Category Archives: All Cases

Doe et al. v. Mayorkas et al.

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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.

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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

Djumaev v. U.S. Federal Bureau of Investigation et al.

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Djumaev v. U.S. Federal Bureau of Investigation et al., No. 1:21-cv-05016-DG-MMH (E.D.N.Y., filed Sept. 8, 2021)

Plaintiff Akram Djumaev, a lawful permanent resident (LPR) of the United States, commenced this action against various federal agencies, including U.S. Customs and Border Protection (CBP), alleging violations of his rights under the Fourth and Fifth Amendments, the Immigration and Nationality Act (INA), and the Administrative Procedure Act (APA). Mr. Djumaev is a resident of Chicago and a citizen of Uzbekistan who has been a lawful permanent resident since 2013. In January 2016, he traveled to Uzbekistan for the purpose of visiting family and getting engaged. After going through the security checkpoint at John F. Kennedy International Airport in New York, four law enforcement agents approached him and interrogated him, specifically asking whether he knew anyone in Turkey, Syria, or Afghanistan. Without consent or warrant, the agents then searched and confiscated his smartphone without providing any reason for doing so. After an hour of questioning, Mr. Djumaev was allowed to board the plane to Uzbekistan. However, the agents did not return his smartphone to him. In fact, to date, they still have not done so.

When Mr. Djumaev attempted to return home to the United States in March 2016, the airline attendant at the airport informed him that he would not be able to board—presumably because he had been placed on the U.S. government’s “No Fly List.” That same day, Mr. Djumaev contacted the U.S. embassy in Tashkent, Uzbekistan, and filed a Traveler Redress Inquiry Program (TRIP) complaint with DHS shortly afterward.

Two months later, Mr. Djumaev was instructed to visit the embassy for an interview. When he arrived, he was taken to a windowless room and interrogated by Federal Bureau of Investigation (FBI), Department of Homeland Security (DHS), and State Department agents. The agents allegedly stated that Mr. Djumaev was a “threat to the U.S.” without any explanation or justification for that claim. They also suggested—again, without providing any basis—that they knew he had terrorist affiliations and had been involved in criminal activity. The agents repeatedly coerced Mr. Djumaev to admit that he was guilty and threatened that he would be arrested and imprisoned upon returning to the United States. After about two hours of interrogation, the agents told him that he had only two choices: either return to the United States. and be imprisoned, or agree to sign a form stating that he would not return to the United States. The agents handed him a pre-filled Form I-407, Record of Abandonment of Lawful Permanent Resident Status. Although Mr. Djumaev had no desire whatsoever to relinquish his LPR status, he signed the form, believing that he had no other choice. During this process, the agents never informed Mr. Djumaev of his rights.

After that incident, Mr. Djumaev attempted twice to return to the United States, but he was denied boarding each time. Although LPRs placed on the No Fly List are eligible for a one-time waiver to return to the United States, the embassy has refused to issue such a waiver to Mr. Djumaev. Later, Mr. Djumaev retained counsel and challenged the validity of the I-407, but the government has not provided any response. As a result of Defendants’ actions, Mr. Djumaev has been unable to return to the United States for over five years and has suffered significant financial and emotional harms.

Mr. Djumaev’s complaint alleges that Defendants violated his due process rights under the Fifth Amendment by placing him on the No Fly List without adequate notice or opportunity to challenge the decision, as well as by coercing him to abandon his LPR status. The complaint further asserts that Defendants’ actions violated his rights under the INA (depriving him of LPR status and excluding him from the United States without charge or a removal hearing) and the Fourth Amendment (unlawful search and seizure of his smartphone and its private contents). Finally, Mr. Djumaev claims that Defendants’ actions were “arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law,” in violation of the APA. He seeks declaratory and injunctive relief, and requests, among other things, that the district court issue an order voiding the improper I-407 form and directing Defendants to restore his LPR status. The parties agreed to a settlement and stipulated to dismiss the case on January 24, 2023.

Documents:

Counsel: Jamila Marjani Hall & Sharnell S. Simon | Jones Day, Atlanta
Ramzi Kassem & Naz Ahmad | Main Street Legal Services, Inc.

Khalid v. Garland, et al.

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Khalid v. Garland et al., No. 1:21-cv-02307-CRC (D.D.C., filed Aug. 31, 2021); No. 24-5091 (D.C. Cir., filed April 17, 2024)

Plaintiff Saad Bin Khalid brought this action for declaratory and injunctive relief against various federal agencies, including U.S. Customs and Border Protection (CBP), claiming that the U.S. government has wrongfully placed him on its “No Fly List” which indefinitely bars him from flying to, from, or within the United States.

Mr. Khalid is a 27-year-old U.S. citizen of Pakistani descent. He was first designated by the U.S. government as a “known or suspected terrorist” in 2012, when he was still a minor. As a result, Mr. Khalid has been subject to multiple interrogations and intrusive searches by CBP and Federal Bureau of Investigation (FBI) officers. He learned that he had been placed on the No Fly List in 2019, when he tried to return to the U.S. from Karachi, Pakistan, but was prohibited from boarding his flight. He was unable to return to the U.S.—his home country—for several years due to his placement on the No Fly List. Mr. Khalid claims that the U.S. government has failed to provide any reason or justification for placing him on the list, or a fair process for challenging that placement.

The complaint alleges violations of Mr. Khalid’s rights under the Fifth Amendment (substantive and procedural due process), the First Amendment (retaliation for refusing to acquiesce to interrogations), the Religious Freedom Restoration Act (burden on his exercise of religion), and the Administrative Procedure Act. Mr. Khalid seeks a declaratory judgment that Defendants have violated his rights, as well as an injunction which, among other things, requires Defendants to remove Mr. Khalid from any watchlist or database that burdens his ability to enter the United States.

In January 2022, Defendants moved to suspend the complaint response deadline, which Plaintiff opposed. On February 2, 2022, the court granted Defendants a 90-day stay of proceedings. On May 5, 2022, the stay was lifted, and Plaintiff filed an amended complaint on June 29, 2022. Defendants moved to dismiss for lack of jurisdiction on July 13, 2022. Plaintiff moved for a preliminary injunction on September 13, 2022, which was denied on October 7, 2022.

On March 16, 2023, the court granted in part and denied in part the motion to dismiss. The court dismissed for lack of jurisdiction Plaintiff’s challenge to the TSA Administrator’s decision to place him on the No Fly List, finding that such a claim must be brought in a circuit court of appeals under 49 U.S.C. § 46110. The court held that it had jurisdiction over Plaintiff’s challenge to his placement on the broader terrorism watch list.

On April 5, 2023, Plaintiff filed a motion asking the court to certify its order for interlocutory review. In the alternative, Plaintiff asked the court to transfer his No Fly List claims to the D.C. Circuit to avoid the 60-day deadline in 49 U.S.C. § 46110. On May 25, 2023, the court found no grounds for an interlocutory appeal and transferred the dismissed claims to the D.C. Circuit. Defendants moved to dismiss the amended complaint for lack of subject matter jurisdiction and failure to state a claim on August 10, 2023. Briefing concluded on October 20, 2023. On March 27, 2024, the court granted Defendants’ motion to dismiss for lack of jurisdiction. Plaintiff appealed to the D.C. Circuit Court, and briefing is complete. Oral argument was held on October 10, 2025, and the parties await an opinion from the court of appeals.

Documents:

Counsel: Council on American-Islamic Relations

Contact: Gadeir Abbas | gabbas@cair.com | 202-742-6420

State of Texas and State of Louisiana v. United States

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State of Texas and State of Louisiana v. United States, No. 6:21-cv-00016 (S.D. Tex., filed Apr. 6, 2021); 21-40618 (5th Cir., filed Aug. 20, 2021); 22-40367 (5th Cir., filed Jun. 23, 2020)

On April 6, 2021, the State of Texas and the State of Louisiana commenced this action seeking to enjoin the enforcement of interim immigration enforcement priorities outlined in two memoranda issued by the Department of Homeland Security (DHS) (dated Jan. 20, 2021) and Immigration and Customs Enforcement (ICE) (dated Feb. 18, 2021). Noting DHS’s limited resources and inability to respond to all immigration violations, those memos announced that the agency would prioritize enforcement against individuals who are purported to pose a threat to national security, individuals apprehended at or near the border while attempting to unlawfully enter the United States on or after November 1, 2020, and individuals convicted of an “aggravated felony” and recently released from criminal detention. Texas and Louisiana argue that these enforcement priorities are unlawful because:

(1) They violate the mandatory detention statute, 8 U.S.C. § 1226(c), as well as § 1231(a)’s requirement that noncitizens with final orders of removal be detained during the removal period;
(2) They unconstitutionally direct executive officials not to enforce federal immigration laws, in contravention of Article II’s “Take Care” Clause;
(3) They constitute arbitrary and capricious agency action in violation of the Administrative Procedure Act (APA);
(4) DHS and ICE issued the interim enforcement priorities without following the notice-and-comment procedures required by the APA; and
(5) The memos were issued without adherence to the notice and consultation requirements contained in DHS’s cooperation agreements with Texas and Louisiana.

On August 19, 2021, the district court granted a nationwide preliminary injunction, concluding that the memos violated the Immigration and Nationality Act (INA) and the APA. It thus enjoined the government from following the interim priorities outlined in the challenged memos. The U.S. government then sought an emergency stay pending appeal as well as a temporary administrative stay. The Fifth Circuit granted a temporary administrative stay and heard oral argument on the motion for emergency stay pending appeal.

On September 15, 2021, the Fifth Circuit published its decision granting in part and denying in part the government’s motion to stay the preliminary injunction. While staying much of the injunction, the Fifth Circuit left narrow portions of the order in place. Specifically, the court declined to stay the injunction only insofar as it restrained the Biden Administration from using the Priorities Memos to guide the discretion of immigration officials in deciding whether to release two specific categories of immigrants: (1) those subject to the mandatory provision under 8 U.S.C. §§ 1226(c)(1) against whom immigration officials have issued a detainer and (2) those with final removal orders and subject to mandatory detention under § 1231(a)(2). The injunction is stayed pending appeal in all other respects.

On September 30, 2021, DHS completed its review of its policies and practices concerning immigration enforcement and issued a new memorandum establishing its revised enforcement priorities. The new guidance is set to become effective on November 29, 2021, thereby superseding the challenged interim priorities. In light of this development, the government filed a motion for abeyance on October 6, 2021, arguing that the case would likely become moot before the court reaches a decision on merits. The government requested that the court hold the case in abeyance until the new priorities go into effect, and also that the court stay the briefing schedule pending resolution of the motion.

Texas and Louisiana filed a response opposing the motion for abeyance as well as a petition for rehearing en banc, arguing that the panel had erred by misconstruing the relevant INA provisions and also by failing to evaluate whether the challenged memos violated the APA. The Fifth Circuit granted appellants’ unopposed motion to dismiss the appeal on February 11, 2022. In the district court proceedings, the States filed an amended complaint, alleging that DHS’s September 30 memorandum “suffers from the same legal infirmities” as its earlier memos. They also filed a motion to postpone the effective date of the recent memorandum, or, in the alternative, to preliminarily enjoin its enforcement.

The district court case went to trial on February 23, 2022. After the bench trial and post-trial briefing, the court issued a memorandum opinion and order on June 10, 2022, finding the plaintiff states have proven their first four counts by a preponderance of the evidence, and finding that the states did not prove Count V with regard to lack of consultation of the individual states. The final judgment vacated the September 30, 2021, memorandum. The government filed a notice of appeal to the Fifth Circuit on June 13, 2022. The Fifth Circuit denied a motion for stay pending appeal, and an application for a stay of judgment was filed with the Supreme Court on July 8, 2022. The Supreme Court denied the application for stay but construed the application as a petition for certiorari before judgment and granted the petition on July 21, 2022. The Fifth Circuit appeal was placed in abeyance pending the Supreme Court case.

On June 23, 2023, the Supreme Court decided that the states lacked standing to challenge deportation priorities, and in an 8-1 decision said that no precedent existed to support a federal court ordering the Executive Branch to alter arrest policies in order to make more arrests.

Documents:

Counsel: Brian M. Boynton, Jennifer B. Lowery, Sarah E. Harrington, H. Thomas Byron III, Michael Shih, and Sean Janda | U.S. Dep’t of Justice

Contact: Department of Justice

Press:

Uriel J. Garcia, Supreme Court rejects Texas effort to force Biden administration to change deportation policy, The Texas Tribune, Jun. 23, 2023.

United States v. Gustavo Carrillo-Lopez

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United States v. Gustavo Carrillo-Lopez, No. 3:20-cr-00026 (D. Nev., filed June 25, 2020); 21-10233 (9th Cir., filed August 20, 2021)

On June 25, 2020, Gustavo Carrillo-Lopez was indicted on one count of being a deported noncitizen present in the United States in violation of 8 U.S.C. § 1326(a) and (b) (Section 1326). On October 19, 2020, Mr. Carrillo-Lopez moved to dismiss his indictment on the grounds that Section 1326 violates the equal protection guarantee of the Fifth Amendment under Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). In his motion to dismiss, Mr. Carrillo-Lopez argued that because Section 1326 was enacted with a discriminatory purpose and has a disparate impact on Latinx persons, the law is unconstitutional; as such, the court must dismiss the indictment.

In his briefing, Mr. Carrillo-Lopez presented extensive historical evidence about the racist origins of Section 1326, including how it was first enacted at the height of the eugenics movement and how the “Undesirable Aliens Act of 1929” was conceived, drafted, and enacted by white supremacists out of a belief that the “Mexican race” would destroy the racial purity of the United States and that Mexicans were “poisoning the American citizen.” Although the statute was recodified in 1952, Mr. Carrillo-Lopez argued that the 1952 reenactment did not cleanse Section 1326 of its racist origins and was likewise motivated by discriminatory intent. Moreover, he argued that Section 1326 disproportionally impacts Mexican and Latinx defendants, given that the overwhelming number of Border Patrol arrests along the southern border are of Mexicans or people of Latinx origin.

On January 22, 2021, the court held oral argument on the motion to dismiss, and on February 2, 2021, the court held an evidentiary hearing. Following the hearing, Mr. Carrillo-Lopez submitted a post-hearing brief outlining for the court how the 1952 recodification of Section 1326 made illegal reentry penalties even harsher and expanded grounds for deportation. On August 18, 2021, the court issued an order granting Mr. Carrillo-Lopez’s motion to dismiss, finding that because Section 1326 was enacted with a discriminatory purpose, the law has a disparate impact on Latinx persons, and that because the government failed to show that Section 1326 would have been enacted absent racial animus, Section 1326 violates the Equal Protection Clause of the Fifth Amendment. As such, the court ordered the United States to dismiss Mr. Carrillo-Lopez’s indictment and release him from federal custody. 

On August 19, 2021, the United States filed a notice of appeal to the Ninth Circuit. The Ninth Circuit heard oral arguments on December 8, 2022. On May 22, 2023, the Ninth Circuit reversed the district court’s decision, finding that Mr. Carrillo-Lopez did not meet his burden to prove Section 1326 was drafted with discriminatory animus. Mr. Carrillo-Lopez petitioned for rehearing en banc, arguing that the panel opinion conflicts with Supreme Court precedent and misapplied the Arlington Heights test. On September 8, 2023, the Ninth Circuit denied the petition for rehearing en banc, and the case was remanded to the district court. Mr. Carrillo-Lopez filed a petition for writ of certiorari to the Supreme Court on December 12, 2023, which was denied on January 23, 2024.

Back at the district court, a jury trial was set for April 8, 2025. Mr. Carillo-Lopez then advised the court of a change of plea without benefit of a plea agreement, and a hearing on the change took place March 19, 2025. Mr. Carillo-Lopez pleaded guilty to count 1 of the indictment, and a sentencing hearing took place on June 17, 2025.

Documents:

Counsel: Federal Public Defender of Nevada

Contact: Lauren Gorman | Assistant Federal Public Defender | Lauren_Gorman@fd.org

Texas and Missouri v. Biden

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Texas & Missouri v. Biden, No. 2:21-cv-00067-Z (N.D. Tex., filed Apr. 13, 2021); 21-10806 (5th Cir., filed Aug. 16, 2021); 23-10143 (5th Cir., filed Feb. 14, 2023)

Within hours after President Biden’s inauguration, the Biden administration suspended new enrollments into the Trump administration’s Remain in Mexico program (also known as the “Migrant Protection Protocols” or “MPP”), which forcibly returned certain people seeking asylum at the southern U.S. border to Mexico, where they had to survive dangerous conditions during the pendency of their immigration proceedings in U.S. immigration courts. The program was notoriously a humanitarian disaster – as a result of the policy, people seeking asylum were murdered, raped, kidnapped, extorted, and compelled to live in squalid conditions. They also faced significant procedural barriers to meaningfully presenting their legal claims for protection.

On April 13, 2021, the states of Texas and Missouri (Plaintiffs) filed suit in the Northern District of Texas, arguing that the Biden administration’s January 2021 statement suspending new enrollments into MPP “functionally end[ed] the MPP” program and was arbitrary and capricious in violation of the Administrative Procedures Act (APA) given the “huge surge of Central American migrants, including thousands of unaccompanied minors, passing through Mexico in order to advance meritless asylum claims at the U.S. border.” Plaintiffs also argued that the Biden Administration’s decision to suspend MPP violated both the Constitution and an agreement between Texas and the federal government.

On May 14, 2021, Plaintiffs moved for a preliminary injunction. However, before the briefing was complete, the Department of Homeland Security (DHS) issued a new memo on June 1, 2021 formally terminating MPP. The court concluded that the June 1 memorandum mooted Plaintiffs’ original complaint (which had focused on the January 2021 pronouncement), but allowed Plaintiffs to amend their complaint and file a new motion seeking to enjoin the June 1 memo. Plaintiffs did so. On June 25, 2021, Defendants filed their response to Plaintiffs’ preliminary injunction motion, and Plaintiffs filed their reply on June 30, 2021.

On July 22, 2021, the district court held a consolidated hearing and bench trial on the merits, and the parties then filed supplemental briefs on the scope of relief available to Plaintiffs. On August 13, 2021, the district court issued an order concluding that Plaintiffs were entitled to relief on both their APA and statutory claims and issued a nationwide injunction permanently enjoining Defendants from implementing or enforcing the June 1 memo, vacating the June 1 memo in its entirety, and ordering Defendants “to enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all [noncitizens] subject to mandatory detention under Section 1255 without releasing any [noncitizens] because of a lack of detention resources.” The court’s reasoning was rooted in a mistaken understanding of 8 U.S.C. § 1225(b)(2)(A) and its determination that MPP “demonstrated operational effectiveness” — a finding based on Trump Administration statements and flawed data analysis and which ignored hundreds of pages of record evidence detailing the dangers MPP respondents had experienced in Mexico.

The district court stayed its order for seven days to allow the federal government time to seek emergency relief from the Fifth Circuit. On August 16, 2021, the Biden administration sought an additional stay from the district court, which the district court summarily denied two days later. The Biden administration then appealed to the Fifth Circuit. The American Immigration Council, Center for Gender and Refugee Studies, Human Rights First, and Southern Poverty Law Center, filed an amicus brief in support of the government, asking the Fifth Circuit to prevent the reinstatement of MPP and arguing that the district court’s order rests on inaccurate facts about the purported effectiveness of MPP in deterring migration and reducing meritless asylum claims. The ACLU and ACLU of Texas filed a separate amicus brief in support of the government primarily focusing on the district court’s misinterpretation of 8 U.S.C. § 1225(b)(2)(A).

On August 19, 2021, the Fifth Circuit denied the government’s request for a stay in a published decision that wholly adopted as true the Trump administration’s claims about the effectiveness of MPP in deterring migration and ignored the mountainous evidence refuting such claims. The decision, however, stated that the administration does not have to restart MPP at any particular time, just “in good faith” (without defining the term) and clarified that the government “can choose to detain” someone in accordance with § 1225, so long as the government does not “simply release every [noncitizen] described in § 1225 en masse into the United States.”

On August 20, 2021, the Biden administration filed an application to stay the district court’s injunction and for an emergency administrative stay with the Supreme Court. That same day – just minutes before the injunction was to go into effect – Justice Alito granted an emergency stay of the injunction until 11:59 pm EDT on August 24, 2021, to allow the full Court to consider the application. On August 23, 2021, the ACLU and ACLU of Texas filed an amicus brief in the Supreme Court in support of the stay application, again addressing the lower courts’ deeply flawed premise that the federal government must subject all people seeking asylum apprehended at the border to mandatory detention or return them to Mexico under MPP.

On August 24, 2021, the Supreme Court denied the government’s stay request in a 6-3 decision, stating that “[t]he applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” The decision, however, did not endorse the states’ incorrect claims that the government is actually required to return people to Mexico under the immigration statutes. That same day, DHS issued a statement saying that the Department “respectfully disagrees with the district court’s decision,” have appealed that order, and “will continue to vigorously challenge it.” However, the Department stated that “[a]s the appeal process continues . . . DHS will comply with the order in good faith.”

On September 23, 2021, Plaintiff States filed a motion to enforce the preliminary injunction and expedite discovery, citing delayed implementation of MPP and bad faith on the part of the government. The federal government responded that Plaintiff States had not met their burden of proof to demonstrate that the government is not acting in good faith to implement the injunction. The federal government filed their reply at the Fifth Circuit on October 19, 2021.

On October 29, 2021, DHS issued a memorandum terminating MPP again. In light of the termination memo, the administration filed a motion with the Fifth Circuit in Texas v. Biden stating that the appeal of the injunction requiring them to re-start MPP in good faith was now moot and requesting that the court vacate the district court’s preliminary injunction and remand or, alternatively, to stay the appeal while the case is remanded. On November 1, 2021, the states filed an opposition to the administration’s claim of mootness and request for vacatur or stay and remand, and the Fifth Circuit heard oral arguments from both parties the following day.

On November 18, 2021, the district court issued an opinion granting in part Plaintiffs’ motion to enforce, allowing for limited discovery but denying Plaintiffs’ request to implement MPP in the same manner. On December 21, 2021, the Fifth Circuit issued an order affirming the district court’s judgment and refusing to vacate the injunction. The Biden administration petitioned for certiorari. The Supreme Court granted certiorari and reversed the Fifth Circuit’s decision on June 30, 2022. The Supreme Court held, as an initial matter, that the district court’s injunction violated 8 U.S.C. § 1252(f)(1). Further, the Court held that the government’s recission of the MPP program did not violate section 1225 of the INA.

The Fifth Circuit then remanded the action to the Northern District of Texas on August 6, 2022. The Defendants moved to vacate the permanent injunction, and the district court vacated the injunction on August 8, 2022. Following the district court’s decision vacating the injunction, DHS announced that it will no longer enroll new individuals in MPP, and will disenroll individuals currently in MPP when they return for their next scheduled court date.

On the same day, Plaintiffs filed a motion for leave to file a second amended complaint, along with a motion to “postpone the effective date” of the October 29 memo rescinding MPP under the APA. The district court set a discovery and briefing schedule for the motion to postpone. The Defendants produced the relevant administrative record and filed a response in opposition to the motion to stay agency action on September 2, 2022. Briefing on the motion to stay agency action–including surreplies by both parties—was completed on September 20, 2022.

On December 15, 2022, the district court stayed the October 29 memo and the decision to terminate MPP pending the resolution of the merits of the claim. On February 13, 2023, Defendants filed an interlocutory appeal to the Fifth Circuit. On May 15, 2023, Defendants submitted an unopposed motion to dismiss the appeal without prejudice, which was granted on May 25, 2023.

On May 15, 2023, in the district court, Defendants filed an answer to the second amended complaint. The court then ordered supplemental briefs and supplemental response briefs in support of summary judgment. Briefing was completed on October 16, 2023, and parties await the court’s decision.

Documents:

Compliance Reports:

DHS Memorandum:

Counsel for Amicus: ACLU Immigrants’ Rights Project; ACLU Foundation of Texas; American Immigration Council; Center for Gender & Refugee Studies; Human Rights First; Southern Poverty Law Center

National Immigration Litigation Alliance et al. v. U.S. Customs and Border Protection

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National Immigration Litigation Alliance et al. v. U.S. Customs and Border Protection, No. 1:2021-cv-11094 (D. Mass., filed July 1, 2021)

Since 2019, Customs and Border Protection (CBP) has engaged in the practice of expelling from the United States migrants who recently gave birth, along with their U.S. citizen infants, often without birth certificates. CBP has even expelled individuals from the United States who were in active labor. The National Immigration Litigation Alliance, Al Otro Lado, and the Haitian Bridge Alliance (Plaintiffs) submitted a Freedom of Information Act (FOIA) request on March 18, 2021 to CBP seeking records relating to policies, guidance, or statistics regarding the treatment of pregnant people in CBP custody, people in CBP custody who have given birth within the United States within the last six months, U.S. citizen children in CBP custody who are under the age of six months, and non-U.S. citizen children of parents in CBP custody while their parent is giving birth at a U.S. hospital or other medical facility. Plaintiffs sought these records to better understand the scope and extent of CBP’s practice of expelling migrant parents and their infant children without considering the merits of their asylum applications.

When CBP failed to produce any responsive records or provide any other substantive response to the request, Plaintiffs filed suit on July 1, 2021. CBP filed their answer on August 13, 2021. CBP produced documents in August, October, and November 2021. The case was dismissed on May 4, 2022.

Documents:

Counsel: Proskauer Rose LLP; National Immigration Litigation Alliance; Al Otro Lado; Haitian Bridge Alliance

Contact: Trina Realmuto, National Immigration Litigation Alliance | trina@immigrationlitigation.org

Additional Links:

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

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Llamas et al. v. U.S. Customs and Border Protection et al., No. 6:21-cv-01169 (M.D. Fla., filed July 18, 2021)

After the murder of George Floyd by Minneapolis, Minnesota police officer Derek Chauvin on May 25, 2020, civil unrest and protests spread across the United States. In response to the protests, the federal government deployed officials from Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), the Federal Bureau of Investigation (FBI), and the United States Marshals Service (USMS), among others, to different U.S. cities and engaged in aerial surveillance of those participating in the protests.

In January 2021, Noelle Llamas and Ken Klippenstein, respectively a college student and a reporter for The Intercept, submitted six Freedom of Information Act (FOIA) requests to CBP, ICE, FBI, USMS, the Department of Homeland Security (DHS), and the Department of Justice (DOJ) seeking records related to emails sent from specific officials during the period of May 25, 2020, to August 15, 2020, in an attempt to learn more about the messaging related to each federal agency’s deployment of law enforcement officials during this period of time. In particular, the requests sought records concerning each agency’s internal messaging and responses to news media inquiries about the deployments.

Although the agencies acknowledged receipt of each request, Llamas and Klippenstein did not receive a final determination on any of them. On July 18, 2021, they filed suit against the agencies for the records sought in their FOIA requests. Defendants filed their answer on September 20, 2021. In July 2023, the case was stayed. The court lifted the stay on October 11, 2023. After the court denied the parties’ fourth joint motion to extend the deadlines for summary judgment motions or to stay the case, the parties stipulated to dismissal and the case was dismissed on January 10, 2024.

Documents:

Counsel: Elizabeth E. Bourdon, B.C.S.

Contact: Elizabeth (Beth) Bourdon | bbourdon@me.com

Ortega, et al. v. U.S. Customs and Border Protection

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Ortega, et al. v. U.S. Customs and Border Protection, No. 1:21-cv-11250-FDS (D. Mass, filed Aug. 2, 2021)

On August 2, 2021, the Boston College Civil Rights Clinic and Lawyers for Civil Rights filed a lawsuit against U.S. Customs and Border Protection (CBP) on behalf of Neisa Ortega and her 14-year-old daughter. On multiple occasions over the course of a year, Ms. Ortega and her daughter were separated for hours without explanation and Ms. Ortega subjected to repeated invasive body searches and sexual violations at the hands of CBP officers while travelling through Logan Airport in Boston.

The complaint alleges that CBP subjected Ms. Ortega to illegal and unconstitutional treatment upon her returns from family visits to the Dominican Republic. Beginning in April 2019, CBP officers assaulted, degraded, and humiliated Ms. Ortega on three separate occasions through invasive body cavity searches that contravened CBP’s internal guidelines prohibiting officers from conducting vaginal cavity searches. During these body cavity searches, CBP officers separated Ms. Ortega from her daughter for hours, during which time neither was given information as to the other’s whereabouts. Ms. Ortega and her daughter have been traumatized by their separation from each other, and Ms. Ortega still lives with the trauma of being physically abused and sexually violated. 

On November 5, 2020, Ms. Ortega filed a complaint with the Department of Homeland Security’s Office for Civil Rights and Civil Liberties (CRCL); CRCL summarily closed the complaint on March 30, 2021. On January 19, 2021, Ms. Ortega filed an administrative claim with CBP on behalf of herself and her daughter under the Federal Tort Claims Act (FTCA); CBP likewise denied the claim in full on June 17, 2021. Having exhausted administrative remedies under the FTCA, Ms. Ortega filed this lawsuit claiming Fourth and Fifth Amendment violations and seeking injunctive and declaratory relief, as well as compensatory relief pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) and the FTCA.

On October 15, 2021, Defendants filed a motion to dismiss for lack of jurisdiction and failure to state a claim, along with their answer to the complaint, claiming the United States has not waived sovereign immunity to the claims set for by Plaintiffs. On July 14, 2022, the court granted Defendant’s motion to dismiss in part. On July 15, 2022, Plaintiffs filed an amended complaint, which the institutional Defendants answered on August 3, 2022. On September 19, 2022, the individual defendants moved to dismiss the amended complaint for failure to state a claim.  On January 13, 2023, the court heard arguments on the motion to dismiss, and a decision is pending.

On February 23, 2023, the court granted the motion to dismiss on all claims seeking money damages, finding that such claims against the officers in their official capacities are barred by sovereign immunity, and claims against the officers in their individual capacities is foreclosed by Supreme Court precedent. But the court denied the motion to dismiss the declaratory and injunctive claims because Defendants had not addressed those in their motion to dismiss. The parties then entered discovery. On June 28, 2023, the parties filed a joint stipulation of dismissal with prejudice, and the case was dismissed.

Documents:

Counsel: Boston College Civil Rights Clinic; Lawyers for Civil Rights

Contact: Arielle Sharma, Lawyers for Civil Rights | asharma@lawyersforcivilrights.org; Reena Parikh, Boston College Civil Rights Clinic | reena.parikh@bc.edu