On July 23, 2007, a federal district court in California issued an opinion declining to dissolve the injunction issued in Orantes-Hernandez v. Meese, 685 F.Supp. 1488 (C.D.CA 1988), 919 F.2d 549 (9th Cir. 1990), which established immigration processing standards for Salvadoran nationals.
The class-action civil rights lawsuit was first filed by Salvadoran nationals whom the federal government sought to deport to El Salvador during its brutal 12-year civil war. Because the plaintiffs were able to prove immigration officials violated their rights causing asylum-worthy Salvadorans to be returned to El Salvador, where they faced imprisonment, torture and/or execution, in 1982 the court granted a permanent injunction mandating specific procedures for immigration processing Salvadorans.
In 2005, the government filed a motion to dissolve the injunction, alleging that "evolving circumstances," including the ending of the Salvadoran civil war in 1992, made the injunction unnecessary because the Salvadorans no longer had a "well-founded fear of persecution" and "good faith claims to asylum." The district court determined that the question to be answered was whether a modification could be made to the injunction without prejudice to the interests of the classes whom the injunction protected.
The injunction was granted because the court found that immigration officials regularly used pressure techniques to coerce Salvadorans to sign voluntary departure forms allowing the government to return them to El Salvador without deportation hearings or applications for asylum. Among the techniques employed by immigrations officials were verbal pressure, verbal threats and intimidation, severe limitations on visits and phone calls with attorneys and paralegals, refusal to provide or allow possession of legal materials and forms, failure to ensure privacy during attorney-client interviews, severely restricted access to telephones and segregation in solitary confinement without hearings. The court found that "the practice and pattern of mistreating, pressuring, and intimidating Salvadorans into giving up their asylum claims was widespread and pervasive and highly likely to result in class members being deprived of their right to a deportation hearing." The permanent injunction requires the government to give Salvadorans an advisal of rights, a list of organizations providing free legal services, a hearing prior to placement in solitary confinement, regular access to legal materials, telephones and legal professionals, and prohibits the government from transferring Salvadorans without legal representation from the area of their arrest for seven days following arrest.
The court rejected plaintiffs' assertion that the changed conditions in El Salvador were irrelevant on the issue of whether to modify or dissolve the injunction. It also denied government's request to limit the dissolution inquiry to changed conditions in El Salvador, holding the detention center conditions were also relevant to the inquiry.
Neither party disputed that the conditions which caused many Salvadorans to have good-faith asylum claims in 1982 have disappeared. However, the court held that the injunction also had another purpose: to remedy the "persistent pattern of misconduct violative of plaintiffs' rights to apply for asylum." Even though plaintiffs had not brought a contempt or enforcement proceed for 18, years, the court examined the processing of over 41,400 Salvadorans by immigration officials in 2006. It found mixed compliance with the advisal requirements that the government failed to prove Salvadorans were being advised of their asylum rights using standard immigration forms with assistance by immigration officials and actually had a policy of not giving the required advisal of asylum rights when the Salvadorans were arrested at a port of entry. The court also found that the government failed to prove substantial compliance with the injunction in the critical areas of access to legal materials, use of telephones and attorney visits. The court held that the government has not established that promulgation of its own detention standards and the end of the Salvadoran civil war constitute sufficiently changed circumstances that all of the provisions of the Orantes injunction related to detention conditions should be dissolved.
"Documented noncompliance with relevant standards, indicate that the injunction remains necessary to ensure that Salvadorans are able to exercise their right to apply for asylum freely and intelligently." However, the court found that the government had ceased to abuse administrative segregation and was giving the required legal video presentation. Therefore, the court granted the motion to dissolve the portions of the injunction covering administrative segregation and legal video presentations but denied the motion in all other respects leaving the bulk of the injunction intact.
See: Ornates-Hernandez v. Gonzales, 504 F.Supp.2d 825 (2007).
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Ornates-Hernandez v. Gonzales
|Cite||504 F.Supp.2d 825 (2007)|