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Case Name Perez-Funez v. U.S. Immigration and Naturalization Service IM-CA-0036
Docket / Court CV 81-1457 ( C.D. Cal. )
State/Territory California
Case Type(s) Immigration and/or the Border
Attorney Organization ACLU Chapters (any)
ACLU National (all projects)
ACLU of Southern California
National Immigration Law Center
Case Summary
This case involves two consolidated actions, Yanira Pena and Claudia Pena v. INS, 81-cv-1932, and Jose Antonio Perez-Funez v. INS, 81-cv-1457, in which plaintiffs filed separate lawsuits in the U.S. District Court for the Central District of California, challenging the manner in which the ... read more >
This case involves two consolidated actions, Yanira Pena and Claudia Pena v. INS, 81-cv-1932, and Jose Antonio Perez-Funez v. INS, 81-cv-1457, in which plaintiffs filed separate lawsuits in the U.S. District Court for the Central District of California, challenging the manner in which the Immigration and Naturalization Service (INS) implemented its voluntary departure procedure with respect to unaccompanied minor noncitizens in its custody. Plaintiffs, who were represented by the ACLU Foundation of Southern California and the National Lawyers Guild-Southern California Chapter, claimed that the INS procedures violated the Due Process Clause of the Fifth Amendment and sought an injunction to prohibit the INS from instituting voluntary departure proceedings against any unaccompanied minor until the minor was appointed an attorney and then produced before an Immigration Judge.

The District Court consolidated the two cases and granted class action status, with the class consisting of
[a]ll persons who appear, are known, or claim to be under the age of eighteen years who are now or in the future taken into or held in custody in the United States by agents of the Immigration and Naturalization Service for possible deportation from the United States, and who are not accompanied by at least one of their natural or lawful parents at the time of being taken or received in custody within the United States.

The Court issued a preliminary injunction prohibiting the INS from removing unaccompanied minor noncitizens pursuant to the voluntary departure process without first assuring that they were advised of and understood alternatives to voluntary departure. The Court refused to require the mandatory appointment of counsel, as requested by plaintiffs. Perez-Funez v. District Director, I.N.S., 611 F.Supp. 990 (C.D.Cal. 1984). Attached to the Court's preliminary injunction were examples of proper notice of rights forms to be provided to minor detainees.

Following a hearing on the merits, the District Court determined that the INS procedures violated the due process rights of the plaintiff class. The Court made its preliminary injunction permanent with some modifications. These included requiring the INS -- before asking a minor to sign the voluntary departure form -- to provide telephone access and an up-to-date list of free legal services to class members, and to ensure that each had the opportunity to communicate with a parent, close adult relative, friend, attorney, or consular officer (this last option only when chosen by the minor). Perez-Funez v. District Director, I.N.S., 619 F.Supp. 656 (C.D.Cal. 1985).

(Mexican and Canadian minors apprehended in the immediate vicinity of the border received lesser protections -- just the right to be informed that they could call a parent, close relative, friend, or organization on the free legal services list.)

We don't have the docket sheet in this case so we don't know what kind of enforcement activity has occurred over the years, but in 2014, the National Immigration Law Center posted information on the nationwide Perez-Funez permanent injunction provisionsand solicited any reports of suspected violations of the injunction.

The Perez-Funez injunction was also implemented in regulations that apply to both DHS and the DOJ Executive Office of Immigration Review EOIR. 8 C.F.R. §§ 236.3(g)-(h), 1236.3(g)-(h), requires that unaccompanied children be both advised of their legal rights and guaranteed access to outside advice before voluntarily choosing to return to their countries of origin. Specifically, before the government can ask any unaccompanied child to voluntarily depart the United States or withdraw her application for admission, the government must provide the child with (1) a written notice of rights; (2) a list of free legal service providers; and (3) access to telephones and notice that they may call a parent, close relative, friend, or attorney. Additionally, for unaccompanied children from noncontiguous countries (i.e. children not from Canada or Mexico), DHS must ensure that the child in fact communicates with a parent, adult relative, friend, or attorney. Id. §§ 236.3(g), 1236.3(g). If the child is under 14 years old, or is unable to understand the written notice of rights, the notice “shall be read and explained to the juvenile in a language he or she understands.” Id. §§ 236.3(h), 1236.3(h).

Because we don't have the docket sheet, we don't know for sure whether this case is ongoing or closed.

Dan Dalton - 12/03/2007
Ava Morgenstern - 09/22/2017


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Content of Injunction
Preliminary relief granted
Defendant-type
Jurisdiction-wide
General
Access to lawyers or judicial system
Juveniles
Immigration/Border
Constitutional rights
Deportation - procedure
Family
Immigration lawyers
Undocumented immigrants - rights and duties
Plaintiff Type
Private Plaintiff
Causes of Action Bivens
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Defendant(s) U.S. Immigration and Naturalization Service
Plaintiff Description All persons who appear, are known, or claim to be under 18, who are now or in the future are held by the INS for possible deportation from the U.S., and who are not accompanied by at least one of their natural or lawful parents.
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU National (all projects)
ACLU of Southern California
National Immigration Law Center
Class action status sought Yes
Class action status granted Yes
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Order Duration 1984 - n/a
Case Ongoing Unknown
Additional Resources
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  SUMMARY:The Nationwide Perez-Fuñez Permanent Injunction Provisions for Unaccompanied Children in DHS Custody
www.nilc.org
Date: June 2014
By: National Immigration Law Center (National Immigration Law Center)
[ Detail ] [ External Link ]

Docket(s)
No docket sheet currently in the collection
General Documents
Opinion (611 F.Supp. 990) (C.D. Cal.)
IM-CA-0036-0002.pdf | WESTLAW| LEXIS | Detail
Date: 01/24/1984
Source: Google Scholar
Memorandum Opinion (619 F.Supp. 656) (C.D. Cal.)
IM-CA-0036-0001.pdf | WESTLAW| LEXIS | Detail
Date: 09/30/1985
Source: Google Scholar
Judges Rafeedie, Edward (C.D. Cal.)
IM-CA-0036-0001 | IM-CA-0036-0002
Plaintiff's Lawyers Carrasco, Gilbert (California)
IM-CA-0036-0001 | IM-CA-0036-0002
DeHoyos, Ben (Louisiana)
IM-CA-0036-0001 | IM-CA-0036-0002
Lopez, Gilbert (California)
IM-CA-0036-0001 | IM-CA-0036-0002
Rodriguez, Antonio (California)
IM-CA-0036-0001 | IM-CA-0036-0002
Rosenbaum, Mark Dale (California)
IM-CA-0036-0001 | IM-CA-0036-0002
Wheeler, Charles (Colorado)
IM-CA-0036-0001 | IM-CA-0036-0002
Defendant's Lawyers Reynolds, Carolyn M. (California)
IM-CA-0036-0001 | IM-CA-0036-0002

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