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Thursday, May 23, 2024 | Back issues
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Refuge-Seekers Stuck in Legal Purgatory

OAKLAND, Calif. (CN) - Refuge-seekers facing deportation can spend more than a year in detention during the asylum process, despite a law requiring a decision within 10 days on whether they reasonably fear persecution if sent back to their homeland, according to a class action in Federal Court.

Lead plaintiff Marco Antonio Alfaro Garcia, represented by the ACLU and the National Immigrant Justice Center, claims the government violates the Administrative Procedure Act by unreasonably delaying interviews to determine whether immigrants have a reasonable fear of returning to their countries of origin.

Immigration laws require that immigrants subject to removal who fear returning to their home country be given an opportunity to request protection in the United States.

Most of those who undergo what the lawsuit calls "the reasonable fear process" have been deported but returned to the United States because they were targets of violence and persecution in their countries of origin, the complaint states.

"Some of these individuals have already tried to seek asylum once, were summarily deported without a hearing after immigration officers ignored or discouraged their requests, yet return again because of the continued persecution or torture they face in their home countries," according to the complaint.

Under the 1980 Refugee Act, a person qualifies for political asylum if he or she has "a reasonable fear" of persecution in his or her home country, due to race, religion, nationality, political opinion or membership in a social group.

Granting of political asylum in the United States, for most nationalities, has been honored more in the breach than in the observance.

The reasonable fear process also applies to people who are not lawful permanent residents and face removal after having been convicted of certain criminal offenses, but fear returning to their home countries, according to the complaint.

After being arrested, immigrants are held in a detention center while they go through a two-stage process to determine whether they qualify for "withholding of removal" and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment.

The immigrants are not eligible for a bond hearing to determine whether their detention is justified and are "generally imprisoned throughout the entire period in which the government considers their claims for relief, including the reasonable fear process, immigration court proceedings, and any appeals," the complaint states.

Government regulations require that those claiming a fear of persecution must receive within 10 days what is known as a "reasonable fear determination," which determines whether the immigrants have a valid argument for staying in the country and can face an immigration judge.

But instead of attempting to follow this official timeframe, the U.S. Citizenship and Immigration Services (USCIS) has implemented goals that "'encourage' applicant interviews within 45 days, adjudication of 85 percent of cases within 90 days, and monthly reports on cases still pending after 150 days," the lawsuit states.

Government data show that the average wait time from when an immigrant is taken into custody to the time he or she is given a reasonable fear determination is about 111 days, according to the complaint.

"This includes an average of 49 days that individuals wait for USCIS to accept jurisdiction of the case. Even after USCIS accepts jurisdiction, individuals must wait an average of over 60 days for the Asylum Division to conduct the interviews and make reasonable fear determinations before their cases can reach an immigration judge," the lawsuit states.

The second stage in the asylum process, including the hearing before the immigration judge, can take anywhere from several months to more than a year, the complaint states.

"These delays have had drastic human consequences," according to the lawsuit.

Lead plaintiff Garcia, a native of El Salvador who was deported from the United States in 2005, re-entered the country two years later after he was subjected to violence, threats and harassment in his home country, he says.

Garcia, who has three U.S.-born children with his U.S. citizen partner, was arrested in January and charged with driving under the influence. When told that he was going to be removed from the country due to his previous deportation, Garcia informed the immigration officer that he feared returning to El Salvador because he had been beaten multiple times by police and was wanted by a criminal group because he provided information to prosecutors, the complaint states.

Garcia waited nearly a month to be interviewed by an asylum officer and has yet to receive a reasonable fear determination. When he requested the status of his case, he was told it would take four to six months for such a determination to be handed down, the complaint states.

"As a result of his detention, Mr. Alfaro Garcia could not be present for the birth of his youngest child. He has also been unable to provide financial support for his family since his detention, forcing Ms. Gomez to try to support her family by taking part-time work selling food on the weekends. The children cry almost daily because Mr. Alfaro Garcia is incarcerated," the complaint states.

The plaintiffs seek class certification and an injunction ordering the government to comply with its obligation to provide reasonable fear interviews and determinations in a timely manner, which "will hold the United States to the promise made to all immigrants who seek refuge in this country, end improperly extended detentions, and give hope to the many who seek a new life free of persecution and torture." (8)

Named as defendants are Jeh Johnson, Secretary of Homeland Security; Lori Scialabba, Acting Director of USCIS; and Joseph Langlois, Associate Director of Refugee, Asylum and International Operations.

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