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

Administrative Complaint Re: Extreme Temperatures in CBP Short Term Detention Facilities

Administrative Complaint Re: Extreme Temperatures in CBP Short Term Detention Facilities

On February 2, 2016, NIP/NLG, in collaboration with Programa de Defensa e Incidencia Binacional  and the ACLU of New Mexico, filed an administrative complaint on behalf of persons held by CBP in short-term detention facilities where they are exposed to extreme temperatures. The administrative complaint also challenges the agency standards  addressing temperature controls in short-term facilities, but asserts that the agency fails to abide even by these standards.

Shortly after the complaint was filed, DHS OIG announced that it would inspect short-term detention facilities.

Counsel: Programa de Defensa e Incidencia Binacional (PDIB) | National Immigration Project of the National Lawyers Guild | ACLU of New Mexico

Contact: Trina Realmuto | National Immigration Project of the National Lawyers Guild | trina@nipnlg.org

FTCA Administrative Complaint by Immigrant Mothers’ Against DHS/CBP/ICE

FTCA Administrative Complaint by Immigrant Mothers’ Against DHS/CBP/ICE

On August 10, 2015, five immigrant mothers sent administrative complaints to the Department of Homeland Security under the Federal Tort Claims Act for the abuses the women and their children had suffered while detained in ICE custody. These women, who fled their home countries due to endemic violence suffered at the hands of criminal gangs and intimate partners, sought asylum in the United States. After entering the custody of CBP/ICE, they endured deplorable detention conditions, including woefully inadequate medical and mental health care, little to no legal information as to their rights and/or fates, no educational services for the detained children, and lack of access to necessities such as food, water, clothing, and bathing facilities.

Counsel: R. Andrew Free | Barrett, Johnston, Martin & Garrison, LLC

Contact: R. Andrew Free | (615) 244-2202 | Andrew@ImmigrantCivilRights.com

Press coverage:

FTCA Administrative Complaint of Honduran Family Denouncing the Hieleras (dated July 18, 2015)

John Doe and Jane Roe v. United States, 3:16-cv-856 (Mid. Dis. Nash. Filed May 12, 2016)

Claimants—a husband and wife—fled to the United States from their native Honduras in 2013 in an attempt to escape severe violence. In the six months preceding their trek north, Claimant Wife’s family had been targeted by a criminal organization, which murdered her brother outside the family business, beat her mother into a coma, and raped her 12-year-old cousin. Fearing for their safety, Claimant Wife (then nearly eight months pregnant) and Claimant Husband fled for the United States, taking their two-year-old son with them. After crossing the border, the family turned themselves in to CBP officers at the Weslaco Station in the Rio Grande Valley Sector and requested asylum. In July 2015, they filed an administrative complaint against the United States for the serious mistreatment they suffered while in CBP custody. They raise claims of negligence, gross negligence, invasion of privacy, false imprisonment, and intentional infliction of emotional distress.

The family was taken to a detention center referred to as a “hielera” (“freezer” or “icebox”), where they were stripped of extra layers of clothing and their baby supplies (including diapers) were confiscated. The cell was so cold that Claimant Wife’s fingers turned color and her teeth chattered. Claimant Wife and the couple’s toddler were placed in a female-only cell with about 65 other people, including about 40 children ranging in age from newborn to 18. They were fed cold burritos and bologna sandwiches, but the youngest children could not eat them as they could not yet eat adult food. Claimants’ toddler son developed severe diarrhea but Claimant Wife was not provided with adequate supplies to clean him, such that the diarrhea leaked through the boy’s diapers.

CBP failed to provide Claimant Wife, her son, and the rest of the women and children in their cell with a bed, warm clothes, blankets, adequate edible food and potable water, and enough toilet paper or other cleaning supplies. The lights were on the entire time the family was in detention. Those who requested even the slightest accommodation were ridiculed, mocked, and even yelled at by CBP officers. As a result of these conditions, Claimant Wife and her child were unable to sleep more than a few minutes at a time. Children cried incessantly about the cold and lack of food and water.

Experiencing severe stomach pain and concerned about having to give birth in those filthy conditions, Claimant Wife begged for medical treatment. She was eventually taken to a nearby hospital, where the medical staff determined that she was in the process of dilation and informed CBP in writing that Claimant Wife was not medically able to travel. The staff also instructed Claimant Wife and (upon information and belief) CBP staff that she should be released from detention so as to prevent preterm labor and minimize the risk of medical harm to her and the baby, but CBP returned Claimant Wife to detention instead.

Over the next day, the family attempted to obtain information about their release and were only released after successfully convincing a CBP officer to check the doctor’s release order. Previously, CBP officers had told Claimant that she should not have her baby in detention, threatening her with prolonged detention and her husband’s deportation back to Honduras if she did so. When Claimants asked for medical treatment for their young son, who was visibly ill and dehydrated form diarrhea, they were told that if the officers took him to get medical attention, it would take longer for the family to be released. The officers also made clear to the family that they did not qualify and could not apply for asylum.

After nearly 72 hours in the freezing hielera without access to adequate food, water, hygiene, necessities, blankets, bedding, warmth, sleep, and medical care, CBP released the family by leaving them at a bus station in the middle of the night.

Claimants filed an administrative FTCA complaint on July 18, 2015, and suit in federal district court in May 2016. On August 19, 2016, the government filed a motion to dismiss the case. On October 26, 2017, the Court denied the government’s motion to dismiss, holding that the plaintiffs had sufficiently alleged injuries caused by the Defendant’s misconduct.

On January 23, 2018, the case was resolved following a voluntary dismissal of the action.

Counsel: R. Andrew Free | Barrett, Johnston, Martin & Garrison, LLC

Contact: R. Andrew Free | (615) 244-2202 | Andrew@ImmigrantCivilRights.com

Doe v. Nielsen

Doe v. Nielsen, No. 4:15-cv-00250-DCB (D. Ariz., filed June 8, 2015)

Three individuals filed a class action suit challenging detention conditions in the Tucson Sector of the U.S. Border Patrol. The complaint alleges that the Tucson Sector Border Patrol holds men, women, and children in freezing, overcrowded, and filthy cells for days at a time in violation of the U.S. Constitution and CBP’s own policies. Detained individuals are stripped of outer layers of clothing and forced to suffer in brutally cold temperatures; deprived of beds, bedding, and sleep; denied adequate food, water, medicine and medical care, and basic sanitation and hygiene items such as soap, sufficient toilet paper, sanitary napkins, diapers, and showers; and held virtually incommunicado in these conditions for days.

The American Immigration Council, the National Immigration Law Center, the ACLU of Arizona, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and Morrison & Foerster LLP represent the plaintiffs and class. Plaintiffs seek to compel the Tucson Sector to bring its detention facilities in line with Constitutional standards, including limiting the time a person may be detained in holding cells to a few hours, providing adequate food, water, and medical care, beds and bedding, access to showers and hygiene supplies, and maintaining appropriate capacity limits and temperature controls, among other reforms.

Subsequent to filing the suit, Plaintiffs sought and were granted expedited discovery, and thus were able to inspect 4 of the 8 Border Patrol facilities at issue, and were given copies of CBP video recordings of the holding cells and agency logs from these same 4 facilities dating back to the filing of the complaint. Thereafter, Plaintiffs filed a motion for sanctions over Defendants’ failure to fully comply with the expedited discovery order, which the Court granted in part.

On December 4, 2015, Plaintiffs moved for a preliminary injunction. Defendants’ moved to seal much of the evidence supporting Plaintiffs’ motion, and thus block public exposure to photographs and other revealing evidence.  On January 28, 2016, Phoenix Newspapers Inc., the parent corporation to the Arizona Republic, moved to intervene in the suit for the limited purpose of opposing Defendants’ Motion to Seal.  The Court granted the Arizona Republic’s motion and unsealed numerous documents.

In early 2016, the Court certified a class consisting of all detainees who now or in the future will be detained by the Border Patrol in the Tucson Sector. The Court also denied Defendants’ motion to dismiss with respect to the constitutional claims but did dismiss Plaintiffs’ APA claim.

In late 2016, following an evidentiary hearing, the District Court issued a preliminary injunction which held, among other things, that forcing a detainee to sleep on a concrete floor with no bedding was a violation of his or her constitutional rights. The Court ordered Border Patrol to provide sleeping mats to all individuals detained for 12 hours or more; afford individuals a means to clean themselves; provide them with toothbrushes and toothpaste; monitor cell conditions to ensure that they were sanitary and that toilets and sinks were in working condition; and adopt an enhanced medical screening form to use with all detained individuals. Both parties appealed to the Ninth Circuit. On December 22, 2017, the Ninth Circuit upheld the District Court’s decision in its entirety.

Plaintiffs’ partial motion for summary judgment was denied on March 15, 2019, with the Court ruling that all issues are best resolved at trial. A seven-day trial took place in January 2020 during which the Plaintiffs presented numerous witness, including three experts.

Counsel: The American Immigration Council, the National Immigration Law Center, the ACLU of Arizona, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and Morrison & Foerster LLP

Contact: Mary Kenney | American Immigration Council | 202.507.7512 | mkenney@immcouncil.org

Resources:

Alba Quinonez Flores v. United States of America

Alba Quinonez Flores v. United States of America
No. 1:14-cv-03166 (E.D.N.Y. Filed May 20, 2014)

Filed under the Federal Tort Claims Act, this suit seeks damages for the physical and psychological injury Ms. Quinonez Flores suffered at the hands of CBP while she was detained in holding cells, known as hieleras (iceboxes), in CBP’s Rio Grande Valley Sector. The complaint alleges that CBP negligently placed Ms. Quinonez Flores in detention conditions that they knew or should have known posed a substantial risk of harm, failed to oversee the agents who managed the day-to-day operations of the detention facilities, and that their acts and omissions constituted the intentional infliction of emotional distress. For more information regarding this case, see Texas, FTCA Administrative Complaints.

On December 30, 2014, Defendants moved to transfer venue, arguing that venue was not proper in the E.D.N.Y. because Plaintiff was not lawfully present in the U.S. The court denied Defendants’ motion on June 12, 2015.

Thereafter, CBP offered to settle the case for $80,000. On February 4, 2016, after Plaintiff accepted the offer, the parties stipulated to the dismissal of the suit.

Counsel: Law Office of David K.S. Kim, PC; Kurzban, Kurzban, Weinger; Americans for Immigrant Justice

Contact: Ira Kurzban | Kurzban, Kurzban, Weinger | 305-444-0060 | ira@kkwtlaw.com

FTCA Administrative Complaint of Pregnant Minor

FTCA Administrative Complaint of Pregnant Minor (dated July 7, 2014)

Claimant, who is a minor, was taken into Border Patrol custody in May, 2014. Shortly after being taken into custody, agents took her to a hospital where it was determined that she was five months pregnant and in good health. She was released by the hospital back to the custody of Border Patrol. Sometime after her return to the Border Patrol station, she began to experience abdominal pain. She asked to be taken back to the hospital, but agents refused. The agents insisted that she remain seated even though the pain was so great she needed to lie down. Her water broke and she began to bleed. The agents refused to render aid or take her back to the hospital. Finally, another agent came to her aid and took her to the hospital. She alleges that she lost the baby because she did not receive immediate aid. The complainant decided not to file a federal lawsuit.

Counsel: Javier Maldonado

Contact: Javier Maldonado | (210) 277-1603 | jmaldonado.law@gmail.com

In Re: Honduran minor

In re: Honduran minor

In this matter, a Honduran citizen in removal proceedings moved to terminate the proceedings based upon the treatment he received as a minor in both CBP and ICE custody. In 2013, when he was 17 years old, he traveled alone from Honduras to the United States. Once in the United States, he was apprehended by a Border Patrol agent. He informed the agent of his age, but the agent responded that he did not believe him. Although he was initially placed in a holding cell with children, he was soon moved to one with only adult men, none of whom were related to him. He was not provided with the notice of rights that CBP is required to serve on minors. Instead, he was coerced into signing a voluntary departure form which incorrectly listed his birth date as a year earlier, thus implying that he was 18 rather than his actual age of 17.

After signing the voluntary departure order, he was made to shower in a cell with adult males. Soon after this, he was put on a plane and transferred to ICE custody in New Jersey. In all, he spent 8 days detained with adult men before finally convincing ICE officials that he was a minor.

In his motion to terminate, the Honduran citizen alleged that CBP and ICE officials violated his rights under the INA, federal regulations, and the settlement agreement in Reno v. Flores, 507 U.S. 292, 296 (1993). He argued that termination was a proper remedy because the rights that were violated were fundamental ones; because the officials conduct shocked the conscience; and because he suffered prejudice affecting his rights and the fundamental fairness of the removal proceeding.  Following the approval of the Honduran citizen’s I-360 petition for Special Immigrant Juvenile Status, the parties voluntarily terminated this action.

Counsel: The Door, Legal Service Center

Contact: Anthony Enriquez and Elizabeth Jordan | (212) 941-9090, ext. 3426 | ejordan@door.org

In the Matter of XXXXX

In the Matter of XXXXX – Redacted Motion to Terminate Removal Proceedings (based on custody conditions and failure to report child abuse)

Respondent, a 15 year old unaccompanied minor, was arrested by border patrol agents in Texas. CBP detained her in an icebox, and failed to provide her with sufficient food, water, clothing and shelter or medical assistance for approximately eleven days. Respondent was not permitted to shower, brush her teeth or go outside.  She was given only a nylon blanket and forced to sleep on the cold floor in a room crowded with other people.  She became physically sick with cough and fever.

Respondent subsequently was placed in removal proceedings. She subsequently moved to terminate the proceedings, arguing that the agency’s conduct violated the Fifth Amendment, the  terms of the settlement agreement in Flores v. Reno, 8 USC 1232(b) (requiring transfer of unaccompanied minors to custody of the Department of Health and Human Services within 72 hours), and that the agency’s failure to report the conduct as child abuse constituted a crime under 18 USC 2258.  The immigration judge denied the motion to terminate proceedings on February 4, 2015.  The Board of Immigration Appeals subsequently denied an interlocutory appeal.

Counsel: Bryan Johnson

Contact:  Amoachi & Johnson, PLLC | (631) 647-9701 | Bryan@amjolaw.com