Lewis v. Unknown Agents of the Department of Homeland Security

Lewis v. Unknown Agents of the United States Department of Homeland Security, No. 3:19-cv-00600 (S.D. Cal., filed Apr. 1, 2019)

Sams v. Unknown Agents of the United States Department of Homeland Security, No. 3:19-cv-00612 (S.D. Cal., filed Apr. 2, 2019)

These lawsuits arise from the Department of Homeland Security (DHS)’s detention of two individuals who were experiencing withdrawal from opiates and alcohol and were denied medical treatment. The plaintiffs bring claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), alleging violations of their Fifth Amendment Rights.

Mr. Lewis, a U.S. citizen and military veteran, was arrested by DHS at the San Ysidro Port of Entry in February 2019. He alleges that he told the arresting officers of his history of substance abuse, prompting laughter. He began experiencing the symptoms of withdrawal, and instead of being given medical treatment, was transferred back-and-forth between the San Diego Metropolitan Correction Center and DHS custody. Mr. Lewis spent four days in DHS custody experiencing severe withdrawal symptoms, unable to move or eat, all the while requesting medical attention which was never given.

The facts of Ms. Sam’s case are similar. In January 2019, DHS officers interrogated and detained her. Despite advising officers of her substance abuse history, she was placed in a small holding cell. She remained in DHS custody for four days, during which time she experienced grave symptoms of withdrawal and repeatedly requested medical attention. Her requests were ignored.

Counsel: Brody McBride, Singleton Law Firm, APC

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Blanca Gomez Arellano v. United States

Blanca Gomez Arellano v. United States, No. 2:19-cv-00141 (S.D. Tex., filed May 13, 2019).

This is a wrongful death lawsuit brought by a mother whose son who died trapped in a tractor-trailer container while the vehicle was impounded by U.S. Customs and Border Protection (CBP). On October 13, 2017, CBP officers detained a tractor-trailer for inspection and discovered an undocumented individual inside. CBP then took the driver and undocumented individual into custody and impounded the truck. Three days later, CBP officers noticed a foul smell and liquid leaking from the truck, and they contacted the local sheriff’s department, who found a decomposing body.

The complaint alleges claims under the Federal Tort Claims Act for negligence, gross negligence, assault and battery, false imprisonment, and intentional infliction of emotional distress. A policy manual currently in effect directs CBP officers that “all closed containers must be opened and their contents inventoried” upon the impounding of a vehicle. The compartment in which the victim’s body was found was clearly marked as a “Liftable Lower Bunk.” The complaint alleges that the officers acted negligently or recklessly to cause the victim’s death.

Counsel: Texas Civil Rights Project

Contact: Efrén C. Olivares | efren@texascivilrightsproject.org

SIX FTCA ADMINISTRATIVE COMPLAINTS FILED WITH CBP AND OTHERS OVER SEPARATION OF PARENTS AND CHILDREN

SIX FTCA ADMINISTRATIVE COMPLAINTS FILED WITH CBP AND OTHERS OVER SEPARATION OF PARENTS AND CHILDREN

On February 11, 2019, six asylum-seeking mothers and their children filed administrative claims for money damages for the trauma they suffered when torn apart under the Trump Administration’s family separation policy. Each family was fleeing persecution in their country of origin. Instead of finding safety in the United States, the government forcibly took the children from their mothers and then left them in the dark about where they were taken and when—if ever—they would see each other again. The mothers and their children suffered greatly during the separations, which in some cases lasted for months. For example:

  • A 7-year-old girl is still unable to sleep unless her mom holds her;
  • A 7-year-old boy refuses to go to school, fearful of being separated from his mom again;
  • A 5-year-old girl now cries when she drops something, saying “Don’t get mad at me, don’t hit me.”
  • A 6-year-old boy separated from his mother for more than two months refuses to talk about his time in a New York shelter and is reluctant to eat.

The claims charge the government with intentionally inflicting emotional pain and suffering on these families in order to deter other Central Americans from seeking asylum in the United States. The claims were filed with the Department of Homeland Security and the Department of Health and Human Services. They are brought under the Federal Tort Claims Act, which allows individuals to sue the United States for injuries resulting from unlawful conduct of federal officers.

Counsel: The American Immigration Council, the National Immigrant Justice Center, Arnold & Porter, and Kairys, Rudovsky, Messing, Feinberg & Lin.

Contact: Trina Realmuto | American Immigration Council | 857.305.3600 | trealmuto@immcouncil.org
Mary Kenney | American Immigration Council | 202.507.7512 | mkenney@immcouncil.org

 

Wilwal v. Kelly

Wilwal, et al. v. Kelly, et al., No. 0:17-cv-02835 (D. Minn., filed July 13, 2017)

On July 13, 2017, the ACLU, the ACLU of Minnesota, and Robins Kaplan LLP brought suit on behalf of the Wilwal-Abdigani family, a family of 6 American citizens who were detained at a North Dakota port of entry for over ten hours when crossing back into the United States from Canada. When the family arrived at the border, CBP agents drew their weapons and handcuffed Abdisalam Wilwal, allegedly because his name appeared on a terrorism-related watchlist, which Mr. Wilwal believes was a wrongful placement. He was questioned for hours and ended up fainting while in custody due to the placement of his handcuffs. Agents allegedly questioned him for being a Muslim and demanded to know if he was involved with terrorism. When Mr. Wilwal’s teenage son called 911 and reported that he was being held against his will, CBP agents confiscated his phone and strip-searched him.

Mr. Wilwal and his family brought suit against CBP seeking declaratory and injunctive relief for violations of his constitutional rights, including the right against search and seizure and his right to due process because of his placement on a terrorism watchlist without any opportunity to challenge that placement. On October 12, 2017, the plaintiffs amended the complaint to add claims under the Federal Tort Claims Act for false imprisonment, assault, and battery. On November 8, 2017, the government moved to dismiss the case. Briefing was completed on the motion to dismiss on January 24, 2018.

On September 27, 2018 the court granted in part and denied in part the government’s motion to dismiss. Plaintiff’s claim alleging violation of substantive due process rights was dismissed with prejudice; and the government’s motion was denied in all other respects.

Press coverage:

R.M.H. v. Lloyd

On October 30, 2017, the ACLU Immigrants’ Rights Project, the ACLU of Texas, and Washington Square Legal Services, Inc. filed suit against the Office of Refugee Resettlement and CBP following the arrest and detention of 10-year-old Rosa Maria Hernandez, who came to the United States when she was three months old and who suffers from cerebral palsy. On October 24, 2017, Rosa Maria was on her way to a children’s’ hospital for gall bladder surgery when the vehicle she was in, driven by a U.S. citizen, was stopped at a Border Patrol checkpoint. Despite being told that she was on her way to the hospital for an imminent surgery, Border Patrol agents detained her for thirty minutes before allowing her to depart.

Agents then followed her to the hospital, went inside, and tracked her movements up to and during the time that she was in surgery. When attorneys for the hospital told the agents that they had to leave, the agents refused to do so, telling the hospital that they intended to arrest Rosa Maria and deport her when she was released from the hospital. When she was discharged the day after her surgery, the agents arrested her directly from her hospital bed and forcibly took her to an Office of Refugee Resettlement Shelter for unaccompanied minors.

On October 30, 2017, counsel for Rosa Maria filed a lawsuit alleging that the Border Patrol’s actions violated Rosa Maria’s statutory and constitutional rights, and sought a temporary restraining order seeking her immediate release. On November 3, 2017, the government released her to the care of her family. The case was voluntarily dismissed the same day. On January 8, 2018, the Border Patrol announced that it would take steps to expedite emergency medical vehicles through checkpoints.

Lawsuits Filed against CBP Challenging President Trump’s Travel Ban

On January 27, 2017, President Trump signed an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” This executive order called for an immediate halt to entry for any immigrant or nonimmigrant from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, as well as an immediate 120-day halt to all entries by refugees and an indefinite suspension with respect to Syrian refugees. Many individuals who were in the air at the time the executive order was signed were detained by CBP upon arrival in the United States, including lawful permanent residents and individuals with valid visas for entry.

Individuals detained by CBP were held for extremely long times (over 24 hours in some cases), denied access to their families, prevented from talking to attorneys, and on some occasions pressured into signing documents renouncing their right to enter the United States and forcibly deported. Large numbers of attorneys soon arrived at airports across the United States to provide assistance, and multiple individuals filed habeas corpus petitions seeking the release of people detained by CBP.

During the weekend of January 28-29, 2017, courts in California, Massachusetts, New York, Virginia, and Washington issued temporary restraining orders blocking the executive order from going into effect and ordering that CBP release individuals from detention.

Subsequently, numerous other lawsuits were filed challenging the travel ban. A complete and up-to-date list of cases, as well as case status information, can be found on the University of Michigan Civil Rights Litigation Clearinghouse website. On June 26, 2018, the Supreme Court upheld the travel ban, and reversed and remanded the 9th Circuit decision in Hawaii v. Trump. Since this decision, many of the travel ban lawsuits have been stayed.

For more detailed information on developments immediately following the executive order, as well as three sample habeas corpus petitions for individuals detained at airports, please see Challenging President Trump’s Ban on Entry, a practice advisory published by the American Immigration Council.

 

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.

On January 18, 2018, the Department of Homeland Security’s Office of Inspector General released a report following a year-long investigation into the events immediately following the implementation of the first travel ban on January 27, 2017. Although the Office of Inspector General was unable to substantiate any individual claims of misconduct against CBP officers at ports of entry within the United States, the OIG found that CBP had violated two separate court orders when it was “aggressive in preventing affected travelers from boarding aircraft bound for the United States.

Ashcroft v. Abbasi

Ashcroft v. Abbasi, Nos. 15-1358, 15-1359 & 15-1363

The Supreme Court has accepted certiorari to determine, among other issues, whether a Bivens damages remedy is available to noncitizens who were arrested on civil immigration charges and thereafter subjected to the most restrictive conditions of administrative segregation that exist in the federal prison system. Although they were detained in the weeks following the tragic attacks of September 11, 2001, they were not actually suspected of terrorism. Nonetheless, under orders from then-Attorney General Ashcroft and others, they were treated as if the FBI had reason to believe they had ties to terrorist activity, simply because they were (or appeared to be) Arab or Muslim, and were encountered – even coincidentally – in the course of a terrorism investigation.

In its decision below, the Second Circuit held that, with respect to their 4th Amendment claims, their detention did not present a new “context” for a Bivens action and that allowing these claims to go forward would not extend Bivens. The Solicitor General sought certiorari from this decision. While the case does not involve CBP agents or officers, it is included here because the Supreme Court’s decision could impact the extent to which Bivens remains an available remedy in cases that do involve CBP agents.

On January 18, 2017, this case was argued in front of the Supreme Court. On June 19, 2017, the Supreme Court issued its decision. The Court held that Bivens did not extend to respondents’ claims and reversed the Court of Appeals’ decision with respect to the respondents’ 4th Amendment claim.

The Court reasoned that if there is a meaningful difference between a case and a previous Bivens case “then the context is new.” After giving a non-exhaustive list of possible meaningful differences, the Court determined that the claims at issue in this case bore “little resemblance” to past Bivens claims. Since the Court concluded that the case presented a “new Bivens context,” it went on to determine whether “special factors” counseled against recognizing a Bivens remedy.

The Court found that at least three special factors counseled against extending Bivens. These special factors were (1) that respondents’ claims would lead to an inquiry into sensitive national security issues; (2) that Congressional refusal to “extend to any person the kind of remedies that respondents seek,” despite its knowledge of the conditions at the detention facility at issue, was a telling indication of its intent not to allow damages remedies; and (3) that other remedies were available to respondents’ besides damages, including injunctive relief and possibly a writ of habeas corpus. In the presence of these factors, and despite its professed sympathy for the respondents, the Court determined that it is better for Congress to undertake “the proper balance” between deterring constitutional violations and allowing government officials to make national security decisions.

Counsel: Rachel A. Meeropol | Center for Constitutional 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.

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

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