Category Archives: All Cases

Johnson v. United States of America

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Carey Johnson v. United States of America, No. 18-cv-2178 (S.D. Cal., filed Sept. 20, 2018)

Carey Johnson is a U.S. citizen and military veteran who resides in Mexico. Johnson has a disability and carries a Department of Veterans’ Affairs (VA) identification card with a disability designation. He frequently crosses the U.S.-Mexico border near San Diego to receive treatment at VA facilities.  On September 22, 2016, Johnson approached Customs and Border Protection (CBP) officers at the Otay Mesa SENTRI gate and requested that he be allowed to use the SENTRI gate for expedited crossing as an accommodation for his disability. CBP denied his request, and officers told him he would need to request accommodations each time he crossed the border. After this encounter, the CBP officer wrote up a report that led to Johnson being repeatedly stopped and harassed on several future crossings.

During Johnson’s following border crossings, he attempted to request accommodations to expedite his border crossing. CBP officers repeatedly abused him. On one occasion, CBP officers impounded his car and shackled him to a bench for 3 hours. On another, officers dragged him from his car and tasered him. CBP agents seized his car on at least two occasions, allegedly based on SENTRI lane violations. CBP officers refused to return the car unless Johnson paid a $10,000 fine, which he was unable to afford.

Johnson eventually sued to seek redress for the repeated abuses he suffered. He sought damages under Bivens, Section 504 of the Rehabilitation Act,the Federal Tort Claims Act, and California’s Bane Act. On July 14, 2020, the district court dismissed Johnson’s Bivens claims against the individual CBP officers. On January 25, 2021, the court granted Defendant United States’ motion for summary judgment on the Rehabilitation Act and Bane Act claims.

The case settled and was dismissed pursuant to a joint motion on March 26, 2021.

Documents:

Counsel: Robbins & Curtin, P.L.L.C.
Contact: Joel Robbins | joel@robbinsandcurtin.com

Reyes v. United States, DOE CBP Officers 1-30

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Reyes v. United States, DOE CBP Officers 1-30, No. 3:20-cv-01752 (S.D. Cal., filed Sept. 8, 2020)

On August 2, 2018, Marco Reyes was waiting in his car to cross into the United States at the Otay Mesa Port of Entry in California. Due to an incident in another vehicle lane, a Customs and Border Protection (CBP) officer knocked at Reyes’ car window and asked him to step out of the car. Reyes, who suffered from significant hearing loss from military service, did not immediately hear the officer or comply with his commands. When Reyes realized the officer was speaking to him, he immediately got out of the car and stood behind his vehicle. The CBP officer then began to yell profanities at Reyes and bumped him with his chest, accusing him of not immediately following directions. When Reyes raised his hand to keep the officer from bumping into him, the officer accused him of assault and called for back-up assistance. A larger group of CBP officers arrived, pushed Reyes to the ground, and proceeded to beat him up while he was on the ground, injuring his shoulder and arm and breaking several ribs. After beating Reyes up, the officers arrested him for assault on a federal officer. The U.S. Attorney’s office declined to pursue prosecution of Reyes.

On September 8, 2020, Reyes filed this action, alleging violations of his rights under California’s Bane Act, the federal Rehabilitation Act, and the Federal Tort Claims Act. On February 16, 2021, the district court dismissed Reyes’ Bane Act claims and Rehabilitation Act claims without prejudice and with leave to file an amended complaint. The court also dismissed on consent the FTCA claims against the individual CBP officers.

Reyes proceeded to file two amended complaints. The case settled and was dismissed pursuant to a joint motion to dismiss on January 11, 2022.

Documents:

Counsel: McKenzie Scott, P.C.
Contact: Timothy Scott | tscott@mckenziescott.com

Anibowei v. Morgan

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Anibowei v. Morgan, No. 20-10059 (5th Cir., appeal filed Jan. 17, 2020); Anibowei v. Wolf, Civil Action No. 3:16-CV-3495 (N.D. Tex., filed Dec. 23, 2016)

Anibowei filed a lawsuit to challenge the actions of the CBP officers—and the underlying CBP and ICE directives—as violative of the First Amendment, Fourth Amendment, and the Administrative Procedure Act (APA). He sought damages under Bivens v. Six Unknown Agents as well as injunctive and declaratory relief. Defendants moved to dismiss the complaint. On February 14, 2019, the court dismissed Anibowei’s claims under Bivens as improperly pled, with leave to replead. On March 14, 2019, Anibowei filed a second amended complaint, and shortly thereafter filed a motion for summary judgment and for a preliminary injunction. On January 14, 2020, the district court denied Anibowei’s motions for partial summary judgment and a preliminary injunction. 

George Anibowei—a U.S. citizen and licensed attorney based in Dallas, Texas—was repeatedly stopped and questioned by Customs and Border Protection (CBP) officers when returning to the United States from international travel. On several such occasions, CBP officers also searched Anibowei’s cellphone and copied the cellphone’s contents without a warrant. CBP conducted these nonconsensual searches of Anibowei’s cellphone in accordance with CBP and ICE internal directives that permit the search of electronic devices at the border without individualized suspicion.

On January 17, 2020, Anibowei appealed the district court’s decision, asking the Fifth Circuit to rule on whether searching a cellphone without exigent circumstances or a warrant violates the Fourth Amendment, even if said search is conducted at the U.S. border. On December 3, 2020, the Fifth Circuit heard oral argument in this case. No opinion has been issued.

Documents

Counsel: Arnold & Porter
Contact: Andrew Tutt | Andrew.tutt@arnoldporter.com

NYLAG v. DHS

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New York Legal Assistance Group, Inc., v. United States Department of Homeland Security, et al., No. 1:22-cv-05928 (S.D.N.Y., filed Jul. 12, 2022)

New York Legal Assistance Group, Inc. (NYLAG), a not-for-profit civil legal services organization in New York, New York, filed a complaint in the Southern District of New York after the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) failed to produce responsive records to a Freedom of Information Act (FOIA) request for records related to the deployment of federal law enforcement personnel in New York City during protests related to the killing of George Floyd in 2020.

In June 2020, at a New York City protest against police brutality, a protestor was violently arrested on the Upper West Side by an officer identified as an agent for ICE or Homeland Security Investigations (HSI). After the identification of the officer, organizations like NYLAG raised concerns questioning the authority of the federal government to deploy federal agents to monitor local protests and surveil immigrant protestors.

NYLAG submitted an administrative FOIA request on September 29, 2020, requesting records from May 25, 2020, through the date of filing the request. Following their administrative request, NYLAG received some communications from DHS, ICE, Customs and Border Protection (CBP), the Secret Service (USSS), and the Office of Intelligence and Analysis (I&A), indicating that responsive records existed and were identified. However, after nearly two years, the agencies failed to produce to NYLAG any of the documents they identified as responsive to the FOIA request, prompting NYLAG to file suit in July 2022. On September 16, 2022, Defendants filed an answer to the complaint. Defendants’ production of documents responsive to the FOIA request is ongoing. The Court set an initial conference for February 24, 2023.

Counsel: New York Legal Assistance Group | Cooley LLP

Contact: Danielle Tarantolo | NYLAG | (212) 613-5000
Marc Suskin | Cooley LLP | (212) 479-6000

Related Links: https://nylag.org/nylagvdhs/

Davis Wright Tremaine v. CBP

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Davis Wright Tremaine LLP v. United States Customs and Border Protection, No. 2:19-cv-00334 (W.D. Wash., filed Mar. 6, 2019)

A Seattle-area law firm filed a Freedom of Information Act (FOIA) suit against CBP after the agency refused to respond to a FOIA request for information concerning CBP’s widely publicized policy and practice of denying entry to noncitizens due to their involvement with the legal cannabis industry in Canada. Individuals subjected to the policy in the past have been detained and at times even told they are banned for life from entering the United States. In one instance cited in the complaint, the executive commissioner for CBP’s Office of Field Operations, Todd Owen, was quoted as claiming, “If you work for the [cannabis] industry, that is grounds for inadmissibility.” Owens also claimed that CBP had the authority to permanently ban from entering the U.S. even those who only invested in legal cannabis business.

The firm which filed the suit, Davis Wright Tremaine LLP, sought access to records to assess whether CBP’s actions are within the scope of the authority granted to it by Congress, whether CBP was acting pursuant to any policies or procedures, and whether it promulgated any such policies or procedures consistent with the procedures Congress has required for agency rulemaking.

On June 16, 2020, plaintiff’s motion for summary judgment was granted in part and denied in part, and CBP’s motion for summary judgment was denied. The court found CBP’s production in response to the FOIA request inadequate, and the parties submitted periodic status reports on the agency’s ongoing production. Chief among the documents produced was a 2018 CBP Information Guide which acknowledged that foreign nationals who work in legal foreign cannabis industries are not inadmissible, assuming their visit to the United States is unrelated to domestic or cross-border cannabis operations – a policy which contradicts statements and actions by CBP in the past regarding Canadian citizens associated with the industry. The parties stipulated to dismiss the case in 2022.

Counsel: Davis Wright Tremaine LLP
Contact: Bruce Johnson | brucejohnson@dwt.com
Caesar Kalinowski | caesarkalinowski@dwt.com

FTCA Suit on Behalf of U.S.-Citizen Child Held by CBP for 30 Hours

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J.A.M., et al., v. United States of America, et al., No. 3:22-cv-00380 (S.D. Cal., filed Mar. 21, 2022)

The family of a 9-year-old girl and 14-year-old boy filed a damages suit under the Federal Tort Claims Act after the children, both U.S. citizens, were held in custody at the San Ysidro Port of Entry – the boy for more than 12 hours and his sister for more than 30 hours. The complaint recounts how J.A.M. and her brother O.A.M. were falsely imprisoned in San Ysidro and coerced into making false confessions about the girl’s identity. Officers insisted to the children that the girl was actually their cousin, who is not a U.S. citizen.

J.A.M. and her brother O.A.M. were on their way from Tijuana to school in San Diego with a family friend. Though both children presented officers with valid U.S. passports, a CBP officer sent them to secondary inspection, then to a holding area. According to the children, CBP officers interviewed them about other young relatives their age and then pressured them to sign false statements claiming that J.A.M. was actually their cousin. The children said they were told that O.A.M. would be taken to jail for smuggling if they did not sign. CBP allegedly intended to have the Mexican consulate interview J.A.M. to verify her identity, but claimed an appointment was not available until the following morning.

Upon learning her children had not made it out of the port of entry, their mother, Ms. Medina Navarro, left the medical facility where she was awaiting surgery to inquire at the port of entry for her children. At first, officers denied having the children in custody. More than 12 hours after her children were first taken into custody, Ms. Medina Navarro received a call that C.B.P. had her son in custody with a girl who was not her daughter, and was told she could come pick up her son. Though Ms. Medina Navarro took additional documents to prove the identity of her daughter, officers did not release J.A.M. to her mother until after J.A.M.’s interview with the Mexican consulate the following day, 33 hours after she was first taken into custody.

The family filed administrative Federal Tort Claims Act complaints. CBP denied the claims in full on September 29, 2021, and the family filed suit on March 21, 2022. The government filed a motion to dismiss for lack of jurisdiction or motion for summary judgment, which was denied on July 21, 2022, and subsequently filed an answer to the complaint on August 4, 2022. On September 28, 2022, the court held a case management conference where settlement negotiations broke down. Discovery is currently underway with depositions occurring in January and February 2023.  

Counsel: Law Offices of Joseph M. McMullen

Contact: Joseph Mark McMullen ǀ (619) 501-2000 ǀ joe@imm-legal.com

Press: Lawsuit alleging border officials falsely imprisoned 9-year-old U.S. citizen girl passes legal hurdle

Transgender Law Center v. Immigration & Customs Enforcement

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Transgender Law Center v. Immigration & Customs Enforcement, No. 3:2019-cv-03032 (N.D. Cal., filed May 31, 2019) and No. 20-17416 (9th Cir., filed December 15, 2020)

On May 25, 2018, Roxsana Hernandez, a transgender woman, died in the custody of U.S. Immigration and Customs Enforcement (ICE) after Customs and Border Protection (CBP) and ICE refused to provide her medical treatment. Roxsana entered the United States approximately two weeks before her death, seeking protection after fleeing persecution in her home country of Honduras, and also persecution she experienced in Mexico, due to her gender identity. Roxsana, who was suffering from untreated HIV, suffered from several physical ailments including frequent vomiting, diarrhea, persistent fever, severe weight loss and a cough in which she spat up bloody phlegm. She disclosed her condition no later than May 11, 2018, and requested medical attention multiple times. ICE refused and instead shuttled her to various holding, processing, and detention facilities, depriving her of food, water, sleep, and opportunities to relieve herself. She finally received treatment on May 17, 2018. The treatment did not come soon enough, and she died in the hospital on May 25, 2018.

On January 29, 2019, Plaintiffs Transgender Law Center and Jolene K. Youngers filed a Freedom of Information Act (FOIA) request to ICE and the Department of Homeland Security (DHS) Office for Civil Rights and Civil Liberties for any documents pertaining to Roxsana. On April 19, 2019, Defendant ICE acknowledged the FOIA request and assigned it a tracking number. On May 31, 2019, after not receiving any records responsive to the FOIA request, the Plaintiffs filed a complaint for declaratory and injunctive relief.

On November 24, 2020, the district court granted in part and denied in part motions for summary judgment from both the Plaintiffs and the Defendants. The case was argued on appeal on November 16, 2021. On May 12, 2022, the Ninth Circuit Court of Appeals reversed, vacated, and remanded this case to the district court. The court of appeals held that ICE and DHS had failed to meet their burden to show that their search for records was adequate “beyond material doubt,” failed to support their withholding of responsive documents—including by relying on mere boilerplate justifications—and failed to adequately segregate responsive, non-exempt records.

On October 17, 2022, a magistrate judge held a case management conference with the parties and referred the case to another magistrate judge for a settlement conference. The court continued the case management conference to May 8, 2023.

Documents:

Counsel: Grant & Eisenhofer P.A.; Transgender Law Center; Law Office of R. Andrew Free

Contact: Dale Melchert | Dale@transgenderlawcenter.org

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

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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

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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

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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. The parties are scheduled for a settlement conference on May 24, 2023.

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

Press:
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