Category Archives: All Cases

ACLU New Mexico and ACLU Texas Issue Letter Urging Independent Investigations and Transparency of CBP’s Vehicle Pursuit Policy and Border Patrol’s Deadly Pursuit of a Vehicle in New Mexico

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On August 25, 2021, the ACLU of New Mexico and the ACLU of Texas filed a letter with the CBP Acting Commissioner urging CBP to ensure independent investigations of an August 3, 2021 deadly vehicle pursuit by Border Patrol. Border Patrol’s vehicle pursuit resulted in two deaths and the hospitalization of eight other individuals. The letter also requested the public release of CBP’s current written vehicle pursuit policy, all training materials, and any other policy related to the August incident. Finally, the letter recommended that the Department of Homeland Security’s Office of Inspector General review CBP’s written policy and its implementation.

On January 11, 2023, CBP released an updated Emergency Driving and Vehicular Pursuits Directive that aligned CBP’s policy with those best practices of other law enforcement agencies in the United States. The updated policy will take effect May 2023.

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P.J.E.S. v. Wolf and J.B.B.C. v. Wolf

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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)

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. On October 17, 2022, the D.C. Circuit issued an order terminating the abeyance, vacating the preliminary injunction, and remanded the case to the district court for a determination of whether all or part of the case has become moot. Defendants filed a motion to dismiss the case as moot on November 22, 2022. The court ordered the motion to dismiss held in abeyance on January 25, 2023. On November 6, 2023, Plaintiff stipulated to dismissal of the case.

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).

Documents:

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

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

Press:

Wilbur P.G. v. United States

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Wilbur P.G, et al., v. United States, No. 4:21-cv-04457 (N.D. Cal., filed June 10, 2021)

Plaintiffs are three families who were separated at the Arizona border in May 2018 under the Department of Justice’s Zero Tolerance policy. The parents were separated from their children while in Customs and Border Protection (CBP) custody, under the guise of pursuing criminal prosecutions against the parents. Two parents were never criminally prosecuted, while the other parent was prosecuted for illegal entry—a misdemeanor—and served a three-day sentence in criminal custody.

After separating the children from their parents, CBP officers transferred the plaintiff children to the custody of the Office of Refugee Resettlement (ORR). The families were separated for weeks. While detained, one parent sustained lasting physical injuries after being denied medical attention. One of the children was sexually abused while in ORR custody.

The families sued under the Federal Tort Claims Act to recover damages caused by the separation itself, as well as the physical and emotional injuries suffered by various plaintiffs during their time in detention.

Plaintiffs filed suit on June 10, 2021 in the Northern District of California. On January 5, 2022, Defendant United States filed a motion to transfer the case to the District of Arizona. Defendants also moved to dismiss the case for lack of subject matter jurisdiction. On May 10, 2022, the district court denied Defendant’s motion to transfer and motion to dismiss. On May 24, 2022, Defendant filed its answer to the complaint; Defendant later amended the answer on July 29, 2022. After some pre-trial briefing, in July 2024 the parties submitted a joint notice of conditional settlement and stipulation to stay litigation.

Documents:

Counsel: Lawyers’ Committee for Civil Rights of the San Francisco Bay Area | Keker, Van Nest & Peters

Contact: Victoria Petty | vpetty@lccrsf.org

Press:

Note: Other family separation cases filed in California include:

  • I.T. v. United States, 4:22-cv-5333 (N.D. Cal., filed Sept. 20, 2022);
  • J.R.G. and M.A.R. v. United States, 4:22-cv-5183 (N.D. Cal., filed Sept. 12, 2022);
  • Rodriguez v. United States, 2:22-cv-2845 (C.D. Cal., filed Apr. 28, 2022);
  • A.F.P. v. United States, 1:21-cv-780 (E.D. Cal., filed May 14, 2021);
  • Nunez Euceda v. United States, 2:20-cv-10793 (C.D. Cal., filed Nov. 25, 2020).

Other family separation cases filed in district courts in other states:

  • F.C.C. v. United States, 2:22-cv-5057 (E.D.N.Y., filed Aug. 25, 2022);
  • W.P.V. v. Cayuga Home for Children, Inc. and United States, 1:21-cv-4436 (S.D.N.Y., filed May 17, 2021);
  • C.D.A. v. United States, 5:21-cv-469 (E.D. Pa., filed Feb. 1, 2021);
  • R.Y.M.R v. United States, 1:20-cv-23598 (S.D. Fla., filed Aug. 28, 2020);
  • D.J.C.V. v. United States, 1:20-cv-5747 (S.D.N.Y., filed July 24, 2020).

For a list of District of Arizona family separation cases, consult the entry on C.M. v. United States.

Letters Protesting CBP’s Practice of Confiscating Sikh Individuals’ Turbans During Asylum Processing

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On August 1, 2022, the ACLU of Arizona, along with the ACLU Program on Freedom of Religion and Belief, filed a letter with Customs and Border Protection (CBP) Commissioner Chris Magnus asking for an investigation and cessation of the Yuma Border Patrol Sector’s practice of confiscating religious headwear from Sikh individuals seeking asylum. The letter argued that such confiscations violate individuals’ religious freedom rights, federal law, and CBP’s own non-discrimination policy.

The ACLU of Arizona, ACLU Program on Freedom of Religion and Belief, and Sikh Coalition, along with over 160 other organizations sent a second letter to Department of Homeland Security Secretary Alejandro Mayorkas on August 22, 2022.  The letter requested DHS investigation on the broader property confiscation issue to include all religious articles of faith, personal belongings, and access to religious-compliant meals.

Counsel: ACLU of Arizona | ACLU Program on Freedom of Religion and Belief

Contact: Vanessa Pineda, vpineda@acluaz.org | Noah Schramm, nschramm@acluaz.org

Press:

Clark v. Wolf

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Clark v. Wolf, No. 3:20-cv-1436 (D. Or., filed Aug. 24, 2020)

In July 2020, Customs and Border Protection (CBP) officers—in concert with other federal and local law enforcement officers—used violent crowd control devices on nonviolent protestors during ongoing Black Lives Matter protests in Portland, Oregon. This included the use of tear gas, pepper-spray balls, rubber bullets, and flashbangs, which disoriented and injured many protestors.

Four individuals who had participated in the protests brought a putative class action against federal law enforcement officers, seeking damages under Bivens for the physical and mental harms they had suffered from the defendants’ actions. Additionally, the plaintiffs sought a declaratory judgment that the use of tear gas on peaceful protestors violates the First Amendment.

On February 3, 2022, the district court dismissed the plaintiffs’ damages claims on the basis that special factors counseled against the extending of Bivens to the context of plaintiffs’ claims. A rule 54(b) judgment issued, which plaintiffs appealed to the Ninth Circuit.

On June 27, 2022, plaintiffs voluntarily dismissed the case and the pending appeal.

Documents:

Counsel: Pickett Dummigan McCall LLP | Elliot & Park PC | Sugerman Law Office | Harmon Johnson LLC | Chase Law PC | People’s Law Project | Piucci Law | Michelle R. Burrows PC

A.F.P. and J.F.C. v. United States of America

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A.F.P. and J.F.C. v. United States of America, No. 1:21-cv-780 (E.D. Cal., filed May 14, 2021)

Plaintiff A.F.P. and his fifteen-year-old son J.F.C., both citizens of Honduras, approached Border Patrol agents near McAllen, Texas to seek asylum. Instead, Border Patrol agents separated J.F.C. from his father and detained both in a holding facility, often referred to as a hielera or “ice box” for its freezing cold temperatures. The hielera was cold and cramped, and the food provided was frozen and expired.

The two were only permitted to speak to each other for 30 minutes per day. Three days after the two were taken into custody, A.F.P. was charged with illegal entry and taken to federal criminal court. During A.F.P.’s court hearing, CBP and ICE officers designated J.F.C. as an unaccompanied minor, transferred his custody to the Office of Refugee Resettlement (ORR) and moved him to a facility in New York. When A.F.P. returned to the detention center, his son was gone. The officers did not advise A.F.P. of the reason or destination of his son’s transfer.

In New York, J.F.C. resided at the Children’s Village facility, where he was not allowed to communicate with his father, was denied medical care, and was subject to emotional abuse. As a result of this neglect, J.F.C. suffers from hearing loss from an untreated ear infection and severe memory problems because of the trauma he experienced.

During this time, A.F.P. was held in ICE detention in Texas, where he had an interview with an asylum officer and was told he had a credible asylum case. After officers at the detention center put A.F.P. in touch with a notary public who led him to believe that pursuing his asylum case would keep him from reuniting with his son, A.F.P. withdrew his asylum application at his hearing in front of an immigration judge. He was then transferred to maximum security prisons and deported a month later. He was separated from his son for almost fifteen months. A human rights organization later helped A.F.P. lawfully re-enter the U.S. and reunite with J.F.C.

Plaintiffs filed suit against the federal government in the Eastern District of California, seeking damages under the Federal Tort Claims Act (FTCA) for intentional infliction of emotional distress, abuse of process, negligence as to family separation, and negligence. Defendant United States moved to dismiss the claims and moved to transfer the case to the Southern District of Texas. On July 11, 2022, the court dismissed Plaintiffs’ negligence cause of action regarding J.F.C.’s time in ORR custody as barred by the independent contractor exception to the FTCA’s waiver of sovereign immunity.  On July 26, 2022, Defendant filed its answer to the remaining claims. As of February 2023, discovery is currently underway.

On December 11, 2023, the court dismissed the case after the parties jointly stipulated to dismiss with prejudice.

Documents:

Counsel: Morgan, Lewis & Bockius L.L.P.

Johnson v. United States of America

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

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

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

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

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

Documents:

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

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

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

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

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

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

Documents:

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

Anibowei v. Morgan

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

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

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

On January 17, 2020, Anibowei appealed the district court’s decision, asking the Fifth Circuit to rule on whether searching a cellphone without exigent circumstances or a warrant violates the Fourth Amendment, even if said search is conducted at the U.S. border. On December 3, 2020, the Fifth Circuit heard oral argument in this case. On June 19, 2023, the Fifth Circuit released its decision affirming the denial of the preliminary injunction, finding that Anibowei did not show a substantial risk of irreparable harm. The court also declined to review the district court’s denial of Anibowei’s motion for summary judgment for lack of jurisdiction, and so did not rule on the question of whether the search violated the Fourth Amendment.

On August 30, 2023, Anibowei filed a petition for writ of certiorari with the Supreme Court, which was denied on January 8, 2024.

Documents

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

NYLAG v. DHS

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

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

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

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

Defendants’ production of documents responsive to the FOIA request is ongoing, and they continue to meet and confer with NYLAG to narrow NYLAG’s scope of objections to the production.

Counsel: New York Legal Assistance Group | Cooley LLP

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

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