Haitian Centers Council, Inc. v. Sale

• Decision Date: 08 June 1993
• Docket Number: No. 92 CV 1258 (SJ).,92 CV 1258 (SJ).
• Citation: 823 F. Supp. 1028
• Parties: HAITIAN CENTERS COUNCIL, INC., National Coalition for Haitian Refugees, Inc., Immigration Law Clinic of The Jerome N. Frank Legal Organization of New Haven, Connecticut; Dr. Frantz Guerrier, Milot Baptiste, Kennedy Agustin, and Yolande Jean, on behalf of themselves and all others similarly situated; Lener Miclis and Claud Kenol, on behalf of themselves and all others similarly situated, Plaintiffs, v. Chris SALE, Acting Commissioner, Immigration and Naturalization Service; Janet Reno, Attorney General; Immigration and Naturalization Service; Warren Christopher, Secretary of State; Rear Admiral Robert Kramek and Admiral Kime, Commandants, United States Coast Guard; and Commander, U.S. Naval Base, Guantanamo Bay, Defendants.
• Court: U.S. District Court — Eastern District of New York

823 F. Supp. 1028

HAITIAN CENTERS COUNCIL, INC., National Coalition for Haitian Refugees, Inc., Immigration Law Clinic of The Jerome N. Frank Legal Organization of New Haven, Connecticut; Dr. Frantz Guerrier, Milot Baptiste, Kennedy Agustin, and Yolande Jean, on behalf of themselves and all others similarly situated; Lener Miclis and Claud Kenol, on behalf of themselves and all others similarly situated, Plaintiffs, v. Chris SALE, Acting Commissioner, Immigration and Naturalization Service; Janet Reno, Attorney General; Immigration and Naturalization Service; Warren Christopher, Secretary of State; Rear Admiral Robert Kramek and Admiral Kime, Commandants, United States Coast Guard; and Commander, U.S. Naval Base, Guantanamo Bay, Defendants.

No. 92 CV 1258 (SJ).

United States District Court, E.D. New York.

June 8, 1993.

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Michael Ratner, Suzanne Shende, Center for Constitutional Rights, New York City, Lucas Guttentag, Judy Rabinovitz, American Civ. Liberties Union, Immigrants' Rights Project, New York City, Robert Rubin, Ignatius Bau, National Refugee Rights Project, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, San Francisco, CA, Joseph F. Tringali, Susan Sawyer, Simpson Thacher & Bartlett, New York City, Harold Hongju Koh, Lowenstein Intern. Human Rights Clinic, New Haven, CT, for plaintiffs.

Stuart Schiffer, Acting Asst. Atty. Gen., Civ. Div., Robert Bombaugh, Director of Immigration Litigation, Lauri Steven Filppu, Office of Immigration Litigation, David J. Kline, Charles Pazar, Ellen Sue Shapiro, Office of Immigration Litigation, Dept. of Justice, Washington, DC, Zachary Carter, U.S. Atty., Brooklyn, NY, Scott Dunn, Sp. Asst., U.S. Atty., Robert Begleiter, Asst. U.S. Atty., for defendants.

MEMORANDUM AND ORDER

JOHNSON, District Judge.

INTRODUCTION

The Parties

The Plaintiffs are the Haitian Centers Council, Inc., National Coalition for Haitian Refugees, Inc., Immigration Law Clinic of the Jerome N. Frank Legal Organization of New Haven Connecticut (hereinafter "Haitian Service Organizations"); Dr. Frantz Guerrier, Milot Baptiste, Kennedy Agustin, and Yolande Jean (hereinafter "Screened In Plaintiffs" or "Haitian detainees"); and Lener Miclis and Claud Kenol (hereinafter "Immediate Relative Plaintiffs"). The Defendants are Chris Sale, Acting Commissioner, Immigration and Naturalization Services; Janet Reno, Attorney General; Immigration and Naturalization Service; Warren Christopher, Secretary of State; Rear Admiral Robert Kramek and Admiral Kime, Commandants, United States Coast Guard; and Commander, U.S. Naval Base, Guantanamo Bay (collectively the "Government").

Prior Proceedings

In March 1992, Plaintiffs commenced this class action seeking declaratory and injunctive relief arising from the Government's actions against Haitian detainees and Haitian Service Organizations following the military coup that overthrew the government of Jean-Bertrand Aristide on September 30, 1991. The Original Complaint alleged inter alia that the Government had violated the Haitian Service Organization's First Amendment right of access to their clients on Guantanamo, the Haitian detainees' statutory and constitutional due process right to counsel, the Administrative Procedure Act ("APA") and various international treaties, bilateral agreements and executive orders. The Court issued a temporary restraining order ("TRO") on March 27, 1992 enjoining the Defendants' conduct.

Five days later the Court held a hearing on Plaintiffs' application for a preliminary injunction. On April 6, 1992, the Court issued a preliminary injunction after finding that the Plaintiffs had made a showing of irreparable harm and a likelihood of success on the merits. The court specifically concluded that: 1) the Government's denial of access to the Haitian Service Organization appeared to be a content based restriction on speech; 2) the statutory right to counsel under 8 U.S.C. § 1362 and 8 C.F.R. § 208.9 did not extend to the Haitian aliens beings detained on Guantanamo; and 3) the Screened In Plaintiffs¹ were entitled to the protection of the Fifth Amendment. In addition, the Court ruled that the Screened Out Plaintiffs² represented by Iris Vilnor were bound by the outcome of Haitian Refugee Center, Inc. v. Baker.³

The Government filed an appeal from this Court's April 15, 1992 order clarifying the relief granted in its April 6, 1992 Memorandum and Order on April 18, 1992. Four days later the Supreme Court granted the Government's application for a stay of this order pending the Second Circuit's disposition of the appeal. On June 10, 1992, the Second Circuit affirmed and modified this Court's April 6th preliminary injunction in Haitian Centers Council, Inc. v. McNary, 969 F.2d 1326 (2d Cir.1992). Without addressing the First Amendment claim of the Haitian Service Organizations, the Court of Appeals agreed that there were serious questions going to the merits of the Screened In Plaintiffs' Fifth Amendment claims.

While awaiting a decision from the Second Circuit on the appeal from the first injunction, the Government substantially altered its policy toward Haitian refugees fleeing the political upheaval in Haiti. On May 24, 1992, the President issued an Executive Order ("Kennebunkport Order") directing the United States Coast Guard to return any Haitian interdicted beyond the territorial waters of the United States directly to Haiti without being afforded the opportunity to undergo INS refugee screening. Plaintiffs quickly moved by Order to Show Cause for a TRO pursuant to Fed.R.Civ.P. 65 restraining the Government from acting pursuant to the May 24th Executive Order.

At a hearing on May 29, 1992, the Plaintiffs argued that the new policy violated Section 243(h) of the INA, Article 33 of the United Nations Convention relating to the Status of Refugees and the 1981 U.S.-Haiti Executive Agreement. On June 6, 1992, the court denied Plaintiffs' application for a preliminary injunction. The Plaintiffs immediately appealed to the Second Circuit Court of Appeals. On July 29, 1992, the Court of Appeals reversed this Court's June 6th order denying a preliminary injunction finding that the language of § 243(h) of the INA imposes a mandatory duty upon the United States not to return aliens to their persecutors, no matter where in the world those actions are taken. Haitian Centers Council, Inc. et al. v. McNary, 969 F.2d 1350 (2d Cir.1992). This Court immediately issued an injunction pursuant to the Second Circuit mandate. On August 1, 1992, the Supreme Court granted the Government's application for a stay pending filing of a petition of a writ of certiorari. The Supreme Court granted the Government's petition seeking certiorari in McNary v. Haitian Centers Council, Inc., ___ U.S. ___, 113 S.Ct. 52, 121 L.Ed.2d 22 (1992), and recently heard oral argument on this question.

Trial on Guantanamo Case

In September 1992, the parties appeared at a pre-trial conference. The Plaintiffs made an oral application for a bifurcated trial pursuant to Rule 42(b). The Court granted the Plaintiffs' motion concluding that bifurcation of the Guantanamo case and the Executive Order case was appropriate in light of the fact that the Supreme Court had granted the Government's petition for certiorari and was likely to dispose of the issue within the next few months. On the eve of trial, the Government made a motion in limine regarding claims not in the Original Complaint. Specifically, the Defendants asked the Court to preclude Plaintiffs from 1) presenting any evidence about camp conditions, 2) presenting evidence on medical issues raised by the detention of HIV+ Haitians at Guantanamo and 3) presenting evidence relating to an attack on the HIV ground for exclusion of aliens. After reviewing the Original Complaint and the Contention Interrogatories submitted, the Court agreed with the Government that many of the Due Process Claims mentioned in the Contention Interrogatories were not contained in the Original Complaint. Rather than granting a continuance, the Court began taking testimony and granted the Plaintiffs leave to amend the Original Complaint under Rule 15(b).

The Court conducted a bench trial on March 8-12, 15-19, and 25, 1993. Plaintiffs filed an Amended Complaint stating the following causes of action: 1) denial of the Haitian Service Organizations' First Amendment rights to provide advocacy and counselling to their clients detained on Guantanamo; 2) denial of the Haitian detainees' First and Fifth Amendment constitutional rights to obtain and communicate with counsel; 3) denial of the Haitian detainees' constitutional due process right to adequate medical care, to be free of indefinite detention and arbitrary punishment; 4) failure of the Government to follow rulemaking procedures;⁴ 5) arbitrary and capricious agency action not in accordance with the law; 6) judicial enforceability of the duty of non-refoulement; and 7) equal protection. At the close of trial, the parties submitted Proposed Findings of Fact and Conclusions of Law which have been adopted and incorporated in part in the Court's findings below.

STATEMENT OF FACTS

In 1981, the United States commenced the Alien Migration Interdiction Operation ("AMIO"), formerly known as the Haitian Migrant Interdiction Operation. A cooperative agreement between the United States and Haiti dated September 23, 1981 ("Haiti-U.S. Agreement") allows the United States Coast Guard ("Coast Guard") to board Haitian-flagged vessels on the high seas in order to inquire into the condition and destination of the vessel and the status of those on board. While the Agreement explicitly provides that the "United States does not intend to return to Haiti any Haitian migrants whom the United States authorities determine to qualify for refugee status," a vessel and its passengers were subject to return or repatriation to...