When laws and policies are unjust, we work for systemic change. During the last decade, we have positively affected many important cases with implications for national immigration laws. Our impact litigation work has helped fight racial profiling by border patrol officials in the Olympic Peninsula, secured the right to an attorney for mentally ill immigrants facing deportation, and ensured that immigrants are considered for conditional parole from detention when they qualify.
To respond to the growth of immigration appeals at the Federal and Ninth District Courts, we increased our focus in this area by establishing a new legal unit in 2005. At any one time, the Impact Litigation Unit has several cases pending before the federal courts. NWIRP was invited by the Ninth Circuit Court of Appeals to speak at a roundtable discussion on how to deal with the Circuit's large volume of immigration cases.
Federal District Court Grants Class Certification and Declaratory Relief for Class of Detained Immigrants Unlawfully Subjected to Mandatory Detention.
NWIRP serves as lead counsel in Khoury v. Asher, 3 F.Supp.3d 877 (W.D.Wash. 2014), a class action challenge to the government’s policy of subjecting detained immigrants to mandatory detention even though they were not taken into custody “when released” from criminal custody (as required by the governing statute INA § 236(c)). Instead, DHS was asserting that even individuals who had been reintegrated with their families and communities for several years continue to fall under “mandatory detention,” a scheme that denied them the opportunity to have a bond hearing where the Immigration Judge would determine if they presented a flight risk or threat to the community.
On March 11, 2014, Judge Jones for the Western District of Washington granted class certification for all detainees at the Northwest Detention Center, providing declaratory relief that the government’s detention practice was unlawful. The district court ruled that DHS did not have the authority to apply “mandatory detention” under INA § 236(c) unless DHS took the noncitizen immediately into custody upon his release from criminal custody for one of the proscribed criminal offenses.
The government appealed the ruling to the Ninth Circuit. The Court of Appeals heard arguments on July 8, 2015. A final decision is expected shortly.
NWIRP Prevails in Class Action to Obtain Release for Detained Immigrants who Can Not Afford to Pay a Monetary Bond.
NWIRP and the ACLU successfully filed the first ever case in federal court to challenge a widespread practice in the immigration courts of refusing to order persons released who are unable to pay a monetary bond. The plaintiff in this case was a detained immigrant seeking to apply for political asylum after fleeing from horrific abuse in her home country. She was kept locked up for months because she could not pay the $3000 bond set in her case. Unfortunately, this was not a unique situation as Immigration Judges across the country have failed to consider whether detained immigrants in removal proceedings individuals should be released on conditional parole, as opposed to ordering their release only upon payment of a substantial monetary bond.
In October of 2014, NWIRP and the ACLU filed the complaint along with a motion for class certification to seek relief not just for Ms. Rivera but for all others unable to pay a bond who are detained in removal proceedings. On Apr. 13, 2015, the district court certified the class and granted injunctive and declaratory relief on behalf of the class. See Rivera v. Holder, 307 F.R.D. 539 (W.D. Wash. 2015). Judge Lasnik ruled that the plain language of INA § 236(a) permits Immigration Judges to order release on conditional parole, not just on bond. Pursuant to his ruling, Immigration Judges in Washington State must now consider whether to grant conditional parole instead of imposing a monetary bond in every bond hearing. After Rivera was filed, the Immigration Court certified the case of another NWIRP client to the BIA. DHS thereafter conceded in its brief that Immigration Judges have “authority under section INA § 236(a) to release a respondent on her own recognizance and pursuant to conditional parole, as opposed to settling a monetary bond with a minimum amount of $1,500.” In re V-G, DHS Br. at 3 (BIA, filed Jan. 21, 2015). While the class action only covers detained immigrants in Washington State, detained immigrants around the country should be able to point to the court’s order as well as the concession made by DHS in order to request release that the immigration court consider their request to be released on recognizance instead of being forced to post a monetary bond.
A practice advisory on Rivera is available here
How Can a Three-Year Old Represent Himself In Court? An update on our class action lawsuit calling on the government to provide legal representation to all children facing deportation
Each week, in immigration courts across the United States, hundreds of children, some as young as just a few months old, come before immigration judges and are called upon to defend themselves against deportation. Among them is Arturo,* a three year old who arrived at the United States border in April 2014 because family members feared for his life in El Salvador. Although he is only a toddler, the government has put him (named in our lawsuit as “A.E.G.E.”) into deportation proceedings on his own. He has no attorney to help him explain to the court why he should not be deported.
Arturo’s case is not unusual. According to the Transactional Records Access Clearinghouse, less than a third of children with immigration cases pending in June 2014 had legal representation.
On Tuesday, the child plaintiffs in J.E.F.M. v. Holder, a nationwide class action seeking to ensure that all children in immigration court have legal representation, asked the federal court presiding over the case to add Arturo and two other children to the lawsuit. In J.E.F.M., the plaintiffs are challenging the government’s long-standing failure to provide counsel to children in immigration court and asking the court to order the government to appoint legal representation for unrepresented children facing deportation.
The government has moved to dismiss the suit, arguing that none of the children has been harmed by the lack of representation. But the new plaintiffs and countless other children across the country are being deprived a fair immigration court hearing and are suffering real harm from the government’s failure to provide them legal representation:
• Arturo was conceived when his mother was raped when she was only 15 years old. After she faced continuing threats from her rapist, Arturo’s mother fled El Salvador and left her son in the care of his aunt. However, because his family continued to fear for his safety in El Salvador, Arturo was brought to the border in Texas, taken into custody by the government, and put into deportation proceedings. He is now in the care of his mother in Los Angeles, who is a lawful permanent resident. Without legal assistance, Arturo has no way to explain to the immigration court whether he may be eligible for protection in the United States.
• G.J.C.P. is a 14-year-old girl from El Salvador who fled gang harassment after a friend who refused gang members’ advances was killed. When she arrived in the United States, she was put into deportation proceedings, but was not told when her first court date would be. Despite their best efforts to stay in touch with the immigration court, by the time G.J.C.P. and her family learned the date of her hearing, she had already been ordered deported by an immigration judge. Without legal help, G.J.C.P. has no idea how to ask an immigration court to reopen her immigration case and provide her with a day in court.
• Similarly, J.E.V.G., a 17-year-old boy from El Salvador, was ordered removed by an immigration court in Texas even though he never received notice of his hearing and was not present in court. As a result, J.E.V.G. could be removed from the country at any time—and he too has no lawyer to ask the court to reopen his case.
These children and the others bringing the case illustrate just how critical it is that children have legal representation in their immigration court proceedings. And yet, in recent months, the government has instituted policies that actually exacerbate the problem. Over the summer, the government announced that it would prioritize the immigration cases of children over those of most adults, creating new “rocket dockets” that give children even less opportunity to find legal help.
Although the government claims that immigration judges have authority to provide children with time to find legal assistance, attorneys and court observers around the country report that children are receiving less time to find attorneys. The problem is made worse because the government is initiating deportation cases against increasing numbers of children, severely straining the limited pro bono legal services available. Moreover, court observers report that immigration judges are asking children to complete complex forms like asylum applications, which must be completed in English, even if they have not found representation. Children must plead to the charges being brought against them without legal help—and some are even ordered removed or told to voluntarily depart the United States.
As plaintiffs in J.E.F.M. argue, children simply cannot adequately prepare for these cases on their own. An immigration court system that requires them to do so is fundamentally unfair and violates due process.
The J.E.F.M. child plaintiffs are represented by Northwest Immigrant Rights Project, the American Civil Liberties Union, American Immigration Council, Public Counsel, and K&L Gates LLP.
*Name changed to protect our client’s identity
District Court Grants Preliminary Approval of Settlement Agreement and Amends Class Definition in Duran-Gonzales
On July 21, 2014, the District Court issued a final approval of the settlement agreement in Duran Gonzalez v. DHS. Duran Gonzalez is a Ninth Circuit-wide class action regarding eligibility for adjustment of status under INA § 245(i) along with an accompanying I-212 waiver application for individuals who previously were removed and subsequently entered the country without admission. The settlement will allow a group of nearly 1,500 people the opportunity to remain in the United States with their families.
In a 2007 decision in this suit, Duran Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007), the Ninth Circuit held that individuals who previously were removed are ineligible for adjustment of status with an I-212 waiver. However, the Ninth Circuit subsequently remanded the case to the district court for consideration of plaintiffs’ retroactivity claims. See Duran Gonzales v. DHS, 712 F.3d 1271 (9th Cir. 2013). The settlement provides remedies for class members with retroactivity claims. The amended class definition (i.e., a description of who is covered by the agreement) is set out on pages 3-5 of the settlement agreement.
After 8 years of litigation that included three separate published opinions from the Ninth Circuit Court of Appeals, Northwest Immigrant Rights Project and partners achieved a victory that will allow hundreds of individuals the opportunity to reopen their previously denied applications for permanent residence so that they can remain in the United States with their families. The settlement will also allow individuals in the class who have already been removed from the United States the opportunity to submit applications through the corresponding U.S. consulates.
NWIRP teamed with the American Immigration Council, the National Immigration Project of the National Lawyer’s Guild, the Law Offices of Van Der Hout, Brigagliano and Nightingale, and theLaw Office of Stacy Tolchin in bringing this case.
NWIRP & Allies Successfully Represent Nationwide Class of Asylum Applicants Seeking Employment Authorization
NWIRP and the American Immigration Council, along with co-counsel from the Seattle law firm Gibbs Houston Pauw and the Massachusetts Law Reform Institute, filed a nationwide class action on behalf of asylum applicants who were prevented from obtaining employment authorization. The complaint challenged widespread problems with the “asylum clock”- the system government agencies use to determine when immigrants who have applied for asylum may obtain permission to work lawfully in the United States. Ultimately, Defendants agreed to a settlement with the nation-wide certified class, which was approved by federal District Judge Jones. A.B.T. v. U.S. Citizenship and Immigration Services, 2013 WL 5913323 (W.D.Wash.) (W.D.Wash. 2013).
Among the benefits of the settlement: asylum seekers with Immigration Court cases may now present their asylum applications to the Court immediately, without having to wait months for an initial hearing before an Immigration Judge; certain asylum seekers whose cases have been pending on appeal will now be able to obtain work authorization when the Board of Immigration Appeals remands their case to an Immigration Judge; asylum seekers and their attorneys will be provided with more effective notice so that they do not inadvertently accept hearing dates which frustrate obtaining a work authorization. In addition, even under the “expedited” process asylum seekers and their attorneys will be provided at least 45 days from the date they file their asylum application in court to prepare for an individual hearing.
The successful conclusion of this lawsuit helps bring clarity and accountability to a problem that has plagued the asylum process for decades and has impacted thousands of immigrants trapped in a cycle of delay and denial of the right to work.
NWIRP Fights for the Rights of Families to Stay Together
NWIRP continues as lead counsel, representing a certified class of individuals in the ninth circuit fighting for the right to remain with their family members. The federal district court granted class-wide injunctive relief. Gonzales v. U.S. Dept. of Homeland Sec., 239 F.R.D. 620 (W.D.Wash. 2006). The injunctive relief was subsequently vacated proceedings were remanded based on the Court’s determination that is must defer to a subsequent, contrary agency interpretation of the statute. Gonzales v. Department of Homeland Sec., 508 F.3d 1227 (9th Cir. 2007). After again appealing the remanded proceedings, the Court of Appeals originally ruled that it would not consider the unfair retroactive impact of the change in law. Duran Gonzales v. DHS, 659 F.3d 930 (9th Cir. 2011).
However, after filing a petition for rehearing along with obtaining rehearing en banc in Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (see below), the Court of Appeals issued a new decision, vacating its prior ruling and remanding to district court to determine whether class should be modified to respond to retroactivity arguments. Duran Gonzales v. DHS, 702 F.3d 504 (9th Cir. 2013).
In Garfias-Rodriguez v. Holder, 672 F.3d 1125 (9th Cir. 2012) NWIRP successfully petitioned the Court to withdraw its prior panel decision and rehear the case en banc. NWIRP represented the petitioner before the en banc court in Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012). The Court ultimately denied the petition for rehearing, but nonetheless implemented a new retroactivity test put forward by counsel for NWIRP. The implementation of the new test served as the basis for the Court reversing its prior decision in Duran-Gonzalez as noted above.
Federal District Court Grants Permanent Injunctive Relief Providing Counsel at Government Expense for Class of Detained Persons in Removal Proceedings who do not have the mental competence to Represent themselves in Court
NWIRP serves as co-counsel in Franco-Gonzales, et al. v. Holder, et al., CV 10-02211, in the Central District of California, where the Court granted class certification and issued a permanent injunction, ordering DHS and DOJ to appoint defenders to all detained individuals in Washington, California and Arizona who have a mental illness or disability rendering them incapable of representing themselves in detention or removal proceedings. Franco-Gonzalez v. Holder, 2013 WL 3674492 (C.D.Cal. 2013).
In March of 2010, the ACLU and Public Counsel in Los Angeles filed suits in U.S. District Courts in Southern California on behalf of two men who, because of their profound mental disabilities, had spent years in immigration detention without legal assistance to fight their cases. They were released just days after the suit was filed.
The groups then obtained the assistance of Northwest Immigrant Rights Project, the law firm of Sullivan & Cromwell and Mental Health Advocacy Services Inc., in moving to transform the case into a class action on behalf of detainees with mental disabilities. The lawsuit alleged federal officials have deprived these immigrants of their Constitutional right to due process and violated federal anti-discrimination laws designed to protect people with disabilities.
The Court initially granted motions for preliminary injunctive relief on behalf of the named plaintiffs. See, e.g., Franco-Gonzales v. Holder, 767 F.Supp.2d 1034 (C.D. Cal 2010); 828 F.Supp.2d 1133 (C.D.Cal., May 04, 2011) (orders granting preliminary injunctive relief for named plaintiffs). Thereafter, the court certified a class of similarly situated individuals in Washington, California and Arizona. Finally, the Court granted Plaintiffs’ motion for partial summary judgment, requiring the government to assign qualified legal representatives for class members. Franco-Gonzalez v. Holder, 2013 WL 3674492 (C.D.Cal. 2013). DOJ has responded by announcing a plan to provide appointed counsel nationwide to similarly situated individuals.
CLICK HERE to read the notice of class action settlement for individuals who have serious mental disorders and have been ordered removed from the United States in English.
HAGA CLIC para leer el aviso de una propuesta resolucion parcial de una accion colectiva para personas que tienen trastornos mentales graves y ouienes han sido ordenados deportados de los Estados Unidos en enspanol.
NWIRP & Allies Prevail in Action on Behalf of Class of Lawful Permanent Residents Denied Naturalization by Prolonged Government Delays
NWIRP and the ACLU successfully represented a district wide class certified by federal court, challenging the government’s obstruction of hundreds of applicants seeking naturalization. Some of the plaintiffs had applications cases pending for up to four years. Judge Pechman granted plaintiffs’ motion for class certification. Roshandel v. Chertoff, 554 F.Supp.2d 1194 (W.D.Wash. 2008). Thereafter she denied Defendants’ motion to dismiss, leading to an eventual settlement where government agreed to complete adjudication of all 450 delayed applications prior to registration deadline for 2008 elections. Roshandel v. Chertoff, 2008 WL 1969646 (W.D.Wash. 2008).