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Enforcement, Challenges Against CBP

ARCHIVED ISSUE PAGE (LAST UPDATED AUGUST 2012)

With over 58,000 employees, U.S. Customs and Border Protection, the largest law enforcement agency in the United States, has significantly expanded its immigration-related activities since 2009.  Credible reports of abuses by Border Patrol agents and other CBP officers have fostered increased litigation in recent years.  This Litigation Issue Page highlights challenges to CBP misconduct and related FOIA lawsuits.

Federal Litigation

Proposed Class Challenges Unconstitutional Stops and Interrogations by Border Patrol Agents in Washington State
Jose Sanchez, et al. v. U.S. Office of Border Patrol, et al., No. 2:12-cv-00735 (W.D.Wa. filed April 26, 2012)

The Northwest Immigrant Rights Project (NWIRP) and the ACLU of Washington, in collaboration with Perkins Coie LLP, filed a class action lawsuit alleging that the Border Patrol’s practice of stopping vehicles on the Olympic Peninsula and interrogating occupants without legal justification violates their constitutional rights.

The lawsuit seeks declaratory and injunctive relief.  Specifically, plaintiffs and class members seek declarations that the defendants, including Border Patrol, CBP and DHS, have violated their Fourth Amendment rights, that they have exceeded their legal authority, and that it is unlawful for Border Patrol agents to conduct a vehicle stop without a valid warrant or “a particularized reasonable suspicion based upon specific and articulable facts and rational inferences” that the occupants are unlawfully present in the United States.  Plaintiffs and class members also seek an injunction prohibiting the defendants from conducting further vehicle stops until all Border Patrol agents on the Olympic Peninsula have received appropriate training and demonstrated, through testing, that they understand the legal requirements.  Finally, the lawsuit seeks an injunction requiring the defendants to maintain records of their training and testing and to prepare documentation regarding the basis for each vehicle stop they conduct, which should be accessible to a court-appointed special master for purposes of monitoring compliance.

Complaint

FOIA Suit Against DHS for Failure to Disclose Records on “Voluntary” Returns
AIC v. DHS and CBP, No. 1:12-cv-00932 (D.D.C. filed June 8, 2010)

In June 2012, the LAC, in collaboration with Hughes Socol Piers Resnick & Dym, filed suit against DHS and CBP for unlawfully withholding records concerning voluntary returns of noncitizens from the United States to their countries of origin. Voluntary return, also known as “administrative voluntary departure,” is a procedure whereby CBP officers permit noncitizens to voluntarily depart the United States at their own expense rather than undergo formal removal proceedings. Noncitizens may be granted voluntary return to their countries of origin after conceding unlawful presence in the United States and knowingly and voluntarily waiving the right to contest removal.

Based on reports from immigration advocates, CBP officers do not always provide noncitizens with information regarding the consequences of accepting voluntary return and in some cases even compel them to “agree” to “voluntarily” depart. Consequently, individuals who accept voluntary departure may be forced to relinquish claims for legal status in the U.S. or become barred from lawfully reentering the United States for up to ten years.

The LAC filed a detailed FOIA request regarding these practices in June 2011. CBP produced four pages of records with the promise of more to come. After waiting almost a year for additional documents, the LAC filed suit under the FOIA.

Complaint

Class Action Alleges Racial Profiling by Ohio Police and Border Patrol
Muniz v. Gallegos, No. 09-02865 (N.D. Ohio. filed Dec. 10, 2009)

Several individuals and two workers’ rights organizations filed a class action against federal border patrol agents and local police officers in Ohio, alleging that officers engage in systematic racial profiling of Hispanic residents in three Ohio towns. Several plaintiffs describe being stopped and questioned about their immigration status while driving, pumping gas, or walking their children home from school. Plaintiffs allege that border patrol officers were acting solely on the basis of their Hispanic appearance and did not have any reasonable suspicion or probable cause to suspect that the individual was present without authorization. Several plaintiffs also describe being followed and approached by local police officers who ask if the plaintiff is “illegal” and/or ask to see their “papers,” although the local police are not authorized to arrest or detain individuals based on suspected civil immigration violations. Plaintiffs allege that the Sandusky Border Patrol Station has conducted seminars and otherwise instructed local police departments to target Hispanic residents for restraint and interrogation about their immigration status. The plaintiffs claim that these actions violate INA § 1101 et seq., and their Fourth, Fifth and Fourteenth Amendment rights.

Plaintiffs propose that the court certify two classes: 1) “All Hispanics who have been or will be restrained and interrogated on or after January 1, 2009 by Border Patrol Agents stationed at the Sandusky Border Patrol station;” and 2) “All Hispanics who have been or will be restrained and interrogated on or after January 1, 2009, by officers of the Attica, Norwalk, or Plymouth police departments.”

Class 1 members seek declaratory and injunctive relief and attorneys’ fees from defendant border patrol agents. Class 2 members seek declaratory and injunctive relief and attorneys’ fees from defendant police officers. In addition, individual plaintiffs seek compensatory and punitive damages from defendant border patrol agents and police officers in their individual capacities in addition to equitable relief sought as part of a class.

On March 18, 2010, certain defendants filed a motion to dismiss, which the court denied as moot on March 31, 2010. Defendants also filed three motions for judgment on the pleadings in June 2010. On September 29, 2010, the court denied these motions without prejudice and with the right to refile following limited discovery. Discovery in this case is ongoing.

To date, two of the local defendants settled with the plaintiffs for money damages, attorney’s fees, and the adoption of unbiased policing policies.  As of July 2012, the plaintiffs were negotiating with the third local defendant.  Trial on the individual and organizational plaintiffs’ claims against the Border Patrol is set for the first two weeks of December 2012.

Amended Complaint

Defendants’ March 18, 2010 Motion to Dismiss

Order on Defendants’ March 18, 2010 Motion to Dismiss

Order on June 2010 Motions for Judgment on the Pleadings

Laura Nancy Castro, et al. v. Michael T. Freeman, et al. 1:09-cv-00208 (S.D. Tx. filed Sept. 7, 2009):

Refugio Del Rio Grande, the National Immigration Project of the National Lawyers Guild, Jones & Crane, and the Law Office of Javier N. Maldonado, PC, filed a class action lawsuit challenging various practices and policies of defendants U.S. Customs and Border Protection (CBP), the Department of State (DOS), and the Department of Homeland Security (DHS) which deprive birthright citizens of privileges, benefits, and protections guaranteed them under the U.S. Constitution.  In particular, plaintiffs’ Fourth Amended Complaint challenges: DHS (including CBP) practices at U.S. ports of entry that result in mistreatment of citizens, confiscation of documents of citizens, and/or denial of  entry of citizens; and DOS’s practices that deprive citizens of due process in the passport application and revocation process. Additionally, the complaint challenges DHS (including CBP) practices that result in the mistreatment of the parents of U.S. citizens at ports of entry. 

The lawsuit seeks injunctive relief and damages.  With respect to the CBP-related claims (Causes of Action 7 and 8), plaintiffs seek declarations that the actions and practices challenged in the complaint violate federal law; that applicants for entry with facially valid documents are entitled to fair procedures in determining whether they will be allowed to enter; and that these procedures must include the right to be represented by counsel and the right to be free from interrogation practices that violate the Convention Against Torture.  Plaintiffs also seek an injunction with respect to Causes of Action 7 and 8 which would limit the tactics that defendants (including CBP officers) may use at ports of entry when questioning U.S. citizens or their parents about their birth in the U.S. 

On November 22, 2011, the Court denied defendants’ motion to dismiss Cause of Action 7 due to the lack of standing of the plaintiffs.  The Court found that one of the named plaintiffs had standing to assert the constitutional claims and that, because the case was brought as a class action, the standing of one plaintiff was sufficient.  Subsequently, plaintiffs indicated that they will not be moving to certify a class with respect to Cause of Action 7.  In July, 2012, Defendants again moved to dismiss this Cause of Action, arguing that two of the plaintiffs lack standing to bring the claim individually and all plaintiffs fail to state a claim upon which relief can be granted.  The case remains pending.

Fourth Amended Complaint

Defendants’ Motion to Dismiss Seventh Cause of Action

Order on Class Certification and Motion to Dismiss

Longstanding Injunction against DHS and CBP Arrest and Detention Abuses towards Salvadorans
Orantes-Hernandez v. Holder, No. 82-011107 (C.D. Ca. filed 1982)

The Orantes case was filed in 1982 on behalf of all Salvadorans detained without a warrant by officers of the former Immigration and Naturalization Service (INS), including U.S. Border Patrol agents.  A nationwide class was certified, Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982), and a permanent injunction subsequently issued.  Orantes-Hernandez v. Meese, 685 F. Supp. 1488 (C.D.Cal. 1988), aff’d., Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990).  The district court granted the injunction after finding that INS and Border Patrol agents had engaged in a pattern and practice of coercing Salvadorans to waive their rights to apply for asylum, pressuring them to accept voluntary departure, and severely restricting their access to counsel and information about their rights at detention centers.  The injunction, as subsequently modified, required defendants to: advise arrested Salvadorans of the right to apply for asylum, to be represented by counsel, and to request a deportation hearing; use specific procedures when detaining, processing and removing plaintiffs, and not coerce plaintiffs into signing voluntary departure orders. 

In November 2005, the government filed a motion to dissolve the permanent injunction.  The district court denied this motion in large part and the Ninth Circuit upheld that decision.  Orantes-Hernandez v. Holder, Nos. 07-56509 and 08-55231 (April 6, 2009).  Class counsel are the National Immigration Law Center, ACLU of Southern California, and ACLU Immigrant Rights Project, with pro bono assistance provided by the law firms of Holland & Knight and Orrick, Herrington & Sutcliffe.   Class counsel continue to monitor compliance with the injunction.  For more information on this lawsuit, see http://www.nilc.org/orantes.html.

Ninth Circuit affirmance of District Court injunction

Modified injunction by District Court following government’s motion to dissolve

Ninth Circuit’s decision upholding District Court’s modified injunction

Administrative Advocacy Regarding CBP Interpretation Practices

USDA Decision Finding that Forest Service’s Use of Border Patrol for Interpretation Violates Civil Rights
Complainant v. Vilsack, Program Complaint No.:  FS-11-5171 (May 31, 2012)

In a case filed by the Northwest Immigrant Rights Project (NWIRP) on behalf of one of its clients, the U.S. Department of Agriculture’s Office of the Assistant Secretary for Civil Rights (OASCR) found that the U.S. Forest Service’s practice of using Border Patrol agents to provide interpretation and backup assistance was “discriminatory on its face, and not solely in the circumstances of this case.”  OASCR concluded, among other things, that the use of Border Patrol agents for interpretation violates applicable civil rights policies and regulations because the increased threat of enforcement action for Latinos, whether lawfully present or not, discourages them from using the services of the Forest Service and may cause harm or humiliation.  The decision held further that interpretation services provided by the Border Patrol do not satisfy applicable ethical standards because they are neither impartial nor confidential, and do not advise individuals of potential conflicts of interest and risks.  

OASCR ordered the Forest Service to take significant steps to remedy its discriminatory policies and practices by: 

  • Developing and implementing a national language access policy to ensure that individuals with limited English proficiency have meaningful access to services and benefits;
  • Developing and implementing a national law enforcement data collection policy to reduce racial profiling;
  • Requiring Forest Service offices in the Olympic National Forest to post notices informing the public of the decision and provide information on how to file civil rights complaints;
  • Requiring the Forest Service officer who stopped the complainant and his supervisor to complete 40 hours of civil rights training.

NWIRP press release

Redacted version of USDA decision

LAC FOIA Requests regarding Border Patrol Involvement in Translation and 911 Dispatch Activities (May 31, 2012)  On behalf of an alliance of immigration advocacy groups, the LAC filed FOIA requests with CBP and DHS seeking information regarding CBP policies on providing translation assistance to other law enforcement agencies and on participating in 911 dispatch activities. The alliance is seeking documents explaining the relevant legal authority, applicable procedural guidance, training materials, statistical data, and complaints filed with the government as a result of CBP’s practices.  Through their FOIA requests, the alliance —which includes the American Immigration Council, the Michigan Organizing Project/Alliance for Immigrants & Reform Michigan, Migrant Justice, the New York Immigration Coalition, the Northwest Immigrant Rights Project, and OneAmerica—hopes to promote greater transparency regarding these unlawful practices.

Translation Assistance FOIA

Response from DHS Office for Civil Rights and Civil Liberties (OCRCL) - 89 pages
Index to documents received from OCRCL

Response from DHS Office of Inspector General (OIG) - 8 pages
Index to documents received from OIG

911 Dispatch Activities FOIA

Response from DHS Office for Civil Rights and Civil Liberties (OCRCL) - 93 pages
Index to documents received from OCRCL

Response from DHS Office of Inspector General (OIG) - 2 pages
Index to documents received from OIG

NWIRP complaint against DOJ and DHS challenging local, state and federal law enforcement agencies’ practice of calling in Border Patrol agents as interpreters for routine matters (May 1, 2012).  This complaint highlights six cases where law enforcement officers in Washington State contacted Border Patrol agents to provide interpretation assistance during traffic stops, even in some instances where the targeted individuals were conversant in English or did not speak Spanish. In each case, the Border Patrol agents engaged in independent questioning about immigration status and ended up initiating deportation proceedings.

Other Border-Related Administrative Advocacy

ACLU complaint and request for investigation of abuse of power, excessive force, coercion, and unlawful confiscation of property by CBP at ports of entry along the U.S.-Mexico border (May 9, 2012)

Letter from Northern Borders Coalition to Secretary Janet Napolitano regarding abuses by Border Patrol along northern border (February 7, 2012)