FTCA Administrative Complaint Filed with CBP over Profiling, Detention, and Questioning Aboard Greyhound Bus

U.S. Customs and Border Protection (CBP) agents unlawfully seized and detained Mr. Elshieky, an asylum recipient lawfully present in the United States, aboard a Greyhound Bus in January 2019. Mr. Elshieky filed an administrative complaint under the Federal Tort Claims Act on April 25, 2019.

Shortly after Mr. Elshieky boarded a Greyhound bus in Spokane, Washington, CBP officers entered the bus and began questioning and detaining people of color. A CBP agent approached Mr. Elshieky and asked him to produce identification and to confirm his citizenship status. When Mr. Elshieky presented his valid Oregon driver’s license and valid USCIS employment authorization card, officers ordered him off the bus. Although Mr. Elshieky explained his immigration status—that he had been granted asylum recently—the officers accused him of possessing a forged employment authorization card and refused to believe him, saying “we’ve heard all this before” and “illegals say that all the time.” The officers continued to detain him and accuse him of being unlawfully present as they confirmed his immigration status.

Mr. Elshieky seeks $250,000 in damages for false arrest and false imprisonment.

Counsel: Northwest Immigrant Rights Project and American Civil Liberties Union of Washington

Contact: Matt Adams | 206-957-8611 | Northwest Immigrant Rights Project

Lisa Nowlin | 206-624-2184 | ACLU Washington

Suda and Hernandez v. U.S. Customs and Border Protection

Suda v. U.S. Customs and Border Protection, No. 4:19-cv-00010-BMM, (D. Mont., filed Feb. 14, 2019)

On May 16, 2018, Ana Suda and Martha Hernandez were shopping at a convenience store in the small town of Havre, Montana, where both reside, when they were seized and detained by CBP Agent Paul O’Neill. While in the checkout line, Ms. Hernandez gave a friendly hello to Defendant O’Neill who was in line behind them. He responded by asking the two women where they were born. Although Ms. Suda and Ms. Hernandez told the agent they were U.S. citizens, born in Texas and California, respectively, Defendant O’Neill proceeded to detain them. Even after giving Defendant O’Neill their Montana driver’s licenses, they were detained for forty minutes. The only reason both Defendant O’Neill and his supervisor subsequently gave for their detention was that Ms. Suda and Ms. Hernandez were speaking Spanish.

On February 14, 2019, the ACLU of Montana filed an action against CBP and its agents for violations of Ms. Suda and Ms. Hernandez’s Fourth and Fifth Amendment rights. The complaint alleges that Defendant O’Neill stated he had asked for identification “because I came in [the convenience store] and saw that you guys are speaking Spanish which is very unheard of up here.” Defendant O’Neill’s supervisor confirmed that the women had been singled out for speaking Spanish and specifically admitted that CBP doesn’t detain individuals for speaking French.

The complaint alleges that other Latinos in the community similarly have been targeted by CBP agents. The suit names as defendants CBP, its Commissioner, Defendant O’Neal, and 25 “John Doe” agents. Plaintiffs seek declaratory and injunctive relief aimed at preventing CBP officers from stopping and detaining individuals solely on the basis of race, accent, and/or speaking Spanish. The Plaintiffs also seek compensatory and punitive damages pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The government, which is representing all the defendants except for Defendant O’Neill, filed a motion to dismiss on April 19, 2019. Defendant O’Neal, through private counsel, submitted a motion to dismiss the claims for injunctive and declaratory relief. June 4, 2019. Defendant O’Neill did not seek dismissal of the Bivens claim for damages. After a hearing on October 2, 2019, those motions are still pending.

Counsel: ACLU Immigrant Rights Project, ACLU of Montana; Crowley Fleck

Contact: Alex Rate | ACLU of Montana Foundation, Inc. | 406.203.3375 | ratea@aclumontana.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.

Wilwal v. Kelly

Wilwal, et al. v. Kelly, et al., No. 0:17-cv-02835 (D. Minn., filed July 13, 2017)

On July 13, 2017, the ACLU, the ACLU of Minnesota, and Robins Kaplan LLP brought suit on behalf of the Wilwal-Abdigani family, a family of 6 American citizens who were detained at a North Dakota port of entry for over ten hours when crossing back into the United States from Canada. When the family arrived at the border, CBP agents drew their weapons and handcuffed Abdisalam Wilwal, allegedly because his name appeared on a terrorism-related watchlist, which Mr. Wilwal believes was a wrongful placement. He was questioned for hours and ended up fainting while in custody due to the placement of his handcuffs. Agents allegedly questioned him for being a Muslim and demanded to know if he was involved with terrorism. When Mr. Wilwal’s teenage son called 911 and reported that he was being held against his will, CBP agents confiscated his phone and strip-searched him.

Mr. Wilwal and his family brought suit against CBP seeking declaratory and injunctive relief for violations of his constitutional rights, including the right against search and seizure and his right to due process because of his placement on a terrorism watchlist without any opportunity to challenge that placement. On October 12, 2017, the plaintiffs amended the complaint to add claims under the Federal Tort Claims Act for false imprisonment, assault, and battery. On November 8, 2017, the government moved to dismiss the case. Briefing was completed on the motion to dismiss on January 24, 2018.

On September 27, 2018 the court granted in part and denied in part the government’s motion to dismiss. Plaintiff’s claim alleging violation of substantive due process rights was dismissed with prejudice; and the government’s motion was denied in all other respects.

Press coverage:

Alasaad v. Nielsen

Alasaad et al. v. Nielsen et al., No. 1:17-cv-11730-DJC  (D. Mass., filed Sept. 13, 2017)

On September 13, 2017, the Electronic Frontier Foundation, along with the ACLU and the ACLU of Massachusetts, brought suit against Customs and Border Protection and Immigration and Customs Enforcement, 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 times. The 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 travelers’ 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 on July 2019. As of October 2019, the motions are pending.

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

Rios-Diaz, et al. v. Colonel Tom Butler, Montana Highway Patrol, et al.

Rios-Diaz v. Montana Highway Patrol, No. 13-CV-77 (D. Mont. 2014)

On October 7, 2013, the Montana Immigrant Justice Alliance (“MIJA”) and four representative plaintiffs filed a lawsuit in the U.S. District Court for the District of Montana against Colonel Tom Butler, sued in his official capacity as acting Chief Administrator of the Montana Highway Patrol, and Attorney General Tim Fox, sued in his official capacity as head of the Montana Department of Justice.

The lawsuit alleges that Montana Highway Patrol has a policy and practice of seizing Latino drivers or passengers, that a patrol officer believes may be in the country without authorization, for a prolonged period of time–often between forty minutes to two hours. The sole basis for detaining these individuals is to make contact with the Department of Homeland Security (“DHS”) to ascertain their immigration status and determine if an immigration enforcement officer wishes to assume custody of them.

On April 2, 2015, a final judgment was entered by U.S. District Court Judge Dana L. Christensen, approving an Offer of Judgment provided by Defendants and accepted by Plaintiffs. The settlement requires adherence to a new policy clarifying that Montana State’s Highway Patrol will not stop or prolong detention for purposes for verifying immigration status, even if requested to do so by CBP or ICE. In addition, the judgment also requires, among other things, training for MHP officials as to the new policy, requires MHA to collect data on all traffic stops anytime MHP contacts DHS and requires MHP to submit annual reports regarding racial profiling.

Counsel: Shahid Haque-Hausrath | Border Crossing Law Firm, P.C.

Press coverage:

Martinez-Castro, et al. v. Village of Wakeman, et al.

Martinez-Castro, et al. v. Village of Wakeman, et al., U.S. District Court, Northern District of Ohio, Western Division (N.D. Ohio; 3:12-cv-2364)

In 2012, ABLE filed a federal court complaint on behalf of two Hispanic married couples from Norwalk, Ohio.  The married couples, traveling in the same car and returning from work at a local nursery, were stopped by the Wakeman Police Department early one morning.  Without reasonable suspicion or cause, the Wakeman police officer contacted the U.S. Border Patrol.  When Border Patrol agents arrived at the scene, they proceeded to interrogate and verbally harass the occupants of the car.  The individuals were aggressively removed from the car, handcuffed and taken to the Sandusky Bay Station.  At the station, the individuals were then placed in a room where they were harassed and interrogated by ten to twelve different agents over the course of the day.

The complaint filed against the Village of Wakeman and the U.S. Border Patrol alleges claims under the Fourth Amendment, the Equal Protection Clause, Title VI of the Civil Rights Act, Bivens claims against the individual Border Patrol agents and claims pursuant to the Federal Tort Claims Act.  The complaint alleges that the U.S. Border Patrol and the Wakeman Police Department have engaged in illegal profiling of Hispanics and seeks injunctive relief to prohibit the use of race as a motivating factor in stops and detentions.

Following extensive discovery, the court declined to dismiss all but one of Plaintiffs’ claims, finding that they stated a claim for relief and also that they satisfied the pleading standard set out in Ashcroft v. Iqbal, 556 U.S. 662, 678–89 (2009). Subsequently, the parties entered into settlement discussions and reached a resolution of the case in early 2014 in which each of the plaintiffs received $7,000.00 plus an additional amount in attorneys fees.

Vasquez-Palafox v. United States

Vasquez-Palafox v. United States U.S. District Court, Northern District of Ohio, Western Division (N.D. Ohio; 3:12-cv-2380)

U.S. Court of Appeals for the Sixth Circuit (Sixth Cir. 13-3599)

In a related case to Muñiz v. United States Border Patrol, ABLE filed a subsequent federal court complaint on behalf of an individual who was questioned by two Border Patrol Agents while walking down a street in Fremont, Ohio, after picking up his son at school.  The plaintiff believes he was targeted for questioning because he is Hispanic.  He alleges in his Federal Tort Claims Act case against the United States that two Border Patrol Agents committed the Ohio torts of assault, false imprisonment, deprivation of civil rights through ethnic intimidation, and intentional and negligent infliction of emotional distress.  In 2013, the federal district court judge granted the United States’ Motion for Summary Judgment.  The dismissal was appealed and, while pending in the Sixth Circuit, the parties were able to reach a settlement in which the Plaintiff received a nominal amount.

Saucedo-Carrillo, et al. v. United States

Saucedo-Carrillo, et al. v. United States, U.S. District Court, Northern District of Ohio, Western Division (N.D. Ohio; 3:12-cv-2571)

U.S. Court of Appeals for the Sixth Circuit  (Sixth Cir. 13-4502)

In a related case to Muñiz v. United States Border Patrol, ABLE filed a Federal Tort Claims Action on behalf of a mother and daughter who allege that a Border Patrol Agent profiled them for arrest because they are Hispanic.  The Plaintiffs were purchasing gasoline at a gas station in Norwalk, Ohio, when an Agent blocked their vehicle and started questioning them.  This lawsuit against the United States alleges the Border Patrol Agent committed the Ohio torts of assault, false imprisonment, deprivation of civil rights through ethnic intimidation, and intentional and negligent infliction of emotional distress.  In 2013, the federal district court judge granted a motion for summary judgment filed by the United States.  The Sixth Circuit, in a decision on August 13, 2015, affirmed the grant of summary judgment 2 -1, with the dissenting opinion stating that a factfinder could find that the Plaintiffs were falsely imprisoned before the Border Patrol Agent developed probable cause for an arrest.

On a related note, the Plaintiffs had been placed in removal proceedings.  The Immigration Judge found that their Fourth Amendment rights were violated by the conduct of the Border Patrol Agent, but the violation was not egregious.  The removal cases were administratively closed.

Mendiola v. Department of Homeland Security

Mendiola v. Department of Homeland Security, U.S. Merit Systems Protection Board, Western Regional Office

In this individual right of action appeal before the U.S. Merit Systems Protection Board, Western Regional Office, Border Patrol Agent Froylan Mendiola challenged his removal from the Border Patrol and the agency’s efforts to require him to undergo a Fitness-for-Duty examination in retaliation for his protected activity as a whistleblower.  Mr. Mendiola, a sixteen-year Border Patrol veteran with a consistently excellent work performance record, reported incidents of racial profiling which he witnessed at the Murrieta Border Patrol Station in early 2012.  He was retaliated against as a result.

In a lengthy decision, the Board explains why Mr. Mendiola’s whistleblowing activities are protected, and details how Border Patrol took systematic steps to retaliate against Mr. Mendiola as a result.

Counsel: Anne Richardson | Hadsell Stormer | 866.457.2590