Category Archives: All Cases

Frias v. Torrez et al.

Posted on by

Daniel Frias v. Torrez et al., No. 3:12-CV-1296-B (N.D. Tex., filed Apr. 26, 2012) sub nom. De la Paz et al. v. Coy et al., No. 15-888 (U.S.)

Daniel Frias was driving a four-door pick-up truck on a highway outside of Abilene, Texas with a white colleague as a passenger when a Border Patrol agent stopped his vehicle.  It is undisputed that he had not committed any driving violations.  The Border Patrol agent justified the stop solely on the basis that he allegedly saw shapes in the back seat that appeared to be bodies, and that the route was a known one for smuggling.  Frias disputed that there was anything in the back seat at all.  Upon being stopped, Frias stated that the agent asked him for identification, that he produced his valid New Mexico driver’s license and that he was handcuffed almost immediately after this.  His white colleague was asked for his driver’s license and then not asked any additional questions.  Frias claims that the stop violated the Fourth Amendment to the United States Constitution and was motivated solely by his Hispanic appearance, and also that the agent committed the torts of false arrest and assault.

On October 31, 2013, the district court denied the government’s motion for summary judgment with respect to the constitutional claims against the individual Border Patrol agent and the tort claims against the United States.  The court found that the dispute as to the facts prevented it from granting the government’s motion.  Specifically, if there was nothing in the back seat of the truck, as Frias maintained, then the stop – which took place hundreds of miles from the border and involved no other suspicion of wrongdoing – would not have been justified under the Fourth Amendment.  For similar reasons, the court could not grant the United States’ motion for summary judgment on the false imprisonment and assault tort claims.

On December 30, 2013, the defendant Border Patrol agent filed an interlocutory appeal to the Fifth Circuit. The appeal raised two issues:

  1. Whether the district court improperly extended to a “new context” the remedy for unconstitutional law enforcement conduct first recognized in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); and
  2. Whether the agent was entitled to qualified immunity from suit.

The parties fully briefed these issues. The National Immigration Project of the National Lawyers’ Guild and the American Immigration Council submitted an amicus brief addressing the Bivens issue. Amici argued that the claims fell within Bivens’ core holding and purpose; the Immigration and Nationality Act was not a remedial or compensatory statute; there were no special factors counseling against a Bivens remedy in a case such as this; and the defendant’s position would create virtual immunity for unconstitutional conduct by immigration agents.

After hearing oral argument on September 3, 2014, the Fifth Circuit – in a consolidated opinion with De La Paz v. Coy – reversed the District Court on May 15, 2015.  The court held that a Bivens action was not available to redress the Border Patrol’s violation of the Fourth Amendment rights of an undocumented noncitizen. Notwithstanding the traditional Fourth Amendment claim presented, the court found that it presented a new “context” for a Bivens claim and refused to extend Bivens to this new context.  The court found that removal proceedings provided an alternative remedial scheme for the plaintiff. It also found that special factors cautioned against such an extension.

The Fifth Circuit, sua sponte, took a vote as to whether to rehear the case en banc. Only four judges voted in favor and on October 14, 2015, the court denied rehearing en banc. Three judges dissented from this denial in a strongly worded opinion which emphasized that this case fell squarely within the holding of Bivens.

In December 2015, the parties filed a joint motion for a stay pending decision on the then forthcoming petition for certiorari to the U.S. Supreme Court in both the instant case and De la Paz v. Coy et al.  The petition was filed in January 2016 (No. 15-888).

Briefing on the petition for writ of certiorari ended on June 1, 2016. On June 26, 2017, the Supreme Court denied the petition for writ of certiorari in De la Paz. Following the parties’ subsequent stipulation of dismissal, the district court dismissed the case on February 15, 2018.

Counsel: Mayer Brown LLP and De Mott, McChesney, Curtright & Armendáriz, LLP

Contact: David Armendáriz | 210.534.1844 | davida@dmcausa.com

Leonel Ruiz o/b/o E.R. v. U.S.

Posted on by

Leonel Ruiz o/b/o E.R. v. U.S., No. 1:13-cv-01241 (E.D.N.Y., filed Mar. 8, 2013)

On March 11, 2011, E.R., a four-year-old U.S. citizen, was detained by Customs and Border Protection following her arrival at Dulles Airport. E.R. was returning home to New York from a vacation in Guatemala with her grandfather, when her flight was diverted from JFK to Dulles airport due to bad weather. While E.R. was admitted with her U.S. passport, her grandfather was directed to secondary inspection due to an issue with his immigration paperwork. CBP detained E.R. with her grandfather for the next 20 plus hours, gave her only a cookie and soda during the entire time, and provided her nowhere to nap other than the cold floor.

Although CBP officers had the phone number of E.R’s parents, they failed to contact them for nearly 14 hours, and repeatedly refused her grandfather’s requests to be allowed to call them. E.R.’s father was frantic with worry this entire time. When CBP eventually did contact E.R.’s father, the officer promised to send E.R. to JFK as soon as arrangements could be made to do so, but also asked for identifying information about her parents. Hours later, CBP called again, and this time claimed that CBP could not return E.R. to “illegals.” The CBP officer gave E.R.’s father an hour to decide whether she should be sent back to Guatemala or to an “adoption center” in Virginia. Fearing that he would otherwise lose custody of his daughter, E.R.’s father decided that the only viable option was for her to return to Guatemala. CBP officers put E.R. and her grandfather on the next flight to Guatemala. E.R. was finally able to return home nearly three weeks later, after her father hired a local attorney to fly to Guatemala to retrieve her.

Back in the United States, E.R. was diagnosed with post-traumatic stress disorder by a child psychologist, who concluded that the PTSD was a result of her detention, her separation from her parents, and her perception that she had been deported because her father did not pick her up from the airport. E.R.’s father seeks damages on her behalf for her unlawful treatment.

In March 2013, the girl’s father filed a lawsuit on behalf of his daughter alleging that CBP officers at Dulles Airport in Virginia unlawfully detained a U.S. citizen child for more than twenty hours, deprived her of contact with her parents, and then effectively deported her to Guatemala.  On October 30, 2013, the government moved to dismiss the case on the basis that the actions of the CBP officers fell within the discretionary function exception of the FTCA, and that the court thus lacked subject matter jurisdiction. Alternatively, the government alleged that the case should be dismissed because the plaintiff had failed to state a claim upon which relief may be granted. The government also moved to transfer the case to the Eastern District of Virginia.  Counsel for the girl’s father opposed the motions.

On September 18, 2014, the court found that the CBP officers’ actions did not fall within the discretionary function exception. The court also found that CBP’s treatment of the girl violated the settlement agreement in Flores v. Reno regarding the detention of minors and CBP’s internal policies promulgated to comply with the Flores agreement.  However, the court granted the government’s request to change venue and transferred the case to the Eastern District of Virginia. In June 2015, the case settled for $32,500. Because the case involved a minor, the Court reviewed and approved the final settlement.

Press:

Counsel: Cleary Gottlieb Steen & Hamilton, LLP | American Immigration Council

Contact: Melissa Crow | AIC | 202.507.7523 | mcrow@immcouncil.org

FTCA Administrative Complaints of Four Women Denouncing Hieleras

Posted on by

FTCA Administrative Complaints of Four Women Denouncing Hieleras (filed Mar. 12, 2013)

On various dates in early 2013, four women were apprehended at the United States Texas border by Customs and Border Protection (CBP) agents.  After being apprehended, they were taken by CBP to what the agents called a “hielera,” which is Spanish for “icebox” or “icemaker.”  The hieleras are holding cells which agents often maintain at very low temperature.  The women all describe cells in which dozens of detainees were crowded together.  The cells had no beds, no chairs and each had only a single toilet and sink sitting in the open in the corner.  The women were kept in the cells for as long as 13 days.

The cells were so cold that the women’s fingers and lips turned blue.  They often were fed only one meal a day consisting of a single sandwich, which frequently was frozen. They received nothing to drink other than water, which they had to retrieve from the sink, using their hands or a single cup shared by everyone in the cell.  They were not given blankets or pillows.  Sleeping on the freezing cold floor was next to impossible.  Pregnant women and women with children were present in the cells.

Two of the women are diabetics whose prescriptions were confiscated at the time they were apprehended and never returned.  Both suffered medical problems after their medication was taken from them.  One of them passed out twice and finally was taken to the local hospital’s emergency room.

None of the women were afforded access to a shower or a bath.  Two of them had their menstrual cycles while detained but had no access to a bathroom for bathing.  There was no soap, no change of underwear, and no toothbrushes or toothpaste.

CBP agents regularly asked each of the women to sign documents printed in English, which the women could not read and did not understand.  Agents threatened that they would be kept in the holding cell until they signed these documents.  These agents also referred to them in demeaning ways, including calling them “bitches.”  Only one of the women was asked whether she had a fear of returning to her country of origin, as required, though several of them do.  Eventually, most of the women signed the documents in order to end their suffering in the cold holding cells.  Though they did not understand it at the time, they had signed expedited removal orders. Each of the women was subsequently transferred to a Texas jail and then to a detention facility in Florida while awaiting removal.  All the women filed administrative complaints for damages against the United States for the suffering they endured at the hands of CBP agents. One of these women, Alba Quinonez Florez, subsequently sued the U.S. government in federal court based on the abuses described above.

The government failed to respond to the administrative complaint within the six-month deadline. None of the claimants decided to file a federal complaint.

Counsel: Americans for Immigrant Justice

Contact: Jennie Santos | AI Justice | jsantos@aijustice.org

Press:

FTCA Administrative Complaint Regarding ‘Citizenship Checkup’ of US Citizen

Posted on by

FTCA Administrative Complaint Regarding ‘Citizenship Checkup’ of US Citizen (filed Mar. 12, 2013)

Lucy Rogers is a naturalized American citizen of Mexican descent. She lives in Chateauguay, NY with her husband and infant son. In her work as a medical interpreter for immigrant farmworkers, a program funded by the federal government, Ms. Rogers travels to New York farms to pick up farmworkers, drive them to medical appointments, and serve as their interpreter.

On December 28, 2011, Ms. Rogers was driving toward the U.S./Canada border with two farmworkers of apparent Latino descent when a Border Patrol agent pulled her over without any reasonable suspicion. The agent told Ms. Rogers that he was conducting a “citizenship checkup” and asked her and her passengers whether they were U.S. citizens. Ms. Rogers replied that she was a U.S. citizen and provided the agent with her New York State drivers’ license. Because the two farmworkers traveling with her were unable to immediately provide proof of their immigration status, Ms. Rogers was arrested and searched, under the suspicion that she was trafficking undocumented immigrants in an attempt to escape inspection upon entry into the U.S.

After several hours of being interrogated in a nearby station, CBP employees agreed that there was no proof that Ms. Rogers was engaged in trafficking. Yet they insisted that Ms. Rogers provide them with the GPS device that she kept in her car. She understood that, if she refused to do so, she would remain indefinitely in CBP custody. Consequently, she felt compelled to give it to them. Ms. Rogers did not receive it back for more than seven months. Now, after this frightening and humiliating experience, Ms. Rogers feels afraid that living near the border means that she could be stopped at any time without any reason— simply because of her race and ethnicity.

Ms. Rodgers filed an administrative complaint under the Federal Tort Claims Act.  CBP denied the complaint. The case is now closed.

Press:

Counsel: New York Civil Liberties Union | Kathryn O. Greenberg Immigration Justice Clinic, Benjamin N. Cardozo Law School

Contact: NYCLU Press Office | 212-607-3372
Rebecca Engel | rengel@nyclu.org
Betsy Ginsberg | betsy.ginsberg@yu.edu

Hernandez-Carranco v. U.S.A., et al.

Posted on by

Hernandez-Carranco v. U.S.A., et al., No. 3:12-CV-05186 (N.D. Tex., filed Dec. 19, 2012)

Josue Hernandez-Carranco, traveling with his father and a friend, stopped in the parking lot of a gas station to use the restroom when two Border Patrol (BP) agents approached and stood in front of the doors of his truck. The agent on Mr. Hernandez-Carranco’s side opened his door, grabbed him by his arm, and, in Spanish, demanded his papers. Mr. Hernandez-Carranco replied in English that he had papers, and showed the agent his valid Texas driver’s license. In Spanish, the agent told him that this was insufficient. He then handcuffed Mr. Hernandez-Carranco, pulled him out of the truck, and placed him in a BP van with several other men. Mr. Hernandez-Carranco was cold, but the agent refused his request to grab his jacket before he was put in the van.

Once on the road, an agent drove the van so recklessly that the men feared for their safety. When the agents finally agreed to a rest stop, they handcuffed the men in pairs and took them out of the van on the side of the road. The BP agents taunted and humiliated one man for his discomfort at having to relieve himself in this situation.

Mr. Hernandez-Carranco seeks damages for his unlawful seizure. At the time of arrest, the agents lacked any reasonable suspicion that Mr. Hernandez-Carranco, his father, or his friend had committed an unlawful act or were in the country illegally. They were over 200 miles from the border, had broken no traffic laws, and had taken no evasive or otherwise unusual action. The BP agents interrogated and arrested Mr. Hernandez-Carranco based solely on his Hispanic appearance.

On January 28, 2014, the parties met for a settlement conference, where they expressed interest in engaging in non-binding mediation with a private mediator or a settlement conference to be conducted by the Magistrate Judge. On April 1, 2014, both parties filed a stipulation of dismissal of all claims.

Counsel: De Mott, McChesney, Curtright & Armendáriz, LLP

Contact: David Armendáriz | 210.534.1844 | davida@dmcausa.com

Garcia De La Paz v. Coy et al.

Posted on by

Garcia De La Paz v. Coy et al., No. cv-00957 (W.D. Tex., filed Oct. 9, 2012) sub nom. Garcia de la Paz et al. v. Coy et al.  No. 15-888 (U.S.)

Alejandro Garcia De La Paz was riding home from work in Texas in the passenger seat of his co-worker’s truck, with two other coworkers riding in the backseat, when they were pulled over by two Border Patrol vehicles using their emergency flashers. The two agents approached the truck on both sides of the car and, without explaining the reason for the stop, asked whether the passengers were U.S. citizens. Upon hearing Mr. Garcia’s answer, the agent opened Mr. Garcia’s door, grabbed him by the arm, pulled him out of the truck, and brought him to his patrol car.

At the time of the stop, the agents were not patrolling the U.S. border and had no reasonable suspicion that the driver of the car, Mr. Garcia, or the other two passengers had violated or were violating any law. The agents also had no reason to believe that Mr. Garcia and his co-workers were noncitizens, had recently come from a border area, or were in violation of any immigration law. Instead, the agents stopped Mr. Garcia and his co-workers solely because of their Hispanic appearance.

Mr. Garcia seeks damages from the individual agents for the violation of his constitutional right to be free from unlawful searches and seizures, and from the United States for his unlawful arrest by the agents.

The district court denied the individual agents’ request for qualified immunity. The agents appealed this denial of qualified immunity to the Fifth Circuit, raising two issues:

  1. Whether the district court improperly extended to a “new context” the remedy for unconstitutional conduct by a federal agent first recognized in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); and
  2. Whether the agents were entitled to qualified immunity from suit.

The parties fully briefed these issues. The National Immigration Project of the National Lawyers’ Guild and the American Immigration Council submitted an amicus brief addressing the Bivens issue. Amici argued that the plaintiff’s claims fell within Bivens’ core holding and purpose; the Immigration and Nationality Act did not serve as an alternate remedial scheme that would compensate him for his injuries; there were no special factors counseling against a Bivens remedy in a case such as this; and the defendants’ position would create virtual immunity for unconstitutional conduct by immigration agents.

The Fifth Circuit heard oral argument on September 3, 2014. On May 15, 2015, it reversed the district court, holding instead that a Bivens action was not available to redress the Border Patrol agents’ violation of the Fourth Amendment rights of an undocumented noncitizen. Notwithstanding the traditional Fourth Amendment claim presented , the court found that it presented a new “context” for a Bivens claim. It refused to extend Bivens to this new context, finding that removal proceedings provided an alternative remedial scheme for the plaintiff. It also found that special factors cautioned against such an extension.

The Fifth Circuit, sua sponte, took a vote as to whether to rehear the case en banc. Only four judges voted in favor and on October 14, 2015, the Court denied rehearing en banc. Three judges dissented from this denial in a strongly worded opinion which emphasized that this case fell squarely within the holding of Bivens.

In January 2016, de la Paz filed a petition for writ of certiorari with the U.S. Supreme Court (No. 15-888).  Briefing on the petition for writ of certiorari ended on June 1, 2016.  The petition was initially distributed to the Court for its June 16, 2016 conference, but was rescheduled on June 6, 2016. On June 26, 2017, the Supreme Court denied the petition.

Counsel: Mayer Brown LLP and De Mott, McChesney, Curtright & Armendáriz, LLP

Contact: David Armendáriz| 210.534.1844 | davida@dmcausa.com

Mireles v. Riano, et al.

Posted on by

Mireles v. United States Customs and Border Protection Agent Riano in his individual capacity and the United States of America, No. 1:13-cv-00197 (S.D. Tex., filed Oct. 21, 2013)

Laura Mireles brought this lawsuit against the United States and a CBP officer for violations of her Fourth Amendment rights as well as Texas state law after the officer used unwarranted force and physical abuse before arresting her without any justification at the U.S.-Mexico border.

Ms. Mireles is small in stature, approximately 5’1” tall and 100 pounds, and has a visible malformation of her hands and feet. She has worked at a store on the U.S. side of an international bridge in Brownsville, near the CBP inspection station, since 2005. On November 5, 2012, Ms. Mireles crossed to the Mexican side of the bridge for roughly 15 minutes to pick up keys to lock the store. After she closed the store, CBP Officer Riano stopped Ms. Mireles and searched her car. Ms. Mireles did not interfere with the search and no illegal items were found. Yet the officer became agitated and reacted violently when Ms. Mireles asked him about his search of her handbag. He grabbed her with both hands and threw her onto the ground with such force that her jeans ripped open at the knee and she suffered a large knee wound as well as several cuts and abrasions on her elbows; the officer put his full weight—roughly double that of her own—on Ms. Mireles’s small frame and handcuffed her so tightly that the fire department later had to be summoned to cut the handcuffs from her wrists. Ms. Mireles, who was understandably confused, scared, and crying, asked the agent to explain what was happening. He responded by threatening to hit her if she didn’t “shut up.” After being treated by paramedics for her injuries, Ms. Mireles was released from custody without being charged with an offense.

Ms. Mireles first filed a formal administrative complaint with CBP in March 2013, seeking damages for the serious harm she suffered as a result of Officer Riano’s unlawful actions. That complaint was denied a little more than a month later without explanation. Ms. Mireles subsequently filed suit in federal district court, alleging claims against the United States under the Federal Tort Claims Act (FTCA) and constitutional claims against Officer Riano pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

The United States moved to dismiss, arguing that it had not waived sovereign immunity under the FTCA based on the customs-duty exception set forth in 28 U.S.C. § 2860(c). Officer Riano sought dismissal based on qualified immunity. Adopting the Magistrate Judge’s Report and Recommendation, the Court found that it lacked jurisdiction to consider the FTCA claims because the United States has not waived sovereign immunity under the customs-duty exception for “[a]ny claim arising in respect of …the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” 28 U.S.C. § 2860(c), The Court denied Officer Riano’s Motion to Dismiss, finding that Riano had “violated Mireles’s established constitutional rights,” and was thus not entitled to qualified immunity.

On May 3, 2016, the district court stayed the case pending the outcome of Simmons v. Himmelreich, a Supreme Court case dealing with whether the dismissal of a claim against the U.S. on the basis of an FTCA exception effectively bars separate Bivens actions against individual federal employees because of the FTCA’s judgment bar provision. The Supreme Court unanimously held in June 2016 that the FTCA’s judgment bar provision does not apply, and thus does not affect the claims against the individual defendants. On July 29, 2016, a magistrate judge issued a report and recommendation finding Defendant Riano was not entitled to qualified immunity and recommending the denial of his motion for summary judgment. On September 15, 2016, the court adopted the report and recommendation, and in October of 2016, the parties stipulated to dismiss the case.

Press:

Counsel: ACLU of Texas | Law Office of Gilberto Hinojosa & Associates, P.C. | University of Texas School of Law Civil Rights Clinic

Contact: Tom Hargis | ACLU of Texas | 832.291.4776 | media@aclutx.org (press)
Edgar Saldivar | ACLU of Texas | esaldivar@aclutx.org (legal)

Sanchez, et al. v. U.S. Office of Border Patrol, et al.

Posted on by

Sanchez, et al. v. U.S. Office of Border Patrol, et al. No. 12-00735 (W.D. Wash., filed Apr. 26, 2012)

In this class action, three U.S. citizen plaintiffs challenged U.S. Border Patrol’s practice of routinely stopping vehicles on Washington’s Olympic Peninsula and interrogating occupants about their immigration status based solely on the occupants’ racial and ethnic appearance, in violation of their constitutional rights. On behalf of themselves and others who have been subjected to similar stops, the plaintiffs asked the court to issue an injunction ordering Border Patrol to halt all such stops until its agents on the Peninsula have received training and demonstrated, through testing, that they understand the constitutional and other legal requirements necessary to stop and detain an individual.

In September 2013, the plaintiffs and Border Patrol reached a settlement in which Border Patrol acknowledged that its agents on the Olympic Peninsula must base vehicle stops away from the border on reasonable suspicion that an individual may be involved in violating the law.

All Port Angeles Border Patrol agents will be required to receive an additional training in Fourth Amendment protections, including those related to vehicle stops. The Fourth Amendment prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. In addition, for 18 months, Border Patrol will provide reports to plaintiffs’ attorneys documenting all stops in the Olympic Peninsula. Finally, Border Patrol also committed to complying with judicial decisions setting limits on stops and interrogations and to abiding by Department of Homeland Security guidance on the use of race or ethnicity in performing its duties.

Press:

Counsel: Northwest Immigrant Rights Project | American Civil Liberties Union of Washington State | Perkins Coie LLP

Contact: Matt Adams | NWIRP | 206.957.8611 | matt@nwirp.org

FTCA Administrative Complaint Regarding Woman Who Suffered Stroke While in CBP Custody

Posted on by

FTCA Administrative Complaint Regarding Woman Who Suffered Stroke While in CBP Custody (filed Mar. 12, 2013)

Ms. Takem-aishetu is a 63-year-old woman who has lived in New York for eight years.  She works as the primary caregiver of a 96-year-old disabled widow, supports her orphaned grandson, and always pays her taxes.  She is a devout religious woman who has no criminal record.  In March 2011, Ms. Takem-aishetu was returning home from a cousin’s funeral in Minnesota when her bus made a routine stop in Toledo, Ohio.  There, a Border Patrol (BP) agent boarded the parked bus, a gun visible in his holster, and questioned her about her immigration status. Ms. Takem-aishetu was arrested and placed in a BP vehicle where she was forced to wait for eight hours without food and water.  When she asked to use the bathroom, an agent escorted her at gunpoint and waited outside the open door.

Ms. Takem-aishetu finally was taken to the Sandusky Bay Processing Center close to midnight, where she spent another several hours in questioning and processing, her leg shackled to a bench.  Eventually, she was placed in a small cell with room only to sit.  After repeatedly asking agents to use the bathroom, Ms. Takem-aishetu could wait no longer and urinated on herself.  She was forced to sit all night in her urine-soaked jeans until being transferred to immigration detention at the county jail the next morning.

Ms. Takem-aishetu was extremely embarrassed about her treatment by BP and ICE agents.  She feared their threats to deport her, knowing that she would be abandoning her 96-year-old employer without care and her orphaned grandson without any financial support.  Suffering from intense stress and fear, Ms. Takem-aishetu fell ill while at the jail with nausea, dizziness, and weakness in the left side of her body.  At the hospital, doctors determined that she had suffered an acute stroke.

Ms. Takem-aishetu never had any health problems before her detention.  After an extensive medical workup, her primary care physician determined that she did not exhibit any of the risk factors for a stroke, and that it was directly connected to the tremendous stress of her detention and treatment.  Ms. Takem-aishetu continues to suffer from the lasting effects of the stroke, with near-constant pain, numbness, and partial paralysis on the left side of her body.  She relies on a cane to walk, and her speech is impaired; these changes have severely affected her way of life.  Ms. Takem-aishetu seeks damages for her mistreatment.

The government failed to respond to the administrative complaint within the six-month deadline. Ms. Takem-aishetu decided not to file a federal complaint.

Press:

Counsel: Kathryn O. Greenberg Immigration Justice Clinic, Benjamin N. Cardozo Law School

Contact: Zsuzsanna Toth | 212. 790. 0411 | toth@yu.edu

Betsy Ginsberg | 347. 683. 2387 | betsy.ginsberg@yu.edu

Askins and Ramirez v. DHS et al.

Posted on by

Askins and Ramirez v. Department of Homeland Security et al., Nos. 12-CV-2600 W BLM (S.D. Cal., filed Oct. 24, 2012) and 16-55719 (9th Cir., filed May 17, 2016)

This case is about preserving the fundamental First Amendment right to photograph and monitor publicly visible law enforcement activity and challenging CBP’s abusive behavior towards those who seek to exercise this right at or near ports of entry.

Ray Askins is a U.S. citizen and environmental activist. While standing on a public street in Calexico (inside the United States), he took photographs of the exterior of the Calexico Port of Entry building to illustrate a presentation he planned to give on vehicle emissions at ports of entry. Christian Ramirez is a U.S. citizen and human rights activist who, while standing on the U.S. side of the border, photographed male CBP officers improperly frisking female travelers at the San Ysidro Port of Entry.

When they took their photographs, both Mr. Askins and Mr. Ramirez were on the United States side of the border, in areas open to the public. The matters they photographed were publicly visible. In both cases, CBP officers detained, harassed, and threatened them, temporarily confiscated their cameras, and deleted their photographs. CBP officers also physically abused Mr. Askins.

This case seeks to prevent CBP from interfering with or otherwise suppressing the public’s lawful recording of federal public activities.

In September 2013, the district court denied in part and granted in part the government’s motion to dismiss. The government then filed a motion for clarification of the court’s order on the motion to dismiss. In April 2014, the district court granted in part and denied in part the government’s motion. In this order, the district court reaffirmed its First Amendment analysis in its September 2013 order on the government’s motion to dismiss. The court, however, ordered the parties to submit supplemental briefs relating to Plaintiffs’ Fourth Amendment claims. The parties filed supplemental briefs in late spring 2014.

In January 2015, the district court issued another order granting the government’s motion in part. This order addressed Plaintiffs’ Fourth Amendment claims, and invited Plaintiffs to file an amended complaint.

Plaintiffs did so; once more, the government moved to dismiss, and Plaintiffs opposed.

In March 2016, the district court dismissed Plaintiffs’ first amended complaint. Plaintiffs appealed to the Ninth Circuit; they filed their opening brief on September 26, 2016. The CATO Institute and the Reporters Committee for Freedom of the Press filed amicus briefs in support of Plaintiffs-Appellants. Appellate briefing was completed in February 2017. In February 2018, the Ninth Circuit heard oral argument on Plaintiff’s appeal to S.D. Cal’s dismissal of the first amended complaint.

On August 14, 2018, the Ninth Circuit issued its opinion and reversed the district court’s ruling, ordering the case to be remanded for discovery. The government filed an answer on March 8, 2019, and the parties spent several months in active discovery. In September 2020, a final settlement was entered and the case was dismissed.

If you would like to understand your rights under the settlement, please visit: https://www.aclu.org/news/free-speech/you-have-the-right-to-record-law-enforcement-officers-including-at-the-border.

If you believe your First Amendment rights have been violated while photographing or recording at a land Port of Entry in the United States, please submit an intake with the ACLU using this online form: https://action.aclu.org/webform/help-us-hold-cbp-officials-accountable.

Counsel: ACLU of San Diego & Imperial Counties; Arnold & Porter Kaye Scholer LLP; First Amendment Coalition

Contact:  David Loy | First Amendment Coalition | dloy@firstamendmentcoalition.org