Louis v. Nelson, No. 81-1260-CIV-EPS.

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
• Writing for the Court: SPELLMAN
• Citation: 544 F. Supp. 973
• Docket Number: No. 81-1260-CIV-EPS.
• Decision Date: 18 June 1982
• Parties: Lucien LOUIS, Wilner Luberisse, Jean Louis Servebien, Pierre Silien, Serge Verdieu, Milfort Vilgard, Joel Casimir, Job Dessin and Prophete Talleyvand, 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. Alan NELSON, Commissioner, Immigration and Naturalization Service, Joe Howerton, District Director, Immigration and Naturalization Service, District VI; Lee Rowland, Assistant District Director of Deportation, Immigration and Naturalization Service, District VI; Cecilio Ruiz, Officer in Charge, Krome Avenue North Detention Facility; Immigration and Naturalization Service; and William French Smith, Attorney General of the United States, Defendants.

544 F. Supp. 973

Lucien LOUIS, Wilner Luberisse, Jean Louis Servebien, Pierre Silien, Serge Verdieu, Milfort Vilgard, Joel Casimir, Job Dessin and Prophete Talleyvand, 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.
Alan NELSON, Commissioner, Immigration and Naturalization Service, Joe Howerton, District Director, Immigration and Naturalization Service, District VI; Lee Rowland, Assistant District Director of Deportation, Immigration and Naturalization Service, District VI; Cecilio Ruiz, Officer in Charge, Krome Avenue North Detention Facility; Immigration and Naturalization Service; and William French Smith, Attorney General of the United States, Defendants.

No. 81-1260-CIV-EPS.

United States District Court, S. D. Florida.

June 18, 1982.

544 F. Supp. 974

COPYRIGHT MATERIAL OMITTED

544 F. Supp. 975

Ira J. Kurzban, Kurzban, Kurzban & Weinger, Miami, Fla., Bruce Winick, Univ. of Miami School of Law, Coral Gables, Fla., Irwin P. Stotzky, Vera Weisz, Miami, Fla., Michael J. Rosen, Miami, Fla.; Robert E. Juceam, Irwin Blum, Terrence A. Corrigan, Anne Golden, Mary B. Gilmore, Robin A. Fleischner, Jeffrey Susskind, New York City, for plaintiffs

Robert Bombaugh, Dept. of Justice, Civ. Div., Washington, D. C., Thomas E. Moseley, Sp. Asst. U. S. Atty., Miami, Fla., for defendants.

Jim Peters, Dept. of Legal Affairs, Tallahassee, Fla., for State of Fla., intervening defendant.

MEMORANDUM OPINION¹

SPELLMAN, District Judge.

"Life is like an onion you peel off one layer at a time and sometimes you weep." Carl Sandburg

This case has been described by the Government as nothing more than an attack on the proper constitutional effort of the United States to protect its borders from invasion. It has been described by the Plaintiffs as the worse possible case of the Government of the United States engaging in invidious discrimination.

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The detention policy giving rise to this lawsuit has been described by some in the news media as a moral disgrace and by others as simply President Reagan's answer to Carter's timidity.

The policy attempted to be formulated and implemented has been both praised and criticized before Congress.

The religious leaders have assailed this matter as a moral issue; the Attorney General of the United States as a political decision.

The letters received by this Court from the outset of receipt of this case in December of 1981 make it clear that to whomever this matter is addressed it is received neither dispassionately, objectively or without some bias having been formed well in advance.

This opinion, the Court fears, will lack the understanding necessary to convey the complexity of the issues formed and the absolute necessity that in recognizing the right of the executive to exercise certain inherent powers, we must never lose sight of the rule of law. It is hoped that in the passioned subjectivity and prejudice of those that read this opinion those that assert detention to be morally wrong must realize that the executive branch of Government must sometimes adopt drastic policies to achieve purposes otherwise unattainable; and to those who would assert the omnipotent power of government to recognize that in adopting such policies they are never above the rule of law, however well intended their actions.

The primary question raised by this action is whether an excludable alien can be incarcerated during the pendency and possible appeal of his claim for admission to this country. This case in a nutshell involves the individual right of freedom versus the right of the United States to enforce the immigration laws of this country.

The sovereign United States government has an absolute right to control its borders. "The right to do so stems not only from legislative power, but is inherent in the executive power to control the foreign affairs of the nation. United States v. Curtis-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255; Fong Yue Ting v. United States, 149 U.S. 698, 713, 13 S.Ct. 1016, 1022, 37 L.Ed. 905. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power." Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950).

Congress has passed extensive legislation governing the admission of aliens into this country. The legislation provides the executive with a relatively clear indication of Congress' view of immigration policy and a way to carry out their intent.

The basic premise of the immigration law is that no alien may enter the United States unless his entry is authorized by statute. An alien thus cannot lawfully come across the border of this country unless the law sanctions his entry. Conversely, an alien who complies with the legislative directives has a right to enter if he presents himself at a port of entry.

1 C. Gordon & H. Rosenfeld, Immigration Law and Procedure § 2.1b (footnotes omitted).

The chief and almost exclusive concern of the immigration laws is with aliens who seek to enter the United States from abroad. Congress has imposed three types of restrictions on such aliens: qualitative restrictions bar certain classes of undesirable aliens, principally on health, moral, criminal, political or economic grounds. Numerical limits govern those aliens who come to stay permanently. Documentary restrictions establish identity and assure compliance with other prescribed requirements by commanding entering aliens to obtain and present certain documents, usually in the form of passports or equivalent papers.²

Congress has charged the executive branch with the duty to enforce the immigration laws. The Immigration and Naturalization Service (hereinafter INS), a component of the Department of Justice, is the agency that carries out the enforcement

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function of the executive branch in matters relating to immigration.³ INS has found the most efficient way to carry out this mandate is by requiring all aliens seeking admission to present themselves to immigration for inspection at designated ports of entry.⁴ Upon arriving at immigration, the aliens must establish their admissibility to the satisfaction of the immigration officer in charge.⁵ Admissibility is easily established if the alien has in his possession all of the documents necessary to enter provided these documents are in good order and not suspect.⁶

Many aliens choose not to follow the prescribed procedures for entering the United States. Some seek to enter surreptitiously at night, by crossing the border in remote, inaccessible areas; others through fraud. Within this class of aliens, motives vary from a simple desire to seek a better life to some individuals who truly seek to escape persecution and repression in their homeland.

If an alien successfully crosses the border surreptitiously, the chances of being apprehended at a later time are slim. INS does not have the resources to make large scale searches for illegal entrants, to proceed against them and possibly expel them. It is much more efficient to use border patrol personnel to apprehend and deter aliens seeking to enter the country unlawfully. INS' efforts in this regard are of marginal effectiveness because this nation's borders are too expansive to be effectively patroled without continuous use of hundreds of thousands of guards.

All of INS' efforts are designed to ferret out aliens who for one reason or another are inadmissible, thereby keeping the number and character of immigrants entering the United States in line with congressional policy. Inadmissible aliens are either deportable or excludable; the former being persons who have effected an "entry", the latter being persons deemed not to have entered the United States.⁷ The irony of this distinction is that deportable aliens, many of whom entered the country surreptitiously, are given more rights under the law than excludable aliens who present themselves to immigration.⁸ The practical effect of this is to encourage those who attempt to sneak across the border because they are rewarded with greater rights than those aliens who attempt to comply with our laws.

Regardless of whether an alien is excludable or deportable, if the alien claims to be admissible INS must determine the merits of the claim.⁹ In the case of excludable aliens, Congress has enacted legislation giving

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them a right to an exclusion hearing.¹⁰ An exclusion hearing is a quasi-judicial proceeding that is held before an immigration judge. While the hearing is not subject to all of the protections of due process, it must be fair and in accordance with the statutes and regulations.¹¹ If the alien loses at the exclusion hearing, the statute provides that he may seek review of that decision in the Board of Immigration Appeals (BIA).¹² If this appeal is unsuccessful and a final order of exclusion is entered against the alien, that order may be reviewed by filing a petition for a writ of habeas corpus in the federal district court.¹³ The district court's decision can be appealed to the United States Circuit Court of Appeals and ultimately the alien may seek review by certiorari in the United States Supreme Court.¹⁴

The practical effect of trial and appellate rights for excludable aliens is that if he is apprehended, an alien determined to stay here who retains a skilled immigration lawyer may prolong his departure from this country for years.¹⁵

A. BACKGROUND

The ineffectiveness of our immigration system is vividly reflected by the present conditions in South Florida. The migration of undocumented Haitians to South Florida began in December 1972. By the beginning of 1981, an estimated thirty-five thousand undocumented Haitians were already present in this region. Yet, throughout this time, INS...