Sannon v. United States

• Decision Date: 11 October 1978
• Docket Number: 75-2124-Civ-JLK.,No. 74-428-Civ-JLK,74-428-Civ-JLK
• Citation: 460 F. Supp. 458
• Parties: Marie SANNON et al., Petitioners, v. UNITED STATES of America et al., Respondents. Ketley JEAN-BAPTISTE et al., Petitioners, v. UNITED STATES of America et al., Respondents.
• Court: U.S. District Court — Southern District of Florida

460 F. Supp. 458

Marie SANNON et al., Petitioners, v. UNITED STATES of America et al., Respondents.

Ketley JEAN-BAPTISTE et al., Petitioners, v. UNITED STATES of America et al., Respondents.

Nos. 74-428-Civ-JLK, 75-2124-Civ-JLK.

United States District Court, S. D. Florida.

October 11, 1978.

Donald I. Bierman, Ira Kurzban, Miami, Fla., for petitioners.

J. V. Eskenazi, U. S. Atty., Miami, Fla., for respondents.

MEMORANDUM OPINION

JAMES LAWRENCE KING, District Judge.

This case involves the fate of thousands of Haitians who are seeking an opportunity to present their claims for political asylum to the United States Immigration and Naturalization Service. It is now before the court on remand from the Fifth Circuit Court of Appeals, after a procedurally complex journey to the United States Supreme Court. In that august forum, the Solicitor General of the United States obtained a dismissal of the pending appeals upon the basis that the government intended to promulgate rules providing a full and fair evidentiary hearing for Haitian refugees. After a ten month hiatus, in which the government apparently labored valiantly to create such rules, their creation, the rules, are in their very enactment a denial of procedural fairness.

Stated another way, the Haitians have claimed that the way in which the Immigration and Naturalization Service ("INS") determined their political asylum claims was violative of the due process clause of the Fifth Amendment to the United States Constitution and Article 33 of the United National Convention and Protocol relating to the Status of Refugees ("Protocol").¹ This court previously upheld the claims of the refugees.² The issue now before the court is whether certain new regulations promulgated by the INS have rendered moot these claims. After carefully reviewing the record, this court has determined that the regulations in question were not promulgated in accordance with Section 4 of the Administrative Procedure Act.³ As a consequence, the court further finds that the new regulations are null and void and this case is not moot.

I. FACTUAL BACKGROUND

On April 4, 1974 Marie Sannon, and others initiated this case by filing a petition for a writ of habeas corpus.⁴ In their petition the petitioners allege that they are nationals of Haiti who covertly fled their country because of a well-founded fear of political persecution. They further allege that if returned to Haiti they would be imprisoned and tortured, or even executed. Upon their arrival in the United States, the petitioners claimed political asylum pursuant to the Protocol. Based merely upon brief pro forma interviews conducted by officers of the INS, the claims for political asylum were denied by the District Director of the INS. The determinations of the District Director, in turn, were routinely approved by the Department of State. Subsequent to this rejection of their political asylum claims, the petitioners were brought before an Immigration Judge who determined that they were excludable aliens because they did not possess proper documents. In accord with this finding, the petitioners were ordered deported. Furthermore, the Immigration Judge specifically refused to consider the political asylum claims on the grounds that he had no jurisdiction to make such a determination.

In their habeas corpus petitions, the petitioners seek judicial review of these summary proceedings. The core of the petitioners' claim is that this procedure violates both Article 33 of the Protocol and the due process clause of the Fifth Amendment to the United States Constitution. They contend, with regard to the Protocol, that they are vested with a right to parole into this country if they are bona fide political refugees. They claim, therefore, that the right to parole entitles them to a full evidentiary hearing before an Immigration Judge prior to any determination of their status as political refugees. The petitioners, in this context, further contend that a full hearing means nothing less than the right to present evidence in their own behalf, confront all adverse evidence, cross-examine adverse witnesses, present legal and other arguments, be represented by counsel, and be provided with a statement of reasons for the denial of claims. The petitioners also allege that since deportable aliens are accorded the above mentioned rights, such disparity in the treatment of different categories of aliens deprives excludable aliens of the equal protection of the laws and violates the terms of the Protocol.

On February 5, 1977, this court rendered its decision regarding these contentions. The court held that under the terms of the Protocol, the Immigration Judge had acted improperly in his refusal to hear evidence regarding the political asylum claims of the petitioners. In addition, this court held that the disparity between the procedures used in determining the claims of deportable aliens and those used in determining the claims of excludable aliens was improper under the Protocol.⁵ In accord with these findings, the cases were remanded to the INS, with explicit directions to provide "full, fair adversary hearings" in which the petitioners would be allowed to present evidence of their political refugee status before an Immigration Judge. The procedural history did not, however, end at this point. In order to understand the present posture of these cases, therefore, it is necessary to describe in detail the series of procedural events which occurred after the above decision of this court was rendered. It is to this journey that we turn next.

II. PROCEDURAL HISTORY

On March 7, 1977, three weeks after the decision of this court, the United States Court of Appeals for the Fifth Circuit rendered its decision in Pierre v. United States.⁶ Pierre similarly involved excludable Haitian aliens who claimed political asylum and requested parole into the United States pursuant to the Protocol. The petitioners in Pierre, just as the petitioners in this case, claimed that the INS procedures for determining the political asylum claims of excludable aliens were both constitutionally and statutorily inadequate. The Fifth Circuit, however, unlike this court, rejected the petitioners' claims. The court held that the determination of political refugee status is a matter of discretion to be exercised by INS officials. In addition, the court held that excludable aliens neither enjoy the protection of the United States Constitution, nor are they vested with any substantive rights by the Protocol. The INS procedures for determining political asylum claims were therefore found to be valid. The court further found that any such determination was reviewable by a federal district court only for an abuse of discretion.

Subsequent to the decision of the Fifth Circuit in Pierre, the government filed a notice of appeal from the decision of this court in Sannon. During the pendency of the appeal in Sannon, the Pierre petitioners filed a petition for a writ of certiorari in the Supreme Court of the United States.

The next procedurally significant event occurred in November, 1977. At that time, the government responded to the petition for a writ of certiorari by filing a memorandum suggesting that both the Pierre and Sannon cases had become moot. In the memorandum, the government stated that the INS was

presently in the process of changing procedures so that an applicant for admission to the United States will be allowed to present his asylum application to an Immigration Judge in the course of an exclusion hearing. . . .

The new procedures . . . will afford petitioners a hearing on their asylum claims before an immigration judge, which is the relief they seek in this case.⁷

Based upon this representation, the Supreme Court granted the writ of certiorari on November 28, 1977.⁸ The judgment of the Fifth Circuit in Pierre was vacated, and the case was remanded to the Fifth Circuit to consider the question of mootness.

On January 5, 1978, the Fifth Circuit vacated the opinion of this court in Sannon and remanded the case to this court for consideration in light of Pierre.⁹ Thereafter, on April 18, 1978, the Fifth Circuit remanded Pierre to the district court to consider the question of mootness. No further activity occurred until the commencement of the present series of hearings.

III. PRESENT POSTURE OF THE CASE

As a result of the above proceedings, and in view of the fact that there had been no activity in the Sannon case since it was remanded by the Fifth Circuit, this court set the case for a status conference to be held on September 8, 1978. At that hearing, counsel for both the United States and Marie Sannon agreed with the court that under the terms of the remand, the role of this court was to determine mootness in light of the promised INS regulations. During the course of this hearing, the petitioners informed the court that although the promised regulations had not yet been promulgated by the INS, exclusion hearings had been scheduled at the rate of thirty hearings per day commencing September 11, 1978. Upon the motion of the petitioners, the court entered a stay which prohibited these hearings until regulations were promulgated by the INS and the court had an opportunity to review those regulations to determine mootness.

On September 13, 1978, the new INS regulations regarding the conduct of exclusion hearings were published in the Federal Register.¹⁰ According to this publication, these regulations became effective immediately. On the day following publication, September 14, 1978, the government filed a motion to vacate the stay order. The petitioners subsequently filed a cross-motion to continue the stay order.

As the result of these motions, a hearing was held on September 19, 1978, to determine the effect of the newly promulgated regulations upon the status of this case. The petitioners argued that the regulations were not promulgated in accordance with ...