Obama Administration Accused of Misleading Asylum Seekers

Saturday, July 09, 2016
Central American immigrants seeking asylum in U.S.(photo: Getty Images)

By Lacey Louwagie, Courthouse News Service


SEATTLE (CN) — A federal class action claims the United States denies asylum-seekers due process by failing to inform them of the one-year deadline for filing asylum claims and by erecting procedural roadblocks.


The four named plaintiffs, refugees from Central and South America and the Caribbean, were all released into the United States to pursue asylum claims after immigration agents detained them at the border.


Immigration agents never told them they had to file for asylum within one year after they entered the country, nor did they present a viable path for meeting that deadline, according to the June 30 complaint.


"Plaintiffs' ability to seek asylum has been thwarted by a government process that is anything but fair; indeed, it conflicts with fundamental notions of due process: notice and the opportunity to be heard," the complaint states.


Concely del Carmen Mendez Rojas et al. say the Department of Homeland Security and its dependent agencies violated the Constitution, the Immigration and Nationality Act of 1952 (pdf), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (pdf).


The 1996 law, a product of President Bill Clinton's administration, created an expedited removal process for undocumented immigrants caught within 100 miles of the border, allowing the United States to deport them without formal removal proceedings. It allows an exception for immigrants who express a fear of returning to their home countries. They are to be referred to Homeland Security agents for a "credible fear" interview to determine whether they may be eligible for asylum.


These immigrants are exempt from expedited removal and are placed into standard removal proceedings, where they can develop a record before an immigration judge, apply for asylum and other relief, and appeal adverse decisions to the Board of Immigration Appeals and courts of appeal.


Although immigrants can affirmatively file for asylum, the plaintiffs say immigration officials did not tell them how to do so. Many of them believed they had applied for asylum by virtue of their interviews with Homeland Security.


Most asylum-seekers do not learn about the one-year deadline or the need to file an application until after they have been entered into removal proceedings, according to the complaint. Because immigration courts are notoriously backlogged, an immigrant's notice to appear — or charging document — often is not docketed until months after Homeland Security submits it.


This leaves the asylum seeker in limbo, the complaint states, "without a mechanism to file the application until the charging document is filed with the immigration court, an event over which the applicant has no control."


By the time asylum seekers finally make a formal claim before a judge, oftentimes more than a year has passed since their initial entry, rendering them ineligible for asylum without applying for special exceptions.


Lead plaintiff Mendez Rojas fled from the Dominican Republic to escape "egregious" domestic violence from which the government would not protect her. Co-plaintiff Maribel Suarez Garcia fled from Mexico for a similar reason, they say in the complaint.


Plaintiff Elmer Geovanni Rodriguez Escobar fled from Honduras after a gang murdered his nephew, tried to kidnap his daughter and repeatedly threatened his family.


The plaintiffs seek to represent two classes of immigrants. The first, the "credible fear class," consists of immigrants who have been through credible fear interviews but have not been given notice of the one-year filing deadline or information about compliance.


The second, the "other entrants class," is comprised of immigrants who have not undergone the credible fear interview but have been paroled into the United States by Homeland Security after they expressed fear of returning to their home countries.


Both classes include immigrants who are involved in formal removal proceedings and those who are not.


The classes do not "seek a determination as to the merits of their individual asylum claims," the complaint states, "nor do they seek judicial review of an order of removal entered against them. What they challenge are two unlawful procedural deficiencies in the way that defendants are implementing the asylum process/system — deficiencies that are unrelated to plaintiffs' substantive eligibility for asylum, and that deprive many plaintiffs and proposed class members of the opportunity to present their claims for asylum to the relevant adjudicators."


They seek declaratory judgment that the federal government violated the Constitution and the Immigration and Nationality Act, an injunction ordering the government to submit a plan for correcting systemic problems in the asylum application process, and that the federal government "return to the United States any deported plaintiff or class member whose asylum application was denied for having failed to meet the one-year deadline."


Defendants along with the Department of Homeland Security are the U.S. Attorney General, Immigration and Customs Enforcement, the Customs and Immigration Service, Customs and Border Protection, and the Executive Office for Immigration Review.


The plaintiffs are represented by the Northwest Immigrant Rights Project, and Dobrin & Han, both of Seattle, assisted by the National Immigration Project of the National Lawyers Guild in Boston and the American Immigration Council in Washington, D.C.


The lead attorney with Northwest Immigration Rights was out of the office and unavailable for comment, and the Dobrin & Han attorney did not immediately respond to a message left with an assistant or an email request for comment.


To Learn More:

U.S. Asylum Approvals for Immigrant Children Vary Greatly Depending on Filing Location (by Amy Taxin, Associated Press)

Civil Rights Groups Say U.S. May Be Paying Mexico to Arrest, Deport Asylum Seekers (by Matt Reynolds, Courthouse News Service)

Central American Children Applying for Asylum—5,400; Accepted—0 (by Noel Brinkerhoff, AllGov)

Federal Judge Orders Obama Administration to Stop Automatically Detaining Women and Children Seeking Asylum (by Noel Brinkerhoff and Danny Biederman, AllGov)

Vicious Cycle: Deport Criminals to Central America, Gangs Grow and Children and Others Flee the Region to the U.S. (by Noel Brinkerhoff, AllGov)


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