Orantes-Hernandez v. Gonzales United States District Court for the Central District of California August 21, 2006, Decided ; August 21, 2006, Filed; August 22, 2006, Docketed Case No. CV 82-01107 MMM (VBKx) Reporter: 2006 U.S. Dist. LEXIS 95387 Orantes-Hernandez, et al. v. Gonzales, et al. CIVIL MINUTES - GENERAL Prior History: Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 1990 U.S. App. LEXIS 20202 (9th Cir. Cal., 1990) Proceedings: Order Granting Plaintiffs' Request For Limited Discovery On Expedited Removal And Setting A Counsel: [*1] For Crosby Wilfredo Orantes-Hernandez, Telephonic Status Conference For August 31, 2006 Organizacion de Profesionales Y Tecnicos Salvadorenos, Casa El Salvador-Farabundo Marti, Salvadorean American Plaintiffs filed this action in 1982, challenging practices and Professional Association, Concillo Manzo, Central American procedures allegedly employed by the Immigration and Refugee Program, Marta Ester Paniaguavides, Jose Sanchez Naturalization Service ("INS") to detain, process and remove Flores, Dora Alicia Ayala de Castillo, Adelso Salome Flores, Salvadoran nationals who had entered the United States. Uvaldo Aguilar, Dora Elia Estrada, Juan Francisco Perez- Plaintiffs sued on their own behalf and on behalf of a certified Cruz, Ana Estela Guevarra-Flores, Maria Elena Molina, class of "all citizens and nationals of El Salvador eligible to Candido Carcamo Marroquin, Deia Elizabeth Garcia- apply for political asylum … who have been or will be taken Quintanilla, Marta Osorio, Gloria De Flores, Jose Eduardo into custody … by agents of the [INS]; or … subsequent to Rubio, Jose Francisco Marroquin-Salvador, Refugiado Uno- June 2, 1980, requested or will in the future request, political Cuatro, Plaintiffs: Karen C Tumlin, LEAD ATTORNEY, asylum in the United States whose claims have not yet been National Immigration Law Center, Los Angeles, CA US; presented [*3] or adjudicated." Orantes-Hernandez v. Smith, Linton Joaquin, LEAD ATTORNEY, National Immigration 541 F. Supp. 351, 354-55 (C.D. Cal. 1982). Law Center, Los Angeles, CA; Mark D Rosenbaum, LEAD ATTORNEY, ACLU Foundation of Southern California, Los On April 29, 1988, Judge David Kenyon entered a permanent Angeles, CA; Ranjana Natarajan, LEAD ATTORNEY, injunction that mandated INS use of specific procedures when ACLU Foundation of Southern California, Los Angeles, CA. detaining, processing and removing Salvadoran immigrants. See Orantes-Hernandez v. Meese, 685 F. Supp. 1488, 1511- For Alberto R Gonzales, Attorney General of the United 13 (C.D. Cal. 1988), aff'd., 919 F.2d 549 (9th Cir. 1990). On States, William French Smith, Attorney General of the United July 2, 1991, Judge Kenyon issued a modified permanent States; Immigration and Naturalization Service, Alexander injunction, which added four conditions that applied solely to Haig, Secretary of the United States Department of State, the Port Isabel Service Processing Center in Port Isabel, Texas Defendants: [*2] Frank Michael Travieso, LEAD (" Orantes injunction"). On September 28, 2004, the court ATTORNEY, AUSA - Office of US Attorney, Civil Division, entered a stipulated order clarifying the terms of the Los Angeles, CA; John E Nordin, II, LEAD ATTORNEY, injunction to eliminate the possibility that the Office of AUSA - Office of US Attorney, Civil Division, Los Angeles, Refugee Settlement, an agency responsible for the care of CA; Victor M Lawrence, LEAD ATTORNEY, Office of U.S. unaccompanied alien children who are in federal custody due Immigration Litigation, Civil Division U.S. Department of to their immigration status, could be held in violation of the Justice, Washington, DC. Orantes injunction. Judges: Present: The Honorable MARGARET M. On November 28, 2005, defendants filed a motion to dissolve MORROW. the permanent injunction. 1 On January 3, 2005, after holding two status conferences in which defendants Opinion 1 The Orantes injunction enjoins "defendants, their agents and successors in office." See Orantes-Hernandez, 685 F. Supp. at 1511. As a result, defendants concede that the injunction binds the Department of Homeland Security ("DHS") as successor to the INS, and its sub- agencies, Immigration and Customs Enforcement ("ICE") and Customs and Border Protection ("CBP"). It is these entities that have moved to dissolve the injunction. 2006 U.S. Dist. LEXIS 95387, *5 Page 2 of 7 raised various concerns regarding the [*4] court's jurisdiction implementation of the expedited removal program because to decide matters pertaining to the expedited removal the court lacks jurisdiction to consider challenges to the procedures enacted as part of the Illegal Immigration Reform expedited removal statute. In their written filings, defendants and Immigrant Responsibility Act of 1996 ("IIRIRA"), the have relied primarily on 8 U.S.C. §§ 1252(a)(2)(A) and court on January 3, 2005, directed each party to file a brief 1252(e)(3)(A). regarding its jurisdiction to address such matters. The court ordered that discovery regarding defendants' expedited A. Sections 1252(a)(2)(A) And 1252(e)(3)(A) removal procedures be stayed pending a decision on the jurisdictional question. On May 8, 2006, the court held a Section 1252(a)(2)(A) strips the courts, inter alia, of hearing on the jurisdictional issue; at the conclusion of that jurisdiction to review individual removal decisions under § hearing, it directed plaintiffs to submit a brief describing the 1225(b)(1), claims or causes of action arising from such discovery they sought regarding expedited removal. Plaintiffs decisions, and "procedures and policies adopted by the filed this brief on May 12, 2006. Defendants filed a response Attorney General" to implement expedited [*7] removal. on May 17, 2006, and plaintiffs replied on May 31, 2006. Section 1252(e) restores a limited range of jurisdiction to the Based on the parties' arguments at the May 8 hearing, and district court for the District of Columbia. Of particular their briefs regarding discovery, the court finds that limited relevance here is § 1252(e)(3)(A), which provides: discovery regarding expedited removal is appropriate for the reasons discussed herein. "Judicial review of determinations under section 1225(b) of this title [authorizing expedited removal] [*5] DISCUSSION and its implementation is available in an action instituted in the United States District Court for the A party seeking modification or dissolution of an injunction District of Columbia, but shall be limited to bears the burden of establishing that a significant change in determinations of -- facts or law warrants revision or dissolution of the injunction. (i) whether such section, or any regulation issued to Sharp v.Weston, 233 F.3d 1166, 1170 (9th Cir. 2000); implement such section, is constitutional; or Bellevue Manor Assoc. v. United States, 165 F.3d 1249, 1255 (9th Cir. 1999); see also FED.R.Civ.PROC. 60(b)(5) (a court (ii) whether such a regulation, or a written policy may modify or dissolve an injunction if "it is no longer directive, written policy guideline, or written equitable that the judgment should have prospective procedure issued by or under the authority of the application"); Rufov. Inmates of Suffolk County Jail, 502 U.S. Attorney General to implement such section, is not 367, 383, 112 S. Ct. 748, 116 L. Ed. 2d 867 (1992). consistent with applicable provisions of this subchapter or is otherwise in violation of law." 8 Defendants advance multiple arguments in support of their U.S.C. § 1252(e)(3)(A). Section 1252(e)(3)(B) motion to dissolve the Orantes injunction: (1) there has been a requires that any action under § 1252(e)(3)(A) "be significant change in the factual circumstances that led to filed no later than 60 days after the date the issuance of the injunction -- i.e., the end of the civil war and challenged section, regulation, directive, guideline, human rights abuses in El Salvador and the adoption of a or procedure described in clause (i) or (ii) of range of procedures by U.S. immigration authorities that subparagraph (A) is first implemented." [*8] 8 ensure aliens are advised of their right to apply for asylum U.S.C. § 1252(e)(3)(B). and are not coerced into waiving that right; and (2) there has been an intervening change in the law -- i.e., the Defendants contend that these provisions deprive the court of enactment [*6] of IIRIRA, which provides for expedited jurisdiction to hear any challenge plaintiffs may make to the removal of inadmissible aliens. As respects the latter government's expedited removal procedures. The question is argument, defendants contend that the injunction conflicts whether the fact that plaintiffs oppose defendants' motion to with the statute and regulations governing expedited removal, dissolve the Orantes injunction on grounds that it conflicts and also that the injunction makes it burdensome for with the expedited removal program, or burdens immigration authorities to place Salvadorans in expedited implementation of that program, constitutes a challenge of the removal. type referenced in § 1252(a)(2)(A) or § 1252(e)(3). The court concludes that it does not. Although asserting that the passage of IIRIRA and its expedited removal provisions requires dissolution of the The only questions before the court respecting expedited injunction, defendants have steadfastly maintained that removal are whether the Orantes injunction mandates plaintiffs are entitled to no discovery regarding the procedures that govern expedited removal, or the 2006 U.S. Dist. LEXIS 95387, *8 Page 3 of