Bouey v. United States of America

Bouey v. United States of America et al., No. 3:22-cv-0044 (S.D. Cal., filed April 4, 2022)

On July 16, 2020, Janine Bouey, a U.S. citizen, visited Tijuana, Mexico for the day for a dental appointment. When she attempted to return to the United States via the pedestrian lanes at the Otay Mesa Port of Entry (OMPOE), a CBP officer pulled her out of line. The CBP officer approached her, flirted with her, and ask her questions about both her trip to Mexico and her personal life. When Ms. Bouey refused to answer the questions about her personal life, the CBP officer retaliated by taking Ms. Bouey to the main building at the OMPOE.

Inside the OMPOE building, CBP performed multiple harmful and invasive searches of Ms. Bouey. On multiple occasions an officer fondled and penetrated Ms. Bouey’s genitalia without her consent and without justification. She was handcuffed to a bench, asked to strip down naked, and then ordered to bend over as an officer shined a flashlight into the areas of her genitalia. CBP officers also used a canine agent to invasively smell several of Ms. Bouey’s orifices. CBP officers never explained the reason for these searches, denied Ms. Bouey’s repeated requests to call an attorney, and failed to acknowledge her U.S. citizenship.

The mistreatment by CBP caused Ms. Bouey physical pain and emotional distress, including anxiety, shock, humiliation, apprehension, and anguish. In response, on April 4, 2022, Ms. Bouey filed suit seeking damages under the Federal Tort Claims Act (FTCA) and Bivens. The FTCA claims included: (1) negligence, (2) intentional infliction of emotional distress, (3) battery, and (4) violation of the Bane Act. The Bivens claim sought a remedy for violation of her Fourth Amendment rights. On June 3, 2022, counsel for the U.S. government filed a motion to dismiss.

Counsel: Joseph M. McMullen | joe@imm-legal.com
Contact: Kendall Martin | kendall@alliancesd.org | (619) 629-0337
Press:
● Abuse, Assault and Impunity at DHS Must Stop: Former LAPD Officer Subjected to Sexual Assault by DHS Sues the Agency

Estrada v. United States, No. 3:22-cv-00373-AJB-BGS (S.D. Cal., filed Mar. 21, 2022)

On May 14, 2021, in Campo, California, a Border Patrol agent attempted to stop a vehicle suspected of being involved in migrant smuggling. The driver of the vehicle, Silvestre Estrada Vargas, who was accompanied by two other individuals, failed to yield before eventually stopping in a gas station parking lot. Without any legal justification or threat to their safety, an unknown number of Border Patrol agents then began shooting at the vehicle. Mr. Estrada, who was unarmed and had one hand on the steering wheel and another holding a cell phone up to his ear, was struck by an unknown number of bullets. He was transported to a local hospital where he was pronounced dead shortly after arrival. Luckily, the other two occupants of the vehicle, despite being directly in the line of fire, were uninjured.

Mr. Estrada’s minor son and mother, as well as the two other vehicle occupants, Francisco Madariaga and Jaime Madariaga-Gonzalez, filed this suit pursuant to the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named Agents alleging wrongful death, excessive use of force, assault and battery, and negligence.

The San Diego County Sheriff’s Department Homicide Division, the Federal Bureau of Investigation, the San Diego County Medical Examiner’s Office, the Department of Homeland Security Office of Inspector General, and CBP’s Office of Professional Responsibility had all responded to the scene and began an investigation. However, when Plaintiffs’ investigator spoke to the gas station manager, the manager said that one of the responding agencies had already seized a videotape from the gas station surveillance system and had been advised not to speak to anyone about the incident.

Documents:
Complaint

Counsel: Keith Rutman Law

Contact:
Keith Rutman | krutmanlaw.com

Press:
Border Patrol Sued Over San Diego Man’s Shooting Death in Campo

Haitian Bridge Alliance, et al. v. Biden, et al., No. 1:21-cv-03317 (D.D.C., filed Dec.20, 2021)

Mirard Joseph is a Haitian man who was whipped by a U.S. Border Patrol agent while attempting to bring food to his family in a Texas migrant encampment. Mr. Joseph alleges his wife received only bread and water and a single diaper for their infant daughter each day—conditions that eventually drove him and others to leave the Del Rio encampment and return to Mexico to buy food. When they attempted to reenter the camp with their purchases, they were met by Border Patrol officers who grabbed Mr. Joseph’s shirt, “lashed at him with reins, attempted to drag him back into the water, and nearly trampled him.”

Mr. Joseph and ten other Haitian nationals held in the temporary Border Patrol camp allege that this mistreatment was part of a discriminatory policy by the Biden administration to target Haitians. Plaintiffs allege that the U.S. government differentially applied the Title 42 process—a summary expulsion process purportedly designed to protect public health during the COVID-19 pandemic. Specifically, Plaintiffs allege that the government used Title 42 at the Del Rio Port of Entry against Haitian and Haitian-appearing asylum seekers with the purpose of discouraging them from accessing their right to seek asylum. Plaintiffs assert that this Haitian Deterrence Policy diverges from standard practice for asylum seekers and is driven by discriminatory purpose. Despite ample warning that thousands of Haitian migrants were heading toward Del Rio, federal authorities refused to prepare adequate infrastructure to receive them when arrivals started ramping up in September. As a result, a makeshift processing center under the Del Rio International Bridge turned into an encampment, where up to 15,000 people were made to wait for days at a time in temperatures topping 100 degrees without adequate food, water, bedding, or medical attention.

Footage described in the complaint prompted a national outcry in September 2021, with White House press secretary Jen Psaki calling the tape “horrific” during her September 20 press briefing. DHS Secretary Alejandro Mayorkas launched an internal investigation into the encounter. While the Secretary initially called for findings to be released by the end of September, results are still pending.

Plaintiffs allege that the Haitian Deterrence Policy did not end with mistreatment in Del Rio. After being processed for admission, the U.S. government placed those Haitian asylum seekers in detention, split up families, and shackled and removed them to Haiti without providing the opportunity to request humanitarian protection in the United States. Plaintiff Wilson Doe testified that DHS officers lied and said his family was being transferred to another detention facility when they were actually being expelled pursuant to Title 42. Officers then beat him when he resisted boarding the plane.

Plaintiffs allege violations of the Fifth Amendment due process clause and the Administrative Procedure Act. They also seek certification for a class of all Haitian or presumed Haitian individuals who were denied access to the U.S. asylum process in or around the Del Rio encampment between September 9 and 24, 2021. Plaintiffs seek declaratory and injunctive relief enjoining the government from subjecting members of the proposed class to the Haitian Deterrence Policy or Title 42 expulsions. They also seek return of those already expelled under Title 42 to allow them to pursue their asylum claims. Plaintiffs filed their complaint on December 20, 2021.

Counsel: Innovation Law Lab; Haitian Bridge Alliance; Justice Action Center.

Contacts:
Taisha Santil | tsaintil@haitianbridge.org
Tasha Moro | tasha.moro@justiceactioncenter.org
Alex Mensing | alexm@innovationlawlab.org

Documents:
Complaint

Press:
Class Action Ties Alleged Whipping To Haitian Discrimination
Haitian Migrants File Lawsuit Protesting Treatment by Border Patrol

Granillo v. United States of America, No. 2:21-cv-00777 (D.N.M., filed Aug. 18,2021)

Anastacio Granillo is a 64-year-old man who was assaulted by a Customs and Border Protection (CBP) officer at the Columbus Port of Entry while returning home from visiting family in Mexico in June 2019. On June 18, 2019, Mr. Granillo arrived at the Columbus Port of Entry with his wife’s cousin. At passport check, Mr. Granillo suggested to CBP Officer Oscar Orrantia that it would be helpful to open up another lane to allow for faster processing of vehicles in the heat. The officer responded in an angry tone and stated that CBP officers could do whatever they wanted. The CBP officer then asked what Mr. Granillo was bringing into the United States. Mr. Granillo responded that he was bringing allergy medication that he purchased in Mexico. He attempted to hand the medication to the officer, but accidentally dropped it, and it landed in the officer’s hands. The officer accused Mr. Granillo of throwing the medication at him before forcing him out of his vehicle and slamming him against the wall of the vehicle inspection bay, causing him to hit his head, fall to the ground, and suffer multiple injuries. CBP then detained him without medical help for close to an hour, despite him having a large visible bump on his forehead.

Mr. Granillo filed a complaint in the District of New Mexico on August 18, 2021. He alleged Officer Orrantia used excessive and unnecessary force against him and illegally detained him. Mr. Granillo claims the following causes of action under the Federal Tort Claims Act: assault, battery, false arrest, and negligence. The government filed an answer to the complaint on October 22, 2021. The parties met on December 16, 2021, and filed a joint status report outlining their provisional discovery plan on January 3, 2022.

Defendants attempted to stay discovery and release of a key piece of video evidence for six months. On March 8, 2022, the District Court denied the requested six-month stay and ordered release of the video on or before May 5, 2022. A Rule 16 conference is scheduled for May 6, 2022.

Documents:
Complaint
Answer
Joint Status Report

Counsel:
ACLU of New Mexico

Contact:
María Martínez Sánchez | msanchez@aclu-nm.org
Zoila Alvarez Hernández | zalvarez@aclu-nm.org
Rebecca Fae Sherman Sheff | rsheff@aclu-nm.org

Press:
ACLU Sues CBP for Excessive Force Against New Mexican Man at Columbus Port of Entry

Villalobos et al. v. United States

Villalobos et al. v. United States, No. 0:21-cv-02233 (D. Minn., filed Oct. 11, 2021)

Plaintiff Kerlin Sanchez Villalobos and her younger sister are suing the United States for the severe abuse and mistreatment they suffered while they were held in immigration custody. In June 2019, they entered the United States seeking safety from violence and persecution in Honduras, and were arrested by CBP agents. At the time, Kerlin was sixteen and her sister was fourteen. After their arrest, Kerlin and her sister were taken to a CBP detention facility in Clint, Texas and held there for nine days, after which they were forcibly separated and transferred to different group homes operated by Southwest Key Programs, Inc.

At the facility in Clint, Texas, CBP officers and government contractors mistreated Plaintiffs in a variety of ways, including physically assaulting them, depriving them of adequate food and water, denying them access to necessary medical care and medication, forcing them to watch the mistreatment of other children, and forcing them to care for younger children. Officers forced the girls to lift their shirts to be searched in a non-private setting, and threw away medicine one of the sisters brought with her to treat a recent injury. According to the siblings, officers ordered them to control the younger children who were crying because they were separated from their families. One of the sisters was injured by an officer who kicked her repeatedly. Additionally, the Clint facility was reported to have subpar sanitation for the number of children held there, and an MSNBC video from 2019 revealed children caged like animals. According to an ABC news report, staff had no training on caring for children.

In spite of initially assuring the sisters they would not be separated, officers traumatically separated the sisters without explanation and transported them to separate group homes. Despite prior reports of abuse at the Texas group homes where the sisters were held, the U.S. government has continued to place children there. In total, Kerlin spent twenty days in detention, and her sister spent twenty-nine days. Plaintiffs seek compensatory damages for negligence, negligent undertaking, battery, and assault under Texas law via the Federal Tort Claims Act.

Plaintiffs filed their complaint in October 2021. The U.S.A. answered in January 2022. The case is now in discovery.

Documents:

Counsel: Ian Bratlie,Teresa Nelson, Clare Diegel, and Paul Dimick (ACLU of Minnesota); Edgar Saldivar, Bernardo Rafael Cruz, and Andre Segura (ACLU of Texas); Jillian Kornblatt, Michael D. Stinson (Dorsey & Whitney LLP)

Contact: Claire Diegel | ACLU of Minnesota | 612-274-779 | cdiegel@aclu-mn.org

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.

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 November 24, 2021, Plaintiffs filed a memorandum in Opposition to Defendants’ Partial Motion to Dismiss.

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


Mendivil 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. Plaintiff filed an amended complaint on August 13, 2021, and Defendants filed their answer on August 24, 2021. The case is now in discovery.

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. 

On March 14, 2022, the District Court denied CBP’s motion for summary judgment without prejudice, holding that the agency had not established that it had conducted an adequate search for records responsive to Ms. Sabra’s request. A second round of summary judgment motion practice will begin in June 2022.

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 Department of Justice, the Department of Homeland Security (DHS) and Customs and Border Protection (CBP), and Health and Human Services (HHS)/Office of Refugee Resettlement (ORR).

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. Plaintiffs moved twice more to continue to hold the case in abeyance, and their third motion is currently briefed and pending before the court. The Court lifted the abeyance on January 7, 2022.

On March 31, 2022, the Court granted Defendants’ motion to dismiss all claims except for the FTCA claims of four of the five Plaintiff families. With respect to the FTCA claims, the Court held, among other things, that those claims were not barred by the discretionary function or due care exceptions to the FTCA. With respect to the dismissed constitutional claims brought under Bivens, the Court held, among other things, that special factors counseled against extending Bivens to a new context that challenged high level policy decisions.

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