Adlerstein v. U.S. Customs & Border Prot.
| Decision Date | 30 September 2020 |
| Docket Number | No. CIV 19-500-TUC-CKJ,CIV 19-500-TUC-CKJ |
| Parties | Ana Adlerstein, et al., Plaintiffs, v. United States Customs and Border Protection, et al., Defendants. |
| Court | United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona |
Pending before the Court is the Motion to Dismiss For Lack of Jurisdiction and Failure to State A Claim and, in the Alternative, Partial Motion for Summary Judgment (Doc. 16) ("MTD") filed by Defendants United States Customs and Border Protection ("CBP"); Mark Morgan, in his official capacity as Acting Commissioner of CBP; United States Immigration and Customs Enforcement ("ICE"); Matthew Albence, in his official capacity as acting director of ICE; Federal Bureau Of Investigation ("FBI"); and Christopher Wray, in his official capacity as director of the FBI ("collectively, "Defendants"). Oral argument was presented to the Court on August 4, 2020.
Plaintiffs filed a civil rights Complaint on October 16, 2019.1 The Complaint alleges claims for Count I: Violation of the Fourth Amendment; Count II: Violation of the First Amendment, and; Count III: Violation of the Privacy Act, 5 U.S.C. § 552a(a)-(1).
Defendants filed a Motion to Dismiss For Lack of Jurisdiction and Failure to State A Claim and, in the Alternative, Partial Motion for Summary Judgment (Doc. 16) on February 10, 2020. Plaintiffs Ana Adlerstein ("Adlerstein"), Jeff Valenzuela ("Valenzuela"), and Alex Mensing ("Mensing") (collectively, "Plaintiffs") have filed a response (Doc. 19) and Defendants have filed a reply (Doc. 25).
Adlerstein is a journalist and a humanitarian volunteer. Compl., ¶ 1. Her "reporting focuses on international human rights, migration, and refugees." Id. ¶ 10. "Adlerstein is also a member of the Network on Humanitarian Action, an international academic network created to promote education, training, and research among humanitarian activists." Id. ¶ 12. Adlerstein has worked with immigrant and refugee communities in Mexico, Greece, and the United States, including recently living and working to support immigrants in Ajo, Arizona. Id. ¶ 11. This includes accompanying asylum seekers to the United States Port of Entry ("POE") in Lukeville, Arizona. Id.
On March 6, 2019, Adlerstein (and other volunteers) accompanied a group of sixteen individuals, including adults and children, traveling from Sonoyta to the Lukeville POE to seek asylum. Id. ¶ 36. Later that evening, Adlerstein attempted to cross into the United States at the Lukeville POE. CBP officials directed her to secondary screening. Id. ¶ 37.
On May 5, 2019, Adlerstein planned to accompany a Honduran asylum seeker, who had previously been turned away at the Lukeville POE, to the Lukeville POE in an attempt to ensure the asylum seeker was not turned away again. Id. ¶ 38. When the asylum seeker was denied entry, Adlerstein approached the POE and asked border officials why the asylum seeker was denied entry, a "CBP officer apologized and said, 'We're processing another family,' and asked if [] Adlerstein and the asylum seeker could return in a couple of hours." Id. ¶ 39. The asylum seeker returned to the POE at 5:00 p.m., with Adlerstein followingsome distance behind on the Mexican side of the border. Id. ¶ 40. Supervisory CBP Officer Williams "stormed" out of the POE and Id. Adlerstein did not intend to cross with the asylum seeker into the United States. Id. ¶ 41. Adlerstein was arrested. Id.
Adlerstein informed Officer Williams that she wished to speak with her attorney and provided CBP officials with a document from her attorney, which stated inter alia, that Adlerstein would refuse to any answer questions other than those necessary to identify her as a United States citizen. Id. ¶ 44. Although Officer Williams took the letter, he did not read it but threw it on a nearby desk and stated, " " Id. ¶ 45.
Adlerstein was taken to a cell, searched, and offered water and a thermal blanket. Id. ¶ 46. At around 9:00 p.m., Adlerstein started banging on the doors of the cell and yelling. When an officer asked what she wanted:
Adlerstein responded by asking "Why are you detaining me?" The officer responded, "There is an ongoing investigation, it won't take long." . . . Adlerstein asked the officer, "How long can you detain me?" He replied, "Indefinitely." . . . Adlerstein again asked if she could speak with her lawyer. He responded, "No, because there aren't any charges yet." . . . As [] Adlerstein became increasingly concerned and upset, she told the officer that he and his colleagues were violating her rights and detaining her for far too long. He dismissed her complaints, stating, "The Fourth Amendment doesn't apply here." Multiple border officials repeated this same phrase to [] Adlerstein during her detention.
Although Adlerstein demanded the officers call her an ambulance for an increasingly unbearable headache, officers simply transferred her into a nearby office. Id. ¶ 55. Adlerstein was informed that she could be released, but she needed to give them her contact information for a deferred interview. Id. She was also informed that she was being held because the investigation was ongoing. Id. After "Adlerstein, understanding that she would not be released without disclosing her contact information, finally provided [the contactinformation] against her will[,]" Adlerstein was released. Id.
When Adlerstein was contacted approximately ten days later, her attorney requested any questions by the Homeland Security Investigations ("HSI") official be in writing. Id. ¶ 56. Written questions were not submitted to Adlerstein. Id.
On May 9, 2019, and May 11, 2019, Adlerstein, while driving her own car, traveled to Mexico. Id. ¶ 57. She did not observe or accompany any asylum seekers on these dates. Id. However, Adlerstein was stopped at the border by U.S. border officials. Id. During both occasions, Adlerstein was referred to secondary, her vehicle was searched, and each encounter lasted approximately 15 minutes, Id. On another occasion following the May 5, 2019, incident, Adlerstein, while driving a friend's vehicle, traveled to Mexico. Id. She did not observe or accompany any asylum seekers. Id. Upon her return, Adlerstein was let through the border without incident. Id.
Because of the May 5, 2019, incident, Adlerstein stopped accompanying individuals at the Lukeville POE, reduced her volunteer work in Sonoyta, and is scared to continue her work on behalf of asylum seekers because she fears Defendants will continue to subject her to detention and arrest at the border, and has turned down at least one request to observe individuals presenting themselves at the border. Id. ¶¶ 58, 59. The incident has also prevented Adlerstein from creating and becoming a programming director for an asylum clinic based out of Sonoyta. Id. ¶¶ 60, 61.
On October 9, 2019, Adlerstein submitted letters to the FBI, CBP, and ICE requesting records collected and maintained by the agencies as part of their border surveillance and policing programs be "expunged or amended" to omit all references to her, identifying characteristics, and/or her First Amendment protected activities, pursuant to 5 U.S.C. §§ 552a(e)(1), (e)(5), (e)(7), and (d)(2). Id. ¶ 173. The Complaint alleges that, as of the filing date of the Complaint, none of the agencies responded to "Adlerstein's requests or amended or expunged any records about her." Id.
Valenzuela is a United States citizen who currently resides in Tijuana, Mexico. Compl., ¶ 15. He is a photographer and a humanitarian, teacher, and a member of a human rights defender organization, Pueblo Sin Fronteras ("PSF"), which provides humanitarian assistance to migrants. Id. ¶¶ 4, 14. Historically, Valenzuela provided humanitarian assistance to migrants in Tijuana who had arrived in the city after traveling through Mexico and helped establish a migrant shelter at the Benito Juarez sport complex. Id. ¶ 68, 69. He has volunteered with PSF since the middle of 2018. Id. ¶ 68.
Prior to July 2018 (when Valenzuela began the majority of his volunteer work with migrants in Mexico), he had only been referred to secondary inspection once. Id. ¶ 70. In December 2018 and January 2019, Valenzuela was referred to secondary screening on six occasions when he attempted to cross the international border.
On December 26, 2018, Valenzuela entered into the United States via the PedWest pedestrian port within the larger San Ysidro POE. Id. ¶ 71. After Valenzuela presented his passport, he was referred to secondary screening. Id. A CBP officer then instructed Valenzuela to leave his wallet and telephone in the room. Id. After about two hours, two presumed HSI officers escorted Valenzuela into an interview room. Id. 72. The officers questioned Valenzuela about himself, his work, the caravan generally, and the condition of migrant shelters in Tijuana. Id. at ¶¶ 72, 73, 75. When asked if he was part of an organization, Valenzuela responded that he volunteered with several different organizations. Id. ¶ 74. Upon request, Valenzuela reluctantly identified the organizations. Id. The questioning lasted approximately 15 minutes.
One of the officials then retrieved Valenzuela's phone. The officials:
informed [] Valenzuela that they needed to review the contents of his telephone, saying, "It's standard procedure to make sure you don't have child pornography." They demanded he show them his phone's contents, and informed him that his refusal would result in its confiscation and delivery to a second location. They told him that he risked having his phone unlocked at this second location if he did not comply. ....
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