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June 8, 1993


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


 The Parties

 The Plaintiffs are the Haitian Centers Council, Inc., National Coalition for Haitian Refugees, Inc., Immigration Law Clinic of the Jerome N. Frank Legal Organization of New Haven Connecticut (hereinafter "Haitian Service Organizations"); Dr. Frantz Guerrier, Milot Baptiste, Kennedy Agustin, and Yolande Jean (hereinafter "Screened In Plaintiffs" or "Haitian detainees"); and Lener Miclis and Claud Kenol (hereinafter "Immediate Relative Plaintiffs"). The Defendants are Chris Sale, Acting Commissioner, Immigration and Naturalization Services; Janet Reno, Attorney General; Immigration and Naturalization Service; Warran Christopher, 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 "Government").

 Prior Proceedings

 In March 1992, Plaintiffs commenced this class action seeking declaratory and injunctive relief arising from the Government's actions against Haitian detainees and Haitian Service Organizations following the military coup that overthrew the government of Jean-Bertrand Aristide on September 30, 1991. The Original Complaint alleged inter alia that the Government had violated the Haitian Service Organization's First Amendment right of access to their clients on Guantanamo, the Haitian detainees' statutory and constitutional due process right to counsel, the Administrative Procedure Act ("APA") and various international treaties, bilateral agreements and executive orders. The Court issued a temporary restraining order ("TRO") on March 27, 1992 enjoining the Defendants' conduct.

 Five days later the Court held a hearing on Plaintiffs' 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 success on the merits. The court specifically concluded that: 1) the Government's denial of access to the Haitian Service Organization appeared 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 did not extend to the Haitian aliens beings detained on Guantanamo; and 3) the Screened In Plaintiffs *fn1" were entitled to the protection of the Fifth Amendment. In addition, the Court ruled that the Screened Out Plaintiffs *fn2" represented by Iris Vilnor were bound by the outcome of Haitian Refugee Center, Inc. v. Baker.3

 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.

 While awaiting a decision from the Second Circuit 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 ("Kennebunkport 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 by Order to Show Cause for a TRO 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 Plaintiffs' 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 States not to return aliens to their persecutors, no matter where in the world those actions are taken. Haitian Centers Council, Inc. et. al. v. McNary, 969 F.2d 1350 (2d Cir. 1992). This Court immediately issued an injunction pursuant to the Second Circuit mandate. 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 granted the Government's petition seeking certiorari in McNary v. Haitian Centers Council, Inc., 121 L. Ed. 2d 22, 113 S. Ct. 52 (1992), and recently heard oral argument on this question.

 Trial on Guantanamo Case

 In September 1992, the parties appeared at a pretrial conference. The Plaintiffs made an oral application for a bifurcated trial pursuant to Rule 42(b). The Court granted the Plaintiffs' motion concluding that bifurcation of the Guantanamo case and the Executive Order case was appropriate in light of the fact that the Supreme Court had granted the Government's petition for certiorari and was likely to dispose of the issue within the next few months. On the eve of trial, the Government made a motion in limine regarding claims not in the Original Complaint. Specifically, the Defendants asked the Court to preclude Plaintiffs from 1) presenting any evidence about camp conditions, 2) presenting evidence on medical issues raised by the detention of HIV Haitians at Guantanamo and 3) presenting evidence relating to an attack on the HIV ground for exclusion of aliens. After reviewing the Original Complaint and the Contention Interrogatories submitted, the Court agreed with the Government that many of the Due Process Claims mentioned in the Contention Interrogatories were not contained in the Original Complaint. Rather than granting a continuance, the Court began taking testimony and granted the Plaintiffs leave to amend the Original Complaint under Rule 15(b).

 The Court conducted a bench trial on March 8-12, 15-19, and 25, 1993. Plaintiffs filed an Amended Complaint stating the following causes of action: 1) denial of the Haitian Service Organizations' First Amendment rights to provide advocacy and counselling to their clients detained on Guantanamo; 2) denial of the Haitian detainees' First and Fifth Amendment constitutional rights to obtain and communicate with counsel; 3) denial of the Haitian detainees' constitutional due process right to adequate medical care, to be free of indefinite detention and arbitrary punishment; 4) failure of the Government to follow rulemaking procedures; *fn4" 5) arbitrary and capricious agency action not in accordance with the law; 6) judicial enforceability of the duty of non-refoulement; and 7) equal protection. At the close of trial, the parties submitted Proposed Findings of Fact and Conclusions of Law which have been adopted and incorporated in part in the Court's findings below.


 In 1981, the United States commenced the Alien Migration Interdiction Operation ("AMIO"), formerly known as the Haitian Migrant Interdiction Operation. A cooperative agreement between the United States and Haiti dated September 23, 1981 ("Haiti-U.S. Agreement") allows the United States Coast Guard ("Coast Guard") to board Haitian-flagged vessels on the high seas in order to inquire into the condition and destination of the vessel and the status of those on board. While the Agreement explicitly provides that the "United States does not intend to return to Haiti any Haitian migrants whom the United States authorities determine to qualify for refugee status," a vessel and its passengers were subject to return or repatriation to Haiti if the Coast Guard determined that a violation of United States or Haitian law had occurred. Between 1981 and 1991, the United States interdicted approximately 25,000 Haitians. The United States conducted refugee or asylum prescreening aboard Coast Guard cutters for interdicted Haitians as well as for interdicted nationals of 39 other countries including the Dominican Republic, the Bahamas, Pakistan, Iran, India, Colombia, and Chile during that period.

 On September 30, 1991, Jean Bertrand Aristide ("Aristide"), the first democratically elected president in Haiti's history, was overthrown in a military coup. Fearing political persecution, thousands of Haitians fled the country by crossing the border into the Dominican Republic or taking to the high seas. Within a month of the coup, a large number of overcrowded, unseaworthy boats began departing from Haiti and the United States Coast Guard began interdicting an increasing number of such vessels in international waters.

 Prior to interdicting a vessel, the Coast Guard inquired about the vessel's destination. Except when effecting a rescue at sea, the Coast Guard would not remove the passengers or master of a Haitian boat unless it was determined that the vessel was bound for the United States. However, the Coast Guard made no effort to determine the intended destination of each passenger on a particular vessel. If the Coast Guard believed that the vessel was headed for the United States, the Coast Guard interdicted all passengers, even if the passengers were willing to go to locations other than the United States. Because of their lack of seaworthiness, most of the interdicted Haitian vessels, if not all, would not have made it to the United States. In fact, some of the Haitian vessels landed in Cuba, Jamaica and the Bahamas. When the Coast Guard detained a Haitian vessel, it boarded the vessel and required all passengers to disembark. After all of the passengers had complied, the Coast Guard destroyed the Haitian vessel. Interdicted Haitians were thus given no option but to be detained on the Coast Guard cutter and to be taken to whatever location the Coast Guard elected.

 Asylum Screening and Pre-Screening Procedures

 Following the coup, the United States temporarily suspended its repatriation program while the Immigration and Naturalization Service ("INS") consulted with the United States Department of State ("State Department") on the procedures for handling the Haitian refugees. While the INS awaited a decision from Washington, the Coast Guard cutters with Haitian refugees aboard circled in international waters. For health and safety reasons, the cutters docked at Guantanamo Bay Naval Base, Cuba ("Guantanamo") on or about November 13, 1991 and the Haitians disembarked. A few days later, the decision making authority for determining whether interdicted Haitians were screened in or screened out was delegated back to INS officers in the field.

 On November 22, 1991, the Office of the Deputy Commissioner of INS issued a memorandum stating that a "credible fear of return" standard was to be utilized in asylum pre-screening procedures. Under this "credible fear" standard, Haitians with only one or two "refugee-like" characteristics would be "screened in," and thus determined to be eligible for political asylum. Interdicted Haitians with no "refugee-like" characteristics would be "screened out," and thus determined to be ineligible for political asylum and subject to repatriation. The "credible fear of return" standard was designed to be far more generous than the "well-founded fear of return" standard generally applied to asylum seekers.

 As the number of interdicted Haitians rose, the INS transferred their interviewing operations from the Coast Guard cutters to Guantanamo. The interviews were conducted by highly trained members of the INS asylum corps which included INS officers, immigration lawyers, and human rights monitors. No attorneys representing the refugees were present during the "credible fear of return" interviews. Since October 1991, the INS screened in 10,500 Haitians found to have a "credible fear of return" and transported them to the United States to apply for asylum. An additional 25,000 interdictees were returned to Haiti by the Coast Guard after undergoing INS prescreening. A very small number were accepted by third countries.

 Rescreening HIV Haitian Detainees

 Soon after the INS began its Guantanamo operation, the United States began to seek third countries in which the Haitians could be relocated. The State Department pursued this with various countries in the region. Two countries, Belize and Honduras, offered to provide limited assistance, but prior to accepting the Haitians, asked that they be tested for the HIV Virus. The results of those tests disclosed the presence of the virus in a number of the Haitian detainees at Guantanamo leading the Government to conduct HIV testing for all screened-in Haitians. The Haitians are the only group of asylum seekers to be medically tested for HIV.

 Prior to September 1991, all screened-in Haitian refugees were brought to the United States before to receiving medical screening. As Gene McNary, then INS Commissioner, in a memorandum dated May 30, 1991, entitled "Asylum Pre-Screening of Interdicted Aliens and Asylum Seekers in INS Custody": "interdicted asylum seekers identified at sea for transfer to the United States will be properly inspected and medically screened upon arrival into the United States."

 Then in a memorandum dated February 29, 1992, Grover Joseph Rees, INS General Counsel, stated a new INS policy requiring second or "well-founded fear" interviews of screened in persons who tested positive for the Human Immunodeficiency Virus ("HIV"). He wrote, in pertinent part:

 By letter dated March 11, 1992, attorneys for the Haitian Service Organizations requested permission to communicate with the screened-in Haitians held on Guantanamo. The request was denied. The Screened In Plaintiffs detained on Guantanamo themselves repeatedly requested counsel. Their requests were also denied. The military did not oppose visits from counsel and when such visits have been permitted, the military has not found any disruption to the operation of the camp. Other groups, including the press, clergy, and non-U.S. contract workers (e.g., Cubans, Jamaicans and Filipinos) have been permitted access to Guantanamo. In the absence of attorneys, the Haitians have received legal advice from the military. INS, Community Relations Service representatives, ministers and even military doctors.

 Notwithstanding the fact that attorneys are regularly present during nearly identical asylum interviews in the United States, the INS refused to permit the Screened In Plaintiffs to have counsel present at their "well-founded fear" interview. At trial, an INS official expressed the agency's concern with the presence of attorneys at asylum interviews saying that lawyers would only stress the positive element of an applicant's case and deemphasize the negative aspects. This Court finds that lawyers serve a necessary and useful purpose in representing an asylum seeker in connection with the well-founded fear of return interview. Their presence at these interviews is also clearly feasible. The Government's decision to deny Plaintiff Haitian Service Organizations access to Camp Bulkeley is based solely on the content of what they had to say and the viewpoint they would express.

 The second interviews, like the first interviews, were conducted in the absence of attorneys. Of the HIV Screened In Plaintiffs who underwent the second interview, 115 Haitians were found to have a well-founded fear of return. A number of HIV Haitians who had been screened in were repatriated to Haiti after having failed the second interview or having declined to undergo the second interview. Haitians who received an adverse determination did not have the opportunity to appeal the decision.

 Guantanamo Operation

 The United States Naval Base at Guantanamo Bay, Cuba, is subject to a lease agreement between the United States and Cuba which states that:

during the period of occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas.

 The U.S. Naval Base at Guantanamo is a "relatively open base" to which non-military personnel such as military dependents, foreign nationals, contractor employees providing support services, and civilian government employees are allowed access. The facilities include schools, bars, restaurants, a McDonalds and a Baskin-Robbins.

 When the first group of Haitians arrived in November 1991, the existing facilities at Guantanamo were not sufficient to provide housing for all interdictees. A special Joint Task Force ("JTF") comprised of several branches of the Armed Services, was sent to Guantanamo to provide temporary humanitarian assistance to the Haitians including housing, food, and medical care from military physicians. In order to house the Haitians, the JTF evicted U.S. military personnel from the cinder block quarters at Camp Bulkeley on the eastern edge of the base. Tents were also erected at Camp Bulkeley to temporarily house the several thousand migrants who arrived at Guantanamo at the outset. When Camp Bulkeley's capacity proved inadequate, the JTF opened a new series of camps at the unused McCalla air field. These McCalla camps were all tent facilities except for the large hangar at the airfield.

 Portable toilets were made available for use by the Haitians. Flush toilets were not provided because there were insufficient facilities at Guantanamo to treat the sewage. The portable toilets are pumped out by the military on a regular schedule, usually three times a week; military personnel also regularly disinfect the portable toilets though the Haitians themselves are responsible for keeping the inside of the toilet facilities clean. Later, latrines were built at Camp Bulkeley in order to alleviate sanitation problems caused by the portable toilets. The new latrines allowed the military to hose down the area and prevented the collection of trash and other waste.

 At several times during the months between November 1991 and May 1992, the base reached its 12,500 migrant capacity. *fn5" This limit existed because of the base's infrastructure and its ability to provide adequate water, sanitation, and the other essentials to the combined populations of interdicted Haitians, military personnel, and civilian workers and dependents.

 The camps at Guantanamo were organized around the INS interview process. Upon arrival, interdictees would received identification cards and bracelets. They would then be screened by the INS. Haitians who were "screened out" would be placed in a camp for those being repatriated to Haiti. Haitians who were "screened in" would be moved to another camp to await processing for transport to the United States.

 In March 1992, after the prevalence of the HIV virus among the refugee population was ascertained, the JTF created a separate camp for them. Camp Bulkeley was chosen for that purpose. The then existing population of HIV negative Haitians at Camp Bulkeley remained until they were processed and departed Guantanamo. As "screened in" HIV Haitians were identified, they were transferred to Camp Bulkeley, eventually making it predominantly an HIV facility. The camp also contained HIV negative relatives of the HIV Haitians.

 Today there are approximately 200 "screened in" HIV Haitians remaining at Guantanamo. They live in camps surrounded by razor barbed wire. They tie plastic garbage bags to the sides of the building to keep the rain out. They sleep on cots and hang sheets to create some semblance of privacy. They are guarded by the military and are not permitted to leave the camp, except under military escort. The Haitian detainees have been subjected to predawn military sweeps as they sleep by as many as 400 soldiers dressed in full riot gear. They are confined like prisoners and are subject to detention in the brig without a hearing for camp rule infractions. Although the Haitian detainees have a chapel, weight room, bicycle repair shop, beauty ...

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