Louis v. Meissner

• Citation: 532 F. Supp. 881
• Decision Date: 24 February 1982
• Docket Number: No. 81-1260-CIV-EPS.,81-1260-CIV-EPS.
• Parties: Lucien LOUIS, Jean Louis, Servebien, Pierre Silien, Serge Verdieu, Milfort Vilgard and Joel Casimir, on behalf of themselves and all others similarly situated; and the Haitian Refugee Center, Inc., a non-profit membership corporation, on behalf of itself and its members, Plaintiffs, v. Doris MEISSNER, Acting Commissioner, Immigration and Naturalization Service; Joe Howerton, District Director, Immigration and Naturalization Service, District VI; Lee Rowland, Assistant District Director for Deportation, Immigration and Naturalization Service, District VI; Fred Alexander, Officer in Charge, Krome Avenue North Detention Facility; the Immigration and Naturalization Service; William French Smith, Attorney General of the United States, Defendants.
• Court: U.S. District Court — Southern District of Florida

532 F. Supp. 881

Lucien LOUIS, Jean Louis, Servebien, Pierre Silien, Serge Verdieu, Milfort Vilgard and Joel Casimir, on behalf of themselves and all others similarly situated; and the Haitian Refugee Center, Inc., a non-profit membership corporation, on behalf of itself and its members, Plaintiffs, v. Doris MEISSNER, Acting Commissioner, Immigration and Naturalization Service; Joe Howerton, District Director, Immigration and Naturalization Service, District VI; Lee Rowland, Assistant District Director for Deportation, Immigration and Naturalization Service, District VI; Fred Alexander, Officer in Charge, Krome Avenue North Detention Facility; the Immigration and Naturalization Service; William French Smith, Attorney General of the United States, Defendants.

No. 81-1260-CIV-EPS.

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

February 24, 1982.

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

Thomas Moseley, Miami, Fla., Robert L. Bombaugh, Washington, D. C., for defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS IN PART

SPELLMAN, District Judge.

THIS CAUSE came before the Court on Defendants' Motion to Dismiss. Having reviewed the record in this cause and being otherwise duly advised, it is hereby

ORDERED AND ADJUDGED that Defendants' Motion to Dismiss is GRANTED in part as follows:

PROCEDURAL BACKGROUND

Originally this case was instituted on June 10, 1981 as a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241.¹ The Petitioners named therein were "Marie Lucie Jean and Harold Jacques, on behalf of themselves and other Haitian aliens similarly situated, and the Haitian Refugee Center, Inc." The Petition was filed in order to "stay final orders of exclusion and deportation against certain Haitian refugees issued by the Immigration and Naturalization Service" (hereinafter INS). These "final orders" were allegedly obtained in violation of Petitioners' rights to "a fair exclusionary hearing and to fair proceedings, and to consult with counsel."

On June 16, 1981 an amended petition for a writ of habeas corpus and a complaint for declaratory, injunctive and mandatory class action relief were filed.² Seven causes of action were asserted therein: (1) that the Defendant officials of INS District VI and their employees conducted preliminary interviews with Petitioners and Plaintiffs in which the refugees were compelled to appear in person before INS representatives without being permitted to be accompanied, represented, and advised by counsel, and without being advised of their right to do so, in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 555(b); (2) that on or about May 20, 1981, Defendants changed their prior policy with respect to the parole and detention of Haitian refugees arriving after that date, the order in which such refugees would be subjected to exclusion proceedings, and the manner in which such proceedings would be conducted, a change in policy which is unlawful since not accomplished in accordance with the rulemaking requirements of the APA, 5 U.S.C. § 553; (3) that Defendants failed to provide Petitioners with adequate notice of their right to counsel at exclusion hearings and of their right to a hearing on which they would have a reasonable opportunity to present evidence, to examine and object to evidence, and to cross-examine witnesses against them, failed to give Petitioners written notice of the purposes for their detention and hearing, and on information and belief, threaten not to provide such notice to plaintiffs when and as they are subjected to exclusion proceedings, all in violation of INS Operations Instructions, 8 C.F.R. § 235.6(a) (1981), Section 292 of the Immigration and Nationality Act, 8 U.S.C. § 1362, the Due Process Clause of the Fifth Amendment, and the United Nations Convention and Protocol Relating to the Status of Refugees ("Protocol"); (4) that Defendants denied Petitioners, and on information and belief threaten to deny Plaintiffs, access to counsel in connection with their exclusion proceedings, in violation of INS Operations Instructions and Regulations, 8 C.F.R. § 236.2(b) (1981), Section 292, of the Immigration and Nationality Act, 8 U.S.C. § 1362, the Due Process Clause of the Fifth Amendment, the First Amendment, and the Protocol, and in violation of Plaintiff HAITIAN REFUGEE CENTER, INC.'s rights under the First Amendment; (5) that Defendants denied Petitioners, and on information and belief threaten to deny Plaintiffs, their right to a public exclusion hearing, in violation of INS Operations Instructions and Regulations, 8 C.F.R. § 236.2(a) (1981), the Due Process Clause of the Fifth Amendment and the Protocol, or in the alternative, that Defendants denied Petitioners, and on information and belief threaten to deny Plaintiffs, their right to a private hearing under said regulation; (6) that Defendants denied Petitioners, and on information and belief threaten to deny Plaintiffs, their right to apply for political asylum in violation of INS Operations Instructions and Regulations, 8 C.F.R. § 236.2(a) (1981), Section 208 of the Immigration Act, 8 U.S.C. § 1158, and the Protocol, and denied Petitioners and on information and belief threaten to deny Plaintiffs their right to notice of their right to seek political asylum in violation of the Protocol, the Due Process Clause of the Fifth Amendment, 8 C.F.R. § 208.1 et seq., 8 C.F.R. § 236.3, Section 208 of the Immigration Act, 8 U.S.C. § 1158, INS Operations Instructions, and (7) that Defendants have applied a double standard regarding the exclusion of aliens, subjecting Haitian refugees but no other refugee groups to the above policies and procedures, resulting in discrimination and threatened discrimination based on race and national origin in violation of the Equal Protection requirements of the Due Process Clause of the Fifth Amendment and the Protocol.

An Amended Complaint was filed on August 24, 1981. In addition to deleting two parties named in the First Amended Petition/Complaint, and adding six new Plaintiffs, it was alleged that: "On or about August 10, 1981, this Court granted defendants' Motion to Vacate petitioners' final orders of exclusion and to remand to the Immigration and Naturalization Service.³ As a result, the class designated as `petitioners' in the Complaint, and defined as refugees for whom final orders of exclusion and deportation have been issued is non-existent and has been absorbed into the class designated as `plaintiffs' in the complaint, and defined as refugees who have not yet been issued final orders of exclusion and deportation: As a result allegations in the Complaint concerning petitioners should not refer exclusively to plaintiffs."⁴

On September 30, 1981, the Court granted Plaintiffs' motions for class certification and for a preliminary injunction.⁵ The class of Plaintiffs before the Court is defined as follows:

The Class consists of all Haitian aliens who have arrived in the Southern District of Florida on or after May 20, 1981, who are applying for entry into the United States and who are presently in detention pending exclusion proceedings at various INS detention facilities, for whom an order of exclusion has not been entered and who are either: (1) unrepresented by counsel; or (2) represented by counsel pro bono publico assigned by the Haitian Refugee Volunteer Lawyer Task Force of the Dade County Bar Association.⁶

The injunction permits the Defendants to proceed with exclusion hearings for those class members delineated in "(2)" of the definition but it prohibits entry of a final, non-appealable order of exclusion against them without prior notice being given to the Court. As to all other class members, the Defendants are enjoined from holding any exclusion proceedings until their claims are resolved.

SECTION 106 OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. § 1105a PRECLUDES JUDICIAL REVIEW OF COUNTS I, III, V AND VI IN THEIR ENTIRETY AND COUNTS IV AND VII IN PART

United States District Courts are tribunals of limited jurisdiction; their power to hear a case is dependent upon congressional implementation of one of the Constitution's grants of subject matter jurisdiction. As a result, it is imperative that the applicable statutory requirements relating to subject matter jurisdiction be satisfied before the Court proceeds to adjudicate the controversy.

The relevant statutory authority in the case at bar is Section 106 of the Immigration and Nationality Act, (hereinafter INA), 8 U.S.C. § 1105a. That section provides in part:

(b) Notwithstanding the provisions of any other law, any alien against whom a final order of exclusion has been made heretofore or hereafter under the provisions of section 236 of this Act or comparable provisions of any prior Act may obtain judicial review of such order by habeas corpus proceedings and not otherwise.

(c) An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration law and regulations or if he has departed from the United States after the issuance of the order. Every petition for review or for habeas corpus shall state whether the validity of the order has been upheld in any prior judicial proceeding, and, if so, the nature and date thereof, and the court in which such proceeding took place. No petition for review or for habeas corpus shall be entertained if the validity of the order has been previously determined in any civil or criminal proceeding unless the petition presents grounds which the court finds could not have been presented in such prior proceeding, or the court finds that the remedy provided by such prior proceeding was inadequate or ineffective to test the validity of the order. (Emphasis added)

Defendants' motion...