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ARCHIVED ISSUE PAGE (LAST UPDATED AUGUST 2011)

ICE has expanded its enforcement activities, resulting in many highly publicized and criticized enforcement actions at workplaces and in homes and local communities. ICE also is employing local and state officers in some of these actions. This Litigation Issue Page highlights litigation challenging the legality of enforcement activities.

Unlawful Searches and Seizure (outside the workplace)|Worksite Raids|Additional Resources

Unlawful Searches and Seizure (outside the workplace)

Arizona 

Suit Challenged Unlawful Stop; Alleged Ethnic Profiling
Mora v. Arpaio, No. 09-01719 (D.Ariz. dismissed July 13, 2011)
(CASE CLOSED)

An LPR and his U.S. citizen son filed a suit against Sheriff Joseph Arpaio and several other Maricopa County officials, charging that sheriff’s deputies unlawfully stopped their vehicle on a public street, then searched and detained them for several hours during an immigration-related raid at a worksite 100 yards away. Plaintiffs charge, inter alia, that they were targeted because of their ethnicity and/or perceived national origin and were subjected to unreasonable search and seizure. Plaintiffs claim that the deputies’ actions in this case form part of a pattern or practice of constitutional violations by the Maricopa County Sheriff’s Office in its conduct of immigration enforcement raids. Plaintiffs are seeking declaratory relief and compensatory and punitive damages.

The parties filed motions for partial summary judgment. On April 25, 2011, the district court ruled that sheriff's deputies violated the plaintiffs' Fourth Amendment rights by stopping their car and placing them under arrest without sufficient justification. The court also ruled that Maricopa County could itself be held liable because the raid arose from a policy established by Sheriff Arpaio.

On July 1, 2011, the parties reached settlement. As part of the settlement, Maricopa County agreed to pay $200,000 to plaintiffs and their lawyers in exchange for dismissal of the lawsuit.

Court Denies Motion to Dismiss Suit Challenging Racial Profiling in Traffic Stops
Melendres v. Arpaio, 07-2513, 598 F. Supp. 2d 1025 (D. Ariz. motion to dismiss denied 2009)

A district court in Arizona on February 10, 2009, denied a motion to dismiss a lawsuit that challenges the county sheriff's office racial and ethnic profiling in traffic stops to probe car occupants about their immigration status. Plaintiffs filed the lawsuit on December 12, 2007, against the Maricopa County Sheriff's Office (MCSO) for engaging in racially and ethnically discriminatory conduct as a means of enforcing federal immigration laws. The amended complaint, filed on September 5, 2008, states claims under the Fourth and Fourteenth Amendments, Title VI of the Civil Rights Act and the Arizona Constitution. According to the complaint, defendants are violating the terms of their limited agreement with ICE pursuant to the 287(g) program to help enforce federal immigration law by using discriminatory practices that are expressly prohibited by the program. Plaintiffs allege that defendants are conducting pretextual stops of drivers and passengers who appear to be Latino based on the mere fact of their race, color and/or ethnicity. Plaintiffs further allege that defendants are detaining, questioning and searching the occupants' vehicles without the requisite level of suspicion.

On April 29, 2009, plaintiffs filed a motion to certify a class of “[a]ll Latino persons who, since January 2007, have been or will be in the future, stopped, detained, questioned or searched by MSCO agents while driving or sitting in a vehicle on a public roadway or parking area in Maricopa County, Arizona.” On August 24, 2009, the Court denied the plaintiffs’ motion for class certification without prejudice to it being reasserted once the issue of standing is resolved. On April 29, 2011, plaintiffs filed a renewed motion for class certification and a motion for partial summary judgment requesting summary judgment on the claim that Sheriff Arpaio and MCSO are violating the Fourteenth Amendment. The court has yet to rule on plaintiffs’ renewed motion for class certification and motion for partial summary judgment.

California 

Seven Year-Old Boy Sued ICE after Raid of his Home; Parties Reach Settlement
Reyes v. Alcantar
, No. 07-02271 (N.D. Cal. dismissed Sept. 16, 2008)
(CASE CLOSED)

Plaintiff Kebin Reyes, a United States citizen, filed suit by and through his guardian ad litem and father, Noe Reyes, alleging violations of his Fourth Amendment right against unreasonable searches and seizures, limitations set forth in 8 U.S.C. § 1357 (governing powers of immigration officers), and his Fifth Amendment due process rights. Reyes claimed that these violations took place when ICE agents entered his home, took him into custody without a warrant for his arrest, and forced him to remain in custody for approximately 12 hours. Reyes sought compensatory and punitive damages.

The parties reached a settlement agreement, which the court approved on June 25, 2008. As part of the settlement, the government will pay plaintiff $30,000. In addition, the agreement provides that if Kebin Reyes' father has a final removal order entered against him, he will be granted deferred status subject to biennial reviews of extension. The court subsequently dismissed the case.

Connecticut 

Damages Suit Alleges 4th and 5th Amendment Violations During ICE Home Raids
Diaz-Bernal v. Dep’t of Homeland Sec., No. 09-01734 (D. Conn. filed Oct. 28, 2009)

On October 28, 2009, ten plaintiffs filed suit in response to a series of 2007 community raids in New Haven, CT. Plaintiffs allege that ICE officers raided residents’ homes without warrants or consent, and interrogated, arrested, and detained them in violation of their Fourth and Fifth Amendment rights. The complaint alleges that officers did not have individualized reasonable suspicion that any plaintiff was in violation of immigration laws, and that the interrogations and arrests were on the basis of plaintiffs’ skin color and physical appearance. Plaintiffs further allege that ICE’s actions were part of a pattern or practice of violations and were planned in response to pro-immigrant policies recently enacted by New Haven political and community leaders, in violation of New Haven’s local sovereignty as protected by the Tenth Amendment. Plaintiffs are seeking declaratory relief and damages.

On March 1, 2010, defendant United States filed a partial motion to dismiss plaintiffs’ Tenth Amendment claim and request for declaratory judgment against the United States for lack of subject matter jurisdiction. On April 30, 2010, federal defendants also filed a motion to dismiss all of the claims asserted against them in the action. On May 19, 2010, defendant United States filed a partial motion to dismiss plaintiffs’ claims of negligent hiring, training, and supervision for lack of subject matter jurisdiction. On June 4, 2010, plaintiffs filed an amended complaint and on October 27, 2010, the court denied all three of defendants’ motions to dismiss as moot. Defendants renewed their motions to dismiss. On December 16, 2010, the court granted these motions in part and denied them in part. On January 11, 2011, defendants appealed the court’s order on the motions to dismiss. Plaintiffs filed an amended complaint on January 20, 2011.

On April 5, 2011, the court granted the request for a settlement conference with a magistrate judge and denied federal defendants’ request for a stay of discovery. Settlement conferences took place on April 13, 2011 and May 24, 2011.

Day-Laborers Filed Suit after Raid
Barrera v. Boughton, No. 07-01436 (D. Conn. dismissed Feb. 25, 2011)

On September 26, 2007, ten plaintiffs filed suit in response to an arrest of day laborers at a public park in Danbury, Connecticut. Plaintiffs amended their complaint on November 26, 2007. The amended complaint states that plaintiffs sought to remedy the continued discriminatory and unauthorized enforcement of federal immigration laws against the Latino residents of the City of Danbury by Danbury's mayor and its police department. Plaintiffs allege that the arrests violated their Fourth Amendment rights and the Connecticut Constitution because defendants conducted the arrests without valid warrants, in the absence of exigent circumstances, and without probable cause to believe that plaintiffs were engaged in unlawful activity. In addition, plaintiffs allege that defendants improperly stopped, detained, investigated, searched and arrested plaintiffs. Plaintiffs also allege that defendants violated their Fourteenth Amendment rights when they intentionally targeted plaintiffs, and arrested and detained them on the basis of their race, ethnicity and perceived national origin. Plaintiffs raise First Amendment, Due Process and tort claims. Plaintiffs request declaratory relief, damages and attorneys fees.

On February 1, 2008, defendants filed two motions to dismiss. One motion moved to dismiss plaintiffs' complaint pursuant to Fed. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction and on the basis of the independent contractor exception to the Federal Tort Claims Act. The other motion moved to dismiss the state law claims and a Bivens claim pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief may be granted. On March 7, 2008, plaintiffs filed an opposition to defendants' motion to dismiss and moved to certify four questions of state constitutional law to the Connecticut Supreme Court.

With the exception of one count, the court denied the defendant's motions to dismiss on March 10, 2009. On March 20, 2009, Defendants filed their answer to the amended complaint. Defendants assert a number of affirmative defenses, including qualified immunity for the officers involved, and applicability of several exceptions to the Federal Tort Claims Act, including an independent contractor exception.

On August 27, 2009, plaintiffs filed a motion seeking a protective order with respect to all discovery regarding the plaintiffs’ immigration status or alienage. On August 29, plaintiffs filed a separate emergency motion for a protective order barring inquiry into the immigration status of individual plaintiffs at their depositions. The court denied the emergency motion.

On October 1, 2009, plaintiffs filed a second amended complaint. On December 7, 2009, defendants filed a motion to dismiss, seeking to dismiss all of plaintiffs’ claims against the defendants due to lack of jurisdiction, special factors precluding plaintiffs from seeking damages under the Constitution, and qualified immunity barring plaintiffs’ individual capacity claims. The parties participated in several settlement conferences, and at a settlement conference held on February 25, 2011, the parties settled the case. In light of the settlement, the court denied defendants’ pending motion to dismiss without prejudice. The parties later stipulated to dismissal of the case.

Maryland

Suit Challenges Local Immigration Enforcement, § 287(g) Program
Santos v. Frederick County Board of Commissioners, No. 09-02978 (D. Md. filed Nov. 10, 2009), appeal docketed, No. 10-2101 (4th Cir. Sept. 28, 2010)

A woman filed suit against the Frederick County Board of Commissioners, charging that she was approached by Frederick County sheriff’s deputies while eating lunch behind her place of employment, questioned, and asked to provide identification. She alleges that the deputies prevented her from leaving, took her into custody, and turned her over to ICE. The plaintiff alleges, inter alia, that the deputies who questioned her had not been trained under the §287(g) program and were therefore not authorized to enforce civil immigration laws, that the stop was carried out in a racially discriminatory manner, and that the officers did not have individualized suspicion that a crime had been committed.  Plaintiff also brought suit against federal defendants in both their official and individual capacities, for violations of plaintiff’s constitutional rights and their purported role in ensuring that local law enforcement complied with the MOA. Plaintiff is seeking declaratory and injunctive relief and compensatory damages.

On August 25, 2010, the court ruled on defendants’ motions to dismiss. The court denied the Board of Commissioners’ two motions to dismiss.  The court granted the sheriff’s motion to dismiss. The court granted in part and denied in part the deputy sheriff’s motion to dismiss and the federal defendants’ motion to dismiss.  In addition, the court granted plaintiff leave to file an amended complaint containing Bivens claims against certain defendants. 

On September 24, 2010, federal defendants appealed the denial of their motion to dismiss to the Fourth Circuit. On February 9, 2011, the Fourth Circuit granted a stipulation of dismissal of the action against federal defendants and dismissed the federal defendants’ appeal.  On February 18, 2011, plaintiff filed an amended complaint with the district court, and remaining defendants filed an answer to the amended complaint on March 3, 2011.

Minnesota 

Class Action Lawsuit Challenged ICE Raids of Plaintiffs' Homes
Arias v. ICE
, No. 07-01959 (D. Minn. dismissed Feb. 2, 2010)
(CASE CLOSED)

Plaintiffs filed suit alleging that ICE violated their Fourth Amendment rights when agents entered and searched private homes without warrants or plaintiffs' consent, and detained and interrogated plaintiffs in their homes. In addition, plaintiffs claim, inter alia, that ICE agents violated their due process rights, their Fifth Amendment right to protection against self-incrimination, their right to counsel, and their equal protection rights. Plaintiffs seek injunctive and declaratory relief, damages and attorneys' fees.

On April 23, 2008, the court dismissed in part and granted in part defendants' motions to dismiss and on May 16, 2008, the court issued an order denying defendants' alternative motions for summary judgment. On June 20, 2008, several defendants appealed the denial of the motion to dismiss and motion for summary judgment to the Eighth Circuit. On June 23, 2009, the district court dismissed several defendants pursuant to stipulation by parties and on July 17, 2009, granted the motion to dismiss in part and overruled in part, finding that qualified immunity protected only those officers who did not directly participate in the allegedly unconstitutional searches.

On August 11, 2009, the Eighth Circuit remanded plaintiffs’ cases and instructed the district court to reenter its July 17th order granting summary judgment to appellants. The parties then submitted a stipulation of dismissal. On February 2, 2010, the court granted the stipulation of dismissal and dismissed the case with prejudice.

New Jersey

Damages Suit Alleges 4th and 5th Amendment Violations During Raids
Argueta v. Myers, 08-1652 (D.N.J. filed April 3, 2008)

Ten individuals, including U.S. citizens, LPRs and other noncitizens sued ICE employees and local police for Fourth and Fifth Amendment violations that they allege occurred during home raids in New Jersey. The plaintiffs brought their damages claims under Bivens (federal employee defendants) and 42 U.S.C. § 1983 and the New Jersey Constitution (local police defendants). The plaintiffs allege, inter alia, that the defendants entered their homes without valid warrants, consent, or other exigent circumstances or probable cause and that the defendants used excessive force, such as pointing guns at them and pushing down doors with their weapons. According to the complaint, the pre-dawn raids that are part of ICE's "Operation Return to Sender" extended far beyond ICE’s stated goals of arresting individuals with old deportation orders.

On June 26, 2008, defendants filed a motion to dismiss plaintiffs' request for injunctive relief. On September 8, 2008, the court granted defendants' motion to dismiss without prejudice as it applies to a preliminary injunction, but denied the motion with respect to the permanent injunction. On May 6, 2009, the court denied the defendants’ motions to dismiss and ordered that all anonymous plaintiffs identify themselves within three weeks or their complaints would be dismissed.

On June 8, 2009, plaintiffs filed an amended complaint. On June 18, 2009, defendants filed an answer to the amended complaint and again filed a motion to dismiss, arguing that the court lacked jurisdiction and that the individual federal defendants were entitled to qualified immunity. On January 27, 2010, the court denied the individual federal defendants’ motion to dismiss based upon qualified immunity without prejudice except with respect to one plaintiff’s equal protection claim, which the court dismissed.

The individual federal defendants filed an appeal with the Third Circuit on February 9, 2010 and a motion to stay on March 22, 2010. The defendants appealed the district court’s May 6, 2009 and January 27, 2009 orders court’s decision denying, inter alia, their motion to dismiss asserting qualified immunity from suit. The district court granted defendant’s motion to stay on May 19, 2010. On April 16, 2010, plaintiffs filed a Third Amended Complaint. On June 24, 2010, two individual defendant police officers moved to dismiss the claims against them for failure to state a claim. The court granted their motion on November 29, 2010. On August 09, 2010, eight ICE agents moved to dismiss all claims against them. The court granted the motion in part and denied it in part on February 3, 2011. Between August 6, 2010 and February 16, 2011, agent defendants filed separate answers to plaintiff’s Third Amended Complaint. On June 14, 2011, the court of appeals reversed and remanded the district court’s January 28, 2010 decision denying the federal defendants qualified immunity.

New Mexico 

Parties Reach Settlement in Raid on Latinos in New Mexico
Daniel T. v. Bd. of County Commissioners of Otero, No. 07-01044 (D.N.M. dismissed May 27, 2008)
(CASE CLOSED)

A district court approved a settlement in a suit that stemmed from a series of immigration raids in Chaparral, New Mexico. The complaint, filed in October 2007, alleged that the Otero County Sheriff's Department deputies carried out illegal raids of Latino homes looking for undocumented immigrants in violation of the Fourth and Fourteenth Amendments and state laws. According to the complaint, the county officials had implemented a policy of detaining and arresting Latinos who were then taken to be questioned by federal immigration agents. The operation that was the subject of the suit took place on September 10, 2007, when defendants raided plaintiffs' homes without warrants to search for undocumented immigrants; stopped and interrogated Latinos in their cars or on the sidewalk without probable cause or reasonable suspicion; fabricated violations as a pretext for detaining or interrogating plaintiffs; and assaulted and battered plaintiffs who questioned defendants' actions. Plaintiffs sought declaratory relief, injunctive relief, and compensatory and punitive damages.

As part of the settlement, the Otero County Sheriff's Department agreed to revise its operating procedures to protect against raids targeted at Latinos. In addition, the county agreed to pay the plaintiffs monetary damages as well as attorney's fees and costs. The settlement hearing was closed because some of the plaintiffs were minors.

New York 

Class Action Alleges NY Raids Are Unconstitutional
Aguilar v. ICE, 07-08224 (S.D.N.Y. filed Sept. 20, 2007)

United States citizens, lawful permanent residents, and noncitizens without legal status brought a class action following ICE raids of their residences. Plaintiffs allege that defendants violated their Fourth Amendment rights by entering and searching plaintiffs' homes without valid warrants or voluntary consent and in the absence of probable cause and exigent circumstances, and by stopping, detaining, investigating, searching and effecting seizures in the absence of a reasonable articulable suspicion of unlawful activity or probable cause. Plaintiffs also allege that defendants violated the equal protection clause. They are seeking declaratory relief, injunctive relief, and compensatory and punitive damages.

On July 30, 2009, the court issued a protective order restricting the release of information deemed confidential by parties. On December 21, 2009. plaintiffs filed an amended complaint. Federal defendants filed a motion to dismiss for failure to state a claim on March 29, 2010. On May 19, 2010, the government moved to dismiss plaintiffs’ claim for injunctive relief. The court heard oral argument on the pending motions to dismiss on March 8, 2011. The court has yet to rule on these two motions.

On December 22, 2010, plaintiffs filed a motion to certify class. The proposed class would include "Persons who, because they (1) are Latino or live in residences with Latinos, and (2) reside in the jurisdiction of the New York City regional office (or field office) of ICE, have been subjected to and/or are at imminent risk of home raids by the New York City regional office (or field office) of ICE." The court has yet to rule on this motion.

Ohio

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.

Tennessee

Lawsuit Challenges Legality of 287(g) Agreement Under Local Charter
Renteria-Villegas v. Hall
, No. 11-32-II (Tenn. Chanc. filed Jan. 7, 2011), removed to federal court, No. 11-0218 (M.D. Tenn. March 9, 2011).

In January, a resident of Nashville, Tenn., filed a complaint seeking a temporary injunction of the 287(g) agreement between U.S. Immigration and Customs Enforcement (ICE) and the Davidson County Sheriff’s Office.  The complaint alleges that the agreement violates Section 287(g) of the Immigration and Nationality Act, which permits designated law enforcement agents to carry out the powers of federal immigration officers “to the extent consistent with state and local law,” because members of the sheriff’s office are prohibited from engaging in general law enforcement functions under the local charter.

The complaint notes that in 1963, the Charter of Metropolitan Nashville and Davidson County transferred all general law enforcement powers from the Davidson County Sheriff’s Office to the newly created Metropolitan Police Department.  The following year, the Tennessee Supreme Court confirmed that the charter stripped the Sheriff of all law enforcement powers except those “necessary and incidental” to the oversight of city jails. Metropolitan Government of Nashville & Davidson County v. Poe, 383 S.W. 265, 275 (Tenn. 1964).

After the complaint was filed in state court, the local defendants successfully moved to join ICE as a defendant and have the case removed to federal court.  In addition to injunctive relief, plaintiff seeks a declaratory judgment and damages. 

Suit Alleges Woman Shackled During Childbirth after Unlawful Arrest by Local Officers
Villegas v. Metro. Gov’t of Davidson County/Nashville, No. 09-00219 (M.D. Tenn. filed Mar. 4, 2009)

A woman filed suit against DHS officials and Davidson County Sheriffs’ Office (DCSO) officials, alleging that while she was nine months pregnant, she was pulled over for driving without a license and subsequently arrested and detained by sheriff’s deputies. The complaint alleges that if it were not for the county’s 287(g) agreement, the plaintiff would have been issued a citation rather than being arrested. (Under the county’s memorandum of understanding with ICE under the 287(g) program, local officials are authorized to check immigration status only at the local jail; local officials are not authorized to investigate immigration status outside the jail facility. Therefore, if the woman was only issued a citation, officers would never have been authorized to check her immigration status.) After being detained, plaintiff went into labor and was transported to the local hospital. Plaintiff alleges that during her labor and delivery, arm and leg restraints were applied by DCSO officials over a doctor’s objections, and that she was denied access to a breast pump upon return to the jail, leading to pain and infection. Plaintiff is seeking declaratory and injunctive relief and compensatory damages.

The complaint also argues that ICE did not have authority under INA §236 to place a detainer on plaintiff because that section applies to the authority of DHS to arrest noncitizens for which the Secretary of Homeland Security or the Attorney General has issued a warrant. Plaintiff further alleges that DHS officers are authorized by INA §287(d) to issue a detainer, absent a warrant, only where the noncitizen was arrested for a controlled substance violation.

On April 29, 2009, Davidson County defendants filed their answer to the complaint. On April 30, 2009, federal defendants moved to dismiss for lack of jurisdiction and failure to state a claim. On November 19, 2009, the court granted Secretary Napolitano’s motion to dismiss. The claim against Davidson County is scheduled for a jury trial on September 14, 2010, with discovery scheduled to be completed by March 15, 2010.

Worksite Raids

Butler County, Ohio 

Immigrants Arrested in Ohio Raid Filed Suit
Martinez v. Chertoff, No. 07-722 (S.D. Ohio Oct. 26, 2007)

Two individual arrested at a Koch Foods processing plant in Butler County, Ohio, filed suit on behalf of themselves and as the representatives of 120 other unnamed individuals. They alleged that actions by the local Sheriff and ICE during their arrest violated the Supremacy Clause, petitioners' due process and equal protection rights, as well as petitioners' right to full and equal benefit of the laws under 42 U.S.C. § 1981. Plaintiffs also alleged that the sheriff's deputies exceeded their police powers under the Constitution. Plaintiffs requested that the court compel the government to adjudicate their applications for bond, enjoin transfer of the detainees and stay the removal of the detainees. After filing the initial complaint, Koch Foods filed a motion to intervene and a motion for a temporary restraining order.

On October 19, 2007, plaintiffs filed a motion for voluntary dismissal, noting that the case may have become moot by the removal of some of the plaintiffs and the voluntary withdrawal of others. The court dismissed the case on October 26, 2007.

New Bedford, Massachusetts 

350 Employees Detained During Raid in New Bedford Filed Habeas Petition Aguilar v. ICE, 490 F. Supp. 2d 42 (D. Mass. 2007); Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007)

Employees of Michael Bianco, Inc. detained during the March 6, 2007 raid in New Bedford, Massachusetts filed suit "to remedy violations of their constitutional and statutory rights." The consul of Guatemala filed the petition for writ of habeas corpus and complaint for declaratory and injunctive relief as Next Friend on behalf of Petitioners John/Jane Doe ##1-350. The petition alleged that approximately 100 children were stranded as a result of the raids and that many of the spouses and children of the petitioners are U.S. citizens or residing lawfully in the U.S. The petition further alleged that ICE is transporting the petitioners to remote locations in Texas, which is hampering their access to counsel.

Petitioners moved for a temporary restraining order (TRO) and preliminary injunction and sought an expedited hearing. They asked the court to enjoin ICE from transporting them out of Massachusetts until they have been afforded a bond hearing and a removal hearing. Judge Sterns held an emergency hearing on March 9, 2007. He granted a TRO precluding ICE from transferring any detainees without prior notice to the court. The Judge also ordered petitioners' counsel to demonstrate why the Consul of Guatemala has standing to prosecute this action or to substitute named individuals.

In a March 21, 2007 order, the court granted petitioners' request for jurisdictional discovery and to take the deposition of the Field Office Director for Detention and Removal at the ICE Boston Field Office. On April 6, 2007, the Judge renewed petitioners' TRO and ordered respondents to provide petitioners' counsel with a list of all people detained outside of Massachusetts who have been scheduled for voluntary removal. The court also ordered respondents to allow petitioners' counsel access to detainees who agreed to voluntary removal and wish to speak to an attorney. Finally, the court ordered respondents to reply to petitioners' request for additional discovery by April 12, 2007.

On May 7, 2007, the court granted respondents' motion to dismiss for lack of jurisdiction. The court found that petitioners' Amended Complaint "fails to link respondents' 'pattern and practice' to any constitutional or statutory violation that is ripe for review." The court indicated that the petitioners would be able to challenge any violations of their rights by seeking administrative and court of appeals review at the conclusion of removal proceedings.

On November 27, 2007, the First Circuit affirmed the district court, finding that 8 U.S.C. § 1252(b)(9) stripped the district court of jurisdiction over the petitioners' right to counsel and other procedural due process claims. However, the Court held that petitioners' substantive due process claims, which alleged violations of the Fifth Amendment right of parents to make decisions as to the care, custody and control of their children, were collateral to removal and outside the realm of § 1252(b)(9). The court also held that 8 U.S.C. § 1252(a)(2)(B)(ii) did not strip the district court of jurisdiction over petitioners' substantive due process claims. Having found jurisdiction to examine these substantive due process claims, the Court held that petitioners' due process rights were not violated because petitioners did not show 1) that ICE's actions were so "extreme, egregious, or outrageously offensive" as to "shock the conscious" or 2) that petitioners' claims were encompassed by the due process right to the care, custody and control of their offspring. The court denied a petition for rehearing on February 1, 2008.

Postville, Iowa 

Postville Raid Detainees Challenge Detention; Seek Access to Counsel; and Ask Court to Stop Transfer
Candido v. ICE, No. 08-1015 (N.D. Iowa July 1, 2008)

On May 15, 2008, three detainees arrested in an ICE raid of a meat processing plant in Postville, Iowa, filed suit individually and on behalf of approximately 147 immigrant detainees. The petitioners alleged that ICE and individual government officials violated their due process rights to be free from unlawful detention and to consult with counsel after the raid. Petitioners also alleged violations of 8 U.S.C. § 3771, the Crime Victims' Rights Act (CVRA), because petitioners, if transferred outside of Iowa, would not be able to attend or be involved with any future federal or civil actions against their employer, Agriprocessors, Inc. Petitioners also claimed the government's actions violated the INA.

Petitioners requested declaratory, habeas and injunctive relief. Specifically, petitioners requested that they be released or given a reasonable amount of time to meet with counsel before any transfer and that transfer be enjoined until petitioners are given their full statutory and constitutional rights.

Petitioners also filed a motion for a temporary restraining order and preliminary injunction to enjoin respondents from transporting petitioners out of Iowa before petitioners 1) had bond redetermination hearings, 2) a reasonable opportunity to present evidence, or 3) a reasonable opportunity to consult with legal counsel concerning their rights in removal proceedings and their rights to pursue remedies against their employer.

Petitioners and the government reached an agreement on May 17, 2008. In a letter to petitioners' attorneys, government counsel stated that ICE would not transfer individuals who were arrested for immigration violations out of state prior to their bond hearings. ICE also stated that it would not re-arrest individuals who were released on bond unless there was a material change in the individual's circumstances.

After reaching the agreement, petitioners filed a motion to withdraw petitioners' motion for temporary restraining order, which was granted on May 17, 2009. On July 1, plaintiffs voluntarily dismissed the case.

Swift Raids

On December 12, 2006, ICE officials arrested 1,282 noncitizen workers on administrative immigration violations at Swift meat packing plants around the country. Sixty-five individuals also were charged with criminal violations related to identity theft or other violations, such as re-entry after deportation.

Union Seeks Injunctive and Declaratory Relief and Damages
United Food and Commercial Workers Int'l Union v. Chertoff, No. 07-00188 (N.D. Tex. filed Sept. 12, 2007)

The United Food and Commercial Workers International Union (UFCW) and several lawful permanent residents and U.S. citizens brought a class action challenging government conduct during the Swift raids. The complaint alleges that the defendants violated the INA and the Fourth and Fifth Amendments by arresting large groups of workers without a warrant and without reasonable suspicion that the workers were immigrants present in violation of the INA. The complaint also alleges that defendants arrested parents without regard to their dependant children in violation of defendants' internal policies and plaintiffs' due process rights. Finally, the complaint states that plaintiffs were not given prompt access to counsel in violation of the First and Fifth Amendments. Plaintiffs seek damages for violation of their Fourth Amendment rights and injunctive relief requiring compliance with the law in future enforcement actions.

Plaintiffs moved for class certification with a proposed class "all persons subjected to group detention without warrant or a reasonable suspicion based upon articulable facts that they are immigrants unlawfully present in the United States in violation of the Immigration and Nationality Act [Act] during work-place enforcement activities conducted by [ICE] agents." The court denied the motion for class certification on March 4, 2009, finding that the proposed class definition fails because it is vague, too speculative, and unsupportable.

The defendants had moved to dismiss, asserting that the Union does not have individual or associational standing and that the individual plaintiffs also lack standing. Defendants also argue that plaintiffs failed to state a claim and that the court cannot grant the injunctive relief requested. In September 2009, the court converted the motion to dismiss into a motion for summary judgment.

Lawsuit Challenges Swift Plant Raid in Worthington, Minnesota; District Court Dismissed Complaint
Barrera v. U.S. Dep't of Homeland Security, No. 07-3879 (D. Minn. Mar. 27, 2009)

A group of U.S. citizens and documented noncitizens filed suit against the Department of Homeland Security alleging that defendants' conduct during the December 2006 raid at a Swift plant in Worthington, Minnesota, violated their constitutional rights. Plaintiffs allege that defendants' agents violated their Fourth, Fifth and Sixth Amendment rights and provisions of the INA. Specifically, the complaint alleges that defendants arrested plaintiffs without probable cause, conducted unlawful searches and interrogations, failed to advise them of their constitutional rights and insulted, abused and humiliated plaintiffs. According to plaintiffs, defendants demanded proof of "real" identity from them and threatened them with jail and deportation, even though all plaintiffs had valid work authorization and either U.S. citizenship or documented status. Plaintiffs are seeking injunctive and declaratory relief as well as damages.

On March 27, 2009, the court granted defendants' motion to dismiss. The court concluded that plaintiffs' claims were barred by qualified immunity.

Swift Employees File RICO Suit for Damages; Parties Stipulated to Dismissal
Valenzuela v. Swift, No. 06-2322 (N.D. Tex. June 18, 2009)

Eighteen Swift employees filed a class action against Swift, alleging that Swift hired undocumented workers in an attempt to "illegally depress and artificially lower" the wages of its employees. The suit alleges that Swift's actions violated the Racketeer Influenced and Corrupt Organization Act (RICO).

The court has dismissed claims related to illegal hiring of undocumented noncitizens, but has allowed plaintiffs to go forward on the claim that Swift harbored undocumented noncitizens. On January 13, 2009, the court denied plaintiffs' motion for class certification, finding that the proposed class, all workers employed by Swift who had the legal right to work in the United States, is not clearly ascertainable.

On June 18, 2009, the parties stipulated to dismiss the case with prejudice.

Union's Habeas Petitions Assisted Workers Detained During Raid
Yarrito v. Meyers, No. 06-2494 (D. Colo. Jan. 25, 2007)

The day after the Swift raids, the United Food & Commercial Workers Union filed a petition for habeas corpus and complaint for declaratory and injunctive relief on behalf of Swift employees detained during the raid in Colorado. Petitioners' suit alleged that the Department of Homeland Security violated their right to be free from arbitrary, prolonged and indefinite detention. Petitioners also claimed that DHS violated their right to counsel by denying them access to counsel and any means to obtain counsel in a prompt and effective manner.

The day the suit was filed, United States District Judge John Kane signed an Order to Show Cause why the Petitioners' Application for a Writ of Habeas Corpus should not be granted. In the Order to Show Cause, the court ordered that the habeas applicants remain in custody and within the jurisdiction of the court until further order from the court.

In response to petitioners' complaint, DHS stated that the "enforcement action" took place in a calm orderly fashion and that no Swift employees requested counsel. DHS also claimed that the court lacked jurisdiction to grant the writ of habeas corpus. Specifically, DHS asserted that the union did not have standing as next friend, and that the applicants and the Union did not exhaust administrative remedies. In addition, DHS stated that petitioners failed to state a claim upon which relief may be granted because the government provided applicants with the requisite due process protections. On December 28, 2006, the court amended the Order to Show Cause to state that respondents could only remove employees from the United States at the request of employees "if said request was made without coercion, intimidation or harassment."

On January 5, 2007, the court granted petitioners' motion to amend the original petition and ordered the 252 individuals identified in an exhibit to petitioners' brief to be added as named parties. At a hearing on January 12, 2007, the court issued an order calling for a status report to be submitted on January 18, 2007. The judge also ordered that detainees who were not given bond hearings should have hearings within 48 hours, and that any petitioners in custody subject to a voluntary removal order who claim that the order was fraudulently or wrongfully obtained, should not be removed and could withdraw agreements to voluntary removal. The judge further ordered that counsel should meet and confer to determine the names of the detainees, where they are being held, and their status.

On a January 22, 2007 hearing, Judge Kane concluded that the government had sufficiently complied with court orders by correcting "constitutional deficiencies" in the due process given to the petitioners. The judge ordered the case to be closed.

Court Denies Preliminary Injunction to Stop Raids
Swift v. ICE, No. 06-314 (N.D. Tex. Dec. 14, 2006)

On November 28, 2006 - a few weeks before the raid took place - Swift filed a complaint seeking judicial review of ICE's planned shut down of six of Swift's plants and the "mass removal" of suspected undocumented workers. The complaint alleged that ICE's plan "would have a direct impact on many legal workers, as well as suspected illegal workers, and would irreparably harm Swift by interfering with its legal business operations and by damaging its reputation." The complaint also outlined Swift's efforts to cooperate with ICE investigations and comply with the INA.

The court held a closed hearing on December 6, 2006 to consider Swift's request for a preliminary injunction. On December 7, 2006, the court issued an order denying the preliminary injunction. The court concluded that it was unlikely that Swift would succeed on the merits of the case and that an injunction would impede ICE enforcement activities and would be contrary to the public interest. Upon the parties' stipulation, the court dismissed the case on December 14, 2006.

Van Nuys, California

Lawyers Challenge DHS' Denial of Right to Counsel Following Raid at Factory in Van Nuys
National Lawyers Guild v. Chertoff, No. 08-01000 (C.D. Cal. April 17, 2008)

The National Lawyers Guild and a person arrested during an ICE raid filed a suit to challenge DHS' denial of access to counsel at immigration interviews following a raid at a factory in Van Nuys, California. According to the complaint, over 100 residents of Los Angeles County were arrested at the factory raid on February 7, 2008. Many of the individuals were released and scheduled for follow up interviews. A group of lawyers with the National Lawyers Guild offered free legal assistance to those who were arrested, but ICE barred the lawyers from being present at the interviews. The complaint alleges that the deprivation of counsel violates section 555(b) of Administrative Procedure Act, the INA and its regulation (8 C.F.R. § 292.5), and due process under the Fifth Amendment.

The plaintiffs filed a motion for a TRO that would require DHS to allow lawyers to accompany their clients to the interviews. At a hearing on February 15, 2008, the court scheduled a March 6 hearing to consider a preliminary injunction and defendants agreed that DHS would not conduct immigration interviews before the close of business on that date. Following the court's scheduling order, the parties stipulated to an extended briefing schedule and a hearing date on March 17, 2008; DHS agreed that it would not conduct interviews before March 19, 2008. On March 17, 2008, the court stayed the briefing and hearing schedule because the parties had represented that they reached a settlement agreement and would comply with the requirements of the agreement by April 10, 2008.

On April 10, 2008, the parties filed a Stipulation to Dismiss, stating that they had complied with the requirements of the settlement agreement and had resolved their differences. On April 17, 2008, the court dismissed the complaint with prejudice.

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