Medina v. O'NEILL

Decision Date07 May 1984
Docket NumberH-81-3242.,Civ. A. No. H-81-2928
Citation589 F. Supp. 1028
PartiesJesus A. MEDINA a/k/a Juan Bermudez-Valencia, Alvaro Montano a/k/a Wilson Quinones-Olaya by and through his next friend Franklin Montano, Plaintiffs, v. Paul B. O'NEILL, Individually and as District Director of the Immigration and Naturalization Services of the Department of Justice, Carl Jensen, Individually and in his capacity as Immigration and Naturalization Investigator, Immigration and Naturalization Service of the Department of Justice, E.S. Bennings Company, and Danner, Inc., Defendants, and Third-Party-Plaintiffs, v. FLOTA MERCANTE GRANCOLOMBIANA, S.A., Third-Party-Defendant. Maria DEL GARCIA, Mother and Next Friend of Ramon Garcia, Plaintiff, v. Paul B. O'NEILL, et al., Defendants.
CourtU.S. District Court — Southern District of Texas

COPYRIGHT MATERIAL OMITTED

Stefan Presser, American Civil Liberties Union, Houston, Tex., for plaintiffs.

Thomas B. Greene, III, Crain, Caton, James & Womble, Houston, Tex., for third party defendant Flota Mercante Grancolombiana S.A.

Robert G. Taylor, II, Boswell, O'Toole, Davis & Pickering, Michael K. Suarez, Asst. U.S. Atty., Houston, Tex., Bradley A. Jackson, Royston, Rayzor, Vickery & Williams, Houston, Tex., for defendants.

MEMORANDUM AND ORDER

SINGLETON, Chief Judge.

Plaintiffs in the above-styled consolidated action bring this suit against defendants alleging violations of 8 U.S.C. §§ 1223, 1323(d) (1976) and the fourth and fifth amendments of the United States Constitution. Presently before this court are plaintiffs' motion for partial summary judgment against all the federal defendants and defendants' motion to dismiss.

BACKGROUND

The court finds that the following are the essential, undisputed facts:

(1) During the first week of February 1981, the vessel Cartagena De Indios entered the Port of Houston. Prior to docking, the ship's captain notified his shipping agent, E.S. Bennings Company ("Bennings"), in Houston that twenty-six stowaways had been discovered on board. The agent immediately alerted the Immigration and Naturalization Service ("INS") and requested its help detaining these individuals.1

(2) It is not contested that stowaways are excludable aliens. In the run-of-the-mill case, a stowaway is automatically excluded, and is not entitled to a hearing. The carrier is usually ordered to detain the stowaway on board the vessel for immediate transport out of the United States.2 This situation, however, involved an unusually large number of stowaways.3 The ship lacked any facilities suitable for detention on board,4 and the large number of stowaways presented a danger to the crew because it was feared they might attempt to take over the ship. Therefore, Paul O'Neill, District Director of the INS, granted the carrier permission to detain temporarily the stowaways off the vessel.5

(3) Mr. O'Neill agreed to have INS contact some local facilities in an effort to find a place for detention. The Galena Park Police Department agreed to hold some of the aliens temporarily6. The remaining aliens were placed at the Danner, Inc. ("Danner") facility.7 After two days of detention, while the guard on duty was taking a telephone call, the aliens attempted to escape. By the time Danner's guards got the situation under control, one alien was killed accidentally and another was wounded.8 The Houston Police Department was called in and ultimately assumed custody of the aliens.

In their motion for partial summary judgment, plaintiffs allege both constitutional and statutory violations against the INS. First, plaintiffs assert that the INS failed to oversee their detention. Because of this failure, plaintiffs contend they were subjected to conditions of detention which amounted to punishment, and as a consequence were deprived of their fifth amendment due process rights. Second, plaintiffs contend that the failure to designate a place of detention while their exclusion was pending deprived the stowaways of rights secured by the Immigration and Nationality Act of 1952, 8 U.S.C. § 1323(d) (1976) ("the Act").

In opposition to plaintiffs' motion, defendants counter that the plaintiffs at all times remained in the custody of the carrier FLOATA MERCANTE GRANCOLOMBIANA and its agent Bennings, not the INS. Further, defendants urge that the carrier hired Danner to detain the stowaways without INS knowledge or approval. Therefore, defendants contend that plaintiffs have not alleged a constitutional claim because the carrier's and Danner's acts were not attributable to the INS. In addition, defendants challenge plaintiffs statutory claims stating that the Act's provisions do not require the INS to designate a place of detention and that Congress' did not intend to imply a cause of action under 8 U.S.C. § 1323 for stowaways. Finally, defendants aver that the doctrine of qualified immunity shields the good faith acts of the individually named federal defendants because their conduct did not violate clearly established statutory or constitutional rights. Therefore, defendants aver that plaintiffs are not entitled to partial summary judgment and defendants also urge this court to grant their motion to dismiss for failure to state a claim for relief.

Initially, this court will discuss the scope of judicial review, subject-matter jurisdiction, and sovereign immunity. Then the court will consider plaintiffs' statutory and constitutional claims.

I. SCOPE OF JUDICIAL REVIEW, JURISDICTION, AND SOVEREIGN IMMUNITY

At the outset, this court notes the limited scope of judicial review in immigration matters. The Supreme Court has stated repeatedly that Congress' legislative powers over the admission and exclusion of aliens is plenary. See, e.g., Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977); Kleindienst v. Mandel, 408 U.S. 753, 765-67, 92 S.Ct. 2576, 2582-84, 33 L.Ed.2d 683 (1972). As early as 1895, the Court held that

"the power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications."

Lem Moon Sing v. United States, 158 U.S. 538, 547, 15 S.Ct. 967, 970, 39 L.Ed. 1082 (1895).

Indeed, the Court has gone so far as to find that "whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953);9United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 S.Ct. 309, 94 L.Ed. 317 (1950); In re Cahill, 447 F.2d 1343, 1344 (2d Cir.1971). Notwithstanding Congress' broad powers, the Constitution establishes a floor of rights to be afforded to any person found within United States territory. Therefore, the Supreme Court has mandated continuously that all persons, whether citizens or aliens, are entitled to the fifth and fourteenth amendments' protection against deprivations of life, liberty, and property without due process of law. Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976); Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 981, 41 L.Ed. 140 (1895); Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886). These protections apply to all aliens whether seeking entry at the border or in the interior, either legally or illegally. United States v. Henry, 604 F.2d 908, 914 (5th Cir.1979); accord Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1387 n. 3 (10th Cir.1981).10

Plaintiffs appear before this court with claims of statutory and due process violations, asserting that defendants ordered but failed to adequately supervise their detention. As a result, they claim they were subjected to conditions amounting to punishment in violation of the fifth amendment. Not contesting their ultimate exclusion or the procedure Congress provided to assure their exclusion, plaintiffs challenge the INS procedure whereby they may be detained by private parties in unregulated detention facilities which do not meet due process standards. Accordingly, this court must ascertain the parameters of the statutory procedures Congress has provided for in the Act and, within those procedures, ascertain what due process rights were afforded the plaintiffs. The court must then review the agency's actions to assure that the plaintiffs were afforded the process Congress provided.

In a footnote, defendants assert that this court lacks Bivens-type subject matter jurisdiction over these claims. Plaintiffs contend that jurisdiction exists directly under the fifth amendment. Defendants do not dispute that private litigants are entitled to enforce the Constitution's guarantees against arbitrary deprivations of fourth, fifth, and eighth amendment rights, see Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1970); Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), but assert that jurisdiction is lacking because (1) the alleged tort was not intentional, (2) special factors preclude the cause of action, and (3) an alternative avenue — habeas corpus — was conceivably available to remedy the allegedly unconstitutional detention. Defendants reserved these arguments because they are "novel and complex" and instead briefed their qualified immunity defense.

Lack of subject matter jurisdiction is not waivable and may be asserted at any time, thus there is no need to reserve the arguments. F.R.C.P. 12(h)(3). Even without the benefit of briefing, it is apparent that these "novel and complex" arguments are without merit. The Supreme Court found that Bivens-type constitutional torts are within the federal courts' "arising under" j...

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