Full opinion text
KENYON, District Judge. This action presents a nationwide challenge to certain practices and procedures allegedly employed by the Immigration and Naturalization Service (“INS”) in the detention, processing, and removal of Salvadoran nationals who have entered the United States. Plaintiffs, on behalf of themselves and a proposed class numbering in the thousands, claim that they fled political persecution, torture and death in El Salvador in the hope of finding refuge in the United States. Instead, the record before the Court indicates that they have been met with a summary removal process, usually carried out by the INS with little or no regard for the procedural or substantive rights of aliens under United States immigration law. By way of these motions plaintiffs sought provisional class certification and a preliminary injunction restraining the INS from, inter alia, (1) using coercive tactics to cause members of the class to accept “voluntary departure” to El Salvador; (2) failing to advise class members of their right to counsel, their right to apply for political asylum, and their right to a hearing prior to deportation; (3) denying detained class members the effective assistance of counsel by refusing to recognize counsel’s authority to revoke voluntary departure agreements and by limiting class members’ access to counsel and legal information; (4) placing detained class members into solitary confinement without first providing a hearing on the propriety of such punishment; and (5) commencing deportation hearings against any class member who requests political asylum prior to the issuance of the order to show cause which institutes the deportation process, until such person receives an adjudication of the asylum application from an INS district director. On April 30, 1982, the Court granted the motion for provisional class certification and issued a preliminary injunction in substantially the form requested by plaintiffs. Because of the need to act quickly in order to stop the summary removal of class members from the United States on a daily basis, the factual findings in the April 30, 1982 Orders were necessarily limited. Having considered the briefs, affidavits, and documentation submitted by both sides, and the argument of counsel at the April 9 and 16, 1982 hearings on this matter, the Court now finds the facts and states the conclusions of law as set forth herein. I. PARTIES The 19 named individual plaintiffs are citizens and natives of El Salvador residing within the United States who have been taken into custody by the INS and subjected to the practices and procedures described herein. They bring suit on their own behalf and on behalf of all citizens and nationals of El Salvador eligible to apply for political asylum under 8 U.S.C. § 1158 who (a) have been or will be taken into custody pursuant to 8 U.S.C. § 1357 by agents of the Immigration and Naturalization Service; or (b) subsequent to June 2, 1980, requested, or will in the future request, political asylum within the United States prior to being served with an order to show cause pursuant to 8 C.F.R. § 242.1, whose applications for asylum have not or will not be presented to a district director for adjudication in accordance with 8 C.F.R. § 208.-8. Defendant William French Smith is the duly appointed Attorney General of the United States and is charged with the administration and enforcement of all laws relating to the immigration, deportation, and naturalization of aliens. See 8 U.S.C. § 1103(a). All INS agents and employees act pursuant to a series of delegations of authority vested in the Attorney General. Defendant Immigration and Naturalization Service is a federal agency within the United States Department of Justice and is responsible for enforcing the immigration and naturalization laws and for promulgating regulations and policies pursuant thereto. Defendant Edward O’Connor is the Western Regional Commissioner of the INS. He is subject to the supervision and direction of the Commissioner of the INS and is sued in his official capacity. He is responsible for directing INS operations in the Western Region, which includes the states of California, Arizona, Nevada, and Hawaii. Defendant O’Connor resides in the Central District of California. At least some of the policies and practices complained of by the plaintiffs in each of Counts 1, 2, 3, 4, 6, and 8 have occurred in the Central District of California. No real property is involved in this action, nor do plaintiffs seek monetary damages. II. CONDITIONS IN EL SALVADOR In requesting the Court to enjoin certain practices and procedures of the INS, plaintiffs claim that they face irreparable injury in the form of removal to El Salvador if relief is denied. Plaintiffs have submitted voluminous evidence of the violent and dangerous conditions which permeate daily life in El Salvador in support of this claim. Several plaintiffs and proposed class members have related the brutal experiences which motivated their flight to the United States. For example, plaintiff Crosby Wilfredo Orantes-Hernandez gives the following account: On Mother’s Day, May 10, 1978, at about 11:30 p. m., about 25 government security soldiers of the National Guard arrived at our house.... Five of the National Guard came up to the door and knocked. When no one answered they kicked the door down and entered. They asked my mother where the men were. My uncles, my brothers and I were asleep in the back but my mother refused to answer. When my mother refused to answer their questions, they grabbed her by the hair and threw her against the wall, injuring her forehead. She fell to the floor and one of the guards stepped on her neck with his boot and hit her in the face with his rifle.... My sister then told the soldier that only my uncles and my brothers were in the house. My uncles, my brothers and I were told to come out. The soldiers tied my uncles’ thumbs together with cords that cut into their fingers. They began to beat them in the face with rifles. Both of my uncles were bleeding profusely. The guards also severely beat me using their fists and rifles. When the National Guard left our house, they took my uncles. .. Two days later, their bodies turned up. Their heads were mutilated and their sexual organs cut off. Also their eyes had been gouged out. Plaintiffs’ Exhibit 13. Another plaintiff recounts the following story: One night a group of armed men came to my grandmother’s house in Santa Ana, El Salvador. They were with the Esquadron de la Muerte — a paramilitary death squad that is responsible for the massacre of hundreds of people in El Salvador. Myself and seven friends were ordered into the front of my grandmother’s house. Moments later, the armed men began shooting at us. Five of my friends were killed; one of the five vras a pregnant woman — she was seventeen years old. I managed to escape death by throwing myself on the ground and acting as though I were dead; I was only wounded in the back by one of the death squad bullets.... The day after the attack armed men again came to my grandmother’s house looking for me. They told a friend that was there to call them if they saw me. I decided to leave the country. The evidence before the Court contains numerous accounts of a similar nature. To a great degree, these descriptions of unexplained disappearances, random violence, and retaliatory torture are corroborated by the findings of the President and the Department of State reflected in the evidence submitted by the defendants. The following excerpts from a report on El Salvador prepared by the State Department and submitted to Congress are illustrative: Statistics on numbers of people killed as a result of El Salvador’s current political violence are difficult to obtain and are unreliable. Available figures are useful principally to set trend lines. Two Salvadoran institutions, the Legal Aid Office which identifies itself with the Archbishopric, and the staff of the Central American University (UCA), maintain statistics on the number pf persons murdered. Both institutions are sympathetic to anti-government forces. Their statistics often have a monthly variance numbering in the hundreds. The United States Embassy in San Salvador maintains its own count of death attributable to political violence, gleaned primarily from press reports. According to the embassy’s count, there were 6,116 violent deaths during the twelve-month period ending January 1,1982. The embassy’s figures also show a decline in average monthly totals from around 800 per month in late 1980 and the beginning of 1981 to 200-400 per month at the end of the year. Some Church sources claim that perhaps twice as many non-combatants have been killed. a. Torture The 1952 constitution prohibits “all forms of torture.” There have been numerous reports that terrorists of both the left and the right have used torture to gain information and to intimidate their opponents. Bodies bearing clear signs of torture have been discovered. Despite constitutional bans and government policy against using torture, individual members of the security forces may have been involved in unsolved crimes of murder with torture. There have been credible accounts of torture and abuse at interrogation centers operated by the security forces, especially the treasury police, during investigations of people suspected of subversion. Some persons who have been captured by government forces have alleged that they were tortured during interrogation. Psychological torture by leftist and rightist terrorists in the form of threats against or murders of family members of prisoners has also been claimed. c. Disappearances Disappearances in El Salvador are frequent and are attested by frequent petitions for information in the local press. Paramilitary or security forces personnel probably bear responsibility in a number of these cases. In the frequent habeas corpus proceedings that arise from these disappearances, however, the government forces invariably deny a connection with these disappearances. The guerrillas are also known to impress young men into their ranks by coercion. The large number of corpses, often mutilated, discovered throughout El Salvador dictates quick, on-the-spot burial. It is often impossible to identify a corpse before it must be interred. This intensifies the tragedy of the disappeared. Unidentified bodies have been discovered at isolated spots around the country, such as the El Playón lava bed outside San Salvador. d. Arbitrary Arrest and Imprisonment El Salvador’s judicial system does not function effectively when politically motivated crimes are brought before it. Until passage of decree 507, no serious attempts were made to use the judiciary to control political violence. Judiciary staffs have themselves been the frequent targets of threats and assassination attempts. Consequently, no matter how strong the evidence against them, those of the right and left charged with crimes of violence are regularly released by intimidated courts. The incapacity of the judicial system has encouraged elements of the security forces and ordinary citizens to ignore it and to dispense their own brands of “justice.” Under normal Salvadoran law, a person can be arrested and legally held for 72 hours. Many detainees have spent a longer period awaiting trial. Most detainees are suspected members of armed leftist groups arrested during raids or routine searches for arms or propaganda. At the end of November 1981 there were a total of 381 political prisoners under detention at the Mariona, Santa Tecla and Women’s Prisons. At any given time, many people — perhaps several hundreds — are detained at police detention centers around the country under state of siege regulations for periods of 72 hours to 180 days. U.S. Dep’t of State, Country Reports on Human Rights Practices for 1981, Report to the House Comm, on Foreign Affairs & Senate Comm, on Foreign Relations, 97th Cong., 2d Sess. 425-28 (Comm. Print 1982). The pervasive and arbitrary violence in El Salvador has been amply documented by international human rights organizations as well. For example, Amnesty International, a London-based organization, has concluded “that there has been a consistent pattern of killing by the security forces of peasants, young people and other victims who had no part in guerrilla activity.” Letter from Amnesty International to U.S. Secretary of State Alexander Haig (May 6, 1981) (discussing possible impact of United States military assistance to El Salvador on Amnesty International concerns in that country). In short, the violent conditions in El Salvador are a matter of public record and are corroborated by all available accounts. The Court therefore believes that it can take judicial notice of the following facts without having to “second guess” the Executive Branch’s analysis of events in El Salvador, as feared by defendants: (1) El Salvador is currently in the midst of a widespread civil war; (2) the continuing military actions by both government and insurgent forces create a substantial danger of violence to civilians residing in El Salvador; and (3) both government forces and guerrillas have been responsible for political persecution and human rights violations in the form of unexplained disappearances, arbitrary arrests, torture, and murder. See Perez-Funez v. District Director, No. CV 81-1457 (C.D.Cal. March 24, 1982). III. INS TREATMENT OF DETAINED SALVADORANS A. Coerced Signing of Voluntary Departure Agreements Without Notice of Rights The foregoing makes clear that for many Salvadorans the decision to enter the United States is one born of desperation. Yet, in many instances, the hope and expectations which they bring to the United States prove to be short-lived. Under United States immigration law, plaintiffs and the class they seek to represent are eligible to apply for political asylum and to request a deportation hearing prior to their departure from the United States. See 8 U.S.C. §§ 1158,1252(b), 1253(h). Nonetheless, the vast majority of Salvadorans apprehended by the INS sign voluntary departure agreements which commence a summary removal process and may result in their return to El Salvador almost immediately after their arrest. The record before the Court indicates that the widespread acceptance of voluntary departure is due in large part to the coercive effect of the practices and procedures employed by the INS and the unfamiliarity of most Salvadorans with their rights under the immigration laws. The process of securing a voluntary departure agreement begins with the initial, sometimes abusive, contact between the INS agent and the apprehended Salvadoran. Without in any way passing judgment on the conduct of INS agents in individual situations, the Court believes that consideration of the circumstances of the arrests from the arrestees’ point of view is essential to an understanding of the subdued state of many Salvadorans at the time they accept voluntary departure. For example, plaintiff Crosby Wilfredo Orantes-Hernandez gives the following account of his arrest by INS agents on September 14, 1981: I was getting off a bus at Venice and Main in Culver City when INS agents in civilian clothing followed a companion and myself in a van. The van stopped and one man approached. My companion ran immediately but the agent grabbed me by the arm and twisted it behind my back. He threw me against the van and held me by the arms while a second agent took out his revolver and struck me very hard in the face, twice. I began to bleed profusely from the nose and mouth. I believe they beat me because my companion ran. They shoved me in the van and took my wallet and went through it, taking out my driver’s license and an ID card. Plaintiffs’ Exhibit 13. Plaintiff Adelso Salome Flores was arrested in the following manner: On the 8th of December, 1981,1 went out to shop and was returning to work, walking down 7th Street at Main [s/c ], when suddenly a man dressed in civilian clothes came running up to me. When I saw him, he caught me by surprise and in that instant I pulled away. But, from behind, a Black man, also dressed in civilian clothing pushed me. Together they hit me in the face and legs to make me fall, finally throwing me to the ground. One grabbed me by the arms and the other put his knees on my chest. They wouldn’t say anything, so I asked them, “What happened? Who are you?” in English because I thought they didn’t speak Spanish. After that they put handcuffs on me, one of them took out his badge and showed it to me. He was Immigration. Plaintiffs’ Exhibit 18. See also Plaintiffs’ Exhibits 10, 15, 34. Following their arrest, Salvadorans are customarily taken to INS detention facilities for “processing.” During these sessions they are requested to provide biographical information and are given the opportunity to apply for voluntary departure from the United States pursuant to 8 U.S.C. § 1252(b). Although voluntary departure is only one of the alternatives available to arrested aliens, the evidence before the Court discloses a variety of techniques used by INS agents to obtain consent to voluntary departure, ranging from subtle persuasion to outright threats and misrepresentations. Further, on this record it appears that Salvadorans are rarely given any notice of their rights or any information regarding other options. Even if the Salvadorans have independent knowledge of available alternatives, the agents apparently persist in their attempts to secure voluntary departure agreements. The following account by plaintiff Dora Elia Estrada is illustrative: I was taken to a border patrol station in El Centro, California, where I was questioned by a border patrol agent as to the circumstances of my entry. While I was talking, I was handed a form and told to sign without any explanation of what the form said. I insisted on reading it, however, and discovered it was a form in which I was agreeing to go back voluntarily to El Salvador. I refused to sign it and said that I wanted to remain here and apply for political asylum.... The INS official told me that I could not get political asylum in the United States, and that I would have to remain in jail for a long period of time. Moreover, he told me that I would be placed in a cell with men, leaving me with the impression that I would be sexually molested. He did not mention to me that I had a right to place a bond to get out of custody, that I had the right to call a lawyer, or that I had the right to go before an Immigration Judge to try to ask for release on my own recognizance or have bail lowered. He also told me that [not] only [would] my political asylum application be denied, but that they would inform the authorities in El Salvador of all the information that I had given them. Plaintiffs’ Exhibit 23. The evidence before the Court is replete with similar firsthand descriptions. Plaintiffs Marta Ester Paniagua-Vides and Juan Francisco Perez-Cruz were given voluntary departure forms by INS agents and told to sign without the slightest indication that they had any choice in the matter. Plaintiffs Maria Elena Molina, Uvaldo Aguilar, Dora Alicia Ayala de Castillo, Marta Osorio, and Gloria de Flores were told that they would remain incarcerated for long periods of time if they did not accept voluntary departure. Plaintiff Perez-Cruz was repeatedly grabbed by the collar and interrogated relentlessly until he disclosed his country of origin and signed the voluntary departure form. Plaintiff Molina asked the INS agent several times if she had any alternative to voluntary departure but received no information. Plaintiff Adelso Salome Flores asked to speak to a lawyer but was told that she would have to answer the agent’s questions before making any calls. See Plaintiffs’ Exhibits 12,14,18-19, 22, 24, 66 — 67; Transcript of April 9, 1982 hearing (“TR-I”) at 94-96. The affidavits before the Court, as well as the position taken at the April 16, 1982 hearing by the INS Chief Counsel, reveal that the INS and its agents are particularly unwilling to divulge any information regarding the political asylum process. Under 8 U.S.C. § 1158(a) asylum may be granted to aliens who have a well-founded fear that they would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion if they returned to their country of origin. See id. § 1101(A)(42). Defendants freely acknowledge that INS agents as a rule do not give any notice of the existence of the asylum procedures and argue that such notice is not required. Yet even when plaintiff Jose Adilman Barahona specifically requested an opportunity to apply for asylum, he was told that asylum was not available. Plaintiffs Aguilar, Ayala de Castillo, and Paniagua-Vides told the INS agents that they feared death upon returning to El Salvador; still they were not informed of the possibility of asylum. See Plaintiffs’ Exhibits 12, 14, 19. The foregoing also reveals that INS agents may not allow Salvadorans to consult with retained counsel prior to signing the voluntary departure forms. Although the INS acknowledges that aliens have this right and includes notice thereof on the voluntary departure forms, Salvadorans often are not allowed to consult with counsel until after they have consented to voluntary departure. At the April 9, 1982 hearing counsel for defendants explained that some INS agents give the full Miranda warning before questioning any alien and suspend all questioning once a request for counsel is made, but others allow the alien to contact counsel only after completion of the required “processing.” TR-I at 194-97. Even those Salvadorans fortunate enough to secure legal representation may be unable to avoid voluntary departure. Defendants’ present practice is to refuse to recognize the authority of counsel to stop the removal process until a formal notice of representation (“Form G-28”) is filed. See 8 C.F.R. § 292.4 (1981). Yet the record indicates that Salvadorans are frequently arrested, deposited in waiting rooms, interrogated, put onto buses, and flown back to El Salvador all in a matter of hours. Because of the rapidity of this process, it is often physically impossible for counsel to locate their clients and file the Form G-28 before the client is removed from the country. The experience of William H. Steiner, an attorney who frequently represents Salvadorans, in attempting to stop the return of Jose Manuel Trejo highlights the dilemma posed by the Form G-28 requirement: Immediately after receiving the ... telephone call [from Mr. Trejo’s family], I telephoned the Immigration & Naturalization Service detention facility at El Centro, California, and spoke with INS Officer Sagredo. This was at approximately 4:45 p. m., March 3, 1981. I informed Officer Sagredo that I was representing Mr. Trejo and orally advised him that Mr. Trejo was, through his counsel, withdrawing all waivers of any rights that he may have previously executed, including any waivers to a due process deportation hearing and the right to apply for political asylum. Mr. Sagredo informed me that this information would be transferred to Mr. Trejo’s file and that I should mail an INS form G-28, a notice of representation of counsel, to INS Officer Rick Mathyer, Immigration & Naturalization Service, 1111 N. Imperial Avenue, El Centro, California, 92243. Officer Sagredo further indicated that “there would be no problem” with respect to an immediate deportation of Mr. Trejo and with my preparing and filing a political asylum application for him. I immediately completed and mailed an INS form G-28 to the INS detention facility at El Centro as per the instructions of Officer Sagredo. At approximately 9:00 a. m. on March 5,1981,1 was telephoned by Mr. Trejo’s sister who informed me that she had attempted to contact her brother in El Centro, California, on March 4, 1981, and had been advised by an INS agent that her brother was in the process of being deported to El Salvador. At approximately 9:30 a. m., March 5, 1981, I telephoned the INS detention facility at El Centro and spoke with INS Officer Malone, Supervisor of Deportation. He advised me that my client, Mr. Trejo, had been removed from the INS El Centro detention facility to Los Angeles International Airport and had been required to depart the United States to El Salvador at 6:00 p. m. on March 4,1981. On March 6, Officer Harry F. Malone forwarded a letter to me confirming that Mr. Trejo “was returned to his country of nationality on March 4, 1981” and further stating that my notice of entry as counsel (INS form G-28) and letter withdrawing waivers previously executed by my client had been received at the El Centro detention facility on March 6,1981. My client was removed from the United States subsequent to my notifying the Immigration & Naturalization Service of my entry into the case as counsel and while I was in the process of preparing Mr. Trejo’s political asylum application. Plaintiffs’ Exhibit 30 ¶¶ 5-6; see also Plaintiffs’ Exhibit 27 ¶ 4. Even after the Form G-28 is filed, the record indicates that the INS may refuse to recognize counsel’s authority to revoke voluntary departure agreements on behalf of their clients. According to attorney Jorge Gonzalez, one INS agent told him that a voluntary departure agreement is not effectively withdrawn “solely because an attorney [instructs the agent that it is to be withdrawn].... [Only] when the client [makes] such [a request] would the deportations be cancelled.” Plaintiffs’ Exhibit 31 ¶ 6. Attorney Linton Joaquin testified that he has filed the Form G-28 only to be told that he could not revoke a voluntary departure agreement until he personally spoke with his client. TR-I at 145-47. The supposed ability of Salvadoran detainees to revoke the voluntary departure agreements on their own does not mitigate the cumulative effect of the foregoing practices and procedures. Although the form itself states that the agreement is revocable, the failure of many Salvadorans to understand the significance of the forms has been well-documented. See supra notes 9-10 and accompanying text. Further, plaintiff Molina testified that she was not allowed to keep a copy of the form and thus had no notice of its revocability. TR-I at 128. Attorney Joaquin testified that several of his clients had tried unsuccessfully to retract their consent to voluntary departure prior to securing legal representation. Id. at 180. In any case, Salvadorans are not likely to revoke the agreements unless they somehow learn that alternatives to voluntary departure are available. The record in this case indicates that the mistreatment of Salvadorans is not limited to any particular geographic area or to the conduct of a few INS agents. The experiences of the plaintiffs and proposed class members took place in a wide variety of locations, including California, Arizona, Texas, Oklahoma, and Massachusetts. See, e.g., Plaintiffs’ Exhibits 10, 12-13, 27, 35, 58-60, 66-68, 72-73. These stories are corroborated by affidavits from persons who have spoken with hundreds of Salvadorans after their arrest and interrogation by the INS. Attorneys who frequently represent Salvadorans have confirmed that the majority of their clients had no idea that the signing of the departure forms was intended to be “voluntary.” See Plaintiffs’ Exhibits 27, 30, 70; TR-I at 135. The sheer volume of evidence before the Court and the similarity of the experiences therein belie the contention by defendants that plaintiffs’ claims center on isolated incidents of misconduct. Based on this record, the Court concludes that INS agents routinely give incomplete, misleading, and even false advice to Salvadorans regarding their legal rights. This practice, coupled with the other coercive tactics set forth above, understandably can lead Salvadorans to believe that they have no alternative but to depart “voluntarily.” B. Conditions in INS Detention Facilities For Salvadorans forced to remain in the custody of the INS while awaiting deportation hearings or transportation to El Salvador, the record substantiates plaintiffs’ charges of poor treatment and continued denial of legal information. The evidence before the Court indicates that Salvadorans incarcerated in the INS facilities in Pasadena, Los Angeles, Chula Vista, and El Centro are prohibited from receiving or possessing any written materials, with the exception of the New Testament of the Bible. See Defendants’ Exhibit K ¶¶ 19-21 (declaration of Harry F. Malone); Plaintiffs’ Exhibit 54 ¶ 4 (declaration of Jorge Gonzalez); TR-I at 154 (testimony of Linton Joaquin). Packets of written materials explaining the legal rights of aliens are routinely confiscated. See Plaintiffs’ Exhibits 16, 28, 32. Defendants claim that such restrictions are necessary because of the danger of fire and the likelihood that written materials will be used to clog toilets and other drains. See Defendants’ Exhibit K ¶¶ 20-21. Incarcerated Salvadorans may receive visitors only during limited hours. Visiting hours at the Los Angeles and Pasadena facilities are, respectively, 8:00 a. m. to 6:00 p. m. and 10:00 a. m. to 7:00 p. m. See Defendants’ Exhibit J ¶ 9. At the El Centro facility, visiting is allowed between the hours of 8:00 a. m. and 4:00 p. m. See Defendants’ Exhibit K ¶ 10. Because of the distance of the El Centro facility from Los Angeles, attorneys travelling to El Centro are frequently unable to complete their interviews with class members in the time available. See Plaintiffs’ Exhibit 32. Defendants contend that the hours must be restricted because of the lack of space and the limited staff. incarcerated Salvadorans also experience great difficulty in obtaining access to telephones at these facilities. The Court heard uncontradicted testimony that the Chula Vista facility has no telephones available for the use of detainees. TR-I at 142. At the Los Angeles and Pasadena facilities, five and two public telephones, respectively, are available. At the El Centro facility, defendants at one time provided only two public telephones but have represented to the Court that six additional telephones will be installed in the near future. See Defendants’ Exhibit K ¶ 16. On a nationwide basis defendants have adopted a policy that paralegals working under the supervision of counsel may not interview detainees unless the attorney is present. See id. ¶ 11; Defendants’ Exhibit J ¶ 9; Plaintiffs’ Exhibit 56 ¶ 5 (declaration of Jorge Gonzalez). This policy severely hampers the ability of attorneys to provide legal services. See id. In addition to limiting access to legal information and counsel, defendants’ current guidelines allow Salvadoran detainees to be placed in solitary confinement without notice or an opportunity to be heard. Defendants’ Exhibit K ¶ 18. This policy may result in the indiscriminate imposition of punishment, as illustrated by the experience of plaintiff Jose Sanchez-Flores: Conditions at the El Centro facility are severe. We are not given any clothing while in the camp, and we are subject to being punished without a prior hearing for little or no reason. I have been placed in “La Loba” — a cell where prisoners are placed for solitary confinement— on three different occasions. Once I was placed in solitary confinement for four days, and on two other occasions I spent three days in solitary confinement. I was punished in this way for not staying in my place in the long line that forms at meal time, for throwing a piece of soap on the roof of one of the barracks, and for playing with a friend. I was never given a hearing regarding whether I should be punished so severely for such minor acts. Plaintiffs’ Exhibit 16; see also Plaintiffs’ Exhibit 11 at 4. C. Conclusion With some exceptions, the above findings are taken almost exclusively from the declarations and other evidence presented by plaintiffs, which defendants have left largely uncontested. Instead, defendants have focused their energy on the legal questions raised by plaintiffs’ claims, urging the Court to step carefully because of the sensitivity of many of these issues. The Court recognizes both the need for care and restraint and the need to act quickly to put an end to the practices just described. It is with these concerns in mind that the Court has considered and resolved the following legal issues. IV. JURISDICTION AND VENUE At the outset of this litigation defendants moved to dismiss several causes of action for lack of subject matter jurisdiction. In a ruling issued from the bench on April 9, 1982, and formalized in its Order Dated May 11, 1982, the Court denied defendants’ motion in its entirety. The reasoning behind the Court’s conclusions that jurisdiction is proper over all causes of action will be set out in an abbreviated fashion here and will include only the causes of action put in issue by the preliminary injunction motion. In asserting the Court’s lack of jurisdiction, defendants argue that plaintiffs may challenge the alleged deprivations of their right to apply for asylum and their right to the effective assistance of counsel only in deportation hearings before an immigration judge. Should deportation orders be issued, defendants contend that plaintiffs must first exhaust the administrative review procedures provided by INS regulations, see 8 U.S.C. § 1105a(c), and then seek judicial review only in a court of appeals pursuant to 8 U.S.C. § 1105a. Defendants misinterpret the parameters of the exhaustion and exclusive jurisdiction provisions. Section 1105a vests the appellate courts with exclusive jurisdiction over all matters incident to a final order of deportation and requires the party seeking review to exhaust the administrative remedies provided by the immigration laws and regulations before bringing suit. Section 1105a does not apply, however, to denials of discretionary relief by the Immigration and Naturalization Service or to other claims unrelated to a final order of deportation, and jurisdiction over these matters remains with the district courts. See, e.g., INS v. Stanisic, 395 U.S. 62, 68 n.6, 89 S.Ct. 1519, 1523 n.6, 23 L.Ed.2d 101 (1969); Cheng Fan Kwok v. INS, 392 U.S. 206, 212, 88 S.Ct. 1970, 1974, 20 L.Ed.2d 1037 (1968); Lai Haw Wong v. INS, 474 F.2d 739, 742 (9th Cir. 1973); 8 U.S.C. § 1329. Because plaintiffs’ challenges relate to procedures employed by the INS prior to the commencement of deportation hearings, these challenges can and must be brought in a district court. See Fleurinor v. INS, 585 F.2d 129, 136 n.6 (5th Cir. 1978); Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 457-61 (S.D.Fla.1980), aff’d as modified, 676 F.2d 1023 at 1033-36 (5th Cir. 1982). Further, to require plaintiffs to raise their claims in deportation hearings would effectively ensure that some plaintiffs never raise these claims at all. Because of the voluntary departure process, many of the proposed class members will return to El Salvador without ever participating in deportation hearings. It is well-settled that exhaustion will not be required when the administrative remedies are inadequate. See, e.g., NLRB v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 426 n.8, 88 S.Ct. 1717, 1722 n.8, 20 L.Ed.2d 706 (1968). Administrative remedies are of no avail to those plaintiffs who will never enter the deportation process. Defendants argue additionally that this Court lacks jurisdiction over plaintiffs’ claim that they are entitled to notice of the right to apply for political asylum because of the political question doctrine. Defendants claim that a finding in plaintiffs’ favor would encourage asylum applications and would amount to a foreign policy determination which should be made only by Congress or the Executive Branch. This argument fails for two reasons. First, a finding that notice of the asylum process is required in no way amounts to a determination that Salvadorans should be granted asylum or even that they should receive special consideration because of the civil war in El Salvador. Second, although the Court recognizes the great deference owed to Congress and the President in the immigration field, the deference owed the INS is more circumscribed. The Court clearly has the power to determine whether the INS is complying with the laws and Constitution of the United States and whether it is depriving Salvadorans of their rights to due process, as alleged by the plaintiffs in this case. See Hampton v. Mow Sun Wong, 426 U.S. 88, 101-03, 96 S.Ct. 1895, 1904-05, 48 L.Ed.2d 495 (1976); Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950); Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1068 n.5, modified, 548 F.2d 715 (7th Cir. 1976); Haitian Refugee Center v. Civiletti, 503 F.Supp. at 470-73. The Court agrees with the defendants that it has no constitutional authority to determine the nation’s foreign policy, but, by the same token, the Court cannot constitutionally avoid its duty to hear due process challenges to governmental action simply because those challenges touch on foreign relations. Cf. Chadha v. INS, 634 F.2d 408, 419 (9th Cir. 1980), cert. granted, 454 U.S. 812, 102 S.Ct. 87, 70 L.Ed.2d 80 (1981) (court considered immigrant’s claim that statute violated separation of powers doctrine); Olejario v. United States, 629 F.2d 204 (2d Cir. 1980), cert. denied, 450 U.S. 980, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981) (political question doctrine did not bar jurisdiction of claim by naturalization applicant that executive branch had violated Congress’ intent to grant citizenship to certain Filipino nationals); see generally Baker v. Carr, 369 U.S. 186, 211-13, 82 S.Ct. 691, 706-07, 7 L.Ed.2d 663 (1962). The Court therefore concludes that it has jurisdiction over the parties and subject matter of this action pursuant to 28 U.S.C. § 1331 and 8 U.S.C. § 1329. Venue is properly laid over all causes of action pursuant to 28 U.S.C. § 1391(b) & (e)(1), (2). V. MOTION FOR PROVISIONAL CLASS CERTIFICATION Pursuant to Federal Rule of Civil Procedure 23(b)(2), plaintiffs move this Court for a provisional certification of the following classes of persons: All citizens and nationals of El Salvador eligible to apply for political asylum under 8 U.S.C. § 1158 who (a) have been or will be taken into custody pursuant to 8 U.S.C. § 1357 by agents of the Immigration and Naturalization Service; or (b) subsequent to June 2, 1980, requested, or will in the future request, political asylum within the United States prior to being served with an order to show cause pursuant to 8 C.F.R. § 242.1, whose applications for asylum have not or will not be presented to a district director for adjudication in accordance with 8 C.F.R. § 208.-8. A. Membership in an Identifiable Class In determining whether class certification is proper, the Court must consider, first, whether plaintiffs seek to represent an identifiable class, and, second, whether the named plaintiffs themselves are members of that class. See 3B Moore’s Federal Practice ¶ 23.04 (1982). The Court is satisfied that the first requirement is met here. The proposed class is neither too vague nor overly broad. Although subparts (a) and (b) of the definition may overlap, such overlap is necessary in order to create two classes concerned with different issues. See 7A Wright and Miller, Federal Practice and Procedure § 1790 (1972). Similarly, any overlap with two other recently filed class actions, Nunez v. Boldin, No. B-81-311 (S.D.Tex.), and Perez-Funez v. District Director, No. 81-1457 (C.D.Cal.), is necessary because of the nationwide scope of the relief sought in this action. The defendants’ objection that nationwide relief is inappropriate because they do not single out Salvadorans for poor treatment is in reality an attempt to interject the merits of plaintiffs’ claim into the decision of whether a class should be certified. Where the class is defined by reference to the defendants’ alleged nationwide practices, nationwide certification is proper. See 1 Newberg on Class Actions § 2094, at 597 (1977); Metropolitan Area Housing Alliance v. United States Department of Housing and Urban Development, 69 F.R.D. 633, 638-39 (N.D.Ill.1976). Cf. Illinois Migrant Council v. Pilliod, 540 F.2d 1062, modified, 548 F.2d 715 (7th Cir. 1976) (certifying statewide class based on defendants’ alleged practices). The Court is also satisfied that at least some plaintiffs are members of the class they seek to represent with regard to each claim for relief in the proposed preliminary injunction. The requirement that plaintiffs be members of the class is simply another way of stating that the named plaintiffs must have standing to bring the action and must present an ongoing case or controversy before they may represent the interests of others. See 1 Newberg on Class Actions §§ 1040, 1072a, 1080b (1977). The standing question arises because of the claims made by the named plaintiffs in Counts 1 (use of coercive tactics to secure voluntary departure agreements), 2 (failure to advise of right to apply for political asylum), and 8 (failure to allow district director adjudication of asylum applications prior to commencement of deportation hearings) of the First Amended Complaint. Most of the named plaintiffs therein had been released from custody and had revoked their voluntary departure forms at the time this action was filed. Hence defendants contend that the claims of these plaintiffs were resolved before the filing of the Complaint and urge that judicial review is no longer necessary. The difficulty in this area is not whether the named plaintiffs have standing in the sense that that term is used to refer to “injury-in-fact,” because the Complaint clearly discloses the occurrence of such injury. Nor can it seriously be argued that the asserted injuries are not within the “zone of interests” protected by the statutes and constitutional rights on which plaintiffs’ claims are based. See Data Processing Service v. Camp, 397 U.S. 150, 153-54, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970). Instead, the Court must decide whether plaintiffs’ claims are sufficiently “ripe,” i.e., whether they face a threat of future injury sufficient to justify judicial intervention, and/or whether plaintiffs’ claims have become “moot,” i.e., whether the need for such intervention continues and whether plaintiffs retain the necessary personal stake in the outcome of the litigation. The issues of standing, ripeness, and mootness are often so intertwined that complete disentanglement is impossible. See Warth v. Seldin, 422 U.S. 490, 499 n.10, 95 S.Ct. 2197, 2205 n.10, 45 L.Ed.2d 343 (1975); Lyons v. City of Los Angeles, 615 F.2d 1243, 1246 & n.5 (9th Cir.), cert. denied, 449 U.S. 934, 101 S.Ct. 333, 66 L.Ed.2d 158 (1980), aff’g preliminary injunction, 656 F.2d 417 (9th Cir. 1981), cert. granted, - U.S. -, 102 S.Ct. 1426, 71 L.Ed.2d 647 (1982). However, because each doctrine addresses itself to specific and legitimate concerns which are present in this action, separate treatment is warranted. 1. Ripeness. To the extent that the named plaintiffs in Counts 1, 2, and 8 seek prospective injunctive relief to enjoin conduct which they have been subjected to in the past, plaintiffs must show that their claims are “ripe” for such relief; in other words, they must demonstrate the possibility of “real and immediate future injury.” See Rizzo v. Goode, 423 U.S. 362, 372, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976); O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 675-76, 38 L.Ed.2d 674 (1974). Under a strict interpretation of Rizzo and O’Shea, plaintiffs could not meet this requirement because the alleged injuries have already been inflicted and plaintiffs will not be subject to the challenged practices in the future unless they prevail in their deportation hearings and are again detained by INS agents. However, the Ninth Circuit’s recent decision in Lyons v. City of Los Angeles, supra, eschews a rigid application of the principles in Rizzo and O’Shea and requires the Court to look at the specific facts of the case before it. Plaintiffs here are challenging the widespread use of coercive tactics by the INS to obtain voluntary departure agreements, coupled with the alleged failure to provide adequate notice of rights. Both sides agree that hundreds of Salvadorans are arrested, processed, and returned to El Salvador each month. The alleged practices of the defendants, if true, not only facilitate the rapid processing of Salvadorans but also make it virtually impossible for prospective plaintiffs to remain in this country long enough to bring suit. Hence the Court cannot reasonably refuse to hear plaintiffs’ charges by vague reliance on the principles of judicial restraint. See Illinois Migrant Council v. Pilliod, supra; Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966). See generally Loya v. INS, 583 F.2d 1110, 1114 (9th Cir. 1978) (court notes that it would be inclined to enjoin future misconduct by the INS in using dragnet tactics to pick up illegal aliens “giving due consideration to the prudential limitations on the exercise of the court’s power to grant equitable relief.”). In this situation, as in Lyons, the named plaintiffs may again be detained and subjected to the challenged practices. Moreover, “the threat of future injury to not only [the named plaintiffs] but to every [Salvadoran] in the [country] is much more immediate” than the speculative injury in Rizzo and O’Shea. See Lyons, 615 F.2d at 1246. The Court therefore concludes that the claims presented by plaintiffs for injunctive relief are ripe for judicial review. 2. Mootness. Regardless of whether plaintiffs face a recurrent injury as required for a “ripe” case or controversy, the Court believes that their past injury has not become moot through the revocation of the voluntary departure agreements and that plaintiffs maintain the necessary personal stake in the outcome of the litigation. Clearly these plaintiffs “once had a live and active claim meeting all the Article III requirements even under O’Shea and Rizzo, if only for a period that lasted but a few [hours].” Lyons, 615 F.2d at 1248. But these claims are of the type which is “capable of repetition, yet evading review.” Id. at 1249-50. If the anatomy of a voluntary departure is truly as plaintiffs allege, that is, if Salvadorans are coerced into signing voluntary departure forms which result in the waiver of their right to a deportation hearing and are given no notice of the opportunity to apply for political asylum, then it is painfully obvious that the majority of proper plaintiffs will be unable to bring suit because they will have “voluntarily departed” from this country. The remaining possible plaintiffs will have revoked their voluntary departure forms and entered the deportation process. If mootness is as strictly applied as defendants suggest, these plaintiffs will no longer present an injury which must be redressed. This untenable situation, coupled with the continuing adverse consequences with which the named plaintiffs are saddled, compels the conclusion that their claims for relief are not moot and that they retain membership in the class of persons which they seek to represent. See id. at 1249 n.11; 13 Wright & Miller, Federal Practice and Procedure § 3533, at 275, 285 (1975). In sum, the Court finds that each named plaintiff in Counts 1, 2 and 8 has standing and has presented a live case or controversy based on one or both of the following premises: (a) the named plaintiff has suffered past injury and faces a threat of recurrent injury; and (b) the named plaintiff had a live case or controversy for only a few hours which is “capable of repetition, yet evading review” because no plaintiff could ever pursue these claims if an exception to the mootness doctrine is not employed. Alternatively, the Court finds that plaintiffs Marta Osorio and Gloria de Flores, who at the time this action was filed were in defendants’ custody and had executed “voluntary” departure forms which had not been revoked and pursuant to which they were about to be returned to El Salvador, presented a live case or controversy at the time this action was filed with regard to Counts 1, 2, and 8. These plaintiffs therefore had standing to seek some form of injunctive relief, although not necessarily the broad injunctive relief available once a class is certified. See generally Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 522 F.2d 1235, 1238 (7th Cir. 1975), modified, 538 F.2d 164, cert. denied, 429 U.S. 986, 97, S.Ct. 506, 50 L.Ed.2d 598 (1976). Although these plaintiffs have now revoked thlir voluntary departure agreements and have applied for political asylum, they may nonetheless seek class certification with regard to these issues because their claims are “capable of repetition, yet evading review.” United States Parole Commission v. Geraghty, 445 U.S. 388, 400-07, 100 S.Ct. 1202, 1210-14, 63 L.Ed.2d 479 (1980); Gerstein v. Pugh, 420 U.S. 103, 110 n.11, 95 S.Ct. 854, 861 n.11, 43 L.Ed.2d 54 (1975); Sosna v. Iowa, 419 U.S. 393, 402 n.11, 95 S.Ct. 553, 558 n.11, 42 L.Ed.2d 532 (1975). Because these plaintiffs are still subject to and intimately involved with INS procedures as applied to Salvadorans, the “imperatives” of “sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions” are satisfied. See Geraghty, 445 U.S. at 403, 100 S.Ct. at 1211. The certification of the class ensures that the requisite adversity between the parties will continue. Sosna v. Iowa, 419 U.S. at 402, 95 S.Ct. at 558. B. Requirements of Rule 23(a) In order to be certified for class treatment, plaintiffs must demonstrate that the four requirements of Federal Rule of Civil Procedure 23(a) have been satisfied. The Court finds that plaintiffs have met their burden. 1. Numerosity and Impracticality of Joinder. The proposed class is so numerous that joinder is clearly impractical. The parameters of the class change on a daily basis as Salvadorans are apprehended and removed from the United States. Where the exact size of the class is unknown but general knowledge and common sense indicate that it is large, the numerosity requirement is satisfied. See 1 Newberg on Class Actions § 2094, at 596 (1977). 2. Common Questions of Law or Fact. Rule 23(a)(2) requires a showing of questions of law or fact common to the class. The declarations on file in this action allege a pattern or practice of INS conduct affecting hundreds of Salvadorans each month. Common questions of fact presented by these declarations include whether the INS routinely coerces Salvadorans into waiving their right to a deportation hearing prior to being removed from the United States; whether the INS deprives Salvadorans of their right to seek political asylum from a district director by refusing to comply with requests to apply for asylum until after an order to show cause is issued; whether the INS refuses to allow Salvadoran detainees the effective assistance of counsel by disregarding counsel’s attempts to withdraw agreements to voluntarily depart executed by detained clients; whether the INS fails to provide sufficient telephone facilities for incarcerated Salvadorans; whether incarcerated Salvadorans are placed into solitary confinement without first being provided a hearing on the propriety of such punishment; whether the INS unlawfully precludes incarcerated Salvadorans from receiving written materials, particularly materials explaining their rights under United States immigration law. Common questions of law include whether the INS is required to advise Salvadorans of their right to apply for political asylum; whether the INS violates Salvadorans’ right to counsel by refusing to recognize counsel’s authority to withdraw voluntary departure agreements; whether incarcerated Salvadorans are entitled to receive written materials, including materials explaining their rights under United States immigration law; whether incarcerated Salvadorans are precluded from gaining access to the courts and counsel because of limited telephone facilities; whether incarcerated Salvadorans are entitled to notice of the charges and an opportunity to be heard before being placed into solitary confinement; whether persons who indicate a desire to apply for political asylum prior to the issuance of an order to show cause are entitled to district director consideration of their asylum applications. Defendants argue that, notwithstanding the existence of these questions, class certification is inappropriate because factual questions unique to each individual plaintiff predominate and require “subjective” determinations rather than classwide treatment. Although defendants are correct in pointing out that each plaintiff’s claim to asylum and each plaintiff’s deportability must be determined individually, such individual claims are not presented in this case. Plaintiffs’ challenge to the legality of admitted INS procedures and their claim that certain practices are applied to the class as a whole clearly do present common questions. Consequently, “it makes no difference that a variety of specific activities are complained of or constitutional violations are alleged.” Alliance to End Repression v. Rochford, 565 F.2d 975, 979 (7th Cir. 1977). 3. Typicality of Claims. The typicality requirement of Rule 23(a)(2) is satisfied here by the showing of common questions of law or fact as well as the division of the representative plaintiffs into appropriate subclasses where the particular claim for relief is not sought by all of the named plaintiffs. See Bacon v. Toia, 437 F.Supp. 1371, 1381 (S.D.N.Y.1977), aff’d, 580 F.2d 1044 (2d Cir. 1978). Defendants argue that the named plaintiffs in each claim for relief have not presented “typical” claims because the INS has no policy of treating Salvadoran aliens in the manner suggested by plaintiffs. These arguments are more properly addressed to the merits of plaintiffs’ claims and have no relevance to the typicality of the allegations. The Court is at a loss to understand defendants’ additional argument that the possible and perhaps even probable desire of many Salvadorans to exit the United States pursuant to voluntary departure agreements, rather than through the deportation process, somehow precludes a finding of typicality. Nowhere in the Complaint or in their moving papers do plaintiffs contend to the contrary, and plaintiffs’ challenges to the administrative process will not prevent any class member from so departing. 4. Adequacy of Representation. Rule 23(a)(4) requires a showing that the named plaintiffs “will fairly and adequately protect the interests of the class.” This subsection of the rule is directed primarily at ensuring that the named plaintiffs’ interests are not antagonistic to the interests of the absent class members and that the named plaintiffs have retained competent counsel. Defendants do not seriously object to the competency of plaintiffs’ counsel and the Court has no doubts, based on the experience of counsel in the immigration law field and their commitment to representing the Salvadorans, that the representation requirement in that sense is satisfied. Defendants do object, however, to representation of absent class members by these particular plaintiffs, arguing in essence that they overzealously seek relief and reforms which absent class members may not want or need. Again, defendants raise the spectre of an end to all voluntary departure agreements, as well as a tedious administrative process which may require Salvadorans to spend even more time in INS detention facilities. The Court; fails to see how the allegations and claims for relief in this case could possibly lead to such results. Without exception, plaintiffs’ claims are directed at the procedures for handling Salvadoran aliens prior to removal from the United States or commencement of deportation hearings. Should the Court decide that the procedures challenged by plaintiffs do not conform to minimum due process requirements, such a decision clearly would not amount to a Draconian edict that absent class members must exercise their due process rights and undergo deportation hearings. Due process carries with it the notions of choice and intelligent waiver, and the Court does not read plaintiffs’ claims as an attempt to impose anything on absent class members other than the opportunity to make a knowing and informed decision regarding voluntary departure. C. Propriety of Classwide Injunctive Relief This action meets the requirement of Rule 23(b)(2) that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Plaintiffs are challenging various procedures and practices of the INS which, they allege, are based on grounds generally applicable to Salvadoran aliens. Plaintiffs are not required to show that these procedures and practices have been employed with respect to each class member. Nor is it relevant, as defendants have argued throughout, “that some members of the class are personally satisfied” with the challenged actions. 3B Moore’s Federal Practice ¶ 23.04[2], at 290 (1982). The issues presented in this case are best resolved by an injunctive decree of classwide scope. The Court therefore concludes that plaintiffs have fully satisfied the requirements of Federal Rule of Civil Procedure 23 and that provisional class certification is proper. VI. MOTION FOR PRELIMINARY INJUNCTION In this Circuit the Court may apply either of two tests in determining whether to issue a preliminary injunction. The traditional test requires a showing that: (1) The plaintiffs will suffer irreparable injury if injunctive relief is not granted; (2) the plaintiffs have a strong likelihood of prevailing on the merits; (3) the balance of hardships favors the plaintiffs; and (4) granting the injunction is in the public interest. William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 87 (9th Cir. 1975). Alternatively, plaintiffs may prevail upon a showing (1) that serious questions are raised, and (2) that the balance of hardships tips sharply in their favor. Miss Universe, Inc. v. Flesher, 605 F.2d 1130, 1134 (9th Cir. 1979). To the extent that plaintiffs seek “mandatory” rather than “prohibitive” relief, they must clearly establish that a change in the status quo is warranted. See Larry P. v. Riles, 502 F.2d 963, 965 (9th Cir. 1974). A. Coerced Signing of Voluntary Departure Agreements In seeking a preliminary injunction against INS coercion, plaintiffs submit that they face irreparable injury in the form of removal to El Salvador if relief is denied. The Court agrees. The Court has taken judicial notice of the violent conditions prevailing in El Salvador. Clearly, removal to a country overrun with civil war and violence may lead to an injury which is irreparable in the most literal sense of the word. The question therefore is not the seriousness of the injury alleged by plaintiffs, but the relation of that injury to the defendants’ conduct and the certainty that it will occur if a preliminary injunction is not issued. Defendants point out that they are not responsible for the acts of Salvadoran authorities or the violence in El Salvador. However, defendants must observe the Salvadorans’ due process rights when implementing the voluntary departure provisions of 8 U.S.C. § 1252(b) and must take the responsibility for any return of class members to El Salvador in violation of due process. See Wong Ya