By Kate Linthicum, Los Angeles Times
Thousands of immigrants seeking protection in the United States have spent months in detention waiting for the government to determine whether they may have legitimate cases, even though regulations say they should receive a determination within 10 days, according to a class action lawsuit filed Thursday by the American Civil Liberties Union and other groups.
The lawsuit accuses the government of violating the law and says tens of millions of taxpayer dollars have been needlessly spent on detention.
Claire Nicholson, a spokeswoman for U.S. Citizenship and Immigration Services, said she could not comment on pending litigation.
The case, which was filed in the U.S. District Court in San Francisco, pertains to a subset of immigrants who illegally re-entered the United States after previously being deported and who now face deportation again.
Repeat immigration offenders are ineligible for hearings before an immigration judge because of the outcome of their prior cases.
But those who claim they have a fear of persecution or torture if they return to their home countries are guaranteed a hearing with an asylum officer. Government regulations say that within 10 days claimants must receive what is known as a “reasonable fear determination,” which dictates whether they can proceed with a hearing on their application for protection.
The lawsuit filed Thursday alleges the government violated this law in thousands of cases, with individuals waiting in detention for a determination for many months and occasionally more than a year.
One of them is Marco Antonio Alfaro Garcia, a native of El Salvador who was deported at the border while trying to cross into the United States in 2005. He tried again two years later and has lived in the Los Angeles area ever since. He has three American-born children with his partner, who is a U.S. citizen.
In January, Garcia was arrested and charged with driving under the influence. According to the court filings, he was turned over to immigration authorities, who informed him that his 2005 deportation order had been reinstated and he would be returned to El Salvador.
Garcia told the officials that he feared returning because he had been beaten multiple times by police and fears retaliation from a criminal group for providing information to prosecutors.
It took nearly a month for Garcia to get an interview with an asylum officer, according to his lawyers, and he is still waiting for a reasonable fear determination to determine whether he can move forward with his claim. He is entering his fourth month at a federal detention facility in Adelanto, Calif.
His partner, Yeni Gomez, 34, gave birth to their third son while Garcia was in detention. She said she had been selling pupusas on the sidewalk to pay rent.
“It’s really hard to be the mom and the dad at the same time,” she said. “We just want to know an answer as soon as possible. We don’t want to wait.”
The lawsuit, which filed by the ACLU Foundation of Southern California, ACLU of Northern California, the National Immigrant Justice Center and the law firm Reed Smith LLP, said government data show the average wait time for a reasonable fear determination is about 111 days.
It claims the division of the U.S. Citizenship and Immigration Services “has foregone any attempt to comply” with the regulations and has instead adopted much longer timelines.
The Obama administration has put a priority on expelling repeat immigration offenders. In 2012, they made up roughly 35 percent of all people deported, according to Department of Homeland Security statistics.
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