A.B.-B. v. Morgan

A.B.-B., et al., v. Morgan, et al., No. 1:20-cv-00846-RJL (D.D.C., filed Mar. 27, 2020)

On March 27, 2020, five asylum-seeking mothers and their children filed this action challenging the use of U.S. Border Patrol agents to screen asylum seekers for their “credible fear” of persecution.

Many people seeking asylum at the border must first pass a “credible fear” screening interview before an immigration judge can more fully review their claims. At this interview, asylum seekers provide sensitive details about the persecution they suffered and the reasons they fled. These screenings are not supposed to be interrogations. They must be done by officers trained specifically to evaluate asylum claims and work with victims of trauma. And for decades, that is how these interviews were conducted.

Beginning in April 2019, however, the government quietly started to change who was responsible for conducting the interview. A pilot program replaced some experienced asylum officers with Border Patrol agents—a law enforcement agency with a history of abuse and misconduct toward asylum seekers.

Asylum seekers and attorneys report that Border Patrol agents conduct the interviews like criminal interrogations. Asylum seekers say they are yelled at, cut off when responding, and scolded if they cry or show other signs of trauma.

Border Patrol agents conducted credible fear interviews, and issued negative credible fear determinations, for the plaintiff families while they were detained at the South Texas Family Residential Center in Dilley, Texas. Their complaint alleges that the U.S. Customs and Border Protection (CBP) official who authorized Border Patrol agents to conduct these interviews was illegally appointed, that only U.S. Citizenship and Immigration Services (USCIS) has authority to conduct these interviews, and that, contrary to U.S. immigration laws, Border Patrol agents are not properly trained and cannot conduct non-adversarial interviews.

On April 2, 2020, the court granted Plaintiffs’ motion for a temporary restraining order and administrative stay and temporarily enjoined their removal. On May 12, 2020, the court heard oral argument on Plaintiffs’ motion seeking a preliminary injunction. The parties submitted supplemental briefing on June 1, 2020.

Counsel: Tahirih Justice Center; Constitutional Accountability Center

Contact: Julie M. Carpenter | Tahirih Justice Center | juliec@tahirih.org

Father and Son File FTCA Administrative Claims Based on Nine Months of Family Separation

On October 9, 2019, an asylum-seeking father, Mr. L.A., and his son, O.L., filed administrative claims for six million dollars in damages for the trauma they suffered when torn apart under the Trump administration’s family separation policy. The family endured nine months of forced separation in 2018 while the father was unlawfully deported to Guatemala, in spite of expressing a credible fear of persecution in that country.

While in the custody of the Office of Refugee Resettlement (ORR), at a youth facility called Lincoln Hall in New York, then-17-year-old O.L. was medicated without his parent’s consent in order to “calm” him and dissuade thoughts of escaping from the facility. O.L. was physically assaulted and insulted by a Lincoln Hall staff member; and facility staff simply transferred O.L. to a different part of the facility rather than discipline the offending staff member. Additionally, Lincoln Hall was an abusive and sexualized environment. On two separate occasions, staff completed an ORR Serious Incident Report or “Sexual Abuse SIR,” listing O.L. as a victim of sexualized staff actions. During one incident, a staff member showed O.L. and other children in the facility a pornographic video on his phone. In another incident, a staff member dropped a nude photo of herself in front of O.L.

Both Mr. L.A. and his son endured dehumanizing conditions while being held in the hielera DHS facility prior to and immediately after separation. Mr. L.A. reported freezing temperatures, very limited food, and limited access to drinking water other than from a bathroom sink. At one point, he was packed in a cell with 15 other men, with no beds and a shared toilet without privacy. As the men were not permitted to shower or brush their teeth, the smell in the cell was horrible. Officers left bright fluorescent lights on at all times, conducted rolls calls even at nighttime, and provided only Mylar emergency blankets for sleeping; as a result, Mr. L.A. reports experiencing sleep deprivation.

Mr. L.A. and his son spoke briefly on the phone only twice while they were detained and before Mr. L.A. was deported. Mr. L.A. was devastated to learn his son had been transported across the country to New York, while he remained detained in Texas. After being detained separately for more than one month, Mr. L.A. received word from officers that he would be reunited with his son. However, they were not reunited; and Mr. L.A. was instead put on a plane and deported to Guatemala.

Both Mr. L.A. and his son report prolonged and lasting effects from their forced separation. Mr. L.A. still experiences nightmares, anxiety, and depression, and also survived an attempt on his life once removed to the country from which he sought asylum. O.L. reports experiencing anxiety and depression in the wake of his detention and time spent separated from his father.

The claim letter charges the government with intentionally inflicting emotional pain on the family and punishing them for seeking asylum in the United States. The claims were filed against the Department of Homeland Security, Customs and Border Protection, Immigration and Customs Enforcement, the Department of Health and Human Services, and the Office of Refugee Resettlement. They are brought under the Federal Tort Claims Act, which allows individuals to sue the United States for injuries resulting from unlawful conduct of federal officers.

Counsel: Northwest Immigrant Rights Project and Morgan, Lewis, & Brockius, LLP

Contact: Matt Adams | Northwest Immigrant Rights Project | 206.957.8611 | matt@nwirp.org

 

 

A.I.I.L. et al. v. Sessions et al.

A.I.I.L. on behalf of herself and her minor children, J.A.H.I. and M.E.H.I., et al., No. 4:19-cv-00481-JAS (D. Ariz., filed Oct. 3, 2019)

This lawsuit seeks damages on behalf of thousands of traumatized children and parents who were forcibly torn from each other under the Trump administration’s illegal practice of separating families at the border.

Leading child welfare organizations, the American Academy of Pediatrics, and medical professionals have publicly denounced the forced separation of children from their parents, citing the long-lasting, detrimental effects on children’s emotional growth and cognitive development. Separated parents, meanwhile, face an increased risk of developing mental health disorders, with trauma linked to severe anxiety, depression, and suicidal thoughts.

Plaintiffs cited in the complaint include families from Guatemala and Honduras who were separated along the border in Arizona for up to 16 months. In addition to damages, the lawsuit seeks the creation of a fund to pay for professional mental health services for affected families.

The lawsuit, A.I.I.L. v. Sessions, cites violations of the Fourth Amendment (unreasonable seizure of children); the Fifth Amendment due process clause (fundamental right to family integrity; right to a hearing; right to adequate health care); and equal protection (prohibiting discrimination on the basis of race, ethnicity, or national origin).

Defendants include officials from the Departments of Justice, DHS and CBP, Health and Human Services/Office of Refugee Settlement, and the White House.

Counsel: Marty Lieberman, ACLU of Arizona; Lee Gelernt, Judy Rabinovitz, Anand Balakrishnan, Daniel Galindo, ACLU Immigrant Rights’ Project; Geoffry R. Chepiga, Jacqueline P. Rubin, Emily Goldberg, Hallie S. Goldblatt, Steven C. Herzog, Paul, Weiss, Rifkind, Wharton & Garrison LLP; Alexander A. Reinert, Benjamin N. Cardozo School of Law.

Contact: Marty Lieberman | ACLU of Arizona | 602-650-1854 | mlieberman@acluaz.org

Innovation Law Lab v. Nielsen

Innovation Law Lab et al. v. Nielsen, No. 3:19-cv-00807 (N.D. Cal., filed Feb. 14, 2019)

On December 20, 2018, Secretary of Homeland Security Kirstjen M. Nielsen announced a new government policy, the “Migrant Protection Protocols,” that would force noncitizens seeking admission from Mexico to return to Mexico to await their removal proceedings. The administration voiced its intention to implement the policy “on a large scale basis,” beginning first with San Ysidro Port of Entry in California on January 28, 2019.

A lawsuit challenging this forced return policy (commonly known as “Remain in Mexico”), was brought on behalf of legal organizations that serve asylum seekers and eleven asylum seekers from Central America. Defendants include DHS, CBP, USCIS and ICE. The complaint explains that the individual plaintiffs are particularly vulnerable to, and many have already suffered, serious violence and discrimination while stranded in Mexico. Furthermore, without access to legal representation, information regarding immigration court hearings, or the right to lawfully work in Mexico, these individuals have been effectively deprived of the right to apply for asylum in the United States as a result of the MPP/RIM policy.

The lawsuit explains that procedural deficiencies in the MPP/RIM policy undermine the United States’ domestic and international legal obligations to ensure nonrefoulement of individuals who have expressed a fear of return to Mexico. In addition to alleging that the procedures for determining whether individuals will face persecution or torture in Mexico are unlawful, the complaint specifies the grossly deficient—and at times abusive—practices of CBP officers in implementing the MPP/RIM policy. The complaint recounts cursory interviews during which plaintiffs routinely were not asked about fear of return to Mexico; were not provided explanations of the process to which they were subjected; were coerced into signing documents they did not understand or wish to sign; and were questioned by U.S. government officers who did not speak their language and who verbally abused or threatened them.

MPP/RIM also substantially interferes with legal organizations seeking to serve asylum seekers and other immigrant populations, straining and diverting these organizations’ resources as they scramble to assist asylum seekers stranded in Mexico. The complaint alleges that Defendants’ failure to comply with the notice and comment requirements established under the Administrative Procedures Act is also a violation of law.

On April 8, 2019, the federal district court issued a preliminary injunction blocking MPP/RIM. The government appealed, and on May 7, 2019, the Ninth Circuit granted DHS’s motion for a stay of the preliminary injunction while the appeal remained pending; this permitted MPP/RIM to go back into effect. The Ninth Circuit heard oral argument on the merits of the government’s appeal of the preliminary injunction grant on October 1, 2019.

Counsel: Judy Rabinovitz, Michael Tan, Omar Jadwat, Jennifer Chang Newell, Katrina Eiland, Julie Veroff, Lee Gelernt, Anand Balakrishnan, & Daniel Galindo, ACLU Immigrants’ Rights Project; Sean Riordan & Christine Sun, ACLU of Northern California; Melissa Crow, Mary Bauer, Saira Draper, & Gracie Willis, Southern Poverty Law Center; Blaine Bookey, Karen Musalo, Eunice Lee, Kathryn Jastram, & Sayoni Maitra, Center for Gender & Refugee Studies.

Contact: Judy Rabinovitz | ACLU Immigrants’ Rights Project | jrabinovitz@aclu.org
Jennifer Chang Newell | ACLU Immigrants’ Rights Project | jnewell@aclu.org

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

 

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:

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.

Press:

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