Category Archives: First Amendment Violations

Letters Protesting CBP’s Practice of Confiscating Sikh Individuals’ Turbans During Asylum Processing

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On August 1, 2022, the ACLU of Arizona, along with the ACLU Program on Freedom of Religion and Belief, filed a letter with Customs and Border Protection (CBP) Commissioner Chris Magnus asking for an investigation and cessation of the Yuma Border Patrol Sector’s practice of confiscating religious headwear from Sikh individuals seeking asylum. The letter argued that such confiscations violate individuals’ religious freedom rights, federal law, and CBP’s own non-discrimination policy.

The ACLU of Arizona, ACLU Program on Freedom of Religion and Belief, and Sikh Coalition, along with over 160 other organizations sent a second letter to Department of Homeland Security Secretary Alejandro Mayorkas on August 22, 2022.  The letter requested DHS investigation on the broader property confiscation issue to include all religious articles of faith, personal belongings, and access to religious-compliant meals.

Counsel: ACLU of Arizona | ACLU Program on Freedom of Religion and Belief

Contact: Vanessa Pineda, vpineda@acluaz.org | Noah Schramm, nschramm@acluaz.org

Press:

Anibowei v. Morgan

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Anibowei v. Morgan, No. 20-10059 (5th Cir., appeal filed Jan. 17, 2020); Anibowei v. Wolf, Civil Action No. 3:16-CV-3495 (N.D. Tex., filed Dec. 23, 2016)

Anibowei filed a lawsuit to challenge the actions of the CBP officers—and the underlying CBP and ICE directives—as violative of the First Amendment, Fourth Amendment, and the Administrative Procedure Act (APA). He sought damages under Bivens v. Six Unknown Agents as well as injunctive and declaratory relief. Defendants moved to dismiss the complaint. On February 14, 2019, the court dismissed Anibowei’s claims under Bivens as improperly pled, with leave to replead. On March 14, 2019, Anibowei filed a second amended complaint, and shortly thereafter filed a motion for summary judgment and for a preliminary injunction. On January 14, 2020, the district court denied Anibowei’s motions for partial summary judgment and a preliminary injunction. 

George Anibowei—a U.S. citizen and licensed attorney based in Dallas, Texas—was repeatedly stopped and questioned by Customs and Border Protection (CBP) officers when returning to the United States from international travel. On several such occasions, CBP officers also searched Anibowei’s cellphone and copied the cellphone’s contents without a warrant. CBP conducted these nonconsensual searches of Anibowei’s cellphone in accordance with CBP and ICE internal directives that permit the search of electronic devices at the border without individualized suspicion.

On January 17, 2020, Anibowei appealed the district court’s decision, asking the Fifth Circuit to rule on whether searching a cellphone without exigent circumstances or a warrant violates the Fourth Amendment, even if said search is conducted at the U.S. border. On December 3, 2020, the Fifth Circuit heard oral argument in this case. On June 19, 2023, the Fifth Circuit released its decision affirming the denial of the preliminary injunction, finding that Anibowei did not show a substantial risk of irreparable harm. The court also declined to review the district court’s denial of Anibowei’s motion for summary judgment for lack of jurisdiction, and so did not rule on the question of whether the search violated the Fourth Amendment.

On August 30, 2023, Anibowei filed a petition for writ of certiorari with the Supreme Court, which was denied on January 8, 2024.

Documents

Counsel: Arnold & Porter
Contact: Andrew Tutt | Andrew.tutt@arnoldporter.com

Kariye v. Mayorkas

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Kariye v. Mayorkas, No. 2:22-CV-01916 (C.D. Cal., filed Mar. 24, 2022)

On March 24, 2022, the ACLU, ACLU Foundation of Southern California, and ACLU of Minnesota filed a lawsuit on behalf of three Muslim Americans, Abdirahman Aden Kariye, Mohamad Mouslli, and Hameem Shah, who have all been subjected to intrusive questioning from U.S. Customs and Border Protection (CBP) and Homeland Security Investigations (HSI) officials about their religious beliefs, practices, and associations in violation of their First and Fifth Amendment rights. On multiple occasions when the three Plaintiffs returned home from abroad, these border officers asked them inappropriate religious questions, including whether they are Muslim, whether they attend a mosque, which mosque they attend, whether they are Sunni or Shi’a, and how often they pray. Border officers then retain the answers in a law enforcement database for up to 75 years.

In the lawsuit, Plaintiffs argue that this questioning by both CBP and HSI violates their First Amendment freedoms of religion and association, as well as the Religious Freedom Restoration Act (RFRA). In addition, because CBP and HSI specifically single out Muslim Americans for this questioning, the lawsuit alleges violations of the First and Fifth Amendments’ protections against unequal treatment on the basis of religion. Plaintiffs are seeking a declaration that border officers’ religious questioning violates the Constitution and RFRA, as well as an injunction barring CBP and HSI from questioning about their faith at ports of entry. The suit also seeks expungement of records reflecting information that border officers obtained about Plaintiffs through their unlawful questioning.

On May 31, 2022, Defendants filed a motion to dismiss. On October 12, 2022, the court granted the motion to dismiss without prejudice. Plaintiffs filed an amended complaint on November 14, 2022. On December 27, 2022, Defendants filed a motion to dismiss the amended complaint. On February 10, 2023, Plaintiffs filed their opposition. A decision from the district court is pending. On July 19, 2023, the district court granted the motion to dismiss and dismissed the claims without prejudice, with leave for Plaintiffs to amend the complaint. On September 5, 2023, following a request from Plaintiffs, the court entered a judgment for the Defendants. On September 18, 2023, Plaintiffs filed their notice to appeal the decision to the Ninth Circuit.

Documents:

Counsel: ACLU Foundation of Southern California; ACLU Foundation; American Civil Liberties Union of Minnesota

Contact:
Mohammad Tajsar, ACLU Foundation of Southern California | mtajsar@aclusocal.org

Press:
● ACLU Sues DHS, Says Muslim American Questioned About Faith at Border
● Minnesota Imam on Intrusive Religious Questioning by CBP

Dousa v. U.S. Department of Homeland Security

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Dousa v. U.S. Department of Homeland Security, et al., No. 3:19-cv-01255 (S.D. Cal., filed Jul. 8, 2019)

Pastor Kaji Douša sued the Department of Homeland Security (DHS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE), to stop their unlawful retaliation against her for providing pastoral services to migrants and refugees—a central calling of her Christian faith. In 2018, Pastor Douša helped organize the “Sanctuary Caravan,” a mobile clinic of faith leaders to deliver pastoral services, such as prayer and church-blessed marriage ceremonies, to migrants seeking asylum in the United States. In December 2018, Pastor Douša traveled to Mexico to join the Sanctuary Caravan. But upon attempting to return to the United States, federal officials detained and interrogated her. She later learned that DHS had targeted her for heightened scrutiny and had revoked her clearance for expedited border crossing as part of Operation Secure Line, a DHS intelligence collection operation targeting activists, lawyers, and journalists working on issues related to the October 2018 migrant caravan and conditions at the U.S.-Mexico border. In March 2019, media outlet NBC 7 San Diego revealed existence of a “watchlist” that included the names, photos, and information of fifty-nine individuals purportedly tied to the migrant caravans, including Pastor Douša.

Pastor Douša brought this suit in July 2019, alleging retaliation in violation of the First Amendment, violation of the First Amendment’s free exercise clause, and violation of the Religious Freedom Restoration Act (RFRA). She seeks declaratory relief and an injunction compelling the government to stop surveilling, detaining, interrogating, or acting unlawfully against her in retaliation for how, when, and where she exercises her religion.

On January 28, 2020, the court denied Pastor Douša’s motion for a preliminary injunction and granted in part the government’s motion to dismiss. The court dismissed Plaintiff’s hybrid First Amendment rights claim, which asserted a Free Exercise claim in conjunction with a free speech and association claim, but allowed her to proceed with her First Amendment free exercise and RFRA claims. In December 2021, Pastor Douša moved to sanction DHS for misrepresentations, discovery delays, and failure to correct a false declaration. The court heard arguments on the motion for sanctions on May 12, 2022, and denied the motion that same day. A bench trial was held the week of August 29, 2022, and the parties submitted closing briefs on September 30, 2022.

On March 21, 2023, the court issued a decision finding that CBP unlawfully retaliated against Pastor Dousa for her First Amendment activity, violated her Free Exercise right to minister to migrants in Mexico, and violated the RFRA. The court based this conclusion on its finding that a CBP agent emailed Mexican authorities and claimed, without basis, that Paster Dousa likely did not have adequate documentation to enter Mexico and should be returned to the United States in retaliation for her ministry to migrants in Mexico.

On July 7, 2023, the court granted the parties’ joint motion and stipulation and awarded Plaintiff attorneys’ fees and expenses.

Further information can be found on the Protect Democracy website.

Two other lawsuits related to the unlawful targeting of journalists, attorneys, and advocates as part of Operation Secure Line are Guan v. Mayorkas and Phillips v. CBP.

Documents:

Counsel:
Arnold & Porter LLP; Protect Democracy

Contact:
Stanton Jones | stanton.jones@arnoldporter.com
Christine Kwon | christine.kwon@protectdemocracy.org

Press:
New York Pastor and Immigration Advocate Asks Court to Sanction Federal Officials
Source: Leaked Documents Show the U.S. Government Tracking Journalists and Immigration Advocates Through a Secret Database – NBC 7 San Diego (nbcsandiego.com)
 

Khalid v. Garland, et al.

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Khalid v. Garland et al., No. 1:21-cv-02307-CRC (D.D.C., filed Aug. 31, 2021)

Plaintiff Saad Bin Khalid brought this action for declaratory and injunctive relief against various federal agencies, including U.S. Customs and Border Protection (CBP), claiming that the U.S. government has wrongfully placed him on its “No Fly List” which indefinitely bars him from flying to, from, or within the United States.

Mr. Khalid is a 27-year-old U.S. citizen of Pakistani descent. He was first designated by the U.S. government as a “known or suspected terrorist” in 2012, when he was still a minor. As a result, Mr. Khalid has been subject to multiple interrogations and intrusive searches by CBP and Federal Bureau of Investigation (FBI) officers. He learned that he had been placed on the No Fly List in 2019, when he tried to return to the U.S. from Karachi, Pakistan, but was prohibited from boarding his flight. He has been unable to return to the U.S.—his home country—for nearly two years due to his placement on the No Fly List. Mr. Khalid claims that the U.S. government has failed to provide any reason or justification for placing him on the list, or a fair process for challenging that placement.

The complaint alleges violations of Mr. Khalid’s rights under the Fifth Amendment (substantive and procedural due process), the First Amendment (retaliation for refusing to acquiesce to interrogations), the Religious Freedom Restoration Act (burden on his exercise of religion), and the Administrative Procedure Act. Mr. Khalid seeks a declaratory judgment that Defendants have violated his rights, as well as an injunction which, among other things, requires Defendants to remove Mr. Khalid from any watchlist or database that burdens his ability to enter the United States.

In January 2022, Defendants moved to suspend the complaint response deadline, which Plaintiff opposed. On February 2, 2022, the court granted Defendants a 90-day stay of proceedings. On May 5, 2022, the stay was lifted, and Plaintiff filed an amended complaint on June 29, 2022. Defendants moved to dismiss for lack of jurisdiction on July 13, 2022. Plaintiff moved for a preliminary injunction on September 13, 2022, which was denied on October 7, 2022.

On March 16, 2023, the court granted in part and denied in part the motion to dismiss. The court dismissed for lack of jurisdiction Plaintiff’s challenge to the TSA Administrator’s decision to place him on the No Fly List, finding that such a claim must be brought in a circuit court of appeals under 49 U.S.C. § 46110. The court held that it had jurisdiction over Plaintiff’s challenge to his placement on the broader terrorism watch list.

On April 5, 2023, Plaintiff filed a motion asking the court to certify its order for interlocutory review. In the alternative, Plaintiff asked the court to transfer his No Fly List claims to the D.C. Circuit to avoid the 60-day deadline in 49 U.S.C. § 46110. On May 25, 2023, the court found no grounds for an interlocutory appeal and transferred the dismissed claims to the D.C. Circuit. Defendants moved to dismiss the amended complaint for lack of subject matter jurisdiction and failure to state a claim on August 10, 2023. Briefing concluded on October 20, 2023, and parties await the court’s decision.

Documents:

Counsel: Council on American-Islamic Relations

Contact: Gadeir Abbas | gabbas@cair.com | 202-742-6420

Center for Democracy & Technology v. Department of Homeland Security

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Center for Democracy & Technology v. Department of Homeland Security, et al., 1:21-cv-134 (D.D.C., filed Jan. 15, 2021)

In 2011, the Department of Homeland Security (DHS) announced a plan to implement “Publicly Available Social Media Monitoring and Situational Awareness Initiatives,” which were designed to collect, analyze, and disseminate social media content. DHS has since significantly expanded its collection and monitoring of social media information, using that information to inform who may travel to, enter, and remain in the United States, as well as decisions about naturalization.

In August and September 2019, the Center for Democracy & Technology (CDT) submitted a series of Freedom of Information Act (FOIA) requests to Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS) requesting documents and training materials related to the collection and use of First Amendment protected activity on social media. On January 15, 2021, CDT filed a complaint in the U.S. District Court for the District of Columbia seeking to compel DHS, CBP, and ICE to immediately process its FOIA requests and disclose all non-exempt documents to CDT. Defendants filed their answer on March 11, 2021, and the parties filed periodic status reports as Defendants produced documents responsive to the FOIA requests. The parties stipulated to dismiss the case on June 21, 2022.

Documents:

Counsel: Davis Wright Tremaine, LLP

Contact: David M. Gossett, Davis Wright Tremaine LLP | davidgossett@dwt.com

Adlerstein v. U.S. Customs and Border Protection

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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. The court held oral argument on Defendants’ motion to dismiss and motion for summary judgment on August 4, 2020. On October 1, 2020, the court granted in part and denied in part Defendants’ motion to dismiss, allowing Plaintiffs to proceed on their First and Fourth Amendment claims regarding Mr. Valenzuela’s detention. Plaintiffs filed an amended complaint on October 26, 2020. Defendants responded to the amended complaint on December 4, 2020. The case continued in discovery through 2021 and 2022. Discovery is scheduled to terminate in February 2023, with dispositive motions due in July 2023.

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

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

Guan v. Mayorkas

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Guan, et al., v. Mayorkas, et al., No. 1:19-cv-06570 (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. On August 14, 2020, Defendants filed a motion to dismiss, which Plaintiffs have opposed. On March 30, 2021, the District Court denied Defendants’ motion to dismiss, holding that Plaintiffs plausibly alleged infringement of their First Amendment rights. The case is now in discovery.

Counsel: ACLU; NYCLU; ACLU of San Diego & Imperial Counties; Covington & Burling LLP

Contact:  Scarlet Kim | ACLU | scarletk@aclu.org

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

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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 database sought exists. The parties have filed cross motions for summary judgment. Defendants have not yet completed their production of responsive records as of April 2022.

On December 20, 2022, the court denied in part and denied without prejudice in part Defendants’ motion for summary judgment, and granted in part and denied without prejudice in part Plaintiffs’ cross-motion. Following the court’s summary judgment order, Defendants have produced thousands of records to NBC 7.

Documents:   

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

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

Press: Tom Jones, Secure Line Secrets: Documents Released Behind Border Surveillance of Journalists, Attorneys and Humanitarian Aid Workers, NBC 7 San Diego (Mar. 24, 2023, 4:12 PM), https://www.nbcsandiego.com/news/investigations/secure-line-secrets-documents-released-behind-border-surveillance-of-journalists-attorneys-and-humanitarian-aid-workers/3194760/

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

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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. Mr. Sosa filed for partial summary judgment on September 23, 2020, which was denied on November 17, 2020. A bench trial set for January 19, 2021, has been postponed due to the pandemic, and is now scheduled for June 2021. In March 2021, the government reached a settlement agreement with Mr. Sosa which included an award for damages.

In the course of discovery, the government agreed to lift a confidentiality designation on certain information produced, including deposition excerpts from an officer confirming that CBP no longer requires agents to possess “actionable intelligence” prior to performing security checks at transportation hubs like bus stations. That requirement came into place during the Obama administration, but was lifted after Trump’s election. In addition, the confidentiality designation was lifted on an internal CBP memo from January 2020 detailing Border Patrol’s interpretation of its statutory authority to engage in “suspicionless and consensual encounters” at public bus or train stations.

Counsel: ACLU of Washington | Northwest Immigrant Rights Project

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

Press: