Opinion: In the Battle for Immigrant Rights, the ACLU Won a Victory for Due Process

Due process is what separates a free society from a police state, serving as a crucial safeguard against law enforcement overreach and abuse. When police arrest someone, they cannot lock them up indefinitely without explanation. They must quickly bring the person before a judge so they can be informed of the charges. The right to a prompt judicial hearing after arrest is a fundamental tenet of due process that is enshrined in our Constitution.

Despite this, the federal government detains tens of thousands of alleged non-citizens in its vast network of immigration prisons, often failing to provide them with a prompt judicial hearing for weeks or even months. During this time, people are ripped away from their loved ones and communities, suffering the life-altering harms of incarceration and creating trauma for those they are separated from.

Federal immigration agencies assumed that the due process right to a prompt first appearance did not apply to people in immigration detention, and, therefore, the agencies did not promptly bring them before a judge. Some were detained because police officers or immigration officers believed they did not have valid immigration status.

This brought up an important question — should this core constitutional protection of due process be applied differently to some people? Our answer to this question: no, the Constitution is the Constitution, and it should be applied equally to every person in this country.

We sued to establish that it does.

In March 2017, the ACLU of San Diego and Imperial Counties and two partner law firms filed a class action lawsuit, Cancino Castellar v. Mayorkas. This suit was filed on behalf of the thousands of people held every year in Immigration and Customs Enforcement and Customs and Border Protection facilities in San Diego and Imperial counties without being promptly brought before a judge.

Early in our lawsuit, the federal court ruled that our case may proceed and stated that the prolonged detention and delays described in our complaint “shock the conscience.” After many legal battles were won and lost by both sides, the parties finally reached an agreement. It was approved in March 2024, nearly seven years to the day after we filed the original case.

As a result of our lawsuit, the federal government will now advise class members covered under the settlement that they have a right to see a judge promptly. Those who choose to exercise this right will see a judge within 11 days of entering ICE custody.

When the Border Patrol, which is part of CBP, arrests someone who is living in the United States, they must release them or send them to ICE custody within three days, not hold them for prolonged periods in the squalid conditions of their infamous hieleras or “iceboxes.”

On the settlement, plaintiff Jose Cancino Castellar said, “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. I was scared at the time not knowing what was going on with my case or if I would be released, 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.”

While the agreement marks a significant victory for due process, our work is far from over. For the next few years, we will vigilantly monitor the facilities, as well as data the agencies have agreed to provide, to ensure compliance with the agreement.

The agreement is also not perfect. Our immigration laws are designed to make legal challenges difficult. Notably, the court’s interpretation of these laws excluded newly arriving individuals seeking asylum in our class until they pass an initial screening, a process that often leaves them waiting in immigration detention for months, if the government allows their claims to go forward at all.

This unfair process serves as a harsh reminder that there is still much to be done to address the shortcomings of our immigration system. Our Constitution’s role in addressing these issues should not be controversial. The document that enshrines our core principles of individual freedom should apply equally to us all, regardless of race, religion, creed and, yes, even immigration status. Because when the government has the power to deny basic rights to one vulnerable group, everyone’s rights are at risk.

Bardis Vakili is a former senior staff attorney and Efaon Cobb is deputy legal director at the ACLU of San Diego and Imperial Counties.