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The Dept. of Homeland Security (DHS) has filed a motion
in federal district court in Los Angeles requesting that the court
dissolve the nationwide permanent injunction in Orantes-Hernandez v.
Gonzales, No. 82-1107KN (C.D.Cal.). The motion contends that the
injunction is no longer warranted because of changed circumstances and
that it should be dissolved because it may prevent the DHS from applying
expedited removal to class members within the United States. The
plaintiff class disputes these claims and opposes the motion.
The Orantes case was filed in 1982 on
behalf of all Salvadorans detained without a warrant by officers of the
Immigration and Naturalization Service or its successors (now the DHS).
The district court certified a nationwide class and issued a preliminary
injunction in 1982. Orantes-Hernandez v. Smith, 541 F.Supp. 351
(C.D. Cal. 1982). Following a trial that lasted from 1985 until 1987,
and based on testimony from hundreds of witnesses, the court issued a
permanent injunction in 1988. 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). In 1989 the court found
that the INS had violated the injunction in south Texas and issued a
further remedial order. In 1991 the parties stipulated to a modified
version of the injunction, and in 2004 the parties stipulated to a
clarification of one provision.
In issuing the injunction, the court found
that the INS had engaged in a pattern and practice of coercing and
otherwise improperly encouraging Salvadorans to waive their rights to a
deportation hearing and to seek asylum as a defense to deportation.
Salvadorans were pressured to accept voluntary departure and waive a
hearing during their arrest and processing, and this pattern and
practice of misconduct extended to detention centers, where their access
to counsel and information about their rights was strictly restricted.
Among other remedies, the court ordered that the INS at the time of
arrest and processing provide an advisal to Salvadorans regarding their
right to a deportation hearing, to consult with counsel, and to apply
for asylum. The court also imposed requirements concerning the
conditions of detention for class members. These requirements included
that detained class members have in-person visitation by attorneys and
paralegals between the hours of 9 a.m. and 9:30 p.m., that they have
access to telephones, writing materials, and reasonable access to
detention center law libraries.
The DHS, as successor to the former INS, now
contends that changed conditions warrant the dissolution of the
Orantes injunction. In support of its motion, the agency identifies
three changes: (1) that conditions have changed in El Salvador, where
there is no longer a civil war; (2) that the injunction is not needed
with respect to conditions of detention because of the promulgation of
detention standards that incorporate the injunction's provisions; and
(3) that the DHS's implementation of a new legal procedure — expedited
removal, a summary procedure by which noncitizens may be deported
without a hearing — is also a changed condition warranting dissolution
of the injunction.
With respect to conditions in El Salvador,
while it is true that the number of Salvadorans seeking asylum in the
United States has declined in recent years, it is by no means the case
that persecution is no longer a danger. Rather, there has been a shift
in the nature of the claims. While there are far fewer political
opinion claims, there are now many strong claims based on social group,
as in cases of unaccompanied minors, including street children; domestic
violence; and former gang members and victims of gangs. The district
court's finding that "a substantial number of Salvadorans who flee El
Salvador and enter the United States possess good faith claims to
asylum" remains true. 685 F.Supp. at 1491. Moreover, in upholding the
injunction, the Ninth Circuit did not reach the issue of whether
conditions in El Salvador were relevant to the case, finding that the
injunction was warranted as a remedy for pervasive conduct by INS
officers that violated the agency's own procedures.
With respect to the detention standards, the
reality is that the standards explicitly are not judicially enforceable,
and there are serious deficiencies in their implementation. With
respect to expedited removal, a fundamental question is whether the use
of this procedure to deport class members within the U.S. without a
hearing would violate their rights. Since dissolving the injunction
would subject class members to this procedure, the district court should
consider this question.
In addition to NILC, the
plaintiff class in the case is represented by the American Civil
Liberties Union of Southern California and the ACLU Immigrants' Rights
Project.
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