Filed Date: May 13, 2005
Clearinghouse coding complete
On May 13, 2005, attorneys for the Center for Human Rights and Constitutional Law and Los Angeles Center for Law and Justice instituted a nationwide 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 (LPR) 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. 248 F.R.D. 248 (C.D. Cal. Jan. 8, 2008).
After Judge Pregerson declined defendants' request for a stay of the injunction, 2008 WL 11336794 (C.D. Cal. Feb. 8, 2008), 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 (2010 WL 9594539, C.D. Cal. Aug. 31, 2010) 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, on Apr. 8, 2015 Judge Pregerson 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. One news source describes the hearing.
On July 13, 2017, plaintiffs 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.
The court did not respond to this supplement, and the case has been closed.
Summary Authors
Dan Dalton (1/29/2008)
Jennifer Bronson (12/13/2013)
Ava Morgenstern (11/23/2017)
Edward Cullen (3/15/2019)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4143164/parties/luis-javier-perez-olano-v-alberto-gonzalez/
Anderson, Michael D. (California)
Attorney, OIL-DCS Trial (California)
Attorney, Noticing INS (California)
Bauman, Kenneth C. (California)
Bennett, Michelle R (California)
Pregerson, Dean D. (California)
Zarefsky, Ralph (California)
Carey, Michelle Lynn (California)
Cartagena, Diego Jose (California)
Holguín, Carlos R. (California)
Iahdjian, Marcela (California)
London, Judith Maura (California)
Palmer, Pamela S. (California)
Rickabaugh, Jessica A. (Pennsylvania)
Slossberg, Gary Scott (California)
Anderson, Michael D. (California)
Attorney, OIL-DCS Trial (California)
Attorney, Noticing INS (California)
Bauman, Kenneth C. (California)
Bennett, Michelle R (California)
Bettwy, Samuel William (California)
Bober, David Vincent (California)
Bowen, Jennifer A (California)
Braunstein, Joshua E. (District of Columbia)
Cargo, Shane Patrick (California)
Chertoff, Michael (California)
Cohen, Rebecca Shapiro (California)
Cohen, Kyle Scott (California)
Connolly, Kathleen Ann (District of Columbia)
Cowart, Brandon Herbert (California)
DOJ, Michelle Bennett (California)
Dupree, Thomas H. (California)
Eshkenazi, Lara K. (California)
Freeborne, Paul Gerald (California)
Gonzalez, Carlos A (California)
Grauman, Jesse Zvi (California)
Greenstein, Saul (District of Columbia)
Heller, Zoe (District of Columbia)
Hemesath, Audrey Benison (California)
Hikida, Katherine M (California)
Hildebrand, Regan (California)
Hobbs, Britannia I. (California)
Holder, Charmaine Michele (California)
Hollis, Christopher W. (California)
Jackson, E. Fletcher (California)
Johnson, Kristin Berger (California)
Keiper, Melanie Suzanne (California)
Kline, David J. (District of Columbia)
LA-CV, Assistant US (California)
Lefort, Deitz Patrick (California)
Leibman, Melissa S. (District of Columbia)
Lester, Robert Ira (California)
Marcus, Lisa Zeidner (California)
Martin, Edward J. (California)
Mittet, Marion J. (California)
Murphy-Osborne, Maura (California)
Parascandola, Christina (California)
Peachey, William Charles (District of Columbia)
Pence, Richard M. (California)
Proctor, Melanie Lea (California)
Pyle, Michael Thomas (California)
Quinlivan, Mark T. (California)
Raurell, Carlos Javier (California)
Readler, Chad Andrew (District of Columbia)
Reddy, Kirti Vaidya (California)
Roberts, Darwin P (California)
Robinson, Stuart Justin (California)
Schachner, Elliot M. (California)
Stevens, Elizabeth J (California)
Theis, John Kenneth (California)
Truman, P Michael (District of Columbia)
Tyler, John Russell (California)
Vassallo, Kristin Lynn (California)
Ward, Brian Christopher (District of Columbia)
Westwater, Gisela A (California)
Williams, Melaine A. (California)
Wolstein, Elizabeth (California)
See docket on RECAP: https://www.courtlistener.com/docket/4143164/luis-javier-perez-olano-v-alberto-gonzalez/
Last updated March 19, 2024, 3:06 a.m.
State / Territory: California
Case Type(s):
Special Collection(s):
Key Dates
Filing Date: May 13, 2005
Case Ongoing: No
Plaintiffs
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).
Plaintiff Type(s):
Attorney Organizations:
Center for Human Rights & Constitutional Law
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Granted
Defendants
Federal Bureau of Investigation, Federal
U.S. Department of Homeland Security, Federal
U.S. Office of Refugee Resettlement, Federal
Defendant Type(s):
Case Details
Causes of Action:
Ex Parte Young (Federal) or Bivens
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Available Documents:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
Injunction / Injunctive-like Settlement
Source of Relief:
Form of Settlement:
Court Approved Settlement or Consent Decree
Amount Defendant Pays: $1,091,0441
Order Duration: 2010 - 2016
Content of Injunction:
Issues
General:
Immigration/Border: