Case: Perez-Funez v. U.S. Immigration and Naturalization Service

2:81-cv-01457 | U.S. District Court for the Central District of California

Filed Date: March 25, 1981

Clearinghouse coding complete

Case Summary

This case involves two consolidated actions, Yanira Pena and Claudia Pena v. INS, 81-cv-1932, and Jose Antonio Perez-Funez v. INS, 81-cv-1457, in which plaintiffs filed separate lawsuits in the U.S. District Court for the Central District of California, challenging the manner in which the Immigration and Naturalization Service (INS) implemented its voluntary departure procedure with respect to unaccompanied minor non-citizens in its custody. Plaintiffs, who were represented by the ACLU Foundati…

This case involves two consolidated actions, Yanira Pena and Claudia Pena v. INS, 81-cv-1932, and Jose Antonio Perez-Funez v. INS, 81-cv-1457, in which plaintiffs filed separate lawsuits in the U.S. District Court for the Central District of California, challenging the manner in which the Immigration and Naturalization Service (INS) implemented its voluntary departure procedure with respect to unaccompanied minor non-citizens in its custody. Plaintiffs, who were represented by the ACLU Foundation of Southern California and the National Lawyers Guild-Southern California Chapter, claimed that the INS procedures violated the Due Process Clause of the Fifth Amendment and sought an injunction to prohibit the INS from instituting voluntary departure proceedings against any unaccompanied minor until the minor was appointed an attorney and then produced before an Immigration Judge.

The District Court consolidated the two cases and granted class action status, with the class consisting of

[a]ll persons who appear, are known, or claim to be under the age of eighteen years who are now or in the future taken into or held in custody in the United States by agents of the Immigration and Naturalization Service for possible deportation from the United States, and who are not accompanied by at least one of their natural or lawful parents at the time of being taken or received in custody within the United States.

The Court issued a preliminary injunction prohibiting the INS from removing unaccompanied minor noncitizens pursuant to the voluntary departure process without first assuring that they were advised of and understood alternatives to voluntary departure. The Court refused to require the mandatory appointment of counsel, as requested by plaintiffs. Perez-Funez v. District Director, I.N.S., 611 F.Supp. 990 (C.D.Cal. 1984). Attached to the Court's preliminary injunction were examples of proper notice of rights forms to be provided to minor detainees.

Following a hearing on the merits, the District Court determined that the INS procedures violated the due process rights of the plaintiff class. The Court made its preliminary injunction permanent with some modifications. These included requiring the INS -- before asking a minor to sign the voluntary departure form -- to provide telephone access and an up-to-date list of free legal services to class members, and to ensure that each had the opportunity to communicate with a parent, close adult relative, friend, attorney, or consular officer (this last option only when chosen by the minor). Perez-Funez v. District Director, I.N.S., 619 F.Supp. 656 (C.D.Cal. 1985).

(Mexican and Canadian minors apprehended in the immediate vicinity of the border received lesser protections -- just the right to be informed that they could call a parent, close relative, friend, or organization on the free legal services list.)

We don't have the docket sheet in this case so we don't know what kind of enforcement activity has occurred over the years, but in 2014, the National Immigration Law Center posted information on the nationwide Perez-Funez permanent injunction provisions and solicited any reports of suspected violations of the injunction.

The Perez-Funez injunction was also implemented in regulations that apply to both DHS and the DOJ Executive Office of Immigration Review EOIR. 8 C.F.R. §§ 236.3(g)-(h), 1236.3(g)-(h), requires that unaccompanied children be both advised of their legal rights and guaranteed access to outside advice before voluntarily choosing to return to their countries of origin. Specifically, before the government can ask any unaccompanied child to voluntarily depart the United States or withdraw her application for admission, the government must provide the child with (1) a written notice of rights; (2) a list of free legal service providers; and (3) access to telephones and notice that they may call a parent, close relative, friend, or attorney. Additionally, for unaccompanied children from non-contiguous countries (i.e. children not from Canada or Mexico), DHS must ensure that the child in fact communicates with a parent, adult relative, friend, or attorney. Id. §§ 236.3(g), 1236.3(g). If the child is under 14 years old, or is unable to understand the written notice of rights, the notice "shall be read and explained to the juvenile in a language he or she understands." Id. §§ 236.3(h), 1236.3(h).

Because we don't have the docket sheet, we are not certain whether this case is ongoing or closed.

Summary Authors

Dan Dalton (12/3/2007)

Ava Morgenstern (9/22/2017)

Edward Cullen (3/15/2019)

People


Judge(s)

Rafeedie, Edward (California)

Attorneys(s) for Plaintiff

Carrasco, Gilbert (California)

DeHoyos, Ben (Louisiana)

Lopez, Gilbert (California)

Rodriguez, Antonio (California)

Rosenbaum, Mark Dale (California)

Wheeler, Charles (Colorado)

Attorneys(s) for Defendant

Reynolds, Carolyn M. (California)

Judge(s)

Rafeedie, Edward (California)

Attorneys(s) for Plaintiff

Carrasco, Gilbert (California)

DeHoyos, Ben (Louisiana)

Lopez, Gilbert (California)

Rodriguez, Antonio (California)

Rosenbaum, Mark Dale (California)

Wheeler, Charles (Colorado)

Attorneys(s) for Defendant

Reynolds, Carolyn M. (California)

Documents in the Clearinghouse

Document

Opinion

Perez-Funez v. District Director, Immigration and Naturalization Service; Pena v. Immigration and Naturalization Service

611 F.Supp. 990

Jan. 24, 1984 Order/Opinion

Memorandum Opinion

Perez-Funez v. District Director, Immigration and Naturalization Service; Pena v. Immigration and Naturalization Service

619 F.Supp. 656

Sept. 30, 1985 Order/Opinion

Resources

Title Description External URL

SUMMARY:The Nationwide Perez-Fuñez Permanent Injunction Provisions for Unaccompanied Children in DHS Custody

National Immigration Law Center

The Perez-Fuñez injunction is a nationwide class action permanent injunction that requires the U.S. Department of Homeland Security (DHS) to take certain steps before removing unaccompanied children … June 1, 2014 https://www.nilc.org/wp-content/uploads/2015/11/Perez-Funez-perm-inj-requirements-2014-06-19.pdf

Docket

Last updated May 12, 2022, 8 p.m.

Docket sheet not available via the Clearinghouse.

State / Territory: California

Case Type(s):

Immigration and/or the Border

Key Dates

Filing Date: March 25, 1981

Case Ongoing: Unknown

Plaintiffs

Plaintiff Description:

All persons who appear, are known, or claim to be under 18, who are now or in the future are held by the INS for possible deportation from the U.S., and who are not accompanied by at least one of their natural or lawful parents.

Plaintiff Type(s):

Private Plaintiff

Attorney Organizations:

ACLU Affiliates (any)

ACLU National (all projects)

ACLU of Southern California

National Immigration Law Center

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Granted

Defendants

U.S. Immigration and Naturalization Service, Federal

Defendant Type(s):

Jurisdiction-wide

Case Details

Causes of Action:

Ex Parte Young (Federal) or Bivens

Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.

Constitutional Clause(s):

Due Process

Availably Documents:

Injunctive (or Injunctive-like) Relief

Non-settlement Outcome

Any published opinion

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Preliminary injunction / Temp. restraining order

Source of Relief:

Litigation

Order Duration: 1984 - None

Content of Injunction:

Preliminary relief granted

Issues

General:

Access to lawyers or judicial system

Juveniles

Immigration/Border:

Constitutional rights

Deportation - procedure

Family Separation

Immigration lawyers

Undocumented immigrants - rights and duties