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, 2017. 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.

On April 21, 2017, the individual federal Defendants filed a motion to dismiss, which Plaintiff opposed. On June 13, 2017, the district court denied Defendants’ motion to dismiss. The parties entered into a settlement agreement on September 12, 2017, in which Defendant USA agreed to pay Plaintiff $45,000 under the FTCA in exchange for dismissing all other claims.

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

Contact: Marwa Rifahie (Civil Rights Managing Attorney) | mrifahie@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 here.

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:

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

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:

Osorio v. U.S. Customs and Border Protection

Osorio v. U.S. Customs and Border Protection, 8:14-cv-01758-DOC-AN (C.D. Cal. filed Nov. 4, 2014)

On June 6, 2014, Mr. Osorio filed with CBP a request under the Freedom of Information Act (FOIA) seeking “any and all records” under his name.  Mr. Osorio sought the information in order to obtain records from an incident at the border several years earlier, which potentially affected his eligibility to apply for lawful permanent resident status.  In general, with some exceptions, the FOIA statute requires agencies to respond to requests within 20 business days.  After having waited five months for CBP to produce his records, Mr. Osorio filed a lawsuit seeking a court order forcing CBP to conduct a search and produce records related to his request.  Immediately after filing, CBP produced the documents. Mr. Osorio and CBP subsequently settled the case and jointly moved to dismiss it, with the government agreeing to pay costs and attorney fees.

Counsel: Stacy Tolchin

Contact: Stacy Tolchin | 213-622-7450 | stacy@tolchinimmigration.com

ACLU of San Diego and Imperial Counties v. DHS et al. (PERF Report FOIA)

ACLU of San Diego and Imperial Counties v. US Department of Homeland Security, US Customs and Border Protection, No.  3:14-cv-01272-BTM-JMA (S.D. Cal., filed May 22, 2014)

In 2013, following intense public pressure and a letter from sixteen members of Congress calling upon Customs & Border Protection (CBP) to address numerous incidents involving excessive force, CBP undertook a comprehensive review of its use of force policies and practices. As part of this review, CBP commissioned a report from the Police Executive Research Forum (PERF), a non-partisan law enforcement think tank based in Washington, DC. PERF completed its review and issued a 23-page report that was highly critical of CBP’s use of force policies and practices. CBP refused to release the report or disclose PERF’s recommendations, and indicated that it would not adopt those recommendations.

In February 2014, the ACLU of San Diego’s Border Litigation Project filed a Freedom of Information Act (FOIA) request with CBP seeking immediate disclosure of the report. CBP failed to respond to the request, forcing the ACLU to file suit May 22, 2014 to compel disclosure.

The following week, CBP finally released the full report, along with a revised Use of Force Policy Handbook that reflected many of PERF’s recommendations. The parties then stipulated to dismissal of the case on June 19, 2014. The case is now closed.

Counsel: ACLU of San Diego and Imperial Counties

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

Askins and Ramirez v. DHS et al.

Askins and Ramirez v. Department of Homeland Security et al.Nos. 12-CV-2600 W BLM (S.D. Cal., filed Oct. 24, 2012) and 16-55719 (9th Cir., filed May 17, 2016)

This case is about preserving the fundamental First Amendment right to photograph and monitor publicly visible law enforcement activity and challenging CBP’s abusive behavior towards those who seek to exercise this right at or near ports of entry.

Ray Askins is a U.S. citizen and environmental activist. While standing on a public street in Calexico (inside the United States), he took photographs of the exterior of the Calexico Port of Entry building to illustrate a presentation he planned to give on vehicle emissions at ports of entry. Christian Ramirez is a U.S. citizen and human rights activist who, while standing on the U.S. side of the border, photographed male CBP officers improperly frisking female travelers at the San Ysidro Port of Entry.

When they took their photographs, both Mr. Askins and Mr. Ramirez were on the United States side of the border, in areas open to the public. The matters they photographed were publicly visible. In both cases, CBP officers detained, harassed, and threatened them, temporarily confiscated their cameras, and deleted their photographs. CBP officers also physically abused Mr. Askins.

This case seeks to prevent CBP from interfering with or otherwise suppressing the public’s lawful recording of federal public activities.

In September 2013, the district court denied in part and granted in part the government’s motion to dismiss. The government then filed a motion for clarification of the court’s order on the motion to dismiss. In April 2014, the district court granted in part and denied in part the government’s motion. In this order, the district court reaffirmed its First Amendment analysis in its September 2013 order on the government’s motion to dismiss. The court, however, ordered the parties to submit supplemental briefs relating to Plaintiffs’ Fourth Amendment claims. The parties filed supplemental briefs in late spring 2014.

In January 2015, the district court issued another order granting the government’s motion in part. This order addressed Plaintiffs’ Fourth Amendment claims, and invited Plaintiffs to file an amended complaint.

Plaintiffs did so; once more, the government moved to dismiss, and Plaintiffs opposed.

In March 2016, the district court dismissed Plaintiffs’ first amended complaint. Plaintiffs appealed to the Ninth Circuit; they filed their opening brief on September 26, 2016. The CATO Institute and the Reporters Committee for Freedom of the Press filed amicus briefs in support of Plaintiffs-Appellants. Appellate briefing was completed in February 2017. In February 2018, the Ninth Circuit heard oral argument on Plaintiff’s appeal to S.D. Cal’s dismissal of the first amended complaint.

On August 14, 2018, the Ninth Circuit issued its opinion and reversed the district court’s ruling, ordering the case to be remanded for discovery. The government filed an answer on March 8, 2019, and discovery is ongoing.

Counsel: ACLU of San Diego & Imperial Counties and Arnold & Porter Kaye Scholer LLP

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