Guan v. Wolf

Guan, et al., v. Wolf, et al., No. 1:19-cv-06570-PKC-JO (E.D.N.Y., filed Nov. 20, 2019)

In Guan v. Wolf, five journalists were tracked by U.S. Customs and Border Protection (CBP), and other government agencies, and then detained, and interrogated by CBP officials when attempting to re-enter the United States. In response to this unprecedented coordinated attack on the freedom of the press, Plaintiffs filed a federal lawsuit alleging violations of their First Amendment rights on November 20, 2019.

Bing Guan, Go Nakamura, Mark Abramson, Kitra Cahana, and Ariana Drehsler are all U.S. citizen professional photojournalists. Between November 2018 and January 2019, they separately traveled to Mexico to document people traveling north from Central America by caravan in an attempt to reach the U.S.-Mexico border. Border patrol agents referred each journalist to secondary inspection on their return to the United States and questioned them about their work as photojournalists, including their coverage of the caravan, their observations of conditions at the U.S.-Mexico border, and their knowledge of the identities of certain individuals. This questioning focused on what each journalist had observed in Mexico in the course of working as a journalist, and did not relate to any permissible immigration or customs purpose. A secret government database leaked to NBC San Diego in March 2019 revealed that the Department of Homeland Security (DHS) had engaged in wide-ranging intelligence collection targeting activists, lawyers, and journalists—including these five journalists—working on issues related to the October 2018 migrant caravan and conditions at the U.S.-Mexico border.

The five journalists filed this action alleging that CBP’s questioning aimed at uncovering their sources of information and their observations as journalists was unconstitutional. They seek a declaratory judgment that such conduct violated the First Amendment. The journalists further seek an injunction requiring the government to expunge any records it retained regarding the unlawful questioning and to inform the journalists whether those records have been disclosed to other agencies, governments, or individuals.

Counsel: ACLU San Diego & Imperial Counties; ACLU; NYCLU

Contact:  Mitra Ebadolahi | ACLU of San Diego & Imperial Counties| mebadolahi@aclusandiego.org

Clear, et al. v. CBP

Clear, et al., v. U.S. Customs and Border Protection, No. 1:2019-cv-07079 (E.D.N.Y., filed Dec. 18, 2019)

The American Civil Liberties Union and Cuny Law School CLEAR Project filed a lawsuit against CBP in December 2019 over its Tactical Terrorism Response Teams (TTRT), which plaintiffs argue are discriminatory against individuals from the Middle East.

The complaint alleges that CBP is deploying secret teams across at least 46 airports and other U.S. ports of entry which target, detain, and interrogate innocent travelers. Frequently TTRT officers request that travelers unlock their electronic devices and subject them to search. While TTRTs operate largely in secret, CBP has publicly admitted the teams are explicitly targeting individuals who are not on any government watchlist and whom the government has never identified as posing a security risk. Former CBP Commissioner and form acting Secretary of the Department of Homeland Security, Kevin McAleenan, has indicated TTRT officers may rely on their “instincts” or hunches to target travelers.

Additionally, the ACLU of Northern California has filed an administrative complaint on behalf of an individual who was detained and interrogated by a TTRT.

 

Public statements by CBP officials about TTRTs:

 

Press:

https://theintercept.com/2019/05/13/customs-border-protection-profiling-airport/

https://www.aclu.org/news/immigrants-rights/a-secret-cbp-team-is-targeting-and-detaining-innocent-travelers-were-suing/

https://www.northjersey.com/story/news/2019/07/16/somali-man-wins-fight-to-join-wife-kids-in-us/1722751001/

Counsel: American Civil Liberties Union

Contact: Scarlet Kim| American Civil Liberties Union Foundation | ScarletK@aclu.org

 

 

Lovell v. United States

Lovell v. United States of America, No. 1:18-cv-01867 (E.D.N.Y., filed Mar. 28, 2018)

On November 27, 2016, Tameika Lovell was returning from Jamaica and traveling through John F. Kennedy Airport when U.S. Customs and Border Protection (CBP) officers selected her for a “random search.” Officers took her to a secured area and conducted a physically invasive and traumatic search of her body, including a body cavity search, for which she later sought medical and psychological treatment.

Ms. Lovell filed a federal tort claim with CBP on May 10, 2017, but it was subsequently denied. On March 28, 2018, Ms. Lovell filed this action seeking damages under Bivens and alleging violations of her Fourth and Fifth Amendment rights. The complaint alleges that CBP’s search of Ms. Lovell was carried out in in violation of the Fourth Amendment and was conduct that “shocked the conscience” in violation of the Fifth Amendment. She further alleges that the search was not random but instead based on her race, and that CBP unlawfully singles out females and persons of color for searches. Furthermore, Ms. Lovell alleges that the United States and CBP condone employees’ intentional violations of the National Standards on Transportation, Escort, Detention, and Search—the agency’s written standards for searches. Ms. Lovell seeks compensatory and punitive damages against CBP.

Press Coverage:

Counsel: Eric Sanders, The Sanders Firm, P.C.

Amadei, et. al. v. Nielsen

Amadei, et al. v. Nielsen, et al., No. 1:17-cv-05967 (E.D.N.Y., filed Oct. 12, 2017)

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.

Defendants filed a motion to dismiss, arguing that the agency action was not final and that Plaintiffs lacked standing. The parties completed briefing on the motion on April 20, 2018. On December 13, 2018, the court denied the government’s motion and allowed the case to proceed. Following discovery, the parties agreed to settle the case.

Under the terms of the settlement, CBP will circulate a new policy directive to ports of entry nationwide clarifying that CBP does not have a policy or practice of checking the identification of deplaning domestic passengers. If CBP officers do seek to conduct document checks of deplaning domestic passengers in the future, they must make clear through their words and actions that participation is voluntary and request that airline personnel announce over the airplane’s public address system that participation in voluntary. The officers must also provide an unimpeded path for passengers to exit the airplane and explain, if asked, that passengers who decline to participate will face no law enforcement consequences as a result.

Press:

Lawsuits Filed against CBP Challenging President Trump’s Travel Ban

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. On June 26, 2018, the Supreme Court upheld the travel ban, and reversed and remanded the 9th Circuit decision in Hawaii v. Trump. Since this decision, many of the travel ban lawsuits have been stayed.

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.

 

Complaint Against CBP Abuses Following President Trump’s Travel Ban

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

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

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.

On December 30, 2014, 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 U.S. The court denied Defendants’ motion on June 12, 2015.

Thereafter, CBP offered to settle the case for $80,000. On February 4, 2016, after Plaintiff accepted the offer, the parties stipulated to the dismissal of the suit.

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 | ira@kkwtlaw.com

Vazquez-Mentado v. Buitron, et al.

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 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 | ejordan@door.org