Immigrants' Rights Update, Vol. 21, Issue 8, October 5, 2007
Court Upholds Nationwide Injunction of Immigration Detention and Removal Processing Abuses
By Linton Joaquin
The federal district court in Los Angeles issued a decision on July 26 upholding nearly all of the provisions of a permanent injunction that requires the U.S. Dept. of Homeland Security (DHS) to afford immigration detainees basic access to counsel and information about their rights. The permanent injunction, originally issued in 1988, was the result of litigation brought on behalf of a nationwide class of people from El Salvador. In the most recent decision, the court rejected the government’s claims that changed conditions warranted dissolving the injunction, finding serious violations of the government’s own standards relating to detention conditions. The court also found that the government failed to establish that it had improved its removal processing procedures so as to eliminate the need for those provisions of the injunction.
The Orantes case was filed in 1982 on behalf of all Salvadorans detained without a warrant by officers of the Immigration and Naturalization Service (INS) 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., 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 it issued a further remedial order; and in 1991, the parties stipulated to a slightly modified version of the injunction.
In issuing the original 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 apply for asylum. 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 severely 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;
make telephones available to class members at the time they are interviewed and charged with immigration violations; and
provide class members with legal services lists to assist them in contacting counsel.
The court also imposed requirements concerning the conditions of detention for class members. As modified by the 1991 stipulation, the injunction includes requirements that detention facilities provide class members:
Reasonable visitation access to counsel and paralegals working under the supervision of counsel between the hours of 9 a.m. and 9:30 p.m., excluding time needed for reasonable security procedures.
Access to telephones, with at least 1 telephone available per every 25 detainees at a facility.
Access to confidential phone calls, through the use of privacy panels between phones or other effective means.
Ability to receive and possess legal materials explaining U.S. immigration law and procedure, and any other written materials not conflicting with security needs.
Access to writing materials, including paper, pencils, pens, and typewriters.
Access to detention center law libraries, and such legal rights materials as are available in English and Spanish regarding immigration law and procedure.
Because the INS did not segregate detainees by nationality, the agency understood these requirements as being applicable to all nationalities, and took steps to implement them. Thus, for example, while before this litigation some INS facilities had no telephones that were available to detainees, more phones were added throughout the INS detention system as a result of the litigation.
The Current Case
In November 2005, the government filed a motion to dissolve the permanent injunction. The government made three arguments for dissolving the injunction: (1) that because the civil war in El Salvador had ended, the injunction was no longer warranted; (2) that changes in the processing and treatment of immigrants by DHS in the U.S., including the promulgation of National Detention Standards, eliminated any need for the injunction; and (3) that the statutory provisions for “expedited removal,” enacted in 1996 to permit removal without a hearing of certain arriving immigrants unless they have a credible fear of persecution, conflicted with provisions of the injunction, and further deprived the court of jurisdiction even to examine how expedited removal procedures are conducted.
Expedited Removal Issues. The court permitted plaintiffs limited discovery, and at the request of the government directed the parties to brief the expedited removal jurisdictional issues in the case in advance of resolving the remainder of the motion to dissolve the injunction. In Aug. 2006, the court issued a decision rejecting the government’s claim that the court lacked jurisdiction to determine any issues in the case regarding the expedited removal procedure. After further briefing and oral argument, in Oct. 2006 the court issued a further decision on the government’s claim that the expedited removal statute posed a facial conflict with the injunction. In a carefully reasoned decision, the court made minor modifications to the injunction and the Orantes advisal of rights, and with those changes found that no facial conflict exists between the injunction and the subsequently enacted expedited removal statute. In addition, the court granted the plaintiffs limited discovery regarding the expedited removal process. As a result, at the end of October the government furnished plaintiffs with several thousand pages of documents regarding expedited removal procedures and guidelines; and in November, the plaintiffs deposed several supervisory immigration officers regarding their practices in conducting expedited removal proceedings. This discovery yielded important new information regarding how expedited removal, an ill-understood procedure, is conducted in practice.
The Final Order Addressing Removal Processing Procedures, Current Country Conditions, and Detention Center Conditions. On Dec. 20, 2006, the court held oral argument on the motion, and on July 26, 2007, the court entered a final ruling on the motion.
The court found that there have been significant changes in conditions in El Salvador since 1988, when the injunction was issued, but that there continue to be conditions giving rise to valid asylum claims. Moreover, the court noted that the injunction was based not only on conditions in El Salvador but also on the practices of the former INS in the United States. The court found that the government had failed to establish that its current procedures for processing immigrants in regular or expedited removal sufficiently protect the ability of immigrants to pursue asylum claims, thus rendering the Orantes advisal of rights unnecessary. Specifically with respect to expedited removal, the court found that there was troubling evidence that immigration officers fail to follow procedures intended to ensure that immigrants with claims to asylum are able to present those claims.
With respect to detention conditions, the court found that evidence of continuing violations of the injunction’s requirements with respect to access to legal rights materials and law libraries, visitation by attorneys, access to telephones, and other requirements warranted continuing these provisions of the injunction. Through discovery, NILC and its co-counsel obtained over 20,000 pages of previously confidential government documents regarding detention center conditions long sought by immigrants’ rights advocates concerning conditions in detention centers across the country. These documents include the government’s own reviews of detention centers for compliance with the government’s set of non–legally binding detention standards as well as independent reports by the American Bar Association and the United Nations High Commissioner for Refugees assessing detention conditions as specific facilities.
The court did dissolve two provisions of the injunction, finding that no evidence indicated that they were being violated. The two provisions that were dissolved are: (1) the injunction’s requirement of notice and a hearing before detainees may be placed in solitary confinement as a punishment, and (2) the provision requiring that the government permit group legal rights presentations at the Port Isabel detention center, near Harlingen, Texas.
The government has filed an appeal of the decision to the U.S. Court of Appeals for the Ninth Circuit. The plaintiffs in the case are represented by NILC, the ACLU Foundation of Southern California, and the ACLU Foundation Immigrants’ Rights Project.
See the court’s July 26, 2007 order. See a copy of the new release regarding the order in English and in Spanish. Advocates seeking further information regarding the case and the injunction should contact NILC’s Karen Tumlin or Linton Joaquin.
Orantes-Hernandez v. Gonzales, No. CV 82-1107 MMM (VBKx) (C.D.Cal., July 26, 2007).