Fernandez-Roque v. Smith, FERNANDEZ-ROQUE

• Citation: 734 F.2d 576
• Decision Date: 01 June 1984
• Docket Number: 83-8628,Nos. 83-8065,FERNANDEZ-ROQUE,s. 83-8065
• Parties: Rafael, et al., Moises Garcia-Mir, et al., Orlando Chao-Estrada, Plaintiffs-Appellees, v. William French SMITH, et al., Defendants-Appellants. Rafael, et al., Plaintiffs-Appellees, v. William French SMITH, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 576

734 F.2d 576

Rafael FERNANDEZ-ROQUE, et al., Moises Garcia-Mir, et al., Orlando Chao-Estrada, Plaintiffs-Appellees, v. William French SMITH, et al., Defendants-Appellants.

Rafael FERNANDEZ-ROQUE, et al., Plaintiffs-Appellees, v. William French SMITH, et al., Defendants-Appellants.

Nos. 83-8065, 83-8628.

United States Court of Appeals Eleventh Circuit.

June 1, 1984.

Douglas P. Roberto, Asst. U.S. Atty., Atlanta, Ga., for defendants-appellants in No. 83-8065.

John M. Rogers, Barbara L. Herwig, U.S. Dept. of Justice, Civ. Div., Washington, D.C., for defendants-appellants in No. 83-8628.

James A. Peters, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for amicus State of Fla.

Deborah S. Ebel, Myron M. Kramer, Dale Schwartz, David Webster, Kenneth Hindman, Atlanta Legal Aid, Atlanta, Ga., for plaintiffs-appellees.

Harriet Rabb, Immigration Law Clinic, Columbia Univ. Sch. of Law, New York City, for amicus.

Appeals from the United States District Court for the Northern District of Georgia.

Before HENDERSON and HATCHETT, Circuit Judges, and JONES, Senior Circuit Judge.

ALBERT J. HENDERSON, Circuit Judge:

This is a consolidated appeal from two judgments of the United States District Court for the Northern District of Georgia. Both cases primarily involve the rights of those Cuban nationals who entered the United States during the Mariel "Freedom Flotilla" in 1980 and are still detained in the Atlanta Federal Penitentiary. ¹ The district court, in No. 83-8628, held that the Cubans awaiting parole possessed a liberty interest in their parole from administrative detention and that the Attorney General's Status Review Plan for the evaluation of parole did not comport with constitutional due process. Fernandez-Roque v. Smith, 567 F.Supp. 1115 (N.D.Ga.1983). In the other case, No. 83-8065, the district court found that the federal government abused its discretion by restricting the sponsorship of the Cubans approved for parole. Fernandez-Roque v. Smith, 557 F.Supp. 690 (N.D.Ga.1982). We reverse the judgments of the district court and remand for further proceedings.

Approximately 125,000 Cubans arrived in the United States during the spring and summer of 1980 as part of the Mariel "Freedom Flotilla." Most of them lacked visas or documents entitling them to legally enter the United States. Many admitted to convictions for criminal offenses in Cuba. The Immigration and Nationality Act (INA), 8 U.S.C. Sec. 1101 et seq., allows for the exclusion of an alien ² from the United States for a variety of reasons. 8 U.S.C. Sec. 1182(a). ³ After exclusion hearings, the government determined that the majority of the Cubans should be denied entry into the United States and requested Cuba to accept the return of its citizens. So far, the Cuban government has refused to take them back.

The Attorney General is granted broad powers over immigration matters. See 8 U.S.C. Sec. 1103(a). Excluded aliens normally are immediately deported, "unless the Attorney General, in an individual case, in his discretion, concludes that immediate deportation is not practicable or proper." 8 U.S.C. Sec. 1227(a). Pending deportation, the Attorney General may,

in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States ... and, when the purposes of such parole shall, in the opinion of the Attorney General have been served, the alien shall forthwith return or be returned to the custody from which he was paroled ....

8 U.S.C. Sec. 1182(d)(5)(A). The Attorney General paroled most of the Cuban nationals who participated in the Mariel "Freedom Flotilla." Although no longer in detention, the parole of the aliens does not change their legal status. They are still classified as excluded aliens and subject to deportation. Leng May Ma v. Barber, 357 U.S. 185, 190, 78 S.Ct. 1072, 1075, 2 L.Ed.2d 1246, 1249-50 (1958).

In 1981, the Attorney General adopted a Status Review Plan (the plan) to review each detainee's request for parole. The plan created a review panel selected from officials of the different divisions of the Department of Justice. Under the plan, the panel initially examines the file of the detainee. To recommend release, the panel must conclude that "(1) the detainee is presently a nonviolent person, (2) the detainee is likely to remain nonviolent, and (3) the detainee is unlikely to commit any criminal offenses following his release." Department of Justice, "Attorney General's Status Review Plan and Procedures" (approved April 28, 1983) at 4. If the panel decides in favor of parole, its recommendation is forwarded to the Commissioner of the Immigration and Naturalization Service (Commissioner) for approval.

If the Commissioner rejects the panel's recommendation or if the panel is unable to make a determination based solely on the detainee's file, the alien is personally interviewed by the panel. Written notice of the interview is furnished to the alien at least seven days in advance. At the interview, the detainee may be assisted by a person of his choice. He may examine the documents and may submit either written or oral information supporting his release.

After the interview, the panel forwards its recommendation to the Commissioner. If the Commissioner grants release, he may impose "such special conditions as considered appropriate by the Commissioner." Id. at 7. If parole is denied, the alien remains in custody. In either case, the detainee is notified of the Commissioner's final decision in English and Spanish. The plan provides for at least annual reviews of an alien's case as long as he remains in detention.

Parole may be revoked if the alien is convicted in the United States of a felony or a serious misdemeanor. An alien who poses a clear and imminent danger to the community or himself may also be returned to custody. Finally, parole may be revoked if an alien released to a special placement project violates the conditions of his parole. Upon revocation of parole, the alien is returned to detention and any further petition for release is processed under the plan.

Even if approved for parole, an alien remains in detention until a suitable sponsor is found for him. The sponsors assist the alien to adapt to life in the United States and provide him with necessary support. The Office of Refugee Resettlement (ORR), of the Department of Health & Human Services, coordinates the search for sponsors. ORR may place parolees with voluntary charitable agencies, other groups and, initially, even individuals. Those aliens approved for parole but requiring psychological or psychiatric treatment are released to the Public Health Service (PHS).

The great majority of the Cubans who participated in the Mariel boatlift have resettled in Florida. Because of the heavy burden on that state's social services, the Governor of Florida requested that ORR restrict any additional resettlement in that state. In response to that request, ORR adopted a policy that it would not resettle any Cubans in Florida except with family members. ORR made a supplemental grant of $31 million to assist the state with its added costs.

ORR also revised its prior policy of authorizing individual non-family members as sponsors. ⁴ Although ORR originally approved individuals, it decided that such persons could not supply the necessary services to the parolees and that structured environments were more amenable to a smooth transition. ORR also believed that individual sponsors suffered from a higher rate of "sponsorship breakdown" and the organizations provided necessary support in cases of a failed sponsorship.

Moises Garcia-Mir, who had arrived in the Freedom Flotilla, filed, on January 8, 1981, a class action on behalf of those Cubans who were still in detention. ⁵ The complaint sought injunctive relief and a declaratory judgment that continued incarceration was unlawful. Another Cuban national, Rafael Fernandez-Roque, initiated a separate class action suit seeking a writ of habeas corpus for the detainees who the Attorney General had refused to release because of lack of entry documents under 8 U.S.C. Sec. 1182(a)(20). The district court consolidated those actions with Orlando Chao-Estrada's individual petition for habeas relief.

The court conditionally certified a class consisting of all participants in the Freedom Flotilla who were detained in Atlanta and divided the class into a number of subclasses. Fernandez-Roque v. Smith, 91 F.R.D. 117, 123, as modified, 91 F.R.D. 239, 240 n. 1 (N.D.Ga.1981). After a hearing, the district court ordered the release of some class members and the parole of others once sponsors were found. At the government's request, the district court modified its order so that the government could review, pursuant to the Attorney General's plan, those Cubans ordered released or paroled. Fernandez-Roque v. Smith, 91 F.R.D. 239 (N.D.Ga.1981).

Upon the completion of the government's review, those Cubans determined not to be releasable renewed their petition for habeas corpus. The district court heard oral arguments and, in Fernandez-Roque v. Smith, 567 F.Supp. 1115 (N.D.Ga.1983), held that the Attorney General's plan did not satisfy the constitutional due process requirements for those Cubans detained in the Atlanta Federal Penitentiary. Examining the immigration laws, the district court found that the government had statutory authority to detain aliens indefinitely in those cases where immediate exclusion was not a practical means to perpetuate its policy. ⁶

The district court then considered whether continued detention of the aliens violated the fifth amendment to the Constitution. Although conceding that aliens have no constitutional rights to be admitted into the United States, Landon v. Plasencia, supra, the district court distinguished between admission...