A settlement was reached Thursday in a federal class-action lawsuit that challenged weekslong delays faced by people in immigration custody waiting for their first appearance before a judge.
Under the agreement, approved by a San Diego judge, people who request to see a judge promptly must have a first appearance hearing within 11 days of entering Immigration and Customs Enforcement custody.
That includes the three days for ICE to file a notice to appear after an individual is taken into custody; then, if someone requests a prompt initial appearance, it should occur within eight calendar days, if not sooner, according to court documents.
The lawsuit, filed in March 2017, alleged that delays within the civil immigration system were significantly longer than criminal court systems, which require the person to be promptly brought before a judge — typically within a few days of arrest for those in custody.
The suit was brought on behalf of plaintiff José Cancino, then a senior in high school who grew up in San Diego. He spent a month in ICE custody before seeing a judge, said Bardis Vakili, an attorney working with the American Civil Liberties Union.
Cancino, originally from Mexico and 18 at the time, was eligible to stay in the U.S. under the Deferred Action for Childhood Arrivals, or DACA, program, Vakili said.
“He had the courage to say: I don’t want this to happen to anyone else,” said Vakili.
“Throughout the whole case, the average wait time was about three or four weeks for people in his situation, arrested from the inside of the country,” he said. “For people who are arriving, the wait is much longer. It takes months sometimes, because they have to go through the screening process.”
Neither U.S. Customs and Border Protection nor ICE provided comments on the settlement when asked this week.
Class members include individuals in San Diego and Imperial counties who are in the immigration custody of ICE, CBP or U.S. Border Patrol, according to the settlement. It does not include people who are subject to expedited removal proceedings, unaccompanied minors, or individuals with administratively final removal orders.
Recently arrived migrants who are seeking asylum are not included as class members until they pass their credible fear screening, Vakili said. “If they pass, then they are put into immigration court and then they become class members, and then they will see a judge quickly,” he said.
The settlement also calls for immigration agencies to provide class members with written notice — in several languages — informing them of their right to a timely first appearance.
In addition, those residing in the country who are detained by Border Patrol will be processed out of custody within three days — either into ICE custody or released. Border Patrol facilities are not designed for long-term detention.
“Due process should apply to everyone, regardless of where they were born,” said Vakili.
Despite hiring new judges during the first three years of the Biden administration and higher case closures per judge, the immigration court system has not yet been able to keep up with the new cases coming in, according to the Transactional Records Access Clearinghouse, a database overseen by Syracuse University. There are currently about 700 immigration judges.
The immigration court backlog reached a record of 3 million pending cases in November 2023, an increase of 1 million from the previous year, according to a report from TRAC.
So far in fiscal 2024, the immigration court backlog in San Diego is 7,290 pending cases and 664 in Otay Mesa.
Being held for a month caused Cancino time away from school, which led to him extending his high school experience, Vakili said.
“It was so hard not to see my parents or my brother and sister for a month,” said Cancino in a statement. “I was scared at the time not knowing what was going on with my case or if I would be released, but once I saw a judge, I was released and able to return to them. That first hearing is so important. I am proud I was able to help so that other people won’t have to go through what I went through.”
