Garcia-Mir v. Meese

• Decision Date: 21 January 1986
• Docket Number: FERNANDEZ-ROQUE,GARCIA-MIR,86-8011,Nos. 86-8010,s. 86-8010
• Citation: 781 F.2d 1450
• Parties: Moises, et al., Plaintiffs-Appellees, Cross-Appellants, v. Edwin MEESE, III, et al., Defendants-Appellants, Cross-Appellees. Rafael, et al., Plaintiffs-Appellees, Cross-Appellants, v. Edwin MEESE, III, et al., Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1450

781 F.2d 1450

Moises GARCIA-MIR, et al., Plaintiffs-Appellees, Cross-Appellants, v. Edwin MEESE, III, et al., Defendants-Appellants, Cross-Appellees.

Rafael FERNANDEZ-ROQUE, et al., Plaintiffs-Appellees, Cross-Appellants, v. Edwin MEESE, III, et al., Defendants-Appellants, Cross-Appellees.

Nos. 86-8010, 86-8011.

United States Court of Appeals Eleventh Circuit.

Jan. 21, 1986.

Nina R. Hickson, Asst. U.S. Atty., Sharon Douglas Stokes, Atlanta, Ga., Lauri Steven Filppu, Deputy Dir., Office of Immigration Litigation, U.S. Dept. of Justice, Washington, D.C., for defendants-appellants, cross-appellees.

William Thompson, Atlanta Legal Aid, Dale Schwartz, Myron Kramer, Deborah Ebel, David Webster, Atlanta, Ga., for plaintiffs-appellees, cross-appellants.

Appeals from the United States District Court for the Northern District of Georgia.

Before FAY, JOHNSON and CLARK, Circuit Judges.

MEMORANDUM AND ORDER

JOHNSON, Circuit Judge:

These cases come before us on emergency motion by the Attorney General of the United States for a stay of an Order of the United States District Court for the Northern District of Georgia, issued on November 25, 1985, Fernandez-Roque v. Smith, 622 F.Supp. 887 (N.D.Ga.1985). The Attorney General also presents a non-emergency motion to summarily reverse the trial court's order. Because the issues raised in these two class action cases are identical, they will be considered together on this appeal. For the reasons explained herein, we DENY the Attorney General's motion for a stay of the district court's order to submit a plan for conducting hearings, and we GRANT the motion of the Attorney General and STAY the order of the trial court to the extent that it requires implementation of such plan pending resolution of the underlying merits of this case. The government's motion for a summary reversal is DENIED and it is ordered that this case be considered upon the merits with briefs and oral argument on an expedited basis.

I.

This case was originally brought by a certified class of Mariel Cuban refugees ["the respondents"], who are neither mentally incompetent nor guilty of serious crimes committed in Cuba. They are currently being detained in the Atlanta Penitentiary. The respondents sought and obtained a court order directing the Attorney General to implement a plan providing for individualized hearings to determine if each alien is suitable for parole or is properly held pending efforts to return him or her to Cuba.

This case comes before us for the fourth time in four years. ¹ In Fernandez-Roque v. Smith, 734 F.2d 576 (11th Cir.1984) ["Fernandez II "], this Court reversed the trial court's finding that these aliens had a constitutionally-based liberty interest which could be denied only after full hearing. We withheld judgment on and remanded two other questions: whether there might be some nonconstitutionally-based but nonetheless actionable liberty interest; and whether the detention of these respondents was violative of the principles of public international law. Id. at 582 n. 10.

Upon remand the trial court considered these questions and issued an order dated November 25, 1985, in which it found that the respondents had presented an actionable claim of denial of a protected liberty interest in violation of the guarantee of due process of law. Specifically, the trial court found that several actions taken and documents issued by the Executive Branch under the administration of President Jimmy Carter had the effect of extending an "invitation" to the class members to come to this country and concomitantly effected limitations on administrative discretion sufficient to create a protectable liberty interest in securing a parole hearing.

The trial court found that this liberty interest guaranteed each Cuban alien housed in the Atlanta facility a full hearing at which the government was required to provide evidence that the refugee "is likely to abscond, to pose a risk to the national security, or to pose a serious and significant threat to persons or property within the United States." Fernandez-Roque v. Smith, 622 F.Supp. at 901. This hearing was to be conducted consistent with procedural requirements that the government finds onerous--namely, provision of counsel, the right to call and compel attendance of witnesses, Fifth Amendment protection against adverse inferences drawn from refusal to offer self-incriminatory testimony, and a standard of proof requiring clear and convincing evidence to justify detention without parole. The trial court rejected the respondents' claims premised on public international law.

The Attorney General was directed to furnish within thirty days for the trial court's approval a plan for providing these detention hearings. Such hearings were ordered to begin no later than sixty days after the issuance of the November 25 Order. On December 24, 1985, upon the government's motion for a stay pending appeal, the district court extended its deadline for submitting a plan to January 24, 1986, and ordered that the detention hearings begin no later than February 24, 1986.

The government also moved the trial court to decertify the class of aliens in light of our opinion in Garcia-Mir I, where we held that "[d]ecisions regarding parole, asylum, and withholding of deportation must be made only after considering the particular circumstances of each individual's case ... therefore ... further class-wide treatment on these issues is inappropriate." 766 F.2d at 1487-88 n. 11. The trial court did not address this motion in its November 25 Order.

II.

These cases present three questions: A) whether we should issue a stay, under Fed.R.App.P. 8(a), of the trial court's order to devise a plan to effectuate detention and parole hearings for these respondents consistent with the requirements of due process; B) whether we should also stay the implementation of that plan pending resolution of the underlying merits of the case; and C) whether the trial court's order should be summarily reversed on the merits.

A. The Plan:

The Attorney General filed with this Court a motion for a stay of the district court's order of November 25, 1985. This motion followed the trial court's denial of a similar motion, on December 24, 1985, under Fed.R.Civ.P. 62. The trial court instead granted the government a thirty day extension in which to prepare and file its plan. Because the precise remedy sought here was denied below, this motion is properly filed under Fed.R.App.P. 8(a).

Our standard of review in cases of this sort is well-settled. We must always be diffident in interposing the power of an appellate court into the province of the trial court and its orders save upon full briefing and mature reflection by this Court. The grant of an emergency motion to stay the trial court's mandate is thus an exceptional response granted only upon a showing of four factors: 1) that the movant is likely to prevail on the merits on appeal; 2) that absent a stay the movant will suffer irreparable damage; 3) that the adverse party will suffer no substantial harm from the issuance of the stay; and 4) that the public interest will be served by issuing the stay. Jean v. Nelson, 683 F.2d 1311, 1312 (11th Cir.1982) (per curiam ), see also, 11th Cir.R. 17(b)(1).

Ordinarily the first factor is the most important. A finding that the movant demonstrates a probable likelihood of success on the merits on appeal requires that we determine that the trial court below was clearly erroneous. In re Grand Jury Proceedings, 689 F.2d 1351, 1353 (11th Cir.1982) (per curiam ). But the movant may also have his motion granted upon a lesser showing of a "substantial case on the merits" when "the balance of the equities [identified in factors 2, 3, and 4] weighs heavily in favor of granting the stay." Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981) (per curiam ), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983).

1. The Likelihood of Success on Appeal.

The respondents here are "excludable aliens." In the eyes of the law they have not yet entered the country but are merely "on the threshold of initial entry." Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953). "As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law." Nishimura Ekiu v. United States, 142 U.S. 651, 660, 12 S.Ct. 336, 338, 35 L.Ed. 1146 (1892). Though this Court held, Jean v. Nelson, 727 F.2d 957, 968 (11th Cir.1984) (en banc ), that excludable aliens enjoy no constitutional protection with respect to the process of application for admission to this country, we were criticized by the Supreme Court for unnecessarily reaching that constitutional question. Jean v. Nelson, --- U.S. ----, ----, 105 S.Ct. 2992, 2998, 86 L.Ed.2d 664 (1985). We held subsequently that there was no constitutionally based liberty interest for these respondents. Fernandez II, 734 F.2d at 581-82.

The precise issue here, however, is whether there exists some nonconstitutionally based liberty interest entitled to the protection of due process. That is a question we have not decided, and do not decide today. We need only determine whether the government has demonstrated a probable likelihood that such rights are not deserving of protection.

A nonconstitutionally based liberty interest may be created by acts or rules "defining the obligations of the authority charged with exercising" that power. Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S.Ct. 2460, 2465, 69 L.Ed.2d 158 (1981). More specifically, a liberty interest will be found where the government signals the existence of such right "by placing substantive limitations on official discretion" in the form of " 'particularized standards or criteria [to guide] ... decisionmakers.' " Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 ...