Serrano v. CBP

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.

In April 2019, the plaintiff filed his opening brief with the Fifth Circuit. Several amicus briefs were filed in support. The government’s answering brief is due on June 17, 2019.

Fifth Circuit Pleadings:

Counsel: Anya Bidwell & Robert Everett Johnson | Institute for Justice

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Alasaad v. Nielsen

Alasaad et al. v. Nielsen et al., No. 1:17-cv-11730-DJC  (D. Mass., filed Sept. 13, 2017)

On September 13, 2017, the Electronic Frontier Foundation, along with the ACLU and the ACLU of Massachusetts, brought suit against Customs and Border Protection and Immigration and Customs Enforcement, challenging those agencies’ practices of seizing travelers’ electronic devices without a warrant or individualized suspicion of wrongdoing. The organizations filed on behalf of 10 U.S. citizens and one lawful permanent resident who had smartphones and other electronic devices seized when they arrived at the U.S. border. Many of the plaintiffs had their devices confiscated for extended periods of times. The plaintiffs seek the return of their devices, as well as declaratory and injunctive relief requiring the government to seek a warrant or have probable cause that a crime was committed prior to seizing a travelers’ cellphone. On December 15, 2017, Defendants filed a motion to dismiss.

On May 9, 2018, the court denied Defendants’ motion to dismiss, holding that Plaintiffs plausibly alleged that the government’s digital device search policies substantially burden travelers’ First Amendment rights.

Defendants filed an answer on June 1, 2018. Since then, the parties have been proceeding through the discovery process. On April 30, 2019, the plaintiffs moved for summary judgment. They argue that CBP’s policy authorizing warrantless, suspicionless searches of electronic devices violates the First and Fourth Amendments, and are seeking an injunction.

Counsel:  Electronic Frontier Foundation, American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Massachusetts

Cervantes v. United States, et al.

Cervantes v. United States, et al., No. 4:16-cv-00334-CKJ (D. Ariz., filed June 8, 2016) 

On June 8, 2016, Plaintiff, a teenage U.S. citizen, filed a law suit under Bivens, the Federal Tort Claim Act, and 42 U.S.C. 1983 seeking redress for seven hours of abusive and degrading searches and strip searches by Border Patrol agents.  The complaint alleges that Plaintiff was walking home after eating breakfast in Nogales, Sonora when a Border Patrol agent accused her of carrying drugs.  She was then directed to a detention room, handcuffed to a chair, sniffed by dogs, and strip-searched by female agents.   After no drugs were found, CBP agents brought her to Holy Cross Hospital, in handcuffs, where hospital staff subjected her to invasive pelvic and rectal exams while CBP agents observed.

On October 24, 2016, the Government filed their answer to the complaint.

On February 7, 2017, the government filed a motion to dismiss Plaintiff’s Bivens claims against Defendant Patrick F. Martinez, M.D. On February 21, 2017, Plaintiff filed a response to Defendant Martinez’s motion to dismiss. Subsequently, Defendant Martinez withdrew his motion to dismiss on February 28, 2017.

On November 10, 2017, Defendant Quantum Plus filed a motion for summary judgment, arguing that Plaintiff erroneously brought a negligent hiring claim based solely on a Bivens action against an agent. Several days later, Defendant Holy Cross Hospital moved to join in Quantum Plus’ motion. On February 19, 2018, Defendant Martinez filed a separate motion for summary judgment, arguing that Plaintiff could not bring a Bivens action against him because he was privately employed and not acting under claim of federal authority at the time of the medical examination.

The court granted the motions on July 18, 2018, dismissing the complaint with prejudice. With respect to Quantum Plus and Holy Cross Hospitals’ motion, the court reasoned that Plaintiff could not hold Defendants liable on a negligent hiring, training, and supervision claim in a Bivens cause of action. Regarding Defendant Martinez’ motion, the court held that it may not impose Bivens liability because Plaintiff may pursue an alternate state court action.

Counsel: Brian Marchetti, Marchetti Law PLC and Matthew C. Davidson | Law Offices of Matthew C Davidson Limited

Arizona Interior Enforcement Complaint

Arizona Interior Enforcement Complaint

In June 2016, the ACLU of Arizona filed a complaint on behalf of ten individuals with U.S. Department of Homeland Security oversight agencies and the Department of Justice demanding investigations into abuses arising from Border Patrol interior operations.

Most of the incidents described in the ACLU’s complaint arose in the course of Border Patrol checkpoint and “roving patrol” stops.  Several describe agents wrongfully detaining innocent residents for days in filthy, frigid, and overcrowded detention facilities.  Although these individuals were not charged with any crime or immigration violation, their property was confiscated and some had to pay thousands of dollars to recover a vehicle.

In other cases, residents describe facing constant surveillance and harassment on their own property, including frequent incursions by low-flying Border Patrol helicopters.

A copy of the ACLU complaint to CBP and DOJ is available here.

A district court case was filed but was dismissed on February 15, 2018.

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

S.V. v. United States

S.V. v. United States, 8:16-cv-00419 (D. Neb, filed Sept. 2, 2016)

In the middle of 2014, a 14-year-old U.S. citizen, whose parents were from Guatemala, was traveling back to the U.S. with her older sister when she was taken into custody by Customs and Border Protection (CBP) agents.

While she had been born in Florida, her family moved back to Guatemala shortly after her birth.  She lived there for the next 13 years.  However, as a result of increasingly horrific gang violence, her family’s poverty, and difficult circumstances in the home, she decided she needed to return to the country of her birth, the United States.

Upon arriving at the U.S. border and presenting a copy of her Florida birth certificate, she was shocked to be detained and accused of presenting a fake document.  After her arrest, CBP transferred her to what she called the “hielera” or “icebox.” She was held in federal custody for 44 days before finally being released into the custody of a family member living in Nebraska.

However, the Department of Homeland Security continued to insist for almost a year that this U.S. citizen child should be deported back to Guatemala, before the Immigration Court terminated her removal proceedings and concluded she is a U.S. citizen.

As a result of the ordeal, this child has experienced significant emotional distress.  She filed her FTCA administrative complaint on October 14, 2015 against CBP, the Department of Homeland Security, Immigration and Customs Enforcement, and the Department of Health and Human Services (DHHS). On March 4, 2016, CBP responded by issuing a final denial of her complaint. On July 6, 2016, DHHS closed the complaint without a decision in light of CBP’s denial. Following these denials, she filed an FTCA lawsuit in the District of Nebraska on September 2, 2016.

On January 26, 2017, the United States filed an answer to the complaint. In June 2017 the parties reached a settlement agreement after the meet and confer process, in which the government agreed to award monetary damages in the amount of $40,000 as satisfaction for any and all injuries to person and property this child suffered.

On June 14, 2017, the court dismissed the action.

Counsel: Justice for Our Neighbors

Contact: Charles Shane Ellison | charles@jfon-ne.org(402) 898-1349

Salem v. USA, et al.

Salem v. USA, et al., No. 5:15-cv-02091-JGB-SP (C.D. Cal., filed Oct. 9, 2015)

Mr. Salem brought this damages case against the United States, the Los Angeles Fire Department, and unknown CBP officers. Mr. Salem is a U.S. citizen who is also a citizen of Egypt. An accomplished playwright, 75 year old Salem was at the Los Angeles airport to begin his annual trip to Egypt, where he taught a literature class as an adjunct professor at the University of Cairo. He passed through security without incident, handed over his boarding pass and entered the passenger bridge to board his plane. At that point he was pulled over by an officer he believes was with CBP, who asked to see his passport. When he asked why he had been singled out, he was immediately surrounded by three other officers who forcibly grabbed both of his arms. They searched his carry-on luggage and, after finding nothing objectionable, forcibly escorted him to an interrogation room. There he was questioned for several hours, during which time the officers forced his arm behind his back, breaking it in the process. After about 4 hours of questioning, he was released without being charged. He was in great pain, and a bone in his arm was visibly displaced.

Mr. Salem’s suit includes Bivens claims under the Fourth Amendment (unreasonable search and seizure and use of excessive force) and the Fifth Amendment (equal protection). It also includes FTCA claims for assault, battery, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence.

Defendant United States of America filed an answer to the amended complaint on January 18, 2017. Defendant City of Los Angeles filed an answer to the amended complaint on February 9, 2017. Individual Defendants also filed answers to the amended complaint on February 2, 2017 and March 07, 2017. The parties have agreed to stipulations for the Plaintiff’s inspection of the premises where Mr. Salem’s detention took place, and the Court accordingly entered a protective order regarding the Plaintiff’s entry and inspection of the premises on March 15, 2017.

On April 21, 2017, the individual federal Defendants filed a motion to dismiss, which Plaintiff opposed. On June 13, 2017, the district court denied Defendants’ motion to dismiss. The parties entered into a settlement agreement on September 12, 2017, in which Defendant USA agreed to pay Plaintiff $45,000 under the FTCA in exchange for dismissing all other claims.

Counsel: Counsel on American-Islamic Relations, CA l Law Office of Shafiel A. Karim

Contact: Marwa Rifahie (Civil Rights Managing Attorney) | mrifahie@cair.com

Martinez-Castro, et al. v. Village of Wakeman, et al.

Martinez-Castro, et al. v. Village of Wakeman, et al., U.S. District Court, Northern District of Ohio, Western Division (N.D. Ohio; 3:12-cv-2364)

In 2012, ABLE filed a federal court complaint on behalf of two Hispanic married couples from Norwalk, Ohio.  The married couples, traveling in the same car and returning from work at a local nursery, were stopped by the Wakeman Police Department early one morning.  Without reasonable suspicion or cause, the Wakeman police officer contacted the U.S. Border Patrol.  When Border Patrol agents arrived at the scene, they proceeded to interrogate and verbally harass the occupants of the car.  The individuals were aggressively removed from the car, handcuffed and taken to the Sandusky Bay Station.  At the station, the individuals were then placed in a room where they were harassed and interrogated by ten to twelve different agents over the course of the day.

The complaint filed against the Village of Wakeman and the U.S. Border Patrol alleges claims under the Fourth Amendment, the Equal Protection Clause, Title VI of the Civil Rights Act, Bivens claims against the individual Border Patrol agents and claims pursuant to the Federal Tort Claims Act.  The complaint alleges that the U.S. Border Patrol and the Wakeman Police Department have engaged in illegal profiling of Hispanics and seeks injunctive relief to prohibit the use of race as a motivating factor in stops and detentions.

Following extensive discovery, the court declined to dismiss all but one of Plaintiffs’ claims, finding that they stated a claim for relief and also that they satisfied the pleading standard set out in Ashcroft v. Iqbal, 556 U.S. 662, 678–89 (2009). Subsequently, the parties entered into settlement discussions and reached a resolution of the case in early 2014 in which each of the plaintiffs received $7,000.00 plus an additional amount in attorneys fees.

Saucedo-Carrillo, et al. v. United States

Saucedo-Carrillo, et al. v. United States, U.S. District Court, Northern District of Ohio, Western Division (N.D. Ohio; 3:12-cv-2571)

U.S. Court of Appeals for the Sixth Circuit  (Sixth Cir. 13-4502)

In a related case to Muñiz v. United States Border Patrol, ABLE filed a Federal Tort Claims Action on behalf of a mother and daughter who allege that a Border Patrol Agent profiled them for arrest because they are Hispanic.  The Plaintiffs were purchasing gasoline at a gas station in Norwalk, Ohio, when an Agent blocked their vehicle and started questioning them.  This lawsuit against the United States alleges the Border Patrol Agent committed the Ohio torts of assault, false imprisonment, deprivation of civil rights through ethnic intimidation, and intentional and negligent infliction of emotional distress.  In 2013, the federal district court judge granted a motion for summary judgment filed by the United States.  The Sixth Circuit, in a decision on August 13, 2015, affirmed the grant of summary judgment 2 -1, with the dissenting opinion stating that a factfinder could find that the Plaintiffs were falsely imprisoned before the Border Patrol Agent developed probable cause for an arrest.

On a related note, the Plaintiffs had been placed in removal proceedings.  The Immigration Judge found that their Fourth Amendment rights were violated by the conduct of the Border Patrol Agent, but the violation was not egregious.  The removal cases were administratively closed.

Vazquez-Mentado v. Buitron, et al.

Vazquez-Mentado v. Buitron, et al., 5:12­-cv-­00797 (N.D. N.Y., filed Nov. 6, 2012)

Mr. Gerardo Vazquez-Mentado, a naturalized U.S. citizen, filed this suit in federal district court in the Northern District of New York based on his unlawful arrest by Border Patrol agents. He brought a claim under the Federal Tort Claims Act for false arrest and false imprisonment and a second claim under Bivens for violation of his Fourth Amendment rights.

On September 29, 2009, Mr. Vazquez, a resident of Oswego, New York, was driving into the city of Oswego. His wife and two children were with him in the family van. He was pulled over by Border Patrol agents who demanded his ID. He then presented his New York state driver’s license. After the agents accused him of being undocumented, Mr. Vazquez responded that he was a U.S. citizen. The Border Patrol agents ignored him, and instead placed him in handcuffs and transported him, with the help of the Oswego Police Department, to the Border Patrol station. He was released only after his wife returned to the station with his U.S. passport and Certificate of Naturalization, approximately 90 minutes after he was first stopped.

Mr. Vazquez first filed a complaint in federal court on May 14, 2002. Defendants filed a motion to dismiss on September 28, 2012. Plaintiffs filed an amended complaint on November 6, 2012. Defendants then filed a renewed motion to dismiss on December 7, 2012. After briefing by the parties, the federal court issued an order on May 28, 2013, denying the defendants’ motion to dismiss the FTCA claim as well as the Bivens claim as to the two arresting agents, and granting Mr. Vazquez leave to further amend the complaint to include additional allegations needed to maintain the Bivens claim against the supervising officer.

After subsequent filings, including a second amended complaint, a motion to dismiss by the supervisor officer, and summary judgment motions by the arresting officers, the parties entered into settlement negotiations which culminated in a settlement approved by the court on November 10, 2014.

Arreaga v. United States of America

Arreaga v. United States of America, 5:16-cv-00007 (S.D. Texas, Complaint filed January 19, 2016)

The complainant, a United States citizen, stopped at a U.S. Border Patrol checkpoint in Texas at approximately 11 a.m. on September 4, 2014. He told the agents that he was a United States citizen and showed them his citizenship card. The agents incorrectly believed that he was carrying drugs in his vehicle. They detained and questioned him and disassembled his truck. No drugs were found. Without probable cause, they continued to detain him for a total of approximately 17 hours, finally releasing him at about 4 a.m. the morning following his initial stop. In January 2016, Plaintiff Julio Adolfo Arreaga filed a complaint in the S.D. Tex. Discovery concluded as of December 2016.

The parties agreed to Court-hosted mediation on May 16, 2017. On July 13, 2017, the case was dismissed following a settlement between the parties.

Counsel: Javier Maldonado

Contact: Javier Maldonado | (210) 277-1603 | jmaldonado.law@gmail.com