Harvard Immigration and Refugee Clinical Program v. U.S. Customs and Border Protection

Harvard Immigration and Refugee Clinical Program v. U.S. Customs and Border Protection, No. 1:22-cv-10301 (D. Mass., filed Feb. 23, 2022)

On February 23, 2020, the Harvard Immigration and Refugee Clinical Program (the Clinic) sued Customs and Border Protection (CBP) under the Freedom of Information Act (FOIA). The Clinic filed the FOIA in response to CBP denying entry to several Harvard students of Middle Eastern descent—many from Iran. Some were given expedited removal orders or had their visas revoked, even though the Department of State performed extended security checks during the visa processing.

The FOIA request identified three categories of information the Clinic sought from CBP: (1) records regarding the expedited removal of students at a port of entry; (2) records regarding withdrawal of admission by students at a port of entry; and (3) directives, policies, and communications by CBP regarding visa holders at ports of entry. CBP failed to provide an adequate response. The Clinic requested documents starting January 1, 2012, and the only documents CBP produced were from 2020. CBP also failed to produce any policy directives.

The Clinic filed an administrative appeal, requesting the responsive records and all non-exempt portions of the records. The administrative appeals unit ordered CBP to conduct a new search, but CBP failed to timely respond, and the Clinic sued.

Since the initial filing, CBP filed its answer to the complaint, and the parties have filed periodic status reports as production in response to the FOIA request continues.

Counsel: Harvard Immigration and Refugee Clinical Program, Harvard Law School
Contact: Sabrineh Ardalan | sardalan@law.harvard.edu

Civil Rights Complaint Regarding CBP’s Mistreatment of Harvard Medical Fellow

On April 2, 2021, and April 18, 2021, Customs and Border Protection (CBP) denied Dr. Maryam, a Canadian citizen from Iran, entry into the United States. Dr. Maryam attempted to enter the United States using her Canadian passport and all necessary evidence to support her admission in J-1 status. She and her family planned to stay in the U.S. for two years during Dr. Maryam’s competitive two-year fellowship at Harvard Medical School and Beth Israel Deaconess Medical Center. The family planned to return to Canada after Dr. Maryam finished her fellowship.

During her first attempted entry, Dr. Maryam, her husband, and her two children drove with their belongings to the port of entry in Pembina, North Dakota. CBP pulled the family over for secondary inspection after seeing Dr. Maryam and her husband were born in Iran. CBP arbitrarily and discriminatorily interrogated Dr. Maryam’s husband for eight hours about his past in Iran, his thoughts and feelings about the killing of Qassem Soleimani, and his previous compulsory military service. Eventually, the family was turned back for allegedly failing to show non-immigrant intent—even after providing evidence of assets and ties to Canada. CBP issued an expedited removal order against Dr. Maryam’s husband and asked Dr. Maryam to withdraw her request for admission. CBP also took both fingerprints and DNA samples from Dr. Maryam and her husband before the family left the facility.

On April 18, 2021, Dr. Maryam attempted to enter the United States again. She planned to fly from Toronto to the United States, but CBP once again interrogated her and turned her back. This time, the CBP officer in secondary inspection denied her entry because (1) she allegedly had to wait until her husband’s case was resolved and (2) the CBP officer incorrectly told her that there that a “travel ban” against Iranian nationals prevented her from lawfully entering the country.

After her attempts to enter the U.S., Dr. Maryam filed an application for a J-1 visa with the U.S. Consulate (even though Canadian citizens are not required to apply for a visa in advance to enter the United States). The U.S. Consulate in Calgary refused to adjudicate the case, saying that it was waiting for her husband’s case to first be resolved.

In response to the inhumane treatment and rejection of Dr. Maryam and her family, Harvard Law School’s Immigration and Refugee Clinical Program filed an administrative complaint to the Department of Homeland Security Office for Civil Rights and Civil Liberties (CRCL), requesting CRCL to further investigate the April 2 and April 18 incidents. Additionally, the Program filed a writ of mandamus in the district court, requesting the Department of State adjudicate Dr. Maryam’s visa within 15 days of an order, pursuant to the Administration Procedures Act (APA) or to the court’s Mandamus authority. (Case No. 1:22-cv-1162-ZMF (D.D.C.).) On July 20, 2022, Plaintiffs voluntarily dismissed the mandamus action.

Counsel: Harvard Immigration and Refugee Clinical Program, Harvard Law School
Contact: Sabrineh Ardalan | sardalan@law.harvard.edu

State of Washington v. Greyhound Lines, Inc.

State of Washington v. Greyhound Lines, Inc., No. 20-2-01236-32 (Spokane Cnty. Sup. Ct., consent decree filed Sept. 26, 2021)

In April 2020, the Attorney General of Washington (Bob Ferguson) filed a lawsuit against Greyhound Lines challenging its practice of allowing U.S. Customs and Border Protection (CBP) agents on its buses to conduct warrantless and suspicionless immigration sweeps. Greyhound failed to warn customers of the sweeps, misrepresented its role in allowing the sweeps to occur on its buses, and subjected passengers to unlawful discrimination based on race, color, or national origin. The case was set for trial on September 27, 2021.

On September 26, 2021, the parties filed a consent decree which requires Greyhound to pay $2.2 million and to enact a number of corporate reforms to end its unlawful conduct. For example, Greyhound must establish and implement a clear policy that denies CBP agents permission to board its buses without warrants or reasonable suspicion in the state of Washington. The Attorney General has stated that the $2.2 million will be used to provide restitution to those passengers who were detained, arrested, or deported as a result of the immigration sweeps on Greyhound buses.

Documents:

Counsel: Lane Polozola, Yesica Hernandez, Brian J. Sutherland, and Emily C. Nelson (Washington State Attorney General’s Office)

Contact: Yesica Hernandez | Washington State Attorney General’s Office | civilrights@atg.wa.gov

Grays v. Mayorkas

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.

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 FOIA lawsuit against U.S. Customs and Border Protection (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.

On February 21, 2021, the parties submitted cross-motions for summary judgment on all claims. The motions have been fully briefed and oral argument was held on April 26, 2021. On March 31, 2022, the Court indicated that it would partially grant and partially deny each party’s summary judgment motion. A written order was published on November 2, 2022, in which the court directed CBP to release all non-exempt and segregable information requested by Plaintiffs.

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

CBP’s Public Statements about TTRTs:

Press:

Counsel: American Civil Liberties Union

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

Mohanad Elshieky v. USA

Mohanad Elshieky v. United States of America, No. 2:20-cv-00064 (E.D. Wash., filed Feb. 14, 2020)

U.S. Customs and Border Protection (CBP) officials unlawfully seized and detained Mr. Elshieky, an asylum recipient lawfully present in the United States, aboard a Greyhound bus in January 2019. Shortly after Mr. Elshieky boarded a Greyhound bus in Spokane, Washington, CBP officials entered the bus and began questioning and detaining people of color. A CBP official 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 officials continued to detain him and accused him of being unlawfully present as they confirmed his immigration status.

Mr. Elshieky filed an administrative complaint under the Federal Tort Claims Act (FTCA) on April 25, 2019, seeking $250,000 in damages for wrongful arrest and false imprisonment. CBP issued a final disposition denying the claim on September 11, 2019. On February 14, 2020, Mr. Elshieky filed a complaint in federal district court under the FTCA. On June 23, 2020, the court denied Defendant’s motion to dismiss Mr. Elshieky’s claim of discrimination under the Washington Law Against Discrimination.

After the court denied Defendants’ motion to dismiss as to Mr. Elshieky’s discrimination claim, Defendants filed their answer. Discovery is now beginning, and a bench trial has been postponed due to the pandemic. After a bench trial was postponed due to the pandemic, the case was referred to mediation and all deadlines were vacated. In March 2021, the government reached a settlement with Mr. Elshieky which included an award for damages. 

Counsel: Northwest Immigrant Rights Project | American Civil Liberties Union of Washington | Davis Wright Tremaine LLP

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 Plaintiffs amended their complaint to add claims of negligence and false arrest under the Federal Tort Claims Act (FTCA).

The government, which is representing all the defendants except for Defendant O’Neal, 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 on June 4, 2019. Defendant O’Neal did not seek dismissal of the Bivens claim for damages. Plaintiffs amended their complaint on January 29, 2020. The district court denied Defendant O’Neal’s motion to dismiss and denied in part and granted in part the government’s motion to dismiss on February 26, 2020. The court found that Plaintiffs had standing to seek injunctive relief and that Plaintiffs’ claims for declaratory relief are ripe. The court dismissed Plaintiffs’ damages claims against the defendants in their official capacity. Plaintiffs’ FTCA claims for damages survived.

The parties reached an undisclosed monetary settlement in November 2020.

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

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

Additional Links:

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.

On August 8, 2022, the court granted Defendants’ motion for summary judgment in its entirety on the basis that the Supreme Court’s decision in Egbert v. Boule foreclosed Ms. Lovell’s Bivens action against the named CBP officers. Alternatively, the court held that that the officers would be entitled to qualified immunity for their actions.

Press Coverage:

Counsel: The Sanders Firm, P.C.
Contact: Eric Sanders | 212-652-2782

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 six 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 their constitutional rights, including the right against search and seizure and Mr. Wilwal’s 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.

In May 2020, following successful settlement negotiations, the case was dismissed with prejudice.

Press coverage:

Counsel: ACLU Foundation; ACLU Foundation of Minnesota; Robins Kaplan LLP

Merchant v. Mayorkas (formerly Alasaad v. Nielsen)

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