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HAITIAN CTRS. COUNCIL, INC. v. MCNARY

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK


November 12, 1992

HAITIAN CENTERS COUNCIL, INC., NATIONAL COALITION FOR HAITIAN REFUGEES, INC., IMMIGRATION LAW CLINIC OF THE JEROME N. FRANK LEGAL SERVICES ORGANIZATION, OF NEW HAVEN CONNECTICUT; 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 OTHER SIMILARLY SITUATED; A. IRIS VILNOR ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED; MIREILLE BERGER, YVROSE PIERRE AND MATHIEU NOEL ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs,
v.
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, Defendants.

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

MEMORANDUM AND ORDER

 Johnson, District Judge:

 The Plaintiffs commenced this class action seeking declaratory and injunctive relief arising from the Government's actions against Haitians and Haitian Service Organizations following the military coup that overthrew the government of Jean-Bertrand Aristide on September 30, 1991.

 The Complaint states the following causes of action: 1) First Claim for Relief alleges that the Haitian Service Organizations have been denied their First Amendment right of access to their clients on Guantanamo; 2) Second Claim for Relief alleges that the Haitian plaintiffs have been denied their statutory right to obtain and communicate with counsel in violation of 8 U.S.C. § 1362 and 8 C.F.R. § 208.9; 3) Third Claim for Relief states that the Haitian plaintiffs have been denied their constitutional rights to obtain and communicate with counsel in violation of the first and fifth Amendment; 4) Fourth Claim for Relief alleges that the Government failed to follow rulemaking procedures set forth in the Administrative Procedure Act ("APA"), 5 U.S.C. § 551, et. seq. in Initiating new policies and practices; 5) Fifth Claim for Relief charges the Government's with a "pattern and practice of intimidating and coercing plaintiffs, of discouraging and diminishing their rights to asylum and to alternative-country placement, and of willfully relying upon false information and prejudicial biases to effect forced repatriations and to deny individual asylum claims on their merits are arbitrary and capricious, an abuse of discretion, not in accordance with law, and reviewable by this court" under the APA, 5 U.S.C. § 701 et. seq.; 6) Sixth Claim for Relief states that the Government has a mandatory duty not to return political refugees to a country where they will face persecution and to provide adequate procedures to examine colorable asylum claims under Article 33 of the United Nations Convention Relating to the Status of Refugees, the Refugee Act of 1980, the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1253(h), Executive Order 12324, the U.S.-Haiti Agreement, Agreement Effected by Exchange of Notes, signed at Port-au-Prince September 23, 1981, and the Immigration and Naturalization Service ("INS") guidelines; and 7) Seventh Claim for Relief alleges that the Government has "denied plaintiffs the equal protection of the laws by creating and operating an unauthorized, separate and unequal, asylum track for Haitians only."

 The Government moves to the dismiss the Complaint pursuant to Fed. R. Civ. P. ("Rule") 12(b)(6) for failure to state a claim. For the reasons stated below, the Government's Motion to Dismiss is granted in part and denied in part.

 I. Background1

 A. The First Injunction

 On March 17, 1992, the Plaintiffs filed an order to show cause with supporting affirmations as an "emergency matter" on this Court's Miscellaneous docket which was subsequently referred to the civil docket and assigned to this judge. That same afternoon this court heard oral argument from both Plaintiffs' and Government's counsel on Plaintiffs' application for a temporary restraining order ("TRO") and their demand for expedited discovery. The following morning, this Court heard more oral argument and the Plaintiffs filed a complaint seeking declaratory and injunctive relief. During oral argument, the Government asserted that Plaintiffs were wholly precluded from bringing this suit by the prior litigation in Haitian Refugee Center, Inc. v. Baker.2

 This Court took the matter under advisement and requested that the parties brief certain issues related to the TRO. The Government filed their Memorandum in Opposition to Plaintiffs' Motion for a Temporary Restraining Order, a Motion to Dismiss pursuant to Rule 12(b)(6) for failure to state a claim, and a Motion for Rule 11 Sanctions on March 20, 1992. *fn3" Plaintiffs filed reply papers on March 23, 1992. After reviewing the papers, the Court found that the Plaintiffs' papers raise sufficient questions of law and fact to conclude that the Baker litigation did not entirely preclude the present action and issued a TRO on March 27, 1992. *fn4"

 Five days later the Court held a hearing on Plaintiff's application for a preliminary injunction. On April 6, 1992, the Court issued a preliminary injunction after finding that the Plaintiffs had made a showing of irreparable harm and a likelihood of succeeding on the merits. The court specifically concluded that: 1) the Government's denial of access to the Haitian Service Organization appears to be a content based restriction on speech; 2) the statutory right to counsel under 8 U.S.C. § 1362 and 8 C.F.R. § 208.9 does not extend to the Haitian aliens beings detained on Guantanamo; and 3) the Screened In Plaintiffs are entitled to the protection of the Fifth Amendment. In addition, the Court ruled that the Screened Out Plaintiffs represented by Iris Vilnor was bound by the outcome of Baker.

 The Government filed an appeal from this Court's April 15, 1992 order clarifying the relief granted in its April 6, 1992 Memorandum and Order on April 18, 1992. Four days later the Supreme Court granted the Government's application for a stay of this order pending the Second Circuit's disposition of the appeal. On June 10, 1992, the Second Circuit affirmed and modified this Court's April 6th preliminary injunction in Haitian Centers Council, Inc. v. McNary, 969 F.2d 1326 (2d Cir. 1992). Without addressing the First Amendment claim of the Haitian Service Organizations, the Court of Appeals agreed that there were serious questions going to the merits of the Screened In Plaintiffs' Fifth Amendment claims. On September 23, 1992, the Government filed a petition seeking certiorari with the United States Supreme Court.

 B. The Second Injunction

 While awaiting a decision from the Court of Appeals on the appeal from the first injunction, the Government substantially altered its policy toward Haitian refugees fleeing the political upheaval in Haiti. On May 24, 1992, the President issued an Executive Order directing the United States Coast Guard to return any Haitian interdicted beyond the territorial waters of the United States directly to Haiti without being afforded the opportunity to undergo INS refugee screening. Plaintiffs quickly moved on Order to Show Cause for a temporary restraining order pursuant to Fed. R. Civ. P. 65 restraining the Government from acting pursuant to the May 24th Executive Order.

 At a hearing on May 29, 1992, the Plaintiffs argued that the new policy violated Section 243(h) of the INA, Article 33 of the United Nations Convention relating to the Status of Refugees and the 1981 U.S.-Haiti Executive Agreement. On June 6, 1992, the court denied Plaintiff's application for a preliminary injunction.

 The Plaintiffs immediately appealed to the Second Circuit Court of Appeals. On July 29, 1992, the Court of Appeals reversed this Court's June 6th order denying a preliminary injunction finding that the language of § 243(h) of the INA imposes a mandatory duty upon the United Stated not to return aliens to their persecutors, no matter where in the world those actions are taken. Haitian Centers Council, et. al. v. McNary, 969 F.2d 1350 (2d Cir. 1992). On August 1, 1992, the Supreme Court granted the Government's application for a stay pending filing of a petition of a writ of certiorari. The Supreme Court recently granted the Government's petition seeking certiorari on this question in McNary v. Haitian Centers Council, Inc., 113 S. Ct. 52, 121 L. Ed. 2d 22, 61 U.S.L.W. 3256 (Oct. 5, 1992).

 II. Analysis

 A. Rule 12(b)(6) Standard

 The Court will examine the Plaintiff's claims under Rule 12(b)(6). "The court's function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Festa v. Local 3 International Brotherhood of Electrical Workers, 905 F.2d 35, 37 (2d Cir. 1990). The court must accept the facts as alleged in the complaint as true. Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991). A motion to dismiss must be denied "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686 (1974) (citing Conley v. Gibson, 355 U.S. 41, 45-6, 78 S. Ct 99 (1957).

 B. Failure to Follow Rulemaking Procedures

 Plaintiff's Fourth Claim for Relief alleges that the Government failed to follow rulemaking procedures under the Administrative Procedure Act ("APA"), 5 U.S.C. § 551, et. seq. in implementing its new policy for rescreening "screened-in" Haitians as set forth in the Rees memorandum. *fn5"

  Section 553, the APA's notice and comment provision, provides the following:

 

(b) General notice of proposed rule making shall be published in the Federal Register . . . .

 

The notice shall include--

 

(1) a statement of the time, place, and nature of public rule making proceedings;

 

(2) reference to the legal authority under which the rule is proposed; and

 

(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.

 5 U.S.C.A. § 553. This subsection does not apply to "interpretative rules, general statements of policy, or rules of agency organization, procedure or practice." Id.

 The Government asserts that the Rees memorandum falls within the exceptions to the rulemaking requirement for general statements of policy and matters relating to foreign affairs. In construing the exemption for "interpretative rules" or "general statements of policy", the Second Circuit has held that a rule which changes existing rights or obligations is not exempt regardless of how the agency describes it. But, a rule which does not change substantive rights or obligations may be exempt. New York v. Lyng, 829 F.2d 346, 353-54 (2d Cir. 1987); Noel v. Chapman, 508 F.2d 1023, 1030 (2d Cir.), cert. denied, 423 U.S. 824 (1975). General statements of policy are directed primarily at the staff of an agency describing how it will conduct discretionary functions. Other rules are directed at the public and impose obligations on them. Noel v. Chapman, 508 F.2d at 1030.

 The purpose of the Rees memorandum is to provide general guidance to INS officers on how to conduct interviews with screened in Haitian aliens who suffer from communicable disease. It instructs INS officers to conduct a second round of interviews identical and form and substance to those conducted by asylum officers to determine whether asylum should be granted to an applicant already in the United States. It is directed solely at INS agency officials. Although the directive makes screened in Haitians to undergo a second round of interviews, it does not change the criteria they must meet in order to receive asylum. The Court must conclude that the Rees memorandum constitutes a general statement of policy for the purposes of § 553. Therefore, Plaintiffs' Fourth Claim for Relief is dismissed for failure to state a claim.

 C. Arbitrary and Capricious Agency Action Not In Accordance With Law

 Plaintiff's Fifth Claim for Relief alleges that the Government's conduct is arbitrary and capricious and an abuse of discretion under 5 U.S.C. § 701 et seq. An abuse of discretion under 5 U.S.C. § 706(2)(A) can be shown by demonstrating a violation of constitutional, statutory, or regulatory mandates. Perales v. Sullivan, 948 F.2d 1348, 1354 (2d Cir. 1991). The Plaintiffs allege that the Government has violated Section 243(h) of the INA, the President's Executive Order No. 12324 of September 1981 and INS Guidelines. Therefore, the Court finds that Plaintiffs' Fifth Claim for Relief satisfied the requirements of Rule 12(b)(6).

 D. Judicial Enforceability of Non-Refoulement

 When this Court first addressed this issue, it concluded that § 243(h) was inapplicable to Haitian aliens in international waters. On appeal, the Second Circuit Court of Appeals reversed this Court's order and found that § 243(h) applied to all aliens. Thus, the plain language of the statute imposes a mandatory and judicially enforceable duty upon the United States not to return aliens to their persecutors. Haitian Centers Council, Inc. v. McNary, 969 F.2d 1350 (2d Cir. 1992). In light of this holding, the Court finds that the Plaintiffs' Sixth Claim for Relief to be legally sufficient under Rule 12(b)(6).

 D. Equal Protection

 The Seventh Claim for Relief alleges that "since the September 1991 coup, defendant officials have denied plaintiffs the equal protection of the laws by creating and operating an unauthorized, separate and unequal asylum track for Haitians only." The Complaint further alleges that the current asylum system denies Haitian refugees the substantive and procedural rights enjoyed by asylum applicants of other racial and national groups.

 The Government argues that the Complaint fails to state a cause of action because Haitian aliens outside the borders of the United States have no fifth amendment rights not given to them by Congress. This Court disagrees. I previously held that the Screened In Plaintiffs are "persons" and entitled to the protection of the Fifth Amendment. *fn6" On affirming this court's issuance of the first injunction, the Second Circuit noted that "applying the fifth amendment would not appear to be either 'impracticable' or 'anomalous' since the United States has exclusive control over Guantanamo Bay, and given the undisputable applicability of federal criminal laws to incidents that occur there." Haitian Centers Council, Inc. v. McNary, 969 F.2d at 1343.

 Although the Fifth Amendment contains no equal protection clause, if forbids discrimination that is "so unjustifiable as to be violative of due process." Bolling v. Sharpe, 347 U.S. 497, 499, 74 S. Ct. 693, 694 (1954). This Court recognizes that the executive branch is afforded substantial discretion to make nationality-based distinctions among aliens. American Baptist Churches in the U.S.A. v. Meese, 712 F. Supp. 756, 772 (N.D. Cal. 1989). Nevertheless, these decisions may be reviewed for equal protection violations. Id.; Hotel & Restaurant Employees Union, Local 25 v. Smith, 563 F. Supp. 157, 103 (1983).

 D. Other Claims

 When this Court entered a preliminary injunction in favor of the Plaintiffs on April 3, 1992, it concluded that the Plaintiffs were likely to succeed on the merits of Counts One and Three of the Complaint. In doing so, the Court necessarily found that these claims satisfied the requirements of Rule 12(b)(6).

 Finally, the Court also found that as a matter of law 8 U.S.C. § 1362 and 8 C.F.R. § 208.9 did not apply extraterritorially. Therefore, the Second Claim for Relief fails to state a claim and is dismissed.

 III. CONCLUSION

 For the reasons stated above, the Government's Motion to Dismiss the Complaint for failure to state a claim is granted with respect to Plaintiffs' Second and Fourth Claims for Relief and is hereby denied with respect to all other claims.

 So Ordered.

 Sterling Johnson, Jr.

 United States District Judge

 Dated: Brooklyn, New York

 November 12, 1992


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