distinguished. In Ukrainian-American Bar Ass'n v. Baker, the plaintiff attorneys sought access, at government expense, to a forum to which no other non-governmental person had been given access id. at 1381-82 and where the restrictions at issue were neither content- nor view point-based. Id. at 1381. Moreover, in Ukrainian-American, plaintiffs sought access to a potential alien client who had neither retained the plaintiff as counsel nor asserted a right to speak with counsel. Id.
Here, the Haitian Service Organizations have been retained by the Screened In Plaintiffs and have asserted a right to speak with their clients, the screened-in Haitians. The lawyers here seek only to communicate, at their own expense, with clients who have specifically sought them out. Countless persons other than the Haitians' lawyers have been permitted to visit, to consult with, and to give advice to the Haitians detained at Guantanamo. The Court thus finds that the lawyers for the Haitian Service Organizations have been barred because of the viewpoint of the message they seek to convey to the Haitians, in violation of the First Amendment. Such Government discrimination against disfavored viewpoints strikes at the heart of the First Amendment. See, e.g., Travis v. Owega - Appalachian School Dist., 927 F.2d 688, 693-94 (2d Cir. 1991). The right of the Haitian Service Organizations to impart information or otherwise exercise their own First Amendment rights does not depend on whether the screened-in Haitians have an independent right to counsel. See Procunier v. Martinez, 416 U.S. 396, 408-09, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974) (First Amendment rights of correspondents to uncensored communication with prisoners does not depend on the status of prisoners' claim). That aliens are inside a detention camp does not "bar free citizens from exercising their own constitutional rights by reaching out to those on the 'inside,'" Thornburgh v. Abbott, 490 U.S. 401, 407, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989) (citation omitted). Therefore, the Court does not reach the question of whether the Haitian detainees at Guantanamo have a First Amendment right.
IV. Due Process
Plaintiffs' Third Claim for Relief in the Amended Complaint states that the Government has violated the Screened In Plaintiffs' due process rights under the Fifth Amendment. The Due Process Clause is phrased in universal terms, protecting any "person," rather than members of "the people." U.S. Const. Amend. V. The U.S. Naval Base at Guantanamo Bay, Cuba, is subject to the exclusive jurisdiction and control of the United States where the criminal and civil laws of the United States apply. HCC I, 969 F.2d at 1342 (citing United States v. Lee, 906 F.2d 117, 117 & n.1 (4th Cir. 1990). The courts have protected the fundamental constitutional rights of noncitizens in other territories subject to exclusive U.S. jurisdiction and control, including the former American Sector of Berlin, the Canal Zone, and the Pacific Trust Territories. United States v. Tiede, 86 F.R.D. 227, 249-53 (U.S. Ct. Berlin 1979), Government of Canal Zone v. Scott, 502 F.2d 566, 568 (5th Cir. 1974), Ralpho v. Bell, 186 U.S. App. D.C. 368, 569 F.2d 607, 618-19 (D.C. Cir. 1977), Nitol v. United States, 7 Cl. Ct. 405 (1985).
The Supreme Court has long held that aliens outside the United States are entitled to due process in civil suits in United States courts. Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 94 L. Ed. 2d 92, 107 S. Ct. 1026 (1987). Constitutional and other fundamental rights apply to citizens and noncitizens outside the United States who encounter official U.S. action. Asahi Metal Indus. Co., 480 U.S. 102, 94 L. Ed. 2d 92, 107 S. Ct. 1026; Reid v. Covert, 354 U.S. 1, 1 L. Ed. 2d 1148, 77 S. Ct. 1222 (1957); United States v. Streifel, 665 F.2d 414 (2d Cir. 1981); United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974).
As the Second Circuit decided, there is "no principled basis for concluding that the 'screened in' plaintiffs detained at the base would have fewer substantive rights" than aliens "arrested and accused . . . at Guantanamo." HCC I, 969 F.2d at 1343. Moreover, it would not be "incongruous or overreaching to conclude that the United States Constitution limits the conduct of United States personnel with respect to officially authorized interactions with aliens brought to and detained by such personnel on a land mass exclusively controlled by the United States." HCC I, 969 F.2d at 1343. Nor would it be either "impracticable" or "anomalous" to apply the Due Process Clause to screened-in Haitians held in U.S. custody on Guantanamo. These
"interdicted Haitians are not 'some undefined, limitless class of noncitizens who are beyond our territory,' they are instead an identifiable group of people who were interdicted by Americans in international waters pursuant to a binding Agreement Between the United States of America and Haiti, and who have been detained on territory that is subject to the exclusive control of the United States . . . . In this case the United States has exercised its 'undoubted power . . . to take actions to assert its legitimate power and authority abroad,'. . . in both interdicting and bringing these Haitians to territory controlled by the United States."
HCC I, 969 F.2d at 1343 (citations omitted). These Haitians are at a military base solely because defendants chose to take them there. The United States government has already bound itself by treaty not to "impose penalties" on persons it has recognized as refugees, who flee to the United States "directly from a territory where their life or freedom was threatened" on account of political persecution. U.N. Refugee Convention, art. 31.1. If the Due Process Clause does not apply to the detainees at Guantanamo, Defendants would have discretion deliberately to starve or beat them, to deprive them of medical attention, to return them without process to their persecutors, or to discriminate among them based on the color of their skin.
When this Court issued the first preliminary injunction in this case, it found that the Haitian detainees had a due process right to counsel under the Fifth Amendment. The Government has continued to detain the Screened In Plaintiffs. In fact, the Haitian detainees have been confined for nearly two years. As the Haitians' ties to the United States have grown, so have their due process rights. Johnson v. Eisentrager, 339 U.S. 763, 770-71, 94 L. Ed. 1255, 70 S. Ct. 936 (1950). The Haitian detainees are imprisoned in squalid, prison-like camps surrounded by razor barbed wire. They are not free to wander about the base. Guarded by the military day and night, the Screened In Plaintiffs are subject to surprise predawn military sweeps conducted by soldiers outfitted in full riot gear searching for missing detainees. Haitian detainees have been punished for rule infractions by being flexicuffed and sent to "administrative segregation camp" (Camp Alpha or Camp 7) or the brig. Such conditions cannot be tolerated when, as here, the detainees have a right to due process.
A. Access to Counsel During "Well-Founded" Interviews
The Screened In Plaintiffs have a protected liberty interest in not being wrongly repatriated to Haiti, Yiu Sing Chun v. Sava, 708 F.2d 869, 877 (2d Cir. 1983), and to due process before defendants alter their screened in status. HCC I, 969 F.2d at 1345. The Haitian detainees also have a protected liberty interest in their "reasonable expectation" of avoiding erroneous return based on the affirmative actions of the Executive and Congress. HCC I, 969 F.2d at 1345 (citing United States ex rel. Paktorovics v. Murff, 260 F.2d 610, 614 (2d Cir. 1958)).
A protected liberty or property interest cannot be denied without constitutionally adequate due process. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950); Augustin v. Sava, 735 F.2d 32 (2d Cir. 1984). To determine what process is due, the Court must balance three factors: "(a) the private interest involved, (b) the risk of an erroneous deprivation of that interest through the procedures utilized, as well as the probable value of additional procedural safeguards, and (c) the government's interest, including the burden that additional procedural requirements would impose." United States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 902 (2d Cir. 1992). See Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976); Baden v. Koch, 799 F.2d 825, 831 (2d Cir. 1986).
First, the private interest of the Screened In Plaintiffs not to be returned to Haiti is of the highest order. Based on the INS's own findings, the screened-in Haitians have already been found to have at least a credible fear of return. This showing exceeds that of an unscreened asylum applicant in the United States whose interest in applying for asylum is constitutionally protected. See Orantes-Hernandez v. Smith, 541 F. Supp. 351, 377 (C.D. Cal. 1982), aff'd Thornburgh v. Orantes-Hernandez, 919 F.2d 549 (9th Cir. 1990) (asylum applicant -- who has not yet made any showing of persecution -- has liberty interest in not being erroneously denied asylum). See Azzouka v. Sava, 777 F.2d 68, 74 (2d Cir. 1985) (right to apply for political asylum is a constitutionally protected interest which triggers the safeguards of the due process clause); Augustin v. Sava, 735 F.2d 32, 37 (2d Cir. 1984) (same); Yiu Sing Chun v. Sava, 708 F.2d 869, 877 (2d Cir. 1983) (right to resist return to persecution).
Second, the risk of erroneous deprivation and the benefits of additional procedural safeguards are equally great. Absent a proper and fair adjudication, the screened-in Haitians' legitimate claims are likely to be denied either at the initial screening or in the final adjudication. The evidence establishes, and defendants concede, that representation by counsel and recourse to the processes available to asylum applicants in the United States, such as access to counsel before, during and after the interview, an opportunity to respond to a Notice of Intent to Deny, and administrative and judicial review, provide a significant benefit to asylum applicants undergoing the well-founded fear determination in general and to screened-in Haitians at Guantanamo in particular. "Permitting access to attorneys is a reasonable method to insure that the 'screened-in' plaintiffs are not wrongly repatriated to a country in which they have already been found by our government to have a credible fear of being persecuted." HCC I, 969 F.2d at 1346.
Finally, the only burden the government has alleged in connection with affording the Haitians procedural due process is associated with possible delays in adjudicating claims and the impact of deploying INS personnel to Guantanamo. Yet the evidence shows that much of any delay is attributable to actions by the government, not the applicant. Furthermore, all of the purported governmental burden would be eliminated if the remaining Haitian detainees were brought to the United States to be integrated into the domestic asylum process. The Court concludes that a balancing of the three Mathews factors requires that the process due screened-in Haitians at Guantanamo who are subjected to well-founded fear interviews is the process that is available to asylum applicants in the United States. Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976).
B. Medical Care
Constitutional due process mandates both provision of adequate medical care to persons in official custody, Revere v. Massachusetts General Hosp., 463 U.S. 239, 244, 77 L. Ed. 2d 605, 103 S. Ct. 2979 (1983), and "safe conditions". Youngberg v. Romeo, 457 U.S. 307, 315-16, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982). See generally DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 199-200, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989). As persons in coercive, nonpunitive, and indefinite detention, the Haitian detainees on Guantanamo are constitutionally entitled to medically adequate conditions of confinement.
Courts have consistently held, in a variety of contexts, that the due process rights of persons in nonpunitive detention are greater than the Eighth Amendment protections afforded to convicted prisoners. Bell v. Wolfish, 441 U.S. 520, 535, 60 L. Ed. 2d 447, 99 S. Ct. 1861 n.16 (1979) (pretrial detention); Youngberg, 457 U.S. at 321-22 (1982) (involuntary commitment): Rhyne v. Henderson County, 973 F.2d 386, 391 (5th Cir. 1992) (pretrial detainees); Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988) (pretrial detainee). Persons in nonpunitive detention have a right to "reasonable medical care", a standard demonstrably higher than the Eighth Amendment standard that protects convicted prisoners: "deliberate indifference to serious medical needs." Compare Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) with Rhyne v. Henderson County, 973 F.2d at 391; Cupit v. Jones, 835 F.2d 82, 85 (5th Cir. 1987).
At a minimum, due process forbids governmental conduct that is deliberately indifferent to the medical needs of non-convicted detainees. Hill v. Nicodemus, 979 F.2d 987, 991-92 (4th Cir. 1992) (including psychological condition); Gordon v. Kidd, 971 F.2d 1087, 1094 (4th Cir. 1992); Bowen v. Manchester, 966 F.2d 13, 16-17 (1st Cir. 1992); Hall v. Ryan, 957 F.2d 402, 406 & n.6 (7th Cir. 1992) (including risk of suicide); Barber v. City of Salem, 953 F.2d 232, 238 (6th Cir. 1992); Elliott v. Cheshire County, 940 F.2d 7, 10 (1st Cir. 1991); Liscio v. Warren, 901 F.2d 274, 276-77 (2d Cir. 1990). Deliberate indifference to medical needs includes government officials' denial or delay of detainees' access to medical care, interfering with treatment once prescribed, or their lack of response to detainees' medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986); Todaro v. Ward, 565 F.2d 48, 52-53 (2d Cir. 1977). Deliberate indifference to medical needs also includes government officials rejection of recommendations or requests for medical treatment by their own medical doctors that exposes the person detained to undue suffering or serious medical risk. See Scharfenberger v. Wingo, 542 F.2d 328, 331, 332 (6th Cir. 1976); Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976); Elliot, 940 F.2d at 10; Youngberg, 457 U.S. at 323.
The military's own doctors have made INS aware that Haitian detainees with T-cell counts of 200 or below or percentages of 13 or below should be medically evacuated to the United States because of a lack of facilities and specialists at Guantanamo. Despite this knowledge, Defendant INS has repeatedly failed to act on recommendations and deliberately ignored the medical advice of U.S. military doctors that all persons with T-cell count below 200 or percentages below 13 be transported to the United States for treatment. Such actions constitute deliberate indifference to the Haitians' medical needs in violation of their due process rights.
C. Disciplinary Proceedings
Plaintiffs also assert that the military's disciplinary procedures violate their due process rights. Detained aliens, like prisoners, are entitled to due process protection against arbitrary discipline. Orantes-Hernandez v. Smith, 541 F. Supp. at 385. When a "major change in the conditions of confinement" is imposed as punishment for a specific infraction, Wolff v. McDonnell, 418 U.S. at 571 n.19, the Due Process Clause requires a constitutionally adequate process. Bell v. Wolfish, 441 U.S. at 535, 537-38; Woodson v. Lack, 865 F.2d 107 (6th Cir. 1989). For example, the Second Circuit has held that confinement of fourteen days or more in a "special housing unit", McCann v. Coughlin, 698 F.2d 112, 119, 121-22 (2d Cir. 1983), or in one's own quarters, McKinnon v. Patterson, 568 F.2d 930, 936-37 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 55 L. Ed. 2d 792, 98 S. Ct. 1282 (1978), is a "sufficiently serious deprivation" of a liberty interest to implicate the Due Process Clause. McCann, 698 F.2d at 120-22. At Guantanamo, the JTF places Haitian detainees exhibiting behavioral problems in "administrative segregation." When a detainee is "segregated," he is removed from the general population and placed in Camp 7, Camp Alpha or the brig for a few days or a few weeks. The Court finds this "administrative segregation" to be tantamount to punishment constituting a deprivation of liberty and raising procedural due process issues.
Courts have held that before the imposition of such punishment, due process requires written notice of the allegations, a hearing, a written decision, an opportunity to call witnesses and present evidence, access to counsel, and an impartial decisionmaker. Wolff, 418 U.S. 539, 563-70, 41 L. Ed. 2d 935, 94 S. Ct. 2963; McCann, 698 F.2d at 122. JTF commanders have employed various "informal" procedures for addressing behavioral problems among the detainees and between the JTF and the detainees. These procedures have included informing the detainee of the allegations made against him, providing an opportunity to respond, speaking with the president of the camp and a final determination by a senior military officer. However, none of these procedures have included written notice, a hearing, an opportunity to call witnesses, access to counsel, or guarantee of an impartial decisionmaker. Therefore, the Court finds that the JTF's informal "administrative segregation" procedures to be violative of the detainees' procedural due process rights.
D. Indefinite Detention
As individuals held in custody by the United States, the Screened In Plaintiffs also have a liberty interest in not being arbitrarily or indefinitely detained. O'Connor v. Donaldson, 422 U.S. 563, 576, 45 L. Ed. 2d 396, 95 S. Ct. 2486 (1975) (involuntarily committed mental patient); McNeil v. Director, Patuxent Institution, 407 U.S. 245, 250, 32 L. Ed. 2d 719, 92 S. Ct. 2083 (1972) (convict who completed sentence but continued to be held in mental hospital); Doherty v. Thornburgh, 943 F.2d 204, 209 (2d Cir. 1991)(alien detained pending deportation); United States v. Gonzales Claudio, 806 F.2d 334, 339 (2d Cir. 1986) (pre-trial detainee). Courts have upheld continued detention where (1) there are valid reasons for it, i.e. where the alien possesses a criminal record or constitutes a national security risk see e.g. Shaughnessy v. United States, 345 U.S. 206, 97 L. Ed. 956, 73 S. Ct. 625 (1953); Alvarez-Mendez v. Stock, 941 F.2d 956 (9th Cir. 1991), (2) the alien bears some responsibility for delaying the process, and (3) the detention will eventually end. Doherty, 943 F.2d at 211-12.
Here, the Screened In Plaintiffs' continued detention is the result of the Defendants' actions, not the aliens' own choices. The Government stopped processing the cases of these and other screened-in Haitians in June 1992, after the Second Circuit upheld this Court's injunction entitling the Haitians to be represented by counsel. One-hundred and fifteen Haitians at Guantanamo have met the well-founded fear standard in the second interviews and have remained in detention for almost two years.
Even now, the INS has not stated when these individuals' claims will finally be adjudicated and when any subsequent parole determinations will be made. Nor has the INS stated what it will do with those Haitians who are ultimately denied parole into the United States, but who have demonstrated a well-founded fear of persecution if returned to Haiti. Testimony revealed that the Haitians were told that they could be at Guantanamo for 10-20 years or possibly until a cure for AIDS is found. Continued detention constitutes a denial of due process where there is no guarantee that "detention will end when [plaintiffs have] exhausted [their] remedies under our laws." Bertrand, 684 F.2d at 207 n.6. see also United States v. Gonzales-Claudio, 806 F.2d 334, 341 (2d Cir. 1986).
Finally, the detained Haitians are neither criminals nor national security risks. Some are pregnant mothers and others are children. Simply put, they are merely the unfortunate victims of a fatal disease. The Government has failed to demonstrate to this Court's satisfaction that the detainees' illness warrants the kind of indefinite detention usually reserved for spies and murderers. Cf. Shaughnessy v. United States, 345 U.S. 206, 97 L. Ed. 956, 73 S. Ct. 625 (1953); Alvarez-Mendez v. Stock, 941 F.2d 956 (9th Cir. 1991). Where detention no longer serves a legitimate purpose, the detainees must be released. The Haitian camp at Guantanamo is the only known refugee camp in the world composed entirely of HIV refugees. The Haitians' plight is a tragedy of immense proportion and their continued detainment is totally unacceptable to this Court. See Rubinstein v. Brownell, 92 U.S. App. D.C. 328, 206 F.2d 449, 456 (D.C. Cir. 1953), aff'd, 346 U.S. 929, 74 S. Ct. 319, 98 L. Ed. 421 (1954); Li v. Greene, 767 F. Supp. 1087, 1091 (D. Colo. 1991) (detainees must be released where detention no longer serves a legitimate purpose).
IV. Violations of Administrative Procedure Act
For their Fifth Claim for Relief, Plaintiffs allege that a) the Government violated the APA by conducting unauthorized "well-founded fear" interviews and b) the Attorney General abused her discretion by denying parole for the screened-in Haitian Plaintiffs. The Administrative Procedure Act, 5 U.S.C. §§ 701, 706(2) (1982), authorizes this Court, at the request of aggrieved persons, to "hold unlawful and set aside agency action [that is] . . . (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; [or] (C) in excess of statutory jurisdiction, authority, or limitations. . . ." Defendants' decisions in relation to the processing and detention of Haitians at Guantanamo constitute final "agency action," because "the agency has completed its decision making process, and . . . the result of that process is one that will directly affect the parties." Franklin v. Massachusetts. 120 L. Ed. 2d 636, 112 S. Ct. 2767, 2773 (1992). As persons "adversely affected or aggrieved by agency action," 5 U.S.C. § 702, the Screened In Plaintiffs have a cause of action under the APA for injunctive relief against defendant officials. Nonresident aliens located outside the United States qualify as "aggrieved persons" with standing to obtain review in U.S. courts of the legality of U.S. governmental actions that adversely affect them. See, e.g., Juarez v. I.N.S, 732 F.2d 58 (6th Cir. 1984); Silva v. Bell, 605 F.2d 978, 984-85 (7th Cir. 1979); Mendez v. I.N.S, 563 F.2d 956 (9th Cir. 1977); Constructores Civiles de Centroamerica S.A. (Concica), v. Hannah, 148 U.S. App. D.C. 159, 459 F.2d 1183, 1191-92 (D.C. Cir. 1972).
A. Conduct In Excess of Statutory Authority
The APA authorizes reviewing courts "to hold unlawful and set aside agency action . . . in excess of statutory . . . authority. . . ." 5 U.S.C. § 706(2). "It is 'central to the real meaning of "the rule of law," [and] not particularly controversial' that a federal agency does not have the power to act unless Congress, by statute, has empowered it to do so." Transohio Sav. Bank v. Director, Office of Thrift Supervision, 296 U.S. App. D.C. 231, 967 F.2d 598, 621 (D.C. Cir. 1992) (citations omitted); Chrysler Corp. v. Brown, 441 U.S. 281, 302, 60 L. Ed. 2d 208, 99 S. Ct. 1705 (1979). Agency actions that do not fall within the scope of a statutory delegation of authority are ultra vires and must be invalidated by reviewing courts. Id. See also SEC v. Sloan, 436 U.S. 103, 118-19, 56 L. Ed. 2d 148, 98 S. Ct. 1702 (1978); Civil Aeronautics Bd. v. Delta Air Lines, Inc., 367 U.S. 316, 334, 6 L. Ed. 2d 869, 81 S. Ct. 1611 (1961); 5 U.S.C. §§ 701, 706(2)(C) (1988) (authorizing judicial review of agency actions "in excess of statutory jurisdiction, authority, or limitations").
In the immigration field, the authority of the executive "is limited to the zone charted by Congress. If such [executive] officers depart from the channels of authority fixed by statute they act illegally." C. Gordon & S. Mailman, 1 Immigration Law & Practice § 9.02, at 9-519, citing Mahler v. Eby, 264 U.S. 32, 68 L. Ed. 549, 44 S. Ct. 283 (1924); Gegiow v. Uhl, 239 U.S. 3, 9-10, 60 L. Ed. 114, 36 S. Ct. 2 (1915) (defendant's effort to exclude an alien on a different basis from that authorized by Congress was beyond the scope of defendant's authority and therefore invalid). See also Lloyd Sabaudo Societa Anonima Per Azioni v. Elting, 287 U.S. 329, 335, 77 L. Ed. 341, 53 S. Ct. 167 (1932) (courts may review executive action in immigration field to ensure compliance with grant of statutory authority).
Courts will invalidate executive action that is unsupported by express statutory authority. See, e.g., Jean v. Nelson, 472 U.S. 846, 86 L. Ed. 2d 664, 105 S. Ct. 2992 (1985), Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1389-90 (10th Cir. 1981) (plaintiff ordered released because INS lacked statutory authority to detain Mariel Cuban indefinitely). Bertrand v. Sava, 684 F.2d 204, 210, 212 & n.12 (2d Cir. 1982); American Baptist Churches v. Meese, 712 F. Supp. 756, 774 (N.D. Cal. 1989). Only two provisions of the INA authorize the INS to adjudicate claims of persons seeking refuge from political persecution: Section 207, which governs overseas refugee processing, and Section 208, which governs asylum for aliens at a land border or physically present in the U.S.
In the Refugee Act of 1980 Congress had two goals. First, it established Sections 207 and 208 as the exclusive mechanisms for determining whether persons meet the refugee definition. INS v. Stevic, 467 U.S. 407, 425-27, 81 L. Ed. 2d 321, 104 S. Ct. 2489 (1984); Amanullah v. Nelson, 811 F.2d 1, 12 (1st Cir. 1987). Second, Congress explicitly restricted the Attorney General's use of the "parole authority" to circumvent the carefully structured system established by § 207 and § 208. Amanullah, 811 F.2d at 12.
Amid growing dissatisfaction with the existing law, Congress in 1980 comprehensively revised the standards and procedures governing asylum. See The Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102. This legislation replaced the attorney general's ad hoc parole authority with a systematic procedure for adjudicating asylum claims that was intended to eliminate geographical and ideological factors from consideration.
Doherty v. I.N.S., 908 F.2d 1108, 1119 (2d Cir. 1990), rev'd on other grounds, 116 L. Ed. 2d 823, 112 S. Ct. 719 (1992) (emphasis added). See also Mason v. Brooks, 862 F.2d 190, 194 (9th Cir. 1988); H.R. Rep. No. 608; S. Rep. No. 256, 96th Cong., 2d Sess. 1 (1980), reprinted in 1980 U.S.C.C.A.N. 141, 141 (the Refugee Act "places into law what we do for refugees now by custom, and on an ad hoc basis, through the use of the 'parole authority' in Section 212(d)(5) . . . .").
By defendants' own admission, the process to which screened-in Haitians have been subjected is "extra-statutory," and a "third thing" nowhere authorized by either § 207 or § 208. The Rees Memorandum sets forth an ad hoc procedure for processing the Haitian plaintiffs that plainly violates both goals of the Refugee Act. First, it establishes a process that, by Rees' repeated admission, is neither § 207 nor § 208, but rather, a hybrid "third thing" that comports with neither statutory grant of power to the INS. Well-founded fear adjudications at Guantanamo are neither refugee determinations nor asylum determinations, because Haitians who establish such claims are not brought to the U.S. as refugees under § 207 or granted asylum under § 208. Instead, the Rees Memorandum subjects the Screened In Plaintiffs to a process that lacks the benefits of both § 207 and § 208. Unlike all other § 207 applicants, Haitians at Guantanamo are detained in custody under the authority of the United States, are not free to leave or to go to a third country, are deprived of any opportunity to consult counsel or advocates, and may be forcibly repatriated by the United States. Unlike § 208 applicants, Guantanamo Haitians are deprived of all the procedural safeguards and guarantees to which they would be entitled if they were in the United States and are subjected to medical screening and HIV testing, which are not done and are not relevant to asylum determinations. Second, the Rees Memorandum uses the parole authority as a means of circumventing § 207 and § 208, precisely the artifice Congress sought to forbid. The parole authority does not authorize the establishment of a system contrary to Congress' intent and intentionally targeted at persons who would be eligible to participate in the asylum process but for the fact that the government affirmatively interdicted them. The parole authority cannot be "employed to facilitate a continuing deprivation of [detainees'] constitutional rights." See Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1199 (9th Cir. 1975). Neither can the parole authority be employed to facilitate a continuing deprivation of detainees' statutory rights under the § 207 or § 208 processes authorized by Congress. Defendants lack the authority to establish and maintain a non-statutory system for processing "well-founded fear of persecution" claims of Haitians detained at Guantanamo.
B. Abuse of Discretion/Arbitrary and Capricious Conduct
Plaintiffs allege that the Attorney General's refusal to parole them from detention due to their HIV status constitutes an abuse of discretion. For the reasons set forth below, the Court agrees and sets aside her denial of parole.
The statute authorizing parole, INA § 212(d)(5), permits the Attorney General temporarily to "parole" aliens out of detention "for emergent reasons or for reasons deemed strictly in the public interest. . . ." Jean, 472 U.S. at 855) citing 8 U.S.C. § 1182(d)(5)(A) (1982); Bertrand, 684 F.2d at 212 n.12 (2d Cir. 1982). Although the statute may not be used to circumvent the § 207 or § 208 processes, it permits the temporary release from detention of aliens with serious medical conditions. The Government's obstinate refusal to parole Haitians with HIV out of detention constitutes an abuse of the Attorney General's discretion. Moret v. Karn, 746 F.2d 989, 992 (3d Cir. 1984).
The Attorney General has "broad discretionary power to parole unadmitted aliens," but she may not exercise that discretion "to discriminate invidiously against a particular race or group or to depart without rational explanation from established policies." Bertrand, 684 F.2d at 212 citing Wong Wing Hang v. I.N.S, 360 F.2d 715, 719 (2d Cir. 1966). See also Jean v. Nelson, 472 U.S. at 857 (INS officials concede that parole regulations do not authorize discrimination on the basis of race and national origin). The APA, 5 U.S.C. § 706(2) (1982), authorizes this Court to "hold unlawful and set aside agency action . . . found to be an abuse of discretion." Because the Attorney General's parole-related discretion is limited, such decisions "may be reviewed under the judicial review provisions of the APA." Moret v. Karn, 746 F.2d at 991.
Courts may find that the Attorney General abused her discretion upon any of three findings: first, that she has exercised her discretion to discriminate invidiously, Bertrand, 684 F.2d at 212; second, that the Attorney General or her agents have deviated from their own internal regulations. Jean, 472 U.S. at 855-56; Moret, 746 F.2d at 992-93; Haitian Refugee Center v. Civiletti, 503 F. Supp. 442, 452 (S.D. Fla. 1980), aff'd as modified, Haitian Refugee Center v. Smith, 676 F.2d 1023, 1041 n.48 (5th Cir. 1982), and third, that she has given "effect 'to considerations that Congress could not have intended to make relevant,'" Doherty, 908 F.2d at 1117-18 (citations omitted); D.C. Federation of Civic Ass'ns v. Volpe, 148 U.S. App. D.C. 207, 459 F.2d 1231, 1248 (D.C. Cir. 1971), cert. denied, 405 U.S. 1030, 31 L. Ed. 2d 489, 92 S. Ct. 1290 (1972).
By effectively denying the plaintiffs release from detention, defendant Attorney General has abused her discretion in all three ways. First, Haitians remain in detention solely because they are Haitian and have tested HIV-positive. The Government has admitted that the ban on the admission of aliens with communciable diseases has not been strictly enforced against every person seeking entry. Each year many "non-immigrants" enter the United States, are legally entitled to remain for years, and are not subject to HIV testing. To date, the Government has only enforced the ban against Haitians.
Second, Defendants' refusal to release plaintiffs from detention represents an unjustified deviation from established parole policy. The parole regulations, 8 C.F.R. § 212.5, with respect to individuals who do not otherwise present a security risk or a risk of absconding, expressly list factors that should guide the INS's discretion in determining whether an individual's release from detention would be "strictly in the public interest. The regulations authorize the parole of aliens with serious medical conditions out of detention for "emergent reasons." 8 C.F.R. § 212.5(a)(1). The Government cannot dispute that the Haitians' HIV condition constitutes a "serious medical condition." An individual who carries the Virus inevitably develops AIDS and dies. To date, there is no known cure. The HIV Haitian detainees have been held in virtual prison camps for over eighteen months. Moreover, Defendants' refusal to release plaintiffs from detention due to their HIV status departs from the INS' own stated policy respecting release of persons who have demonstrated a credible fear of persecution, which excludes medical status and HIV infection from the permissible criteria for continued detention. Indeed, the only pertinent parole regulation explicitly provides that "serious medical conditions" constitute "emergent reasons," such that "continued detention would not be appropriate." 8 C.F.R. 212.5(a)(1). Neither the general parole regulations contained in 8 C.F.R. § 212.5, nor the specific agency guidelines pertaining to parole for asylum-seekers, authorize denying parole based on an alien's HIV status. Insofar as defendants have deliberately bypassed the only parole regulation that applies to this situation, they have deviated from their own regulations and hence abused their discretion. See Jean, 472 U.S. at 856-57; Moret, 746 F.2d at 992-93.
Finally, in invoking the HIV ban to deny the Haitian detainees parole, the Attorney General has given "effect to 'considerations that Congress could not have intended to make relevant'." Doherty v. I.N.S., 908 F.2d at 1117-8, Volpe, 459 F.2d at 1248). In applying 8 U.S.C.A. § 1182(a)(1)(A)(i) to deny the Haitian detainees parole, the Attorney General has misinterpreted the statute. There is no mandatory HIV exclusion for either parole (the means by which interdicted aliens who are screened in are brought to the United States in order to pursue their asylum claims) or the grant of asylum in the United States. The statute merely makes aliens with certain communicable diseases excludable from "admission" to the United States, and even the amendment to the statute which recently passed both houses of Congress adds HIV as a communicable disease.
The Statute does not mandate such exclusion. Congress grants the Attorney General the power to temporarily parole out of detention aliens otherwise excludable from admission. See 8 U.S.C. § 1182(d). In determining whether aliens will be paroled out of detention, Congress found that the Attorney General should consider "the parole of aliens who have serious medical conditions in which continued detention would not be appropriate." Where HIV detainees have been held for nearly two years in prison camp conditions likely to further compromise their health, where each year other individuals carrying the HIV virus are allowed to enter the United States, and where the admission of the Haitians is unlikely to affect the spread of AIDS in this country,
the Government's continued imprisonment of the Screened In Plaintiffs serves no purpose other than to punish them for being sick. Moreover, the requested relief of release from detention is very limited, since parole out of confinement neither constitutes permanent "admission" into the United States nor otherwise "affects an alien's status," INA § 212(d)(5); Leng May Ma v. Barber, 357 U.S. 185, 188, 2 L. Ed. 2d 1246, 78 S. Ct. 1072 (1958). Thus, after a Haitian is paroled, the government may still rely on any applicable ground to exclude that individual before choosing to confer formal "admission" into the United States. INA § 212(d)(5)(A).
The Attorney General has abused her discretion in failing to parole the HIV Haitian detainees on Guantanamo. Her decision to detain these Haitians deviates from established parole policy and is illegally based upon a statute which is selectively enforced against Haitian nationals and merely makes persons carrying the HIV virus excludable from "admission" or permanent residence. For foregoing reasons, the Court hereby sets aside the Attorney General's denial of parole.
Having found the Government's "well-founded" processing to be extra-statutory and that the Attorney General abused her discretion in denying parole, the Court need not reach Plaintiffs' equal protection claim.
For the reasons stated above,
1. The following class is hereby certified:
(a) all Haitian citizens who have been or will be "screened in" who are, have been or will be detained on Guantanamo Bay Naval Base, or any other territory subject to United States jurisdiction, or on Coast Guard cutters, including those who have been or will be subject to post-screening processing (or who have resisted such processing) (hereinafter "Screened In Plaintiffs");
2. It is hereby,
(a) DECLARED that the "Well-Founded Fear" Processing by Defendants set forth in the Rees Memorandum is in excess of Defendants' statutory authority, and
(b) ORDERED that such "Well-Founded Fear" Processing be permanently enjoined, held unlawful and set aside pursuant to the Administrative Procedure Act; and
(3) It is hereby further
(a) DECLARED that defendant Attorney General's exercise of the statutory parole power under INA § 212(d)(5) to deny Screened In Plaintiffs parole out of detention constitutes an abuse of discretion; and
(b) ORDERED that defendant Attorney General's exercise of the statutory parole power under INA § 212(d)(5) to deny Screened In Plaintiffs parole out of detention be permanently enjoined, held unlawful and set aside pursuant to the Administrative Procedure Act; and
(4) It is hereby further
(a) DECLARED that the "Well-Founded Fear" Processing, Disciplinary Proceedings, Arbitrary and Indefinite Detention, Medical Care and Camp Conditions to which Screened In Plaintiffs are being subjected by Defendants denies those plaintiffs Due Process of Law; and
(b) ORDERED that such "Well-Founded Fear" Processing, Disciplinary Proceedings, Arbitrary and Indefinite Detention, Medical Care and Camp Conditions be permanently enjoined pursuant to the Fifth Amendment of the United States Constitution; and that Screened In Plaintiffs be immediately released (to anywhere but Haiti) from such processing, proceedings, detention, medical care and camp conditions; and
(5) It is hereby further
(a) DECLARED that denying plaintiff Haitian Service Organizations immediate access to Guantanamo to communicate and associate with their detained Screened In Plaintiff clients violates the First Amendment; and
(b) ORDERED that Defendants are permanently enjoined from denying plaintiff Haitian Service Organizations immediate access at Guantanamo, on Coast Guard Cutters, or at any other place subject to U.S. jurisdiction to any member of the class of Screened In Plaintiffs (regardless of whether any such screened-in plaintiff has been furnished with an exact date and time for an interview), subject to reasonable time, place, and manner limitations for the purpose of providing class members legal counsel, advocacy, and representation; and
(6) It is hereby finally
(a) DECLARED that Plaintiffs are entitled to such other and further relief as the Court may deem just and proper, including reasonable attorneys' fees and costs, to be determined at a future hearing.
Sterling Johnson, Jr.
United States District Judge
Dated: Brooklyn, New York
June 8, 1993