Category Archives: Michigan

Anas Elhady v. Unidentified CBP Agents

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Anas Elhady v. Unidentified CBP Agents, et al., No. 20-01339 (6th Cir., filed Apr 22, 2020); No. 2:17-cv-12969 (E.D. Mich,, filed Sept. 10, 2017)

In 2015, Customs and Border Protection (CBP) stopped Anas Elhady, a naturalized citizen living in Michigan who was returning to the United States from Canada. CBP detained him for six hours at the Ambassador Bridge Facility, where officers left him in a freezing cold cell without his outerwear.

Mr. Elhady sued several CBP officers in September 2017, seeking monetary damages under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). On February 10, 2020, the district court granted motions for summary judgment for all of the defendants except one, Officer Blake Bradley. Bradley appealed to the Sixth Circuit. On November 19, 2021, the court of appeals reversed the district court’s denial of summary judgment and held that this case presented a new Bivens context under Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020), because it implicated national security and raised questions reserved for the political branches. The court of appeals rejected Mr. Elhady’s argument that it lacked jurisdiction to consider the issue on interlocutory appeal and that Bradley had waived the issue by failing to raise the availability of Bivens on appeal. The appeals court maintained that they held jurisdiction over the Bivens issue on interlocutory appeal because it was necessary to evaluate the defense of qualified immunity. On January 25, 2022, the Sixth Circuit denied Mr. Elhady’s petition for rehearing en banc. Mr. Elhady filed a petition for writ of certiorari to the Supreme Court on May 25, 2022. On October 13, 2022, the Supreme Court denied the petition for writ of certiorari. 

Documents:
● Complaint
● Second Amended Complaint
● Motion to Dismiss
● Summary Judgment Order
● Defendant-Appellant’s Opening Brief
● Plaintiff-Appellee’s Opposition Brief
● Defendant-Appellant’s Supplemental Brief
● Plaintiff-Appellee’s Supplemental Brief
● Sixth Circuit Decision

Counsel:
Council on American-Islamic Relations (CAIR)

Contact:
Justin Sadowsky | jsadowsky@cair.com
Lena Masri | lmasri@cair.com
Gadeir Abbas | gabbas@cair.com

Grays v. Mayorkas

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Johnny Grays, et al. v. Mayorkas, et al., No. 3:21-cv-10526-RHC-KGA (E.D. Mich., filed Mar. 9, 2021)

Johnny Grays, Mikal Williams, and Jermaine O. Broderick, Sr., are all Black Customs and Border Protection (“CBP”) officers at the Blue Water Bridge in Port Huron, Michigan, where only four out of 275 CBP officers are Black. They claim that, for over a decade, CBP management at the Port Huron Port of Entry systematically targeted Black drivers for stops; subjected them to additional scrutiny, including criminal record checks; and treated them in an unprofessional and demeaning fashion. They also claim that as Black CBP officers they were subjected to a hostile, racist work environment in which other CBP officers repeatedly made racist comments and were demeaning.

On March 9, 2021, Grays, Williams, and Broderick, Sr. filed a lawsuit in the Eastern District of Michigan alleging widespread discrimination against Black travelers and Black CBP officers at the Port Huron, Michigan Port of Entry. Defendants moved to dismiss the complaint, and on July 29, 2021, the court granted in part and denied in part the motion, dismissing Plaintiffs’ claim for discrimination under § 1981 as preempted by Title VII, but allowing Plaintiffs to proceed on their Title VII disparate treatment claim and allowing Grays to proceed on his Title VII hostile work environment and retaliation claims. The court also expressly permitted Plaintiffs Williams and Broderick to amend their complaint by August 20, 2021 to include Title VII retaliation claims after administratively exhausting. On August 12, 2021, Defendants filed their answer to the complaint. On August 23, 2021, after Plaintiffs advised the Court that their administrative remedies would not be exhausted by August 20 (as such claims can only be filed 180 days after filing an Equal Employment Opportunity administrative complaint), the Court issued an order permitting Plaintiffs to file their retaliation claims subsequent to this deadline. As such, the Court amended the case caption to reflect that Johnny Grays is the sole remaining Plaintiff in this action. The parties engaged in discovery throughout the first half of 2022. In June 2022, Defendants filed a motion for summary judgment. Briefing was completed in August 2022 and a decision is pending from the district court.

Counsel: Deborah Gordon Law

Contact: Deborah Gordon, Deborah Gordon Law | (248) 258-2500 | dgordon@deborahgordonlaw.com

Additional Links:

• Zack Linly, 3 Black Border Patrol Officers File Lawsuit Against CBP Alleging Constant Racial Profiling and Harassment of Black Travelers, The Root, Apr. 21, 2021.

Michigan Immigrant Rights Center, et al., vs. United States Department of Homeland Security, and United States Customs and Border Patrol

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Michigan Immigrant Rights Center, et al., vs. United States Department of Homeland Security, and United States Customs and Border Patrol, No. 2:16-cv-14192 (E.D. Mich. filed November 30, 2016)

Citing concerns over potential Constitutional violations, the ACLU of Michigan, the Michigan Immigrant Rights Center, and researchers filed a federal lawsuit against DHS and CBP in 2016 for the agencies’ failure to provide information related to its “100-mile zone” policy—which CBP claims authorizes agents to engage in warrantless vehicle searches within 100 miles of any international border or waterway.

8 U.S.C. § 1357(a)(3) grants CBP authority to conduct warrantless vehicle searches and detentions within a “reasonable distance” of the border solely for the purpose of preventing illegal entry into the United States. 8 C.F.R. § 287.1(b) defines “reasonable distance” as 100 miles. The Great Lakes are considered the “functional equivalent” of an international border, and therefore the entire state of Michigan is within this “100-mile zone.”

To shed light on the 100-mile zone policy in Michigan, advocates and researchers submitted a FOIA request to DHS and CBP in 2015. Neither agency provided a legally adequate response. Instead, a few heavily-redacted documents were released. These documents underscored the need for greater public access to information about Border Patrol’s roving patrols operations and CBP’s claims that agents may search any motorist anywhere in the state without a warrant.

The requesters filed a federal lawsuit on November 30, 2016, in the United States District Court in the Eastern District of Michigan. Plaintiffs filed an amended complaint on July 28, 2017. On February 14, 2018, Defendants moved for summary judgment. On March 28, 2018, the Michigan Immigrant Rights Center filed a cross-motion for partial summary judgment and opposition to Defendants’ motion for partial summary judgment. Oral arguments were heard on the motions, and on September 7, 2018, the parties reached an agreement whereby the government would provide city-level information in apprehension reports about where apprehensions occur. Plaintiffs received these reports on a rolling three-month schedule through the end of 2018.  Plaintiffs moved for sanctions in January of 2020 based on Defendants’ failure to comply with production deadlines.

In March 2020, the parties stipulated that no disputes remained regarding Defendants’ production of documents and the case was dismissed with prejudice. On September 21, 2020, the court denied Plaintiffs’ motion for sanctions.

Contact: Miriam Aukerman | maukerman@aclumich.org