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March 14, 2024

Cancino Castellar v. Mayorkas Settlement Will Ensure Immigrants in DHS Custody Have Prompt First Appearances Before Immigration Judges to Begin Their Immigration Cases

SAN DIEGO, Calif. – On March 14, 2024, a federal judge approved a settlement in a long-running class action lawsuit vindicating the constitutional due process rights of people in immigration custody in San Diego and Imperial Counties. Counsel for the plaintiffs and the class are the ACLU Foundation of San Diego & Imperial Counties (ACLUF-SDIC), Fish & Richardson, P.C., the Law Office of Bardis Vakili, P.C. and the Law Offices of Leonard B. Simon, P.C.

Cancino Castellar v. Mayorkas, filed in March 2017, challenged systemic delays in processing people arrested by Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Protection (CBP), including Border Patrol.

The settlement helps to address these wrongs and protect the due process rights of those in immigration custody. Details of the settlement include:

  • Immigration agencies will provide class members with written notice in multiple languages informing them of their right to a prompt first appearance;
  • Those who wish to see a judge promptly will have a first appearance within 11 days of entering ICE custody;
  • Class members already residing in the U.S. who are arrested by Border Patrol will be processed out of Border Patrol custody within three days, either to ICE custody or released;
  • Class members who indicate on the processing forms that they would like a bond hearing will receive one at the soonest available date.

In every other form of custody, when the government arrests someone, there is a constitutional obligation to begin court proceedings before a judge promptly. This bedrock due process protection ensures that the government does not disappear people into its custody and that those arrested are promptly made aware of their rights. Prior to this lawsuit victory, the federal government asserted those in immigration custody were not entitled to the same protections.

As a result, people arrested by U.S. immigration agencies, many of whom reside in our local communities, routinely endured weeks and sometimes months in harsh immigration detention conditions. While waiting prolonged periods of time to see a judge, they were separated from their loved ones and unable to attend to their jobs, education and families. Because the federal government does not provide attorneys to people in immigration custody, many were unable to seek release or begin their case until their first hearing.

In San Diego and Imperial Counties, immigration agencies have the capacity to incarcerate more than 2,000 people every day in ICE immigration jails and in Border Patrol stations, where conditions are particularly gruesome.

“The Constitution protects everyone in the United States, and nobody should ever be imprisoned simply because of where they were born,” said lead counsel for the class, Bardis Vakili of the Law Office of Bardis Vakili, P.C. “As the never-ending cycle of vilifying immigrants by both major political parties repeats itself again, now is the time to step up to protect the due process rights of our immigrant communities.”

“We celebrate that the court honored the constitutional principles we hold dear and that members of our communities will not be held for prolonged periods without seeing a judge,” said Efaon Cobb, deputy legal director for the ACLUF-SDIC. “We will continue to fight to ensure that the right of due process extends to all people, including newly arrived people seeking asylum who are not immediately covered by this decision.”

“This hard-fought lawsuit focused on ensuring that constitutional due process is fairly and evenly applied,” said Alex Gelberg, principal at Fish & Richardson P.C. “Prolonged immigration detention has disastrous effects by imposing tremendous hardship on detainees and their families. The settlement achieves important protections for this vulnerable class. I am extremely proud that Fish’s pro bono program supported the case from the outset and throughout the years, making it possible to obtain the much-needed relief.”

Len Simon of the Law Offices of Leonard B. Simon P.C. said, “I am very pleased to have been part of this lengthy and successful effort to further due process rights for immigrants to the U.S., and this country that prides itself on giving everyone his or her timely day in court.”

“ICE arrested me when I was 18, and it was so hard not to see my parents or my brother and sister for a month,” said plaintiff Jose Cancino Castellar. “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.”