Orantes-Hernandez v. Smith

Citation541 F. Supp. 351
Decision Date02 June 1982
Docket NumberNo. CV 82-1107-Kn.,CV 82-1107-Kn.
PartiesCrosby Wilfredo ORANTES-HERNANDEZ; Organizacion De Profesionales 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. William French SMITH, Attorney General of the United States; Immigration and Naturalization Service; Alexander Haig, Secretary of the United States Department of State; Edward O'Connor, Western Regional Commissioner, Immigration and Naturalization Service, Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Carlos Holguin, Timothy Barker, Peter A. Schey, Thomas H. Edwards, Janette Stokely, Dan Marmalefsky, Hufstedler, Miller, Carlson & Beardsley, Linton Joaquin, Los Angeles, Cal., Marc Van Der Hout, Mariam Hayward, Redwood City, Cal., for plaintiffs.

Lauri Filppu, Eugene M. Thirolf, Jr., U. S. Dept. of Justice, Washington, D. C., for defendants.

KENYON, District Judge.

This action presents a nationwide challenge to certain practices and procedures allegedly employed by the Immigration and Naturalization Service ("INS") in the detention, processing, and removal of Salvadoran nationals who have entered the United States. Plaintiffs, on behalf of themselves and a proposed class numbering in the thousands, claim that they fled political persecution, torture and death in El Salvador in the hope of finding refuge in the United States. Instead, the record before the Court indicates that they have been met with a summary removal process, usually carried out by the INS with little or no regard for the procedural or substantive rights of aliens under United States immigration law.

By way of these motions plaintiffs sought provisional class certification and a preliminary injunction restraining the INS from, inter alia, (1) using coercive tactics to cause members of the class to accept "voluntary departure" to El Salvador; (2) failing to advise class members of their right to counsel, their right to apply for political asylum, and their right to a hearing prior to deportation; (3) denying detained class members the effective assistance of counsel by refusing to recognize counsel's authority to revoke voluntary departure agreements and by limiting class members' access to counsel and legal information; (4) placing detained class members into solitary confinement without first providing a hearing on the propriety of such punishment; and (5) commencing deportation hearings against any class member who requests political asylum prior to the issuance of the order to show cause which institutes the deportation process, until such person receives an adjudication of the asylum application from an INS district director.

On April 30, 1982, the Court granted the motion for provisional class certification and issued a preliminary injunction in substantially the form requested by plaintiffs.1 Because of the need to act quickly in order to stop the summary removal of class members from the United States on a daily basis, the factual findings in the April 30, 1982 Orders were necessarily limited. Having considered the briefs, affidavits, and documentation submitted by both sides, and the argument of counsel at the April 9 and 16, 1982 hearings on this matter, the Court now finds the facts and states the conclusions of law as set forth herein.2

I. PARTIES

The 19 named individual plaintiffs are citizens and natives of El Salvador residing within the United States who have been taken into custody by the INS and subjected to the practices and procedures described herein.3 They bring suit on their own behalf and on behalf 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; or (b) 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, 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.

Defendant William French Smith is the duly appointed Attorney General of the United States and is charged with the administration and enforcement of all laws relating to the immigration, deportation, and naturalization of aliens. See 8 U.S.C. ? 1103(a). All INS agents and employees act pursuant to a series of delegations of authority vested in the Attorney General.

Defendant Immigration and Naturalization Service 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 and policies pursuant thereto. Defendant Edward O'Connor is the Western Regional Commissioner of the INS. He is subject to the supervision and direction of the Commissioner of the INS and is sued in his official capacity. He is responsible for directing INS operations in the Western Region, which includes the states of California, Arizona, Nevada, and Hawaii. Defendant O'Connor resides in the Central District of California.

At least some of the policies and practices complained of by the plaintiffs in each of Counts 1, 2, 3, 4, 6, and 8 have occurred in the Central District of California. No real property is involved in this action, nor do plaintiffs seek monetary damages.

II. CONDITIONS IN EL SALVADOR

In requesting the Court to enjoin certain practices and procedures of the INS, plaintiffs claim that they face irreparable injury in the form of removal to El Salvador if relief is denied. Plaintiffs have submitted voluminous evidence of the violent and dangerous conditions which permeate daily life in El Salvador in support of this claim.4

Several plaintiffs and proposed class members have related the brutal experiences which motivated their flight to the United States. For example, plaintiff Crosby Wilfredo Orantes-Hernandez gives the following account:

On Mother's Day, May 10, 1978, at about 11:30 p. m., about 25 government security soldiers of the National Guard arrived at our house....
Five of the National Guard came up to the door and knocked. When no one answered they kicked the door down and entered. They asked my mother where the men were. My uncles, my brothers and I were asleep in the back but my mother refused to answer.
When my mother refused to answer their questions, they grabbed her by the hair and threw her against the wall, injuring her forehead. She fell to the floor and one of the guards stepped on her neck with his boot and hit her in the face with his rifle.... My sister then told the soldier that only my uncles and my brothers were in the house.
My uncles, my brothers and I were told to come out. The soldiers tied my uncles' thumbs together with cords that cut into their fingers. They began to beat them in the face with rifles. Both of my uncles were bleeding profusely. The guards also severely beat me using their fists and rifles.
When the National Guard left our house, they took my uncles... Two days later, their bodies turned up. Their heads were mutilated and their sexual organs cut off. Also their eyes had been gouged out.

Plaintiffs' Exhibit 13.

Another plaintiff5 recounts the following story:

One night a group of armed men came to my grandmother's house in Santa Ana, El Salvador. They were with the Esquadron de la Muerte?€”a paramilitary death squad that is responsible for the massacre of hundreds of people in El Salvador. Myself and seven friends were ordered into the front of my grandmother's house. Moments later, the armed men began shooting at us. Five of my friends were killed; one of the five was a pregnant woman?€”she was seventeen years old. I managed to escape death by throwing myself on the ground and acting as though I were dead; I was only wounded in the back by one of the death squad bullets.... The day after the attack armed men again came to my grandmother's house looking for me. They told a friend that was there to call them if they saw me. I decided to leave the country.

The evidence before the Court contains numerous accounts of a similar nature. To a great degree, these descriptions of unexplained disappearances, random violence, and retaliatory torture are corroborated by the findings of the President and the Department of State reflected in the evidence submitted by the defendants. The following excerpts from a report on El Salvador prepared by the State Department and submitted to Congress are illustrative:

Statistics on numbers of people killed as a result of El Salvador's current political violence are difficult to obtain and are unreliable. Available figures are useful principally to set trend lines. Two Salvadoran institutions, the Legal Aid Office which identifies itself with the Archbishopric, and the staff of the Central American University (UCA), maintain statistics on the number of persons murdered. Both institutions are sympathetic to anti-government forces. Their statistics often have a monthly variance numbering in the hundreds. The United States Embassy in San Salvador maintains its own count of death attributable to political violence, gleaned primarily from press reports. According to the embassy's count, there were 6,116 violent deaths during the twelve-month period ending January 1, 1982. The embassy's
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
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    ...of procedural irregularities in the asylum proceeding would be reviewable in the appropriate district court"); Orantes-Hernandez v. Smith, 541 F.Supp. 351, 364 (C.D.Cal.1982). The HRC panel therefore emphasized the importance of distinguishing between an individual challenge on a preliminar......
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    ...at 1511-1513. This injunction makes permanent a preliminary injunction imposing similar requirements. See Orantes-Hernandez v. Smith, 541 F.Supp. 351 (C.D.Cal.1982) (Orantes I ). The preliminary injunction, entered in 1982, was not stayed and the government did not pursue an appeal. The pre......
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    .... 2. Sarah Sherman-Stokes, Reparations for Central American Refugees, 96 DENVER L. REV. 585, 590 (2019). 3. Orantes-Hernandez v. Smith, 541 F. Supp. 351, 374 (C.D. Cal. 1982) (issuing a preliminary injunction and f‌inding that the then-Immigration and Naturalization Service (“INS”) had viol......

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