Perez-Funez v. District Director, Immigration & Naturalization Service

MEMORANDUM OPINION

I. INTRODUCTION

These consolidated cases come before the Court on plaintiffs’ class action challenge, primarily on due process grounds, to the way in which the Immigration and Naturalization Service (INS) implements its voluntary departure procedure concerning unaccompanied minor aliens. The principal allegation is that INS policy and practice coerces class members into unknowingly and involuntarily selecting voluntary departure, *657 thereby waiving their rights to a deportation hearing or any other form of relief.

The nationwide class seeks the following relief: (1) a judgment declaring the INS’ practices violative of the due process clause of the Fifth Amendment to the Constitution; and (2) a permanent injunction prohibiting the INS from effectuating voluntary departure of class members without first providing certain procedural safeguards to ensure a valid waiver of rights.

II. THE PARTIES AND JURISDICTION

The class is defined as:

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

The class representatives are natives and citizens of El Salvador who, at the time of their arrest by the INS, were minors unaccompanied by either a parent or legal guardian.

Defendant INS is a federal agency with nationwide jurisdiction to implement the Immigration and Nationality Act (8 U.S.C. §§ 1101-1503). The individual defendants are INS officials, including the District Director of the Los Angeles District Office of the INS.

Jurisdiction is proper under 28 U.S.C. §§ 1331, 1343(4), 1361, and 8 U.S.C. § 1329. Class treatment is appropriate under F.R.CIV.P. 23. See Perez-Funez v. District Director, INS, 611 F.Supp. 990 (C.D.Cal. 1984).

III. BACKGROUND

A. Factual

Plaintiff and class representative Perez-Funez was sixteen years old when the INS arrested him .near the Mexican border in California on March 22, 1981. He claimed that the INS presented him with a voluntary departure consent form without advising him of his rights in a meaningful manner.

Although he claims that he did not want to return to El Salvador, he signed the form because: (1) an INS agent told him he might otherwise have a lengthy ^detention period and (2) an agent informed him that he could not afford bail. 1 He testified that he did not read or understand the voluntary departure form. He was at Los Ange-les International Airport, bound for El Salvador, when an attorney intervened to keep him in this country.

The other class representatives have similar stories. Jose and Suyapa Cruz, 2 ages twelve and thirteen, respectively, at the time of their apprehension in Yuma, Arizona, claim the INS presented the voluntary departure forms without any explanation of rights and told them to sign. These children also signed but only because they did not understand they were waiving their rights to other possible relief.

Yanira and Claudia Pena 3 were thirteen and eleven years old, respectively, when the INS took them into custody in San Ysidro, California. They too claim the INS gave them voluntary departure forms and told them to sign with no further explanation. They signed believing they had no other alternative.

Fourteen other class members testified at trial. Although their stories varied in *658 some respects, all stated they signed the form unknowingly and involuntarily.

B. Procedural

Counsel originally filed the Perez-Funez case as a petition for habeas corpus, subsequently amending it into a class action seeking declaratory and injunctive relief. The Cruz children intervened as plaintiffs in October 1981.

The Penas filed a separate class action-asking for identical relief. In January 1984 the Court consolidated the cases, certified a nationwide class, and granted certain preliminary injunctive relief. See Perez-Fu-nez, 611 F.Supp. 990. The court tried the case in April 1985, ordered post-trial briefs, and heard closing arguments in August 1985.

IV. VOLUNTARY DEPARTURE — THE CHALLENGED PROCEDURE

Voluntary departure is a procedure by which a qualifying alien may consent to summary removal from the United States, normally at the alien’s expense. For the INS to implement this procedure, the alien must sign the voluntary departure form (form 1-274), waiving the right to a deportation hearing and all alternative forms of relief.

INS policy concerning voluntary departure of unaccompanied minors varies according to the age, residence, and place of apprehension of the child. 4 For class members age fourteen to sixteen, the INS first gathers extensive information regarding the child, using form 1-213. Plaintiffs’ Exhibit 5. The INS then notifies the minor of the opportunity for voluntary departure by means of the voluntary departure form. Plaintiffs’ Exhibit 3. At the bottom of this form, the child can sign and request either a deportation hearing or voluntary departure. Since January of 1984, INS agents have been giving the so-called “Perez-Fu-nez Advisals” prior to presentation of the form. Plaintiffs’ Exhibit 13. The Court ordered the giving of this notice as part of the preliminary injunction. See Perez-Fu-nez v. District Director, INS, 611 F.Supp. 990 (C.D.Cal.1984).

The INS, however, has a different policy for class members age fourteen through seventeen who are arrested near the Mexican or Canadian borders and whose permanent residence is in one of those two countries. In such cases, the INS temporarily detains the child until a foreign consulate official arrives. If the minor has requested voluntary departure and the official confirms that the child can be returned, transportation arrangements are made. If such an official is not readily available, the INS will take the child to a Mexican or Canadian immigration officer. 5

For class members under fourteen, the INS follows the same procedure as for fourteen to sixteen year-olds with certain significant additions. First, the INS looks for an adult relative accompanying the child to act as a consultant. If none is found, the agency contacts the appropriate foreign consulate in an effort to locate friends or relatives. If necessary, the INS will then contact the American Embassy in an effort to arrange a reunion with relatives or friends. When the INS cannot locate a friend or relative, it will allow the foreign consul to represent the child. Once a representative for the minor is found, the INS notifies him or her of the right to a deportation hearing and the opportunity for voluntary departure. 6 An exception to this adult consultation requirement exists for minors apprehended near the border and whose permanent residence is in Mexico or Canada. 7

Thus, the policy varies depending on the situation. Moreover, the INS retains the discretion to refuse voluntary departure whenever it believes this type of disposition *659 is inappropriate. It exercises this discretion more frequently with class members under fourteen.

Although voluntary departure represents a waiver of rights, it is in many ways a privilege. See Tzantarmas v. United States, 402 F.2d 163,165 n. 1 (9th Cir.1968). Its advantages to the alien are that it has no adverse impact upon future lawful attempts to enter the United States (as contrasted with a formal deportation order), and it normally reduces the alien’s time in detention. The advantage to the INS is that voluntary departure allows for summary disposition of the case, averting the need for a deportation hearing.

Plaintiffs do not challenge the existence or fairness of voluntary departure per se. Rather, they assert that class members are coerced into choosing this option and waiving their rights, regardless of whether voluntary departure would be in the child’s best interests.

V. LEGAL DISCUSSION

A. Introduction/Analytical Framework

The thrust of plaintiff’s claim is that the INS’ policy concerning voluntary departure deprives unaccompanied minor aliens of significant rights, thereby violating the due process guarantees of the Fifth Amendment to the United States Constitution.

Due process is a flexible concept, its requirements varying according to the time, place, and circumstances. Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748-49, 6 L.Ed.2d 1230 (1961). In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Supreme Court set forth a three-part balancing test for the resolution of procedural due process issues. First, the court must consider the private interest affected. Second, the court has to evaluate the risk of erroneous deprivations of rights under the challenged procedures and the probable value, if any, of additional or substitute procedural safeguards. Last, the court must balance the government’s interest, which includes consideration of the function involved as well as the burdens that supplemental or substitute procedures would impose. Id. at 335, 96 S.Ct. at 903. This test provides a framework for the Court’s analysis of plaintiffs’ challenge.

B. Rights and Interests of Class Members

Unaccompanied alien children possess substantial constitutional and statutory rights. These rights exist in spite of the minors’ illegal entry into the country. See Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883,1890, 48 L.Ed.2d 478 (1976). Further, the Court notes that “[e]hildren have a very special place in life which law should reflect.” May v. Anderson, 345 U.S. 528, 536, 73 S.Ct. 840, 844, 97 L.Ed. 1221 (1953) (Frankfurter, J., concurring). See also In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967) (“neither the Fourteenth Amendment nor the Bill of Rights is for adults alone”).

Plaintiffs, however, do not possess rights equivalent to those of criminal defendants. Deportation proceedings are civil in nature. INS v. Lopez-Mendoza, — U.S. —, 104 S.Ct. 3479, 3484 (1984). Thus, the exclusionary rule does not apply. Id. Moreover, Miranda warnings generally are inappropriate in the deportation context. Trias-Hernandez v. INS, 528 F.2d 366, 368 (9th Cir.1975). Finally, there is no due process or statutory right to appointed counsel. Martin-Mendoza v. INS, 499 F.2d 918, 922 (9th Cir.1974).

Nonetheless, plaintiff’s rights are significant. Foremost among these is the right of every alien to a deportation hearing, which right is waived when a child signs the voluntary departure form. Obviously, this proceeding is critical in terms of the interests at stake. According to the Supreme Court in Wong Yang Sung v. McGrath, 339 U.S. 33, 50, 70 S.Ct. 445, 454, 94 L.Ed. 616 (1950), “A deportation hearing involves issues basic to human liberty and happiness and, in the present upheavals in lands to which aliens may be returned, *660 perhaps to life itself.” These words are no less applicable today.

Also reflective of the substantial nature of this right is the statutory provision for an evidentiary hearing in which the alien has a right to notice, to counsel (at no expense to the government), to present evidence and cross-examine witnesses, and to a decision based upon substantial evidence. 8 U.S.C. § 1252(b). Due process requires no less. United States v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir.1975).

In addition, when an unaccompanied minor waives the right to a deportation hearing, he or she effectively waives the right to various forms of relief from deportation: (1) adjustment of status (8 U.S.C. § 1254); (2) suspension of deportation (8 U.S.C. § 1254); (3) political asylum (8 U.S.C. § 1158) or withholding of deportation (8 U.S.C. § 1253(h)(1)); 8 and (4) deferred action status (Operating Instruction 103.1). Although many class members are not eligible for such relief, the eligible child who instead signs for voluntary departure makes a grave mistake indeed.

Therefore, taken together, the right to a deportation hearing and the various rights associated therewith 9 constitute a substantial liberty interest on the part of plaintiff class members. Given the interests at stake and the tender ages of the possessors of those interests, the Court must carefully scrutinize the risk of erroneous deprivation.

C. Risk of Erroneous Deprivation and Probable Value of Additional Procedural Safeguards

1. Risk of Erroneous Deprivation

A class member’s signature on the voluntary departure form waives the various rights discussed in the preceding section. Accordingly, the risk of erroneous deprivation issue boils down to whether the INS’ procedures concerning voluntary departure result in effective waivers.

A waiver is “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). A presumption against such an abandonment of rights exists in the civil as well as the criminal context. See Fuentes v. Shevin, 407 U.S. 67, 94 n. 31, 92 S.Ct. 1983, 2001 n. 31, 32 L.Ed.2d 556 n. 31 (1972).

In order for a criminal defendant to waive the right to counsel, the waiver must be voluntary as well as knowing and intelligent, an issue which depends in each ease “upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson, 304 U.S. at 464, 58 S.Ct. at 1023. Although the instant proceedings are civil, it is nevertheless clear *661 that “[wjhatever the right, the standard for waiver is whether the actor fully understands the right in question and voluntarily intends to relinquish it.” Edwards v. Arizona, 451 U.S. 477, 489, 101 S.Ct. 1880, 1887, 68 L.Ed.2d 378 (1981) (Powell, J., with whom Rehnquist, J., joins, concurring in the result).

■In addressing the question of whether plaintiffs proved that the waivers obtained by the INS are invalid, the Court first is compelled to comment upon what plaintiffs did not prove. One of plaintiffs’ principal allegations throughout this litigation has been that the INS engages in a policy of overt coercion of unaccompanied minors that allegedly includes physical mistreatment and verbal abuse. However, this Court has found that allegation to be unfounded. While some of the class members testified to receiving such mistreatment, the Court simply does not believe those witnesses on this point. Moreover, the Court found the INS’ rebuttal testimony on this issue to be credible. Finally, even if some isolated incidents of mistreatment occurred, these are insufficient to justify the nationwide injunctive relief plaintiffs seek. See Allee v. Medano, 416 U.S. 802, 815, 94 S.Ct. 2191, 2200, 40 L.Ed.2d 566 (1974). Thus, in many ways, the trial vindicated the good faith efforts of the INS. 10 This agency performs a thankless task under adverse conditions and, by and large, performs it admirably.

Nevertheless, even if the trial proved nothing else, it demonstrated that, under the procedures currently employed, unaccompanied minors do not understand their rights when confronted with the voluntary departure form. This is the one inescapable conclusion to be drawn from this lawsuit.

The Court heard the testimony of a parade of class members, predominately Salvadoran, and the Court found them to be credible concerning their lack of understanding. Their absence of knowledge was clear, even in situations where they had read, or had read to them, the forms and advisals. In fact, at the time of trial, plaintiffs still did not understand their legal rights. Even defendants’ own witnesses conceded that the children did not grasp the “legal language” in the forms and that they did not “know what to do.”

Plaintiffs’ expert witnesses buttressed this conclusion. The upshot of their testimony was that minors generally do not understand the concept of legal rights without explanation. Further, according to the experts, when children’s rights are presented to them in a stressful situation in which they are separated from their close-knit families and faced with a new culture, they cannot make a knowing and voluntary choice. Rather, the natural tendency is to defer to the authority before them, especially for those children accustomed to autocratic governments.

The Court notes that, as discussed above, INS policy treats children fourteen years of age and older differently from younger class members. When older children are involved, the INS makes less of an effort to contact a parent or relative, and it usually will honor the child’s voluntary departure selection. The agency bases this different treatment on an assumption that older children are better able to make important decisions. For this proposition, they rely primarily on certain sections of the Immigration and Nationality Act, which oblige children fourteen and older to register and be fingerprinted (8 U.S.C. § 1302(a), (b)) and to give notice of any change of address (8 U.S.C. § 1305). Section 1306 provides penalties for failure to comply with these requirements as well as for other offenses.

Although the Court does not lightly disregard agency policy preferences, it cannot agree with the INS’ age distinctions. First, the statutes upon which the INS *662 relies do not address the constitutional issue present in this case. Class members face a much more difficult task in comparison to the obligations imposed by the statutes.

Second, the Court heard testimony from class members of various ages, some under fourteen and some over, and the absence of understanding was consistent. Age apparently made little difference. Last, expert testimony indicated that, while the minors’ ability to understand the semantic meaning of words increases with age, older children encountering the instant situation still would be incapable of making informed decisions concerning the exercise or waiver of individual rights.

All of the foregoing is consistent with common sense. As the Supreme Court noted in Bellotti v. Baird, 443 U.S. 622, 635, 99 S.Ct. 3035, 3044, 61 L.Ed.2d 797 (1979), “during the formative years of childhood, minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.” See also Eddings v. Oklahoma, 455 U.S. 104, 116, 102 S.Ct. 869, 877, 71 L.Ed.2d 1 (“Even the normal 16 year-old customarily lacks the maturity of an adult”). In the instant case, unaccompanied children of tender years encounter a stressful situation in which they are forced to make critical decisions. Their interrogators are foreign and authoritarian. The environment is new and the culture completely different. The law is complex. 11 The children generally are questioned separately. In short, it is obvious to the Court that the situation faced by unaccompanied minor aliens is inherently coercive. 12 Moreover, the INS’ policy of allowing border patrol agents to explain rights but prohibiting the giving of advice does nothing to alleviate the problem.

The major divergence from this pattern of unknowing waiver was the evidence presented concerning class members apprehended in the immediate vicinity of the border and whose permanent residence is in Mexico or Canada. Plaintiffs presented only one Mexican minor as a witness, and while he appeared to sign the voluntary departure form in ignorance, the INS offered substantial evidence that the risk of unknowing waiver is less for this portion of the class. First, simply because of the proximity of Mexico and Canada to the United States, these individuals are more informed concerning immigration matters. In fact, border patrol agents testified that some Mexican minors become impatient when agents read advisals to them because the minors are extremely familiar with such material. Second, the evidence indicated that many Mexican class members want to take voluntary departure following a short adventure into this country, and agents stationed near the border testified that it was not unusual to apprehend and process certain Mexican minors on a recurring basis. Thus, while these minors most certainly have the same rights as other class members and even though the possibility of coerced waiver still exists, the risk of deprivation appears to be significantly decreased. Indeed, at closing argument, plaintiffs’ counsel conceded that procedures for these class members need not be as elaborate.

The other decreased risk scenario involves class members under fourteen who either are arrested outside the immediate vicinity of the border or are not permanent residents of Mexico or Canada. With these children, the INS policy is to make a strong effort to locate relatives or friends of the child to act as a representative. If the agency can locate no relative or friend, it will allow a consulate official from the minor’s home country to act as the child’s *663 advisor. 13 The INS also uses its discretion to refuse voluntary departure more often in such cases.

This policy removes, for the most part, the risk of unknowing and involuntary waiver by putting the child in communication with a relative or friend. The major flaw, however, arises when the INS cannot find a relative or friend and thus turns to a consulate official. While the Court cannot find fault with a practice of notifying foreign officials of their citizens’ illegal presence in this country, the Court believes that allowing foreign consuls to represent the child in the deportation process creates a substantial risk of error. 14 Class members from such countries as El Salvador and Guatamala often are fleeing political and military conditions in their homelands. Therefore, the foreign consul may well have a position adverse to that of the class member. Accordingly, the Court cannot assume that the foreign official would have the child’s best interests at heart. Other than this problem, the Court believes this particular policy adequately ensures a valid waiver.

The INS asserts that even if some class members sign the form in ignorance, the agency’s procedures provide sufficient “safety valves” to prohibit erroneous voluntary departures. Principal among these is the INS discretion to refuse to implement this type of disposition. 15 In essence, the INS, by procuring the waiver at an early stage of the process, puts itself in control of the child’s destiny. While the Court approves of the INS’ power to fulfill a supervisory role, “the admonition to function in a ‘parental’ relationship is not an invitation to procedural arbitrariness.” Kent v. United States, 383 U.S. 541, 555, 86 S.Ct. 1045, 1054, 16 L.Ed.2d 84 (1966). When the waiver is involuntary and without understanding, a forfeiture of rights occurs, irrespective of the INS’ good intentions. Due process protects children from placing themselves at the mercy of summary procedures. Cf. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 378 (1967).

In sum then, the risk of erroneous deprivation is great, especially with respect to class members who are not arrested near the border or are not permanent residents of Mexico or Canada. The processing environment is inherently coercive and current procedures do not address the problem adequately.

B. Probable Value of Additional or Substitute Safeguards

Mathews v. Eldridge next requires the Court to consider the probable value of additional or substitute safeguards in minimizing the aforementioned risk of deprivation. 424 U.S. at 335, 96 S.Ct. at 903. Along these lines, the Court notes that plaintiffs’ demands have decreased measurably from the early stages of this litigation. At one time plaintiffs sought an injunction requiring an arraignment-type hearing and *664 appointment of counsel. Before the waiver could become effective, plaintiffs demanded a requirement of representation by-counsel or a determination by an immigration judge that the waiver was knowing, intelligent, and voluntary. See Perez-Fu-nez v. District Director, INS, 611 F.Supp. 990, 1001 n. 25 (C.D.Cal.1984).

By the time the parties submitted this case for decision, the proposed safeguards had shrunk to the following: (1) simplified rights advisals; (2) a videotape advisal by a neutral third party; and (3) access to telephones so that the children can contact an attorney, parent, or close relative. Along with access to telephones, plaintiffs seek to require the INS to use an updated list of free legal services, which list plaintiffs prepared.

Addressing the proposed safeguards in order, the Court believes that a simplified advisal would be of some value. It was evident from the trial that class members understood neither the INS’ notification of rights (form 1-274) nor the Court’s own so-called “Perez-Funez Advisals.” Moreover, plaintiffs proposed simplified advisal (Plaintiffs’ Exhibit 52) fared little better. The evidence was contradictory concerning its effectiveness, and in content, it is both incomplete and partially incorrect. Nonetheless, both sides seem to agree that a written advisal is appropriate, and thus the goal should be to devise the simplest and most accurate advisal possible.

However, the principal lesson learned from the testimony concerning the written advisals was that such advisals alone are insufficient to apprise class members of their rights. This was the case even when border patrol agents read and attempted to explain the advisals to the children. With that in mind, the Court now evaluates the videotape advisal.

The Court itself actually suggested the idea of a video presentation in a question to one of the expert witnesses. Plaintiffs quickly adopted it as a proposed solution. While the Court still believes the videotape advisal would be of some utility, further consideration has left the Court with doubts. True, such an advisal would offer the advantage of bringing a neutral third party into the process. The basic problem with the videotape, however, is that it cannot answer questions or give individualized advice. Given the testimony of class members and the overall coerciveness of the situation, the videotape presentation probably would provoke more questions than it would answer. The children thus would be back in a position of asking questions to INS agents, who are the children’s arresting officers 16 and who are instructed not to give advice. Moreover, this proposed remedy would involve a substantial expenditure by the government, which is more appropriately discussed in the next section. Therefore, the Court finds the videotape advisal to be of only limited value.

That brings the Court to plaintiffs’ final proposal: early access to telephones and an updated list of legal services. In light of all the evidence presented, the Court has found that access to telephones prior to presentation of the voluntary departure form is the only way to ensure a knowing waiver of rights.

As developed more fully above, the limited understanding and decision-making ability of the class members, the critical importance of the decisions, and the inherently coercive nature of INS processing require that the children be given some assistance in understanding their rights. The written advisals alone are insufficient. Further, despite the good faith efforts of most INS agents to be of help, the fact remains that the agents are also the arresting or detaining officers and thus are in an adversary position vis-a-vis the children. Cf. In re Gault, 387 U.S. at 35-36, 87 S.Ct. at 1447-48 (probation officer is also arresting officer and therefore cannot advise minor adequately). Accordingly, contact with a third party is necessary.

Communication with counsel would be preferable. As stated in In re Gault, 387 U.S. at 36, 87 S.Ct. at 1448:

*665 The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of proceedings, and to ascertain whether he has a defense and to prepare and submit it.

Under the circumstances presented in this case, legal counsel certainly would be the best insurance against a deprivation of rights. 17

The Court, however, is by no means ruling that unaccompanied minors have a right to appointed counsel. The case law clearly forecloses such a finding. See, e.g., Martin-Mendoza v. INS, 499 F.2d 918, 922 (9th Cir.1974).

Rather, access to legal advice is merely one way of removing class members from an overly coercive environment. The other alternative is to have children contact a parent, close adult relative, or adult friend 18 who can put the child on a more equal footing with the INS. See Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S.Ct. 869, 877, 71 L.Ed.2d 1 (1982) (“A lawyer or an adult relative or friend could have given the petitioner the protection which his own immaturity could not.”). Indeed, in his excellent closing argument, plaintiffs’ counsel observed that a minor who had contacted a parent or close relative is no longer “unaccompanied.” Thus, the Court simply is proposing to remove the child from the status of being unaccompanied, or alternatively, give the child access to the type of person most likely to advise the child adequately of his or her rights. 19

Making the policy concerning telephone calls uniform also would be of great value. The class members’ testimony indicated that the INS either denied access to phones or allowed access only after execution of the voluntary departure form. As for the INS’ evidence, Deputy Chief Bowen stated that the policy was to first fill out the general information form (the 1-213) and then allow phone calls consistent with office conditions. The practical outgrowth of this policy, based on the testimony of the various border patrol agents, was that the agents permitted a phone call prior to presentation of the voluntary departure form only in the low-volume offices and then only upon request. Certainly the evidence did not indicate a standard practice of allowing a phone call prior to the waiver of rights or of affirmatively notifying the children of the opportunity to make a call.

The Court believes that, with respect to class members not apprehended in the immediate area of the border or whose permanent residence is not Mexico or Canada, mandatory contact with either counsel, a close relative, or friend prior to presentation of the voluntary departure form is central to the success of the telephone proposal. The evidence makes it clear that, in the absence of such communication, the great majority of these class members will commit an unknowing and involuntary waiver.

Moreover, the contact must be made before presentation of the form. Otherwise, the child comes under the added burden of having to take affirmative steps to withdraw the prior waiver. In an environment such as the one facing the unaccompanied *666 minor, this task would be difficult, assuming arguendo the child would be able to grasp the withdrawal of consent concept at all.

Regarding class members arrested near the border who are residents of the contiguous countries, the probable value of a mandatory call is less. As discussed above, the evidence indicated these class members generally have a better understanding of the immigration laws and, for the most part, desire to voluntarily return. While once again stressing that these children have rights equivalent to those of other class members, the evidence presented has convinced the Court that mandatory notification of the opportunity to call an attorney, close relative, or friend would be sufficient in the great majority of eases. 20 Mandatory notification is still necessary to prevent unknowing waivers by those children who do need help but are too intimidated and confused to request a call.

Updated and accurate lists of free legal services are a necessary concomitant of a telephone access program. The trial demonstrated two things concerning the lists. First, there are numerous legal service groups willing to provide free services to indigent class members. Second, the lists which the INS currently uses are outdated and inaccurate. Accordingly, it is not difficult for the Court to find that updated lists would be valuable in promoting informed waivers.

In sum then, the Court has found that there is some probable value in providing class members with a simplified rights ad-visal and at least a minimal amount of utility in developing a videotape presentation. However, access to telephones would provide by far the greatest benefits in the hopes of ensuring knowing and voluntary decision-making.

IV. Governmental Interests and Burdens/The Propriety of Injunc-tive Relief

Finally, Mathews v. Eldridge instructs the Court to balance the previously-discussed individual rights and proposed safeguards with the government’s interests, including the function involved and the burden that additional procedures would impose. 424 U.S. at 335, 96 S.Ct. at 903. Relatedly, when the Court considers the governmental interest, it must consider the propriety of injunctive relief, keeping in mind that an injunction “should be no more burdensome to the defendant than necessary to provide complete relief to plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702, 99 S