Category Archives: Arrests/Searches & Seizures

Civil Rights Complaint Regarding CBP Detaining People Between Border Fences

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On May 13, 2023, the Southern Border Communities Coalition (SBCC) submitted a complaint to the Department of Homeland Security (DHS) Office for Civil Rights and Civil Liberties. The complaint, which is supported by multiple detailed affidavits and graphic photographs, documents an ongoing Customs and Border Protection (CBP) practice of detaining people outdoors between two fences in deplorable conditions.

For months, U.S. Border Patrol agents have been detaining people arriving at the U.S./Mexico border in California between two parallel border walls—a primary and a secondary wall. Border Patrol agents are holding people—including children—on U.S. soil for days or weeks in open-air custody without adequate food, water, shelter, or medical care. CBP has provided only one port-a-potty for hundreds of people and the smell of feces is overwhelming.

Extended periods exposed to the elements without sufficient water, food, or sanitary conditions have caused migrants to suffer from serious medical conditions for which Border Patrol is not providing adequate care. SBCC has submitted images of a man with a severely infected leg injury, a woman experiencing a severe allergic reaction, and described a child who suffered an epileptic seizure.

These conditions, and the prolonged period of time that Border Patrol is holding people between the walls, are in clear violation of CBP’s own detention standards and international law governing the treatment of migrants.

Documents:

Counsel: Southern Border Communities Coalition

Contact: Ricky Garza | Southern Border Communities Coalition

Madrigales Vasquez, et al., v. United States of America

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Madrigales Vasquez, et al., v. United States of America, No. 3:23-cv-5397, (W.D. Wash., filed May 2, 2023)

On February 21, 2021, a family of asylum seekers—two minor children and their parents—entered the United States seeking protection from persecution in Guatemala. After a long and arduous journey on foot and by bus, federal immigration officers arrested the family, dropped them off under an international border bridge near McAllen, Texas, and held the family there for three days, where hundreds of other migrants were similarly being held. 

The family expressed to officers their intention to apply for asylum right away, but officers ignored the family’s vulnerable situation and instead continued to detain them under the bridge in inhumane and unsafe conditions that violated their basic rights and sense of dignity as human beings. 

While held under the bridge, the family lacked adequate access to basic necessities, including food, clothing, shelter, and medical care. They were constantly exposed to the elements and forced to sleep on the bare ground, with hardly any protection from freezing night conditions. For three days, they constantly felt cold, sore, famished, and exhausted. When one of the parents became ill from the conditions, she was denied medical care. Moreover, officers put the family and other asylum seekers at risk of contracting COVID-19 during a time when the vast majority of the United States and world population remained unvaccinated. In the holding area under the bridge, asylum seekers had no access to running water or hygiene items like soap, and social distancing was impossible in the crowded conditions.

During their three days under the bridge, officers refused to provide the family with any explanation regarding their situation, why they were detained, or what was going to happen to them. As a direct result of this unlawful conduct, the family suffered severe physical, mental, and psychological harm. 

On June 21, 2022, the family submitted an administrative claim under the Federal Tort Claims Act (FTCA) against the government actors who detained them, and on May 2, 2023, they filed a complaint in federal court in the Western District of Washington, where they currently reside.

Documents:

Counsel: Northwest Immigrant Rights Project

Contact: Matt Adams | Northwest Immigrant Rights Project | 206.957.8611 | matt@nwirp.org

Bautista v. Mayorkas

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Bautista v. Mayorkas, No. 3:22-cv-1185 (S.D. Cal., filed Dec. 8, 2022)

Plaintiff, Mr. Bautista, filed a complaint against the Department of Homeland Security (DHS) and Customs and Border Protection (CBP) seeking the return of his vehicle. Plaintiff alleges violations of the Fourth, Fifth, and Fourteenth Amendments.

On November 4, 2021, Plaintiff’s wife, who is the registered owner of the vehicle, met a friend in Tijuana, Mexico to give her a ride to her job in San Diego. While there, the wife loaned her car to her friend while the wife went to the store. Without the wife’s knowledge, her friend picked up two people who did not have legal status in the United States and concealed them in the trunk. When the wife and friend were stopped at the San Ysidro checkpoint, the wife was made aware of the two individuals. The wife was released without criminal charge because her friend was operating the vehicle when it was seized.

That same day, CBP seized the vehicle. The wife received a Notice of Seizure on November 9, 2021, indicating that the CBP was commencing forfeiture action against the vehicle and provided guidance on how to proceed. On November 19, 2021, the wife filed a petition for return with CBP. Following receipt of notice of seizure, Plaintiff and his wife both filed petitions for return of the seized vehicle with CBP. CBP did not return the vehicle.

On August 12, 2022, Plaintiff filed a complaint with the Southern District of California. On September 21, 2022, Plaintiff filed an ex parte motion for preliminary injunction enjoining Defendants from disposing of his 2021 Nissan Sentra. After full briefing, on October 11, 2022, the court denied the ex parte motion for preliminary injunction as moot because Defendants declared they would hold onto the vehicle until judgment is entered in the case. Subsequently, Defendant filed a motion to dismiss for lack of subject matter jurisdiction because the Civil Asset Forfeiture Act of 2000 divests the court of jurisdiction. The district court granted Defendants’ motion, finding it lacked jurisdiction over the claimant’s challenge to merits of agency’s determination. The Court also denied Plaintiff’s request for leave to file an amended complaint on December 8, 2022.

Documents:

Counsel: Jason E. Ankeny, Jason E. Ankeny P.S.; Kirsten Zittlau, Zittlau Law

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. No opinion has been issued.

Documents

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

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

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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. On September 28, 2022, the court held a case management conference where settlement negotiations broke down. Discovery is currently underway with depositions occurring in January and February 2023.  

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

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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, and the parties have filed periodic status reports as production in response to the FOIA request continues.

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

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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 refused to adjudicate the case, saying that it was 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. (Case No. 1:22-cv-1162-ZMF (D.D.C.).) On July 20, 2022, Plaintiffs voluntarily dismissed the mandamus action.

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

Bouey v. United States of America

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Bouey v. United States of America et al., No. 3:22-cv-00442 (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. The parties are scheduled for a settlement conference on May 24, 2023.

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

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FOIA: Advocates for Basic Legal Equality, et al. v. U.S. Customs and Border Protection, No. 3:22-cv-00149 (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.

Defendants filed their answer to the complaint on May 23, 2022, which they amended May 25, 2022.

Documents:
● Complaint
● Amended Answer to 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

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Abdulkadir Nur v. Unknown U.S. Customs & Border Protection Agents, et al., No. 1:22-cv-00169 (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. On July 11, 2022, Defendants filed a motion to dismiss for failure to state a claim, and on August 15, 2022, filed a motion to dismiss for lack of jurisdiction. On November 8, 2022, the court granted Defendants’ motion to dismiss for lack of subject-matter jurisdiction.

On January 13, 2023, Plaintiff filed an appeal with the Fourth Circuit Court of Appeals. The parties stipulated to voluntarily dismiss the appeal. The Fourth Circuit dismissed the appeal on February 3, 2023.

Documents:

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