Garcia-Mir v. Smith, GARCIA-MIR

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation766 F.2d 1478
Docket Number85-8043,GARCIA-MIR,Nos. 84-8993,s. 84-8993
PartiesMoises, et al., Plaintiffs-Appellees, v. William French SMITH, et al., Defendants-Appellants.
Decision Date11 July 1985

Sharon D. Stokes, Asst. U.S. Atty., Atlanta, Ga., Lauri Steven Filppu, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendants-appellants.

Deborah S. Ebel, David Webster, Myron M. Kramer, Atlanta, Ga., for plaintiffs-appellees.

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

Before TJOFLAT and VANCE, Circuit Judges, and ATKINS *, District Judge.

PER CURIAM:

In the spring of 1980 approximately 125,000 Cubans participated in a mass exodus from their country to the United States. Although the "Mariel Boatlift" Cubans were properly characterized as excludable aliens with no right of entry when they arrived on our shore, the vast majority of them were eventually paroled into this country and have been given the opportunity to apply for resident status. The government has, however, exercised its discretion under the immigration laws to refuse admission to a small percentage of the Mariels. Virtually all of these aliens have been issued final exclusion orders by immigration authorities, but have not been returned because Cuba has been unwilling to take them back. Of this group, about 1,800 have also been denied parole and remain incarcerated in the Atlanta federal penitentiary. Many, but not all, of the detainees have criminal records or histories of mental problems.

The appeals before us are but one stage in the complicated history of the 1,800 detainees' legal battle to gain release from custody and avoid return to Cuba. At this juncture, we consolidate two separate appeals for the convenience of the parties and the court, and we resolve three issues: (1) the validity of the district court's order requiring the Attorney General to resume procedures for releasing certain of the plaintiffs from custody under his Status Review Plan; (2) the validity of the district court's order requiring the government to reopen two of the Mariels' exclusion hearings based on new evidence that they have produced to support claims for asylum, and (3) the district court's jurisdiction to stay or set aside all other purported class members' exclusion orders on the basis of this new evidence despite their failure to make individual motions to reopen.

I

The history of this litigation is, as noted, complex. It has progressed along two largely independent strands, the first involving the Mariels' challenges to their continued detention, and the second their attempts to avoid being returned to Cuba. Appeal No. 85-8043 relates to the plaintiffs' detention claim. That claim took shape on January 8, 1981, when Moises Garcia-Mir filed a class action alleging that he and his fellow Mariels were being incarcerated in violation of national and international law. The original complaint alleged that the district court had jurisdiction over the claims pursuant to 28 U.S.C. Secs. 1331, 1361 and 8 U.S.C. Sec. 1329. Garcia-Mir was later allowed to amend his complaint to include habeas corpus, 28 U.S.C. Sec. 2241, as an additional basis for federal jurisdiction. The primary charge at that point was that it was an abuse of discretion for the Attorney General to detain the Mariels indefinitely rather than parole them under 8 U.S.C. Sec. 1182(d)(5)(A) when there was no possibility of repatriation. On August 7, 1981, the district court conditionally certified a class consisting of all Cuban nationals who had been part of the Freedom Flotilla, whose parole had been revoked by the INS, and who were or would be incarcerated in the Atlanta federal penitentiary, and began scheduling hearings on the detention claims. Fernandez-Roque v. Smith, 91 F.R.D. 117, 123 (N.D.Ga.1981). The court suspended its review, however, once the Attorney General instituted independent procedures under a special "Status Review Plan" to evaluate the necessity of each class member's continued detention. 1

As of December 14, 1984, 147 of those still incarcerated in the Atlanta prison had been approved for release under the Plan. On that date, however, Cuba agreed to take back 2,746 Mariel Cubans, including those incarcerated in Atlanta, in exchange for the United States' resumption of the immigration policy that it had pursued toward Cuba until the Freedom Flotilla. After reaching this agreement, the Attorney General issued a directive suspending releases under the Plan until he could modify it to take into account the likelihood that an alien now faced with imminent deportation would abscond if released on parole. Shortly thereafter, 146 of the 147 detainees who had been approved requested the district court to order the Attorney General to release them on the ground that he was abusing his discretion in failing to follow his own rules. On January 7, 1985, the district court ordered the government to show cause why the approved individuals should not be released as soon as suitable sponsors were found. After two hearings, the district court rejected the Attorney General's increased likelihood of absconding argument for lack of objective evidence, and ordered the immediate release of the thirty-four detainees who had been approved for release and who had found sponsors prior to the Attorney General's suspension of releases. Fernandez-Roque v. Smith, 600 F.Supp. 1500, 1507 (N.D.Ga.1985). The government's appeal in 85-8043 followed. 2

Appeal No. 84-8993 relates to the second major thrust of the litigation; the plaintiffs' attempts to avoid being returned to Cuba. The plaintiffs initiated it on August 7, 1981, when they amended their complaint to request review under 8 U.S.C. Sec. 1105a(b), and nullification of their exclusion orders on the ground that they were "refugees" under 8 U.S.C. Sec. 1101(a)(42)(A), and therefore entitled to either asylum under 8 U.S.C. Sec. 1158 or else withholding of deportation under 8 U.S.C. Sec. 1253(h). 3 Later however, the district court concluded that the statutory exhaustion requirement of 8 U.S.C. Sec. 1105a(c), combined with the "very narrow authority of the courts" to review exclusion orders generally, dictated that it limit its review to the claims of the 150 class members who had exhausted their administrative remedies by undergoing both an exclusion hearing before an immigration judge (IJ) and an appeal before the Board of Immigration Appeals (BIA). Fernandez-Roque v. Smith, 539 F.Supp. 925 (N.D.Ga.1982). 4

Meanwhile, the plaintiffs had accumulated new evidence which they believed would lend support to their asylum and withholding of deportation claims. In order to bring this evidence into the litigation, and to comply with the statutory exhaustion requirement, the plaintiffs brought two administrative "test cases" which both parties stipulated would be binding "on all asylum/withholding of deportation issues relating to membership in the Freedom Flotilla as a social group, except with respect to statutory and regulatory exceptions to asylum/withholding eligibility." In the first, Matter of Leon-Orosco, one of the class members who had failed to appeal to the BIA the IJ's decision denying his asylum claim in his original exclusion hearing requested reopening before the IJ on the ground that the new evidence established his eligibility for asylum. In the second, Matter of Rodriguez-Colas, a class member who had properly exhausted his asylum claim in his initial exclusion proceeding made a motion to reopen directly before the BIA in order to submit the new evidence as support for a new asylum request.

Both plaintiffs alleged in their motions to reopen that they should be granted asylum under 8 U.S.C. Sec. 1158, or withholding of deportation under 8 U.S.C. Sec. 1253(h) because they were members of a "social group", namely the Freedom Flotilla, who had "a well-founded fear of persecution" should they be repatriated to Cuba. They offered identical evidence to support their motions. First, they produced affidavits from thirteen Mariels who had voluntarily returned to Cuba in 1980 without permission of the Cuban authorities. The affidavits stated that on their return the Mariels had been incarcerated, tortured, indicted, and tried as "Mariel scum" who had illegally entered Cuba, and had then been cast adrift on the ocean without food, water or navigational equipment. Second, the claimants submitted two State Department Country Reports on Human Rights Practices in Cuba which documented the inhumane treatment received by the Cubans as they sought to leave Mariel Harbor. Third, they produced correspondence from the State Department indicating that the Cuban government initially resisted repatriation efforts by claiming that all those who had left via Mariel had made an irrevocable decision to leave Cuba. Fourth, they offered a statement from a United States Refugee Affairs Coordinator dated April 21, 1980, which stated that all Cubans who had sought asylum in the Peruvian Embassy prior to the boatlift had a well-founded fear of persecution if they were to return to Cuba. Finally, they introduced the testimony of Jorge Dominguez, a professor of government at Harvard and an expert on Cuban affairs. He testified that the thirteen affidavits from the Cubans who had returned were credible, that the Freedom Flotilla emigrees had been treated differently from previous emigrees, and that if the Mariels were returned to Cuba they would initially be classified as dangerous and subject to restrictions on their liberty. Despite this evidence, the IJ denied Leon-Orosco's motion to reopen because he found that the Mariel Cubans were not a "social group" for asylum purposes. The BIA affirmed the denial, concluding that even if the Mariel Cubans were a social group they had failed to make out a prima facie case that they had a well-founded fear of persecution. ...

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