Malik v. U.S. Department of Homeland Security

Adam A. Malik, et al. v. U.S. Department of Homeland Security, et al., No. 4:21-cv-00088-P (N.D. Tex., filed Jan. 25, 2021)

Adam Malik is an immigration attorney based in Texas. In January 2021, Mr. Malik returned to the United States from a trip to Costa Rica, during which he had used his phone to contact clients and work on cases in which the Department of Homeland Security (DHS) is an opposing party. When he attempted to reenter the United States through Dallas-Fort Worth Airport, Mr. Malik was sent to secondary inspection. After extensive questioning, including about his legal practice, Customs and Border Protection (CBP) officers seized Mr. Malik’s phone and informed him that its contents would be searched.

On January 25, 2021, Mr. Malik filed suit against the DHS and CBP in the Northern District of Texas. He claims that the seizure and search of his phone without probable cause or a warrant violates the First and Fourth Amendments. He also claims that CBP Directive 3340-049A, which governs the search of digital devices at ports of entry, is arbitrary and capricious, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), because it fails to adequately protect privileged legal information and impermissibly permits CBP to conduct searches and seizures that violate the First and Fourth Amendments. In addition to the return of his phone and the destruction of information and documents seized by CBP, Mr. Malik seeks injunctive and declaratory relief enjoining enforcement of CBP Directive 3340-049A and declaring it unlawful. On March 29, 2021, Defendants filed their answer to Mr. Malik’s complaint.

Documents:

Counsel: Roy Petty & Associates, PLLC

Contact: Roy Petty, Roy Petty & Associates, PLLC | (214) 905-1420, roy@roypetty.com

Additional links:
• Tim Cushing, Texas Immigration Lawyer Sues DHS, CBP Over Seizure and Search of His Work Phone, TechDirt.com, Feb. 2, 2021.

Kazazi v. CBP

Kazazi et al. v. U.S. Customs and Border Protection et al., No. 1:18-MC-51 (N.D. Ohio, filed May 31, 2018)

This lawsuit challenges U.S. Customs and Border Protection’s (CBP) unlawful seizure of Plaintiffs’ life savings. On October 24, 2017, while one of the Plaintiffs, Rustem Kazazi, a U.S. citizen, was in route to Albania, CBP seized the $58,100 that he was carrying to purchase a retirement home in Albania and assist family members in need. CBP neither arrested nor charged Mr. Kazazi or his family members with any crime. Later, CBP sought to justify the seizure by alleging that the money was involved in a smuggling/drug trafficking/money laundering operation—an unfounded allegation that CBP did not record when it confiscated the money nor one that CBP is willing to defend in court.

The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) requires the government to return seized property or begin civil forfeiture or criminal proceedings within 90 days of the government’s notice of the owner’s suit. CBP’s 90 days expired on April 17, 2018, and it did not fulfill any of the CAFRA requirements within that time period. As a result, CBP became legally obligated to return the property promptly to Plaintiffs. Given that CBP failed to do so, Plaintiffs filed suit on May 31, 2018.

After they did, CBP immediately capitulated and returned about 99% of the money it had seized. The parties later resolved their dispute concerning the additional $770 seized and filed a stipulated dismissal on November 19, 2018. On March 1, 2019, the court awarded $43,280.13 in attorneys’ fees and costs to Petitioners.

Press Release:

Counsel: BakerHostetler LLP | Institute for Justice

Contact: Andrew H. Ward | Institute for Justice | ahward@ij.org

Nwaorie v. CBP, et al.

Nwaorie v. U.S. Customs and Border Protection, et al., No: 4:18-cv-1406 (S.D. Tex., filed May 3, 2018)

On May 3, 2018, the Institute for Justice filed a class-action lawsuit challenging U.S. Customs and Border Protection’s (CBP) policy or practice of demanding that owners of seized property sign “hold harmless” agreements for the return of their property, and thereby waive certain constitutional and statutory rights.

On October 31, 2017, CBP seized approximately $40,000 cash from the named Plaintiff, Anthonia Nwaorie, a U.S. citizen, while she was trying to board an international flight to Nigeria. Ms. Nwaorie intended to use more than $30,000 of the funds she had saved up from her work as a nurse to start a medical clinic in Nigeria for women and children.

In December 2017, Ms. Nwaorie, in compliance with the Civil Asset Forfeiture Reform Act (CAFRA), submitted a claim, requesting judicial forfeiture proceedings. When CBP failed to file a forfeiture complaint within 90 days, it became statutorily required to return the seized property.

However, instead of doing so, in April 2018, CBP mailed Ms. Nwaorie a letter, which conditioned the return of her seized cash on her signing a hold harmless agreement. If she did not sign the agreement to waive her statutory and constitutional rights and to indemnify the government for any claims brought by others related to the seized property, CBP threatened to initiate forfeiture proceedings against her. After filing the lawsuit, CBP finally sent her a check in the amount confiscated.

On July 23, 2018, Defendants moved to dismiss all claims, arguing that they are moot and barred by sovereign immunity. On August 27, Plaintiff filed her opposition to Defendants’ motion. Defendants filed a reply in support of their motion on September 4, and Plaintiff filed a surreply on October 3. As of October 2018, the motion is pending.

In May 2019, a magistrate judge recommended dismissal, finding that sovereign immunity barred the claims, and alternatively, the government’s return of Ms. Nwaorie’s money rendered her claims moot. The magistrate judge also recommended dismissal of Nwaorie’s constitutional claims, finding that CBP had a rational basis to subject her to additional searches because of the large amount of money she was carrying.

The plaintiff filed an objection to the magistrate’s memorandum and recommendations. • Unfortunately, the district court judge affirmed the magistrate judge’s recommendations and dismissed the case in August 2019.

Press Releases:

Counsel: Institute for Justice

Contacts: 

Dan Alban | Institute for Justice | dalban@ij.org

Anya Bidwell | Institute for Justice | abidwell@ij.org

Serrano v. CBP

Serrano v. U.S. Customs and Border Protection et al., Nos. 2:17-cv-00048 (W.D. Tex., filed Sept. 6, 2017) and 18-50977 (5th Cir., filed Nov. 21, 2018)

On September 6, 2017, the Institute for Justice brought a class action suit against Customs and Border Protection over the agency’s practice of engaging in civil forfeiture of vehicles at ports of entry on the U.S.-Mexico border. The plaintiff, Gerardo Serrano, was detained in 2015 when crossing into Mexico at the Eagle Pass, Texas port of entry. After CBP officers found a small amount of pistol ammunition in his truck, they seized the vehicle. CBP held his truck for over two years without ever filing a civil forfeiture action in court against him, despite requiring him to post thousands of dollars for a bond purportedly to allow him to challenge the seizure. Because the agency never filed a forfeiture action, Mr. Serrano was given no opportunity to have his day in court and challenge CBP’s seizure.

His complaint alleges that CBP seizes hundreds of vehicles owned by American citizens each year and refuses to hold prompt post-seizure hearings at which the owners can challenge the seizure. The class action suit seeks declaratory and injunctive relief requiring CBP to hold prompt post-seizure hearings, as well as compensation for Mr. Serrano. In October 2017, CBP returned Mr. Serrano’s truck without subjecting it to a forfeiture action. On December 13, 2017, Defendants moved to dismiss the suit. The parties completed briefing on January 19, 2018.

On July 23, 2018, the magistrate judge issued a Report and Recommendation in which he advised granting Defendants’ motions to dismiss.

On September 28, 2018, the district court adopted the magistrate judge’s recommendations and issued an order denying class certification and granting all motions to dismiss. Mr. Serrano appealed the district court decision to the Fifth Circuit on November 21, 2018.

In April 2019, the plaintiff filed his opening brief with the Fifth Circuit. Several amicus briefs were filed in support. The government’s answering brief was filed in August 2019. As of October 2019, those briefs are still pending. The government filed a notice of supplemental authority regarding Cantu v. Moody 933 F.3d 414 (5th Cir. Aug. 5, 2019) on January 28, 2020. The court heard oral argument on February 4, 2020. On February 26, 2020, the plaintiff filed a notice of supplemental authority regarding the Supreme Court’s decision in Hernandez v. Mesa.

The Fifth Circuit affirmed the lower court’s decision on September 16, 2020, holding (1) that CBP’s seizures of property without prompt judicial hearings on remission do not violate the Due Process Clause and (2) that Serrano failed to state a Bivens claim, as his complaint did not plausibly allege that CBP agents violated clearly establish law by seizing his truck and keeping it for 23 months without providing him with a post-seizure hearing.

Fifth Circuit Pleadings:

Counsel: Anya Bidwell & Robert Everett Johnson | Institute for Justice

Merchant v. Mayorkas (formerly Alasaad v. Nielsen)

Merchant v. Mayorkas (formerly Alasaad et al. v. Nielsen et al., No. 1:17-cv-11730-DJC  (D. Mass., filed Sept. 13, 2017), Nos. 20-1077, 20-1081 (1st Cir., filed Jan. 28, 2020), No. 20-1505 (Sup. Ct., filed Apr. 23, 2021)

On September 13, 2017, the Electronic Frontier Foundation, along with the ACLU and the ACLU of Massachusetts, brought suit against Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), challenging those agencies’ practices of seizing travelers’ electronic devices without a warrant or individualized suspicion of wrongdoing. The organizations filed on behalf of 10 U.S. citizens and one lawful permanent resident who had smartphones and other electronic devices seized when they arrived at the U.S. border. Many of the plaintiffs had their devices confiscated for extended periods of time. Plaintiffs seek the return of their devices, as well as declaratory and injunctive relief requiring the government to seek a warrant or have probable cause that a crime was committed prior to seizing a traveler’s cellphone. On December 15, 2017, Defendants filed a motion to dismiss.

On May 9, 2018, the court denied Defendants’ motion to dismiss, holding that Plaintiffs plausibly alleged that the government’s digital device search policies substantially burden travelers’ First Amendment rights.

Defendants filed an answer on June 1, 2018. Since then, the parties have been proceeding through the discovery process. In Spring 2019, the parties cross-moved for summary judgment, with plaintiffs arguing that CBP’s policy authorizing warrantless, suspicionless searches of electronic devices violates the First and Fourth Amendments and are seeking an injunction. Oral argument was held in July 2019. In November 2019, the court denied Defendants’ motion for summary judgment. The court allowed in part and denied in part Plaintiffs’ motion for summary judgment, denying the request for injunctive relief but allowing the request for declaratory relief. The district court then entered a judgment stating that border authorities may only search a traveler’s electronic device if they have reasonable suspicion that the device contains digital contraband. Defendants appealed the order, and Plaintiffs cross-appealed in January of 2020. Briefing on the cross-appeals was ongoing through July, and in August 2020, Harvard Immigration and Refugee Clinic, the Brennan Center for Justice, Constitutional Accountability Center, The National Association of Criminal Defense Lawyers, the Knight First Amendment Institute, and a number of other civil rights, immigration, privacy, and free speech organizations filed briefs as amicus curiae.

On February 9, 2021, the First Circuit issued its decision, holding that neither a warrant nor reasonable suspicion are required for CBP agents to conduct a basic search of electronic devices, and that neither a warrant nor probable cause is required to conduct an advanced search. It also held that CBP agents can retain an electronic device after a traveler crosses the border.

On April 23, 2021, Plaintiffs filed a petition for a writ of certiorari to the Supreme Court, asking the Court to clarify what level of suspicion (i.e., probable cause, reasonable suspicion, or none) is required to search a traveler’s electronic devices, and the scope of that search. The petition further asks the Supreme Court to impose a minimum requirement of reasonable suspicion for any such search conducted at the border. The Constitutional Accountability Center, the Center for Democracy & Technology, the Brennan Center for Justice, and TechFreedom submitted amicus briefs in support of the Plaintiff-Petitioners. On June 29, 2021, the Supreme Court denied the petition for certiorari.

Documents:

Counsel:  Electronic Frontier Foundation, American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Massachusetts

Arizona Interior Enforcement Complaint

Arizona Interior Enforcement Complaint

In June 2016, the ACLU of Arizona filed a complaint on behalf of ten individuals with U.S. Department of Homeland Security oversight agencies and the Department of Justice demanding investigations into abuses arising from Border Patrol interior operations.

Most of the incidents described in the ACLU’s complaint arose in the course of Border Patrol checkpoint and “roving patrol” stops.  Several describe agents wrongfully detaining innocent residents for days in filthy, frigid, and overcrowded detention facilities.  Although these individuals were not charged with any crime or immigration violation, their property was confiscated and some had to pay thousands of dollars to recover a vehicle.

In other cases, residents describe facing constant surveillance and harassment on their own property, including frequent incursions by low-flying Border Patrol helicopters.

A copy of the ACLU complaint to CBP and DOJ is available here.

A district court case was filed but was dismissed on February 15, 2018.

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

Complaint Against CBP Over Failed Policies Regarding Return of Belongings

Complaint Against CBP Over Failed Policies Regarding Return of Belongings

On April 6, 2016, the New Mexico ACLU Center for Border Rights, along with the Programa de Defensa e Incidencia Binacional and other partners, filed a complaint with DHS which documented 26 cases in which belongings—including important identity documents, money, and irreplaceable personal items—were confiscated by Border Patrol agents from individuals they apprehended and never returned at the time that the individuals were deported.  The reported cases highlight the devastating consequences that can flow from the loss of critical documents and money.  These 26 incidents are illustrative of the serious systemic problems with respect to CBP’s policies on return of belongings, including the ability for individual agent’s to abuse the system.

Counsel: Programa de Defensa e Incidencia Binacional, ACLU of New Mexico Regional Center for Border Rights, ACLU Foundation of Texas, American Immigration Council, National Immigration Project of the National Lawyers Guild

Contact: Kristin Love | klove@aclu-nm.org | (505) 266-5915 extension 1007

Edwards v. United States of America

Edwards v. United States of America, No. 0:13-cv-02336-JRT-JJK (D. Minn., filed Aug. 26, 2013)

Adijat Edwards arrived at the Minneapolis-St. Paul International Airport from Nigeria.  U.S. Customs and Border Patrol (“CBP”) officers detained her upon arrival.  The officers confiscated $4,000 worth of her jewelry and, days later, forced her to withdraw $1,200 in cash using her bank card.  The officers told Ms. Edwards that the money was necessary to pay for her return flight to Nigeria as part of expedited removal proceedings.

Edwards later sued the United States for the torts of conversion and negligence based on the CBP officers’ misconduct.  The United States filed a motion to dismiss, which Edwards opposed.  The Court granted the government’s motion in most respects, but allowed the claim for conversion of property to move forward.  Following the Court’s decision, the parties reached a settlement. The Department of Homeland Security brought Edwards back to the United States; thereafter, Edwards obtained her green card and recently naturalized.

Counsel: Richard L. Breitman | (612) 822-4724 | breitman@ix.netcom.co

FTCA Administrative Complaint Regarding ‘Citizenship Checkup’ of US Citizen

FTCA Administrative Complaint Regarding ‘Citizenship Checkup’ of US Citizen (filed Mar. 12, 2013)

Lucy Rogers is a naturalized American citizen of Mexican descent. She lives in Chateauguay, NY with her husband and infant son. In her work as a medical interpreter for immigrant farmworkers, a program funded by the federal government, Ms. Rogers travels to New York farms to pick up farmworkers, drive them to medical appointments, and serve as their interpreter.

On December 28, 2011, Ms. Rogers was driving toward the U.S./Canada border with two farmworkers of apparent Latino descent when a Border Patrol agent pulled her over without any reasonable suspicion. The agent told Ms. Rogers that he was conducting a “citizenship checkup” and asked her and her passengers whether they were U.S. citizens. Ms. Rogers replied that she was a U.S. citizen and provided the agent with her New York State drivers’ license. Because the two farmworkers traveling with her were unable to immediately provide proof of their immigration status, Ms. Rogers was arrested and searched, under the suspicion that she was trafficking undocumented immigrants in an attempt to escape inspection upon entry into the U.S.

After several hours of being interrogated in a nearby station, CBP employees agreed that there was no proof that Ms. Rogers was engaged in trafficking. Yet they insisted that Ms. Rogers provide them with the GPS device that she kept in her car. She understood that, if she refused to do so, she would remain indefinitely in CBP custody. Consequently, she felt compelled to give it to them. Ms. Rogers did not receive it back for more than seven months. Now, after this frightening and humiliating experience, Ms. Rogers feels afraid that living near the border means that she could be stopped at any time without any reason— simply because of her race and ethnicity.

Ms. Rodgers filed an administrative complaint under the Federal Tort Claims Act.  CBP denied the complaint. The case is now closed.

Press:

Counsel: New York Civil Liberties Union | Kathryn O. Greenberg Immigration Justice Clinic, Benjamin N. Cardozo Law School

Contact: NYCLU Press Office | 212-607-3372
Rebecca Engel | rengel@nyclu.org
Betsy Ginsberg | betsy.ginsberg@yu.edu