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Case Name Perez-Olano v. Gonzalez IM-CA-0051
Docket / Court 2:05-cv-03604-DDP-RZ ( C.D. Cal. )
State/Territory California
Case Type(s) Immigration and/or the Border
Attorney Organization Center for Human Rights & Constitutional Law
Case Summary
On May 13, 2005, attorneys for the Center for Human Rights and Constitutional Law and Los Angeles Center for Law and Justice instituted a nation-wide class action in the U.S. District Court for the Central District of California on behalf of immigrant youth who were formerly dependents of state ... read more >
On May 13, 2005, attorneys for the Center for Human Rights and Constitutional Law and Los Angeles Center for Law and Justice instituted a nation-wide class action in the U.S. District Court for the Central District of California on behalf of immigrant youth who were formerly dependents of state courts because they had been abused, abandoned, or neglected, and who petitioned for classification as "special immigrant juveniles" (SIJ) under the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101(a)(27)(J) & 1255(a).

To qualify for SIJ classification, a noncitizen first had to receive a "predicate order" from a state juvenile court finding that 1) the child was dependent on the court or a state agency; 2) the child was eligible for long-term foster care due to abuse, neglect or abandonment; and 3) it would not be in the child's best interest to be returned to his or her home country. After receiving the predicate order, the juvenile could apply for SIJ status, and if granted, could then apply for adjustment to lawful permanent resident status under 8 U.S.C. §1255.

Certain restrictions affected minors applying for SIJ classification. The SIJ statute contained a provision, 8 U.S.C. §1101(a)(27)(J)(iii)(I), that limited state court jurisdiction with respect to immigrant children in federal custody ("in-custody minors"). The provision stated that a state court could not "determine the custody status or placement" of in-custody minors unless Immigration and Customs Enforcement ("ICE") specifically consented to state court jurisdiction. In addition to that "specific consent" restriction, the government also implemented "age-out" regulations, see 8 C.F.R. §§ 204.11(c)(1), 204.11(c)(5),205.1(a)(3)(iv)(A, C, & D), under which a minor would "age-out" of eligibility if the child turned 21 years old before being granted SIJ status or SIJ-based adjustment. Another restriction provided that any SIJ classified juvenile who was in removal proceedings could only seek adjustment of status from a Board of Immigration Appeals ("BIA") or immigration judge.

Plaintiffs' class action lawsuit challenged those restrictions ("specific consent" provision, the "age-out" regulations and removal restriction) as unlawfully interfering with the abused minors' access to the courts, denying them due process and unreasonably delaying or restricting the adjudications of the minors' SIJ applications.

The government denied that the restrictions were unlawful and moved to dismiss the case for lack of jurisdiction and standing. The District Court (Judge Dean D. Pregerson) granted the motion in part and denied it in part. Plaintiffs were granted leave to amend their complaint, filing the fourth amended version in September 2006. (This document is not available via PACER.) Plaintiffs then moved for a TRO, a preliminary injunction and class certification. The government opposed the motions. At the request of the court, the parties filed cross-motions for partial summary judgment on certain questions of law raised by the case.

On January 8, 2008, Judge Pregerson certified the case as a class action, creating two subclasses: (1) a specific consent subclass (minors whose requests for specific consent to state court jurisdiction were denied or ignored by the government prior to their attaining 18 years of age) and (2) an age-out sub-class (minors whose petitions for SIJ classification were denied because of age-out regulations). He denied creation of a removal subclass for minors whose applications for SIJ-based adjustment of status were not adjudicated because they were in removal proceedings.

Judge Pregerson also considered the parties' partial summary judgment submissions and made several conclusions of law. On the challenge to the "specific consent" requirement, he found that where an SIJ-predicate order from a state juvenile court only made a determination regarding the welfare and best interests of the child, and made no recommendations as to the custody or status, no specific consent was required. Judge Pregerson issued a preliminary injunction, enjoining the government from requiring specific consent before an immigrant minor in federal custody could seek an SIJ-predicate order in state court.

Judge Pregerson declined to enjoin the government's application of the "age-out" restrictions and the removal regulations. The Judge, however, noted that the plaintiffs could still raise claims that the government unreasonably delayed adjudication of the SIJ applications of immigrant minors subject to the age-out regulations and that it abused its discretion in the application of the removal regulations.

Defendants filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit on February 5, 2008 (Case No. 08-55195). On February 19, 2008, Plaintiffs filed a notice of cross-appeal.

Following negotiations under the Ninth Circuit Mediation Program, the parties concluded a class-wide settlement agreement. On August 11, 2010, the Ninth Circuit dismissed the appeal and cross-appeal without prejudice to reinstatement pending the district court's determination of whether to approve the settlement agreement.

The settlement agreement provides relief to the certified sub-classes as well as the removal sub-class that the court had declined to certify. Benefiting the specific consent subclass, the Settlement Agreement provides that defendants will not require specific consent except when a juvenile is in the custody of HHS and the juvenile seeks a state court order determining or altering the juvenile's custody status or placement. In cases where specific consent is required, the Agreement sets standards and procedures for the disposition of specific consent requests.

Benefiting the age-out subclass, defendants have agreed that USCIS will not deny or revoke a class member's SIJ status petition or SIJ-based adjustment of status application on account of age or dependency status if, at the time the class member files the petition or application, he or she is under 21 years of age or is the subject of a valid dependency order even if that dependency order is thereafter terminated on the basis of age. Additionally, USCIS will not deny or revoke a class member's SIJ status petition or SIJ-based adjustment of status application on account of ineligibility for long-term foster care.

And for the removal subclass, defendants agree that ICE will join motions to reopen removal proceedings when the juvenile (i) requests such joinder within 60 days of being notified by USCIS that it has granted him or her SIJ status; and (ii) is not inadmissible or removal grounds that disqualify him or her from adjustment of status.

The agreement became effective when it was approved by the court on December 15, 2010, and was to be in force for 6 years.

On January 14, 2011, plaintiffs moved for attorneys' fees under the Equal Access to Justice Act. On June 19, 2012 the parties submitted a joint stipulation for settlement of attorneys' fees and litigation costs. Defendants agreed to pay plaintiffs $1,109,441. The court approved the stipulated attorneys' fees on July 3, 2012.

On July 21, 2014, plaintiffs moved for class-wide enforcement of the settlement. Plaintiffs alleged that after two-and-a-half years of compliance (granting SIJ status to class members who filed under age 21 even if they were no longer subjects of valid dependency orders), defendants now demanded that applicants still were subjects of valid dependency orders. After settlement talks, Judge Pregerson on Apr. 8, 2015 ordered defendants to pay plaintiffs $105,000 for expenses related to the motion for enforcement, under the Equal Access to Justice Act.

After the agreement had ended, on June 9, 2017, plaintiffs again moved to enforce the settlement. In this instance, plaintiffs alleged that four children who had been detained for 18 months despite having received SIJ status in 2016 were "absent class members." Defendants denied that the agreement applied to these children because ICE had issued expedited removal orders before they received SIJ status. Plaintiffs sought the Court to order ICE to join in the children's request to reopen their removal proceedings, and plaintiffs then planned to seek adjustment of status for them. Judge Pregerson held a motion hearing on July 10, 2017, but has not issued an order. One news source describes the hearing.

Plaintiffs then on July 13, 2017 moved to supplement the motion. They argued that the Central District of California's recently-issued order on the Flores agreement should also guide the court's interpretation of this agreement. Specifically, plaintiffs read the Flores agreement to require that children in expedited removal proceedings be treated the same as other class members. Defendants responded on July 20, arguing that the Flores agreement was not relevant here; plaintiffs replied on July 22. Plaintiffs updated the court on Sept. 15 that an Immigration Judge had released the children from detention, but that they risked being re-detained if they could not request that an Immigration Judge grant them LPR status.

This case is ongoing.

Dan Dalton - 01/29/2008
Jennifer Bronson - 12/13/2013
Ava Morgenstern - 09/17/2017


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Issues and Causes of Action
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Issues
Defendant-type
Jurisdiction-wide
General
Juveniles
Immigration
Refugees
Status/Classification
Temporary protected status
Plaintiff Type
Private Plaintiff
Causes of Action Bivens
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Defendant(s) Department of Homeland Security
Federal Bureau of Investigation
Office of Refugee Resettlement
Plaintiff Description Class of immigrant youth who were formerly dependents of state courts because they have been abused, abandoned, or neglected, and who applied for classification as “special immigrant juveniles” (SIJ).
Indexed Lawyer Organizations Center for Human Rights & Constitutional Law
Class action status sought Yes
Class action status granted Yes
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 2010 - 2016
Case Ongoing Yes
Docket(s)
2:05-cv-03604-DDP-RZ (C.D. Cal.)
IM-CA-0051-9000.pdf | Detail
Date: 07/03/2012
Source: PACER [Public Access to Court Electronic Records]
General Documents
Amended Order Denying in Part and Granting in Part Motion to Dismiss [ECF# 50] (C.D. Cal.)
IM-CA-0051-0001.pdf | Detail
Date: 08/17/2006
Source: PACER [Public Access to Court Electronic Records]
Order Granting in Part and Denying in Part Plaintiffs’ Motion for Class Certification and Granting in Part and Denying in Part Plaintiffs’ Motion for Partial Summary Adjudication [ECF# 121] (248 F.R.D. 248) (C.D. Cal.)
IM-CA-0051-0002.pdf | WESTLAW| LEXIS | Detail
Date: 01/08/2008
Source: PACER [Public Access to Court Electronic Records]
Notice of Motion and Join Motion for Approval of Settlement Agreement and Notice to Class, and Memorandum in Support [ECF# 159] (2010 WL 3617435)
IM-CA-0051-0003.pdf | WESTLAW | Detail
Date: 10/04/2010
Source: PACER [Public Access to Court Electronic Records]
Notice of Motion and Motion for Class-Wide Enforcement of Settlement [ECF# 176]
IM-CA-0051-0004.pdf | Detail
Date: 07/21/2014
Source: PACER [Public Access to Court Electronic Records]
Memorandum of Points and Authorities in Support of Motion for Enforcement of Settlement Agreement [ECF# 191]
IM-CA-0051-0005.pdf | Detail
Date: 06/09/2017
Source: PACER [Public Access to Court Electronic Records]
Response to Notice of Supplemental Authority [ECF# 221]
IM-CA-0051-0007.pdf | Detail
Date: 06/20/2017
Source: PACER [Public Access to Court Electronic Records]
Notice of Supplemental Authority in Support of Motion for Enforcement of Settlement Agreement [ECF# 219]
IM-CA-0051-0006.pdf | Detail
Date: 07/13/2017
Source: PACER [Public Access to Court Electronic Records]
Judges Pregerson, Dean D. Court not on record
IM-CA-0051-0001 | IM-CA-0051-0002 | IM-CA-0051-9000
Zarefsky, Ralph (C.D. Cal.)
IM-CA-0051-9000
Plaintiff's Lawyers Carey, Michelle Lynn (California)
IM-CA-0051-9000
Cartagena, Diego Jose (California)
IM-CA-0051-9000
Holguín, Carlos R. (California)
IM-CA-0051-0003 | IM-CA-0051-0004 | IM-CA-0051-9000
Iahdjian, Marcela (California)
IM-CA-0051-0004
London, Judy (California)
IM-CA-0051-0004
Palmer, Pamela S. (California)
IM-CA-0051-0005 | IM-CA-0051-0006
Rickabaugh, Jessica A. (Pennsylvania)
IM-CA-0051-0005 | IM-CA-0051-0006
Schey, Peter A. (California)
IM-CA-0051-0003 | IM-CA-0051-0004 | IM-CA-0051-9000
Slossberg, Gary Scott (California)
IM-CA-0051-0003 | IM-CA-0051-9000
Vale, Anthony C. (Pennsylvania)
IM-CA-0051-0005 | IM-CA-0051-0006
Viramontes, Angela (California)
IM-CA-0051-9000
Defendant's Lawyers Connolly, Kathleen Ann (District of Columbia)
IM-CA-0051-0007
Greenstein, Saul (District of Columbia)
IM-CA-0051-9000
Heller, Zoe (District of Columbia)
IM-CA-0051-9000
Leibman, Melissa S. (District of Columbia)
IM-CA-0051-0003 | IM-CA-0051-9000
Peachey, William Charles (District of Columbia)
IM-CA-0051-0007
Pinchas, David E (California)
IM-CA-0051-9000
Readler, Chad A. (District of Columbia)
IM-CA-0051-0007
Truman, P Michael (District of Columbia)
IM-CA-0051-9000
Ward, Brian Christopher (District of Columbia)
IM-CA-0051-0007
Other Lawyers Cruz, Evelyn H. (Arizona)
IM-CA-0051-9000
Jackson, Kristen M. (California)
IM-CA-0051-0004 | IM-CA-0051-9000
Lawrence, Victor M. (District of Columbia)
IM-CA-0051-9000
Shah, Ragini (Massachusetts)
IM-CA-0051-9000

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