Perez-Funez v. District Director, INS

• Decision Date: 30 September 1985
• Docket Number: No. CV 81-1457,CV 81-1932.,CV 81-1457
• Citation: 619 F. Supp. 656
• Court: U.S. District Court — Central District of California
• Parties: Jose 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.

619 F. Supp. 656

Jose 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.

Nos. CV 81-1457, CV 81-1932.

United States District Court, C.D. California.

September 30, 1985.

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

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

MEMORANDUM OPINION

RAFEEDIE, District Judge.

I. INTRODUCTION

These consolidated cases come before the Court on plaintiffs' class action challenge, primarily on due process grounds, to the way in which the Immigration and Naturalization Service (INS) implements its voluntary departure procedure concerning unaccompanied minor aliens. The principal allegation is that INS policy and practice coerces class members into unknowingly and involuntarily selecting voluntary departure, thereby waiving their rights to a deportation hearing or any other form of relief.

The nationwide class seeks the following relief: (1) a judgment declaring the INS' practices violative of the due process clause of the Fifth Amendment to the Constitution; and (2) a permanent injunction prohibiting the INS from effectuating voluntary departure of class members without first providing certain procedural safeguards to ensure a valid waiver of rights.

II. THE PARTIES AND JURISDICTION

The class is defined as:

All persons who appear, are known, or claim to be under the age of eighteen years who are now or in the future taken into or held in custody in the United States by agents of the Immigration and Naturalization Service for possible deportation from the United States, and who are not accompanied by at least one of their natural or lawful parents at the time of being taken or received in custody within the United States.

The class representatives are natives and citizens of El Salvador who, at the time of their arrest by the INS, were minors unaccompanied by either a parent or legal guardian.

Defendant INS is a federal agency with nationwide jurisdiction to implement the Immigration and Nationality Act (8 U.S.C. §§ 1101-1503). The individual defendants are INS officials, including the District Director of the Los Angeles District Office of the INS.

Jurisdiction is proper under 28 U.S.C. §§ 1331, 1343(4), 1361, and 8 U.S.C. § 1329. Class treatment is appropriate under F.R. CIV.P. 23. See Perez-Funez v. District Director, INS, 611 F.Supp. 990 (C.D.Cal. 1984).

III. BACKGROUND

A. Factual

Plaintiff and class representative Perez-Funez was sixteen years old when the INS arrested him near the Mexican border in California on March 22, 1981. He claimed that the INS presented him with a voluntary departure consent form without advising him of his rights in a meaningful manner.

Although he claims that he did not want to return to El Salvador, he signed the form because: (1) an INS agent told him he might otherwise have a lengthy detention period and (2) an agent informed him that he could not afford bail.¹ He testified that he did not read or understand the voluntary departure form. He was at Los Angeles International Airport, bound for El Salvador, when an attorney intervened to keep him in this country.

The other class representatives have similar stories. Jose and Suyapa Cruz,² ages twelve and thirteen, respectively, at the time of their apprehension in Yuma, Arizona, claim the INS presented the voluntary departure forms without any explanation of rights and told them to sign. These children also signed but only because they did not understand they were waiving their rights to other possible relief.

Yanira and Claudia Pena³ were thirteen and eleven years old, respectively, when the INS took them into custody in San Ysidro, California. They too claim the INS gave them voluntary departure forms and told them to sign with no further explanation. They signed believing they had no other alternative.

Fourteen other class members testified at trial. Although their stories varied in some respects, all stated they signed the form unknowingly and involuntarily.

B. Procedural

Counsel originally filed the Perez-Funez case as a petition for habeas corpus, subsequently amending it into a class action seeking declaratory and injunctive relief. The Cruz children intervened as plaintiffs in October 1981.

The Penas filed a separate class action asking for identical relief. In January 1984 the Court consolidated the cases, certified a nationwide class, and granted certain preliminary injunctive relief. See Perez-Funez, 611 F.Supp. 990. The court tried the case in April 1985, ordered post-trial briefs, and heard closing arguments in August 1985.

IV. VOLUNTARY DEPARTURE — THE CHALLENGED PROCEDURE

Voluntary departure is a procedure by which a qualifying alien may consent to summary removal from the United States, normally at the alien's expense. For the INS to implement this procedure, the alien must sign the voluntary departure form (form I-274), waiving the right to a deportation hearing and all alternative forms of relief.

INS policy concerning voluntary departure of unaccompanied minors varies according to the age, residence, and place of apprehension of the child.⁴ For class members age fourteen to sixteen, the INS first gathers extensive information regarding the child, using form I-213. Plaintiffs' Exhibit 5. The INS then notifies the minor of the opportunity for voluntary departure by means of the voluntary departure form. Plaintiffs' Exhibit 3. At the bottom of this form, the child can sign and request either a deportation hearing or voluntary departure. Since January of 1984, INS agents have been giving the so-called "Perez-Funez Advisals" prior to presentation of the form. Plaintiffs' Exhibit 13. The Court ordered the giving of this notice as part of the preliminary injunction. See Perez-Funez v. District Director, INS, 611 F.Supp. 990 (C.D.Cal.1984).

The INS, however, has a different policy for class members age fourteen through seventeen who are arrested near the Mexican or Canadian borders and whose permanent residence is in one of those two countries. In such cases, the INS temporarily detains the child until a foreign consulate official arrives. If the minor has requested voluntary departure and the official confirms that the child can be returned, transportation arrangements are made. If such an official is not readily available, the INS will take the child to a Mexican or Canadian immigration officer.⁵

For class members under fourteen, the INS follows the same procedure as for fourteen to sixteen year-olds with certain significant additions. First, the INS looks for an adult relative accompanying the child to act as a consultant. If none is found, the agency contacts the appropriate foreign consulate in an effort to locate friends or relatives. If necessary, the INS will then contact the American Embassy in an effort to arrange a reunion with relatives or friends. When the INS cannot locate a friend or relative, it will allow the foreign consul to represent the child. Once a representative for the minor is found, the INS notifies him or her of the right to a deportation hearing and the opportunity for voluntary departure.⁶ An exception to this adult consultation requirement exists for minors apprehended near the border and whose permanent residence is in Mexico or Canada.⁷

Thus, the policy varies depending on the situation. Moreover, the INS retains the discretion to refuse voluntary departure whenever it believes this type of disposition is inappropriate. It exercises this discretion more frequently with class members under fourteen.

Although voluntary departure represents a waiver of rights, it is in many ways a privilege. See Tzantarmas v. United States, 402 F.2d 163, 165 n. 1 (9th Cir.1968). Its advantages to the alien are that it has no adverse impact upon future lawful attempts to enter the United States (as contrasted with a formal deportation order), and it normally reduces the alien's time in detention. The advantage to the INS is that voluntary departure allows for summary disposition of the case, averting the need for a deportation hearing.

Plaintiffs do not challenge the existence or fairness of voluntary departure per se. Rather, they assert that class members are coerced into choosing this option and waiving their rights, regardless of whether voluntary departure would be in the child's best interests.

V. LEGAL DISCUSSION

A. Introduction/Analytical Framework

The thrust of plaintiff's claim is that the INS' policy concerning voluntary departure deprives unaccompanied minor aliens of significant rights, thereby violating the due process guarantees of the Fifth Amendment to the United States Constitution.

Due process is a flexible concept, its requirements varying according to the time, place, and circumstances. Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748-49, 6 L.Ed.2d 1230 (1961). In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Supreme Court set forth a three-part balancing test for the resolution of procedural due process issues. First, the court must consider the private interest affected. Second, the court has to evaluate the risk of erroneous deprivations of rights under the challenged procedures and the probable value, if any, of additional or substitute procedural safeguards. Last, the court must balance the government's interest, which includes consideration of the function involved as well as the burdens that supplemental or substitute procedures would...