Category Archives: Texas

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

Moore v. U.S. Immigration & Customs Enforcement

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Moore v. U.S. Immigr. & Customs Enf’t, No. EP-19-CV-00279-DCG, (W.D. Tex., filed Oct. 1, 2019)

From June 2018 to March 2019, Plaintiff Robert Moore, a journalist, submitted five Freedom of Information Act (FOIA) requests to U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and the U.S. Department of Health and Human Services (HHS), seeking critical records related to border enforcement, fundamental shifts in the treatment of people seeking asylum, and operation of immigration detention facilities in El Paso. Among other requests, Mr. Moore asked that CBP release any and all directives, emails, text messages and other communications from CBP officials regarding the handling of people seeking asylum at ports of entry when port facilities are at “capacity.” He also requested information related to CBP’s use of a “field force demonstration” in a community next to the border on the day of mid-term elections in November 2018. When the three agencies failed to timely produce responsive records, Mr. Moore filed a lawsuit on October 1, 2019, to compel the agencies to conduct searches and produce responsive records.

On December 18, 2019, Plaintiff filed a motion for judgment on the pleadings. The Court stayed the motion and set a production schedule.

In a series of motions, the parties have litigated the speed at which CBP must review and produce responsive records, notwithstanding the limitations imposed by the COVID-19 pandemic. On July 8, 2020, Plaintiff moved for the Court to lift the stay and to enter a finite production schedule. The Court allowed the stay to remain in place, in light of the global pandemic, but ordered a finite production schedule.  On November 19, 2020 (the day before the production deadline), at 4:56 p.m., CBP filed a motion for a new stay of proceedings pursuant to 5 U.S.C. § 552(a)(6)(C) and Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976), and to extend the deadline under the finite production schedule.

On January 12, 2021, the Court denied CBP’s request for an Open America stay. The Court ordered Defendants to respond to Plaintiff’s motion for judgment on the pleadings, ordered the parties to confer regarding a revised finite production schedule, and ordered CBP to produce weekly status reports to the Court for the duration of the case. The Court explained that the weekly reports, accompanied by a declaration, “SHALL detail CBP’s progress and developments in processing both Plaintiff’s FOIA requests and track the specific number of files/records/documents and total amount of pages reviewed that week and how many are outstanding for each individual FOIA request. Any incomplete, late, or seemingly cloned (‘copied-and-pasted’) submissions SHALL not be deemed to comply with this Order.”

The case was set for a bench trial on September 15, 2021, related to the withholding of information from CBP’s FOIA production. On September 14, 2021, CBP rolled back certain redactions from its production, resolving the issues that were to be presented at trial. The parties submitted a joint motion to retain the case while fees are resolved.

On November 17, 2021, the parties entered into a settlement agreement. Consequently, on December 15, 2021, the parties agreed to a stipulation of dismissal.

Counsel: Law Office of Lynn Coyle, PLLC

Contact: Christopher Benoit | chris@coylefirm.com | (915) 532-5544

Malik v. U.S. Department of Homeland Security

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Adam A. Malik, et al. v. U.S. Department of Homeland Security, et al., No. 4:21-cv-00088-P (N.D. Tex., filed Jan. 25, 2021) and No. 22-10772 (5th Cir., filed Aug. 11, 2022)

Adam Malik is an immigration attorney based in Texas. In January 2021, Mr. Malik returned to the United States from a trip to Costa Rica, during which he had used his phone to contact clients and work on cases in which the Department of Homeland Security (DHS) is an opposing party. When he attempted to reenter the United States through Dallas-Fort Worth Airport, Mr. Malik was sent to secondary inspection. After extensive questioning, including about his legal practice, Customs and Border Protection (CBP) officers seized Mr. Malik’s phone and informed him that its contents would be searched.

On January 25, 2021, Mr. Malik filed suit against the DHS and CBP in the Northern District of Texas. He claims that the seizure and search of his phone without probable cause or a warrant violates the First and Fourth Amendments. He also claims that CBP Directive 3340-049A, which governs the search of digital devices at ports of entry, is arbitrary and capricious, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), because it fails to adequately protect privileged legal information and impermissibly permits CBP to conduct searches and seizures that violate the First and Fourth Amendments. In addition to the return of his phone and the destruction of information and documents seized by CBP, Mr. Malik seeks injunctive and declaratory relief enjoining enforcement of CBP Directive 3340-049A and declaring it unlawful. On March 29, 2021, Defendants filed their answer to Mr. Malik’s complaint.

The parties filed cross-motions for summary judgment in early 2022. On August 4, 2022, the court granted summary judgment in favor of Defendants, holding both that Mr. Malik did not have standing to sue for declaratory relief under the APA and that no constitutional violation occurred to support the constitutional claims. Mr. Malik appealed the judgment to the Fifth Circuit.

The district court also ordered that Defendants may recover $4,542 dollars from Mr. Malik in taxable costs.

The Fifth Circuit heard oral argument on June 5, 2023. On August 15, 2023, the Fifth Circuit affirmed the district court’s decision on both grounds.

Documents:

Counsel: Roy Petty & Associates, PLLC

Contact: Roy Petty, Roy Petty & Associates, PLLC | (214) 905-1420, roy@roypetty.com

Additional links:
• Tim Cushing, Texas Immigration Lawyer Sues DHS, CBP Over Seizure and Search of His Work Phone, TechDirt.com, Feb. 2, 2021.
 

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:

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)

Gonzalez Recinos et al. v. McAleenan et al.

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Gonzalez Recinos et al. v. McAleenan et al., No. 1:19-cv-00138 (S.D. Tex. filed Aug. 16, 2019).

This lawsuit was brought as a writ of habeas corpus by individuals detained by CBP in various facilities within the Rio Grande Valley Sector of the U.S. Border Patrol.

The lawsuit alleges that CBP has subjected petitioners to inhumane treatment and harsh conditions in these facilities by: packing them into overcrowded cells for lengthy periods, where they are denied adequate food, water, medical attention, and sanitation facilities, providing inadequate food and water, unsanitary toilets, showering and bathing facilities, and no access to phones, beds, or medical assistance. Petitioners are also alleging that it is CBP’s pattern or practice to deny access to family members and legal counsel.

Plaintiff-petitioners filed an amended petition on July 20, 2019, and a motion for preliminary injunction on August 12. The district court held a hearing on that motion on September 6, 2019. In October of 2019, the court denied plaintiffs’ motion for preliminary injunction under the rationale that granting the requested relief would impose a substantial burden on CBP. The parties then stipulated to dismiss the case.

Counsel: Elisabeth (Lisa) Brodyaga, Refugio del Rio Grande; Jaime M. Diez, Jones and Crane; Thelma O. Garcia, Law Office of Thelma Garcia; Luis Campos, John Becker & Wesley D. Lewis, Haynes and Boone, LLP; Efrén C. Olivares, Texas Civil Rights Project

Contact: Lisa Brodyaga | Refugio del Rio Grande | 956-421-3226 | LisaBrodyaga@aol.com

Blanca Gomez Arellano v. United States

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Blanca Gomez Arellano v. United States, No. 2:19-cv-00141 (S.D. Tex., filed May 13, 2019).

This is a wrongful death lawsuit brought by a mother whose son died trapped in a tractor-trailer container while the vehicle was impounded by U.S. Customs and Border Protection (CBP). On October 13, 2017, CBP officers detained a tractor-trailer for inspection and discovered an undocumented individual inside. CBP then took the driver and undocumented individual into custody and impounded the truck. Three days later, CBP officers noticed a foul smell and liquid leaking from the truck, and they contacted the local sheriff’s department, who found a decomposing body.

The complaint alleges claims under the Federal Tort Claims Act for negligence, gross negligence, assault and battery, false imprisonment, and intentional infliction of emotional distress. A policy manual currently in effect directs CBP officers that “all closed containers must be opened and their contents inventoried” upon the impounding of a vehicle. The compartment in which the victim’s body was found was clearly marked as a “Liftable Lower Bunk.” The complaint alleges that the officers acted negligently or recklessly to cause the victim’s death. The government moved to dismiss the complaint in May of 2019. The case was consolidated with a related case filed by the decedent’s widow, Ramirez v. Garcia, No. 2:18-cv-446 (S.D. Tex.).

On October 30, 2019, the court dismissed all of the plaintiffs’ FTCA claims on the basis that the customs-duty exception to the FTCA’s waiver of sovereign immunity applied and barred recovery. The court then remanded the remaining state law claims to the 92nd Judicial District of Hidalgo County, Texas.

Counsel: Texas Civil Rights Project

Contact: Efrén C. Olivares | efren@texascivilrightsproject.org

Gomez Vincente v. United States of America & Barrera

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Gomez Vincente, et al., v. United States of America, et al., No. 5:20-cv-00081 (S.D. Tex., filed May 12, 2020)

On May 24, 2018, Border Patrol agent Romualdo Barrera shot and killed Claudia Patricia Gómez González, a twenty-year-old Guatemalan woman, several hundred yards from the U.S.-Mexico border in Rio Bravo, Texas. Claudia was walking through Rio Bravo with a few other people when Agent Barrera confronted the group. Although several members of the group began running, Claudia remained where she was. Agent Barrera drew his weapon, and when Claudia – a petite woman who was not carrying anything that could even remotely be perceived to be a weapon – took a step forward, the agent aimed at her, pulled the trigger, and shot her in the head.

Following the shooting, U.S. Customs and Border Protection (CBP) issued a press release claiming that members of Claudia’s group had attacked the agent with “blunt objects” and that Claudia was one of the assailants. It later retracted that statement and issued a new one, removing any references to the blunt objects or allegations that Claudia had assaulted the agent.

On May 23, 2019, Claudia’s family filed an administrative claim under the Federal Tort Claims Act (FTCA) for Claudia’s wrongful death, seeking substantial damages and hoping to ensure accountability for the officials’ unlawful acts. When more than six months passed after filing the claim without any action by the agencies, Claudia’s family filed a federal suit against the United States for common law battery, negligence, gross negligence, and reckless conduct pursuant to the FTCA, and against the agent who killed Claudia for excessive, unreasonable force and deprivation of due process in violation of the Fourth and Fifth Amendments to the U.S. Constitution.

On May 13, 2020, the Plaintiffs filed an emergency motion to expedite discovery, which the court granted in part and denied in part on May 19, 2020. On September 9, 2020, Defendants filed their answer. On September 29, 2020, Defendant Barrera filed a motion to dismiss the Bivens claims against him. On December 1, 2020, the court granted the U.S.’s motion to stay the case pending an FBI investigation of Claudia’s death.

The stay was lifted on July 8, 2021. On July 19, 2021, Magistrate Judge John Kazen issued a Report and Recommendation (R&R) recommending the district court dismiss all Bivens claims. On August 2021, Plaintiffs filed their objections to the R&R. On September 29, 2021, United States District Judge Diana Saldaña adopted the Magistrate Judge’s R&R in part and dismissed all Bivens claims.

The parties settled the remaining FTCA claims for an undisclosed amount. The case was dismissed pursuant to a stipulation of dismissal.

Counsel: Kirkland & Ellis LLP; ACLU of Texas; ACLU Immigrant Rights Project

Contact: Edgar Saldivar | ACLU of Texas | esaldivar@aclutx.org

FTCA Administrative Complaint on behalf of US Citizen deported by CBP

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FTCA Administrative Complaint on behalf of US Citizen deported by CBP

In September of 2018, Julio Cesar Ovalle filed an administrative complaint against the Department of Homeland Security under the Federal Tort and Claims Act for being unlawfully seized and wrongfully deported last June. Mr. Ovalle, 24, is a U.S. citizen who was born in Los Angeles.

Ovalle, a resident of San Antonio, was stopped by a Border Patrol agent on June 11, 2018 while walking along Portanco Road toward his neighborhood. The agent asked for his “papers,” and refused to believe Ovalle’s assertions of his citizenship. Ovalle told the officer he had a passport and other documentation at home, but the agent did not listen and instead took Ovalle’s phone and transported him to the Border Patrol station in Cotulla. Ovalle was deported the next day to Nuevo Laredo.

In Mexico, Ovalle was kidnapped by cartel members and held for ransom with a group of about 80 other immigrants, including recent deportees. Ovalle’s family called Laredo police, who referred them to the FBI. Ovalle was eventually released at one of the international bridges in Nuevo Laredo, and returned to the U.S.

Counsel: Javier Espinoza Garcia | Espinoza Law Firm, PLLC

Press coverage:

Nwaorie v. CBP, et al.

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Nwaorie v. U.S. Customs and Border Protection, et al., No: 4:18-cv-1406 (S.D. Tex., filed May 3, 2018); 19-20706 (5th Cir., filed Oct. 8, 2019)

On May 3, 2018, the Institute for Justice filed a class-action lawsuit challenging U.S. Customs and Border Protection’s (CBP) policy or practice of demanding that owners of seized property sign “hold harmless” agreements for the return of their property, and thereby waive certain constitutional and statutory rights.

On October 31, 2017, CBP seized approximately $40,000 cash from the named Plaintiff, Anthonia Nwaorie, a U.S. citizen, while she was trying to board an international flight to Nigeria. Ms. Nwaorie intended to use more than $30,000 of the funds she had saved up from her work as a nurse to start a medical clinic in Nigeria for women and children.

In December 2017, Ms. Nwaorie, in compliance with the Civil Asset Forfeiture Reform Act (CAFRA), submitted a claim, requesting judicial forfeiture proceedings. When CBP failed to file a forfeiture complaint within 90 days, it became statutorily required to return the seized property.

However, instead of doing so, in April 2018, CBP mailed Ms. Nwaorie a letter, which conditioned the return of her seized cash on her signing a hold harmless agreement. If she did not sign the agreement to waive her statutory and constitutional rights and to indemnify the government for any claims brought by others related to the seized property, CBP threatened to initiate forfeiture proceedings against her. After filing the lawsuit, CBP finally sent her a check in the amount confiscated.

On July 23, 2018, Defendants moved to dismiss all claims, arguing that they are moot and barred by sovereign immunity. On August 27, Plaintiff filed her opposition to Defendants’ motion. Defendants filed a reply in support of their motion on September 4, and Plaintiff filed a surreply on October 3. As of October 2018, the motion is pending.

In May 2019, a magistrate judge recommended dismissal, finding that sovereign immunity barred the claims, and alternatively, the government’s return of Ms. Nwaorie’s money rendered her claims moot. The magistrate judge also recommended dismissal of Nwaorie’s constitutional claims, finding that CBP had a rational basis to subject her to additional searches because of the large amount of money she was carrying.

The plaintiff filed an objection to the magistrate’s memorandum and recommendations. • Unfortunately, the district court judge affirmed the magistrate judge’s recommendations and dismissed the case in August 2019. The Fifth Circuit Court of Appeals affirmed the lower court’s decision that Ms. Nwaorie lacked standing, failed to state a claim, and was barred by sovereign immunity. Ms. Nwaorie filed a petition for panel rehearing, followed by a petition for rehearing en banc, both of which were denied by the Fifth Circuit.

Press Releases:

Counsel: Institute for Justice

Contacts: 

Dan Alban | Institute for Justice | dalban@ij.org

Anya Bidwell | Institute for Justice | abidwell@ij.org