Malik v. U.S. Department of Homeland Security

Adam A. Malik, et al. v. U.S. Department of Homeland Security, et al., No. 4:21-cv-00088-P (N.D. Tex., filed Jan. 25, 2021)

Adam Malik is an immigration attorney based in Texas. In January 2021, Mr. Malik returned to the United States from a trip to Costa Rica, during which he had used his phone to contact clients and work on cases in which the Department of Homeland Security (DHS) is an opposing party. When he attempted to reenter the United States through Dallas-Fort Worth Airport, Mr. Malik was sent to secondary inspection. After extensive questioning, including about his legal practice, Customs and Border Protection (CBP) officers seized Mr. Malik’s phone and informed him that its contents would be searched.

On January 25, 2021, Mr. Malik filed suit against the DHS and CBP in the Northern District of Texas. He claims that the seizure and search of his phone without probable cause or a warrant violates the First and Fourth Amendments. He also claims that CBP Directive 3340-049A, which governs the search of digital devices at ports of entry, is arbitrary and capricious, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), because it fails to adequately protect privileged legal information and impermissibly permits CBP to conduct searches and seizures that violate the First and Fourth Amendments. In addition to the return of his phone and the destruction of information and documents seized by CBP, Mr. Malik seeks injunctive and declaratory relief enjoining enforcement of CBP Directive 3340-049A and declaring it unlawful. On March 29, 2021, Defendants filed their answer to Mr. Malik’s complaint.

Documents:

Counsel: Roy Petty & Associates, PLLC

Contact: Roy Petty, Roy Petty & Associates, PLLC | (214) 905-1420, roy@roypetty.com

Additional links:
• Tim Cushing, Texas Immigration Lawyer Sues DHS, CBP Over Seizure and Search of His Work Phone, TechDirt.com, Feb. 2, 2021.

I.M. v. U.S. Customs and Border Protection

I.M. v. U.S. Customs and Border Protection, et al., No. 1:20-cv-3576-DLF (D.D.C., filed Dec. 11, 2020)

I.M. is a sustainable agriculture entrepreneur and founder of a nonprofit organization that promotes sustainable farming who came to the United States on a B-1 visa to learn more about sustainable agricultural practices. Despite having been admitted for this purpose in 2019, when he attempted to reenter the country in 2020 on a valid B-1 visa he was detained on erroneous grounds by a Customs and Border Protection (CBP) officer, who unilaterally decided to revoke I.M.’s visa and expel him from the country under the expedited removal statute, 8 U.S.C. § 1225(b)(1)(A)(i). At no point did I.M. have an opportunity to obtain judicial review of CBP’s legally and factually incorrect decisions to detain him, revoke his visa, and deny him admission to the country.

On December 11, 2020, I.M. filed a habeas petition and complaint against federal government defendants, including CBP, seeking vacatur of his removal order and reinstatement of his B-1 visa. I.M. argued that an unappointed CBP employee exercising unreviewed, unilateral discretion to revoke his visa and remove him violated the Appointments Clause of the Constitution, U.S. Const. art. II, § 2, cl. 2. The Appointments Clause requires that federal government officials who exercise significant authority be appointed by the President or, with Congress’s authorization, by a Head of Department or a court of law. I.M. claims that the decisions of CBP employees to unilaterally order removal under the expedited removal statute are void unless those employees were appointed consistent with the requirements of the Appointments Clause.

The government filed a motion to dismiss the complaint and petition on jurisdictional grounds in late February 2021. Briefing was completed in early April and a decision is pending from the District Court.

Counsel: Democracy Forward Foundation, National Immigrant Justice Center, Latham & Watkins

Contact: Mark Fleming, National Immigrant Justice Center, mfleming@heartlandalliance.org

Additional links:
• NIJC, DHS and CBP Sued for Unconstitutionally Allowing Unappointed Border Employees to Deport Immigrants (Dec. 11, 2020).

Grays v. Mayorkas

Johnny Grays, et al. v. Mayorkas, et al., No. 3:21-cv-10526-RHC-KGA (E.D. Mich., filed Mar. 9, 2021)

Johnny Grays, Mikal Williams, and Jermaine O. Broderick, Sr., are all Black Customs and Border Protection (“CBP”) officers at the Blue Water Bridge in Port Huron, Michigan, where only four out of 275 CBP officers are Black. They claim that, for over a decade, CBP management at the Port Huron Port of Entry systematically targeted Black drivers for stops; subjected them to additional scrutiny, including criminal record checks; and treated them in an unprofessional and demeaning fashion. They also claim that as Black CBP officers they were subjected to a hostile, racist work environment in which other CBP officers repeatedly made racist comments and were demeaning.

On March 9, 2021, Grays, Williams, and Broderick, Sr. filed a lawsuit in the Eastern District of Michigan alleging widespread discrimination against Black travelers and Black CBP officers at the Port Huron, Michigan Port of Entry. Defendants moved to dismiss the complaint, and on July 29, 2021, the court granted in part and denied in part the motion, dismissing Plaintiffs’ claim for discrimination under § 1981 as preempted by Title VII, but allowing Plaintiffs to proceed on their Title VII disparate treatment claim and allowing Grays to proceed on his Title VII hostile work environment and retaliation claims. The court also expressly permitted Plaintiffs Williams and Broderick to amend their complaint by August 20, 2021 to include Title VII retaliation claims after administratively exhausting. On August 12, 2021, Defendants filed their answer to the complaint. On August 23, 2021, after Plaintiffs advised the Court that their administrative remedies would not be exhausted by August 20 (as such claims can only be filed 180 days after filing an Equal Employment Opportunity administrative complaint), the Court issued an order permitting Plaintiffs to file their retaliation claims subsequent to this deadline. As such, the Court amended the case caption to reflect that Johnny Grays is the sole remaining Plaintiff in this action.

Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss

Counsel: Deborah Gordon Law

Contact: Deborah Gordon, Deborah Gordon Law | (248) 258-2500 | dgordon@deborahgordonlaw.com

Additional Links:

• Zack Linly, 3 Black Border Patrol Officers File Lawsuit Against CBP Alleging Constant Racial Profiling and Harassment of Black Travelers, The Root, Apr. 21, 2021.

P.J.E.S. v. Wolf

P.J.E.S. v. Wolf, No. 1:20-cv-02245 (D.D.C., filed Aug. 14, 2020)
J.B.B.C. v. Wolf, No. 1:20-cv-01509 (D.D.C., filed June 9, 2020)
Huisha-Huisha, et al. v. Gaynor, et al., No. 1:21-cv-0100 (D.D.C., filed Jan. 12, 2021)

A recent series of cases have challenged the government’s invocation of rarely-used public health laws to restrict immigration by unaccompanied children and asylum seekers.

On March 20, 2020, President Trump announced that the Centers for Disease Control and Prevention (CDC) would issue an order “to suspend the introduction of all individuals seeking to enter the U.S. without proper travel documentation” across the northern and southern borders. Would-be border crossers were to be “immediately return[ed]” to their country of origin “without delay.” To justify the order, the Administration invoked 42 U.S.C. § 265, a rarely-used provision dating back to 1893, which gives federal public-health authorities the ability to “prohibit . . . the introduction of persons or property” from designated places where “by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States.” This restriction has come to be known as “Title 42.”

On March 20, 2020, CDC issued an interim final rule and an order directing the “immediate suspension of the introduction” of certain persons, including those seeking to enter the United States at ports of entry “who do not have proper travel documents,” “whose entry is otherwise contrary to law,” and “apprehended near the border seeking to unlawfully enter the United States.” Reports indicate that although CDC objected to the order, saying that there was no valid public-health justification for it, White House officials overrode those objections. Though CDC initially limited the order to thirty days, it has since extended the order indefinitely. On October 13, CDC issued final rules concerning its regulatory authority under § 265. CDC then issued a revised order pursuant to those rules. In February 2021, the Biden administration called for a review of the CDC order to determine if it was still needed or if modifications should be made, but on August 2, 2021, CDC issued a new order once again indefinitely extending application of Title 42.

The CDC order and regulations apply to unaccompanied children (who are entitled to special safeguards under the Trafficking Victims Protection Reauthorization Act (TVPRA)) and people seeking asylum, withholding of removal, or protection under the Convention Against Torture. The ACLU, along with a number of ally organizations, have filed a series of lawsuits on behalf of unaccompanied children challenging their expulsion under the CDC’s directives, the two most significant of which are discussed below.

J.B.B.C.

J.B.B.C. v. Wolf challenged the unlawful expulsion of a sixteen-year-old Honduran boy pursuant to Title 42. J.B.B.C. was being held in a hotel awaiting expulsion when the ACLU and others filed a complaint and request for a temporary restraining order. Based on J.B.B.C.’s arguments that the Title 42 Process was not authorized by § 265, and that the CDC order conflicted with various Immigration and Nationality Act (INA) provisions, Judge Carl Nichols issued a preliminary injunction barring Defendants from expelling J.B.B.C. Defendants then voluntarily took J.B.B.C. out of the Title 42 Process and transferred him to Office of Refugee Resettlement (ORR) custody.

Another child similarly subject to expulsion under Title 42, E.Y., was later amended into the case. Hours after he was added, Defendants similarly took him out of the Title 42 Process. Plaintiffs subsequently voluntarily dismissed J.B.B.C.

P.J.E.S.

On August 14, 2020, the ACLU Immigrants’ Rights Project, the ACLU of Texas, the Texas Civil Rights Project, Oxfam America, and the ACLU Foundation of the District of Columbia filed P.J.E.S. v. Wolf, a nationwide class action challenging the application of the Title 42 Process to unaccompanied children. On August 20, 2020, Plaintiffs moved for a classwide preliminary injunction. The District Court judge then referred the case to a magistrate judge, who issued a report recommending that Plaintiffs’ motion for class certification be provisionally granted and that the motion for classwide preliminary injunction be granted. The magistrate judge concluded that Title 42 does not authorize summary expulsions and that if it were in fact read to permit expulsion of unaccompanied minors, it would conflict with statutory rights granted to them under the TVPRA and the INA.

On November 18, 2020, the court adopted the Report, provisionally granting Plaintiffs’ motion to certify class and motion for preliminary injunction. Defendants moved for reconsideration on their request to stay the preliminary injunction and appealed the order to the DC Circuit. On December 3, the court denied Defendants’ motion for reconsideration.

On December 12, 2020, Defendants filed a notice advising the court that approximately 34 class members had been expelled from the United States, in contravention of the court’s injunction. These 34 were in addition to another 32 unaccompanied children expelled the same day the court granted the preliminary injunction.

On January 29, 2021, a motions panel of the D.C. Circuit stayed the P.J.E.S. preliminary injunction pending appeal and expedited the appeal.

In February 2021, CDC published a Notice of Temporary Exception from Expulsion of Unaccompanied Noncitizen Children under Title 42, and on July 16, 2021, CDC issued an order formally excepting unaccompanied minors from Title 42.  

On March 2, 2021, the Court of Appeals issued an order holding Defendants’ appeal of the preliminary injunction in abeyance pending further order of the court. The District Court likewise granted the parties’ joint motion to hold the case in abeyance.

Note: Two other cases involving the treatment of unaccompanied minors under Title 42 include G.Y.J.P. v. Wolf, No. 1:20-cv-01511 (D.D.C., filed June 9, 2020) and Texas Civil Rights Project v. Wolf, No. 1:20-cv-02035 (D.D.C., filed July 24, 2020).

Huisha-Huisha

On January 21, 2021, the ACLU Immigrants’ Rights Project, the ACLU of Texas, the Refugee and Immigrant Center for Legal Education and Legal Services, Oxfam America, and the ACLU of the District of Colombia filed Huisha-Huisha, et al. v. Gaynor, et al., a class action on behalf of noncitizens who arrive in the United States as a family unit of at least one child and that child’s parent or legal guardian and are subject to Title 42. The named plaintiffs are three parents and their minor children who sought asylum in the United States.In January 2021, Plaintiffs moved to certify a class consisting of all noncitizens who “(1) are or will be in the United States; (2) come to the United States as a family unit composed of at least one child under 18 years old and that child’s parent or legal guardian; and (3) are or will be subjected to the Title 42 Process.” Plaintiffs also filed a series of emergency motions to stay the removal of the named petitioners. In February, the District Court granted the stays of removal over the government’s objections.

On February 5, 2021, Plaintiffs moved for a preliminary injunction prohibiting Defendants from applying the Title 42 Process to members of the putative class. On February 23, 2021, the District Court granted the parties’ joint motion to hold in abeyance the motions for class certification and a preliminary injunction. The case was held in abeyance until August 2, 2021, while the parties attempted to engage in settlement negotiations. On August 2, the parties jointly filed a motion to reset the briefing schedule on Plaintiffs’ motions for class certification and a preliminary injunction, indicating their intent to resume litigation. On August 11, 2021, Plaintiffs filed their reply in support of their motion for class certification and for a preliminary injunction.

Documents:

J.B.B.C. v. Wolf:

P.J.E.S. v. Wolf:

Huisha-Huisha, et al. v. Gaynor, et al.

Counsel: ACLU Foundation of Texas; ACLU Foundation Immigrants’ Rights Project; Texas Civil Rights Project; Center for Gender & Refugee Studies; Oxfam America; ACLU Foundation of the District of Columbia

Contact: Stephen Kang, ACLU Immigrants’ Rights Project | skang@aclu.org

Additional Links:

Administrative Complaint Series on CBP’s Abuse and Mistreatment of People Detained in its Custody

Administrative Complaint Series on CBP’s Abuse and Mistreatment of People Detained in its Custody

Between January and July 2020, the ACLU Foundation of San Diego & Imperial Counties, in tandem with the ACLU Border Rights Center, prepared and submitted a series of administrative complaints to the Department of Homeland Security’s Office of Inspector General (DHS OIG) detailing U.S. Customs and Border Protection (CBP)’s abuse and mistreatment of people in its custody. The complaints were based on a series of 103 interviews conducted with individuals recently released from CBP custody between March and July 2019.

Complaint #1 – Mistreatment of Pregnant People

The first complaint, filed January 22, 2020, focused on CBP’s abuse and mistreatment of detained pregnant people. One detained woman who was six months pregnant detailed how a Border Patrol  agent forcibly slammed her face against a chain link fence while other agents looked on and did nothing. Border Patrol then detained her for three days without medical care. Another woman reported her fear of her pregnant belly being kicked while having to sleep on the crowded floor of the holding cell. When she began to experience abdomen pain and other symptoms and asked for medical attention, Border Patrol agents told her she was lying.

The complaint contains numerous reports of pregnant individuals being denied not only medical care, but access to clean clothes and other basic hygienic necessities.

The complaint implores DHS OIG to conduct an immediate review of CBP’s treatment of pregnant people in its custody, including recommending CBP stop detaining pregnant people altogether and adopt explicit policies to ensure for adequate, timely medical care of pregnant individuals.

Complaint #2 – Mistreatment of Sick Children

The second complaint, filed on February 18, 2020, focused on the treatment of sick children in CBP and U.S. Border Patrol facilities. The complaint details how Border Patrol continued to hold a weeks-old infant who experienced significant weight loss while detained in custody against the express and repeated advice of medical professionals. In another case, Border Patrol held a five-year-old child for eight days without providing any medical attention for his persistent fever and diarrhea. The complaint also notes how, as of the time of its filing, at least seven children have died in CBP custody or shortly after being released, many of whom received delayed or no medical care. Finally, the complaint calls on DHS OIG to review CBP’s treatment of sick children in its custody, recommend that CBP prioritize the release of all children, and strictly prohibit continued detention of sick children.  

Complaint #3 – Separation of Families in CBP Processing & Detention

The third complaint, filed on April 15, 2020, focused on CBP’s separation of families during detention and processing and the agency’s refusal to implement a detainee locator system. The complaint noted that despite the supposed halting of DHS’s well-publicized separation of young children from their parents, family separations continue to occur as a result of CBP processing and detention practices. Border Patrol and DHS have adopted a very restrictive definition of “family” that includes only legal guardians accompanied by minor children and gives Border Patrol agents unilateral discretion to decide whether to separate family members, resulting in countless ongoing family separations. The ACLU’s investigation documented the separation of a grandmother and her nine-year-old grandson, a woman and her sister, and a mother and her non-minor son, among countless others. Noting the many ways in which family separations intensify trauma for already vulnerable asylum seekers of all ages and the many extreme barriers to locating and communicating with loved ones who are detained, the complaint calls on DHS OIG to recommend CBP implement a detainee locator system, refrain from detaining family units, and prioritize the prompt release of families. It also recommends adoption of a more expansive definition of “family”.

Complaint #4 – Verbal Abuse of Detained Individuals

The fourth complaint in the series, filed July 7, 2020, focused on U.S. Border Patrol’s verbal abuse of detained individuals. This complaint highlights Border Patrol’s “staggering culture of cruelty” and “systematic mistreatment and dehumanization of vulnerable people.” Detained individuals reported being told “Forget about asylum, we might just take away your daughter,” “Get out of here, what are you doing here if you don’t even speak English, you are worthless,” “If you keep complaining I will put you with the dogs,” “[Y]ou broke the law, you have no rights,” “I am treating you the way illegals should be treated,” and a litany of other abusive slurs. The complaint calls on DHS OIG to recommend CBP strictly prohibit personnel from verbally abusing individuals in its custody, adopt zero-tolerance policies for anti-immigrant and racist employee conduct, and create a new complaint process that allows for timely review and increased transparency.

Documents:

Counsel: ACLU Foundation of San Diego & Imperial Counties; ACLU Border Rights Center

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

Administrative Complaint Regarding U.S. Border Patrol’s Mistreatment of Honduran Family Seeking Asylum and Summary Expulsion of Newborn U.S. Citizen

Administrative Complaint Regarding U.S. Border Patrol’s Mistreatment of Honduran Family Seeking Asylum and Summary Expulsion of Newborn U.S. Citizen

On July 10, 2020, the ACLU Foundation of San Diego & Imperial Counties (ACLU-SDIC) and Jewish Family Service of San Diego (JFS) submitted an administrative complaint to the Department of Homeland Security’s Office of Inspector General (OIG) and the Office for Civil Rights and Civil Liberties (CRCL), regarding U.S. Border Patrol’s mistreatment of a Honduran family seeking asylum and the agency’s summary expulsion of the family, including their newborn U.S. citizen child, to Mexico. The family, including the mother, father, and their nine-year-old son, fled Honduras after gangs extorted them, made repeated death threats, beat the nine-year-old with a gun, and took over their house.

In early March 2020, the family made an initial attempt to seek asylum, but Border Patrol force them to wait in Mexico for an immigration court hearing. Fearing for their safety in Mexico, on June 27, 2020, the family, including the mother, who was now nine months pregnant, attempted to cross into the U.S. once again and turned themselves in to the Border Patrol. The Border Patrol agents separated the family, sending the father and son back to Mexico in the middle of the night, despite their repeated pleas to stay with the mother. Agents sent the mother to the hospital, where she gave birth to her child – a natural-born U.S. citizen. Just two days after giving birth, Border Patrol agents took the mother and her newborn U.S. citizen child to the border and directed them to walk over the border back into Mexico, even though the mother had repeatedly expressed a fear of persecution there. Once back in Mexico, the mother and child were eventually able to reunite with the father and son. The family contacted JFS from Tijuana, where they reported that neither the newborn child nor his mother had received any medical care since birth.

ACLU-SDIC and JFS filed an administrative complaint on the family’s behalf, calling for an urgent investigation of Border Patrol’s treatment of the family, including the forced expulsion of the newborn U.S. citizen and his mother to Mexico and the forced removal of the father and son. The complaint also emphasizes that Border Patrol twice failed to ensure that the family had access to non-refoulement interviews, which are intended to ensure people are not removed to countries where they are likely to face persecution – a clear violation of both U.S. law and agency policy. In addition to the investigation, the complaint calls on DHS OIG to recommend CBP immediately exempt all pregnant persons from MPP, promptly release people forced to give birth in CBP custody and their families as soon as possible after birth, and ensure CBP complies with their non-refoulement obligations and hold officers who do not accountable, among others.

Documents:

Counsel: ACLU Foundation of San Diego & Imperial Counties; Jewish Family Services of San Diego

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

Additional Links:

Santa Fe Dreamers Project v. U.S. Customs and Border Protection

Santa Fe Dreamers Project v. U.S. Customs & Border Protection, No. 1:20-cv-00490 (D.N.M., filed May 21, 2020)

In response to the Trump Administration’s implementation of a series of new policies designed to dissuade asylum seekers from coming to the United States, an increasing number of immigrants’ rights advocates began representing asylum seekers in the U.S.-Mexico border region. In late 2018 and early 2019, reports emerged that federal law enforcement was surveilling attorneys and immigrants’ rights advocates as a result of this increased human rights work. In mid-December 2018, federal officials subjected El Paso-area advocates to increased questioning and detention while traveling through ports of entry and abroad. In April 2019, the Santa Fe Dreamers Project (SFDP) submitted a Freedom of Information Act (“FOIA”) request to U.S. Customs and Border Protection (“CBP”) seeking records related to border enforcement and the potential targeting of human rights defenders by border enforcement agencies. SFDP did not receive a single responsive document.

On May 21, 2020, SFDP filed this FOIA lawsuit seeking to compel CBP to conduct a reasonable search and produce records responsive to their FOIA request. On June 24, 2020, Defendants filed their answer. Per their August scheduling order, Defendants were required to produce all responsive documents by November 6, 2020. However, on November 6, Defendants filed an unopposed motion to extend this production deadline. On December 28, the magistrate judge vacated all deadlines related to production of documents and briefing in the case, and on January 12, 2021, the magistrate judge ordered Defendants to produce all responsive documents no later than March 15, 2021.

Settlement conferences were held on April 6 and 7, 2021, and on June 14, 2021, after Defendants had agreed to pay fees and costs, Plaintiffs stipulated to dismiss the case.

Documents:

Counsel: Christopher Benoit, The Law Office of Lynn Coyle, PLLC

Contact: Christopher Benoit, The Law Office of Lynn Coyle, PLLC | chris@coylefirm.com

Texas Civil Rights Project v. U.S. Customs and Border Protection

Texas Civil Rights Project et al. v. U.S. Customs and Border Protection, No. 1:20-cv-02389 (D.D.C., filed Aug. 27, 2020)

In March 2020, the Trump Administration began carrying out summary expulsions pursuant to Title 42 § 265 of the U.S. Code and the CDC’s  implementing regulations. The Administration removed noncitizens without travel documents apprehended at the border – including unaccompanied minors and asylum seekers – without any legal process under the ruse of mitigating the spread of COVID-19. In late July 2020, news began breaking that the Department of Homeland Security (DHS) had been contracting with private contractors to detain immigrant children as young as one in hotels along the U.S.-Mexico border prior to carrying out such summary expulsions, regardless of whether the child had tested positive for COVID-19 or not. While detained in these hotels, children, including unaccompanied minors, were unable to contact family members, denied access to counsel, and denied any legal process before being removed to countries where many feared persecution.

In response, the Texas Civil Rights Project (TCRP) and the Institute for Constitutional Advocacy and Protection (ICAP) submitted three Freedom of Information Act (FOIA) requests to Customs and Border Protection (CBP), DHS, and Immigration and Customs Enforcement (ICE) to obtain more information about the government’s treatment of unaccompanied children who have crossed the border in recent months. Specifically, the organizations sought records encompassing (1) the standards use to determine whether unaccompanied and undocumented children are immediately expelled or allowed to apply for humanitarian relief; (2) statistics on how many children have been expelled and to where; (3) the secret locations where DHS detains children prior to Title 42 expulsion; and (4) the identity of the companies that DHS had contracted with to transport and detain children. Plaintiffs received no response to their requests.

On August 27, 2020, TCRP and ICAPfiled this suit seeking to compel CBP, ICE, and DHS to conduct a reasonable search and produce records responsive to their FOIA request. 

Documents:

Counsel: Robert D. Friedman, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center

Contact: Robert Friedman, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center | rdf34@georgetown.edu

Additional Links:

Drewniak v. U.S. Customs and Border Protection

Drewniak v. U.S. Customs and Border Protection, et al., No. 1:20-cv-00852 (D.N.H., filed August 11, 2020)

Throughout northern New England, the Border Patrol operates temporary checkpoints to detain hundreds – if not thousands – of individuals without any suspicion. This case challenges these checkpoints.

On August 26, 2017, Plaintiff Jesse Drewniak, a New Hampshire resident and U.S. citizen, was returning home from a fishing trip when the Border Patrol stopped him at one such temporary interior checkpoint. During this encounter, heavily-armed Border Patrol agents illegally detained and searched Mr. Drewniak for almost an hour. After detecting a small quantity of hashish oil, agents arrested Mr. Drewniak for the state law violation-level offense of unlawful possession of a prohibited substance.

In May 2018, the Plymouth Circuit Court reviewed the charges against Mr. Drewniak and fifteen other individuals arising out of the August 2017 checkpoint, eventually suppressing all the evidence as seized in violation of the Fourth Amendment and the New Hampshire Constitution. The state judge further found that Border Patrol was impermissibly using the checkpoint for the purpose of general crime control, not immigration enforcement, thereby making the checkpoint unconstitutional under federal law. The State then voluntarily dropped all charges against Mr. Drewniak and the fifteen other individuals. However, despite this victory, Border Patrol has continued to use these unconstitutional checkpoints in northern New England.

Mr. Drewniak now seeks compensatory and punitive damages against the Border Patrol agents involved in his unconstitutional search and seizure pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, as well as declaratory and injunctive relief to stop Border Patrol from conducting these illegal checkpoints in Woodstock, New Hampshire. In November 2020, defendants moved to dismiss the case for failure to state a claim and lack of subject matter jurisdiction. The parties stipulated to dismissal of claims against one defendant, and the court set a briefing schedule.

On April 8, 2021, the District Court issued an order granting in part and denying in part Defendants’ motions to dismiss. The Court dismissed count one of the complaint, which sought Bivens damages against a Border Patrol agent for violations of his Fourth Amendment rights. It denied the motion to dismiss the second count, which sought declaratory and injunctive relief precluding CBP from operating additional traffic checkpoints.

Mr. Drewniak is represented by the ACLU of New Hampshire, the ACLU of Maine Foundation, the ACLU Foundation of Vermont, McLane Middleton, Mark Sisti, and Albert Scherr.

Documents:

Counsel: ACLU of New Hampshire Foundation; ACLU of Maine Foundation; ACLU Foundation of Vermont; McLane Middleton; Mark Sisti; Albert Scherr

Contact: Gilles Bissonnette, ACLU of New Hampshire Foundation | gilles@aclu-nh.org

Doe v. Wolf

Doe v. Wolf, No. 3:19-cv-02119-DMS-AGS (S.D. Cal., filed Nov. 5, 2019) and 20-55279 (9th Cir., filed Mar. 13, 2020)

People who are seeking asylum but have been forced to wait in Mexico under the Trump Administration’s so-called “Migrant Protection Protocols” (MPP) have a right to not be returned to Mexico if it is more likely than not that they will be persecuted or tortured there. But the U.S. Department of Homeland Security (DHS) blocked such individuals from consulting with their lawyers prior to and during life-or-death interviews on this matter, known as non-refoulement interviews. The ACLU Foundation of San Diego & Imperial Counties filed a class action lawsuit to challenge this systemic denial of the right to counsel in U.S. Customs and Border Protection (CBP) custody.

On January 14, 2020, the District Court entered a preliminary injunction guaranteeing access to counsel to a class of people detained in CBP custody while awaiting and undergoing non-refoulement interviews. The District Court first found that 8 U.S.C. § 1252(a)(2)(b)(ii), which prohibits judicial review of a “decision or action” that is “in the discretion of the Attorney General or the Secretary of Homeland Security,” did not foreclose review of the Plaintiffs’ claims. The Court further found that 5 U.S.C. § 555(b), which provides that “[a] person compelled to appear in person before an agency . . . is entitled to be accompanied, represented, and advised by counsel,” applies to non-refoulement interviews. As such, the District Court ordered that “Respondents may not conduct class members’ non-refoulement interviews without first affording the interviewees access to their retained counsel both before and during any such interview.” 

The government appealed to the Ninth Circuit. After oral argument, submission of the appeal was vacated pending the Supreme Court’s disposition of Wolf, et al. v. Innovation Law Lab, et al., No. 19-1212 (Innovation Law Lab), which challenged the legality of the MPP program as a whole.

On June 21, 2021, the Supreme Court vacated the decision in Innovation Law Lab as moot, given the Biden administration’s winddown and eventual termination of the MPP program (announced on June 1, 2021). In response, the Ninth Circuit ordered the parties in Doe to submit supplemental briefing on the question of whether the District Court’s January 14, 2020 preliminary injunction should also be vacated as moot. On July 19, 2021, the Ninth Circuit concluded that because the Supreme Court had decided that the challenge to MPP as a whole in Innovation Law Lab was moot, that the narrower question presented in Doe was also moot. As a result, the Ninth Circuit remanded the case to the District Court with instructions to vacate the January 14, 2020 preliminary injunction as moot. The parties subsequently entered into a stay of the litigation.

However, on August 13, 2021, the District Court for the Northern District of Texas issued a nationwide injunction in Texas et al. v. Biden requiring the Biden administration to restart the MPP program “in good faith.” After the Supreme Court declined to stay the injunction on August 24, 2021, DHS issued a statement indicating its intent to appeal the injunction but stating that while the appeals process continues, DHS “will comply with the order in good faith.” As a result, on September 1, 2021, Plaintiffs filed a motion for reconsideration with the Ninth Circuit asking the court to vacate its July 19 order directing the District Court to vacate the preliminary injunction and to direct the District Court to reinstate the preliminary injunction based on changed circumstances. That motion is currently pending.

Documents:

Counsel: ACLU Foundation of San Diego & Imperial Counties

Contact: Monika Langarica, Immigrants’ Rights Staff Attorney, ACLU Foundation of San Diego & Imperial Counties | mlangarica@aclusandiego.org