## Facts

- Plaintiffs were a certified class of Salvadoran nationals eligible to apply for political asylum who had been or would be taken into INS custody.
- Plaintiffs alleged INS and Border Patrol practices prevented class members from exercising the statutory right to apply for asylum under 8 U.S.C. § 1158(a).
- Plaintiffs also alleged interference with the statutory right to obtain counsel at no government expense under 8 U.S.C. § 1362 and with due process protections.
- The district court found widespread practices that included coercing signatures on “voluntary departure” forms, providing misleading information about asylum, restricting access to attorneys and legal materials, and using detention conditions (including segregation) to pressure departures.
- After a preliminary injunction remained in effect for years, the district court entered a permanent nationwide injunction requiring written notice of rights, access to telephones, counsel, and legal materials, and limits on coercive voluntary-departure practices.
- The government appealed the permanent injunction.

## Issues

1. Whether the district court’s findings that immigration officials interfered with Salvadoran detainees’ rights to apply for asylum and to seek counsel at their own expense were clearly erroneous.
2. Whether the proven conduct violated 8 U.S.C. § 1158(a), 8 U.S.C. § 1362, and due process.
3. Whether a classwide, nationwide permanent injunction was an appropriate and properly tailored remedy.

## Decision

- The Ninth Circuit largely affirmed the permanent injunction.
- The court held the district court’s findings of widespread interference with asylum and counsel rights were not clearly erroneous under deferential appellate review.
- The court upheld injunctive provisions requiring notice of asylum and counsel rights, meaningful access to telephones and legal materials, and restrictions on coercive efforts to obtain voluntary-departure agreements.
- The court sustained the classwide and nationwide scope based on findings that the violations were systemic rather than isolated.

## Legal Principles

- Eligible noncitizens possess a statutory right to apply for asylum under 8 U.S.C. § 1158(a), and government conduct may not effectively block that application through misinformation or coercion.
- Noncitizens in immigration proceedings have a statutory right to be represented by counsel at no expense to the government under 8 U.S.C. § 1362; detention practices that substantially interfere with access to retained counsel can violate that right and due process.
- Equitable relief may impose affirmative procedural safeguards (such as written notice and access mechanisms) when necessary to remedy and prevent recurring violations of statutory and due process rights.
- On appeal, district-court factual findings supporting injunctive relief are reviewed for clear error; broad classwide relief is permissible when the record supports a pattern of unlawful practices affecting the class.

## Conclusion

The Ninth Circuit upheld, in substantial part, a permanent nationwide injunction requiring immigration officials to provide accurate notice and access needed to exercise asylum and counsel rights and prohibiting coercive tactics that pressured Salvadoran detainees into waiving those rights through “voluntary departure.”


Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990)