Category Archives: Arrests/Searches & Seizures

State of Washington v. Greyhound Lines, Inc.

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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. On March 31, 2022, the Washington Attorney General’s office closed the settlement claims process.

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

Press:  Greyhound Agrees to Pay $2.2 Million Over Immigration Sweeps on Buses

Djumaev v. U.S. Federal Bureau of Investigation et al.

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Djumaev v. U.S. Federal Bureau of Investigation et al., No. 1:21-cv-05016-DG-MMH (E.D.N.Y., filed Sept. 8, 2021)

Plaintiff Akram Djumaev, a lawful permanent resident (LPR) of the United States, commenced this action against various federal agencies, including U.S. Customs and Border Protection (CBP), alleging violations of his rights under the Fourth and Fifth Amendments, the Immigration and Nationality Act (INA), and the Administrative Procedure Act (APA). Mr. Djumaev is a resident of Chicago and a citizen of Uzbekistan who has been a lawful permanent resident since 2013. In January 2016, he traveled to Uzbekistan for the purpose of visiting family and getting engaged. After going through the security checkpoint at John F. Kennedy International Airport in New York, four law enforcement agents approached him and interrogated him, specifically asking whether he knew anyone in Turkey, Syria, or Afghanistan. Without consent or warrant, the agents then searched and confiscated his smartphone without providing any reason for doing so. After an hour of questioning, Mr. Djumaev was allowed to board the plane to Uzbekistan. However, the agents did not return his smartphone to him. In fact, to date, they still have not done so.

When Mr. Djumaev attempted to return home to the United States in March 2016, the airline attendant at the airport informed him that he would not be able to board—presumably because he had been placed on the U.S. government’s “No Fly List.” That same day, Mr. Djumaev contacted the U.S. embassy in Tashkent, Uzbekistan, and filed a Traveler Redress Inquiry Program (TRIP) complaint with DHS shortly afterward.

Two months later, Mr. Djumaev was instructed to visit the embassy for an interview. When he arrived, he was taken to a windowless room and interrogated by Federal Bureau of Investigation (FBI), Department of Homeland Security (DHS), and State Department agents. The agents allegedly stated that Mr. Djumaev was a “threat to the U.S.” without any explanation or justification for that claim. They also suggested—again, without providing any basis—that they knew he had terrorist affiliations and had been involved in criminal activity. The agents repeatedly coerced Mr. Djumaev to admit that he was guilty and threatened that he would be arrested and imprisoned upon returning to the United States. After about two hours of interrogation, the agents told him that he had only two choices: either return to the United States. and be imprisoned, or agree to sign a form stating that he would not return to the United States. The agents handed him a pre-filled Form I-407, Record of Abandonment of Lawful Permanent Resident Status. Although Mr. Djumaev had no desire whatsoever to relinquish his LPR status, he signed the form, believing that he had no other choice. During this process, the agents never informed Mr. Djumaev of his rights.

After that incident, Mr. Djumaev attempted twice to return to the United States, but he was denied boarding each time. Although LPRs placed on the No Fly List are eligible for a one-time waiver to return to the United States, the embassy has refused to issue such a waiver to Mr. Djumaev. Later, Mr. Djumaev retained counsel and challenged the validity of the I-407, but the government has not provided any response. As a result of Defendants’ actions, Mr. Djumaev has been unable to return to the United States for over five years and has suffered significant financial and emotional harms.

Mr. Djumaev’s complaint alleges that Defendants violated his due process rights under the Fifth Amendment by placing him on the No Fly List without adequate notice or opportunity to challenge the decision, as well as by coercing him to abandon his LPR status. The complaint further asserts that Defendants’ actions violated his rights under the INA (depriving him of LPR status and excluding him from the United States without charge or a removal hearing) and the Fourth Amendment (unlawful search and seizure of his smartphone and its private contents). Finally, Mr. Djumaev claims that Defendants’ actions were “arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law,” in violation of the APA. He seeks declaratory and injunctive relief, and requests, among other things, that the district court issue an order voiding the improper I-407 form and directing Defendants to restore his LPR status. The parties agreed to a settlement and stipulated to dismiss the case on January 24, 2023.

Documents:

Counsel: Jamila Marjani Hall & Sharnell S. Simon | Jones Day, Atlanta
Ramzi Kassem & Naz Ahmad | Main Street Legal Services, Inc.

State of Texas and State of Louisiana v. United States

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State of Texas and State of Louisiana v. United States, No. 6:21-cv-00016 (S.D. Tex., filed Apr. 6, 2021); 21-40618 (5th Cir., filed Aug. 20, 2021); 22-40367 (5th Cir., filed Jun. 23, 2020)

On April 6, 2021, the State of Texas and the State of Louisiana commenced this action seeking to enjoin the enforcement of interim immigration enforcement priorities outlined in two memoranda issued by the Department of Homeland Security (DHS) (dated Jan. 20, 2021) and Immigration and Customs Enforcement (ICE) (dated Feb. 18, 2021). Noting DHS’s limited resources and inability to respond to all immigration violations, those memos announced that the agency would prioritize enforcement against individuals who are purported to pose a threat to national security, individuals apprehended at or near the border while attempting to unlawfully enter the United States on or after November 1, 2020, and individuals convicted of an “aggravated felony” and recently released from criminal detention. Texas and Louisiana argue that these enforcement priorities are unlawful because:

(1) They violate the mandatory detention statute, 8 U.S.C. § 1226(c), as well as § 1231(a)’s requirement that noncitizens with final orders of removal be detained during the removal period;
(2) They unconstitutionally direct executive officials not to enforce federal immigration laws, in contravention of Article II’s “Take Care” Clause;
(3) They constitute arbitrary and capricious agency action in violation of the Administrative Procedure Act (APA);
(4) DHS and ICE issued the interim enforcement priorities without following the notice-and-comment procedures required by the APA; and
(5) The memos were issued without adherence to the notice and consultation requirements contained in DHS’s cooperation agreements with Texas and Louisiana.

On August 19, 2021, the district court granted a nationwide preliminary injunction, concluding that the memos violated the Immigration and Nationality Act (INA) and the APA. It thus enjoined the government from following the interim priorities outlined in the challenged memos. The U.S. government then sought an emergency stay pending appeal as well as a temporary administrative stay. The Fifth Circuit granted a temporary administrative stay and heard oral argument on the motion for emergency stay pending appeal.

On September 15, 2021, the Fifth Circuit published its decision granting in part and denying in part the government’s motion to stay the preliminary injunction. While staying much of the injunction, the Fifth Circuit left narrow portions of the order in place. Specifically, the court declined to stay the injunction only insofar as it restrained the Biden Administration from using the Priorities Memos to guide the discretion of immigration officials in deciding whether to release two specific categories of immigrants: (1) those subject to the mandatory provision under 8 U.S.C. §§ 1226(c)(1) against whom immigration officials have issued a detainer and (2) those with final removal orders and subject to mandatory detention under § 1231(a)(2). The injunction is stayed pending appeal in all other respects.

On September 30, 2021, DHS completed its review of its policies and practices concerning immigration enforcement and issued a new memorandum establishing its revised enforcement priorities. The new guidance is set to become effective on November 29, 2021, thereby superseding the challenged interim priorities. In light of this development, the government filed a motion for abeyance on October 6, 2021, arguing that the case would likely become moot before the court reaches a decision on merits. The government requested that the court hold the case in abeyance until the new priorities go into effect, and also that the court stay the briefing schedule pending resolution of the motion.

Texas and Louisiana filed a response opposing the motion for abeyance as well as a petition for rehearing en banc, arguing that the panel had erred by misconstruing the relevant INA provisions and also by failing to evaluate whether the challenged memos violated the APA. The Fifth Circuit granted appellants’ unopposed motion to dismiss the appeal on February 11, 2022. In the district court proceedings, the States filed an amended complaint, alleging that DHS’s September 30 memorandum “suffers from the same legal infirmities” as its earlier memos. They also filed a motion to postpone the effective date of the recent memorandum, or, in the alternative, to preliminarily enjoin its enforcement.

The district court case went to trial on February 23, 2022. After the bench trial and post-trial briefing, the court issued a memorandum opinion and order on June 10, 2022, finding the plaintiff states have proven their first four counts by a preponderance of the evidence, and finding that the states did not prove Count V with regard to lack of consultation of the individual states. The final judgment vacated the September 30, 2021, memorandum. The government filed a notice of appeal to the Fifth Circuit on June 13, 2022. The Fifth Circuit denied a motion for stay pending appeal, and an application for a stay of judgment was filed with the Supreme Court on July 8, 2022. The Supreme Court denied the application for stay but construed the application as a petition for certiorari before judgment and granted the petition on July 21, 2022. The Fifth Circuit appeal was placed in abeyance pending the Supreme Court case.

Documents:

Counsel: Brian M. Boynton, Jennifer B. Lowery, Sarah E. Harrington, H. Thomas Byron III, Michael Shih, and Sean Janda | U.S. Dep’t of Justice

Contact: Department of Justice

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

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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 July 14, 2022, the court granted Defendant’s motion to dismiss in part. On July 15, 2022, Plaintiffs filed an amended complaint, which the institutional Defendants answered on August 3, 2022. On September 19, 2022, the individual defendants moved to dismiss the amended complaint for failure to state a claim.  On January 13, 2023, the court heard arguments on the motion to dismiss, and a decision is pending.

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

American Civil Liberties Union v. Department of Homeland Security

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American Civil Liberties Union v. Department of Homeland Security, 1:20-cv-10083 (S.D.N.Y., filed Dec. 2, 2020).

Many modern cell phone applications routinely gather users’ location information and sell it to third parties, who then use it for marketing and other purposes. In February 2020, the Wall Street Journal reported that Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and the Department of Homeland Security (DHS) were purchasing location information from private companies and using it to locate and arrest noncitizens. One company, Venntel, appears to be selling access to a large database to DHS, CBP, and ICE. This raises serious concerns that CBP and ICE are evading Fourth Amendment protections by purchasing location information instead of obtaining warrants.

In February 2020, the ACLU filed Freedom of Information Act (FOIA) requests with DHS, CBP, and ICE seeking: (1) records of contracts, letters of commitments, and other agreements concerning government access to or receipt of cell phone location information; (2) all communications with or about Venntel Inc.; (3) policies, guidelines, memoranda, and trainings relating to government access and use of cell phone information purchased from commercial vendors; (4) formal legal analysis concerning access to commercial databases containing cell phone location information purchased from a commercial vendor; (5) records sufficient to show the volume of cell phone location data contained in commercial databases for which DHS, CBP, and ICE have purchased access; (6) records showing how many times each year DHS, CBP, and ICE employees or contractors have accessed such databases; and (7) records concerning the use of commercially purchased cell phone information in any court application, trial, hearing, or other proceeding.

On December 2, 2020, the ACLU filed a complaint seeking to compel CBP, ICE, and DHS to conduct adequate searches for the records they requested through FOIA. Defendants filed their answer on January 27, 2021, and production in response to ACLU’s FOIA request is ongoing.

Documents:

Counsel: ACLU Foundation Speech, Privacy, and Technology Project

Contact: Nathan Freed Wessler, ACLU Foundation | (212) 549-2500 | nwessler@aclu.org

Additional links:

• Brian Tau and Michelle Hackman, Federal Agencies Use Cellphone Location Data for Immigration Enforcement, The Wall Street Journal, Feb. 7, 2020.

Malik v. U.S. Department of Homeland Security

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Adam A. Malik, et al. v. U.S. Department of Homeland Security, et al., No. 4:21-cv-00088-P (N.D. Tex., filed Jan. 25, 2021) and No. 22-10772 (5th Cir., filed Aug. 11, 2022)

Adam Malik is an immigration attorney based in Texas. In January 2021, Mr. Malik returned to the United States from a trip to Costa Rica, during which he had used his phone to contact clients and work on cases in which the Department of Homeland Security (DHS) is an opposing party. When he attempted to reenter the United States through Dallas-Fort Worth Airport, Mr. Malik was sent to secondary inspection. After extensive questioning, including about his legal practice, Customs and Border Protection (CBP) officers seized Mr. Malik’s phone and informed him that its contents would be searched.

On January 25, 2021, Mr. Malik filed suit against the DHS and CBP in the Northern District of Texas. He claims that the seizure and search of his phone without probable cause or a warrant violates the First and Fourth Amendments. He also claims that CBP Directive 3340-049A, which governs the search of digital devices at ports of entry, is arbitrary and capricious, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), because it fails to adequately protect privileged legal information and impermissibly permits CBP to conduct searches and seizures that violate the First and Fourth Amendments. In addition to the return of his phone and the destruction of information and documents seized by CBP, Mr. Malik seeks injunctive and declaratory relief enjoining enforcement of CBP Directive 3340-049A and declaring it unlawful. On March 29, 2021, Defendants filed their answer to Mr. Malik’s complaint.

The parties filed cross-motions for summary judgment in early 2022. On August 4, 2022, the court granted summary judgment in favor of Defendants, holding both that Mr. Malik did not have standing to sue for declaratory relief under the APA and that no constitutional violation occurred to support the constitutional claims. Mr. Malik appealed the judgment to the Fifth Circuit.

The district court also ordered that Defendants may recover $4,542 dollars from Mr. Malik in taxable costs.

Documents:

Counsel: Roy Petty & Associates, PLLC

Contact: Roy Petty, Roy Petty & Associates, PLLC | (214) 905-1420, roy@roypetty.com

Additional links:
• Tim Cushing, Texas Immigration Lawyer Sues DHS, CBP Over Seizure and Search of His Work Phone, TechDirt.com, Feb. 2, 2021.
 

I.M. v. U.S. Customs and Border Protection

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I.M. v. U.S. Customs and Border Protection, et al., No. 1:20-cv-3576-DLF (D.D.C., filed Dec. 11, 2020) and No. 22-5071 (D.C. Cir., filed Mar. 18, 2022)

I.M. is a sustainable agriculture entrepreneur and founder of a nonprofit organization that promotes sustainable farming who came to the United States on a B-1 visa to learn more about sustainable agricultural practices. Despite having been admitted for this purpose in 2019, when he attempted to reenter the country in 2020 on a valid B-1 visa he was detained on erroneous grounds by a Customs and Border Protection (CBP) officer, who unilaterally decided to revoke I.M.’s visa and expel him from the country under the expedited removal statute, 8 U.S.C. § 1225(b)(1)(A)(i). At no point did I.M. have an opportunity to obtain judicial review of CBP’s legally and factually incorrect decisions to detain him, revoke his visa, and deny him admission to the country.

On December 11, 2020, I.M. filed a habeas petition and complaint against federal government defendants, including CBP, seeking vacatur of his removal order and reinstatement of his B-1 visa. I.M. argued that an unappointed CBP employee exercising unreviewed, unilateral discretion to revoke his visa and remove him violated the Appointments Clause of the Constitution, U.S. Const. art. II, § 2, cl. 2. The Appointments Clause requires that federal government officials who exercise significant authority be appointed by the President or, with Congress’s authorization, by a Head of Department or a court of law. I.M. claims that the decisions of CBP employees to unilaterally order removal under the expedited removal statute are void unless those employees were appointed consistent with the requirements of the Appointments Clause.

The government filed a motion to dismiss the complaint and petition on jurisdictional grounds in late February 2021. On January 1, 2022, the court granted the Defendants’ motion to dismiss in a sealed opinion. On March 18, 2022, Plaintiff filed a notice of appeal with the D.C. Circuit. Briefing is complete and the D.C. Circuit held oral arguments on January 25, 2023. A decision is pending.

Counsel: Democracy Forward Foundation, National Immigrant Justice Center, Latham & Watkins

Contact: Mark Fleming, National Immigrant Justice Center, mfleming@heartlandalliance.org

Additional links:
• NIJC, DHS and CBP Sued for Unconstitutionally Allowing Unappointed Border Employees to Deport Immigrants (Dec. 11, 2020).

Grays v. Mayorkas

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Johnny Grays, et al. v. Mayorkas, et al., No. 3:21-cv-10526-RHC-KGA (E.D. Mich., filed Mar. 9, 2021)

Johnny Grays, Mikal Williams, and Jermaine O. Broderick, Sr., are all Black Customs and Border Protection (“CBP”) officers at the Blue Water Bridge in Port Huron, Michigan, where only four out of 275 CBP officers are Black. They claim that, for over a decade, CBP management at the Port Huron Port of Entry systematically targeted Black drivers for stops; subjected them to additional scrutiny, including criminal record checks; and treated them in an unprofessional and demeaning fashion. They also claim that as Black CBP officers they were subjected to a hostile, racist work environment in which other CBP officers repeatedly made racist comments and were demeaning.

On March 9, 2021, Grays, Williams, and Broderick, Sr. filed a lawsuit in the Eastern District of Michigan alleging widespread discrimination against Black travelers and Black CBP officers at the Port Huron, Michigan Port of Entry. Defendants moved to dismiss the complaint, and on July 29, 2021, the court granted in part and denied in part the motion, dismissing Plaintiffs’ claim for discrimination under § 1981 as preempted by Title VII, but allowing Plaintiffs to proceed on their Title VII disparate treatment claim and allowing Grays to proceed on his Title VII hostile work environment and retaliation claims. The court also expressly permitted Plaintiffs Williams and Broderick to amend their complaint by August 20, 2021 to include Title VII retaliation claims after administratively exhausting. On August 12, 2021, Defendants filed their answer to the complaint. On August 23, 2021, after Plaintiffs advised the Court that their administrative remedies would not be exhausted by August 20 (as such claims can only be filed 180 days after filing an Equal Employment Opportunity administrative complaint), the Court issued an order permitting Plaintiffs to file their retaliation claims subsequent to this deadline. As such, the Court amended the case caption to reflect that Johnny Grays is the sole remaining Plaintiff in this action. The parties engaged in discovery throughout the first half of 2022. In June 2022, Defendants filed a motion for summary judgment. Briefing was completed in August 2022 and a decision is pending from the district court.

Counsel: Deborah Gordon Law

Contact: Deborah Gordon, Deborah Gordon Law | (248) 258-2500 | dgordon@deborahgordonlaw.com

Additional Links:

• Zack Linly, 3 Black Border Patrol Officers File Lawsuit Against CBP Alleging Constant Racial Profiling and Harassment of Black Travelers, The Root, Apr. 21, 2021.

Drewniak v. U.S. Customs and Border Protection

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Drewniak v. U.S. Customs and Border Protection, et al., No. 1:20-cv-00852 (D.N.H., filed August 11, 2020)

Throughout northern New England, Border Patrol operates temporary checkpoints to detain hundreds – if not thousands – of individuals without any suspicion. This case challenges these checkpoints.

On August 26, 2017, Plaintiff Jesse Drewniak, a New Hampshire resident and U.S. citizen, was returning home from a fishing trip when Border Patrol stopped him at one such temporary interior checkpoint. During this encounter, heavily-armed Border Patrol agents illegally detained and searched Mr. Drewniak for almost an hour. After detecting a small quantity of hashish oil, agents arrested Mr. Drewniak for the state law violation-level offense of unlawful possession of a prohibited substance.

In May 2018, the Plymouth Circuit Court reviewed the charges against Mr. Drewniak and fifteen other individuals arising out of the August 2017 checkpoint, eventually suppressing all the evidence as seized in violation of the Fourth Amendment and the New Hampshire Constitution. The state judge further found that Border Patrol was impermissibly using the checkpoint for the purpose of general crime control, not immigration enforcement, thereby making the checkpoint unconstitutional under federal law. The State then voluntarily dropped all charges against Mr. Drewniak and the fifteen other individuals. However, despite this victory, Border Patrol continues to use these unconstitutional checkpoints in northern New England.

Mr. Drewniak now seeks compensatory and punitive damages against the Border Patrol agents involved in his unconstitutional search and seizure pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, as well as declaratory and injunctive relief to stop Border Patrol from conducting these illegal checkpoints in Woodstock, New Hampshire. In November 2020, Defendants moved to dismiss the case for failure to state a claim and lack of subject matter jurisdiction. The parties stipulated to dismissal of claims against one defendant, and the court set a briefing schedule.

On April 8, 2021, the district court issued an order granting in part and denying in part Defendants’ motions to dismiss. The court dismissed count one of the complaint, which sought Bivens damages against a Border Patrol agent for violations of his Fourth Amendment rights. It denied the motion to dismiss the second count, which sought declaratory and injunctive relief precluding Customs and Border Protection (CBP) from operating additional traffic checkpoints. On December 7, 2021, Plaintiff’s filed an amended complaint. On March 22, 2022, the official defendants moved to dismiss the amended complaint. As of November 2022, the motion to dismiss has been fully briefed and a decision is pending from the court. On February 15, 2023, the court denied the Defendants’ motion to dismiss the amended complaint.

Documents:

Counsel: ACLU of New Hampshire Foundation; ACLU of Maine Foundation; ACLU Foundation of Vermont; McLane Middleton; Mark Sisti; Albert Scherr

Contact: Gilles Bissonnette | ACLU of New Hampshire Foundation | gilles@aclu-nh.org

Adlerstein v. U.S. Customs and Border Protection

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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. The court held oral argument on Defendants’ motion to dismiss and motion for summary judgment on August 4, 2020. On October 1, 2020, the court granted in part and denied in part Defendants’ motion to dismiss, allowing Plaintiffs to proceed on their First and Fourth Amendment claims regarding Mr. Valenzuela’s detention. Plaintiffs filed an amended complaint on October 26, 2020. Defendants responded to the amended complaint on December 4, 2020. The case continued in discovery through 2021 and 2022. Discovery is scheduled to terminate in February 2023, with dispositive motions due in July 2023.

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

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