Perez-Funez v. District Director, INS

Decision Date24 January 1984
Docket NumberNo. CV 81-1457-ER,CV 81-1932-CBM.,CV 81-1457-ER
Citation611 F. Supp. 990
PartiesJose Antonio PEREZ-FUNEZ, Plaintiff/Petitioner, v. DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, David Crosland, Defendants/Respondents. Yanira PENA, Claudia Pena, Plaintiffs, v. IMMIGRATION AND NATURALIZATION SERVICE, Michael Landon, Alan Nelson, Defendants.
CourtU.S. District Court — Central District of California

Gilbert Carrasco, Antonio Rodriguez, L.A. Center for Law & Justice, Ben DeHoyos, Legal Aid Foundation of L.A., Los Angeles, Cal., for plaintiff/petitioner.

Carolyn M. Reynolds, Asst. U.S. Atty., Los Angeles, Cal., for defendants.

Charles Wheeler, Colorado Rural Legal Serv. Inc., Denver, Colo., Mark Rosenbaum, ACLU Foundation of So. Calif., Los Angeles, Cal., Gilbert Lopez, Lawyers Guild-So.Calif.Chapter, Downey, Cal., for plaintiffs.

OPINION

RAFEEDIE, District Judge.

This action comes before this Court as a challenge, primarily on constitutional due process grounds, to the manner in which the Immigration and Naturalization Service ("INS") currently implements its voluntary departure procedure with respect to unaccompanied minor aliens in its custody. The ultimate relief sought by plaintiffs is a judgment declaring the INS' actions violative of the due process clause of the fifth amendment of the Constitution and applicable statutes, and an order enjoining the INS from implementing voluntary departure in the case of an unaccompanied minor until, inter alia, the INS has appointed an attorney for the minor if the minor is indigent, and the minor has been produced before an immigration judge.

By way of the motions considered herein, plaintiffs seek (1) to have this case certified as a class action under Rule 23 of the Federal Rules of Civil Procedure ("F.R.Civ. P."); and (2) preliminary injunctive relief incorporating substantially the same relief ultimately sought. Additionally, plaintiffs in a related action pending before this Court, Yanira Pena and Claudia Pena v. INS, CV 81-1932 (hereinafter the "Pena action"), seek to have that action consolidated with this action. For the following reasons, the Court finds that the two actions should be consolidated, that a nationwide class should be certified, and that a preliminary injunction should issue, although on terms other than those proposed by the parties.

I. THE PARTIES AND JURISDICTION

Plaintiff Jose Antonio Perez-Funez ("Perez-Funez"), a native and citizen of El Salvador, was sixteen years old at the time he was arrested by the INS, and was not accompanied by either a parent or legal guardian when taken into custody. Intervening plaintiffs, Jose De La Cruz and Suyapa Araceli Cruz, were aged twelve and thirteen respectively at the time of their arrest by the INS, are natives and citizens of El Salvador, and were not accompanied by either a parent or legal guardian when they were taken into custody. These plaintiffs seek to bring this action in their individual capacities and on behalf of all those similarly situated.

Defendant INS is an agency of the United States government with nationwide jurisdiction to implement the Immigration and Nationality Act (8 U.S.C. §§ 1101-1503). Defendant David Crosland is the District Director of the Los Angeles District Office of the INS.

Jurisdiction is properly founded on 28 U.S.C. §§ 1331, 1343(4), 1361, and 8 U.S.C. § 1329.

II. FACTUAL BACKGROUND

Plaintiff Perez-Funez was arrested and taken into custody by the INS near the Mexican border in California on March 22, 1981, on suspicion of having entered this country illegally. Perez-Funez alleges that he was not advised of his "Miranda" rights before being interrogated and that he was not advised in a meaningful manner of his rights to apply for bail and for political asylum.1 INS officials presented Perez-Funez a voluntary departure consent form some time during his detention. Although he claims he did not wish to return to El Salvador, Perez-Funez signed the consent form. He alleges that he was not informed that he had any legal alternatives, and that he was led to believe that his failure to consent to voluntary departure would result in a long jail detention and a return to El Salvador nonetheless.2

Pursuant to his consent to voluntary departure, Perez-Funez was taken to the Los Angeles International Airport for removal from the United States, where his removal was prevented by an attorney retained by Perez-Funez's aunt.3 Perez-Funez is now free on a $3,000 bond, set by defendant District Director David Crosland, pending a deportation hearing.

Intervening plaintiffs Jose and Suyapa Cruz recount a similar story. Arrested near Yuma, Arizona, on October 21, 1981, they allege that they were not advised by the INS of their "Miranda" rights and were presented with voluntary departure consent and waiver forms which they were told to sign without further explanation. The Cruz children, who had relatives lawfully living in the United States, claim that they signed the voluntary departure forms only because they did not understand that they were giving up their right to other legal options,4 or that those other options even existed.

III. THE CHALLENGED PROCEDURE —VOLUNTARY DEPARTURE

Voluntary departure is a procedure by which a qualifying alien may consent to summary removal from the United States, usually at the alien's expense. As a condition precedent to the implementation of the voluntary departure procedure, the alien must sign a waiver of his right to a deportation hearing and all other available relief. The advantage of voluntary departure to the alien is that he usually spends less time in custody (voluntary removal from the United States typically takes place within hours of signing the waiver), and voluntary departure does not have the prejudicial effect upon possible future lawful attempts to enter the United States as does a formal deportation order.

Plaintiffs are not challenging the existence or fairness of the voluntary departure program per se, rather they are alleging that the INS coerces unaccompanied minors into electing this option regardless of whether or not voluntary departure would be in those individuals' best interests.

IV. MOTION FOR CONSOLIDATION

Yanira and Claudia Pena seek to consolidate their action with the Perez-Funez action. Yanira Pena, aged thirteen, and Claudia Pena, aged 11, were arrested by the INS in San Ysidro, California, on April 18, 1981. They were not accompanied by either a parent or legal guardian at the time of their arrest. They are both natives and citizens of El Salvador.

Yanira and Claudia allege that they were not advised by the INS of their right to be represented by an attorney prior to their interrogation, or their right to apply for political asylum or other forms of relief from deportation. The children further claim that they were presented voluntary departure consent forms and told they "had to sign them",5 which they did because they believed that no alternatives existed. The record at present before the Court does not reveal exactly how their removal from the United States was prevented, but they were released from custody, each on a $4,000 bond. The Pena children subsequently filed a class action suit seeking relief identical to the Perez-Funez action.6

Rule 42(a) of the F.R.Civ.P. provides, inter alia, that a court may order the consolidation of actions pending before it when such actions involve a common question of law or fact, or when consolidation may tend to avoid unnecessary costs or delay. A court has broad discretion in deciding whether or not to grant a motion for consolidation, A.J. Industries, Inc. v. United States Dist. Court, 503 F.2d 384, 389 (9th Cir.1974), although, typically, consolidation is favored. Ikerd v. Lapworth, 435 F.2d 197, 204 (7th Cir.1970).

The Perez-Funez and Pena actions present common questions of both law and fact. They present the identical question of law requiring the determination of the nature and extent of the due process guarantees extended to unaccompanied minors faced with deportation. They additionally present the identical question of fact of the degree to which the INS coerces unaccompanied minors to consent to voluntary departure.7 Additionally, the Perez-Funez action has generated hundreds of pages of pleadings and testimony which are pertinent to the Pena action. To require the separate prosecution of these actions would result in the duplication of effort, unnecessary costs, and delays Rule 42(a) was designed to avoid. Accordingly, the Pena action will be consolidated with the Perez-Funez action.

V. MOTION FOR CLASS CERTIFICATION

Plaintiffs seek certification, pursuant to Rule 23 of the F.R.Civ.P., of the following class:

All persons who claim to be under eighteen years of age who are now, or in the future will be taken into, custody by agents of the Immigration and Naturalization Service who are not accompanied by either of their natural or lawful parents at the time of being taken into custody.

A party seeking class certification must meet all F.R.Civ.P. Rule 23(a) requirements for numerosity, commonality, typicality, and adequacy of representation, and at least one subsection (b) requirement.8 Additionally, there must be some necessity for class certification: where the relief, if granted to the plaintiff in his individual capacity only, would inure to the benefit of the entire proposed class, the class need not be certified. Bailey v. Patterson, 323 F.2d 201, 206 (5th Cir.1963).9

A. PLAINTIFFS HAVE MET THE REQUIREMENTS OF RULE 23(a)
1. The Class is so Numerous That Joinder is Impracticable.

There is no fixed number of class members which either compels or precludes the certification of a class. Classes consisting of 25 members have been held large enough to justify certification. E.g., Philadelphia Electric Co. v. Anaconda Am. Brass Co., 43 F.R.D. 452, 463 (E.D.Pa. 1968). Additionally, the exact size of the class need not be known so long as ...

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    ...of Somalis challenging legality of removal to Somalia in the absence of a functioning government); Perez-Funez v. District Director, I.N.S., 611 F. Supp. 990, 1005 (C.D. Cal. 1984) (certifying nationwide class of minors who are now or will be taken into custody by the INS for possible depor......
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  • A LACK OF UNIFORMITY, COMPOUNDED, IN IMMIGRATION LAW.
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