676 F.2d 1023 (5th Cir. 1982), 80-5683, Haitian Refugee Center v. Smith

Docket Nº:80-5683.
Citation:676 F.2d 1023
Party Name:HAITIAN REFUGEE CENTER, an unincorporated, not-for-profit organization; Solomon Jocelyn; Prosper Bayard; Theodore Cadet; Emile Beliard; Odlilus Jean; Alteon Jean Bellias; Indique Dormeus; Augustin Sennecharles, Plaintiffs-Appellees, v. William French SMITH, Attorney General of the United States; Alexander M. Haig, Jr., Secretary of State; David Cro
Case Date:May 24, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1023

676 F.2d 1023 (5th Cir. 1982)

HAITIAN REFUGEE CENTER, an unincorporated, not-for-profit

organization; Solomon Jocelyn; Prosper Bayard; Theodore

Cadet; Emile Beliard; Odlilus Jean; Alteon Jean Bellias;

Indique Dormeus; Augustin Sennecharles, Plaintiffs-Appellees,

v.

William French SMITH, Attorney General of the United States;

Alexander M. Haig, Jr., Secretary of State; David Crosland,

Acting Commissioner of Immigration and Naturalization

Service; Raymond Morris, District Director, Immigration and

Naturalization Service, District Office Number 6,

Defendants-Appellants.

No. 80-5683.

Unit B [*]

United States Court of Appeals, Fifth Circuit

May 24, 1982

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Atlee W. Wampler, III, U. S. Atty., Lloyd G. Bates, Jr., Asst. U. S. Atty., Miami, Fla., Daniel E. Fromstein, Atty., U. S. Dept. of Justice, Crim. Div., Washington, D. C., for defendants-appellants.

Peter Schey, Los Angeles, Cal., Gary Lee Caldwell, Florida Rural Legal Services, Inc., W. Palm Beach, Fla., Ira J. Kurzban, Miami, Fla., Dale Swartz, Washington, D. C., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL and VANCE, Circuit Judges, and LYNNE [**], District Judge.

JAMES C. HILL, Circuit Judge:

On May 9, 1979, eight black Haitian nationals and the Haitian Refugee Center (HRC), an unincorporated association seeking to assist Haitians in this country, filed a class action in federal district court on behalf of over 4,000 Haitians in the south Florida area who had sought political asylum in the United States. 1 Named as defendants were the Attorney General, the Secretary of State, the Commissioner of the Immigration and Naturalization Service (INS), and the District Director of Office No. 6 of the INS in Miami, Florida.

The complaint, framed in sixteen counts, challenged the expedited administrative procedure employed by the INS in processing the asylum applications of members of the plaintiff class. The district court summarized the allegations as follows:

The plaintiffs are not trying to litigate the merits of any single decision by INS or a particular immigration judge. Rather, the gravamen of the plaintiffs' complaint is that INS instituted a program "to achieve expedited mass deportation of Haitian nationals" (Complaint, P 3) irrespective of the merits of an individual Haitian's asylum application and without regard to the constitutional, treaty, statutory, and administrative rights of the plaintiff class.

Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 457 (S.D.Fla.1980). Briefly, the plaintiffs attacked actions taken by immigration judges in the context of deportation hearings, the manner in which asylum interviews were scheduled and conducted, and the manner in which decisions on the

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asylum claims were made and rendered. 2 The plaintiffs also alleged that, through all of the enumerated practices, the defendants engaged in unlawful discrimination on the basis of national origin and denied the due process rights of the class members. 3

In its final order of judgment entered July 2, 1980, the district court held: "The manner in which INS treated the more than 4,000 Haitian plaintiffs violated the Constitution, the immigration statutes, international agreements, INS regulations and INS operating procedures. It must stop." 503 F.Supp. at 452. Accordingly, the district judge ordered the defendants to "submit for the court's approval a detailed plan providing for the orderly, case-by-case, nondiscriminatory and procedurally fair reprocessing of the plaintiffs' asylum applications to the District Director before individuals competent to hear such applications upon a full record which will permit meaningful judicial review." Id. at 532. The court further enjoined the defendants from deporting any member of the plaintiff class and from proceeding further with any deportation hearings or any asylum applications involving the plaintiff class until the court had approved the defendants' plan for reprocessing. Id. at 532-33.

On appeal the government attacks the district court's exercise of jurisdiction, its finding of fifth amendment equal protection and due process violations, its entry of findings on the conditions of life in Haiti, and its comments on the burden of proof borne by asylum applicants. For the reasons developed below, we affirm the judgment of the district court with modifications. Before we address various issues raised by the government, however, it is important that we set out the administrative and factual background against which this litigation developed. 4

I

A

An alien seeking political asylum in the United States has two avenues available to him. First, under regulations promulgated by the INS 5 in 8 C.F.R. § 108 and in force prior to May 10, 1979, 6 the alien may apply

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for asylum with the local INS district director, who may grant or deny the request in his discretion. 8 C.F.R. § 108.2 (1978). The procedure established by INS contemplates that the applicant will submit his request on Form I-589 and later appear for a personal interview with the immigration officer who will handle the application. Id. §§ 108.1, 108.2. At the interview the applicant must be "given an opportunity to fully present his case," and the immigration officer must "insure that all questions (on Form I-589) have been answered and that the applicant has no additional factors he may wish to have considered." INS Operations Instruction (hereinafter O.I.) 108.1(a).

The immigration officer then classifies the asylum claim as clearly meriting asylum, as doubtful, or as clearly lacking in substance. In all doubtful cases the INS must seek an advisory opinion from the State Department before rendering a decision. The INS may act on cases clearly warranting or clearly not warranting asylum without prior referral of the claim to the State Department. In the latter case, however, the State Department must be notified of the denial of asylum and a stay of the alien's departure granted for thirty days or until the State Department responds. 8 C.F.R. § 108.2 (1978); O.I. 108.1(a).

The district director must issue a written decision on an asylum request. No administrative appeal lies from his decision, except in the case of denial of an application on which the State Department has submitted a favorable recommendation. In such a case, appeal lies to the regional commissioner of the INS. In all cases in which an opinion from the State Department is relied upon, that Department's report must be incorporated in the record of the asylum proceeding, and the alien must be given an opportunity to examine and rebut the report. 8 C.F.R. § 108.2 (1978).

INS also has prescribed the effect that a request to the district director for asylum is to have on pending deportation hearings. If the asylum claim is advanced between issuance of a show cause order and commencement of the deportation hearing thereon or during the deportation hearing itself, the special inquiry officer (also called immigration judge) conducting the deportation hearing must suspend the hearing until the district director has completed action on the asylum request. O.I. 108.1(f)(1), 108.1(f)(2).

The second avenue for asylum is a claim before an immigration judge for the discretionary relief of withholding deportation, as provided for in section 243(h) of the Immigration and Nationality Act (hereinafter the Act) 7 or Article 33 of the United Nations Protocol Relating to the Status of Refugees. 8 A denial by the district director

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of an asylum claim adjudicated under 8 C.F.R. § 108 procedures does not prejudice the alien's right to seek withholding of deportation. 8 C.F.R. § 108.2 (1978). Hence, the discretionary relief available under section 243(h) of the Act is the functional equivalent of asylum. Theoretically the alien has the privilege of a de novo determination by the immigration judge of his claim of a well-founded fear of persecution. The district court found, however, that in practice the decision of the immigration judge on an asylum claim never differed from the local district director's decision. 503 F.Supp. at 454.

B

The program of accelerated processing to which the plaintiff class was subjected by the INS-what the district court termed the "Haitian Program"- embodied the government's response to a tremendous backlog of Haitian deportation cases that had accumulated in the INS Miami district office by the summer of 1978. By June of that year between six and seven thousand unprocessed Haitian deportation cases were pending in the Miami office. These staggering numbers were not the result of a massive influx of Haitians to south Florida over a short period. Although significant numbers of Haitians had entered the United States from Haiti and the Bahamas in the spring of 1978, 9 the backlog was primarily attributable to a slow trickle of Haitians over a ten year period and to the confessed inaction of the INS in dealing with these aliens. According to Richard Gullage, Deputy District Director of the Miami office who served as Acting District Director in September 1978 and again from November 1978 to March 1979, INS officials in Miami simply "were not doing (their) job." Plaintiffs' Exhibit 311 at 39.

The district court identified several reasons for INS' administrative inactivity in the face of a burgeoning Haitian caseload. First, uncertainty over the effect of the impending promulgation of new regulations governing asylum procedures inhibited any initiative by the Miami office. In addition, immigration judges in the area had adopted the practice of inquiring at the beginning of Haitian deportation hearings whether the alien intended to seek asylum. This practice invited asylum claims and,...

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