Haitian Centers Council, Inc. v. McNary, s. 1789

Citation969 F.2d 1326
Decision Date10 June 1992
Docket NumberNos. 1789,1790,s. 1789
PartiesHAITIAN CENTERS COUNCIL, INC.; National Coalition for Haitian Refugees; 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, on Behalf of herself and all others similarly situated; Mireille Berger, Yvrose Pierre, Mathieu Noel, on Behalf of themselves and all others similarly situated, Plaintiffs-Appellees, 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; Commander, U.S. Naval Base, Guantanamo Bay, Defendants-Appellants. Dockets 92-6090, 92-6104.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Stuart M. Gerson, Asst. Atty. Gen., Washington, D.C. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., New York City, Michael Jay Singer, John F. Daly, Malcolm L. Stewart, Attys., Appellate Staff Civil Div., Harold Hongju Koh, New Haven, Conn. (Drew S. Days, III, Paul W. Kahn, Anthony T. Kronman, Burke Marshall, Peter H. Schuck, Lowenstein Intern. Human Rights Clinic, Allard K. Lowenstein Intern. Human Rights Law Project, New Haven, Conn., Michael Ratner, Jules Lobel, Suzanne Shende, Center for Constitutional Rights, Joseph Tringali, Simpson Thacher & Bartlett, New York City, Robert Rubin, Ignatius Bau, San Francisco Lawyers' Committee for Urban Affairs, San Francisco, Cal., Lucas Guttentag, Immigration Law Project, American Civil Liberties Union, New York City, of counsel), for plaintiffs-appellees.

Dept. of Justice, Washington, D.C., of counsel), for defendants-appellants.

Lory D. Rosenberg, American Immigration Law Foundation, Washington, D.C., Harvey Kaplan, Maureen O'Sullivan, Kaplan, O'Sullivan & Friedman, Boston, Mass., for amici curiae American Immigration Lawyers Ass'n and American Immigration Law Foundation.

Kenneth Roth, Ellen L. Lutz, Americas Watch, Jeffrey L. Braun, Michael A. Pearce, Rosenman & Colin, New York City, for amicus curiae Americas Watch.

Gregory Craig, Steven Schneebaum, Reed Brody, Janelle M. Diller, Intern. Human Rights Law Group, Washington, D.C., Gerald L. Neuman, Philadelphia, Pa., for amicus curiae Intern. Human Rights Law Group.

William G. O'Neill, Lawyers Committee for Human Rights, New York City, for amicus curiae Lawyers Committee for Human Rights.

Harlon L. Dalton, Nat. Com'n on AIDS, Washington, D.C., for amicus curiae Members of the Nat. Com'n on AIDS.

David D. Cole, Georgetown University Law Center, Washington, D.C., Dennis Courtland Hayes, Everald Thompson, NAACP Special Contribution Fund, Baltimore, Md., for amicus curiae Nat. Ass'n for Advancement of Colored People.

Before CARDAMONE, PIERCE, and MAHONEY, Circuit Judges.

PIERCE, Circuit Judge:

The Immigration and Naturalization Service ("INS") and various United States governmental officials appeal from an order entered in the United States District Court for the Eastern District of New York, Sterling Johnson, Jr., Judge, granting a preliminary injunction, and from a subsequent clarifying order. For the reasons set forth below, we affirm, as modified.

BACKGROUND
General Background

In September 1981, then-President Ronald Reagan determined that "[t]he ongoing migration of persons to the United States in violation of our laws is a serious national problem detrimental to the interests of the United States." Proclamation No. 4,865, 46 Fed.Reg. 48,107 (1981), reprinted in 8 U.S.C.A. § 1182 note (West Supp.1992). President Reagan, by Executive Order No. 12,324 ("Executive Order"), authorized the Secretary of State "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." Exec. Order 12,324, 46 Fed.Reg. 48,109 (1981), reprinted in 8 U.S.C.A. § 1182 note (West Supp.1992).

On September 23, 1981, the United States entered into an agreement with Haiti for "the establishment of a cooperative program of interdiction and selective return to Haiti of certain Haitian migrants and vessels involved in illegal transport of persons coming from Haiti." Agreement Between the United States of America and Haiti, September 23, 1981, U.S.-Haiti, T.I.A.S. No. 10,241. Under this agreement, United States authorities are permitted to board a "Haitian flag vessel" to make inquiries to determine the registry, condition and destination of the vessel and the status of those on board the vessel. If the United States determines that a violation of its laws or the laws of Haiti has been committed, it may detain the vessel and those found on board. The United States is permitted to return the detained vessel and In September 1981, the United States Coast Guard began interdicting vessels carrying Haitian aliens. Generally, under the interdiction program, INS officers interview interdicted Haitians to determine if there are any indications that a person might qualify as a "refugee." The purpose of this process, known as "pre-screening," is to determine whether the interdicted alien has a "credible fear of persecution." This process was designed to take place when the interdicted aliens are taken into custody on the Coast Guard cutters on the high seas. Those individuals found to have a credible fear of persecution if returned to Haiti are "screened in," and are eligible for transfer to the United States to pursue an asylum claim. Those individuals found not to have a credible fear are "screened out," and are repatriated to Haiti.

                persons to a Haitian port, or if circumstances permit, release such vessel and migrants on the high seas to representatives of the Haitian government.   The agreement provided that the United States "does not intend to return to Haiti any Haitian migrants whom United States authorities determine to qualify for refugee status."   In addition, the United States received assurances from Haiti that Haitians returned to their country would not be subject to prosecution for illegal departure
                

On September 30, 1991, the democratically elected government of Haiti was overthrown in a military coup, and its President, Jean-Bertrand Aristide, was forced into exile. Following the coup, reports surfaced of human rights violations by the military in Haiti. These alleged violations included killings, torture, arbitrary arrests without a warrant and the destruction of property. Allegedly, the Haitian military has targeted President Aristide's political supporters for threats, intimidation and persecution. Following the coup, the United States joined other nations in announcing the imposition of economic sanctions against Haiti.

Since the coup, thousands of people have fled from Haiti, mostly by boat. As a result of this substantial increase in migration from Haiti, the number of interdictions also increased. Following the coup, the United States temporarily suspended repatriations under the interdiction program. However, as of November 18, 1991, the United States resumed repatriations.

The Baker Litigation

On November 19, 1991, the Haitian Refugee Center, Inc. ("HRC"), filed a complaint in the United States District Court for the Southern District of Florida challenging aspects of the interdiction program and seeking declaratory and injunctive relief (the "Florida Action"). See Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498, 1502-03 (11th Cir.) (per curiam), cert. denied, --- U.S. ----, 112 S.Ct. 1245, 117 L.Ed.2d 477 (1992). Named as defendants were: James Baker, III, Secretary of State; Rear Admiral Robert Kramek and Admiral Kime, Commandants, United States Coast Guard; Gene McNary, Commissioner, Immigration and Naturalization Service; the United States Department of Justice; the Immigration and Naturalization Service; and the United States ("defendants in the Florida Action"). The Florida Action complaint asserted claims allegedly arising under the Executive Order, international law, the United Nations Protocol Relating to the Status of Refugees, United States immigration statutes and the fifth amendment. More specifically, HRC maintained that the INS had failed to comply with its own guidelines for the identification of refugees, promulgated pursuant to the Executive Order, and, thus, violated the rights of the interdicted Haitians. On that same day, the district court granted HRC's application for a temporary restraining order to maintain the status quo. This order precluded the defendants in the Florida Action from repatriating Haitians held on board United States vessels and held at the United States Naval Base, Guantanamo Bay, Cuba.

Following expedited discovery, HRC filed a second amended complaint and supplemental pleading adding claims on behalf of a putative class of Haitian plaintiffs. In addition to the claims asserted in the initial complaint, the second amended complaint alleged claims under the first amendment On December 17, 1991, the Eleventh Circuit dissolved the preliminary injunction, finding it to be overly broad with regard to HRC's first amendment claim, and remanded with instructions to dismiss the Haitian plaintiffs' claims under the Protocol. Haitian Refugee Center, Inc. v. Baker, 949 F.2d 1109, 1111 (11th Cir.1991) (per curiam). Later that evening, the district court issued a temporary restraining order based upon a reconsideration of the claims of the plaintiffs in the Florida Action under the APA, whereupon, the Eleventh Circuit stayed that order pending appeal. Haitian Refugee Center, Inc. v. Baker, 950 F.2d 685, 687 (11th Cir.1991) (per curiam).

                and the Administrative Procedure Act, 5 U.S.C. §§ 551-706
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