Civil Accountability

Border dispute from 2012 shows path for civil lawsuits against ICE and Border Patrol

Julia was just nine-years old when immigration officers in southern California took her into a holding station and kept her there for a day and a half. Certain that Julia and her older brother had gone into the immigration station but never come out, their mother, Thelma Medina Navarro, pleaded for information. CBP at first stonewalled her, until hours later they relented. Outraged, the children and their mother sued the federal government – and they won $1.5 million.

Photo by Phil Botha on Unsplash

As immigration officers become increasingly violent in cities around the United States, the legal tool that the Medina Navarro family turned to, the Federal Tort Claims Act, is an important option for people harmed by federal officers. Enacted in 1946, the FTCA lets ordinary people sue the federal government when its officers violate civil legal rights created by state law. Full of waivers and exceptions, the Medina Navarro family’s successful use of the FTCA shows the law’s promise and limitations. While the family was able to obtain a meaningful financial payout, none of the individual officers involved were affected. Indeed, the FTCA can’t be used to sue individual employees of the federal government. Rather, it can only be used to go after the federal government.

In many ways, the Medina Navarro family isn’t unusual. Like my own family, many people routinely cross the border that the United States shares with México. Julia and fourteen-year-old Oscar lived in Baja California with their parents, but the two children, both of whom were born in the United States, attended school in California. Daily border crossings were nothing unusual for them.

But when they entered the immigration office in March 2019, everything changed. The first CBP officer inspecting travelers that morning thought that Julia didn’t look like the person in the photo on the U.S. passport card she presented. There was a dot – maybe a mole, the officer thought – on Julia’s lip in the photo, but the dot wasn’t visible on the little girl’s face. The officer then questioned Julia about her past border crossings, but the nine-year old “was not sure” when she had previously crossed, the officer later testified.

Oscar also couldn’t remember things well. When a different CBP officer asked about the last two times that he and Julia had crossed the border together, the fourteen-year-old got the dates wrong, a federal judge later explained. Things got worse for the children when CBP officials decided to have them questioned by CBP Officer Willmy Lara. Lara had been staffing the main inspection point at the port-of-entry that morning, but a supervisory officer shifted him to speak with the siblings “because he had a reputation for obtaining confessions,” according to Judge Gonzalo P. Curiel of the federal district court in San Diego. Soon, Julia did confess. After correctly identifying herself to officials, she eventually told Officer Lara that she was not Julia after all; she said she was her cousin Melany.

Meanwhile, as the hours passed and the kids were nowhere to be found, Thelma, their mother, began to worry. Late that morning, she made her way to the immigration station. When she rushed to an officer who was positioned in the holding station’s lobby, the officer told her to go to the back of the line and wait her turn. Three hours later, when she reached the front of the line, officers told her Julia wasn’t there. In reality, CBP had been holding the kids for several hours by then, questioning them repeatedly about their identity and past border crossings. Not once did they call their mother or Melany’s mother. They never bothered to look in their own computer database at the information, including a photograph, in their passport applications. After 14 hours, government officials released Oscar. It would be another 20 before Julia would also be freed.

The FTCA permits ordinary people to receive financial compensation when government officials violate some rights protected by the law of the state in which the legal violation occurred. California, where Julia and Oscar were detained, doesn’t permit locking up someone without a legal basis to do so, the hallmark of civil tort law’s prohibition against false imprisonment. As U.S. citizens, CBP lacked any legal authority to detain the siblings, Judge Curiel concluded.

In addition, the kids experienced severe emotional distress, the key requirement of a separate legal claim called intentional infliction of emotional distress. CBP officers should not have pressured Julia into falsely confessing to being her cousin, and they should have taken seriously the efforts by Thelma to find her kids and prove their U.S. citizenship. Instead, the officers’ actions – from coercing Julia, trying to trip up Oscar, and ignoring Thelma – go beyond “all bounds of that usually tolerated in a civilized community,” Judge Curiel explained in a 2024 decision.

Crucially, the FTCA bars lawsuits that result from some choice that a government official made while carrying out their job duties. Called the discretionary function exception, this legal loophole can swallow otherwise strong cases against the government. But Congress can’t permit federal officials to violate the U.S. Constitution. As a result, the discretionary function exception “does not apply where a federal official violates the constitution,” Judge Curiel pointed out.

That’s exactly what happened to Julia and Oscar. The Supreme Court has long taken the position that border officials can question everyone who wants to enter the United States about their identity and citizenship status. But to subject a person to intense questioning and detention, the Fourth Amendment requires that border officials have reasonable suspicion that the targeted person is violating the law.

Given this two-part legal standard, CBP officers were entitled to question the kids about their identity and citizenship. They could even be suspicious of the missing dot on Julia’s lip. But it was not reasonable to take 14 hours to investigate Oscar and 34 hours to investigate Julia, especially given that their mother was standing in the lobby, birth certificates in hand, and officers could have looked at their passport applications. As a result, federal officials violated the Fourth Amendment.

The Medina Navarro family’s saga is a model for other people who have been harmed by immigration agents. From Los Angeles to Minneapolis, videos shared widely on social media show immigration agents breaking vehicle windows, yanking people out of cars, indiscriminately tossing chemical irritants out of moving SUVs, shooting rubber pellets directly at people who are lawfully protesting, and, of course, tragically killing people like Renee Good and Alex Pretti.

The FTCA can’t eliminate the trauma of being thrown to the ground by armed agents or sprayed in the face by tear gas. And the FTCA can’t bring back Renee Good or Alex Pretti. But the federal law does allow a slim path toward holding the government accountable for the harm that its officers cause. I suspect more people will soon make use of it.