Movimiento Democracia, Inc. v. Johnson, CASE NO. 16-cv-21868-CV-GAYLES

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
• Writing for the Court: DARRIN P. GAYLES UNITED STATES DISTRICT JUDGE
• Parties: MOVIMIENTO DEMOCRACIA, INC., et al., Plaintiffs, v. JEH CHARLES JOHNSON, Secretary, Department of Homeland Security, et al., Defendants.
• Docket Number: CASE NO. 16-cv-21868-CV-GAYLES
• Decision Date: 28 June 2016

MOVIMIENTO DEMOCRACIA, INC., et al., Plaintiffs, v. JEH CHARLES JOHNSON, Secretary, Department of

Homeland Security, et al., Defendants.

CASE NO. 16-cv-21868-CV-GAYLES

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

June 28, 2016

ORDER

The principal plaintiffs in this case are Cuban migrants who temporarily found sanctuary on the American Shoal Lighthouse off the coast of the Florida Keys on May 20 and 21, 2016. They seek declaratory and injunctive relief such that they be declared to have reached United States dry land, be brought to shore from their current location aboard a U.S. Coast Guard cutter,¹ and be allowed to seek relief as Cuban refugees pursuant to U.S. immigration law. The facts in the case are largely undisputed, so the paramount issue before the Court is whether reaching the American Shoal Lighthouse qualified the migrants for relief pursuant to the Cuban Adjustment Act and the Executive Branch's procedures implementing current American-Cuban immigration policy. Specifically, the Court must decide whether the Coast Guard properly determined that the migrants' situation was "wet foot" under Executive Branch policies and whether, apart from that administrative determination, the migrants qualify for any protectionsunder the Constitution. In deciding this legal question, the Court is mindful of the proper role of federal courts in such matters. See Gonzalez v. Reno, 212 F.3d 1338, 1344 (11th Cir. 2000) ("Gonzalez I") ("[T]he case is mainly about the separation of powers under our constitutional system of government: a statute enacted by Congress, the permissible scope of executive discretion under that statute, and the limits of judicial review of the exercise of that executive discretion.").

The Court has considered Plaintiffs' Emergency Complaint [ECF No. 1], First Amended Complaint [ECF No. 16], Plaintiffs' Memorandum of Law and Fact in Support of Declaratory and Injunctive Relief [ECF No. 11], the parties' responses and replies thereto, the Administrative Record of the United States Coast Guard [ECF No. 12], all other filings, and the relevant law. The Court heard extensive argument from all parties on June 2, 2016, regarding Plaintiffs' motion for preliminary injunction. Since that hearing, the Court has received and reviewed additional filings. For the reasons that follow, Plaintiffs' motion for preliminary injunction is denied.

I. IMMIGRATION POLICY FOR CUBAN NATIONALS

A. The Cuban Adjustment Act

In response to the influx of refugees who were fleeing from Cuba in the early 1960s, Congress enacted the Cuban Adjustment Act of 1966 ("CAA"), Pub. L. No. 89-732, 80 Stat. 1161 (codified as amended at 8 U.S.C. § 1255 note). See also Note, The Cuban Adjustment Act of 1966: ¿Mirando por los Ojos de Don Quijote o Sancho Panza?, 114 Harv. L. Rev. 902, 908-11 (2001) (discussing "[f]our predominant reasons [that] motivated Congress to enact the CAA," including national security, humanitarian concerns, reducing administrative burdens, and streamlining Cuban refugees into the American labor market). The current version of the CAAprovides as follows:

[T]he status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least one year, may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.

Toro v. Sec'y, U.S. Dep't of Homeland Sec., 707 F.3d 1224, 1226 (11th Cir. 2013) (quoting CAA § 1). As the Eleventh Circuit has noted, current "immigration law and policy afford special treatment to Cuban nationals who come to the United States. . . . Cuban nationals, who have no documents authorizing their presence in the United States, can remain in the United States without demonstrating that they suffered persecution or proving refugee status." United States v. Dominguez, 661 F.3d 1051, 1067 (11th Cir. 2011).

B. The "Wet-Foot/Dry-Foot" Policy

The Eleventh Circuit explained the implementation of immigration law regarding Cuban migrants as follows:

The benefits of the CAA . . . can only apply to those Cubans who reach United States soil (those with "dry feet") while Cubans who are interdicted at sea (those with "wet feet") are repatriated to Cuba. This rule is commonly referred to as the "Wet-Foot/Dry-Foot" policy. . . . [T]he Wet-Foot/Dry-Foot policy applies to Cubans regardless of whether they entered the United States at a designated port-of entry.

Id. at 1067-68 (citing Doris Meissner, Comm'r, INS, Eligibility for Permanent Residence Under the Cuban Adjustment Act Despite Having Arrived at a Place Other Than a Designated Port-of-Entry (Apr. 19, 1999), reprinted in 76 Interpreter Releases No. 17, at 676 app. 1 (May 3, 1999) ("Meissner Memorandum")). The Wet-Foot/Dry-Foot Policy refers to the agreement reached between the United States and Cuba regarding the "common interest in preventing unsafe departures from Cuba which risk loss of human life." Joint Statement on Normalization of Migration, Building on the Agreement of September 9, 1994, Cuba-U.S., 35 I.L.M. 327, 329 (May 2, 1995). Therefore, "Cuban migrants intercepted at sea by the United States and attempting to enter the United States will be taken to Cuba." Id. at 328. (emphasis added). There is no congressional guidance regarding what constitutes "wet foot" or "dry foot" status. However, the Department of Homeland Security ("DHS") has detailed its operational procedures for executing this Policy in the Coast Guard's Maritime Law Enforcement Manual, COMDTINST M16247.1F, as provided in redacted form in the administrative record. [ECF No. 12-1 at 29-32].

C. Coast Guard Policy

Federal law provides that the Secretary of Homeland Security "shall have the power and duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens." 8 U.S.C. § 1103(a)(5). The United States Coast Guard is a "service in the Department of Homeland Security." 14 U.S.C. § 3(a). Additionally, the Coast Guard establishes, maintains, and operates aids to maritime navigation. Id. § 81(1).

The legal framework for the Coast Guard's operations regarding the interdiction of vessels is that of the Immigration and Nationality Act of 1952 ("INA"), Pub. L. No. 82-414, 66 Stat. 163 (current version codified as amended in scattered sections of 8 U.S.C.), and the President's "constitutional authority as commander-in-chief to ensure the security of U.S. borders (U.S. Constitution, Art. 1, Sec. 2, cl. 1)." [ECF No. 12-1 at 30]; see also 8 U.S.C.§ 1185(a)(1) (providing that "it shall be unlawful for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe"). Specifically, President George H. W. Bush issued Executive Order 12,807, which authorized the Coast Guard to interdict migrants at sea and "return the vessel and its passengers to the country from which it came, or to another country, when there is reason to believe that an offense is being committed against the United States immigration laws." Exec. Order No. 12,807 § 2(c)(3), 57 Fed. Reg. 23,133 (May 24, 1992), as amended by Exec. Order No. 13,286 § 30, 68 Fed. Reg. 10,619 (Feb. 28, 2003). Nevertheless, the Secretary of Homeland Security, "in his unreviewable discretion, may decide that a person who is a refugee will not be returned without his consent." Id. Additionally, pursuant to President George W. Bush's Executive Order 13,276, the Secretary of Homeland Security "may maintain custody, at any location he deems appropriate, of any undocumented aliens he has reason to believe are seeking to enter the United States and who are interdicted or intercepted in the Caribbean region" and "may conduct any screening of such aliens that he deems appropriate, including screening to determine whether such aliens should be returned to their country of origin or transit, or whether they are persons in need of protection who should not be returned without their consent." Exec. Order No. 13,276 § 1(a), 67 Fed. Reg. 69,985 (Nov. 15, 2002), as amended by Exec. Order No. 13,286 § 1, 68 Fed. Reg. 10,619 (Feb. 28, 2003).

In 1993 and 1996, the Office of Legal Counsel ("OLC") of the Department of Justice issued legal opinions that are generally binding on all federal agencies in implementing immigration policy. See Cherichel v. Holder, 591 F.3d 1002, 1016 n.17 (8th Cir. 2010) (noting that "OLC opinions are generally binding on the Executive branch"). These opinions concludedthat undocumented aliens seeking to reach the United States, but who have not landed or been taken ashore on United States dry land, are not entitled to removal or other proceedings under the INA. See Immigration Consequences of Undocumented Aliens' Arrival in U.S. Territorial Waters, 17 Op. O.L.C. 77, 83 (1993); Procedural Rights of Undocumented Aliens Interdicted in U.S. Internal Waters, 20 Op. O.L.C. 381, 385 (1996). Specifically, the OLC interpreted 8 U.S.C. § 1225(a)(1) and concluded that an alien attains the status of an "applicant for admission" only when he or she "has reached or been brought to the United States dry land." Procedural Rights, 20 Op. O.L.C. at 385 (emphasis added) (citations and internal quotation marks omitted); see also Rodriguez v. Ridge, 310 F. Supp. 2d 1242, 1245 (S.D. Fla. 2004) (stating that mere entry into United States waters is insufficient to accord someone the status of "applicant for admission" under 8 U.S.C. § 1225(a)(1)).

Consistent with those two OLC opinions, the Coast Guard's procedures provide that "[i]...