Category Archives: Uncategorized

American Immigration Council v. CBP

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American Immigration Council and Center for Gender and Refugee Studies v. U.S. Customs and Border Protection, et al., No. 3:23-cv-5270 (N.D. Cal., filed Oct. 16, 2023)

In early 2023, U.S. Customs and Border Protection (CBP) implemented a new policy requiring asylum seekers approaching ports of entry (POEs) along the southern border to first schedule an appointment through the CBP One mobile application. Under the CBP One Turnback Policy, CBP officers turn away most asylum seekers who have not made an appointment through CBP One, thereby endangering asylum seekers who must remain in potentially dangerous conditions and risk losing their asylum eligibility.

On July 11, 2023, the American Immigration Council and Center for Gender and Refugee Studies sent Defendants a Freedom of Information Act (FOIA) request, seeking to understand CBP’s policies regarding asylum seekers who approach POEs without a CBP One appointment, including the number of migrants impacted and CBP’s cooperation with authorities in Mexico. Plaintiffs requested expedited processing because of the urgency of the situation. Plaintiffs also believe that this policy directly conflicts with the federal court ruling in Al Otro Lado, Inc. v. Mayorkas, 619 F. Supp. 3d 1029 (S.D. Cal. 2022), which held that refusing to inspect asylum seekers arriving to the United States—as officers do to those without a CBP One appointment—is unlawful. CBP did not respond to the request. On October 16, 2023, Plaintiffs filed a lawsuit in federal court under FOIA to obtain the responsive documents. The parties have negotiated a proposed schedule for Defendants to produce the requested records. The parties are now engaged in settlement conversations, with a status update on settlement due to the court by October 1, 2024.

Documents:

Council: American Immigration Council ǀ Center for Gender and Refugee Studies

Contact: Raul Pinto | American Immigration Council ǀ rpinto@immcouncil.org
Neela Chakravartula | Center for Gender and Refugee Studies ǀ neela@uclawsf.edu

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International Rights Advocates Sue CBP to Block Import of Cocoa Harvested by Child Labor

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International Rights Advocates v. Alejandro Mayorkas and Troy A. Miller, No. 1:23-cv-00165 (Ct. Intl. Trade, filed Aug. 10, 2023)

International Rights Advocates, a child welfare advocate organization, filed a federal lawsuit under the Administrative Procedures Act (APA) in August 2023 asking a judge to force the Biden administration to block imports of cocoa harvested by children in West Africa that can end up in America’s most popular chocolate desserts and candies.

The lawsuit seeks declaratory and injunctive relief and requests that the federal government enforce a 1930s-era federal law that requires the government to ban products created by child labor from entering the United States. In February 2020, International Rights Advocates, along with University of California Irvine Law School Human Rights Clinic and Corporate Accountability Lab, filed a petition to Customs and Border Protection (CBP) seeking to ban the import of cocoa from Cote d’Ivoire by seven major chocolate companies, harvested in whole or in part by forced child labor. CBP failed to respond to the petition or to a follow-up inquiry signed by interested parties and organizations requesting enforcement of the law. Because the agency failed to take any action in response, Plaintiff International Rights Advocates now seeks a court order requiring government entities to comply with the law and fulfill their statutory obligations.

The petition and the complaint rely on extensive evidence documenting children cultivating cocoa destined for well-known U.S. candy makers, including Hershey, Mars, Nestle, and Cargill. The major chocolate companies pledged to end their reliance on child labor to harvest their cocoa by 2005, though now have extended the deadline to eliminate the worst forms of child labor in their supply chains by 2025.

In response to media inquiries, CBP has said it is unable to disclose information or plans regarding forced labor enforcement due to the protections afforded to sensitive information related to law enforcement activities.

On December 15, 2023, Defendants filed a motion to dismiss the claims based on lack of jurisdiction, claiming that International Rights Advocates does not have standing for the case, and failure to state a claim. Briefing, along with ordered supplemental briefing, concluded on July 11, 2024. Oral argument was held July 16, 2024. On August 8, 2024, the court dismissed the case for lack of standing, finding that International Rights Advocates did not suffer an injury in fact, and even if it had, the injury is not traceable to CBP’s inaction. On September 9, 2024, Plaintiffs filed an appeal of the Court’s decision.

Documents

Counsel: International Rights Advocates
Contact: Terrence P. Collingsworth ǀ International Rights Advocates ǀ tc@iradvocates.org

Press:

J.R.G. and M.A.R. v. United States of America

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J.R.G. and M.A.R. v. United States of America, No. 4:22-cv-5183 (N.D. Cal., filed Sept. 12, 2022)

In May 2018, J.R.G. and her then-eight-year-old daughter, M.A.R., entered the United States seeking asylum and fleeing persecution and torture in El Salvador. Shortly after they crossed the border, they were detained by U.S. Customs and Border Protection (CBP) officers. Within a day of their detention, CBP officers forcibly separated the mother and daughter from each other pursuant to the Trump administration’s family separation policy. Mother and daughter would not be reunited again until the end of March 2019 – after over ten months of forced separation.

As a direct result of the trauma inflicted upon them due to their forced separation, J.R.G. and M.A.R. suffered catastrophic emotional and mental harm that continues to this day. J.R.G. did not have any contact with her daughter for one month, after which she was finally able to speak to her daughter on the phone. During that month, she was provided almost no information about her daughter’s whereabouts, wellbeing, health, or safety, despite her relentless inquiries to detention officers. J.R.G. was unable to eat or sleep because of the stress during her months in detention, and she experienced depression and anxiety from worrying about her child. J.R.G. lost 20 pounds while incarcerated and began experiencing severe medical issues. Even after they were finally reunited, J.R.G. and M.A.R. experienced ongoing physical symptoms from the trauma they suffered.

On May 19, 2020, plaintiffs submitted a claim for damages under the Federal Tort Claims Act. Defendant agencies failed to make a final disposition on plaintiffs’ claims within six months, and J.R.G. and M.A.R. filed suit in the Northern District of California on September 12, 2022. The government filed a motion to dismiss and motion to transfer the court venue to the Western District of Texas (where the separation occurred) on December 5, 2022. A motions hearing was held on April 6, 2023, and on April 11, 2023, the court denied defendant’s motion to transfer venue and motion to dismiss. After a period of discovery, the parties entered settlement negotiations. On May 2, 2024, Plaintiffs filed their unopposed motion to approve settlement involving claims of a minor. On May 9, 2024, Defendant filed its statement of non-opposition to said motion. On July 9, 2024, the magistrate judge granted the motion to approve the settlement. On November 11, 2024, Plaintiffs filed a stipulation of dismissal.

Documents:

Counsel: Northwest Immigrant Rights Project | The Law Office of Julianna Rivera

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

Anibowei v. Morgan

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Anibowei v. Morgan, No. 20-10059 (5th Cir., appeal filed Jan. 17, 2020); Anibowei v. Wolf, Civil Action No. 3:16-CV-3495 (N.D. Tex., filed Dec. 23, 2016)

Anibowei filed a lawsuit to challenge the actions of the CBP officers—and the underlying CBP and ICE directives—as violative of the First Amendment, Fourth Amendment, and the Administrative Procedure Act (APA). He sought damages under Bivens v. Six Unknown Agents as well as injunctive and declaratory relief. Defendants moved to dismiss the complaint. On February 14, 2019, the court dismissed Anibowei’s claims under Bivens as improperly pled, with leave to replead. On March 14, 2019, Anibowei filed a second amended complaint, and shortly thereafter filed a motion for summary judgment and for a preliminary injunction. On January 14, 2020, the district court denied Anibowei’s motions for partial summary judgment and a preliminary injunction. 

George Anibowei—a U.S. citizen and licensed attorney based in Dallas, Texas—was repeatedly stopped and questioned by Customs and Border Protection (CBP) officers when returning to the United States from international travel. On several such occasions, CBP officers also searched Anibowei’s cellphone and copied the cellphone’s contents without a warrant. CBP conducted these nonconsensual searches of Anibowei’s cellphone in accordance with CBP and ICE internal directives that permit the search of electronic devices at the border without individualized suspicion.

On January 17, 2020, Anibowei appealed the district court’s decision, asking the Fifth Circuit to rule on whether searching a cellphone without exigent circumstances or a warrant violates the Fourth Amendment, even if said search is conducted at the U.S. border. On December 3, 2020, the Fifth Circuit heard oral argument in this case. On June 19, 2023, the Fifth Circuit released its decision affirming the denial of the preliminary injunction, finding that Anibowei did not show a substantial risk of irreparable harm. The court also declined to review the district court’s denial of Anibowei’s motion for summary judgment for lack of jurisdiction, and so did not rule on the question of whether the search violated the Fourth Amendment.

On August 30, 2023, Anibowei filed a petition for writ of certiorari with the Supreme Court, which was denied on January 8, 2024.

Documents

Counsel: Arnold & Porter
Contact: Andrew Tutt | Andrew.tutt@arnoldporter.com

Two Vermont residents challenge legality of warrantless search by Border Patrol in Vermont state court

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On August 12, 2018, Brandi Lena-Butterfield and Phillip Walker-Brazie were stopped by Border Patrol agents conducting a “roving patrol” in a Vermont town near the Canadian border. The agents asked for consent to conduct a search of the vehicle, which Lena-Butterfield and Walker-Brazie denied. The agents then conducted a search of the vehicle anyway, believing they had probable cause to proceed, and encountered small amounts of marijuana and hallucinogenic mushrooms that they believed to be in excess of state limits. They called the Vermont State Police, and charges were bought against both individuals by the Orleans County State’s Attorney’s Office.

Vermont’s constitution provides stronger protections for individual privacy than federal law and calls for a warrant or probable cause with urgent circumstances in order for law enforcement to conduct searches. As the Border Patrol agents did not comply with Vermont state protections, counsel for plaintiffs argue that the evidence seized cannot be used in state-level criminal prosecution.

The ACLU-VT is appealing the criminal charges against Walker-Brazie and Lena-Butterfield to the Vermont Supreme Court. In November 2019, a superior court judge in Orleans County ruled in favor of ACLU-VT’s request to file an interlocutory appeal, which allows them to ask for a ruling from the Supreme Court before the lower court case is complete. The justices heard arguments on December 15, 2020.

Press:

Counsel: American Civil Liberties Union of Vermont

Contact: Jay Diaz | ACLU-VT

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)

Mohanad Elshieky v. USA

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Mohanad Elshieky v. United States of America, No. 2:20-cv-00064 (E.D. Wash., filed Feb. 14, 2020)

U.S. Customs and Border Protection (CBP) officials unlawfully seized and detained Mr. Elshieky, an asylum recipient lawfully present in the United States, aboard a Greyhound bus in January 2019. Shortly after Mr. Elshieky boarded a Greyhound bus in Spokane, Washington, CBP officials entered the bus and began questioning and detaining people of color. A CBP official approached Mr. Elshieky and asked him to produce identification and to confirm his citizenship status. When Mr. Elshieky presented his valid Oregon driver’s license and valid USCIS employment authorization card, officers ordered him off the bus. Although Mr. Elshieky explained his immigration status—that he had been granted asylum recently—the officers accused him of possessing a forged employment authorization card and refused to believe him, saying “we’ve heard all this before” and “illegals say that all the time.” The officials continued to detain him and accused him of being unlawfully present as they confirmed his immigration status.

Mr. Elshieky filed an administrative complaint under the Federal Tort Claims Act (FTCA) on April 25, 2019, seeking $250,000 in damages for wrongful arrest and false imprisonment. CBP issued a final disposition denying the claim on September 11, 2019. On February 14, 2020, Mr. Elshieky filed a complaint in federal district court under the FTCA. On June 23, 2020, the court denied Defendant’s motion to dismiss Mr. Elshieky’s claim of discrimination under the Washington Law Against Discrimination.

After the court denied Defendants’ motion to dismiss as to Mr. Elshieky’s discrimination claim, Defendants filed their answer. Discovery is now beginning, and a bench trial has been postponed due to the pandemic. After a bench trial was postponed due to the pandemic, the case was referred to mediation and all deadlines were vacated. In March 2021, the government reached a settlement with Mr. Elshieky which included an award for damages. 

Counsel: Northwest Immigrant Rights Project | American Civil Liberties Union of Washington | Davis Wright Tremaine LLP

Contact: Matt Adams | 206-957-8611 | Northwest Immigrant Rights Project

Lisa Nowlin | 206-624-2184 | ACLU Washington

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:

DHS Family Separations FOIA

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DHS deliberately separates families in an extreme measure to discourage asylum seekers and other individuals from coming to the United States. Hundreds of immigrant children have been taken from family members at the U.S.-Mexico border, detaining them in separate facilities.

The American Immigration Council, in collaboration with the Florence Immigrant and Refugee Rights Project, National Immigrant Justice Center, Kids in Need of Defense, Women’s Refugee Commission and Wilmer Cutler Pickering Hale and Dorr LLP, filed requests for information under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552.

The requests ask for policies, guidelines, or procedures followed or used by the governmental agencies to address the processing and treatment of families at the U.S.-Mexico border and specifically, the separation of adult family members from minor children and the criminal prosecution of adult family members. Requests were filed with the Department of Justice, the Department of Homeland Security, the Office for Civil Rights and Civil Liberties, Immigration and Customs Enforcement, Customs and Border Protection, the Department of Health and Human Services and relevant sub-agencies.

FOIA Requests:

Michigan Immigrant Rights Center, et al., vs. United States Department of Homeland Security, and United States Customs and Border Patrol

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Michigan Immigrant Rights Center, et al., vs. United States Department of Homeland Security, and United States Customs and Border Patrol, No. 2:16-cv-14192 (E.D. Mich. filed November 30, 2016)

Citing concerns over potential Constitutional violations, the ACLU of Michigan, the Michigan Immigrant Rights Center, and researchers filed a federal lawsuit against DHS and CBP in 2016 for the agencies’ failure to provide information related to its “100-mile zone” policy—which CBP claims authorizes agents to engage in warrantless vehicle searches within 100 miles of any international border or waterway.

8 U.S.C. § 1357(a)(3) grants CBP authority to conduct warrantless vehicle searches and detentions within a “reasonable distance” of the border solely for the purpose of preventing illegal entry into the United States. 8 C.F.R. § 287.1(b) defines “reasonable distance” as 100 miles. The Great Lakes are considered the “functional equivalent” of an international border, and therefore the entire state of Michigan is within this “100-mile zone.”

To shed light on the 100-mile zone policy in Michigan, advocates and researchers submitted a FOIA request to DHS and CBP in 2015. Neither agency provided a legally adequate response. Instead, a few heavily-redacted documents were released. These documents underscored the need for greater public access to information about Border Patrol’s roving patrols operations and CBP’s claims that agents may search any motorist anywhere in the state without a warrant.

The requesters filed a federal lawsuit on November 30, 2016, in the United States District Court in the Eastern District of Michigan. Plaintiffs filed an amended complaint on July 28, 2017. On February 14, 2018, Defendants moved for summary judgment. On March 28, 2018, the Michigan Immigrant Rights Center filed a cross-motion for partial summary judgment and opposition to Defendants’ motion for partial summary judgment. Oral arguments were heard on the motions, and on September 7, 2018, the parties reached an agreement whereby the government would provide city-level information in apprehension reports about where apprehensions occur. Plaintiffs received these reports on a rolling three-month schedule through the end of 2018.  Plaintiffs moved for sanctions in January of 2020 based on Defendants’ failure to comply with production deadlines.

In March 2020, the parties stipulated that no disputes remained regarding Defendants’ production of documents and the case was dismissed with prejudice. On September 21, 2020, the court denied Plaintiffs’ motion for sanctions.

Contact: Miriam Aukerman | maukerman@aclumich.org