Category Archives: Custody Conditions

Civil Rights Complaint Regarding CBP Detaining People Between Border Fences

Posted on by

On May 13, 2023, the Southern Border Communities Coalition (SBCC) submitted a complaint to the Department of Homeland Security (DHS) Office for Civil Rights and Civil Liberties. The complaint, which is supported by multiple detailed affidavits and graphic photographs, documents an ongoing Customs and Border Protection (CBP) practice of detaining people outdoors between two fences in deplorable conditions.

For months, U.S. Border Patrol agents have been detaining people arriving at the U.S./Mexico border in California between two parallel border walls—a primary and a secondary wall. Border Patrol agents are holding people—including children—on U.S. soil for days or weeks in open-air custody without adequate food, water, shelter, or medical care. CBP has provided only one port-a-potty for hundreds of people and the smell of feces is overwhelming.

Extended periods exposed to the elements without sufficient water, food, or sanitary conditions have caused migrants to suffer from serious medical conditions for which Border Patrol is not providing adequate care. SBCC has submitted images of a man with a severely infected leg injury, a woman experiencing a severe allergic reaction, and described a child who suffered an epileptic seizure.

These conditions, and the prolonged period of time that Border Patrol is holding people between the walls, are in clear violation of CBP’s own detention standards and international law governing the treatment of migrants.

Documents:

Counsel: Southern Border Communities Coalition

Contact: Ricky Garza | Southern Border Communities Coalition

Madrigales Vasquez, et al., v. United States of America

Posted on by

Madrigales Vasquez, et al., v. United States of America, No. 3:23-cv-5397, (W.D. Wash., filed May 2, 2023)

On February 21, 2021, a family of asylum seekers—two minor children and their parents—entered the United States seeking protection from persecution in Guatemala. After a long and arduous journey on foot and by bus, federal immigration officers arrested the family, dropped them off under an international border bridge near McAllen, Texas, and held the family there for three days, where hundreds of other migrants were similarly being held. 

The family expressed to officers their intention to apply for asylum right away, but officers ignored the family’s vulnerable situation and instead continued to detain them under the bridge in inhumane and unsafe conditions that violated their basic rights and sense of dignity as human beings. 

While held under the bridge, the family lacked adequate access to basic necessities, including food, clothing, shelter, and medical care. They were constantly exposed to the elements and forced to sleep on the bare ground, with hardly any protection from freezing night conditions. For three days, they constantly felt cold, sore, famished, and exhausted. When one of the parents became ill from the conditions, she was denied medical care. Moreover, officers put the family and other asylum seekers at risk of contracting COVID-19 during a time when the vast majority of the United States and world population remained unvaccinated. In the holding area under the bridge, asylum seekers had no access to running water or hygiene items like soap, and social distancing was impossible in the crowded conditions.

During their three days under the bridge, officers refused to provide the family with any explanation regarding their situation, why they were detained, or what was going to happen to them. As a direct result of this unlawful conduct, the family suffered severe physical, mental, and psychological harm. 

On June 21, 2022, the family submitted an administrative claim under the Federal Tort Claims Act (FTCA) against the government actors who detained them, and on May 2, 2023, they filed a complaint in federal court in the Western District of Washington, where they currently reside.

Documents:

Counsel: Northwest Immigrant Rights Project

Contact: Matt Adams | Northwest Immigrant Rights Project | 206.957.8611 | matt@nwirp.org

ACLU and 137 organizations send letter to CBP Commissioner urging CBP not to detain pregnant, postpartum, and nursing people

Posted on by

Following a February 2020 incident where a pregnant woman was forced to give birth in a California Border Patrol station and then forced to return to the Border Patrol station for postpartum detention after a short trip to the hospital, the ACLU and Jewish Family Service filed a complaint with the DHS Office of the Inspector General (OIG). OIG subsequently investigated and issued a report on the incident, along with recommendations to improve CBP’s processes relating to childbirth. On November 23, 2021, CBP issued its current policy, “Policy Statement and Required Actions Regarding Pregnant, Postpartum, Nursing Individuals, and Infants in Custody.” 

In its October 20, 2022 letter, the ACLU, Jewish Family Services of San Diego, the UCLA Center for Immigration Law and Policy, along with 82 advocacy organizations and 52 medical professionals, urged the Commissioner to expand the current CBP policy to include the following: (1) limit the time people who are pregnant, postpartum, and/or nursing are detained in CBP custody to no more than 12 hours from the initial apprehension, and (2) ensure that people who are pregnant, postpartum, and/or nursing, along with their families, are not transferred back to CBP detention for any reason following discharge from any offsite hospital.

Counsel: Shaw Drake, ACLU; Jewish Family Services; and Monika Langarica, UCLA Center for Immigration Law and Policy

Contact: Monika Langarica | UCLA Center for Immigration Law and Policy | langarica@law.ucla.edu

Additional Links:

Send a message to CBP today demanding that pregnant, postpartum, and nursing persons and infants must be released as soon as possible: Uphold the reproductive rights and health of migrants | American Civil Liberties Union (aclu.org)

Wilbur P.G. v. United States

Posted on by

Wilbur P.G, et al., v. United States, No. 4:21-cv-04457 (N.D. Cal., filed June 10, 2021)

Plaintiffs are three families who were separated at the Arizona border in May 2018 under the Department of Justice’s Zero Tolerance policy. The parents were separated from their children while in Customs and Border Protection (CBP) custody, under the guise of pursuing criminal prosecutions against the parents. Two parents were never criminally prosecuted, while the other parent was prosecuted for illegal entry—a misdemeanor—and served a three-day sentence in criminal custody.

After separating the children from their parents, CBP officers transferred the plaintiff children to the custody of the Office of Refugee Resettlement (ORR). The families were separated for weeks. While detained, one parent sustained lasting physical injuries after being denied medical attention. One of the children was sexually abused while in ORR custody.

The families sued under the Federal Tort Claims Act to recover damages caused by the separation itself, as well as the physical and emotional injuries suffered by various plaintiffs during their time in detention.

Plaintiffs filed suit on June 10, 2021 in the Northern District of California. On January 5, 2022, Defendant United States filed a motion to transfer the case to the District of Arizona. Defendants also moved to dismiss the case for lack of subject matter jurisdiction. On May 10, 2022, the district court denied Defendant’s motion to transfer and motion to dismiss. On May 24, 2022, Defendant filed its answer to the complaint; Defendant later amended the answer on July 29, 2022. As of February 2023, discovery is ongoing.

Documents:

Counsel: Lawyers’ Committee for Civil Rights of the San Francisco Bay Area | Keker, Van Nest & Peters

Contact: Victoria Petty | vpetty@lccrsf.org

Press:

Note: Other family separation cases filed in California include:

  • I.T. v. United States, 4:22-cv-5333 (N.D. Cal., filed Sept. 20, 2022);
  • J.R.G. and M.A.R. v. United States, 4:22-cv-5183 (N.D. Cal., filed Sept. 12, 2022);
  • Rodriguez v. United States, 2:22-cv-2845 (C.D. Cal., filed Apr. 28, 2022);
  • A.F.P. v. United States, 1:21-cv-780 (E.D. Cal., filed May 14, 2021);
  • Nunez Euceda v. United States, 2:20-cv-10793 (C.D. Cal., filed Nov. 25, 2020).

Other family separation cases filed in district courts in other states:

  • F.C.C. v. United States, 2:22-cv-5057 (E.D.N.Y., filed Aug. 25, 2022);
  • W.P.V. v. Cayuga Home for Children, Inc. and United States, 1:21-cv-4436 (S.D.N.Y., filed May 17, 2021);
  • C.D.A. v. United States, 5:21-cv-469 (E.D. Pa., filed Feb. 1, 2021);
  • R.Y.M.R v. United States, 1:20-cv-23598 (S.D. Fla., filed Aug. 28, 2020);
  • D.J.C.V. v. United States, 1:20-cv-5747 (S.D.N.Y., filed July 24, 2020).

For a list of District of Arizona family separation cases, consult the entry on C.M. v. United States.

A.F.P. and J.F.C. v. United States of America

Posted on by

A.F.P. and J.F.C. v. United States of America, No. 1:21-cv-780 (E.D. Cal., filed May 14, 2021)

Plaintiff A.F.P. and his fifteen-year-old son J.F.C., both citizens of Honduras, approached Border Patrol agents near McAllen, Texas to seek asylum. Instead, Border Patrol agents separated J.F.C. from his father and detained both in a holding facility, often referred to as a hielera or “ice box” for its freezing cold temperatures. The hielera was cold and cramped, and the food provided was frozen and expired.

The two were only permitted to speak to each other for 30 minutes per day. Three days after the two were taken into custody, A.F.P. was charged with illegal entry and taken to federal criminal court. During A.F.P.’s court hearing, CBP and ICE officers designated J.F.C. as an unaccompanied minor, transferred his custody to the Office of Refugee Resettlement (ORR) and moved him to a facility in New York. When A.F.P. returned to the detention center, his son was gone. The officers did not advise A.F.P. of the reason or destination of his son’s transfer.

In New York, J.F.C. resided at the Children’s Village facility, where he was not allowed to communicate with his father, was denied medical care, and was subject to emotional abuse. As a result of this neglect, J.F.C. suffers from hearing loss from an untreated ear infection and severe memory problems because of the trauma he experienced.

During this time, A.F.P. was held in ICE detention in Texas, where he had an interview with an asylum officer and was told he had a credible asylum case. After officers at the detention center put A.F.P. in touch with a notary public who led him to believe that pursuing his asylum case would keep him from reuniting with his son, A.F.P. withdrew his asylum application at his hearing in front of an immigration judge. He was then transferred to maximum security prisons and deported a month later. He was separated from his son for almost fifteen months. A human rights organization later helped A.F.P. lawfully re-enter the U.S. and reunite with J.F.C.

Plaintiffs filed suit against the federal government in the Eastern District of California, seeking damages under the Federal Tort Claims Act (FTCA) for intentional infliction of emotional distress, abuse of process, negligence as to family separation, and negligence. Defendant United States moved to dismiss the claims and moved to transfer the case to the Southern District of Texas. On July 11, 2022, the court dismissed Plaintiffs’ negligence cause of action regarding J.F.C.’s time in ORR custody as barred by the independent contractor exception to the FTCA’s waiver of sovereign immunity.  On July 26, 2022, Defendant filed its answer to the remaining claims. As of February 2023, discovery is currently underway.

Documents:

Counsel: Morgan, Lewis & Bockius L.L.P.

Transgender Law Center v. Immigration & Customs Enforcement

Posted on by

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.

On October 17, 2022, a magistrate judge held a case management conference with the parties and referred the case to another magistrate judge for a settlement conference. The court continued the case management conference to May 8, 2023.

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

Posted on by

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 refused to adjudicate the case, saying that it was 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. (Case No. 1:22-cv-1162-ZMF (D.D.C.).) On July 20, 2022, Plaintiffs voluntarily dismissed the mandamus action.

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

Posted on by

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

Posted on by

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. Defendants filed a motion to dismiss on June 10, 2022. On June 14, 2022, the court found that the case was not related to Huisha-Huisha and P.J.E.S. v. Wolf and J.B.B.C. v. Wolf. Thus, it transferred the case for random reassignment. Plaintiffs filed their brief in opposition to Defendants’ motion to dismiss on July 15, 2022. On September 2, 2022, Defendants filed their reply brief in support of their motion to dismiss. The court’s decision on the motion is pending.

Documents:

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

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

Anas Elhady v. Unidentified CBP Agents

Posted on by

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. Mr. Elhady filed a petition for writ of certiorari to the Supreme Court on May 25, 2022. On October 13, 2022, the Supreme Court denied the petition for writ of certiorari. 

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