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HAITIAN CTRS. COUNCIL, INC. v. MCNARY

March 27, 1992

HAITIAN CENTERS COUNCIL, INC., ET. AL., Plaintiff, against GENE MCNARY, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, ET. AL., Defendant.


The opinion of the court was delivered by: STERLING JOHNSON, JR.

MEMORANDUM AND ORDER

 Johnson, District Judge:

 This cause of action arises on the application of the following (hereinafter "the Plaintiffs"): Haitian Centers Council, Inc., National Coalition for Haitian Refugees, Inc., Immigration Law Clinic of the Jerome N. Frank Legal Services Organization, (the "Haitian Service Organizations"), Dr. Frantz Guerrier, Pascal Henry, Lauriton Guneau, Medilieu Sorel St. Fleur, Dieu Renel, Milot Baptiste, Jean Doe, and Roges Noel on behalf of themselves and all others similarly situated (the "Screened In Plaintiffs") *fn1" ; A. Iris Vilnor on behalf of herself and all others similarly situated (the "Screened Out Plaintiffs"); and Mireille Berger, Yrose Pierre and Mathieu Noel on behalf of themselves and all other similarly situated (the "Immediate Relative Plaintiffs") for a Temporary Restraining Order pursuant to F.R.C.P. 65. The defendants in this action are Gene McNary, Commissioner, Immigration and Naturalization Service; William P. Barr, Attorney General; Immigration and Naturalization Service; James Baker, III, Secretary of State; Rear Admiral Robert Kramek and Admiral Kime, Commandants, United States Coast Guard; and Commander, U.S. Naval Base, Guantanamo Bay (collectively, the "Defendants" or the "Government"). Plaintiffs seek to restrain the Defendants from:

 1) denying plaintiff Haitian Service Organizations access to their clients for the purpose of providing such clients legal counsel, advocacy, and representation;

 2) interviewing, screening, or subjecting to exclusion or asylum proceedings any Haitian citizen currently being detained on Guantanamo, on Coast Guard cutters, or in territory subject to United States jurisdiction who is being denied or has been denied his or her right to communicate with counsel; and

 3) returning to Haiti any Haitian citizen currently detained at Guantanamo, on the Coast Guard cutters, or in territory subject to U.S. jurisdiction, who has been "screened-out" without the benefit or advice of counsel.

 BACKGROUND

 In December 1990, the country of Haiti held its first fully democratic elections in over 200 years and elected Jean Bertrand Aristide as President. On September 30, 1991, President Aristide was overthrown in a military coup and thousands of Haitians attempted to escape the country's upheaval by fleeing onto the high seas in boats. The United States Coast Guard began interdicting an increasing number of vessels carrying Haitian refugees on the open seas. *fn2" The United States temporarily suspended it program of repatriation of interdicted Haitians. On November 18, 1991, the United States announced it had begun the forced return of refugees who were "screened out" by the Immigration and Naturalization Service ("INS") had determined not to be entitled to political asylum. *fn3"

 a. The Baker Litigation

 The following day, the Haitian Refugee Center (hereinafter "HRC") and individual Haitian refugees (hereinafter "Named Haitian Plaintiffs") on behalf of themselves and all others similarly situated filed a complaint (Haitian Refugee Center v. Baker, Dkt. No. CV-91-2635, S.D. Fla.) (hereinafter "Baker ") for Declaratory Judgment and Injunctive Relief, and an Application for Temporary Restraining Order (the "First TRO") in the United States District Court for the Southern District of Florida. The defendants named therein were James Baker, III, Secretary of State; Rear Admiral Robert Kramer and Admiral Kime, Commandants, United States Coast Guard; Gene McNary, Commissioner, Immigration and Naturalization Service; The United States Department of Justice; Immigration and Naturalization Service; and The United States of America.

 Following a ex parte hearing on November 19, 1991, the Florida district court issued the First TRO which directed the defendants to restrain "from continuing to repatriate Haitians currently on board U.S.-flagged vessels and Haitians currently being held on land under United States' control and at Guantanamo Bay, Cuba." On December 3, 1991, the district court issued an order granting preliminary injunctive relief specifically enjoining the defendants from "forcefully repatriating the individual plaintiffs or class members in their custody either until the merits of the underlying action are resolved or until defendants implement and follow procedural safeguards adequate to ensure that Haitians with bona fide claims of political persecution are not forcefully returned to Haiti." *fn4"

 The court found that the plaintiffs were likely to succeed on the merits of two judicially enforceable claims: 1) HRC's First Amendment right of association and to counsel; and 2) the Named Haitian Plaintiffs' right of non-refoulement *fn5" which arises under Article 33 of the 1967 United Nations Protocol Relating to the Status of Refugees. The court also issued an order stating the action could be maintained as a class action without holding a hearing or altering the class definition. In their Memorandum in Support of Motion for Class Action Certification ("HRC Mem."), the Baker plaintiffs defined the class as follows:

 The individual plaintiffs are all Haitian emigres who were intercepted by the United States Coast Guard pursuant to a "program of interdiction" that permits interception and repatriation of undocumented aliens. They are presently being held on Coast Guard cutters and at the U.S. Naval base in Guantanamo. They have all been 'screened out ' and thus are injured by the failure of the INS to observe rules and procedures designed to ensure that no person who is a political refugee will be returned without his consent. Id. at 2 (emphasis added).

 In other words, the class of plaintiffs involved in the Baker litigation were limited to individuals who had already been screened out by INS.

 The Eleventh Circuit dissolved this injunction on December 17, 1991 ("Baker App.I") and remanded the case with instructions that the Article 33 claim be dismissed on the merits. In Baker App.I, the Court of Appeals found that 1) the injunction was overbroad; 2) the relief granted did not address the right of access asserted by the Haitian Refugee Center; and 3) Article 33 of the 1976 United Nations Protocol Relating to Status of Refugees is not self-executing, and thus provides no enforceable rights to Haitians who had not reached United States territory. Haitian Refugee Center v. Baker, 949 F.2d 1109 (11th Cir. 1991).

 The district court subsequently issued another TRO (the "Second TRO") on the plaintiffs' claim that defendants failed to follow the procedural requirements of the Administrative Procedure Act ("APA"), 5 U.S.C. § 555(b), 557, 558 and 702. On December 19, 1991, the Eleventh Circuit deemed the Second TRO a preliminary injunction and stayed it pending appeal on the ground that it was likely that the government would prevail on the merits of the APA claim ("Baker App.II").6

 The following day, the district court entered a preliminary injunction ordering defendants to grant plaintiffs' lawyers access to the interdicted class members. On December 23, 1991, the court entered a second preliminary injunction on the ground that the plaintiffs were likely to succeed on the merits of their APA claim and simultaneously ...


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