P.J.E.S. v. Wolf

P.J.E.S. v. Wolf, No. 1:20-cv-02245 (D.D.C., filed Aug. 14, 2020)

J.B.B.C. v. Wolf, No. 1:20-cv-01509 (D.D.C., filed June 9, 2020)

P.J.E.S. v. Wolf and J.B.B.C. v. Wolf are two cases in a series of cases challenging the government’s invocation of rarely-used public health laws to restrict immigration by unaccompanied children and asylum seekers.

On March 20, 2020, President Trump announced that the Centers for Disease Control and Prevention (CDC) would issue an order “to suspend the introduction of all individuals seeking to enter the U.S. without proper travel documentation” across the northern and southern borders. Would-be border crossers were to be “immediately return[ed]” to their country of origin “without delay.” To justify the order, the Administration invoked 42 U.S.C. § 265, a rarely-used provision dating back to 1893, which gives federal public-health authorities the ability to “prohibit . . . the introduction of persons or property” from designated places where “by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States.”

On March 20, CDC issued an interim final rule and an order directing the “immediate suspension of the introduction” of certain persons, including those seeking to enter the United States at ports of entry “who do not have proper travel documents,” “whose entry is otherwise contrary to law,” and “apprehended near the border seeking to unlawfully enter the United States.” Reports indicate that although CDC objected to the order, saying that there was no valid public-health justification for it, White House officials overrode those objections. Though CDC initially limited the order to thirty days, it has since extended the order indefinitely. On October 13, CDC and issued final rules concerning its regulatory authority under § 265. CDC then issued a revised order pursuant to those rules.

The CDC order and regulations do not exempt unaccompanied children, who are entitled to special safeguards under the Trafficking Victims Protection Reauthorization Act, or those seeking asylum, withholding of removal, or protection under the Convention Against Torture. The ACLU, along with a number of ally organizations, have filed a series of lawsuits on behalf of unaccompanied children challenging their expulsion under the CDC’s directives, the two most significant of which are discussed below.

J.B.B.C.

J.B.B.C. v. Wolf challenged the unlawful expulsion of a sixteen-year-old Honduran boy pursuant to Title 42. J.B.B.C. was being held in a hotel awaiting expulsion when the ACLU and others filed a complaint and request for a temporary restraining order. Based on J.B.B.C.’s arguments that the Title 42 Process was not authorized by § 265, and that the CDC order conflicted with various INA provisions, Judge Carl Nichols issued a preliminary injunction barring Defendants from expelling J.B.B.C. Defendants then voluntarily took J.B.B.C. out of the Title 42 Process and transferred him to Office of Refugee Resettlement (ORR) custody.

Another child similarly subject to expulsion under Title 42, E.Y., was later amended into the case. Hours after he was added, Defendants similarly took him out of the Title 42 Process. Plaintiffs subsequently voluntarily dismissed J.B.B.C.

P.J.E.S.

On August 14, 2020, the ACLU Immigrants’ Rights Project, the ACLU of Texas, the Texas Civil Rights Project, Oxfam America, and the ACLU Foundation of the District of Columbia filed P.J.E.S. v. Wolf, a nationwide class action challenging the application of the Title 42 Process to unaccompanied children. On August 20, 2020 Plaintiffs moved for a classwide preliminary injunction. The District Court judge then referred the case to a magistrate judge, who issued a report recommending that Plaintiffs’ motion for class certification be provisionally granted and that the motion for classwide preliminary injunction be granted. The magistrate judge concluded that Title 42 does not authorize summary expulsions and that if it were in fact read to permit expulsion of unaccompanied minors, it would conflict with statutory rights granted to them under the TVPRA and the Immigration and Nationality Act (INA).

On October 2, 2020, Defendants filed their objection to the Report, to which Plaintiffs responded on October 9, 2020. Defendants filed their reply on October 14. Briefing is now complete and Defendants have requested a hearing on the matter.

Note: Two other cases involving the treatment of unaccompanied minors under Title 42 include G.Y.J.P. v. Wolf, No. 1:20-cv-01511 (D.D.C., filed June 9, 2020) and Texas Civil Rights Project v. Wolf, No. 1:20-cv-02035 (D.D.C., filed July 24, 2020).

Documents:

J.B.B.C. v. Wolf:

P.J.E.S. v. Wolf:

Counsel: ACLU Foundation of Texas; ACLU Foundation Immigrants’ Rights Project; Texas Civil Rights Project; Center for Gender & Refugee Studies; Oxfam America; ACLU Foundation of the District of Columbia

Contact: Stephen Kang, ACLU Immigrants’ Rights Project | skang@aclu.org

Additional Links:

Administrative Complaint Series on CBP’s Abuse and Mistreatment of People Detained in its Custody

Administrative Complaint Series on CBP’s Abuse and Mistreatment of People Detained in its Custody

Between January and July 2020, the ACLU Foundation of San Diego & Imperial Counties, in tandem with the ACLU Border Rights Center, prepared and submitted a series of administrative complaints to the Department of Homeland Security’s Office of Inspector General (DHS OIG) detailing U.S. Customs and Border Protection (CBP)’s abuse and mistreatment of people in its custody. The complaints were based on a series of 103 interviews conducted with individuals recently released from CBP custody between March and July 2019.

Complaint #1 – Mistreatment of Pregnant People

The first complaint, filed January 22, 2020, focused on CBP’s abuse and mistreatment of detained pregnant people. One detained woman who was six months pregnant detailed how a Border Patrol  agent forcibly slammed her face against a chain link fence while other agents looked on and did nothing. Border Patrol then detained her for three days without medical care. Another woman reported her fear of her pregnant belly being kicked while having to sleep on the crowded floor of the holding cell. When she began to experience abdomen pain and other symptoms and asked for medical attention, Border Patrol agents told her she was lying.

The complaint contains numerous reports of pregnant individuals being denied not only medical care, but access to clean clothes and other basic hygienic necessities.

The complaint implores DHS OIG to conduct an immediate review of CBP’s treatment of pregnant people in its custody, including recommending CBP stop detaining pregnant people altogether and adopt explicit policies to ensure for adequate, timely medical care of pregnant individuals.

Complaint #2 – Mistreatment of Sick Children

The second complaint, filed on February 18, 2020, focused on the treatment of sick children in CBP and U.S. Border Patrol facilities. The complaint details how Border Patrol continued to hold a weeks-old infant who experienced significant weight loss while detained in custody against the express and repeated advice of medical professionals. In another case, Border Patrol held a five-year-old child for eight days without providing any medical attention for his persistent fever and diarrhea. The complaint also notes how, as of the time of its filing, at least seven children have died in CBP custody or shortly after being released, many of whom received delayed or no medical care. Finally, the complaint calls on DHS OIG to review CBP’s treatment of sick children in its custody, recommend that CBP prioritize the release of all children, and strictly prohibit continued detention of sick children.  

Complaint #3 – Separation of Families in CBP Processing & Detention

The third complaint, filed on April 15, 2020, focused on CBP’s separation of families during detention and processing and the agency’s refusal to implement a detainee locator system. The complaint noted that despite the supposed halting of DHS’s well-publicized separation of young children from their parents, family separations continue to occur as a result of CBP processing and detention practices. Border Patrol and DHS have adopted a very restrictive definition of “family” that includes only legal guardians accompanied by minor children and gives Border Patrol agents unilateral discretion to decide whether to separate family members, resulting in countless ongoing family separations. The ACLU’s investigation documented the separation of a grandmother and her nine-year-old grandson, a woman and her sister, and a mother and her non-minor son, among countless others. Noting the many ways in which family separations intensify trauma for already vulnerable asylum seekers of all ages and the many extreme barriers to locating and communicating with loved ones who are detained, the complaint calls on DHS OIG to recommend CBP implement a detainee locator system, refrain from detaining family units, and prioritize the prompt release of families. It also recommends adoption of a more expansive definition of “family”.

Complaint #4 – Verbal Abuse of Detained Individuals

The fourth complaint in the series, filed July 7, 2020, focused on U.S. Border Patrol’s verbal abuse of detained individuals. This complaint highlights Border Patrol’s “staggering culture of cruelty” and “systematic mistreatment and dehumanization of vulnerable people.” Detained individuals reported being told “Forget about asylum, we might just take away your daughter,” “Get out of here, what are you doing here if you don’t even speak English, you are worthless,” “If you keep complaining I will put you with the dogs,” “[Y]ou broke the law, you have no rights,” “I am treating you the way illegals should be treated,” and a litany of other abusive slurs. The complaint calls on DHS OIG to recommend CBP strictly prohibit personnel from verbally abusing individuals in its custody, adopt zero-tolerance policies for anti-immigrant and racist employee conduct, and create a new complaint process that allows for timely review and increased transparency.

Documents:

Counsel: ACLU Foundation of San Diego & Imperial Counties; ACLU Border Rights Center

Contact: Mitra Ebadolahi, ACLU Foundation of San Diego & Imperial Counties | mebadolahi@aclusandiego.org

Administrative Complaint Regarding U.S. Border Patrol’s Mistreatment of Honduran Family Seeking Asylum and Summary Expulsion of Newborn U.S. Citizen

Administrative Complaint Regarding U.S. Border Patrol’s Mistreatment of Honduran Family Seeking Asylum and Summary Expulsion of Newborn U.S. Citizen

On July 10, 2020, the ACLU Foundation of San Diego & Imperial Counties (ACLU-SDIC) and Jewish Family Service of San Diego (JFS) submitted an administrative complaint to the Department of Homeland Security’s Office of Inspector General (OIG) and the Office for Civil Rights and Civil Liberties (CRCL), regarding U.S. Border Patrol’s mistreatment of a Honduran family seeking asylum and the agency’s summary expulsion of the family, including their newborn U.S. citizen child, to Mexico. The family, including the mother, father, and their nine-year-old son, fled Honduras after gangs extorted them, made repeated death threats, beat the nine-year-old with a gun, and took over their house.

In early March 2020, the family made an initial attempt to seek asylum, but Border Patrol force them to wait in Mexico for an immigration court hearing. Fearing for their safety in Mexico, on June 27, 2020, the family, including the mother, who was now nine months pregnant, attempted to cross into the U.S. once again and turned themselves in to the Border Patrol. The Border Patrol agents separated the family, sending the father and son back to Mexico in the middle of the night, despite their repeated pleas to stay with the mother. Agents sent the mother to the hospital, where she gave birth to her child – a natural-born U.S. citizen. Just two days after giving birth, Border Patrol agents took the mother and her newborn U.S. citizen child to the border and directed them to walk over the border back into Mexico, even though the mother had repeatedly expressed a fear of persecution there. Once back in Mexico, the mother and child were eventually able to reunite with the father and son. The family contacted JFS from Tijuana, where they reported that neither the newborn child nor his mother had received any medical care since birth.

ACLU-SDIC and JFS filed an administrative complaint on the family’s behalf, calling for an urgent investigation of Border Patrol’s treatment of the family, including the forced expulsion of the newborn U.S. citizen and his mother to Mexico and the forced removal of the father and son. The complaint also emphasizes that Border Patrol twice failed to ensure that the family had access to non-refoulement interviews, which are intended to ensure people are not removed to countries where they are likely to face persecution – a clear violation of both U.S. law and agency policy. In addition to the investigation, the complaint calls on DHS OIG to recommend CBP immediately exempt all pregnant persons from MPP, promptly release people forced to give birth in CBP custody and their families as soon as possible after birth, and ensure CBP complies with their non-refoulement obligations and hold officers who do not accountable, among others.

Documents:

Counsel: ACLU Foundation of San Diego & Imperial Counties; Jewish Family Services of San Diego

Contact: Mitra Ebadolahi, ACLU Foundation of San Diego & Imperial Counties | mebadolahi@aclusandiego.org

Additional Links:

Texas Civil Rights Project v. U.S. Customs and Border Protection

Texas Civil Rights Project et al. v. U.S. Customs and Border Protection, No. 1:20-cv-02389 (D.D.C., filed Aug. 27, 2020)

In March 2020, the Trump Administration began carrying out summary expulsions pursuant to Title 42 § 265 of the U.S. Code and the CDC’s  implementing regulations. The Administration removed noncitizens without travel documents apprehended at the border – including unaccompanied minors and asylum seekers – without any legal process under the ruse of mitigating the spread of COVID-19. In late July 2020, news began breaking that the Department of Homeland Security (DHS) had been contracting with private contractors to detain immigrant children as young as one in hotels along the U.S.-Mexico border prior to carrying out such summary expulsions, regardless of whether the child had tested positive for COVID-19 or not. While detained in these hotels, children, including unaccompanied minors, were unable to contact family members, denied access to counsel, and denied any legal process before being removed to countries where many feared persecution.

In response, the Texas Civil Rights Project (TCRP) and the Institute for Constitutional Advocacy and Protection (ICAP) submitted three Freedom of Information Act (FOIA) requests to Customs and Border Protection (CBP), DHS, and Immigration and Customs Enforcement (ICE) to obtain more information about the government’s treatment of unaccompanied children who have crossed the border in recent months. Specifically, the organizations sought records encompassing (1) the standards use to determine whether unaccompanied and undocumented children are immediately expelled or allowed to apply for humanitarian relief; (2) statistics on how many children have been expelled and to where; (3) the secret locations where DHS detains children prior to Title 42 expulsion; and (4) the identity of the companies that DHS had contracted with to transport and detain children. Plaintiffs received no response to their requests.

On August 27, 2020, TCRP and ICAPfiled this suit seeking to compel CBP, ICE, and DHS to conduct a reasonable search and produce records responsive to their FOIA request. 

Documents:

Counsel: Robert D. Friedman, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center

Contact: Robert Friedman, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center | rdf34@georgetown.edu

Additional Links:

Doe v. Wolf

Doe v. Wolf, No. 3:19-cv-02119-DMS-AGS (S.D. Cal., filed Nov. 5, 2019) and 20-55279 (9th Cir., filed Mar. 13, 2020)

People who are seeking asylum but have been forced to wait in Mexico under the Trump Administration’s so-called “Migrant Protection Protocols” have a right to not be returned to Mexico if it is more likely than not that they will be persecuted or tortured there. But the U.S. Department of Homeland Security blocked such individuals from consulting with their lawyers prior to and during life-or-death interviews on this matter, known as non-refoulement interviews. The ACLU Foundation of San Diego & Imperial Counties filed a class action lawsuit to challenge this systemic denial of the right to counsel in U.S. Customs and Border Protection (CBP) custody.

On January 14, 2020, the District Court entered a preliminary injunction guaranteeing access to counsel to a class of people detained in CBP custody while awaiting and undergoing non-refoulement interviews. The District Court first found that 8 U.S.C. § 1252(a)(2)(b)(ii), which prohibits judicial review of a “decision or action” that is “in the discretion of the Attorney General or the Secretary of Homeland Security,” did not foreclose review of the Plaintiffs’ claims. The Court further found that 5 U.S.C. § 555(b), which provides that “[a] person compelled to appear in person before an agency . . . is entitled to be accompanied, represented, and advised by counsel,” applies to non-refoulement interviews. As such, the District Court ordered that “Respondents may not conduct class members’ non-refoulement interviews without first affording the interviewees access to their retained counsel both before and during any such interview.”  The government has appealed to the Ninth Circuit. Oral argument is scheduled for November 13.

Documents:

Counsel: ACLU Foundation of San Diego & Imperial Counties

Contact: Monika Langarica, Immigrants’ Rights Staff Attorney, ACLU Foundation of San Diego & Imperial Counties | mlangarica@aclusandiego.org

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.

On February 14, 2020, Defendants filed a motion to dismiss Plaintiffs’ complaint, asserting lack of personal jurisdiction, failure to state a claim, and qualified immunity. Briefing on that motion is complete. On July 22, 2020, Plaintiffs sought leave to amend their complaint to include their administratively exhausted Federal Tort Claims Act (FTCA) claims. Defendants requested that the court defer a decision on Plaintiffs’ motion to amend pending the court’s decision on Defendants’ motion to dismiss. On August 31, 2020 the court granted Plaintiffs’ motion to amend and denied Defendants’ motion to dismiss. On September 3, 2020 Plaintiffs filed their amended complaint.

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, then-Secretary of Homeland Security Kirstjen M. Nielsen announced a new government policy, the so-called “Migrant Protection Protocols” (MPP), which would force noncitizens seeking admission from Mexico to return to Mexico to await their removal proceedings. The Trump 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,” or RIM), 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 alleges 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, 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.

On February 28, 2020, the Ninth Circuit denied the government’s appeal. That same day, the government filed an emergency motion requesting a stay of the preliminary injunction pending disposition of a petition for certiorari to the Supreme Court or an immediate administrative stay. That evening, the Ninth Circuit granted the government an administrative stay pending briefing by the parties. On March 4, 2020, following briefing, the Ninth Circuit granted the government’s stay motion in part and denied it in part. The stay was denied with respect to the Ninth Circuit’s holding that MPP violated federal law, affirming the Ninth Circuit’s belief in the policy’s illegality. However, the stay was granted in part and denied in part with respect to the injunctive relief. The order permitted enforcement of MPP nationwide through March 11, 2020, but thereafter prohibited MPP from operating only in the Ninth Circuit.

On March 11, 2020, the government applied for a stay of the preliminary injunction to the Supreme Court, which granted a stay pending filing and disposition of a petition for a writ of certiorari. If the writ is denied, the stay will terminate automatically. If the writ is granted, the stay will terminate upon judgment of the Court. On April 10, 2020, DHS petitioned for a writ of certiorari to the Supreme Court and on October 19, 2020, the Court granted certiorari.

Counsel: Judy Rabinovitz, Michael Tan, Omar Jadwat, Katrina Eiland, Julie Veroff, Lee Gelernt, Anand Balakrishnan, & Daniel Galindo, ACLU Immigrants’ Rights Project; Sean Riordan, 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

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