SAN FRANCISCO — Immigrants detained in the United States with final deportation orders but who fear persecution or torture in their home countries will now have their asylum claims processed in days rather than months under a proposed settlement of a nationwide class action suit the Department of Homeland Security (DHS).
The ACLU Foundation of Southern California (ACLU SoCal), ACLU of Northern California, the National Immigrant Justice Center (NIJC), and the international law firm Reed Smith LLP, reached the tentative agreement with DHS on behalf of thousands of immigrants who have spent months in detention while they await “reasonable fear determinations,” the first step in seeking protection in the United States when someone has been previously deported.
“Those who fear persecution in their home countries and come to this country seeking safety deserve a fair and timely decision on their applications,” said Michael Kaufman, a staff attorney at ACLU SoCal. “Today’s proposed agreement is an important re-statement of U.S. law and American values of justice.”
U.S. law mandates that when certain individuals subject to summary removal orders express a fear of returning to their countries of origin, they must receive a determination within 10 days stating whether their fear is reasonable and whether they can proceed with a hearing on their application for protection before an immigration judge.
The U.S. government has violated this law in thousands of cases where individuals have waited for three months or more for their interviews and decisions. Because these individuals are usually detained throughout the rigorous asylum process, the delays in receiving reasonable fear determinations unduly extend the lengthy periods of detention these individuals already face.
“Many of these asylum seekers have languished for months in immigration jails - some give up meritorious claims in the face of prolonged detention and risk further persecution upon deportation,” said Claudia Valenzuela, associate director of litigation at NIJC. “The proposed agreement will help ensure that asylum seekers are not forced to forego their claims to avoid unnecessary detention.”
The agreement announced today follows a November 2014 court ruling that found that DHS was likely violating the law and class members’ rights by delaying the processing of their claims. The court ordered certification of a nationwide class of the thousands of immigrants subject to “reasonable fear” screening each year.
“We are encouraged that the federal government has committed to make a series of reforms that will ensure its compliance with the law and the timely processing of asylum seekers’ cases,” said Jim Rolfes, partner at Reed Smith LLP.
The agreement requires that DHS achieve a national average of no more than 10 court days to complete reasonable fear determinations. The proposed settlement also requires that DHS take no longer than 20 court days to complete any individual reasonable fear determination. If it fails to do so, DHS must notify the individuals’ attorneys.
The comprehensive settlement requires expeditious processing of class members’ claims, from their apprehension by immigration authorities to issuance of a “reasonable fear” determination. Under its terms, U.S. Immigration and Customs Enforcement (ICE) must refer individuals who qualify for a reasonable fear determination to U.S. Citizenship and Immigration Services (USCIS) “immediately, as practicable.
Within a year after the date of the settlement agreement, ICE must refer a case to USCIS within an average of five days. The parties to the lawsuit will then establish a shorter benchmark for referrals, the agreement says.
As part of the agreement, DHS must regularly report on whether it is meeting its requirements and update its trainings and manuals to reflect requirements of the agreement. The U.S. District Court for the Northern District of California will retain jurisdiction to enforce the terms of the settlement agreement.
“This agreement is another attempt to correct the administration’s misguided policies that have led to the detention of thousands of asylum seekers, including women and children,” said Julia Harumi Mass, senior staff attorney with the ACLU of Northern California. “We call on the administration to stop detaining asylum seekers and to treat them in the humane and fair manner that they deserve.”
Read the settlement: https://www.aclusocal.org/cases/alfaro-garcia/settlement/
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