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Adriana Aguilar, et al v. Immigration and Customs Enforcement Division of the United States of

August 1, 2011

ADRIANA AGUILAR, ET AL., PLAINTIFFS,
v.
IMMIGRATION AND CUSTOMS ENFORCEMENT DIVISION OF THE UNITED STATES OF AMERICA DEPARTMENT OF HOMELAND SECURITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge:

OPINION AND ORDER

The plaintiffs, twenty-five individuals whose homes were searched by agents of the Immigration and Customs Enforcement Division of the Department of Homeland Security ("ICE") during eight operations between February and September of 2007, bring this putative class action against ICE; Michael Chertoff, the former Secretary of the Department of Homeland Security ("DHS"); Julie Myers, the former Assistant Secretary of ICE; John Torres, the former Director of ICE's Office of Detention and Removal Operations (the "DRO"); and Marcy Forman, the former Director of ICE's Office of Investigations (the "OI") (Chertoff, Myers, Torres, and Forman, together, the "Supervisory Defendants"); a number of additional individual defendants, primarily ICE agents, officers, and supervisors; and the United States. The plaintiffs contend, among other things, that the operations at issue were conducted in a manner that violated their rights under the Fourth and Fifth Amendments to the United States Constitution. The plaintiffs seek injunctive relief, damages from the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq., and damages from the individual defendants under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

The Supervisory Defendants have moved to dismiss the claims against them, and all defendants have moved to dismiss the claims for injunctive relief.

I.

On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiffs' favor. Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Velez v. Levy, 401 F.3d 75, 80 (2d Cir. 2005) (internal quotation marks and citation omitted). The Court should not dismiss the complaint if the plaintiff has alleged "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

"A claim has facial plausibility when the plaintiff pleads factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While detailed factual allegations are not required, the pleading must include more than an "unadorned, the-defendant-unlawfully-harmed-me accusation," "'labels and conclusions,'" "'a formulaic recitation of the elements of a cause of action,'" or "'naked assertion[s].'" Iqbal, 129 S. Ct. at 1949 (alteration in original) (quoting Twombly, 550 U.S. at 555, 557). Accordingly, the basic principle that a court must accept all allegations as true is inapplicable to either legal conclusions or "mere conclusory statements." Id. A court can thus begin its analysis of the sufficiency of pleadings by "identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.

A.

The plaintiffs' fourth amended complaint (the "Complaint") makes the following allegations with respect to the ICE operations at issue in this case. The first four searches were conducted by agents of the DRO.

On February 20, 2007, at 4:30 or 5:00 a.m., the East Hampton residence of plaintiffs Adriana Aguilar, Andres Leon, Elena Leon, Erika Gabriela Garcia-Leon, and Carson Aguilar, all of whom are United States citizens, was raided by agents of the DRO pursuant to "Operation Return to Sender." According to the Complaint, eight armed agents pounded on the front door of the home, entered and searched the home without a warrant and without consent, stormed into a bedroom containing a sleeping mother and her child, and detained and interrogated family members while blocking exits. The agents were looking for Adriana Aguilar's ex-husband, whom she had divorced five years earlier, and who no longer resided in the house. As they were leaving, one of the agents said that they would return. Fourth Amended Class Action Complaint ¶¶ 23, 190-241 ("Compl.").

Between 4:00 and 5:00 a.m., on the same date and as a part of the same operation, the same team of armed agents raided the East Hampton home of plaintiff Nelly Amaya without requesting or receiving consent to enter and without showing any warrant, detained and interrogated residents, and twisted Ms. Amaya's arm, exacerbating a pre-existing injury. Compl. ¶¶ 24-25, 242-85.

On March 19, 2007, at about 4:00 a.m., the Mount Kisco home of plaintiffs David Lazaro Perez, William Lazaro, and Tarcis Sapon-Diaz was raided by armed agents of the DRO pursuant to Operation Return to Sender. According to the Complaint, ten armed agents invaded the apartment building, burst into apartments and bedrooms by force, without exigent circumstances, consent or a warrant; caused physical damage throughout the building; and detained and arrested Spanish-speaking residents in a state of undress prior to questioning them. Compl. ¶¶ 29, 307-23.

On April 18, 2007, between 3:00 and 4:30 a.m., the Riverhead house where plaintiffs Mario Pazan DeLeon, Gonzalo Escalante, Victor Pineda Morales, Yoni Revolorio, and Juan Jose Mijangos lived was raided by agents of the DRO pursuant to "Operation Cross Check." Eight armed agents forcibly entered the house, without showing any warrant, caused physical damage to the doors and walls during entry, and burst into bedrooms without requesting or receiving consent while residents were in a state of undress. Compl. ¶¶ 27, 286-306.

The following four searches were conducted by agents of the OI. On September 24, 2007, at about 5:45 a.m., the Westbury home of plaintiffs Sonia Bonilla, a lawful permanent resident, and Beatriz and Dalia Velasquez, her United States citizen daughters, was raided by agents of the OI pursuant to "Operation Community Shield." Ten armed agents approached and surrounded the home while Ms. Bonilla was driving her husband to work. They pounded on the front door shouting "Police!" and told Beatriz Velasquez, who was twelve years old, that "someone was dying upstairs" in order to gain entry. When Beatriz opened the door, agents stormed into the house; detained Beatriz and Dalia, her nine-year-old sister, in their bedroom; searched the entire house without requesting or receiving consent, and without showing any warrant; and refused to explain their presence to Ms. Bonilla when she returned home while the raid was still in progress. Compl. ¶¶ 31, 324-42.

On the same date, the Westbury home of plaintiffs Elder Bonilla, a lawful permanent resident, and Diana Rodriguez was raided by agents of the OI pursuant to Operation Community Shield. According to the Complaint, a team of twelve armed agents surrounded the home, pounded on the door, and shouted, "Open the door!" When Mr. Bonilla opened the front door, an agent pointed a gun at his chest. Agents entered and searched the house without requesting or receiving consent, without exigent circumstances and without showing a warrant; entered bedrooms without requesting or receiving consent; handcuffed residents prior to any questioning; and caused physical damage to doors and walls. Compl. ¶¶ 33, 343-53.

On September 27, 2007, at approximately 7:30 a.m., the Huntington Station home of plaintiffs Raul Amaya, a United States citizen, and Gloria Vanessa Amaya, a lawful conditional resident, was raided by agents of the OI as a part of Operation Community Shield. According to the Complaint, ten agents invaded the home, searched through the house without requesting or receiving consent from the Spanish-speaking residents, and without a judicial warrant or exigent circumstances. The agents allegedly made allegations and used profanities to intimidate the Amayas, attempted to kick open a basement unit, and conducted a full search of the house. The agents threatened to return. Compl. ¶¶ 35, 354-76.

According to the Complaint, armed agents also invaded the Huntington home of plaintiffs Pelagia De La Rosa-Delgado, Anthony Jimenez, Christopher Jimenez, and Bryan Jimenez, all of whom are United States citizens, on two occasions, in August 2006 and on September 27, 2007, as part of Operation Community Shield, each time without a judicial warrant or valid consent. Each raid occurred early in the morning. During the first raid, agents pounded loudly on the door, burst into the home without requesting or receiving consent from the residents, who were in their nightclothes, detained the family in the living room and basement, and stated that they were searching for someone named "Miguel," a man unknown to the family. During the second raid, agents looking for the same man surrounded the home, entered by pushing past a seventeen-year-old who opened the door, detained teenagers and adults in a state of undress, and entered the bedroom of a sleeping woman without requesting or receiving consent. Compl. ¶¶ 37-38, 377-418.

The Complaint alleges that none of the plaintiffs in this case was an intended target of a raid, Compl. ¶¶ 238, 284, 305, 322, 341, 352, 375, 417, and indeed that only a small percentage of the individuals arrested pursuant to the operations were targets, Compl. ¶ 463. It alleges that the plaintiffs nonetheless remain extremely fearful that ICE agents will return to their homes, Compl. ¶¶ 23, 25, 27, 29, 31, 38, 39, 351, and that "[b]y engaging in such routine, law-abiding activities as living in their homes, Plaintiffs face the potential threat of future violations to their personal safety, security, freedom, and civil and constitutional rights." Compl. ¶ 441.

In support of these allegations, the Complaint also alleges that, to determine what residences to target during operations, Fugitive Operation Teams ("FOTs") "rely on a database that purports to contain relevant information concerning, among other things, the location of fugitive aliens," but that "[m]uch of the information in this database . . . is outdated, inaccurate and incomplete." Compl. ¶¶ 184-85. The Complaint alleges that a 2007 report by the Inspector General of DHS noted that "the DRO immigration database contained inaccurate and incomplete information on fugitive aliens" and "data exchanged between the DRO and its federal partners have not been reconciled on a regular basis to ensure the identity and background information on the fugitive alien is valid." Compl. ¶ 189. It also alleges that an investigation by the Inspector General into the intelligence supporting raids in Nassau County in October 2007 found that less than 10 percent of administrative warrants contained accurate intelligence. Compl. ¶ 11.

The Complaint further alleges that "[d]espite accounts that ICE has erroneously targeted numerous Latino homes, including complaints that they have raided the same home more than once without making any arrests and reports that clearly show ICE has used stale intelligence, ICE has never required agents to document or input information into their records or databases noting incidents of failed attempts to find targets." Compl. ¶ 11. It alleges that, "[a]s a foreseeable result of these lapses . . . Latinos face the risk of being wrongly and repeatedly targeted for raids." Compl. ¶ 11; see also Compl. ¶¶ 460, 475.

B.

The plaintiffs do not allege that any of the Supervisory Defendants directly participated in the challenged operations. Rather, they argue that the Supervisory Defendants created the policies governing how ICE agents operated during the raids at the plaintiffs' homes, and actively endorsed the unconstitutional conduct about which the plaintiffs complain. More specifically, the Complaint makes the following allegations:

Defendant Chertoff, as the Secretary of DHS, was the "ultimate decision maker" for the department and its divisions, including ICE. Compl. ¶¶ 72-73. He "created, approved, and implemented official policies and strategies," and, in concert with defendant Myers, conceived the Secure Border Initiative ("SBI"), a comprehensive and aggressive immigration enforcement strategy for the United States pursuant to which operations Cross Check, Return to Sender, and Community Shield were conducted. According to the Complaint, "Defendant Chertoff intended to violate constitutional rights by . . . implementing these policies." Defendant Chertoff was also involved in the planning and investigation of ICE agents' conduct during raids. Compl. ¶ 73. During his tenure, he also approved an eight-fold increase in the goal for arrests for FOTs.

According to the Complaint, defendant Chertoff "encouraged, endorsed, and thus intended the unconstitutional conduct by ICE during home raids." Compl. ¶ 75. This tacit endorsement is allegedly evidenced by his response or lack of response to articles and letters bringing to his attention the unconstitutional nature of the raids. In particular, the plaintiffs point to the following documents as providing such notice: an April 10, 2007 New York Times article detailing a raid on a home in East Hampton; a May 23, 2007 letter from an attorney alleging that his client's Mt. Kisco home had been entered by ICE agents without a warrant and without consent; an April 27, 2007 San Francisco Chronicle article describing an ICE raid and discussing ICE's practice of permitting agents to use ruses; an April 28, 2007 article in The Daily Review describing raids in the San Francisco area; a July 23, 2007 New York Times article discussing raids in New Haven, Connecticut; a June 11, 2007 letter from Senators Dodd and Lieberman requesting an explanation of the "illegal" New Haven raids; a September 27, 2007 letter from the Commissioner of Police for Nassau County to the resident agent-in-charge of ICE investigations in Bohemia, New York; an October 2, 2007 letter from Nassau County Executive Thomas Suozzi; and letters from various congressmen during 2008. Compl. ¶¶ 16, 75, 428, 431-32. The June 2007 letter from Senators Dodd and Lieberman noted that eyewitnesses had seen agents push their way into homes without consent, and alleged that the operations were carried out in retaliation for a new initiative to issue identification cards to the undocumented community. Compl. Ex. 5. Three days after receiving the letter, defendant Chertoff responded to the senators by means of a letter in which he wrote that "[a]t no time did any ICE FOTs enter a dwelling without consent." Compl. ¶ 75(b).

Of the materials claimed to have given defendant Chertoff notice of the unconstitutional nature of the operations, only the newspaper articles, attorney letter, and letter from Sen. Dodd and Lieberman are alleged to have been available to defendant Chertoff -- or even in existence -- prior to any of the operations at issue in this case. See Compl. ¶ 75.

Defendant Myers, as the Assistant Secretary of Homeland Security for ICE, was directly supervised by defendant Chertoff, and directly supervised defendants Torres and Forman. Compl. ¶ 78. She also approved the eight-fold increase in FOT apprehension targets, as well as defendant Torres's decision that "collateral" (non-fugitive) arrests would count toward achieving that goal. Compl. ¶ 80. According to the Complaint, defendant Myers "condoned and endorsed . . . unconstitutional conduct," Compl. ¶ 81, and "intended to violate constitutional rights by . . . implementing [ICE] policies," Compl. ¶ 80. In addition, she "vigorously defended ICE in spite of mounting evidence of repeated and systematic unconstitutional conduct," in violation of a duty to take corrective measures. Compl. ¶ 80. This evidence came in the form of "regular briefings on newspaper articles concerning ICE's unconstitutional conduct," Compl. ¶ 81, and access to the September 27 and October 2, 2007 letters that are alleged to have put defendant Chertoff on notice of ICE agents' unconstitutional conduct, Compl. ¶ 16-19. The Complaint also alleges that defendant Myers "coordinated ICE's response to the [allegations discussed in the October 2, 2007 letter from Nassau County Executive Thomas Suozzi], and also oversaw a grossly inadequate investigation into internal allegations of racial profiling." Compl. ¶ 80.

Defendant Torres, as Director of the DRO,*fn1 reported to defendants Chertoff and Myers and was responsible for the apprehension, detention and removal of foreign nationals charged with violations of the immigration law and the supervision of ICE agents assigned to the Detention and Removal field offices, including the New York field office. Compl. ¶ 83. In 2006, defendant Torres created a new goal of 1,000 arrests per year for FOTs, an eight-fold increase from what the benchmark had been two years earlier. Compl. ¶ 84. He also indicated thatcollateral arrests made as part of a headquarters-sponsored operation would count toward that goal, according to the plaintiffs, "knowing and intending that this would lead ICE to design operations to maximize the number of collateral arrests." Compl. ¶ 84. According to the Complaint, defendant Torres "intended to violate constitutional rights by . . . implementing these policies." Compl. ¶ 84.

Defendant Torres was the approving official for the operational plans for Return to Sender and Cross Check. Compl. ¶ 86. According to the Complaint, the plans "detailed targets, operational planning and execution, tasks for each group or office involved, coordinating instructions, and logistics." Compl. ¶ 86. The plans called for operations to be conducted by teams of a dozen agents. Declaration of Donna L. Gordon in Supp. of Pls.' Opp. to Defs.' Mot. to Dismiss the Compl. Against Defs. Michael Chertoff, Julie Myers, John Torres, & Marcy Forman ("Gordon Decl."), Ex. C at 1. They also indicated that operations should commence in the early morning hours and that agents should wear body armor and fully equipped tactical belts. Gordon Decl. Ex. C at 2-4; Gordon Decl. Ex. D at 3-5, 12-13.

Defendant Torres also contributed to ICE's response to a report by the Inspector General, "An Assessment of [ICE] Fugitive Operations Teams," which the Complaint alleges was highly critical. Compl. ¶ 87.

Defendant Forman, as Director of the OI,*fn2 reported to defendants Chertoff and Myers and was responsible for overseeing the investigative arm of ICE and the supervision of agents and officers in New York, Suffolk, Nassau, and Westchester counties. Compl. ¶ 89. She "played a significant role in the planning of the ICE raids in Nassau County in September 2007," and "was in charge of overseeing training and setting policy regarding ICE agent conduct during home raids." Compl. ¶ 90. According to the Complaint, defendant Forman "intended to violate constitutional rights . . . by implementing these policies," Compl. ¶ 90, and failed to take appropriate corrective measures after she was informed of concerns about the constitutionality of ICE agents' conduct, Compl. ¶ 92.

According to the Complaint, working together, defendants Torres and Forman coordinated the efforts of the DRO and OI, and "issued memoranda creating numerous protocols regarding the coordination of raids, case management, [and] procedures for keeping records." Compl. ¶¶ 85, 91. They also issued memoranda "stressing the importance of using ruses in operations" and "advocated the use of deception by ICE agents" to gain entry into homes. Compl. ¶¶ 85, 91; Gordon Decl. Ex. E, F, G.

Finally, according to the Complaint, all of the Supervisory Defendants knew of complaints of racial profiling by ICE officers before the operations at issue in this case took place, and "condoned such unconstitutional conduct by dismissing the internal accusations without conducting proper investigations." Compl. ¶ 12.

C.

A complaint commencing the present action was filed by several of the plaintiffs involved in the early 2007 operations on September 20, 2007. On October 4, 2007, an amended complaint was filed, adding the plaintiffs whose homes were searched in September 2007. An equal protection claim was added in a third amended complaint filed on March 6, 2009. The plaintiffs were granted leave to file the fourth amended complaint, which is the subject of the present motions, in December 2009. On December 21, 2009, they filed the Complaint, which added ten additional defendants, including defendants Chertoff, Myers, Torres, and Forman.

By request of the plaintiffs, the time for discovery in the case was enlarged on at least four occasions. Fifth Am. Scheduling Order, Aguilar v. ICE, No. 07 Civ. 8224 (S.D.N.Y. Dec. 3, 2010). The defendants represent that, as of the time the fourth amended complaint was filed, the defendants had produced more than 40,000 pages of documents, including all relevant policies and approximately 12,000 pages of training materials; and that the plaintiffs had taken 31 defendant depositions and 10 third-party depositions. Mem. of L. in Supp. of Mot. to Dismiss the Compl. Against Defs. Michael Chertoff, Julie Myers, John Torrest, & Marcy Forman at 13. Discovery is now closed.

II.

The Complaint alleges that the searches described above were conducted in a manner that violated the Fourth and Fifth Amendments to the United States Constitution.

The Fourth Amendment provides that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. Administrative searches such as the ones at issue in this case are subject to the warrant requirement of the Fourth Amendment. Michigan v. Clifford, 464 U.S. 287, 291 (1984). All parties agree that the operations did not occur pursuant to a warrant, and that they were only valid if they were conducted with the consent of the residents. See, e.g., Clifford, 464 U.S. 291, 295; Camara v. Mun. Ct. of S.F., 387 U.S. 523, 540 (1967).

For a warrantless search justified upon consent to be valid, the consent must be "'freely and voluntarily given.'" Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973) (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)); United States v. Snype, 441 F.3d 119, 130-31 (2d Cir. 2006). Whether a consent to a search "was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth, 412 U.S. at 227. A consent coerced by threats or force, or granted only in submission to a claim of lawful authority, is not valid. Id. at 233. The plaintiffs contend that their homes ...


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