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

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.

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


Perez v. United States

Angel Mendivil Perez v. United States, et al., 4:21-cv-00051-JEM (D. Ariz., filed Feb. 4, 2021)

On February 7, 2019, Alex Mendivil Perez, a U.S. citizen who was then 21 years old, was shot in the head by a Customs and Border Protection (CBP) officer while attempting to exit the U.S. into Mexico through the Nogales port of entry. At around 7 p.m. that day, Mr. Mendivil arrived at the border crossing driving a pickup truck with a passenger. CBP officers approached his truck, which had license plates registered to a different vehicle, and questioned him. During the questioning, Mr. Mendivil accelerated towards Mexico. As Mr. Mendivil drove away, an unknown CBP officer shot Mr. Mendivil in the head through the back window of his car. Though Mr. Mendivil was so gravely injured that he was believed dead at the scene of his shooting, he survived with permanent injuries, including brain damage.

In February 2021, Mr. Mendivil filed suit against the United States and the unknown CBP officer alleging claims under the Federal Tort Claims Act as well as violations of his Fourth and Fifth Amendment rights.

Documents:

Counsel: Risner & Graham

Contact: William J. Risner & Kenneth K. Graham| bill@risnerandgraham.com | kk@risnerandgraham.com

Additional links:

• Dana Liebelson, A CBP Officer Shot a 21-Year-Old American in the Head. 6 Months Later, CBP Won’t Say Why, Huffington Post, Oct. 19, 2019.
• Ray Stern, A Tucson Man Shot by a Border Officer While Entering Mexico Has Filed a Lawsuit Against DHS, Phoenix New Times, Feb. 8, 2021.

Castellanos v. United States

Castellanos v. United States, No. 18-CV-2334-JM-BLM (S.D. Cal., filed Oct. 10, 2018)

In this case, U.S. Customs and Border Protection (CBP) agents’ excessive use of force during a routine inspection at Calexico Port of Entry left a seventy-five-year-old man in the hospital with a fractured elbow and displaced ribs. On December 17, 2017, Jesus and Raquel Castellanos, at the time seventy-five and seventy-one years old, and their adult son, Marco Castellanos, were in secondary inspection at the Calexico Port of Entry, when a CBP officer began yelling at Marco for using his cellphone. Marco explained he was responding to a message, put his cellphone away, and asked the CBP officer to bring a supervisor, but the CBP officer preceded to put Marco in a chokehold and a group of officers gathered and slammed him against a fence.

Jesus Castellanos pleaded with the officers to let his son go and stop assaulting him. CBP Officer Hedlund shoved Mr. Castellanos, threw him over a bench, and punched him in the chest and ribs multiple times. As Mr. Castellanos lay face down on the bench, Officer Hedlund continued to put all his weight on Mr. Castellanos and twisted his elbow with such force that it was fractured. Mr. Castellanos also suffered multiple displaced ribs from the assault.

Officer Hedlund and two other CBP officers took Mr. Castellanos to a holding cell and when he told them his arm had been injured, Officer Hedlund further bent his arm.  Mr. Castellanos was able to get the attention of a supervisor who called an ambulance that arrived thirty minutes later and took him to the hospital. While her husband was being assaulted and detained, Mrs. Castellanos, who suffers from dementia, pleaded for the officers to stop and became confused and distraught as CBP officials did not explain to her where they had taken her husband or son.

On January 12, 2017, Mr. and Mrs. Castellanos filed administrative complaints under the Federal Tort Claims Act (FTCA), but received no response. On October 10, 2018, they brought this action seeking damages under Bivens and the FTCA. The second amended complaint alleges Officer Hedlund is liable for Fourth Amendment violations under Bivens. The complaint further seeks to hold the United States liable under the FTCA for assault, battery, negligence, intentional infliction of emotional distress, and false imprisonment under the FTCA.

In February 2020, the district court denied the government’s motion for summary judgment. After the summary judgement motion was denied, the Castellanos family reached a settlement agreement with the government on April 24, 2020. Details of the settlement agreement have not been disclosed. It is unknown if Officer Hedlund or any of the other CBP officers involved were disciplined in any way.

Counsel: Iredale & Yoo, APC

Contact: Eugene Iredale | 619.233.1525 | contact@iredalelaw.com

Sabra v. U.S. Customs and Border Protection

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

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

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

Ms. Sabra filed this action on March 9, 2020, seeking to compel CBP to conduct a reasonable search and produce records responsive to her FOIA request. On May 29, 2020, CBP made an initial production and reported that it anticipates making monthly, rolling releases. Ms. Sabra moved for judgment on the pleadings. CBP made additional productions in June, July, and August of 2020. The Court denied Ms. Sabra’s motion on March 2, 2021. On March 10, 2021, the government moved for summary judgment and briefing was completed on May 5, 2021. 

Documents:

Counsel: Law Office of R. Andrew Free

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

A.I.I.L. et al. v. Sessions et al.

A.I.I.L. on behalf of herself and her minor children, J.A.H.I. and M.E.H.I., et al., No. 4:19-cv-00481-JAS (D. Ariz., filed Oct. 3, 2019)

This lawsuit seeks damages on behalf of thousands of traumatized children and parents who were forcibly torn from each other under the Trump administration’s illegal practice of separating families at the border.

Leading child welfare organizations, the American Academy of Pediatrics, and medical professionals have publicly denounced the forced separation of children from their parents, citing the long-lasting, detrimental effects on children’s emotional growth and cognitive development. Separated parents, meanwhile, face an increased risk of developing mental health disorders, with trauma linked to severe anxiety, depression, and suicidal thoughts.

Plaintiffs cited in the complaint include families from Guatemala and Honduras who were separated along the border in Arizona for up to 16 months. In addition to damages, the lawsuit seeks the creation of a fund to pay for professional mental health services for affected families.

The lawsuit, A.I.I.L. v. Sessions, cites violations of the Fourth Amendment (unreasonable seizure of children); the Fifth Amendment due process clause (fundamental right to family integrity; right to a hearing; right to adequate health care); and equal protection (prohibiting discrimination on the basis of race, ethnicity, or national origin).

Defendants include officials from the Departments of Justice, DHS and CBP, Health and Human Services/Office of Refugee Settlement, and the White House.

On February 14, 2020, Defendants filed a motion to dismiss Plaintiffs’ complaint, asserting lack of personal jurisdiction, failure to state a claim, and qualified immunity. Briefing on that motion is complete. On July 22, 2020, Plaintiffs sought leave to amend their complaint to include their administratively exhausted Federal Tort Claims Act (FTCA) claims. Defendants requested that the court defer a decision on Plaintiffs’ motion to amend pending the court’s decision on Defendants’ motion to dismiss. On August 31, 2020 the court granted Plaintiffs’ motion to amend and denied Defendants’ motion to dismiss.

On September 3, 2020, Plaintiffs filed their amended complaint. In February 2021, Defendants moved to dismiss the amended complaint for lack of jurisdiction, failure to state a claim, and on qualified immunity grounds. The motions to dismiss are fully briefed and the parties await a decision from the Court.

On May 20, 2021, Plaintiffs sought a stay of the action to facilitate further settlement discussions in hopes of resolving their FTCA claims against the United States. The individual Defendants objected to the stay of the individual-capacity claims. On June 1, 2021, the Court granted Plaintiffs’ motion to hold the motion to dismiss in abeyance and to stay the litigation for a period of sixty days. On August 2, 2021, Plaintiffs filed a second motion to stay the litigation, which the individual Defendants again opposed. On August 16, 2021, the Court granted the motion, ordering another sixty-day stay of the litigation.

Documents:

Counsel: Christine Wee, ACLU of Arizona; Lee Gelernt, Anand Balakrishnan, Daniel Galindo, Stephen Kang, & Spencer Amdur, ACLU Immigrant Rights’ Project; Geoffry R. Chepiga, Jacqueline P. Rubin, Emily Goldberg, Hallie S. Goldblatt, Steven C. Herzog, Paul, Weiss, Rifkind, Wharton & Garrison LLP; Alexander A. Reinert, Benjamin N. Cardozo School of Law.

Contact: Lee Gelernt | ACLU Immigrants’ Rights Project | lgelernt@aclu.org

Gomez Vincente v. United States of America & Barrera

Gomez Vincente, et al., v. United States of America, et al., No. 5:20-cv-00081 (S.D. Tex., filed May 12, 2020)

On May 24, 2018, Border Patrol agent Romualdo Barrera shot and killed Claudia Patricia Gómez González, a twenty-year-old Guatemalan woman, several hundred yards from the U.S.-Mexico border in Rio Bravo, Texas. Claudia was walking through Rio Bravo with a few other people when Agent Barrera confronted the group. Although several members of the group began running, Claudia remained where she was. Agent Barrera drew his weapon, and when Claudia – a petite woman who was not carrying anything that could even remotely be perceived to be a weapon – took a step forward, the agent aimed at her, pulled the trigger, and shot her in the head.

Following the shooting, U.S. Customs and Border Protection (CBP) issued a press release claiming that members of Claudia’s group had attacked the agent with “blunt objects” and that Claudia was one of the assailants. It later retracted that statement and issued a new one, removing any references to the blunt objects or allegations that Claudia had assaulted the agent.

On May 23, 2019, Claudia’s family filed an administrative claim under the Federal Tort Claims Act (FTCA) for Claudia’s wrongful death, seeking substantial damages and hoping to ensure accountability for the officials’ unlawful acts. When more than six months passed after filing the claim without any action by the agencies, Claudia’s family filed a federal suit against the United States for common law battery, negligence, gross negligence, and reckless conduct pursuant to the FTCA, and against the agent who killed Claudia for excessive, unreasonable force and deprivation of due process in violation of the Fourth and Fifth Amendments to the U.S. Constitution.

On May 13, 2020, the Plaintiffs filed an emergency motion to expedite discovery, which the court granted in part and denied in part on May 19, 2020. On September 9, 2020, Defendants filed their answer. On September 29, 2020, Defendant Barrera filed a motion to dismiss the Bivens claims against him. On December 1, 2020, the court granted the U.S.’s motion to stay the case pending an FBI investigation of Claudia’s death. 

Counsel: Kirkland & Ellis LLP; ACLU of Texas; ACLU Immigrant Rights Project

Contact: Yosef J. Reimer | 212-446-4802 | Yosef.riemer@kirkland.com

Lovell v. United States

Lovell v. United States of America, No. 1:18-cv-01867 (E.D.N.Y., filed Mar. 28, 2018)

On November 27, 2016, Tameika Lovell was returning from Jamaica and traveling through John F. Kennedy Airport when U.S. Customs and Border Protection (“CBP”) officers selected her for a “random search.” Officers took her to a secured area and conducted a physically invasive and traumatic search of her body, including a body cavity search, for which she later sought medical and psychological treatment.

Ms. Lovell filed a federal tort claim with CBP on May 10, 2017, but it was subsequently denied. On March 28, 2018, Ms. Lovell filed this action seeking damages under Bivens and alleging violations of her Fourth and Fifth Amendment rights. The complaint alleges that CBP’s search of Ms. Lovell was carried out in in violation of the Fourth Amendment and was conduct that “shocked the conscience” in violation of the Fifth Amendment. She further alleges that the search was not random but instead based on her race, and that CBP unlawfully singles out females and persons of color for searches. Furthermore, Ms. Lovell alleges that the United States and CBP condone employees’ intentional violations of the National Standards on Transportation, Escort, Detention, and Search, the agency’s written standards for searches. Ms. Lovell seeks compensatory and punitive damages against CBP.

As of June 2021, discovery has been completed and briefing on cross-motions for summary judgement has begun.

Press Coverage:

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

J.I. v. USA

J.I. v. USA, No. 1:18-at-00185 (E.D. Cal., filed March 15, 2018)

In the summer of 2016, J.I., a minor, traveled from Guatemala with her older sister to reunite with their mother in the United States. The sisters became lost in the area near the Presidio, Texas and Ojinaga, Chihuahua border. Afraid and thirsty, the sisters flagged down Border Patrol agents for help. The sisters were then taken into custody.

Once J.I. was in custody, a Border Patrol agent removed her from the cell she was in with her sister and took her to a small room, where he forced J.I. to remove her clothing and expose her breasts and genitalia. He then assaulted and battered J.I.

On March 21, 2017, J.I. submitted an administrative claim to the U.S. Department of Homeland Security (“DHS”) and U.S. Customs and Border Protection (“CBP”), as required under the Federal Tort Claims Act (“FTCA”). In a letter dated September 27, 2017, CBP replied on behalf of all named agencies and denied the administrative tort claim in full.

On March 15, 2018, the ACLU of Northern California filed an FTCA lawsuit against CBP alleging assault and battery, false imprisonment, intentional infliction of emotional distress, and negligence. The lawsuit also included constitutional claims (violations of the Fourth and Fifth Amendments). The parties agreed to settle on October 19, 2018, and reached an agreement that includes a $125,000 payment to J.I. It is unclear whether CBP disciplined the agent, Fernando Saucedo III, and whether he is still employed by CBP.

Related Documents:

Counsel: ACLU of Northern California

Contact:  Angélica Salceda | ACLU of Northern California | asalceda@aclunc.org

 

Al Otro Lado v. Wolf

Al Otro Lado et al. v. Wolf et al., Case No. 3:17-cv-02366 (S.D. Cal., filed July 12, 2017)

On July 12, 2017, the American Immigration Council, along with the Center for Constitutional Rights and Latham & Watkins, LLP, filed a class action lawsuit challenging U.S. Customs and Border Protection (“CBP”)’s unlawful practice of turning away asylum seekers who present themselves at ports of entry along the U.S.-Mexico border.

The plaintiffs in the case are Al Otro Lado (a non-profit legal services organization that serves indigent deportees, migrants, and refugees in Los Angeles and Tijuana) and six courageous asylum seekers who experienced CBP’s unlawful conduct firsthand. Their experiences demonstrate that CBP uses a variety of tactics—including misrepresentation, threats and intimidation, verbal and physical abuse, and coercion—to deny bona fide asylum seekers the opportunity to pursue their claims. The complaint alleges that CBP’s conduct violates the Immigration and Nationality Act, the Administrative Procedure Act, the Due Process Clause of the Fifth Amendment, and the doctrine of non-refoulement under international law.

On November 13, 2017, Plaintiffs filed a motion for class certification, which included dozens of declarations from asylum seekers CBP had turned away at the border. On November 28, 2017, the Court granted Defendants’ motion to transfer venue to the Southern District of California and dismissed all pending motions without prejudice. On August 20, 2018, the court denied in part and granted in part the government’s motion to dismiss, allowing the majority of plaintiffs’ claims to go forward. On October 12, 2018, plaintiffs filed an amended complaint highlighting the Trump administration’s specific implementation of the “turnback policy” as well as the administration’s own “zero-tolerance policy.”

Defendants filed a motion to dismiss the amended complaint on November 29, 2018, which Plaintiffs opposed. Close to two dozen states filed an amicus brief in support of Plaintiffs’ opposition to the motion to dismiss, as did many members of Congress, Amnesty International, law professors, and nineteen nonprofit immigrant advocacy organizations.

In July 2019, the judge rejected most of Defendants’ claims in the motion to dismiss and ordered the government to file an answer to Plaintiffs’ Second Amended Complaint, which it did in August 2019. In February, the parties completed briefing on certification of a class consisting of all noncitizens who seek or will seek to access the U.S. asylum process by presenting themselves at a POE on the U.S.-Mexico border, and were or will be denied access to the U.S. asylum process by or at the instruction of CBP officials on or after January 1, 2016, as well as sub-class of those who were or will be denied access to the U.S. asylum process as a result of metering over the same time period.

Motion for Preliminary Injunction

While this case has been pending, and asylum seekers remain stranded in Mexico under the Turnback Policy, the Trump administration issued an interim final rule (the “Asylum Ban”) barring individuals from asylum eligibility in the United States if they transited through a third country and did not seek protection there first. On September 26, 2019, Plaintiffs filed a motion for preliminary injunction and a motion seeking provisional class certification asking the district court to keep Defendants from applying the Asylum Ban to provisional class members, in order to maintain their eligibility for asylum until the court rules on the legality of the Trump administration’s metering policy in this case.

On November 19, 2019, the court provisionally certified a class consisting of “all non-Mexican asylum seekers who were unable to make a direct asylum claim at a U.S. [port of entry] before July 16, 2019 because of the U.S. Government’s metering policy, and who continue to seek access to the U.S. asylum process.” The court also blocked Defendants from applying the Asylum Ban to members of the provisional class and ordered that Defendants apply pre-Asylum Ban practices for processing the asylum applications of members of the class.

On December 4, 2019, Defendants appealed the district court’s order to the Ninth Circuit Court of Appeals. On March 5, 2020, the Ninth Circuit denied Defendants’ motion for a stay of the order until the appellate court decides the merits of the appeal. In doing so, the Ninth Circuit lifted its previously imposed emergency temporary stay of the order. At this time, the District Court’s order is in effect.

On July 17, 2020, Plaintiffs filed a motion to clarify the preliminary injunction, asserting that since the Ninth Circuit lifted the temporary stay, Defendants had committed “numerous violations of the preliminary injunction,” including “tak[ing] minimal and insufficient steps to identify class members and to ensure that the Asylum Ban does not impact their eligibility for asylum” and continuing to refuse to produce the written guidance sent to the various government agencies involved in implementing the preliminary injunction. Defendants responded in opposition to the motion on August 3, 2020 and Plaintiffs replied on August 10, 2020.

Class Certification

Oral argument was held on the motion for class certification on July 30, 2020. On August 6, 2020, the District Court granted Plaintiffs’ motion for class certification, certifying a class consisting of “all noncitizens who seek or will seek to access the U.S. asylum process by presenting themselves at a Class A [POE] on the U.S.- Mexico border, and were or will be denied access to the U.S. asylum process by or at the instruction of [CBP] officials on or after January 1, 2016.” The court also certified a subclass of “all noncitizens who were or will be denied access to the U.S. asylum process at a Class A POE on the U.S.-Mexico border as a result of Defendants’ metering policy on or after January 1, 2016.”

Discovery has begun and on September 4, 2020 Plaintiffs filed a motion for summary judgment. On September 25, 2020, Defendants filed a cross motion for summary judgment and opposition to Plaintiffs’ motion.

Class counsel have prepared a Frequently Asked Questions resource to address common questions about the court’s order, class membership, and implementation.  The FAQ resource will be updated periodically and is available here.

Press:

Counsel: Mayer Brown LLP | American Immigration Council | Center for Constitutional Rights | Southern Poverty Law Center

Contact: Melissa Crow | Southern Poverty Law Center | Melissa.Crow@SPLCenter.org

FTCA Administrative Complaint Against Border Patrol Re: Two Sisters Sexually Assaulted by CBP Officer in Texas

FTCA Administrative Complaint Against Border Patrol Re: Two Sisters Sexually Assaulted by CBP Officer in Texas

In July 2016, two sisters — then 19 and 17 years old — lost their way while traveling to the United States from Guatemala, and encountered CBP officers after crossing the Texas-Chihuahua, Mexico, border. They asked for help and were taken to a CBP field office in Presidio, Texas. Once there, the sisters were led by a federal officer into a closet-like room one at a time, told to remove all their clothes, and sexually assaulted. The victims report that they continue to suffer severe emotional distress as a result of the assault.

The sisters reported the abuse shortly after it occurred to another CBP officer in the field office where they were held, and an investigation was launched by the Department of Homeland Security’s Office of Inspector General. The sisters were interviewed twice and asked to draw a depiction of the closet. Federal authorities have not pursued criminal charges against the officer, nor is it clear whether the officer has faced any disciplinary actions for his assaults on the sisters.

On March 22, 2017, the ACLU of Northern California filed two administrative claims under the Federal Tort Claims Act with the federal government on behalf of each of the sisters.

Media:

Counsel:  ACLU of Northern California

Contact: Angélica Salceda | asalceda@aclunc.org | (415) 621-2493