Immigration Law

11-17-09
Lanzer
Eng

Orantes-Hernandez v. Thornburgh (1990) 919 F. 2d 549

Issue
This case involves the access to legal services and communication immigrant persons are granted in
deportation proceedings. A class of El Salvadorean immigrants to the United States alleged coercion
and inadequate access to due process right to basic legal communication prior to deportation. In
proceedings the said plaintiffs unknowingly, and possibly with language barrier at play, were both
denied rights to counsel and communication by telephone, or signed away rights to have such
communication before signing for a voluntary departure. ACLU and Amnesty International worked on
behalf of the detainee plaintiffs.

Rule
The reliability of a written and signed waiver of rights by alien detainees in the absence of adequate
translation is at issue. The failure to provide access to counsel in the circumstances of accused illegal
entry of the country, especially in light of the possibility that the detained persons might qualify for
legitimate political asylum, constitutes unfair and unconstitutional abrogation of rights in a coercive
atmosphere.
The courts found that persistent misconduct by the INS in violation of aliens' rights. It is important for
federal agents' misconduct to be controlled and censored by the federal courts.
A look at the factual content of the district court's analysis is the necessary standard by which the
appeals court must analyze the lower court's injunctive relief against such INS misconduct..
The Refugee Act of 1980 attempts to bring the USA into compliance with internationally recognized
norms for political asylum seekers, 1967 UN Protocol relating to the status of refugees, which binds
members to the 1951 Convention Relating to the Status of Refugees.
It is undisputed that all aliens have a right to apply for asylum. The INS in forcing signature of
“voluntary departure”violated international norms, especially applicable to persons from El Salvador
who were potentially fleeing turmoil at this time from the long El Salvadorean civil war..

Application
The understanding of the courts in regard to the significance of such communication betrays a lack of
comprehension of the significance of telephone communication. In the absence of any access to legal
information, especially in a language of comprehension, virtually the only way immigrant detainees
might gain access to knowledge of their legal rights might be through telephone conversation with
family or legal counsel. Similarly, any signed waiver of rights in absence of such information, must be
viewed as coerced and unbinding.

Conclusion
The U.S. Court of Appeals upheld the district courts findings regarding the INS refusal to allow
information and communication to immigrant and refugees, access to legal counsel, paralegal services,
telephones, adequate and translated immigration law materials. The INS (now replaced by the
Department of Homeland Security United States Citizenship and Immigration Services) felt that the
injunction was unnecessary. The injunction placed demands on detainees treatment, mandated against
solitary confinement over 24 hours in duration and sought to have better facilitation of legal
information to detainees eld at deportation facilities in Chula Vista California and elsewhere. The
political understanding of detainees as to their possible rights to asylum is essential to the fair
protection and processing of their status. Forcing the waiver of their rights to asylum and legal counsel
prior to adequate understanding of legal issues surrounding their case was found to be unfair. The
government in fighting the original 1982 injunction, sought to discredit the testimony of a psychologist
who verified the tendency of the El Salvadorean class herein represented to require adequate translation
of the legal rights and the misunderstanding which led to so-called “ voluntary” waiver of such rights
and “voluntary” exit of the country before exploration of political asylum options. The court of appeals
found the prior injunction to be still appropriate and needful and discounted the INS's contention that
the protective injunction was no longer useful.