Haitian Refugee Center, Inc. v. Baker

• Decision Date: 03 December 1991
• Docket Number: No. 91-2653-CIV.,91-2653-CIV.
• Parties: HAITIAN REFUGEE CENTER, INC., et al., Plaintiffs, v. 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, Immigration and Naturalization Service, and the United States of America, Defendants.
• Court: U.S. District Court — Southern District of Florida

789 F. Supp. 1552

HAITIAN REFUGEE CENTER, INC., et al., Plaintiffs, v. 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, Immigration and Naturalization Service, and the United States of America, Defendants.

No. 91-2653-CIV.

United States District Court, S.D. Florida.

December 3, 1991.

COPYRIGHT MATERIAL OMITTED

Ira J. Kurzban, Kurzban, Kurzban & Weinger, Miami, Fla., for plaintiffs.

Dexter Lee, Asst. U.S. Atty., Miami, Fla., for defendants.

ORDER GRANTING PRELIMINARY INJUNCTIVE RELIEF AND SUPPORTING MEMORANDUM OPINION

ATKINS, Senior District Judge.

THIS CAUSE comes before the court on the application of Haitian Refugee Center, Inc., ("HRC"), individual plaintiffs ("individual plaintiffs") (collectively "plaintiffs"), and class members for preliminary injunctive relief pursuant to Rule 65, Federal Rules of Civil Procedure.¹ The application asks the court to extend a Temporary Restraining Order prohibiting defendants from forcefully repatriating Haitians in their custody either until the merits of the underlying action are resolved or until defendants implement and follow procedural safeguards adequate to ensure that Haitians with bona fide claims of political persecution are not forcefully returned to Haiti. By this application, plaintiffs do not seek entry to this country; rather, they seek only the protection of procedures to ensure that they are not forcefully returned to a country where, on account of their political opinion, their life and liberty are threatened by a brutal and illegitimate military regime.

The court determines that plaintiffs are entitled to the requested injunctive relief for the following reasons, as set forth more fully below. First, plaintiffs have standing and have demonstrated a substantial likelihood of prevailing on the merits of two justiciable, judicially enforceable claims: HRC's right of association and counsel, which arises from the First Amendment to the United States Constitution; and the Haitians plaintiffs' right of non-refoulement, which arises under Article 33 of the 1967 United Nations Protocol Relating to the Status of Refugees. Second, plaintiffs have demonstrated a substantial threat that they will suffer irreparable, even fatal, injury if the injunction is not granted. Third, plaintiffs have shown that this threatened injury outweighs the potential harm an injunction would cause defendants. Finally, plaintiffs have shown that the injunction would not be adverse to the public interest.

A. BACKGROUND

The facts most relevant to the present inquiry can be summarized as follows. In 1981, President Ronald Reagan formally found that the migration of aliens without visas to the United States was "a serious national problem detrimental to the interests of the United States." Proclamation No. 4865, 46 Fed.Reg. 48,107 (1981), reprinted in 8 U.S.C. ? 1182 note at 993 (1982). Specifically, President Reagan noted that "a particularly difficult aspect of the problem was the continuing illegal migration by sea of large numbers of undocumented aliens into to the southeastern United States." Id. Invoking both his constitutional and statutory authority, he decided that "international cooperation to intercept vessels trafficking in illegal migrants was a necessary and proper means of insuring the effective enforcement of our immigration laws." Id.

To implement this stated policy, on September 29, 1981, President Reagan ordered the Secretary of State to enter into "cooperative arrangements with appropriate foreign governments for the purpose of preventing illegal migration to the United States by sea." Exec.Order No. 12324, 46 Fed.Reg. 48,109 (1981), reprinted in 8 U.S.C. ? 1182 note at 992-93 (1982). The President also ordered the Secretary of Transportation to instruct the Coast Guard to interdict undocumented-alien-carrying vessels of foreign nations with which the United States has a cooperative arrangement authorizing the United States to stop and board such vessels. Id. The Coast Guard was further directed to "return the vessel and its passengers to the country from which it came, when there is 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." These actions were to be taken only beyond the territorial waters of the United States. Id.

Executive Order 12324 also addressed the unique situation of individuals who might qualify as political refugees, providing that "no person who is a political refugee will be returned without his or her consent." See 8 U.S.C. ? 1101(a)(42) (defining political refugee as "any person who is outside any country of such person's nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of ... political opinion"). The Executive Order further ordered the Attorney General, in consultation with the Secretaries of State and Transportation, to take any steps necessary "to ensure the fair enforcement of our laws relating to immigration ... and the strict observance of our international obligations concerning those who genuinely flee persecution in their homeland." Exec.Order No. 12324, 46 Fed. Reg. at 48,110.

On September 23, 1981, Haiti and the United States entered into a cooperative arrangement to prevent the illegal migration of visaless aliens to the United States. Interdiction Agreement, Sept. 23, 1981, United States-Haiti, T.I.A.S. No. 10241. The agreement provides, in relevant part, that United States authorities may board Haitian flag vessels on the high seas for the purpose of making certain inquiries relating to the condition and destination of the vessel and the status of those on board. If a violation of a United States law or an appropriate Haitian law is discovered, the vessel and its passengers may be returned to Haiti. The government of Haiti also formally agreed that Haitians returned to that country (with the exception of those organizing the illegal departures) would not be prosecuted for illegal departure. Finally, within this arrangement, as in the Executive Order, the potential political refugee was singled out for differential treatment. The agreement states that it is "understood 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." Id.

To effect the cooperative arrangement with Haiti, officers of the Immigration & Naturalization Service (INS) were assigned to Coast Guard vessels involved in interdiction operations. The INS also issued Guidelines to govern its conduct during interdiction engagements. The relevant portions of those Guidelines provide as follows:

INS ROLE AND GUIDELINES FOR INTERDICTION AT SEA

The following directives are to be followed by INS employees assigned to Coast Guard vessels interdicting vessels at sea pursuant to Presidential Proclamation 4865, dated September 29, 1981, and Executive Order Number 12324, dated September 29, 1981.

GENERAL

* Due to the sensitive nature of this assignment, all INS employees will be under the direct supervision of INS Central Office Headquarters, Associate Commissioner, Examinations.

* The only function INS officers are responsible for is to ensure that the United States is in compliance with its obligations regarding actions toward refugees, including the necessity of being keenly attuned during any interdiction program to any evidence which may reflect an individual's well-founded fear of persecution by his or her country of origin for reasons of race, religion, nationality, membership within a particular social group or political opinion.

* The duties of INS employees assigned to United States Coast Guard vessels will be limited to matters related to the interview of persons on board with respect to documentation relating to entry to the United States and possible evidence of refugee status.

* Except for independent determinations with respect to documentation relating to entry into the United States and possible claims to refugee status, INS officers will be subject to maritime directives and rules made by the Commanding Officer of the United States Coast Guard vessel.

* * * * * *

BOARDING OF VESSELS

* All decisions relating to which vessels will be interdicted and in what manner vessels will be boarded will be made at the discretion of the Commanding Officer of the United States Coast Guard vessel.

* INS officers and interpreters will be members of each boarding party. INS employees will not be armed.

* All initial announcements to the master, crew, and passengers of a boarded vessel as to the purpose of boarding, separation of crew and passengers, and general procedures (including advice that the boarded vessel may be returned to Haiti) will be made by United States Coast Guard personnel at the time the vessel is first boarded.

INS OFFICER RESPONSIBILITIES

A. To the extent that it is, within the opinion of the Commanding Officer of the United States Coast Guard vessel, safe and practicable, each person aboard an interdicted vessel shall be spoken to by an INS officer, through an interpreter. A log record shall be maintained of each such person's name, date of birth, nationality, home town, all documents or evidence presented, and the reason for departure.

B. A copy of the log prepared by the INS officers shall be provided to the Commanding Officer of the Coast Guard vessel.

C. INS officers shall be constantly watchful for any indication (including bare claims) that a person or persons on board the interdicted vessel may qualify as refugees under the United Nations Convention and

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