Border Rights

In 2013 the ACLU of Arizona and ACLU of San Diego launched the ACLU’s Border Litigation Project to investigate, document and litigate civil and human rights cases in the U.S.-Mexico border region, including abuses committed by U.S. Border Patrol.  With funding from the Central America and Mexico Migration Alliance (CAMMINA), the Border Litigation Project initiative has allowed the ACLU of Arizona to increase its legal capacity along the Southwest border by hiring a full-time staff attorney in Tucson.

Working in cooperation with our partners in Texas, New Mexico, and other ACLU offices around the country, the Border Litigation Project seeks to hold Border Patrol and other law enforcement agencies accountable while addressing the root causes of civil and human rights abuses at the border, including:

Excessive Use of Force

Border Patrol agents have killed more than forty individuals since 2010, including unarmed teenagers, alleged rock throwers, U.S. citizens, and individuals standing in Mexico. Prior to 2015, none of the agents involved in those cases had faced prosecution or significant disciplinary action, and the agency’s use of force policies have been publicly condemned by government officials and human rights organizations alike. The ACLU is working to reform those policies, and to hold accountable agents who use excessive force. 

Rodriguez v. Swartz—In 2012, Jose Antonio Elena Rodriguez was shot ten times by a Border Patrol agent firing into Mexico from the U.S. side of the border. In July 2014, the ACLU filed a lawsuit on behalf of Jose Antonio’s mother, Araceli Rodriguez, for the unjustified killing of her son. Border Patrol refused to reveal the name of the agent who shot Jose Antonio until a federal court ordered that the information be made public. In July 2015, the district court denied Agent Swartz’s Motion to Dismiss. That decision is currently on appeal. In September 2015, Agent Swartz was indicted for second degree murder, the first time a Border Patrol agent has been federally prosecuted for murder.

ACLU v. DHS—In May 2014, the ACLU sued U.S. Customs and Border Protection (CBP) for the agency’s failure to respond to a Freedom of Information Act (FOIA) request seeking the release of the Police Executive Research Forum (PERF) report analyzing the agency’s use-of-force policies.  Eight days after the suit was filed, CBP released the PERF report, which was highly critical of the agency’s use of force policies and practices.

Inhumane Detention Conditions and Denial of Due Process

Every year, Border Patrol detains tens of thousands of men, women, and children in its notorious “hieleras” (Spanish for “iceboxes”), where detainees are packed into freezing, dirty, and overcrowded cells, denied basic necessities, and held incommunicado for days at a time.  The ACLU is working to ensure detention conditions satisfy basic constitutional requirements, and that the agency treats all detainees with dignity and respect. 

Doe v. Johnson—On June 8, 2015, the ACLU and partner organizations filed a class action lawsuit against DHS officials, challenging conditions in Border Patrol holding cells—specifically overcrowding, extreme cold, unsanitary conditions, denial of sleep, lack of medical screening and care, and deprivation of food and water. The complaint alleges that these conditions violate the Due Process Clause of the Fifth Amendment and Border Patrol’s own inadequate policies. Plaintiffs filed the lawsuit on behalf of all persons who are now or will in the future be confined in a Tucson sector CBP detention facility for one or more nights.

In December 2015, Plaintiffs filed a motion for a preliminary injunction to prevent Border Patrol from holding detainees in unconstitutional conditions of confinement.  On January 11, 2016, the court granted Plaintiffs’ motion for class certification and ruled that the case could go forward.  

ACLU v. Office for Civil Rights and Civil Liberties, et al.—In February 2015, the ACLU a Freedom of Information Act lawsuit seeking records related to the government’s widespread abuse and neglect of unaccompanied children in Border Patrol custody.  The ACLU’s FOIA request followed a June 2014 complaint submitted on behalf of 116 children to DHS oversight agencies alleging abuse and mistreatment of children in Border Patrol custody. In response, DHS oversight agencies acknowledged “recurring problems” in Border Patrol detention facilities, but have still not responded to the majority of the children’s complaints, or to hundreds of similar complaints going back years. In the ACLU’s FOIA litigation, the government has acknowledged possessing more than 60,000 pages of complaint and investigations records related to Border Patrol mistreatment of children from 2009-2015 alone. In October 2015, the court ordered the government to complete production of responsive records by May 27, 2016.

ACLU Report: The Rights of Children in the Immigration Process, July 2014 

ACLU Blog: Doing Right by the Unaccompanied Children on Our Border, July 10, 2014 

Lopez-Venegas v. Johnson – In June 2013, the ACLU filed a class action lawsuit challenging immigration officials’ widespread practice of coercing immigrants into signing “voluntary” departures.  Under the terms of the settlement, nine plaintiffs returned to the United States and their families in August 2014, with the same legal status they had before signing the documents.  Hundreds, if not thousands, of noncitizens who signed “voluntary return” forms in Southern California and were expelled to Mexico will now be given the opportunity to apply to return to the United States and seek legal status.

ACLU Report: American Exile: Rapid Deportations That Bypass the Courtroom, December 2014

ACLU Blog: Shakedown: Border Patrol’s “Confiscation” of Migrants’ Money, IDs, Cellphones Exposes Them to Danger After Deportation, December 2014

ACLU Report: Torn Apart: How U.S. Immigration Policy Fragments New Mexico Families, April 2013 

ACLU Policy Brief: Immigration Reform Should Eliminate Operation Streamline

Militarization of Border Communities

The proliferation of border enforcement measures has resulted in a protracted humanitarian crisis of crossing-related deaths as well as widespread rights violations by Border Patrol agents, who claim authority to operate within 100 miles of the border—an area that covers roughly two-thirds of the U.S. population.  Senior CBP officials have said that Border Patrol views itself as a paramilitary organization that operates outside of “constitutional constraints” and rejects outside oversight.  The ACLU is working to hold Border Patrol accountable and to support local residents who oppose the militarization of their communities. In October 2015, the ACLU published a report “Record of Abuse,” based on the records produced to date, which the ACLU has made available here. Production of the remaining records in that case is ongoing.

June 28, 2016 Complaint and Request for Investigation of Border Patrol Interior Enforcement and Detention Practices—In June 2016, we filed multiple complaints with DHS oversight agencies and the Justice Department demanding an investigation of Border Patrol abuses arising from checkpoint and roving patrol operations.The complaints describe agents wrongfully detaining innocent residents for days in filthy, frigid, and overcrowded detention facilities, confiscating their property, and forcing them to pay thousands of dollars to recover their vehicles. In other cases, residents describe facing constant surveillance and harassment on their own property, including frequent incursions by low-flying Border Patrol helicopters. One woman was wrongfully detained overnight at the San Luis Port of Entry near Yuma, where she was subjected to humiliating and invasive searches by agents and local hospital staff. She later learned that she is named on a government watch list as a suspected narcotics smuggler, evidently on the basis of her regular travel to Mexico where she visits her family. 

ACLU v. DHS—On April 28, 2014, after documenting numerous reports of Border Patrol abusing border residents, the ACLU filed a lawsuit under the Freedom of Information Act (FOIA) to obtain records related to Border Patrol interior enforcement operations, including checkpoints and roving patrols in southern Arizona. Litigation is ongoing.

Demand Letter Regarding Discriminatory Search and Rescue Practices—In May 2015, the ACLU sent letter to southern Arizona counties demanding an end to discriminatory practice of referring migrant distress calls to Border Patrol’s largely unresponsive search and rescue unit, BORSTAR, a practice likely to contribute to preventable deaths along the border.

ACLU Report: Guilty Until Proven Innocent: Living in New Mexico’s 100-Mile Zone, May 2015

ACLU Blog: Southwest Border Tour Excludes Border Communities, January 27, 2014

ACLU Blog: Up to 20% of Border Patrol Drone Flights Are Inside the United States, October 2, 2014

Residents’ Testimonies: Border Communities Under Siege

Do you live in the the government's 100-Mile "Border" Zone?

Interior Checkpoint Abuses

By definition, Border Patrol checkpoints involve the “seizure” of innocent motorists without any suspicion of wrongdoing. It is impossible to reconcile these dragnet stops with the Fourth Amendment’s prohibition on unreasonable searches and seizures.  Additionally, Border Patrol agents at checkpoints regularly ignore the limits of their authority, resulting in widespread civil rights violations including unlawful searches, prolonged detention, racial profiling and excessive use of force.

January 15, 2014 Complaint and Request for Investigation Regarding Checkpoint Abuses—In January 2014, the ACLU sent an administrative complaint to DHS oversight agencies regarding widespread abuses at Border Patrol interior checkpoints in Arizona, including racial profiling, excessive use of force, unlawful searches, and false alerts by service canines.  Over a year later, the agency has yet to respond.

Jacobson, Ragan v. DHS, et al.—Beginning in February 2014, residents of Arivaca, Arizona initiated a checkpoint monitoring campaign to deter and detect abuses at one of three Border Patrol checkpoints that surround their town.  Border Patrol responded by creating a new “enforcement zone” and barring monitors and protesters from observing checkpoint activities.  In November 2014, the ACLU filed suit on behalf of two Arivaca residents for First Amendment violations of their right to observe, records, and protest law enforcement in public. In September 2015, the court denied Plaintiffs' motion for a preliminary injunction. Litigation is ongoing.

Roving Patrols and Trespassing

Border Patrol conducts extensive and wide-ranging interior enforcement operations far from the border, including “roving patrol” vehicle stops.  Though the agency does not record any information related to stops not resulting in arrest—making it impossible to know how many innocent travelers are stopped—the ACLU has documented numerous cases of motorists stopped without “reasonable suspicion” that they were unlawfully present.

Federal Torts Claims Act (FTCA) Claim of Clarisa Christiansen—In May 2013, Border Patrol agents stopped Ms. Christiansen and her two young children without cause while the family was on their way home from school. After Ms. Christiansen demanded an explanation, agents threatened to use a Taser on her and then threatened to cut her out of her seatbelt with a knife. Agents then slashed a rear tire and left Ms. Christiansen and her children stranded on a hot desert road. Additionally, agents have repeatedly trespassed onto Ms. Christiansen’s private property west of Tucson, Ariz., including Border Patrol helicopters flying over the family’s home at extremely low altitudes with deafening noise and bright lights.

October 9, 2013 Complaint and Request for Investigation Regarding Roving Patrol Abuses—In October 2013, the ACLU submitted a complaint to DHS oversight agencies on behalf of five individuals subjected to unlawful vehicle stops and additional abuses arising out of Border Patrol’s interior “roving patrols.”  Almost two years later, the agency has yet to respond.

Sanchez v. U.S. Border Patrol—In April 2012, the ACLU sued on behalf of three individuals who experienced unwarranted stops and interrogations by Border Patrol agents, some of which appeared to be based solely on plaintiffs’ perceived ethnicity or skin color. Agents provided flimsy pretexts or no reason at all for the stops. The lawsuit asserted that the Border Patrol’s suspicionless stops violated the Fourth Amendment and exceeded the agency’s legal powers.  In September 2013, the parties reached a settlement, with Border Patrol agreeing to provide stop data to the ACLU and to re-train agents on the Fourth Amendment.

Ports of Entry

The ACLU has documented numerous cases of CBP officials violating the rights of travelers at our nation’s Ports of Entry.  Recurring abuses include prolonged detention, excessive use of force, and invasive searches.  CBP regularly claims that travelers “have no rights,” suggesting that the constitution is suspended at the border—this is not so.  The government must respect the constitutional rights of all individuals, including at Ports of Entry.

May 9, 2012 Complaint and Request for Investigation Regarding Abuses at Ports of Entry—In May 2012, the ACLU submitted a complaint to DHS oversight agencies on behalf of eleven individuals who suffered various abuses at southern Ports of Entry, including  verbal and physical abuse, mistaken identity, and prolonged detention.  The agency conducted only a partial investigation and failed to respond to the majority of the complaints.

Doe v. El Paso County Hospital District, et al.—In December 2013, the ACLU sued on behalf of a U.S. citizen subject to a series of highly invasive searches—including rectal and vaginal probes—conducted without a warrant.  CBP agents frisked and strip-searched the plaintiff at a Port of Entry, then transported her in handcuffs to the University Medical Center of El Paso, where doctors subjected her to an observed bowel movement, X-ray, speculum exam, rectal exam, vaginal exam, and a CT scan.  After a period of six hours of fruitless searches, the agents released the plaintiff without charge.  The hospital subsequently biller her $,5000 for its “services.”

Mireles v. CBP—In October 2013, the ACLU filed suit on behalf of a woman who suffered physical injuries after abusive, aggressive, and unjustified treatment by a CBP agent. Laura Mireles, who is disabled, sustained injuries after being forcibly thrown to the ground by a CBP agent who responded violently when she inquired about his search of her purse. She was handcuffed so tightly that the fire department later was summoned to cut the cuffs from her wrists.

Racial Profiling By Local Police

Border Patrol entanglement with local police has contributed to racial profiling, exacerbated by Arizona’s anti-immigrant “show me your papers” law, SB 1070. The ACLU has worked to hold law enforcement agencies across Arizona accountable for these violations, while advocating with local governments across the state to implement sensible policies limiting police involvement in immigration matters.

Cortes v. Lakosky – in December 2014, the ACLU obtained a judgment against Pinal County, Sheriff Paul Babeu and two Pinal County sheriff’s deputies on behalf of an Arizona woman who spent five days in the custody of immigration authorities after a Pinal County sheriff’s deputy “cited and released” her following a traffic stop, then instructed another sheriff’s deputy to transport her to a nearby Border Patrol station.

Tucson Police Department Reform–The ACLU receives regularly reports of southern Arizona law enforcement calling Border Patrol to the scene of roadside stops to investigate immigration status. These practices prolong stops in violation of the Fourth Amendment. The ACLU has submitted public testimony and recommendation to Tucson City Council on multiple occasions to improve TPD policies, many of which have been implemented. 

In April 2014, the ACLU initiated a legal claim against Tucson Police Department on behalf of Tucson residents Agustin Reyes and Arturo Robles for their unlawful, prolonged detention in October 2013.  After being stopped for what the officers claimed was a broken license plate light, the two men were detained while officers waited for Border Patrol to arrive.  In July, the ACLU filed a second Notice of Claim against TPD for a January 2014 traffic stop in which police stopped and detained Jesus Reyes Sepulveda in order to hand him over to Border Patrol. In April 2016, the ACLU reported the results of its review of TPD stops, finding officers frequently prolonged stops in order to hand suspects over to Border Patrol. 

South Tucson Police Department Reform—In July 2013, Tucson resident Alejandro Valenzuela was detained and transferred to Border Patrol custody solely upon suspicion of being unlawfully present.  After brief questioning, Border Patrol released him.  In November 2013, the ACLU initiated a legal claim on behalf of Mr. Valenzuela, the first challenge to SB 1070's Section 2(B) on behalf of an individual since the provision went into effect in September 2012.  In May 2014, the ACLU and South Tucson officials signed a settlement agreement overhauling STPD’s policies to restrict police involvement in immigration matters.

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