Tag Archives: Closed Cases

Blanca Gomez Arellano v. United States

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Blanca Gomez Arellano v. United States, No. 2:19-cv-00141 (S.D. Tex., filed May 13, 2019).

This is a wrongful death lawsuit brought by a mother whose son died trapped in a tractor-trailer container while the vehicle was impounded by U.S. Customs and Border Protection (CBP). On October 13, 2017, CBP officers detained a tractor-trailer for inspection and discovered an undocumented individual inside. CBP then took the driver and undocumented individual into custody and impounded the truck. Three days later, CBP officers noticed a foul smell and liquid leaking from the truck, and they contacted the local sheriff’s department, who found a decomposing body.

The complaint alleges claims under the Federal Tort Claims Act for negligence, gross negligence, assault and battery, false imprisonment, and intentional infliction of emotional distress. A policy manual currently in effect directs CBP officers that “all closed containers must be opened and their contents inventoried” upon the impounding of a vehicle. The compartment in which the victim’s body was found was clearly marked as a “Liftable Lower Bunk.” The complaint alleges that the officers acted negligently or recklessly to cause the victim’s death. The government moved to dismiss the complaint in May of 2019. The case was consolidated with a related case filed by the decedent’s widow, Ramirez v. Garcia, No. 2:18-cv-446 (S.D. Tex.).

On October 30, 2019, the court dismissed all of the plaintiffs’ FTCA claims on the basis that the customs-duty exception to the FTCA’s waiver of sovereign immunity applied and barred recovery. The court then remanded the remaining state law claims to the 92nd Judicial District of Hidalgo County, Texas.

Counsel: Texas Civil Rights Project

Contact: Efrén C. Olivares | efren@texascivilrightsproject.org

Lovell v. United States

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Lovell v. United States of America, No. 1:18-cv-01867 (E.D.N.Y., filed Mar. 28, 2018)

On November 27, 2016, Tameika Lovell was returning from Jamaica and traveling through John F. Kennedy Airport when U.S. Customs and Border Protection (“CBP”) officers selected her for a “random search.” Officers took her to a secured area and conducted a physically invasive and traumatic search of her body, including a body cavity search, for which she later sought medical and psychological treatment.

Ms. Lovell filed a federal tort claim with CBP on May 10, 2017, but it was subsequently denied. On March 28, 2018, Ms. Lovell filed this action seeking damages under Bivens and alleging violations of her Fourth and Fifth Amendment rights. The complaint alleges that CBP’s search of Ms. Lovell was carried out in in violation of the Fourth Amendment and was conduct that “shocked the conscience” in violation of the Fifth Amendment. She further alleges that the search was not random but instead based on her race, and that CBP unlawfully singles out females and persons of color for searches. Furthermore, Ms. Lovell alleges that the United States and CBP condone employees’ intentional violations of the National Standards on Transportation, Escort, Detention, and Search, the agency’s written standards for searches. Ms. Lovell seeks compensatory and punitive damages against CBP.

On August 3, 2022, the court granted Defendants’ motion for summary judgment in its entirety on the basis that the Supreme Court’s decision in Egbert v. Boule foreclosed Ms. Lovell’s Bivens action against the named CBP officers. Alternatively, the court held that that the officers would be entitled to qualified immunity for their actions.

Press Coverage:

Counsel: The Sanders Firm, P.C.
Contact: Eric Sanders | 212-652-2782

Serrano v. CBP

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Serrano v. U.S. Customs and Border Protection et al., Nos. 2:17-cv-00048 (W.D. Tex., filed Sept. 6, 2017) and 18-50977 (5th Cir., filed Nov. 21, 2018)

On September 6, 2017, the Institute for Justice brought a class action suit against Customs and Border Protection over the agency’s practice of engaging in civil forfeiture of vehicles at ports of entry on the U.S.-Mexico border. The plaintiff, Gerardo Serrano, was detained in 2015 when crossing into Mexico at the Eagle Pass, Texas port of entry. After CBP officers found a small amount of pistol ammunition in his truck, they seized the vehicle. CBP held his truck for over two years without ever filing a civil forfeiture action in court against him, despite requiring him to post thousands of dollars for a bond purportedly to allow him to challenge the seizure. Because the agency never filed a forfeiture action, Mr. Serrano was given no opportunity to have his day in court and challenge CBP’s seizure.

His complaint alleges that CBP seizes hundreds of vehicles owned by American citizens each year and refuses to hold prompt post-seizure hearings at which the owners can challenge the seizure. The class action suit seeks declaratory and injunctive relief requiring CBP to hold prompt post-seizure hearings, as well as compensation for Mr. Serrano. In October 2017, CBP returned Mr. Serrano’s truck without subjecting it to a forfeiture action. On December 13, 2017, Defendants moved to dismiss the suit. The parties completed briefing on January 19, 2018.

On July 23, 2018, the magistrate judge issued a Report and Recommendation in which he advised granting Defendants’ motions to dismiss.

On September 28, 2018, the district court adopted the magistrate judge’s recommendations and issued an order denying class certification and granting all motions to dismiss. Mr. Serrano appealed the district court decision to the Fifth Circuit on November 21, 2018.

In April 2019, the plaintiff filed his opening brief with the Fifth Circuit. Several amicus briefs were filed in support. The government’s answering brief was filed in August 2019. As of October 2019, those briefs are still pending. The government filed a notice of supplemental authority regarding Cantu v. Moody 933 F.3d 414 (5th Cir. Aug. 5, 2019) on January 28, 2020. The court heard oral argument on February 4, 2020. On February 26, 2020, the plaintiff filed a notice of supplemental authority regarding the Supreme Court’s decision in Hernandez v. Mesa.

The Fifth Circuit affirmed the lower court’s decision on September 16, 2020, holding (1) that CBP’s seizures of property without prompt judicial hearings on remission do not violate the Due Process Clause and (2) that Serrano failed to state a Bivens claim, as his complaint did not plausibly allege that CBP agents violated clearly establish law by seizing his truck and keeping it for 23 months without providing him with a post-seizure hearing.

On December 1, 2020, Plaintiffs petitioned the Supreme Court for a Writ of Certiorari. On March 2021, Respondent filed a brief in opposition and Petitioners filed their reply. On April 19, 2021, the Supreme Court denied the cert petition.

Fifth Circuit Pleadings:

Supreme Court:

Counsel: Anya Bidwell & Robert Everett Johnson | Institute for Justice

American Immigration Lawyers Association v. DHS, et al.

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American Immigration Lawyers Association v. DHS, et al., No. 1:16-cv-02470 (D.D.C. filed Dec. 19, 2016)

On July 10, 2013, the American Immigration Lawyers Association (AILA), submitted a FOIA request to Customs and Border Protection (CBP), seeking records relating to the issuance and implementation of the Officers’ Resource Tool (ORT) and how it has come to replace the Inspector’s Field Manual (IFM). The ORT replaced the IFM, which previously provided guidance regarding the inspection and admission of individuals into the United States at U.S. ports of entry. CBP failed to produce any responsive records and did not respond to AILA’s administrative appeal.

In December 2016, the American Immigration Council, in cooperation with Foley and Lardner, LLP, filed the lawsuit on AILA’s behalf seeking to compel CBP to release the ORT. On June 7, 2017, Defendants filed a motion for summary judgment, which the court denied on March 30, 2018. After continued delays in production, the plaintiffs filed a second motion for summary judgment in December 2018. The court denied that motion without prejudice,  but ordered the government to produce documents by May 31, 2019.

In November 2019, Defendants filed a renewed motion for summary judgment, and in January 2020, Plaintiffs filed their opposition, as well as a cross-motion for summary judgment. On March 10, 2020, Defendants filed their reply to Plaintiffs’ opposition and their opposition to Plaintiffs’ cross-motion for summary judgment. On July 22, 2020, the district court ordered additional, unredacted production from Defendants. On April 30, 2021, the parties stipulated to dismiss the case.

Counsel: Emily Creighton | American Immigration Council | ecreighton@immcouncil.org
Kristin Macleod-Ball | American Immigration Council | kmacleod-ball@immcouncil.org
Naikang Tsao | Foley & Lardner LLP | ntsao@foley.com

ACLU of Arizona v. DHS (Tucson Interior Enforcement FOIA)

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ACLU of Arizona v. DHS, No.4:14-cv-02052 (D. Ariz., filed April 28, 2014) (D. Az., filed April 28, 2014) (Tucson Interior Enforcement FOIA)

In January 2014, the Arizona ACLU and two University of Arizona law professors filed a FOIA request with DHS seeking records related to interior enforcement activities by the Border Patrol’s Tucson and Yuma Sectors (covering all of Arizona and a portion of southeastern California) from 2011 to 2014. The request specified that it included complaints and investigations, apprehension statistics, stop records, policies, and training materials.

DHS failed to respond to the FOIA request, prompting the Plaintiffs to sue in federal court in April 2014.  The government eventually identified at least 10,000 pages of responsive records, but has released only half of those records. Approximately 1,200 pages were withheld in full and the remaining records were heavily redacted; there was no legal justification or explanation for these redactions. CBP subsequently acknowledged the existence of substantially more responsive records, which it has refused to provide.

As of April 2017, litigation is ongoing. On January 26, 2017, the Magistrate Judge issued a report and recommendation that the District Court (1) grant in part and deny in part Defendant’s Motion for Summary Judgment, and (2) grant in party and deny in part Plaintiffs’ Cross-Motion for Summary Judgment. DHS filed its objection to the report and recommendation on March 15, 2017.

Even the limited records released to date provide troubling insights into Border Patrol’s internal enforcement operations.  In October 2015, the ACLU released a report, Record of Abuse, based on the agency records it obtained, which the ACLU also made available on its website.

The case settled and was dismissed pursuant to a joint motion on February 15, 2018.

Contact: Kathy Brody | ACLU of Arizona | kbrody@acluaz.org 

Resources:

Lopez-Venegas, et al. v. Johnson, et al.

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Lopez-Venegas, et al. v. Johnson, et al. No. 2:13-cv-03972 (C.D. Cal., filed June 4, 2013)

Filed by the ACLU and Cooley LLP on behalf of eleven Mexican nationals and three immigration advocacy organizations, this class action lawsuit challenged deceptive tactics used by Border Patrol agents and ICE officers to convince noncitizens to accept “voluntary return.” Each individual plaintiff had significant family ties in the United States and lacked any serious criminal history. Thus, they could have asserted strong claims to remain in the United States if they had been granted a hearing before an immigration judge.

The complaint alleged that Border Patrol agents and ICE officers have a pattern and practice of pressuring undocumented immigrants to sign what amount to their own summary expulsion documents. In recent years, this “voluntary return” procedure has been used to summarily expel hundreds of thousands of noncitizens from Southern California. Because of the coercive and deceptive tactics immigration officers employ, voluntary return regularly results in the involuntary waiver of core due process rights. An individual who signs for voluntary return forfeits his or her right to a hearing before an immigration judge and is usually expelled from the United States within a matter of hours.

Through the lawsuit, the individual plaintiffs sought to return to the United States and to receive a fair hearing before an immigration judge. The organizational plaintiffs, the Coalition for Humane Immigrant Rights of Los Angeles, the Pomona Economic Opportunity Center, and the San Bernardino Community Service Center, sought systemic reforms to the voluntary return process throughout Southern California.

Following more than a year of litigation, including intensive discovery and the deposition of key government officials, the government agreed to significant reforms of the voluntary return system in Southern California. Under a settlement reached by the parties, government officials must:

  • Provide detailed information – in writing, orally, and through a 1-800 hotline – regarding the consequences of accepting voluntary return to noncitizens asked to choose between voluntary return and a hearing before an immigration judge;
  • Cease “pre-checking” the box selecting voluntary return on the forms the immigration agencies provide to noncitizens;
  • Permit noncitizens to use a working phone, provide them with a list of legal service providers, and give them two hours to reach someone before deciding whether to accept voluntary return;
  • Provide lawyers meaningful access to clients detained by Border Patrol or ICE;
  • Cease pressuring or coercing individuals to accept voluntary return;
  • Allow some of the hundreds of thousands of Mexican nationals who have been subject to unlawful voluntary returns to reunite with their families in the United States; and
  • Allow ACLU attorneys to monitor compliance with the settlement agreement for three years.

Additional information on the class settlement is available here.

90 class members were identified under the settlement, and 82 of those individuals successfully returned to the United States. Others decided not to return, or could not be located. Monitoring of compliance of the settlement is ongoing. The ACLU of San Diego and their partners conducted visits to Border Patrol stations covered by the settlement in March 2017 to monitor compliance.

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Counsel: ACLU Foundation of San Diego & Imperial Counties; ACLU Foundation of Southern California; ACLU Immigrants’ Rights Project; Cooley LLP

FTCA Administrative Complaints of Four Women Denouncing Hieleras

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FTCA Administrative Complaints of Four Women Denouncing Hieleras (filed Mar. 12, 2013)

On various dates in early 2013, four women were apprehended at the United States Texas border by Customs and Border Protection (CBP) agents.  After being apprehended, they were taken by CBP to what the agents called a “hielera,” which is Spanish for “icebox” or “icemaker.”  The hieleras are holding cells which agents often maintain at very low temperature.  The women all describe cells in which dozens of detainees were crowded together.  The cells had no beds, no chairs and each had only a single toilet and sink sitting in the open in the corner.  The women were kept in the cells for as long as 13 days.

The cells were so cold that the women’s fingers and lips turned blue.  They often were fed only one meal a day consisting of a single sandwich, which frequently was frozen. They received nothing to drink other than water, which they had to retrieve from the sink, using their hands or a single cup shared by everyone in the cell.  They were not given blankets or pillows.  Sleeping on the freezing cold floor was next to impossible.  Pregnant women and women with children were present in the cells.

Two of the women are diabetics whose prescriptions were confiscated at the time they were apprehended and never returned.  Both suffered medical problems after their medication was taken from them.  One of them passed out twice and finally was taken to the local hospital’s emergency room.

None of the women were afforded access to a shower or a bath.  Two of them had their menstrual cycles while detained but had no access to a bathroom for bathing.  There was no soap, no change of underwear, and no toothbrushes or toothpaste.

CBP agents regularly asked each of the women to sign documents printed in English, which the women could not read and did not understand.  Agents threatened that they would be kept in the holding cell until they signed these documents.  These agents also referred to them in demeaning ways, including calling them “bitches.”  Only one of the women was asked whether she had a fear of returning to her country of origin, as required, though several of them do.  Eventually, most of the women signed the documents in order to end their suffering in the cold holding cells.  Though they did not understand it at the time, they had signed expedited removal orders. Each of the women was subsequently transferred to a Texas jail and then to a detention facility in Florida while awaiting removal.  All the women filed administrative complaints for damages against the United States for the suffering they endured at the hands of CBP agents. One of these women, Alba Quinonez Florez, subsequently sued the U.S. government in federal court based on the abuses described above.

The government failed to respond to the administrative complaint within the six-month deadline. None of the claimants decided to file a federal complaint.

Counsel: Americans for Immigrant Justice

Contact: Jennie Santos | AI Justice | jsantos@aijustice.org

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Mireles v. Riano, et al.

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Mireles v. United States Customs and Border Protection Agent Riano in his individual capacity and the United States of America, No. 1:13-cv-00197 (S.D. Tex., filed Oct. 21, 2013)

Laura Mireles brought this lawsuit against the United States and a CBP officer for violations of her Fourth Amendment rights as well as Texas state law after the officer used unwarranted force and physical abuse before arresting her without any justification at the U.S.-Mexico border.

Ms. Mireles is small in stature, approximately 5’1” tall and 100 pounds, and has a visible malformation of her hands and feet. She has worked at a store on the U.S. side of an international bridge in Brownsville, near the CBP inspection station, since 2005. On November 5, 2012, Ms. Mireles crossed to the Mexican side of the bridge for roughly 15 minutes to pick up keys to lock the store. After she closed the store, CBP Officer Riano stopped Ms. Mireles and searched her car. Ms. Mireles did not interfere with the search and no illegal items were found. Yet the officer became agitated and reacted violently when Ms. Mireles asked him about his search of her handbag. He grabbed her with both hands and threw her onto the ground with such force that her jeans ripped open at the knee and she suffered a large knee wound as well as several cuts and abrasions on her elbows; the officer put his full weight—roughly double that of her own—on Ms. Mireles’s small frame and handcuffed her so tightly that the fire department later had to be summoned to cut the handcuffs from her wrists. Ms. Mireles, who was understandably confused, scared, and crying, asked the agent to explain what was happening. He responded by threatening to hit her if she didn’t “shut up.” After being treated by paramedics for her injuries, Ms. Mireles was released from custody without being charged with an offense.

Ms. Mireles first filed a formal administrative complaint with CBP in March 2013, seeking damages for the serious harm she suffered as a result of Officer Riano’s unlawful actions. That complaint was denied a little more than a month later without explanation. Ms. Mireles subsequently filed suit in federal district court, alleging claims against the United States under the Federal Tort Claims Act (FTCA) and constitutional claims against Officer Riano pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

The United States moved to dismiss, arguing that it had not waived sovereign immunity under the FTCA based on the customs-duty exception set forth in 28 U.S.C. § 2860(c). Officer Riano sought dismissal based on qualified immunity. Adopting the Magistrate Judge’s Report and Recommendation, the Court found that it lacked jurisdiction to consider the FTCA claims because the United States has not waived sovereign immunity under the customs-duty exception for “[a]ny claim arising in respect of …the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” 28 U.S.C. § 2860(c), The Court denied Officer Riano’s Motion to Dismiss, finding that Riano had “violated Mireles’s established constitutional rights,” and was thus not entitled to qualified immunity.

On May 3, 2016, the district court stayed the case pending the outcome of Simmons v. Himmelreich, a Supreme Court case dealing with whether the dismissal of a claim against the U.S. on the basis of an FTCA exception effectively bars separate Bivens actions against individual federal employees because of the FTCA’s judgment bar provision. The Supreme Court unanimously held in June 2016 that the FTCA’s judgment bar provision does not apply, and thus does not affect the claims against the individual defendants. On July 29, 2016, a magistrate judge issued a report and recommendation finding Defendant Riano was not entitled to qualified immunity and recommending the denial of his motion for summary judgment. On September 15, 2016, the court adopted the report and recommendation, and in October of 2016, the parties stipulated to dismiss the case.

Press:

Counsel: ACLU of Texas | Law Office of Gilberto Hinojosa & Associates, P.C. | University of Texas School of Law Civil Rights Clinic

Contact: Tom Hargis | ACLU of Texas | 832.291.4776 | media@aclutx.org (press)
Edgar Saldivar | ACLU of Texas | esaldivar@aclutx.org (legal)