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.

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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.

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.

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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

Muniz-Muniz, et al. v. United States Border Patrol, et al.

Muniz-Muniz, et al. v. United States Border Patrol, et al., No. 09-02865 (N.D. Ohio, filed Dec. 10, 2009); No. 12-4419 (6th Cir.)

Fifteen individuals and two workers’ rights organizations brought this lawsuit to challenge Border Patrol (BP) agents and three local law enforcement agencies and their officers for their systematic racial profiling of Hispanic residents in three Ohio towns.  Plaintiffs have been stopped and questioned about their immigration status while driving, pumping gas, or walking their children home from school.  Plaintiffs allege that BP agents engaged in a pattern or practice of initiating these stops solely on the basis of their Hispanic appearance and did not have any reasonable suspicion or probable cause to suspect that they were present without authorization when they did so.  Additionally, the suit alleges that BP encouraged local law enforcement agencies to profile Hispanics and detain them for BP.

There have been considerable developments in this case since the original complaint was first filed in December 2009.  The parties have completed discovery; Plaintiffs have dismissed without prejudice their claims for monetary damages and claims against the federal agents in their individual capacity; and Plaintiffs have settled their claims against the three local law enforcement agencies for damages, attorney fees, and the adoption of non-discriminatory policing policies.  Additionally, Plaintiffs successfully appealed the lower court’s dismissal for lack of jurisdiction (sovereign immunity) to the Sixth Circuit Court of Appeals.  In its December 2013 decision, the Sixth Circuit reversed and remanded the district court’s holding, concluding that § 702 of the Administrative Procedures Act conferred jurisdiction upon the court to consider the remaining claims in the suit—all non-monetary in nature—without being limited by the requirements established by § 704 of the Act.

Back in district court, Judge Jack Zouhary denied plaintiffs’ motion to compel discovery related to the use of racial slurs by Border Patrol. The court also refused to let plaintiffs add two Federal Tort Claims Act (FTCA) cases to the suit, which had been separately filed against the United States regarding the conduct of BP agents.

On February 24, 2016, Judge Zouhary found in favor of the defendants on all claims. The court held that plaintiffs failed to prove a Fifth Amendment violation of equal protection; that anecdotal evidence proffered by plaintiffs failed to amount to a “pattern or practice” of racially profiling Hispanics; and that Border Patrol agents’ use of the word “wetbacks” merely represented “isolated instances of poor judgment.” Furthermore, Judge Zahoury held that plaintiffs failed to establish a Fourth Amendment violation of the right against unreasonable search and seizure. Despite plaintiffs’ testimony that they believed that they were unable to leave during police interrogations, the court found that, in all cases, the encounters either did not constitute seizures or were lawful interrogations or seizures based on reasonable suspicion or probable cause.

Plaintiffs filed a notice of appeal to the Sixth Circuit on April 19, 2016. The Sixth Circuit affirmed the district court’s decision on August 24, 2017.

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Counsel: Advocates for Basic Legal Equality, Inc. | Murray & Murray Co., L.P.A.

Contact: Mark Heller | ABLELAW | 419.255.0814 | mheller@ablelaw.org

Vargas Ramirez v. United States of America

Vargas Ramirez v. United States of America, No. 2:13-cv-02325 (W.D. Wash., filed Dec. 27, 2013)

Mr. Gustavo Vargas Ramirez brought this Federal Tort Claims Act lawsuit against the United States for false arrest, false imprisonment, negligent and intentional infliction of emotional distress, and abuse of process arising from his unjustified arrest at the hands of Border Patrol (BP).

On June 23, 2011, Mr. Vargas was stopped by the Anacortes, Washington police, allegedly for failing to use his turn signal. He provided a valid license, registration, and proof of insurance. Despite this, the police officer called BP to check on Mr. Vargas’s immigration status. After failing to find any immigration or criminal history on Mr. Vargas, the BP agent asked the police officer to allow him to speak to Mr. Vargas directly, but Mr. Vargas refused to answer any of the agent’s questions without talking to a lawyer. The agent then instructed the police officer to detain Mr. Vargas, despite lacking any legal basis for doing so. Based on this request, the police officer transported Mr. Vargas, in handcuffs, to the city jail, where he waited in a cold prison cell until a BP agent arrived and took him to a nearby BP station. Once at the station, Mr. Vargas continued to refuse to answer any questions without a lawyer. The agents on duty ignored his efforts to assert his rights and attempted to pressure him into signing various documents without first explaining their contents to him. Mr. Vargas was eventually transferred to the Northwest Detention Center, where he was detained for almost ten weeks. His case was subsequently administratively closed.

The BP report of what transpired on June 23, 2011 contains blatant misrepresentations that purport to provide a legal justification for BP’s decision to have Mr. Vargas arrested, showing the agents involved knew their conduct was unlawful. The report wrongly states, for instance, that the Anacortes police officer called BP for help with interpretation issues and that a BP agent arrived at the scene of the traffic stop, where he took custody of Mr. Vargas after the latter admitted that he had been born in Mexico. Such an interaction never happened.

Mr. Vargas first filed formal administrative complaints against both the Anacortes Police Department and Border Patrol in mid 2013. He settled his claims against the Anacortes Police Department without going to trial. His complaint against Border Patrol went unanswered, however, and Mr. Vargas filed a complaint in the U.S. district court for the Western District of Washington seeking damages for the violations BP inflicted upon him. Following Mr. Vargas’s defeat of the government’s motion to dismiss or for summary judgment, the parties undertook discovery, after which they filed cross motions for summary judgment. On March 23, 2015, the district court entered an order granting Mr. Vargas’s motion for summary judgment with respect to the claims of false arrest and false imprisonment, and dismissed the secondary claims. The parties reached a settlement, agreeing to damages in the amount of $10,000. As a result of the settlement the district court issued a final order dismissing the claim on March 31, 2015.

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Counsel: Northwest Immigrant Rights Project | Bean Porter Hawkins PLLC

Contact: Matt Adams | NWIRP | 206.957.8611 | matt@nwirp.org

Sanchez, et al. v. U.S. Office of Border Patrol, et al.

Sanchez, et al. v. U.S. Office of Border Patrol, et al. No. 12-00735 (W.D. Wash., filed Apr. 26, 2012)

In this class action, three U.S. citizen plaintiffs challenged U.S. Border Patrol’s practice of routinely stopping vehicles on Washington’s Olympic Peninsula and interrogating occupants about their immigration status based solely on the occupants’ racial and ethnic appearance, in violation of their constitutional rights. On behalf of themselves and others who have been subjected to similar stops, the plaintiffs asked the court to issue an injunction ordering Border Patrol to halt all such stops until its agents on the Peninsula have received training and demonstrated, through testing, that they understand the constitutional and other legal requirements necessary to stop and detain an individual.

In September 2013, the plaintiffs and Border Patrol reached a settlement in which Border Patrol acknowledged that its agents on the Olympic Peninsula must base vehicle stops away from the border on reasonable suspicion that an individual may be involved in violating the law.

All Port Angeles Border Patrol agents will be required to receive an additional training in Fourth Amendment protections, including those related to vehicle stops. The Fourth Amendment prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. In addition, for 18 months, Border Patrol will provide reports to plaintiffs’ attorneys documenting all stops in the Olympic Peninsula. Finally, Border Patrol also committed to complying with judicial decisions setting limits on stops and interrogations and to abiding by Department of Homeland Security guidance on the use of race or ethnicity in performing its duties.

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Counsel: Northwest Immigrant Rights Project | American Civil Liberties Union of Washington State | Perkins Coie LLP

Contact: Matt Adams | NWIRP | 206.957.8611 | matt@nwirp.org