Fernandez-Roque v. Smith
| Citation | 567 F. Supp. 1115 |
| Decision Date | 07 July 1983 |
| Docket Number | C81-938A and C81-1350A.,Civ. A. No. C81-1084A |
| Parties | Rafael 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. |
| Court | U.S. District Court — Northern District of Georgia |
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Dale M. Schwartz, Myron N. Kramer, Deborah S. Ebel, Kenneth Hindman, and David A. Webster, Atlanta, Ga., American Civil Liberties Union and Lawyers Committee for International Human Rights, New York, N.Y., amici curiae.
Douglas P. Roberto, Asst. U.S. Atty., Atlanta, Ga., Lauri Steven Filppu, William C. Brown, Stephen M. Weglian, Dept. of Justice, Washington, D.C., for respondents.
This litigation brought on behalf of Cuban detainees at the Atlanta Federal Penitentiary has reached a critical juncture. Presently before the Court for decision is a petition for writ of habeas corpus challenging the legality of the continued incarceration of Cubans who have been determined not to be releasable under the Attorney General's Status Review Plan. Petitioners also include a significant number of Cubans who were previously paroled into the United States by the Attorney General pursuant to his authority under 8 U.S.C. § 1182(d)(5), but who are now incarcerated in Atlanta following revocation of their parole.1 Before addressing petitioners' legal claims, the Court will briefly review the history of these consolidated cases to set the background for the legal discussion that follows.
On January 8, 1981, Moises Garcia-Mir, a Cuban national who arrived on these shores as a member of the 1980 "Freedom Flotilla" from Mariel, Cuba, and who was then incarcerated at the federal penitentiary in Leavenworth, Kansas, filed a class action complaint for declaratory and injunctive relief in the United States District Court for the District of Kansas, seeking a declaration that his continued incarceration was arbitrary, an abuse of the Attorney General's discretion, and a violation of his constitutional rights and fundamental human rights under international law. The complaint, brought on behalf of approximately 1,800 incarcerated Cubans, alleged that the continuing detention was illegal in the absence of a determination that, if released, an alien was likely to abscond, to pose a national security risk, or to pose an actual and serious threat to persons or property within the United States. Based on this alleged illegality, plaintiffs sought either immediate release or a procedurally adequate hearing to determine whether continued detention was warranted.
Shortly after the filing of Garcia-Mir's complaint, all Cubans incarcerated in various federal facilities were transferred to the United States Penitentiary in Atlanta, Georgia. Accordingly, on May 12, 1981, the United States District Court for the District of Kansas transferred the Garcia-Mir case to this Court.
On June 5, 1981, Rafael Fernandez-Roque, another member of the "Freedom Flotilla" who was incarcerated at the U.S. Penitentiary in Atlanta, filed a class action petition for habeas corpus relief challenging the refusal of the Attorney General to release on parole those Cubans who continued to be incarcerated solely on the ground that they were excludable for lack of proper entry documents pursuant to 8 U.S.C. § 1182(a)(20). Fernandez-Roque contended that such continued incarceration constituted an abuse of discretion, a violation of constitutional rights and a violation of fundamental human rights under international law. Because the class that Fernandez-Roque sought to represent would have been a subclass of the class that Garcia-Mir sought to represent, the Court consolidated the two actions by its order of July 14, 1981. The individual habeas petition filed by Orlando Chao-Estrada was consolidated with the two class actions on July 24, 1981.
On August 7, 1981, the Court entered an order granting, inter alia, plaintiffs' renewed motion for class certification and conditionally certified a class of all Cuban nationals incarcerated at the Atlanta Federal Penitentiary who had arrived in this country as part of the "Freedom Flotilla" of 1980. Fernandez-Roque v. Smith, 91 F.R.D. 117, 123, as modified, 91 F.R.D. 239, 240 n. 1 (1981). The Court also certified twelve subclasses and issued a series of show cause orders to the government. Id. at 124-26.
The twelve subclasses were defined in terms of the government's excludability determinations and were designed to separate detainees into categories according to release priorities. Subclasses one through four were comprised of Cubans who were charged or found excludable solely on the basis of lack of proper entry documents. This Court had already determined in an earlier case that incarceration for this reason alone was an abuse of the Attorney General's discretion. Soroa-Gonzales v. Civiletti, 515 F.Supp. 1049 (N.D.Ga.1981). The higher-numbered subclasses consisted of Cubans who had been found excludable for increasingly serious crimes in Cuba, or those who had been accused or convicted of criminal activity in the United States. The subclasses were thus intended to facilitate the earliest release of those Cubans as to whom the government was the least likely to object.
Shortly after the August 7, 1981, order was entered the government filed a motion for relief from the order, asking that the Court defer its show cause hearings until class members had exhausted their administrative remedies under a new, accelerated status review plan. Attached to the government's motion was a copy of the Status Review Plan and Procedures approved by the Attorney General on July 24, 1981, under which the government proposed to review each detainee to determine whether continued detention was necessary.
The Court proceeded on August 17 and 19, 1981, to conduct the show cause hearings ordered with respect to subclasses one through four. Because the government failed to show cause why members of these subclasses should not be released, the Court ordered that they be released as soon as sponsors could be located, and in no case later than September 15, 1981. Fernandez-Roque, supra, 91 F.R.D. 239, 243, (Order of Aug. 20, 1981). The Court also ordered the release of 155 detainees as to whom the government announced in open court on August 17, 1981, that it had no further objections to release. Id. at 241.
The government then moved to stay the August 20 order, and on August 21, 1981, the Court modified its order to permit the government to perform its own review under the Attorney General's Status Review Plan of those ordered released. Since that time, releases have proceeded pursuant to the Attorney General's plan, and this Court has entered no further orders of release.
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 who remained incarcerated. On November 12, 1981, at plaintiffs' request, the Court deferred ruling on this motion. Subsequently, on January 21, 1982, plaintiffs filed suggestions for further releasability proceedings, proposing that they be allowed to inspect Bureau of Prison ("BOP") and Immigration and Naturalization Service ("INS") files for each class member held under a final administrative order of detention. Plaintiffs stated that once the inspection was completed, class-wide and subclass-wide challenges would be made to the Cubans' continued detention. Following the Court's granting of plaintiffs' motion to compel production of BOP and INS files on the detainees, plaintiffs commenced the necessary file review.
Thereafter, on July 27, 1982, plaintiffs renewed their motion for habeas corpus relief for those detainees determined releasable but still incarcerated awaiting sponsors. The Court ordered that a show cause hearing be held on September 3, 1982, and at that hearing plaintiffs presented evidence of the especially deleterious psychological impact upon potential releasees of continued detention following approval for release. Plaintiffs also presented evidence of available sponsorship alternatives that could significantly reduce the release waiting time. Subsequently, in its order of November 23, 1982, the Court found that the Attorney General had abused his discretion by placing unreasonable restrictions on sponsorship placements and ordered that certain measures be taken to correct the abuses. Fernandez-Roque v. Smith, 557 F.Supp. 690 (N.D.Ga.1982). That order is presently on appeal by the government to the Court of Appeals for the Eleventh Circuit (Docket No. 83-8065).
Meanwhile, having completed their file review, plaintiffs on November 15, 1982, filed their brief in support of their habeas corpus petition on behalf of all class members determined nonreleasable. The government was granted an extension of time to respond and filed its memorandum in opposition to the petition on January 26, 1983. Plaintiffs filed a supplemental brief in support of their petition on March 1, 1983, and on March 22, 1983, two amici curiae, the American Civil Liberties Union and the Lawyers Committee for International Human Rights, were permitted to file a brief in support of plaintiffs' international law claims. The government filed a final reply memorandum on April 25, 1983. Because of the complexity and importance of the issues involved, the Court also heard oral arguments by both parties on May 2, 1983. The parties have now filed post-oral argument memoranda, and the habeas corpus petition is ripe for decision.
In Soroa-Gonzales v. Civiletti, 515 F.Supp. 1049, 1054-56 (N.D.Ga.1981), this Court held that it had jurisdiction to review the...
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Garcia-Mir v. Smith
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