Homeless in Arizona

Source

U.S. woman sues CBP, hospital over body-cavity search

Daniel González, The Republic | azcentral.com 6:03 p.m. MST June 15, 2016

Suit: Teenager was held for 7 hours by CBP and hospital after crossing border to return home; no drugs found, no charges filed

The woman was returning through a border crossing when CBP officers accused her of carrying drugs In 2014, a hospital in El Paso paid $1.1 million to a New Mexico woman who filed a similar lawsuit In October 2014, Ashley Cervantes crossed from Nogales, Arizona, to Nogales, Sonora, to have breakfast at one of her favorite restaurants.

But on the way back home, the U.S. citizen was confronted at a port of entry by U.S. Customs and Border Protection officers who accused her of carrying drugs.

Over the next seven hours while in custody of CBP officers, she was handcuffed to a chair, checked by drug-sniffing dogs, asked to squat so a female investigator could visually inspect her, and then taken to Holy Cross Hospital, where a male physician probed her vagina and anus for drugs as part of an unwarranted body-cavity search, according to a lawsuit filed in federal court on June 8.

No drugs were ever found and no charges were ever filed against her, the suit says.

Cervantes, now 21, was 19 at the time.

"For the remainder of her life, (Cervantes) will always remember that her first pelvic and rectal exams were under the most inhumane circumstances imaginable to a U.S. citizen at a hospital on U.S. soil," said the lawsuit.

Cervantes filed the lawsuit against U.S. Customs and Border Protection and Holy Cross Hospital in Nogales.

It is the second lawsuit in two years accusing CBP officers of conducting an unwarranted body-cavity search.

CBP officials said it is the agency's policy not to comment on pending litigation.

An administrator at Holy Cross Hospital referred questions to the hospital's parent company, Tenet Healthcare Corp. in Dallas.

Gary Hopkins, a spokesman, said the company would not comment because the claims raised in the lawsuit predate Tenet's ownership. Tenet assumed majority ownership of Carondelet Health Network of Southern Arizona, which includes Holy Cross, in September 2015.

Lawyer: Consent never given for search

The lawsuit said that Cervantes was released after being held for more than seven hours.

Brian Marchetti, a Tucson attorney who filed the lawsuit in federal court in Tucson, said Cervantes told officers she wasn't carrying drugs or contraband and never consented to be searched.

"She certainly never consented to having a full cavity search," Marchetti said in an interview. "We don’t believe she consented to any of this treatment. She denied from the word go being a carrier of drugs internally or of having any contraband on her of any kind."

In a letter Carondelet sent to Marchetti in March 2015, hospital officials said Cervantes signed a "Conditions of Admissions" document. The letter also said that the emergency-room physician who conducted the body-cavity examination is not an employee of the hospital.

"Our review of your concerns found that Ms. Cervantes was in the custody of the United States Custom(s) and Border Protection, and that we provided care according to our process for patients in custody," said the letter, signed by Ann E. Ross, risk manager at Carondelet Health Network.

Ross did not return a call for comment.

Crossed border to have breakfast

In the lawsuit, Cervantes said she had crossed the border to have breakfast in Nogales, Sonora and was returning on foot through a port of entry in Nogales, Arizona, when the incident occurred.

After identifying herself as a U.S. citizen and showing her birth certificate and Arizona ID card, Cervantes was confronted by U.S. Customs and Border Protection officers who accused her of possessing illegal drugs, the lawsuit said.

CBP officers took Cervantes to a detention room where she was handcuffed to a chair and held for several hours for questioning, the lawsuit said. During the questioning, CBP officers used more than one CBP K9 dog to sniff her person for drugs, according to the lawsuit. The lawsuit further states that it is against CBP policy to use drug-sniffing dogs on a person.

The lawsuit claims that Cervantes was then taken to a separate room, patted down and asked to squat so female investigators could visually inspect her.

Although no drugs were found, CBP officers transported her in handcuffs to the Holy Cross Hospital in Nogales to undergo X-rays. The lawsuit states that a CBP officer signed an Immigration Health Services Treatment Authorization Request form alleging she was a "potential internal carrier of (a) foreign substance."

"It is unclear what possible basis existed for CBP to use an Immigration Health Services' form or procedure on a citizen of the United States," the lawsuit states.

At the hospital, however, no X-rays were conducted, according to the lawsuit. Instead, a physician "forcefully and digitally probed Ashley's vagina and anus" as part of a body-cavity search, the lawsuit states.

Even if she had consented to an X-ray, Marchetti said, "an X-ray is obviously a much different level of examination than body-cavity search."

"Ashley was shocked and humiliated by these exceedingly intrusive searches. That an audience of CBP Agents and Holy Cross staff observed her being probed compounded her feeling of degradation," the lawsuit says.

Lawsuit says rights were violated

The lawsuit claims CBP officers violated her Fourth Amendment rights against unreasonable search and seizure, as well as her Fifth and 14th Amendment rights.

Among those named in the lawsuit are CBP Agent Shameka Leggett, and Patrick F. Martinez, the Holy Cross physician who conducted the body-cavity search.

In July 2014, the University Medical Center of El Paso paid a New Mexico woman $1.1 million after the American Civil Liberties Union filed a lawsuit accusing CBP officials of subjecting her to an unwarranted body-cavity search. The woman was returning to the U.S. via a bridge from Mexico to El Paso in December 2012 when she was accused by border authorities of carrying drugs.

The hospital also agreed to review internal policies related to searches by law-enforcement authorities.