On October 12, 2017, the ACLU, along with Covington & Burling, LLP, filed suit against Customs and Border Protection over the February 22, 2017 search by CBP of passengers of a Delta Airlines flight that arrived at JFK. After the flight landed, CBP officers stood outside the plane and required every disembarking passenger to provide identification, even though the flight was a domestic flight. The ACLU brought suit on behalf of passengers on the plane who allege that this demand for identification violated their rights under the Fourth Amendment. The plaintiffs seek declaratory relief that the February 22, 2017 search was unconstitutional, as well as injunctive relief preventing CBP from conducting similar searches of passengers disembarking from domestic flights.
On January 27, 2017, President Trump signed an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” This executive order called for an immediate halt to entry for any immigrant or nonimmigrant from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, as well as an immediate 120-day halt to all entries by refugees and an indefinite suspension with respect to Syrian refugees. Many individuals who were in the air at the time the executive order was signed were detained by CBP upon arrival in the United States, including lawful permanent residents and individuals with valid visas for entry.
Individuals detained by CBP were held for extremely long times (over 24 hours in some cases), denied access to their families, prevented from talking to attorneys, and on some occasions pressured into signing documents renouncing their right to enter the United States and forcibly deported. Large numbers of attorneys soon arrived at airports across the United States to provide assistance, and multiple individuals filed habeas corpus petitions seeking the release of people detained by CBP.
During the weekend of January 28-29, 2017, courts in California, Massachusetts, New York, Virginia, and Washington issued temporary restraining orders blocking the executive order from going into effect and ordering that CBP release individuals from detention.
Subsequently, numerous other lawsuits were filed challenging the travel ban. A complete and up-to-date list of cases, as well as case status information, can be found on the University of Michigan Civil Rights Litigation Clearinghouse website.
For more detailed information on developments immediately following the executive order, as well as three sample habeas corpus petitions for individuals detained at airports, please see Challenging President Trump’s Ban on Entry, a practice advisory published by the American Immigration Council.
On February 6, 2017, the Center for Constitutional Rights and the Kathryn O. Greenberg Immigration Justice Clinic filed a letter with the Department of Homeland Security Office of the Inspector General (OIG), detailing the systemic abuses and violations of the rights of individuals lawfully entering the United States through airports in the days following the issuance of President Trump’s January 27, 2017 executive order (“Executive Order”). This Executive order suspended entry into the United States for individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The complaint to OIG contains 26 declarations from both noncitizens—including long-term LPRs—and attorneys about abuses at the hands of CBP. As the declarations discuss, both new arrivals with valid visas and long-time U.S. residents were detained for excessive periods, denied access to attorneys even after a court ordered CBP to provide access to counsel, and pressured into giving up their valid visas. The organizations conclude by calling on CBP to end its policy of detaining immigrants without allowing them access to counsel.
On January 18, 2018, the Department of Homeland Security’s Office of Inspector General released a report following a year-long investigation into the events immediately following the implementation of the first travel ban on January 27, 2017. Although the Office of Inspector General was unable to substantiate any individual claims of misconduct against CBP officers at ports of entry within the United States, the OIG found that CBP had violated two separate court orders when it was “aggressive in preventing affected travelers from boarding aircraft bound for the United States.
Ashcroft v. Abbasi, Nos. 15-1358, 15-1359 & 15-1363
The Supreme Court has accepted certiorari to determine, among other issues, whether a Bivens damages remedy is available to noncitizens who were arrested on civil immigration charges and thereafter subjected to the most restrictive conditions of administrative segregation that exist in the federal prison system. Although they were detained in the weeks following the tragic attacks of September 11, 2001, they were not actually suspected of terrorism. Nonetheless, under orders from then-Attorney General Ashcroft and others, they were treated as if the FBI had reason to believe they had ties to terrorist activity, simply because they were (or appeared to be) Arab or Muslim, and were encountered – even coincidentally – in the course of a terrorism investigation.
In its decision below, the Second Circuit held that, with respect to their 4th Amendment claims, their detention did not present a new “context” for a Bivens action and that allowing these claims to go forward would not extend Bivens. The Solicitor General sought certiorari from this decision. While the case does not involve CBP agents or officers, it is included here because the Supreme Court’s decision could impact the extent to which Bivens remains an available remedy in cases that do involve CBP agents.
On January 18, 2017, this case was argued in front of the Supreme Court. On June 19, 2017, the Supreme Court issued its decision. The Court held that Bivens did not extend to respondents’ claims and reversed the Court of Appeals’ decision with respect to the respondents’ 4th Amendment claim.
The Court reasoned that if there is a meaningful difference between a case and a previous Bivens case “then the context is new.” After giving a non-exhaustive list of possible meaningful differences, the Court determined that the claims at issue in this case bore “little resemblance” to past Bivens claims. Since the Court concluded that the case presented a “new Bivens context,” it went on to determine whether “special factors” counseled against recognizing a Bivens remedy.
The Court found that at least three special factors counseled against extending Bivens. These special factors were (1) that respondents’ claims would lead to an inquiry into sensitive national security issues; (2) that Congressional refusal to “extend to any person the kind of remedies that respondents seek,” despite its knowledge of the conditions at the detention facility at issue, was a telling indication of its intent not to allow damages remedies; and (3) that other remedies were available to respondents’ besides damages, including injunctive relief and possibly a writ of habeas corpus. In the presence of these factors, and despite its professed sympathy for the respondents, the Court determined that it is better for Congress to undertake “the proper balance” between deterring constitutional violations and allowing government officials to make national security decisions.
Counsel: Rachel A. Meeropol | Center for Constitutional Rights
Alba Quinonez Flores v. United States of America
No. 1:14-cv-03166 (E.D.N.Y. Filed May 20, 2014)
Filed under the Federal Tort Claims Act, this suit seeks damages for the physical and psychological injury Ms. Quinonez Flores suffered at the hands of CBP while she was detained in holding cells, known as hieleras (iceboxes), in CBP’s Rio Grande Valley Sector. The complaint alleges that CBP negligently placed Ms. Quinonez Flores in detention conditions that they knew or should have known posed a substantial risk of harm, failed to oversee the agents who managed the day-to-day operations of the detention facilities, and that their acts and omissions constituted the intentional infliction of emotional distress. For more information regarding this case, see Texas, FTCA Administrative Complaints. Defendants moved to transfer venue, arguing that venue was not proper in the E.D.N.Y. because Plaintiff was not lawfully present in the United States. The District Court denied Defendants’ motion on June 12, 2015.
On February 4, 2016, after Plaintiffs accepted the settlement offer of $80,000.00, the parties stipulated to the dismissal of the FTCA action against CBP.
Counsel: Law Office of David K.S. Kim, PC; Kurzban, Kurzban, Weinger; Americans for Immigrant Justice
Contact: Ira Kurzban | Kurzban, Kurzban, Weinger | 305-444-0060 | firstname.lastname@example.org
Vazquez-Mentado v. Buitron, et al., 5:12-cv-00797 (N.D. N.Y., filed Nov. 6, 2012)
Mr. Gerardo Vazquez-Mentado, a naturalized U.S. citizen, filed this suit in federal district court in the Northern District of New York based on his unlawful arrest by Border Patrol agents. He brought a claim under the Federal Tort Claims Act for false arrest and false imprisonment and a second claim under Bivens for violation of his Fourth Amendment rights.
On September 29, 2009, Mr. Vazquez, a resident of Oswego, New York, was driving into the city of Oswego. His wife and two children were with him in the family van. He was pulled over by Border Patrol agents who demanded his ID. He then presented his New York state driver’s license. After the agents accused him of being undocumented, Mr. Vazquez responded that he was a U.S. citizen. The Border Patrol agents ignored him, and instead placed him in handcuffs and transported him, with the help of the Oswego Police Department, to the Border Patrol station. He was released only after his wife returned to the station with his U.S. passport and Certificate of Naturalization, approximately 90 minutes after he was first stopped.
Mr. Vazquez first filed a complaint in federal court on May 14, 2002. Defendants filed a motion to dismiss on September 28, 2012. Plaintiffs filed an amended complaint on November 6, 2012. Defendants then filed a renewed motion to dismiss on December 7, 2012. After briefing by the parties, the federal court issued an order on May 28, 2013, denying the defendants’ motion to dismiss the FTCA claim as well as the Bivens claim as to the two arresting agents, and granting Mr. Vazquez leave to further amend the complaint to include additional allegations needed to maintain the Bivens claim against the supervising officer.
After subsequent filings, including a second amended complaint, a motion to dismiss by the supervisor officer, and summary judgment motions by the arresting officers, the parties entered into settlement negotiations which culminated in a settlement approved by the court on November 10, 2014.
In re: Honduran minor
In this matter, a Honduran citizen in removal proceedings moved to terminate the proceedings based upon the treatment he received as a minor in both CBP and ICE custody. In 2013, when he was 17 years old, he traveled alone from Honduras to the United States. Once in the United States, he was apprehended by a Border Patrol agent. He informed the agent of his age, but the agent responded that he did not believe him. Although he was initially placed in a holding cell with children, he was soon moved to one with only adult men, none of whom were related to him. He was not provided with the notice of rights that CBP is required to serve on minors. Instead, he was coerced into signing a voluntary departure form which incorrectly listed his birth date as a year earlier, thus implying that he was 18 rather than his actual age of 17.
After signing the voluntary departure order, he was made to shower in a cell with adult males. Soon after this, he was put on a plane and transferred to ICE custody in New Jersey. In all, he spent 8 days detained with adult men before finally convincing ICE officials that he was a minor.
In his motion to terminate, the Honduran citizen alleged that CBP and ICE officials violated his rights under the INA, federal regulations, and the settlement agreement in Reno v. Flores, 507 U.S. 292, 296 (1993). He argued that termination was a proper remedy because the rights that were violated were fundamental ones; because the officials conduct shocked the conscience; and because he suffered prejudice affecting his rights and the fundamental fairness of the removal proceeding. Following the approval of the Honduran citizen’s I-360 petition for Special Immigrant Juvenile Status, the parties voluntarily terminated this action.
Counsel: The Door, Legal Service Center
Contact: Anthony Enriquez and Elizabeth Jordan | (212) 941-9090, ext. 3426 | email@example.com
Leonel Ruiz o/b/o E.R. v. U.S., No. 1:13-cv-01241 (E.D.N.Y., filed Mar. 8, 2013)
On March 11, 2011, E.R., a four-year-old U.S. citizen, was detained by Customs and Border Protection following her arrival at Dulles Airport. E.R. was returning home to New York from a vacation in Guatemala with her grandfather, when her flight was diverted from JFK to Dulles airport due to bad weather. While E.R. was admitted with her U.S. passport, her grandfather was directed to secondary inspection due to an issue with his immigration paperwork. CBP detained E.R. with her grandfather for the next 20 plus hours, gave her only a cookie and soda during the entire time, and provided her nowhere to nap other than the cold floor.
Although CBP officers had the phone number of E.R’s parents, they failed to contact them for nearly 14 hours, and repeatedly refused her grandfather’s requests to be allowed to call them. E.R.’s father was frantic with worry this entire time. When CBP eventually did contact E.R.’s father, the officer promised to send E.R. to JFK as soon as arrangements could be made to do so, but also asked for identifying information about her parents. Hours later, CBP called again, and this time claimed that CBP could not return E.R. to “illegals.” The CBP officer gave E.R.’s father an hour to decide whether she should be sent back to Guatemala or to an “adoption center” in Virginia. Fearing that he would otherwise lose custody of his daughter, E.R.’s father decided that the only viable option was for her to return to Guatemala. CBP officers put E.R. and her grandfather on the next flight to Guatemala. E.R. was finally able to return home nearly three weeks later, after her father hired a local attorney to fly to Guatemala to retrieve her.
Back in the United States, E.R. was diagnosed with post-traumatic stress disorder by a child psychologist, who concluded that the PTSD was a result of her detention, her separation from her parents, and her perception that she had been deported because her father did not pick her up from the airport. E.R.’s father seeks damages on her behalf for her unlawful treatment.
In March 2013, the girl’s father filed a lawsuit on behalf of his daughter alleging that CBP officers at Dulles Airport in Virginia unlawfully detained a U.S. citizen child for more than twenty hours, deprived her of contact with her parents, and then effectively deported her to Guatemala. On October 30, 2013, the government moved to dismiss the case on the basis that the actions of the CBP officers fell within the discretionary function exception of the FTCA, and that the court thus lacked subject matter jurisdiction. Alternatively, the government alleged that the case should be dismissed because the plaintiff had failed to state a claim upon which relief may be granted. The government also moved to transfer the case to the Eastern District of Virginia. Counsel for the girl’s father opposed the motions.
On September 18, 2014, the court found that the CBP officers’ actions did not fall within the discretionary function exception. The court also found that CBP’s treatment of the girl violated the settlement agreement in Flores v. Reno regarding the detention of minors and CBP’s internal policies promulgated to comply with the Flores agreement. However, the court granted the government’s request to change venue and transferred the case to the Eastern District of Virginia. In June 2015, the case settled for $32,500. Because the case involved a minor, the Court reviewed and approved the final settlement.
- Amended Complaint
- Defendant’s Motion to Dismiss, Motion for Judgment on the Pleadings, and Motion for Change of Venue
- Plaintiff’s Memorandum of Law in Opposition of Defendant’s Motion to Dismiss, Motion for Judgment on the Pleadings, and Motion for Change of Venue
- Defendant’s Reply Memorandum of Law in Further Support of its Motion to Dismiss, Motion for Judgment of the Pleadings, and Motion for Change of Venue
- Memorandum and Opinion Denying Motion to Dismiss and Granting Change of Venues
- Settlement Agreement and Release
- Groups File Legal Claims Against Border Patrol in Abuse Cases, Immigration Impact (Mar. 13, 2013)
- Long Island family says mistaken deportation of girl, now 6, to Guatemala caused her PTSD, N.Y. Daily News (Mar. 13, 2013)
- LI girl’s temporary deportation among 10 lawsuits, Long Island Newsday (Mar. 13, 2013)
Counsel: Cleary Gottlieb Steen & Hamilton, LLP | American Immigration Council
Contact: Melissa Crow | AIC | 202.507.7523 | firstname.lastname@example.org
FTCA Administrative Complaints Against the United States (filed Mar. 12, 2013)
On various dates in early 2013, four women were apprehended at the United States Texas border by Customs and Border Protection (CBP) agents. After being apprehended, they were taken by CBP to what the agents called a “hielera,” which is Spanish for “icebox” or “icemaker.” The hieleras are holding cells which agents often maintain at very low temperature. The women all describe cells in which dozens of detainees were crowded together. The cells had no beds, no chairs and each had only a single toilet and sink sitting in the open in the corner. The women were kept in the cells for as long as 13 days.
The cells were so cold that the women’s fingers and lips turned blue. They often were fed only one meal a day consisting of a single sandwich, which frequently was frozen. They received nothing to drink other than water, which they had to retrieve from the sink, using their hands or a single cup shared by everyone in the cell. They were not given blankets or pillows. Sleeping on the freezing cold floor was next to impossible. Pregnant women and women with children were present in the cells.
Two of the women are diabetics whose prescriptions were confiscated at the time they were apprehended and never returned. Both suffered medical problems after their medication was taken from them. One of them passed out twice and finally was taken to the local hospital’s emergency room.
None of the women were afforded access to a shower or a bath. Two of them had their menstrual cycles while detained but had no access to a bathroom for bathing. There was no soap, no change of underwear, and no toothbrushes or toothpaste.
CBP agents regularly asked each of the women to sign documents printed in English, which the women could not read and did not understand. Agents threatened that they would be kept in the holding cell until they signed these documents. These agents also referred to them in demeaning ways, including calling them “bitches.” Only one of the women was asked whether she had a fear of returning to her country of origin, as required, though several of them do. Eventually, most of the women signed the documents in order to end their suffering in the cold holding cells. Though they did not understand it at the time, they had signed expedited removal orders. Each of the women was subsequently transferred to a Texas jail and then to a detention facility in Florida while awaiting removal. All the women filed administrative complaints for damages against the United States for the suffering they endured at the hands of CBP agents. One of these women, Alba Quinonez Florez, subsequently sued the U.S. government in federal court based on the abuses described above.
The government failed to respond to the administrative complaint within the six-month deadline. None of the claimants decided to file a federal complaint.
Counsel: Americans for Immigrant Justice
Contact: Jennie Santos | AI Justice | email@example.com
- Lawsuits Allege Abuse by Border Patrol Agents (Mar. 13, 2013)
- News Release: Border Patrol Continues to Abuse Immigrant Women (May 29, 2013)
- Abuse at the Border? Immigrants and Legal Groups Allege Harsh Treatment (Jul. 31, 2013)
- The “Hieleras”: a Report on Human and Civil Rights Abuses by U.S. Customs and Border Protection (Aug. 7, 2013)
- Cold Storage: Migrants Refer to Border Cells as “Freezers”, Fronteras Desk (Nov. 18, 2013)
- LA Times Documents Abuse of Detainees in “Hieleras” (Dec. 5, 2013)
Alba Quinonez Flores v. United States of America, No. 1:14-cv-03166 (E.D.N.Y. Filed May 20, 2014)
Filed under the Federal Tort Claims Act, this suit seeks damages for the physical and psychological injury Ms. Quinonez Flores suffered at the hands of CBP while she was detained in holding cells, known as hieleras (iceboxes), in CBP’s Rio Grande Valley Sector. The complaint alleges that CBP negligently placed Ms. Quinonez Flores in detention conditions that they knew or should have known posed a substantial risk of harm, failed to oversee the agents who managed the day-to-day operations of the detention facilities, and that their acts and omissions constituted the intentional infliction of emotional distress.
Counsel: Law Office of David K.S. Kim, PC | Kurzban, Kurzban, Weinger | Americans for Immigrant Justice
Contact: Ira Kurzban | Kurzban, Kurzban, Weinger | 305-444-0060 | firstname.lastname@example.org
FTCA Administrative Complaint Regarding ‘Citizenship Checkup’ of US Citizen (filed Mar. 12, 2013)
Lucy Rogers is a naturalized American citizen of Mexican descent. She lives in Chateauguay, NY with her husband and infant son. In her work as a medical interpreter for immigrant farmworkers, a program funded by the federal government, Ms. Rogers travels to New York farms to pick up farmworkers, drive them to medical appointments, and serve as their interpreter.
On December 28, 2011, Ms. Rogers was driving toward the U.S./Canada border with two farmworkers of apparent Latino descent when a Border Patrol agent pulled her over without any reasonable suspicion. The agent told Ms. Rogers that he was conducting a “citizenship checkup” and asked her and her passengers whether they were U.S. citizens. Ms. Rogers replied that she was a U.S. citizen and provided the agent with her New York State drivers’ license. Because the two farmworkers traveling with her were unable to immediately provide proof of their immigration status, Ms. Rogers was arrested and searched, under the suspicion that she was trafficking undocumented immigrants in an attempt to escape inspection upon entry into the U.S.
After several hours of being interrogated in a nearby station, CBP employees agreed that there was no proof that Ms. Rogers was engaged in trafficking. Yet they insisted that Ms. Rogers provide them with the GPS device that she kept in her car. She understood that, if she refused to do so, she would remain indefinitely in CBP custody. Consequently, she felt compelled to give it to them. Ms. Rogers did not receive it back for more than seven months. Now, after this frightening and humiliating experience, Ms. Rogers feels afraid that living near the border means that she could be stopped at any time without any reason— simply because of her race and ethnicity.
Ms. Rodgers filed an administrative complaint under the Federal Tort Claims Act. CBP denied the complaint. The case is now closed.
- NYCLU Challenges Border Patrol’s Unlawful Arrest of U.S. Citizen (Mar. 13, 2013)
Counsel: New York Civil Liberties Union | Kathryn O. Greenberg Immigration Justice Clinic, Benjamin N. Cardozo Law School