Immigrants seeking U.S. protection spend months in detention, suit says

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Thousands of immigrants seeking protection in the United States have spent months in detention waiting for the government to determine whether they may have legitimate cases, even though regulations say they should receive a determination within 10 days, according to a class-action lawsuit filed Thursday.

The lawsuit, which was brought by two California chapters of the American Civil Liberties Union and the Chicago-based National Immigrant Justice Center, claims the government violated the law and needlessly spent tens of millions of taxpayer dollars on detention.

A spokesman for U.S. Citizenship and Immigration Services said he could not comment on pending litigation.


The case pertains to a subset of immigrants who illegally reentered the United States after previously being deported and who face deportation again.

The Obama administration has put a priority on expelling repeat immigration offenders, who are ineligible for hearings before an immigration judge because of the outcome of their prior cases. But those who claim they have a fear of persecution or torture if they return to their home countries are guaranteed a hearing with an asylum officer.

Government regulations say that within 10 days, claimants must receive a determination of whether they can proceed to have their case heard by a judge.

The lawsuit, which was filed in the U.S. District Court in San Francisco, alleges the government violated the law in thousands of cases, with individuals waiting in detention for many months for a ruling on their case and in some instances more than a year. The lawsuit said government data show that the average wait time for a reasonable fear determination is about 111 days.

Marco Antonio Alfaro Garcia, a native of El Salvador who was deported at the border while trying to cross into the United States in 2005, successfully crossed two years later and now has three American-born children with his partner, a U.S. citizen.

In January, Garcia was arrested and charged with driving under the influence. According to the court filings, he was turned over to immigration authorities, who informed him that his 2005 deportation order had been reinstated.


Garcia told the officials that he was afraid to go back to El Salvador because he had been beaten multiple times by police and feared retaliation from a criminal group for providing information to prosecutors. It took nearly a month for Garcia to get an interview with an asylum officer, according to his lawyers, and he is still waiting for a ruling on whether he can move forward with his claim. He is entering his fourth month at a federal detention facility in Adelanto, Calif.

His partner, Yeni Gomez, 34, gave birth to their third son while Garcia was in detention. She said she had been selling pupusas on the sidewalk to pay rent.

“It’s really hard to be the mom and the dad at the same time,” she said. “We just want to know an answer as soon as possible.”

Also Thursday, documents were released showing that the Department of Homeland Security has cracked down on another class of immigrants seeking protection.

Immigration officials have been overwhelmed in recent years by a surge of asylum seekers along the U.S.-Mexico border. Over the last five years, the number of people detained at the border who claim they cannot return home because they fear for their safety has increased sevenfold, from just under 5,000 to more than 36,000.

Each is granted what is known as a “credible fear” interview with an asylum officer who determines whether the immigrant is eligible to stay in the country and have a full asylum hearing or be sent home. The majority of claims are found to be credible, according to federal figures, although only a small number of immigrants will go on to win asylum.


Asylum officers were urged to be stricter in their rulings in internal U.S. Citizenship and Immigration Services documents released by an advocacy group called the National Immigrant Youth Alliance.

In a Feb. 28 memo from John Lafferty, the chief of the Asylum Division at USCIS, officers are instructed to approve only those cases that demonstrate a “significant possibility” of winning asylum from a judge. Lafferty issued the memo in light of concerns that officers had been approving cases that had “only a minimal or mere possibility of success.”

Jeff Carter, a spokesman for USCIS, said immigrants have always had to demonstrate a “significant possibility” of winning asylum. “The credible fear standard was established by Congress and has not changed,” he said in a statement.

But Judy London, directing attorney of the Immigrants’ Rights Project at the pro bono law firm Public Counsel, said the memo is “a signal to asylum officers to be very wary about finding credible fear.” She complained that the government’s response to the surge in asylum applications was “to make it more difficult for [immigrants] to establish their eligibility to stay here rather than looking at what is causing this increase.”

Mark Krikorian, executive director of the Center for Immigration Studies, which advocates for a more restrictive immigration system, welcomed a stricter interview process. “Tightening up the credible fear determination is essential,” he said. “Everybody who just utters the word ‘asylum’ can’t be adjudicated.”