Gallegos v. United States of America, et al

Gallegos v. United States of America, et al., No. 5:14-cv-00136 (S.D. Tex., 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 was stayed pending the Fifth Circuit’s decision in Hernandez, et al. v. Mesa, following that case’s remand from the Supreme Court. On May 29, 2018, the parties filed a joint advisory on the Fifth Circuit’s decision in Hernandez v. Mesa, 885 F.3d 811 (5th Cir. 2018). As of August 2018, the case remains pending.

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

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

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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

Press coverage:

FTCA Administrative Complaint of Honduran Family Denouncing the Hieleras (dated July 18, 2015)

John Doe and Jane Roe v. United States, 3:16-cv-856 (Mid. Dis. Nash. Filed May 12, 2016)

Claimants—a husband and wife—fled to the United States from their native Honduras in 2013 in an attempt to escape severe violence. In the six months preceding their trek north, Claimant Wife’s family had been targeted by a criminal organization, which murdered her brother outside the family business, beat her mother into a coma, and raped her 12-year-old cousin. Fearing for their safety, Claimant Wife (then nearly eight months pregnant) and Claimant Husband fled for the United States, taking their two-year-old son with them. After crossing the border, the family turned themselves in to CBP officers at the Weslaco Station in the Rio Grande Valley Sector and requested asylum. In July 2015, they filed an administrative complaint against the United States for the serious mistreatment they suffered while in CBP custody. They raise claims of negligence, gross negligence, invasion of privacy, false imprisonment, and intentional infliction of emotional distress.

The family was taken to a detention center referred to as a “hielera” (“freezer” or “icebox”), where they were stripped of extra layers of clothing and their baby supplies (including diapers) were confiscated. The cell was so cold that Claimant Wife’s fingers turned color and her teeth chattered. Claimant Wife and the couple’s toddler were placed in a female-only cell with about 65 other people, including about 40 children ranging in age from newborn to 18. They were fed cold burritos and bologna sandwiches, but the youngest children could not eat them as they could not yet eat adult food. Claimants’ toddler son developed severe diarrhea but Claimant Wife was not provided with adequate supplies to clean him, such that the diarrhea leaked through the boy’s diapers.

CBP failed to provide Claimant Wife, her son, and the rest of the women and children in their cell with a bed, warm clothes, blankets, adequate edible food and potable water, and enough toilet paper or other cleaning supplies. The lights were on the entire time the family was in detention. Those who requested even the slightest accommodation were ridiculed, mocked, and even yelled at by CBP officers. As a result of these conditions, Claimant Wife and her child were unable to sleep more than a few minutes at a time. Children cried incessantly about the cold and lack of food and water.

Experiencing severe stomach pain and concerned about having to give birth in those filthy conditions, Claimant Wife begged for medical treatment. She was eventually taken to a nearby hospital, where the medical staff determined that she was in the process of dilation and informed CBP in writing that Claimant Wife was not medically able to travel. The staff also instructed Claimant Wife and (upon information and belief) CBP staff that she should be released from detention so as to prevent preterm labor and minimize the risk of medical harm to her and the baby, but CBP returned Claimant Wife to detention instead.

Over the next day, the family attempted to obtain information about their release and were only released after successfully convincing a CBP officer to check the doctor’s release order. Previously, CBP officers had told Claimant that she should not have her baby in detention, threatening her with prolonged detention and her husband’s deportation back to Honduras if she did so. When Claimants asked for medical treatment for their young son, who was visibly ill and dehydrated form diarrhea, they were told that if the officers took him to get medical attention, it would take longer for the family to be released. The officers also made clear to the family that they did not qualify and could not apply for asylum.

After nearly 72 hours in the freezing hielera without access to adequate food, water, hygiene, necessities, blankets, bedding, warmth, sleep, and medical care, CBP released the family by leaving them at a bus station in the middle of the night.

Claimants filed an administrative FTCA complaint on July 18, 2015, and suit in federal district court in May 2016. On August 19, 2016, the government filed a motion to dismiss the case. On October 26, 2017, the Court denied the government’s motion to dismiss, holding that the plaintiffs had sufficiently alleged injuries caused by the Defendant’s misconduct.

On January 23, 2018, the case was resolved following a voluntary dismissal of the action.

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

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

Alba Quinonez Flores v. United States of America

Alba Quinonez Flores v. United States of America
No. 1:14-cv-03166 (E.D.N.Y. Filed May 20, 2014)

Filed under the Federal Tort Claims Act, this suit seeks damages for the physical and psychological injury Ms. Quinonez Flores suffered at the hands of CBP while she was detained in holding cells, known as hieleras (iceboxes), in CBP’s Rio Grande Valley Sector. The complaint alleges that CBP negligently placed Ms. Quinonez Flores in detention conditions that they knew or should have known posed a substantial risk of harm, failed to oversee the agents who managed the day-to-day operations of the detention facilities, and that their acts and omissions constituted the intentional infliction of emotional distress. For more information regarding this case, see Texas, FTCA Administrative Complaints.

On December 30, 2014, Defendants moved to transfer venue, arguing that venue was not proper in the E.D.N.Y. because Plaintiff was not lawfully present in the U.S. The court denied Defendants’ motion on June 12, 2015.

Thereafter, CBP offered to settle the case for $80,000. On February 4, 2016, after Plaintiff accepted the offer, the parties stipulated to the dismissal of the suit.

Counsel: Law Office of David K.S. Kim, PC; Kurzban, Kurzban, Weinger; Americans for Immigrant Justice

Contact: Ira Kurzban | Kurzban, Kurzban, Weinger | 305-444-0060 | ira@kkwtlaw.com

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 agreed to Court-hosted mediation on May 16, 2017. On July 13, 2017, the case was dismissed following a settlement between the parties.

Counsel: Javier Maldonado

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

FTCA Administrative Complaint of Pregnant Minor

FTCA Administrative 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)

In April 2013, Plaintiff Quezada Cuevas was apprehended by the Border Patrol near Falfurrias, Texas. While in CBP custody, she tripped and fell, injuring her right arm. 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. At one point, she woke to find Agent Westerman, who was alone in the room with her, with his fingers in her vagina and his penis exposed. Agent Westerman forced Ms. Cuevas to touch his penis with her uninjured hand, and he ejaculated into it. Although she tried to push him away, she was unable to do so. Agent Westerman wiped his hand with a towel and threw it in the trash can.

Because of the verbal abuse and threats she had already experienced from the other Border Patrol agents, Ms. Cueva initially 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 had happened. The hospital staff dismissed the agents from the room and called local law enforcement. The local police and sheriff deputies arrived and took a statement and the towel Agent Westerman had tried to throw away.

Ms. Cuevas sued Agent Westerman in his individual capacity pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), for violations of her Fourth and Fifth Amendment rights. She also sued the United States for negligence under the Federal Tort Claims Act (FTCA). Ms. Cuevas specifically alleged that the other Border Patrol agent who had been guarding her hospital room, Agent May, had a duty to control Defendant Westerman’s conduct, and that CBP was negligent in failing to assign a female agent to safeguard her while she was in the hospital.

On February 4, 2015, the government filed a motion to dismiss Plaintiff’s FTCA claims, arguing that the discretionary function exemption to the FTCA deprived the Court of subject matter jurisdiction over the claim arising from Border Patrol agent May’s conduct. The Court held 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.

Plaintiff filed a second amended complaint on August 28, 2015.   The United States filed a second motion to dismiss on October 2, 2015.

On November 10, 2016, the District Court granted in part and dismissed that motion in part, The Court dismissed Ms. Cueva’s assault claim and negligence claim arising from CBP’s failure to assign a female agent to watch Plaintiff’s hospital room..  The Court, however, denied the United States’ motion to dismiss the negligence claim arising from the fact that another Border Patrol agent r who was in Ms. Cuevas’ room had failed to prevent the assault.

Thereafter, the United States answered Plaintiff’s amended complaint. Subsequently, the United States moved for summary judgment on Ms. Cuevas’ remaining negligence claim. Plaintiff has opposed this motion, which remains pending before the Court as of April 2018.

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