P.J.E.S. v. Wolf

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)

P.J.E.S. v. Wolf and J.B.B.C. v. Wolf are two cases in a series of cases challenging 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.”

On March 20, 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 and issued final rules concerning its regulatory authority under § 265. CDC then issued a revised order pursuant to those rules.

The CDC order and regulations do not exempt unaccompanied children, who are entitled to special safeguards under the Trafficking Victims Protection Reauthorization Act, or those 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 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 Immigration and Nationality Act (INA).

On October 2, 2020, Defendants filed their objection to the Report, to which Plaintiffs responded on October 9, 2020. Defendants filed their reply on October 14. Briefing is now complete and Defendants have requested a hearing on the matter.

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

Additional Links:

Sabra v. U.S. Customs and Border Protection

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. As of August 21, 2020, the court has held Ms. Sabra’s motion for judgment on the pleadings in abeyance pending parties’ discussions regarding additional productions.

Counsel: Law Office of R. Andrew Free

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

A.B.-B. v. Morgan

A.B.-B., et al., v. Morgan, et al., No. 1:20-cv-00846-RJL (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, contrary to U.S. immigration laws, 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.

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

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 now anticipate that litigation will proceed to cross-motions for summary judgment. Summary judgment motions are due October 23, 2020 (for Defendants) and December 7, 2020 (for Plaintiffs).

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.

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 an asylum seeker passes this initial screening, he or she 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 asylum seeker an opportunity to recount details of their feared persecution in their country of origin. Asylum seekers 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 asylum seekers—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 has produced a single document. DHS has produced hundreds of pages of entirely redacted records. USCIS continues to produce approximately 500 pages per month.

Counsel: Claudia Valenzuela, Emma Winger, American Immigration Council

Contact: Claudia Valenzuela | American Immigration Council | 202-507-7540 | cvalenzuela@immcouncil.org

AIC v. DHS

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

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.

 

Complaint Against CBP Abuses Following President Trump’s Travel Ban

On February 6, 2017, the Center for Constitutional Rights and the Kathryn O. Greenberg Immigration Justice Clinic filed a letter with the Department of Homeland Security Office of the Inspector General (OIG), detailing the systemic abuses and violations of the rights of individuals lawfully entering the United States through airports in the days following the issuance of President Trump’s January 27, 2017 executive order (“Executive Order”). This Executive order suspended entry into the United States for individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The complaint to OIG contains 26 declarations from both noncitizens—including long-term LPRs—and attorneys about abuses at the hands of CBP. As the declarations discuss, both new arrivals with valid visas and long-time U.S. residents were detained for excessive periods, denied access to attorneys even after a court ordered CBP to provide access to counsel, and pressured into giving up their valid visas. The organizations conclude by calling on CBP to end its policy of detaining immigrants without allowing them access to counsel.

On January 18, 2018, the Department of Homeland Security’s Office of Inspector General released a report following a year-long investigation into the events immediately following the implementation of the first travel ban on January 27, 2017. Although the Office of Inspector General was unable to substantiate any individual claims of misconduct against CBP officers at ports of entry within the United States, the OIG found that CBP had violated two separate court orders when it was “aggressive in preventing affected travelers from boarding aircraft bound for the United States.

American Immigration Council v. United States Department of Homeland Security

American Immigration Council v. United States Department of Homeland SecurityNo. 16-cv-01050-RJL (D.C. District Court, Filed June 6, 2016)

The American Immigration Council filed a FOIA request with U.S. Customs and Border Protection (CBP) in October, 2015 seeking information about complaints filed against the U.S. Border Patrol since January, 2012. This request followed-up on an earlier FOIA request by the Council in response to which CBP produced data concerning 809 complaints of abuse lodged against U.S. Border Patrol (USBP) agents between January 2009 and January 2012. The Council analyzed this earlier data in a May 2014 report entitled, No Action Taken: Lack of CBP Accountability in Responding to Complaints of Abuse, revealing that the recorded outcome in 97 percent of the cases CBP claimed to have resolved was “no action.” The data further showed that “physical abuse” by USBP agents was the most prevalent reason given for filing a complaint (cited in 40 percent of the complaints), with “excessive use of force” referenced in 38 percent of the cases. The October 2015 FOIA was filed in order for the Council to determine whether CBP and USBP had made any improvements to the complaint system, and in particular whether the response to complaints filed against agents had changed.

Over 8 months later, CBP had not responded to the October 2015 FOIA. The Council, represented by Drinker Biddle & Reath LLP, filed a lawsuit on June 6, 2016, to compel the release of documents related to the complaints process. CBP subsequently produced a multiple-page spreadsheet listing abbreviated information about thousands of complaints. The case was referred for mediation in May of 2019.

The parties settled and dismissed the case in December 2019. Pursuant to the settlement, CBP produced a second spreadsheet identifying all complaints made against Border Patrol officers by noncitizens or on behalf of noncitizens for the period from the last spreadsheet through August 2019.

Counsel: The American Immigration Council, Drinker Biddle & Reath LLP

Contact: Mary Kenney | American Immigration Council | 202.507.7512 | mkenney@immcouncil.org

Leonel Ruiz o/b/o E.R. v. U.S.

Leonel Ruiz o/b/o E.R. v. U.S., No. 1:13-cv-01241 (E.D.N.Y., filed Mar. 8, 2013)

On March 11, 2011, E.R., a four-year-old U.S. citizen, was detained by Customs and Border Protection following her arrival at Dulles Airport. E.R. was returning home to New York from a vacation in Guatemala with her grandfather, when her flight was diverted from JFK to Dulles airport due to bad weather. While E.R. was admitted with her U.S. passport, her grandfather was directed to secondary inspection due to an issue with his immigration paperwork. CBP detained E.R. with her grandfather for the next 20 plus hours, gave her only a cookie and soda during the entire time, and provided her nowhere to nap other than the cold floor.

Although CBP officers had the phone number of E.R’s parents, they failed to contact them for nearly 14 hours, and repeatedly refused her grandfather’s requests to be allowed to call them. E.R.’s father was frantic with worry this entire time. When CBP eventually did contact E.R.’s father, the officer promised to send E.R. to JFK as soon as arrangements could be made to do so, but also asked for identifying information about her parents. Hours later, CBP called again, and this time claimed that CBP could not return E.R. to “illegals.” The CBP officer gave E.R.’s father an hour to decide whether she should be sent back to Guatemala or to an “adoption center” in Virginia. Fearing that he would otherwise lose custody of his daughter, E.R.’s father decided that the only viable option was for her to return to Guatemala. CBP officers put E.R. and her grandfather on the next flight to Guatemala. E.R. was finally able to return home nearly three weeks later, after her father hired a local attorney to fly to Guatemala to retrieve her.

Back in the United States, E.R. was diagnosed with post-traumatic stress disorder by a child psychologist, who concluded that the PTSD was a result of her detention, her separation from her parents, and her perception that she had been deported because her father did not pick her up from the airport. E.R.’s father seeks damages on her behalf for her unlawful treatment.

In March 2013, the girl’s father filed a lawsuit on behalf of his daughter alleging that CBP officers at Dulles Airport in Virginia unlawfully detained a U.S. citizen child for more than twenty hours, deprived her of contact with her parents, and then effectively deported her to Guatemala.  On October 30, 2013, the government moved to dismiss the case on the basis that the actions of the CBP officers fell within the discretionary function exception of the FTCA, and that the court thus lacked subject matter jurisdiction. Alternatively, the government alleged that the case should be dismissed because the plaintiff had failed to state a claim upon which relief may be granted. The government also moved to transfer the case to the Eastern District of Virginia.  Counsel for the girl’s father opposed the motions.

On September 18, 2014, the court found that the CBP officers’ actions did not fall within the discretionary function exception. The court also found that CBP’s treatment of the girl violated the settlement agreement in Flores v. Reno regarding the detention of minors and CBP’s internal policies promulgated to comply with the Flores agreement.  However, the court granted the government’s request to change venue and transferred the case to the Eastern District of Virginia. In June 2015, the case settled for $32,500. Because the case involved a minor, the Court reviewed and approved the final settlement.

Press:

Counsel: Cleary Gottlieb Steen & Hamilton, LLP | American Immigration Council

Contact: Melissa Crow | AIC | 202.507.7523 | mcrow@immcouncil.org