Orantes-Hernandez v. Gonzales

• Decision Date: 24 July 2007
• Docket Number: No. CV82-01107-MMM(VBKX).,CV82-01107-MMM(VBKX).
• Citation: 504 F.Supp.2d 825
• Court: U.S. District Court — Central District of California
• Parties: Crosby Wilfredo ORANTES-HERNANDEZ, et al., Plaintiffs, v. Alberto R. GONZALES, Attorney General of the United States, et al., Defendants.

Page 825

504 F.Supp.2d 825

Crosby Wilfredo ORANTES-HERNANDEZ, et al., Plaintiffs, v. Alberto R. GONZALES, Attorney General of the United States, et al., Defendants.

No. CV82-01107-MMM(VBKX).

United States District Court, C.D. California.

July 24, 2007.

Karen C. Tumlin, Linton Joaquin, National Immigration Law Center, Mark D. Rosenbaum, Ranjana Natarajan, ACLU Foundation of Southern California, Los Angeles, CA, for Plaintiffs.

Frank Michael Travieso, John E. Nordin, II, AUSA-Office of US Attorney, Civil

Division, Los Angeles, CA, Victor M. Lawrence, Office of U.S. Immigration Litigation, Civil Division U.S. Department of Justice, Washington, DC, for Defendants.

AMENDED ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISSOLVE THE ORANTES INJUNCTION

MORROW, District Judge.

I. PROCEDURAL BACKGROUND

Plaintiffs filed this action in 1982, challenging practices and procedures allegedly employed by the Immigration and Naturalization Service ("INS") to detain, process and remove Salvadoran nationals who had entered the United States. Plaintiffs sued on their own behalf and on behalf of a class of "all citizens and nationals of El Salvador eligible to apply for political asylum ... who ... have been or will be taken into custody ... by agents of the [Department of Homeland Security]." Orantes-Hernandez v. Meese, 685 F.Supp. 1488, 1491 (C.D.Cal.1988) ("Orantes II"), affd., 919 F.2d 549 (9th Cir.1990). Judge David Kenyon, certified the Orantes class on April 30, 1982.¹

On April 29, 1988, Judge Kenyon entered a permanent injunction mandating that the INS use specific procedures when detaining, processing and removing Salvadoran immigrants. See Orantes II, 685 F.Supp. at 1511-13. On July 2, 1991, he modified the injunction to add four conditions that applied solely to the Port Isabel Service Processing Center in Port Isabel, Texas ("Orantes injunction"). On September 28, 2004, the court entered a stipulated order clarifying the terms of the injunction to eliminate the possibility that the Office of Refugee Settlement could be held to be in violation of its terms.²

On November 28, 2005, the government filed a motion to dissolve the injunction. It asserted (1) that there had been a significant change in the factual circumstances that led to issuance of the injunction — i.e., the end of the civil war and attendant human rights abuses in El Salvador, and the adoption of a range of procedures by U.S. immigration authorities that ensure that aliens are advised of their right to apply for asylum and are not coerced into waiving that right; and (2) that there had been an intervening change in law — i.e., the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), which provides for expedited removal of inadmissible aliens. As respects the intervening change in law, the government argued that the injunction conflicted with IIRIRA and the regulations governing expedited removal, and also that the injunction made it burdensome for immigration authorities to place Salvadorans in expedited removal. The court bifurcated this issue, and heard the government's argument regarding the purported facial conflict in September 2006. Following the hearing, it issued an order modifying paragraphs two and eleven of the injunction. The parties argued the balance of the government's reasons for seeking dissolution of the injunction on December 20, 2006. This order addresses those arguments.

II. DISCUSSION

A. Legal Standard Governing Dissolution Of An Injunction

Until 1992, courts asked to dissolve existing injunctions applied a standard first articulated in United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932). Swift was the culmination of a government antitrust action against the meat-packing industry. The government alleged that defendants had suppressed competition in the purchase of livestock and sale of dressed meats, and that, having eliminated competition in meat products, they had also suppressed competition in the sale of other products, such as fish, vegetables, fruit and groceries. Id. at 110, 52 S.Ct. 460. In 1920, defendants agreed to a consent decree that banned them, inter alia, from owning retail meat markets or stockyards, and from manufacturing, selling, or transporting 114 varieties of foodstuffs. Id. at 111, 52 S.Ct. 460. Ten years later, five meat packers petitioned for modification of the decree, arguing that conditions in the meat-packing and grocery industries had changed. Id. at 113, 52 S.Ct. 460. The lower court modified the injunction to permit the meat packers to sell groceries and other commodities at wholesale, but retained the ban on retail sales of such products. Id. at 113-14, 52 S.Ct. 460.

An appeal followed. The Supreme Court framed "the question [that had to be resolved as] whether [a modification could] be made without prejudice to the interests of the classes whom th[e] particular restraint was intended to protect." Id. at 117-18, 52 S.Ct. 460. It answered this inquiry in the negative, noting that industry changes had reduced the likelihood that defendants would once again monopolize the sale of meats, but that the changes had not substantially reduced the possibility that there would be antitrust violations in the sale of other food products if the injunction were dissolved. Id. at 117-18, 52 S.Ct. 460. The Court's conclusion was reinforced by evidence that there had been sporadic instances of unfair practices by the meat packers even after the monopoly was broken and the consent decree entered. Id. at 118, 52 S.Ct. 460. It cautioned: "Nothing less than a showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after, years of litigation with the consent of all concerned." Id. at 119, 52 S.Ct. 460.

The "grievous wrong" language in Swift worked an "apparent hardening of the usual standard for modifying decrees of injunctive relief." New York States Ass'n for Retarded Children Inc. v. Carey, 706 F.2d 956, 968 (2d Cir.1983). As a result, courts often held that modification or dissolution of an injunction was not warranted unless the party requesting relief could show a "grievous wrong" — a nearly insurmountable standard that "ward[ed] off virtually all efforts to modify consent decrees." Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 379, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992); see also United States v. City of Chicago, 663 F.2d 1354, 1359 (7th Cir.1981) (noting that "numerous cases have mechanically employed the Swift `grievous wrong' test, thereby suggesting that hardship to the defendant is the sole touchstone for modification of an injunction").

Under the "grievous wrong" standard, a party seeking modification or dissolution of an injunction had to meet a heavy burden of proof that often exceeded the burden imposed on parties seeking an injunction in the first instance. See Swift, 286 U.S. at 119, 52 S.Ct. 460 ("We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree.... The inquiry ... is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow"); Ruiz v. Lynaugh, 811 F.2d 856, 860-61 (5th Cir.1987) (noting that "modification is only cautiously to be granted; that the dangers which the decree was meant to foreclose must almost have disappeared; that hardship and oppression, extreme and unexpected, are significant; And that the movant's task is to provide close to an unanswerable case").

Subsequent Supreme Court cases, however, emphasized that courts had "misconceived the thrust" of Swift by focusing rigidly on the "grievous wrong" language. See Board of Ed. of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 246-48, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991) (rejecting the rigid use of Swift's "grievous wrong" language as the basis for denying a motion to dissolve a desegregation decree); United States v. United Shoe Machinery Corp., 391 U.S. 244, 248, 88 S.Ct. 1496, 20 L.Ed.2d 562 (1968) (noting that the district court had misconceived the "thrust of this Court's decision in Swift," and stating the "Swift teaches that a decree may be changed upon an appropriate showing, and it holds that it may not be changed in the interests of the defendants if the purposes of the litigation as incorporated in the decree (the elimination of monopoly and restrictive practices) have not been fully achieved").

In United Shoe Machinery, the government sought modification of an injunction, claiming that additional relief was needed to fulfill the "purposes of the litigation." The district court denied the request, reading Swift as limiting modification to cases involving "(1) a clear showing of (2) grievous wrong (3) evoked by new and unforeseen conditions." United States v. United Shoe Machinery Corp., 266 F.Supp. 328, 330 (D.Mass.1967). The Supreme Court held that this interpretation was too rigid, and noted that Swift `s reference to a "grievous wrong" had to be read in context. Because the original injunction had resulted in little progress toward the accomplishment of the decree's goals, the Court concluded that modification would promote, not subvert, the "purposes of the litigation." United Shoe Machinery, 391 U.S. at 248-49, 88 S.Ct. 1496.

In the 1980's, courts increasingly adopted a more flexible approach to requests for modification or dissolution of injunctions, particularly in institutional reform cases. See Carey, 706 F.2d at 970 (stating that the "grievous wrong" language of Swift did "not provide the proper standard to apply to injunctions entered in school desegregation cases [because s]uch decrees, unlike the one in Swift, are not intended to operate in perpetuity"); City of Chicago, 663 F.2d at 1360 ("The standard for modification of injunctions that emerges from Swift. and United Shoe is ... not based solely on hardship to the...