David Antón Armendáriz

Lance Curtright

Marisol Pérez

Jorge Aristotelidis

Juan Carlos Rodriguez

De Mott, McChesney, Curtright & Armendáriz, LLP

800 Dolorosa, Suite 100

San Antonio, Texas 78207-4559

(210) 354-1844

(210) 212-2116 Fax

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHER DISTRICT OF TEXAS

DALLAS, TEXAS

Josue Hernandez-Carranco,
Plaintiff, / §
§
§
§
§ / COMPLAINT
vs. / §
the United States of America,
Defendant / §
§
§
§
§
§
§ / CIVIL NO. ______

Plaintiff,Josue Hernandez-Carranco, throughcounsel, alleges as follows:

INTRODUCTION

  1. This is a civil rights action raisinga claim brought pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 etseq. against Defendant United States of America to redress anobjectively unreasonable and unlawful seizureof Mr. Hernandez and offensive acts taken in connection therewith.
  2. Two as yet unidentified Customs and Border Patrol ("CBP") officersseized Josue without reasonable suspicion or probable cause that he had violated or was violating any law over which the officershad jurisdiction and without any warrant for his arrest or any reason to believe that he would flee prosecution for any alleged violation of the law.
  3. Furthermore, these officers targeted Josue for seizure based on ethnicity and race, pursuant to their and their agency's regular practice and policy of willful, unlawful and abusive seizures of Hispanics in and around Texas, far from the border with Mexico.
  4. CBP patrol officers regularly seize persons of Hispanic appearance off the roads, highways and places open to the public in Texas in plain violation of clearly established constitutional, statutory, and regulatory law against unlawful racial profiling.
  5. In addition to and apart from Josue, victims of this illegal practice have included United States citizens, lawful permanent resident aliens, and other persons.
  6. In this action, Josue seeks nominal and compensatorydamages for the harm he has suffered and seeks to hold the government responsible for the complained-of conduct.

JURISDICTION AND VENUE

  1. This Court has jurisdiction over this federal civil rights action pursuant to the Fourth Amendment to the United States Constitution and28 U.S.C. §§ 1346(b) (FTCA) and 1331(federal question).
  2. Venue lies in this District pursuant to 28 U.S.C. §§ 1391(b)(2) and1402(b) because this is the judicial district in which a substantial part of the events giving rise to the claim occurred.

ALLEGATIONS

  1. Josue submitted an administrative complaint to the CBP as required pursuant to 28 U.S.C. § 2675 on or about June7, 2011, to which complaint CBP never responded. This suit is timely.

THE PARTIES

  1. Josue is Hispanic.
  2. Defendant USA is a sovereign nation whose government has delegated responsibility for the enforcement of the immigration laws to, interalia, the officersand employees of CBP.

The Facts

  1. On the morning of November 5th, 2009, Josuewas a passenger in the front seat of a Ford F150 double-cab truck(hereinafter, "the Truck").
  2. This type of truck is extremely common in Texas.
  3. His father was driving. A friend was sitting in the rear seat of the Truck. No other persons were in the Truck.
  4. They were traveling in a westerly direction to San Angelo, Texason Highway 84.
  5. The Truck was not altered in any fashion so as to carry heavier loads than normal or for any other special purpose.
  6. The Truck's windows were not tinted or otherwise altered so as to obscure visibility into the cab.
  7. Visibility into the cab through the windows was clear and unobstructed.
  8. At a point just east of Brownwood, Texas and about 95 miles east of San Angelo,they stopped at a gas station to use the restroom.
  9. They parked in front of the store.
  10. As they were about to get off the Truck, two white male Border Patrol officersquickly approachedthe vehicle.
  11. One stood in front of the driver's side door and the other stood in front of the passenger side door.
  12. The officer on Josue's side immediately opened the door, grabbedhim by his right arm and then he asked him in Spanish: “Tienes Papeles”? This means, in English: "Do you have any papers?"
  13. Josue replied, "Yes, I do." Jose then showed the officer his valid Texas license.
  14. Upon seeing the license, the officer replied in Spanish, "Eso no sirve," meaning something approximate to, "That's no good" or "That's not sufficient."
  15. The officer then cuffed Josue on one wrist, pulled him out of the truck by the cuffed arm, then handcuffed both of Josue's wrists together.
  16. The officer then questioned Josue's friend who was in the rear seat.
  17. Josue's father was then questioned.
  18. The officer's left Josue's father alone after he recited his social security number but arrested Josue's friend.
  19. Josue was cold and asked the officer if he could grab his jacket before they put him in the CBP vehicle. The officer said no.
  20. Josue and his friend were put into a CBP van, which departed the scene at a reckless velocity.
  21. There were about eight other men in the van besides Josue.
  22. Josue and the others became afraid for their own safety because of the reckless driving of the CBP officer driving the van.
  23. On the way, one of the men in custody needed to use the restroom and asked the officer driving if he would stop the van for that purpose. The officer refused.
  24. Another CBP vehicle joined them in transit.
  25. Later the officer driving agreed to stop after Josue asked the officer the same question in English.
  26. Both CBP vehicles stopped at the side of the road somewhere near Santa Anna, Texas.
  27. The officers handcuffed Josue and the other men in pairs and got them out of the van.
  28. The officers then started ridiculing the man that was cuffed with Josue saying in Spanish, "Que? Eres mujer," meaning, "What? Are you a woman?"
  29. The man was scared and nervous. The officers ridiculed and humiliated him, telling him that if he needed to use the restroom, he should just squat.
  30. Later the men were put back in the van and they departed, eventually arriving at the CBP office in San Angelo, Texas.
  31. The place where Josue was arrested is well over 200 miles from the U.S./Mexico border.
  32. The road he was travelling is travelled by thousands of law-abiding persons daily, a large percentage of whom are Hispanic, consistent with the racial and ethnic diversity of the area.
  33. The vast majority of persons travelling this road travels it for lawful purposes.
  34. The vast majority of persons travelling this road are U.S. citizens or non-citizens in lawful immigration status.
  35. Prior to stopping at the gas station, the Truck was traveling in accordance with applicable state traffic rules and regulations.
  36. At the time of the arrest, the arresting officers were not patrolling the U.S./Mexico border or its functional equivalent.
  37. At the time of the arrest, the arresting officers were not patrolling the U.S./Mexico border or its functional equivalent for the purpose of preventing the illegal entry of aliens into the United States.
  38. The officers decided to interrogate Josue and the others in the Truck as to their immigration status based upon their perception that the Truck had a Hispanic driver and other Hispanics inside.
  39. The officers decided to seize Josue based upon their perception that the Truck had a Hispanic driver and other Hispanics inside.
  40. Neither Josue nor his father nor his friend took any evasive or unusual action in response to the presence of the CBP officers.
  41. Josue, his father and his friend did not run or hide or act nervously or act in any way abnormally in response to the presence of the CBP officers.
  42. When the officer stood on each side of the truck and the one officeropened the door of the Truck on Josue's side and physically placed his hand on Josue,Josue was seized within the meaning of the Fourth Amendment to the U.S. Constitution.
  43. Josue was not free to leave at that moment.
  44. When the officer stood on each side of the truck and the one officer opened the door of the Truck on Josue's side and physically placed his hand on Josue, Josue's father was seized within the meaning of the Fourth Amendment to the U.S. Constitution.
  45. Josue's father was not free to leave at that moment.
  46. At the time of this seizure, the officers were aware that applicable constitutional, statutory and regulatory law required that they haveobjectively reasonable suspicion, based on specific articulable facts, prior to the seizure of any person, that that the person seized was engaged in an offense against the U.S. or wasan alien illegally in the U.S.
  47. At the time of this seizure, the officers had no such reasonable suspicion.
  48. At the time of this seizure, the officers were aware that applicable constitutional, statutory and regulatory law required that they have probable cause prior to the arrest of any person that such person was engaged in an offense against the U.S. or was an alien illegally in the U.S.
  49. At the time of this seizure, the officers had no such probable cause.
  50. At the time of this seizure, the officers were aware of no facts indicating that:
  51. Josue or his companions were violating or had violated any law, the enforcement of which is within the jurisdiction of CBP;
  52. the Truckwas being driven or had been driven in a manner in violation of any traffic law;
  53. the Truck's appearance was indicative of illegal conduct;
  54. the Truck was being driven or had been driven in a manner indicative of any illegal conduct;
  55. Josue or his companionshad entered the United States illegally from a foreign contiguous territory;
  56. Josue or his companionshad come recently from a border area;
  57. Josue or his companionswere aliens;
  58. Josue or his companionswere aliens present in violation of any immigration law;
  59. Josue or his companionswere then involved in or had been involved in alien smuggling;
  60. Josue or his companionswere then involved in or had been involved in drug smuggling;or that
  61. Josue or his companionswere then involved in or had been involved in any other illegal activity.
  62. At the time of this seizure, the officersdid not think or believe that:
  1. the Truckwas being driven or had been driven in a manner in violation of any traffic law;
  2. the Truckwas being driven or had been driven in a manner indicative of any illegal conduct;
  3. the Truck's appearance was indicative of illegal conduct;
  4. Josue or his companionshad come recently from a border area or foreign contiguous territory;
  5. Josue or his companionswere then involved in or had been involved in alien smuggling;
  6. Josueor his companionswere then involved in or had been involved in drug smuggling; or that
  7. Josueor his companionswere then involved in or had been involved in any other illegal smuggling activity.
  1. At the time of this seizure, the arresting officers were aware that they lacked lawful authority to seize any person based solely or principally on the fact that such person isHispanic.
  2. At the time of Josue's seizure, the behavior and comportment of Josue and his companions were consistent with lawful activity.
  3. At the time of this seizure, the arresting officers had not received from their agency or otherwise any prior information or reports relating to the Truck, Josue or his companions.
  4. At the time of this seizure, the arresting officers had not received from their agency or otherwise any prior information or reports relating to the Truck, Josue or his companions indicative of any possible illegal conduct.
  5. At the time of this seizure, the behavior and comportment of Josue and his companionswas not indicative of unlawful activity.
  6. At the time of this seizure, the arresting officers had no warrant for the arrest of Josue or any of his companions.
  7. At no time during the seizure did the arresting officers search the Truck for drugs, illegal contraband, hidden persons or anything else.
  8. At no time during this seizure did the arresting officers communicate with their agency for the purpose of determining whether the agency had any existing records or information relating to the Truck or Josue or any of his companions.
  9. At no time during this seizure did any officer of CBP communicate with the arresting officers by phone or otherwise about the Truck or Josue or any of his companions.
  10. At no time during this seizure did the arresting officers undertake any investigation specific to Josue into whether he was likely to escape before an arrest warrant could be obtained.
  11. There are no characteristics particular to the portion of road in which this seizure too place that make it more likely than other roads within Texas to be used as a route for illegal activity.
  12. There is nothing about the traffic patterns particular to the portion of the road in which this seizure too place that make it more likely that Josue or his companions in the Truck were involved in any form of illegal activity.
  13. There was nothing about the visual appearance of the Truck that made it more likely that Josue or his companions in the Truck were involved in any form of illegal activity.
  14. As a result of the actions of the arresting officers, committed intentionally, maliciously, recklessly, negligently, and with a callous disregard for, or indifference to Josue's civil rights and those of his companions, Josue was unlawfully searched, seized, assaulted, detained, mentally and emotionally distressed, physically abused and humiliated. He suffered physical harm, a loss of liberty, humiliation, mental and emotional distress, and a violation of his Constitutional rights.
  15. The arresting officers'aforementioned actions were in accordance with and done pursuant to the regular pattern and practice of CBP patrol officers in Texas of driving roads and highways and visiting rest areas and convenience stores and gas stations and like places, far from the U.S/Mexico border, to stop and seize Hispanics in order to interrogate them about their immigration status without objectively reasonable suspicion that such affected persons are violating or have violated any lawwithin the enforcement jurisdiction of CBP.
  16. Other individuals that CBP officers have seized in this same illegal fashion off Texas highways and roads far from the border with Mexico, include:
  17. Jose ORDOÑEZ‐SALANEC, A088‐018‐337;
  18. Melchor RODRIGUEZ, A089-768-564
  19. Juan SALGADO, A089-768-567;
  20. Damian CECILIANO, A089-715-522;
  21. Miguel Cosojay‐Sutuj, A089-108-963;
  22. Israel HERNANDEZ, A089‐768‐605;
  23. Jaime Javier Zaldaña, A089-768-616;
  24. Daniel FRIAS, A087-521-104;
  25. Luis Pablo PEREZ, A089-715-604;
  26. Alejandro GARCIA DE LA PAZ, A200-889-127;and
  27. Francisco JAIMES-VILLEGAS,A200-205-446.
  28. Jose ORDOÑEZ‐SALANEC, A088‐018‐337:
  29. On March 19, 2007, Jose Ordoñez‐Salanec was driving alone on the freeway, Loop 410 West, in San Antonio in the late afternoon in an Isuzu Rodeo SUV vehicle when he was stopped by CBP officer Rolando Salinas.
  30. He was stopped, according to the government's Form I-213, for "always looking straight ahead" while driving, looking "nervous" and "switching lanes quickly."
  31. Salinas questioned him about his immigration status and arrested him.
  32. Under oath, during Mr. Ordoñez' immigration removal proceeding, Salinas testified that he stopped people based on their facial expressions and how they reacted to the BP vehicle.
  33. He claimed he could tell that Mr. Ordoñez was nervous because of the way in which he was "clenching" the steering wheel.
  34. The Immigration Judge found the officer's testimony regarding how he might distinguish one Hispanic person from an "illegal alien" given the high Hispanic population in San Antonio to be nonresponsive.
  35. The IJ found the Salinas' testimony to be not credible given its "nonresponsive, inconsistent and vague nature."
  36. The IJ concluded "that the only basis for the agent's stop was that [Mr. Ordoñez] 'looked like an alien'" and that, in arresting Mr. Ordoñez pursuant to an act of racial profiling, the CBP officer had "deliberately violated the law or acted in conscious disregard of the Constitution."
  37. The IJ excluded the I-213 as evidence based upon the illegality of the arrest and terminated the removal proceedings.
  38. Melchor RODRIGUEZ, A089-768-564:
  39. On November 25, 2008, Melchor Rodriguez was with three other Hispanic men in a double-cab Ford F-250 truck on Interstate Highway 10 just outside San Antonio when he was stopped and arrested by CBP officers, including Rolando Salinas, who had previously arrested Jose Ordoñez (discussed previously), and an officer named Francisco Delgado, who arrested Juan Salgado (discussed below).
  40. Salinas was undeterred by the IJ's prior decision in the case of Mr. Ordoñez, which had found his prior conduct to be in deliberate violation or conscious disregard of the law.
  41. According to the Form I-213, signed by officer Delgado, he and officer Salinas arrested Mr. Rodriguez and the other men in the truck because they appeared to be "stoic and ... nervous."
  42. Mr. Rodriguez was granted relief from removal immigration court in October of 2012.
  43. Juan SALGADO, A089-768-567:
  44. In December of 2008, officer Delgado arrestedJuan Salgado in the same fashion using the same excuse as in the case of Melchor Rodriguez.
  45. Juan Salgado was a passenger, being driven with two Hispanic family members in a four-door truck on Highway 151 outside San Antonio.
  46. They were observing state traffic law.
  47. CBP officers, including officer Delgado, saw them, pulled behind them, flashed their lights and pulled them over.
  48. One of the officers walked up to the truck on the passenger side and,prior to speaking any words, placed his left hand on the truck door and his right hand on Mr. Salgado's forearm.
  49. The stated reason for the stop on the Form I-213 was that Mr. Salgado and the others appeared "stoic and nervous" - exactly the reason given previously for the arrest of Mr. Ordoñez.
  50. Mr. Salgado is currently in removal proceedings.
  51. Damian CECILIANO, A089-715-522:
  52. On January 15, 2009, Damian Ceciliano was in a double-cab truck with four other Hispanic men when they were stopped by CBP officer John W.