Administrative Complaint against Border Patrol Re: Two Sisters Sexually Assaulted by CBP Officer in Texas

Administrative Complaint against Border Patrol Re: Two Sisters Sexually Assaulted by CBP Officer in Texas

In July 2016, two sisters — then 19 and 17 years old — lost their way while traveling to the United States from Guatemala, and encountered CBP officers after crossing the Texas-Chihuahua, Mexico, border. They asked for help and were taken to a CBP field office in Presidio, Texas. Once there, the sisters were led by a federal officer into a closet-like room one at a time, told to remove all their clothes, and sexually assaulted. The victims report that they continue to suffer severe emotional distress as a result of the assault.

The sisters reported the abuse shortly after it occurred to another CBP officer in the field office where they were held, and an investigation was launched by the Department of Homeland Security’s Office of Inspector General. The sisters were interviewed twice and asked to draw a depiction of the closet. Federal authorities have not pursued criminal charges against the officer, nor is it clear whether the officer has faced any disciplinary actions for his assaults on the sisters.

On March 22, 2017, the ACLU of Northern California filed two administrative claims under the Federal Tort Claims Act with the federal government on behalf of each of the sisters.

Media:

Counsel:  ACLU of Northern California

Contact: Angélica Salceda | asalceda@aclunc.org | (415) 621-2493

Maria Fernanda Rico Andrade v. United States of America, et al.

Maria Fernanda Rico Andrade v. United States of America, et al., No  2:15-cv-00103 (S.D. Texas, filed Feb. 27, 2015)

On November 3, 2011, Gerardo Lozano Rico, an unarmed Mexican national, was driving along a rural road in Texas when his car was pulled over by two United States Border Patrol agents. After being pulled over, several passengers in Mr. Lozano’s car began to flee and the two Border Patrol officers attempted to apprehend them. After one agent smashed the driver’s side window of the car with a baton, Mr. Lozano attempted to drive away from them. In response, the two agents fired approximately 15 shots into the vehicle, killing Mr. Lozano. The two agents who fired the shots claimed that they had fired in self-defense because the vehicle was coming in their direction.

In June 2014, Maria Fernanda Rico Andrade, Mr. Lozano’s mother, filed an administrative complaint against the Border Patrol, which was denied in August 2014. On February 27, 2015, Ms. Rico filed a lawsuit in the District Court of Texas. The complaint alleges an unconstitutionally excessive use of force and a pattern and practice of border patrol agents who, by placing themselves in front of moving vehicles, intentionally expose themselves to additional risk which creates a justification for the use of deadly force. The complaint also alleges the fatal shots fired by the agents were from the side and the rear, occurring after the car had already passed them and making the decision to use force unreasonable. On October 6, 2015, the government filed a motion to dismiss. Following additional briefing from both parties, the motion is currently pending in front of the District Court.

On March 27, 2017, Defendants filed a Motion for Summary Judgment. On April 19, the Court granted Plaintiff’s Motion to Continue Defendants’ Motion for Summary Judgment.

Counsel: Robert C. Hilliard | Singleton Law Firm, APC; Hilliard Munoz Gonzales, LLP

Contact: Robert C. Hilliard | bobh@hmglawfirm.com | (361)-882-1612

Gallegos v. United States of America, et al

Gallegos v. United States of America, et al (S.D. Texas, Amended Complaint filed June 23, 2015)

This case challenges the actions of two U.S. Border Patrol agents, who shot dead an unarmed man on the Mexican side of the U.S.-Mexico border in 2012. Nora Lam Gallegos, on behalf of herself and her minor children, brought a lawsuit against the United States and various Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP) agents in their individual capacities for the wrongful death of her husband, Guillermo Arevalo Pedraz (“Arevalo”).

On September 3, 2012, Arevalo and his family were celebrating his birthday in a park in Mexico bordering the Rio Grande when a U.S. Border Patrol airboat pulled beside a man swimming in the river. The two agents, Matthew Lambrecht and Christopher Boatwright, were responding to a report that three people had swum over to the Texas border. Witnesses allege that the man in the river was swimming back to Mexico in order to evade capture. One of the border agents on the boat attempted to catch the swimmer using a long boat hook. A crowd gathered on the Mexican shore as onlookers shouted at the two agents to leave the man alone. Arevalo ran toward the crowd. The agents in the airboat later reported that about 20 people on the Mexican shore began throwing rocks at the boat, but Mexican witnesses vehemently denied this. One of the agents on the boat aimed and fired at least five shots at the crowd, which included children. Two bullets hit Arevalo. He was rushed to a hospital but was pronounced dead after an unsuccessful attempt to revive him.

A complaint filed by Plaintiffs in the U.S. District Court for the Southern District of Texas alleges that the agents unlawfully used excessive force. Multiple eyewitnesses directly contradict Border Patrol’s assertion that Arevalo was throwing rocks before he was killed. The plaintiffs assert that, even assuming arguendo that Arevalo was throwing rocks, the agents’ response was grossly excessive; a cellphone video of the incident demonstrates that when the agents opened fire, they were beyond the distance at which any thrown rock could pose a risk of death or serious bodily injury, and in any case, the agents could have shielded themselves by moving the boat further from the Mexican shore.

The Plaintiffs allege that the agents were acting pursuant to the Border Patrol’s “Rocking Policy,” which permits the use of lethal force against persons throwing rocks and other objects in the direction of border patrol agents. The Plaintiffs also assert that, despite condemnation from the Mexican government and international human rights organizations, high-ranking DHS and CBP officials have acquiesced to the Rocking Policy.

Plaintiffs allege that the Rocking Policy violates various international treaties as well as the sovereignty of Mexico by permitting Border Patrol agents to fire their weapons into Mexico’s sovereign territory. They also claim that the Rocking Policy violates the Fourth and Fifth Amendments. Plaintiffs seek compensatory and punitive damages, reasonable attorney fees, and other reasonable relief.

The case currently is stayed pending the Supreme Court’s decision in Hernandez, et al. v. United States.

Counsel: Robert C. Hilliard | Singleton Law Firm, APC; Hilliard Munoz Gonzales, LLP

Contact: Robert C. Hilliard | bobh@hmglawfirm.com | (361) 882 1612

Arreaga v. United States of America

Arreaga v. United States of America, 5:16-cv-00007 (S.D. Texas, Complaint filed January 19, 2016)

The complainant, a United States citizen, stopped at a U.S. Border Patrol checkpoint in Texas at approximately 11 a.m. on September 4, 2014. He told the agents that he was a United States citizen and showed them his citizenship card. The agents incorrectly believed that he was carrying drugs in his vehicle. They detained and questioned him and disassembled his truck. No drugs were found. Without probable cause, they continued to detain him for a total of approximately 17 hours, finally releasing him at about 4 a.m. the morning following his initial stop. In January 2016, Plaintiff Julio Adolfo Arreaga filed a complaint in the S.D. Tex. Discovery concluded as of December 2016.

The parties have agreed to Court-hosted mediation on May 16, 2017 at 9:00 AM.

Counsel: Javier Maldonado

Contact: Javier Maldonado, (210) 277-1603, jmaldonado.law@gmail.com

Administrative FTCA Complaint of Pregnant Minor

Administrative FTCA Complaint of Pregnant Minor (dated July 7, 2014)

Claimant, who is a minor, was taken into Border Patrol custody in May, 2014. Shortly after being taken into custody, agents took her to a hospital where it was determined that she was five months pregnant and in good health. She was released by the hospital back to the custody of Border Patrol. Sometime after her return to the Border Patrol station, she began to experience abdominal pain. She asked to be taken back to the hospital, but agents refused. The agents insisted that she remain seated even though the pain was so great she needed to lie down. Her water broke and she began to bleed. The agents refused to render aid or take her back to the hospital. Finally, another agent came to her aid and took her to the hospital. She alleges that she lost the baby because she did not receive immediate aid. The complainant decided not to file a federal lawsuit.

Counsel: Javier Maldonado

Contact: Javier Maldonado, (210) 277-1603, jmaldonado.law@gmail.com

Quezada Cuevas v. Border Patrol Agent Philip Westerman and U.S.A.

Quezada Cuevas v. Border Patrol Agent Westerman and U.S.A., No. 14-00133 (S.D. Tex. Filed Sept. 25, 2014)

Plaintiff sued Border Patrol Agent Philip Westerman in his individual capacity for injuries she suffered when he sexually assaulted her while she was in federal custody, under the effects of a pain medication and recovering in a hospital. She claims violations of her Fourth and Fifth Amendment rights. Her suit against the agent is brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). She also sues the United States under the Federal Tort Claims Act (FTCA), alleging negligence.

In April 2013, Plaintiff was apprehended by the Border Patrol near Falfurrias, Texas. While in CBP custody, she tripped and fell, injuring her right arm. The Border Patrol agents took her to a hospital in Corpus Christi, where she underwent two surgeries on her arm. After the second surgery, she was moved to a room to recuperate and given pain medication that made her extremely sleepy. She was guarded by Border Patrol agents while in this room. Additionally, her legs were restrained while she lay in bed. At one point, she woke to find Agent Westerman, who was alone in the room with her, with his fingers in her vagina. His penis was exposed. He forced her to take his penis in her uninjured left hand, where he ejaculated into it. Although she tried to push him away, she was unable to do so with only her left hand free. Agent Westerman wiped his hand with a towel and threw it in the trash can. The plaintiff was able to retrieve the towel. Because of the verbal abuse and threats she had already experienced from the other Border Patrol agents, she was afraid to tell anyone what happened. Subsequently, agent Westerman was again alone in the room with her and exposed his penis to her. Before he could do more, another agent came into the room and he quickly zipped up his pants. Plaintiff later told a nurse what happened. The hospital staff dismissed the agents from the room. The local police and sheriff deputies arrived and took at statement and the towel.

On February 4, 2015, the government filed a motion to dismiss Plaintiff’s FTCA claims. The government argued that the discretionary function exemption deprived the court of subject matter jurisdiction over a claim arising from conduct by Border Patrol Agent May (who was also guarding Plaintiff’s hospital room), that Plaintiff had failed to allege sufficient facts to show that Agent May had a duty to control Defendant Westerman’s conduct, and that Defendant Westerman had acted outside the course and scope of his official duties. The parties are currently engaged in initial discovery on the government’s motion to dismiss, which is scheduled to conclude by June 15, 2015. Plaintiff filed a second amended complaint on August 28, 2015.  On September 15, 2015, the District Court denied Defendant’s Motion to Dismiss the First Amended Complaint as moot.

Defendant United States filed a second motion to dismiss on October 2, 2015. On November 10, 2016, the District Court granted in part and dismissed in part the government’s motion to dismiss, finding that the case could proceed regarding Agent May’s potential negligence in leaving Agent Westerman alone with the Plaintiff.

On November 26, 2016, the United States filed an answer to Plaintiff’s amended complaint.

Counsel: Javier Maldonado

Contact: Javier Maldonado, (210) 277-1603, jmaldonado.law@gmail.com

In Re: Honduran minor

In re: Honduran minor

In this matter, a Honduran citizen in removal proceedings moved to terminate the proceedings based upon the treatment he received as a minor in both CBP and ICE custody. In 2013, when he was 17 years old, he traveled alone from Honduras to the United States. Once in the United States, he was apprehended by a Border Patrol agent. He informed the agent of his age, but the agent responded that he did not believe him. Although he was initially placed in a holding cell with children, he was soon moved to one with only adult men, none of whom were related to him. He was not provided with the notice of rights that CBP is required to serve on minors. Instead, he was coerced into signing a voluntary departure form which incorrectly listed his birth date as a year earlier, thus implying that he was 18 rather than his actual age of 17.

After signing the voluntary departure order, he was made to shower in a cell with adult males. Soon after this, he was put on a plane and transferred to ICE custody in New Jersey. In all, he spent 8 days detained with adult men before finally convincing ICE officials that he was a minor.

In his motion to terminate, the Honduran citizen alleged that CBP and ICE officials violated his rights under the INA, federal regulations, and the settlement agreement in Reno v. Flores, 507 U.S. 292, 296 (1993). He argued that termination was a proper remedy because the rights that were violated were fundamental ones; because the officials conduct shocked the conscience; and because he suffered prejudice affecting his rights and the fundamental fairness of the removal proceeding.  Following the approval of the Honduran citizen’s I-360 petition for Special Immigrant Juvenile Status, the parties voluntarily terminated this action.

Counsel: The Door, Legal Service Center

Contact: Anthony Enriquez and Elizabeth Jordan, (212) 941-9090, ext. 3426, ejordan@door.org

In the Matter of XXXXX

In the Matter of XXXXX – Redacted Motion to Terminate Removal Proceedings (based on custody conditions and failure to report child abuse)

Respondent, a 15 year old unaccompanied minor, was arrested by border patrol agents in Texas. CBP detained her in an icebox, and failed to provide her with sufficient food, water, clothing and shelter or medical assistance for approximately eleven days. Respondent was not permitted to shower, brush her teeth or go outside.  She was given only a nylon blanket and forced to sleep on the cold floor in a room crowded with other people.  She became physically sick with cough and fever.

Respondent subsequently was placed in removal proceedings. She subsequently moved to terminate the proceedings, arguing that the agency’s conduct violated the Fifth Amendment, the  terms of the settlement agreement in Flores v. Reno, 8 USC 1232(b) (requiring transfer of unaccompanied minors to custody of the Department of Health and Human Services within 72 hours), and that the agency’s failure to report the conduct as child abuse constituted a crime under 18 USC 2258.  The immigration judge denied the motion to terminate proceedings on February 4, 2015.  The Board of Immigration Appeals subsequently denied an interlocutory appeal.

Counsel: Bryan Johnson

Contact:  Amoachi & Johnson, PLLC, (631) 647-9701, Bryan@amjolaw.com

Hernandez v. United States of America, sub nom. Hernandez v. Mesa

Hernandez v. United States of America, Nos. 11-50792, 12-50217, 12-50301 (5th Cir.), sub. nomHernandez v. Mesa, No. 15-118 (U.S.)

On June 7, 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, was playing with a group of friends on the Mexican side of the border near the Paso del Norte Bridge in El Paso, Texas.  The boy and his friends were playing a game in which they ran up the incline of a cement culvert, touched the fence separating the US and Mexico and then ran back down the incline.  While they were playing, U.S. Border Patrol Agent Jesus Mesa, Jr. stopped one of Hernandez’s friends, and Hernandez retreated and observed from beneath the pillars of the Paso del Norte Bridge (on the Mexico side).  Agent Mesa, standing on U.S. soil, fired at least two gun shots from within the country.  One of the bullets hit the boy in the face and killed him.

The boy’s parents sued, raising claims against the United States, Agent Mesa, and unknown federal employees. The district court dismissed the claims for various reasons.  On June 30, 2014, a three-judge panel of the Fifth Circuit Court of Appeals reversed the lower court in part and affirmed in part.  Although the Court affirmed parts of the district court’s decision, significantly, it ruled that the boys’ parents could bring a Fifth Amendment claim against Agent Mesa.  In so holding, the court determined that the child had a Fifth Amendment right to be free from actions that “shock the conscience.” Both the United States and Agent Mesa asked the Fifth Circuit to rehear (reconsider) the court’s decision.

On November 5, 2014, the court granted en banc rehearing and vacated its earlier decision.  On January 21, 2015, the en banc panel heard oral argument. On April 24, 2015, the Fifth Circuit issued an en banc opinion. On the question of the violation of Sergio’s rights under the Fourth Amendment, the court held that Plaintiffs could not assert a Fourth Amendment claim because Sergio had no significant voluntary connection to the United States and because was physically in Mexico when Agent Mesa shot him. The court further held that Plaintiffs could not assert a Fifth Amendment claim because, at the time of the shooting, no case law reasonably warned Agent Mesa that the prohibition on excessive force applied in this situation.

On July 23, 2015, Plaintiffs filed a petition for writ of certiorari with the Supreme Court. Briefing on the petition was completed on March 18, 2016, and included a brief filed by the Solicitor General (at the request of the Court).  The Court rescheduled the conference date for the case on June 13, 2016. On October 11, 2016, the Supreme Court granted certiorari and agreed to hear the case. The questions that the court will address are “(1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents.”

On February 21, 2017, this case was argued in front of the Supreme Court.

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Moreno v. United States Customs and Border Protection Officer Mario Unate

Moreno v. United States Customs and Border Protection Officer Mario Unate and the United States of America., No. 3:14-CV-04266-B (N.D. Tex., filed Dec.3, 2014)

On December 2, 2012 around 5pm, Jorge Moreno Villegas, who is Hispanic, was driving a pick-up truck on a highway outside of Ozona, Texas with a Hispanic colleague as a passenger.  The men were on their way home from work.  Passing in the opposite direction, a Border Patrol agent saw the two men and, turning his vehicle around, squeezed it in between Mr. Moreno’s truck and the vehicle behind it. It is undisputed that Mr. Moreno had not committed any driving violations.  The agent stopped Mr. Moreno and began questioning him and his passenger about their immigration status and citizenship.  The men declined to respond.  The agent then began questioning them in Spanish and ordered Mr. Moreno to exit the truck.  The agent proceeded to handcuff Mr. Moreno and place him in the back of his vehicle.  He did the same for the passenger.

On December 3, 2014, Mr. Moreno filed a complaint against the agent.  He alleges that the agent stopped him without consent or legal authority and was motivated solely by his Hispanic appearance and that of his passenger.  Mr. Moreno brings a claim against the agent for violating the Fourth Amendment to the United States Constitution and an FTCA claim against the United States for false imprisonment and assault.

On February 12, 2015, Defendants moved to dismiss Mr. Moreno’s FTCA claim for false imprisonment on the basis that he had failed to plead facts regarding his immigration status, and that the arrest would have been lawful if he had told the agent that he was not legally present in the United States. Finding that the Border Patrol agent had pulled Mr. Moreno over solely based on his Hispanic appearance, the Court concluded that he lacked reasonable suspicion or probable cause for the stop and thus denied Defendants’ motion.

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

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

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