Category Archives: Washington D.C.

P.J.E.S. v. Wolf and J.B.B.C. v. Wolf

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P.J.E.S. v. Wolf, No. 1:20-cv-02245 (D.D.C., filed Aug. 14, 2020)
J.B.B.C. v. Wolf, No. 1:20-cv-01509 (D.D.C., filed June 9, 2020)

A recent series of cases have challenged the government’s invocation of rarely-used public health laws to restrict immigration by unaccompanied children and asylum seekers.

On March 20, 2020, President Trump announced that the Centers for Disease Control and Prevention (CDC) would issue an order “to suspend the introduction of all individuals seeking to enter the U.S. without proper travel documentation” across the northern and southern borders. Would-be border crossers were to be “immediately return[ed]” to their country of origin “without delay.” To justify the order, the Administration invoked 42 U.S.C. § 265, a rarely-used provision dating back to 1893, which gives federal public-health authorities the ability to “prohibit . . . the introduction of persons or property” from designated places where “by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States.” This restriction has come to be known as “Title 42.”

On March 20, 2020, CDC issued an interim final rule and an order directing the “immediate suspension of the introduction” of certain persons, including those seeking to enter the United States at ports of entry “who do not have proper travel documents,” “whose entry is otherwise contrary to law,” and “apprehended near the border seeking to unlawfully enter the United States.” Reports indicate that although CDC objected to the order, saying that there was no valid public-health justification for it, White House officials overrode those objections. Though CDC initially limited the order to thirty days, it has since extended the order indefinitely. On October 13, CDC issued final rules concerning its regulatory authority under § 265. CDC then issued a revised order pursuant to those rules. In February 2021, the Biden administration called for a review of the CDC order to determine if it was still needed or if modifications should be made, but on August 2, 2021, CDC issued a new order once again indefinitely extending application of Title 42.

The CDC order and regulations apply to unaccompanied children (who are entitled to special safeguards under the Trafficking Victims Protection Reauthorization Act (TVPRA)) and people seeking asylum, withholding of removal, or protection under the Convention Against Torture. The ACLU, along with a number of ally organizations, have filed a series of lawsuits on behalf of unaccompanied children challenging their expulsion under the CDC’s directives, the two most significant of which are discussed below.

J.B.B.C.

J.B.B.C. v. Wolf challenged the unlawful expulsion of a sixteen-year-old Honduran boy pursuant to Title 42. J.B.B.C. was being held in a hotel awaiting expulsion when the ACLU and others filed a complaint and request for a temporary restraining order. Based on J.B.B.C.’s arguments that the Title 42 Process was not authorized by § 265, and that the CDC order conflicted with various Immigration and Nationality Act (INA) provisions, Judge Carl Nichols issued a preliminary injunction barring Defendants from expelling J.B.B.C. Defendants then voluntarily took J.B.B.C. out of the Title 42 Process and transferred him to Office of Refugee Resettlement (ORR) custody.

Another child similarly subject to expulsion under Title 42, E.Y., was later amended into the case. Hours after he was added, Defendants similarly took him out of the Title 42 Process. Plaintiffs subsequently voluntarily dismissed J.B.B.C.

P.J.E.S.

On August 14, 2020, the ACLU Immigrants’ Rights Project, the ACLU of Texas, the Texas Civil Rights Project, Oxfam America, and the ACLU Foundation of the District of Columbia filed P.J.E.S. v. Wolf, a nationwide class action challenging the application of the Title 42 Process to unaccompanied children. On August 20, 2020, Plaintiffs moved for a classwide preliminary injunction. The district court judge then referred the case to a magistrate judge, who issued a report recommending that Plaintiffs’ motion for class certification be provisionally granted and that the motion for classwide preliminary injunction be granted. The magistrate judge concluded that Title 42 does not authorize summary expulsions and that if it were in fact read to permit expulsion of unaccompanied minors, it would conflict with statutory rights granted to them under the TVPRA and the INA.

On November 18, 2020, the court adopted the report, provisionally granting Plaintiffs’ motion to certify class and motion for preliminary injunction. Defendants moved for reconsideration on their request to stay the preliminary injunction and appealed the order to the DC Circuit. On December 3, the court denied Defendants’ motion for reconsideration.

On December 12, 2020, Defendants filed a notice advising the court that approximately 34 class members had been expelled from the United States, in contravention of the court’s injunction. These 34 were in addition to another 32 unaccompanied children expelled the same day the court granted the preliminary injunction.

On January 29, 2021, a motions panel of the D.C. Circuit stayed the P.J.E.S. preliminary injunction pending appeal and expedited the appeal.

In February 2021, CDC published a Notice of Temporary Exception from Expulsion of Unaccompanied Noncitizen Children under Title 42, and on July 16, 2021, CDC issued an order formally excepting unaccompanied minors from Title 42.  

On March 2, 2021, the Court of Appeals issued an order holding Defendants’ appeal of the preliminary injunction in abeyance pending further order of the court. The district court likewise granted the parties’ joint motion to hold the case in abeyance. On October 17, 2022, the D.C. Circuit issued an order terminating the abeyance, vacating the preliminary injunction, and remanded the case to the district court for a determination of whether all or part of the case has become moot.

Note: Two other cases involving the treatment of unaccompanied minors under Title 42 include G.Y.J.P. v. Wolf, No. 1:20-cv-01511 (D.D.C., filed June 9, 2020) and Texas Civil Rights Project v. Wolf, No. 1:20-cv-02035 (D.D.C., filed July 24, 2020).

Documents:

J.B.B.C. v. Wolf:

P.J.E.S. v. Wolf:

Counsel: ACLU Foundation of Texas; ACLU Foundation Immigrants’ Rights Project; Texas Civil Rights Project; Center for Gender & Refugee Studies; Oxfam America; ACLU Foundation of the District of Columbia

Contact: Stephen Kang, ACLU Immigrants’ Rights Project | skang@aclu.org

Press:

FOIA: Citizens for Responsibility & Ethics in Washington v. U.S. Customs & Border Protection, No. 1:22-cv-00496-TSC (D.D.C., filed Mar. 2, 2022)

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In October 2021, the chief records officer of the National Archives and Records Administration, Laurence Brewer, wrote a letter to U.S. Customs and Border Protection (CBP) officials expressing concern about CBP’s use of Wickr, an Amazon-owned encrypted messaging platform known for its ability to automatically delete messages, which then become unrecoverable after a predetermined period of time. In the letter, Brewer wrote that he was “concerned about agencywide deployment of a messaging application that has this functionality without appropriate policies and procedures governing its use.” Public records have revealed that CBP – which has been widely criticized for its secrecy – has spent more than $1.6 million on Wickr since 2020 and is using the platform across all CBP components. However, little is known about how the agency has deployed the app. Its auto-deletion feature, in particular, has raised concern among both government record keepers and advocates, who worry that Wickr allows CBP officials to sidestep government transparency requirements and litigation obligations, especially considering the agency’s poor track record in complying with record-keeping laws.

In September 2021, Citizens for Responsibility and Ethics in Washington (CREW) submitted a Freedom of Information Act (FOIA) request to CBP, seeking all records and communications relating to CBP’s use of Wickr for official agency business. After CBP failed to respond to the request, CREW filed a lawsuit seeking a declaratory judgment that CBP is violating the FOIA and injunctive relief requiring CBP to immediately process and release the requested records. On April 4, 2022, Defendant filed its answer. Production of responsive records is currently underway.

Documents:
● Complaint
● Answer

Counsel: The George Washington University Law School Jacob Burns Community Legal Clinics; Citizens for Responsibility and Ethics in Washington

Contact:
Jeffrey Gutman | The George Washington University Law School | jgutman@law.gwu.edu
Nikhel Sus | Citizens for Responsibility and Ethics in Washington | nsus@citizensforethics.org

Press:
● Customs and Border Protection to Use Encrypted App Wickr Widely
● Border Patrol’s Use of Amazon’s Wickr Messaging App Draws Scrutiny
● CREW Submits FOIA Request to U.S. Customs and Border Protection Regarding Use of Wickr
● CREW Sues for Records on CBP Contract with Wickr, “Auto-Burn” Encrypted Messaging App

Khalid v. Garland, et al.

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Khalid v. Garland et al., No. 1:21-cv-02307-CRC (D.D.C., filed Aug. 31, 2021)

Plaintiff Saad Bin Khalid brought this action for declaratory and injunctive relief against various federal agencies, including U.S. Customs and Border Protection (CBP), claiming that the U.S. government has wrongfully placed him on its “No Fly List” which indefinitely bars him from flying to, from, or within the United States.

Mr. Khalid is a 27-year-old U.S. citizen of Pakistani descent. He was first designated by the U.S. government as a “known or suspected terrorist” in 2012, when he was still a minor. As a result, Mr. Khalid has been subject to multiple interrogations and intrusive searches by CBP and Federal Bureau of Investigation (FBI) officers. He learned that he had been placed on the No Fly List in 2019, when he tried to return to the U.S. from Karachi, Pakistan, but was prohibited from boarding his flight. He has been unable to return to the U.S.—his home country—for nearly two years due to his placement on the No Fly List. Mr. Khalid claims that the U.S. government has failed to provide any reason or justification for placing him on the list, or a fair process for challenging that placement.

The complaint alleges violations of Mr. Khalid’s rights under the Fifth Amendment (substantive and procedural due process), the First Amendment (retaliation for refusing to acquiesce to interrogations), the Religious Freedom Restoration Act (burden on his exercise of religion), and the Administrative Procedure Act. Mr. Khalid seeks a declaratory judgment that Defendants have violated his rights, as well as an injunction which, among other things, requires Defendants to remove Mr. Khalid from any watchlist or database that burdens his ability to enter the United States.

In January 2022, Defendants moved to suspend the complaint response deadline, which Plaintiff opposed. On February 2, 2022, the court granted Defendants a 90-day stay of proceedings. On May 5, 2022, the stay was lifted, and Plaintiff filed an amended complaint on June 29, 2022. Defendants moved to dismiss for lack of jurisdiction on July 13, 2022. Plaintiff moved for a preliminary injunction on September 13, 2022, which was denied on October 7, 2022.

On March 16, 2023, the court granted in part and denied in part the motion to dismiss. The court dismissed for lack of jurisdiction Plaintiff’s challenge to the TSA Administrator’s decision to place him on the No Fly List, finding that such a claim must be brought in a circuit court of appeals under 49 U.S.C. § 46110. The court held that it had jurisdiction over Plaintiff’s challenge to his placement on the broader terrorism watch list.

On April 5, 2023, Plaintiff filed a motion asking the court to certify its order for interlocutory review. In the alternative, Plaintiff asked the court to transfer his No Fly List claims to the D.C. Circuit to avoid the 60-day deadline in 49 U.S.C. § 46110. Briefing on Plaintiff’s motion was completed on April 28, 2023, and he is awaiting a decision from the court.

Documents:

Counsel: Council on American-Islamic Relations

Contact: Gadeir Abbas | gabbas@cair.com | 202-742-6420.

Huisha-Huisha v. Gaynor

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Huisha-Huisha, et al. v. Gaynor, et al., No. 1:21-cv-0100 (D.D.C., filed Jan. 12, 2021); 21-05200 (D.C. Cir., filed Sep. 17, 2021); 22-05325 (Sup. Ct., filed Dec. 19, 2022)

On January 21, 2021, the ACLU Immigrants’ Rights Project, the ACLU of Texas, the Refugee and Immigrant Center for Legal Education and Legal Services, Oxfam America, and the ACLU of the District of Colombia filed Huisha-Huisha, et al. v. Gaynor, et al., a class action on behalf of noncitizens who arrive in the United States as a family unit of at least one child and that child’s parent or legal guardian and are subject to Title 42. The named plaintiffs are three parents and their minor children who sought asylum in the United States. In January 2021, Plaintiffs moved to certify a class consisting of all noncitizens who “(1) are or will be in the United States; (2) come to the United States as a family unit composed of at least one child under 18 years old and that child’s parent or legal guardian; and (3) are or will be subjected to the Title 42 Process.” Plaintiffs also filed a series of emergency motions to stay the removal of the named petitioners. In February, the district court granted the stays of removal over the government’s objections.

On February 5, 2021, Plaintiffs moved for a preliminary injunction prohibiting Defendants from applying the Title 42 Process to members of the putative class. On February 23, 2021, the district court granted the parties’ joint motion to hold in abeyance the motions for class certification and a preliminary injunction. The case was held in abeyance until August 2, 2021, while the parties attempted to engage in settlement negotiations. On August 2, the parties jointly filed a motion to reset the briefing schedule on Plaintiffs’ motions for class certification and a preliminary injunction, indicating their intent to resume litigation, and Plaintiffs filed their reply in support of their motions on August 11, 2021.

The district court granted Plaintiffs’ motions for class certification and a preliminary injunction on September 16, 2021, enjoining Defendants from applying the Title 42 process, including the CDC’s August 2021 order, to class members. The court agreed that the government’s policy was not authorized by statute and that class members would face “real threats of violence and persecution” if returned to their home countries. The government appealed the order to the D.C. Circuit the following day. On September 30, 2021, the D.C. Circuit stayed the preliminary injunction pending appeal, and as such, the preliminary injunction did not go into effect.

On March 4, 2022, the U.S. Court of Appeals for the D.C. Circuit affirmed the district court’s preliminary injunction in part, holding that the government may expel Plaintiffs, but only to places where they will not be persecuted or tortured. As a result, the preliminary injunction is now in effect. The court of appeals remanded the case to the district court to decide in the first instance whether the Title 42 expulsion rule is arbitrary and capricious.

On remand, Plaintiffs filed a motion for a preliminary injunction and a motion for partial summary judgment. On November 15, 2022, the district court issued an order holding that the U.S. government acted arbitrarily and capriciously in instituting the Title 42 policy and enjoined Defendants from continuing to apply the policy. The court granted Defendants’ request to stay the injunction until December 21, 2022.

On November 21, 2022, the states of Arizona, Louisiana, Texas, and 12 other states filed a motion to intervene with the district court. Shortly after, on December 7, Defendants filed a notice of appeal of the district court’s final judgment. Given the appeal, the district court deferred on the motion to intervene, and Arizona, et al. filed a motion to intervene with the D.C. Circuit, along with a motion to stay the trial court’s decision pending appeal. The D.C. Circuit denied the motion to stay on December 9, 2022, and deferred the ruling on the motion to intervene.

On December 19, 2022, Arizona, et al. filed an application to the U.S. Supreme Court for a stay pending certiorari along with a petition for a writ of certiorari. That same day the Supreme Court stayed the D.C. Circuit Court’s decision to end Title 42 and ordered the parties’ responses be filed on December 20, 2022. The Supreme Court granted certiorari on December 27, 2022 to determine whether the state applicants may intervene to challenge the district court’s summary judgment order.  The Supreme Court’s review is limited to the question of intervention by the states.

The parties filed their briefs and the Supreme Court scheduled oral arguments for March 1, 2023. On January 30, 2023, the White House issued a statement of administration policy ending the COVID national emergency and public health emergency declarations on May 11, 2023. On February 16, 2023, the Supreme Court removed the case from the February 2023 argument calendar.

Documents:

Counsel: ACLU Foundation of Texas; ACLU Foundation Immigrants’ Rights Project; Texas Civil Rights Project; Center for Gender & Refugee Studies; Oxfam America; ACLU Foundation of the District of Columbia

Contact: Stephen Kang, ACLU Immigrants’ Rights Project | skang@aclu.org

Additional Links:

Sabra v. U.S. Customs and Border Protection

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Sabra v. U.S. Customs and Border Protection, No. 1:20-cv-00681-CKK (D.D.C., filed Mar. 9, 2020)

On September 11, 2015, Fleta Christina Cousin Sabra—a U.S. citizen and accredited humanitarian worker—traveled with a family of asylum-seeking Syrian refugees and the refugees’ lawful permanent resident relative from Mexico into the United States by way of a U.S. port of entry in Southern California. When Ms. Sabra explained to a U.S. Customs and Border Protection (“CBP”) officer that the family wished to seek asylum, the officer handcuffed all members of the group, including Ms. Sabra. CBP officers detained Ms. Sabra for several hours, during which time they insulted her Muslim faith, pulled off her hijab, and physically assaulted her.

In July 2016, Ms. Sabra submitted a request for agency records pursuant to the Freedom of Information Act (FOIA) regarding the September 11, 2015 encounter, CBP’s subsequent related records, CBP’s investigation, communications regarding the family of Syrian refugees, and other CBP records regarding Ms. Sabra. In response, CBP produced only five pages of records.

Ms. Sabra filed this action on March 9, 2020, seeking to compel CBP to conduct a reasonable search and produce records responsive to her FOIA request. On May 29, 2020, CBP made an initial production and reported that it anticipates making monthly, rolling releases. Ms. Sabra moved for judgment on the pleadings. CBP made additional productions in June, July, and August of 2020. The court denied Ms. Sabra’s motion on March 2, 2021. On March 10, 2021, the government moved for summary judgment and briefing was completed on May 5, 2021. 

On March 14, 2022, the district court denied CBP’s motion for summary judgment without prejudice, holding that the agency had not established that it had conducted an adequate search for records responsive to Ms. Sabra’s request. CBP filed a renewed motion for summary judgment in June 2022. As of November 2022, the motion is fully briefed and a decision is pending from the court. On January 31, 2023, the district court found CBP had carried its burden of demonstrating that it has conducted an adequate search for records responsive to Plaintiff’s FOIA request as well as holding that CBP properly withheld and redacted certain records. As such, the district court granted Defendant’s motion for summary judgment.

Documents:

Counsel: Law Office of R. Andrew Free

Contact: R. Andrew Free | (844) 321-3221 | Andrew@ImmigrantCivilRights.com

A.B.-B. v. Morgan

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A.B.-B., et al., v. Morgan, et al., No. 1:20-cv-00846 (D.D.C., filed Mar. 27, 2020)

On March 27, 2020, five asylum-seeking mothers and their children filed this action challenging the use of U.S. Border Patrol agents to screen asylum seekers for their “credible fear” of persecution.

Many people seeking asylum at the border must first pass a “credible fear” screening interview before an immigration judge can more fully review their claims. At this interview, asylum seekers provide sensitive details about the persecution they suffered and the reasons they fled. These screenings are not supposed to be interrogations. They must be done by officers trained specifically to evaluate asylum claims and work with victims of trauma. And for decades, that is how these interviews were conducted.

Beginning in April 2019, however, the government quietly started to change who was responsible for conducting the interview. A pilot program replaced some experienced asylum officers with Border Patrol agents—a law enforcement agency with a history of abuse and misconduct toward asylum seekers.

Asylum seekers and attorneys report that Border Patrol agents conduct the interviews like criminal interrogations. Asylum seekers say they are yelled at, cut off when responding, and scolded if they cry or show other signs of trauma.

Border Patrol agents conducted credible fear interviews, and issued negative credible fear determinations, for the plaintiff families while they were detained at the South Texas Family Residential Center in Dilley, Texas. Their complaint alleges that the U.S. Customs and Border Protection (“CBP”) official who authorized Border Patrol agents to conduct these interviews was illegally appointed, that only U.S. Citizenship and Immigration Services (“USCIS”) has authority to conduct these interviews, and that Border Patrol agents are not properly trained and cannot conduct non-adversarial interviews.

 On April 2, 2020, the court granted Plaintiffs’ motion for a temporary restraining order and administrative stay and temporarily enjoined their removal. On May 12, 2020, the court heard oral argument on Plaintiffs’ motion seeking a preliminary injunction. The parties submitted supplemental briefing on June 1, 2020. On August 29, 2020, the district court granted a preliminary injunction, enjoining Defendants from removing Plaintiffs until the court has ruled on the merits of this case and enjoining Defendants from continuing to permit Border Patrol agents to conduct credible fear interviews and make credible fear determinations. Defendants proceeded to request several extensions of their deadline to answer the complaint. No answer has been filed. On October 5, 2022, the court granted a joint motion to stay the proceedings for 180 days.

Counsel: Tahirih Justice Center; Constitutional Accountability Center

Contact: Julie M. Carpenter | Tahirih Justice Center | juliec@tahirih.org

Electronic Frontier Foundation v. Dep’t of Homeland Security

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Electronic Frontier Foundation v. Dep’t of Homeland Security, No. 1:19-cv-02578 (D.D.C., filed Aug. 27, 2019)

In United States v. Jones, 565 U.S. 400 (2012), the Supreme Court unanimously held that warrantless GPS tracking violates the Fourth Amendment and is therefore unconstitutional. In a 2018 California criminal case, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) disclosed that it is their policy and practice to install tracking devices on vehicles at the border without a warrant. An ICE official stated in a declaration that the policy did not violate the Jones ruling, but the court disagreed.

Neither agency submitted the actual policy to the court, so the Electronic Frontier Foundation (EFF) filed Freedom of Information Act (FOIA) requests with ICE and CBP. EFF asked the agencies to produce records pertaining to “[p]olicies and/or procedures regarding the use of GPS tracking devices on vehicles crossing the border” and “[t]raining manuals and/or training materials on the use of GPA tracking devices on vehicles crossing the border.” Four months after EFF made the request, ICE notified EFF that the agency would withhold all relevant documents because of an exemption that protects “law enforcement sensitive information” that might alert people of government agents attempting to place tracking devices on their vehicles at the border. CBP did not take any action in response to the request, so in August 2019, EFF filed a federal lawsuit to enforce the FOIA and obtain the relevant records.

From December 2019 through April 2020, ICE and CBP made a small series of productions.

The parties filed cross-motions for summary judgment. Briefing on the motions for summary judgment was completed in May 2021.  On March 21, 2023, the court entered a minute order denying both motions for summary judgment without prejudice and ordering the parties to file a joint status report on the progress of the case.

Counsel: David L. Sobel, Saira Hussain, Jennifer Lynch, Electronic Frontier Foundation

Contact: David L. Sobel | Electronic Frontier Foundation | 415-436-9333 | sobel@eff.org

American Immigration Council v. U.S. Customs and Border Protection et. al.

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American Immigration Council v. U.S. Customs and Border Protection et. al., No. 1:19-cv-02965 (D.D.C filed Oct. 2, 2019)

This Freedom of Information Act (FOIA) lawsuit seeks to uncover information about the government’s troubling new practice of employing U.S. Custom and Border Protection (CBP) officers to screen asylum seekers. The suit, filed on October 2, 2019, on behalf of the American Immigration Council and Tahirih Justice Center, challenges the government’s failure to respond to multiple FOIA requests for records relating to the U.S. Department of Homeland Security’s (DHS) decision to train and utilize CBP officers to conduct asylum screenings known as credible fear interviews (CFIs).

Congress intended that CFIs serve as a safeguard from summary removal. If a person seeking asylum passes this initial screening, they must be given the opportunity to file an asylum claim before an immigration judge. As threshold screenings, these interviews are not intended to be adversarial, but rather function to provide the person seeking asylum an opportunity to recount details of their feared persecution in their country of origin. People seeking asylum often describe instances of physical and sexual violence and other trauma to explain why they seek protection in the United States during a CFI. For decades, these interviews have been conducted by a corps of asylum officers employed by U.S. Citizenship and Immigration Services (USCIS) trained specifically to adjudicate asylum claims, including the handling of sensitive matters.

According to reports, DHS has begun to replace trained USCIS asylum officer with officers from CBP—a law enforcement agency with a history of abuse of and misconduct towards people seeking asylum—in the credible fear screening process. Despite the significance of this change, there are no publicly available records documenting this shift in functions.

In response to this lawsuit, CBP produced a single document. DHS has produced hundreds of pages of entirely redacted records. USCIS produced thousands of pages, largely consisting of training materials. On June 18, 2021, Plaintiffs filed a brief outlining for the court why Defendants improperly withheld records under FOIA exemptions and why Defendant CBP failed to conduct an adequate search. Plaintiffs requested that the court order Defendants to produce the disputed records and order CBP to conduct an adequate search.

On March 11, 2022, the court partially granted and partially denied motions for summary judgment by both sides. The court ordered CBP to conduct a new, adequate search. The court further held that DHS and USCIS failed to meet their burden to show that a FOIA exemption applied to the withheld documents Plaintiffs challenged. The court ordered DHS and USCIS to produce all challenged documents for in camera inspection. The court will then determine whether the documents should be redacted partially, in full, or not at all. Additionally, the court ordered USCIS to produce an unredacted email that includes the names of the CBP officers who performed the CFIs. In ordering that release, the court found that the public’s interest in learning the full scope of the pilot program and the interest of individuals potentially subjected to the pilot program in learning whether they were subjected to the program outweighed any privacy interest of the officers.

On June 21, 2022, Defendants filed a motion for reconsideration of the order requiring production of the unredacted email containing CBP officer names. On February 16, 2023, the parties executed an agreement to resolve Defendants’ outstanding motion to reconsider and in lieu of production of the CBP officers names. Pursuant to the agreement, Defendants agreed to provide Plaintiffs with the dates and locations where the pilot program operated. Plaintiffs will provide Defendants with up to 1,000 names, along with Department of Homeland Security Form G-639 releases, for individuals who received credible fear interviews at those locations during the relevant period. Defendants will provide confirmation as to whether the individuals were interviewed by U.S. Border Patrol agents. Plaintiffs agreed to provide the names within six months of execution of the agreement, or by August 16, 2023.

On April 3, 2023, the court issued a decision on the remaining disputed documents reviewed in camera and ordered the production of three as not properly withheld under the deliberative process exception. The court affirmed the withholding of the other three disputed documents.

Counsel: Emma Winger, American Immigration Council

Contact: Emma Winger, American Immigration Council | 617-505-5375 | ewinger@immcouncil.org

AIC v. DHS

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American Immigration Council et al. v. U.S. Department of Homeland Security et al., No: 1:17-cv-02142 (D.D.C., filed Oct. 17, 2017)

This lawsuit involves the Department of Homeland Security’s (DHS) failure to conduct an adequate search for and disclose records responsive to Plaintiffs’ 2012 and 2017 Freedom of Information Act (FOIA) requests, which sought documents pertaining to DHS’ policy and/or practice of permitting Customs and Border Protection (CBP) agents to provide interpretation services to local law enforcement and to respond to 9-1-1 calls. Most documents that Defendants did produce in response to the FOIA requests were unjustifiably redacted.

Due to Defendants’ deficient and unlawful FOIA responses over a five-year period, on October 17, 2017, Plaintiffs filed suit against DHS under the FOIA seeking to compel the production of records concerning (1) the use of CBP personnel to provide interpretation and/or translation services to local, state, or other federal law enforcement agencies, and (2) the participation of CBP personnel in 911 dispatch activities.

Ultimately, the parties reached settlement on the merits and on attorneys’ fees and the case was dismissed in June 2019. Records available at link below.

Counsel: Gibson, Dunn & Crutcher LLP | American Immigration Council | Northwest Immigrant Rights Project

Contact: Kristin Macleod-Ball | AIC | kmacleod-ball@immcouncil.org

Records available at:

Lawsuits Filed against CBP Challenging President Trump’s Travel Ban

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On January 27, 2017, President Trump signed an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” This executive order called for an immediate halt to entry for any immigrant or nonimmigrant from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, as well as an immediate 120-day halt to all entries by refugees and an indefinite suspension with respect to Syrian refugees. Many individuals who were in the air at the time the executive order was signed were detained by CBP upon arrival in the United States, including lawful permanent residents and individuals with valid visas for entry.

Individuals detained by CBP were held for extremely long times (over 24 hours in some cases), denied access to their families, prevented from talking to attorneys, and on some occasions pressured into signing documents renouncing their right to enter the United States and forcibly deported. Large numbers of attorneys soon arrived at airports across the United States to provide assistance, and multiple individuals filed habeas corpus petitions seeking the release of people detained by CBP.

During the weekend of January 28-29, 2017, courts in California, Massachusetts, New York, Virginia, and Washington issued temporary restraining orders blocking the executive order from going into effect and ordering that CBP release individuals from detention.

Subsequently, numerous other lawsuits were filed challenging the travel ban. A complete and up-to-date list of cases, as well as case status information, can be found on the University of Michigan Civil Rights Litigation Clearinghouse website. On June 26, 2018, the Supreme Court upheld the travel ban, and reversed and remanded the 9th Circuit decision in Hawaii v. Trump. Since this decision, many of the travel ban lawsuits have been stayed.

For more detailed information on developments immediately following the executive order, as well as three sample habeas corpus petitions for individuals detained at airports, please see Challenging President Trump’s Ban on Entry, a practice advisory published by the American Immigration Council.