Fernandez-Roque v. Smith, Civ. A. No. C81-1084A

• Decision Date: 23 November 1982
• Docket Number: C81-938A and C81-1350A.,Civ. A. No. C81-1084A
• Citation: 557 F. Supp. 690
• Parties: Rafael FERNANDEZ-ROQUE, et al., Plaintiffs, v. William French SMITH, et al., Defendants. Moises GARCIA-MIR, et al., Plaintiffs, v. William French SMITH, et al., Defendants. Orlando CHAO-ESTRADA, Petitioner, v. William French SMITH, et al., Respondents.
• Court: U.S. District Court — Northern District of Georgia

557 F. Supp. 690

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

Moises GARCIA-MIR, et al., Plaintiffs, v. William French SMITH, et al., Defendants.

Orlando CHAO-ESTRADA, Petitioner, v. William French SMITH, et al., Respondents.

Civ. A. Nos. C81-1084A, C81-938A and C81-1350A.

United States District Court, N.D. Georgia, Atlanta Division.

November 23, 1982.

Dale M. Schwartz, John A. Pickens, Myron N. Kramer, Deborah S. Ebel, Kenneth Hindman, David A. Webster, Atlanta, Ga., for plaintiffs.

Douglas P. Roberto, Asst. U.S. Atty., Atlanta, Ga., Daniel E. Fromstein, Dept. of Justice, Washington, D.C., for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

SHOOB, District Judge.

These consolidated cases are before the Court on plaintiffs' renewed motion for entry of writs of habeas corpus as to those Cuban detainees in the plaintiff class who have been approved for release by defendants but remain incarcerated awaiting sponsors. The procedural history leading up to plaintiffs' original motion and its subsequent renewal is briefly outlined below.

On August 7, 1981, on plaintiffs' renewed motion for class certification, this Court conditionally certified a class of all Cuban nationals incarcerated at the Atlanta Federal Penitentiary who arrived in this country as part of the "Freedom Flotilla" of 1980. 91 F.R.D. 117, 122-24; modified at 91 F.R.D. 239, 240, n. 1. The Court also certified twelve subclasses, and issued a series of show cause orders to the government.

At the first hearing on August 17, 1981, the government failed to show sufficient cause why members of subclasses (1) and (2) should not be released. The Court then issued the writs of habeas corpus to the 226 detainee class members in subclasses (1) and (2). 91 F.R.D. 239, 243. These detainees were to be released on parole as soon as they were approved for sponsorship or resettlement by the United States Catholic Conference, or by any of the other ten agencies within the American Council of Volunteer Agencies. The Court also ordered the release on the same terms of 155 detainees as to whom the government announced on August 17, 1981, in open court, that it had no further objections to release.

Subsequently, the Court modified its order to permit the government to perform its own review of the cases of the 226 members of subclasses (1) and (2), under the Attorney General's "Status Review Plan." See order of this Court dated August 21, 1981. Since that date, the Court has issued no further orders granting writs of habeas corpus.

On October 20, 1981, plaintiffs moved for entry of writs of habeas corpus as to those class members who had been approved for release under the Attorney General's review plan since August 20, 1981, but remained incarcerated. In their Supplemental Memorandum filed November 4, 1981, plaintiffs requested the Court to defer ruling on their motion, and in its November 12, 1981, order the Court granted this request. On July 27, 1982, plaintiffs moved to renew their motion, and the Court ordered that a show cause hearing be held on September 3, 1982.

At the hearing plaintiffs presented evidence that continued detention, after approval for release, has an especially deleterious psychological impact upon potential releasees, and that defendants may be able to utilize available sponsorship alternatives, including individual, non-family sponsors, which could reduce significantly the release waiting time. Defendants presented evidence of the ongoing efforts being made to place detainees approved for release with suitable sponsors.

At the conclusion of the hearing the Court requested counsel for the parties to submit proposed findings and conclusions and a proposed order, and these were filed on October 21, 1982. The Court, having duly considered these submissions along with the evidence presented at the hearing, now enters the following findings of fact and conclusions of law.

Findings of Fact

1.

The petitioning members of the plaintiff class are citizens of Cuba who arrived in the United States as part of the "Freedom Flotilla" of April-June 1980 and are now incarcerated at the Atlanta Federal Penitentiary.

2.

In August 1981 the Attorney General instituted a Status Review Plan designed to determine which of those Cubans detained in Atlanta could be released from incarceration.

3.

As of September 3, 1982, 1207 detainees had been released pursuant to the Attorney General's review plan (T-106).¹ (References to the transcript of the September 3, 1982, hearing are marked "T- —".)

4.

There were, as of September 3, 1982, 1164 Cubans still detained at the Atlanta Federal Penitentiary (T-235).²

5.

Of the 1164 Cubans remaining at the Atlanta Federal Penitentiary on September 3, 1982, 171 had been approved for release by the Attorney General but were still incarcerated awaiting sponsorships (T-4).³ Most of these individuals have been incarcerated in Atlanta for a total of more than two years (T-29-30).

6.

Among the 171 Cubans approved for release but still incarcerated were 79 who had been incarcerated for more than 60 days after approval, and among these were several who had been approved for release as early as October 1981 (Defendants' Exhibit 2, T-177-79).

7.

The Attorney General's review procedure entails a personal interview with each detained Cuban and a recommendation for or against release by the two-member panel that conducts the interview. The Commissioner of Immigration and Naturalization makes the final decision regarding the individual's approval or denial for release.

8.

Any individual approved for release is actually paroled only after a suitable sponsorship has been arranged for him. The sponsor assists the releasee in adjusting to our culture and society by providing food, shelter, clothing and emotional support during a transitional period. The sponsor also assists the releasee with locating a job and gaining educational, language or vocational training, as well as with learning all those things necessary to live and work in the community.

9.

Any individual approved for release may have such approval revoked by the Commissioner of Immigration and Naturalization or may have a "hold" put on his release by the Bureau of Prisons (BOP) (T-121-22, 162, 164).⁴

10.

Individuals approved for release but found in need of psychological or psychiatric treatment are transferred to the custody of the Public Health Service (PHS). Among those approved for release, some 42 Cubans had been referred to the PHS as of July 1, 1982 (Defendants' Exhibit 2.)⁵

11.

Individuals approved for release and referred to the PHS may receive treatment at the Atlanta Penitentiary or may be transferred to other federal facilities at Springfield, Missouri, and St. Elizabeth's Hospital in Washington, D.C., depending on the level of treatment and security deemed necessary (T-186). There are currently available three non-federal residential treatment facilities, with a total capacity of 123, to which PHS will release Cubans for whom it is responsible (T-191-92, 209-10).

12.

The names of those individuals who are approved for release to sponsors are forwarded to the Office of Refugee Resettlement (ORR), which coordinates the efforts of volunteer agencies and other groups to locate a sponsorship arrangement for each detainee.

13.

Currently there are two volunteer agencies — United States Catholic Conference (USCC) and American Council for Nationalities Service (ACNS) — with whom ORR has contracts for resettlement. These agencies ordinarily arrange for sponsorships either by family members or in a structured half-way house environment; individual, non-family sponsors are generally not utilized (T-146-47).

14.

At this time, because the number of available sponsors has declined and because of concurrent efforts to resettle recent Haitian entrants, the volunteer agencies are accepting relatively few Cubans for placement.⁶

15.

ORR has published a "Request for Proposals" (R.F.P.) at 46 Fed.Reg. 15775 (March 9, 1981) soliciting proposals for grants to organizations willing to resettle Cubans. Grant recipients, known as special placement grantees, select detainees with special needs, such as alcoholics or drug-dependents, and provide them with particularized assistance. To date, approximately 15 special placement grantees have been used in resettling Cubans from the Atlanta Penitentiary (T-100).

16.

Although the published R.F.P. appears directed toward organizations and institutions, there is nothing to prevent ORR from entering into grant agreements with suitable individuals as well (T-150-51). However, individuals who contact ORR and express an interest in sponsoring Cubans are referred to a volunteer agency (T-131-32).

17.

A majority of the Cuban-American population, and thus a large number of potential sponsors, resides in the State of Florida (T-132).

18.

Pursuant to a request by the governor of Florida, made because of the heavy burden placed on that state's social services system by the recent influx of aliens, ORR has a policy of not resettling any Cubans in that state except with family members (T-131-32, 159). ORR will not fund any grantees under its R.F.P. in Florida (T-136), nor will it permit voluntary agencies to resettle those without family in Florida (T-171).

19.

On at least one occasion, ORR provided supplemental funds to the State of Florida in the amount of $31 million to aid in the delivery of social services to the large number of aliens there (T-131).

20.

There are potentially suitable sponsors, both within and without the State of Florida, whose letters and offers to serve as sponsors have been ignored (T-75-77).

21.

As demonstrated by the testimony of Mrs. Torna, individual, non-family sponsors can provide effective placements for at least some Cubans.

22.

There is no demonstrably significant relationship between the family status of a sponsor and the...