Transgender Law Center v. Immigration & Customs Enforcement

Transgender Law Center v. Immigration & Customs Enforcement, No. 3:2019-cv-03032 (N.D. Cal., filed May 31, 2019) and No. 20-17416 (9th Cir., filed December 15, 2020)

On May 25, 2018, Roxsana Hernandez, a transgender woman, died in the custody of U.S. Immigration and Customs Enforcement (ICE) after Customs and Border Protection (CBP) and ICE refused to provide her medical treatment. Roxsana entered the United States approximately two weeks before her death, seeking protection after fleeing persecution in her home country of Honduras, and also persecution she experienced in Mexico, due to her gender identity. Roxsana, who was suffering from untreated HIV, suffered from several physical ailments including frequent vomiting, diarrhea, persistent fever, severe weight loss and a cough in which she spat up bloody phlegm. She disclosed her condition no later than May 11, 2018, and requested medical attention multiple times. ICE refused and instead shuttled her to various holding, processing, and detention facilities, depriving her of food, water, sleep, and opportunities to relieve herself. She finally received treatment on May 17, 2018. The treatment did not come soon enough, and she died in the hospital on May 25, 2018.

On January 29, 2019, Plaintiffs Transgender Law Center and Jolene K. Youngers filed a Freedom of Information Act (FOIA) request to ICE and the Department of Homeland Security (DHS) Office for Civil Rights and Civil Liberties for any documents pertaining to Roxsana. On April 19, 2019, Defendant ICE acknowledged the FOIA request and assigned it a tracking number. On May 31, 2019, after not receiving any records responsive to the FOIA request, the Plaintiffs filed a complaint for declaratory and injunctive relief.

On November 24, 2020, the district court granted in part and denied in part motions for summary judgment from both the Plaintiffs and the Defendants. The case was argued on appeal on November 16, 2021. On May 12, 2022, the Ninth Circuit Court of Appeals reversed, vacated, and remanded this case to the district court. The court of appeals held that ICE and DHS had failed to meet their burden to show that their search for records was adequate “beyond material doubt,” failed to support their withholding of responsive documents—including by relying on mere boilerplate justifications—and failed to adequately segregate responsive, non-exempt records.

Documents:

Counsel: Grant & Eisenhofer P.A.; Transgender Law Center; Law Office of R. Andrew Free

Contact: Dale Melchert | Dale@transgenderlawcenter.org

Civil Rights Complaint Regarding CBP’s Mistreatment of Harvard Medical Fellow

On April 2, 2021, and April 18, 2021, Customs and Border Protection (CBP) denied Dr. Maryam, a Canadian citizen from Iran, entry into the United States. Dr. Maryam attempted to enter the United States using her Canadian passport and all necessary evidence to support her admission in J-1 status. She and her family planned to stay in the U.S. for two years during Dr. Maryam’s competitive two-year fellowship at Harvard Medical School and Beth Israel Deaconess Medical Center. The family planned to return to Canada after Dr. Maryam finished her fellowship.

During her first attempted entry, Dr. Maryam, her husband, and her two children drove with their belongings to the port of entry in Pembina, North Dakota. CBP pulled the family over for secondary inspection after seeing Dr. Maryam and her husband were born in Iran. CBP arbitrarily and discriminatorily interrogated Dr. Maryam’s husband for eight hours about his past in Iran, his thoughts and feelings about the killing of Qassem Soleimani, and his previous compulsory military service. Eventually, the family was turned back for allegedly failing to show non-immigrant intent—even after providing evidence of assets and ties to Canada. CBP issued an expedited removal order against Dr. Maryam’s husband and asked Dr. Maryam to withdraw her request for admission. CBP also took both fingerprints and DNA samples from Dr. Maryam and her husband before the family left the facility.

On April 18, 2021, Dr. Maryam attempted to enter the United States again. She planned to fly from Toronto to the United States, but CBP once again interrogated her and turned her back. This time, the CBP officer in secondary inspection denied her entry because (1) she allegedly had to wait until her husband’s case was resolved and (2) the CBP officer incorrectly told her that there that a “travel ban” against Iranian nationals prevented her from lawfully entering the country.

After her attempts to enter the U.S., Dr. Maryam filed an application for a J-1 visa with the U.S. Consulate (even though Canadian citizens are not required to apply for a visa in advance to enter the United States). The U.S. Consulate in Calgary refuses to adjudicate the case, saying that it is waiting for her husband’s case to first be resolved.

In response to the inhumane treatment and rejection of Dr. Maryam and her family, Harvard Law School’s Immigration and Refugee Clinical Program filed an administrative complaint to the Department of Homeland Security Office for Civil Rights and Civil Liberties (CRCL), requesting CRCL to further investigate the April 2 and April 18 incidents. Additionally, the Program filed a writ of mandamus in the district court, requesting the Department of State adjudicate Dr. Maryam’s visa within 15 days of an order, pursuant to the Administration Procedures Act (APA) or to the court’s Mandamus authority.

Counsel: Harvard Immigration and Refugee Clinical Program, Harvard Law School
Contact: Sabrineh Ardalan | sardalan@law.harvard.edu

Civil Right Complaints Regarding CBP Abuse of Children

On April 6, 2022, Americans for Immigrant Justice (AIJ), Kids in Need of Defense (KIND), Immigrant Defenders Law Center (ImmDef), and Florence Immigrant & Refugee Rights Project (FIRRP) filed separate administrative complaints with the Department of Homeland Security Office of Civil Rights and Civil Liberties (DHS CRCL) and the DHS Office of Inspector General (DHS OIG) about the treatment of unaccompanied children in Customs and Border Protection (CBP) custody in 2021. The organizations condemned CBP for violations of the Flores Settlement Agreement and the CBP National Standards on Transport, Escort, Detentions and Search (TEDS).

The complaints highlighted the sleeping conditions and the freezing temperatures in the facilities, the lack of water and food, the lack of access to personal hygiene, the inadequate medical care and the verbal and physical abuse by CBP officers. The complaints include stories of several minors who detail aspects of their treatment while in detention by CBP.

As shared by AIJ, 12-year-old N.A.E. was told “he would be reunited with his mother in the United States,” only to be illegally returned to Guatemala without his knowledge or consent. C.C.L., age 10, “had his mattress taken away,” which CBP did “if they felt someone was misbehaving.” At age 15, K.G.C. had to share a mattress with three other girls while detained, during which she contracted lice.

These stories, and others shared in the complaints, illustrate the inhumane conditions affecting the health and safety of children while in CBP custody. The administrative complaints contain recommendations for preventing CBP’s abuse of children. These recommendations include: CBP adherence to the Trafficking Victims Protection Reauthorization Act (TVRPA), to the CBP National Standards on TEDS, and to the Flores settlement agreement; providing comparable care to that of Office of Refugee Resettlement (ORR) facilities; additional training for CBP officers and staff; access to legal counsel; and the hiring and use of child welfare professionals.

Counsel: Americans for Immigrant Justice; Kids in Need of Defense (KIND)

Contact: Jennifer Anzardo | janzardo@aijustice.org | Carley Sessions | cesssions@supportkind.org

Haitian Bridge Alliance, et al. v. Biden, et al., No. 1:21-cv-03317 (D.D.C., filed Dec.20, 2021)

Mirard Joseph is a Haitian man who was whipped by a U.S. Border Patrol agent while attempting to bring food to his family in a Texas migrant encampment. Mr. Joseph alleges his wife received only bread and water and a single diaper for their infant daughter each day—conditions that eventually drove him and others to leave the Del Rio encampment and return to Mexico to buy food. When they attempted to reenter the camp with their purchases, they were met by Border Patrol officers who grabbed Mr. Joseph’s shirt, “lashed at him with reins, attempted to drag him back into the water, and nearly trampled him.”

Mr. Joseph and ten other Haitian nationals held in the temporary Border Patrol camp allege that this mistreatment was part of a discriminatory policy by the Biden administration to target Haitians. Plaintiffs allege that the U.S. government differentially applied the Title 42 process—a summary expulsion process purportedly designed to protect public health during the COVID-19 pandemic. Specifically, Plaintiffs allege that the government used Title 42 at the Del Rio Port of Entry against Haitian and Haitian-appearing asylum seekers with the purpose of discouraging them from accessing their right to seek asylum. Plaintiffs assert that this Haitian Deterrence Policy diverges from standard practice for asylum seekers and is driven by discriminatory purpose. Despite ample warning that thousands of Haitian migrants were heading toward Del Rio, federal authorities refused to prepare adequate infrastructure to receive them when arrivals started ramping up in September. As a result, a makeshift processing center under the Del Rio International Bridge turned into an encampment, where up to 15,000 people were made to wait for days at a time in temperatures topping 100 degrees without adequate food, water, bedding, or medical attention.

Footage described in the complaint prompted a national outcry in September 2021, with White House press secretary Jen Psaki calling the tape “horrific” during her September 20 press briefing. DHS Secretary Alejandro Mayorkas launched an internal investigation into the encounter. While the Secretary initially called for findings to be released by the end of September, results are still pending.

Plaintiffs allege that the Haitian Deterrence Policy did not end with mistreatment in Del Rio. After being processed for admission, the U.S. government placed those Haitian asylum seekers in detention, split up families, and shackled and removed them to Haiti without providing the opportunity to request humanitarian protection in the United States. Plaintiff Wilson Doe testified that DHS officers lied and said his family was being transferred to another detention facility when they were actually being expelled pursuant to Title 42. Officers then beat him when he resisted boarding the plane.

Plaintiffs allege violations of the Fifth Amendment due process clause and the Administrative Procedure Act. They also seek certification for a class of all Haitian or presumed Haitian individuals who were denied access to the U.S. asylum process in or around the Del Rio encampment between September 9 and 24, 2021. Plaintiffs seek declaratory and injunctive relief enjoining the government from subjecting members of the proposed class to the Haitian Deterrence Policy or Title 42 expulsions. They also seek return of those already expelled under Title 42 to allow them to pursue their asylum claims. Plaintiffs filed their complaint on December 20, 2021.

Counsel: Innovation Law Lab; Haitian Bridge Alliance; Justice Action Center.

Contacts:
Taisha Santil | tsaintil@haitianbridge.org
Tasha Moro | tasha.moro@justiceactioncenter.org
Alex Mensing | alexm@innovationlawlab.org

Documents:
Complaint

Press:
Class Action Ties Alleged Whipping To Haitian Discrimination
Haitian Migrants File Lawsuit Protesting Treatment by Border Patrol

Anas Elhady v. Unidentified CBP Agents, et al., No. 20-01339 (6th Cir., filed Apr 22, 2020); No. 2:17-cv-12969 (E.D. Mich,, filed Sept. 10, 2017)

In 2015, Customs and Border Protection (CBP) stopped Anas Elhady, a naturalized citizen living in Michigan who was returning to the United States from Canada. CBP detained him for six hours at the Ambassador Bridge Facility, where officers left him in a freezing cold cell without his outerwear.

Mr. Elhady sued several CBP officers in September 2017, seeking monetary damages under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). On February 10, 2020, the district court granted motions for summary judgment for all of the defendants except one, Officer Blake Bradley. Bradley appealed to the Sixth Circuit.

On November 19, 2021, the court of appeals reversed the district court’s denial of summary judgment and held that this case presented a new Bivens context under Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020), because it implicated national security and raised questions reserved for the political branches. The court of appeals rejected Mr. Elhady’s argument that it lacked jurisdiction to consider the issue on interlocutory appeal and that Bradley had waived the issue by failing to raise the availability of Bivens on appeal. The appeals court maintained that they held jurisdiction over the Bivens issue on interlocutory appeal because it was necessary to evaluate the defense of qualified immunity. On January 25, 2022, the Sixth Circuit denied Mr. Elhady’s petition for rehearing en banc.

Documents:
Complaint
Second Amended Complaint
Motion to Dismiss
Summary Judgment Order
Defendant-Appellant’s Opening Brief
Plaintiff-Appellee’s Opposition Brief
Defendant-Appellant’s Supplemental Brief
Plaintiff-Appellee’s Supplemental Brief
Sixth Circuit Decision

Counsel:
Council on American-Islamic Relations (CAIR)

Contact:
Justin Sadowsky | jsadowsky@cair.com
Lena Masri | lmasri@cair.com
Gadeir Abbas | gabbas@cair.com

National Immigration Litigation Alliance et al. v. U.S. Customs and Border Protection

National Immigration Litigation Alliance et al. v. U.S. Customs and Border Protection, No. 1:2021-cv-11094 (D. Mass., filed July 1, 2021)

Since 2019, Customs and Border Protection (CBP) has engaged in the practice of expelling from the United States migrants who recently gave birth, along with their U.S. citizen infants, often without birth certificates. CBP has even expelled individuals from the United States who were in active labor. The National Immigration Litigation Alliance, Al Otro Lado, and the Haitian Bridge Alliance (Plaintiffs) submitted a Freedom of Information Act (FOIA) request on March 18, 2021 to CBP seeking records relating to policies, guidance, or statistics regarding the treatment of pregnant people in CBP custody, people in CBP custody who have given birth within the United States within the last six months, U.S. citizen children in CBP custody who are under the age of six months, and non-U.S. citizen children of parents in CBP custody while their parent is giving birth at a U.S. hospital or other medical facility. Plaintiffs sought these records to better understand the scope and extent of CBP’s practice of expelling migrant parents and their infant children without considering the merits of their asylum applications.

When CBP failed to produce any responsive records or provide any other substantive response to the request, Plaintiffs filed suit on July 1, 2021. CBP filed their answer on August 13, 2021. CBP produced documents in August, October, and November 2021. The case was dismissed on May 4, 2022.

Documents:

Counsel: Proskauer Rose LLP; National Immigration Litigation Alliance; Al Otro Lado; Haitian Bridge Alliance

Contact: Trina Realmuto, National Immigration Litigation Alliance | trina@immigrationlitigation.org

Additional Links:

Administrative Complaint Series on CBP’s Abuse and Mistreatment of People Detained in its Custody

Administrative Complaint Series on CBP’s Abuse and Mistreatment of People Detained in its Custody

Between January and July 2020, the ACLU Foundation of San Diego & Imperial Counties, in tandem with the ACLU Border Rights Center, prepared and submitted a series of administrative complaints to the Department of Homeland Security’s Office of Inspector General (DHS OIG) detailing U.S. Customs and Border Protection (CBP)’s abuse and mistreatment of people in its custody. The complaints were based on a series of 103 interviews conducted with individuals recently released from CBP custody between March and July 2019.

Complaint #1 – Mistreatment of Pregnant People

The first complaint, filed January 22, 2020, focused on CBP’s abuse and mistreatment of detained pregnant people. One detained woman who was six months pregnant detailed how a Border Patrol  agent forcibly slammed her face against a chain link fence while other agents looked on and did nothing. Border Patrol then detained her for three days without medical care. Another woman reported her fear of her pregnant belly being kicked while having to sleep on the crowded floor of the holding cell. When she began to experience abdomen pain and other symptoms and asked for medical attention, Border Patrol agents told her she was lying.

The complaint contains numerous reports of pregnant individuals being denied not only medical care, but access to clean clothes and other basic hygienic necessities.

The complaint implores DHS OIG to conduct an immediate review of CBP’s treatment of pregnant people in its custody, including recommending CBP stop detaining pregnant people altogether and adopt explicit policies to ensure for adequate, timely medical care of pregnant individuals.

Complaint #2 – Mistreatment of Sick Children

The second complaint, filed on February 18, 2020, focused on the treatment of sick children in CBP and U.S. Border Patrol facilities. The complaint details how Border Patrol continued to hold a weeks-old infant who experienced significant weight loss while detained in custody against the express and repeated advice of medical professionals. In another case, Border Patrol held a five-year-old child for eight days without providing any medical attention for his persistent fever and diarrhea. The complaint also notes how, as of the time of its filing, at least seven children have died in CBP custody or shortly after being released, many of whom received delayed or no medical care. Finally, the complaint calls on DHS OIG to review CBP’s treatment of sick children in its custody, recommend that CBP prioritize the release of all children, and strictly prohibit continued detention of sick children.  

Complaint #3 – Separation of Families in CBP Processing & Detention

The third complaint, filed on April 15, 2020, focused on CBP’s separation of families during detention and processing and the agency’s refusal to implement a detainee locator system. The complaint noted that despite the supposed halting of DHS’s well-publicized separation of young children from their parents, family separations continue to occur as a result of CBP processing and detention practices. Border Patrol and DHS have adopted a very restrictive definition of “family” that includes only legal guardians accompanied by minor children and gives Border Patrol agents unilateral discretion to decide whether to separate family members, resulting in countless ongoing family separations. The ACLU’s investigation documented the separation of a grandmother and her nine-year-old grandson, a woman and her sister, and a mother and her non-minor son, among countless others. Noting the many ways in which family separations intensify trauma for already vulnerable asylum seekers of all ages and the many extreme barriers to locating and communicating with loved ones who are detained, the complaint calls on DHS OIG to recommend CBP implement a detainee locator system, refrain from detaining family units, and prioritize the prompt release of families. It also recommends adoption of a more expansive definition of “family”.

Complaint #4 – Verbal Abuse of Detained Individuals

The fourth complaint in the series, filed July 7, 2020, focused on U.S. Border Patrol’s verbal abuse of detained individuals. This complaint highlights Border Patrol’s “staggering culture of cruelty” and “systematic mistreatment and dehumanization of vulnerable people.” Detained individuals reported being told “Forget about asylum, we might just take away your daughter,” “Get out of here, what are you doing here if you don’t even speak English, you are worthless,” “If you keep complaining I will put you with the dogs,” “[Y]ou broke the law, you have no rights,” “I am treating you the way illegals should be treated,” and a litany of other abusive slurs. The complaint calls on DHS OIG to recommend CBP strictly prohibit personnel from verbally abusing individuals in its custody, adopt zero-tolerance policies for anti-immigrant and racist employee conduct, and create a new complaint process that allows for timely review and increased transparency.

Documents:

Counsel: ACLU Foundation of San Diego & Imperial Counties; ACLU Border Rights Center

Contact: Shaw Drake | ACLU of Texas | sdrake@aclutx.org

Administrative Complaint Regarding U.S. Border Patrol’s Mistreatment of Honduran Family Seeking Asylum and Summary Expulsion of Newborn U.S. Citizen

Administrative Complaint Regarding U.S. Border Patrol’s Mistreatment of Honduran Family Seeking Asylum and Summary Expulsion of Newborn U.S. Citizen

On July 10, 2020, the ACLU Foundation of San Diego & Imperial Counties (ACLU-SDIC) and Jewish Family Service of San Diego (JFS) submitted an administrative complaint to the Department of Homeland Security’s Office of Inspector General (OIG) and the Office for Civil Rights and Civil Liberties (CRCL), regarding U.S. Border Patrol’s mistreatment of a Honduran family seeking asylum and the agency’s summary expulsion of the family, including their newborn U.S. citizen child, to Mexico. The family, including the mother, father, and their nine-year-old son, fled Honduras after gangs extorted them, made repeated death threats, beat the nine-year-old with a gun, and took over their house.

In early March 2020, the family made an initial attempt to seek asylum, but Border Patrol force them to wait in Mexico for an immigration court hearing. Fearing for their safety in Mexico, on June 27, 2020, the family, including the mother, who was now nine months pregnant, attempted to cross into the U.S. once again and turned themselves in to the Border Patrol. The Border Patrol agents separated the family, sending the father and son back to Mexico in the middle of the night, despite their repeated pleas to stay with the mother. Agents sent the mother to the hospital, where she gave birth to her child – a natural-born U.S. citizen. Just two days after giving birth, Border Patrol agents took the mother and her newborn U.S. citizen child to the border and directed them to walk over the border back into Mexico, even though the mother had repeatedly expressed a fear of persecution there. Once back in Mexico, the mother and child were eventually able to reunite with the father and son. The family contacted JFS from Tijuana, where they reported that neither the newborn child nor his mother had received any medical care since birth.

ACLU-SDIC and JFS filed an administrative complaint on the family’s behalf, calling for an urgent investigation of Border Patrol’s treatment of the family, including the forced expulsion of the newborn U.S. citizen and his mother to Mexico and the forced removal of the father and son. The complaint also emphasizes that Border Patrol twice failed to ensure that the family had access to non-refoulement interviews, which are intended to ensure people are not removed to countries where they are likely to face persecution – a clear violation of both U.S. law and agency policy. In addition to the investigation, the complaint calls on DHS OIG to recommend CBP immediately exempt all pregnant persons from MPP, promptly release people forced to give birth in CBP custody and their families as soon as possible after birth, and ensure CBP complies with their non-refoulement obligations and hold officers who do not accountable, among others.

Documents:

Counsel: ACLU Foundation of San Diego & Imperial Counties; Jewish Family Service of San Diego

Additional Links:

D.A. v. United States

D.A., et al., v. United States of America, et al., No. 1:20-cv-03082 (N.D. Ill., filed May 22, 2020)

On the night of May 23, 2018, D.A. and A.A. entered the United States with their mother, Lucinda Padilla-Gonzales, seeking asylum from political violence in their native Honduras, along with other asylum seekers. Shortly after crossing the U.S. border, several U.S. Customs and Border Protection (CBP) officers approached the group and arrested them. The CBP officers loaded the group into a van without offering them food or water. They insulted Lucinda and her children, calling them liars and telling them that they were tired of immigrants, and questioned their motives for coming to the United States. The CBP officers also told the group that they would all lose their children.

CBP officers took Lucinda and her children to the Ysleta Port of Entry in El Paso, Texas. The type of holding center they were taken to is commonly referred to by asylum seekers as a “hielera” (an “icebox,” in Spanish) because of the freezing cold temperatures. D.A. and A.A., who were still wet from crossing the river, were forced to sit, shivering, on concrete steps in the hielera. CBP officers did not give them any blankets or jackets to protect them from the cold while they waited. Though Lucinda had crutches for her injured leg, CBP officers confiscated them. The family remained in the hielera for approximately one and a half days, during which time CBP officers repeatedly insulted them.

On or around May 24, 2018, federal agents took Lucinda and told her that she was going to federal prison. The federal agents did not give Lucinda an opportunity to explain anything to D.A. and A.A., or hug and kiss them goodbye. As the federal agents took Lucinda away in handcuffs, fourteen-year-old D.A. and five-year-old A.A. screamed and cried for their mother through a plexiglass divider.

Lucinda and the children remained separated for almost three months. Both the mother and the children were mistreated in government custody, exacerbating the trauma of their separation. The family filed administrative claims for damages under the Federal Tort Claims Act (FTCA) to which the government failed to respond.

In this action, filed on May 22, 2020, the family seeks damages under the FTCA for the trauma they suffered and continue to suffer. They also brought claims against the government contractor responsible for the care and custody of the children, Heartland Alliance. The complaint alleges that the United States is liable for intentional infliction of emotional distress, breach of fiduciary duty, negligence, negligent supervision, conversion, abuse of process, and loss of consortium, and that Heartland Alliance is liable for breach of fiduciary duty, negligence, negligent supervision, and violation of the Rehabilitation Act.On September 30, 2020, Plaintiffs filed their first amended complaint. On October 16, 2020, both the federal Defendants and the Heartland Alliance Defendants separately moved to dismiss. Briefing was completed in December 2020. On May 18, 2021, Plaintiffs filed an unopposed motion to stay the proceedings for 60 days for the parties to pursue settlement. As such, the Court struck the motions to dismiss with leave to reinstate should settlement negotiations fail. On July 19, 2021, Plaintiffs and Defendant USA jointly requested that the stay be extended until September 17, 2021. However, Plaintiffs requested that the stay of their claims against Defendant Heartland Alliance be lifted and that Heartland Alliance’s pending motion to dismiss be reinstated. Parties are engaged in ongoing settlement discussions.

As of October 2021, the stay has been extended through November 16, 2021. A settlement conference is set for November 9, 2021.

Documents:

Counsel: Loevy & Loevy; Asylum Seeker Advocacy Project (ASAP)

 Contact: Conchita Cruz | (305) 484-9260 | conchita.cruz@asylumadvocacy.org

Youngers v. United States of America, Docket No. 1:21-cv-00620 (D.N.M. filed Jul. 2, 2021), consolidated with Youngers v. Management & Training Corp. et al., No. 1:20-cv-00465-WJ-JHR (D.N.M.)

On November 22, 2019, the siblings of Roxsana Hernandez Rodriguez and a representative of her estate filed an administrative claim for damages under the Federal Tort Claims Act (FTCA) after Roxsana, a Honduran transgender woman, died in immigration custody.

After fleeing horrific violence in Honduras, Roxsana and seventeen other transgender asylum seekers presented themselves at the U.S. port of entry in San Ysidro, California on May 9, 2018. U.S. Customs and Border Protection (CBP) officers took Roxsana into custody and failed to conduct any medical screening, though she requested to see a doctor for what she described as an infection.

CBP held Roxsana in a processing facility commonly referred to as an “hielera” or “ice box” because of its frigid temperatures. While in CBP custody, Roxsana’s health rapidly deteriorated. She coughed so much that she had difficulty breathing and she vomited regularly. The food CBP officers offered caused her to suffer diarrhea, stomach pain, and further vomiting. CBP officers refused to provide any medical assistance until other asylum seekers stopped eating in protest.

CBP agents brought Roxsana to a hospital, but remained present during her exam and kept her in shackles. Rather than providing a Spanish interpreter, the officers primarily communicated with the doctors themselves. The hospital cleared Roxsana for immigration detention before learning that she was HIV positive.

Until her death on May 25, 2018, Roxsana remained in immigration custody, transferred between facilities as her health continued to deteriorate. By the time Immigration and Customs Enforcement (ICE) officers brought her to the hospital on May 17, 2018, doctors found her condition “way beyond” their ability to provide meaningful care. An independent autopsy determined the cause of death was “most probably severe complications of dehydration superimposed upon HIV infection, with the probable presence of one or more opportunistic infections.” The doctor also found evidence of physical abuse, with deep tissue bruising.

In the November 2019 claim, and a later supplement, Roxsana’s family and estate charged the United States as liable for wrongful death, negligence, negligent hiring and supervision, failure to provide medical care, medical malpractice, intentional infliction of emotional distress, negligent infliction of emotional distress, assault, battery, aggravated assault, false imprisonment, and loss of chance of survival.

On July 2, 2021, Joleen Youngers, as the Ms. Hernandez’s estate representative, filed a complaint against the United States Government.

Following case consolidation in December 2021, a Second Amended Complaint was filed in January 2022. Defendants moved to dismiss. On April 1, 2022, the District Court granted in part and denied in part Defendants’ motion to dismiss. On April 15, 2022, Defendants filed an answer to Plaintiff’s Second Amended Complaint.

Press Coverage:

https://www.nytimes.com/2018/11/27/us/trans-woman-roxsana-hernandez-ice-autopsy.html

https://www.buzzfeednews.com/article/adolfoflores/ice-surveillance-video-transgender-asylum-seeker

Counsel: Law Office of R. Andrew Free | Daniel Yohalem | Katherine Murray | Transgender Law Center | Grand & Eisenhofer P.A.

Contact: R. Andrew Free | (844) 321-3221 | Andrew@ImmigrantCivilRights.com