Orantes-hernandez v. Holder

• Decision Date: 29 March 2010
• Docket Number: Case No. CV 82-01107 MMM (VBKx).
• Court: U.S. District Court — Central District of California
• Parties: Crosby Wilfredo ORANTES-HERNANDEZ, et al., Plaintiffs,v.Eric HOLDER, Attorney General of the United States, Defendant.

713 F.Supp.2d 929

Crosby Wilfredo ORANTES-HERNANDEZ, et al., Plaintiffs,v.Eric HOLDER, Attorney General of the United States, Defendant.

Case No. CV 82-01107 MMM (VBKx).

United States District Court,

C.D. California.

March 29, 2010.

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Linton Joaquin, Karen C. Tumlin, National Immigration Law Center, Los Angeles, CA, Mark D. Rosenbaum, Ranjana Natarajan, ACLU Foundation of Southern California, Los Angeles, CA, Lucas Guttentag, Judy Rabinovitz, Jennifer Chang Newell, ACLU Foundation Immigrants' Rights Project, San Francisco, CA, for Plaintiffs.

Victor M. Lawrence, Office of U.S. Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, Frank Michael Travieso, AUSA-Office of U.S. Attorney, John E. Nordin, II, SAUSA-Office of U.S. Attorney, Los Angeles, CA, for Defendant.

ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT

MARGARET M. 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), aff'd, 919 F.2d 549 (9th Cir.1990) ( “ Orantes II ”). 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”). He also approved a settlement of plaintiffs' application for attorneys' fees and costs incurred to that point in the litigation. 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.

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 ensured aliens were advised of their right to apply for asylum and 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”), providing for the 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.

In response to the government's motion, plaintiffs requested limited discovery. At a status conference held December 21, 2005, the government opposed the request and asserted that the court had no jurisdiction to review expedited removal procedures. The court granted plaintiffs' request for discovery and established a briefing schedule for resolving the government's jurisdictional objections. On August 31, 2006, the court agreed to bifurcate and hear the defendant's argument that there was a facial conflict between the injunction and the expedited removal statute before addressing the remaining reasons advanced for dissolving the injunction.

The 120-day period for discovery on issues other than expedited removal closed in early May 2006. The government limited production of documents regarding detention standards to those pertaining to seventeen standards it considered relevant to the injunction. Plaintiffs contended they were entitled to additional discovery and the court resolved the parties' dispute on October 13, 2006 by ordering the production of documents relevant to one additional standard, the Hold Room Standard.

The court held a hearing on defendant's jurisdictional objection that it lacked jurisdiction to review expedited removal procedures on May 8, 2006. At the hearing, the government raised a new argument, namely, that plaintiffs lacked standing to challenge the regulations implementing expedited removal. As a consequence, the court ordered further briefing on the issue. The court ultimately rejected the government's characterization that plaintiffs' opposition to dissolution of the injunction was a challenge to the expedited removal statute and implementing regulations, and found that the jurisdictional restrictions contained in the expedited removal statute did not apply. On August 21, 2006, the court granted plaintiffs' request for limited discovery on expedited removal.

In response to the court's ruling, the government asserted that there was a facial conflict between the expedited removal statute and Judge Kenyon's injunction, and requested that the court order briefing and a hearing on that question before requiring it to produce any expedited removal discovery. The court acceded to this request, and set a schedule for briefs addressing whether paragraph 2 of the injunction, which mandated that the government provide Salvadorans an advisal regarding of their right to apply for asylum, and paragraph 11, which concerned transfer of Salvadorans between facilities, were facially in conflict with the expedited removal statute.

On October 11, 2006, the court issued an order regarding the facial conflict between the expedited removal statute and Judge Kenyon's injunction. As respects paragraph 2 of the injunction, the court found that the Orantes advisal concerning the right to apply for asylum did not conflict with the expedited removal statute as the notification requirement merely imposed an additional obligation on the government and did not mandate that it take action that was prohibited by the statute.² The court agreed with the government that there was a more limited conflict between paragraph 2 and the statute, however. Because “the right to representation by an attorney does not attach until an alien is found to have a credible fear of persecution,” the court concluded that paragraph 2 conflicted with the expedited removal statute to the extent it required the government to advise all Salvadorans-including those without a credible fear of persecution-that they had a right to be represented by an attorney.³ The court also found that paragraph 2's requirement that the government advise all Salvadorans of their right to a deportation or removal hearing conflicted with the expedited removal statute because, under that statute, only aliens found to have a credible fear of persecution in their country of origin are entitled to a removal hearing. ⁴ To remedy these conflicts, the court modified-but did not dissolve paragraph 2 to remove these conflicts.

The government also requested that the court delete paragraph 11 in its entirety on the basis of a purported facial conflict.⁵ The court concluded that there was no facial conflict between paragraph 11 and the expedited removal statute. Nonetheless, it modified that paragraph of the injunction to clarify that as used therein, “transfer” meant transfer between detention facilities within the United States, not removal from the country pursuant to a final order of removal.⁶

Because the court declined to eliminate paragraphs 2 and 11 in their entirety, as the government had requested, it concluded that plaintiffs were entitled to limited discovery on expedited removal. It modified its earlier discovery order, however, because the modifications to the injunction that it made mooted the government's prior argument that the injunction placed excessive burdens on its ability to place Salvadorans in expedited removal.⁷

The government subsequently sought reconsideration of the court's order regarding discovery, asserting that no discovery regarding expedited removal was required given it no longer claimed the injunction burdened the expedited removal of Salvadorans from the country. The court denied this motion on October 26, 2006, noting that the government continued to maintain that the injunction should be dissolved in its entirety. The government also sought clarification of modified paragraph 2, noting that, since the inception of the injunction, it had construed the order to apply only between ports of entry, not at ports of entry. The government's explanation of its interpretation of the injunction flatly contradicted representations the government had made regarding its implementation of the injunction at prior hearings. Because the issue had not been fully briefed, the court declined to provide the clarification sought by the government and noted that it would address the issue at the time of the hearing on the motion to dissolve the injunction. ⁸

The parties then met and conferred regarding the form of the modified Orantes advisal to be provided to class members in expedited removal. The parties could not reach agreement and submitted separate briefs on the issue. On November 13, 2006, the court found the government's assertion that the court had relieved it of the obligation to provide any advisal to Salvadorans in expedited removal contrary to both its October 11 and October 26, 2006 orders....