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.

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

Abdulkadir Nur v. Unknown U.S. Customs & Border Protection Agents, et al., No. 1:22-cv-00169-AJT-JFA (E.D. Va., filed Feb. 17, 2022)

Abdulkadir Nur is a 69-year-old U.S. citizen who was born in Somalia but lives in northern Virginia. Mr. Nur is also Muslim. As a business owner and humanitarian, Mr. Nur frequently travels internationally, and every single time he arrives back in the United States after traveling overseas, CBP officers have illegally seized any phone or laptop he has with him.

In September 2008, Mr. Nur was providing logistical support to a United Nations relief program in Somalia when his caravan was raided by local insurgents. Following the event, a United Nations Monitor Group launched an investigation, and ultimately found that Mr. Nur had not done anything improper. However, the investigation drew the attention of the FBI and U.S. Attorney’s Office, who demanded financial records and data from Mr. Nur and his company. Mr. Nur fully complied with the investigation, and both the FBI and U.S. Attorney’s Office told Mr. Nur that they wouldn’t be looking into the event any further.

However, since that time, Mr. Nur has been the target of increased scrutiny at airports and border crossings, always being subjected to secondary inspection and interrogation. In 2018, the intensity of this scrutiny increased – following every flight Mr. Nur has taken into the United States since then, CBP officers have seized Mr. Nur’s electronic devices and demanded the passwords. Believing he had no choice and not wanting to further prolong his detention, Mr. Nur gave his passwords to the officers, who then left the room with his devices, eventually returning them upon his release. When Mr. Nur eventually began refusing to give officers the passwords, the officers would still take Mr. Nur’s devices, sometimes seizing them and holding them for days or weeks.

Mr. Nur believes that following the incident in Somalia, he was placed on a federal terrorist watchlist known as the “Terrorism Screening Database” for those suspected to have ties to domestic terrorism. However, in order to be placed on the watchlist, the federal government need only have a “reasonable suspicion” that the individual is “reasonably suspected” of nefarious activities – a standard far lower than “reasonable suspicion” or “probable cause” that often leads to people being placed on the watchlist merely for being a friend or community member of someone on the watchlist, rendering the list highly over-inclusive. The FBI itself has admitted that it is “not aware of any instance where [the identifying information included on the watchlist] alone prevented an act of terrorism.” Mr. Nur believes that his placement on the watchlist has caused his repeated detention, interrogation, and seizure of his devices. 

On February 17, 2022, Mr. Nur filed a lawsuit alleging that CBP’s searches and seizures of his devices based solely on his inclusion on the watchlist violate the Fourth Amendment and that officers compelling him to provide his device passwords violates his Fifth Amendment right against self-incrimination. He also alleges that CBP’s policies of searching and seizing him and other U.S. citizens and lawful permanent residents included on the federal watchlist are unlawful under the Administrative Procedure Act.

He seeks, among other things, a declaratory judgment that Defendants must have reasonable suspicion apart from watchlist status before performing nonroutine search and seizures of persons on the watchlist or forensic searches of their electronic devices and that Mr. Nur’s placement on the watchlist imposed unlawful consequences on him. He also seeks an injunction prohibiting Defendants from searching someone’s device because of their watchlist status or ordering individuals at the border to provide passwords or other access to their electronic devices, and ordering Defendants to remove Mr. Nur’s watchlist status and expunge records regarding his status and information illegally seized from him. Mr. Nur also seeks damages pursuant to Bivens v. Six Unnamed Agents.

Documents:
Complaint

Counsel: CAIR Legal Defense Fund

Contacts:
Lena Masri | lmasri@cair.com
Gadeir Abbas | gabbas@cair.com
Justin Sadowsky | jsadowsky@cair.com
Kimberly Noe-Lehenbauer | knoelehenbauer@cair.com


Haitian Bridge Alliance, et al. v. Biden, et al., No. 1:21-cv-03317 (D.D.C., filed Dec.20, 2021)

Mirard Joseph is a Haitian man who was whipped by a U.S. Border Patrol agent while attempting to bring food to his family in a Texas migrant encampment. Mr. Joseph alleges his wife received only bread and water and a single diaper for their infant daughter each day—conditions that eventually drove him and others to leave the Del Rio encampment and return to Mexico to buy food. When they attempted to reenter the camp with their purchases, they were met by Border Patrol officers who grabbed Mr. Joseph’s shirt, “lashed at him with reins, attempted to drag him back into the water, and nearly trampled him.”

Mr. Joseph and ten other Haitian nationals held in the temporary Border Patrol camp allege that this mistreatment was part of a discriminatory policy by the Biden administration to target Haitians. Plaintiffs allege that the U.S. government differentially applied the Title 42 process—a summary expulsion process purportedly designed to protect public health during the COVID-19 pandemic. Specifically, Plaintiffs allege that the government used Title 42 at the Del Rio Port of Entry against Haitian and Haitian-appearing asylum seekers with the purpose of discouraging them from accessing their right to seek asylum. Plaintiffs assert that this Haitian Deterrence Policy diverges from standard practice for asylum seekers and is driven by discriminatory purpose. Despite ample warning that thousands of Haitian migrants were heading toward Del Rio, federal authorities refused to prepare adequate infrastructure to receive them when arrivals started ramping up in September. As a result, a makeshift processing center under the Del Rio International Bridge turned into an encampment, where up to 15,000 people were made to wait for days at a time in temperatures topping 100 degrees without adequate food, water, bedding, or medical attention.

Footage described in the complaint prompted a national outcry in September 2021, with White House press secretary Jen Psaki calling the tape “horrific” during her September 20 press briefing. DHS Secretary Alejandro Mayorkas launched an internal investigation into the encounter. While the Secretary initially called for findings to be released by the end of September, results are still pending.

Plaintiffs allege that the Haitian Deterrence Policy did not end with mistreatment in Del Rio. After being processed for admission, the U.S. government placed those Haitian asylum seekers in detention, split up families, and shackled and removed them to Haiti without providing the opportunity to request humanitarian protection in the United States. Plaintiff Wilson Doe testified that DHS officers lied and said his family was being transferred to another detention facility when they were actually being expelled pursuant to Title 42. Officers then beat him when he resisted boarding the plane.

Plaintiffs allege violations of the Fifth Amendment due process clause and the Administrative Procedure Act. They also seek certification for a class of all Haitian or presumed Haitian individuals who were denied access to the U.S. asylum process in or around the Del Rio encampment between September 9 and 24, 2021. Plaintiffs seek declaratory and injunctive relief enjoining the government from subjecting members of the proposed class to the Haitian Deterrence Policy or Title 42 expulsions. They also seek return of those already expelled under Title 42 to allow them to pursue their asylum claims. Plaintiffs filed their complaint on December 20, 2021.

Counsel: Innovation Law Lab; Haitian Bridge Alliance; Justice Action Center.

Contacts:
Taisha Santil | tsaintil@haitianbridge.org
Tasha Moro | tasha.moro@justiceactioncenter.org
Alex Mensing | alexm@innovationlawlab.org

Documents:
Complaint

Press:
Class Action Ties Alleged Whipping To Haitian Discrimination
Haitian Migrants File Lawsuit Protesting Treatment by Border Patrol

Dousa v. U.S. Department of Homeland Security, et al., No. 3:19-cv-01255 (S.D. Cal., filed Jul. 8, 2019)

Pastor Kaji Douša sued the Department of Homeland Security (DHS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE), to stop their unlawful retaliation against her for providing pastoral services to migrants and refugees—a central calling of her Christian faith. In 2018, Pastor Douša helped organize the “Sanctuary Caravan,” a mobile clinic of faith leaders to deliver pastoral services, such as prayer and church-blessed marriage ceremonies, to migrants seeking asylum in the United States. In December 2018, Pastor Douša traveled to Mexico to join the Sanctuary Caravan. But upon attempting to return to the United States, federal officials detained and interrogated her. She later learned that DHS had targeted her for heightened scrutiny and had revoked her clearance for expedited border crossing as part of Operation Secure Line, a DHS intelligence collection operation targeting activists, lawyers, and journalists working on issues related to the October 2018 migrant caravan and conditions at the U.S.-Mexico border. In March 2019, media outlet NBC 7 San Diego revealed existence of a “watchlist” that included the names, photos, and information of fifty-nine individuals purportedly tied to the migrant caravans, including Pastor Douša.

Pastor Douša brought this suit in July 2019, alleging retaliation in violation of the First Amendment, violation of the First Amendment’s free exercise clause, and violation of the Religious Freedom Restoration Act (RFRA). She seeks declaratory relief and an injunction compelling the government to stop surveilling, detaining, interrogating, or acting unlawfully against her in retaliation for how, when, and where she exercises her religion.

On January 28, 2020, the court denied Pastor Douša’s motion for a preliminary injunction and granted in part the government’s motion to dismiss. The court dismissed Plaintiff’s hybrid First Amendment rights claim, which asserted a Free Exercise claim in conjunction with a free speech and association claim, but allowed her to proceed with her First Amendment free exercise and RFRA claims. The parties have continued to engage in discovery. In December 2021, Pastor Douša moved to sanction DHS for misrepresentations, discovery delays, and failure to correct a false declaration. The hearing on the motion for sanctions is now set for May 12, 2022.

Further information can be found on the Protect Democracy website.

Two other lawsuits related to the unlawful targeting of journalists, attorneys, and advocates as part of Operation Secure Line are Guan v. Mayorkas and Phillips v. CBP.

Documents:

Counsel:
Arnold & Porter LLP; Protect Democracy

Contact:
Stanton Jones | stanton.jones@arnoldporter.com
Christine Kwon | christine.kwon@protectdemocracy.org

Press:
New York Pastor and Immigration Advocate Asks Court to Sanction Federal Officials
Source: Leaked Documents Show the U.S. Government Tracking Journalists and Immigration Advocates Through a Secret Database – NBC 7 San Diego (nbcsandiego.com)

Granillo v. United States of America, No. 2:21-cv-00777 (D.N.M., filed Aug. 18,2021)

Anastacio Granillo is a 64-year-old man who was assaulted by a Customs and Border Protection (CBP) officer at the Columbus Port of Entry while returning home from visiting family in Mexico in June 2019. On June 18, 2019, Mr. Granillo arrived at the Columbus Port of Entry with his wife’s cousin. At passport check, Mr. Granillo suggested to CBP Officer Oscar Orrantia that it would be helpful to open up another lane to allow for faster processing of vehicles in the heat. The officer responded in an angry tone and stated that CBP officers could do whatever they wanted. The CBP officer then asked what Mr. Granillo was bringing into the United States. Mr. Granillo responded that he was bringing allergy medication that he purchased in Mexico. He attempted to hand the medication to the officer, but accidentally dropped it, and it landed in the officer’s hands. The officer accused Mr. Granillo of throwing the medication at him before forcing him out of his vehicle and slamming him against the wall of the vehicle inspection bay, causing him to hit his head, fall to the ground, and suffer multiple injuries. CBP then detained him without medical help for close to an hour, despite him having a large visible bump on his forehead.

Mr. Granillo filed a complaint in the District of New Mexico on August 18, 2021. He alleged Officer Orrantia used excessive and unnecessary force against him and illegally detained him. Mr. Granillo claims the following causes of action under the Federal Tort Claims Act: assault, battery, false arrest, and negligence. The government filed an answer to the complaint on October 22, 2021. The parties met on December 16, 2021, and filed a joint status report outlining their provisional discovery plan on January 3, 2022.

Defendants attempted to stay discovery and release of a key piece of video evidence for six months. On March 8, 2022, the District Court denied the requested six-month stay and ordered release of the video on or before May 5, 2022. A Rule 16 conference is scheduled for May 6, 2022.

Documents:
Complaint
Answer
Joint Status Report

Counsel:
ACLU of New Mexico

Contact:
María Martínez Sánchez | msanchez@aclu-nm.org
Zoila Alvarez Hernández | zalvarez@aclu-nm.org
Rebecca Fae Sherman Sheff | rsheff@aclu-nm.org

Press:
ACLU Sues CBP for Excessive Force Against New Mexican Man at Columbus Port of Entry

Anas Elhady v. Unidentified CBP Agents, et al., No. 20-01339 (6th Cir., filed Apr 22, 2020); No. 2:17-cv-12969 (E.D. Mich,, filed Sept. 10, 2017)

In 2015, Customs and Border Protection (CBP) stopped Anas Elhady, a naturalized citizen living in Michigan who was returning to the United States from Canada. CBP detained him for six hours at the Ambassador Bridge Facility, where officers left him in a freezing cold cell without his outerwear.

Mr. Elhady sued several CBP officers in September 2017, seeking monetary damages under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). On February 10, 2020, the district court granted motions for summary judgment for all of the defendants except one, Officer Blake Bradley. Bradley appealed to the Sixth Circuit.

On November 19, 2021, the court of appeals reversed the district court’s denial of summary judgment and held that this case presented a new Bivens context under Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020), because it implicated national security and raised questions reserved for the political branches. The court of appeals rejected Mr. Elhady’s argument that it lacked jurisdiction to consider the issue on interlocutory appeal and that Bradley had waived the issue by failing to raise the availability of Bivens on appeal. The appeals court maintained that they held jurisdiction over the Bivens issue on interlocutory appeal because it was necessary to evaluate the defense of qualified immunity. On January 25, 2022, the Sixth Circuit denied Mr. Elhady’s petition for rehearing en banc.

Documents:
Complaint
Second Amended Complaint
Motion to Dismiss
Summary Judgment Order
Defendant-Appellant’s Opening Brief
Plaintiff-Appellee’s Opposition Brief
Defendant-Appellant’s Supplemental Brief
Plaintiff-Appellee’s Supplemental Brief
Sixth Circuit Decision

Counsel:
Council on American-Islamic Relations (CAIR)

Contact:
Justin Sadowsky | jsadowsky@cair.com
Lena Masri | lmasri@cair.com
Gadeir Abbas | gabbas@cair.com

State of Washington v. Greyhound Lines, Inc.

State of Washington v. Greyhound Lines, Inc., No. 20-2-01236-32 (Spokane Cnty. Sup. Ct., consent decree filed Sept. 26, 2021)

In April 2020, the Attorney General of Washington (Bob Ferguson) filed a lawsuit against Greyhound Lines challenging its practice of allowing U.S. Customs and Border Protection (CBP) agents on its buses to conduct warrantless and suspicionless immigration sweeps. Greyhound failed to warn customers of the sweeps, misrepresented its role in allowing the sweeps to occur on its buses, and subjected passengers to unlawful discrimination based on race, color, or national origin. The case was set for trial on September 27, 2021.

On September 26, 2021, the parties filed a consent decree which requires Greyhound to pay $2.2 million and to enact a number of corporate reforms to end its unlawful conduct. For example, Greyhound must establish and implement a clear policy that denies CBP agents permission to board its buses without warrants or reasonable suspicion in the state of Washington. The Attorney General has stated that the $2.2 million will be used to provide restitution to those passengers who were detained, arrested, or deported as a result of the immigration sweeps on Greyhound buses.

Documents:

Counsel: Lane Polozola, Yesica Hernandez, Brian J. Sutherland, and Emily C. Nelson (Washington State Attorney General’s Office)

Contact: Yesica Hernandez | Washington State Attorney General’s Office | civilrights@atg.wa.gov

Villalobos et al. v. United States

Villalobos et al. v. United States, No. 0:21-cv-02233 (D. Minn., filed Oct. 11, 2021)

Plaintiff Kerlin Sanchez Villalobos and her younger sister are suing the United States for the severe abuse and mistreatment they suffered while they were held in immigration custody. In June 2019, they entered the United States seeking safety from violence and persecution in Honduras, and were arrested by CBP agents. At the time, Kerlin was sixteen and her sister was fourteen. After their arrest, Kerlin and her sister were taken to a CBP detention facility in Clint, Texas and held there for nine days, after which they were forcibly separated and transferred to different group homes operated by Southwest Key Programs, Inc.

At the facility in Clint, Texas, CBP officers and government contractors mistreated Plaintiffs in a variety of ways, including physically assaulting them, depriving them of adequate food and water, denying them access to necessary medical care and medication, forcing them to watch the mistreatment of other children, and forcing them to care for younger children. Officers forced the girls to lift their shirts to be searched in a non-private setting, and threw away medicine one of the sisters brought with her to treat a recent injury. According to the siblings, officers ordered them to control the younger children who were crying because they were separated from their families. One of the sisters was injured by an officer who kicked her repeatedly. Additionally, the Clint facility was reported to have subpar sanitation for the number of children held there, and an MSNBC video from 2019 revealed children caged like animals. According to an ABC news report, staff had no training on caring for children.

In spite of initially assuring the sisters they would not be separated, officers traumatically separated the sisters without explanation and transported them to separate group homes. Despite prior reports of abuse at the Texas group homes where the sisters were held, the U.S. government has continued to place children there. In total, Kerlin spent twenty days in detention, and her sister spent twenty-nine days. Plaintiffs seek compensatory damages for negligence, negligent undertaking, battery, and assault under Texas law via the Federal Tort Claims Act.

Plaintiffs filed their complaint in October 2021. The U.S.A. answered in January 2022. The case is now in discovery.

Documents:

Counsel: Ian Bratlie,Teresa Nelson, Clare Diegel, and Paul Dimick (ACLU of Minnesota); Edgar Saldivar, Bernardo Rafael Cruz, and Andre Segura (ACLU of Texas); Jillian Kornblatt, Michael D. Stinson (Dorsey & Whitney LLP)

Contact: Claire Diegel | ACLU of Minnesota | 612-274-779 | cdiegel@aclu-mn.org

Doe et al. v. Mayorkas et al.

Doe et al. v. Mayorkas et al., No. 1:21-cv-11571-IT (D. Mass., filed Sept. 24, 2021)

Plaintiffs Jane Doe and her two 10-year-old sons are citizens of Haiti who entered the United States in September 2021 to seek asylum. They were among the thousands of Haitians forced to remain for days under the Del Rio International Bridge. Later, Plaintiffs were transported to San Antonio, Texas to be processed for expulsion pursuant to Title 42. As of September 24, 2021, they remained in CBP custody, and their expulsion under Title 42 was believed to be imminent.

Plaintiffs’ complaint asserts that the U.S. government’s Title 42 expulsion policy violates the Immigration and Nationality Act (INA), Title 42, the Administrative Procedure Act, the U.S. Constitution (equal protection and due process), and the United States’ nonrefoulement duty under international law. Plaintiffs request, among other things, that the court enjoin their expulsion under Title 42 and order Defendants to process their asylum claims in accordance with the INA.

As of November 2021, the government released the clients into removal proceedings and paroled them. Plaintiffs then voluntarily dismissed this case.

Documents:

Petition for Writ of Mandamus and Complaint

Counsel: Amy Maldonado | Law Office of Amy Maldonado

Bridget Cambria | Cambria & Kline, P.C.

Susan B. Church | Demissie & Church

Contact: Amy Maldonado | 517-803-2870 | amy@amaldonadolaw.com

Goldhar v. U.S. Customs and Border Protection et al.

Goldhar v. U.S. Customs and Border Protection et al., No. 1:21-cv-23197-BB (S.D. Fla., filed Sept. 3, 2021)

Plaintiff Gaby Or Goldhar, a citizen of Israel, challenges U.S. Customs and Border Protection (CBP)’s wrongful cancellation of her B-2 visitor visa in 2019. When entering the United States through the Miami International Airport on July 15, 2019, a CBP officer cancelled Ms. Goldhar’s B-2 visa based on an erroneous determination that she had accrued unlawful presence during her prior visits to the United States and thus was inadmissible. Ultimately, CBP acknowledged its mistake and admitted Ms. Goldhar into the United States after waiving the visa requirement on a Form I-193. However, because the visa in her passport was physically invalidated, Ms. Goldhar has been unable to travel to the United States ever since. Although she was invited to apply for a replacement visa, the COVID-19 pandemic has significantly restricted U.S. consular operations abroad, resulting in extremely long wait times for visa processing. Ms. Goldhar wishes to attend her grandson’s bar mitzvah in Florida in January 2022, but she likely will be unable to obtain a new B-2 visa by then.

Ms. Goldhar claims that CBP’s wrongful cancellation of her visa violated the Administrative Procedure Act (APA), as it constituted agency action that was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). Among other things, she requests that the district court order CBP to “immediately take such correction action as may be appropriate, including, but not limited to, reversing the cancellation of [her] B-2 visa” and “treating it as a valid entry document through its stated expiration date.”

On November 8, 2021, Plaintiff filed an expedited motion for summary judgment. Defendants filed motions to dismiss for lack of jurisdiction and a response to the expedited motion in November. Parties reached a settlement on December 2, 2021 and the case was administratively closed.

Documents:

Complaint

Counsel: David Elliott Gluckman | McCandlish Holton PC

Tammy Jean Fox-Isicoff | Rifkin & Fox-Isicoff, P.A.

Contact: David Gluckman | 804-775-3826 | dgluckman@lawmh.com