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A

. __l_l(). »__Cl_ll & J01  PLLC
. ATT(_)R. 'l§'S . -T l. ;'

December 30, 2014

Kenneth Magidson
United States Attorney...
‘ was also denied medical care for the entire 10 days he was in DHS custody. 

DHS officials saw that were very sick yet d...
on May 1 1, 2014. Mr.  Johnson should not have required to actually visit a border patrol holding
station to realize that ...
children described the denial of medical care.  Approximately 70 percent of the children were
detained by CBP beyond the 7...
In an article published November 6, 2014, Noe Alvarez,  a social worker who worked directly
with unaccompanied children in...
If acts in violation of 18 U. S.C.  § 242 result in bodily injury,  the punishment perpetrator
“shall be fined under this t...
Conclusion

The extreme physical and mental pain suffered by __> __g __, I in DHS custody

shocks the conscience. 

DHS Se...
CC: 

John Roth

Inspector General

Department of Homeland Security
245 Murray Lane,  SW
Washington DC,  20528

Christophe...
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Redacted request for criminal prosecution

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A request to the U.S. Attorney for the Southern District of Texas to prosecute DHS Secretary Jeh Johnson for federal crime of Deprivation of Rights Under Color of Law, 18 U.S.C. § 242 against our minor clients.

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Redacted request for criminal prosecution

  1. 1. A . __l_l(). »__Cl_ll & J01 PLLC . ATT(_)R. 'l§'S . -T l. ;' December 30, 2014 Kenneth Magidson United States Attorney Southem District of Texas 1000 Louisiana, Ste. 2300 Houston, Texas 77002 RE: Reguest For Prosecution of Department of Homeland Security Secretagy Jeh Charles Johnson For Federal Crime of De rivation of Ri hts Under Color of Law 18 U. S.C. 242 of Minors Honorable Mr. Magidson: We represent the above referenced individuals in removal proceedings initiated against them by the Department of Homeland Security (“DHS”) and in all other matters. We write this letter to request a prosecution of DHS Secretary Jeh Charles Johnson and former DHS Secretary Janet Napolitano for committing the federal crime of De rivation of Rights Under Color of Law. 18 U. S. C. §_Z42 against our clients who are 17 and 1 year old, respectively. ‘ This letter will also serve as a complaint with DHS Office of Inspector General and Office for Civil Rights and Civil Liberties. Facts On or about June 27, 2014, _ were detained by DHS officials near Hidalgo, Texas. Thereafter, DHS officials willfully deprived _ of their constitutionally protected rights to adequate food, shelter, clothing, and medical care for 10 consecutive days. were detained in a pair of DHS holding cells for a total of 10 days. was only 9 months old at the time and visibly ill with severe congestion and fever. DHS deprived _ of any food for l0 consecutive days. — did not eat any solid food, apart from his mother’s breast milk, for 10 consecutive days. ltlltl l'ninn Btuilr-'; u'(l. l§rr'Sl1o1“<~ NY 1 17015 - 'l’: (iii (3 l7-.07lll lilxz lifil li I7-970.") 0 . '.llllll)l’l(Hill
  2. 2. ‘ was also denied medical care for the entire 10 days he was in DHS custody. DHS officials saw that were very sick yet did nothing to treat them. ‘ congestion was so severe that thought he was going to suffocate to death. I was fearful of being harmed by DHS officials if she asked for medical care for her son. She witnessed officers scream at another teenage mother who had asked for medical attention for her infant child, who was sick, cold, and naked. - was also deprived of adequate food, water, and medical care for the entire 10 days she was in DHS custody. As a result of the deprivation of food, water, and medical care, DHS caused — to be placed at serious risk of harm or death. In 10 days in DHS custody, weight plummeted from 23 to 15 pounds. He lost 35 % of his body weight. If it were not for — breast milk, — would have suffered even more harm. In fact, for a period of 2 days, - did not even consume breast milk. He could have died as a result of the severe deprivation of food, water, and medical care caused by DHS officials. Additionally, ‘ endured extremely cold temperatures for the entire 10 days they were detained by DHS. On top of the suffering from the constant cold, — _ were forced to attempt to sleep on the concrete floor of the jail cell without sufficient blankets or covers to keep them warm. The lights in the holding cells were kept on for the entirety of the 10 days of detention, making it even more difficult to sleep.2 Because of the combination of extreme cold, lack of a bed or blankets, the light being kept on for 24 hours a day, of untreated illnesses, and inadequate and at times nonexistent water and food, — barely slept for 10 consecutive days. Violation of 18 U. S.C. § 242, Degrivation of Rights Under Color Of Law 18 U. S.C. § 242 states that: Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges. or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both. .. zsee Affidavit of —
  3. 3. on May 1 1, 2014. Mr. Johnson should not have required to actually visit a border patrol holding station to realize that an emergency was ongoing for months before he made the visit. Mr. Johnson’s admission that he did not realize the severity of the crisis until actually having to see little children suffering shows how he willfully delayed implementing emergency measures that were necessary for DHS to comply with its duty to provide adequate food, clothing, shelter, and medical care to children in its custody. The Department of Homeland Security was already overwhelmed by the number of unaccompanied children as early as July 2013, and likely as early as January of 2013. Mayeli Hemandez. an unaccompanied minor client of the undersigned, testified before Congress on July 29, 2014. In her testimony, Mayeli stated that she entered in July of 2013 and that “. . . when I suffered a lot was after we crossed the river and the police took us into freezing cold police stations. In there, people couldn’t sleep. We had to sleep on the floor. And they only gave us thin nylon blankets. There wasn’t enough food. They only gave us two sandwiches a day. It was very cold in there and my little sister’s lips even turned blue. We were shivering the whole time that we were there. It was also very hard to sleep because the police were always calling our names, and we were there for four very cold days. ” (Emphasis added)5 The undersigned, who represent over one hundred unaccompanied minors who entered after January 1, 2013, have heard dozens of other accounts from children who were forced to stay in overcrowded, unsanitary, freezing-cold holding cells without sufficient food, clothing, and blankets in 2013 and 2014 prior to the implementation of emergency measures in May of 2014. On a regular basis, our office has listened to stories from additional unaccompanied minors of having been subjected to the same brutal conditions as — In fact, just this past Saturday, we retained a 7 year old client who was detained in DHS holding cells without adequate food, shelter, and medical care for 15 days from June 19, 2014 to July 4, 2014. On June 1], 2014, the National Immigrant Justice Center, Esperanzas Immigrant Rights Project, Americans for Immigrant Justice, Florence Immigrant and Refugee Rights Project, and the ACLU Border Litigations project, filed a complaint on behalf of 116 unaccompanied minors, ages 5 to 17 years old, who experienced remarkably similar cases of abuse and mistreatment to what the Respondent suffered.6 The 116 cases were documented from March to May of 2014. 80 percent of the 1 16 children interviewed reported inadequate food and water by CBP officials. Approximately half of the 5 Dan Friedman, Congress hears from the children that fled violence at home for the U. S. border. New York Daily News, July 30, 2014 littp: //wwxv. iivdailviiews. coiii/ iiewsfiaolitics/ congress-hears-cliildren-fled—ii-s-border-aiticle- | _~_l_§§§.9i3.. 5 ACLU, Syitemic Abuse of Unaccompanied Immigrant Children by U. S.Customs and Border Protection, June 1 1. 2014https: //i*vw. aclii. or<-/ iiiimi"rants-rights/ uiiaeconi_paiiled-inimigraiit-chIldren-report—sei‘ioiis—abuse—iis-officials- dlll'll1L’
  4. 4. children described the denial of medical care. Approximately 70 percent of the children were detained by CBP beyond the 72 hour limit as prescribed by law. A 16 year old girl described as D. G. in the complaint "describes the holding cell as ice-cold and filthy, and says that the bright fluorescent lights were left on all day and night. D. G. became ill while in CBP custody but when she asked to see a doctor, officials told her it was ‘not their fault’ that she was sick and ignored her. ” C. S., a 17 year old boy from El Salvador, stated that CBP officials only fed him frozen bologna sandwich. E. M., a 15 year old girl, was detained for a total of 8 days by CBP, where she reported having to sleep in a very cold and uncomfortable cell, and could not sleep because the lights were never turned off. She also reported becoming ill after consuming food provided to her by CBP. The reports of abuse and neglect as described in this complaint against CBP support the account of Respondent’s allegations in this instant motion. Furthermore, a report by The Office of Inspector General (“OIG”) of DHS, John Roth, supports many of the allegations of both Respondent and the 116 complainants in the complaint.7 The Office of Inspector General (“OIG”) of DHS, John Roth, issued a report on July 30, 2014 regarding the treatment of unaccompanied children in the custody of CBP. The report covered a time period of July 1-16, 2014 this report did not cover the treatment of children in the time period in which Respondent was detained by CBP. The report also did not address the specific allegations of the treatment of the 116 children in the complaint described above. The OIG report found, in part, that “DHS is holding UAC longer than 72 hours because no permanent shelter is available. ” If DHS had instituted emergency measures when it first became overwhelmed by the volume of unaccompanied children entering the United States in early 2013, DHS would have had sufficient permanent shelters to prevent its violation of the transfer period of 72 hours, which it had been doing for nearly more than a year prior to the visits from the OIG. The OIG report also found that “Temperatures in DHS facilities were inconsistent. ” And that in some facilities “employees cannot adjust thermostats. ” This is a reluctant admission by the OIG that many of the reports of the unaccompanied children of freezing temperatures are true. Finally, the OIG report found that in at least one location, there was not “. .an adequate amount of food. ” Again, the OIG report admits that, even after emergency measures were instituted, at one detention center an unspecified amount of children were not provided sufficient food. The fact that DHS refused to provide sufficient food and water to children is outrageous and criminal because it exposed children to substantial harm. 7 John Roth, Inspector General, Oversight of Unaccompanied Alien Children, July 30, 2014 http:1'/ wwvi-‘.0igxlhsggv/ assets/ MgmL’20l4.i’Over Un Ali Chilpdf
  5. 5. In an article published November 6, 2014, Noe Alvarez, a social worker who worked directly with unaccompanied children in the custody of OR, described what children looked like after they were released from the “hielera” or freezing cold holding cells in Texas, “The brothers arrived at my shelter on a Monday evening from Immigration and Customs detention in Texas. They were haggard and unfed. . . His swollen bare toes and blackened feet concealed the blisters that hid between his sandals. In My office, Agustin told me about the detention centers in Texas. Kids were crammed into rooms under bright lights and were forced to wait. Kids like Agustin called the detention center “la hielera” or the “Icebox” because of the blasting air condition in the artic-chilled cells. Some children were left there for weeks; they described the smell of their own festering feet and urine that filled the spaces. They were processed into jail with the dank clothes they traveled in, were not always showered, were provided with little food and little nutrition, and not always permitted physical exercise. “ DHS Secreta Jeh Johnson and Former DHS Secreta Janet Na olitano Should Be Prosecuted For Deprivation of Rights Under Color of Law, 18 U. S.C. § 242 Because Thev tion__9Wf Ade uate Food Clothin Shelter and Were Res onsible For The Willful De riva Medical Care of '; 'f_. ___g_. __, ,__ :1 for 10 Consecutive Days Upon information and belief, DHS Secretary Jeh Johnson and former DHS Secretary Janet Napolitano were the only individuals, short of the President of the United States Barack Obama, who had the authority to implement emergency measures to ensure that there was adequate food, clothing, shelter, and medical care for unaccompanied minors in DHS custody in 2013 and 2014. Despite the clear evidence that DHS was depriving children of adequate food, clothing, shelter, and medical care as early as July of 2013 due to a significant increase in the number of children in its custody, DHS Secretary Jeh Johnson and former DHS Secretary Janet Napolitano chose not to implement emergency measures for over a year after there were put on notice that emergency measures were needed. As stated earlier, DHS Secretary Jeh Johnson did not implement emergency measures until May 12, 2014, by which time it was too late for 1 children in DHS custody. , and thousands of other . . . ..-_‘. . . ‘i1-'. ... _ Anecdotally, it was not until August of 2014 that DHS’s emergency measures, combined with a drop in new entries into the United States that DHS’s unlawful deprivation of adequate food, clothing, shelter, and medical care for children in its custody ceased on a systemic level. If DHS Secretary Johnson or Napolitano had implemented emergency measures in 2013 or even in early 2014, . _; _g_, ; would not have been treated in such an egregious and unlawful manner for 10 consecutive days. 3Noe Alvarez, We’re failiilg the immigrant kids who show up alone on our border. I kncm, because I used to work with them, Washington Post, November 6, 20I4.l1l_lJQI_/ /7‘_’l/ . Vj_{t_’. ~}§f'glS'_, lllllggmptjfil. C(LI]£p(_1§I_§); [Ql‘}‘ll)_lI1,gf}yjZj2Q_l4«'/ _l l : '_(_)Q“j — worked-_in-a-centerlbr-cliildrcn-tauuht~at~tjic; l1oi‘de_r; jl c_onditions-arc—disuracejiil= '
  6. 6. If acts in violation of 18 U. S.C. § 242 result in bodily injury, the punishment perpetrator “shall be fined under this title or imprisoned not more than ten years, or both. ” r. ._«_. _.. .._7__. . The U. S. Constitution guarantees that g. ___. _ ‘___; _._’___)___”__j‘e, as individuals involuntarily detained under the custody of the U. S. government, a right to adequate food, shelter, clothing, and medical care.3 See Youngberg V. Romero, 457 U. S. 307 (1982). rT. ,__. -,. ... .._. _.. ,.. ... .._. .___v_. Notwithstanding that it _ ' 9 were entitled to adequate food, shelter, clothing . ... _. and medical care, they were denied these rights for 10 consecutive days in DHS custody. ,7.“ . .‘. .‘m. .,t- The willful deprivation of . , , ,.__j, j rights to adequate food, clothing, shelter, and medical care could have and should have been prevented by a timely implementation of emergency measures to address the increase in unaccompanied minors entering the United States starting in early 2013 and did not subside until August of 2014. DHS’s Intentional Refusal to Im lement Emer enc Measures Durin “Sur e” of Unaccompanied Minors in 2013 and 2014 DHS Secretary Jeh Johnson declared a “level-four condition of readiness” on May 12, 2014, which was an “official recognition that federal agencies overseeing borders, immigration enforcement, and child welfare had been outstripped by a sudden increase in unaccompanied minors in recent weeks. According to the New York Times, the “level four alert is the highest for agencies handling children crossing the border illegally, and allows Homeland Security officials to call on emergency resources from other agencies. “ DHS did not open the first emergency shelter for unaccompanied minors until after the level four alert armounces by Jeh Johnson on May 12, 2014. ln other words, prior to the opening of the first emergency shelter at the Lackland Air Force Base in Texas in May of 2014, Customs and Border Protection (“CBP”) was forced to house all children in ill—suited holding cells until they could transfer the children to shelters run by the HHS. Secretary Johnson admitted that “A South Texas processing center is no place for a child. ” Johnson further supports the assertion that he and his agency ignored for months that there was insufficient resources and space for the govemment to comply with its obligations in caring for unaccompanied children. Johnson stated in the same article that “. . . the influx of unaccompanied youths had ‘zoomed to the top of my agenda’ after his encounters at the McAllen Border Patrol station with small children, one of whom was 3.” The encounters reference a personal visit that Jeh Johnson made 3 Youngberg V. Romero 457 US 307 (1982) 4 Julia Preston, U. S. Settir1g_U_p Emergenc3L_Shelters in Texas as Youths Cross Border Alone, The New York Times. May 16, 2014, http: /,-’wwv, n= times. com/20I4/05/1 7«"us/ us—set§ip-crisis-slieher-as—cliiidlen-tlov-across—border- al0ne. html'? r:0
  7. 7. Conclusion The extreme physical and mental pain suffered by __> __g __, I in DHS custody shocks the conscience. DHS Secretary Johnson and former DHS Secretary Napolitano were duty-bound under the U. S. Constitution to provide ________ ______: } adequate food, clothing, shelter, and medical care. Nevertheless, Mr. Johnson and Ms. Napolitano willfully deprived _ _ I ____g_: ] of their rights to adequate food, clothing, shelter, and medical care by choosing not to implement emergency measures until May 12, 2014 despite having notice that there was inadequate food, clothing, shelter, and medical care for unaccompanied children as early as July of 201 3. The extreme physical and mental pain suffered by , _‘—V‘. ’ ____ would not have occurred but for Mr. Johnson’s and Ms. Napolitano’s decisions to refuse to implement emergency measures until May 12, 2014. Again, we respectfully request a prosecution of Jeh Charles Johnson and Janet Napolitano for their commission of the federal crime of Deprivation of Rights Under Color of Law, 18 U. S.C. § 242, against our clients . . _ _________, .___; ___________, Attached to this letter please find the following documents in support of this request. Affidavit or[: ’ ‘T _. ___g; Form G-28 for l__g___g___________g, Copy of Text of 18 U. S.C. § 242, Deprivation of Rights Under Color of Law; Copy of US. Supreme Court Decision Youngberg v. Romero; Copy of News Articles in Support of Request; Copy of ACLU Report, Systemic Abuse of Unaccompanied Immigrant Children by U. S.Customs and Border Protection; and 7. Copy of DHS OIG Report, Oversight of Unaccompanied Alien Children; Thank you for your prompt attention to this important matter. If you have any questions or would like to speak with our clients please contact us at 631-647-9701 or through e-mail at B1‘y'a11(dram']olaw. com. . °‘. V‘: "."’! ’. _‘ Ver TrulyY s, a Amoach', sq. Bryan S. Johnson, Esq. Amoachi and Johnson, PLLC Amoachi and Johnson, PLLC 1918 Union Boulevard 1918 Union Boulevard Bay Shore, NY 11706 Bay Shore, NY 1 1706 (T) 631-647-9701 (T) 631-647-9701 (F) 631-647-9705 (F) 631-647-9705
  8. 8. CC: John Roth Inspector General Department of Homeland Security 245 Murray Lane, SW Washington DC, 20528 Christopher H. Combs Special Agent In Charge Federal Bureau of Investigations 5 740 University Heights Blvd San Antonio, TX 78249 Megan H. Mack Officer for Civil Rights and Civil Liberties Department of Homeland Security 245 Murray Lane, SW Washington DC, 20528

A request to the U.S. Attorney for the Southern District of Texas to prosecute DHS Secretary Jeh Johnson for federal crime of Deprivation of Rights Under Color of Law, 18 U.S.C. § 242 against our minor clients.

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