Category Archives: Arrests/Searches & Seizures

Mohanad Elshieky v. USA

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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) officials unlawfully seized and detained Mr. Elshieky, an asylum recipient lawfully present in the United States, aboard a Greyhound bus in January 2019. Shortly after Mr. Elshieky boarded a Greyhound bus in Spokane, Washington, CBP officials entered the bus and began questioning and detaining people of color. A CBP official 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 officials continued to detain him and accused him of being unlawfully present as they confirmed his immigration status.

Mr. Elshieky filed an administrative complaint under the Federal Tort Claims Act (FTCA) on April 25, 2019, seeking $250,000 in damages for wrongful arrest and false imprisonment. 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.

After the court denied Defendants’ motion to dismiss as to Mr. Elshieky’s discrimination claim, Defendants filed their answer. Discovery is now beginning, and a bench trial has been postponed due to the pandemic. After a bench trial was postponed due to the pandemic, the case was referred to mediation and all deadlines were vacated. In March 2021, the government reached a settlement with Mr. Elshieky which included an award for damages. 

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

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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’Neal, 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’Neal did not seek dismissal of the Bivens claim for damages. Plaintiffs amended their complaint on January 29, 2020. The district court denied Defendant O’Neal’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 survived.

The parties reached an undisclosed monetary settlement in November 2020.

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

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

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Lovell v. United States

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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.

On August 3, 2022, the court granted Defendants’ motion for summary judgment in its entirety on the basis that the Supreme Court’s decision in Egbert v. Boule foreclosed Ms. Lovell’s Bivens action against the named CBP officers. Alternatively, the court held that that the officers would be entitled to qualified immunity for their actions.

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Counsel: The Sanders Firm, P.C.
Contact: Eric Sanders | 212-652-2782

Boule v. Egbert

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Boule v. Egbert et al., Nos. 2:17-cv-00106-RSM (W.D. Wash., filed Jan. 25, 2017), 18-35789 (9th Cir., filed Sept. 20, 2018), and 21-147 (U.S. June 8, 2022)

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 agent’s motion for summary judgment and dismissed the plaintiff’s Fourth Amendment claim. Although the court 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 heard oral arguments.

On November 20, 2020, the Ninth Circuit issued an opinion reversing the district court’s summary judgment for defendants and holding that Bivens remedies were available in the circumstances of this case.

On May 20, 2021, the Ninth Circuit denied a sua sponte request from an active judge on the Ninth Circuit for rehearing en banc. The Ninth Circuit simultaneously amended its opinion to include additional analysis to support the original holding that Bivens remedies are available in the circumstances of this case, including a more thorough discussion of the lack of alternative remedies.

Egbert then appealed to the Supreme Court. In November 2021, the Supreme Court granted certiorari on two specific issues: (1) whether Bivens extends to First Amendment retaliation claims; and (2) whether Bivens extends to Fourth Amendment claims involving immigration enforcement. However, the Supreme Court denied Egbert’s request to consider overruling Bivens.

The Supreme Court issued a decision on June 8, 2022, reversing the Ninth Circuit. The Court held that Mr. Boule could not bring his First or Fourth Amendment claims against Agent Egbert. With respect to the Fourth Amendment claim, the Court came to this conclusion by answering one central question: “whether there is any rational reason (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.’” According to the Court, a lawsuit against Border Patrol agents at the border necessarily implicates national security concerns. Because of that, only Congress could allow such a lawsuit. The Court made this finding even though this case involved a low-level officer engaged in routine law enforcement activity against a U.S. citizen on U.S. soil on his own property.

The Court also found a Bivens remedy inappropriate because U.S. Border Patrol has a grievance process. The Court said it did not matter that this process did not allow Mr. Boule monetary damages, that it could not be appealed, or, as the dissent points out, that it offers “no meaningful protection of the constitutional interests at stake.”

The Court declined to extend a Bivens remedy to Mr. Boule’s First Amendment retaliation claim, stating that it could significantly expand litigation against federal agents.

Counsel: Wilmer Cutler Pickering Hale and Dorr; 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

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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. Mr. Sosa filed for partial summary judgment on September 23, 2020, which was denied on November 17, 2020. A bench trial set for January 19, 2021, has been postponed due to the pandemic, and is now scheduled for June 2021. In March 2021, the government reached a settlement agreement with Mr. Sosa which included an award for damages.

In the course of discovery, the government agreed to lift a confidentiality designation on certain information produced, including deposition excerpts from an officer confirming that CBP no longer requires agents to possess “actionable intelligence” prior to performing security checks at transportation hubs like bus stations. That requirement came into place during the Obama administration, but was lifted after Trump’s election. In addition, the confidentiality designation was lifted on an internal CBP memo from January 2020 detailing Border Patrol’s interpretation of its statutory authority to engage in “suspicionless and consensual encounters” at public bus or train stations.

Counsel: ACLU of Washington | Northwest Immigrant Rights Project

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

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FTCA Administrative Complaint on behalf of US Citizen deported by CBP

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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

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Bressi v. Napier

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Bressi v. Napier, No. 4:18-cv-00186 (D. Ariz., amended complaint filed July 2, 2018) and No. 22-15123 (9th Cir., filed Jan. 27, 2022)

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 based on 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 a deputy illegally detained him at a Border Patrol checkpoint. 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, a 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.

This 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 moved to dismiss the case.

On April 17, 2020, the court granted the motion to dismiss in part. Although the court dismissed Bressi’s claim that defendants improperly retaliated against him for exercising his First Amendment right not to speak during an immigration stop, Bressi’s Fourth Amendment claims regarding the constitutionality of the checkpoint and his arrest survived.

Discovery continued through June 2021. On June 10, 2021, Plaintiff filed a motion for partial summary judgment on Plaintiff’s claim that the checkpoint violates the Fourth Amendment and on June 17, 2021, Defendants filed a cross motion for summary judgment. On January 10, 2022, the district court granted Defendants’ motion for summary judgment and denied Plaintiff’s motion for partial summary judgment. Judgment was entered in favor of Defendants. Plaintiff has filed a notice of appeal to the Ninth Circuit.  On February 24, 2023, the Ninth Circuit affirmed the judgment of the district court, finding the evidence showed that the checkpoint was a permissible exercise of immigration enforcement authority and that Bressi’s arrest was supported by probable cause.

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Counsel: Ralph E. Ellinwood PLLC

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

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Wilwal v. Kelly

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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 six 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 their constitutional rights, including the right against search and seizure and Mr. Wilwal’s 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.

In May 2020, following successful settlement negotiations, the case was dismissed with prejudice.

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Counsel: ACLU Foundation; ACLU Foundation of Minnesota; Robins Kaplan LLP

R.M.H. v. Lloyd

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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

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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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