Diaz v. Haig

• Decision Date: 17 August 1981
• Docket Number: No. C81-235B.,C81-235B.
• Citation: 594 F. Supp. 1
• Parties: Manuel DIAZ, Rodeno Roderiguez, Lucero Hidalgo, Emilio Cabreba, and Lorenzo Escobar, by their next friend, Kathryn Collard, Plaintiffs, v. Alexander M. HAIG, Jr., in his capacity as Secretary of State of the United States; William French Smith, in his capacity as Attorney General for the United States; Doris Meisner, in her capacity as Director of the Immigration and Naturalization Service; Robert Godshall, in his capacity as District Director of the Immigration and Naturalization Service; Norman Schoss, in his capacity as Supervisory Deportation Officer of the Immigration and Naturalization Service; Joe Earnhart, in his capacity as Acting Officer in Charge/Director of Investigation and Deportation of the Immigration and Naturalization Service; Gerald Fossbender, in his capacity as Officer in Charge of Immigration (Utah and Wyoming) of the Immigration and Naturalization Service; D.B. Hladky, in his capacity as Sheriff of the Campbell County Jail, Gillette, Wyoming; and Paul Redden, in his capacity as Sheriff of the Johnson County Jail, Buffalo, Wyoming, Defendants.
• Court: U.S. District Court — District of Wyoming

594 F. Supp. 1

Manuel DIAZ, Rodeno Roderiguez, Lucero Hidalgo, Emilio Cabreba, and Lorenzo Escobar, by their next friend, Kathryn Collard, Plaintiffs, v. Alexander M. HAIG, Jr., in his capacity as Secretary of State of the United States; William French Smith, in his capacity as Attorney General for the United States; Doris Meisner, in her capacity as Director of the Immigration and Naturalization Service; Robert Godshall, in his capacity as District Director of the Immigration and Naturalization Service; Norman Schoss, in his capacity as Supervisory Deportation Officer of the Immigration and Naturalization Service; Joe Earnhart, in his capacity as Acting Officer in Charge/Director of Investigation and Deportation of the Immigration and Naturalization Service; Gerald Fossbender, in his capacity as Officer in Charge of Immigration (Utah and Wyoming) of the Immigration and Naturalization Service; D.B. Hladky, in his capacity as Sheriff of the Campbell County Jail, Gillette, Wyoming; and Paul Redden, in his capacity as Sheriff of the Johnson County Jail, Buffalo, Wyoming, Defendants.

No. C81-235B.

United States District Court, D. Wyoming.

August 17, 1981.

COPYRIGHT MATERIAL OMITTED

Donald J. Sullivan, Cheyenne, Wyo., Kathryn Collard, Salt Lake City, Utah, Carol Hewett, National Juvenile Law Center, St. Louis, Mo., for plaintiffs.

Richard A. Stacy, U.S. Atty., D. Wyo., Peter Mulvaney, Deputy Asst. Atty. Gen., and Allen C. Johnson, Asst. Atty. Gen., Cheyenne, Wyo., for defendants.

ORDER

BRIMMER, Chief Judge.

The above-entitled matter, having come on for hearing before the Court on August 22 and 24, 1981; the Plaintiffs appearing by and through their attorneys Carol Hewett, and Donald J. Sullivan, Esq., and the Defendants appearing by and through their attorneys Richard A. Stacy, Esq., United States Attorney, Peter J. Mulvaney, Deputy Attorney General for the State of Wyoming, and Greg Goddard, Esq.; the Court, having reviewed the pleadings, stipulations, briefs, and exhibits filed herein, having heard the testimony of witnesses and the arguments of counsel, having taken the matters under advisement, and now, being fully advised in the premises; FINDS, AS TO

JURISDICTION:

Controversies involving the custody and detention of aliens by officials of the Immigration and Naturalization Service (INS) are reviewable by Federal District Courts through application for a writ of habeas corpus under 8 U.S.C. § 1329, 28 U.S.C. § 1331, and 28 U.S.C. § 2241. Such was the well reasoned finding in Genaro Soroa-Gonzales v. Civiletti, 515 F.Supp. 1049 (D.Ga.1981). The fact that habeas corpus is sought for review of a matter ancillary or preliminary to a final determination by the INS of exclusion or deportation does not deprive the Court of subject matter jurisdiction. See Daneshvar v. Chauvin, 644 F.2d 1248 (8th Cir.1981).

The presence of the parties detained or their custodian within the territorial confines of the Federal District Court's jurisdiction is sufficient to grant a writ of habeas corpus in accord with the limitations of 28 U.S.C. § 2241. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Said custodian need not be the warden of the particular facility in which the habeas corpus petitioner is detained and jurisdiction is properly asserted where the party responsible for the petitioner's detention is available. McCoy v. United States Board of Parole, 537 F.2d 962 (8th Cir.1976); and Lee v. United States, 501 F.2d 494 (8th Cir.1974). Jurisdiction based on the presence only of the custodian of the petitioner is properly maintained where the district court entertaining the petition is the more convenient forum or there is a justifiable reason why the government should undertake the burden of transporting the petitioner to that court. See Braden, supra, 410 U.S. at 500, 93 S.Ct. at 1132. In the case at hand, at all relevant times during the litigation either the INS or all five of the petitioners were present within the State of Wyoming. Jurisdiction for habeas corpus purposes was therefore properly asserted.

FINDS, AS TO THE CIRCUMSTANCES SURROUNDING THE DETENTION OF THE PETITIONERS:

All five of the petitioners are Cuban citizens between the ages of seventeen and eighteen. Each arrived at the shores of Key West or Miami, Florida between the months of April and July of 1980 as part of the "Freedom Flotilla" from Cuba. They have all been in custody since their arrival in the United States, with the exception of the weekend furloughs they were granted from Emerson House, a detention facility in Denver, Colorado. Each has been moved to and from federal prisons, refugee processing camps, a half-way house, and county jails throughout the period they have been here without explanation.

Ira Schwartz, an administrator in the Office of Juvenile Justice and Delinquency Prevention until February of 1981, testified that the detention of juveniles in the manner in which the petitioners were confined is contrary to the federal policy set forth by his agency pursuant to the Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C. 5601 et seq. Thus, this Court finds the treatment of the petitioners since their arrival in the United States unduly harsh and their detention in facilities not suited to juvenile custody or rehabilitation an abuse of discretion by the Defendants. Their status as aliens subject to exclusion under the Immigration and Naturalization Act, 8 U.S.C. 1101 et seq., does not warrant the deprivation of the protections and benefits offered to other juveniles in the United States.

FINDS, AS TO THE STATUS OF THE PETITIONERS AS ALIENS SUBJECT TO EXCLUSION:

The Defendants claim that the detention of the petitioners over the past fourteen to sixteen months is justified by the statements they made to INS officials with regard to their criminal conduct in Cuba at the time they were first taken into custody upon their arrival. The circumstances under which the statements were taken, the doubts raised as to the proper transcription and translation of the statements of the petitioners, and the fact that they were made in the hope of obtaining freedom by cooperation in a coercive setting all lead this Court to question their reliability for purposes of determining the nature and seriousness of the crimes allegedly committed by the petitioners in Cuba. Absent the testimony of the parties who took the statements verifying their accuracy and that they were taken under proper conditions, they cannot be received as admissions against interest to show the truth of the matter contained therein.

There is also some doubt as to whether the wrongful acts alleged by the Defendants amount to the commission of crimes of moral turpitude within the meaning of 8 U.S.C. 1182(a)(9). At worst they consist of the theft of three sheep from a government farm by Manuel Diaz-Bandera in order to feed his family or the three separate thefts of food and clothing by Emilio Cabrera-Vazquez. Lazaro Hidalgo-Rodriguez was detained in Cuba merely for witnessing the theft of a wallet. Lorenzo Escobar-Sulueta was accused by his uncle of stealing rice, perfume, and six pesos from an abandoned house but was never brought to trial.

A court may examine the age of the offender, the circumstances surrounding the offenses, and the "modern viewpoint of the community with regard to offenses committed by a juvenile" in determining whether a crime of moral turpitude has been committed. Tutrone v. Shaughnessy, 160 F.Supp. 433 (D.C.N.Y., 1958). See also Morasch v. Immigration and Naturalization Service, 363 F.2d 30 (9th Cir.1966). In this respect, it is significant to note that, according to the testimony of the petitioners, they were dealt with as juveniles in the Cuban judicial system and were confined in separate juvenile camps or cells while serving sentences or awaiting trial in Cuba. All of this supports a finding that the theft of food by a hungry child or the theft of garments by an ill-clothed child do not constitute crimes of "moral turpitude" and are better classified as actions of self-preservation in a country where many of the necessities of life are withheld from a large portion of the populace.

FINDS AS TO THE ACTION TAKEN BY THE INS AND THE ATTORNEY GENERAL TOWARDS THE PETITIONERS:

As stated above, the petitioners in this case have been under almost continuous detention since their arrival in the United States. In March of 1981, petitioners participated, with representation of counsel, in exclusion hearings conducted pursuant to 8 C.F.R. 236.7 to determine their status as excludable aliens under 8 U.S.C. § 1182. At present, no ruling has been rendered by the administrative law judge in their cases and all proceedings have been suspended pending the processing of asylum applications submitted by the petitioners to the Department of State. Defendants' witness Norman Schoss, Supervisory Deportation Officer of the INS, testified that it generally takes about nineteen months to process asylum applications. This raises the possibility that the petitioners could face another fourteen months in jail before their cases are finally decided at the administrative level. Furthermore, the scope of the administrative hearings is limited to the determination of excludability of the petitioners and the necessity of deportation. Yet, it is clear that deportation would be impossible in light of the failure of past efforts of the United States to make the necessary arrangements with the government of Cuba and the miniscule chance that such negotiations are likely to be successful in the future. See Rodriguez-Fernandez v. Wilkinson, 505 F.Supp. 787, 789 (D.Kan.1980), aff'd, 654 F.2d 1382 (10th Cir.1981).

The fact that the Attorney General has developed a plan to deal with the Cuban refugees still in custody at this time in an expeditious manner is commendable but insufficient as far as these...