Gaitan-Campanioni v. Thornburgh

• Decision Date: 07 November 1991
• Docket Number: No. 9:90 CV 157.,9:90 CV 157.
• Citation: 777 F. Supp. 1355
• Court: U.S. District Court — Eastern District of Texas
• Parties: Ebel GAITAN-CAMPANIONI, et al., Applicants, v. Richard THORNBURGH, Attorney General, Respondent.

777 F. Supp. 1355

Ebel GAITAN-CAMPANIONI, et al., Applicants, v. Richard THORNBURGH, Attorney General, Respondent.

No. 9:90 CV 157.

United States District Court, E.D. Texas, Lufkin Division.

November 7, 1991.

Stefan H. Krieger, SMU, School of Law, Dallas, Tex., for applicants.

Dane H. Smith, Asst. U.S. Atty., Tyler, Tex., for respondent.

MEMORANDUM OPINION

JUSTICE, District Judge.

Applicants, Ebel Gaitan-Campanioni, Carlos Alberto Prado Torriente, and Victor Kessel Rodriguez (collectively, "applicants") are Mariel Cubans who arrived on the Freedom Flotilla of Cubans to this country in early 1980. Currently, they are being detained in federal prison, by order of the Attorney General, pending their return to Cuba. Cuba, however, refuses to take them back. Applicants have applied for writs of habeas corpus, challenging their detention by the Attorney General on the grounds, among others, that the Attorney General lacks statutory authority to detain indefinitely an excludable alien; that the nature of their detention constitutes punishment imposed in violation of Fifth and Sixth Amendment guarantees of trial by jury prior to the imposition of criminal punishment; that their detention violates customary international law; that they have a liberty interest in freedom from detention; and that the Attorney General's procedures for awarding parole do not comport with due process. This court has consolidated the claims of the applicants, and appointed counsel. Applicants have moved, in accordance with Rule 6 of the Rules Governing Section 2254 Cases in the United States District Courts hereinafter Federal Habeas Rules, for an order allowing discovery. For the reasons stated below, the motion will be granted.

I. Authority To Grant Discovery

Rule 6(a) of the Federal Habeas Rules provides:

a party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so.....¹

Although discovery is permitted only by the leave of the court, the court should not hesitate to allow discovery, where it will help illuminate the issues underlying the applicant's claim. Rule 6, Advisory Committee Note ("discovery may, in appropriate cases, aid in developing facts necessary to decide whether to order an evidentiary hearing or to grant the writ following an evidentiary hearing"). See also Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969); Developments in the Law — Federal Habeas Corpus, 83 Harv. L.Rev. 1038, 1179-87 (1970).

II. Discovery Sought

In accordance with Rule 6(b), applicants have attached interrogatories and a request for document production that they intend to submit to Respondents. Interrogatories 1-8 seek information regarding: 1) the efforts made by the United States to deport each applicant to Cuba or to a country other than Cuba (Interrogatories 2-3); 2) the reasons for the detention of each applicant (Interrogatory 4); 3) the reasons for the refusal to parole each applicant, including information regarding the applicant's likelihood to commit violence and/or break parole (Interrogatory 5); 4) the applicant's past disciplinary infractions, and psychiatric and psychological reports pertaining to mental health (Interrogatory 6)); 5) the reasons why each applicant was detained in the particular institution in which they were confined (Interrogatory 7); and 6) whether or not the detention is temporary (Interrogatory 8).²

In addition, applicants have sought documents regarding 1) the parole determinations and revocations for each applicant (Document Request 1(a)); 2) attempts to deport applicants to Cuba or to other countries (Document Request 1(b)); 3) the decision to detain each applicant (Document Request 1(c)); 4) the manuals, handbooks or guides used in making parole determination and revocation decisions for each applicant (Document Request 2); and 5) documents relating to bilateral talks and discussions with Cuba regarding the Migration Agreement with Cuba (Document Requests 3-4).

III. Good Cause To Award Discovery

All of the above information appears to be relevant to applicants' claims, and it is found that there is good cause to order discovery of this material. The essence of applicants' complaint is that both the Immigration and Nationalization Act (INA) 8 U.S.C. § 1101 et seq., and the constitutional prohibition on imposing punishment without indictment and trial, prevent the Attorney General from detaining an excludable alien for longer than a reasonable period of time in which to effect the exclusion of the alien. See Amanullah v. Nelson, 811 F.2d 1, 9 (1st Cir.1987); Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1387 (10th Cir.1981). Applicants, therefore, will seek to demonstrate that their continued detention, over ten years since their arrival, is unreasonable under the circumstances of this case. Apparently, they will endeavor to show that the government has not made reasonable efforts to deport them, see Amanullah, 811 F.2d at 9, or alternatively, that the government has no reasonable prospects of deporting them, and, therefore, that the detention is indefinite, rather than temporary. See Rodriguez-Fernandez, 654 F.2d at 1386. Information gathered from Interrogatories 2, 3 and 8, and Document Requests 1(b), 3, and 4 would be relevant to such a showing.

Applicants also argue that the conditions and length of their detention constitute punishment, which cannot be imposed without a trial and a grand jury indictment. See Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979) ("under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law"); Rodriguez-Fernandez, 654 F.2d 1382 (10th Cir.1981). In United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987), the Court held that detention without trial was generally permissible only if it was imposed for some regulatory reason other than punishment. See also Schall v. Martin, 467 U.S. 253, 264-74, 104 S.Ct. 2403, 2409-415, 81 L.Ed.2d 207 (1984); Bell, 441 U.S. at 535, 99 S.Ct. at 1872. In determining whether detention was permissible regulation or impermissible punishment, the Salerno Court held that the following factors were relevant: the purpose of the detention; whether the conditions of detention are reasonable in relation to the nonpunitive purpose; the nature of the procedures under which detention may be imposed; and whether the detainees are housed in facilities separate from persons imprisoned after conviction of a crime. Salerno, 481 U.S. at 747-48, 107 S.Ct. at 2101-02. In this case, applicants are seeking to show that their detention is punishment. Clearly, information from Interrogatories 2-7, and Document Requests 1-4 would bear on the factors mentioned in Salerno, and would therefore be relevant to demonstrating punishment.

Respondent opposes discovery primarily on two grounds. First, respondent argues that there is absolutely no merit to the applicants' argument that their detention is punishment imposed without indictment or trial. However, a survey of the applicable case law clearly refutes the respondent's position. In Rodriguez-Fernandez, 654 F.2d 1382 (10th Cir.1981), the Tenth Circuit held that indefinite detention of excludable Mariel Cubans constituted punishment that could not be imposed without due process protections. Other courts have rejected constitutional challenges to the detention of excludable aliens. Alvarez-Mendez v. Stock, 941 F.2d 956, 962 (9th Cir.1991); Jean v. Nelson, 727 F.2d 957, 967-75 (11th Cir.1984) (en banc), aff'd on other grounds, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985); Fernandez-Roque v. Smith, 734 F.2d 576 (11th Cir.1984); Palma v. Verdeyen, 676 F.2d 100, 104 (4th Cir.1982). There is, therefore, a split in the judicial circuits regarding whether or not the detention of excludable aliens constitutes punishment. Indeed, in Jean, the Court construed the regulations promulgated under the INA, so as to avoid the question of whether the refusal to parole the detainees violated their rights to due process.³ 472 U.S. 846, 854, 105 S.Ct. 2992, 2996.

The Supreme Court's decision in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215, 73 S.Ct. 625, 630, 97 L.Ed. 956 (1953) is also not dispositive of the issue presented in this case. In Mezei, the Court upheld the detention of an excludable alien at Ellis Island for twenty-one months pending efforts to find another country that would agree to take him. Several factors in Mezei distinguish that case from this one, however. First, the decision to exclude the alien was specifically based on a finding by the Attorney General that the alien's presence in the United States would be a threat to national security. Second, the alien was held in a detention facility on Ellis Island, rather than a federal prison. Third, there was evidence in the record of ongoing efforts to deport the alien to other countries. The court in Rodriguez-Fernandez found that because of these differences, Mezei was not dispositive of the issue of whether indefinite detention of the Mariel Cubans in a federal prison was constitutional. 654 F.2d at 1382.

In sum, one circuit has held that indefinite detention of excludable aliens violates their fifth amendment rights to due process prior to the imposition of punishment. The Supreme Court has not passed on the issue. Furthermore, the Supreme Court indicated recently in Salerno that the legality of detention depended on a highly factbound determination of the purposes and nature of the detention. The applicants' contention that their detention is unconstitutional, therefore, has sufficient support to warrant discovery to bolster their claims.

The applicants' contention that the attorney general lacks statutory...