Alfaro-Garcia et al., v. Johnson et al.
No. 14-CV-01775 (N.D. Cal. April 17, 2014)
Individuals in DHS custody with final orders of removal – whether because of a prior removal order or because of a summary removal order pursuant to 8 U.S.C. § 1228(b)(3) – are summarily deported without the right to see an immigration judge. Separately, the United States has agreed not to deport individuals to countries in which they face persecution or torture. To comply with that obligation, DHS enacted regulations incorporating a procedure by which individuals with final removal orders can raise claims of persecution or torture before an immigration judge. Under the procedures implemented by DHS, an individual with a final order of removal who asserts a fear of persecution or torture in the country designated for removal must receive an interview with an asylum officer to assess whether he or she has a “reasonable” fear of returning to the designated country. If an asylum officer determines that the individual does have a reasonable fear of persecution or torture, the individual is then referred to an immigration judge to make a full application for relief in the forms of withholding of removal under the statute, see 8 U.S.C. § 1241(b)(3), as well as withholding and deferral of removal under the Convention Against Torture (CAT).
Since the creation of 8 C.F.R. § 208.17(e), however, DHS has rarely complied. As a result, thousands of men and women in DHS custody languish for months on end awaiting what is only a preliminary step in a much longer process to seek protection in the United States. DHS’ own statistics in recent years demonstrates that individuals awaiting RFDs routinely wait well beyond the 10 days as required by the regulation. Further, DHS guidance publicly acknowledged the delays and, ignoring the regulation, sought to achieve an adjudication time of 90 days in 85 percent of cases – nine times longer than that required by the governing regulation. Indeed, in the months leading up to this litigation, practitioners around the country reported wait times of anywhere between 6 months and in some cases, up to a year, for a reasonable fear determination. As result, many individuals abandon bona fide claims to protection in the U.S.
On April 17, 2014, the National Immigrant Justice Center, along with the ACLU of Southern California, the ACLU of Northern California and Reed Smith LLP, filed a class action lawsuit in the Northern District of California against the Department of Homeland Security (DHS), challenging delays in the adjudication of reasonable fear determinations (RFDs) for individuals in DHS custody, which by regulation, must be completed within 10 days. See 8 C.F.R. § 208.17(e). The lawsuit was filed as a nationwide class action and challenged the government’s delays under the Administrative Procedure Act (APA) and the Mandamus and Venue Act of 1967.
Subsequent to the filing of the complaint in Alfaro-Garcia, DHS sought to dismiss the case. Following briefing on DHS’s motion to dismiss, the District Court judge presiding over the matter denied DHS’s motion and certified the class. In the wake of settlement negotiations over the course of several months, the parties reached a tentative settlement, which was filed with the Court on July 7, 2015. On Friday, August 21, 2015, the District Court judge granted an unopposed motion to preliminarily approve the Settlement Agreement reached in this action. In its final version, the class approved in Alfaro-Garcia is as follows:
Any person who, during the period of this Agreement:
a. is or will be subject to a reinstated order of removal under 8 U.S.C. § 1231(a)(5) or an administrative removal order under 8 U.S.C. § 1228(b);
b. has expressed, or in the future expresses, a fear of returning to his or her country of removal;
c. is detained in the custody of the Department of Homeland Security (“DHS”); and
d.has not received, or does not receive, an initial reasonable fear determination by the U.S. Citizenship and Immigration Services (“USCIS”) under 8 C.F.R.§ 208.31 within ten (10) days of referral to USCIS; however,
e. the defined class does not include individuals who have received their reasonable fear determination.
The court granted final approval of the Agreement on October 27, 2015.