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

Citation600 F. Supp. 1500
Decision Date21 January 1985
Docket NumberC81-938A and C81-1350A.,Civ. A. No. C81-1084A
PartiesRafael FERNANDEZ-ROQUE, et al., Petitioners, v. William French SMITH, et al., Respondents. Moises GARCIA-MIR, et al., Plaintiffs, v. William French SMITH, et al., Defendants. Orlando CHAO-ESTRADA, Petitioner, v. William French SMITH, et al., Respondents.
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia

Deborah Ebel, Dale Schwartz, Myron Kramer, Kenneth Hindman, David Webster, Atlanta, Ga., for plaintiffs.

Sharon Douglas Stokes, Larry D. Thompson, Atlanta, Ga., Lauri S. Filppu, Washington, D.C., for the government.


SHOOB, District Judge.

This order addresses what the immediate future holds for 147 Cubans who are currently detained at the Atlanta Federal Penitentiary.


These 147 Cubans were among the approximately 125,000 Cubans who left Cuba in 1980 via Mariel Harbor and who came to the United States. Although some of the 125,000 were detained, the vast majority of these "Marielitos" were released on "parole"; that is, they were permitted to live freely in American society instead of in detention camps and prisons.

Approximately 1800 of the Marielitos who were not released were transferred to the Atlanta Federal Penitentiary in 1981, and they were joined by other Marielitos over the next few years. Attorneys for the group brought this lawsuit as a class action, asking that these detainees be released on parole and that they be granted refuge and asylum in this country. See Fernandez-Roque v. Smith, 567 F.Supp. 1115, 1119-20 (N.D.Ga.1983), rev'd, 734 F.2d 576 (11th Cir.1984).

In August, 1981, this Court ordered the government to show cause why various subclasses of the group of Cuban detainees should not be released. Because the government could show no reason for continuing to detain certain Marielitos who clearly were not criminals or mental incompetents and who posed no threat to American society, this Court ordered their release. Fernandez-Roque v. Smith, 91 F.R.D. 239 (N.D.Ga.1981).

At the government's request, however, on August 21, 1981 the Court modified this order to permit the government to conduct its own review of these detainees under a "Status Review Plan" approved by the Attorney General. Under the Status Review Plan, panels of government officials began to review each detainee's case according to guidelines and procedures specified within the Plan itself. The standards approved by the Attorney General for determining whether a detainee is "releasable" are whether

(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.

"Attorney General's Status Review Plan and Procedures" at 4. If the detainee is deemed "releasable," the Plan provides that the detainee

shall be paroled when a suitable sponsor or placement for him has been arranged.

(Emphasis added.)

Since the implementation of the Status Review Plan in 1981, the government's review panels have directed the release of approximately 2700 detainees. Based on its understanding that the government would follow the standards and procedures approved by the Attorney General in his Status Review Plan, this Court has deferred to the decisions of the government's review panels and, therefore, has entered no further orders of release. That understanding, however, is no longer accurate with respect to the 147 Cubans who are the subject of this order.

These 147 detainees were reviewed under the Attorney General's Status Review Plan. Government officials who conducted these reviews have declared that these detainees are not dangerous to society and that each of the 147 detainees is entitled to be released on parole, provided that each has a suitable sponsor. Thirty-five of these detainees have acceptable sponsors. While this group of 35 awaited release, the government halted the release program,1 apparently as a result of its December 14, 1984 agreement with Cuba.2

Although the government has stopped releasing detainees who have been approved for release, counsel for the government has informed this Court that the Status Review Plan remains "in effect." Transcript of December 27, 1984 Hearing at 4. Subsequently, this Court ordered the government to show cause why these 147 detainees should not be released as soon as suitable sponsors were found. As is evident from the following discussion, the government has failed to show any good reason for continuing to detain these 147 persons, particularly those 35 detainees who have sponsors. Consequently, for the first time in over three years, this Court must order the release of a group of Cuban detainees: those 34 persons3 who seek release, who have been found "not dangerous," and who have sponsors.


On January 7, 1985, this Court ordered the government to show cause (1) why those detainees already approved for release should not be released as soon as sponsors are located and approved, and (2) why the names of those detainees should not be released to counsel for plaintiffs.4 The parties submitted briefs that addressed not only the merits of the dispute but also this Court's jurisdiction.

At a hearing on January 10, 1985, counsel for the government advised the Court that many of the 35 "releasable" Cuban detainees who had sponsors were dressed in civilian clothes, ready to leave the penitentiary, when the Commissioner of INS ordered that no Cuban detainees be released. In addition, counsel for the government stated that on January 9, 1985, the Attorney General issued a memorandum to the Commissioner of INS directing that the Status Review Plan remain in effect but that no Cuban detainees be released, pending a review of the Plan in light of the December 14, 1984 agreement with Cuba. Further, according to the government's counsel, 40 of the 147 "releasable" detainees allegedly had committed a "prohibited act" inside the prison after they were approved for release, and the names of three detainees in this group had already been sent to the Commissioner for a decision whether to rescind approval for release.5 After hearing oral argument, the Court directed that although the government had produced no evidence that any of the 35 "releasable" detainees with sponsors had committed a prohibited act that would remove them from the "releasable" category, the government would be allowed several more days to produce specific evidence of misconduct by these 35 detainees.

Next, on January 11, 1985, at a hearing in chambers, counsel for the government advised the Court that several of the 147 "releasable" detainees had committed dangerous crimes in the United States, a further reason not to order the release of any of the group of 147.6

Then, on January 11, 1985, this Court issued a further order to show cause. That order directed the government to produce "particularized evidence" of prohibited acts within the prison, crimes within the United States, or any other circumstances that would justify removing any detainee approved for release from the list of "releasables". The order specified that plaintiffs' counsel should receive any such evidence 24 hours in advance of a hearing set for January 16, 1985. This order also directed the government to show cause at that hearing

why as a result of the alleged commission of prohibited acts after they were placed on the release list, as set forth in the "Noonan affidavit", or for any other good reasons not previously presented to the Court, any of the above 35 detainees approved for release who had approved sponsors should not immediately be released on parole to their sponsors, and why any of the above 112 detainees approved for release but who do not yet have sponsors should not be immediately released on parole as soon as sponsors are located and approved.

On the day before the hearing, counsel for the government provided certain documents to plaintiffs' counsel, as required by the January 11 order, and also furnished the Court with a "courtesy copy" of the materials. These materials included declarations by Donald J. Young, an INS official, and William Noonan, Jr., Executive Assistant to the warden at the Atlanta Penitentiary. Accompanying these declarations were other documents under seal. Exhibits 1-4 concerned criminal activity by members of the group of 147 "releasables."7 A crucial fact revealed by Young's declaration is that all this information was known by government officials when these same officials approved the detainees for release. Exhibits 6-7 consisted of prison reports of the alleged "prohibited acts" within the prison by three "releasable" detainees with sponsors and by 24 without sponsors.8

At the January 16, 1985 hearing on the January 11 further order to show cause, the Court questioned government counsel about exhibit 6, the reports of the following prohibited acts by three "releasable" detainees with sponsors:

1. Amores-Tores: possession of one marijuana cigarette on July 4, 1984 (approved for release October 4, 1984);
2. Suarez-Padilla: refusal to report for work on November 16, 1983; given two extra hours duty (approved for release September 20, 1984);
3. Suarez-Rodriguez: fighting with another detainee on May 28, 1984; commissary privileges restricted for four weeks (approved for release September 12, 1984).

Transcript at 15-16. Counsel for plaintiffs introduced evidence, unchallenged by the government, that the panels which approved these detainees for release knew of these alleged infractions at the time of approval. Transcript at 26-27.

Apparently abandoning the government's previous intimations that these detainees somehow no longer satisfied the standards for "releasability" under the Attorney General's Status Review Plan, counsel for the government responded as follows:

We are not refuting the Attorney General's or the Commissioner's decision that these

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