Louis v. Meissner

• Decision Date: 30 September 1981
• Docket Number: No. 81-1260-Civ-ALH.,81-1260-Civ-ALH.
• Citation: 530 F. Supp. 924
• Parties: Lucien LOUIS, et al., Plaintiffs, v. Doris MEISSNER, Acting Commissioner, Immigration and Naturalization Service, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

530 F. Supp. 924

Lucien LOUIS, et al., Plaintiffs, v. Doris MEISSNER, Acting Commissioner, Immigration and Naturalization Service, et al., Defendants.

No. 81-1260-Civ-ALH.

United States District Court, S. D. Florida, Miami Division.

September 30, 1981.

Ira J. Kurzban, Vera Weisz, Miami, Fla., Bruce J. Winick, Coral Gables, Fla., Kenneth Panzer, Miami, Fla., Irwin P. Stotzky, Coral Gables, Fla., for plaintiffs.

Richard A. Marshall, Jr., Asst. U. S. Atty., Miami, Fla., for defendants.

ORDER GRANTING TEMPORARY RESTRAINING ORDER

HASTINGS, District Judge.

THIS CAUSE, came on to be heard on plaintiffs' Renewed Motion for Temporary Restraining Order. Testimony was taken on September 8 and 9, 1981. Based on this and prior testimony, plaintiffs previously filed motions for temporary restraining order and for preliminary injunction, plaintiffs' memoranda in support of same, affidavits submitted by both parties, defendants' responses to interrogatories and requests for admissions, and documents placed in evidence, this Court finds that a sufficient showing has been made by plaintiffs to meet the requirements for a temporary restraining order.

THE STANDARDS FOR A TEMPORARY RESTRAINING ORDER

There are four criteria which the moving party must meet in order to justify issuance of a temporary restraining order or preliminary injunction:

1. A substantial likelihood that the movant will eventually prevail on the merits;

2. The movant will suffer irreparable injury unless the injunction is issued;

3. The injury to the movant outweighs whatever danger the proposed injunction may cause the party or parties opposing the injunction, and that;

4. The injunction, if issued, would not be adverse to the public interest.

Canal Authority of the State of Florida v. Callaway, 489 F.2d 567, 572-73 (5th Cir. 1974); Di Giorgio v. Causey, 488 F.2d 527 (5th Cir. 1973); State of Texas v. Seatrain International, S. A., 518 F.2d 175 (5th Cir. 1975).

It is also established in this Circuit that no particular quantum of proof is required as to each of the four criteria, but that the trial court should utilize a balancing-type approach in reviewing a preliminary injunction or temporary restraining order application. State of Texas v. Seatrain International, S. A., supra, at 180 ("none of the four prerequisites has a fixed quantitative value. Rather, a sliding scale is utilized, which takes into account the intensity of each in a given calculus."); Siff v. State Democratic Executive Committee, 500 F.2d 1307 (5th Cir. 1974). While the grant of a preliminary injunction would be inappropriate where the movant party has little or no chance of success on the merits, the importance of this requirement varies with the relative balance of threatened hardships facing each of the parties. Canal Authority of the State of Florida v. Callaway, supra, at 576. Moreover, a showing that plaintiffs will be more severely prejudiced by a denial of the temporary restraining order or injunction then will defendants should it be granted, lessens the standard likelihood of success that must be met. Id.; See generally, Lubsdorf, The Standard for Preliminary Injunction, 91 Harv.L.Rev. 525 (1978).

While the plaintiffs must establish all four factors delineated in Canal Authority, the crucial question is whether preservation of the status quo is necessary in order to protect the court's ability to render a meaningful decision on the merits. If a failure to grant temporary relief, will allow the defendant to harm the plaintiff in such a way that the court's ultimate decision in the plaintiff's favor becomes mere useless dicta, then a temporary restraining or preliminary injunction should issue.

THE PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR UNDERLYING CLAIMS

In order to grant a temporary restraining order or a preliminary injunction in a case such as this, raising a number of separate claims for relief, it is sufficient if this court, finds that plaintiffs are likely to succeed on any of their claims, See Tenants for Justice v. Hills, 413 F.Supp. 389 (Ed.Pa.1975), so long as the ultimate victory on this claim could be rendered relevant by the defendants' actions in the interim.

DENIAL OF ACCESS TO COUNSEL

On July 17, 1981, defendants began to remove members of plaintiffs' class out of the State of Florida and to various INS Detention Facilities located throughout the country. Approximately seven hundred of these refugees have been transported to Fort Allen, Puerto Rico, a former army base located in a remote area of the Island. Approximately fifty refugees have been transferred to Morgantown, West Virginia, located in the Northern West Virginia coal fields and having an approximate population of thirty thousand. An additional one hundred refugees were sent to Big Springs, Texas, a semi-desert city of approximately twenty-five thousand people, described as being about two hundred sixty miles west of Fort Worth, three hundred fifty miles east of El Paso, and "really not near anything." Approximately two hundred refugees were transferred to Lexington, Kentucky; approximately forty were transferred to Lake Placid, New York; approximately one hundred twenty were transferred to Otisville, New York; and approximately eighty-five were transferred to Brooklyn, New York. Approximately one thousand of these refugees remain in the Krome North Detention Facility, in Miami, Florida.

Having made a long and perilous journey on the seas to Southern Florida, these refugees, seeking the promised land, have instead been subjected to a human shell game in which the arbitrary Immigration and Naturalization Service has sought to scatter them to locations that, with the exception of Brooklyn are all in desolate, remote, hostile, culturally diverse areas, containing a paucity of available legal support and few, if any, Creole interpreters. In this regard, INS officials have acted as haphazard as the rolling seas that brought these boat people to this great country's shores. Indeed, even though INS officials have been rudderless in the enunciation and application of an immigration policy, when they decided to move the Haitians to these remote areas, they acted with laser-like precision. These refugees were removed from Miami, a city with a substantial immigration bar as well as volunteer lawyers from various organizations expressing an interest in representing these refugees. Miami also has a large Haitian population, and as a result, many Creole speaking individuals able to serve as translators to facilitate the attorney/client relationship, as well as community support groups and family members able to assist these refugees in their exclusion proceedings. From this relatively advantageous location from the prospective of the refugees, INS has distributed them to remote areas lacking attorneys with experience in immigration law, or for that matter, any attorneys at all willing to represent them. Moreover, these areas lack Creole speaking individuals able to act as translators. For example, the court heard testimony that there are no immigration lawyers in West Virginia, and that there are more Miami attorneys listed as specialists in immigration law in the Miami telephone book than there are attorneys in all of Monongolia County, (Morgantown) West Virginia.

Section 292 of the Immigration and Nationality Act, 8 U.S.C. § 1362, as well as INS Regulations, 8 C.F.R. § 236.2(b) provide that individuals subjected to exclusion proceedings have the right to representation by counsel not at government expense. Although Congress did not provide appointed counsel, Congress clearly intended that individuals in this situation be permitted representation by attorneys willing to provide legal services. By transferring these refugees to desolate, remote areas, wholly lacking in counsel and/or Creole translators, INS has thwarted the statutory and regulatory rights of these refugees to representation in their exclusion proceedings.

In addition, the testimony established that at least in some instances, the notice concerning attorneys provided these refugees in the various locations, which purported to list names, addresses, and telephone numbers of attorneys able to provide representation, were inaccurate. In some instances, they contained stale information listing attorneys' telephone numbers, and addresses where they no longer had offices. On other occasions these lists were misleading, listing names of organizations which had publicly stated their inability to represent these refugees. In some locations, the testimony established that although telephone numbers were provided, there were no available telephones in the detention facility. The court notes the general unavailability of telephones in these facilities, and the obvious problems engendered by providing telephone numbers of attorneys in cities requiring long distance telephone calls.

THE I-122 FORM

The charging instrument in an exclusion proceeding is the I-122 form. Its function is to notify individuals that they are about to be subjected to an exclusion proceeding, of their legal rights at such a proceeding, of the nature of the proceeding, and of the consequences thereof. The defendants have conceded that the I-122 form provided to Haitian refugees is in English only, and is not on its face translated into Creole. Although the government contends that all translations into Creole are made upon the service of I-122 form, the testimony and affidavits submitted establish that such translations were frequently omitted. Moreover, this Court held a six day hearing in June, 1981 that established that even in Miami, where INS Creole translators are presumably proficient, the translations at these proceedings are woefully inadequate. Many of the key words necessary to provide adequate notice were not translated into Creole, but were rather translated into the French equivalent words that were unintelligible to these poorly educated...