Every day locked up in a cell can feel like an eternity. Incarceration can mean separation from family, loss of income and educational opportunities, risk of harm in inhumane conditions, and the loss of the personal freedom to control the most basic aspects of your day-to-day life. Because the loss of liberty has such grave consequences, for as long as the United States has existed, due process principles have protected people taken into government custody by requiring the arresting agency to present them to a neutral judge as soon as it reasonably could. This ensures that a neutral adjudicator, rather than the arresting officer, promptly informs detained people of the reasons for their detention and any applicable rights, including their right to seek release. It also provides the first meaningful opportunity for people in custody to raise important issues to the judge, and it ensures the government does not disappear people into its custody for extended periods. As the Supreme Court has said, this prompt presentment requirement has always served as “one of the most important” protections “against unlawful arrest” and “Government overreaching.”

However, the government treats immigration custody as the lone exception to this bedrock due process protection. As incarceration has become a core aspect of U.S. immigration policy, with the detained population ballooning from about 7,000 detained people per day in 1995 to over 56,000 per day at one point in 2019, this has brought a grim reality to an increasing number of people in DHS lock-ups in recent years. And it is uniquely felt in border regions like ours, which are heavily impacted by immigration enforcement from U.S. Immigration and Customs Enforcement (“ICE”) and Customs and Border Protection (“CBP”).

Currently, the immigration agencies operating in San Diego and Imperial Counties imprison well over about two thousand people every day in jail-like conditions or worse, where the average person will languish for weeks, sometimes months, before DHS brings them before an immigration judge for the first time. During this delay, people in custody are often unable to take steps to move their cases forward or seek release because many lack an understanding of our complex immigration laws or their rights, and the federal government does not provide free legal counsel. Although their detention is nominally “civil” in nature, people in ICE detention centers and CBP hieleras (“iceboxes”) experiencing these delays must endure conditions that are often as bad as or worse than criminal custody. Language barriers, limits on communication with the outside world, separation from family and loved ones, and poor medical care – including during a pandemic – can exacerbate these harms. Families often don’t even know where their loved ones are while DHS shuffles them from facility to facility.

Jose Cancino Castellar is but one example. ICE took him into custody a month after he turned 18, while he was still a senior in high school. Despite having no criminal record, a stable home in El Cajon where he helped his parents take care of his young U.S. citizen siblings, living in the U.S. since he was a small child, and being eligible to remain in the United States under the DACA program, immigration authorities decided he must remain incarcerated in the ICE detention center in Otay Mesa while an immigration judge decided whether he should be deported. Jose didn’t even know there was a distinct legal system for immigration that was separate from the criminal system, much less his rights under that system to seek release. Jose would spend more than a month in Otay Mesa until his first immigration court hearing, missing school and his family. At his first appearance, the immigration judge ordered his release from custody, effectively overruling DHS’s determination that his incarceration was necessary. Because of the delay in presentment, it took a month of uncertainty and fear in jail-like conditions, upending his and his family’s life, before regaining his freedom.

Every day, new people come into immigration custody and experience simlar delays. Among them might be U.S. citizens, children DHS incorrectly hold in adult detention, people separated from their small children, people with mental illness, and people who have survived persecution and sought the protection of the United States only to find themselves incarcerated for it. They will wallow in custody for weeks without information from a judge in a language they understand about what they can do to secure their freedom again, without an opportunity to tell a judge why their detention is unwarranted or unlawful, stuck in a black box of detention until at least their first appearance.

In March 2017, together with co-counsel Fish & Richardson P.C. and the Law Offices of Leonard B. Simon P.C, we filed suit on behalf of Jose, Ana Maria Hernandez Aguas, Michael Gonzalez, and a class of similarly situated people held by DHS agencies operating in San Diego and Imperial Counties to end the government’s policy of delaying the presentment of people in immigration custody for weeks and often months. We argue that these delays without presentment to a judge violate due process and the immigration laws. We also argue that such delays without prompt neutral review of the probable cause for detention violates the Fourth Amendment.

After initially granting Defendants’ motion to dismiss our due process claims on jurisdictional grounds, the district court reconsidered its decision in light of intervening precedent and ordered renewed briefing on the motion to dismiss. The court then denied the government’s renewed motion to dismiss our due process and statutory claims, agreeing that people in immigration detention have a right of prompt presentment. In September 2021, the court certified a class for declaratory relief, but denied our motion to reconsider the dismissal of our Fourth Amendment claims.  The case is now in discovery.


ACLUF-SDIC: Bardis Vakili, Senior Staff Attorney; David Loy, Legal Director Fish & Richardson P.C.: Esha Bandyopadhyay, Megan Chacon, Alex Gelberg, Rose Sun Law Offices of Leonard B. Simon P.C.: Len Simon

Date filed

March 9, 2017


Southern District of California, Ninth Circuit


Cynthia A. Bashant



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