Cuban American Bar Ass'n, Inc. v. Christopher

Citation43 F.3d 1412
Decision Date18 January 1995
Docket Number94-5231 and 94-5234,Nos. 94-5138,s. 94-5138
PartiesCUBAN AMERICAN BAR ASSOCIATION, INC., Cuban Legal Alliance, Inc., Due Process, Inc., Lizbet Martinez, Arianna Gonzalez Nobaez, Arniel Del Campo Gonzalez, on behalf of themselves and all others similarly situated, Jovani Miguel Fiffe Pino, Nestor Rodriguez Labori, Nelson Torres Pulido, Maritza Exposito, David Buzzi, Alberto Rodriguez Garcia, on behalf of themselves and all others similarly situated, Leydis Milagros Ruiz Mendez, on behalf of herself and all others similarly situated, Elena Pino, Virginia Perez, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, Haitian Refugee Center, Inc.; Garry Joseph, Paulomme Edmond, Pierre Onel Antoine, Voidieu Jean Louis, Bergeline Jean Louis, Padeci Jean Louis, on behalf of themselves and others similarly situated, Provisional Intervenors, v. Warren CHRISTOPHER, Secretary of State, William J. Perry, Secretary of Defense, Doris Meissner, Commissioner, Immigration and Naturalization Service, Janet Reno, Attorney General, Immigration and Naturalization Service, Brigadier General Michael Williams, Commander Joint Task Force, Defendants-Appellants. CUBAN AMERICAN BAR ASSOCIATION, INC., Cuban Legal Alliance, Inc., Due Process, Inc., Lizbet Martinez, Arianna Gonzalez Nobaez, Arniel Del Campo Gonzalez, on behalf of themselves and all others similarly situated, Jovani Miguel Feffe Pino, Nestor Rodriguez Labori, Nelson Torres Pulido, Maritza Exposito, David Buzzi, Alberto Rodriguez Garcia, on behalf of themselves and all others similarly situated, Leydis Milagros Ruiz Mendez, on behalf of herself and all others similarly situated, Elena Pino, Virginia Perez, on behalf of themselves and all others similarly situated, Plaintiffs, Haitian Refugee Center, Inc.; Garry Joseph, Paulomme Edmond, Pierre Onel Antoine, Voidieu Jean Louis, Bergeline Jean Louis, Padeci Jean Louis, on behalf of themselves and others similarly situated, Provisional Intervenors-Appellees, v. Warren CHRISTOPHER, Secretary of State, William J
CourtU.S. Court of Appeals — Eleventh Circuit

Michael J. Singer, Alfred Mollin, Elizabeth A. Kessler, Robert M. Loeb, Edwin S. Kneedler, Deputy Sol. Gen., William Kanter, Michael S. Raab, Dept. of Justice, Washington, DC, for appellants.

Elliot H. Scherker, Roberto Martinez, Oscar Levin, Greenberg, Traurig, Hoffman, Lipoff, Rosen, & Quentel, P.A., Marcos D. Jimenez, Carlos B. Castillo, White & Case, Robert L. Boyer, Miami, FL, Leopoldo Ochoa, Coral Gables, FL, Jose Garcia-Pedrosa, Martias Dorta, Tew & Garcia-Pedrosa, Miami, FL, for Cuban American.

Harold Koh, Allard K. Lowenstein, Intern. Human Rights Law Clinic, New Haven, CT, Manuel Kadre, Murai, Wald, Biondo & Moreno, Miami, FL, for Cuban American Bar.

Ahpaly J.G. Coraden, New York City, for amicus movants Nat. Coalition for Haitian Refugees.

Carlos Manuel Vasquez, Washington, DC, for amicus movant Lawyers Committee for Human Rights.

Lucas Guttentag, New York City, for amicus movant ACLU.

Joanne Mariner, Washington, DC, for amicus movant Human Rights Watch.

Gene McNary, Danna, Soraghan, Stockenberg & McNary, P.C., St. Louis, MO, for amicus movants Smith, Livingston, Burton.

Grover Joseph Rees, Lafayette, LA, for amicus movants Smith, Burton.

Douglas W. Baruch, Robert Juceam, Fried, Frank, Harris, Shriver & Jacobson, Washington, DC, Ira Kurzban, Kurzban & Weinger P.A., Miami, Fl for appellees in No. 94 -5231.

Douglas W. Baruch, Robert Juceam, Fried, Frank, Harris, Shriver & Jacobson, Washington, DC, Ira Kurzban, Helena Tetzeli, Kurzban, Kurzban & Weinger, P.A., Miami, FL, for appellees in No. 94-5234.

Robert Juceam, Fried, Frank, Harris, Shriver & Jacobson, Washington, DC, for Haitian Refugee Center.

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

Before KRAVITCH, BIRCH and CARNES, Circuit Judges.

BIRCH, Circuit Judge:

This case requires us to address the following issues: (1) whether Cuban and Haitian migrants temporarily provided safe haven at the United States naval base at Guantanamo Bay, Cuba, and at the United States military installations in Panama, may assert rights under the Immigration and Nationality Act, the 1951 United Nations Convention Relating to the Status of Refugees, the Cuban Adjustment Act, the Cuban Democracy Act and the Constitution of the United States; (2) whether legal organizations can sustain First Amendment claims of freedom of speech and association with these migrants; and (3) whether the First Amendment or the Equal Protection clause of the Fifth Amendment dictates that the United States government must furnish a list of Haitian migrants who are residing at Guantanamo Bay to the Haitian Refugee Center, a legal service organization. The district court has entered preliminary injunctions granting attorneys for the Cuban migrants access to all Cuban migrants provided safe haven prior to voluntary repatriation and attorneys for Haitian migrants access to their clients and any other Haitian migrants who request counsel in writing, barring the government from repatriating any Cuban migrants prior to the migrant's consultation with a lawyer, directing the United States Attorney General to parole unaccompanied minor Haitian migrants into the United States on the same terms that unaccompanied minor Cuban migrants have been or may be paroled, and requiring the government to release the names of all Haitian migrants to the Haitian Refugee Center. After thorough review of authority in this circuit and the Supreme Court, we VACATE the district court's order and REMAND to the district court with direction to dismiss the plaintiffs' claims.

I. BACKGROUND
A. Factual Background
1. Cuban Migration

On August 8, 1994, Fidel Castro announced that the Cuban government would no longer forcibly prevent emigration from Cuba by boat. Castro's new policy encouraged thousands of Cubans to board makeshift rafts and boats to escape Cuba and head for the shores of the United States. While many were lost at sea, approximately 8000 Cubans arrived in the United States safely.

In an effort to quell this influx of migrants and to save the rafters' lives, on August 19, 1994, the President of the United States ordered the United States Coast Guard to intercept watercraft carrying persons fleeing from Cuba and bound for the United States' border and to transport these persons to the American naval base at Guantanamo Bay, Cuba. The United States leases its military base at Guantanamo Bay from sovereign Cuba under a lease agreement negotiated in 1903. 1

In August, 1994, the United States government began negotiating with the Cuban government to halt the flow of migrants to the United States. These diplomatic negotiations culminated on September 9, 1994, in an accord with the Cuban government. In this accord, the United States agreed it would allow Cuban migrants to enter the United States only by applying for immigrant visas or refugee admittance at the United States Interests Section in Havana, Cuba. A minimum of 20,000 persons are to be allowed to migrate legally to the United States each year, not including immediate relatives of United States citizens who are under no numerical restrictions. However, in conjunction with this international agreement, the Attorney General also ordered that no Cuban who had accepted safe haven in Guantanamo Bay or Panama would be allowed to apply for a visa or for asylum in the United States from safe haven. 2

Currently, Cuban migrants have three options with respect to their residence: (1) they may remain in safe haven; (2) they may repatriate to sovereign Cuba voluntarily; or (3) they may travel to a third country willing to accept them. While more than 1000 Cubans have requested voluntarily to be returned to Cuba, the Cuban government has restricted the return of Cuban nationals and has delayed the voluntary repatriation process. Persons who repatriate to Cuba voluntarily may then apply for asylum through the regular channels commencing at the United States Special Interests Section in Havana, Cuba.

The United States government's expressed desire is not to maintain these migrants for an indefinite period of time or against their will. The government's position is that it could return the migrants to Cuba legally without a migrant's request. However, the government has offered the Cuban migrants safe haven for as long as the migrants wished. All Cuban migrants volunteering to repatriate execute a form approved by the United Nations High Commissioner for Refugees ("UNHCR") and meet with a representative from UNHCR before returning.

UNHCR is an agency of the United Nations specializing in the care and well-being of refugees worldwide. UNHCR was established by the United Nations general assembly on January 1, 1951, "to provide international protection to refugees and to seek permanent solutions for their problems." UNHCR, Handbook for Emergencies Sec. 2.2(1) (1982). The UNHCR "aim[s] ... to secure treatment in accordance with universally recognized humanitarian principles not directly linked to the status [as refugees] of those in need." Id. Sec. 2.1(4); see also id. Sec. 2.2(1). UNHCR has participated with the United States government in ensuring that any return to Cuba was made on a voluntary basis.

In addition to UNHCR, humanitarian groups such as Amnesty International, Inc., the U.S. Committee for Refugees, and Church World Service (Immigration and Refugee Service) as well as legal organizations such as the Ad Hoc group of Cuban-American Attorneys, have been allowed to visit the migrants at the base. However, as the numbers of migrants and the length of the stay in safe...

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