Orantes-Hernandez v. Gonzales (504 F. Supp. 2d 825, 2007)

AMENDED ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISSOLVE THE ORANTES INJUNCTION

MORROW, District Judge.

I. PROCEDURAL BACKGROUND

Plaintiffs filed this action in 1982, challenging practices and procedures allegedly employed by the Immigration and Naturalization Service (“INS”) to detain, process and remove Salvadoran nationals who had entered the United States. Plaintiffs sued on their own behalf and on behalf of a class of “all citizens and nationals of El Salvador eligible to apply for political asylum ... who ... have been or will be taken into custody ... by agents of the [Department of Homeland Security].” Orantes-Hernandez v. Meese, 685 F.Supp. 1488, 1491 (C.D.Cal.1988) (“Orantes II”), aff'd., 919 F.2d 549 (9th Cir.1990). Judge David Kenyon certified the Orantes class on April 30,1982.

On April 29, 1988, Judge Kenyon entered a permanent injunction mandating that the INS use specific procedures when detaining, processing and removing Salvadoran immigrants. See Orantes II, 685 F.Supp. at 1511-13. On July 2, 1991, he modified the injunction to add four conditions that applied solely to the Port Isabel Service Processing Center in Port Isabel, Texas (“Orantes injunction”). On September 28, 2004, the court entered a stipulated order clarifying the terms of the injunction to eliminate the possibility that the Office of Refugee Settlement could be held to be in violation of its terms.

On November 28, 2005, the government filed a motion to dissolve the injunction. It asserted (1) that there had been a significant change in the factual circumstances that led to issuance of the injunction — i.e., the end of the civil war and attendant human rights abuses in El Salvador, and the adoption of a range of procedures by U.S. immigration authorities that ensure that aliens are advised of their right to apply for asylum and are not coerced into waiving that right; and (2) that there had been an intervening change in law — i.e., the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), which provides for expedited removal of inadmissible aliens. As respects the intervening change in law, the government argued that the injunction conflicted with IIRIRA and the regulations governing expedited removal, and also that the injunction made it burdensome for immigration authorities to place Salvadorans in expedited removal. The court bifurcated this issue, and heard the government’s argument regarding the purported facial conflict in September 2006. Following the hearing, it issued an order modifying paragraphs two and eleven of the injunction. The parties argued the balance of the government’s reasons for seeking dissolution of the injunction on December 20, 2006. This order addresses those arguments.

II. DISCUSSION

A. Legal Standard Governing Dissolution Of An Injunction

Until 1992, courts asked to dissolve existing injunctions applied a standard first articulated in United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932). Swift was the culmination of a government antitrust action against the meat-packing industry. The government alleged that defendants had suppressed competition in the purchase of livestock and sale of dressed meats, and that, having eliminated competition in meat products, they had also suppressed competition ip the sale of other products, such as fish, vegetables, fruit and groceries. Id. at 110, 52 S.Ct. 460. In 1920, defendants agreed to a consent decree that banned them, inter alia, from owning retail meat markets or stockyards, and from manufacturing, selling, or transporting 114 varieties of foodstuffs. Id. at 111, 52 S.Ct. 460. Ten years later, five meat packers petitioned for modification of the decree, arguing that conditions in the meat-packing and grocery industries had changed. Id. at 113, 52 S.Ct. 460. The lower court modified the injunction to permit the meat packers to sell groceries and other commodities at wholesale, but retained the ban on retail sales of such products. Id. at 113-14, '52 S.Ct. 460.

An appeal followed. The Supreme Court framed “the question [that had to be resolved as] whether [a modification could] be made without prejudice to the interests of the classes whom th[e] particular restraint was intended to protect.” Id. at 117-18, 52 S.Ct. 460. It answered this inquiry in the negative, noting that industry changes had reduced the likelihood that defendants would once again monopolize the sale of meats, but that the changes had not substantially reduced the possibility that there would be antitrust violations in the sale of other food products if the injunction were dissolved. Id. at 117-18, 52 S.Ct. 460. The Court’s conclusion was reinforced by evidence that there had been sporadic instances of unfair practices by the meat packers even after the monopoly was broken and the consent decree entered. Id. at 118, 52 S.Ct. 460. It cautioned: “Nothing less than a showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.” Id. at 119, 52 S.Ct. 460.

The “grievous wrong” language in Swift worked an “apparent hardening of the usual standard for modifying decrees of in-junctive relief.” New York States Ass’n for Retarded Children Inc. v. Carey, 706 F.2d 956, 968 (2d Cir.1983). As a result, courts often held that modification or dissolution of an injunction was not warranted unless the party requesting relief could show a “grievous wrong” — a nearly insurmountable standard that “ward[ed] off virtually all efforts to modify consent decrees.” Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 379, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992); see also United States v. City of Chicago, 663 F.2d 1354, 1359 (7th Cir.1981) (noting that “numerous cases have mechanically employed the Swift ‘grievous wrong’ test, thereby suggesting that hardship to the defendant is the sole touchstone for modification of an injunction”).

Under the “grievous wrong” standard, a party seeking modification or dissolution of an injunction had to meet a heavy burden of proof that often exceeded the burden imposed on parties seeking an injunction in the first instance. See Swift, 286 U.S. at 119, 52 S.Ct. 460 (“We are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree.... The inquiry ... is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow”); Ruiz v. Lynaugh, 811 F.2d 856, 860-61 (5th Cir.1987) (noting that “modification is only cautiously to be granted; that the dangers which the decree was meant to foreclose must almost have disappeared; that hardship and oppression, extreme and unexpected, are significant; and that the movant’s task is to provide close to an unanswerable case”).

Subsequent Supreme Court cases, however, emphasized that courts had “misconceived the thrust” of Swift by focusing rigidly on the “grievous wrong” language. See Board of Ed. of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 246-48, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991) (rejecting the rigid use of Swift’s “grievous wrong” language as the basis for denying a motion to dissolve a desegregation decree); United States v. United Shoe Machinery Corp., 391 U.S. 244, 248, 88 S.Ct. 1496, 20 L.Ed.2d 562 (1968) (noting that the district court had misconceived the “thrust of this Court’s decision in Swift,” and stating the “Swift teaches that a decree may be changed upon an appropriate showing, and it holds that it may not be changed in the interests of the defendants if the purposes of the litigation as incorporated in the decree (the elimination of monopoly and restrictive practices) have not been fully achieved”).

In United Shoe Machinery, the government sought modification of an injunction, claiming that additional relief was needed to fulfill the “purposes of the litigation.” The district court denied the request, reading Swift as limiting modification to cases involving “(1) a clear showing of (2) grievous wrong (3) evoked by new and unforeseen conditions.” United States v. United Shoe Machinery Corp., 266 F.Supp. 328, 330 (D.Mass.1967). The Supreme Court held that this interpretation was too rigid, and noted that Swift’s reference to a “grievous wrong” had to be read in context. Because the original injunction had resulted in little progress toward the accomplishment of the decree’s goals, the Court concluded that modification would promote, not subvert, the “purposes of the litigation.” United Shoe Machinery, 391 U.S. at 248-49, 88 S.Ct. 1496.

In the 1980’s, courts increasingly adopted a more flexible approach to requests for modification or dissolution of injunctions, particularly in institutional reform cases. See Carey, 706 F.2d at 970 (stating that the “grievous wrong” language of Swift did “not provide the proper standard to apply to injunctions entered in school desegregation cases [because sjuch decrees, unlike the one in Swift, are not intended to operate in perpetuity”); City of Chicago, 663 F.2d at 1360 (“The standard for modification of injunctions that emerges from Swift and United Shoe is ... not based solely on hardship to the enjoined party. The standard also incorporates consideration of whether there remains any need to continue the injunction, that is, whether ‘the purposes of the litigation as incorporated in the decree’ have been achieved”); Newman v. Graddick, 740 F.2d 1513, 1520-21 (11th Cir.1984) (explaining that Swift involved “rights fully accrued upon facts nearly impervious to change,” and thus that the Court required a showing of a “grievous wrong evoked by new and unforeseen conditions,” and stating that “[wjhere ... a consent decree involves the supervision of changing conduct or conditions ..., modification may be more freely granted”); Nelson v. Collins, 659 F.2d 420, 424 (4th Cir.1981) (noting that the Court in Swift distinguished between situations in which a “continuing decree [was] directed to events to come ... (involving) the supervision of changing conduct or conditions” and one in which an “injunction [was] granted to protect rights ‘fully accrued upon facts so nearly permanent as to be substantially impervious to change/ ” and observing that “[i]n the first case, modification under appropriate circumstances is clearly permissible [while] in the second [the “grievous wrong”] standard ... applied”); see also Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114, 1120-21 (3d Cir.1979) (noting that “[t]he modifications [sought did] not leave class members open to the evils to which the lawsuit was first addressed”); Benjamin v. Malcolm, 564 F.Supp. 668, 686 (S.D.N.Y.1983) (stating that “[t]he critical question on a motion to modify a decree is whether the proposed modification is ‘in derogation of the primary objective of the decree/ ” quoting New York Association for Retarded Children, 706 F.2d at 969 (Friendly, J.)).

In Rufo, the Court expressly approved this movement toward flexibility, noting that the “grievous wrong” language in Swift did not represent “a hardening of the traditional flexible standard for modification of [injunctions].” Rufo, 502 U.S. at 379, 112 S.Ct. 748. As evidence of this, the Court cited the statement in Swift that entering into a consent decree “was not an abandonment of the right to exact revision in the future, if revision should become necessary in adaptation to events to be.” Id. (quoting Swift, 286 U.S. at 114-15, 52 S.Ct. 460). As a result, the Court rejected the argument that Rule 60(b)(5)'&emdash;which permits courts to modify or dissolve injunctions when “it is no longer equitable that the judgment should have prospective application”&emdash;codified Swift’s grievous wrong standard. Rather, the Court stated, Rule 60(b)(5) embodies “a less stringent, more flexible standard.” Id. at 380, 112 S.Ct. 748.

Under Rufo, “a party seeking modification of an [injunction] may meet its initial burden by showing a significant change either in factual conditions or in law.” Id. at 384, 112 S.Ct. 748; see also Sharp v. Weston, 233 F.3d 1166, 1170 (9th Cir.2000) (“A party seeking modification or dissolution of an injunction bears the burden of establishing that a significant change in facts or law warrants revision or dissolution of the injunction”). If the moving party meets this burden, “the court should consider whether the proposed modification is suitably tailored to the changed circumstance.” Rufo, 502 U.S. at 383, 112 S.Ct. 748. Modification may be warranted “when changed factual conditions ma[k]e compliance ... substantially more onerous, ... when an [injunction] proves to be unworkable because of unforeseen obstacles, ... or when enforcement of the decree without modification would be detrimental to the public interest.” Id. at 384,112 S.Ct. 748.

Applying this “flexible” Rule 60(b)(5) standard, the Ninth Circuit has directed courts to “take all the circumstances into account in determining whether to modify or vacate a prior injunction or consent decree.” Bellevue Manor Associates v. United States, 165 F.3d 1249, 1256 (9th Cir.1999); but see United States v. Asarco Inc., 430 F.3d 972, 982 (9th Cir.2005) (noting that Bellevue did not announce a “totality of the circumstances test” for modification under Rule 60(b)(5)). While the considerations identified in Rufo may be relevant or even determinative in some cases, they do not define the universe of situations in which an injunction should be modified or dissolved. See Alexis Lichine & Cie v. Sacha A. Lichine Estate Selections, Ltd., 45 F.3d 582, 586 (1st Cir.1995) (“In our view, Rule 60(b)(5) sets forth the umbrella concept of ‘equitable’ that both Swift and Rufo apply to particular, widely disparate fact situations,” quoted with approval in Bellevue Manor, 165 F.3d at 1256); Building and Const. Trades Coun cil of Philadelphia and Vicinity, AFL-CIO v. N.L.R.B., 64 F.3d 880, 888 (3d Cir.1995) (“It would be a mistake to view either Rufo or Swift as encapsulating a universal formula for deciding when [a] point has been reached [where modification or dissolution is appropriate]. Instead, each of those cases represents a response to a particular set of circumstances. A court of equity cannot rely on a simple formula but must evaluate a number of potentially competing considerations to determine whether to modify or vacate an injunction entered by consent or otherwise”).

In institutional reform litigation, courts must be particularly attuned to the “broader impact of an sweeping public-litigation-type injunction in determining whether to modify or vacate prior relief.” Bellevue Manor, 165 F.3d at 1257. A sweeping injunction, which “reach[es] beyond the parties involved ... and impacts] on the public’s right to the sound and efficient operation of its institutions” (Rufo, 502 U.S. at 381, 112 S.Ct. 748), remains equitable only so long as it effectively addresses the problem it was designed to remedy. See King-Seeley Thermos Co. v. Aladdin Indus., Inc., 418 F.2d 31, 35 (1969) (Friendly, J.) (a court’s equitable powers to modify injunctions extends to instances where “the decree is not properly adapted to accomplishing its purpose”). Where a problem has been resolved or mooted by changed circumstances, then equity and the public’s interest in the “sound and efficient operation of its institutions” demands the injunction’s dissolution. The question in this case, therefore, is whether the Orantes injunction has outlived its purpose and usefulness&emdash;in other words, whether evolving circumstances have resolved the underlying problems, thereby rendering the injunction unnecessary. See City of Chicago, 663 F.2d at 1360 (“The standard for modification of injunctions that emerges from Swift and United Shoe is ... not based solely on hardship to the enjoined party. The standard also incorporates consideration of whether there remains any need to continue the injunction, that is, whether ‘the purposes of the litigation as incorporated in the decree’ have been achieved”); United States v. Swift & Co., 189 F.Supp. 885, 905 (N.D.Ill.1960) (“[I]t is only change that reaches the underlying reasons for the decree that is relevant. Conditions existing at the time of original entry must be compared with conditions at the time of requested modification, and the significance of the difference measured in the light of these original reasons”), aff'd., 367 U.S. 909, 81 S.Ct. 1918, 6 L.Ed.2d 1249 (1961). To answer that question, the court first considers the purpose of the Orantes injunction and the injustice that it was designed to remedy.

B. The Orantes Injunction

Judge Kenyon entered a preliminary injunction in 1982, a permanent injunction in 1988, and a modified permanent injunction in 1991. At the time, class members were coming to the United States from a country that was embroiled in a twelve-year civil war that killed an estimated 75,000 people between 1980 and 1992, and gave rise to rampant human rights abuses and political violence. By 1988, in a country with a population of approximately five million, some 45,000 innocent civilians had been murdered by soldiers, security forces, and death squads. Orantes II, 685 F.Supp. at 1492. An additional 4,000 civilians had “disappeared.” Id. Political dissidents and prisoners were subjected to arbitrary detention, arrest, intimidation, torture, and execution. Id. at 1492-93. Salvadoran civilians reported repeated bombings and ground attacks, forced relocation, and harassment by the military. Id. at 1493. Judge Kenyon concluded that, faced with these conditions, many Salvadorans made a decision “born of desperation” to enter the United States. Or-antes I, 541 F.Supp. at 358. He found, moreover, that class members would suffer “the most serious of deprivations” if they were deported to “a country overrun with civil war, violence, and government-sanctioned terrorist organizations.” Id. at 1504.

Given the civil war and human rights abuses in El Salvador, Judge Kenyon stated, many Salvadorans who entered the United States had a “well-founded fear of persecution” and “good faith claims to asylum.” Orantes II, 685 F.Supp. at 1491. Despite this fact, he found, many Salvadorans were misled or coerced into giving up their right to request asylum by INS officers who “engaged in a pattern and practice of summarily removing Salvadorans from the country by obtaining their signatures on ... voluntary departure form[s] through intimidation, threats, and misrepresentation.” Id. at 1505. Once an individual consented to voluntary departure, he or she was subject to removal from the country without a deportation hearing or an opportunity to request asylum. Id. at 1494.

Judge Kenyon found that the INS’ practices were the result of agents’ misunderstanding of Salvadorans’ reasons for coming to the United States, and Salvadorans’ reluctance to communicate their traumatic experiences to INS officials. Id. at 1496-97. After hearing extensive testimony, Judge Kenyon concluded that many INS agents felt Salvadorans entered the U.S. “solely for economic gain” — an attitude that “reflected] a lack of sensitivity ... [born of] ignorance on the part of INS agents [regarding] the complex motivations and situations of those who ha[d] fled El Salvador.” Id. at 1496. In addition, he found, Salvadorans who fled persecution by soldiers and guerillas in El Salvador felt uncomfortable confiding in “a uni-fox-med officer of the United States ... because [they were] aware that the United States supported] the Salvadoran government, which tolerate[d] and participate^] in [the] acts of terror.” Id. at 1497. Those Salvadorans who reached the United States often experienced psychological trauma or guilt because they had abandoned their country and their families; this made them reluctant to communicate their experiences to the INS agents who interviewed them. Id. Many also feared that the information they revealed would endanger family and friends who remained in El Salvador. Id. Judge Kenyon found that the INS knew of these problems and refused to compensate for them. Id.

Instead, he concluded, INS officers routinely told class members that “if they applied] for asylum they [would] remain in detention for a long time” (id. at 1494-95); “that Salvadorans [did] not get asylum” (id. at 1495); that the “information on the [asylum] application [would] be sent to El Salvador” (id.; see also Orantes I, 541 F.Supp. at 360); that they would be transferred to remote locations (Orantes II, 685 F.Supp. at 1495); and that women would be placed in a cell with men, where they might be sexually molested (Orantes I, 541 F.Supp. at 360).

Judge Kenyon found that such threats and misrepresentations were typically combined with deliberate withholding of information about the asylum process. He concluded that the INS routinely distributed legal services lists to Salvadorans that contained inaccurate, incomplete, or nonworking telephone numbers for legal services agencies (Orantes II, 685 F.Supp. at 1497); that the agency failed to provide legal services lists to Salvadorans altogether (id. at 1498); and that it refused to advise Salvadorans of the availability of political asylum, even when they requested the opportunity to apply for asylum or recounted experiences that suggested eligibility for asylum (id.). He also found that Salvadorans were “frequently singled out for transfer to distant facilities,” where they were isolated from friends and relatives who could have assisted them. Id. at 1500.

Judge Kenyon heard extensive evidence that led him to conclude that INS officials regularly pressured Salvadorans to return to El Salvador (id. at 1501); severely limited Salvadorans’ visitation opportunities with attorneys and paralegals (id.); failed to ensure Salvadorans’ privacy during attorney-client interviews (id.); refused to provide legal materials, legal forms, law libraries, and writing materials to Salvadorans (id. at 1501-02); restricted Salvadorans’ access to telephones (id. at 1502); and segregated Salvadorans in solitary confinement without providing hearings (id.).

Judge Kenyon concluded that the INS’ “practice and pattern” of mistreating, pressuring, and intimidating Salvadorans into giving up their asylum claims was “widespread and pervasive” (id. at 1505), and was “highly likely to result ... in class members being deprived of their right[ ] to a deportation hearing” (id. at 1496). This pattern and practice, he found, warranted the entry of permanent injunctive relief. Id. at 1505. The injunction Judge Kenyon entered required that the government give Salvadorans an advisal of rights, which came to be known as the Orantes advisal, as well as a list of organizations that provided free legal services. It also prohibited the INS-from transferring unrepresented Salvadorans out of the district where they were arrested for a period of seven days, so that they could more easily retain attorneys. In addition to these measures, which were designed to ensure that Salvadorans received notice of their right to apply for asylum and had the ability to pursue it effectively, the injunction prescribed certain conditions of confinement for Salvadoran detainees, including hearings before they could be placed in solitary confinement, and regular access to legal materials, telephones, and legal professionals.

Judge Kenyon based the advisal remedy on “three alternative and independent legal bases.” See Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 556 (9th Cir.1990) (“Orantes III”). “One [was] that notice [was] required as a matter of due process.” Id. (citing Orantes II, 685 F.Supp. at 1506-07, Conclusions of Law 24-25). The second “[was] that notice [was] required in order to fully effectuate the intent of the Refugee Act.” Id. (citing Orantes II, 685 F.Supp. at 1506, Conclusions of Law 19-23). The third and final basis for the remedy was that “notice [was] required ... as a remedial measure to counteract the pattern of interference by the INS with the plaintiff class members’ ability to exercise their right[ ]” to apply for asylum. Id. (citing Orantes II, 685 F.Supp. at 1507-08, Conclusions of Law 26-43). Judge Kenyon based the provisions of the injunction governing detention center conditions and the transfer of Salvadoran detainees to remote facilities on Salvdorans’ rights to retain counsel at non-government expense and to access the courts. Orantes II, 685 F.Supp. at 1510— 11.

As respects the first basis for the advisal remedy, Judge Kenyon applied the familiar test set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and found that Salvadorans had a due process right to notice of their right to apply for asylum. Under Mathews, a court must balance plaintiffs private interest and the risk of an erroneous deprivation of that interest due to inadequate government procedures against the Government’s interest, including the burden that additional procedures will entail. Id. at 335, 96 S.Ct. 893. Judge Kenyon observed that one could not “overstate the dire consequences” that would attend an erroneous deprivation of Salvadorans’ right to apply for asylum. Orantes II, 685 F.Supp. at 1504. Citing conditions in El Salvador, he observed that immigrants of other nationalities might not have the same due process right to notification of their right to apply for asylum, as “[t]he calculation of the Mathews balancing test could be quite different for other nationalities.” Id. at 1508.

Judge Kenyon’s second basis for the advisal remedy' — that notification was necessary to effectuate the intent of the Refugee Act — was similarly influenced by the horrific conditions Salvadorans faced if erroneously returned to a country in the midst of a civil war. After noting that the Refugee Act mandates “Notification of the right to apply for asylum and ... relief from deportation,” Judge Kenyon distinguished the Eleventh Circuit’s en banc decision in Jean v. Nelson, 727 F.2d 957 (11th Cir.1984). The Jean court had held that Congress did not include a notice requirement in the Refugee Act, and that none could be implied because Congress provides many rights without mandating that the government publicize their availability. Judge Kenyon observed that “few of th[e] other [rights to which the Jean court made reference had] arise[n] in circumstances so perilous as those in which class members [found] themselves,” and continued: “The situations of those who have fled El Salvador ... are not typical of the various opportunities which Congress has provided to others within the United States.” Orantes II, 685 F.Supp. at 1506.

Judge Kenyon’s third basis for the advi-sal remedy was his finding that the INS engaged in a “practice and pattern of summarily removing Salvadorans from this country by obtaining their signatures on voluntary departure forms through intimidation, threats, and misrepresentations” about the availability of asylum. Id. at 1505. This “persistent pattern of misconduct” justified mandating that the government provide an advisal “to counteract the pattern of interference by the INS with the plaintiff class members’ ability to exercise their rights.” Orantes III, 919 F.2d at 556, 558. The Ninth Circuit noted that such a remedy would have been inappropriate had there been a showing of “relatively few instances of violations by [defendants], without any showing of a deliberate policy on behalf of the named defendants.” Id. at 557-58. It concluded, however, that Judge Kenyon did not clearly err when he found “a pattern of interference with the class members’ right to apply for asylum.” Id. at 561.

The Ninth Circuit likewise affirmed the provisions of the injunction precluding transfer of Salvadorans to remote detention facilities for seven days, and requiring detention centers to facilitate Salvadorans’ access to attorneys and/or legal materials, on the grounds that Judge Kenyon did not err in finding “a pattern of [INS] practices which severely impeded class members from communicating with counsel.” Id. at 566-67.

C. Relevant Circumstances Today

At the hearing, the parties addressed whether, and to what extent, the court should consider changed conditions in El Salvador and changed conditions in the United States in determining whether to dissolve Judge Kenyon’s injunction. Plaintiffs contend that the Ninth Circuit’s opinion in Orantes III renders it unnecessary — indeed inappropriate — to consider changed conditions in El Salvador. The government counters that changed conditions in El Salvador constitute an independent ground that alone justifies dissolution of the Orantes injunction. The court addresses these contentions below, as well as the relevance of changed conditions in the United States.

In affirming Judge Kenyon’s decision, the Orantes III court noted, as a threshold matter, that it was undisputed that “all aliens possess ... a right [to apply for asylum] under the [Refugee] Act.” Id. at 553. Because Judge Kenyon’s injunction was designed to ensure that plaintiff class members could exercise this right, the court stated, the dispute concerned “not rights but remedies.” Id. at 556. Although the Ninth Circuit identified the three bases on which Judge Kenyon relied in mandating the advisal remedy (see id.), it concluded, as noted, there was no need to reach the constitutional or statutory grounds he had cited. Rather, the court held that imposition of an advisal remedy was justified by Judge Kenyon’s finding that the INS had engaged in a pattern of interfering with class members’ ability to exercise their right to apply for asylum. Id. at 556. Specifically, the court held (1) that there was ample evidence class members had “experienced direct interference with their ability to apply for asylum” (id. at 563); and (2) that the government had conceded that a pattern of coercion and interference with class members’ right to apply for asylum would violate the Refugee Act (id. at 557). The Orantes III court acknowledged that Judge Kenyon had “made extensive findings of fact regarding the political conditions in El Salvador” as the basis for concluding that class members had a due process right to notice that they could apply for asylum. Id. at 557 n. 13. Because it concluded that it need not reach the constitutional justification for the injunction, however, the Ninth Circuit declined to address the government’s argument that conditions in El Salvador were irrelevant in evaluating class members’ right to receive notice. Id.

Plaintiffs argue that Orantes III establishes “that the injunction stands based on the pattern of conduct of the Immigration Service towards Salvadorans.” By affirming the injunction without reaching the government’s objection to Judge Kenyon’s consideration of conditions in El Salvador, plaintiffs assert that the Ninth Circuit held — “as a matter of res judicata and finality” — that country conditions were irrelevant. Consequently, they maintain, in considering the government’s motion to dissolve the injunction, the court must limit its inquiry solely to the immigration practices and detention conditions on which the Orantes III court relied in affirming Judge Kenyon’s injunction. Neither the “law of the case” doctrine nor res judicata mandates use of this approach.

To promote finality, the “law of the case” doctrine holds that “the decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case.” United States v. Cote, 51 F.3d 178, 181 (9th Cir.1995) (quoting Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir.1993)). The doctrine acts as a bar only to issues that were “actually considered and decided by the first court,” however. Id. (citing Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 834-35 (9th Cir.1982)). Thus, while the doctrine “applies to a court’s explicit decisions as well as those issues decided by necessary implication, ... it clearly does not extend to issues an appellate court did not address.” Id. (quoting Eichman v. Fotomat Corp., 880 F.2d 149, 157 (9th Cir.1989); Luckey v. Miller, 929 F.2d 618, 621 (11th Cir.1991)). The doctrine is closely related to res judi-cata, ■ or claim preclusion, which “ensures the finality of decisions” by “bar[ring] further claims by parties or their privies based on” a cause of action previously decided by a final judgment on the merits. Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979).

The two concepts differ primarily in that res judicata is typically applied to bar relitigation of a claim previously litigated in another suit, while the “law of the case” doctrine ensures the finality of legal issues decided in an earlier proceeding in the same suit. See Arizona v. California, 460 U.S. 605, 619, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) (explaining that res judicata and law of the case are related concepts, but noting that “the technical rules of preclusion are not strictly applicable” to law of the case); Rezzonico v. H & R Block, Inc., 182 F.3d 144, 148 (2d Cir.1999) (“The doctrine of law of the case is similar to the issue preclusion prong of res judicata in that it limits relitigation of an issue once it has been decided. However, law of the case is concerned with the extent to which law applied in a decision at one stage of litigation becomes the governing principle in later stages of the same litigation. Res judicata does not speak to direct attacks in the same case, but rather has application in subsequent actions”). Because plaintiffs’ argument is directed to an issue that they contend was implicitly decided and rejected by the Ninth Circuit in an earlier proceeding in this action, the court analyzes the contention under the “law of the case” doctrine.

In Orantes III, the Ninth Circuit noted that Judge Kenyon had evaluated evidence of country conditions “in determining that the class members had a due process right to notice of the right to apply for asylum.” Orantes III, 919 F.2d at 557 n. 13. Because it affirmed the injunction on an alternate ground and declined to reach the constitutional due process basis for Judge Kenyon’s decision, the court concluded that it “need not address the government’s argument that conditions in El Salvador are irrelevant.” Id. This express refusal to address the government’s argument belies plaintiffs’ assertion that the appellate court necessarily, if implicitly, decided that country conditions evidence was irrelevant. “An appellate court is not presumed to have decided issues .,. that were not addressed in its opinion,” (Rivera v. National R.R. Passenger Corp., No. C 99-04003 SI, 2004 WL 603587, *5 (N.D.Cal. Mar.22, 2004)), much less issues it explicitly declined to decide. See also id. (“Essentially, plaintiff argues that the Ninth Circuit implicitly decided in his favor defendants’ assertions regarding RLA preemption and privilege simply because the arguments were made somewhere in the record before the appellate court. This is not what the law of the case requires.... The law of the case doctrine does not extend to issues the appellate court did not address. Accordingly, this Court is free to address defendants’ arguments concerning RLA preemption and privilege”). Because the government’s argument regarding the relevance of conditions in El Salvador was not addressed in Orantes III, either explicitly or implicitly, the court cannot accept plaintiffs’ argument that finality or the “law of the case” doctrine limits the court’s ability to consider the issue now.

Plaintiffs next argue that even if the court concludes that conditions in El Salvador are so changed that the injunction is no longer warranted to redress the constitutional due process violation Judge Kenyon found, it cannot grant the government’s dissolution motion unless it also finds that the injunction is no longer required to address the pattern and practice of interference with asylum rights on which the Ninth Circuit relied. This latter inquiry, plaintiffs assert, does not implicate changed country conditions in any way. The court agrees that the Ninth Circuit’s decision is relevant in assessing the weight to be given the various grounds on which Judge Kenyon relied in entering the injunction; for this reason, the court has considered carefully evidence regarding ICE’s practices at border patrol stations, at ports-of-entry, and at detention centers. The fact that the Ninth Circuit elected to address only one of the three grounds on which the injunction was entered does not mean, however, that the court may give no weight to changed conditions in El Salvador.

Plaintiffs’ argument to the contrary confuses the legal basis on which the Ninth Circuit affirmed the Orantes injunction with the equitable basis on which the injunction was entered in the first place. Unlike the district court, the Ninth Circuit was not tasked with the responsibility of determining whether the balance of equities favored issuance of an injunction. As framed by the Orantes III court, the “key issue” on appeal was a narrow one: “whether the record supported] the district court’s decision to make ... permanent [the preliminary Orantes injunction],” which the government had not appealed. Orantes III, 919 F.2d at 561.

By contrast, the court today sits in Judge Kenyon’s place, and does so as a court of equity. Well-established equitable rules demand that the court take into account all of the circumstances before it in determining whether “it is ... equitable that the judgment ... [continue to] have prospective application.” Fed.R.CivP. 60(b)(5); see also Bellevue, 165 F.3d at 1256 (under Rule 60(b)(5), a court should “take all the circumstances into account in determining whether to modify or vacate a prior injunction or consent decree”). In doing so, it must look to the evidence that Judge Kenyon had before him, and determine whether the circumstances reflected in that evidence have changed to a sufficient degree that equity no longer favors continuance of the injunction. It is clear from a review of Orantes II that Judge Kenyon’s entry of an injunction was heavily influenced by the conditions that existed in El Salvador at the time. See, e.g., Orantes II, 685 F.Supp. at 1504 (observing that “[r]emoval to a country overrun with civil war, violence, and government-sanctioned terrorist organizations” would potentially “lead to the most serious of deprivations”).

On appeal, the government conceded that “if the evidence in th[e] case supported] the district court’s findings of a pattern of coercion and interference with the plaintiff class members’ right to apply for asylum, then ... remedial action would be justified.” Orantes III, 919 F.2d at 557. Given this concession, the Ninth Circuit reviewed Judge Kenyon’s findings regarding a pattern or practice of interference with the right to apply for asylum under the clearly erroneous standard, and did not address the totality of evidence Judge Kenyon considered in determining that injunctive relief was warranted.

The Ninth Circuit’s holding that the injunction was legally justified whether or not class members’ due process rights had been violated does not mean that the injunction was equitably justified absent such a finding. See Lemon v. Kurtzman, 411 U.S. 192, 200, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973) (“In shaping equity decrees, the trial court is vested with broad discretionary power; appellate review is correspondingly narrow.... Moreover, in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable.... In equity as nowhere else courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests, notwithstanding those interests may have constitutional roots”). Consequently, the court concludes that it is appropriate to consider present conditions in El Salvador, and contrast them with the conditions that obtained at the time Judge Kenyon entered a permanent injunction, in evaluating whether all of the circumstances that presently obtain warrants dissolution of the injunction.

For similar reasons, the court declines the government’s invitation to limit the dissolution inquiry to changed conditions in El Salvador. Judge Kenyon balanced all of the evidence before him — conditions in El Salvador, INS practices in the United States, and detention center conditions — in determining that an injunction was an appropriate equitable remedy. In the absence of an appellate decision stating that it was inappropriate for him to consider one or more of these factors, the court concludes that it must consider all of the circumstances Judge Kenyon took into account in evaluating whether to dissolve the injunction. See Bellevue, 165 F.3d at 1256 (under Rule 60(b)(5), a court should “take all the circumstances into account in determining whether to modify or vacate a prior injunction or consent decree”).

D. Changed Country Conditions In El Salvador

In 1992, the United Nations brokered Peace Accords that ended the twelve-year civil war in El Salvador and laid out an ambitious agenda to guarantee basic human rights. In keeping with the Peace Accords, El Salvador amended its constitution to prohibit the military from playing any internal security role in the country except in extraordinary circumstances. The Treasury Police, National Guard, and National Police — the primary human rights violators during the civil war (Or-antes II, 685 F.Supp. at 1492) — were abolished, and military intelligence functions were transferred to civilian control. In 1994, the guerilla forces demobilized and became a political party that competed in what were recognized as generally free and fair elections that year.

The Peace Accords also established a Truth Commission to investigate “serious acts of violence that ha[d] occurred since 1980.” See Reed Brody, The United Nations and Human Rights in El Salvador’s “Negotiated Revolution, ” 8 Harv. Hum. Rts. J. 153, 158 (1995). In 1993, the Truth Commission issued a report publicly identifying the individuals responsible for the most egregious violations. Id. at 165. Although the Salvadoran government subsequently granted amnesty for all political crimes committed during the war, it accepted the resignations of all of the military officers identified by the Commission, effectively purging the individuals most responsible for the abuses from the country’s leadership structure. See Mark Vasallo, Truth and Reconciliation Commissions: General Considerations and a Critical Comparison of the Commissions of Chile and El Salvador, 33 U. Miami Intee-Am. L. Rev. 153,177 (2002).

El Salvador’s economy, which is primarily agricultural, has grown “at a steady and moderate pace” since 1992. The Department of State attributes much of the improvement to “free market policy initiatives carried out by the ... government ], including the privatization of the banking system, telecommunications, public pensions, electrical distribution and some electrical generation, reduction of import duties, elimination of price controls, and enhancement of] the investment climate through measures such as improved enforcement of intellectual property rights.” A land-transfer program that ended in 1997 deeded land to more than 35,000 individuals; many also received agricultural credits. In 1995, the United Nations Human Rights Commission removed El Salvador from its list of countries subject to permanent monitoring. That same year, the UN Secretary General declared the peace process in El Salvador “irreversible.”

El Salvador today is recognized as “a constitutional, multiparty democracy with a unicameral legislature, an independent judiciary, and an executive branch headed by a president.” The president is elected by universal suffrage in “generally free and fair” presidential elections are is not marred by violence or “notable irregularities.” The 2004 and 2005 Department of State country reports for El Salvador document no politically motivated killings or disappearances. There are no political prisoners, and no reports of kidnapping by governmental actors. Salvadoran law prohibits torture and other cruel and inhumane treatment or punishment, although there have been some reports of excessive force, misconduct, and detainee mistreatment by police officers. The Department of State country reports conclude that the Salvadoran government “generally respects] the human rights of its citizens.” In addition, Salvadoran law safeguards freedom of speech and of the press, “and the government generally respect[s] these rights in practice.” According to the State Department’s most recent Profile of Asylum Claims and Country Conditions for El Salvador, “[s]inee the 1992 peace accords ... recent mistreatment with political motivation would seem unlikely in most cases.”

Neither party seriously disputes that conditions in El Salvador are drastically different than they were in the 1980s when Judge Kenyon entered the Orantes injunction. The civil war is over, as is the widespread brutality that led the court to conclude in 1982 and 1988 that “a substantial number” of Salvadorans who fled the country had good faith asylum claims and well-founded fears of persecution. Or-antes II, 685 F.Supp. at 1491. Thus, the conditions in El Salvador that led Judge Kenyon to conclude that the consequences attending deprivation of Salvadorans’ right to apply for asylum were “most serious” disappeared with the end of the Salvadoran civil war and concomitant improvements in political, economic, and social conditions in the country.

Tacitly acknowledging this sea change in factual circumstances, plaintiffs do not argue that Salvadorans today face unique risks from an erroneous deprivation of their right to apply for asylum. Instead, they argue that Judge Kenyon “never purported to decide that Salvadorans were a group warranting special treatment not afforded to other asylum seekers.” This argument is directly contradicted, however, by Judge Kenyon’s statement that “[t]he calculation of the Mathews balancing test could be quite different for other nationalities,” and that “[ijnjunctive relief requiring the administration of an advisal of rights to detained Salvadorans does not mandate the provision of the same advisal to any other nationalities.” Id. at 1508.

At oral argument, plaintiffs conceded that not all nationalities are entitled to a court-mandated advisal of their right to apply for asylum. They argued, however, that the Orantes injunction remains necessary to protect the rights of Salvadorans because even today, El Salvador is “a country in significant chaos.” For this reason, plaintiffs contended, some Salvadorans continue to have good faith claims to asylum in the United States. Plaintiffs rely on evidence of domestic violence and gender-based persecution in El Salvador, as well as violence against persons who are homosexual, transgender, transvestite, or HIV-positive. In addition, they have proffered evidence of widespread gang-related problems in the country. El Salvador’s two major gangs, “Mara Salvatru-eha” and “Barrio 18,” now claim to have approximately 10,000 members. It is common for gangs to extort “protection money” from local businesses — a practice the police have failed to address in any significant way. Additionally, judges, police officers, and witnesses in criminal cases against gang members are often threatened.

In response to the sharp rise in gang violence, the Salvadoran government has implemented harsh anti-gang measures; these have resulted in the unlawful arrest and detention of young people who are perceived to be gang members. Under the country’s new “Mano Dura” (“Iron Fist”) and “Super Mano Dura” (“Super Iron Fist”) laws, for example, police can arrest youth whose dress or tattoos resemble those of gang members. Suspected gang members are treated severely by the judicial system and are the targets of anti-gang vigilante groups that commit extrajudicial killings. The killers are rarely prosecuted although they are informally sanctioned on occasion. In short, the government’s measures have led to prosecution of and reprisals against non-gang members, and have aggravated rather than improved gang violence in El Salvador.

All of these conditions have contributed to an atmosphere of social insecurity. Between January and December 2005, criminal violence increased by 34 percent; murders of women and girls increased sharply, as did the incidence of domestic violence. Many of these acts go unpunished by the police, who are not equipped to deal with the problems. In addition, widespread corruption in the police forces, as well as ties between police officers and organized crime, ensure that many crimes are not investigated; as a result, criminals can operate with impunity. Plaintiffs assert that the existence of these social conditions in El Salvador provide a basis for asylum claims by some Salvadorans.

This evidence, while indicative of a country experiencing social difficulties, is not relevant to the court’s inquiry regarding changed circumstances in El Salvador. Plaintiffs would have the court conduct the Mathews balancing test anew, and conclude that the risks faced by Salvadorans who may be erroneously removed from the United States today outweigh the burden on the government involved in giving the Orantes injunction. As the court tasked with determining whether changed circumstances have rendered the Orantes injunction unnecessary, however, the court must consider the conditions that led Judge Kenyon to enter the injunction in the first instance, not a new set of conditions that might warrant the entry of an injunction were they presented to a court today.

Dowell is instructive in this regard. In 1972, the district court ordered the Board of Education of Oklahoma City to adopt a school busing plan in order to remedy de jure segregation in its public schools. Do-well, 498 U.S. at 240-41, 111 S.Ct. 630. Five years later, the court granted the Board’s petition to terminate the case, finding that the school board had been “sensitized to the constitutional implications of its conduct” and that it was “entitled to pursue in good faith its legitimate policies without the continuing constitutional supervision of’ the court. Id. at 241, 111 S.Ct. 630. In subsequent years, the growth of the suburbs and “white flight” required that black children be bused further and further away from then-homes to maintain an integrated school district. Id. at 242, 111 S.Ct. 630. As a result, the school board adopted a neighborhood assignment plan, under which 11 of 64 elementary schools in the district would be 90 percent black; 22 would be 90 percent white; and 31 would be racially mixed. Id. at 242, 111 S.Ct. 630.

Plaintiffs petitioned to reopen the case. When the district court refused, they appealed. The Tenth Circuit reversed, holding that the desegregation decree had never been terminated. Id. at 243, 111 S.Ct. 630. On remand, the district court vacated the decree, finding that the new neighborhood assignment plan was not designed with discriminatory intent and that any resulting racial segregation was “the result of private decisionmaking and economics,” which was too attenuated to be a vestige of the earlier segregation that justified entry of the busing decree in 1972. Id. The Tenth Circuit reversed again, concluding that the “number of schools [that] would [be] return[ed] to being primarily one-race schools ... [showed that] circumstances in Oklahoma City had not changed enough to justify modification of the decree.” Id. at 244, 111 S.Ct. 630. The Supreme Court disagreed, and remanded to the district court to determine whether the Board had made good faith efforts to comply with the injunction, and “whether the vestiges of past discrimination had been eliminated to the extent practicable.” Id. That the old school board once acted with discriminatory intent did not justify “judicial tutelage for the indefinite future,” the Court stated, particularly when the new school board had not acted with discriminatory animus. Id. at 249, 111 S.Ct. 630. The Court noted that, if the district court determined that it was appropriate to dissolve the injunction, it could then consider, as a separate question, whether the neighborhood assignment plan comported with due process. Id. at 249-50, 111 S.Ct. 630.

The Dowell Court’s reasoning is clear: because the desegregation decree was plainly intended to remedy intentional discrimination, the elimination of such discrimination rendered it inequitable to maintain the injunction in force. The fact that the board’s neighborhood assignment plan might constitute a new Fourteenth Amendment violation, moreover, did not justify continuing the injunction once the problem it was designed to remedy had been eradicated. Like plaintiffs in Dowell, plaintiffs here ask the court to adjudicate a new due process claim — this one based on the risks Salvadorans face if erroneously removed to a country where they face gender-, sexual orientation-, youth-, or gang-based persecution. As Dowell makes clear, this exceeds the permissible scope of the court’s inquiry in deciding the government’s motion to dissolve the 1988 injunction.

The dramatic nature of the changed conditions in El Salvador convinces the court that, were he reviewing the matter today, Judge Kenyon would not find that the Orantes advisal is necessary “as a matter of due process.” Orantes III, 919 F.2d at 556. As the Supreme Court has noted, due process “is not a technical conception with a fixed content unrelated to time, place, and circumstances.” Mathews, 424 U.S. at 334, 96 S.Ct. 893 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). It follows that the due process right is not a fixed one, but one that must be tethered to the “time, place, and circumstances” that gave rise to it. Were Judge Kenyon’s conclusion that an injunction was necessary to protect the due process rights of Salvadorans the only basis on which he granted relief, the court would find that changed circumstances had extinguished the right that necessitated the remedy, and thus that the injunction should be vacated.

Judge Kenyon, however, entered the injunction for another reason as well — to remedy the INS’ “persistent pattern of misconduct violative of plaintiffs’ rights” to apply for asylum. Orantes III, 919 F.2d at 558. Weighing the equities between the parties, Judge Kenyon considered not only the grievous risks faced by Salvadorans erroneously returned to a country in the midst of a civil war, but also the INS’ deliberate pattern and policy of withholding information, misrepresenting facts, and coercing Salvadorans to waive their right to apply for asylum. Consequently, the court must examine the evidence the parties have proffered regarding changed detainee processing practices and detention center conditions before determining whether the injunction can be dissolved.

E. Government Interference With Class Members’ Right To Apply For Asylum

1. Compliance With The Orantes Injunction

Plaintiffs argue that, irrespective of any good faith effort by the government to reform its practices, the motion for dissolution must be denied because it has not complied with the injunction’s requirements. Because plaintiffs assert that compliance is a “threshold” requirement for dissolution, the court reviews the case law regarding compliance and its role in the dissolution inquiry before turning to the evidence.

Although good-faith compliance is often a factor considered by courts in evaluating whether to dissolve an injunction, it is neither a threshold inquiry (as plaintiffs contend) nor a factor that must be taken into account in every case. “[T]he power of a court of equity to modify a decree of injunctive relief is long-established, broad, and flexible.” Carey, 706 F.2d at 967. Under the flexible standard established by Rule 60(b)(5) and Rufo, courts must tailor their inquiry to the circumstances of the case before them. See Building & Const. Trades Council, 64 F.8d at 888 (“Different considerations may have greater or lesser prominence in difference cases, not because the cases are characterized one way rather than another but because equity demands a flexible response to the unique conditions of each case”). Like others factors, therefore, compliance can be determinative in one case, and irrelevant in another.

In many cases, an enjoined party’s good-faith compliance with a decree figures prominently in the court’s dissolution inquiry, because it is a proxy for determining whether the underlying problem has been remedied. See Dowell, 498 U.S. at 249, 111 S.Ct. 630 (“A district court need not accept at face value the profession of a school board which has intentionally discriminated that it will cease to do so in the future. But in deciding whether to modify or dissolve a desegregation decree, a school board’s compliance with previous court orders is obviously relevant”); NLRB v. Harris Teeter Supermarkets, 215 F.3d 32, 36-37 (D.C.Cir.2000) (indications that defendants had continued their unfair labor practices, even after entry of a consent decree, counseled against dissolution, since “the reduction in violation frequency might be a reflection of the effectiveness of the prospective fine schedule contained in the consent order rather than a result of good intentions on the company’s part”); see also SEC v. Coldicutt, 258 F.3d 939, 942-43 (9th Cir.2001) (examining defendant’s record of compliance with an injunction restraining her from violating §§ 5(a) and 5(b) of the Securities Act to determine whether she might violate the statutes if the injunction were dissolved).

Indeed, compliance over time is often the only type of “changed circumstance” that a defendant can show in support of a request for dissolution of an injunction. See SEC v. Thermodynamics, Inc., 464 F.2d 457, 461 (10th Cir.1972) (“[I]n instances where the defendant concerned is an individual, and where the alleged violation leading to the injunction was an incident of limited scope or duration, the passage of a substantial period of time with full compliance and with no other violations may be regarded as a significant factor showing a ‘change’ for these purposes. In reality this is about all an individual can show under these circumstances”); 11A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, FedeRal PRACTICE & Procedure: Civil 2d § 2961, at p. 405 (2007) (“Nonetheless, in many cases the critical motivation for the court’s lifting of an equitable order does not really seem to be a change in the operative facts of a case as much as a change in the attitude of the enjoined party. A significant period of compliance probably is good evidence of a proper frame of mind and in many cases it is the only showing that a party seeking vacation is able to make to the court”).

Here, in contrast, compliance is not the only measure by which the court can determine whether or not the conditions that justified entry of the injunction remains extant today. The government has submitted evidence that it has made overarching, structural changes in the manner in which it processes immigration detainees, including the adoption of new forms and procedures to ensure that aliens are advised of their right to apply for asylum, the promulgation of detention standards, and the creation of a detention facility review unit dedicated to ensuring that each of the 201 facilities housing aliens for more than 72 hours meets the new standards. In addition, the government has presented compelling evidence that changed country conditions in El Salvador have mooted one of the