District Court Approves Stipulation Clarifying Application Of Orantes Injunction To Unaccompanied Minors

IMMIGRATION LAW & POLICY

Arrest and Detention

District court approves stipulation clarifying application of Orantes injunction to unaccompanied minors
Immigrants' Rights Update, Vol. 18, No. 7, November 8, 2004

The federal district court in Los Angeles has approved a stipulation by the parties in a class action lawsuit that in 1988 resulted in the issuance of a nationwide permanent injunction on behalf of Salvadorans detained by the former Immigration and Naturalization Service. Orantes-Hernandez v. Meese, 685 F.Supp. 1488 (C.D.Cal. 1988), aff’d. sub nom Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990). The stipulation concerns a provision of the injunction that requires immigration authorities to keep unrepresented detained Salvadorans within the district in which they were apprehended for at least seven days, to afford them the opportunity to obtain counsel (i.e., they may not be transferred to another district within seven days of the time they are detained). The stipulation clarifies that this provision is not intended to prevent the transfer of detained unaccompanied minor Salvadorans, where a district has no facilities appropriate for the detention of minors and certain safeguards are met.

The 1988 injunction was issued, after a trial lasting more than a year, because the court found that the INS engaged in a nationwide pattern and practice of coercing and encouraging Salvadorans to accept voluntary departure and not to apply for asylum. The injunction requires the INS and its successors to provide notice to detained Salvadorans of the right to apply for asylum and prohibits them from coercing or otherwise discouraging Salvadorans from seeking asylum. It also requires the INS and its successors to afford detained Salvadorans access to counsel, telephones, writing materials, and legal rights materials. In addition, the defendants are required to inform attorneys of the location of detained class members and are prohibited from transferring unrepresented class members out of the district of their apprehension for seven days to afford them an opportunity to obtain legal representation in the area where they are detained. In 1989, as a result of violations of the injunction in south Texas, the injunction was modified to require the INS also to allow counsel for plaintiffs and nonprofit legal services organizations to make legal rights presentations to detained class members at the Port Isabel Service Processing Center. Many of the injunction’s provisions have been adopted by the INS and its successors as policies for the treatment of non–class member detainees as well as Salvadorans.

The Office of Refugee Resettlement (ORR) of the U.S. Dept. of Health and Human Services, as part of the reorganization and elimination of the INS, has taken over responsibility for the care of unaccompanied minors in immigration custody. The ORR requested the stipulation in this case to clarify that the injunction’s seven-day prohibition on transfers is not intended to prevent transfers that are necessary to ensure that minors are held in appropriate facilities.

The stipulation allows transfer of an unaccompanied minor class member to a suitable youth facility or foster care home outside of the district of apprehension, within seven days of the apprehension, where three conditions are met. These conditions are that: “(1) release of the minor has first been considered as a preferable alternative to custody but found unwarranted, (2) there is no facility appropriate for the custody of the minor in the district, or no space available at any such facility in the district of apprehension, and (3) transfer is to the nearest appropriate facility outside the district where space is available.”

Orantes-Hernandez v. Ashcroft, No. CV 82-1107 KN (C.D.Cal., stipulation and order filed Sept. 28, 2004).