FTCA Administrative Complaint on behalf of US Citizen deported by CBP

FTCA Administrative Complaint on behalf of US Citizen deported by CBP

In September of 2018, Julio Cesar Ovalle filed an administrative complaint against the Department of Homeland Security under the Federal Tort and Claims Act for being unlawfully seized and wrongfully deported last June. Mr. Ovalle, 24, is a U.S. citizen who was born in Los Angeles.

Ovalle, a resident of San Antonio, was stopped by a Border Patrol agent on June 11, 2018 while walking along Portanco Road toward his neighborhood. The agent asked for his “papers,” and refused to believe Ovalle’s assertions of his citizenship. Ovalle told the officer he had a passport and other documentation at home, but the agent did not listen and instead took Ovalle’s phone and transported him to the Border Patrol station in Cotulla. Ovalle was deported the next day to Nuevo Laredo.

In Mexico, Ovalle was kidnapped by cartel members and held for ransom with a group of about 80 other immigrants, including recent deportees. Ovalle’s family called Laredo police, who referred them to the FBI. Ovalle was eventually released at one of the international bridges in Nuevo Laredo, and returned to the U.S.

Counsel: Javier Espinoza Garcia | Espinoza Law Firm, PLLC

Press coverage:

Bressi v. Napier

Bressi v. Napier, No. 4:18-cv-00186-DCB (D. Ariz., amended complaint filed July 2, 2018)

On July 2, 2018, Plaintiff Terry Bressi filed an amended complaint against Pima County Sheriff Mark Napier and other county defendants alleging that they violated his First and Fourth Amendment rights when Sheriff’s deputies arrested him at a Border Patrol checkpoint in April 2017 after refusing to answer Border Patrol’s citizenship questions.  Bressi has also lodged a federal notice of claim against the Border Patrol for the same incident.

Bressi, who has traveled the same route since 1993 from his Tucson home to his rural worksite west of Tucson, has contended many times with the abuses and excesses of the Border Patrol.  For example, Mr. Bressi previously sued another local police agency when it illegally detained him at a checkpoint erected at the direction of the Border Patrol.  See Bressi v. Ford, 575 F.3d 891, 894 (9th Cir. 2009). On April 10, 2017, Bressi was returning home from work when he passed through the Border Patrol checkpoint.  Consistent with his personal opposition to the existence of interior checkpoints, Bressi refused to answer the Border Patrol’s questions. Shortly after, the Pima County Sheriff’s deputy – who was stationed at the checkpoint under a federal grant program called Operation Stonegarden – took over the interaction with Bressi and insisted that he answer the Border Patrol’s questions. Eventually, the deputy arrested Bressi and placed him in handcuffs, purportedly because Bressi had “obstructed” the highway.

The lawsuit alleges that the deputy retaliated against Bressi for exercising his First Amendment right not to answer Border Patrol’s questions. Additionally, the lawsuit alleges that the pervasive presence of local law enforcement at the Border Patrol checkpoint materially altered the nature of the checkpoint itself, rendering the whole checkpoint unconstitutional under the long-standing Fourth Amendment principle that permanent checkpoints are permitted only for limited immigration-related purposes and not for the “general interest in crime control.”  The federal defendants answered the complaint on October 2, 2019. The Pima County defendants have moved to dismiss the case and as of October 2019, those motions are pending.

Counsel: Ralph E. Ellinwood PLLC

Contact: Ralph E. Ellinwood | Ralph E Ellinwood Attorney at Law PLLC| ree@yourbestdefense.com

Resources:

Wilwal v. Kelly

Wilwal, et al. v. Kelly, et al., No. 0:17-cv-02835 (D. Minn., filed July 13, 2017)

On July 13, 2017, the ACLU, the ACLU of Minnesota, and Robins Kaplan LLP brought suit on behalf of the Wilwal-Abdigani family, a family of 6 American citizens who were detained at a North Dakota port of entry for over ten hours when crossing back into the United States from Canada. When the family arrived at the border, CBP agents drew their weapons and handcuffed Abdisalam Wilwal, allegedly because his name appeared on a terrorism-related watchlist, which Mr. Wilwal believes was a wrongful placement. He was questioned for hours and ended up fainting while in custody due to the placement of his handcuffs. Agents allegedly questioned him for being a Muslim and demanded to know if he was involved with terrorism. When Mr. Wilwal’s teenage son called 911 and reported that he was being held against his will, CBP agents confiscated his phone and strip-searched him.

Mr. Wilwal and his family brought suit against CBP seeking declaratory and injunctive relief for violations of his constitutional rights, including the right against search and seizure and his right to due process because of his placement on a terrorism watchlist without any opportunity to challenge that placement. On October 12, 2017, the plaintiffs amended the complaint to add claims under the Federal Tort Claims Act for false imprisonment, assault, and battery. On November 8, 2017, the government moved to dismiss the case. Briefing was completed on the motion to dismiss on January 24, 2018.

On September 27, 2018 the court granted in part and denied in part the government’s motion to dismiss. Plaintiff’s claim alleging violation of substantive due process rights was dismissed with prejudice; and the government’s motion was denied in all other respects.

Press coverage:

R.M.H. v. Lloyd

On October 30, 2017, the ACLU Immigrants’ Rights Project, the ACLU of Texas, and Washington Square Legal Services, Inc. filed suit against the Office of Refugee Resettlement and CBP following the arrest and detention of 10-year-old Rosa Maria Hernandez, who came to the United States when she was three months old and who suffers from cerebral palsy. On October 24, 2017, Rosa Maria was on her way to a children’s’ hospital for gall bladder surgery when the vehicle she was in, driven by a U.S. citizen, was stopped at a Border Patrol checkpoint. Despite being told that she was on her way to the hospital for an imminent surgery, Border Patrol agents detained her for thirty minutes before allowing her to depart.

Agents then followed her to the hospital, went inside, and tracked her movements up to and during the time that she was in surgery. When attorneys for the hospital told the agents that they had to leave, the agents refused to do so, telling the hospital that they intended to arrest Rosa Maria and deport her when she was released from the hospital. When she was discharged the day after her surgery, the agents arrested her directly from her hospital bed and forcibly took her to an Office of Refugee Resettlement Shelter for unaccompanied minors.

On October 30, 2017, counsel for Rosa Maria filed a lawsuit alleging that the Border Patrol’s actions violated Rosa Maria’s statutory and constitutional rights, and sought a temporary restraining order seeking her immediate release. On November 3, 2017, the government released her to the care of her family. The case was voluntarily dismissed the same day. On January 8, 2018, the Border Patrol announced that it would take steps to expedite emergency medical vehicles through checkpoints.

Amadei, et. al. v. Nielsen

Amadei, et al. v. Nielsen, et al., No. 1:17-cv-05967 (E.D.N.Y., filed Oct. 12, 2017)

On October 12, 2017, the ACLU, along with Covington & Burling, LLP, filed suit against Customs and Border Protection over the February 22, 2017 search by CBP of passengers of a Delta Airlines flight that arrived at JFK. After the flight landed, CBP officers stood outside the plane and required every disembarking passenger to provide identification, even though the flight was a domestic flight. The ACLU brought suit on behalf of passengers on the plane who allege that this demand for identification violated their rights under the Fourth Amendment. The plaintiffs seek declaratory relief that the February 22, 2017 search was unconstitutional, as well as injunctive relief preventing CBP from conducting similar searches of passengers disembarking from domestic flights.

Defendants filed a motion to dismiss, arguing that the agency action was not final and that Plaintiffs lacked standing. The parties completed briefing on the motion on April 20, 2018. On December 13, 2018, the court denied the government’s motion and allowed the case to proceed. Following discovery, the parties agreed to settle the case.

Under the terms of the settlement, CBP will circulate a new policy directive to ports of entry nationwide clarifying that CBP does not have a policy or practice of checking the identification of deplaning domestic passengers. If CBP officers do seek to conduct document checks of deplaning domestic passengers in the future, they must make clear through their words and actions that participation is voluntary and request that airline personnel announce over the airplane’s public address system that participation in voluntary. The officers must also provide an unimpeded path for passengers to exit the airplane and explain, if asked, that passengers who decline to participate will face no law enforcement consequences as a result.

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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 was filed in August 2019. As of October 2019, those briefs are still pending. The government filed a notice of supplemental authority regarding Cantu v. Moody 933 F.3d 414 (5th Cir. Aug. 5, 2019) on January 28, 2020. The court heard oral argument on February 4, 2020. On February 26, 2020, the plaintiff filed a notice of supplemental authority regarding the Supreme Court’s decision in Hernandez v. Mesa.

Fifth Circuit Pleadings:

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

Alasaad v. Nielsen

Alasaad et al. v. Nielsen et al., No. 1:17-cv-11730-DJC  (D. Mass., filed Sept. 13, 2017) and Nos. 20-1077, 20-1081 (1st Cir., filed Jan. 28, 2020)

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. In Spring 2019, the parties cross-moved for summary judgment, with plaintiffs arguing that CBP’s policy authorizing warrantless, suspicionless searches of electronic devices violates the First and Fourth Amendments, and are seeking an injunction. Oral argument was held on July 2019. In November of 2019, the court denied Defendants’ motion for summary judgment. The court allowed in part and denied in part Plaintiffs’ motion for summary judgment, denying the request for injunctive relief but allowing the request for declaratory relief. Defendants appealed the order, and Plaintiffs cross-appealed in January of 2020.

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