Suda v. U.S. Customs and Border Protection, No. 4:19-cv-00010-BMM, (D. Mont., filed Feb. 14, 2019)
On May 16, 2018, Ana Suda and Martha Hernandez were shopping at a convenience store in the small town of Havre, Montana, where both reside, when they were seized and detained by CBP Agent Paul O’Neal. While in the checkout line, Ms. Hernandez gave a friendly hello to O’Neal who was in line behind them. He responded by asking the two women where they were born. Although Ms. Suda and Ms. Hernandez told the agent they were U.S. citizens, born in Texas and California, respectively, O’Neal proceeded to detain them. Even after giving O’Neal their Montana driver’s licenses, they were detained for forty minutes. The only reason both O’Neal and his supervisor subsequently gave for their detention was that Ms. Suda and Ms. Hernandez were speaking Spanish.
On February 14, 2019, the ACLU of Montana filed an action against CBP and its agents for violations of Ms. Suda and Ms. Hernandez’s Fourth and Fifth Amendment rights. The complaint alleges that Agent O’Neal stated he had asked for identification “because I came in [the convenience store] and saw that you guys are speaking Spanish which is very unheard of up here.” Agent O’Neal’s supervisor confirmed that the women had been singled out for speaking Spanish and specifically admitted that CBP doesn’t detain individuals for speaking French.
The complaint alleges that other Latinos in the community similarly have been targeted by CBP agents. The suit names as Defendants CBP and its Commissioner, O’Neal, and 25 “John Doe” agents. Plaintiffs seek declaratory and injunctive relief aimed at preventing CBP officers from stopping and detaining individuals solely on the basis of race, accent, and/or speaking Spanish. The Plaintiffs also seek compensatory and punitive damages.
Counsel: ACLU Immigrant Rights Project, ACLU of Montana; Crowley Fleck
Contact: Alex Rate | ACLU of Montana Foundation, Inc. | 406.203.3375 | firstname.lastname@example.org
Lovell v. United States of America, No. 1:18-cv-01867 (E.D.N.Y., filed Mar. 28, 2018)
On November 27, 2016, Tameika Lovell was returning from Jamaica and traveling through John F. Kennedy Airport when U.S. Customs and Border Protection (CBP) officers selected her for a “random search.” Officers took her to a secured area and conducted a physically invasive and traumatic search of her body, including a body cavity search, for which she later sought medical and psychological treatment.
Ms. Lovell filed a federal tort claim with CBP on May 10, 2017, but it was subsequently denied. On March 28, 2018, Ms. Lovell filed this action seeking damages under Bivens and alleging violations of her Fourth and Fifth Amendment rights. The complaint alleges that CBP’s search of Ms. Lovell was carried out in in violation of the Fourth Amendment and was conduct that “shocked the conscience” in violation of the Fifth Amendment. She further alleges that the search was not random but instead based on her race, and that CBP unlawfully singles out females and persons of color for searches. Furthermore, Ms. Lovell alleges that the United States and CBP condone employees’ intentional violations of the National Standards on Transportation, Escort, Detention, and Search—the agency’s written standards for searches. Ms. Lovell seeks compensatory and punitive damages against CBP.
Counsel: Eric Sanders, The Sanders Firm, P.C.
Boule v. Egbert et al., Nos. 2:17-cv-00106-RSM (W.D. Wash., filed Jan. 25, 2017) and 18-35789 (9th Cir., filed Sep. 20, 2018)
A U.S. citizen filed a Bivens action for damages he suffered when a U.S. Border Patrol agent unlawfully entered his property in violation of the Fourth Amendment, refused to leave when told to do so, and knocked him to the ground. The district court granted the defendant agent’s motion for summary judgment and dismissed the plaintiff’s Fourth Amendment claim. Although it found that the agent had violated the Fourth Amendment, it nevertheless held that the case presents a new context for Bivens and that special factors existed which counseled against extending Bivens. In particular, the court found that the case implicated national security issues because the plaintiff’s property—where the incident occurred—is located right on the United States’ side of the U.S-Canada border. The court indicated that the risk of personal liability would cause Border Patrol agents to hesitate and second guess their daily decisions about whether and how to investigate suspicious activity near the border.
The plaintiff appealed to the Ninth Circuit. Northwest Immigrant Rights Project and the American Immigration Council filed an amicus in support of the appeal. The appeal currently is pending.
Counsel: Breean L. Beggs, Paukert and Troppmann; Gregory Boos and W. Scott Railton, Cascadia Cross-Border Law
Contact: Gregory Boos | Cascadia Cross-Border Law | 360.671.5945 | email@example.com
FTCA Administrative Complaint against CBP and Border Patrol for False Arrest at a Greyhound Bus Station
On June 20, 2018 the ACLU of Washington and the Northwest Immigrant Rights Project filed a claim under the FTCA on behalf of Andres Sosa Segura, who was unlawfully seized and detained by Border Patrol agents at an intermodal transit station in Spokane, Washington.
Sosa, a resident of Washington, traveled regularly to Montana for work. On his return trip from Montana, after disembarking a bus at the Spokane station to make a transfer, Sosa was approached by Border Patrol agents who began to interrogate him about his legal status. Sosa had been the only Latinx-appearing passenger on the bus. He asserted his right to remain silent and showed the agents a “know your rights” card. Upon viewing the card, one of the agents called Sosa “illegal,” and both agents positioned their bodies so he could not leave, even once putting their hand on their gun as though to imply the use of force if Sosa did not comply.
The agents continued to question Sosa and to threaten him with deportation, even after he disclosed he had already been released from immigration detention and had an ankle monitor. They eventually drove him to a detention facility an hour away from the bus station and continued to detain him for several hours while they verified he had been released from immigration detention on bond. Eventually, Sosa was driven back to the Spokane bus station and released, though he had already missed all buses back to his home. The complaint letter asserts that Sosa experienced humiliation, emotional distress, and other damages during the time he was falsely arrested and falsely imprisoned.
Counsel: ACLU of Washington|Northwest Immigrant Rights Project
Contact: Matt Adams | Northwest Immigrant Rights Project | firstname.lastname@example.org
FTCA Administrative Complaint on behalf of US Citizen deported by CBP
In September of 2018, Julio Cesar Ovalle filed an administrative complaint against the Department of Homeland Security under the Federal Tort and Claims Act for being unlawfully seized and wrongfully deported last June. Mr. Ovalle, 24, is a U.S. citizen who was born in Los Angeles.
Ovalle, a resident of San Antonio, was stopped by a Border Patrol agent on June 11, 2018 while walking along Portanco Road toward his neighborhood. The agent asked for his “papers,” and refused to believe Ovalle’s assertions of his citizenship. Ovalle told the officer he had a passport and other documentation at home, but the agent did not listen and instead took Ovalle’s phone and transported him to the Border Patrol station in Cotulla. Ovalle was deported the next day to Nuevo Laredo.
In Mexico, Ovalle was kidnapped by cartel members and held for ransom with a group of about 80 other immigrants, including recent deportees. Ovalle’s family called Laredo police, who referred them to the FBI. Ovalle was eventually released at one of the international bridges in Nuevo Laredo, and returned to the U.S.
Counsel: Javier Espinoza Garcia | Espinoza Law Firm, PLLC
Bressi v. Napier, No. 4:18-cv-00186-DCB (D. Ariz., amended complaint filed July 2, 2018)
On July 2, 2018, Plaintiff Terry Bressi filed an amended complaint against Pima County Sheriff Mark Napier and other county defendants alleging that they violated his First and Fourth Amendment rights when Sheriff’s deputies arrested him at a Border Patrol checkpoint in April 2017 after refusing to answer Border Patrol’s citizenship questions. Bressi has also lodged a federal notice of claim against the Border Patrol for the same incident.
Bressi, who has traveled the same route since 1993 from his Tucson home to his rural worksite west of Tucson, has contended many times with the abuses and excesses of the Border Patrol. For example, Mr. Bressi previously sued another local police agency when it illegally detained him at a checkpoint erected at the direction of the Border Patrol. See Bressi v. Ford, 575 F.3d 891, 894 (9th Cir. 2009). On April 10, 2017, Bressi was returning home from work when he passed through the Border Patrol checkpoint. Consistent with his personal opposition to the existence of interior checkpoints, Bressi refused to answer the Border Patrol’s questions. Shortly after, the Pima County Sheriff’s deputy – who was stationed at the checkpoint under a federal grant program called Operation Stonegarden – took over the interaction with Bressi and insisted that he answer the Border Patrol’s questions. Eventually, the deputy arrested Bressi and placed him in handcuffs, purportedly because Bressi had “obstructed” the highway.
The lawsuit alleges that the deputy retaliated against Bressi for exercising his First Amendment right not to answer Border Patrol’s questions. Additionally, the lawsuit alleges that the pervasive presence of local law enforcement at the Border Patrol checkpoint materially altered the nature of the checkpoint itself, rendering the whole checkpoint unconstitutional under the long-standing Fourth Amendment principle that permanent checkpoints are permitted only for limited immigration-related purposes and not for the “general interest in crime control.” As of November 2018, the lawsuit is entering the discovery phase of litigation.
Counsel: Ralph E. Ellinwood PLLC; the ACLU of Arizona
Contact: Billy Peard | ACLU Arizona | email@example.com
Wilwal, et al. v. Kelly, et al., No. 0:17-cv-02835 (D. Minn., filed July 13, 2017)
On July 13, 2017, the ACLU, the ACLU of Minnesota, and Robins Kaplan LLP brought suit on behalf of the Wilwal-Abdigani family, a family of 6 American citizens who were detained at a North Dakota port of entry for over ten hours when crossing back into the United States from Canada. When the family arrived at the border, CBP agents drew their weapons and handcuffed Abdisalam Wilwal, allegedly because his name appeared on a terrorism-related watchlist, which Mr. Wilwal believes was a wrongful placement. He was questioned for hours and ended up fainting while in custody due to the placement of his handcuffs. Agents allegedly questioned him for being a Muslim and demanded to know if he was involved with terrorism. When Mr. Wilwal’s teenage son called 911 and reported that he was being held against his will, CBP agents confiscated his phone and strip-searched him.
Mr. Wilwal and his family brought suit against CBP seeking declaratory and injunctive relief for violations of his constitutional rights, including the right against search and seizure and his right to due process because of his placement on a terrorism watchlist without any opportunity to challenge that placement. On October 12, 2017, the plaintiffs amended the complaint to add claims under the Federal Tort Claims Act for false imprisonment, assault, and battery. On November 8, 2017, the government moved to dismiss the case. Briefing was completed on the motion to dismiss on January 24, 2018.
On September 27, 2018 the court granted in part and denied in part the government’s motion to dismiss. Plaintiff’s claim alleging violation of substantive due process rights was dismissed with prejudice; and the government’s motion was denied in all other respects.
On October 30, 2017, the ACLU Immigrants’ Rights Project, the ACLU of Texas, and Washington Square Legal Services, Inc. filed suit against the Office of Refugee Resettlement and CBP following the arrest and detention of 10-year-old Rosa Maria Hernandez, who came to the United States when she was three months old and who suffers from cerebral palsy. On October 24, 2017, Rosa Maria was on her way to a children’s’ hospital for gall bladder surgery when the vehicle she was in, driven by a U.S. citizen, was stopped at a Border Patrol checkpoint. Despite being told that she was on her way to the hospital for an imminent surgery, Border Patrol agents detained her for thirty minutes before allowing her to depart.
Agents then followed her to the hospital, went inside, and tracked her movements up to and during the time that she was in surgery. When attorneys for the hospital told the agents that they had to leave, the agents refused to do so, telling the hospital that they intended to arrest Rosa Maria and deport her when she was released from the hospital. When she was discharged the day after her surgery, the agents arrested her directly from her hospital bed and forcibly took her to an Office of Refugee Resettlement Shelter for unaccompanied minors.
On October 30, 2017, counsel for Rosa Maria filed a lawsuit alleging that the Border Patrol’s actions violated Rosa Maria’s statutory and constitutional rights, and sought a temporary restraining order seeking her immediate release. On November 3, 2017, the government released her to the care of her family. The case was voluntarily dismissed the same day. On January 8, 2018, the Border Patrol announced that it would take steps to expedite emergency medical vehicles through checkpoints.
Amadei, et al. v. Nielsen, et al., No. 1:17-cv-05967 (E.D.N.Y., filed Oct. 12, 2017)
On October 12, 2017, the ACLU, along with Covington & Burling, LLP, filed suit against Customs and Border Protection over the February 22, 2017 search by CBP of passengers of a Delta Airlines flight that arrived at JFK. After the flight landed, CBP officers stood outside the plane and required every disembarking passenger to provide identification, even though the flight was a domestic flight. The ACLU brought suit on behalf of passengers on the plane who allege that this demand for identification violated their rights under the Fourth Amendment. The plaintiffs seek declaratory relief that the February 22, 2017 search was unconstitutional, as well as injunctive relief preventing CBP from conducting similar searches of passengers disembarking from domestic flights.
Defendants filed a motion to dismiss, arguing that the agency action was not final and that Plaintiffs lacked standing. The parties completed briefing on the motion on April 20, 2018.
Serrano v. U.S. Customs and Border Protection et al., Nos. 2:17-cv-00048 (W.D. Tex., filed Sept. 6, 2017) and 18-50977 (5th Cir., filed Nov. 21, 2018)
On September 6, 2017, the Institute for Justice brought a class action suit against Customs and Border Protection over the agency’s practice of engaging in civil forfeiture of vehicles at ports of entry on the U.S.-Mexico border. The plaintiff, Gerardo Serrano, was detained in 2015 when crossing into Mexico at the Eagle Pass, Texas port of entry. After CBP officers found a small amount of pistol ammunition in his truck, they seized the vehicle. CBP held his truck for over two years without ever filing a civil forfeiture action in court against him, despite requiring him to post thousands of dollars for a bond purportedly to allow him to challenge the seizure. Because the agency never filed a forfeiture action, Mr. Serrano was given no opportunity to have his day in court and challenge CBP’s seizure.
His complaint alleges that CBP seizes hundreds of vehicles owned by American citizens each year and refuses to hold prompt post-seizure hearings at which the owners can challenge the seizure. The class action suit seeks declaratory and injunctive relief requiring CBP to hold prompt post-seizure hearings, as well as compensation for Mr. Serrano. In October 2017, CBP returned Mr. Serrano’s truck without subjecting it to a forfeiture action. On December 13, 2017, Defendants moved to dismiss the suit. The parties completed briefing on January 19, 2018.
On July 23, 2018, the magistrate judge issued a Report and Recommendation in which he advised granting Defendants’ motions to dismiss.
On September 28, 2018, the district court adopted the magistrate judge’s recommendations and issued an order denying class certification and granting all motions to dismiss. Mr. Serrano appealed the district court decision to the Fifth Circuit on November 21, 2018.
Counsel: Anya Bidwell & Robert Everett Johnson | Institute for Justice