Orantes-Hernandez v. Meese
| Decision Date | 29 April 1988 |
| Docket Number | No. CV 82-1107KN.,CV 82-1107KN. |
| Citation | 685 F. Supp. 1488 |
| Court | U.S. District Court — Central District of California |
| Parties | Crosby Wilfredo ORANTES-HERNANDEZ, Organizacion De Professionales Y Tecnicos Salvadorenos, Casa El Salvador-Farabundo Marti; Salvadoran American Professional Association; Concilio Manzo; Central American Refugee Program; El Rescate; Marta Ester Paniagua-Vides; Jose Sanchez Flores; Dora Alicia Ayala De Castillo; Adelso Salome Flores; Uvaldo Aguilar; Dora Elia Estrada; Juan Francisco Perez-Cruz; Jose Adilman Barahona; Ana Estela Guevarra-Flores; Maria Elena Molina; Candido Carcamo Marroquin; Delia Elizabeth Garcia-Quintanilla; Marta Osorio; Gloria De Flores; Jose Eduardo Rubio; Jose Francisco Marroquin-Salvador; Hugo Rugamas; Refugiados Uno through Cuatro, inclusive, Plaintiffs, v. Edwin MEESE III, Attorney General of the United States; Immigration and Naturalization Service; Harold Ezell, Western Regional Commissioner, Immigration and Naturalization Service, Defendants. |
COPYRIGHT MATERIAL OMITTED
Linton Joaquin, Central American Refugee Center, Charles Wheeler, Nat. Center for Immigrants' Rights, Sandra Pettit, Sheila K. Neville, Immigrants' Rights Office, Legal Aid Foundation of Los Angeles, Mark Rosenbaum, ACLU Foundation of Southern California, Los Angeles, Cal., Paula Pearlman, San Fernando Valley Neighborhood Legal Services, Pacoima, Cal., Vera Weisz, Thomas Edwards, Jeannette E. Stokely, Dan Marmalefsky, Hufstedler, Miller, Carlson & Beardsley, Los Angeles, Cal., Mark Van Der Hout, Miriam Hayward, Nat. Lawyers Guild, Redwood City, Cal., for plaintiffs.
John R. Bolton, Asst. Atty. Gen., Allen W. Hausman, Richard M. Evans, Madelyn E. Johnson, Civil Div., U.S. Dept. of Justice, Washington, D.C., Robert C. Bonner, U.S. Atty., Frederick M. Brosio, Jr., Asst. U.S. Atty., Chief, Civil Div., Ian Fan, Asst. U.S. Atty., Los Angeles, Cal., for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW; PERMANENT INJUNCTION
The Court, having received and considered the evidence presented, having heard the testimony of witnesses, and having heard the arguments of counsel on August 31, 1987, hereby makes the following Findings of Fact and Conclusions of Law:
I. FINDINGS OF FACT
1. The named individual plaintiffs are citizens and natives of El Salvador residing within the United States who have been taken into custody by the Immigration and Naturalization Service (hereinafter "INS" or "Service"). Plaintiffs brought suit on their own behalf and on behalf of all citizens and nationals of El Salvador who have been or will be taken into custody pursuant to 8 U.S.C. § 1357.
2. With respect to Count VIII of the complaint, plaintiffs also brought suit on behalf of all Salvadorans who, subsequent to June 2, 1980, requested, or will in the future request, political asylum within the United States prior to being served with an Order to Show Cause pursuant to 8 C.F.R. § 242.1, or whose applications for asylum have not or will not be presented to a district director for adjudication in accordance with 8 C.F.R. § 208.8. Because of the pendency of litigation which specifically addresses the issues raised in Count VIII, plaintiffs have presented no evidence on this subject. Hunter v. INS, CV 85-4425 JGD (C.D.Cal.8/85). Plaintiffs are therefore deemed to have abandoned this claim.
3. On April 30, 1982, this Court provisionally certified plaintiffs as the representatives of a class consisting of "all citizens and nationals of El Salvador eligible to apply for political asylum under 8 U.S.C. § 1158 who, (a) have been or will be taken into custody pursuant to 8 U.S.C. § 1357 by agents of the Immigration and Naturalization Service." The class originally certified included a subclass reflecting the claims presented in Count VIII. As this claim has been abandoned, the class certification is modified accordingly.
4. The class in this case is identifiable and includes the plaintiff class representatives. The class is so numerous that joinder is impractical and class certification avoids the need for a multiplicity of actions. The claims of the class representatives and other class members present common questions of law and fact which predominate over any factual questions unique to each individual. The claims of the named plaintiffs are typical of the claims of the class. The named plaintiffs fairly and adequately represent the interests of the class. No notice to the class is required. Orantes-Hernandez v. Smith, 541 F.Supp. 351, 370-72 (C.D.Cal.1982).
5. At the time the lawsuit was filed, defendant William French Smith was the duly appointed Attorney General of the United States. He has subsequently been replaced by Edwin R. Meese III, who accordingly is substituted as defendant in his official capacity. The Attorney General is charged with the administration and enforcement of all laws relating to the immigration, deportation, and naturalization of aliens. 8 U.S.C. § 1103(a). All INS agents, officers and employees act pursuant to a series of delegations of authority vested in the Attorney General.
6. Defendant INS is a federal agency within the United States Department of Justice and is responsible for enforcing the immigration and naturalization laws and for promulgating regulations pursuant thereto.
7. At the time the lawsuit was filed, defendant Edward O'Connor was the duly appointed Western Regional Commissioner of the INS. He has subsequently been replaced by Harold Ezell, who accordingly is substituted as defendant in his official capacity. The Western Regional Commissioner is subject to the supervision and direction of the Commissioner of the INS. He is responsible for directing INS operations in the Western Region, which includes the states of California, Arizona, Nevada, and Hawaii. Defendant Ezell resides in the Central District of California.
8. A substantial number of Salvadorans who flee El Salvador and enter the United States possess good faith claims to asylum pursuant to United States asylum laws and the Refugee Act of 1980.
9. A substantial number of Salvadorans who flee El Salvador possess a well-founded fear of persecution pursuant to United States asylum laws and the Refugee Act of 1980.
10. People from a wide cross-section of Salvadoran society suffer human rights abuses. Trade unionists, members of farmworker unions and cooperatives, religious workers, human rights activists, refugee relief workers, members of student or political organizations, people suspected of opposition to the government or of being sympathetic to the opposition, and family members and associates of those involved have been particularly subject to abuses.
11. The form of the persecution includes the following: arbitrary arrest, short term detention, torture including use of electric shock, capucha, beatings, rape, "disappearance", extra-judicial executions, abductions, threats against family members, intimidation, forced ingestion of food, false imprisonment, mock-executions, sleep deprivation, mass killings, and forced relocations.
12. The persecutors are primarily Salvadoran military and security forces which include the Policia de Hacienda (Treasury Police), Policia Nacional (National Police), Guardia Nacional (National Guard), as well as the paramilitary Brigadas de Defensa Civil (Civil Defense Patrols), and the patrullas contonales (canton patrols). Guerilla forces have been implicated in extra-judicial executions and abductions.
13. Decree 50 of February 1984 suspends constitutional protections and governs proceedings against those accused of crimes against the state. Decree 50 contains provisions, including a 15-day period of incommunicado detention, which facilitate human rights abuses such as arbitrary arrest and interrogation, threats against the detainee and family members, and "disappearance" and torture. Political prisoners are kept in detention without trial for periods of up to five years, and without the protection of due process rights.
14. The Salvadoran judicial system completely fails to investigate and punish violations of human rights. There has never been a successful prosecution and conviction of any member of the Salvadoran security forces for political violence and human rights abuses against civilians, except where the victims have included U.S. citizens and only then after extensive involvement and intervention by the United States government. United States Justice and State Department officials concur in this judgment.
15. The judicial system fails to function despite asserted government efforts including those of President Duarte and the United States Justice and State Departments. It is not foreseeable that the judicial system will function to redress acts of political violence and human rights abuses against Salvadoran civilians.
16. Major human rights organizations including Amnesty International, as well as the United Nations and the Organization of American States have repeatedly condemned human rights abuses occurring systematically in El Salvador. El Salvador is one of five countries where the United Nations has established a procedure for particularized reporting on human rights violations.
17. A substantial number of Salvadorans currently and since 1979 flee persecution based on the expression of political opinion through participation in union activities and organizational membership. Many flee because of persecution resulting from their activities on behalf of the poor or displaced through their work with humanitarian or religious organizations.
18. Salvadorans flee to the United States because of persecution by the government based on a political opinion which the government and/or security forces impute to them. Many Salvadorans are persecuted because the government considers them subversive. Many of those Salvadorans who attempt to remain neutral in the civil conflict are persecuted by...
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