to dismiss or, in the alternative, for summary judgment. In September 2016, the presiding magistrate judge granted Defendants’ motion and entered judgment against Plaintiffs, holding that the Arivaca checkpoint was a nonpublic forum and that the restriction placed on Plaintiffs’ speech was a valid “time, place, and manner restriction.”

Plaintiffs appealed in November 2016. Briefing was completed in August 2017 and oral argument held in December 2017, in San Francisco.

On February 13, 2018, the Ninth Circuit vacated the district court’s grant of summary judgment to Defendants, concluding that the limited record before the district court did not permit it to conclude that the enforcement zone was a nonpublic forum or, if it was, whether the government satisfied the requirements for excluding Plaintiffs from a nonpublic forum. The Ninth Circuit then remanded the case to allow discovery to proceed.

On July 15, 2020, Plaintiffs moved for sanctions on the basis of Defendants’ spoliation of relevant evidence and submission of a declaration without the requisite personal knowledge. After briefing and oral argument, the magistrate judge denied Plaintiffs’ motion for sanctions without prejudice.

On June 14, 2021, the parties filed a joint stipulation to dismiss the case with prejudice. The case is now closed. At the end of July 2021, the original Arivaca Checkpoint was dismantled.

Documents:

Related documents:

Counsel: ACLU of Arizona; ACLU of San Diego and Imperial Counties; Covington and Burling