Challenging Credible Fear Interview and Bond Hearing Delays

Asylum seekers detained after entering the United States are entitled to prompt and fair credible fear interviews and, for those found to have credible asylum claims, bond hearings. This case challenges the punitive practice of keeping asylum seekers in custody for weeks or months without access to credible fear interviews or bond hearings and the lack of basic procedural protections—like hearing transcripts and written decisions—in bond hearings, as well as whether asylum seekers must bear the burden of proof in bond proceedings.

The case was filed as a class action in the U.S. District Court for the Western District of Washington. The district court judge rejected the Defendants' attempt to dismiss the case on jurisdictional grounds and certified two nationwide classes of certain individuals seeking credible fear interviews and post-credible fear interview bond hearings. Plaintiffs are represented by the Northwest Immigrant Rights Project, the American Immigration Council, the National Immigration Litigation Alliance, and the American Civil Liberties Union.

In April 2019, just after the court ordered the government to provide qualifying individuals with bona fide asylum claims with prompt bond hearings, Attorney General Barr issued a decision in Matter of M-S-, 27 I&N 509 (AG 2019), that would have eliminated bond hearings altogether for Padilla bond hearing class members.  The district court issued a decision preventing Matter of M-S- from taking effect and affirming that the government must either to provide qualifying individuals with bona fide asylum claims with prompt bond hearings before an immigration judge with a set of procedural protections within seven days of their request or to release them from detention.

The Ninth Circuit Court of Appeals upheld the preliminary injunction in part, requiring the government to provide class members with bond hearings. Subsequently, the U.S. Supreme Court vacated the Ninth Circuit’s decision in the case to allow for further proceedings.

However, in June 2022, the Supreme Court issued a decision in another case, Garland v. Aleman Gonzalez, which held that an immigration statute barred class-wide injunctive relief related to the implementation of the detention provisions in the immigration statute—and overruled the Ninth Circuit’s decision finding that an injunction was not barred in this case.

On July 29, 2022, the preliminary injunction was vacated pursuant to an order from the Ninth Circuit. On January 5, 2024, the district court approved a partial settlement to resolve the credible fear class claims. For more information see Practice Alert: Padilla v. ICE and Delays in Credible Fear Interviews. The bond hearing class claims remain pending.