Appeals Court Upholds Coercion Ruling Against INS

One of the longest-running immigration cases in U.S. history neared resolution Tuesday when a federal appeals court upheld an earlier ruling that the Immigration and Naturalization Service had coerced countless Salvadorans who had fled to the United States into returning home instead of applying for political asylum here.

The decision by the 9th Circuit Court of Appeals kept in place a sweeping permanent injunction imposed by U.S. District Judge David Kenyon in 1988 that requires the INS to advise Salvadorans detained here of their right to apply for political asylum and to hire attorneys. It should not directly affect most immigrants already here.

“This historic decision reaffirms that the intimidation of foreign nationals must stop at these borders,” said Mark Rosenbaum of the American Civil Liberties Union. “It also reaffirms that the right to political asylum may not be held captive to a partisan foreign policy.

A spokesman for the INS, which could appeal the decision to the U.S. Supreme Court, said the agency would not comment on the decision until federal attorneys had had a chance to study the ruling. The ruling, written by Circuit Judge Mary M. Schroeder, said the decision was based on facts in the case, and was breaking no new constitutional ground.

The Orantes case, as it is known, was filed in Los Angeles in March, 1982. It charged that INS officials routinely declined to advise Salvadorans of rights that were automatically given to immigrants from Eastern Bloc countries. Instead of acting as a neutral agency, the INS was essentially working as an enforcement arm of the State Department, which supported the government of San Salvador, plaintiffs charged in the class-action suit.

When the case was filed, thousands of Salvadorans were streaming into the United States as a result of a bloody civil war that broke out in the Central American nation in 1979. Instead of being informed that they had a right to file a petition for political asylum under both U.S. law and international treaties, many Salvadorans were coerced by a variety of measures to sign papers agreeing to what INS termed “voluntary departure.”

Many signed papers and were on planes back to El Salvador within days, even hours, according to evidence presented in court. Others were essentially denied access to telephone calls. Legal materials were sometimes confiscated.

A preliminary injunction was issued in 1982 requiring the INS to tell Salvadorans they had a right to apply for asylum. However, a lower court found that the INS continued to engage in a “pattern and practice” of coercion even after the court order was issued.

The trial, which ended in 1987, lasted more than a year. A total of 176 witnesses were called and more than 30,000 pages of transcripts and other evidence were submitted. More than a dozen Los Angeles-area lawyers from virtually every major local public interest law firm involved in immigration participated in the case.

In 1988, Kenyon determined that a pattern of coercion existed, and issued a permanent injunction. The government appealed, charging that Kenyon’s ruling would alter “virtually every facet of INS procedure.”