Haitian Centers Council, Inc. v. McNary
| Citation | 969 F.2d 1350 |
| Decision Date | 29 July 1992 |
| Docket Number | D,No. 2023,2023 |
| Parties | HAITIAN CENTERS COUNCIL, INC.; National Coalition for Haitian Refugees, Inc.; Immigration Law Clinic of the Jerome N. Frank Legal Services Organization of New Haven, Connecticut; Dr. Frantz Guerrier; Pascal Henry; Lauriton Guneau; Medilieu Sorel St. Fleur; Dieu Renel; Milot Baptiste; Jean Doe; Roges Noel; on behalf of themselves and all others similarly situated; A. Iris Vilnor; Mireille Berger; Yvrose Pierre; and Mathieu Noel, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Gene McNARY, Commissioner, Immigration and Naturalization Service; William P. Barr, Attorney General; Immigration and Naturalization Service; James Baker, III, Secretary of State; Rear Admiral Robert Kramek; Admiral Kime; Commandants, United States Coast Guard; and Commander, U.S. Naval Base, Guantanamo Bay, Defendants-Appellees. ocket 92-6144. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Harold Hongju Koh, New Haven, Conn. , for plaintiffs-appellants.
Kenneth W. Starr, Sol. Gen., of the U.S., Washington, D.C. (Stuart M. Gerson, Asst. Atty. Gen., Washington, D.C., Andrew J. Maloney, U.S. Atty. E.D.N.Y., Scott A. Dunn, Asst. U.S. Atty., Brooklyn, N.Y., Michael Jay Singer, Robert V. Zener, Peter R. Maier, Malcolm L. Stewart, Attorneys, Appellate Staff, Civ. Div., Dept. of Justice, Deborah E. Anker, Harvard Immigration Clinic, Cambridge, Mass. (Carolyn Patty Blum, University of California at Berkeley Law School (Boalt Hall), Berkeley, Cal., Joshua R. Floum, Nicholas W. van Aelstyn, Timothy R. Cahn, Roger W. Doughty, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., John Willshire-Carrera, Cambridge and Somerville Legal Services, Cambridge, Mass., of counsel), for amici curiae American Immigration Lawyers Ass'n and Nat. Immigration Project.
Washington, D.C., of counsel), for defendants-appellees.
Kenneth Roth, New York City, for amicus curiae Americas Watch.
Paul L. Hoffman, Los Angeles, Cal. (Bartram S. Brown, Chicago-Kent College of Law, Chicago, Ill., of counsel), for amici curiae Amnesty Internl. and Amnesty Internl.--USA.
Nicholas deB. Katzenbach, Morristown, N.J. (Riker, Danzig, Scherer, Hyland & Perretti, of counsel), for amici curiae Haitian Service Organizations, Immigration Lawyers, and Members of Congress.
Arthur C. Helton, New York City (O. Thomas Johnson, Jr., Andrew I. Schoenholtz, Covington & Burling, Washington D.C., Carlos M. Vazquez, Georgetown University Law Center, Washington, D.C., of counsel), for amicus curiae The Lawyers Committee for Human Rights.
Julian Fleet, Office of the United Nations High Comm'r for Refugees, Washington, D.C. (Guy S. Goodwin-Gill, of counsel), for amicus curiae Office of United Nations High Comm'r for Refugees.
Mark Gibney, Dept. of Political Science, Purdue University, West Lafayette, Ind., for amicus curiae U.S. Committee for Refugees.
Before: NEWMAN, PRATT, and WALKER, Circuit Judges.
On May 23, 1992, President George Bush issued an executive order which allowed the Coast Guard to intercept boatloads of Haitian refugees at sea and to return them to their persecutors in Haiti. The narrow issue we decide on this appeal is whether the government's actions, taken to implement this order, comport with § 243(h)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h)(1). We hold that they do not.
The factual and procedural background to this lawsuit, including the volatile political climate in Haiti, is well-chronicled in our prior decision, Haitian Centers Council, Inc. v. McNary, 969 F.2d 1326, 1329-1334 (2d Cir.1992) (HCCI ), familiarity with which is assumed. This particular appeal, however, concerns events that primarily took place after the record in that case had been developed.
On May 23, 1992, President Bush signed an executive order which has come to be known as the "Kennebunkport Order". In part, it reads as follows:
Section 1. The Secretary of State shall undertake to enter into, on behalf of the United States, cooperative arrangements with appropriate foreign governments for the purpose of preventing illegal migration to the United States by sea.
Sec. 2. (a) The Secretary of the Department in which the Coast Guard is operating, in consultation, where appropriate, with the Secretary of Defense, the Attorney General, and the Secretary of State, shall issue appropriate instructions to the Coast Guard in order to enforce the suspension of the entry of undocumented aliens by sea and the interdiction of any defined vessel carrying such aliens.
* * * * * *
(c) Those instructions to the Coast Guard shall include appropriate directives providing for the Coast Guard:
(1) To stop and board defined vessels, when there is reason to believe that such vessels are engaged in the irregular transportation of persons or violations of United States law or the law of a country (2) To make inquiries of those on board, examine documents and take such actions as are necessary to carry out this order.
with which the United States has an arrangement authorizing such action.
(3) To return the vessel and its passengers to the country from which it came, or to another country, when there is a reason to believe that an offense is being committed against the United States immigration laws, or appropriate laws of a foreign country with which we have an arrangement to assist; provided, however, that the Attorney General, in his unreviewable discretion, may decide that a person who is a refugee will not be returned without his consent.
(d) These actions, pursuant to this section, are authorized to be undertaken only beyond the territorial sea of the United States.
Sec. 3. This order is intended only to improve the internal management of the Executive Branch. Neither this order nor any agency guidelines, procedures, instructions, directives, rules or regulations implementing this order shall create, or shall be construed to create, any right or benefit, substantive or procedural (including without limitation any right or benefit under the Administrative Procedure Act), legally enforceable by any party against the United States, its agencies or instrumentalities, officers, employees, or any other person. Nor shall this order be construed to require any procedures to determine whether a person is a refugee.
* * * * * *
/s/George Bush
THE WHITE HOUSE
May 23, 1992.
Exec. Order 12,807, 57 Fed.Reg. 23,133, 23,133-34 (1992) (emphasis added). Although the Kennebunkport Order did not specifically mention Haiti, the next day, when the order was released to the national news media, it was accompanied by a statement from the White House Press Secretary, which noted that the President had "issued an executive order which will permit the U.S. Coast Guard to begin returning Haitians picked up at sea directly to Haiti."
The Coast Guard followed orders, and immediately began to intercept numerous boatloads of Haitians in international waters, and to forcibly return them to Haiti without determining whether they would be thereupon persecuted.
On May 28, 1992, plaintiffs sought a temporary restraining order before Judge Johnson, challenging the actions under the new policy as ultra vires, as well as violative of (1) § 243(h)(1) of the INA, (2) Article 33 of the 1951 Convention relating to the Status of Refugees, (3) the 1981 U.S.-Haiti Executive Agreement, (4) the Administrative Procedure Act, and (5) the equal protection component of the fifth amendment's due process clause. The district court held a hearing, at which the plaintiffs presented not only evidence demonstrating the heightened political repression currently occurring in Haiti, but also evidence that specific plaintiffs who had been returned have since been abused, were tortured, and were hiding in fear of their lives.
Judge Johnson construed the plaintiffs' motion as one for a preliminary injunction. Although he called the United States' actions "unconscionable", "particularly hypocritical", and "a cruel hoax", he nonetheless denied the injunction. Relying on his prior decision that the right to counsel under 8 U.S.C. § 1362 and 8 C.F.R. § 208.9 is limited to aliens found in the United States, Judge Johnson concluded that "Section 243(h) is similarly unavailable as a source of relief for Haitian aliens in international waters." He also concluded that although "[o]n its face, Article 33 imposes a mandatory duty upon contracting states such as the United States not to return refugees to countries in which they face political persecution", our prior decision in Bertrand v. Sava, 684 F.2d 204, 218 (2d Cir.1982) held that the Convention's provisions are not self-executing; thus, Judge Johnson felt he could not grant plaintiffs the requested relief. He did not address the other issues raised by the plaintiffs.
We have jurisdiction over this expedited appeal under 28 U.S.C. § 1292(a)(1).
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