Moore v. U.S. Immigration & Customs Enforcement

Moore v. U.S. Immigr. & Customs Enf’t, No. EP-19-CV-00279-DCG, (W.D. Tex., filed Oct. 1, 2019)

From June 2018 to March 2019, Plaintiff Robert Moore, a journalist, submitted five Freedom of Information Act (“FOIA”) requests to U.S. Customs and Border Protection (“CBP”), U.S. Immigration and Customs Enforcement (“ICE”), and the U.S. Department of Health and Human Services (“HHS”), seeking critical records related to border enforcement, fundamental shifts in the treatment of people seeking asylum, and operation of immigration detention facilities in El Paso. Among other requests, Mr. Moore asked that CBP release any and all directives, emails, text messages and other communications from CBP officials regarding the handling of people seeking asylum at ports of entry when port facilities are at “capacity.” He also requested information related to CBP’s use of a “field force demonstration” in a community next to the border on the day of mid-term elections in November 2018. When the three agencies failed to timely produce responsive records, Mr. Moore filed a lawsuit on October 1, 2019, to compel the agencies to conduct searches and produce responsive records.

On December 18, 2019, Plaintiff filed a motion for judgment on the pleadings. The Court stayed the motion and set a production schedule.

In a series of motions, the parties have litigated the speed at which CBP must review and produce responsive records, notwithstanding the limitations imposed by the COVID-19 pandemic. On July 8, 2020, Plaintiff moved for the Court to lift the stay and to enter a finite production schedule. The Court allowed the stay to remain in place, in light of the global pandemic, but ordered a finite production schedule.  On November 19, 2020 (the day before the production deadline), at 4:56 p.m., CBP filed a motion for a new stay of proceedings pursuant to 5 U.S.C. § 552(a)(6)(C) and Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976), and to extend the deadline under the finite production schedule.

On January 12, 2021, the Court denied CBP’s request for an Open America stay. The Court ordered Defendants to respond to Plaintiff’s motion for judgment on the pleadings, ordered the parties to confer regarding a revised finite production schedule, and ordered CBP to produce weekly status reports to the Court for the duration of the case. The Court explained that the weekly reports, accompanied by a declaration, “SHALL detail CBP’s progress and developments in processing both Plaintiff’s FOIA requests and track the specific number of files/records/documents and total amount of pages reviewed that week and how many are outstanding for each individual FOIA request. Any incomplete, late, or seemingly cloned (‘copied-and-pasted’) submissions SHALL not be deemed to comply with this Order.”

Counsel: Law Office of Lynn Coyle, PLLC

Contact: Christopher Benoit | chris@coylefirm.com | (915) 532-5544

No More Deaths v. U.S. Customs and Border Protection

No More Deaths, et al. v. U.S. Customs and Border Protection, 1:21-cv-00954 (S.D.N.Y., filed Feb. 3, 2021)

Every year hundreds – possibly thousands – of migrants die while crossing into the United States from Mexico. The U.S. Border Patrol, within Customs and Border Protection (“CBP”), is responsible for most emergency aid requests for assistance in the desert, in part because local law enforcement agencies often refer 911 calls for emergency to Border Patrol when Spanish-speaking individuals call seeking help. Border Patrol’s role as an emergency services provider at the border is directly at odds with its role as an immigration enforcement agency.

Documentation by No More Deaths (“NMD”), a border aid organization, suggests that Border Patrol has often failed to carry out its search and rescue responsibilities: in 63% of all border distress calls referred to Border Patrol, the agency did not conduct any confirmed search or rescue mobilization. And when Border Patrol does initiate searches, they are significantly less effective when compared to searches for missing or lost U.S. citizens. Some Border Patrol searches last less than a day, or scarcely an hour. Documentation by local human rights organizations shows that in over 100 cases over a two-year period, Border Patrol agents actively interfered with family and humanitarian-organization led search efforts. In April 2019, NMD and the Center for Constitutional Rights (“CCR”) filed a FOIA request seeking information about CBP’s practices and policies relating to emergency services it claims to provide along the U.S.-Mexico border. In February 2021, after CBP failed to provide records for over 20 months, NMD and CCR filed a complaint seeking to compel an immediate, expedited search for and disclosure of requested records. The government filed its answer to the complaint in March 2021.

Documents:

Counsel: Center for Constitutional Rights

Contact: Angelo Guisado, Center for Constitutional Rights | aguisado@ccrjustice.org

Additional Links

Center for Democracy & Technology v. Department of Homeland Security

Center for Democracy & Technology v. Department of Homeland Security, et al., 1:2021-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.

Documents:

Counsel: Davis Wright Tremaine, LLP

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

American Civil Liberties Union v. Department of Homeland Security

American Civil Liberties Union v. Department of Homeland Security, 1:20-cv-10083 (S.D.N.Y., filed Dec. 2, 2020).

Many modern cell phone applications routinely gather users’ location information and sell it to third parties, who then use it for marketing and other purposes. In February 2020, the Wall Street Journal reported that Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and the Department of Homeland Security (DHS) were purchasing location information from private companies and using it to locate and arrest noncitizens. One company, Venntel, appears to be selling access to a large database to DHS, CBP, and ICE. This raises serious concerns that CBP and ICE are evading Fourth Amendment protections by purchasing location information instead of obtaining warrants.

In February 2020, the ACLU filed Freedom of Information Act requests with DHS, CBP, and ICE seeking: (1) records of contracts, letters of commitments, and other agreements concerning government access to or receipt of cell phone location information; (2) all communications with or about Venntel Inc.; (3) policies, guidelines, memoranda, and trainings relating to government access and use of cell phone information purchased from commercial vendors; (4) formal legal analysis concerning access to commercial databases containing cell phone location information purchased from a commercial vendor; (5) records sufficient to show the volume of cell phone location data contained in commercial databases for which DHS, CBP, and ICE have purchased access; (6) records showing how many times each year DHS, CBP, and ICE employees or contractors have accessed such databases; and (7) records concerning the use of commercially purchased cell phone information in any court application, trial, hearing, or other proceeding.

On December 2, 2020, the ACLU filed a complaint seeking to compel CBP, ICE, and DHS to conduct adequate searches for the records they requested through FOIA.

Documents:

Counsel: ACLU Foundation Speech, Privacy, and Technology Project

Contact: Nathan Freed Wessler, ACLU Foundation | (212) 549-2500 | nwessler@aclu.org

Additional links:

• Brian Tau and Michelle Hackman, Federal Agencies Use Cellphone Location Data for Immigration Enforcement, The Wall Street Journal, Feb. 7, 2020.

Santa Fe Dreamers Project v. U.S. Customs and Border Protection

Santa Fe Dreamers Project v. U.S. Customs & Border Protection, No. 1:20-cv-00490 (D.N.M., filed May 21, 2020)

In response to the Trump Administration’s implementation of a series of new policies designed to dissuade asylum seekers from coming to the United States, an increasing number of immigrants’ rights advocates began representing asylum seekers in the U.S.-Mexico border region. In late 2018 and early 2019, reports emerged that federal law enforcement was surveilling attorneys and immigrants’ rights advocates as a result of this increased human rights work. In mid-December 2018, federal officials subjected El Paso-area advocates to increased questioning and detention while traveling through ports of entry and abroad. In April 2019, the Santa Fe Dreamers Project (SFDP) submitted a Freedom of Information Act (FOIA) request to U.S. Customs and Border Protection (CBP) seeking records related to border enforcement and the potential targeting of human rights defenders by border enforcement agencies. SFDP did not receive a single responsive document, nor has CBP conducted a timely search for the records requested.

On May 21, 2020, SFDP filed this FOIA lawsuit seeking to compel CBP to conduct a reasonable search and produce records responsive to their FOIA request. On June 24, 2020, Defendants filed their answer. Per their August scheduling order, Defendants must produce all responsive documents by November 6, 2020.

A settlement conference was held on April 6, 2021.

Documents:

Counsel: Christopher Benoit, The Law Office of Lynn Coyle, PLLC

Contact: Christopher Benoit, The Law Office of Lynn Coyle, PLLC | chris@coylefirm.com

Texas Civil Rights Project v. U.S. Customs and Border Protection

Texas Civil Rights Project et al. v. U.S. Customs and Border Protection, No. 1:20-cv-02389 (D.D.C., filed Aug. 27, 2020)

In March 2020, the Trump Administration began carrying out summary expulsions pursuant to Title 42 § 265 of the U.S. Code and the CDC’s  implementing regulations. The Administration removed noncitizens without travel documents apprehended at the border – including unaccompanied minors and asylum seekers – without any legal process under the ruse of mitigating the spread of COVID-19. In late July 2020, news began breaking that the Department of Homeland Security (DHS) had been contracting with private contractors to detain immigrant children as young as one in hotels along the U.S.-Mexico border prior to carrying out such summary expulsions, regardless of whether the child had tested positive for COVID-19 or not. While detained in these hotels, children, including unaccompanied minors, were unable to contact family members, denied access to counsel, and denied any legal process before being removed to countries where many feared persecution.

In response, the Texas Civil Rights Project (TCRP) and the Institute for Constitutional Advocacy and Protection (ICAP) submitted three Freedom of Information Act (FOIA) requests to Customs and Border Protection (CBP), DHS, and Immigration and Customs Enforcement (ICE) to obtain more information about the government’s treatment of unaccompanied children who have crossed the border in recent months. Specifically, the organizations sought records encompassing (1) the standards use to determine whether unaccompanied and undocumented children are immediately expelled or allowed to apply for humanitarian relief; (2) statistics on how many children have been expelled and to where; (3) the secret locations where DHS detains children prior to Title 42 expulsion; and (4) the identity of the companies that DHS had contracted with to transport and detain children. Plaintiffs received no response to their requests.

On August 27, 2020, TCRP and ICAPfiled this suit seeking to compel CBP, ICE, and DHS to conduct a reasonable search and produce records responsive to their FOIA request. 

Documents:

Counsel: Robert D. Friedman, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center

Contact: Robert Friedman, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center | rdf34@georgetown.edu

Additional Links:

Sabra v. U.S. Customs and Border Protection

Sabra v. U.S. Customs and Border Protection, No. 1:20-cv-00681-CKK (D.D.C., filed Mar. 9, 2020)

On September 11, 2015, Fleta Christina Cousin Sabra—a U.S. citizen and accredited humanitarian worker—traveled with a family of asylum-seeking Syrian refugees and the refugees’ lawful permanent resident relative from Mexico into the United States by way of a U.S. port of entry in Southern California. When Ms. Sabra explained to a U.S. Customs and Border Protection (CBP) officer that the family wished to seek asylum, the officer handcuffed all members of the group, including Ms. Sabra. CBP officers detained Ms. Sabra for several hours, during which time they insulted her Muslim faith, pulled off her hijab, and physically assaulted her.

In July 2016, Ms. Sabra submitted a request for agency records pursuant to the Freedom of Information Act (FOIA) regarding the September 11, 2015 encounter, CBP’s subsequent related records, CBP’s investigation, communications regarding the family of Syrian refugees, and other CBP records regarding Ms. Sabra. In response, CBP produced only five pages of records.

Ms. Sabra filed this action on March 9, 2020, seeking to compel CBP to conduct a reasonable search and produce records responsive to her FOIA request. On May 29, 2020, CBP made an initial production and reported that it anticipates making monthly, rolling releases. Ms. Sabra moved for judgment on the pleadings. CBP made additional productions in June, July, and August of 2020. As of August 21, 2020, the court has held Ms. Sabra’s motion for judgment on the pleadings in abeyance pending parties’ discussions regarding additional productions. After holding Ms. Sabra’s motion for judgment on the pleadings in abeyance pending parties’ discussions regarding additional productions, the Court denied the motion on March 2, 2021. On March 10, 2021, the government moved for summary judgment. 

Counsel: Law Office of R. Andrew Free

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

Electronic Frontier Foundation v. Dep’t of Homeland Security

Electronic Frontier Foundation v. Dep’t of Homeland Security, No. 1:19-cv-02578 (D.D.C., filed Aug. 27, 2019)

In United States v. Jones, 565 U.S. 400 (2012), the Supreme Court unanimously held that warrantless GPS tracking violates the Fourth Amendment and is therefore unconstitutional. In a 2018 California criminal case, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) disclosed that it is their policy and practice to install tracking devices on vehicles at the border without a warrant. An ICE official stated in a declaration that the policy did not violate the Jones ruling, but the court disagreed.

Neither agency submitted the actual policy to the court, so the Electronic Frontier Foundation (EFF) filed Freedom of Information Act (FOIA) requests with ICE and CBP. EFF asked the agencies to produce records pertaining to “[p]olicies and/or procedures regarding the use of GPS tracking devices on vehicles crossing the border” and “[t]raining manuals and/or training materials on the use of GPA tracking devices on vehicles crossing the border.” Four months after EFF made the request, ICE notified EFF that the agency would withhold all relevant documents because of an exemption that protects “law enforcement sensitive information” that might alert people of government agents attempting to place tracking devices on their vehicles at the border. CBP did not take any action in response to the request, so in August 2019, EFF filed a federal lawsuit to enforce the FOIA and obtain the relevant records.

From December 2019 through April 2020, ICE and CBP made a small series of productions.

Briefing on cross-motions for summary judgment was completed in March 2021.

Counsel: David L. Sobel, Saira Hussain, Jennifer Lynch, Electronic Frontier Foundation

Contact: David L. Sobel | Electronic Frontier Foundation | 415-436-9333 | sobel@eff.org

American Immigration Council v. U.S. Customs and Border Protection et. al.

American Immigration Council v. U.S. Customs and Border Protection et. al., No. 1:19-cv-02965 (D.D.C filed Oct. 2, 2019)

This Freedom of Information Act (FOIA) lawsuit seeks to uncover information about the government’s troubling new practice of employing U.S. Custom and Border Protection (CBP) officers to screen asylum seekers. The suit, filed on October 2, 2019 on behalf of the American Immigration Council and Tahirih Justice Center, challenges the government’s failure to respond to multiple FOIA requests for records relating to the U.S. Department of Homeland Security’s (DHS) decision to train and utilize CBP officers to conduct asylum screenings known as credible fear interviews (CFIs).

Congress intended that CFIs serve as a safeguard from summary removal. If an asylum seeker passes this initial screening, he or she must be given the opportunity to file an asylum claim before an immigration judge. As threshold screenings, these interviews are not intended to be adversarial but rather function to provide the asylum seeker an opportunity to recount details of their feared persecution in their country of origin. Asylum seekers often describe instances of physical and sexual violence and other trauma to explain why they seek protection in the United States during a CFI. For decades, these interviews have been conducted by a corps of asylum officers employed by U.S. Citizenship and Immigration Services (USCIS), trained specifically to adjudicate asylum claims, including the handling of sensitive matters.

According to reports, DHS has begun to replace trained USCIS asylum officer with officers from CBP—a law enforcement agency with a history of abuse of and misconduct towards asylum seekers—in the credible fear screening process. Despite the significance of this change, there are no publicly available records documenting this shift in functions.

In response to this lawsuit, CBP has produced a single document. DHS has produced hundreds of pages of entirely redacted records. USCIS continues to produce approximately 500 pages per month.

Counsel: Claudia Valenzuela, Emma Winger, American Immigration Council

Contact: Claudia Valenzuela | American Immigration Council | 202-507-7540 | cvalenzuela@immcouncil.org

ACLU of New Hampshire v. CBP

ACLU of New Hampshire v. CBP, No. 1:19-cv-00977 (D.N.H., filed Sept. 17, 2019)

In early 2019, the ACLU of New Hampshire (ACLU-NH) filed a Freedom of Information Act (FOIA) request with Customs and Border Protection (CBP) after obtaining documents that described plainclothes CBP officers as far as 100 miles from the border in New Hampshire driving in unmarked cars, following people around, and “asking probing questions” without identifying themselves. This practice enabled CBP to apprehend and detain many noncitizens in New Hampshire. ACLU-NH submitted a FOIA request for information pertaining to how CBP officers identified individuals who could potentially be undocumented immigrants in New Hampshire, but CBP did not respond adequately. Therefore, in September 2019, ACLU-NH filed a lawsuit in pursuit of the information detailed in the FOIA request.

Counsel: SangYeob Kim, Gilles R. Bissonnette, Henry R. Klementowicz, ACLU of New Hampshire

Contact: SanYeob Kim | ACLU-NH | 603-333-2081 | sangyeob@aclu-nh.org