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Immigration Law

DHS, Immigrants Reach Deal Over Delays In Reasonable Fear Interviews (Alfaro Garcia v. Johnson) - Law360

Law360, July 8, 2015 - "A class of immigrants who fear persecution in their home countries reached a settlement with federal officials Tuesday in California district court over delays in interviews with asylum officers, with the government agreeing to make a decision on such fear claims within an average of 10 days nationwide.

Under the deal, U.S. Citizenship and Immigration Services would need to attain an average of no more than 10 days for completing “reasonable fear” determinations for immigrants who say they’re afraid of being persecuted or tortured in their home countries.

Reasonable fear determinations are a crucial step in a process that allows certain immigrants to avoid deportation. If an immigrant has already been ordered to be removed but expresses a fear of returning home, her case must be referred to an asylum officer who will assess her claim.

Should an officer find that an immigrant has a reasonable fear of persecution, she will have a chance to ask an immigration judge to withhold her deportation, according to USCIS.

However, in their suit filed in April 2014, the plaintiffs alleged that the government rarely completes the reasonable fear interview process within 10 days, as is required by regulations.

The suit named the heads of USCIS and the U.S. Department of Homeland Security as defendants, and the lead plaintiffs were citizens of El Salvador, Honduras and Mexico who expressed fears of being harmed in their home countries.

When the government tried to dismiss the suit last July, U.S. District Judge Yvonne Gonzalez Rogers shot down the motion and certified the class instead, finding that the plaintiffs had a plausible claim under the Administrative Procedure Act.

The parties later struck a deal, which was submitted by the plaintiffs’ attorneys on Tuesday and is still subject to court approval. According to the plaintiffs, the settlement makes sure that class members are “promptly” referred to USCIS for a reasonable fear determination.

The government officials must also achieve the 10 day average for making such determinations by Nov. 2, or 30 calendar days after the court approves the deal, whichever is later. The government defendants have also promised that a reasonable fear determination won’t take longer than 20 court days for the class members, the plaintiffs said.

To make sure the government is complying with these time requirements, USCIS will provide monthly reports on pending and completed reasonable fear cases, according to the agreement.

The plaintiffs argued that the settlement was “both fair and reasonable” and would “result in substantial improvements in the reasonable fear determination process.”

James Rolfes of Reed Smith LLP, which represented the plaintiffs pro bono, told Law360 that his team was "very happy with the end result," and said he believed they secured extremely good relief for the class.

"I think the government really showed that they're committed to living up the regulations," Rolfes said.

Michael Kaufman of the ACLU added that he's hopeful the deal will be approved, and said the plaintiffs plan to closely monitor its implementation.

Representatives for USCIS and DHS did not respond to requests for comment.

The immigrant plaintiffs are represented by Michael Kaufman, Carmen G. Iguina, Ahilan T. Arulanantham and Julia Harumi Mass of the American Civil Liberties Union, Charles Roth and Claudia Valenzuela of the National Immigrant Justice Center and James A. Rolfes, David Z. Smith, Timothy R. Carraher, Christopher R. Murphy and John D. Pingel of Reed Smith LLP.

DHS Secretary Jeh Johnson and the other federal defendants are represented by Elizabeth J. Stevens and Victor Mercado of the U.S. Department of Justice.

The case is Garcia v. Johnson, case number 4:14-cv-01775, in the U.S. District Court for the Northern District of California."