Stella Bonin v. Aldana et al.

Stella Bonin v. Aldana et al., No. 3:17-cv-00265-DMS-WVG (S.D. Cal, filed Feb. 10, 2017)

In February 2015, Stella Bonin, a naturalized U.S. citizen, was traveling west on Interstate 8 from Phoenix, Arizona, to the East County Animal Hospital in El Cajon, California.  Acting on the advice of Arizona Humane Society Veterinary Clinic veterinarian Dr. Alondra Velez, Ms. Bonin was transporting her 15-year-old diabetic, blind, deaf miniature schnauzer Jake to the Animal Hospital for specialty care.  En route, she was pulled over by U.S. Border Patrol agents and interrogated without being permitted to leave; she was then made to drive her vehicle under Border Patrol escort to the Campo Border Patrol Station, where she was interrogated further.  At the Campo Station, Border Patrol agents also searched Ms. Bonin’s vehicle searched without her consent.  In all, Ms. Bonin was detained for over two hours without legal justification; the entire time, she was extremely worried about Jake’s deteriorating condition.  Ms. Bonin was finally allowed to proceed, and was never charged with any offense.

On June 4, 2015, the ACLU of San Diego Border Litigation Project submitted a Freedom of Information Act request, seeking release of records relating to Ms. Bonin’s stop, detention, and search.

In July 2015, both ICE and OIG issued final response letters stating that neither agency had any records responsive to the Request and informing Ms. Bonin of her statutory right to appeal. She appealed, and her appeals were subsequently denied. Neither CBP nor any other agency within the Department of Homeland Security, other than ICE and OIG, ever responded to Ms. Bonin’s request.

On February 10, 2017, under the Federal Tort Claims Act, Ms. Bonin submitted an administrative complaint to the Department of Homeland Security and U.S. Customs and Border Protection, alleging the torts of false arrest and false imprisonment, invasion of privacy, trespass to chattels, and negligence.

Additionally, on February 10, 2017, the Border Litigation Project filed a federal complaint in the Southern District of California on Ms. Bonin’s behalf, alleging violations of her Fourth Amendment rights. The complaint also includes claims against CBP for their failure to comply with FOIA.

On March 17, 2017, Defendants submitted an answer to the FOIA claims.

Counsel: ACLU of San Diego & Imperial Counties

Contact:  Mitra Ebadolahi | ACLU of San Diego & Imperial Counties | mebadolahi@aclusandiego.org

Alton Jones v. United States of America, et al.

Alton Jones v. United States of America, et al., No. 3:16-cv-01986-W-WVG (S.D. Cal., filed Aug. 8, 2016)

In August 2014, Alton Jones, a U.S. citizen who served as a Navy SEAL from 1977 to 1990, was assaulted by Border Patrol agents while out for a run at the Border Field State Park / Tijuana Estuary.  He was tackled to the ground and then detained, first at the State Park and then at the Imperial Beach Border Patrol Station, where he was held without charge or explanation overnight.  All told, he spent seventeen hours in Border Patrol custody before being released.  He was never charged with any offense.

On August 8, 2016, the ACLU of San Diego Border Litigation Project filed a federal complaint in the Southern District of California on Mr. Jones’s behalf, alleging violations of Mr. Jones’ Fourth Amendment rights. Additionally, under the Federal Tort Claims Act, Mr. Jones submitted an administrative complaint to the Department of Homeland Security and U.S. Customs and Border Protection, claiming $3 million in damages for false imprisonment, battery by a peace officer, assault, negligence, intentional infliction of emotional distress, and violation of the California Bane Act.

On October 20, 2017, CBP denied Mr. Jones’s administrative tort claim. On February 3, 2017, because his administrative claim was denied, the Border Litigation Project filed an amended complaint to add Mr. Jones’s tort claims. On April 7, 2017, Defendants filed an answer to Mr. Jones’s amended complaint. On April 10, 2017, Defendants filed a counterclaim against Mr. Jones, alleging assault.

Counsel: ACLU of San Diego & Imperial Counties

Contact:  Mitra Ebadolahi | ACLU of San Diego & Imperial Counties | mebadolahi@aclusandiego.org

Complaint Against CBP Abuses Following President Trump’s Travel Ban

On February 6, 2017, the Center for Constitutional Rights and the Kathryn O. Greenberg Immigration Justice Clinic filed a letter with the Department of Homeland Security Office of the Inspector General (OIG), detailing the systemic abuses and violations of the rights of individuals lawfully entering the United States through airports in the days following the issuance of President Trump’s January 27, 2017 executive order (“Executive Order”). This Executive order suspended entry into the United States for individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The complaint to OIG contains 26 declarations from both noncitizens—including long-term LPRs—and attorneys about abuses at the hands of CBP. As the declarations discuss, both new arrivals with valid visas and long-time U.S. residents were detained for excessive periods, denied access to attorneys even after a court ordered CBP to provide access to counsel, and pressured into giving up their valid visas. The organizations conclude by calling on CBP to end its policy of detaining immigrants without allowing them access to counsel.

Perez, C.Y. v. United States

Perez, C.Y. v. United States, 3:13-cv-01417-WQH (S.D. Cal., Fouth Amended Complaint filed Sep. 22, 2016)

This case challenges CBP and U.S. Border Patrol’s excessive use of force pursuant to the agency’s “Rocking Policy,” which permits the use of lethal force against persons throwing rocks and other objects in the direction of border patrol agents.  Maria Del Socorro Quintero Perez filed a lawsuit against the United States, DHS, CBP, the Office of Border Patrol, and various Border Patrol supervisors and agents in their individual capacities for the wrongful death of her husband, Jesus Alfredo Yañez Reyes.

On June 21, 2011, Yañez and Jose Ibarra-Murietta crossed the border from Mexico to the United States. Soon thereafter they were apprehended by Border Patrol agents Chad Michael Nelson and Dorian Diaz. While Yañez managed to escape back to the Mexican side of the border through a small hole in a fence, Agent Nelson tackled Murietta to the ground and began to strike him. Yañez climbed a tree that leaned against the Mexican side of the fence near the area where Agent Nelson was beating Murietta.

The events that followed are in dispute. Agents Nelson and Diaz allege that, during Nelson’s struggle with Murietta, Yañez threw one or two rocks in the direction of Agent Nelson, neither of which hit him. They further allege that Yañez threw a nail-studded board that struck Agent Nelson in the head. Murietta, meanwhile, asserts that Yanez never threw anything at Agent Nelson, but instead attempted to stop Nelson’s beating of Murietta by recording to threaten the scene on his cellphone.

In both versions of the event, Diaz then instructed Yañez to come down from the fence. Without any further warning or provocation from Yañez, Diaz shot Yañez directly in the head, killing him. Yañez fell out of the tree on the southern side of the fence, and neither agent attempted to render any assistance to him.  Agent Nelson sustained only minor injuries, none of which originated from rocks or a nail-studded board.

Plaintiffs argue that, regardless of which version of events is accurate, the agents unlawfully used excessive lethal force against Yañez. Both agents admitted that neither of them gave Yañez any verbal command or warning to stop throwing objects. Furthermore, Yañez’s alleged conduct did not create a risk of death or serious injury; the rocks were small, they did not hit the agents, and the allegedly thrown nail-studded board did not cause Agent Nelson any injury. There was no evidence that Yañez was about to throw any other objects in the moments before the shooting.

Yañez’s death was not an isolated event. According to a detailed report by an expert witness in the case, Thomas Frazier, Border Patrol agents along the U.S-Mexico border have regularly used lethal force against persons of perceived Hispanic or Mexican nationality. Plaintiffs allege that Border Patrol supervisors and other various agents within the Department of Homeland Security (DHS) acquiesced and tacitly approved of the excessive use of force against persons crossing the border. Between January 2010 and October 2012, border patrol agents responded to an alleged thrown rock with deadly force at least twenty-nine times.

Plaintiffs claim that the government’s Rocking Policy violated international peremptory norms against extrajudicial killings, bilateral treaties, and domestic law, including Fourth and Fifth Amendment and a federal regulation that prohibits the police from using deadly force in the absence of a significant risk of death or serious physical injury Plaintiffs seek compensatory and punitive damages, reasonable attorney fees, and other reasonable relief.

On February 22, 2016, Defendants’ attorneys filed a motion to dismiss and/or to strike portions of the Plaintiffs’ complaint. They seek to strike all causes of action alleged by the Plaintiffs other than their Fourth Amendment excessive force claim against Agents Nelson and Diaz and Chief of the Border Patrol Michael J. Fisher.

On February 22, 2016, Defendants’ attorneys filed a motion to dismiss and/or to strike portions of the Plaintiffs’ complaint, seeking to strike all causes of action alleged by the Plaintiffs other than their Fourth Amendment excessive force claim against Agents Nelson and Diaz and Chief of the Border Patrol Michael J. Fisher. In late March 2016, the judge granted Defendants’ motion in part and denied it in part.

Following the District Court’s decision, on September 22, 2016, Plaintiffs filed a fourth amended complaint. On October 20, 2016, Defendants again moved to dismiss the complaint.

On March 3, 2017, the Court granted in part Defendants’ Motion to Dismiss the Fifth Amendment Claims. In addition, the Court dismissed the Plaintiff’s FTCA claims. On April 1, 2017, the remaining two individual defendants filed a Motion for Summary Judgment with respect to the surviving Fifth Amendment claims.

Counsel: Singleton Law Firm, APC; Hilliard Munoz Gonzales, LLP; Hilliard & Shadowen, LLP

Contact: Brody McBride | brody@geraldsingleton.com  | (760) 697 1330

Administrative Complaint Against Border Patrol Re: Denial of Food to Asylum Seekers

Administrative Complaint Against Border Patrol Re: Denial of Food to Asylum Seekers Awaiting Processing at San Yisidro Port of Entry, filed by ACLU of San Diego

On March 17, 2016, U.S. citizen and immigration attorney Nicole Ramos escorted her client “M.” to the San Ysidro Port of Entry, where M., a transgender woman with disabilities, waited in line to request asylum. Ms. Ramos had prepared a letter for M. describing her disabilities and special needs. Approximately eight hours after M. had arrived at the port of entry, Ms. Ramos communicated with M. and learned that she had not received any food. She also learned that when M. tried to present the letter to a CBP officer, the officer told her that “the letter doesn’t mean shit.” Ms. Ramos immediately contacted CBP, who told her that individuals awaiting credible fear interviews were fed three times daily. Another ten hours later – more than 18 hours after arriving at the port of entry – M. had still not received any food, despite multiple requests to CBP officers. A CBP officer on duty told M. that she was responsible for bringing her own food to the port.

At 11 AM on Friday, March 18, attorney Ramos returned to the port of entry to bring M. food. At that time, a CBP officer informed Ms. Ramos that individuals in line for asylum processing would be given something to eat “if they asked.” Despite further requests by M. for something to eat that day, she was not given any food. Around 9 PM on Friday, CBP supervisor Chief Knox told Ms. Ramos that CBP “was not obligated to feed people on the Mexican side” of the port of entry, despite the fact that asylum seekers were processed in the U.S. controlled area of the port.

CBP did not provide M. with any food for 34 hours.  This was in direct violation of the Border Patrol’s own detention standards, which require CBP officers to provide individuals awaiting processing at ports of entry food and water at regular intervals. In its complaint letter to CBP, the ACLU of San Diego also alleges that the denial of food and water violated M.’s substantive due process rights under the Fifth Amendment. Furthermore, the ACLU alleges that the CBP officers’ abusive remarks and apparent lack of knowledge regarding official agency policies reflect CBP’s inadequate training on the humane treatment of asylum seekers.

The ACLU asks that CBP acknowledge the letter, provide the ACLU with copies of all policies relevant to the treatment of asylum seekers at ports of entry, and issue a formal apology for their treatment of Ms. Ramos and M.

In late April, CBP responded to the ACLU’s complaint.

Counsel: ACLU of San Diego & Imperial Counties

Contact:  Mitra Ebadolahi | ACLU of San Diego & Imperial Counties | mebadolahi@aclusandiego.org

 

Salem v. USA, et al.

Salem v. USA, et al., No. 5:15-cv-02091-JGB-SP (C.D. Cal., filed Oct. 9, 2015)

Mr. Salem brought this damages case against the United States, the Los Angeles Fire Department, and unknown CBP officers. Mr. Salem is a U.S. citizen who is also a citizen of Egypt. An accomplished playwright, 75 year old Salem was at the Los Angeles airport to begin his annual trip to Egypt, where he taught a literature class as an adjunct professor at the University of Cairo. He passed through security without incident, handed over his boarding pass and entered the passenger bridge to board his plane. At that point he was pulled over by an officer he believes was with CBP, who asked to see his passport. When he asked why he had been singled out, he was immediately surrounded by three other officers who forcibly grabbed both of his arms. They searched his carry-on luggage and, after finding nothing objectionable, forcibly escorted him to an interrogation room. There he was questioned for several hours, during which time the officers forced his arm behind his back, breaking it in the process. After about 4 hours of questioning, he was released without being charged. He was in great pain, and a bone in his arm was visibly displaced.

Mr. Salem’s suit includes Bivens claims under the Fourth Amendment (unreasonable search and seizure and use of excessive force) and the Fifth Amendment (equal protection). It also includes FTCA claims for assault, battery, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence.

Defendant United States of America filed an answer to the amended complaint on January 18, 2017. Defendant City of Los Angeles filed an answer to the amended complaint on February 9, 201. Individual Defendants also filed answers to the amended complaint on February 2, 2017 and March 07, 2017. The parties have agreed to stipulations for the Plaintiff’s inspection of the premises where Mr. Salem’s detention took place, and the Court accordingly entered a protective order regarding the Plaintiff’s entry and inspection of the premises on March 15, 2017.

Counsel: Counsel on American-Islamic Relations, CA l Law Office of Shafiel A. Karim

Contact: Yalda Satar (Civil Rights Attorney), ySatar@cair.com;

Maureen Dadabhoy (Legal Coordinator), mdadabhoy@cair.com

Lopez-Venegas, et al. v. Johnson, et al.

Lopez-Venegas, et al. v. Johnson, et al. No. 13-cv-03972-JAK-PLA (C.D. Cal., filed June 4, 2013)

Filed by the ACLU and Cooley LLP on behalf of eleven Mexican nationals and three immigration advocacy organizations, this class action lawsuit challenged deceptive tactics used by Border Patrol agents and ICE officers to convince noncitizens to accept “voluntary return.” Each individual plaintiff had significant family ties in the United States and lacked any serious criminal history. Thus, they could have asserted strong claims to remain in the United States if they had been granted a hearing before an immigration judge.

The complaint alleged that Border Patrol agents and ICE officers have a pattern and practice of pressuring undocumented immigrants to sign what amount to their own summary expulsion documents. In recent years, this “voluntary return” procedure has been used to summarily expel hundreds of thousands of noncitizens from Southern California. Because of the coercive and deceptive tactics immigration officers employ, voluntary return regularly results in the involuntary waiver of core due process rights. An individual who signs for voluntary return forfeits his or her right to a hearing before an immigration judge and is usually expelled from the United States within a matter of hours.

Through the lawsuit, the individual plaintiffs sought to return to the United States and to receive a fair hearing before an immigration judge. The organizational plaintiffs, the Coalition for Humane Immigrant Rights of Los Angeles, the Pomona Economic Opportunity Center, and the San Bernardino Community Service Center, sought systemic reforms to the voluntary return process throughout Southern California.

Following more than a year of litigation, including intensive discovery and the deposition of key government officials, the government agreed to significant reforms of the voluntary return system in Southern California. Under a settlement reached by the parties, government officials must:

  • Provide detailed information – in writing, orally, and through a 1-800 hotline – regarding the consequences of accepting voluntary return to noncitizens asked to choose between voluntary return and a hearing before an immigration judge;
  • Cease “pre-checking” the box selecting voluntary return on the forms the immigration agencies provide to noncitizens;
  • Permit noncitizens to use a working phone, provide them with a list of legal service providers, and give them two hours to reach someone before deciding whether to accept voluntary return;
  • Provide lawyers meaningful access to clients detained by Border Patrol or ICE;
  • Cease pressuring or coercing individuals to accept voluntary return;
  • Allow some of the hundreds of thousands of Mexican nationals who have been subject to unlawful voluntary returns to reunite with their families in the United States; and
  • Allow ACLU attorneys to monitor compliance with the settlement agreement for three years.

Additional information on the class settlement is available at http://www.misalidavoluntaria.org.

90 class members were identified under the settlement, and 82 of those individuals successfully returned to the United States. Others decided not to return, or could not be located. Monitoring of compliance of the settlement is ongoing. The ACLU of San Diego and their partners conducted visits to Border Patrol stations covered by the settlement in March 2017 to monitor compliance.

Press:

Danya Bacchus, Settlement Means Potential Relief for Voluntarily Deported Immigrants: ACLU, NBC San Diego, Feb. 27, 2015, available at http://bit.ly/1F5TPgM.

Jennifer Medina and Julia Preston, 9 Mexicans Can Return to Contest Deportations, NY Times, Aug. 27, 2014, available at http://nyti.ms/1eNFT3M.

Richard Marosi, U.S. to allow some immigrant deportees to return under settlement, LA Times, Aug. 27, 2014, available at http://lat.ms/VRPcpl.

Elise Foley, ACLU Sues Border Patrol, Immigration Officials Over Voluntary Departures Program, Huffington Post, June 4, 2013, available at http://huff.to/1AJtecm.

Counsel: ACLU Foundation of San Diego & Imperial Counties, ACLU Foundation of Southern California, ACLU Immigrants’ Rights Project, Cooley LLP

Contacts:

Lead Attorney for Class Claims: Gabriela Rivera | ACLU Foundation of San Diego & Imperial Counties | Email: avd@aclusandiego.org and grivera@aclusandiego.org

Lead Attorney for Monitoring Systemic Reforms: Mitra Ebadolahi | ACLU Foundation of San Diego & Imperial Counties | Email: avd-monitor@aclusandiego.org and mebadolahi@aclusandiego.org

Brown, et al. v. CBP and DHS – FOIA Class Action Against CBP

Brown, et al. v. CBP and DHS, 15-cv-01181-JD (N.D. Cal.)

On March 12, 2015, fourteen plaintiffs, including three immigration attorneys and eleven noncitizens filed a complaint with class allegations in federal district court in the Northern District of California against Defendant U.S. Customs and Border Protection (CBP), seeking redress for CBP’s failure to comply with the statutory timelines under the Freedom of Information Act (FOIA). Plaintiffs challenge a pattern or practice that has resulted in the agency having a backlog of over thirty thousand unanswered requests under FOIA. On April 22, 2015, Plaintiffs filed an amended complaint against both CBP and the U.S. Department of Homeland Security, as well as a motion to certify a nationwide class.

On May 18, 2015, Defendants filed a motion to dismiss, arguing that Plaintiffs failed to allege any actionable claim under the FOIA, lacked standing, and did not identify a discrete CBP policy or practice. Plaintiffs filed an opposition on June 1, 2015. On September 17, 2015, the court denied CBP’s motion to dismiss in its entirety.

The court held a hearing on the pending motion for class certification on October 7, 2015, but did not rule on the motion. Instead, the court requested that the parties engage in discovery and file amended briefs on class certification following this discovery.

During the course of the lawsuit, CBP implemented new procedures for handling FOIA requests and added staff. In light of this, the parties reached a settlement and, On October 5, 2016, the district court dismissed the case pursuant to this settlement.  At the time of the settlement, CBP’s backlog had been reduced to approximately 3,000 FOIA requests, most of which were complex, and CBP generally was responding to new requests within 20 days. In the settlement, CBP committed to continuing its efforts to timely process FOIA requests.  Additionally, the agency committed to increased transparency about its performance; CBP will now post monthly FOIA statistics to its website, including the total number of FOIA requests pending, how long they have been pending, how many new requests are received each month, and how many are processed.

Contact: Stacy Tolchin | stacy@tolchinimmigration.com

ACLU San Diego et al. v. DHS et al. (SoCal Roving Patrols FOIA)

American Civil Liberties Union of San Diego and Imperial Counties et al v. Department of Homeland Security et al., No: 8:15-cv-00229-JLS-RNB (C.D. Cal., filed Feb. 20, 2015)

This is a Freedom of Information Act (FOIA) case challenging defendant Department of Homeland Security (DHS) and Customs and Border Protection (CBP)’s failure to respond to Plaintiffs’ request for information regarding U.S. Border Patrol’s interior enforcement / “roving patrol” operations in Southern California.

There is little publicly-available information regarding the extent or impact of Border Patrol roving patrol operations, or regarding Border Patrol agents’ respect for regulatory or constitutional limitations on their authority.   In Southern California, Border Patrol agents are present throughout a number of both major metropolitan and rural areas a considerable distance from the U.S.-Mexico border, including Fallbrook, CA (seventy miles north of the U.S.-Mexico border), Laguna Beach, CA (almost ninety miles north of the U.S.-Mexico border), and Long Beach, CA (over 100 miles north of the U.S.-Mexico border).

Because Border Patrol does not release stop data or other information related to roving patrol operations, Plaintiffs filed a FOIA request with Defendants in July 2014, seeking records related to U.S. Border Patrol’s “roving patrol” operations in the San Diego and El Centro Sectors, including relevant agency policies, stop data, and complaint records.

DHS entirely ignored the request.  CBP sent the ACLU a series of contradictory emails, none of which were legally adequate responses under the FOIA itself or DHS regulations. In February 2015, Plaintiffs filed suit in the Central District of California to compel Defendants to release the requested records. On June 23, the Court issued a scheduling order requiring Defendants to produce all responsive records on or before November 2, 2015.

On January 27, 2017, the Court heard arguments on the parties’ respective Motions for Summary Judgment. On February 10, 2017, the Court issued an order denying both Motions for Summary Judgment, and additionally requiring (1) that the government provide specified documents to the Court for in camera review, and (2) that both parties submit supplemental briefing. The parties submitted supplemental briefing on April 5, 2017, and subsequent replies on April 19, 2017.

Counsel: ACLU of San Diego & Imperial Counties | ACLU of Southern California | University of California, Irvine School of Law Immigrant Rights Clinic

Contact:  Mitra Ebadolahi | ACLU of San Diego & Imperial Counties | mebadolahi@aclusandiego.org

The Estate of Anastacio Hernandez-Rojas v. United States

The Estate of Anastacio Hernandez-Rojas v. United States
No. 11-cv-522 L (DHB) (S.D. Cal., Third Amended Complaint filed Mar. 23, 2012)

This case challenges CBP and U.S. Border Patrol’s excessive use of force.  Anastacio Hernandez-Rojas died of a heart attack on May 28, 2010 near the San Ysidro Port of Entry after agents working for the U.S. Border Patrol and Customs and Border Protection beat him and shot him repeatedly with a Taser. Cell phone videos taken by witnesses show Hernandez-Rojas, a Mexican national and long-time San Diego resident, on the ground surrounded by agents and calling out for help.  He was 42 years old.

In this federal lawsuit brought under Bivens, the Federal Torts Claims Act, and the Alien Tort Claims Act, Hernandez-Rojas’s family alleges that his First and Fourth Amendment rights were violated when agents beat him after he asked for help, using excessive force. They also allege that their father’s death has deprived his children of their 14th Amendment due process right to associate with their father.

Eight agents and four supervisors are named as defendants in the lawsuit. They have claimed that using force against Hernandez-Rojas was justified because he posed a threat to the officers.

In September 2014, the district court denied defendants’ motion for summary judgment.  In his order, U.S. District Court Judge M. James Lorenz wrote: “The sheer number of officers available at the scene demonstrates rather strongly that there was no objectively reasonable threat to the safety of any one other than Anastasio.” That decision is currently on appeal to the Ninth Circuit; Plaintiffs have filed a motion in the district court to declare that appeal frivolous. On December 31, 2015, the district court denied that motion, and the matter is stayed pending the resolution of Defendants’ appeal to the Ninth Circuit.

On November 6, 2015 the Department of Justice announced that it would not criminally prosecute the agents involved in his death, a decision that angered his family and border-rights advocates.

On March 30, 2017, the Court issued an order approving a $1 million settlement, to be dispersed among Mr. Hernandez-Rojas’s five children.

Counsel: Iredale & Yoo, APC

Contact: Julia Yoo, (619) 233-1525

Press Coverage: