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Customs and Border Protection (CBP)
For years, U.S. Customs and Border Protection (CBP), the component of the Department of Homeland Security tasked with preventing illegal entries into the United States, has employed unlawful tactics that violate the rights of U.S. citizens and noncitizens alike. The public knows relatively little about CBP’s activities, and this lack of transparency has made it difficult to hold CBP officers, including Border Patrol agents, accountable for misconduct. The LAC is engaged in administrative advocacy and litigation intended to expose CBP’s unlawful practices and promote policies that safeguard the civil liberties of all persons who cross our borders.
Class Action Lawsuit Challenges CBP Delays in Responding to FOIA Requests
Brown v. CBP, No. 15-cv-01181 (N.D. Cal. filed March 13, 2015)
In March, 2015, the American Immigration Council, in collaboration with the Law Office of Stacy Tolchin, the Northwest Immigrant Rights Project, and the National Immigration Project of the National Lawyers Guild, filed a class action lawsuit against CBP over its nationwide pattern and practice of failing to timely respond to requests under the Freedom of Information Act (FOIA). The plaintiffs included both immigration attorneys and individuals, all of whom had FOIA requests pending for over 20 business days.
FOIA requires an agency to respond to a properly filed FOIA request within 20 business days. CBP routinely fails to comply with this deadline, often not responding for months and in some cases for longer than a year. At the time the suit was filed, CBP had a backlong of more than 30,000 cases that had been pending for longer than 20 business days.
On September 17, 2015, District Court Judge Donato denied CBP’s motion to dismiss in a strongly worded decision. The Court recognized that “CBP’s records are critical to noncitizens and their attorneys in evaluating immigration options and the possibility of remaining legally in the United States.” He then roundly rejected the government’s claim that CBP’s failure to meet the statutory deadlines is not actionable, finding this argument “wholly at odds with the statute and cases” and that CBP’s reading of the relevant cases “could not be less persuasive.” The Court concluded that Plaintiffs adequately alleged a FOIA violation and ordered CBP to file an answer within ten days.The District Court will hold a hearing on the Plaintiffs’ Motion for Class Certification on September 9, 2015.
- Amended Complaint (April 22, 2015)
- Motion for Class Certification (April 22, 2015)
- Plaintiffs’ Response to Defendants’ Motion to Dismiss (June 1, 2015)
- Order Denying Motion to Dismiss (September 17, 2015)
Lawsuit Seeking Damages on Behalf of Four-Year-Old U.S. Citizen Wrongly Detained and Returned to Guatemala
Leonel Ruiz o/b/o E.R. v. U.S., No. 1:13-cv-01241 (E.D.N.Y. filed March 8, 2013)
In March, 2013, the American Immigration Council, in collaboration with Cleary, Gottlieb, Steen & Hamilton, filed a lawsuit alleging that CBP officers at Dulles Airport in Virginia unlawfully detained a U.S. citizen child for more than twenty hours, deprived her of contact with her parents, and then effectively deported her to Guatemala. The case was one of ten complaints filed the same week to highlight CBP abuses along the northern and southern borders. (For more information, see CBP Abuse of Authority.)
According to the Complaint, the girl was returning home from Guatemala when her flight was diverted from New York to Dulles due to inclement weather. After CBP agents stamped the girl’s passport, they directed her grandfather, with whom she was traveling, to secondary inspection due to an issue with his immigration papers, and both he and the girl were detained. CBP detained the girl with her grandfather for the next 20 plus hours, gave her only a cookie and soda during the entire time, and provided her nowhere to nap other than the cold floor.
Despite the grandfather’s repeated requests that CBP let him contact the girl’s parents in New York, they refused to do so. Some fourteen hours after CBP had detained the child, a CBP officer finally contacted the girl’s father, initially promising to put her on a plane to New York. But hours later, CBP again contacted the father, and this time claimed that the girl could not be returned to “illegals.” CBP gave the father one hour to choose between sending her to Guatemala or to an “adoption center” in Virginia. Fearing that he would otherwise lose custody of his daughter, the father decided that the only viable option was for her to go back to Guatemala. The lawsuit, filed by the child’s father on her behalf, seeks damages for the harm she suffered pursuant to the Federal Tort Claims Act (FTCA).
On October 30, 2013, the government moved to dismiss the case on the basis that the actions of the CBP officers fell within the discretionary function excpetion of the FTCA, and that the court thus lacked subject matter jurisdiction. Alternatively, the government alleged that the case should be dismissed because the plaintiff had failed to state a claim upon which relief may be granted. The government also moved to transfer the case to the Eastern District of Virginia. The Council opposed all of these motions.
In a decision issued on September 18, 2014, the court found in no uncertain terms that the CBP officers' actions did not fall within the discretionary function exception. The court also found that CBP's treatment of the girl violated the settlement agreement in Flores v. Reno regarding the detention of minors, as well as CBP internal policies promulgated to comply with the Flores agreement. The court granted the government's request for a change of venue and transferred its motion for judgment on the pleadings to the Eastern District of Virginia.
In June 2015, the parties settled the case, with the government agreeing to pay the girl $32,500.00. Read the Council’s statement on the settlement here.
- Complaint (3-8-13)
- Amended Complaint (4-3-13)
- Answer (5-29-13)
- Defendant’s Motion to Dismiss, Motion for Judgment on the Pleadings, and Motion for Change of Venue (9-9-13)
- Plaintiff's Memorandum of Law in Opposition of Defendant's Motion to Dismiss, Motion for Judgment on the Pleadings, and Motion for Change of Venue (10-16-13)
- Defendant's Reply Memorandum of Law in Further Support of its Motion to Dismiss, Motion for Judgment of the Pleadings, and Motion for Change of Venue (10-30-13)
- Memorandum and Opinion Denying Motion to Dismiss and Granting Change of Venue (9-18-14)
Lawsuit 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. Through negotiations with the government, the LAC has obtained hundreds of pages of records. These records include: voluntary return procedures, training materials, a detailed list of complaints of physical abuse filed against CBP personnel from 2009-2012, documents regarding the circumstances under which CBP officers should consider prosecutorial discretion, and numerous incident reports. With the exception of the filing of CBP’s Answer, the litigation has been stayed pending negotiations and CBP’s continued production of responsive records on a rolling basis.
Following successful negotiations and the release of relevant documents by CBP to the Council, the court, at the joint request of the parties, dismissed the case on September 16, 2014.
- Complaint (6-7-12)
- Answer (10-26-12)
- Index to CBP’s Document Productions
- Production 1 – August 10, 2012
- Production 2 – September 7, 2012
- Production 3 – September 21, 2012
- Production 4 – December 7, 2012: Part One, Part Two, Part Three
- Production 5 – January 11, 2013
- Production 6 – February 15, 2013
- Production 7 – March 22, 2013
- Production 8 – April 19, 2013
- Production 9 – May 17, 2013
- Production 10 – May 30, 2013
- Production 11 – July 12, 2013
- Production 12 – August 22, 2013
- Production 13 – September 13, 2013
- Production 14 - September 23, 2013
- Production 15 - January 31, 2014
- Production 16 – Review coming soon
Lawsuit Seeking CBP Guidance on Access to Counsel
AIC v. DHS and CBP, No. 1:11-cv-01972 (D.D.C. filed Nov. 8, 2011)
The LAC has filed a suit against DHS and CBP to compel the release of records relating to noncitizens’ access to counsel before CBP. Read more about this suit (as well as similar suits against USCIS and ICE) on the LAC's Access to Counsel Before DHS webpage.
CBP Abuse of Authority
On March, 13, 2013, The Legal Action Center and an alliance of immigration groups, private attorneys and a law school clinic announced the filing of complaints targeting abuses by U.S. Customs and Border Protection (CBP) across the country. Ten damages cases have been filed alleging unlawful CBP conduct in northern and southern border states. These cases are the latest illustrations of an ongoing pattern of rampant misconduct against both immigrants and U.S. citizens in these states. To view a summary of the ten complaints click here.
FOIA Requests regarding Border Patrol Involvement in Translation and 911 Dispatch Activities
Advocates in states along the northern border of the United States have reported that Border Patrol agents frequently “assist” other law enforcement agencies by serving as Spanish-English interpreters and participating in 911 dispatch activities. Capitalizing on their access to noncitizens, Border Patrol agents often use these opportunities to question individuals about their immigration status and, in many cases, initiate removal proceedings. These practices unconstitutionally target individuals for deportation based on the fact that they look or sound foreign and discriminate against Spanish speakers whose access to interpretation is conditioned on answering questions about immigration status.
In May 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
Response from U.S. Customs and Border Protection (CBP)
- Production One - 133 pages
Index of Production One
- Production Two - 269 pages
Index of Production Two
- Production Three - 305 pages
Index of Production Three
- Production Four - 118 pages
Index of Production Four
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
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