Tag Archives: FTCA

K.O. and E.O. Jr., v. United States

Posted on by

K.O. and E.O. Jr., v. United States, No. 4:20-cv-12015 (D. Mass., filed Nov. 9, 2020)

Plaintiffs nine-year-old K.O. and her older brother, seventeen-year-old E.O. Jr., were forcibly separated by CBP agents from their mother upon entry to the United States, during the Trump administration’s “Zero Tolerance Policy.” Plaintiffs brought a class action lawsuit against the Department of Homeland Security, including Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), and the Department of Health and Human Services (HHS), among other federal agencies. The Plaintiffs allege claims under the Federal Tort Claims Act, asserting common law claims for intentional infliction of emotional distress, negligent infliction of emotional distress, false imprisonment, false arrest, assault and battery, negligent supervision, tortious interference with parent-child relationship, and loss of consortium.

On May 19, 2018, plaintiffs K.O. and E.O., along with their mother, entered the U.S. at the southern border to seek asylum from violence and persecution in Guatemala. They were apprehended by a Customs and Border Protection (CBP) agent and forcibly separated from their mother. The mother was never charged with a crime. CBP agents also called the father and told him his children were in custody, separate from their mother, and would be placed in the custody of the Office of Refugee Resettlement (ORR).

As the father began the ORR reunification process, the children were reunited and placed back into an ICE facility where they were detained in separate cells that faced each other. They spent two days there and were not allowed to speak with each other. They only had access to thermal blankets. Plaintiffs allege that there was no supervision, no support for children as young as two or three years of age, and the guards physically and verbally abused the children. After two days, ICE agents told the children their mother had been deported. The children were then transferred to ORR facilities in Michigan and were once again separated from each other. One child was placed in an ORR foster care home and the other was placed in an ORR group home. The children were eventually reunited with their father on June 19, 2018. Meanwhile, the mother remained detained in Texas and was unable to contact her husband. After she passed her credible fear interview, she was released on June 28, 2018. The children were separated from their father for 31 days, and their mother for 38 days.

Similarly, Plaintiff C.J., was eleven years old when CBP separated him from his father after travelling to the United States to seek asylum from persecution in Guatemala. They were separated for a total of 36 days. In addition to the trauma from the forcible separation, C.J. was assaulted by another child while he was detained in an ORR facility. 

Plaintiffs seek damages and to establish a fund for the mental health treatment of all class members that were forcibly separated from their parents.  

Plaintiffs filed their complaint on November 9, 2020. On February 28, 2022, Defendants filed a motion to transfer the case to Western District of Texas or in the alternative dismiss for lack of subject matter jurisdiction. The district court held that change of venue was not warranted and denied the motion to transfer. The court also granted the motion to dismiss in part and denied it in part. All claims brought by the parents in their personal capacities were dismissed. Any claims of negligent supervision or negligence in causing the family separation were dismissed. All other claims remain.

Plaintiffs filed an amended complaint on April 11, 2022. On May 10, 2022, Defendants filed a motion to transfer or alternatively a motion to dismiss the amended complaint. On January 9, 2023, the court reiterated its decision denying the transfer and granting and denying in part the motion to dismiss.

Documents:

Counsel: Todd & Weld LLP, Demissie & Church, The Law Offices of Jeff Goldman, Nixon Peabody LLP, Lawyers for Civil Rights

Contact:  Iván Espinoza-Madrigal, Lawyers for Civil Rights, iespinoza@lawyersforcivilrights.org

FTCA Suit on Behalf of U.S.-Citizen Child Held by CBP for 30 Hours

Posted on by

J.A.M., et al., v. United States of America, et al., No. 3:22-cv-00380 (S.D. Cal., filed Mar. 21, 2022)

The family of a 9-year-old girl and 14-year-old boy filed a damages suit under the Federal Tort Claims Act after the children, both U.S. citizens, were held in custody at the San Ysidro Port of Entry – the boy for more than 12 hours and his sister for more than 30 hours. The complaint recounts how J.A.M. and her brother O.A.M. were falsely imprisoned in San Ysidro and coerced into making false confessions about the girl’s identity. Officers insisted to the children that the girl was actually their cousin, who is not a U.S. citizen.

J.A.M. and her brother O.A.M. were on their way from Tijuana to school in San Diego with a family friend. Though both children presented officers with valid U.S. passports, a CBP officer sent them to secondary inspection, then to a holding area. According to the children, CBP officers interviewed them about other young relatives their age and then pressured them to sign false statements claiming that J.A.M. was actually their cousin. The children said they were told that O.A.M. would be taken to jail for smuggling if they did not sign. CBP allegedly intended to have the Mexican consulate interview J.A.M. to verify her identity, but claimed an appointment was not available until the following morning.

Upon learning her children had not made it out of the port of entry, their mother, Ms. Medina Navarro, left the medical facility where she was awaiting surgery to inquire at the port of entry for her children. At first, officers denied having the children in custody. More than 12 hours after her children were first taken into custody, Ms. Medina Navarro received a call that C.B.P. had her son in custody with a girl who was not her daughter, and was told she could come pick up her son. Though Ms. Medina Navarro took additional documents to prove the identity of her daughter, officers did not release J.A.M. to her mother until after J.A.M.’s interview with the Mexican consulate the following day, 33 hours after she was first taken into custody.

The family filed administrative Federal Tort Claims Act complaints. CBP denied the claims in full on September 29, 2021, and the family filed suit on March 21, 2022. The government filed a motion to dismiss for lack of jurisdiction or motion for summary judgment, which was denied on July 21, 2022, and subsequently filed an answer to the complaint on August 4, 2022. On September 28, 2022, the court held a case management conference where settlement negotiations broke down. Discovery is currently underway with depositions occurring in January and February 2023.  

Counsel: Law Offices of Joseph M. McMullen

Contact: Joseph Mark McMullen ǀ (619) 501-2000 ǀ joe@imm-legal.com

Press: Lawsuit alleging border officials falsely imprisoned 9-year-old U.S. citizen girl passes legal hurdle

Estrada v. United States

Posted on by

Estrada v. United States, No. 3:22-cv-00373-AJB-BGS (S.D. Cal., filed Mar. 21, 2022)

On May 14, 2021, in Campo, California, a Border Patrol agent attempted to stop a vehicle suspected of being involved in migrant smuggling. The driver of the vehicle, Silvestre Estrada Vargas, who was accompanied by two other individuals, failed to yield before eventually stopping in a gas station parking lot. Without any legal justification or threat to their safety, an unknown number of Border Patrol agents then began shooting at the vehicle. Mr. Estrada, who was unarmed and had one hand on the steering wheel and another holding a cell phone up to his ear, was struck by an unknown number of bullets. He was transported to a local hospital where he was pronounced dead shortly after arrival. Luckily, the other two occupants of the vehicle, despite being directly in the line of fire, were uninjured.

The San Diego County Sheriff’s Department Homicide Division, the Federal Bureau of Investigation, the San Diego County Medical Examiner’s Office, the Department of Homeland Security Office of Inspector General, and CBP’s Office of Professional Responsibility had all responded to the scene and began an investigation. However, when Plaintiffs’ investigator spoke to the gas station manager, the manager said that one of the responding agencies had already seized a videotape from the gas station surveillance system and had been advised not to speak to anyone about the incident.

Mr. Estrada’s minor son and mother, as well as the two other vehicle occupants, Francisco Madariaga and Jaime Madariaga-Gonzalez, filed this suit on March 21, 2022, pursuant to the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named Agents, alleging wrongful death, excessive use of force, assault and battery, and negligence. On June 27, 2022, Plaintiffs filed an amended complaint, which Defendant United States answered on July 13, 2022. Discovery is currently underway.

Documents:
● Complaint
● Amended Complaint
● Answer

Counsel: Keith Rutman Law

Contact:
Keith Rutman | krutmanlaw.com

Press:
● Border Patrol Sued Over San Diego Man’s Shooting Death in Campo

A.I.I.L. et al. v. Sessions et al.

Posted on by

A.I.I.L. on behalf of herself and her minor children, J.A.H.I. and M.E.H.I., et al., No. 4:19-cv-00481 (D. Ariz., filed Oct. 3, 2019)

This lawsuit seeks damages on behalf of thousands of traumatized children and parents who were forcibly torn from each other under the Trump administration’s illegal practice of separating families at the border.

Leading child welfare organizations, the American Academy of Pediatrics, and medical professionals have publicly denounced the forced separation of children from their parents, citing the long-lasting, detrimental effects on children’s emotional growth and cognitive development. Separated parents, meanwhile, face an increased risk of developing mental health disorders, with trauma linked to severe anxiety, depression, and suicidal thoughts.

Plaintiffs cited in the complaint include families from Guatemala and Honduras who were separated along the border in Arizona for up to 16 months. In addition to damages, the lawsuit seeks the creation of a fund to pay for professional mental health services for affected families.

The lawsuit, A.I.I.L. v. Sessions, cites violations of the Fourth Amendment (unreasonable seizure of children); the Fifth Amendment due process clause (fundamental right to family integrity; right to a hearing; right to adequate health care); and equal protection (prohibiting discrimination on the basis of race, ethnicity, or national origin).

Defendants include officials from the Department of Justice, the Department of Homeland Security (DHS) and Customs and Border Protection (CBP), and Health and Human Services (HHS)/Office of Refugee Resettlement (ORR).

On February 14, 2020, Defendants filed a motion to dismiss Plaintiffs’ complaint, asserting lack of personal jurisdiction, failure to state a claim, and qualified immunity. Briefing on that motion is complete. On July 22, 2020, Plaintiffs sought leave to amend their complaint to include their administratively exhausted Federal Tort Claims Act (FTCA) claims. Defendants requested that the court defer a decision on Plaintiffs’ motion to amend pending the court’s decision on Defendants’ motion to dismiss. On August 31, 2020 the court granted Plaintiffs’ motion to amend and denied Defendants’ motion to dismiss.

On September 3, 2020, Plaintiffs filed their amended complaint. In February 2021, Defendants moved to dismiss the amended complaint for lack of jurisdiction, failure to state a claim, and on qualified immunity grounds.

On May 20, 2021, Plaintiffs sought a stay of the action to facilitate further settlement discussions in hopes of resolving their FTCA claims against the United States. The individual Defendants objected to the stay of the individual-capacity claims. The court lifted the abeyance on January 7, 2022.

On March 31, 2022, the court granted Defendants’ motion to dismiss all claims except for the FTCA claims of four of the five Plaintiff families. With respect to the FTCA claims, the court held, among other things, that those claims were not barred by the discretionary function or due care exceptions to the FTCA. With respect to the dismissed constitutional claims brought under Bivens, the court held, among other things, that special factors counseled against extending Bivens to a new context that challenged high level policy decisions. On July 14, 2022, the court denied the government’s motions to consolidate policy-level discovery in A.I.I.L. with related family separation cases in the district.

On July 15, 2022, the individual Defendants filed a Rule 54(b) motion for the entry of a final judgment as to the claims against the individual defendants. The motion has been fully briefed and remains pending before the court as of November 2022.

Documents:

Counsel: Christine Wee, ACLU of Arizona; Lee Gelernt, Anand Balakrishnan, Daniel Galindo, Stephen Kang, & Spencer Amdur, ACLU Immigrant Rights’ Project; Geoffry R. Chepiga, Jacqueline P. Rubin, Emily Goldberg, Hallie S. Goldblatt, Steven C. Herzog, Paul, Weiss, Rifkind, Wharton & Garrison LLP; Alexander A. Reinert, Benjamin N. Cardozo School of Law.

Contact: Lee Gelernt | ACLU Immigrants’ Rights Project | lgelernt@aclu.org

Blanca Gomez Arellano v. United States

Posted on by

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

C.M., et al., v. United States

Posted on by

C.M., et al., v. United States, No. 2:19-cv-05217-SRB (D. Ariz., filed Sept. 19, 2019)

On September 19, 2019, five asylum-seeking mothers and their children filed a lawsuit for money damages for the trauma they suffered when torn apart under the Trump Administration’s family separation policy. Each family was fleeing persecution in their country of origin. Instead of finding safety in the United States, the government forcibly took the children from their mothers and then left them in the dark about where they were taken and when—if ever—they would see each other again. The mothers and their children suffered greatly during the separations, which in some cases lasted for months. For example:

  • An eight-year-old girl is still unable to sleep unless her mother holds her.
  • A seven-year-old boy separated from his mother for more than two months refuses to talk about his time in a New York shelter and is reluctant to eat.
  • A 14-year-old boy refuses to discuss the separation or his time in detention and experiences outbursts of inexplicable anger.
  • A six-year-old girl has nightmares about her experience and often screams out to her mother in the night seeking protection from people who might separate them again.
  • An eight-year-old boy shows constant signs of fear when he is apart from his mother, especially when his mother takes him to school.

On February 11, 2019, the families filed administrative claims under the Federal Tort Claims Act (FTCA). When the government failed to respond, they brought suit. The complaint charges the government with intentionally inflicting emotional pain and suffering on these families in order to deter other Central Americans from seeking asylum in the United States. The complaint also alleges negligence.

On March 30, 2020, the district court denied the government’s motion to dismiss, finding that neither the due care exception nor the discretionary function exception to liability under the FTCA barred the claims. The government moved the court to certify its order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Briefing on that motion was completed on June 19, 2020. On July 6, 2020, the court denied the government’s motion. Discovery is ongoing. The court has resolved several discovery disputes in Plaintiffs’ favor, including rejecting the government’s claim that records and deposition testimony related to the government’s 2017 planning to separate families was unrelated to the 2018 family separations. On July 14, 2022, the Court denied the government’s motions to consolidate policy-level discovery in C.M. with related family separation cases in the district.

On December 14, 2022, Plaintiffs filed a motion for sanctions arising from the Defendants’ production of thousands of documents after the close of fact discovery resulting in Plaintiffs’ inability to review them to determine who to depose or what to cover during the vast majority of the fact depositions. The court has not ruled on Plaintiffs’ motion for sanctions.

Documents:

Counsel: The American Immigration Council, the National Immigrant Justice Center, Arnold & Porter, the National Immigration Litigation Alliance, and Kairys, Rudovsky, Messing, Feinberg & Lin.

Contact: Emma Winger | American Immigration Council | 202-507-7512  | ewinger@immcouncil.org

Press: Maria Sacchetti, Lawyers for migrants say U.S. officials slowed family reunifications, Wash. Post. (June 8, 2022, 12:07 AM).

Note: Other cases involving family separation in the District of Arizona are

  • M.S.E. v. United States, 2:22-cv-1242 (D. Ariz., filed July 25, 2022);
  •  E.C.B. v. United States, 2:22-cv-915 (D. Ariz., filed May 27, 2022);
  • J.P. v. United States, 2:22-cv-683 (D. Ariz., filed Apr. 25, 2022);
  • F.R. v. United States, 2:21-cv-339 (D. Ariz., filed Feb. 25, 2021);
  • B.A.D.J. v. United States, 2:21-cv-215 (D. Ariz., filed Feb. 8, 2021); 
  • E.S.M. v. United States, 4:21-cv-00029 (D. Ariz., filed Jan. 21, 2021);
  • Fuentes-Ortega v. United States, 2:22-cv-449 (D. Ariz., filed Nov. 17, 2020).

Other cases involving family separation filed in the District of New Mexico include:

  • A.E.S.E v. United States, 2:21-cv-569 (D.N.M., filed Jun. 18, 2021);
  • S.E.B.M. v. United States, 1:21-cv-95 (D.N.M., filed Feb. 5, 2021).

FTCA Administrative Complaints of Four Women Denouncing Hieleras

Posted on by

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

Press:

Mireles v. Riano, et al.

Posted on by

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)