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. Plaintiffs are finalizing the details necessary to formally end the case.

Counsel: BakerHostetler LLP | Institute for Justice

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

Press Release:

Advertisements

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.

Counsel: Institute for Justice

Contacts: 

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

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

Press Releases:

Serrano v. CBP

Serrano v. U.S. Customs and Border Protection, et al., No. 2:17-cv-00048 (W.D. Texas, filed Sept. 6, 2017)

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, a Magistrate Judge issued a Report and Recommendation in which he advised granting Defendants’ motions to dismiss. As of August 2018, the motions remain pending.

As of February 2018, a decision on the Motion to Dismiss remains pending.

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

Alasaad v. Nielsen

Alasaad, et al. v. Nielsen, et al., No. 1:17-cv-11730-DJC  (D. Mass., filed Sept. 13, 2017)

On September 13, 2017, the Electronic Frontier Foundation, along with the ACLU and the ACLU of Massachusetts, brought suit against Customs and Border Protection and Immigration and Customs Enforcement, 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 times. The 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 travelers’ 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.

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.

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