FTCA Administrative Complaint against CBP for Unlawfully Deportation of an Individual in Removal Proceedings

FTCA Administrative Complaint against CBP for Unlawfully Deportation of an Individual in Removal Proceedings

On October 12, 2018, the Northwest Immigrant Rights Project filed an FTCA Administrative Complaint on behalf of an individual who was wrongfully deported by CBP in October of 2016. Already in removal proceedings, the individual was picked up by CBP while traveling in Texas and wrongfully deported to Mexico, in spite of having paperwork on his person which showed he already had a pending case in immigration court.

In December of 2014, the subject of the complaint, who had lived in the US for over 15 years, was detained by ICE after an arrest, after which DHS moved to reinstate a prior order of removal. In 2015, he passed a reasonable fear interview when an asylum officer found a significant possibility that he would be eligible for protection under the Convention Against Torture (CAT) due to his status as a target of two cartels. Accordingly, his case was referred to an Immigration Judge for withholding of removal proceedings and he was able to bond out of detention. After a competency hearing, the individual was found to be a Franco-Gonzalez class member due to his neurocognitive history and as such, was appointed counsel for immigration court.

While awaiting his next hearing, the individual traveled to Hidalgo, Texas to visit family. Border Patrol agents detained him as he was walking back from a party, assuming he was traveling with another larger group that had been walking nearby. The agents transported him to a detention center and refused to listen when he asserted he was already in removal proceedings and wished to speak to his lawyer. He spent at least two full days and nights in a detention center, constantly insisting to officers on speaking to his attorney, to no avail. Officers demanded that he sign a form agreeing to deportation, even at one time falsely assuring him his next court hearing had been “cancelled.” The officers kept the immigration court documents the individual showed them and forcibly removed him to Mexico.

While in Mexico, the subject was forced to flee for his life and remained in hiding until his immigration attorney was able to make arrangements for his return to the U.S. with agency officers. He was finally allowed to present himself at the border in January of 2017. The claim filed affirms he suffered significant, foreseeable, and direct emotional and financial harm as a result of the unlawful activity of ICE and CBP.

Counsel: Northwest Immigrant Rights Project

Contact: Aaron Korthuis | Northwest Immigrant Rights Project | aaron@nwirp.org

 

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FTCA Administrative Complaint on behalf of US Citizen deported by CBP

FTCA Administrative Complaint on behalf of US Citizen deported by CBP

In September of 2018, Julio Cesar Ovalle filed an administrative complaint against the Department of Homeland Security under the Federal Tort and Claims Act for being unlawfully seized and wrongfully deported last June. Mr. Ovalle, 24, is a U.S. citizen who was born in Los Angeles.

Ovalle, a resident of San Antonio, was stopped by a Border Patrol agent on June 11, 2018 while walking along Portanco Road toward his neighborhood. The agent asked for his “papers,” and refused to believe Ovalle’s assertions of his citizenship. Ovalle told the officer he had a passport and other documentation at home, but the agent did not listen and instead took Ovalle’s phone and transported him to the Border Patrol station in Cotulla. Ovalle was deported the next day to Nuevo Laredo.

In Mexico, Ovalle was kidnapped by cartel members and held for ransom with a group of about 80 other immigrants, including recent deportees. Ovalle’s family called Laredo police, who referred them to the FBI. Ovalle was eventually released at one of the international bridges in Nuevo Laredo, and returned to the U.S.

Counsel: Javier Espinoza Garcia | Espinoza Law Firm, PLLC

Press coverage:

Crespo Cagnant v. United States

Crespo Cagnant v. United States, No: 1:18-cv-22267-FAM (S.D. Fla., filed June 7, 2018)

 On June 7, 2018, the American Immigration Council, Holland & Knight LLP, and the Northwest Immigrant Rights Project, and Kairys, Rudovsky, Messing, Feinberg & Lin LLP sued the United States on behalf of asylum-seeker, Jose Crespo Cagnant, under the Federal Tort Claims Act. The complaint alleges misconduct by agents of U.S. Customs and Border Protection (CBP) that involved falsifying Mr. Crespo’s paperwork and then deporting him in contravention of their statutory and regulatory duties to afford Mr. Crespo an opportunity to seek protection from persecution.

Mr. Crespo, a Mexican immigrant who has lived in the United States with his U.S.-citizen partner for more than a decade, was subjected to an expedited removal order after he entered the U.S. in 2012. Mr. Crespo feared persecution in Mexico on account of his sexual orientation; however, the border patrol agent who processed his paperwork did not speak Spanish, failed to seek an interpreter, and filled out the forms with invented information about Mr. Crespo’s reasons for coming to the United States and his family history. Based on this falsified information, CBP deported Mr. Crespo without affording him his legal right to have an asylum officer evaluate his protection claims.

Fearful for his safety upon returning to Mexico, Mr. Crespo returned to his partner—now husband—and sought to legalize his status. As a result, he was criminally charged with reentering the U.S. after deportation. A federal district court judge later dismissed the criminal case against Mr. Crespo, finding that the agent that deported him in 2012 did not testify credibly.

The case is currently pending.

Counsel: Holland & Knight LLP | American Immigration Council | Kairys, Rudovsky, Messing, Feinberg & Lin LLP | Northwest Immigrant Rights Project

Contact: Trina Realmuto | AIC | trealmuto@immcouncil.org

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R.M.H. v. Lloyd

On October 30, 2017, the ACLU Immigrants’ Rights Project, the ACLU of Texas, and Washington Square Legal Services, Inc. filed suit against the Office of Refugee Resettlement and CBP following the arrest and detention of 10-year-old Rosa Maria Hernandez, who came to the United States when she was three months old and who suffers from cerebral palsy. On October 24, 2017, Rosa Maria was on her way to a children’s’ hospital for gall bladder surgery when the vehicle she was in, driven by a U.S. citizen, was stopped at a Border Patrol checkpoint. Despite being told that she was on her way to the hospital for an imminent surgery, Border Patrol agents detained her for thirty minutes before allowing her to depart.

Agents then followed her to the hospital, went inside, and tracked her movements up to and during the time that she was in surgery. When attorneys for the hospital told the agents that they had to leave, the agents refused to do so, telling the hospital that they intended to arrest Rosa Maria and deport her when she was released from the hospital. When she was discharged the day after her surgery, the agents arrested her directly from her hospital bed and forcibly took her to an Office of Refugee Resettlement Shelter for unaccompanied minors.

On October 30, 2017, counsel for Rosa Maria filed a lawsuit alleging that the Border Patrol’s actions violated Rosa Maria’s statutory and constitutional rights, and sought a temporary restraining order seeking her immediate release. On November 3, 2017, the government released her to the care of her family. The case was voluntarily dismissed the same day. On January 8, 2018, the Border Patrol announced that it would take steps to expedite emergency medical vehicles through checkpoints.

S.V. v. United States

S.V. v. United States, 8:16-cv-00419 (D. Neb, filed Sept. 2, 2016)

In the middle of 2014, a 14-year-old U.S. citizen, whose parents were from Guatemala, was traveling back to the U.S. with her older sister when she was taken into custody by Customs and Border Protection (CBP) agents.

While she had been born in Florida, her family moved back to Guatemala shortly after her birth.  She lived there for the next 13 years.  However, as a result of increasingly horrific gang violence, her family’s poverty, and difficult circumstances in the home, she decided she needed to return to the country of her birth, the United States.

Upon arriving at the U.S. border and presenting a copy of her Florida birth certificate, she was shocked to be detained and accused of presenting a fake document.  After her arrest, CBP transferred her to what she called the “hielera” or “icebox.” She was held in federal custody for 44 days before finally being released into the custody of a family member living in Nebraska.

However, the Department of Homeland Security continued to insist for almost a year that this U.S. citizen child should be deported back to Guatemala, before the Immigration Court terminated her removal proceedings and concluded she is a U.S. citizen.

As a result of the ordeal, this child has experienced significant emotional distress.  She filed her FTCA administrative complaint on October 14, 2015 against CBP, the Department of Homeland Security, Immigration and Customs Enforcement, and the Department of Health and Human Services (DHHS). On March 4, 2016, CBP responded by issuing a final denial of her complaint. On July 6, 2016, DHHS closed the complaint without a decision in light of CBP’s denial. Following these denials, she filed an FTCA lawsuit in the District of Nebraska on September 2, 2016.

On January 26, 2017, the United States filed an answer to the complaint. In June 2017 the parties reached a settlement agreement after the meet and confer process, in which the government agreed to award monetary damages in the amount of $40,000 as satisfaction for any and all injuries to person and property this child suffered.

On June 14, 2017, the court dismissed the action.

Counsel: Justice for Our Neighbors

Contact: Charles Shane Ellison | charles@jfon-ne.org(402) 898-1349

Lopez-Venegas, et al. v. Johnson, et al.

Lopez-Venegas, et al. v. Johnson, et al. No. 13-cv-03972-JAK-PLA (C.D. Cal., filed June 4, 2013)

Filed by the ACLU and Cooley LLP on behalf of eleven Mexican nationals and three immigration advocacy organizations, this class action lawsuit challenged deceptive tactics used by Border Patrol agents and ICE officers to convince noncitizens to accept “voluntary return.” Each individual plaintiff had significant family ties in the United States and lacked any serious criminal history. Thus, they could have asserted strong claims to remain in the United States if they had been granted a hearing before an immigration judge.

The complaint alleged that Border Patrol agents and ICE officers have a pattern and practice of pressuring undocumented immigrants to sign what amount to their own summary expulsion documents. In recent years, this “voluntary return” procedure has been used to summarily expel hundreds of thousands of noncitizens from Southern California. Because of the coercive and deceptive tactics immigration officers employ, voluntary return regularly results in the involuntary waiver of core due process rights. An individual who signs for voluntary return forfeits his or her right to a hearing before an immigration judge and is usually expelled from the United States within a matter of hours.

Through the lawsuit, the individual plaintiffs sought to return to the United States and to receive a fair hearing before an immigration judge. The organizational plaintiffs, the Coalition for Humane Immigrant Rights of Los Angeles, the Pomona Economic Opportunity Center, and the San Bernardino Community Service Center, sought systemic reforms to the voluntary return process throughout Southern California.

Following more than a year of litigation, including intensive discovery and the deposition of key government officials, the government agreed to significant reforms of the voluntary return system in Southern California. Under a settlement reached by the parties, government officials must:

  • Provide detailed information – in writing, orally, and through a 1-800 hotline – regarding the consequences of accepting voluntary return to noncitizens asked to choose between voluntary return and a hearing before an immigration judge;
  • Cease “pre-checking” the box selecting voluntary return on the forms the immigration agencies provide to noncitizens;
  • Permit noncitizens to use a working phone, provide them with a list of legal service providers, and give them two hours to reach someone before deciding whether to accept voluntary return;
  • Provide lawyers meaningful access to clients detained by Border Patrol or ICE;
  • Cease pressuring or coercing individuals to accept voluntary return;
  • Allow some of the hundreds of thousands of Mexican nationals who have been subject to unlawful voluntary returns to reunite with their families in the United States; and
  • Allow ACLU attorneys to monitor compliance with the settlement agreement for three years.

Additional information on the class settlement is available here.

90 class members were identified under the settlement, and 82 of those individuals successfully returned to the United States. Others decided not to return, or could not be located. Monitoring of compliance of the settlement is ongoing. The ACLU of San Diego and their partners conducted visits to Border Patrol stations covered by the settlement in March 2017 to monitor compliance.

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Counsel: ACLU Foundation of San Diego & Imperial Counties, ACLU Foundation of Southern California, ACLU Immigrants’ Rights Project, Cooley LLP

Contacts:

Lead Attorney for Class Claims: Gabriela Rivera | ACLU Foundation of San Diego & Imperial Counties | Email: avd@aclusandiego.org and grivera@aclusandiego.org

Lead Attorney for Monitoring Systemic Reforms: Mitra Ebadolahi | ACLU Foundation of San Diego & Imperial Counties | Email: avd-monitor@aclusandiego.org and mebadolahi@aclusandiego.org

Leonel Ruiz o/b/o E.R. v. U.S.

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.

Press:

Counsel: Cleary Gottlieb Steen & Hamilton, LLP | American Immigration Council

Contact: Melissa Crow | AIC | 202.507.7523 | mcrow@immcouncil.org

FTCA Administrative Complaints Against the United States

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 | jsantos@aijustice.org

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Jaimes v. Harris, et al.

Jaimes v. Harris, et al., No. 3:13-CV-01040-P (N.D. Tex., filed Mar. 12, 2013)

On the morning of January 31, 2012, Francisco Jaimes Villegas was driving with two of his Hispanic coworkers on Highway 84 outside Santa Anna, Texas, when he was pulled over by two Border Patrol (BP) agents using their emergency lights. Mr. Jaimes was driving an unaltered, uncovered pick up truck, with a tool box and a generator in the truck bed, and was obeying all relevant traffic laws when he was stopped. When the two BP agents approached, one on each side of the truck, one agent immediately handcuffed Mr. Jaimes to the person sitting in the rear, and the other agent handcuffed the person sitting in the passenger seat to himself, before asking them any questions. The agents then interrogated the handcuffed men as to whether they had any “papers,” after which they pulled the three men out of the truck and put them in the back seat of their own car. Mr. Jaimes and his co-workers remained in the car while the BP agents similarly stopped another truck and arrested two more men, who were then squeezed into the back seat of the BP vehicle as well. The agents continued looking for people on the same road, arresting one other man who was put in a second vehicle, until they finally brought the men to the Border Patrol station in San Angelo.

At the station, Mr. Jaimes was questioned by one of the arresting agents. Mr. Jaimes informed the agent that he did not want to sign a form agreeing to be sent out of the country. He then was questioned a second time by a different agent, who told him that he had to sign, and tried to convince him that it would be better for him to do so, telling him he was going to be deported anyway. Mr. Jaimes refused to sign, which appeared to upset the agent. CBP proceeded to hold Mr. Jaimes in a cell for three hours and then transported him to another holding facility where he spent the night in a room with 10 other people.

The case was stayed by the district court in 2014 pending a decision by the Fifth Circuit in De La Paz v. Coy, which also raised the issue of the availability of a Bivens remedy to address 4th Amendment violations arising from a Border Patrol roving patrol.

Following the Fifth Circuit’s decision in De la Paz, the district court, on September 30, 2015, granted the defendants’ motion for summary judgment with respect to the Bivens action but denied summary judgment with respect to plaintiff’s FTCA claims.

In December 2015, the parties filed a joint motion for a stay pending decision on a forthcoming petition for certiorari to the U.S. Supreme Court in De la Paz v. Coy et al., which was filed in January 2016 (No. 15-888). As of April 2017, the matter remains stayed.

Counsel: De Mott, McChesney, Curtright & Armendáriz, LLP

Contact: David Armendáriz | 210.534.1844 | davida@dmcausa.com