Perez-Funez Injunction Appeal Argued in the Ninth Circuit

The Justice Department asked a Ninth Circuit panel on Oct. 22 to dissolve the Perez-Funez injunction, the decades-old order that makes immigration agents tell unaccompanied children their rights before they agree to leave the country. The appeal turns on whether a 1996 limit on class-wide immigration injunctions reaches a 2008 child-protection law.

The Perez-Funez injunction, a court order that has governed how immigration agents treat unaccompanied children for four decades, is now before a federal appeals court that could end it. On Oct. 22, Justice Department lawyers asked three Ninth Circuit judges in Pasadena, Calif., to dissolve the order, which bars agents from accepting a child’s agreement to voluntary departure until the child has been advised of his or her rights and given a chance to reach a parent, relative or lawyer, Courthouse News reported. The panel did not signal how it would rule.

The appeal matters now because the government has already tested the order. In April, U.S. District Judge Michael W. Fitzgerald in Los Angeles refused to end it and found that DHS had violated it with a script read to children since September 2025. A reversal would erase both the advisals and that ruling, as the administration reshapes children’s cases on other fronts, from short-notice USCIS asylum interviews to HHS’s new in-house legal team for migrant children.

What the Perez-Funez injunction requires

The case began in 1981 as a class action over children allegedly pressed into signing voluntary departure forms they did not understand. After a 1985 trial, the court made most of its 1984 preliminary injunction permanent in Perez-Funez v. District Director, INS, 619 F. Supp. 656 (C.D. Cal. 1985). A 1986 follow-up produced the written advisal that became Form I-770, Notice of Rights and Disposition.

Under the order, a child apprehended near the border who lives in Mexico or Canada must be allowed to call a parent, close relative, friend or free legal services organization before deciding whether to leave. Other children must get access to a telephone and confirmation that they made contact. The order also forbids agents from trying to persuade or dissuade a child.

Congress added its own rules in the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), which generally requires transfer of unaccompanied children to HHS’s Office of Refugee Resettlement within 72 hours and lets Mexican and Canadian children be returned quickly only after screening. Those first 72 hours are where the Perez-Funez advisals do their work.

The DHS script a judge called coercive

According to Fitzgerald’s April 6 order, DHS began reading children a “UAC Processing Pathway Advisal” in September 2025; the government moved to end the injunction that November. The advisal warned children they could be detained “for a prolonged period of time,” that people who helped them could face “criminal prosecution for aiding [their] illegal entry,” and that they could be “barred” from future visas. It also told them they could return home within 72 hours with “no administrative consequence.”

Fitzgerald held that the script violated the injunction and barred its use. He wrote that the detention warning “disturbingly mirrors” testimony the court heard at the 1985 trial, described tying a sponsor’s prosecution to a child’s choice as “obviously coercive,” and found the suggestion of a permanent visa bar misleading, citing the provisions that let children choose voluntary departure instead of a removal order and the reentry bars that follow one.

A 1996 statute against a 2008 law

The government’s chief argument on appeal is about the court’s power, not the advisals. Section 242(f)(1) of the Immigration and Nationality Act, 8 U.S.C. 1252(f)(1), bars lower courts from enjoining or restraining the operation of a group of removal provisions, “as amended by” the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), except in an individual case. In Garland v. Aleman Gonzalez (2022), the Supreme Court read that language to forbid class-wide injunctions. The Justice Department says that ends the Perez-Funez order.

The children’s lawyers, led by Public Counsel, argue in their June 29 brief that the injunction regulates procedures Congress set in the TVPRA, not the 1996 provisions. Fitzgerald agreed in April. “The responsibilities of immigration officers when they encounter children are dictated by the TVPRA, not by the covered provisions of the IIRIRA,” he wrote, as quoted by Courthouse News.

At argument, the judges focused on whether the injunction affects the 1996 provisions directly or only collaterally, Courthouse News reported. Judge Lawrence VanDyke called one of Public Counsel attorney Mark Rosenbaum’s points “a blatant logical fallacy,” Judge Patrick Bumatay pressed for a definition of “collateral impact,” and Judge Salvador Mendoza Jr. aimed his sharpest questions at the government’s lawyer.

What a ruling would decide. The reasoning matters as much as the result. A decision resting on section 1252(f)(1) would invite the same attack on other long-running class-wide immigration orders, in line with the Justice Department’s push to limit universal vacatur. A win for the children on the TVPRA theory would keep the advisals and the script ban, though the losing side could seek en banc or Supreme Court review, where Aleman Gonzalez would weigh heavily.

For children, the practical question is immediate: whether the first official explanation they hear in custody must describe their rights, or may instead describe the costs of staying. No agency has published how many children heard the 2025 script.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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