Michelle
Morgante

By Michelle Morgante
Regional Managing Editor, The Recorder

  What You Need to Know

• Plaintiffs include the United Farm Workers union and several individuals.
• The suit notes the Border Patrol has said it intends to conduct more raids further north.
• Keker, an NLJ 500 firm, is joining the ACLU as part of its pro bono work.

U.S. Border Patrol agents indiscriminately stopped and detained scores of people in California based on appearance, held them incommunicado and coerced them into waiving their rights to appear before a judge, according to a proposed class action suit filed this week by the United Farm Workers and other plaintiffs.

The suit was brought by attorneys from NLJ 500 firm Keker, Van Nest & Peters and the American Civil Liberties Union in the U.S. District Court for the Eastern District of California in Fresno. It alleges agents violated the constitutional rights of people, including U.S. citizens and lawful residents, during “Operation Return to Sender,” a week-long sweep in January in Kern County, a farming region some 300 miles north of the U.S.-Mexico border.

Plaintiffs allege the operation was a “fishing expedition” designed to disregard legal mandates against being detained without reasonable suspicion, targeting people based on their perceived racial or ethnic background or occupation and forcing detainees into “voluntary departure" by misleading them about their rights.

“This was not a raid that targeted only immigrants. It targeted people for being brown. It targeted people on the basis of their race. ... It’s something that should raise concern for everyone, regardless of your political views, regardless of your party,” Bree Bernwanger, senior staff attorney at the ACLU of Northern California, said in an interview Thursday with The Recorder.

The UFW, the country’s largest farm worker union, fears the Border Patrol "will continue to target farm workers with its unlawful practices, especially those who appear non-white," the suit said. The union has a concentration of members in 450-mile long Central Valley, which the U.S. Department of the Interior says is a key agriculture region producing one-quarter of the nation's food. Several UFW members were arrested in the raid, including two who were coerced into accepting expulsion to Mexico, the suit said.

“UFW, members have been terrified,” Bernwanger said. “They've been afraid to go to work. They've been afraid to send their children to school. It's completely disrupted their daily lives.”

The suit seeks a preliminary and permanent injunction to enjoin further violations of the Fourth Amendment and proposes three classes: people subjected to detentive stops regardless of reasonable suspicion of unlawful presence; arrests regardless of probable cause of flight risk; and voluntary departure without a knowing and voluntary waiver of rights.

“Unless this court intervenes to stop defendants from continuing their unlawful practices, plaintiffs, UFW’s members, and countless other Central Valley residents—regardless of their immigration status—will continue to be subjected to Border Patrol’s lawless sweeps, indiscriminate arrests and coercive expulsions,” the lawsuit said.

The case was assigned to Magistrate Judge Barbara A. McAuliffe. It names as defendants Department of Homeland Security Secretary Kristi Noem and three officials of the U.S. Border Patrol: Acting Commissioner Pete Flores, Chief Michael Banks and Gregory Bovino, who is chief patrol agent for the El Centro Sector along the U.S.-Mexico border in eastern California.

Counsel for the defense have yet to appear. In response to a request for comment about the complaint, a DHS spokesperson emailed a statement to The Recorder on Friday that said, "Businesses that human traffic and exploit migrants for cheap labor should be afraid—We will go after them."

"Border Patrol enforcement actions are highly targeted," it said. "When we discover any alleged or potential misconduct, we immediately refer it for investigation and cooperate fully with any criminal or administrative investigations. This is the case whether the alleged misconduct occurs on or off duty."

According to the suit filed Wednesday, the Border Patrol reported its agents made 78 arrests and at least 40 people were expelled to Mexico. Individuals named as plaintiffs, including citizens and legal residents, described being stopped while driving vehicles on public roads or detained outside businesses. Border Patrol agents, it said, used unmarked cars to block people and, in at least one case, wore masks covering their faces, leading detainees to fear they were being kidnapped.

Ernesto Campos Gutierrez, a 44-year-old U.S. citizen who lives in Bakersfield, said he was driving to work on Jan. 8 when an unmarked white Chevrolet Tahoe signaled him to pull over. A Border Patrol agent wearing a vest marked “POLICE” demanded Campos Gutierrez hand over his truck keys and, when he declined, the agent took out a knife and slashed two of his vehicle’s tires, the suit said.

“It really is outrageous,” Keker partner Ajay Krishnan said in an interview Thursday.

Plaintiffs allege Border Patrol agents pressured or misled people into signing their names to electronic documents they were not allowed to read, Krishnan said. Some later received documents stating they’d been given versions to read in Spanish, which was not true, he said.

“It seems that Border Patrol officers just lied, just lied to the detainees and said this was for some other purpose, and just asked them to sign something without being clear as to what it was and being deceptive as to what they were signing,” he said.

The Border Patrol has said on its social media accounts it plans to conduct additional raids in other parts of central California, Bernwanger and Krishnan said. The suit notes that when Congress set up the Department of Homeland Security following the Sept. 11, 2001, attacks, it created Immigration and Customs Enforcement and Customs, or ICE, and Customs and Border Protection, or CBP. The CBP manages the Border Patrol while ICE inherited “the investigative and interior enforcement elements” of the Immigration and Naturalization Service (INS).

Operation Return to Sender, Krishnan said, “is Border Patrol operating 300 miles from the southern border.”

The cases described in the complaint demonstrate Border Patrol agents do not have the training needed to carry out “standard law enforcement interactions with people,” he said. “A lot of the stories in the complaint show how inappropriately these officers were acting compared to how law enforcement typically interacts with people in the United States. It was just appalling.”

Bernwager added that if Border Patrol is going to conduct operations in the U.S. interior, "it has to follow the same rules that other law enforcement have to follow.”

As the Trump administration has promised to ramp up deportation of undocumented immigrants, Bernwanger and Krishnan said more lawsuits are likely to surface elsewhere. Krishnan, who said Keker is involved in this suit as part of its long history of pro bono work, encouraged other firms to consider providing similar support to "stop this type of conduct as quickly as possible."

“Firms should be making sure they're fulfilling their obligations to the law by standing up and doing what they can do when they see something that's happening," he said. "That's very much the ethos of our firm.”

He pointed to two previous cases that included Keker: County of Santa Clara v. Trump and Al-Mowafak v. Trump. In the Santa Clara County case, Keker won a nationwide injunction against Trump’s January 2017 executive order that attempted to defund state and local governments deemed to be “sanctuary jurisdictions.” In Al-Mowafak, Keker partnered with the ACLU to file a class action suit challenging Trump's executive order restricting immigration from several predominantly Muslim countries and suspending entry of refugees from all countries.

Editor's note: This article was updated on Feb. 28 to add emailed statement from the Department of Homeland Security.