ACLU of Arizona et al. v. Office of Civil Rights and Civil Liberties, DHS et al., Nos. 15-00247 (D. Ariz., filed Feb. 11, 2015) and 18-15907 (9th Cir., filed May 18, 2018)

This lawsuit under the Freedom of Information Act (FOIA) challenges the failure of the Department of Homeland Security (DHS) and several of its component agencies to produce records related to the abuse and mistreatment of children in the custody of U.S. Customs and Border Protection (CBP) and its sub-agency, the U.S. Border Patrol. The ACLU affiliates sought the requested records to shed light on longstanding allegations of abusive treatment of children by Border Patrol, including prolonged detention in degrading and inhumane conditions. They also sought information on how the subcomponent agencies within DHS that are responsible for investigating and responding to complaints of abuse by agency personnel—including both the Office of Civil Rights and Civil Liberties (CRCL) and the Office of the Inspector General—have handled complaints related to Border Patrol’s abuse of children.

When the government failed to produce any requested records within the statutorily-allotted time period, Plaintiffs filed suit seeking a court order compelling production.

After lengthy production delays by the agencies, the parties cross moved for summary judgment. Finally, in August 2017, the District Court ordered the government to conduct supplemental searches. The Court also ordered the government to release the names of  CBP officials and Border Patrol agents credibly alleged to have mistreated children in their custody.

The government moved for reconsideration of the District Court’s ruling that certain DHS officials’ names should be released. In March 2018, the District Court denied the government’s motion for reconsideration and again ordered the agency to release the names of agents accused of misconduct. The government appealed that order to the Ninth Circuit. Briefing was completed in February 2019 and oral argument was held in San Francisco on May 16, 2019. The case was subsequently sent to mediation.

In October 2020, the parties reached a settlement that required the Defendant agencies to re-review production documents and re-produce them to Plaintiffs with the previously-redacted names of certain individuals who had been named in connection with an allegation of abuse against a minor in DHS custody replaced with unique alpha-numeric identifiers. The agencies must re-review and re-produce the documents in accordance with the settlement on a rolling basis through April 2022. Under the settlement, the District Court retains jurisdiction over the settlement to resolve any claims of a material breach of the settlement. Following entry of the stipulated settlement agreement, the Ninth Circuit dismissed the pending appeal.

Using the CRCL productions from this lawsuit, the ACLU and the University of Chicago Law School International Human Rights Clinic published a report in May 2018 highlighting some of the egregious abuses reported by children and calling out the lack of meaningful response from DHS’ oversight agencies. The CRCL productions that form the report’s evidentiary basis are attached as an appendix to the report itself. The rest of the productions from this lawsuit were published in summer 2019 (see below).

• Administrative Complaint
• Complaint
• Exhibit A to the complaint (FOIA Request)
• Answer
• MSJ Order I
• Defendants’ Motion for Reconsideration
• MSJ Order II (Order Denying Defendants’ Motion for Reconsideration)
• Appellants’ Opening Brief
• Appellees’ Brief
• Appellants’ Reply Brief
• Brief of Kids in Need of Defense (KIND) as Amicus Curiae in Support of Plaintiffs-Appellees and Affirmance
• Brief of American Immigration Council and Boston University School of Law as Amici Curiae in Support of Plaintiffs-Appellees and Affirmance
• Brief of Amici Curiae Reporters Committee for Freedom of the Press and 23 Media Organizations in Support of Appellees
• Stipulated Settlement Agreement
• Settlement Agreement Addendum

Related Documents:

• ACLU & UChicago IHRC Report
• ACLU & UChicago IHRC Report Appendix
• Letter from CBP Office of Professional Responsibility in response to the ACLU/UChicago IHRC report
• FOIA Production – CBP
• FOIA Production – OIG
• FOIA Production – CRCL
• FOIA Production – ICE

Counsel: ACLU of San Diego and Imperial Counties & Cooley, LLP