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: Mitra Ebadolahi, ACLU Foundation of San Diego & Imperial Counties | mebadolahi@aclusandiego.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 Services of San Diego

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

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 an “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 approximately 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. 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.

On September 9, 2020, Defendants filed a motion to dismiss and on September 30, 2020, Plaintiffs filed their first amended complaint.

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

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

FTCA Claim by Estate of Roxsana Hernandez Rodriguez

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.

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

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

Gonzalez Recinos et al. v. McAleenan et al.

Gonzalez Recinos et al. v. McAleenan et al., No. 1:19-cv-00138 (S.D. Tex. filed Aug. 16, 2019).

This lawsuit was brought as a writ of habeas corpus by individuals detained by CBP in various facilities within the Rio Grande Valley Sector of the U.S. Border Patrol.

The lawsuit alleges that CBP has subjected petitioners to inhumane treatment and harsh conditions in these facilities by: packing them into overcrowded cells for lengthy periods, where they are denied adequate food, water, medical attention, and sanitation facilities, providing inadequate food and water, unsanitary toilets, showering and bathing facilities, and no access to phones, beds, or medical assistance. Petitioners are also alleging that it is CBP’s pattern or practice to deny access to family members and legal counsel.

Plaintiff-petitioners filed an amended petition on July 20, 2019, and a motion for preliminary injunction on August 12. The district court held a hearing on that motion on September 6, 2019. In October of 2019, the court denied plaintiffs’ motion for preliminary injunction under the rationale that granting the requested relief would impose a substantial burden on CBP. The parties then stipulated to dismiss the case.

Counsel: Elisabeth (Lisa) Brodyaga, Refugio del Rio Grande; Jaime M. Diez, Jones and Crane; Thelma O. Garcia, Law Office of Thelma Garcia; Luis Campos, John Becker & Wesley D. Lewis, Haynes and Boone, LLP; Efrén C. Olivares, Texas Civil Rights Project

Contact: Lisa Brodyaga | Refugio del Rio Grande | 956-421-3226 | LisaBrodyaga@aol.com

A.I.I.L. et al. v. Sessions et al.

A.I.I.L. on behalf of herself and her minor children, J.A.H.I. and M.E.H.I., et al., No. 4:19-cv-00481-JAS (D. Ariz., filed Oct. 3, 2019)

This lawsuit seeks damages on behalf of thousands of traumatized children and parents who were forcibly torn from each other under the Trump administration’s illegal practice of separating families at the border.

Leading child welfare organizations, the American Academy of Pediatrics, and medical professionals have publicly denounced the forced separation of children from their parents, citing the long-lasting, detrimental effects on children’s emotional growth and cognitive development. Separated parents, meanwhile, face an increased risk of developing mental health disorders, with trauma linked to severe anxiety, depression, and suicidal thoughts.

Plaintiffs cited in the complaint include families from Guatemala and Honduras who were separated along the border in Arizona for up to 16 months. In addition to damages, the lawsuit seeks the creation of a fund to pay for professional mental health services for affected families.

The lawsuit, A.I.I.L. v. Sessions, cites violations of the Fourth Amendment (unreasonable seizure of children); the Fifth Amendment due process clause (fundamental right to family integrity; right to a hearing; right to adequate health care); and equal protection (prohibiting discrimination on the basis of race, ethnicity, or national origin).

Defendants include officials from the Departments of Justice, DHS and CBP, Health and Human Services/Office of Refugee Settlement, and the White House.

On February 14, 2020, Defendants filed a motion to dismiss Plaintiffs’ complaint, asserting lack of personal jurisdiction, failure to state a claim, and qualified immunity. Briefing on that motion is complete. On July 22, 2020, Plaintiffs sought leave to amend their complaint to include their administratively exhausted Federal Tort Claims Act (FTCA) claims. Defendants requested that the court defer a decision on Plaintiffs’ motion to amend pending the court’s decision on Defendants’ motion to dismiss. On August 31, 2020 the court granted Plaintiffs’ motion to amend and denied Defendants’ motion to dismiss. On September 3, 2020 Plaintiffs filed their amended complaint.

Counsel: Marty Lieberman, ACLU of Arizona; Lee Gelernt, Judy Rabinovitz, Anand Balakrishnan, Daniel Galindo, ACLU Immigrant Rights’ Project; Geoffry R. Chepiga, Jacqueline P. Rubin, Emily Goldberg, Hallie S. Goldblatt, Steven C. Herzog, Paul, Weiss, Rifkind, Wharton & Garrison LLP; Alexander A. Reinert, Benjamin N. Cardozo School of Law.

Contact: Marty Lieberman | ACLU of Arizona | 602-650-1854 | mlieberman@acluaz.org

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

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. The government moved to dismiss the complaint in May of 2019.

Counsel: Texas Civil Rights Project

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

C.M., et al., v. United States

C.M., et al., v. United States, No. 2:19-cv-05217-SRB (D. Ariz., filed Sept. 19, 2019)

On September 19, 2019, five asylum-seeking mothers and their children filed a lawsuit 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:

  • An eight-year-old girl is still unable to sleep unless her mother holds her.
  • A seven-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.
  • A 14-year-old boy refuses to discuss the separation or his time in detention and experiences outbursts of inexplicable anger.
  • A six-year-old girl has nightmares about her experience and often screams out to her mother in the night seeking protection from people who might separate them again.
  • An eight-year-old boy shows constant signs of fear when he is apart from his mother, especially when his mother takes him to school.

On February 11, 2019, the families filed administrative claims under the Federal Tort Claims Act (FTCA). When the government failed to respond, they brought suit. The complaint charges 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 complaint also alleges negligence.

On March 30, 2020, the district court denied the government’s motion to dismiss, finding that neither the due care exception nor the discretionary function exception to liability under the FTCA barred the claims. The government moved the court to certify its order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Briefing on that motion was completed on June 19, 2020. On July 6, 2020, the court denied the government’s motion. Discovery is ongoing.

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

Contact: Claudia Valenzuela | American Immigration Council | 202-507-7540  | cvalenzuela@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 six 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 their constitutional rights, including the right against search and seizure and Mr. Wilwal’s 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.

In May 2020, following successful settlement negotiations, the case was dismissed with prejudice.

Press coverage:

Counsel: ACLU Foundation; ACLU Foundation of Minnesota; Robins Kaplan LLP