I.A. et al. v. Barr et al.

I.A. et al. v. Barr et al., No. 1:19-cv-02530-TJK (D.D.C. filed Aug. 21, 2019)

On July 15, 2019, President Trump announced an interim final rule providing that noncitizens who pass through another country prior to reaching the southern border of the United States are ineligible for asylum here. The new rule has very few exceptions, and thus bars virtually every noncitizen fleeing persecution from obtaining asylum in the United States if they passed through another country on the way here, no matter the conditions or purpose of their journey through that country or their prospect of protection, rights, or status in that country. Accordingly, anyone fleeing persecution from the ongoing humanitarian crisis in several Central American countries who reasonably does not apply for protection while en route will be categorically denied the opportunity to seek asylum in the United States and likely forced to return to countries that are rife with danger in violence. In short, the rule virtually repeals the U.S. asylum system at the southern border.

On August 21, 2019, the ACLU Immigrants’ Rights Project, ACLU of D.C., and the National Immigrant Justice Center sued to enjoin this policy on behalf of several individual plaintiffs and the Tahirih Justice Center as an organizational plaintiff. The same day, these organizations filed a motion for a preliminary injunction of the policy. As of October 2019, that motion is still pending.

See also: East Bay Sanctuary Covenant v. Barr et al., Nos. 3:19-cv-04073 (N.D. Cal filed July 16, 2019); 19-16487 (9th Cir.); No. 19A230 (Supreme Court).

Counsel: Katrina Eiland, Cody Wofsy, Julie Veroff, Celso Perez, Lee Gelernt, Omar Jadwat, and Anand Balakrishnan, ACLU Immigrants’ Rights Project; Arthur Spitzer and Scott Michelman, ACLU of D.C.; Charles Roth, Keren H. Kwick, and Gianna Borroto, National Immigrant Justice Center

Contact: Katrina Eiland | ACLU Immigrants’ Rights Project | 415-343-0774 | keiland@aclu.org

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Make the Road New York et al. v. McAleenan et al.

Make the Road New York v. McAleenan, No. 1:19-cv-02369 (D.D.C. filed Aug. 6, 2019).

Expedited removal is a procedure that allows a Department of Homeland Security (DHS) official to summarily deport a noncitizen without a hearing before an immigration judge or meaningful review.

Individuals subjected to expedited removal may be removed within hours of apprehension, without an opportunity to: speak with an attorney, gather evidence or call witnesses, present a claim for relief from removal, other than a truncated process for expressing fear of persecution, peek review of their expedited removal order except under limited circumstances.

For over two decades, federal immigration authorities have authorized the use of expedited removal narrowly: to noncitizens who are seeking admission at a port of entry, who have been apprehended near the border shortly after they entered the country, or who arrive in the United States by sea.

On July 23, 2019, DHS issued a new rule to expand the reach of expedited removal to individuals who have been living in the United States for two years or less, and who live anywhere in the United States.

This case challenges this expansion of expedited removal. Plaintiffs are three organizations with members who are subject to the new rule. Plaintiffs claim that the new rule violates the Due Process Clause of the Fifth Amendment, the Administrative Procedure Act, and federal immigration laws.

The case was filed on August 6, 2019 in the U.S. District Court for the District of Columbia by the American Immigration Council, the American Civil Liberties Union, and the law firm of Simpson Thatcher & Bartlett LLP.

On September 27, 2019, the court granted Plaintiffs’ motion for a preliminary injunction, which blocks the expansion of expedited removal from taking effect while the case moves forward. As a result, expedited removal currently remains limited to people who are within 100 miles from the border and have been in the U.S. for 14 days or fewer, and to those who arrived by sea.

Counsel: Trina Realmuto, Kristin Macleod-Ball, Karolina J. Walters, American Immigration Council; Celso Perez, Anand Balakrishnan, Omar C. Jadwat, Lee Gelernt, Jennifer Chang Newell, Stephen B. Kang, Julie Veroff, ACLU Immigrant Rights’ Project; Jonathan K. Youngwood, Susannah Geltman, Joshua Polster, Adrienne V. Baxley, Simpson Thatcher & Bartlett LLP; Arthur B. Spitzer, Scott Michelman, ACLU of D.C.

Contact: Trina Realmuto | American Immigration Council | 857-305-3600 | TRealmuto@immcouncil.org
Celso Perez | ACLU Immigrant Rights’ Project | 212-549-2600 | cperez@aclu.org

East Bay Sanctuary Covenant et al. v. Barr et al.

East Bay Sanctuary Covenant et al. v. Barr et al., Nos. 3:19-cv-04073 (N.D. Cal filed July 16, 2019); 19-16487 (9th Cir.); 19A230 (Supreme Court)

On July 15, 2019, President Trump announced an interim final rule providing that noncitizens who pass through another country prior to reaching the southern border of the United States are ineligible for asylum here. The new rule has very few exceptions, and thus bars virtually every noncitizen fleeing persecution from obtaining asylum in the United States if they passed through another country on the way here, no matter the conditions or purpose of their journey through that country or their prospect of protection, rights, or status in that country. Accordingly, anyone fleeing persecution from the ongoing humanitarian crisis in several Central American countries who reasonably does not apply for protection while en route will be categorically denied the opportunity to seek asylum in the United States and likely forced to return to countries that are rife with danger in violence. In short, the rule virtually repeals the U.S. asylum system at the southern border.
On July 16, the Southern Poverty Law Center, ACLU Immigrants’ Rights Project, ACLU of Northern California, and Center for Constitutional Rights sued to enjoin this rule. On July 24, the district court judge granted a preliminary injunction, stopping the rule from being enforced nationwide. The government appealed that order, and the court of appeals narrowed the scope of the injunction to just the Ninth Circuit (the CA and AZ borders). Plaintiffs submitted supplemental evidence and filed a motion to restore the nationwide scope of the injunction, which the district court granted on September 9. In the meantime, the government filed an application for a stay pending appeal of the district court’s order directly to the United States Supreme Court, which it granted on September 11, 2019.

See also: I.A. et al. v. Barr., No. 1:19-cv-02530-TJK (D.D.C. filed Aug. 21, 2019)

Counsel: Katrine L. Eiland, Lee Gelernt, Anand Balakrishnan, Cody Wofsy, Omar Jadwat, Spencer Amdur & Julie Veroff, ACLU Immigrants’ Rights Project; Mary Bauer & Melissa Crow, Southern Poverty Law Center; Angelica Salceda & Vasudha Talla, ACLU of Northern California

Contact: Katrina Eiland | ACLU Immigrants’ Rights Project | 415-343-0770 | keiland@aclu.org

A.I.I.L. on behalf of herself and her minor children, J.A.H.I. and M.E.H.I., 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