Of the remaining plaintiffs in the present action, all of the Haitian Service Organizations are new and two of the three plaintiff classes are new parties. The immediate relatives of "screened in" Haitians and all those similarly situated make up an entirely new plaintiff class which was not a party to the Baker litigation. In addition, the Haitian plaintiffs in the present action consist of a new "screened in" class of refugees who were not included in the Baker class: Finally, the Haitian Service Organizations in this action differ from the plaintiff organization (Haitian Refugee Center) in Baker.
Therefore, it appears that res judicata is inapplicable to the Haitian Service Organizations, the Screened In Plaintiffs and the Immediate Relative Plaintiffs.
II. Subsequent and Changed Conduct
Res judicata is also inapplicable where neither conduct complained of nor the claim had not arisen at the time of the first suit. Prime Management Co., Inc. v. Steinegger, 904 F.2d 811 (2d Cir. 1990); N.L.R.B. v. United Technologies Corp., 706 F.2d 1254 (2d Cir. 1983); see generally Wright, Miller & Cooper, 18 Federal Practice and Procedure § 4409 (West 1981). That certainly appears to be true in present action. Plaintiffs' complaint is based upon new circumstances or conduct that occurred after the Baker litigation and it is such conduct that gives rise to a new cause of action. Specifically, the present complaint alleges that during the Baker litigation the defendants represented:
Under current practice, any aliens who satisfy the threshold standard are to be brought to the United States so that they can file an application for asylum under Section 208.02 of the Immigration and Nationality Act (INA), 80 SL sec. IJ8(a). These 'screened in' individuals then have the opportunity for a full adjudicatory determination of whether they satisfy the statutory standard of being a 'refugee' and otherwise qualify for the discretionary relief of asylum. Complaint P34(f) (citing Opposition to Certiorari, Baker App. III, at 3.).
Five days after the Supreme Court denied certiorari, the INS began implementing procedures to interview or screen individuals who had been "screened in."
Plaintiffs allege that the Screened In Plaintiffs contacted the Haitian Service Organizations seeking legal assistance on March 2, 1992. Plaintiffs learned on March 10th that asylum officers arrived in Guantanamo to begin adjudicating asylum claims of the some of the "screened in." The next day, counsel to the Haitian Service Organizations wrote to defendant McNary and the Commanding Officer of the U.S. Naval Air Station, Guantanamo Bay, requesting access to the Screened In Plaintiffs and the Screened Out Plaintiffs by March 16, 1992. To date, Plaintiffs' counsel has received no response.
Plaintiffs allege that the Government is re-screening and adjudicating asylum claims not only for HIV positive refugees as the government contends but many if not all the "screened in" Haitians on Guantanamo. These re-screenings and adjudications are allegedly being conducted without providing the refugees the opportunity to obtain and communicate with counsel. Presuming the complaint true for present purposes -- apecifically, that the Government's conduct began subsequent to the Baker litigation -- it appears that this conduct gives rise to new claims, making res judicata inapplicable.
b. Issuance of a Temporary Restraining Order
A court may issue an temporary restraining order upon a showing or irreparable harm and for the purpose of preserving the status quo long enough to hold a hearing. Warner Bros. Inc. v. Dae Rim Trading Inc., 877 F.2d 1120, (2d Cir. 1989), citing Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 39 L. Ed. 2d 435, 94 S. Ct. 1113 (1974).
Here, the plaintiffs have made a showing of irreparable harm by a preponderance of the evidence. According to the plaintiffs, aliens are three times more likely to receive asylum in an exclusion or deportation hearing, and twice as likely to success in an affirmative asylum claim when represented by counsel. If the Screened In Plaintiffs on Guantanamo are not afforded asylum, are "screened out" and are ultimately repatriated to Haiti, they face irreparable injury to life and liberty.
Since the military overthrow of President Jean Bertrand Aristide on September 30, 1991, reportedly over fifteen hundred Haitians, many of them supporters of Aristide, have been killed, tortured, or subjected to violence and the destruction of their property because of their political beliefs. Hundreds of people have been detained without warrant or executed extrajudicially. Thousands of people have been forced into hiding.
There are reports that Haitians who have been repatriated since November 1991 are interviewed, fingerprinted and photographed upon their arrival in Port-au-Prince. Apparently, over 200 Haitians who were repatriated from Guantanamo have been imprisoned. The are approximately forty repatriated Haitians who have fled for a second time (also known as "Double-Backers") and are currently being detained on Guantanamo. The Double-Bakers lend further credence to reports of the widespread violence that is occurring. See, Some Haitians Assert Abuse Forced Second Flight, N. Y. Times, Feb. 10, 1992 at A1.
Given that at a preliminary injunction hearing the Plaintiffs are likely to prove their assertions that there are new parties and/or new claims in the instant action, the merits of this action will need to be addressed. Serious questions going to such merits are raised by the papers and oral argument so far presented to this court. In particular, I am quite disturbed that the Government asserts that the court lacks the power to restrain conduct by United States officials that is arbitrary, capricious and perhaps even cruel. (See Hearing Transcript at p.39) when such conduct occurs on territory that is subject to United States jurisdiction.
Worse yet, the Government asserts that this court must sit mute when Congress mandated:
In any exclusion or deportation proceedings before a special inquiry officer . . ., the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.
8 U.S.C.A. § 1362. Additionally, INS's regulations specifically provides that an alien "shall be advised of his right to representation by counsel of his choice at no expense to the Government." 8 C.F.R. § 242.1(c) (1990). In light of the foregoing, serious issues are raised which warrant the issuance of the TRO herein granted and, moreover, a fuller exploration of the merits of this action at a preliminary injunction hearing.
Defendants demands that plaintiffs to post a $ 10,0000,000 bond as security. In light of the Government's failure to substantiate its demand for a $ 10 million bond, the plaintiffs' indigence, and the important questions raised in this case, the court will exercise its discretion and waive the bond. See United States v. Bedford Associates, 618 F.2d 904, 916-17 n.23 (2d Cir. 1980).
For the foregoing reasons, it is hereby:
ORDERED, that sufficient reason having been shown therefore, pending the hearing for the plaintiffs' application for a preliminary injunction, pursuant to Federal Rule 65, defendants are temporarily restrained and enjoined from:
a) denying plaintiff service organizations access to their clients for the purpose of providing them legal counsel, advocacy, and representation;
b) interviewing, screening, or subjecting to exclusion or asylum proceedings any Haitian citizen currently being detained on Guantanamo, or in any other territory subject to U.S. jurisdiction (I) who has been screened in or who was screened in prior to the Baker litigation and has since been screened out and (ii) who is being denied or has been denied his or her right to communicate with counsel; and it is further
ORDERED that expedited discovery be granted, thereby in accordance with the following scheduling order:
(i) defendants' must produce documents for inspection and copying on or before March 31, 1992; and (ii) plaintiffs are granted leave to serve and depose Defendants on or before April 1, 1992 at 9:00 a.m.; and it is further
ORDERED, that the defendants or their attorneys show cause before The Honorable Sterling Johnson, Jr., United States District Judge, at the United States Courthouse in the Eastern District of New York, 225 Cadman Plaza, Brooklyn, New York, in courtroom 14 at 9:00 a.m. on April 1, 1992, why an order should not be entered granting Plaintiffs' request for Preliminary Injunction pursuant to Federal Rule of Civil Procedure 65 thereby in accordance with the terms of the TRO issued herein or as otherwise may be deemed just and proper.
Sterling Johnson, Jr.
UNITED STATES DISTRICT JUDGE
Dated: Brooklyn, New York
March 27, 1992