Fish & Richardson and ACLU of San Diego Secure Settlement in Class Action Lawsuit Regarding Processing Delays for People in Immigration Custody

Today, a federal judge approved a class action 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. The pro bono team from Fish & Richardson has supported the case since the lawsuit was filed in March 2017.

The lawsuit 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 delays and to 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; and
• To improve access to counsel, telephone numbers for free legal service providers serving the Otay Mesa Detention Center and Imperial Regional Detention Facility will be programmed into the facility’s free telephone platforms, with notices in multiple languages.

In every other form of custody, when the government makes an arrest, there is a constitutional obligation to begin court proceedings before a judge promptly. This bedrock due process protection ensures that the government remains accountable and responsible for the people in 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 those in the U.S. legal system.

As a result, people arrested by the immigration agencies 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 maintain their jobs and education. Because the federal government does not provide attorneys to people in immigration custody, many were unable to seek release or begin their cases until their first hearing.

“This hard-fought lawsuit focused on ensuring that constitutional due process is fairly and evenly applied,” said Alex Gelberg, principal at Fish. “Prolonged immigration detention has disastrous effects by imposing tremendous hardship on detainees and their families. The settlement achieves very 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 much-needed relief.”

In San Diego and Imperial Counties, the immigration agencies have the capacity to incarcerate well over 2,000 people every day in ICE immigration jails and in Border Patrol stations.

“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. “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.”

The lawsuit was brought by the ACLU Foundation of San Diego & Imperial Counties (ACLUF-SDIC), Fish, the Law Office of Bardis Vakili P.C., and the Law Offices of Leonard B. Simon P.C. Fish’s pro bono team was led by Gelberg and included Megan Chacon and James Yang. At the inception of the case, the Fish team also included the late Craig Countryman, a brilliant attorney, and a champion of Fish’s pro bono program. His legacy lives on through this important settlement.

Fish attorneys are dedicated to serving the communities in which they live and work, and pro bono work is an integral part of the firm’s professional culture. In 2023, the firm made significant pro bono contributions, with Fish attorneys completing over 18,000 hours of pro bono service for the year. Fish believes that the practice of law is a privilege that carries with it the responsibility to provide pro bono legal services to those in need.