The Issue

Every day locked up in a cell can feel like an eternity. Incarceration can mean separation from family, loss of income and educational opportunities, risk of harm in inhumane conditions, and the loss of the personal freedom to control the most basic aspects of your day-to-day life. Because the loss of liberty has such grave consequences, for as long as the United States has existed, due process principles have protected people taken into government custody by requiring the arresting agency to present them to a neutral judge as soon as it reasonably could. This ensures that a neutral adjudicator, rather than the arresting officer, promptly informs detained people of the reasons for their detention and any applicable rights, including their right to seek release. It also provides the first meaningful opportunity for people in custody to raise important issues to the judge, and it ensures the government does not disappear people into its custody for extended periods. As the Supreme Court has said, this prompt presentment requirement has always served as “one of the most important” protections “against unlawful arrest” and “Government overreaching.”

 

The government treated immigration custody as the lone exception to this bedrock due process protection. As

incarceration has become a core aspect of U.S. immigration policy, this has brought a grim reality to an increasing number of people in  DHS lock-ups.

 

In March 2017, several organization sued to stop the policy of DHS agencies operating in San Diego and Imperial Counties of delaying the presentment of people in immigration custody for weeks and often months. In September 2021, the court certified a class of adults in ICE and CBP custody in San Diego and Imperial Counties who had not yet been presented to an immigration judge, other than those with final removal orders. After years of litigation, the parties reached a settlement, which the court approved in March 2024.

 

Details of the settlement include:

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• 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.

 

The Center for Human Rights & Constitutional Law joined the case in January 2025 to monitor settlement compliance. The Settlement will remain in effect until March 2027.