Orantes-Hernandez v. Thornburgh

Citation919 F.2d 549
Decision Date20 November 1990
Docket NumberNo. 88-6192,ORANTES-HERNANDEZ,88-6192
PartiesCrosby Wilfredo, et al., Plaintiffs-Appellees, * v. Richard THORNBURGH, ** et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Jay S. Bybee and Thomas M. Bondy, Appellate Staff, U.S. Dept. of Justice, Washington, D.C., for defendants-appellants.

Mark D. Rosenbaum, American Civil Liberties Union Foundation of Southern California Los Angeles, Cal., for plaintiffs-appellees.

Laini Millar-Melnick and Clara A. "Zazi" Pope, Amnesty Intern. USA, Los Angeles, Cal., for Amnesty Intern. USA as amicus curiae.

Deborah Anker, Cambridge, Mass., for National Immigration Project and American Immigration Lawyers Ass'n as amicus curiae.

Before SCHROEDER and BEEZER, Circuit Judges, and VUKASIN, *** District Judge.

SCHROEDER, Circuit Judge:

I. Introduction

This is an appeal from the entry of a permanent injunction in favor of the plaintiffs in a class action against United States government immigration officials. The plaintiff class is composed of Salvadoran nationals who are eligible to apply for political asylum, and who have been or will be taken into custody by the Immigration and Naturalization Service (INS). The district court's injunction, together with its extensive supporting findings of fact and conclusions of law, is reported in Orantes-Hernandez v. Meese, 685 F.Supp. 1488 (C.D.Cal.1988) (Orantes II ).

The complaint alleged that INS officials and Border Patrol Agents prevented members of the class from exercising their statutory right to apply for asylum under the provisions of 8 U.S.C. Sec. 1158(a) (1988). The complaint also alleged INS interference with plaintiffs' ability to obtain counsel, a right guaranteed by 8 U.S.C. Sec. 1362 and the due process clause. See United States v. Villa-Fabela, 882 F.2d 434, 438 (9th Cir.1989).

The injunction appealed from requires the INS to notify Salvadoran detainees both of their right to apply for political asylum and of their right to be represented by counsel, though not at government expense. Orantes II, 685 F.Supp. at 1512. It enjoins the INS from coercing Salvadoran detainees into signing voluntary departure agreements and from interfering with detainees' ability to obtain counsel at their own expense. Id. 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 preliminary injunction remained in effect for the six years preceding the entry of the permanent injunction in 1988.

Although the government has raised some legal questions on appeal, the main issue we must decide is factual in nature: whether certain findings of the district court regarding government interference with plaintiffs' rights to apply for asylum and to seek the assistance of counsel at non-government expense are clearly erroneous.

II. Legal Background

A. Asylum

Plaintiffs' action arises under the Refugee Act of 1980 1 in which Congress sought to bring United States refugee law into conformity with the 1967 United Nations Protocol Relating to the Status of Refugees (UN Protocol). 2 The UN Protocol, to which the United States acceded in 1968, 3 binds parties to comply with the substantive provisions of Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees (1951 Convention) 4 with respect to "refugees" as defined in Article 1.2 of the UN Protocol. 5 INS v. Stevic, 467 U.S. 407, 416, 104 S.Ct. 2489, 2494, 81 L.Ed.2d 321 (1984).

The Refugee Act was passed with the intention of codifying existing practices. It "place[d] into law what we do for refugees now by custom, and on an ad hoc basis...." S.Rep. No. 256, 96th Cong., 2d Sess. 1, reprinted in 1980 U.S.Code Cong. & Admin.News 141, 141. The Act expressly declared that its purpose was to enforce the "historic policy of the United States to respond to the urgent needs of the persons subject to persecution in their homelands," 6 and to provide "statutory meaning to our national commitment to human rights and humanitarian concerns." 7

Prior to passage of the Refugee Act, there was no specific statutory basis for United States asylum policy with respect to aliens already in this country. See INS v. Cardoza-Fonseca, 480 U.S. 421, 433, 107 S.Ct. 1207, 1214, 94 L.Ed.2d 434 (1987); Carvajal-Munoz v. INS, 743 F.2d 562, 564 n. 3 (7th Cir.1984). 8 Congress, therefore, established for the first time a provision in federal law specifically relating to requests for asylum. Carvajal-Munoz, 743 F.2d at 564. Section 201(b) of the Refugee Act created section 208 of the Immigration and Naturalization Act (INA) directing the Attorney General to

establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien's status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 101(a)(42)(A) of this title.

INA Sec. 208(a), 8 U.S.C. Sec. 1158(a) (1988); Cardoza-Fonseca, 480 U.S. at 427, 107 S.Ct. at 1211. Congressional intent was to create a "uniform procedure" for consideration of asylum claims which would include an opportunity for aliens to have asylum applications "considered outside a deportation and/or exclusion hearing setting." See S.Rep. No. 256, 96th Cong., 2d Sess. 1, 9, reprinted in 1980 U.S.Code Cong. & Admin.News 141, 149.

Congress added a new statutory definition of "refugee" to the INA in order to eliminate the geographical and ideological restrictions then applicable under the INA. See S.Rep. No. 256, 96th Cong., 2d Sess. 1, 4, reprinted in 1980 U.S.Code Cong. & Admin.News 141, 144. In formulating this definition, Congress noted its intent to bring the definition of "refugee" under United States immigration law into conformity with the UN Protocol. See id. The definition adopted by Congress is virtually identical to the definition of "refugee" in the 1951 Convention, see Cardoza-Fonseca, 480 U.S. at 437, 107 S.Ct. at 1216, and is an expanded version of the UN Protocol definition of "refugee", see Stevic, 467 U.S. at 422, 104 S.Ct. at 2496-97.

Section 101(a)(42)(A) of the INA defines a refugee as any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

8 U.S.C. Sec. 1101(a)(42)(A) (1988).

This litigation focuses on those provisions of the Refugee Act establishing the right of aliens to apply for asylum. It is undisputed that all aliens possess such a right under the Act. See 8 U.S.C. Sec. 1158(a) (1988); Jean v. Nelson, 727 F.2d 957, 982 (11th Cir.1984) (en banc) (section 1158 confers upon all aliens the right to apply for asylum), aff'd as modified, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985); Haitian Refugee Center v. Smith, 676 F.2d 1023, 1038-39 (5th Cir.1982) (same). One of the major concerns of the plaintiffs-appellees has been to ensure their ability to apply for asylum pursuant to the provisions of the Act. Much of this litigation has centered around plaintiffs' contentions that the INS was forcing them to apply for "voluntary departure" and preventing them from making an application for refugee status. 9 It is therefore necessary to have some understanding of "voluntary departure."

An alien who is in the United States illegally may be apprehended and taken into custody by INS officials. INA Sec. 242, 8 U.S.C. Sec. 1252(a) (1988). After an alien is apprehended, the alien is presented with a Notice and Request for Disposition Form I-274 which allows the alien to choose to depart voluntarily from the United States at the alien's own expense before deportation proceedings are instituted, or to request a deportation hearing. 10 United States v. Doe, 862 F.2d 776, 778 (9th Cir.1988). Section 242(b) of the INA vests the Attorney General with discretion to award voluntary departure in lieu of initiating deportation proceedings. 8 U.S.C. Sec. 1252(b) (1988); Contreras-Aragon v. INS, 852 F.2d 1088, 1094 (9th Cir.1988). This voluntary departure procedure has been called a "rough immigration equivalent of a guilty plea," allowing an alien knowingly to waive his right to a hearing in exchange for being able to depart voluntarily instead of under an order of deportation. Id. (citation omitted).

An advantage of voluntary departure over deportation is that it "permits the alien to select his or her own destination." Id. at 1090. In addition, it "facilitates the possibility of return to the United States" because an alien who leaves under a grant of voluntary departure, unlike a deported alien, does not need special permission to reenter the United States and does not face criminal penalties for failure to obtain that permission. Id.; see also INA Secs. 212(a)(17) and 276, 8 U.S.C. Secs. 1182(a)(17) and 1326 (1988).

There are disadvantages to voluntary departure as well. Aliens who voluntarily depart this country lose the right to apply for asylum before deportation proceedings are initiated. They also give up their right to a deportation hearing at which they may also apply for and have their asylum claim considered before an Immigration Judge. Not only do aliens who accept voluntary departure lose these rights, they may leave the United States...

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