Louis v. Nelson, 81-1260-CIV-EPS.

• Decision Date: 29 June 1982
• Docket Number: No. 81-1260-CIV-EPS.,81-1260-CIV-EPS.
• Citation: 544 F. Supp. 1004
• Parties: Lucien LOUIS, et al., Plaintiffs, v. Alan C. NELSON, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

544 F. Supp. 1004

Lucien LOUIS, et al., Plaintiffs, v. Alan C. NELSON, et al., Defendants.

No. 81-1260-CIV-EPS.

United States District Court, S. D. Florida.

June 29, 1982.

FINAL JUDGMENT¹

SPELLMAN, District Judge.

The above-styled cause is a class action brought to challenge the Defendants' policy of detaining Haitian nationals pending resolution of their claims for admission to the United States.² The Plaintiffs herein are the Haitian Refugee Center, Inc., Lucien Louis, Wilner Luberisse, Jean Louis Servebien, Pierre Silien, Serge Verdieu, Milfort Vilgard, Joel Casimir, Job Dessin and Prophete Talleyvand, on behalf of themselves and all others similarly situated. The class certified by the Court consists of:

All Haitian aliens who have arrived in the Southern District of Florida on or after May 20, 1981, who are applying for entry into the United States and also are presently in detention pending exclusion proceedings at various INS detention facilities, for whom an order of exclusion has not been entered and who are either:

1. Unrepresented by counsel; or

2. Represented by counsel pro bono publico assigned by the Haitian Refugee Volunteer Lawyer Task Force of the Dade County Bar Association.³

On June 18, 1982, the Court issued an opinion 544 F.Supp. 973 in this case that found as follows:

1. Plaintiffs have established that the new detention policy, whereby excludable aliens are placed in detention until they establish to INS' satisfaction a prima facie claim for admission, was not adopted in accordance with the requirements of the Administrative Procedure Act. Because Defendants failed to give interested persons notice and an opportunity to comment on the new detention policy in the Federal Register 30 days prior to its implementation, the Court finds the rule pursuant to which Plaintiffs are incarcerated to be null and void.

By its ruling, the Court does not mean to say that detention in itself is unlawful. That question must be left to another day. The Court holds that when the Government changed its long-standing policy of freely paroling Haitians to a policy of incarcerating them while they litigate their claims for admission to this country, it did so in a procedurally improper way. Those procedures are designed to protect all persons, aliens and citizens alike. Unless and until INS adopts a detention rule or regulation as required by law, this Court will not sanction enforcement of their new detention policy. Accordingly, the Court finds in favor of the Plaintiffs on their Administrative Procedure Act claim as set forth in Count II of the Complaint.

2. Plaintiffs have failed to prove by a preponderance of the evidence that they were incarcerated because of their race and/or national origin. The evidence shows that the detention policy was not directed at Plaintiffs because they were black and/or Haitian, but because they were excludable aliens unable to establish a prima facie claim for admission and that non-Haitians were detained pursuant to this policy as well. The mere fact that more Haitians were detained and kept in detention for longer periods of time than aliens of other nationalities does not render the policy discriminatory. Regardless of its ultimate impact, the policy was intended to be applied and was in fact applied equally to all similarly situated aliens regardless of their race and/or national origin. Accordingly, the Court finds in favor of the Defendants as to Count VII of the Complaint.

Based on this ruling, the Court set a hearing for June 23, 1982 to determine "the effect of this Court's ruling, the remedy to be afforded Plaintiffs, how that remedy should be effected and the extent to which this Court should retain jurisdiction over the cause."

The Court has found that the detention policy pursuant to which Plaintiffs are incarcerated was adopted and implemented "without observance of the procedures required by law." Therefore, the new detention policy is null and void and the policy regarding parole, that was used prior to May 20, 1981, is in full force and effect. See 5 U.S.C. §§ 552, 553, and 706; Kelly v. United States, 339 F.Supp. 1095, 1101 (E.D. Cal.1972); Lewis v. Weinberger, 415 F.Supp. 652 (D.N.M.1972); Hou Ching Chow v. Attorney General, 362 F.Supp. 1288 (D.C.D.C.1973); Parco v. Morris, 426 F.Supp. 976 (E.D.Pa.1977); Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2nd Cir. 1972).

The Court does not believe that allowing these Plaintiffs to remain in detention while a rulemaking proceeding takes place is a viable solution to this lawsuit. Some of the Plaintiffs herein have been incarcerated for over one year pursuant to a policy this Court has found to be unlawful. Nothing in the record indicates that these individuals fall within the old detention policy because they are likely to abscond or a security risk. It would not be just or equitable to require detention of the members of this class in the future nor would an unconditional release be appropriate under the circumstances. Therefore, the Court believes that the remedy that best serves the interests of all parties to this litigation is an interim plan for release of these Plaintiffs on parole subject to the conditions set forth herein pending a determination of their claims for admission.

It is therefore,

ORDERED AND ADJUDGED as follows:

1. FINAL JUDGMENT is entered in favor of the Defendants as to Count VII of the Complaint.

2. FINAL JUDGMENT is entered in favor of the Plaintiffs as to Count II of the Complaint.

3. Based on the power vested in this Court pursuant to 28 U.S.C. § 2202,⁴ the Defendants herein, their heirs, successors, assignees, agents and employees are hereby ENJOINED from enforcing their policy of detaining excludable aliens unless they establish to INS' satisfaction a prima facie claim for admission until that policy is embodied in a rule and adopted in accordance with 5 U.S.C. §§ 552 and 553 and any other relevant provision of law. However, this injunction shall not be construed to preclude detention of excludable aliens deemed a security risk or likely to abscond.

4. Based on the power vested in this Court pursuant to 28 U.S.C. §§ 2202 and 2241, the Defendants herein, their heirs, successors, assignees, agents and employees are hereby ENJOINED from continuing to detain the Plaintiffs herein and are ORDERED to release said individuals.

5. The implementation of Paragraph 4 of this Final Judgment is to be commenced forthwith in accordance with the terms and conditions hereinafter set forth:

A. The Immigration and Naturalization Service is to obtain full identification information relative to each member of the class including but not limited to photographs, fingerprints and a full and complete personal history for future and continued identification of said individuals. This record is to be kept by the Service in duplicate form and to be utilized by them in the location that the alien is ultimately resettled. INS shall also maintain a master file of these records in their offices in Miami, Florida. Said central file is to be kept separate and apart from other records for easy future identification and use. These records shall contain continual updating of the original location of said individual and any notice of a change relative to address and employment.

B. Each Haitian is to receive a typed immigration form I-94 with alien number, an indication of parole pursuant to Section 212(D)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1182(D)(5), and with "employment authorized" stamped on said form. A duplicate of said I-94 shall be kept in the central file located here in Miami, Florida in addition to being kept in the alien's file.

C. The release of the members of the class will be completed regardless of whether counsel has been secured or otherwise provided for said individuals at the time of their release.

D. The members of the class are to be released to INS approved sponsors throughout the United States upon presentation to INS of responsible sponsors who are willing and agreeable to accepting the terms and conditions of this Order as the same apply to them. Responsible sponsors shall always include volunteer agencies and may include extended family members (residents in a de facto sense who can satisfy the Service relative to their permanent and definable addresses) or other suitable parties approved by the volunteer agencies. There must be both a volunteer agency and an individual sponsor as to each alien. It is not the intent of this Court by this Order that the Service will deviate from the policy which precludes the release of individuals who have serious, contagious diseases or who have been medically declared to be mentally psychotic and a danger to themselves or the community. Financial assistance to defray medical and psychiatric expenses and to assist those Plaintiffs who are now and remain in the future financially indigent is a concern that must be continued to be addressed. Numerous voluntary agencies have indicated their willingness in this regard. It is not the Court's intent that this financial obligation be the continued concern of the State or the community in which the individual is located.

E. As a condition to approval as a sponsor, each voluntary agency and individual sponsors as contemplated by this Order will agree in writing to abide by the terms of this Order including a full reporting procedure on a weekly basis to independent third parties approved and appointed by this Court. The Defendants within ten (10) days from the entry of this Order are to provide arrangements for financial funding to defray the expense and functioning of said independent third parties. The independent third parties appointed by this Court are to immediately communicate to the appropriate INS representative the failure of any sponsor to report or any negative reports relative to individual Haitians, that is to say, an indication from the sponsor that the...