Fernandez-Roque v. Smith

• Citation: 539 F. Supp. 925
• Decision Date: 28 April 1982
• Docket Number: C81-938A and C81-1350A.,Civ. A. No. C81-1084A
• 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

539 F. Supp. 925

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.

April 28, 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.

                                       TABLE OF CONTENTS
                    Introduction                                            page 927
                I.     Habeas Corpus Jurisdiction                           page 928
                II.    Plaintiffs' Motion to Amend the Complaint            page 930
                III.   Jurisdiction Over Claims of Amended Complaint        page 931
                    A. Allegations of Complaint, as Amended, and
                       Claims for Relief                                    page 931
                       1. Part VII of Amended Complaint                     page 931
                       2. Part VIII of Amended Complaint                    page 932
                    B. Jurisdictional Bases Offered by Plaintiff
                       Class                                                page 933
                    C. Structure of Jurisdiction Discussion                 page 934
                    D. Are the Claims in the Amendments to the
                       Complaint Cognizable Under the Convention
                       and Protocol?                                        page 934
                    E. Judicial Review of Final Exclusion Orders            page 935
                       1. Finality                                          page 935
                       2. Exhaustion of Administrative Remedies             page 936
                       3. Conclusion                                        page 939
                

                    F. Claim of Entitlement to Remand to INS for
                       Classwide Hearing Based on New, Material
                       Evidence                                             page 939
                       1. Coriolan                                          page 939
                       2. Plaintiff's Claim                                 page 939
                       3. The Government's Response                         page 941
                       4. Futility of Exhausting Individual Administrative
                          Remedies                                          page 941
                       5. Merits of Plaintiffs' Claim                       page 943
                       6. Lack of Jurisdiction                              page 943
                    G. Propriety of Classwide Review of Final, Exhausted
                       Exclusion Orders                                     page 945
                IV.    Proceedings Contemplated After Appeal                page 947
                V.     The Injunction                                       page 947
                VI.    Certification for Interlocutory Appeal               page 948
                       Conclusion                                           page 948
                

SHOOB, District Judge.

INTRODUCTION

The United States Court of Appeals for the Eleventh Circuit has remanded these complex consolidated cases with this instruction:

Since we find it imperative for the district court to resolve the question of its jurisdiction, we remand this case with the direction that it conduct forthwith only such hearing as is necessary to a determination of whether subject matter jurisdiction exists. Such hearing should be conducted without any discovery as to issues other than that of jurisdiction. Upon the conclusion of such hearing, the district court shall enter an opinion setting forth the reasons for its decision. To the extent, if any, that the appellees have altered the nature of the relief sought in their amended complaint, the district court shall specify the exact nature of the claim or claims as to which jurisdiction is now alleged to reside in the district court. The question of subject matter jurisdiction shall then be certified to this Court, pursuant to 28 U.S.C. § 1292(b), upon request by any party.

Fernandez-Roque v. Smith, 671 F.2d 426, 431 (11th Cir. 1982). The mandate of the Eleventh Circuit was made the judgment of this Court on March 10, 1982. On the same day, a separate order was filed establishing a briefing schedule and setting a hearing. On March 16, 1982, oral argument was heard on the question of this Court's subject matter jurisdiction. Additional briefs were filed, as requested by the Court, and the question which the Eleventh Circuit's mandate requires this Court to answer is now ripe for decision.¹ This order and opinion is filed to comply with the mandate.

In addition to the Court's ruling on its subject matter jurisdiction over the class' refugee and asylum claims in Part III of this order, this order (1) discusses the Court's jurisdiction over the habeas corpus portion of the action; (2) grants plaintiffs' motion to amend their complaint; (3) sets forth the limited proceedings presently envisioned by the Court upon the return of this litigation from the Court of Appeals in the event this Court's jurisdiction over the second portion of the case is upheld; (4) continues in effect the temporary restraining order to preserve the status quo pending appellate review, and defers ruling on the government's motion to dissolve the injunction and on plaintiffs' application for a preliminary injunction; and (5) upon request by the government, certifies this order and opinion for immediate interlocutory appeal under 28 U.S.C. § 1292(b) pursuant to the Eleventh Circuit's mandate.

I. Habeas Corpus Jurisdiction

Named plaintiff Moises Garcia Mir filed his original class action complaint in the United States District Court for the District of Kansas on January 8, 1981.² Styled a complaint "For Declaratory Judgment, Preliminary and Permanent Injunctions," the complaint alleged that the continued detention of plaintiff and those similarly situated violated both United States municipal law and international law. Plaintiff Mir further alleged that defendant had not afforded him a procedurally adequate hearing on the question whether he should suffer further detention. Plaintiff and his class prayed for a declaratory judgment that continued incarceration would violate both domestic and international law, and for a preliminary and permanent injunction compelling defendant to (a) release plaintiff and his class or (b) conduct procedurally adequate hearings to determine whether continued detention of plaintiff and his class is warranted, by a finding that the detainee is likely to abscond, is a threat to the security of the United States, or is a serious threat to persons or property in the United States.

Thus, the complaint as originally filed in Civil Action No. C81-938A was essentially a habeas corpus petition on behalf of a class. (While the class was not certified until after the case was transferred to Georgia, Judge Rogers of the Kansas district court indicated in his order of transfer that, in his opinion, the requirements of Rule 23 had been met. Order of May 12, 1981, pages 3-12.) After the case was transferred to this district court, the focus of plaintiff class' habeas claims became whether the Attorney General, acting through Immigration and Naturalization Service ("INS") District Directors, had abused his discretion on a classwide basis by denying or revoking parole.³ Very shortly after this Court's decision in Soroa-Gonzales v. Civiletti, supra, named plaintiff Rafael Fernandez-Roque brought his action on behalf of a class of all Cuban detainees at the Atlanta Federal Penitentiary who were excludable solely on the basis of lack of entry papers, 8 U.S.C. § 1182(a)(20). Civil Action No. C81-1084A, filed June 5, 1981. Because the Fernandez-Roque class would have been a subclass of the Garcia-Mir class, the two actions were consolidated. Order of the Court, July 14, 1981. The third of these three lawsuits, Orlando Chao-Estrada v. Smith, Civil Action No. C81-1350A, was filed by an individual detainee on July 17, 1981, and consolidated with the two class actions by order dated July 24, 1981.⁴

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 writ of habeas corpus to the 226 detainee class members in subclasses (1) and (2).⁵ 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, 1982, 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. In effect, litigation of plaintiff class' habeas corpus petition has been deferred while the Attorney General re-exercised his parole discretion by expeditiously conducting a Status Review of each detainee. The process is now very nearly complete. As of April 5, 1982, the government has determined that of the approximately 1,800 original class members, each detained for a minimum of fifteen months, 1,133 may be released. The government has determined that these 1,133 Cuban...