Orantes-Hernandez v. Holder

321 F. App'x 625
Court of Appeals for the Ninth Circuit·Decided April 6, 2009·No. Nos. 07-56509, 08-55231·Published

Opinion

MEMORANDUM **

The government appeals the district court’s denial of its motion to dissolve a permanent injunction, first entered in 1988 and subsequently modified, mandating that the Immigration and Naturalization Service1 (“INS”) advise the plaintiff class of Salvadorans of their rights, use specific procedures when detaining, processing and removing plaintiffs, and not coerce plaintiffs into signing voluntary departure agreements. The government also appeals the district court’s consolidation of the provisions of the permanent injunction into one order. We have jurisdiction under 28 U.S.C. § 1292 and we affirm.

[627] I. BACKGROUND

In 1982, plaintiffs challenged the practices and procedures that the INS used to detain, process, and remove Salvadoran nationals. District Court Judge David •Kenyon certified the Orantes class and entered a preliminary injunction. Orantes-Hernandez v. Smith (Orantes I), 541 F.Supp. 351, 354, 372, 385-88 (C.D.Cal.1982). Six years later, in 1988, after conducting an extensive trial from 1985 to 1987, the district court entered a permanent injunction mandating that INS use specific procedures and prohibiting INS from coercing Salvadorans into signing voluntary departure agreements. See Orantes-Hernandez v. Meese (Orantes II), 685 F.Supp. 1488, 1511-13 (C.D.Cal.1988). We affirmed the district court’s entry of the permanent injunction.2 Orantes-Hernandez v. Thornburgh (Orantes III), 919 F.2d 549, 551 (9th Cir.1990) (noting the district court’s “extensive” factual findings and conclusions of law supporting its grant of injunctive relief).

In November 2005, the government filed a motion to dissolve the injunction asserting that (1) the end of the civil war in El Salvador and the government’s adoption of various immigration procedures constituted significant changes in the factual circumstances; and (2) the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which provides for the expedited removal of inadmissible aliens, constituted a significant change in law. In October 2006, the district court, now Judge Margaret Morrow, addressed the latter argument by modifying paragraphs 2 and 11 of the injunction regarding expedited removal.

In July 2007, the district court denied the government’s motion to dissolve in an extensive and thorough decision, holding that the government failed to carry its burden to show significantly changed factual conditions warranting dissolution. Orantes-Hernandez v. Gonzales (Orantes IV), 504 F.Supp.2d 825, 874-76 (C.D.Cal.2007). The district court did, however, delete paragraph 10 regarding solitary confinement and paragraph 12 regarding group legal presentations at the Port Isabel Service Processing Center, finding isolated or no violations of these provisions. Id. at 875. The district court subsequently granted plaintiffs’ motion to consolidate the provisions of the permanent injunction into one order.

II. LEGAL STANDARDS

We review the district court’s denial of a motion to dissolve a permanent injunction for abuse of discretion. See Flores v. Arizona, 516 F.3d 1140, 1163 (9th Cir.2008). As previously explained,

[w]e may not reverse a district court’s exercise of its discretion unless we have a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon weighing the relevant factors. In this context, [a] district court abuses its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact. We emphasize that our task in this context is a limited one: We do not sit to retry the case....

Id. (alteration in original) (citations and internal quotation marks omitted). We do not consider the propriety of the underly[628] ing injunction and limit our review to the new material presented with the motion to dissolve. Sharp v. Weston, 233 F.3d 1166, 1169-70 (9th Cir.2000).

As the party seeking dissolution of the injunction, the government bears the initial burden of establishing that a significant change in facts or law warrants revision or dissolution of the injunction. See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383-84, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992); United States v. Asarco Inc., 430 F.3d 972, 979 (9th Cir.2005); Sharp, 233 F.3d at 1170. If the moving party meets its initial burden, we “consider whether the proposed modification is suitably tailored to the changed circumstance.” Rufo, 502 U.S. at 383, 112 S.Ct. 748. The government’s assertion that plaintiffs bear the burden of proving noncompliance is incorrect, and the government fails to cite any supporting authority.

III. ANALYSIS

A. Country Conditions

The government argues that dissolution is warranted because conditions in El Salvador have changed and improved since the end of the civil war. While this argument would prevail if country conditions were the only basis for the injunction, it fails because we affirmed the permanent injunction on a ground independent of country conditions — INS’s pattern of interference with class members’ rights to apply for asylum. See Orantes III, 919 F.2d at 556-57, 567-68.

B. Orantes Advisal

The injunction requires immigration authorities to notify Salvadoran detainees of their rights to apply for political asylum, to be represented by counsel, and to request a deportation hearing, which together became known as the “Orantes advisal.” After thoroughly reviewing the evidence submitted by both parties, the district court concluded that the government did not meet its burden of establishing changed facts regarding its practice of advising Salvadorans of their right to apply for asylum. Orantes IV, 504 F.Supp.2d at 860-61. Though the government did establish that it adopted new forms and regulations addressing the Or-antes advisal, see id. at 853-55, the district court’s findings that the government did not submit evidence that its forms are used in practice, see id. at 855-61, or that “aliens who sign the forms are actually given an opportunity to understand what it is they are signing,” id. at 860, are not clearly erroneous. The district court’s finding that the government’s compliance was mixed is also not clearly erroneous where the lack of enforcement proceedings against the government suggested compliance, but anecdotal evidence of the government’s failure to provide advisals went against finding compliance. See id. at 851.

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Related

Rufo v. Inmates of Suffolk County Jail
502 U.S. 367 (Supreme Court, 1992)
Flores Ex Rel. Flores v. Arizona
516 F.3d 1140 (Ninth Circuit, 2008)
Orantes-Hernandez v. Meese
685 F. Supp. 1488 (C.D. California, 1988)
Orantes-Hernandez v. Gonzales
504 F. Supp. 2d 825 (C.D. California, 2007)
Orantes-Hernandez v. Smith
541 F. Supp. 351 (C.D. California, 1982)
United States v. Asarco Inc.
430 F.3d 972 (Ninth Circuit, 2005)
Sharp v. Weston
233 F.3d 1166 (Ninth Circuit, 2000)