Harvard Immigration and Refugee Clinical Program v. U.S. Customs and Border Protection

Harvard Immigration and Refugee Clinical Program v. U.S. Customs and Border Protection, No. 1:22-cv-10301 (D. Mass., filed Feb. 23, 2022)

On February 23, 2020, the Harvard Immigration and Refugee Clinical Program (the Clinic) sued Customs and Border Protection (CBP) under the Freedom of Information Act (FOIA). The Clinic filed the FOIA in response to CBP denying entry to several Harvard students of Middle Eastern descent—many from Iran. Some were given expedited removal orders or had their visas revoked, even though the Department of State performed extended security checks during the visa processing.

The FOIA request identified three categories of information the Clinic sought from CBP: (1) records regarding the expedited removal of students at a port of entry; (2) records regarding withdrawal of admission by students at a port of entry; and (3) directives, policies, and communications by CBP regarding visa holders at ports of entry. CBP failed to provide an adequate response. The Clinic requested documents starting January 1, 2012, and the only documents CBP produced were from 2020. CBP also failed to produce any policy directives.

The Clinic filed an administrative appeal, requesting the responsive records and all non-exempt portions of the records. The administrative appeals unit ordered CBP to conduct a new search, but CBP failed to timely respond, and the Clinic sued.

Since the initial filing, CBP filed its answer to the complaint, and the parties have filed periodic status reports as production in response to the FOIA request continues.

Counsel: Harvard Immigration and Refugee Clinical Program, Harvard Law School
Contact: Sabrineh Ardalan | sardalan@law.harvard.edu

Civil Rights Complaint Regarding CBP’s Mistreatment of Harvard Medical Fellow

On April 2, 2021, and April 18, 2021, Customs and Border Protection (CBP) denied Dr. Maryam, a Canadian citizen from Iran, entry into the United States. Dr. Maryam attempted to enter the United States using her Canadian passport and all necessary evidence to support her admission in J-1 status. She and her family planned to stay in the U.S. for two years during Dr. Maryam’s competitive two-year fellowship at Harvard Medical School and Beth Israel Deaconess Medical Center. The family planned to return to Canada after Dr. Maryam finished her fellowship.

During her first attempted entry, Dr. Maryam, her husband, and her two children drove with their belongings to the port of entry in Pembina, North Dakota. CBP pulled the family over for secondary inspection after seeing Dr. Maryam and her husband were born in Iran. CBP arbitrarily and discriminatorily interrogated Dr. Maryam’s husband for eight hours about his past in Iran, his thoughts and feelings about the killing of Qassem Soleimani, and his previous compulsory military service. Eventually, the family was turned back for allegedly failing to show non-immigrant intent—even after providing evidence of assets and ties to Canada. CBP issued an expedited removal order against Dr. Maryam’s husband and asked Dr. Maryam to withdraw her request for admission. CBP also took both fingerprints and DNA samples from Dr. Maryam and her husband before the family left the facility.

On April 18, 2021, Dr. Maryam attempted to enter the United States again. She planned to fly from Toronto to the United States, but CBP once again interrogated her and turned her back. This time, the CBP officer in secondary inspection denied her entry because (1) she allegedly had to wait until her husband’s case was resolved and (2) the CBP officer incorrectly told her that there that a “travel ban” against Iranian nationals prevented her from lawfully entering the country.

After her attempts to enter the U.S., Dr. Maryam filed an application for a J-1 visa with the U.S. Consulate (even though Canadian citizens are not required to apply for a visa in advance to enter the United States). The U.S. Consulate in Calgary refused to adjudicate the case, saying that it was waiting for her husband’s case to first be resolved.

In response to the inhumane treatment and rejection of Dr. Maryam and her family, Harvard Law School’s Immigration and Refugee Clinical Program filed an administrative complaint to the Department of Homeland Security Office for Civil Rights and Civil Liberties (CRCL), requesting CRCL to further investigate the April 2 and April 18 incidents. Additionally, the Program filed a writ of mandamus in the district court, requesting the Department of State adjudicate Dr. Maryam’s visa within 15 days of an order, pursuant to the Administration Procedures Act (APA) or to the court’s Mandamus authority. (Case No. 1:22-cv-1162-ZMF (D.D.C.).) On July 20, 2022, Plaintiffs voluntarily dismissed the mandamus action.

Counsel: Harvard Immigration and Refugee Clinical Program, Harvard Law School
Contact: Sabrineh Ardalan | sardalan@law.harvard.edu

Bouey v. United States of America

Bouey v. United States of America et al., No. 3:22-cv-00442 (S.D. Cal., filed April 4, 2022)

On July 16, 2020, Janine Bouey, a U.S. citizen, visited Tijuana, Mexico for the day for a dental appointment. When she attempted to return to the United States via the pedestrian lanes at the Otay Mesa Port of Entry (OMPOE), a CBP officer pulled her out of line. The CBP officer approached her, flirted with her, and ask her questions about both her trip to Mexico and her personal life. When Ms. Bouey refused to answer the questions about her personal life, the CBP officer retaliated by taking Ms. Bouey to the main building at the OMPOE.

Inside the OMPOE building, CBP performed multiple harmful and invasive searches of Ms. Bouey. On multiple occasions an officer fondled and penetrated Ms. Bouey’s genitalia without her consent and without justification. She was handcuffed to a bench, asked to strip down naked, and then ordered to bend over as an officer shined a flashlight into the areas of her genitalia. CBP officers also used a canine agent to invasively smell several of Ms. Bouey’s orifices. CBP officers never explained the reason for these searches, denied Ms. Bouey’s repeated requests to call an attorney, and failed to acknowledge her U.S. citizenship. The mistreatment by CBP caused Ms. Bouey physical pain and emotional distress, including anxiety, shock, humiliation, apprehension, and anguish. In response, on April 4, 2022, Ms. Bouey filed suit seeking damages under the Federal Tort Claims Act (FTCA) and Bivens. The FTCA claims included: (1) negligence, (2) intentional infliction of emotional distress, (3) battery, and (4) violation of the Bane Act. The Bivens claim sought a remedy for violation of her Fourth Amendment rights. On June 3, 2022, counsel for the U.S. government filed a motion to dismiss, which was denied on July 14, 2022, though the court did grant the government’s request to strike the demand for attorneys’ fees. Defendant United States then filed an answer to the complaint on July 28, 2022.

Counsel: Joseph M. McMullen | joe@imm-legal.com
Contact: Kendall Martin | kendall@alliancesd.org | (619) 629-0337

Press:
● Abuse, Assault and Impunity at DHS Must Stop: Former LAPD Officer Subjected to Sexual Assault by DHS Sues the Agency

Civil Right Complaints Regarding CBP Abuse of Children

On April 6, 2022, Americans for Immigrant Justice (AIJ), Kids in Need of Defense (KIND), Immigrant Defenders Law Center (ImmDef), and Florence Immigrant & Refugee Rights Project (FIRRP) filed separate administrative complaints with the Department of Homeland Security Office of Civil Rights and Civil Liberties (DHS CRCL) and the DHS Office of Inspector General (DHS OIG) about the treatment of unaccompanied children in Customs and Border Protection (CBP) custody in 2021. The organizations condemned CBP for violations of the Flores Settlement Agreement and the CBP National Standards on Transport, Escort, Detentions and Search (TEDS).

The complaints highlighted the sleeping conditions and the freezing temperatures in the facilities, the lack of water and food, the lack of access to personal hygiene, the inadequate medical care and the verbal and physical abuse by CBP officers. The complaints include stories of several minors who detail aspects of their treatment while in detention by CBP.

As shared by AIJ, 12-year-old N.A.E. was told “he would be reunited with his mother in the United States,” only to be illegally returned to Guatemala without his knowledge or consent. C.C.L., age 10, “had his mattress taken away,” which CBP did “if they felt someone was misbehaving.” At age 15, K.G.C. had to share a mattress with three other girls while detained, during which she contracted lice.

These stories, and others shared in the complaints, illustrate the inhumane conditions affecting the health and safety of children while in CBP custody. The administrative complaints contain recommendations for preventing CBP’s abuse of children. These recommendations include: CBP adherence to the Trafficking Victims Protection Reauthorization Act (TVRPA), to the CBP National Standards on TEDS, and to the Flores settlement agreement; providing comparable care to that of Office of Refugee Resettlement (ORR) facilities; additional training for CBP officers and staff; access to legal counsel; and the hiring and use of child welfare professionals.

Counsel: Americans for Immigrant Justice; Kids in Need of Defense (KIND)

Contact: Jennifer Anzardo | janzardo@aijustice.org | Carley Sessions | cesssions@supportkind.org

FOIA: Black Alliance for Just Immigration et al. v. U.S. Customs & Border Protection, No. 1:20-cv-05198 (E.D.N.Y., filed Oct. 28, 2020)

On May 25, 2020, George Floyd was killed by Minnesota police officers, triggering mass protests in cities across the United States calling for racial justice and police reform. These protests were met with heightened police presence as local law enforcement agencies throughout the country deployed additional officers to protests and gatherings. In early June 2020, media outlets began reporting that U.S. Customs and Border Protection (CBP) personnel and aerial surveillance, along with other Department of Homeland Security (DHS) and federal agency personnel, had been deployed to the protests. A leaked CBP document later revealed that requests from law enforcement agencies across the country resulted in 326.5 hours of federal aviation assets deployed and 2,174 agency personnel.

After then-President Trump issued Executive Order No. 13933, “Protecting American Monuments, Memorials, and Statutes and Combating Recent Criminal Violence,” DHS and the Department of Justice (DOJ) began taking steps to implement the directive, including by creating roving teams of federal law enforcement officers to disperse to protests. These deployments only served to exacerbate tensions and violence, drawing criticism from elected officials – especially given CBP’s track record of abusive policing tactics and use of excessive force.

Following these deployments, the Black Alliance for Just Immigration, the American Immigration Council, the American Civil Liberties Union of San Diego & Imperial Counties, and the American Civil Liberties Union of Texas filed a Freedom of Information Act (FOIA) request seeking records of requests for assistance to CBP by other entities regarding the deployment of CBP personnel to U.S. cities; policies, protocols, and directives outlining CBP’s legal authority to police and surveil protests; communications sent or received by CBP personnel relating to the deployments; and data regarding the total number of CBP personnel deployed, individuals apprehended or arrested by CBP, and the statutory basis for CBP’s enforcement action.

When CBP failed to respond to the request, Plaintiffs filed a lawsuit seeking an injunction ordering Defendant to conduct a search for responsive records and timely produce those records to Plaintiffs, as well as a declaration that Defendant’s conduct violated the FOIA. On January 6, 2021, Defendant filed its answer. Production of responsive records is currently underway.

Documents:
FOIA Request
Complaint
Answer

Counsel: Immigrant Legal Defense; American Immigration Council; ACLU Foundation of Texas

Contact:
Claudia Valenzuela | Immigrant Legal Defense | claudia@ild.org
Shaw Drake | ACLU Foundation of Texas | sdrake@aclutx.org

Press:
U.S. Watched George Floyd Protests in 15 Cities Using Aerial Surveillance

FOIA: Citizens for Responsibility & Ethics in Washington v. U.S. Customs & Border Protection, No. 1:22-cv-00496-TSC (D.D.C., filed Mar. 2, 2022)

In October 2021, the chief records officer of the National Archives and Records Administration, Laurence Brewer, wrote a letter to U.S. Customs and Border Protection (CBP) officials expressing concern about CBP’s use of Wickr, an Amazon-owned encrypted messaging platform known for its ability to automatically delete messages, which then become unrecoverable after a predetermined period of time. In the letter, Brewer wrote that he was “concerned about agencywide deployment of a messaging application that has this functionality without appropriate policies and procedures governing its use.” Public records have revealed that CBP – which has been widely criticized for its secrecy – has spent more than $1.6 million on Wickr since 2020 and is using the platform across all CBP components. However, little is known about how the agency has deployed the app. Its auto-deletion feature, in particular, has raised concern among both government record keepers and advocates, who worry that Wickr allows CBP officials to sidestep government transparency requirements and litigation obligations, especially considering the agency’s poor track record in complying with record-keeping laws.

In September 2021, Citizens for Responsibility and Ethics in Washington (CREW) submitted a Freedom of Information Act (FOIA) request to CBP, seeking all records and communications relating to CBP’s use of Wickr for official agency business. After CBP failed to respond to the request, CREW filed a lawsuit seeking a declaratory judgment that CBP is violating the FOIA and injunctive relief requiring CBP to immediately process and release the requested records. On April 4, 2022, Defendant filed its answer. Production of responsive records is currently underway.

Documents:
Complaint
Answer

Counsel: The George Washington University Law School Jacob Burns Community Legal Clinics; Citizens for Responsibility and Ethics in Washington

Contact:
Jeffrey Gutman | The George Washington University Law School | jgutman@law.gwu.edu
Nikhel Sus | Citizens for Responsibility and Ethics in Washington | nsus@citizensforethics.org

Press:
Customs and Border Protection to Use Encrypted App Wickr Widely
Border Patrol’s Use of Amazon’s Wickr Messaging App Draws Scrutiny
CREW Submits FOIA Request to U.S. Customs and Border Protection Regarding Use of Wickr
CREW Sues for Records on CBP Contract with Wickr, “Auto-Burn” Encrypted Messaging App

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

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

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

Mr. Estrada’s minor son and mother, as well as the two other vehicle occupants, Francisco Madariaga and Jaime Madariaga-Gonzalez, filed this suit on March 21, 2022, pursuant to the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named Agents alleging wrongful death, excessive use of force, assault and battery, and negligence. On June 27, 2022, Plaintiffs filed an amended complaint, which Defendant United States answered on July 13, 2022.

Counsel: Keith Rutman Law

Contact:
Keith Rutman | krutmanlaw.com

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

Kariye v. Mayorkas

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

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

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

On May 31, 2022, Defendants filed a motion to dismiss. On October 12, 2022, the court granted the motion to dismiss without prejudice. Plaintiffs filed an amended complaint on November 14, 2022.

Documents:

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

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

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

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

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

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

Defendants filed their answer to the complaint on May 23, 2022, which they amended May 25, 2022.

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

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

FOIA: Al Otro Lado v. U.S. Customs & Border Protection

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

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

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

Defendants requested an extension to respond to Plaintiffs’ complaint; their answer is due by January 18, 2023.

Documents:
Complaint

Counsel: Arent Fox LLP

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