Category Archives: Uncategorized

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. No opinion has been issued.

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.

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Counsel: American Civil Liberties Union of Vermont

Contact: Jay Diaz | ACLU-VT

Father and Son File FTCA Administrative Claims and Subsequent Lawsuit Based on Nine Months of Family Separation

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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 in 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, 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.

Documents:

Counsel: Northwest Immigrant Rights Project and Morgan, Lewis, & Brockius, LLP

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

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

Gabriel Gomez Maciel v. Mylissa Coleman, in her official and individual capacities; City of Spokane

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Gabriel Gomez Maciel v. Mylissa Coleman, in her official and individual capacities; City of Spokane, No. 2:17-cv-00292 (E.D. Wa. filed August 21, 2017)

On August 24, 2014, Gabriel Gomez Maciel was driving to church when his pickup truck was struck by a minivan. Mylissa Coleman, who at the time was working as a police officer for the City of Spokane, arrived at the scene of the accident to investigate, and contacted the Border Patrol to ask whether the agency had any interest in Gomez. Coleman contacted the Border Patrol solely on the basis of Gomez’s race and ethnicity.

Even though Gomez had been injured in the accident, Coleman did not ask if he needed medical assistance. Even after she completed her investigation of the accident and cited the minivan driver, Coleman continued to detain Gomez Coleman’s continued detention of Gomez was not justified by reasonable suspicion, much less probable cause. Eventually, Border Patrol agents arrived and transferred Gomez to the Tacoma immigration detention center, where he remained for one month until he was able to post bond.

On August 21, 2017, the Northwest Immigrant Rights Project filed a complaint in the United States District Court in the Eastern District of Washington against Mylissa Coleman and the City of Spokane pursuant to42 U.S.C. § 1983 and Article 1, § 7 of the Constitution of the State of Washington. Gomez alleges that he suffered substantial physical, emotional, and economic harm as a result of his unlawful detention.

On November 13, 2017, the parties notified the Court that the case had settled. As part of the settlement agreement, the parties agreed to a number of conditions. The City of Spokane agreed to modify its policies to clarify that police officers “shall not contact, question, delay, detain, or arrest an individual [because] s/he is suspected of violating immigration laws.” The City has also agreed to provide training to City police officers regarding the policy change. As part of the settlement, the City also agreed to pay a total of $49,000 in damages and fees.

Amadei, et. al. v. Nielsen

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Amadei, et al. v. Nielsen, et al., No. 1:17-cv-05967 (E.D.N.Y., filed Oct. 12, 2017)

On October 12, 2017, the ACLU, along with Covington & Burling, LLP, filed suit against Customs and Border Protection over the February 22, 2017 search by CBP of passengers of a Delta Airlines flight that arrived at JFK. After the flight landed, CBP officers stood outside the plane and required every disembarking passenger to provide identification, even though the flight was a domestic flight. The ACLU brought suit on behalf of passengers on the plane who allege that this demand for identification violated their rights under the Fourth Amendment. The plaintiffs seek declaratory relief that the February 22, 2017 search was unconstitutional, as well as injunctive relief preventing CBP from conducting similar searches of passengers disembarking from domestic flights.

Defendants filed a motion to dismiss, arguing that the agency action was not final and that Plaintiffs lacked standing. The parties completed briefing on the motion on April 20, 2018. On December 13, 2018, the court denied the government’s motion and allowed the case to proceed. Following discovery, the parties agreed to settle the case.

Under the terms of the settlement, CBP will circulate a new policy directive to ports of entry nationwide clarifying that CBP does not have a policy or practice of checking the identification of deplaning domestic passengers. If CBP officers do seek to conduct document checks of deplaning domestic passengers in the future, they must make clear through their words and actions that participation is voluntary and request that airline personnel announce over the airplane’s public address system that participation in voluntary. The officers must also provide an unimpeded path for passengers to exit the airplane and explain, if asked, that passengers who decline to participate will face no law enforcement consequences as a result.

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