US judge opens door for thousands to apply for asylum
by Foster LLP, on News
SEATTLE — A federal judge in Seattle opened the door Thursday for thousands of immigrants to apply for asylum, finding that the Department of Homeland Security has routinely failed to notify them of a deadline for filing their applications.
U.S. District Judge Ricardo S. Martinez issued the ruling in a class-action lawsuit brought by immigrant rights groups on behalf of those who fear persecution if returned to their home country.
In many cases, those asylum seekers are released from custody after officials have interviewed them and determined their fears to be credible. They’re told that they’ll need to appear in immigration court, but they typically aren’t directly told that they only have a year to apply for asylum.
Due to a backlog in immigration cases, the asylum seekers are not given a hearing within a year, and thus, by the time they show up in court and learn about the deadline, it’s already passed, Martinez found.
“This means many asylum seekers who were previously going to have a door slammed in their face are now able to say, ‘No, a federal court has said that I am timely filing my application and you need to accept it,’” said Matt Adams, legal director of the Northwest Immigrant Rights Project and an attorney for the plaintiffs.
U.S. Citizenship and Immigration Services, part of Homeland Security, did not immediately return an email seeking comment.
The judge ordered the department to begin providing notice about the one-year deadline within 90 days any time an immigrant seeking asylum is released from custody pending deportation proceedings. He also said the department must give those who missed the deadline another year to file their applications.
Further, Martinez told the department it must fix another catch-22 in its system: that while asylum-seekers must file their asylum applications within a year, the government refuses to accept the applications unless the applicant has been given a formal notice to appear in immigration court.
Often those notices aren’t issued within a year, so even if asylum seekers know about the one-year deadline, there’s virtually no way for them to meet it, Martinez said.
He ordered the government to come up with a uniform system for accepting asylum applications.
“Defendants have left class members without an adequate mechanism to timely file their asylum applications, thereby denying them the opportunity to exercise their statutory right to apply for asylum,” Martinez wrote.
Government lawyers argued that they do publish some materials that inform asylum seekers of the deadline and that federal law does not require that officials directly notify asylum seekers of the deadline upon their release from custody. The judge disagreed on the latter point and said the former wasn’t good enough.
Martinez noted comments from Republican Utah Sen. Orrin Hatch, also cited by the plaintiffs, about the one-year deadline in 1996: “I am committed to ensuring that those with legitimate claims of asylum are not returned to persecution, particularly for technical deficiencies. If the time limit is not implemented fairly, or cannot be implemented fairly, I will be prepared to revisit this issue in a later Congress.”
Among the asylum-seekers who sued was Lidia Margarita Lopez Orellana, who arrived in Eagle Pass, Texas, from Guatemala in 2014 with her two youngest children in tow. She said that despite checking in with immigration authorities regularly as required, she didn’t learn about the deadline until December 2015, when she met with a lawyer.
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