J.I. v. USA

J.I. v. USA, Case No. 1:18-at-00185 (N.D. Cal. filed March 15, 2018)

In the summer of 2016, J.I., a minor, traveled from Guatemala with her older sister to reunite with their mother in the United States. The sisters became lost in the area near the Presidio, Texas and Ojinaga, Chihuahua border. Afraid and thirsty, the sisters flagged down Border Patrol agents for help. The sisters were then taken into custody.

Once J.I. was in custody, a Border Patrol agent removed her from the cell she was in with her sister and took her to a small room, where he forced J.I. to remove her clothing and expose her breasts and genitalia. He then assaulted and battered J.I..

On March 21, 2017, J.I. submitted an administrative claim to the U.S. Department of Homeland Security (“DHS”) and U.S. Customs and Border Protection (“CBP”), as required under the Federal Tort Claims Act (“FTCA”) . In a letter dated September 27, 2017,CBP replied for all named agencies and denied in full the administrative tort claim.

On March 15, 2018, the ACLU of Northern California filed an FTCA lawsuit against CBP alleging assault and battery, false imprisonment, intentional infliction of emotional distress, and negligence . The lawsuit also includes constitutional claims (violations of the Fourth and Fifth Amendments).

Counsel: ACLU of Northern California

Contact:  Julia Mass| ACLU of Northern California |jmass@aclunc.org

 

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R.M.H. v. Lloyd

On October 30, 2017, the ACLU Immigrants’ Rights Project, the ACLU of Texas, and Washington Square Legal Services, Inc. filed suit against the Office of Refugee Resettlement and CBP following the arrest and detention of 10-year-old Rosa Maria Hernandez, who came to the United States when she was three months old and who suffers from cerebral palsy. On October 24, 2017, Rosa Maria was on her way to a children’s’ hospital for gall bladder surgery when the vehicle she was in, driven by a U.S. citizen, was stopped at a Border Patrol checkpoint. Despite being told that she was on her way to the hospital for an imminent surgery, Border Patrol agents detained her for thirty minutes before allowing her to depart.

Agents then followed her to the hospital, went inside, and tracked her movements up to and during the time that she was in surgery. When attorneys for the hospital told the agents that they had to leave, the agents refused to do so, telling the hospital that they intended to arrest Rosa Maria and deport her when she was released from the hospital. When she was discharged the day after her surgery, the agents arrested her directly from her hospital bed and forcibly took her to an Office of Refugee Resettlement Shelter for unaccompanied minors.

On October 30, 2017, counsel for Rosa Maria filed a lawsuit alleging that the Border Patrol’s actions violated Rosa Maria’s statutory and constitutional rights, and sought a temporary restraining order seeking her immediate release. On November 3, 2017, the government released her to the care of her family. The case was voluntarily dismissed the same day. On January 8, 2018, the Border Patrol announced that it would take steps to expedite emergency medical vehicles through checkpoints.

Serrano v. CBP

On September 6, 2017, the Institute for Justice brought a class action suit against Customs and Border Protection over the agency’s practice of engaging in civil forfeiture of vehicles at ports of entry on the U.S.-Mexico border. The plaintiff, Gerardo Serrano, was detained in 2015 when crossing into Mexico at the Eagle Pass, Texas port of entry. After CBP officers found a small amount of pistol ammunition in his truck, they seized the vehicle. CBP held his truck for over two years without ever filing a civil forfeiture action in court against him, despite requiring him to post thousands of dollars for a bond purportedly to allow him to challenge the seizure. Because the agency never filed a forfeiture action, Mr. Serrano was given no opportunity to have his day in court and challenge CBP’s seizure.

His complaint alleges that CBP seizes hundreds of vehicles owned by American citizens each year and refuses to hold prompt post-seizure hearings at which the owners can challenge the seizure. The class action suit seeks declaratory and injunctive relief requiring CBP to hold prompt post-seizure hearings, as well as compensation for Mr. Serrano. In October 2017, CBP returned Mr. Serrano’s truck without subjecting it to a forfeiture action. On December 13, 2017, the Defendants moved to dismiss the suit.

As of February 2018, a decision on the Motion to Dismiss remains pending.

Counsel: Anya Bidwell & Robert Everett Johnson | Institute for Justice

Al Otro Lado, et al. v. John Kelly, et al.

Al Otro Lado, et al. v. John Kelly, et al., Case No. 2:170cv05111 (C. D. Cal. filed July 12, 2017)

On July 12, 2017, the American Immigration Council, along with the Center for Constitutional Rights and Latham & Watkins, LLP, filed a class action lawsuit challenging U.S. Customs and Border Protection (“CBP”)’s unlawful practice of turning away asylum seekers who present themselves at ports of entry along the U.S.-Mexico border.

The Plaintiffs in the case are Al Otro Lado (a non-profit legal services organization that serves indigent deportees, migrants, and refugees in Los Angeles and Tijuana) and six courageous asylum seekers who experienced CBP’s unlawful conduct firsthand.  Their experiences demonstrate that CBP uses a variety of tactics—including misrepresentation, threats and intimidation, verbal and physical abuse, and coercion—to deny bona fide asylum seekers the opportunity to pursue their claims.  The complaint alleges that CBP’s conduct violates the Immigration and Nationality Act, the Administrative Procedure Act, the Due Process Clause of the Fifth Amendment, and the doctrine of non-refoulement under international law.

On November 13, 2017, Plaintiffs filed a motion for class certification, which included dozens of declarations from asylum seekers CBP had turned away at the border. On November 28, 2017, the Court granted Defendants’ motion to transfer venue to the Southern District of California and dismissed all pending motions without prejudice. On December 15, 2017, Defendants again filed a motion to dismiss, and Plaintiffs opposed that motion. On February 5, 2018, Defendants filed a reply to Plaintiff’s opposition. The decision is pending as of April 2018.

Counsel: Latham & Watkins LLP | American Immigration Council | Center for Constitutional Rights

Contact: Manuel A. Abascal | Latham & Watkins LLP | manny.abascal@lw.com | 213-485-1234

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

FTCA 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.

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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.

As of February, 2018, the case is stayed pending the Fifth Circuit’s decision in Hernandez, et al. v. Mesa, following that case’s remand from the Supreme Court.

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

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

Complaint Against CBP Over Failed Policies Regarding Return of Belongings

Complaint Against CBP Over Failed Policies Regarding Return of Belongings

On April 6, 2016, the New Mexico ACLU Center for Border Rights, along with the Programa de Defensa e Incidencia Binacional and other partners, filed a complaint with DHS which documented 26 cases in which belongings—including important identity documents, money, and irreplaceable personal items—were confiscated by Border Patrol agents from individuals they apprehended and never returned at the time that the individuals were deported.  The reported cases highlight the devastating consequences that can flow from the loss of critical documents and money.  These 26 incidents are illustrative of the serious systemic problems with respect to CBP’s policies on return of belongings, including the ability for individual agent’s to abuse the system.

Counsel: Programa de Defensa e Incidencia Binacional, ACLU of New Mexico Regional Center for Border Rights, ACLU Foundation of Texas, American Immigration Council, National Immigration Project of the National Lawyers Guild

Contact: Kristin Love | klove@aclu-nm.org | (505) 266-5915 extension 1007

Administrative Complaint Re: Extreme Temperatures in CBP Short Term Detention Facilities

Administrative Complaint Re: Extreme Temperatures in CBP Short Term Detention Facilities

On February 2, 2016, NIP/NLG, in collaboration with Programa de Defensa e Incidencia Binacional  and the ACLU of New Mexico, filed an administrative complaint on behalf of persons held by CBP in short-term detention facilities where they are exposed to extreme temperatures. The administrative complaint also challenges the agency standards  addressing temperature controls in short-term facilities, but asserts that the agency fails to abide even by these standards.

Shortly after the complaint was filed, DHS OIG announced that it would inspect short-term detention facilities.

Counsel: Programa de Defensa e Incidencia Binacional (PDIB) | National Immigration Project of the National Lawyers Guild | ACLU of New Mexico

Contact: Trina Realmuto | National Immigration Project of the National Lawyers Guild | trina@nipnlg.org

FTCA Administrative Complaint by Immigrant Mothers’ Against DHS/CBP/ICE

FTCA Administrative Complaint by Immigrant Mothers’ Against DHS/CBP/ICE

On August 10, 2015, five immigrant mothers sent administrative complaints to the Department of Homeland Security under the Federal Tort Claims Act for the abuses the women and their children had suffered while detained in ICE custody. These women, who fled their home countries due to endemic violence suffered at the hands of criminal gangs and intimate partners, sought asylum in the United States. After entering the custody of CBP/ICE, they endured deplorable detention conditions, including woefully inadequate medical and mental health care, little to no legal information as to their rights and/or fates, no educational services for the detained children, and lack of access to necessities such as food, water, clothing, and bathing facilities.

Counsel: R. Andrew Free | Barrett, Johnston, Martin & Garrison, LLC

Contact: R. Andrew Free | (615) 244-2202 | Andrew@ImmigrantCivilRights.com

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