Category Archives: Removal/Deportation

Texas and Missouri v. Biden

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Texas & Missouri v. Biden, No. 2:21-cv-00067-Z (N.D. Tex., filed Apr. 13, 2021); 21-10806 (5th Cir., filed Aug. 16, 2021); 23-10143 (5th Cir., filed Feb. 14, 2023)

Within hours after President Biden’s inauguration, the Biden administration suspended new enrollments into the Trump administration’s Remain in Mexico program (also known as the “Migrant Protection Protocols” or “MPP”), which forcibly returned certain people seeking asylum at the southern U.S. border to Mexico, where they had to survive dangerous conditions during the pendency of their immigration proceedings in U.S. immigration courts. The program was notoriously a humanitarian disaster – as a result of the policy, people seeking asylum were murdered, raped, kidnapped, extorted, and compelled to live in squalid conditions. They also faced significant procedural barriers to meaningfully presenting their legal claims for protection.

On April 13, 2021, the states of Texas and Missouri (Plaintiffs) filed suit in the Northern District of Texas, arguing that the Biden administration’s January 2021 statement suspending new enrollments into MPP “functionally end[ed] the MPP” program and was arbitrary and capricious in violation of the Administrative Procedures Act (APA) given the “huge surge of Central American migrants, including thousands of unaccompanied minors, passing through Mexico in order to advance meritless asylum claims at the U.S. border.” Plaintiffs also argued that the Biden Administration’s decision to suspend MPP violated both the Constitution and an agreement between Texas and the federal government.

On May 14, 2021, Plaintiffs moved for a preliminary injunction. However, before the briefing was complete, the Department of Homeland Security (DHS) issued a new memo on June 1, 2021 formally terminating MPP. The court concluded that the June 1 memorandum mooted Plaintiffs’ original complaint (which had focused on the January 2021 pronouncement), but allowed Plaintiffs to amend their complaint and file a new motion seeking to enjoin the June 1 memo. Plaintiffs did so. On June 25, 2021, Defendants filed their response to Plaintiffs’ preliminary injunction motion, and Plaintiffs filed their reply on June 30, 2021.

On July 22, 2021, the district court held a consolidated hearing and bench trial on the merits, and the parties then filed supplemental briefs on the scope of relief available to Plaintiffs. On August 13, 2021, the district court issued an order concluding that Plaintiffs were entitled to relief on both their APA and statutory claims and issued a nationwide injunction permanently enjoining Defendants from implementing or enforcing the June 1 memo, vacating the June 1 memo in its entirety, and ordering Defendants “to enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all [noncitizens] subject to mandatory detention under Section 1255 without releasing any [noncitizens] because of a lack of detention resources.” The court’s reasoning was rooted in a mistaken understanding of 8 U.S.C. § 1225(b)(2)(A) and its determination that MPP “demonstrated operational effectiveness” — a finding based on Trump Administration statements and flawed data analysis and which ignored hundreds of pages of record evidence detailing the dangers MPP respondents had experienced in Mexico.

The district court stayed its order for seven days to allow the federal government time to seek emergency relief from the Fifth Circuit. On August 16, 2021, the Biden administration sought an additional stay from the district court, which the district court summarily denied two days later. The Biden administration then appealed to the Fifth Circuit. The American Immigration Council, Center for Gender and Refugee Studies, Human Rights First, and Southern Poverty Law Center, filed an amicus brief in support of the government, asking the Fifth Circuit to prevent the reinstatement of MPP and arguing that the district court’s order rests on inaccurate facts about the purported effectiveness of MPP in deterring migration and reducing meritless asylum claims. The ACLU and ACLU of Texas filed a separate amicus brief in support of the government primarily focusing on the district court’s misinterpretation of 8 U.S.C. § 1225(b)(2)(A).

On August 19, 2021, the Fifth Circuit denied the government’s request for a stay in a published decision that wholly adopted as true the Trump administration’s claims about the effectiveness of MPP in deterring migration and ignored the mountainous evidence refuting such claims. The decision, however, stated that the administration does not have to restart MPP at any particular time, just “in good faith” (without defining the term) and clarified that the government “can choose to detain” someone in accordance with § 1225, so long as the government does not “simply release every [noncitizen] described in § 1225 en masse into the United States.”

On August 20, 2021, the Biden administration filed an application to stay the district court’s injunction and for an emergency administrative stay with the Supreme Court. That same day – just minutes before the injunction was to go into effect – Justice Alito granted an emergency stay of the injunction until 11:59 pm EDT on August 24, 2021, to allow the full Court to consider the application. On August 23, 2021, the ACLU and ACLU of Texas filed an amicus brief in the Supreme Court in support of the stay application, again addressing the lower courts’ deeply flawed premise that the federal government must subject all people seeking asylum apprehended at the border to mandatory detention or return them to Mexico under MPP.

On August 24, 2021, the Supreme Court denied the government’s stay request in a 6-3 decision, stating that “[t]he applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” The decision, however, did not endorse the states’ incorrect claims that the government is actually required to return people to Mexico under the immigration statutes. That same day, DHS issued a statement saying that the Department “respectfully disagrees with the district court’s decision,” have appealed that order, and “will continue to vigorously challenge it.” However, the Department stated that “[a]s the appeal process continues . . . DHS will comply with the order in good faith.”

On September 23, 2021, Plaintiff States filed a motion to enforce the preliminary injunction and expedite discovery, citing delayed implementation of MPP and bad faith on the part of the government. The federal government responded that Plaintiff States had not met their burden of proof to demonstrate that the government is not acting in good faith to implement the injunction. The federal government filed their reply at the Fifth Circuit on October 19, 2021.

On October 29, 2021, DHS issued a memorandum terminating MPP again. In light of the termination memo, the administration filed a motion with the Fifth Circuit in Texas v. Biden stating that the appeal of the injunction requiring them to re-start MPP in good faith was now moot and requesting that the court vacate the district court’s preliminary injunction and remand or, alternatively, to stay the appeal while the case is remanded. On November 1, 2021, the states filed an opposition to the administration’s claim of mootness and request for vacatur or stay and remand, and the Fifth Circuit heard oral arguments from both parties the following day.

On November 18, 2021, the district court issued an opinion granting in part Plaintiffs’ motion to enforce, allowing for limited discovery but denying Plaintiffs’ request to implement MPP in the same manner. On December 21, 2021, the Fifth Circuit issued an order affirming the district court’s judgment and refusing to vacate the injunction. The Biden administration petitioned for certiorari. The Supreme Court granted certiorari and reversed the Fifth Circuit’s decision on June 30, 2022. The Supreme Court held, as an initial matter, that the district court’s injunction violated 8 U.S.C. § 1252(f)(1). Further, the Court held that the government’s recission of the MPP program did not violate section 1225 of the INA.

The Fifth Circuit then remanded the action to the Northern District of Texas on August 6, 2022. The Defendants moved to vacate the permanent injunction, and the district court vacated the injunction on August 8, 2022. Following the district court’s decision vacating the injunction, DHS announced that it will no longer enroll new individuals in MPP, and will disenroll individuals currently in MPP when they return for their next scheduled court date.

On the same day, Plaintiffs filed a motion for leave to file a second amended complaint, along with a motion to “postpone the effective date” of the October 29 memo rescinding MPP under the APA. The district court set a discovery and briefing schedule for the motion to postpone. The Defendants produced the relevant administrative record and filed a response in opposition to the motion to stay agency action on September 2, 2022. Briefing on the motion to stay agency action–including surreplies by both parties—was completed on September 20, 2022.

On December 15, 2022, the district court stayed the October 29 memo and the decision to terminate MPP pending the resolution of the merits of the claim. On February 13, 2023, Defendants filed an interlocutory appeal to the Fifth Circuit. On May 15, 2023, Defendants submitted an unopposed motion to dismiss the appeal without prejudice, which was granted on May 25, 2023.

On May 15, 2023, in the district court, Defendants filed an answer to the second amended complaint. The court then ordered supplemental briefs and supplemental response briefs in support of summary judgment. Briefing was completed on October 16, 2023, and parties await the court’s decision.

Documents:

Compliance Reports:

DHS Memorandum:

Counsel for Amicus: ACLU Immigrants’ Rights Project; ACLU Foundation of Texas; American Immigration Council; Center for Gender & Refugee Studies; Human Rights First; Southern Poverty Law Center

I.M. v. U.S. Customs and Border Protection

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I.M. v. U.S. Customs and Border Protection, et al., No. 1:20-cv-3576-DLF (D.D.C., filed Dec. 11, 2020) and No. 22-5071 (D.C. Cir., filed Mar. 18, 2022)

I.M. is a sustainable agriculture entrepreneur and founder of a nonprofit organization that promotes sustainable farming who came to the United States on a B-1 visa to learn more about sustainable agricultural practices. Despite having been admitted for this purpose in 2019, when he attempted to reenter the country in 2020 on a valid B-1 visa he was detained on erroneous grounds by a Customs and Border Protection (CBP) officer, who unilaterally decided to revoke I.M.’s visa and expel him from the country under the expedited removal statute, 8 U.S.C. § 1225(b)(1)(A)(i). At no point did I.M. have an opportunity to obtain judicial review of CBP’s legally and factually incorrect decisions to detain him, revoke his visa, and deny him admission to the country.

On December 11, 2020, I.M. filed a habeas petition and complaint against federal government defendants, including CBP, seeking vacatur of his removal order and reinstatement of his B-1 visa. I.M. argued that an unappointed CBP employee exercising unreviewed, unilateral discretion to revoke his visa and remove him violated the Appointments Clause of the Constitution, U.S. Const. art. II, § 2, cl. 2. The Appointments Clause requires that federal government officials who exercise significant authority be appointed by the President or, with Congress’s authorization, by a Head of Department or a court of law. I.M. claims that the decisions of CBP employees to unilaterally order removal under the expedited removal statute are void unless those employees were appointed consistent with the requirements of the Appointments Clause.

The government filed a motion to dismiss the complaint and petition on jurisdictional grounds in late February 2021. On January 1, 2022, the court granted the Defendants’ motion to dismiss in a sealed opinion. On March 18, 2022, Plaintiff filed a notice of appeal with the D.C. Circuit. Briefing is complete and the D.C. Circuit held oral arguments on January 25, 2023. On May 12, 2023, the D.C. Circuit affirmed the district court’s dismissal of I.M.’s claims on jurisdictional grounds, finding that because I.M. was out of the country, he was not in custody and therefore could not utilize a habeas petition for relief.

Counsel: Democracy Forward Foundation, National Immigrant Justice Center, Latham & Watkins

Contact: Mark Fleming, National Immigrant Justice Center, mfleming@heartlandalliance.org

Additional links:
• NIJC, DHS and CBP Sued for Unconstitutionally Allowing Unappointed Border Employees to Deport Immigrants (Dec. 11, 2020).

Huisha-Huisha v. Gaynor

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Huisha-Huisha, et al. v. Gaynor, et al., No. 1:21-cv-0100 (D.D.C., filed Jan. 12, 2021); 21-05200 (D.C. Cir., filed Sep. 17, 2021); 22-05325 (Sup. Ct., filed Dec. 19, 2022)

On January 21, 2021, the ACLU Immigrants’ Rights Project, the ACLU of Texas, the Refugee and Immigrant Center for Legal Education and Legal Services, Oxfam America, and the ACLU of the District of Colombia filed Huisha-Huisha, et al. v. Gaynor, et al., a class action on behalf of noncitizens who arrive in the United States as a family unit of at least one child and that child’s parent or legal guardian and are subject to Title 42. The named plaintiffs are three parents and their minor children who sought asylum in the United States. In January 2021, Plaintiffs moved to certify a class consisting of all noncitizens who “(1) are or will be in the United States; (2) come to the United States as a family unit composed of at least one child under 18 years old and that child’s parent or legal guardian; and (3) are or will be subjected to the Title 42 Process.” Plaintiffs also filed a series of emergency motions to stay the removal of the named petitioners. In February, the district court granted the stays of removal over the government’s objections.

On February 5, 2021, Plaintiffs moved for a preliminary injunction prohibiting Defendants from applying the Title 42 Process to members of the putative class. On February 23, 2021, the district court granted the parties’ joint motion to hold in abeyance the motions for class certification and a preliminary injunction. The case was held in abeyance until August 2, 2021, while the parties attempted to engage in settlement negotiations. On August 2, the parties jointly filed a motion to reset the briefing schedule on Plaintiffs’ motions for class certification and a preliminary injunction, indicating their intent to resume litigation, and Plaintiffs filed their reply in support of their motions on August 11, 2021.

The district court granted Plaintiffs’ motions for class certification and a preliminary injunction on September 16, 2021, enjoining Defendants from applying the Title 42 process, including the CDC’s August 2021 order, to class members. The court agreed that the government’s policy was not authorized by statute and that class members would face “real threats of violence and persecution” if returned to their home countries. The government appealed the order to the D.C. Circuit the following day. On September 30, 2021, the D.C. Circuit stayed the preliminary injunction pending appeal, and as such, the preliminary injunction did not go into effect.

On March 4, 2022, the U.S. Court of Appeals for the D.C. Circuit affirmed the district court’s preliminary injunction in part, holding that the government may expel Plaintiffs, but only to places where they will not be persecuted or tortured. As a result, the preliminary injunction is now in effect. The court of appeals remanded the case to the district court to decide in the first instance whether the Title 42 expulsion rule is arbitrary and capricious.

On remand, Plaintiffs filed a motion for a preliminary injunction and a motion for partial summary judgment. On November 15, 2022, the district court issued an order holding that the U.S. government acted arbitrarily and capriciously in instituting the Title 42 policy and enjoined Defendants from continuing to apply the policy. The court granted Defendants’ request to stay the injunction until December 21, 2022.

On November 21, 2022, the states of Arizona, Louisiana, Texas, and 12 other states filed a motion to intervene with the district court. Shortly after, on December 7, Defendants filed a notice of appeal of the district court’s final judgment. Given the appeal, the district court deferred on the motion to intervene, and Arizona, et al. filed a motion to intervene with the D.C. Circuit, along with a motion to stay the trial court’s decision pending appeal. The D.C. Circuit denied the motion to stay on December 9, 2022, and deferred the ruling on the motion to intervene.

On December 19, 2022, Arizona, et al. filed an application to the U.S. Supreme Court for a stay pending certiorari along with a petition for a writ of certiorari. That same day the Supreme Court stayed the D.C. Circuit Court’s decision to end Title 42 and ordered the parties’ responses be filed on December 20, 2022. The Supreme Court granted certiorari on December 27, 2022 to determine whether the state applicants may intervene to challenge the district court’s summary judgment order.  The Supreme Court’s review is limited to the question of intervention by the states.

The parties filed their briefs and the Supreme Court scheduled oral arguments for March 1, 2023. On January 30, 2023, the White House issued a statement of administration policy ending the COVID national emergency and public health emergency declarations on May 11, 2023. On February 16, 2023, the Supreme Court removed the case from the February 2023 argument calendar.

On May 18, 2023, following the expiration of the public health emergency and therefore the end of Title 42, the Supreme Court vacated the D.C. Circuit’s order and remanded the case with instructions to dismiss the intervention motion as moot. On September 7, 2023, the D.C. Circuit vacated the district court’s decision and remanded. On November 8, 2023, the district court dismissed the case as moot.

Documents:

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

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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. For updated advocacy on this issue, consult the entry on ACLU and 137 organizations send letter to CBP Commissioner urging CBP not to detain pregnant, postpartum, and nursing people.

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: Shaw Drake | ACLU of Texas | sdrake@aclutx.org

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

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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 Service of San Diego

Additional Links:

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

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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. Defendants filed their answer on October 8, 2020, and the parties have filed periodic status reports as production in response to the FOIA request continues. On July 18, 2023, the parties submitted a stipulation of dismissal, though Plaintiffs reserve the right to seek attorney’s fees and costs.

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

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Doe v. Wolf, No. 3:19-cv-02119-DMS-AGS (S.D. Cal., filed Nov. 5, 2019) and No. 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” (MPP) 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 (DHS) 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 appealed to the Ninth Circuit. After oral argument, submission of the appeal was vacated pending the Supreme Court’s disposition of Wolf, et al. v. Innovation Law Lab, et al., No. 19-1212 (Innovation Law Lab), which challenged the legality of the MPP program as a whole.

On June 21, 2021, the Supreme Court vacated the decision in Innovation Law Lab as moot, given the Biden administration’s winddown and eventual termination of the MPP program (announced on June 1, 2021). In response, the Ninth Circuit ordered the parties in Doe to submit supplemental briefing on the question of whether the district court’s January 14, 2020 preliminary injunction should also be vacated as moot. On July 19, 2021, the Ninth Circuit concluded that because the Supreme Court had decided that the challenge to MPP as a whole in Innovation Law Lab was moot, that the narrower question presented in Doe was also moot. As a result, the Ninth Circuit remanded the case to the district court with instructions to vacate the January 14, 2020 preliminary injunction as moot. The parties subsequently entered into a stay of the litigation.

However, on August 13, 2021, the district court for the Northern District of Texas issued a nationwide injunction in Texas et al. v. Biden requiring the Biden administration to restart the MPP program “in good faith.” After the Supreme Court declined to stay the injunction on August 24, 2021, DHS issued a statement indicating its intent to appeal the injunction but stating that while the appeals process continues, DHS “will comply with the order in good faith.” As a result, on September 1, 2021, Plaintiffs filed a motion for reconsideration with the Ninth Circuit asking the court to vacate its July 19 order directing the district court to vacate the preliminary injunction and to direct the district court to reinstate the preliminary injunction based on changed circumstances. Defendants filed their response to the motion on September 17, 2021, and Plaintiffs filed their reply on September 20. On September 24, 2021, the Ninth Circuit denied Plaintiffs’ motion for reconsideration.

Back at the district court, Defendants argued that the matter was moot and, in the alternative, moved to stay litigation pending the Supreme Court’s decision in Texas v. Biden. On March 14, 2022, the district court denied Defendants’ motion and ordered them to answer the complaint by May 3, 2022.

On February 3, 2023, Defendants filed an unopposed motion to stay the deadline to respond to the complaint in light of the Supreme Court’s decision in Biden v. Texas, 142 S. Ct. 2528 (2022) holding that the district court did not have authority to issue the nationwide injunction ordering the restart of MPP. Defendants took the position that the case was now moot, but indicated that Plaintiffs do not believe the case is moot giving ongoing challenges to the end to MPP. As a result, the parties requested a stay of proceedings to allow other litigation to progress and to attempt resolution of the case. On February 6, 2023, the court granted the motion and stayed the deadline to answer.

Documents:

Counsel: UCLA Center for Immigration Law and Policy

Contact: Monika Langarica | UCLA Center for Immigration Law and Policy | langarica@law.ucla.edu

A.B.-B. v. Morgan

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A.B.-B., et al., v. Morgan, et al., No. 1:20-cv-00846 (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 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. On August 29, 2020, the district court granted a preliminary injunction, enjoining Defendants from removing Plaintiffs until the court has ruled on the merits of this case and enjoining Defendants from continuing to permit Border Patrol agents to conduct credible fear interviews and make credible fear determinations. Defendants proceeded to request several extensions of their deadline to answer the complaint. No answer has been filed. On October 5, 2022, the court granted a joint motion to stay the proceedings for 180 days. As of June 2024, the parties continue to file joint status reports with the court.

Counsel: Tahirih Justice Center | Constitutional Accountability Center

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

E.L.A. and O.L.C. v. United States of America

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E.L.A. and O.L.C. v. United States of America, No. 2:20-cv-1524 (W.D. Wash., filed Oct. 10, 2020)

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. On October 15, 2020, after the government neglected to make a final disposition on the administrative claims, Mr. L.A. and his son filed a lawsuit in the Western District of Washington, having exhausted all possible administrative remedies.

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. A Lincoln Hall staff member physically assaulted and insulted O.L.; rather than discipline the offending staff member, facility staff simply transferred O.L. to a different part of the facility. 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 a hielera 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 fifteen 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 roll-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 after his removal 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 (FTCA), which allows individuals to sue the United States for injuries resulting from unlawful conduct of federal officers.

On January 19, 2021, Defendant moved to transfer the case to the Southern District of Texas and to dismiss two of Plaintiffs’ four claims (abuse of process and negligence). On June 3, 2022, the district court denied Defendant’s motion to transfer the case to Texas, but granted Defendant’s motion to dismiss the abuse of process and negligence claims. Plaintiffs filed a motion to reconsider the dismissal of claims on June 17, 2022. On October 19, 2022, the Court denied Plaintiffs’ motion to reconsider. On November 14, 2022, Defendant moved to dismiss Plaintiffs’ intentional infliction of emotional distress claim, arguing that the claim is barred by the discretionary function and due care exceptions to the FTCA and that there is no private analogue. On May 15, 2023, the court denied Defendant’s motion to dismiss, and Defendant filed their answer to the complaint on June 30, 2023. The parties entered into a stipulated protective order similar to those in other family separation litigation on August 4, 2023.

The parties reached a settlement agreement and filed a stipulated motion of dismissal in March 2024, and the case was dismissed on March 6, 2024.

Documents:

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

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

Note: Other cases involving family separation in the Western District of Washington include:

  • S.M.F. and A.R.M. v. United States of America, 2:22-cv-1193 (W.D. Wash., filed Aug. 26, 2022)

A.I.I.L. et al. v. Sessions et al.

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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 (D. Ariz., filed Oct. 3, 2019); 4:23-cv-01383 (S.D. Tex.)

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 Department of Justice, the Department of Homeland Security (DHS) and Customs and Border Protection (CBP), and Health and Human Services (HHS)/Office of Refugee Resettlement (ORR).

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. In February 2021, Defendants moved to dismiss the amended complaint for lack of jurisdiction, failure to state a claim, and on qualified immunity grounds.

On May 20, 2021, Plaintiffs sought a stay of the action to facilitate further settlement discussions in hopes of resolving their FTCA claims against the United States. The individual Defendants objected to the stay of the individual-capacity claims. The court lifted the abeyance on January 7, 2022.

On March 31, 2022, the court granted Defendants’ motion to dismiss all claims except for the FTCA claims of four of the five Plaintiff families. With respect to the FTCA claims, the court held, among other things, that those claims were not barred by the discretionary function or due care exceptions to the FTCA. With respect to the dismissed constitutional claims brought under Bivens, the court held, among other things, that special factors counseled against extending Bivens to a new context that challenged high level policy decisions. On July 14, 2022, the court denied the government’s motions to consolidate policy-level discovery in A.I.I.L. with related family separation cases in the district.

On July 15, 2022, the individual Defendants filed a Rule 54(b) motion for the entry of a final judgment as to the claims against the individual defendants. On March 31, 2023, the court denied the motion, finding that the dismissed individual claims and the pending FTCA claims raised related issues of fact and law and that two appeal tracks would complicate the case and burden Plaintiffs.

On April 11, 2023, the court transferred the claims of two of the named plaintiffs to the Southern District of Texas, where their separation occurred.

On March 6, 2024, the Plaintiffs filed an unopposed motion for court approval of the settlements of minor Plaintiffs’ claims. The settlements involved payment of stipulated amounts to the individual plaintiffs.

Documents:

Counsel: Christine Wee, ACLU of Arizona; Lee Gelernt, Anand Balakrishnan, Daniel Galindo, Stephen Kang, & Spencer Amdur, 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: Lee Gelernt | ACLU Immigrants’ Rights Project | lgelernt@aclu.org