In 1982, a group of Salvadoran refugees filed a class action lawsuit in the United States District Court for the Central District of California, challenging practices and procedures of the Immigration and Naturalization Service ("INS") in detaining, processing and removing those seeking political asylum from El Salvador. Plaintiffs alleged that the INS (1) used coercive tactics to cause Salvadorans to accept "voluntary departure" to El Salvador; (2) failed to advise them of their right to counsel, their right to apply for political asylum, and their right to a hearing prior to deportation; (3) denied them effective assistance of counsel and (4) detained them in solitary confinement without hearings. Plaintiffs, who were represented by the ACLU Foundation of Southern California, the ACLU Immigrants' Rights Project, the National Immigration Law Center and private firms, sought class certification and injunctive relief.
On April 30, 1982, the district court (Judge David Kenyon) certified a nationwide class and issued a preliminary injunction. Orantes-Hernandez v. Smith, 541 F.Supp. 351 (C.D. Cal. 1982). The preliminary injunction prohibited the INS from coercing class members into electing voluntary departure and required the INS to provide Salvadorans with two forms of notice of their rights. The preliminary injunction remained in effect while the district court held a trial on the merits of the case from 1985 through 1987. Following the trial, in which the Court heard testimony and evidence from approximately 175 witnesses, the Court (Judge Kenyon) issued a permanent injunction that mandated specific procedures to be used by the INS when detaining, processing, and removing Salvadoran refugees. Orantes-Hernandez v. Meese, 685 F.Supp. 1488 (C.D.Cal. 1988), The government appealed and the Ninth Circuit affirmed. Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990). Judge Kenyon modified the permanent injunction in 1991 to add four conditions that applied solely to the Port Isabel Service Processing Center in Port Isabel, Texas.
The injunction remained in effect from 1991 through 2004. During that period, the federal government created the Department of Homeland Security, thereby consolidating and restructuring various governmental agencies involved with enforcement of immigration laws. As part of the restructure, the INS was eliminated. The Office of Refugee Resettlement (ORR) of the U.S. Dept. of Health and Human Services, which took over the care of unaccompanied minors in immigration custody, sought clarification of certain parts of the injunction. A stipulation was entered by the Court on September 28, 2004, clarifying the terms of the injunction as applied to the Office of Refugee Settlement.
About a year later, the government moved to dissolve the permanent injunction on various grounds. The District Court first heard the government's argument that the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), which provides for expedited removal of inadmissible aliens, was in conflict with the permanent injunction. Following argument and briefing by the parties, the District Court (Judge Margaret M. Morrow) modified two paragraphs of the injunction. Orantes-Hernandez v. Gonzales, 2006 U.S.Dist.LEXIS 95387 (C.D.Cal. Aug. 22, 2006 ). In December 2006, the parties briefed and argued the government's remaining grounds for dissolution of the injunction. On July 24, 2007, Judge Morrow issued an order refusing to dissolve most provisions of the injunction for substantial non-compliance. The Judge found that the evidence showed few if any violations regarding administrative segregation and legal presentations and, as such, determined that those provisions could therefore be terminated. On the other hand, the Court found a significant number of violations of the remaining critical provisions of the injunction, including those dealing with detainees' access to legal materials, telephone use, and attorney visits, as well as detention center conditions. Based on those continued violations, the remaining provisions of the injunction were ordered to remain in force. Orantes-Hernandez v. Gonzales, 504 F.Supp.2d 825 (C.D.Cal. 2007). On September 20, 2007, the government filed a notice of appeal to the Ninth Circuit Court of Appeals.
On September 24, 2007, the plaintiffs filed a motion to consolidate all the remaining provisions of the injunction in a single order to provide clarity and ensure compliance. The government objected that consolidation would constitute a material change, altering the posture of the case on appeal. On November 26, 2007, the District Court granted the plaintiffs' motion, stating it did not constitute a material change. The government appealed that decision as well. Under the modified injunction, the Court issued following injunctions : 1) prohibition on use of coercion in advising asylum seekers on "voluntary departure; 2) prohibition of misrepresentation of the meaning of political asylum and various procedures associated with it; 3) the government had to advise detainees of their legal rights, including right to counsel and a hearing, and materials related to this case; 4) give notice to and access to interested parties and counsel; 5) restriction of the government's ability to transfer detainees; 6) access to telephone for the detainees.
On April 6, 2009, the Ninth Circuit affirmed both of District Court's orders.
On August 4, 2009, the plaintiffs filed a motion for attorney's fees. The court granted the motion on March 29, 2010, and awarded $1,343,888.02 in attorney's fees and costs. On May 11, 2010, the parties entered a joint stipulation in settlement of attorney's fees, which was approved on May 12, 2010. The government had to pay $986,967.54, which fully satisfied the Court's order for attorney's fees.
On July 10, 2014, prompted by the government's initial response to the large influx of unaccompanied alien children ("UAC") and families - many from El Salvador - who have recently been apprehended along the United States border with Mexico, plaintiffs filed an application for a temporary restraining order ("TRO"). The application sought to have the court order the government to give class counsel a weekly list of the names, age, and gender of all class members detained at the Nogales Processing Center ("the NPC") in Nogales, Arizona, and to allow class counsel to visit class members at the NPC so they can determine whether the government is complying with the terms of the injunction. On July 17, 2014, the Court denied the plaintiffs' motion for TRO. The court reasoned that the plaintiffs' application was not based on any underlying cause of action asserted in the case and did not seek injunctive relief related to the issues in the original complaint. Violation of class members' due process and First Amendment rights was a new claim. However, the Court concluded that there is evidence that the government might not be complying with the terms of the injunction, and thus, the class counsel was allowed to speak with class members to investigate further. The Court construed the plaintiffs' arguments as a motion to compel post-judgment discovery and granted it. The government was ordered to allows class counsel to interview 25 class members no later than July 30, 2014.
On July 23, 2014, the parties filed a joint report on further discovery.Dan Dalton - 12/03/2007
Zhandos Kuderin - 07/24/2014