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By
LINTON JOAQUIN
Executive Director
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.
Case Background
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:
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provide an advisal to Salvadorans
regarding their right to a deportation hearing, to consult with
counsel, and to apply for asylum;
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make telephones available to class
members at the time they are interviewed and charged with
immigration violations; and
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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:
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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.
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Access to telephones, with at least 1
telephone available per every 25 detainees at a facility.
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Access to confidential phone calls,
through the use of privacy panels between phones or other effective
means.
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Ability to receive and possess legal
materials explaining U.S. immigration law and procedure, and any
other written materials not conflicting with security needs.
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Access to writing materials, including
paper, pencils, pens, and typewriters.
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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.
Click here for a copy of the court’s July 26, 2007 order. For a
copy of the new release regarding the order in English,
click here;
and for the news release in Spanish,
click here.
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).
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