Adlerstein v. U.S. Customs and Border Protection

Adlerstein, et al., v. U.S. Customs and Border Protection, et al., No. 4:19-cv-00500-CKJ (D. Ariz., filed Oct. 16, 2019)

Ana Adlerstein, Jeff Valenzuela, and Alex Mensing are humanitarian activists whom U.S. Customs and Border Protection (CBP) subjected to repeated and lengthy detentions, searches, and interrogations without any connection to legitimate border control functions. All three are U.S. citizens with a right to return to the United States and yet all three were targeted as part of the federal government’s surveillance of individuals and groups protesting United States immigration policies.

On May 5, 2019, Ms. Adlerstein lawfully accompanied an asylum seeker to the Lukeville, Arizona port of entry. Without any evidence that Ms. Adlerstein had committed a crime, a CBP officer arrested and handcuffed Ms. Adlerstein, subjected her to an intrusive search, and detained her for hours, denying her requests to speak to her attorney. When Ms. Adlerstein protested that the CBP officers were violating her rights, an officer responded: “The Fourth Amendment doesn’t apply here.”

Mr. Valenzuela, a photographer and humanitarian volunteer, attempted to drive back into the United States at a port of entry in San Diego in December 2018. When he arrived, border officers walked to his car, ordered him out, handcuffed him, and marched him into their offices. They took his belongings, searched his bags, and shackled him by his ankles to a steel bench. They left him there, chained, for hours. Eventually they brought him to a small room where they interrogated him about his volunteer work, his associations, and his political beliefs.

Mr. Mensing crossed into the United States from Mexico twenty-eight times during a period of six months between June 2018 and October 2019. On twenty-six of those entries, CBP agents summarily referred him for “secondary inspection,” which for him included detention, searches, and repeated interrogation. During these interrogations, officers repeatedly asked him the same questions about his work, his finances, his associations, and his personal writings. These seizures became a routine part of his life: cross the border, get detained for hours, and be forced to answer the same questions by the government.

In their complaint, filed on October 16, 2019, the activists allege that CBP’s conduct violated the Fourth and First Amendments. The complaint also alleges that the government’s collection of private and protected information from the activists violated the Privacy Act, 5 U.S.C. § 552a(a)-(l). The activists sought injunctive and declaratory relief. In April 2020, the parties completed briefing on the government’s motion to dismiss and motion for summary judgment.

Counsel: ACLU of Southern California; ACLU of Arizona; Kirkland & Ellis

Contact: Mohammad Tajsar | (213) 977-9500 | mtajsar@aclusocal.org

Sabra v. U.S. Customs and Border Protection

Sabra v. U.S. Customs and Border Protection, No. 1:20-cv-00681-CKK (D.D.C., filed Mar. 9, 2020)

On September 11, 2015, Fleta Christina Cousin Sabra—a U.S. Citizen and accredited humanitarian worker—traveled with a family of asylum-seeking Syrian refugees and the refugees’ lawful permanent resident relative from Mexico into the United States by way of a U.S. port of entry in Southern California. When Ms. Sabra explained to a U.S. Customs and Border Protection (CBP) officer that the family wished to seek asylum, the officer handcuffed all members of the group, including Ms. Sabra. CBP officers detained Ms. Sabra for several hours, during which time they insulted her Muslim faith, pulled off her hijab, and physically assaulted her.

In July 2016, Ms. Sabra submitted a request for agency records pursuant to the Freedom of Information Act (FOIA) regarding the September 11, 2015 encounter, CBP’s subsequent related records, CBP’s investigation, communications regarding the family of Syrian refugees, and other CBP records regarding Ms. Sabra. In response, CBP produced only five pages of records.

Ms. Sabra filed this action on March 9, 2020, seeking to compel CBP to conduct a reasonable search and produce records responsive to her FOIA request. On May 29, 2020, CBP made an initial production and reported that it anticipates making monthly, rolling releases. Ms. Sabra moved for judgment on the pleadings.

Counsel: Law Office of R. Andrew Free

Contact: R. Andrew Free | (844) 321-3221 | Andrew@ImmigrantCivilRights.com

Guan v. Wolf

Guan, et al., v. Wolf, et al., No. 1:19-cv-06570-PKC-JO (E.D.N.Y., filed Nov. 20, 2019)

In Guan v. Wolf, five journalists were tracked by U.S. Customs and Border Protection (CBP), and other government agencies, and then detained, and interrogated by CBP officials when attempting to re-enter the United States. In response to this unprecedented coordinated attack on the freedom of the press, Plaintiffs filed a federal lawsuit alleging violations of their First Amendment rights on November 20, 2019.

Bing Guan, Go Nakamura, Mark Abramson, Kitra Cahana, and Ariana Drehsler are all U.S. citizen professional photojournalists. Between November 2018 and January 2019, they separately traveled to Mexico to document people traveling north from Central America by caravan in an attempt to reach the U.S.-Mexico border. Border patrol agents referred each journalist to secondary inspection on their return to the United States and questioned them about their work as photojournalists, including their coverage of the caravan, their observations of conditions at the U.S.-Mexico border, and their knowledge of the identities of certain individuals. This questioning focused on what each journalist had observed in Mexico in the course of working as a journalist, and did not relate to any permissible immigration or customs purpose. A secret government database leaked to NBC San Diego in March 2019 revealed that the Department of Homeland Security (DHS) had engaged in wide-ranging intelligence collection targeting activists, lawyers, and journalists—including these five journalists—working on issues related to the October 2018 migrant caravan and conditions at the U.S.-Mexico border.

The five journalists filed this action alleging that CBP’s questioning aimed at uncovering their sources of information and their observations as journalists was unconstitutional. They seek a declaratory judgment that such conduct violated the First Amendment. The journalists further seek an injunction requiring the government to expunge any records it retained regarding the unlawful questioning and to inform the journalists whether those records have been disclosed to other agencies, governments, or individuals.

Counsel: ACLU San Diego & Imperial Counties; ACLU; NYCLU

Contact:  Mitra Ebadolahi | ACLU of San Diego & Imperial Counties| mebadolahi@aclusandiego.org

Council on American-Islamic Relations-Washington v. CBP

Council on American-Islamic Relations-Washington v. U.S. Customs and Border Protection, No. 2:20-cv-217 (W.D. Wash., filed Feb. 12, 2020)

The Council on American-Islamic Relations–Washington (CAIR-WA) filed a complaint in U.S. District Court for the Western District of Washington challenging CBP’s refusal to reveal the directive issued to CBP officers to detain and interrogate Iranian-Americans, among others, who were returning to the United States in early January 2020. CBP has repeatedly denied that they issued any such directive. In light of CBP’s denials, on January 8, 2020, CAIR-WA filed a request under the Freedom of Information Act (FOIA), asking the agency to produce any directives or instructions provided to CBP officers regarding the detention and interrogation of individuals of Iranian heritage, as well as any responses from CBP headquarters regarding the operation. Because CBP failed to respond pursuant to FOIA, CAIR-WA filed a lawsuit in federal district court seeking to ensure that CBP remains accountable for taking such actions.

The complaint alleges that on January 4, 2020, dozens of persons of Iranian heritage, including U.S. citizens and lawful permanent residents, returned to the Unites States after visiting British Columbia. But rather than allowing them to return, CBP officers at the Blaine Port of Entry in Blaine, Washington, detained these individuals based on their Iranian heritage for several hours, and in some cases, through most of the night of January 4 and into the morning hours of January 5, 2020. CBP officials repeatedly denied that they were detaining Iranian-Americans and denied that orders had been given to target such individuals for additional questioning. According to a statement issued by CBP’s press secretary on January 5, 2020, “Social media posts that CBP is detaining Iranian-Americans and refusing their entry into the U.S. because of their country of origin are false. Reports that DHS/CBP has issued a related directive are also false.”

However, dozens of individuals reported their detention at the Blaine Port of Entry, discrediting CBP’s denials that individuals of Iranian heritage were detained. Most recently, media outlets have also reported the existence a leaked memorandum issued by CBP’s Seattle Field Office, which directed officers at the border to detain and question individuals based solely on their place of birth.

Under FOIA, CBP had twenty days to respond to CAIR’s request. Despite the statutory obligation, CBP neglected to provide a response within the timeline, much less provide a copy of the directive that CBP refused to acknowledge. The initial complaint asked the Court to order CBP to immediately provide all documents and records relating to the detention and interrogation that occurred, targeting persons of Iranian heritage (as well as those from Libya and Palestine).

On April 15, 2020, counsel for CBP provided counsel for CAIR a redacted and incomplete FOIA response. On April 30, 2020, counsel for CAIR was provided a supplemental response to the FOIA request, still far short of the responsive records identified by the agency. On May 1, 2020, CAIR amended the complaint to add claims challenging CBP’s continued delay in producing responsive records.

Press:

https://www.seattletimes.com/seattle-news/border-officials-were-overzealous-stopping-iranian-americans-at-washington-canada-border-cbp-chief-says/

Counsel: Northwest Immigrant Rights Project

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

ACLU of New Hampshire v. CBP

ACLU of New Hampshire v. CBP, No. 1:19-cv-00977 (D.N.H., filed Sept. 17, 2019)

In early 2019, the ACLU of New Hampshire (ACLU-NH) filed a Freedom of Information Act (FOIA) request with Customs and Border Protection (CBP) after obtaining documents that described plainclothes CBP officers as far as 100 miles from the border in New Hampshire driving in unmarked cars, following people around, and “asking probing questions” without identifying themselves. This practice enabled CBP to apprehend and detain many noncitizens in New Hampshire. ACLU-NH submitted a FOIA request for information pertaining to how CBP officers identified individuals who could potentially be undocumented immigrants in New Hampshire, but CBP did not respond adequately. Therefore, in September 2019, ACLU-NH filed a lawsuit in pursuit of the information detailed in the FOIA request.

Counsel: SangYeob Kim, Gilles R. Bissonnette, Henry R. Klementowicz, ACLU of New Hampshire

Contact: SanYeob Kim | ACLU-NH | 603-333-2081 | sangyeob@aclu-nh.org

Mohanad Elshieky v. USA

Mohanad Elshieky v. United States of America, No. 2:20-cv-00064 (E.D. Wash., filed Feb. 14, 2020)

U.S. Customs and Border Protection (CBP) agents unlawfully seized and detained Mr. Elshieky, an asylum recipient lawfully present in the United States, aboard a Greyhound Bus in January 2019. Mr. Elshieky filed an administrative complaint under the Federal Tort Claims Act (FTCA) on April 25, 2019. CBP issued a final disposition denying the claim on September 11, 2019. On February 14, 2020, Mr. Elshieky filed a complaint in federal district court under the FTCA. On June 23, 2020, the court denied Defendant’s motion to dismiss Mr. Elshieky’s claim of discrimination under the Washington Law Against Discrimination.

In January of 2019, shortly after Mr. Elshieky boarded a Greyhound bus in Spokane, Washington, CBP officers entered the bus and began questioning and detaining people of color. A CBP agent approached Mr. Elshieky and asked him to produce identification and to confirm his citizenship status. When Mr. Elshieky presented his valid Oregon driver’s license and valid USCIS employment authorization card, officers ordered him off the bus. Although Mr. Elshieky explained his immigration status—that he had been granted asylum recently—the officers accused him of possessing a forged employment authorization card and refused to believe him, saying “we’ve heard all this before” and “illegals say that all the time.” The officers continued to detain him and accuse him of being unlawfully present as they confirmed his immigration status.

Mr. Elshieky sought $250,000 in damages in his initial FTCA administrative complaint for false arrest and false imprisonment.

 

Counsel: Northwest Immigrant Rights Project | American Civil Liberties Union of Washington | Davis Wright Tremaine LLP

Contact: Matt Adams | 206-957-8611 | Northwest Immigrant Rights Project

Lisa Nowlin | 206-624-2184 | ACLU Washington

Suda and Hernandez v. U.S. Customs and Border Protection

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’Neill. While in the checkout line, Ms. Hernandez gave a friendly hello to Defendant O’Neill 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, Defendant O’Neill proceeded to detain them. Even after giving Defendant O’Neill their Montana driver’s licenses, they were detained for forty minutes. The only reason both Defendant O’Neill 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 Defendant O’Neill 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.” Defendant O’Neill’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, its Commissioner, Defendant 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 pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The Plaintiffs amended their complaint to add claims of negligence and false arrest under the Federal Tort Claims Act (FTCA).

The government, which is representing all the defendants except for Defendant O’Neill, filed a motion to dismiss on April 19, 2019. Defendant O’Neal, through private counsel, submitted a motion to dismiss the claims for injunctive and declaratory relief on June 4, 2019. Defendant O’Neill did not seek dismissal of the Bivens claim for damages. Plaintiffs amended their complaint on January 29, 2020. The district court denied Defendant O’Neill’s motion to dismiss and denied in part and granted in part the government’s motion to dismiss on February 26, 2020. The court found that Plaintiffs had standing to seek injunctive relief and that Plaintiffs’ claims for declaratory relief are ripe. The court dismissed Plaintiffs’ damages claims against the defendants in their official capacity. Plaintiffs’ FTCA claims for damages survive.

Counsel: ACLU Immigrant Rights Project, ACLU of Montana; Crowley Fleck

Contact: Alex Rate | ACLU of Montana Foundation, Inc. | 406.203.3375 | ratea@aclumontana.org

 

Lovell v. United States

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.

Press Coverage:

Counsel: Eric Sanders, The Sanders Firm, P.C.

Boule v. Egbert

Boule v. Egbert et al., Nos. 2:17-cv-00106-RSM (W.D. Wash., filed Jan. 25, 2017) and 18-35789 (9th Cir., filed Sept. 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. In August 2019, the Ninth Circuit stayed proceedings in this case pending issuance of the Supreme Court’s decision in Hernandez v. Mesa. Following the Supreme Court’s February 25, 2020 decision in Hernandez the Ninth Circuit lifted the stay and the case is being considered for argument in October 2020.

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 | gdboos@cascadia.com

FTCA Administrative Complaint against CBP and Border Patrol for False Arrest at a Greyhound Bus Station

FTCA Administrative Complaint against CBP and Border Patrol for False Arrest at a Greyhound Bus Station

Sosa Segura v. United States of America, No. 2:19-cv-00219-SAB (E.D. Wash., filed Jun. 25, 2019) 

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.

Mr. 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, Mr. Sosa was approached by Border Patrol agents who began to interrogate him about his legal status. Mr. 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 Mr. 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 Mr. Sosa did not comply.

The agents continued to question Mr. 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, Mr. 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 Mr. Sosa experienced humiliation, emotional distress, and other damages during the time he was falsely arrested and falsely imprisoned.

On June 25, 2019, Mr. Sosa filed a complaint in federal district court, as CBP failed to issue a final disposition on the administrative complaint within the required six-month period. The government filed a subsequent motion to dismiss, which was denied on November 22, 2019.

Counsel: ACLU of Washington|Northwest Immigrant Rights Project

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

Press: