Federal Court Orders Department of Homeland Security to Allow Class Action Lawyers to Meet with Children Fleeing Violence

LOS ANGELES — Salvadoran children who have recently been taken into custody by federal agents after crossing the U.S. border and detained in Nogales, Ariz., will be allowed to meet privately with attorneys to learn their rights, a Los Angeles federal district court judge ruled today.

The order, which requires the federal government to provide attorneys in a class action lawsuit with access to the detained children by July 30, comes after attorneys with the National Immigration Law Center (NILC), American Civil Liberties Union (ACLU) Immigrants’ Rights Project, ACLU of Southern California, and Munger Tolles & Olson LLP were repeatedly denied permission to meet with the children at newly opened federal detention facilities, including one in Nogales, Ariz.

NILC, ACLU and co-counsel have repeatedly expressed concerns that the government may not be complying with the Orantes-Hernandez v. Gonzales federal permanent injunction, which orders the government to protect the due process rights of detained Salvadorans.

“Since its inception, our country has been a place of refuge for people fleeing persecution,” said Linton Joaquin, general counsel of the National Immigration Law Center. “Sadly, in recent weeks detained Central American children and families have been blocked from visiting with attorneys who could help them determine whether they can and should be protected from being returned to the violence they escaped. Today’s ruling is important not just for these children, but for those of us who believe in protecting the most vulnerable among us.”

In its original injunction, the court found that the Immigration and Naturalization Service, which preceded the Department of Homeland Security (DHS), 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.

The need to continue the injunction’s protections was reaffirmed by federal courts in 2007 and 2009.

Now, as tens of thousands of refugees cross the U.S. border, immigrants’ rights attorneys have been denied access to the children to determine if their rights and the Orantes injunction are being violated.

“It’s beyond belief that the government has been categorically denying children at Nogales, who are fleeing violence, the right to meet with counsel,” said Jennifer Chang Newell, senior staff attorney with the ACLU’s Immigrants’ Rights Project. “The court’s ruling means that despite the urgency of the situation at the border, the children’s rights must be fully respected.”

In the filing with the court, the civil rights groups argued that recent press reports and photographs of the Central American children at the border show that “children and families are being detained in large facilities that were not designed for this purpose, in extremely overcrowded and inadequate conditions (including sleeping on the floor), and where it appears highly likely that the terms of the permanent injunction in this case regarding access to telephones, law libraries and legal rights materials, as well as attorney visitation, are being violated . . . .”

“We are delighted that Judge Morrow has taken this big step to ensure that the rights and safety of these vulnerable children are protected,” said Brad Phillips, a lawyer at Munger Tolles. “Her ruling reaffirms one of the fundamental principles for which this country has always stood — that everyone, no matter their status, is entitled to be treated with fairness and decency and in accordance with our Constitution.”

NILC, the ACLU, and the law firm of Munger Tolles & Olson LLP are currently serving as class counsel for the Orantes class members. Attorneys on the case include: Linton Joaquin, Karen Tumlin, and Alvaro Huerta of NILC; Ahilan Arulanatham and Jennifer Chang Newell of the ACLU; and Brad Phillips, Steve Kristovich, Susan Nash, David Taylor, Emily Murphy, Kenneth Trujillo-Jamison, and Thomas Clancy of Munger, Tolles & Olson.

The court’s order is available at www.nilc.org/document.html?id=1114.

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