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

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
Citation496 F. Supp. 1042
Docket NumberNo. 80-1412-Civ-SMA,80-1414-Civ-SMA.,80-1412-Civ-SMA
PartiesThomas C. POLLGREEN, Floyd E. Roseman, Roberto Hernandez, Abelardo Vazquez, Plaintiffs, v. Raymond A. MORRIS, District Director of United States Immigration and Naturalization Service; Durward E. Powell, Regional Commissioner of United States Immigration and Naturalization Service; Douglas D. Angle, District Director of the United States Customs Service; Robert N. Battard, Regional Commissioner of the United States Customs Service, Defendants. John FERNANDEZ, Sr., Larry Foltz, Phillip D. Pierce, Rodolfo Rego, David Trujillo, John Montague, Jessie Marvin Hickman, Giddis Earl Hodges, Joseph D. Weed, Carolyn J. Knowles, Douglas J. Clark, Frank S. Stalls, Oliver J. McQuaig, Larry Foltz as Personal Representative of H. E. Morgan Estate, Larry Foltz as manager of certain shrimping vessel, Plaintiffs, v. Raymond A. MORRIS, District Director of United States Immigration and Naturalization Service; Durward E. Powell, Regional Commissioner of United States Immigration and Naturalization Service; Douglas D. Angle, District Director of the United States Customs Service; Robert N. Battard, Regional Commissioner of the United States Customs Service, Defendants.
Decision Date07 July 1980




Diane R. Tolbert, Key West, Fla., for plaintiffs in No. 80-1412-Civ-SMA.

Thomas J. Sireci, Jr., Key West, Fla., for plaintiffs in No. 80-1414-Civ-SMA.

Atlee W. Wampler, III, U. S. Atty., So. Dist. of Florida, by Robert I. Targ, Asst. U. S. Atty., Miami, Fla., Lauri Steven Filppu, Dept. of Justice, Washington, D. C., for defendants.


ARONOVITZ, District Judge.

The issues before the Court today arise from the seizure of 31 vessels, owned by 19 American citizens, which were used in the April through June, 1980 "Cuban Refugee Freedom Flotilla." Specifically, Plaintiffs' request for preliminary injunctive relief raises two related questions. First, whether the Government impermissibly denied the boat owners a prompt post-seizure hearing in derogation of the due process provisions of the Fifth Amendment and, second, whether the vessels in question were not properly subject to seizure because, at the time of the alleged illegal act, the owner or other person in charge of the vessel was acting under duress. These questions emerge here from the following series of extraordinary events.

In early April, 1980, Cuban citizens numbering in excess of 10,800, who maintained that they were political refugees, sought sanctuary in the Peruvian Embassy in Havana. Recognizing "that special circumstances 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." Further, 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 1980.1 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. 10.2

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. The following message, broadcast over numerous radio frequencies, contained the essence of the President's policy:

All United States citizens in Cuban ports and enroute Cuba are advised to return to the United States at this time. The U.S. Government will arrange alternative transportation. Vessels not under charter or hire by the U.S. Government are subject to heavy fines and possible seizure if they transport Cuban citizens in violation of U.S. Immigration laws. All U.S. boats in Mariel and those enroute to Cuba are advised to return to the United States without delay.

The flow of vessels and refugees returning from Mariel eventually began to decline and now has diminished to a trickle.

These consolidated actions3 were brought by 19 Plaintiffs who are owners, managing agents or captains of 31 vessels which participated in the "Freedom Flotilla," transporting various numbers of Cuban refugees from Mariel to Key West.4 The record reveals that the majority, if not all of the vessels received prior "clearance"5 from Customs officials to travel to Mariel. Upon return of the vessels to Key West, however, each Plaintiff was served with a Notice of Intention to Fine Under Immigration and Nationality Act. See Plaintiffs' Ex. # 3. The notices specifically referenced potential liability under 8 U.S.C. §§ 1321, 1323 and 1324. Further, Plaintiffs' vessels were seized by the U.S. Customs Service and U.S. Immigration and Naturalization Service,6 and the owner, master or captain of each vessel signed an "Agreement and Notice" to that effect.7See Government's Exhibit # 4. This "Agreement and Notice" also references potential liability and the possibility of forfeiture for violations of 8 U.S.C. §§ 1321-1325, as well as numerous other statutes.

On or about June 4, 1980, Plaintiffs demanded return of their vessels or, alternatively, that they be permitted to avail themselves of the administrative mechanisms set forth in 8 C.F.R. Part 274 which provide for the expeditious return to the owner of vessels improperly seized under 8 U.S.C. § 1324. Representatives of the Customs Service and the Immigration and Naturalization Service advised Plaintiffs that the vessels would not be returned at that time, that the administrative mechanisms set forth in 8 C.F.R. Part 274 were unavailable, and that Plaintiffs' recourse was to challenge the imposition of the fines under 8 C.F.R. Part 280.

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.

On June 16, 1980, a full-day evidentiary hearing was held on Plaintiffs' request for preliminary injunctive relief. The sole relief Plaintiffs seek by preliminary injunction is the return of their vessels for normal commercial fishing use. The issues raised by Plaintiffs were briefed and argued. In addition, the Court received testimony, exhibits and affidavits submitted by the parties. The Court has carefully considered the entire record from the June 16 proceedings and herein makes its findings of fact and conclusions of law as required by Fed. R.Civ.P. 52. For the reasons which follow, the Court today enters a preliminary injunction, the contours of which are set forth in detail below.

The Court is, of course, aware of the controversy surrounding the Cuban Freedom Flotilla and the substantial problems it has created for this country and, in particular, South Florida. We hasten to add, however, that the decision here neither reflects approval of Plaintiffs' participation in the Freedom Flotilla nor criticism of the Government's decision to fine or prosecute Plaintiffs for their participation. At root, the controversy here reflects a basic contradiction between, on the one hand, America's tradition of providing sanctuary for the homeless, the outcast and, particularly, the political refugee and, on the other, our immigration laws. That tension finds expression in the discomfiting question of who, and how many, can come to this country and in what circumstances. Resolution of that tension through promulgation and enforcement of a coherent immigration policy is a matter within the province of the Legislative and Executive Branches of government. This Court has neither the willingness nor the competence to interject itself into the arena of immigration policy, except insofar as such a policy runs afoul of constitutional and statutory safeguards, as is the case here.


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