Pollgreen v. Morris, 80-1412-Civ-SMA

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
Citation579 F. Supp. 711
Docket Number80-1414-Civ-SMA.,No. 80-1412-Civ-SMA,80-1412-Civ-SMA
PartiesThomas C. POLLGREEN, et al., Plaintiffs, v. Raymond A. MORRIS, et al., Defendants. John FERNANDEZ, Sr., et al., Plaintiffs, v. Raymond A. MORRIS, et al., Defendants.
Decision Date24 January 1984

579 F. Supp. 711

Thomas C. POLLGREEN, et al., Plaintiffs,
Raymond A. MORRIS, et al., Defendants.

John FERNANDEZ, Sr., et al., Plaintiffs,
Raymond A. MORRIS, et al., Defendants.

Nos. 80-1412-Civ-SMA, 80-1414-Civ-SMA.

United States District Court, S.D. Florida.

January 24, 1984.

579 F. Supp. 712

Diane R. Tolbert, New York City, Thomas J. Sireci, Francis H. Muldoon, Jr., Key West, Fla., for plaintiffs.

Robert Rosenberg, Asst. U.S. Atty., Miami, Fla., Robert Kendall, Dept. of Justice, Washington, D.C., for defendants.


ARONOVITZ, District Judge.

Nature of the Action



The 19 plaintiffs in these two consolidated law suits are owners, managing agents or representatives, or captains of 31 U.S. commercial fishing vessels, American citizens who resided or were quartered in and about Key West, Florida. From April through June 1980, these vessels participated, usually for one trip each, in the 1980 "Cuban Refugee Freedom Flotilla", and were seized after landing Cuban nationals in Key West, Florida.1

Asserting jurisdiction under 28 U.S.C. §§ 1331, 1355 and 1356 and alleging deprivation of their due process rights secured under the Fifth Amendment to the U.S. Constitution, plaintiffs filed this action against defendants Morris and Powell of the Immigration and Naturalization Service and Angle and Battard of Customs Service. Plaintiffs seek a declaration that the vessel seizures were unlawful and an injunction permanently enjoining defendants from seizing the 31 vessels or seeking to levy any fines under 8 U.S.C. §§ 1321, 1323 and 1324.2 This Court has jurisdiction of the subject matter and the parties pursuant to the aforesaid jurisdictional citations.

Procedural Background

Prior to June 25, 1980, the subject vessels were seized by defendants and subject

579 F. Supp. 713
to imposition of One Thousand ($1,000.00) Dollar fines for each alien landed without a visa, 8 U.S.C. § 1323. Under date of June 25, 1980, as modified July 7, 1980, this Court granted plaintiffs a preliminary injunction against defendants whereby plaintiffs' 31 vessels were released from any prohibition on use in lawful domestic fishing or shrimping operations subject (A) to the posting of personal surety bonds in varying amounts collateralized by a security interest or lien on the particular vessel involved, running in favor of the United States of America; and (B) conditions designed to protect the interests of the United States with insurance coverage, nontransferability, use of the vessels, and otherwise. Pollgreen v. Morris, 496 F.Supp. 1042 (S.D.Fla.1980). This preliminary injunction was entered after a full-day evidentiary hearing

Thereafter plaintiffs filed administrative appeals to INS and the Board of Immigration Appeals appealing fines levied under 8 U.S.C. § 1323. In the present posture of these cases, defendants have filed a Motion for Partial Summary Judgment with Supporting Memorandum of Law and a complete Administrative Record of Proceedings held before the Regional Director, Immigration and Naturalization Service and the Board of Immigration Appeals of the United States Department of State (I.N.S.) Washington, D.C., including, but not limited to all papers filed and submitted in each instance offered by an individual plaintiff, affidavits, exhibits and other supporting data. The plaintiffs responded by filing cross Motions for Summary Judgment, each respectively, together with supporting Memoranda of Law, references to the Administrative Record, affidavits, exhibits and other supporting data. This Court has heard extensive oral argument thereon and having now reviewed the entire record before this Court, including, but not limited to, the entire record in these Court proceedings, as well as all proceedings offered before INS and the Agency, the Court is satisfied that no disputed issues of material facts remain which would prevent the entry of a summary judgment if any party is

579 F. Supp. 714
entitled thereto as a matter of law, based upon said record

Undisputed Factual Background

The plaintiffs have further supported the factual basis offered to this Court at the hearing on preliminary injunction in Pollgreen, supra, by submitting additional affidavits and exhibits, as well as by reference to affidavits offered by each plaintiff separately and severally in the course of the Agency appeals. Those facts as evidenced even by the defendants' Statement of Material Facts submitted in support of defendants' Motion for Partial Summary Judgment, are undisputed as stated in Pollgreen, supra, at P. 1047:

"In early April, 1980, Cuban citizens numbering in excess of 10,800, who maintained that they were political refugees, sought santuary in the Peruvian Embassy in Havana. Recognizing `that special conditions existed', President Jimmy Carter on April 14, 1980, determined that those persons in the Peruvian Embassy `who otherwise qualify may be considered refugees even though they are within their country of nationality or habitual residence'. Furthermore, declaring `that an unforeseen emergency refugee situation exists' President Carter concluded that `grave humanitarian needs' and the `national interest' justified the admission of up to 3500 of the refugees to this country and the appropriation of up to $4.25 million to aid in their resettlement pursuant to the Refugee Act of 1980. 45 Fed.Reg. 28079 (April 14, 1980). Through diplomatic efforts, an airlift was arranged to carry the Peruvian Embassy refugees from Havana to San Jose, Costa Rica. Once there, the refugees were to be processed for resettlement in the United States, Costa Rica, Peru and other Latin-American countries. After three days, the Cuban government halted the refugee flights. Whether cancellation of the flights acted as the catalyst is unclear from the record before the Court, but on April 19, 1980, small clusters of boats began to leave Key West, Florida for Mariel Harbor, Cuba to pick up refugees. The first boatloads returned from Mariel on April 21, foreshadowing the masses which followed —nearly 1800 boats carrying approximately 114,000 refugees.
"The government maintains that from the outset of the `Freedom Flotilla' the public was warned that anyone traveling to Mariel to pick up refugees without valid visas would be subject to arrests and fines. Whether this position is substantiated by the record the Court need not say. Suffice it to note that whatever the government's enforcement posture was previously, President Carter raised serious questions on May 5, 1980, when asked what he intended to do `about enforcing current immigration laws'. In response, the President promised `we'll continue to provide an open heart and open arms to refugees seeking freedom from communist domination and from the economic deprivation brought about primarily by Fidel Castro and his government'. ¶ 28 Plaintiffs' Complaint, p. 10.
"On May 14, 1980, the President took affirmative steps to end the `Freedom Flotilla' by imposing a blockade on outgoing vessels and ordering the return of U.S. vessels already at Mariel Harbor" emphasis supplied

The Applicable Law

Although Notices of Seizure listed alleged violations of Title 8 United States Code §§ 1321, 1323 and 1324, the defendants have chosen to abandon claims under Section 1321, and have not asserted claims under Section 1324 although allegedly reserving the right to do so. Instead, the Notice of Fines and the seizures have been processed and founded upon Title 8 U.S.C. § 1323 which proscribes bringing into the United States any alien who does not have a required valid visa under penalty of assessment of a fine in the sum of One Thousand ($1,000.00) Dollars for each alien so brought.

At page 4 of the defendants' Reply Memorandum, the government states the following

579 F. Supp. 715
position with regard to the status of the Cuban nationals: "... Moreover, the Cuban nationals who entered the United States during the so-called `Cuban Flotilla' between April 21 and June 19, 1980 were paroled into the United States for a six-month period as `Cuban entrants (status pending)', precisely because they did not possess refugee documents or any other entry documents." Whether the Cuban Nationals brought to Key West, Florida, by the plaintiffs during the Cuban Flotilla were parolees, non-resident aliens, refugees, or whatever their status, is neither relevant nor pertinent to the resolution of the pending Motions for Summary Judgment. Nor is it necessarily significant to observe that the Cuban nationals came here seeking political asylum and still seek that status today. What is pertinent and relevant are the circumstances, conditions and events immediately attendant, which precipitated these Cuban nationals being brought to the United States, in order to ascertain whether such bringing was "unlawful" and in violation of § 1323

Plaintiffs have established conclusively a viable uncontradicted defense of duress and coercion for their actions, which renders seizure of their vessels improper and entitles them to mitigation of fines assessed under 8 U.S.C. § 1323.

... The testimony is uncontroverted that Plaintiffs intended to transport only a limited number of specified persons, mostly relatives and friends, all of whom Plaintiffs assumed had valid visas for entry into the United States. Despite these intentions, Plaintiffs were required by armed soldiers of the Cuban government to take on board their vessels other Cuban nationals, whether documented or not. Testimony adduced at the hearing indicates that Cuban gunboats in fact prevented Plaintiffs from departing Mariel Harbor without bringing back Cuban nationals whose entry into the United States would, under the applicable immigration laws, be illegal. For example, one of the Plaintiffs herein, who sought to pick up 20 family members,

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    ...and, if necessary, recalculation. AFFIRMED in part, VACATED and REMANDED in part. --------------- 1 See Pollgreen v. Morris, 579 F.Supp. 711, 723 (S.D.Fla.1984), vacated, 770 F.2d 1536 (11th Cir.1985). The complex factual scenario of this case is comprehensively delineated in three publishe......
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