Adlerstein v. U.S. Customs and Border Protection

Adlerstein, et al., v. U.S. Customs and Border Protection, et al., No. 4:19-cv-00500-CKJ (D. Ariz., filed Oct. 16, 2019)

Ana Adlerstein, Jeff Valenzuela, and Alex Mensing are humanitarian activists whom U.S. Customs and Border Protection (CBP) subjected to repeated and lengthy detentions, searches, and interrogations without any connection to legitimate border control functions. All three are U.S. citizens with a right to return to the United States and yet all three were targeted as part of the federal government’s surveillance of individuals and groups protesting United States immigration policies.

On May 5, 2019, Ms. Adlerstein lawfully accompanied an asylum seeker to the Lukeville, Arizona port of entry. Without any evidence that Ms. Adlerstein had committed a crime, a CBP officer arrested and handcuffed Ms. Adlerstein, subjected her to an intrusive search, and detained her for hours, denying her requests to speak to her attorney. When Ms. Adlerstein protested that the CBP officers were violating her rights, an officer responded: “The Fourth Amendment doesn’t apply here.”

Mr. Valenzuela, a photographer and humanitarian volunteer, attempted to drive back into the United States at a port of entry in San Diego in December 2018. When he arrived, border officers walked to his car, ordered him out, handcuffed him, and marched him into their offices. They took his belongings, searched his bags, and shackled him by his ankles to a steel bench. They left him there, chained, for hours. Eventually they brought him to a small room where they interrogated him about his volunteer work, his associations, and his political beliefs.

Mr. Mensing crossed into the United States from Mexico twenty-eight times during a period of six months between June 2018 and October 2019. On twenty-six of those entries, CBP agents summarily referred him for “secondary inspection,” which for him included detention, searches, and repeated interrogation. During these interrogations, officers repeatedly asked him the same questions about his work, his finances, his associations, and his personal writings. These seizures became a routine part of his life: cross the border, get detained for hours, and be forced to answer the same questions by the government.

In their complaint, filed on October 16, 2019, the activists allege that CBP’s conduct violated the Fourth and First Amendments. The complaint also alleges that the government’s collection of private and protected information from the activists violated the Privacy Act, 5 U.S.C. § 552a(a)-(l). The activists sought injunctive and declaratory relief. In April 2020, the parties completed briefing on the government’s motion to dismiss and motion for summary judgment.

Counsel: ACLU of Southern California; ACLU of Arizona; Kirkland & Ellis

Contact: Mohammad Tajsar | (213) 977-9500 | mtajsar@aclusocal.org

Guan v. Wolf

Guan, et al., v. Wolf, et al., No. 1:19-cv-06570-PKC-JO (E.D.N.Y., filed Nov. 20, 2019)

In Guan v. Wolf, five journalists were tracked by U.S. Customs and Border Protection (CBP), and other government agencies, and then detained, and interrogated by CBP officials when attempting to re-enter the United States. In response to this unprecedented coordinated attack on the freedom of the press, Plaintiffs filed a federal lawsuit alleging violations of their First Amendment rights on November 20, 2019.

Bing Guan, Go Nakamura, Mark Abramson, Kitra Cahana, and Ariana Drehsler are all U.S. citizen professional photojournalists. Between November 2018 and January 2019, they separately traveled to Mexico to document people traveling north from Central America by caravan in an attempt to reach the U.S.-Mexico border. Border patrol agents referred each journalist to secondary inspection on their return to the United States and questioned them about their work as photojournalists, including their coverage of the caravan, their observations of conditions at the U.S.-Mexico border, and their knowledge of the identities of certain individuals. This questioning focused on what each journalist had observed in Mexico in the course of working as a journalist, and did not relate to any permissible immigration or customs purpose. A secret government database leaked to NBC San Diego in March 2019 revealed that the Department of Homeland Security (DHS) had engaged in wide-ranging intelligence collection targeting activists, lawyers, and journalists—including these five journalists—working on issues related to the October 2018 migrant caravan and conditions at the U.S.-Mexico border.

The five journalists filed this action alleging that CBP’s questioning aimed at uncovering their sources of information and their observations as journalists was unconstitutional. They seek a declaratory judgment that such conduct violated the First Amendment. The journalists further seek an injunction requiring the government to expunge any records it retained regarding the unlawful questioning and to inform the journalists whether those records have been disclosed to other agencies, governments, or individuals.

Counsel: ACLU San Diego & Imperial Counties; ACLU; NYCLU

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

NBC 7 San Diego v. United States Department of Homeland Security

NBC 7 San Diego et al v. United States Department of Homeland Security et al., No. 1:19-cv-01146 (D.D.C., filed Apr. 22, 2019)

In March 2019, NBC 7 San Diego reported that U.S. Customs and Border Protection (CBP) maintains a secret database of lawyers, journalists, and others who were covering the migrant caravan or advocating for asylum seekers. Several of those in the database reported spending hours in secondary screening, and at least three people reported being barred from crossing into Mexico.

NBC reported that CBP secretly tracks these individuals under the aegis of “Operation Secure Line,” the moniker for its efforts to deter and intimidate caravans of asylum seekers. The agency’s proffered justification for maintaining this secret database is that the people listed were somehow involved with an incident in which a large group of asylum seekers approached the border barrier, leading CBP to respond with tear gas.

The existence of this database attracted the attention of the House of Representatives’ Committee on Homeland Security, prompting a letter to DHS leadership requesting further information on the tracking of journalists and advocates.

On April 22, 2019, NBC 7 San Diego filed this lawsuit under the Freedom of Information Act (FOIA) seeking records that reference “Operation Secure Line” and the secret database. CBP continues to deny the data base sought exists. The parties have filed cross motions for summary judgment.

Counsel: The Reporter’s Committee for Freedom of the Press

Contact: Katie Townsend | 202-795-9300 | ktownsend@rcfp.org

FTCA Administrative Complaint against CBP and Border Patrol for False Arrest at a Greyhound Bus Station

FTCA Administrative Complaint against CBP and Border Patrol for False Arrest at a Greyhound Bus Station

Sosa Segura v. United States of America, No. 2:19-cv-00219-SAB (E.D. Wash., filed Jun. 25, 2019) 

On June 20, 2018 the ACLU of Washington and the Northwest Immigrant Rights Project filed a claim under the FTCA on behalf of Andres Sosa Segura, who was unlawfully seized and detained by Border Patrol agents at an intermodal transit station in Spokane, Washington.

Mr. Sosa, a resident of Washington, traveled regularly to Montana for work. On his return trip from Montana, after disembarking a bus at the Spokane station to make a transfer, Mr. Sosa was approached by Border Patrol agents who began to interrogate him about his legal status. Mr. Sosa had been the only Latinx-appearing passenger on the bus. He asserted his right to remain silent and showed the agents a “know your rights” card. Upon viewing the card, one of the agents called Mr. Sosa “illegal,” and both agents positioned their bodies so he could not leave, even once putting their hand on their gun as though to imply the use of force if Mr. Sosa did not comply.

The agents continued to question Mr. Sosa and to threaten him with deportation, even after he disclosed he had already been released from immigration detention and had an ankle monitor. They eventually drove him to a detention facility an hour away from the bus station and continued to detain him for several hours while they verified he had been released from immigration detention on bond. Eventually, Mr. Sosa was driven back to the Spokane bus station and released, though he had already missed all buses back to his home. The complaint letter asserts that Mr. Sosa experienced humiliation, emotional distress, and other damages during the time he was falsely arrested and falsely imprisoned.

On June 25, 2019, Mr. Sosa filed a complaint in federal district court, as CBP failed to issue a final disposition on the administrative complaint within the required six-month period. The government filed a subsequent motion to dismiss, which was denied on November 22, 2019.

Counsel: ACLU of Washington|Northwest Immigrant Rights Project

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

Press:

 

Alasaad v. Nielsen

Alasaad et al. v. Nielsen et al., No. 1:17-cv-11730-DJC  (D. Mass., filed Sept. 13, 2017) and Nos. 20-1077, 20-1081 (1st Cir., filed Jan. 28, 2020)

On September 13, 2017, the Electronic Frontier Foundation, along with the ACLU and the ACLU of Massachusetts, brought suit against Customs and Border Protection and Immigration and Customs Enforcement, challenging those agencies’ practices of seizing travelers’ electronic devices without a warrant or individualized suspicion of wrongdoing. The organizations filed on behalf of 10 U.S. citizens and one lawful permanent resident who had smartphones and other electronic devices seized when they arrived at the U.S. border. Many of the plaintiffs had their devices confiscated for extended periods of times. The plaintiffs seek the return of their devices, as well as declaratory and injunctive relief requiring the government to seek a warrant or have probable cause that a crime was committed prior to seizing a travelers’ cellphone. On December 15, 2017, Defendants filed a motion to dismiss.

On May 9, 2018, the court denied Defendants’ motion to dismiss, holding that Plaintiffs plausibly alleged that the government’s digital device search policies substantially burden travelers’ First Amendment rights.

Defendants filed an answer on June 1, 2018. Since then, the parties have been proceeding through the discovery process. In Spring 2019, the parties cross-moved for summary judgment, with plaintiffs arguing that CBP’s policy authorizing warrantless, suspicionless searches of electronic devices violates the First and Fourth Amendments, and are seeking an injunction. Oral argument was held on July 2019. In November of 2019, the court denied Defendants’ motion for summary judgment. The court allowed in part and denied in part Plaintiffs’ motion for summary judgment, denying the request for injunctive relief but allowing the request for declaratory relief. Defendants appealed the order, and Plaintiffs cross-appealed in January of 2020.

Counsel:  Electronic Frontier Foundation, American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Massachusetts

Jacobson et al. v. DHS et al.

Jacobson et al. v. DHS et al.Nos. 14-02485 (D. Ariz., filed Nov. 20, 2014) and 16-17199 (9th Cir., filed Nov. 30, 2016)

This is a First Amendment case brought against DHS, CBP, and certain named officials for their interference with the plaintiffs’ right to protest, observe, and record activity at the U.S. Border Patrol’s checkpoint on Arivaca Road near the Arizona-Mexico border. Although CBP claims that this checkpoint is temporary, it has been in continuous existence for twelve years. Many Arivaca residents must drive through the checkpoint every day to reach jobs, schools, and shops. Plaintiffs are members of a community organization called People Helping People (PHP), which organized a “checkpoint monitoring campaign” in response to complaints that Border Patrol agents were violating individuals’ civil rights at the checkpoint. A number of these incidents were detailed in an administrative complaint filed with DHS Office of Inspector General and DHS Office of Civil Rights and Civil Liberties.

As part of the checkpoint monitoring campaign, PHP volunteers stood on a public right-of-way adjacent to the Arivaca Road checkpoint and took notes, photographs, and video recordings of the actions of Border Patrol agents at the checkpoint. Other individuals, also standing on the public right of way, held up signs protesting the checkpoint. Soon after PHP began their monitoring activity, Border Patrol agents ordered the volunteers and protestors to move to a spot much farther away, making it virtually impossible for the monitors to observe what was happening at the checkpoint. The Border Patrol agents enlisted the assistance of a local law enforcement officer, who also ordered the PHP monitors to move to another spot. The monitors and protestors complied with this order.

Plaintiffs brought this suit, alleging that Defendants interfered with their First Amendment right to protest, observe, and record law enforcement activity in their community. They seek an injunction that would prevent Border Patrol agents from restricting their monitoring activity on the public right of way.

In January 2015, Plaintiffs moved for a preliminary injunction.  After oral arguments in April, the court denied Plaintiffs’ motion in September 2015, finding that the Border Patrol’s policy was a valid “time, place, and manner restriction” on Plaintiffs’ speech. Defendants moved to dismiss or, in the alternative, for summary judgment. In September 2016, the presiding magistrate judge granted Defendants’ motion and entered judgment against the Plaintiffs.

Plaintiffs appealed in November 2016. Briefing was completed in August 2017 and oral argument held in December 2017, in San Francisco.

On February 13, 2018, the Ninth Circuit vacated the district court’s grant of summary judgment to defendants, remanding the case to allow discovery to proceed. As of October 2019, discovery is ongoing.

Related documents:

Counsel: ACLU of Arizona, ACLU of San Diego and Imperial Counties, and Covington and Burling.

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

Askins and Ramirez v. DHS et al.

Askins and Ramirez v. Department of Homeland Security et al.Nos. 12-CV-2600 W BLM (S.D. Cal., filed Oct. 24, 2012) and 16-55719 (9th Cir., filed May 17, 2016)

This case is about preserving the fundamental First Amendment right to photograph and monitor publicly visible law enforcement activity and challenging CBP’s abusive behavior towards those who seek to exercise this right at or near ports of entry.

Ray Askins is a U.S. citizen and environmental activist. While standing on a public street in Calexico (inside the United States), he took photographs of the exterior of the Calexico Port of Entry building to illustrate a presentation he planned to give on vehicle emissions at ports of entry. Christian Ramirez is a U.S. citizen and human rights activist who, while standing on the U.S. side of the border, photographed male CBP officers improperly frisking female travelers at the San Ysidro Port of Entry.

When they took their photographs, both Mr. Askins and Mr. Ramirez were on the United States side of the border, in areas open to the public. The matters they photographed were publicly visible. In both cases, CBP officers detained, harassed, and threatened them, temporarily confiscated their cameras, and deleted their photographs. CBP officers also physically abused Mr. Askins.

This case seeks to prevent CBP from interfering with or otherwise suppressing the public’s lawful recording of federal public activities.

In September 2013, the district court denied in part and granted in part the government’s motion to dismiss. The government then filed a motion for clarification of the court’s order on the motion to dismiss. In April 2014, the district court granted in part and denied in part the government’s motion. In this order, the district court reaffirmed its First Amendment analysis in its September 2013 order on the government’s motion to dismiss. The court, however, ordered the parties to submit supplemental briefs relating to Plaintiffs’ Fourth Amendment claims. The parties filed supplemental briefs in late spring 2014.

In January 2015, the district court issued another order granting the government’s motion in part. This order addressed Plaintiffs’ Fourth Amendment claims, and invited Plaintiffs to file an amended complaint.

Plaintiffs did so; once more, the government moved to dismiss, and Plaintiffs opposed.

In March 2016, the district court dismissed Plaintiffs’ first amended complaint. Plaintiffs appealed to the Ninth Circuit; they filed their opening brief on September 26, 2016. The CATO Institute and the Reporters Committee for Freedom of the Press filed amicus briefs in support of Plaintiffs-Appellants. Appellate briefing was completed in February 2017. In February 2018, the Ninth Circuit heard oral argument on Plaintiff’s appeal to S.D. Cal’s dismissal of the first amended complaint.

On August 14, 2018, the Ninth Circuit issued its opinion and reversed the district court’s ruling, ordering the case to be remanded for discovery. The government filed an answer on March 8, 2019, and the parties spent several months in active discovery. In September 2020, a final settlement was entered and the case was dismissed.

Counsel: ACLU of San Diego & Imperial Counties and Arnold & Porter Kaye Scholer LLP

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