FTCA Suit on Behalf of U.S.-Citizen Child Held by CBP for 30 Hours

J.A.M., et al., v. United States of America, et al., No. 3:22-cv-00380 (S.D. Cal., filed Mar. 21, 2022)

The family of a 9-year-old girl and 14-year-old boy filed a damages suit under the Federal Tort Claims Act after the children, both U.S. citizens, were held in custody at the San Ysidro Port of Entry – the boy for more than 12 hours and his sister for more than 30 hours. The complaint recounts how J.A.M. and her brother O.A.M. were falsely imprisoned in San Ysidro and coerced into making false confessions about the girl’s identity. Officers insisted to the children that the girl was actually their cousin, who is not a U.S. citizen.

J.A.M. and her brother O.A.M. were on their way from Tijuana to school in San Diego with a family friend. Though both children presented officers with valid U.S. passports, a CBP officer sent them to secondary inspection, then to a holding area. According to the children, CBP officers interviewed them about other young relatives their age and then pressured them to sign false statements claiming that J.A.M. was actually their cousin. The children said they were told that O.A.M. would be taken to jail for smuggling if they did not sign. CBP allegedly intended to have the Mexican consulate interview J.A.M. to verify her identity, but claimed an appointment was not available until the following morning.

Upon learning her children had not made it out of the port of entry, their mother, Ms. Medina Navarro, left the medical facility where she was awaiting surgery to inquire at the port of entry for her children. At first, officers denied having the children in custody. More than 12 hours after her children were first taken into custody, Ms. Medina Navarro received a call that C.B.P. had her son in custody with a girl who was not her daughter, and was told she could come pick up her son. Though Ms. Medina Navarro took additional documents to prove the identity of her daughter, officers did not release J.A.M. to her mother until after J.A.M.’s interview with the Mexican consulate the following day, 33 hours after she was first taken into custody.

The family filed administrative Federal Tort Claims Act complaints. CBP denied the claims in full on September 29, 2021, and the family filed suit on March 21, 2022. The government filed a motion to dismiss for lack of jurisdiction or motion for summary judgment, which was denied on July 21, 2022, and subsequently filed an answer to the complaint on August 4, 2022.

Counsel: Law Offices of Joseph M. McMullen

Contact: Joseph Mark McMullen ǀ (619) 501-2000 ǀ joe@imm-legal.com

Press: Lawsuit alleging border officials falsely imprisoned 9-year-old U.S. citizen girl passes legal hurdle

Harvard Immigration and Refugee Clinical Program v. U.S. Customs and Border Protection

Harvard Immigration and Refugee Clinical Program v. U.S. Customs and Border Protection, No. 1:22-cv-10301 (D. Mass., filed Feb. 23, 2022)

On February 23, 2020, the Harvard Immigration and Refugee Clinical Program (the Clinic) sued Customs and Border Protection (CBP) under the Freedom of Information Act (FOIA). The Clinic filed the FOIA in response to CBP denying entry to several Harvard students of Middle Eastern descent—many from Iran. Some were given expedited removal orders or had their visas revoked, even though the Department of State performed extended security checks during the visa processing.

The FOIA request identified three categories of information the Clinic sought from CBP: (1) records regarding the expedited removal of students at a port of entry; (2) records regarding withdrawal of admission by students at a port of entry; and (3) directives, policies, and communications by CBP regarding visa holders at ports of entry. CBP failed to provide an adequate response. The Clinic requested documents starting January 1, 2012, and the only documents CBP produced were from 2020. CBP also failed to produce any policy directives.

The Clinic filed an administrative appeal, requesting the responsive records and all non-exempt portions of the records. The administrative appeals unit ordered CBP to conduct a new search, but CBP failed to timely respond, and the Clinic sued.

Since the initial filing, CBP filed its answer to the complaint. On May 16, 2022, the court ordered a status report due July 15, 2022.

Counsel: Harvard Immigration and Refugee Clinical Program, Harvard Law School
Contact: Sabrineh Ardalan | sardalan@law.harvard.edu

Civil Rights Complaint Regarding CBP’s Mistreatment of Harvard Medical Fellow

On April 2, 2021, and April 18, 2021, Customs and Border Protection (CBP) denied Dr. Maryam, a Canadian citizen from Iran, entry into the United States. Dr. Maryam attempted to enter the United States using her Canadian passport and all necessary evidence to support her admission in J-1 status. She and her family planned to stay in the U.S. for two years during Dr. Maryam’s competitive two-year fellowship at Harvard Medical School and Beth Israel Deaconess Medical Center. The family planned to return to Canada after Dr. Maryam finished her fellowship.

During her first attempted entry, Dr. Maryam, her husband, and her two children drove with their belongings to the port of entry in Pembina, North Dakota. CBP pulled the family over for secondary inspection after seeing Dr. Maryam and her husband were born in Iran. CBP arbitrarily and discriminatorily interrogated Dr. Maryam’s husband for eight hours about his past in Iran, his thoughts and feelings about the killing of Qassem Soleimani, and his previous compulsory military service. Eventually, the family was turned back for allegedly failing to show non-immigrant intent—even after providing evidence of assets and ties to Canada. CBP issued an expedited removal order against Dr. Maryam’s husband and asked Dr. Maryam to withdraw her request for admission. CBP also took both fingerprints and DNA samples from Dr. Maryam and her husband before the family left the facility.

On April 18, 2021, Dr. Maryam attempted to enter the United States again. She planned to fly from Toronto to the United States, but CBP once again interrogated her and turned her back. This time, the CBP officer in secondary inspection denied her entry because (1) she allegedly had to wait until her husband’s case was resolved and (2) the CBP officer incorrectly told her that there that a “travel ban” against Iranian nationals prevented her from lawfully entering the country.

After her attempts to enter the U.S., Dr. Maryam filed an application for a J-1 visa with the U.S. Consulate (even though Canadian citizens are not required to apply for a visa in advance to enter the United States). The U.S. Consulate in Calgary refuses to adjudicate the case, saying that it is waiting for her husband’s case to first be resolved.

In response to the inhumane treatment and rejection of Dr. Maryam and her family, Harvard Law School’s Immigration and Refugee Clinical Program filed an administrative complaint to the Department of Homeland Security Office for Civil Rights and Civil Liberties (CRCL), requesting CRCL to further investigate the April 2 and April 18 incidents. Additionally, the Program filed a writ of mandamus in the district court, requesting the Department of State adjudicate Dr. Maryam’s visa within 15 days of an order, pursuant to the Administration Procedures Act (APA) or to the court’s Mandamus authority.

Counsel: Harvard Immigration and Refugee Clinical Program, Harvard Law School
Contact: Sabrineh Ardalan | sardalan@law.harvard.edu

Bouey v. United States of America

Bouey v. United States of America et al., No. 3:22-cv-0044 (S.D. Cal., filed April 4, 2022)

On July 16, 2020, Janine Bouey, a U.S. citizen, visited Tijuana, Mexico for the day for a dental appointment. When she attempted to return to the United States via the pedestrian lanes at the Otay Mesa Port of Entry (OMPOE), a CBP officer pulled her out of line. The CBP officer approached her, flirted with her, and ask her questions about both her trip to Mexico and her personal life. When Ms. Bouey refused to answer the questions about her personal life, the CBP officer retaliated by taking Ms. Bouey to the main building at the OMPOE.

Inside the OMPOE building, CBP performed multiple harmful and invasive searches of Ms. Bouey. On multiple occasions an officer fondled and penetrated Ms. Bouey’s genitalia without her consent and without justification. She was handcuffed to a bench, asked to strip down naked, and then ordered to bend over as an officer shined a flashlight into the areas of her genitalia. CBP officers also used a canine agent to invasively smell several of Ms. Bouey’s orifices. CBP officers never explained the reason for these searches, denied Ms. Bouey’s repeated requests to call an attorney, and failed to acknowledge her U.S. citizenship. The mistreatment by CBP caused Ms. Bouey physical pain and emotional distress, including anxiety, shock, humiliation, apprehension, and anguish. In response, on April 4, 2022, Ms. Bouey filed suit seeking damages under the Federal Tort Claims Act (FTCA) and Bivens. The FTCA claims included: (1) negligence, (2) intentional infliction of emotional distress, (3) battery, and (4) violation of the Bane Act. The Bivens claim sought a remedy for violation of her Fourth Amendment rights. On June 3, 2022, counsel for the U.S. government filed a motion to dismiss, which was denied on July 14, 2022, though the court did grant the government’s request to strike the demand for attorneys’ fees. Defendant United States then filed an answer to the complaint on July 28, 2022.

Counsel: Joseph M. McMullen | joe@imm-legal.com
Contact: Kendall Martin | kendall@alliancesd.org | (619) 629-0337

Press:
● Abuse, Assault and Impunity at DHS Must Stop: Former LAPD Officer Subjected to Sexual Assault by DHS Sues the Agency

FOIA: Advocates for Basic Legal Equality, et al. v. U.S. Customs and Border Protection, No. 3:22-cv-00149-JRK (N.D. Ohio, filed Jan. 28, 2022)

On March 12, 2021, Plaintiffs Advocates for Basic Legal Equality (ABLE) and the American Immigration Council (AIC) submitted three Freedom of Information Act (FOIA) requests to U.S. Customs and Border Protection (CBP) seeking documents related to the Border Patrol’s immigration enforcement activities in Ohio. Specifically, the requests sought policies and communications of the Sandusky Bay Border Patrol Station in Port Clinton, Ohio, as well as various forms documenting apprehensions by the Sandusky Bay Border Patrol Station.

On January 28, 2022, after Defendant failed to adequately respond to the request, Plaintiffs filed suit against Defendant seeking a declaration that Defendant’s failure to disclose responsive records and failure to promptly produce responsive records violates FOIA, as well as an order that Defendant immediately conduct a reasonable search for agency records and immediately produce all responsive agency records.

On March 9, 2022, the Court granted CBP’s motion for extension of time to answer the complaint until April 23, 2022.

Documents:
Complaint

Counsel: Advocates for Basic Legal Equality, Inc.; American Immigration Council; Immigrant Legal Defense

Contact:
Mark Heller | mheller@ablelaw.org
Emily Creighton | ECreighton@immcouncil.org
Claudia Valenzuela | claudia@ild.org

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

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

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

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

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

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

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

Documents:
Complaint

Counsel: CAIR Legal Defense Fund

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


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

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

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

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

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

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

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

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

Documents:
Complaint

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

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

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

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

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

Further information can be found on the Protect Democracy website.

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

Documents:

Counsel:
Arnold & Porter LLP; Protect Democracy

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

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

State of Washington v. Greyhound Lines, Inc.

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

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

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

Documents:

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

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

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

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 November 24, 2021, Plaintiffs filed a memorandum in Opposition to Defendants’ Partial Motion to Dismiss.

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