Orantes-Hernandez v. Garland et al.
(formerly Orantes-Hernandez v. Gonzales)

Challenging abuses against Salvadorans seeking asylum in the United States

Since the 1980s, a court order (the Orantes Injunction) has been in place requiring certain protections for Salvadoran asylum seekers (see here for full issue brief on the Orantes injunction).  However, since 2019, the Government has adopted a policy known as the Migrant Protection Protocols (“MPP”) or the Remain in Mexico policy, which rapidly returns asylum seekers to Mexico to await their asylum hearings in horrifying conditions that render them unable to obtain and work with immigration attorneys. Based upon the stance that MPP violates the Orantes Injunction, in February 2022, we filed a motion on behalf of plaintiffs seeking information that will help us establish that a violation is occurring and to identify a way to fix or prevent ongoing harms to Salvadoran asylum seekers.  In order to get that information, we had to establish for the court that there are significant questions about the government’s non-compliance with the injunction.

In plaintiffs’ motion to reopen discovery, we argued that MPP raises significant questions about whether the government is complying with the Orantes injunction, especially with respect to the Injunction’s protections regarding transferring plaintiffs to other locations and concerning the conditions plaintiffs are made to live under while waiting for their asylum hearings.  We pointed out that the government has enrolled thousands of Salvadorans in MPP in the past and is unwilling to guarantee that they won’t enroll Salvadorans again in the future.

On April 27, 2022, Judge Frimpong in the Central District of California issued an opinion granting the majority of plaintiffs’ motion.

Primarily, the government countered plaintiffs’ motion by arguing that the transfers and conditions of MPP are not the same as the transfers or detention at issue in the Orantes injunction. Judge Frimpong rejected both of these arguments. The government argued that no Salvadorans had been enrolled in MPP 2.0 but admitted that if Title 42 is ended and MPP continues, the government will likely subject more Salvadorans to MPP.  Of note, in between the oral argument and the Court’s order, the government filed a notice with the Court to point out that one Salvadoran national was, in fact, enrolled in MPP in April 2022.

Judge Frimpong ordered Defendants to give plaintiffs most of the information we sought (including information sufficient to identify and contact Salvadoran asylum seekers who have been subjected to MPP, as well as their current immigration status), and directed Defendants to discuss with plaintiffs’ counsel whether they would provide information about present and future violations of the injunction).

As a result of this opinion, plaintiffs will obtain valuable information necessary to ask the court to enforce the Orantes injunction and to right MPP’s wrongs against Salvadoran nationals.

The co-counsel team litigating this case includes NILC, ACLU-SoCal, ACLU-IRP, and Public Counsel.

• The Orantes Injunction (issue brief)
• Order Denying Plaintiffs’ Application for Temporary Restraining Order; Construing Plaintiffs’ Application as a Motion to Compel Discovery; Granting Plaintiffs’ Motion to Compel Discovery (7/17/14). (The court orders the Dept. of Homeland Security to allow lawyers representing the Orantes-Hernandez class to meet with detained children who fled violence in El Salvador.)
• The 9th Circuit Court of Appeals affirmed the district court’s decision in this case, and on July 6, 2009, the U.S. Dept. of Justice filed a notice that it would not be filing a petition for rehearing. The appellate court’s decision (4/6/09, PDF) is therefore final.
• Orantes-Hernandez v. Gonzales, No. 82-01107 MMM(VBKx) (C.D.Cal. Nov. 26, 2007).
  (Modified, Consolidated Injunction).
• Orantes-Hernandez v. Gonzales, No. 82-01107 MMM(VBKx) (C.D.Cal. July 24, 2007).
  (Amended Order Granting in Part and Denying in Part Defendants’ Motion to Dissolve the Orantes Injunction).
• Freedom of Information Act (FOIA) request, filed Mar. 15, 2007, re: observations and evaluations of or reports about detention conditions in U.S. facilities.
• Protections for Detained Salvadorans After a Worksite Raid
  Attorneys and legal workers representing persons detained in worksite raids should be aware of two provisions of a permanent injunction that apply nationwide to nationals of El Salvador detained by immigration authorities.