Category Archives: Massachusetts

Guerra-Castaneda v. United States of America

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Guerra-Castaneda v. United States of America, No. 1:22-cv-10711 (filed D. Mass. May 10, 2022) 

On May 10, 2022, the ACLU of New Hampshire along with Preti Flaherty LLP, filed this lawsuit on behalf of Plaintiff. Plaintiff sought damages based on an unlawful deportation by the Department of Homeland Security and Immigration and Customs Enforcement in September 2019. Plaintiff was deported despite two federal court orders to keep him in the United States while his case for asylum was pending.

After Plaintiff was deported, he was detained in a prison in El Salvador for 297 days where he was tortured, experienced inhumane conditions, and endured physical and emotional trauma. Defendants filed a motion to dismiss Plaintiff’s claims. On February 16, 2023, the district court denied Defendants’ motion and the case will proceed.

Documents:

Counsel: ACLU of New Hampshire, Preti Flaherty Beliveau & Pachios PLLP

Contact: SangYeob Kim, ACLU of New Hampshire, SangYeob@aclu-nh.org.

K.O. and E.O. Jr., v. United States

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K.O. and E.O. Jr., v. United States, No. 4:20-cv-12015 (D. Mass., filed Nov. 9, 2020)

Plaintiffs nine-year-old K.O. and her older brother, seventeen-year-old E.O. Jr., were forcibly separated by CBP agents from their mother upon entry to the United States, during the Trump administration’s “Zero Tolerance Policy.” Plaintiffs brought a class action lawsuit against the Department of Homeland Security, including Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), and the Department of Health and Human Services (HHS), among other federal agencies. The Plaintiffs allege claims under the Federal Tort Claims Act, asserting common law claims for intentional infliction of emotional distress, negligent infliction of emotional distress, false imprisonment, false arrest, assault and battery, negligent supervision, tortious interference with parent-child relationship, and loss of consortium.

On May 19, 2018, plaintiffs K.O. and E.O., along with their mother, entered the U.S. at the southern border to seek asylum from violence and persecution in Guatemala. They were apprehended by a Customs and Border Protection (CBP) agent and forcibly separated from their mother. The mother was never charged with a crime. CBP agents also called the father and told him his children were in custody, separate from their mother, and would be placed in the custody of the Office of Refugee Resettlement (ORR).

As the father began the ORR reunification process, the children were reunited and placed back into an ICE facility where they were detained in separate cells that faced each other. They spent two days there and were not allowed to speak with each other. They only had access to thermal blankets. Plaintiffs allege that there was no supervision, no support for children as young as two or three years of age, and the guards physically and verbally abused the children. After two days, ICE agents told the children their mother had been deported. The children were then transferred to ORR facilities in Michigan and were once again separated from each other. One child was placed in an ORR foster care home and the other was placed in an ORR group home. The children were eventually reunited with their father on June 19, 2018. Meanwhile, the mother remained detained in Texas and was unable to contact her husband. After she passed her credible fear interview, she was released on June 28, 2018. The children were separated from their father for 31 days, and their mother for 38 days.

Similarly, Plaintiff C.J., was eleven years old when CBP separated him from his father after travelling to the United States to seek asylum from persecution in Guatemala. They were separated for a total of 36 days. In addition to the trauma from the forcible separation, C.J. was assaulted by another child while he was detained in an ORR facility. 

Plaintiffs seek damages and to establish a fund for the mental health treatment of all class members that were forcibly separated from their parents.  

Plaintiffs filed their complaint on November 9, 2020. On February 28, 2022, Defendants filed a motion to transfer the case to Western District of Texas or in the alternative dismiss for lack of subject matter jurisdiction. The district court held that change of venue was not warranted and denied the motion to transfer. The court also granted the motion to dismiss in part and denied it in part. All claims brought by the parents in their personal capacities were dismissed. Any claims of negligent supervision or negligence in causing the family separation were dismissed. All other claims remain.

Plaintiffs filed an amended complaint on April 11, 2022. On May 10, 2022, Defendants filed a motion to transfer or alternatively a motion to dismiss the amended complaint. On January 9, 2023, the court reiterated its decision denying the transfer and granting and denying in part the motion to dismiss.

Documents:

Counsel: Todd & Weld LLP, Demissie & Church, The Law Offices of Jeff Goldman, Nixon Peabody LLP, Lawyers for Civil Rights

Contact:  Iván Espinoza-Madrigal, Lawyers for Civil Rights, iespinoza@lawyersforcivilrights.org

Doe et al. v. Mayorkas et al.

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Doe et al. v. Mayorkas et al., No. 1:21-cv-11571-IT (D. Mass., filed Sept. 24, 2021)

Plaintiffs Jane Doe and her two 10-year-old sons are citizens of Haiti who entered the United States in September 2021 to seek asylum. They were among the thousands of Haitians forced to remain for days under the Del Rio International Bridge. Later, Plaintiffs were transported to San Antonio, Texas to be processed for expulsion pursuant to Title 42. As of September 24, 2021, they remained in CBP custody, and their expulsion under Title 42 was believed to be imminent.

Plaintiffs’ complaint asserts that the U.S. government’s Title 42 expulsion policy violates the Immigration and Nationality Act (INA), Title 42, the Administrative Procedure Act, the U.S. Constitution (equal protection and due process), and the United States’ nonrefoulement duty under international law. Plaintiffs request, among other things, that the court enjoin their expulsion under Title 42 and order Defendants to process their asylum claims in accordance with the INA.

As of November 2021, the government released the clients into removal proceedings and paroled them. Plaintiffs then voluntarily dismissed this case.

Documents:

Petition for Writ of Mandamus and Complaint

Counsel: Amy Maldonado | Law Office of Amy Maldonado

Bridget Cambria | Cambria & Kline, P.C.

Susan B. Church | Demissie & Church

Contact: Amy Maldonado | 517-803-2870 | amy@amaldonadolaw.com

National Immigration Litigation Alliance et al. v. U.S. Customs and Border Protection

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National Immigration Litigation Alliance et al. v. U.S. Customs and Border Protection, No. 1:2021-cv-11094 (D. Mass., filed July 1, 2021)

Since 2019, Customs and Border Protection (CBP) has engaged in the practice of expelling from the United States migrants who recently gave birth, along with their U.S. citizen infants, often without birth certificates. CBP has even expelled individuals from the United States who were in active labor. The National Immigration Litigation Alliance, Al Otro Lado, and the Haitian Bridge Alliance (Plaintiffs) submitted a Freedom of Information Act (FOIA) request on March 18, 2021 to CBP seeking records relating to policies, guidance, or statistics regarding the treatment of pregnant people in CBP custody, people in CBP custody who have given birth within the United States within the last six months, U.S. citizen children in CBP custody who are under the age of six months, and non-U.S. citizen children of parents in CBP custody while their parent is giving birth at a U.S. hospital or other medical facility. Plaintiffs sought these records to better understand the scope and extent of CBP’s practice of expelling migrant parents and their infant children without considering the merits of their asylum applications.

When CBP failed to produce any responsive records or provide any other substantive response to the request, Plaintiffs filed suit on July 1, 2021. CBP filed their answer on August 13, 2021. CBP produced documents in August, October, and November 2021. The case was dismissed on May 4, 2022.

Documents:

Counsel: Proskauer Rose LLP; National Immigration Litigation Alliance; Al Otro Lado; Haitian Bridge Alliance

Contact: Trina Realmuto, National Immigration Litigation Alliance | trina@immigrationlitigation.org

Additional Links:

Ortega, et al. v. U.S. Customs and Border Protection

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Ortega, et al. v. U.S. Customs and Border Protection, No. 1:21-cv-11250-FDS (D. Mass, filed Aug. 2, 2021)

On August 2, 2021, the Boston College Civil Rights Clinic and Lawyers for Civil Rights filed a lawsuit against U.S. Customs and Border Protection (CBP) on behalf of Neisa Ortega and her 14-year-old daughter. On multiple occasions over the course of a year, Ms. Ortega and her daughter were separated for hours without explanation and Ms. Ortega subjected to repeated invasive body searches and sexual violations at the hands of CBP officers while travelling through Logan Airport in Boston.

The complaint alleges that CBP subjected Ms. Ortega to illegal and unconstitutional treatment upon her returns from family visits to the Dominican Republic. Beginning in April 2019, CBP officers assaulted, degraded, and humiliated Ms. Ortega on three separate occasions through invasive body cavity searches that contravened CBP’s internal guidelines prohibiting officers from conducting vaginal cavity searches. During these body cavity searches, CBP officers separated Ms. Ortega from her daughter for hours, during which time neither was given information as to the other’s whereabouts. Ms. Ortega and her daughter have been traumatized by their separation from each other, and Ms. Ortega still lives with the trauma of being physically abused and sexually violated. 

On November 5, 2020, Ms. Ortega filed a complaint with the Department of Homeland Security’s Office for Civil Rights and Civil Liberties (CRCL); CRCL summarily closed the complaint on March 30, 2021. On January 19, 2021, Ms. Ortega filed an administrative claim with CBP on behalf of herself and her daughter under the Federal Tort Claims Act (FTCA); CBP likewise denied the claim in full on June 17, 2021. Having exhausted administrative remedies under the FTCA, Ms. Ortega filed this lawsuit claiming Fourth and Fifth Amendment violations and seeking injunctive and declaratory relief, as well as compensatory relief pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) and the FTCA.

On October 15, 2021, Defendants filed a motion to dismiss for lack of jurisdiction and failure to state a claim, along with their answer to the complaint, claiming the United States has not waived sovereign immunity to the claims set for by Plaintiffs. On July 14, 2022, the court granted Defendant’s motion to dismiss in part. On July 15, 2022, Plaintiffs filed an amended complaint, which the institutional Defendants answered on August 3, 2022. On September 19, 2022, the individual defendants moved to dismiss the amended complaint for failure to state a claim.  On January 13, 2023, the court heard arguments on the motion to dismiss, and a decision is pending.

Documents:

Counsel: Boston College Civil Rights Clinic; Lawyers for Civil Rights

Contact: Arielle Sharma, Lawyers for Civil Rights | asharma@lawyersforcivilrights.org; Reena Parikh, Boston College Civil Rights Clinic | reena.parikh@bc.edu

Merchant v. Mayorkas (formerly Alasaad v. Nielsen)

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Merchant v. Mayorkas (formerly Alasaad et al. v. Nielsen et al., No. 1:17-cv-11730-DJC  (D. Mass., filed Sept. 13, 2017), Nos. 20-1077, 20-1081 (1st Cir., filed Jan. 28, 2020), No. 20-1505 (Sup. Ct., filed Apr. 23, 2021)

On September 13, 2017, the Electronic Frontier Foundation, along with the ACLU and the ACLU of Massachusetts, brought suit against Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), 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 time. 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 traveler’s 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 in July 2019. In November 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. The district court then entered a judgment stating that border authorities may only search a traveler’s electronic device if they have reasonable suspicion that the device contains digital contraband. Defendants appealed the order, and Plaintiffs cross-appealed in January of 2020. Briefing on the cross-appeals was ongoing through July, and in August 2020, Harvard Immigration and Refugee Clinic, the Brennan Center for Justice, Constitutional Accountability Center, The National Association of Criminal Defense Lawyers, the Knight First Amendment Institute, and a number of other civil rights, immigration, privacy, and free speech organizations filed briefs as amicus curiae.

On February 9, 2021, the First Circuit issued its decision, holding that neither a warrant nor reasonable suspicion are required for CBP agents to conduct a basic search of electronic devices, and that neither a warrant nor probable cause is required to conduct an advanced search. It also held that CBP agents can retain an electronic device after a traveler crosses the border.

On April 23, 2021, Plaintiffs filed a petition for a writ of certiorari to the Supreme Court, asking the Court to clarify what level of suspicion (i.e., probable cause, reasonable suspicion, or none) is required to search a traveler’s electronic devices, and the scope of that search. The petition further asks the Supreme Court to impose a minimum requirement of reasonable suspicion for any such search conducted at the border. The Constitutional Accountability Center, the Center for Democracy & Technology, the Brennan Center for Justice, and TechFreedom submitted amicus briefs in support of the Plaintiff-Petitioners. On June 28, 2021, the Supreme Court denied the petition for certiorari.

Documents:

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