Petition — Pierre v. United States

Supreme Court brief1977

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—JUL—9 977

In The MICHAEL RODAK, JR., cuenx |

Supreme Court of the United States

October Term, 1977

No, 77— 77-58 T

MARIE PIERRE, et al.,

Petitioners,

—against—

UNITED STATES OF AMERICA,

Responden’,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ERIC M. LIEBERMAN

Rabinowitz, Boudin and Standard

30 East 42nd Street

New York, New York 10017

Attorneys for Petitioners

July 1977

INDEX

Page

Opinions Below ...cccsccccccccccsccccccccccccces l

JUPIOGECtIOR cc cccccccccccccccccccccccseceseces 2

Constitutional, Statutory, and Treaty ProvisionsInvolved.. 2

EPP PFC ECE CTTC TT TCT T CETTE TT 2

PPPTTTTTITILETTLITITE TITEL TTT 3

Reasons for Granting the Writ. .........00eeeeeeeeeee 7

COMCRIMION oc ccccccccccccccccccsccccececcccecoes 23

Appendix A: Opinion of the Court of Appeals.......... la

Appendix B: Judgment of the Court of Appeals......... 26a

Appendix C: Opinion of the District Court............. 27a

Appendix D: Final Order of the District Court.......... 32a

Appendix E: Constitutional, Statutory, and Treaty Provi-

Moms WVOWEE . cc cccccccccccccccccccccceseces 33a

Appendix F: List of Petitioners. ...........0000eeeees 38a

Appendix G: Excerpts from The Situation in Haiti, a re-

port by Amnesty International, dated April 20,1976 40a

Table of Authorities

Cases:

Arnett v. Kennedy, 416 U.S, 134 0... .. 0... cee eens 18, 19

Balzac v. People of Puerto Rico, 258 U.S. 298 .......... 19

Board of Regents v. Roth, 408 U.S. 564............55- 18

Caminetti v. United States, 242 U.S. 470 ..........005. i)

Downes v. Biddell, 162 U.S. 244.....cccccccccccccces 19

Fong Foo v. Shaughnessy, 234 F.2d 715 (2d Cir. 1955)... 17

Gagnon v. Scarpelli, 411 U.S. 778.......... cece eeee 18, 19

Ganven 6. Fueen, SST Uae. SEB occ cctccccccccvscocsves 20

Glavic v. Beechie, 225 F. Supp. 24 (S.D. Tex. 1963), aff'd.,

SOO FBS GE CO Gir. BOGE) oc cccccccccccsccccees 15

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S.

RED sccecevccccccecesccccesseessveceeesooeees 18

Rent v. Dulles, 357 U.S. 116... ..ccccrccccccccvccees 17

Kleindienst v. Mandel, 408 U.S. 753...........ee0008. 20

BEEDGGED GV. HOME, BED Ue Bole ccc cccccccccceccecens 21

Mathews v. Eldridge, 424 U.S. 319... ... 0.0 cece ee eees 21

Matter of Dunar, Board of Immigration Appeals Interim

Decision No. 2192 (1973)... ...ceeeeeesevevvveees 1]

Matter of Pierre, B.1.A. Interim Decision No. 2238(1973) 5

MeNabb vy. United States, 318 U.S. 332 ....... 6.6 eee 23

Morrissey v. Brewer, 408 U.S. 471 «2.0... 0.0 cece eens 18

Ng Fung Ho v, White, 259 U.S. 276 «0... cece ee eee 17

Pierre v. United States, 525 F.2d 933 (5th Cir. 1976)..... 10

Russian Volunteer Fleet vy. United States, 282 U.S. 481... 19

Sannon v. United States, 427 F. Supp. 1270 8, 11, 16,

(S.D. Fla. BOTT) occcccccccccscscvescccccccess 17, 21

Page

Sardino v. Federal Reserve Bank, 361 F.2d 106 (2d Cir.

BOE och cc vcs ess hose beseenscbuceeectsctoeeve 19

United States v. Pink, 315 U.S. 203 «0... cee eeeeeeeees 19

United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974).. 19

United States ex rel. Kordic v. Esperdy, 274 F. Supp. 873

(S.D.N.Y. 1967) ...cccccccccccccecccccccsccvees 15

United States ex rel. Mercer v. “sperdy, 234 F. Supp. 611

(S.D.N.Y. 1964) ..ccccccccccccccvcsccsscccccece 17

Vucinic v. INS, 243 F. Supp. 113 (D. Ore. 1965) ........ 15

Wolff v. McDonnell, 418 U.S. 539 ........0 eee eee 18, 19

Wong Wing v. United States, 163 U.S. 228 ............. 19

Wong Yang Sun v. McGrath, 339 U.S. 33 ..........045: 21

Yick Wo v. Hopkins, 118 U.S. 356.0... 06. cece eee eee 19

United States Constitution:

cdg cb uudoees 06s 0605 6600060466 2,6, 18

Statutes:

Administrative Procedure Act, 5 U.S.C. §551, et seq .. .2, 6, 20

S UBL. 9SB6. .ccccccccccccccccccccccsvene 20

Immigration and Nationality Act of 1952, as amended,

BS USC. QLIOL, of 0g. .ccccvcccccccccccscccece 2

Gestion B60. S OBE. SESE occcvcesecccccesves 15

Section 212(a)(20), 8 U.S.C. §1182(a)(20) ........ 5

Page

Section 235, 8 U.S.C. §1225 .......-- seen ees 2, 6, 14

Section 236, 8 U.S.C. $1226 ........400-eeee 2,6, 14

Section 241, 8 U.S.C. $1251 ....... cece ee eeeees 14

Section 242, 8 U.S.C. $1252 ..... ccc cccvcees 14

Section 243(h), 8 U.S.C. §1253(h)..........- 11, 14,15

28 U.S.C. 12541) 0. ccc cecccccccccvevsveceveces 2

Treaties:

United Nations Convention and Protocol Relating to the _

Status of Refugees, 19 U.S.T. 6223, T.LA.S, 6557... passim

Article 1... ccccccccccccccscccscvcesecscces passim

Article 32 0... cc ccccccccccvccceceessscccccecs 6,9

Article 8B... cccccccccccvccvscvversccecees passim

Regulations:

SC.PR. S21... cccccccccccccvcvcvcsesevcccccces 15

SC.F.R. $242.8... ..ccccccccccvccsessvscvccens 15, 22

Miscellaneous Authorities:

Gordon & Rosenfeld, Immigration Law and Procedure

(1976). wcvcccccsccccccccsccevccccesccccsccees 14

Grahl-Madsen, The Status of Refugees in International

Law (1966) ....ccccvrecccevccccssesecccccees 9,12

Page

Hearings Before the Subcommittee on International Organ-

izations of the House of Representatives Committee on

International Relations, Human Rights in Haiti, 94th

CO, BOE GRU, CIP Ge Ree ccccccccvcccccccccccsces 12

Hearings On Indochina Refugees Before the Subcommittee

on Immigration, Citizenship and International Law of

the House of Representatives Committee on the Judi-

ciary, 94th Cong. Ist Sess. 37, 42-43 (1975)......... 9,11

House of Representatives Report No. 1980, 79th Cong.

ie cic eek been ceed bees oesectetece 21

49 Interpreter Releases No. 44 (Nov. 17, 1972) ......... 14

Note on International Protection, United Nations Doc. No.

NE eo ot eee hee Cee ce ekes 21

Report of the Subcommittee on Immigration, Citizenship,

and International Law of the House of Representatives

Committee on the Judiciary, Haitian Emigration, 94th

Cong. 2nd Sess. (Comm. Print) (July, 1976).......... 4,5

Report of the United Nations High Commissioner for Ref-

ugees, General Assembly, 29th Sess., Supp. No. 12 (A/

PP TU TTITT TTT T TT TTT TTT Te 13, 17, 21

Addendum to the Report, Supp. No. 12A (A/9612/

Fe SPER eRe ceewcerescdccdtsesccecencese 13

Report of the United Nations High Commissioner for Ref-

ugees, General Assembly, 30th Sess., Supp. No. 12 (A/

SUE 6646008404506 c00ess seeeneucwaneté 21

Addendum to the Report, Supp. No. 12A (A/10012)

PRG S uve deadecccnuecectcanseneunaees 13

Robinson, Convention Relating to the Status of Refugees —

Its History, Contents, and Interpretation (1951) ..... 9,12

Senate Executive K, 90th Cong. 2nd Sess. (1968)....... 15

Page

Senate Executive Report No. 14, 90th Cong. 2nd Sess.

C1GGB). . ccccccccccccccccscvccccsoncsccocesese 17

United States Policy Guideline for Asylum Requests, 66 :

Department of State Bulletin 609 (1972) .........--- 12

Weis, The United Nations Declaration on Territorial Asy-

lum, Canadian Yearbook of International Law (1969)... 12

In The

Supreme Court of the United States

October Term, 1977

No. 77—

MARIE PIERRE, et al.,

Petitioners,

—against—

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Marie Pierre and 146 Haitian nationals’ petition for a writ

of certiorari to review the judgment of the United States Court

of Appeals for the Fifth Circuit affirming the district court’s

order dismissing the petition for writ of habeas corpus.

Opinions Below

The opinion of the court of appeals (App. A, la — 25a) is

reported at 547 F.2d 1281. The opinion of the district court

(App. C, 27a — 31a) is not reported.

1. The names of the petitioners are listed in Appendix F, post, at pages

38a — 39a. References herein to “a” are to pages in the appendix portion of

the petition.

Jurisdiction

The judgment of the court of appeals (App. B, 26a) was

entered on March 7, 1977. A timely petition for rehearing was

denied on April 12, 1977. The jurisdiction of this Court is in-

voked under 28 U.S.C. §1254(1).

Constitutional, Statutory, and Treaty

Provisions Involved

The following provisions, the relevant texts of which are set

forth in Appendix E to the Petition (post at 33a — 37a), are in-

volved: The Fifth Amendment to the Constitution of the United

States; the United Nations Convention and Protocol Relating to

the Status of Refugees (19 U.S.T. 6223), Articles 1, 33; the Im-

migration and Nationality Act, 8 U.S.C. $1101, et seq., sections

235 and 236, 8 U.S.C. §§ 1225, 1226.

Questions Presented

1. Whether Article 33 of the United Nations Protocol Re-

lating to the Status of Refugees creates a right on behalf of an

excludable alien who has presented himself at the frontiers of

the United States and who is a “refugee,” as that term is defined

in Article I of the Protocol, not to be returned to a state in

which such refugee’s “life or freedom would be threatened on

account of his . .. membership of a particular social group or

political opinion”?

2. Whether an otherwise excludable alien who presents

himself at the frontiers of the United States and requests politi-

cal asylum has the right, pursuant to the Protocol and the Immi-

gration Act, to show an immigration judge at an exclusion hear-

ing that he in fact is a bona fide refugee within the meaning of

Article 1 and therefore is entitled to the protection of Article 33?

3. Whether petitioners were denied the right, in violation

of the Protocol, the Administrative Procedure Act, and the Fifth

Amendment, to a fair hearing at which they could show an im-

partial hearing officer that they were in fact bona fide refugees

within the meaning of Article 1 and therefore entitled to the

protection of Article 33?

4. Whether the court of appeals was correct in holding

that the United States is free to act in a completely arbitrary

manner, unrestricted even by the procedural due process limita-

tions of the Constitution of the United States, with respect to

the life and liberty of aliens physically present in the United

States?

Statement

This case — one of first impression — involves applications for

political asylum by petitioners, Haitian nationals who covertly

fled their country on small boats during 1972 and 1973 and

sought protection as political refugees against return to Haiti

(27a). At issue is the meaning and application of Articles 1 and

33 of the United Nations Protocol and Convention Relating to

the Status of Refugees, a treaty to which the United States ac-

ceded in 1968. 19 U.S.T. 6223, T.I.A.S. 6557.

1. Petitioners arrived in the United States near Miami and

immediately sought out or were met by immigration enforce-

ment officers, who took them into custody and interviewed

them to determine their status (27a). The interviews purportedly

were for the purpose of determining whether petitioners pos-

sessed visas or other travel documents, but in fact they were to

be the only proceeding at which petitioners would be allowed to

present their requests for political asylum.

The nature of the interviews is not in dispute.? They typi-

cally took place as soon as the petitioners were taken into cus-

2. The interviews were not transcribed, and the district court declined

to hear evidence as to their nature. Petitioners’ contentions as to the na-

ture of the interviews, however, were not disputed and in many instances

were acknowledged by the government, both at petitioners’ exclusion hear-

ings and at oral argument before the district court. Accordingly, the dis-

trict court issued limited findings of fact, to which we refer where appro-

priate. In addition, we shall refer to pages in the Record of Exclusion Pro-

ceedings (““E.P.”’) or in the Petitioners-Appellants Appendix in the court of

appeals (““A.A.”), both of which remain on file with the court of appeals.

Copies will be lodged with the Court upon request.

tody, even in the middle of the night (E.P. at 405). Each inter-

view lasted an average of about twenty minutes, including the

time taken for translation and securing biographical information.

(See, e.g., E.P. at 405, et seq.). No attorneys were allowed to

assist the petitioners, despite the fact, known to the Miami Dis-

trict Director of INS, that attorneys were available and willing

to do so (A.A. at 62a). The {NS officers did not describe to

petitioners the standards which must be met in order to qualify

for political asylum. Petitionere were not afforded an oppor-

tunity to introduce evidence or to call witnesses, nor were they

informed of the existence of evidence adverse to their claims or

given an opportunity to rebut or respond to such evidence (A.A.

at 62a). No formal records of the interviews were made. Many

petitioners were illiterate even in their own language; few, if any,

spoke English. In short, the interviews in no way provided a

meaningful factual inquiry into the question of whether or not

petitioners were bona fide political refugees.*

The District Director transmitted summaries of the inter-

views to the Office of Refugee and Migration Affairs of the De-

partment of State (ORM) (28a) for the purpose of obtaining the

Department's views on the applications for refugee status. Peti-

tioners were not informed of the fact or contents of the com-

munications to ORM. ORM replied to the District Director,

usually within a day or two, that refugee status should not be

granted. Petitioners were not informed of the contents of ORM’s

communications with the District Director, nor were they given

an opportunity to respond to, explain, or rebut any statements

or inferences in such communications. Upon receiving the views

of ORM, the District Director denied the applications for asylum,

3. The summary interview procedures were studied by the Subcommit-

tee on Immigration, Citizenship, and International Law of the House of

Representatives Committee on the Judiciary. Haitian Emigration (Com-

mittee Print) (July 1976). The subcommittee found that the interview

procedure was a serious obstacle to effective presentation of an asylum

claim, noting that the applicants appeared nervous and fearful, and did not

fully comprehend the nature and meaning of asylum or the purpose of the

interview. See Report at 3, 5, 7.

)

without a statement of reasons.*

Subsequently exclusion hearings were held before immigra-

tion judges to determine whether petitionere should be excluded

from entering the United States, pursuant to Section 212(a)(20)

of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(20)

(28a). In each case the immigration judge refused to hear evi-

dence or argument on the petitioners’ status as political refugees

(id.). The only issue determined at the exclusion proceedings

was whether petitioners were excludable within the meaning of

the statute, that is, whether they were in possession of visas or

other entry documents upon arrival and whether they had ef-

fected an entry (id.). In each case, the immigration judge found

the petitioner to be excludable. Appeals to the Board of Immi-

gration Appeals were dismissed (id.).

2. Petitioners filed for a writ of habeas corpus in the United

States District Court for the Southern District of Florida. They

argued that the Protocol, a treaty duly ratified by the Senate

and acceded to by the United States in 1968, created a liberty

4. The District Director’s reliance on the ORM “recommendations” was

most severely criticized by the House of Representatives Immigration Sub-

committee:

Finally, a review of a number of reports which have been sub-

mitted by ORM to INS’ District Office in Miami revealed that in

most instances ORM reports were grossly inadequate in that they

fail to respond to the specific allegations contained in the asylum

request. In general, they constituted arbitrary denials, based ap-

parently on the socioeconomic status of the applicant.

Haitian Emigration, supra n. 3, at 8.

5. United States immigration law distinguishes between aliens subject to

exclusion proceedings and aliens subject to deportation proceedings. An

alien who has effected an “entry” into the United States is entitled to a de-

portatioi. * “-g. An entry may be made either lawfully (by inspection

and admis: _ ©’ an immigration officer) or unlawfully (by actual and in-

tentional« | 1 of ips~*ction by an immigzation officer coupled with free-

dom from restraint witiu:: he physical territory of the United States, even

for a short period of time). See Matter of Pierre, B.1.A. Interim Decision

No. 2238, slip op. at 4-5. Aliens who have not made such an entry are sub-

ject to exclusion proceedings.

right on behalf of a bona fide political refugee, as defined by

Article 1 of the Protocol, not to be returned to a country of

persecution. Accordingly, petitioners urged that, pursuant to

sections 235 and 236 of the Immigration and Nationality Act,

8 U.S.C. §§ 1225 and 1226, they were entitled to show that they

qualified for the benefits of that right in the course of their ex-

clusion hearings. Alternatively, petitioners argued that they were

entitled to a full and fair evidentiary hearing before an impartial

decision-maker pursuant to the Protocol, the Administrative Pro-

cedure Act, and the due process clause of the Fifth Amendment.

The district court dismissed the petition. In a brief opinion,

it held that the procedures followed by INS “were largely im-

mune from judicial control” (29a) and that there was “no capri-

cious or arbitrary action .. . that would warrant intervention by

the United States District Court” (30a).

There then followed a series of complicated procedural ac-

tions, which are set forth in the court of appeals’ opinion (12a—

16a) but which are not of importance here.® The case finally

came before the court of appeals and was decided by it in the

posture described above.

3. The court of appeals affirmed the district court’s order

dismissing the action, It held that the Protocol did not create

new substantive or procedural rights for aliens physically present

in the United States seeking protection against return to a coun-

try in which their lives or freedom would be threatened for

political or social reasons. In reaching its conclusion, the court

of appeals relied exclusively upon statements in the legislative

history to the effect that the Protocol would not require the

United States “to admit new categories or numbers of aliens”

6. The case was appealed to the court of appeals, which remanded to

the district court (A.A, 82a). The district court remanded to INS (A.A.

83a), issued a series of clarifying orders (A.A. 84a, 10a), and ultimately

“returned” the case to the court of appeals on the basis of its original de-

cision (A.A. 112a — 115a, 119a; App. D, post at 32a). Neither INS nor the

district court took any further action with respect to petitioners during

the course of these further proceedings.

(18a), and that the Attorney General would be able to adminis-

ter Articles 32 and 33 of the Protocol “without amendment of

the [Immigration and Nationality] Act” (17a). It thus con-

cluded that “the Protocol left intact the INS procedure for de-

termining refugee status, and that procedure was followed in

this case without abuse of discretion” (22a).

The court of appeals also held that since petitioners were

excludable aliens who had not formally entered the United States,

the government was free to act toward them without any consti-

tutional limitation whatever. Accordingly, the court rejected pe-

titioners’ claim that they were entitled to due process of law in

the consideration of their applications for asylum (22a — 25a).

Reasons for Granting the Writ

This case presents the Court with a crucial opportunity to

clarify the meaning and scope of the Protocol Relating to the

Status of Refugees, a treaty ratified by the Senate and acceded

to by the President to assure that this nation will not cooperate

with attempts by foreign regimes to suppress human rights and

freedoms. The opinion of the court of appeals renders the

Protocol a nullity as far as providing legal assurance against

bureaucratic actions which would return political or social dissi-

dents or minorities to regimes which would persecute them for

those reasons. As we show post, the court of appeals’ holding

is contrary to interpretations of the Protocol made by other fed-

eral courts, by the Board of Immigration Appeals, and by senior

officials of the Immigration and Nationality Service, the State

Department, and even the Justice Department. The construction

of such an important international treaty, the application of

which will affect — perhaps definitively — the lives and freedom

of many individuals subject to the jurisdiction of the United

States, should not be left in the confused and contradictory state

in which it presently rests as a result of the opinion of the court

of appeals.

It is especially necessary that the Court confront the task

of interpretation now rather than later because of the human

exigency of the case. This is potentially a capital case.” Peti-

tioners seek protection against return to a country in which

political repression, torture of political prisoners, and summary

executions and brutality are the usual practice.’ They fear that

they will be subject to that fate if the orders of exclusion and

deportation are carried out. Their applications for political asy-

lum were denied pursuant to administrative procedures which

can give this Court no assurance that their fears are groundless.”

Contrary to the overblown fears of the court of appeals

(19a), petitioners do not seek to litigate the merits of their

claims to be bona fide refugees in the federal courts. All they

seek is an order requiring the government to provide them with

a full and fair opportunity to prove that, in the words of the

Protocol, their fears are “well-founded.”’ Given the limited

nature of the relief sought, the faulty premises and analysis of

the court of appeals’ opinion, and the extraordinary conse-

quences of improper denials of political refugee status, certiorari

should be granted to determine the novel questions presented by

this case.

1. In holding that ‘tno new rights or entitlements were

vested in these petitioners by operation of the Protocol” (19a),

7. At stake ultimately are the lives and freedom not only of the peti-

tioners herein, but also those of several hundred other Haitians whose cases

are similar. Cf, e.g., Sannon v. United States, 427 F. Supp. 1270 (S.D.

Fla. 1970), involving about 300 Haitian asylum applicants.

8. That this is true is confirmed by the most recent study of the human

rights situation in Haiti by Amnesty International, an impartial observer of

the treatment of political prisoners around the world. Amnesty’s fairness

and accuracy have been recognized by the State Department. Excerpts from

the latest Amnesty International Report on Haiti are reproduced in Appen-

dix G hereto (post at 40a — 43a).

9. Many of these petitioners, as well as hundreds of other similar situa-

ted Haitians, have sworn to accounts of arbitrary arrests, of torture, of de-

tention without trial, and of summary executions. The accounts are so hair-

raising that they are difficult to believe, until corroborated time after time

by new arrivals seeking asylum, by testimony of the few ex-political pris-

oners who have escaped or been released, and by independent observation

of groups such as Amnesty International (See n. 8, supra; Appendix G, post).

the court of appeals totally ignored the plain meaning of Ar-

ticle 33 of the Protocol. Cf., Caminetti v. United States, 242

U.S. 470, 485. The language of the Article is unambiguous and

mandatory:

No contracting state shall expel or return (“refouler’’) a

refugee in any manner whatsoever to the frontiers of

territories where his life or freedom would be threat-

ened on account of his race, religion, nationality,

membership of a particular social group or political

opinion.

By the terms of Article 33, the United States is precluded from

returning bona fide refugees to the country in which they would

be persecuted. No exception is made for refugees not “lawfully”

within the United States or for refugees who have not effected

a formal “entry.” The Protocol is a restriction upon the actions

which the United States may take with respect to any bona fide

refugee subject to its jurisdiction.'°

In the face of the clear words of Article 33, the court of

appeals drew support for its conclusion solely from several iso-

lated and ambiguous statements in the legislative history by

10. Article 33 is to be contrasted with Article 32, which provides that

a contracting state shall not deport a refugee lawfully in its territory to any

other country. Article 33 is not restricted to refugees lawfully within the

territory of the contracting state, but applies to all refugees. Unlike

Article 32, however, Article 33 does not act as an absolute bar to depor-

tation to another country; it only assures that the refugee will not be re-

turned to the state in which his life or freedom will be threatened. Under

Article 33, a contracting state may deport a refugee to another state will-

ing to accept him and which will not threaten his life or freedom. If de-

portation to such a country is not possible or practical, however, then the

retugee must be allowed to remain in the country of refuge. See Grahi-

Madsen, The Status of Refugees in International Law 223-224, 435, and

passim; Robinson, Convention Relating to the Status of Refugees — Its

History, Contents, and Interpretation 156-157 (1951); Hearings on Indo-

china Refugees Before the Subcommittee on Immigration, Citizenship and

International Law of the House of Representatives Committee on the

Judiciary, 94th Cong. 1st Sess. 37, 42-43 (1975); Memorandum for the

United States in Opposition in Kan Kam Lin v. Rinaldi, No. 73-1710 (Oc-

tober Term 1974), pp. 5-6.

Senator Sparkman and Lawrence Dawson, the then-Acting Dep-

uty Director of the Office of Refugee and Migration Affairs of

the State Department. The court of appeals’ reliance on these

statements not only is unjustified, but reflects the court’s failure

to analyze th« context and structure of the Immigration Act at

the time of ratification or at the present time.

In his testic:ony before the Senate Foreign Relations Com-

mittee, Deputy Director Dawson assured the Committee that

accession to the Protocol would not require the United States

to amend the Immigration Act or to admit new categories or

numbers of aliens (17a-18a). These assurances were entirely

consistent with the scope and force of the right created by the

words of Article 33. Article 33 in no way requires the United

States to “admit” new categories of aliens into the United States.

It has nothing to do with immigrant status, immigration quotas,

or labor certification requirements.'? Rather, as Dawson made

clear, Article 33 establishes “the asylum concept . . . against the

return of a refugee” to a persecuting country (17a) (emphasis

added). As already noted (n. 10, ante), Article 33 does not re-

quire that a refugee even be permitted to remain in the United

States. While it may be that in some, or even most, instances the

United States will not wish to effect deportation of a bona fide

refugee to another non-persecuting country, such refugee will re-

main in the United States on only a temporary basis, and as a

non-immigrant.’?_ The number of immigrants admitted into the

United States would not be affected, and no change in the Immi-

gration Act would be necessary to accommodate such refugee.

At the time that the Protocol was ratified, there was no

11. A different panel of the court of appeals recognized this point on a

collateral issue in this very case, in holding that petitioners — being non-

immigrants — are not bound by the labor certification requirements of the

Immigration Act. Pierre v. United States, 525 F.2d 933, 935 (Sth Cir. 1976).

12. Congress, of course, could choose to amend the Immigration Act so

that such a refugee may regularize his status. A bill authorizing regulariza-

tion of status in some instances is pending in the House of Representatives,

and has received the endorsement of the Justice Department. See H.R. No.

3056, 95th Congress, Ist Session.

general asylum provision in the Immigration Act with as broad a

scope as Article 33. Section 243(h) of, the Act, 8 U.S.C. §1253(h),

authorized the Attorney General to withhold deportation of a

political refugee, but no similar protection was afforded an alien

seeking asylum who arrived at the frontiers of the United States

and thus was subject to exclusion proceedings.'? To be sure, it

was the announced policy and practice of the United States to

afford asy'u « to all excludable bona fide refugees who arrived at

its frontiers but that policy and practice was not reflected in law

and therefore was not binding upon the government. See Matter

of Dunar, supra. The effect of the Protocol, therefore, was to

make mandatory upon the United States implementation of its

previous practice and policy of extending asylum to excludable

alien refugees physically present in the United States. This ef-

fected no “radical change”’ in the immigration laws of the United

States; it did, however, create a new legal right against forced

return to a country of persecution where no such legal right had

existed previously.

The court of appeals holding to the contrary, that no new

substantive right was created for excludable refugees, is not shared

by other courts, executive officers, scholars, and the international

community. In a recent deision involving about 300 Haitians

similarly situated to the petitioners in this case, Judge James L.

King of the United States District Court for the Southern Dis-

trict of Florida recognized the clear and explicit right to asylum

created by Article 33. Sannon v. United States, 427 F. Supp.

1270 (1977). The Board of Immigration Appeals in the Dunar

case, supra, similarly has held that Article 33 creates an absolute

right of non-refoulement and “‘leaves no room for the exercise of

discretion.” Slip op. at 14. Former INS Commissioner Chapman

recently testified before Congress on the effect of Article 33 and

explained that:

13. In addition, section 243(h) was couched in discretionary terms

while Article 33 is mandatory, but the Board of Immigration Appeals has

held that section 243(h) affords very limited, if any, discretion to the

Attorney General to refuse to withhold deportation of a bona fide refugee.

roe of Dunar, Board of Immigration Appeals Interim Decision No. 2192

1973),

Any person setting foot on United States soil, under the

terms of the Asylum protocol, is entitled to apply for

asylum. He cannot be returned forcibly to his country

of origin, so they are here.

Hearings on Indochina Refugees, supra n. 10, at 34. See also id.

at 29, 30, 42-43, 48, 74, 79.

At the same proceeding, the State Department’s legal repre-

sentative explained, with respect to a hypothetical Indochinese

refugee who arrives at United States frontiers, that:

We are barred from returning him to the territory where

he has a well-founded fear of being persecuted because of

political opinion or otherwise.

He could be sent through the deportation or exclusion

process to another country which is willing to accept

him. If such a third country could not be located, we

would presumably have the individual in a kind of in-

definite status, subject to exclusion as soon as a proper

location could be found, or until his fear of persecution

was found to be unwarranted.

Id. at 37. Similar interpretations of the effect and scope of Ar-

ticle 33 have been made elsewhere by the State Department,"*

the Solicitor General,'* the leading scholars who have analyzed

the Protocol,’® and the United Nations High Commission for

14. See United States Policy Guideline for Asylum Requests, 66 Dept.

of State Bull. 609 (1972); Hearings Before the Subcommittee on Inter-

national Organizations of the House of Representatives Committee on

International Relations, Human Rights in Haiti 4 (1975) (Comments of

Deputy Assistant Secretary of State William Luers).

15. Brief of the United States in Opposition in Kan Kam Lin v. Rinaldi,

supra n. 10, pp. 5-6.

16. Grahl-Madsen, The Status of Refugees in International Law 223-224,

435; Weis, The United Nations Declaration or Territorial Asylum, Canadian

Yearbook of International Law 92, 124 (1969); Robinson, Convention Re-

lating to the Status of Refugees — Its History, Contents and Interpretation

156-157 (1951).

Refugees.'’ The court of appeals is alone in its interpretation of

Article 33, and it can find no support whatever for its view.

2. If Article 33 indeed creates a right on behalf of a bona

fide political refugee not to be returned to a country of persecu-

tion, the critical question then becomes factual: whether an

alien is a bona fide refugee, as defined in Article 1. Clearly some

kind of “hearing” is required to make such a determination. Pe-

titioners submit that, at the least, the summary interview proce-

dures followed in this case were legally insufficient, and that an

evidentiary hearing was required (1) by statute, pursuant either

to the Immigration and Nationality Act or the Administrative

Procedure Act, and (2) as a matter of constitutional due process.

The court of appeals rejected petitioners’ argument, con-

cluding that Congress was aware of and approved summary pro-

cedures of the type followed in this case, and that Congress’ de-

cision could not be challenged on constitutional grounds. The

court again relied upon the comments of Lawrence Dawson of

the State Department to the Senate Foreign Relations Commit-

tee that the Immigration Act prior to the Protocol was in major

part consistent with the Protocol, and that therefore “‘the Attor-

ney General will be able to administer [Articles 32 and 33] in

conformity with the Protocol without amendment of the Act”

(17a). Neither Dawson nor any other official made the

slightest suggestion, however, that in administering the Protocol

the Attorney General would or could utilize summary interview

procedures rather than a fair hearing. Nevertheless, the panel,

relying upon the fact that prior to accession to the Protocol ex-

cludable aliens were not entitled by statute or regulation to an

evidentiary hearing on asylum applications, held that Congress

approved the summary non-hearing procedures utilized here:

Because the Protocol contained no procedures for mak-

ing this determination, and because Congress saw fit at

17. See, e.g., Report of the United Nations High Commissioner for

Refugees, General Assembly, 29th Session, Supplement No. 12(A/9612)

(Oct. 17, 1974), pp. 3, 5-7; Addendum to the Report, Supplement No.

12A (A/9612/Add.1); Addendum to the Report of the United Nations

High Commissioner for Refugees, General Assembly, 30th Session, Sup-

plement No. 12A (A/10012/Add.1) (Oct. 1975).

the time of accession to leave existing procedures un-

changed, we conclude that it was the intent of Congress

that existing procedures be followed. These procedures

were followed with respect to petitioners’ application

for refugee status in this case.

20a — 21a (emphasis added).

There is absolutely no warrant to the court of appeals’

view. In the first place, the so-called “existing procedures” fol-

lowed in the instant case, which the court of appeals held Congress

approved, were not even authorized until 1972 when the Operations

Instructions directing interviews of asylum applicants first were

issued. See Gordon & Rosenfeld, Immigration Law and Procedure

§2.3i, pp. 2-242 (1976); 49 Interpreter Releases No. 44 (Nov.

17, 1972).'® Thus it would have been impossible for Congress in

1968 to have intended that such procedures be used to ad-

minister Article 33.

An examination of immigration law and practice in 1968

reveals that there were indeed existing fair procedures which

were available to administer Article 33, and that Congress in-

tended that they be utilized. We refer to the statutory provi-

sions for deportation and exclusion hearings. 8 U.S.C. §§1251,

1252 and 8 U.S.C. §§1225, 1226.

It will be recalled (ante at 11)that prior to accession to the

Protocol, section 243(h) of the Immigration Act specifically

authorized the Attorney General to withhold deportation, but

not exclusion, of bona fide refugees. 8 U.S.C. §1253(h). Im-

plementation of section 243(h) was effected by permitting the

18. The Operation Instructions are set forth in the court of appeals

opinion (8a — 9a). The court of appeals assumed, without analysis,

that the Operations Instructions authorized the summary procedures

followed in this case, ie., that the District Director complied with the

Instructions. Petitioners note that even the Operations Instructions

required that the District Director give each petitioner “an opportunity

to fully present his case” with “detailed facts”; the summary inter-

views provided here in no meaningful way complied with that man-

date. The court of appeals failed to address petitioners’ argument on

this point.

I esis bas

deportable asylum seeker to raise the issue before an immigration

judge in the course of a deportation hearing. 8 C.F.R. §242.8.

An excludable alien could not raise his claim to be a refugee in the

course of an exclusion hearing because an excludable alien had

no legal right to asylum. The “policy and practice” of the United

States to extend asylum to excludable refugees was administered

informally, without statutory or regulatory mandated proce-

dures.

Article 33 of the Protocol equalized the legal right of exclud-

able and deportable refugees not to be returned to a country in

which they would be persecuted. One question which obviously

concerned the Senate was the procedural method for implement-

ing Article 33. In a statement to the President and to Congress

in support of the Protocol, Secretary of State Rusk explained

that Article 33 “is comparable [not identical] to section 243(h)

... and it can be implemented within the administrative discre-

tion provided by existing regulation.”’ Senate Exec. K, 90th

Cong. 2d Sess. at VIII. Existing regulation delegated to the Com-

missioner of INS authority “to issue regulations as deemed neces-

sary or appropriate for the exercise of any authority delegated

to him by the Attorney General . . .” 8 C.F.R. §2.1. Section 103

of the Act gave the Attorney General power “to establish such

regulations . . . as he deems necessary for carrying out his author-

ity... ,” which included “administration and enforcement of

this chapter and all other laws relating to the immigration . . . of

aliens.” 8 U.S.C. §1103.

In short, the State Department assured Congress that it

need not pass legislation to implement Article 33 because exist-

ing authority permitted use of procedures comparable to those

which already existed implementing section 243(h).”° Despite

19. Even then, however, it was the practice, as mandated by the district

courts, to provide an excludable alien seeking asylum with a full and fair

evidentiary hearing on his claim. See, e.g., Clavic v. Beechie, 225 F. Supp.

24 (S.D. Tex. 1963), aff’d., 340 F.2d 91 (Sth Cir. 1964); United States ex

rel. Kordic v. Esperdy, 274 F. Supp. 873 (S.D.N.Y. 1967); Vucinic v. INS,

243 F. Supp. 113 (D. Ore. 1965).

20. The most that was required was promulgation of a regulation that

an excludable alien could raise his claim to asylum under the Protocol in

the course of his exclusion hearing. This would have paralleled the existing

regulation which permitted and permits a deportable alien to raise an asy-

lum claim in the course of his deportation hearing. 8 C.F.R. §242.8.

this assurance, however, no formal procedures for determination

of refugee status of excludable aliens were established at all un-

til 1972, and then only the vague and inadequate procedures of

the Operations Instructions were authorized (but not followed

in this case). The failure of INS and the Attorney General to

provide full and fair procedures can in no way be imputed to

Congress.?#

Indeed, as Judge King convincingly demonstrates in his

Sannon opinion, the statutory scheme existing at the time of

ratification of the Protocol, and existing today, requires that

INS permit excludable aliens to prove that they are Article 1

refugees entitled to the protection of Article 33 in the course of

their exclusion hearings. The court of appeals had the Sannon

opinion before it, but chose to ignore it rather than answer it or

accept it. Petitioners submit that the Sannon decision is indubi-

tably correct and requires that certiorari be granted and the court

of appeals decision reversed. This is especially true because the

21. Indeed, it is difficult to believe that Congress would have approved

the absurd distinction in the administration of Article 33 which presently

exists:

Consider two aliens who, fleeing their homeland, arrive at the

United States. The first enters illegally and secrets himself in the

community until he is finally caught. Because he “has” officially

entered, he is deportable. The second alien chooses to surrender

himself upon entry and is thereupon paroled into the country.

According to the prevailing interpretations he is excludable.

The Protocol does not differentiate between the rights these two

aliens should have, and logically it is difficult to see why the ex-

cludable alien should be at any disadvantage. [Present procedures] ,

however, render the excludable alien at a monumental procedural

disadvantage in asserting rights under the Protocol . . .

Since the Protocol grants the same rights to both of the hypotheti-

cal aliens, the resulting disparity in number and types of oppor-

tunities available for the establishment of these rights finds no

justification in the Protocol, in logic or in fairness.

Sannon v. United States, supra, 427 F. Supp. at 1276 (footnotes omitted).

Sannon analysis makes it unnecessary to reach or decide the dif-

ficult and important constitutional issues posed by the panel’s

insupportable conclusion that Congress intended that determina-

tions of refugee status be made in the summary, non-evidentiary

manner in which they were made in this case. Cf., Kent v. Dulles,

357 U.S. 116.

3. Even if, however, petitioners did not have a right under

the Immigration Act to raise their claims to be Article 1 refugees

in the course of their exclusion hearings, they did have a due

process constitutional right to a fair evidentiary hearing at which

they could prove the validity of their claims.

The right not to be returned to a country in which one’s

life or freedom would be threatened is by definition a liberty

right within the meaning of the Fifth Amendment. See Fong Foo

v. Shaughnessy, 234 F.2d 715 (2d Cir. 1955); United States ex

rel. Mercer v. Esperdy, 234 F. Supp. 611, 615 (S.D.N.Y. 1964);

cf., Ng Fung Ho v. White, 259 U.S. 276, 284. The State Depart-

ment itself emphasized the point in urging the Senate to ratify

the Protocol. In his statement to the Committee on Foreign Rela-

tions, Deputy Director Dawson stated:

The Protocol is a human rights document. The human

rights which it covers for the refugees involved are of the

most crucial and the most important type. They are lit-

erally the difference between life and death for many of

them. They are in all cases the difference between the

opportunity to live in dignity as a decent, self-supporting,

selfrespecting human being, or else in the absence of

such opportunity, to languish in camps or otherwise in a

state of dependency.

Senate Executive Report No. 14, 90th Cong. 2nd Sess. (Sept. 30,

1968), p. 4. See also Report of the United Nations High Com-

missioner on Refugees, General Assembly, Twenty-Ninth Session,

Supplement No. 12 (A/9612) (1974), pp. 5-6.

Denial of asylum to an alien claiming refugee status and

forced return to the country from which the alien has fled con-

stitutes a truly “grievous loss’’?* in the most basic sense. And it

matters not that the source of the claimed right against refoule-

ment derives from a treaty, ratified by the United States Senate

and having the force and effect of a statute. Wolff v. McDonnell,

418 U.S. 539, 557, 558. Accordingly, the government may not

deprive petitioners of their liberty on the basis of a finding that

they are not, in fact, Article I refugees unless such finding is

made pursuant to procedures commensurate with the due proc-

ess clause of the Fifth Amendment. See Morrissey v. Brewer,

408 U.S. 471; Board of Regents v. Roth, 408 U.S. 564; Gagnon

v. Scarpelli, 411 U.S. 778; Wolff v. McDonnell, supra.

The court of appeals rejected petitioners’ due process argu-

ment on two grounds. First, the court held that it does not mat-

ter whether or not Article 33 creates a liberty right because the

District Director found that petitioners were not bona fide refu-

gees, pursuant to procedures of which Congress purportedly was

cognizant and which it intended to leave “intact” (20a). Even

assuming that Congress intended the summary non-evidentiary

procedures utilized here, however, the court of appeals analysis

is circular and contrary to due process doctrine as applied by

this Court.

The entire point of due process is to guard against inade-

quate fact-finding processes. The court of appeals cannot prop-

erly avoid analysis of whether a liberty right is at stake and

whether the procedures followed were constitutionally sufficient

merely by noting that petitioners were found not to be refugees

pursuant to the very procedures whose adequacy is drawn into

question.

The point the court of appeals rather inartfully attempted

to draw was that Congress, in its view, conditioned the substan-

tive rights created by Article 33 upon submission to the sum-

mary non-evidentiary procedures followed. But modern due

process doctrine specifically rejects such an analysis. See Arnett

v. Kennedy, 416 U.S. 134, 177-187 (Opinion of White, J.), 165-

22. Morrissey v. Brewer, 408 U.S. 471, 481: Joint Anti-Fascist Refugee

Comm. v. McGrath, 341 U.S. 123, 168 (Frankfurter, J., concurring).

‘ ote ne C8

167 (Opinio: of Powell, J.). The Court repeatedly has made clear

that once a liberty right is created, even if by statute, its enjoy-

ment cannot be conditioned upon constitutionally inadequate

procedures. Wolff v. McDonnell, supra; Gagnon v. Scarpelli

supra.”

The second ground on which the court of appeals attempted

to justify its result was that “petitioners are not entitled to con-

9 /

stitutional protections’’ (24a) because they are excludable aliens

who have not effected a formal “entry” into the United States.

The implications of the court of appeals holding are appal-

ling. If petitioners cannot invoke even the protections of proce-

dural due process, there would be no bar to the government

ordering their summary imprisonment, torture or execution for

any or no reason and without trial or hearing of any kind. This

never has been nor could be the law. While it may be true, as the

court stated, that the protections of the United States Constitu-

tion “cannot be afforded to the entire population of the world”

(24a), it also always has been true that in acting with respect to

an alien physically present in the United States and over whom

it has power to exercise its sovereignty, the United States must

act within constitutional limitations. Thus in Wong Wing v.

United States, 163 U.S. 228, the Court rejected the government's

claim that it could criminally punish a deportable or excludable

alien or deprive him of his property without affording him con-

stitutional due process, including trial by jury. The court stated

“all persons within the territory of the United States are en-

titled to the protection guaranteed by the [Fifth and Sixth]

Amendments.” 163 U.S. at 238.

Other decisions of the Court and of lower federal courts

have been to the same effect.”*

23. We already have noted the court of appeals’ error in concluding that

Congress intended such procedures.

24. See, e.g., Balzac v. People of Puerto Rico, 258 U.S. 298, 312-313

(“The Constitution of the United States is in force . .. wherever and when-

ever the sovereign power of that government is exerted”); Yick Wo v. Hop-

kins, 118 U.S. 356, 369; Downes v. Biddell, 182 U.S. 244, 283; Russian

Volunteer Fleet v. United States, 282 U.S. 481, 489, 491-492; United States

v. Pink, 315 U.S. 203, 228; Sardino v. Federal Reserve Bank, 361 F.2d 106,

111 (2d Cir. 1966); United States v. Toscanino, 500 F.2d 267, 280-281

(2nd Cir. 1974).

The court of appeals relied on a line of cases culminating in

Kleindienst v. Mandel, 408 U.S. 753, holding that there is no

constitutional limitation upon Congress’ plenary power to define

the categories of aliens who may be admitted into the United

States or who may be permitted to stay here temporarily. But

that line of cases does not control here. Petitioners do not claim

that the right to asylum arises out of the Constitution. Rather, it

is a right created by the political branches by their accession to

the Protocol. The court of appeals ignored the warning of this

Court in the very case upon which it relied that once a category

of admission is created by Congress, as it was here, an alien can-

not be denied entry pursuant to that category without being

provided procedural due process of law.

Policies pertaining to the entry of aliens and their right

to remain here are peculiarly concerned with the politi-

cal conduct of government. In the enforcement of these

policies, the Executive Branch of the Government must

respect the procedural safeguards of due process.

Kleindienst v. Mandel, supra, 408 U.S. at 766-767 (emphasis

added), quoting from Galvan v. Press, 347 U.S. 522 at 531-532.

Accordingly, the constitutional aspects of the court of ap-

als decision are dramatically at variance with established doc-

trine of this Court. Petitioners are entitled to due process of law

in the consideration of their asylum applications.

4. We shall not discuss at length at this stage of the case the

estion of what process petitioners are due under the due proc-

ess clause.2® Petitioners submit, however, that upon analysis of

“the degree of potential deprivation that may be created by” an

25. The Court need not even reach the question of the precise proce-

dures which would be required under the Constitution, because the nature

of those procedures is established by the Administrative Procedure Act,

5 U.S.C. §551, et seg. The Act applies in every case of “adjudication re-

quired by statute to be determined on the record after opportunity for an

agency hearing.” 5 U.S.C. §554. It has been interpreted to apply to all

agency determinations in which a hearing is required not only by explicit

statutory provision, but also by the Constitution or where a statute should

eee ese

PE i tet ee ee ee ee

adverse decision, “the nature of the relevant inquiry,” i

, ul quiry,” and “‘th

probable value . . . of additional procedural orn AM Mathews

v. Eldridge, 424 U.S. 319, 341, 343, the Court must conclude

that a full evidentiary hearing is required:

[C] laims for political asylum seem to be of the

. . ty - ;

erly heard at evidentiary hearings. Such claims af a

factual issues that go beyond those which can be decided

fairly from short interviews with recently landed aliens,

many of whom are physically exhausted ili

oi Ge mesa phy y exhausted and unfamiliar

Sannon v. United States, supra, 427 F. Supp. at 1275.6

“be interpreted as manifesting a Congressional intentio

n so to require.”

H.R. Report No. 1980, 79th Cong. 2nd Sess., 51 n. 9 ( 1946). re Wo

Yang Sun v. McGrath, 339 U.S. 33. ?

Here, some kind of hearing not only is constitutionally re

inherently necessary to determine whether or not an alien is at voy

refugee. The Protocol must be interpreted “as manifesting a Congressional

intention” that a hearing be provided, The nature of the hearing, therefore

is established by the Administrative Procedure Act.

Petitioners are aware that Congress carved out a limited exception to th

APA hearing requirements by creating “special administrative pcan

for deportation and exclusion cases. Marcello v. Bond, 349 U.S. 302, 310.

Indeed, petitioners have argued that asylum determinations should be made

in those special administrative proceedings. See ante at 15-17. If the

Court finds, however, that exclusion hearings do not properly encompass

asylum determinations, then it must also conclude that Congress created

no “special administrative proceeding” for the determination of such ques-

tions, and therefore the APA hearing requirements apply.

26. The United Nations High Commissioner on refu

gees has emphasized

the importance of full procedures in the determination of asylum p a

Such procedures are of particular importance due to the special

problems facing the asylum seeker. The latter is by nature an up-

rooted person who finds himself in a new environment and may

have psychological and language difficulties in putting forward his

case.

Report of the High Commissioner, General Assembly, Twenty-Nin

sion, Supplement No. 12 (A/9612) (1974), p. 7. i also Note on —

national Protection, United Nations Document A/AC96/518 (1975);

Report of the High Commissioner, General Assembly, Thirtieth Session

Supplement No. 12 (A/10002) (1975), p. 4.

At the least, petitioners are entitled to reasonable notice, to a

fair opportunity to prepare and present their case, to be apprised

of and to have the opportunity to respond to opposing evidence,

and to an opportunity to consult with and be represented by

counsel or counsel-substitute. And the summary interview proce-

dures followed in this case can meet no standard of constitu-

tional due process.

No claim can be made that the administrative burden of an

evidentiary hearing would be intolerable. As we have noted, a

bill is pending in the House of Representatives which would sub-

stantially broaden United States immigration policy with respect

to refugees. H.R. No. 3056, 95th Congress, Ist Session. Section

5(e) of that bill would provide that excludable aliens may raise

their asylum claims in the course of their exclusion hearings. The

Immigration Service and the Justice and State Departments have

testified in support of the bill, including section 5(e). Clearly,

they heve decided that administrative convenience is not and

- should ,ot be a bar to full and fair asylum hearings.

Indeed, we cannot help but question, as the Court might,

why the Justice Department continues to resist the relief peti-

tioners seek in this case. While much of what is contained in H.R.

No. 3056 requires congressional action, the relief sought here

does not. The Attorney General has ample authority to provide

the appropriate relief by regulation, as he has done with respect

to deportable aliens seeking asylum pursuant to Article 33. Cf.,

8 C.F.R. § 242.8. A simple one sentence regulation would pro-

vide a fair measure of justice, further Justice Department policy

as reflected in its support of section 5(e) of H.R. No. 3056, and

eliminate the need for extended litigation such as this case and

the Sannon case.

Petitioners formally have requested that such a regulation

be promulgated, but have received no reply.

CONCLUSION

. If, as Justice Frankfurter once observed, “the history of

liberty has largely been the history of observance of coal

safeguards,” McNabb v. United States, 318 U.S. 332, 347, tuen

there can be no doubt that the present case is a black mark in-

deed on that history. Fortunately, our law does not require — or

permit — that result.

For the reasons state. , the petition for writ of certiorari

should be granted.

Respectfully submitted,

ERIC M. LIEBERMAN

Rabinowitz Boudin & Standard

30 East 42nd Street

New York, New York 10017

Attorneys for Petitioners

July 1977

;

}

;

p |

‘

APPENDIX A

Opinion of the Court of Appeals

Marie PIERRE et al.,

Petitioners-Appellants,

Vv.

UNITED STATES of America,

Respondent-Appellee.

No. 75-3975.

United States Court of Appeals,

Fifth Circuit.

March 7, 1977.

Appeal from the United States Dis-

trict Court for the Southern District of

F'orida.

Before AINSWORTH and CLARK,

Circuit Judges, and HUGHES,”’ District

Judge.

AINSWORTH, Circuit Judge:

This is an immigration case involving

the appeal of a number of Haitian aliens

who claim asylum in the United States

as political refugees. Petitioners, 147

Haitian nationals who admit their ex-

cludability under 8 U.S.C. § 1182(a)(29)

(lack of appropriate documentation), re-

quested parole into the United States

under section 1182(d)(5) as political refu-

* Senior District Judge for the Northern District

of Texas, sitting by designation.

gees as defined in the United Nations

1967 Protocol and Convention Relating

to the Status of Refugees, 19 U.S.T.

6223, T.I.A.S. 6557. The Immigration

and Naturalization Service [INS] denied

parole and petitioners brought this habe-

as corpus action in United States District

Court. Relief was denied but we re-

manded the case on motion of petitioners

to allow them to provide INS with addi-

tional material concerning their status.

When none was forthcoming this cause

was “returned” to us by the District

Court.

On this appeal petitioners assert statu-

tory and constitutional rights which they

contend accrue to them by operation of

the Protocol; further, they assert a deni-

al of due process by the INS, and argue

that INS procedures for considering ref-

ugee applications are inadequate and

that new procedures should be required.

We affirm the District Judge's denial of

the habeas corpus petition. .

Petitioners were among 216 Haitians

who left their country in small groups by

boat, during 1972 and early 1973. Upon

arriving at United States ports all imme-

diately were taken into the custody of

immigration officers without having

made “entry.”' They were then exam-

ined by immigration officers in accord-

. tion 101(a)(13) of the Immigration and

enmunatiey Act of 1952, 8 U.S.C. § 1101(a)(13),

provides: .

The term “entry” means any coming of an

alien into the United States, from a foreign

Plt tee tele be wa pronsde: en <<. sap

ee ee ee en en

;

ns)

;

ance with section 235 of the Immigration

and Nationality Act, 8 U.S.C. § 1225,

which provides in pertinent part:

All aliens arriving at ports of the

United States shall be examined by

one or more immigration officers at

the discretion of the Attorney General

and under such regulations as he may

prescribe. . . . Any person com-

ing into the United States may be re-

quired to state under oath the purpose

or purposes for which he comes, the

length of time he intends to remain in

the United States permanently and, if

an alien, whether he intends to become

a citizen thereof, and such other items

of information as will aid the immi-

gration officer in determining whether

he is a national of the United States

or an alien and, if the latter, whether

he belongs to any of the excluded

classes enumerated in section 1182 of

this title.

port or place or from an outlying possession,

whether voluntarily or otherwise, except

that an alien having a lawful permanent resi-

dence in the United States shall not be re-

garded as making an entrv into the United

States for the purposes of 2 immigration

laws if the alien proves to the satisfaction of

the Attorney General that his departure to a

foreign port or place or to an outlying pos-

session was not intended or reasonably to be

expected by him or his presence in a foreign

port or place or in an outlying possession

was not voluntary: Provided, That no per-

son whose departure from the United States

was occasioned by deportation proceedings,

extradition, or other legal process shall be

held to be entitled to such exception.

Examination by immigration officers of

these Haitians revealed that each of the

petitioners sought to enter the United

States without appropriate entry docu-

ments. This lack of documents brought

them within the terms of 8 U.S.C.

§ 1182(a)(20), which provides in pertinent

part:

Except as otherwise provided in this

chapter, the following classes of aliens

shali be ineligible to receive visas and

shall be excluded from admission into

the United States:

(20) Except as otherwise specifically

provided in this chapter, any immi-

grant who at the time of application

for admission is not in possession of a

valid unexpired immigrant visa, reen-

try permit, border crossing identifica-

tion card, or other valid entry docu-

ment required by this chapter, and a

valid unexpired passport, or other suit-

able travel document, or document of

identity and nationality, if such docu-

ment is required under the regulations

issued by the Attorney General pursu-

ant to section 118l(a) of this title;

Despite the plain language of the statute

the Attorney General or his delegate can

exercise discretion to parole excludable

aliens into the United States, 8 U.S.C.

§ 1182(d)(5).2 The parole power has

2. 8 U.S.C. § 1182(d)(5) provides:

The Attorney General may in his discre-

been exercised to grant refuge to aliens

who would be subject to persecution on

account of race, religion or political opin-

ion if excluded and returned to his coun-

try of origin. The asylum policy of the

United States is reflected in our acces-

sion to the Protocol. Article 33 of the

Protocol provides:

No Contracting State shall expel or

return (“refouler”) a refugee in any

manner whatsoever to the frontiers of

territories where his life or freedom

would be threatened on account of his

race, religion, nationality, membership

of a particular social group or political

opinion.

The Protocol adopts as its definition of

“refugee” that contained in the United

Nations 1951 Convention Relating to the

Status of Refugees, as follows:

A. For the purposes of the present

Convention, the term “refugee” shall

apply to any person who:

tion parole into the United States temporari-

ly under such conditions as he may pre-

scribe for emergent reasons or for reasons

deemed strictly in the public interest any

alien applying for admission to the United

States, but such parole of such alien shall

not be regarded as an admission of the alien

and when the purposes of such parole shall,

in the opinion of the Attorney Generai, have

been served the alien shall forthwith return

or be returned to the custody from which he

was paroled and thereafter his case shall

continue to be dealt with in the same man-

ner as that of any other applicant for admis-

sion to the United States.

(2) As a result of events occurring

before 1 January 1951 and owing to

well-founded fear of being persecuted

for reasons of race, religion, nationali-

ty, membership of a particular social

group or political opinion, is outside

the country of his nationality and is

unable or, owing to such fear, is un-

willing to avail himself of the protec-

tion of that country; or who, not hav-

ing a nationality and being outside the

country of his former habitual resi-

dence as a result of such events, is

unable or, owing to such fear, is un-

willing to return to it.

(The Protocol specifically deletes the ref-

erence to 1 January 1951.) Department

of State Public Notice 351, “Requests for

Asylum,” 37 F.R. 3447 (Feb. 16, 1972)

provides that “A primary consideration

in U.S. asylum policy is the ‘Protocol

Relating to the Status of Refugees,’ to

which the United States is a party.”

The Notice also contains the following

statement:

Policy. Both within the United

States and abroad, foreign nationals

who request asylum of the US.

Government owing to persecution or

fear of persecution should be given

full opportunity to have their requests

considered on their merits. The re-

quest of a person for asylum or tempo-

rary refuge shall not be arbitrarily or

summarily refused by U.S. personnel.

The Haitian petitioners in this case re-

quested asylum in light of this policy, in

SNe ths Ct

the form of “applications for refugee

status.” The administrative regulations

in effect at the time of the applications,

found at 8 C.F.R. (1974), provide at sec-

tion 103.1(f) that the Attorney General’s

authority under the immigration laws to

grant or deny “any application or peti-

tion submitted to the Service” is delegat-

ed to district directors of the INS! 8

C.F.R. § 212.5{a) further provides that

district directors “may” parole aliens

into the United States, “after a finding

of inadmissibility has been made” ‘ under

3. 8 C.F.R. § 103.1 (1974) provides:

Delegations of authority.

Without divesting the Commissioner of

any of the powers, privileges, and duties del-

egated to him by the Attorney General under

the immigation [sic] and naturalization laws

of the United States, coextensive authority is

hereby delegated to the following described

officers of the Service:

(f) District directors. Under the executive

direction of a regional commissioner (except

district directors outside the United States

.), the grant or denial of any applica-

tion or petition submitted to the Service, the

initiation of any authorized proceeding in

their respective districts ‘i

4. 8 C.F.R. § 212.5(a) (1974) provides in perti-

nent part:

The district director in charge of a port of

entry may, prior to examination by an immi-

gration officer, or subsequent to such exami-

nation and pending a final determination of

admissibility in accordance with sections 235

and 236 of the Act and this chapter, or after

a finding of inadmissibility has been made,

parole into the United States temporarily in

8 U.S.C. § 1182(d)(5). Thus, district di-

rectors are delegated the Attorney Gen-

eral’s discretionary power to parole inad-

missible aliens into the United States.

Pursuant to this provision petitioners

made application to the appropriate dis-

trict director for discretionary parole, as-

serting that they were political refugees.

The INS has promulgated “Operations

Instructions” which include instructions

for handling asylum applications. The

then current instructions provide:

108.1 Requests for asylum. (a)

General. An alien who requests asy-

lum shall be interviewed by an immi-

gration officer and given an opportu-

nity to fully present his case. In ev-

ery case, detailed facts, including basis

for decision and information concern-

ing any subsequent action in the case

shall be included in the subject’s “A”

file.

in the United States. An alien who

requests asylum at time of application

for admission at a seaport or airport of

entry, before or during an exclusion

hearing, or subsequent to such a hear-

ing, shall be interviewed by an immi-

accordance with section 212(d)(5) of the Act

any alien applicant for admission at such

port of entry under such terms and condi-

tions, including the exaction of a bond on

Form 1-352. as such officer shall deem ap-

propriate.

;

gration officer to determine the basis

for his request. . . . In any case

in which the District Director does not

believe that asylum should be granted

and the alien does not withdraw his

request, the District Director shall fur-

nish full particulars by letter to the

Office of Refugee and Migration Af-

fairs, Department of State. Action to

enforce departure shall not be taken in

the alien’s case until the views of that

office have been received and con-

sidered by the District Director.

This procedure was followed, as appears

in the record, and each of the petitioners

was notified by the district director that,

in his judgment after consultation with

the State Department, they were not

subject to political persecution upon re-

turn to Haiti. Accordingly, political ref-

ugee status and “temporary refuge”—

presumably meaning parole—was denied.

Each petitioner was then afforded a

hearing under 8 U.S.C. § 1226 which pro-

vides:

Exclusion of aliens—Proceedings

(a) A special inquiry officer shall

conduct proceedings under this section,

administer oaths, present and receive

evidence, and interrogate, examine,

and cross-examine the alien or wit-

nesses. He shall have authority in any

case to determine whether an arriving

alien who has been detained for fur-

ther inquiry under section 1225 of this

title shall be allowed to enter or shall

be excluded and deported. The deter-

10a

mination of such special inquiry officer

shall be based only on the evidence

produced at the inquiry. No special

inquiry officer shall conduct a proceed-

ing in any case under this section in

which he shall have participated in in-

vestigative functions or in which he

shall have participated (except as pro-

vided in this subsection) in prosecuting

functions. Proceedings before a special

inquiry officer under this section shall

be conducted in accordance with this

section, the applicable provisions of

sections 1225 and 1357(b) of this title,

and such regulations as the Attorney

General shall prescribe, and shall be

the sole and exclusive procedure for

determining admissibility of a person

to the United States under the provi-

sions of this section. At such inquiry,

which shall be kept separate and apart

from the public, the alien may have

one friend or relative present, under

such conditions as may be prescribed

by the Attorney General. A complete

record of the proceedings and of all

testimony and evidence produced at

such inquiry, shall be kept.

Appeal

(b) From a decision of a special in-

quiry officer excluding an alien, such

alien may take a timely appeal to the

Attorney General, and any such alien

shall be advised of his right to take

such appeal.

Finality of decision of special in-

quiry officers

lla

tions (b) or (d) [physical and mental

defects] of this section, in every case

where an alien is excluded from ad-

mission into the United States, under

this chapter or any other law or treaty

now existing or hereafter made, the

decision of a special inquiry officer

shall be final unless reversed on appeal

to the Attorney General.

Petitioners’ cases were each heard by a

special inquiry officer, or Immigration

Judge. In each case the Haitians were

represented by counsel; transcripts of

the hearings appear in the record along

with transcripts of the Immigratior

Judges’ oral opinions. In each case peti-

tioners were found to have no basis for

entry into the United States. The Immi-

gration Judges uniformly noted that

they lacked jurisdiction to review the re-

fusal of refugee status and discretionary

denial of parole, such discretion having

been vested exclusively in the district

directors. Under these circumstances

each Haitian was found excludable and

ordered deported.

The Attorney General has delegated

his appellate jurisdiction over exclusion

and deportation hearings to a Board of

Immigration Appeals, 8 C.F.R. § 3.1(b)(1)

(1974).§ Each of the petitioners appealed

his order of exclusion and deportation to

S. 8 C.F.R. § 3.1 contains the following:

(b) Appellate jurisdiction. Appeals shall

lie to the Board of Immigration Appeals

from the following:

12a

the Board, and each appeal was dis-

missed, after oral argument by counsel.

Judicial review of final orders of ex-

clusion promulgated pursuant to 8 U.S.C.

§ 1226 is limited to habeas corpus pro-

ceedings, 8 U.S.C. § 1105a(b). Upon dis-

missal of their causes by the Board 147

Haitians filed consolidated habeas peti-

tions in United States District Court on

October 29, 1973. A hearing was held

November 21, 1973. Additional Haitians

were added later on stipulation that or-

ders would bind all, bringing the total

number of petitioner Haitians to 216.

On December 28, 1973, the Haitians’ pe-

tition was denied by the District Judge

and notice of appeal to this Court was

filed. On October 1, 1974, on the peti-

tioners’ motion, the cause was remanded

to the District Court. The INS had

agreed to reconsider the applications for

asylum on the basis of affidavits or oth-

er new material, which the petitioners

offered to submit to the INS. On Janu-

ary 20, 1975, the District Judge remand-

ed the cause “for further administrative

(1) Decisions of special inquiry officers in

exclusion cases, as provided in Part 236 of

this chapter.

6. 8 U.S.C. § 1105a(b) provides:

Notwithstanding the provisions of any oth-

er law, any alien against whom a final order

of exclusion has been made heretofore or

hereafter under the provisions of section

1226 of this title or comparable provisions of

any prior Act may obtain judicial review of

such order by habeas corpus proceedings

and not otherwise.

te ater eecceeiaa lm

. ——EE — —_ -

iii iis ase cnnsitin Wikies idiinadaba, et AEE th CD SOA A at iene 1 tlh Adina Nae ei Ath tag a tan ee has

l3a

review of the petitioners’ claims for po-

litical asylum to the Immigration and

Naturalization Service.” The order con-

cludes, “Until such time as the petition-

ers’ administrative remedies are exhaust-

ed, this cause be and the same hereby is

DISMISSED.” On January 24 the Dis-

trict Judge promulgated a “Clarification

of Order of Remand” providing that the

orders of expulsion outstanding against

the Haitians be stayed “until such time

as their Administrative remedies are ex-

hausted and they have had an opportuni-

ty to seek review in this Court and in

the United States Court of Appeals for

the Fifth Circuit.” On January 29 the

Government filed a motion noting that

only 23 of the 216 Haitians had sub-

mitted new material to the INS, and re-

questing that the District Judge amend

his order of remand to include only those

23. An exchange of filings followed,

and on March 4 the District Judge “ex-

panded” his orders of January 20 and 24

to the effect that

For purposes of further administra-

tive review, the petitioners’ [sic] are to

be considered as one class in their pur-

suit of political asylum in the United

States of America, even though all of

the petitioners have not supplemented

their records made at initial interview

with agents of the Immigration and

Naturalization Service.

In administrative review of the peti-

tioners’ claim for political asylum, the

14a

Immigration and Naturalization Serv-

ice should follow existing procedures,

if adequate, and new procedures, if

necessary, to afford the petitioners an

opportunity to be heard (orally or in

writing) on their claims for political

asylum . . ..

On May 2, 1975, the Government sub-

mitted another motion to the District

Judge noting that 69 of the Haitians had

submitted new materials to INS, that no

administrative reconsideration could be

taken respecting those not submitting

new material, that a stay of deportation

order remained in effect regarding the

147 who had not submitted new material

pending exhaustion of appeai ‘rough

the Fifth Circuit but that since they

could not be deported they had no moti-

vation to appeal. The Haitians replied

through counsel that there were substan-

tial “practical and financial difficulties -

[in] obtaining new affidavits from every

petitioner” and that “the [69] affidavits

actually obtained were meant to be rep-

resentative of petitioners as a class.”

[Emphasis in the original.] A hearing on

the Government’s motion was held, and

on August 7 the District Judge issued an

“Order of Severance and Dissolution of

Stay.” The order noted that 147 Haiti-

ans had failed to submit new materials

to the INS, and ordered them severed

from the group of 216. The order then

noted that the INS determinations of ex-

cludability of the 147 had already been

upheld by this District Court so that “In

il les hile eNews een, tale Bahia Rbllaty Cetin. he. ck.

15a

the opinion of this Court, further review

by this Court would not be required by

the Order of Remand issued by the Unit-

ed States Court of Appeals for the Fifth

Circuit, for there has been no further

action as to the members of said sub-

class by the Immigration and Naturaliza-

tion Service.” The District Judge or-

dered the 147 severed and the stay of

deportation dissolved as to them. On

September 8 the District Judge issued an

“Amended Order of Severance and Dis-

solution of Stay,” apparently based upon

the same government motion of May 2

and responsive filings on which the Au-

gust 7 order was based. The District

Judge in his September 8 order reiterat-

ed the severance of the 147 and his af-

firmance of the INS determination of

excludability. He further ordered the

cause of the 147 “returned to the Fifth

Circuit Court of Appeals since the pur-

pose of the Order on the Mandate has

been fulfilled by this Court.” The Dis-

trict Judge reinstated the stay of depor-

tation as to the 147 pending appeal to

this Court.

On October 2 the Government filed a

motion requesting that the stay be lift-

ed, arguing that “the INS is enjoined

from taking any action on an order of

deportation which had been affirmed by

this Court and the 147 petitioners are

under no compulsion to do anything oth-

er than enjoy the status quo.” That

same day, October 2, the District Judge

issued an “Order Upon Motion for Relief

of Order of Judgment” ordering the 147

l6a

Haitians to “renew their cause before

the Court of Appeals for the Fifth Cir-

cuit on or before October 22, 1975." On

October 22 the Haitians by their counsel

duly filed in this Court an appeal which

they characterize as “an appeal from an

order of the district court in effect dis-

missing the action with respect to 147 of

the 216 petitioners herein, and directing

said 147 petitioners ‘to renew their cause

before the Court of Appeals for the

Fifth Circuit.’”

The effect of the proceedings which

we have detailed has been to sever the

cause of the 147 petitioners from the

rest of the group so that the earlier de-

nial of the habeas corpus petition as to

these 147 remains in force.

On appeal petitioners contend that the

INS and the District Court misconstrue

the effect of the Protocol on the statuto-

ry immigration scheme. They argue

that on the one hand article 33 of the

Protocol permits the INS no discretion to

exclude bona fide refugees; and that on

the other hand the Protocol vests in all

potential refugees a liberty right or ex-

pectation protectable under the due proc-

ess clause of the fifth amendment to the

United States Constitution, cf. Goldberg

v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25

L.Ed.2di 287 (1970). Neither contention

has merit.

The legislative history of United

States accession to the Protocol shows ©

that the State Department, in presenting

the Protocol to the Senate for ratifica-

ne re eee

17a

tion, believed that the Protocol would

require no changes in the current admin-

istration of immigration policy: Law-

rence Dawson, Acting Deputy Director

of the Office of Refugee and Migration

Affairs of the State Department, testi-

fied to this effect before the Senate For-

eign Relations Committee when that

committee was conducting hearings con-

cerning the Protocol:

[A]ecession does not in any sense com-

mit the contracting state to enlarge its

immigration measures for refugees.

Rather, the asylum concept is set forth

in the prohibition against the return of

a refugee in any manner whatsoever

to a country where his life or freedom

would be threatened; and the prohibi-

tion under Article 32 against the de-

portation of a refugee lawfully in the

territory of a Contracting State to any

country except in cases involving na-

tional security or public order. The

deportation provisions of the Immigra-

tion and Nationality Act, with limited

exceptions, are consistent with this

concept. The Attorney General will

be able to administer such provisions

in conformity with the Protocol with-

out amendment of the Act. [Emphasis

added.}] [Appendix 90th Cong., 2d

Sess., Executive Report No. 14, Proto-

col Relating to Refugees, September

30, 1968, at 6.]

During those hearings the following ex-

change towk place between Deputy Di-

.rector Dawson and Senator Sparkman:

18a

Senator Sparkman: I want to make

certain of this: Is it absolutely clear

that nothing in this protocol, first,

requires the United States to admit

new categories or numbers of aliens?

Dawson: That is absolutely clear.

Senator Sparkman: And no require-

ment of new categories or numbers

of aliens?

Dawson; That is correct, sir. [Jd]

When the Committee submitted the Pro-

tocol to the Senate Senator Mansfield

stated, “It is understood that the Proto-

col would not impinge adversely upon

the Federal and State laws of this coun-

try.” 114 Cong.Rec. 12,021 (Oct. 3,

1968).

The Board of Immigration Appeals

thoroughly reviewed the statutory histo-

ry of the Protocol in Matter of Dunar,

B.I.A. Interim Decision No. 2192 (April

17, 1973). The Board concluded that

the United States Senate, in giving its

advice and consent to accession to the

Protocol, did not contemplate that rad-

ical changes in existing immigration

laws would be effected. Quite the

contrary, the general representations

made to induce affirmative Senate ac-

tion indicated that our immigration

laws already embodied the humane

provisions for refugees fostered by the

Convention and Protocol. [Matter of

Dunar, B.I.A. Interim Decision No.

2192 (April 17, 1973).]}

—

Re ae RD cers 5 MP Mihi

tit tin zzz

19a

The Courts of Appeals for the Secon

and Third Circuits have reached similar

conclusions. See Ming v. Marks, S.D.

N.Y., 1973, 367 F.Supp. 673, 677-78,

aff'd, 2 Cir., 1974, 505 F.2d 1170; Kan

Kam Lin v. Rinaldi, D.N.J., 1973, 361

F.Supp. 177, affd, 3 Cir., 1974, 493 F.2d

1229, cert. denied, 419 U.S. 874, 95 S.Ct.

136, 42 L.Ed.2d 113 (1974).

{1] We agree with these conclusions

and determine accordingly that accession

to the Protocol by the United States was

neither intended to nor had the effect of

substantively altering the statutory im-

migration scheme. From this determina-

tion we draw two conclusions: that no

new rights or entitlements were vested

in these petitioners by operation of the

Protocol, and that the procedures by

which the INS determines refugee status

were not invalidated.

{2] Petitioners’ contention that the

Senate’s accession to the Protocol vested

in aliens a United States constitutional

entitlement accompanied by a full array

of constitutional protections flies in the

face of the legislative history just re-

viewed. This is just the sort of “radical

change” in our immigration laws which

the Senate did not intend. The entire

immigration scheme would be nullified if

any alien desiring entry could demand

the full process of the courts to adjudi-

cate his refugee status, merely by ap-

pearing at our shores and proffering as-

sertions of status of the nature those

in this case. Therefore, we reject peti-

20a

tioners’ contention that the Protocol in-

vests them with a liberty right protecta-

ble by due process or other constitutional

protections.

[3-5] We also reject petitioners’ con-

tention that the INS procedures for de-

termining refugee status are inadequate

in light of the terms of article 33 of the

Protocol, and that the Protocol creates

an “absolute right” against return of a

bona fide refugee to a country in which

he fears political persecution. Petition-

ers’ assertion fails to consider that asy-

lum results from a two-part determina-

tion. First a determination whether the

applicant is a bona fide refugee must be

made. Under existing statutes the At-

torney General then has discretion

whether to parole the refugee into the

United States. We need not decide

whether the Protocol deprives the Attor-

ney Generali of discretion regarding pa-

role once refugee status is affirmatively

determined because petitioners before us

failed the first part of the test. The

INS, in consultation with the State De-

partment, determined that they were not

bona fide refugees. It is clear from the

terms of the Protocol itself that an ap-

plicant for asylum must fit the definition

of bona fide refugee before he can take

relief from the terms of the Protocol.

Because the Protocol contained no proce-

dures for making this determination, and

because Congress saw fit at the time of

accession to leave existing procedures

unchanged, we conclude that it was the

eg tee Ee ee ee Seer we

Ce Ee te oe ee Os) ne aay

2la

intent of Congress that existing proce-

dures be followed. These procedures

were followed with respect to petition-

ers’ applications for refugee status in

this case. This discretionary judgment

of a political department is reviewable

by us only for abuse of discretion, Klein-

dienst v. Mandel, 408 U.S. 753, 769-70,

92 S.Ct. 2576, 2585, 33 L.Ed.2d 683

(1972). The burden was on petitioners to

show the INS that they were refugees,

see Paul v. INS, 5 Cir., 1975, 521 F.2d

194. To carry this burden an alien must

show a “clear probability” of persecu-

tion, Cisternas-Estay v. INS, 3 Cir., 1976,

531 F.2d 155, 159; see Gena v. INS, 5

Cir., 1970, 424 F.2d 227, 229-30.

{6] The present petitioners provided,

at best, unsubstantiated and ambiguous

claims of conflicts with government au-

thorities in Haiti. The Office of Refu-

gee and Migration Affairs advised the

INS that in its judgment these petition-

ers did not face political persecution on

their return to their homes, and that in

many cases the Haitian Government ap-

peared to be unaware of them. On this

basis petitioners were denied refugee

status. Given a second opportunity to

submit information or evidence bearing

on their status petitioners were unable

or unwilling to provide it. On _ this

recorl we cannot say that a “clear prob-

ability” of persecution was shown.

Therefore, the INS did not abuse its dis-

cretion in refusing refugee status to the

petitioners, and the District Judge cor-

rectly so found. See Gena, supra, 424

22a

F.2d at 232 [“In light of Gena’s failure

to file new evidence of any kind, we

certainly cannot say that the Board's de-

nial of his motion to reopen constituted

an abuse of discretion.”]; Daniel v. INS,

5 Cir., 1976, 528 F.2d 1278, 1279-80 [de-

nial of refugee status to alien who had

effected entry, under 8 U.S.C. § 1253(h)}.

In short, the Protocol left intact the INS

procedure for determining refugee sta-

tus, and that procedure was followed in

this case without abuse of discretion.

{7,8] Petitioners complain that the

distinctions between excludable aliens

(those seeking “entry” into the United

States) and aliens who have made entry,

even if illegally, deny the former class

equal protection of the law. The differ-

ences are substantial, see Leng May Ma

v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2

L.Ed.2d 1246 (1957); Maldonado-Sando-

val v. United States Imm. and Nat.

Service, 9 Cir., 1975, 518 F.2d 278, 280 n.

3. The Supreme Court, however, has

pointed out |

that our immigration laws have long

made a distinction between those

aliens who have come to our shores

seeking admission, such as petitioner,

and those who are within the United

States after an entry, irrespective of

its legality.

Leng May Ma v. Barber, supra, 357 U.S.

at 187, 78 S.Ct. at 1073. “The distinction

was carefully preserved in Title II of the

Immigration and Nationality Act,” id.

That Congress has “plenary

tat dee

Re Ne Se

1 Aa Pre LO bres ie Ges

Ren suet RL Tbe RR Oe AG Sica ohana tik nh a cites Sle se ith ae

23a

power to make policies and rules for ex-

clusion of aliens has long been firmly

established.” Kleindienst v. Mandel, 408

U.S. 753, 769, 92 S.Ct. 2576, 2585, 33

L.Ed.2d 683 (1972). “Congress has ple-

nary power in the immigration area, par-

ticularly in determining which aliens will

be admitted and the period they shall

remain.” Pelaez v. INS, 5 Cir., 1975, 513

F.2d 303, 305 [emphasis added]. Con-

gress clearly has the power to draw dis-

tinctions between classes of aliens which,

if drawn among classes of citizens, would

appear to violate the equal protection

clause or other constitutional rights. As

Judge Moore of the Second Circuit (sit-

ting by designation in the Eastern Dis-

trict of New York) has pointed out,

aliens

may be denied entrance on grounds

which would be constitutionally sus-

pect or impermissible in the context of

domestic policy, namely, race [Dunn v.

INS, 499 F.2d 856, 858 (9th Cir. 1974)],

physical condition [United States v.

Esperdy, 2d Cir., 1960, 277 F.2d 537,

539], political beliefs [Mandel, supra],

sexual proclivities [Boutilier v. INS,

387 U.S. 118, 87 S.Ct. 1563, 18 L.Ed.2d

661 (1967)], age [Nazareno v. Attorney

General of the United States, 1975, 168

U.S.App.D.C. 22, 512 F.2d 936], and

national origin [e. g., Faustino v. INS,

2d Cir., 1970, 482 F.2d 429, 431].

Fiallo v. Levi, E.D.N.Y., 1975, 406

F.Supp. 162, 165.

In light of the established power of

Congress to make such distinctions

24a

among classes of aliens, the question be-

abuse that power when making a distinc-

tion between the class of aliens who

have made entry and those who have

not. Clearly constitutional protections

cannot be afforded to the entire popula-

tion of the world, and some distinction is

necessary. The distinction in question

here has been countenanced in a line of

Supreme Court cases acknowledging that

aliens who have not made entry do not

enjoy the protections of the United

States Constitution. See Kleindienst v.

Mandel, supra, 408 U.S. at 762, 769-70,

92 S.Ct. at 2581, 2585; cf. Mathews v.

Diaz, 426 U.S. 67, 96 S.Ct. 1883, 1891-92,

48 L.Ed.2d 478 (1976). The Supreme

Court has recently refused to reconsider

this line of cases, Kleindienst v. Mandel,

supra, 408 U.S. at 767, 92 S.Ct. at 2584.

As already noted, Congress has reaf-

firmed the distinction in the Immigra-

tion and Nationality Act. We decline to

upset this distinction which lies within

the jurisdiction of the political branches

of government. Kleindienst v. Mandel,

supra, 408 U.S. at 765, 92 S.Ct. at 2583.

Petitioners’ argument that procedural

and other distinctions between aliens

who have accomplished entry and those

who have not works a denial of equal

protection, is without merit.

{9] Finally, petitioners contend that

the Administrative Procedure Act, 5

U.S.C. § 500 et seqg., is applicable to

claims for asylum under article 33 of the

25a

Protocol, because “constitutional due

process requires that a hearing be held”

to determine refugee status, bringing

the determination within 5 U.S.C. § 554

requiring certain protections in every

case of “adjudication required by statute

to be determined on the record after op-

portunity for an agency hearing.” As

we have shown, petitioners are not enti-

tled to constitutional protections. Fur-

ther, we have concluded that it was the

intent of Congress in acceding to the

Protocol to leave existing immigration

procedure intact, and this procedure did

not, at the time pertinent to this case,

require a hearing of the sort requested

by petitioners to determine refugee sta-

tus.

Petitioners’ remaining contentions will

be seen to be without merit in light of .«

the foregoing. Accordingly, the District

Judge’s order severing the 147 present

petitioners from the group of 216 and

reinstating his denial of the habeas cor-

pus petition as to the severed 147 was

correct.

AFFIRMED.

26a

APPENDIX B

Judgment of the Court of Appeals

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 75-3975

D. C. Docket No. 73-1689-Civ-WM

MARIE PIERRE, et al.,

Petitioners-A ppellants,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court for the

Southern District of Florida

Before AINSWORTH and CLARK, Circuit Judges, and HUGHES,*

District Judge

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Southern

District of Florida, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here ordered

and adjudged by this Court that the judgment of the said Dis-

trict Court in this cause be, and the same is hereby, affirmed.

March 7, 1977

Issued as Mandate:

* Senior District Judge for the Northern District of Texas, sitting by desig-

nation.

en ee a

ee eee ae

y ie th

27a

APPENDIX C

Opinion of the District Court

IN THE UNITED STATES DISTRICT COURT

FOR Tht SOUTHERN DISTRICT OF FLORIDA

CASE NO. 73-1689-CIV-WM

IN RE THE MATTER OF: ) FINDINGS OF FACT

AND

MARIE PIERRE, et al. ) CONCLUSIONS OF LAW

This cause came before the Court upon the Petition for

Writ of Habeas Corpus and the motions for evidentiary hearing

and for reduction of bond on behalf of more than two hundred

Haitian nationals who are now either in custody or enlarged on

bond pending the final disposition of the Orders of Exclusion

previously entered in their cause.

Pursuant to an Order to Show Cause why the writ of habeas

corpus should not be issued, a hearing on the matter was held

before this Court on November 21, 1973. Having heard the argu-

ments of counsel, the testimony of the witnesses, and having re-

viewed the record in this cause, the Court makes the following

findings of fact and conclusions of law.

FINDINGS OF FACT

1. Each of the petitioners is a Haitian national who arrived

in the United States on various boats, with the intent of seeking

permission to enter the United States based upon a claim of

persecution.

2. Upon arrival in the United States, each of the petitioners

sought out or waited for the arrival of officials of the Immigra-

tion and Naturalization Service.

3. Each of the petitioners was taken into custody by offi-

cials of the Immigration and Naturalization Service who con-

ducted interviews with the petitioners to determine their status.

28a

4. Following the arrivals of various groups of Haitians be-

tween December 12, 1972, and October 19, 1973, administrative

proceedings were conducted to determine their status under

congressional and administrative acts relating to immigration

and naturalization.

5. None of the petitioners had visas or other entry docu-

ments, but each of the petitioners were paroled into the United

States pending resolution of the administrative proceedings for

review of the question of his right of entry.

6. Those petitioners not in custody in various detention

facilities in southern Florida remain enlarged on bond, awaiting

execution of various administrative orders issued in their cause.

7. The District Director of the Immigration and Naturali-

zation Service determined that each of the petitioners was an

excludable alien, and denied each request for political asylum

after consultation with representatives of the Office of Refugee

and Migration Affairs of the Department of State.

8. At exclusion hearings scheduled before an Immigration

Judge, each petitioner requested the right to present evidence of

political persecution, which request was denied due to the lack

of jurisdiction of the Immigration Judge to determine such mat-

ters in exclusion proceedings.

9. The presiding Immigration Judge ruled that the various

petitioners are properly excludable from entry to the United

States. Upon appeal of said ruling, the Board of Immigration

Appeals reviewed the determination by the Immigration Judge

and entered an order of dismissal.

10. Each of the petitioners had administrative remedies for

review of the question of his right of entry and having exhausted

said remedies, the Orders of Exclusion entered against the peti-

tioners are now final.

CONCLUSIONS OF LAW

The petitioners, well represented by counsel, seek relief

from Orders of Exclusion from the United States through peti-

saa

29a

tion for writ of habeas corpus. Most of the arguments in support

of the petition, though meritorious, are not cognizable by this

Court, for the authority vested in the political branches of the

federal government forecloses this Court’s jurisdiction to ques-

tion the fairness of the rules and regulations governing the immi-

gration and naturalization of the various classes of aliens seeking

admission to the United States. In the words of Chief Judge

John R. Brown,

The keys to the kingdom are not in the Judges’ hands,

at least not all of them. Here they are first with the

Congress and next with the administrators. Aalund v.

Marshall, 461 F.2d 710, at 714 (Sth Cir. 1972).

In determining whether or not the petitioners are entitled

to relief, this Court’s review of the Orders of Exclusion is lim-

ited to whether or not the orders comply with the applicable

rules of law so that the petitioners have been afforded procedural

due process. Unfortunately, those rules of law are established

and administered by the political departments of the federal

government, and are largely immune from judicial control.

Shaughnessy v. United States, 345 U.S. 206 (1953); Aalund v.

Marshall, 461 F.2d 710, 711 (Sth Cir. 1972), citing Jarecha v.

I.N.S., 417 F.2d 220, 224 (Sth Cir. 1969); Kam Ng v. Pilliod,

279 F.2d 207, 210 (7th Cir. 1960), cert. den., 365 U.S. 860

(1961).

Counsel for the petitioners contend that the exclusion

proceedings followed by the officials of the Immigration and

Naturalization Service are invalid, and that deportation pro-

ceedings are appropriate here. In order to qualify for deporta-

tion proceeding», however, an alien who seeks the additional

privileges * ‘erein must have made an “entry” into the United

States wii..un the meaning of the immigration laws. 8 C.F.R.

§ 235, 236, et seq.

The mere presence of aliens without visas or other entry

documents who seek lawful admission to the United States does

not constitute an “entry” within the meaning of the immigra-

tion laws. Shaughnessy v. United States, ex rel. Mezei, 345 U.S.

206 (1953); Leng May Ma v. Barber, 357 U.S. 135 (1958);

30a

United States, ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1949);

Thack v. Zurbrick, 51 F.2d 634 (6th Cir. 1931); Vitale v. I.N.S.,

463 F.2d 579 (7th Cir. 1972). The petitioners, therefore, do not

qualify for deportation proceedings, even though they were al-

lowed into the United States pending a resolution of exclusion

proceedings and have remained, in some cases, more than a year.

Counsel for the petitioners also argue that the petitioners

were entitled to representation by counsel at the initial inter-

views conducted by officials of the Immigration and Naturaliza-

tion Service for the purpose of determining their right to enter

into the United States. No such right to counsel has yet been

recognized, and this Court declines to do so, it taking an un-

thinkable stretch of the Constitution to extend the right to

counsel to every alien seeking admission to the United States.

Counsel further argue that the petitioners have been denied

equal protection in comparison to other groups of aliens who

seek refuge under a claim of political persecution. From both a

humanitarian and logical standpoint, this Court agrees with

counsel’s argument, for example, in comparison with the Cuban

nationals recently admitted to the United States from Spain.

This Court is powerless to adjust such inequities, however, and

the petitioners and those similarly situated must rely on Con-

gress and the administrators of the immigration and naturaliza-

tion laws for appropriate relief.

Having reviewed the administrative proceedings which re-

sulted in the Orders of Exclusion, this Court finds no capricious

or arbitrary action on the part of the officials of the Immigration

and Naturalization Service that would warrant intervention by

the United States District Court. Although the Court is in sym-

pathy with the cause, the petitioners have shown no legal basis

for their claim for relief. Accordingly, it is

ORDERED and ADJUDGED the Motion for Evidentiary

Hearing be and the same hereby is DENIED. It is further

ORDERED and ADJUDGED that the Motion for Reduction

of Bond be and the same hereby is DENIED. It is finally

3la

ORDERED and ADJUDGED that the petition for writ of

habeas corpus be and the same hereby is DENIED, and the Order

to Show Cause be and the same hereby is discharged.

DONE and ORDERED at Miami, Florié a, this 28th day of

December, 1973.

s/ W. Mehrtens

UNITED STATES DISTRICT COURT

32a

APPENDIX D

Final Order of the District Court

MARIE PIERRE, et al., “s

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

This cause came before the Court upon the motion of the

United States that the August 7, 1975 Order of Severance and

Dissolution of Stay be reinstated, or to limit the stay imposed

by the Amended Order dated September 8, 1975. The Court

having considered the above, and being further advised in the

premises, it is

ORDERED and ADJUDGE’ st the sub-class of the one

hundred forty seven members ¢ class of Petitioners who have

not submitted new material in support of their claims for political

asylum to the Immigration and Naturalization Service shall renew

their cause before the Court of Appeals for the Fifth Circuit on

or before October 22, 1975.

DONE and ORDERED at Miami, Florida this 2nd day of

October, 1975.

s/ W. O. Mehrtens

SENIOR UNITED STATES

DISTRICT JUDGE

33a

APPENDIX E

Constitutional, Statutory, and

Treaty Provisions Involved

The Fifth Amendment to the United States Constitution

provides in relevant part:

No person . . . shall be deprived of life, liberty,

or property, without due process of law.

The United Nations Convention and Protocol Relating to the

Status of Refugees, a duly ratified and acceded to treaty of the

United States, 19 United States Treaties 6223, provides in rele-

vant part:

Article 1:

The term ‘ refugee” shall apply to any person who,...

owing to well-founded fear of being persecuted for rea-

sons of race, religion, nationality, membership of a par-

ticular social group or political opinion, is outside the

country of his nationality and is unable or, owing to such

fear, is unwilling to avail himself of the protection of that

country, or who, not having a nationality and being out-

side the country of his former habitual residence, is un-

able or, owing to such fear, is unwilling to return to it.

Article 33 (1):

No Contracting State shall expel or return (“‘refouler”) a

refugee in any manner whatsoever to the frontiers of

territories where his life or freedom would be threatened

on account of his race, religion, nationality, membership

of a particular social group or political opinion.

The Immigration and Nationality Act, 8 U.S.C. § 1101, et seq.,

provides in relevant part:

Section 235, 8 U.S.C. § 1225:

34a

(a) The inspection, other than the physical and men-

tal examination, of aliens (including alien crewmen) seek-

ing admission or readmission to or the privilege of passing

through the United States shall be conducted by immi-

gration officers, except as otherwise provided in regard

to special inquiry officers. All aliens arriving at ports of

the United States shall be examined by one or more im-

migration officers at the discretion of the Attorney Gen-

eral and under such regulations as he may prescribe. Im-

migration officers are authorized and empowered to

board and search any vessel, aircraft, railway car, or other

conveyance, or vehicle in which they believe aliens are

being brought into the United States. The Attorney Gen-

eral and any immigration officer, including special inquiry

officers, shall have power to administer oaths and to take

and consider evidence of or from any person touching the

privilege of any alien or person he believes or suspects to

be an alien to enter, reenter, pass through, or reside in

the United States or concerning any matter which is

material and relevant to the enforcement of this chapter

and the administration of the Service, and, where such

action may be necessary, to make a written record of

such evidence. Any person coming into the United

States may be required to state under oath the purpose

or purposes for which he comes, the length of time he

intends to remain in the United States, whether or not

he intends to remain in the United States permanently

and, if an alien, whether he intends to become a citizen

thereof, and such other items of information as will aid

the immigration officer in determining whether he is a

national of the United States or an alien and, if the latter,

whether he belongs to any of the excluded classes enu-

merated in section 1182 of this title. The Attorney Gen-

eral and any immigration officer, including special in-

quiry officers, shall have power to require by subpena

the attendance and testimony of witnesses before immi-

gration officers and special inquiry officers and the pro-

duction of books, papers, and documents relating to the

privilege of any person to enter, reenter, reside in, or pass

35a

through the United States or concerning any matter which

is material and relevant to the enforcement of this chapter

and the administration of the Service, and to that end may

invoke the aid of any court of the United States. Any

United States district court within the jurisdiction of

which investigations or inquiries are being conducted by

an immigration officer or special inquiry officer may, in

the event of neglect or refusal to respond to a subpena

issued under this subsection or refusal to testify before

an immigration officer or special inquiry officer, issue an

order requiring such persons to appear before an immi-

gration officer or special inquiry officer, produce books,

papers, and documents if demanded, and testify, and any

failure to obey such order of the court may be punished

by the court as a contempt thereof.

(b) Every alien (other than an alien crewman), and

except as otherwise provided in subsection (c) of this sec-

tion and in section 1323(d) of this title, who may not

appear to the examining immigration officer at the port

of arrival to be clearly and beyond a doubt entitled to

land shall be detained for further inquiry to be conducted

by a special inquiry officer. The decision of the examin-

ing immigration officer, if favorable to the admission of

any alien, shall be subject to challenge by any other im-

migration officer and such challenge shall operate to take

the alien, whose privilege to land is so challenged, before

a special inquiry officer for further inquiry.

* * *

Section 235, 8 U.S.C. § 1226:

(a) A special inquiry officer shall conduct proceedings

under this section, administer oaths, present and receive

evidence, and interrogate, examine, and cross-examine

the alien or witnesses. He shall have authority in any case

to determine whether an arriving alien who has been de-

tained for further inquiry under section 1225 of this title

shall be allowed to enter or shall be excluded and de-

36a

ported. The determination of such special inquiry officer

shall be based only on the evidence produced at the in-

quiry. No special inquiry officer shall conduct a proceed-

ing in any case under this section in which he shall have

participated in investigative functions or in which he

shall have participated (except as provided in this sub-

section) in prosecuting functions. Proceedings before a

special inquiry officer under this section shall be con-

ducted in accordance with this section, the applicable

provisions of sections 1225 and 1357(b) of this title, and

such regulations as the Attorney General shall prescribe,

and shall be the sole and exclusive procedure for deter-

mining admissibility of a person to the United States

under the provisions of this section. At such inquiry,

which shall be kept separate and apart from the public,

the alien may have one friend or relative present, under

such conditions as may be prescribed by the Attorney

General. A complete record of the proceedings and of all

testimony and evidence produced at such inquiry, shall

be kept.

(b) From a decision of a special inquiry officer ex-

cluding an alien, such alien may take a timely appeal to

the Attorney General, and any such alien shall be advised

of his right to take such appeal. No appeal may be taken

from a temporary exclusion under section 1225(c) of

this title. From a decision of the special inquiry officer

to admit an alien, the immigration officer in charge at

the port where the inquiry is held may take a timely ap-

peal to the Attorney General. An appeal by the alien, or

such officer in charge, shall operate to stay any final ac-

tion with respect to any alien whose case is so appealed

until the final decision of the Attorney General is made.

Except as provided in section 1225(c) of this title such

decision shall be rendered solely upon the evidence ad-

duced before the special inquiry officer.

this section, in every case where an alien is excluded

37a

from admission into the United States, under this chap-

ter or any other law or treaty now existing or hereafter

made, the decision of a special inquiry officer shall be

final unless reversed on appeal to the Attorney General.

38a

APPENDIX F

List of Petitioners

Marie Pierre

Francine Francois

Anelus Seraphin

Joseph George

Brother Norelin

Antoine Jeanty

Alix Matildor

Celania LaBreux

Letand Charles

Aimee Antoine Fils

Emmanuel Rene

Ville Jean Willner

George Bertier

Jacolin Franklin

Phillipe La Moche

Onelia Pierre

Vierge Thomas

Johnny Durand

Antoinette Jean Baptiste

Marie Jean Pierre

Lionel Fombrun

Romely Duval

Claude Charles

Marie Gladys Jean Pois

Innocent Jean Baptiste

Jules Audelin

Rosemarie Nicolas

Elda Limouzin

Jean Leder!

Benisoi Pierre

Esperance Servius

Joseph Michaela

Presendieu Thamas

Elie Jean Baptist

Silvia Jeantillon

Ludovic Lamour

Itemize Lamour

Jeanne Carelus

Marie Lamour

Salem Jidi

Michel Dictan

Fritz Cange

Jean Moliere

Pierre Roger

Yvon Bruno ;

Pierre Charlemagne

Ceface Saint Jacques

Hermann Chery

Daniel Botex

Myrtil Vilbert

Gerard Joseph

Dijonny Wagner

Itamo Joseph

Jean Claude Thomas

Nelson Thomas

Derisma Janvier

Chaubert Vassor

Danis Mace

Vilner V anor

Alamanie Olibrus

Tenite Talleyrand

Odasienne Danis

Jeanette Guillaume

Azema Vilbert

Odiside Danis

Edie Pierre

Dieuviewil Matthieu

Marianne Eugene

Hipomen Cadin

Aline Michel

Yanique Bataille

Elmita Dosela

Oltane J oseph

Bernadette Dumont

Charles Josef

Jacqueiine Josef

Marie Teresa Vital

Martha Alix

Brinia Simon

Marlene Richard

Marie Andremise

Remercille Charles

Lorraine Bellefleur

Floraine St. Hubert

Marie Massenoc

Anite Alexis

Irene St. Louis

Janette Thenor

Hermano Luma

Joel Fleuran Cois

Viergela Joseph

Chevalier Marcero

Eddy Michaud

Guy St. Louis

Yvon Legros

Jurel Boucigout

Renald Destra

Julet Desir

Oselin Francois

Sauveur Jean-Louis

Telefant Pierre

Yvon Durandisse

Denier Durandisse

Gerard Germain

Daniel Dezire

Joseph Pierre

Gerard Joseph

Fritz Raymond

Maxen Pierre

39a

Georges Pierre

Yva Saint Port

Gisel Saint Fort

Julia Dorcelus

Inocia Raymond

Marguerite Mesidor

Rosie Dorcinvil

Elisman Geoffroy

Jean Louis

Antonio Louis

Wilfred Lick

Vener Lebrun

Emanuel Augustin

Salnave Chery

Sergo Sanon

Hugues Cesar

Alfonse Raymond

Eddie Raymond

Juste Dieulifaite

Yvette Dauville

Fritz Dauville

Denise Alcide

Marie Filogene

Emanuel Guerrier

Jacques Joseph

Oje Omaque

Yves Perrier

Elifete Leon

Marlene Filogene

Lawrence Segus

Claisian Alcime

Michel L. Rene

Renel Nordeluis

Eleus Joseph Bellot

Samuel Loriston

Phillip Johnson

Philippe Filsaime

Bruna Jean-Charles

40a

APPENDIX G

Excerpts from The Situation in Haiti, a report by Amnesty

International, dated April 20, 1976:

POLITICAL PRISONERS AND AMNESTY INTERNATIONAL

ACTION

It is very difficult to assess accurately the present number

of political prisoners in Haiti. Different sources have estimated

between 400 and 3,000, although the usual estimate is between

300-400. There are 255 names on Amnesty International files.

For the overall period of the Duvalier dynasty, the Haitian Fed-

eration of Christian Trade Unions, located in Caracas, estimated

that there were more than “3,000 people executed and tortured

to death.” Some exiles make that figure as high as 12 or even

30,000.

The reasons for such vague estimates are inherent in the

character of the regime. It is believed that the Government itself

is not able to produce an accurate account of prisoners’ where-

abouts. In any event, prison conditions, disease, brutality, tor-

ture and executions inevitably reduce the prison populations

drastically. It has been maintained that 10% of arrested Haitians

die in the first days after detention and about 80% do not last

more than two years. Arbitrary executions, starvation, appalling

hygienic conditions, disease and torture — account for what

is probably the highest mortality rate amongst prisoners in the

world.

Arrests often take the form of disappearances or kidnap-

pings. The families may subsequently be unable to find any trace

of their missing relative. In other cases, the police or Tonton-

macoutes apply the “moulinin operation,” which consists of

blocking an entire neighbourhood and proceeding to arrest in-

discriminately as many as hundreds of citizens. Following severe

interrogations, some are released, others are tortured and remain

in prison.

— , . ;

PA te Th NDR nT Oat § i EL MA A NR! eee ty! Ril Ny eh Sow tet Nina rey

ee ee Se Le Meee Sener CT Caen | MICE PMS Peay Oe: Se en

4la

It should be pointed out that the term “political prisoners”

has to be interpreted in the widest possible sense in the Haitian

context. There may have been no political activity whatsoever,

as a large number are imprisoned indiscriminately, due to techni-

cal mistakes, as a result of personal grudges, or simply for very

minor offences. As in most cases there are no judicial procedures

whatsoever, and as torture is systematic, these prisoners are well

within Amnesty International’s area of concern. Only in extra-

ordinary cases are charges brought against prisoners, to be fol-

lowed by some sort of legal procedure. Certain prominent people

may be charged and severely sentenced to dissuade others from

following their example. This happened to a group of people

rounded up in August 1972 who were accused of subversion and

sentenced to life imprisonment by a secret military court.

Amnesty International’s documentation reports very few

cases of releases and it is feared that the major reason for this is

the Haitian Government's fear that information about tragic ex-

periences in Haitian prisons could thus be spread abroad. In some

cases released prisoners are warned not to comment on this sub-

ject, if they value their lives. On a few occasions the regime has

announced with great publicity an amnesty or sentence reduc-

tions for political prisoners, but, as illustrated by the so-called

‘amnesty’ of 132 prisoners in November/December 1973, if

prisoners are seen after an “‘amnesty,” it is often because the

have been free and in exile for a time anyway. :

Confronted with such a situation, AI actions on Haiti have

not been able to reach the same level of intensity and efficiency

as in other more accessible countries.

HUMAN RIGHTS VIOLATIONS

The Tonton-macoutes were the all-powerful servants of the

late Papa Doc and are primarily responsible for the functioning

of the repressive machinery in Haiti. With the restoration of

Pierre Biamby to a key position of power in the regime, the

Tonton-macoutes can expect to enjoy an increase in their influ-

ence and sphere of action. This had previously been reduced,

due to Baby Doc’s reliance on the leopards rather than the ma-

42a

coutes for armed support. The former Private Secretary, Biamby,

has always been an organiser and strong supporter of the macoutes.

In December 1975, a courageous denunciation of the Tonton-

macoutes was published in Le Petit Samedi Soir weekly, in the

form of an open letter to the president and signed by 32 citizens

of Galette Potonier. While praising the sense of justice and mag-

nanimity shown by the president, the text described some of the

atrocities of the Tonton-macoutes:—

“Since their existence, this zone has become a human slaugh-

terhouse. The abuses that have been perpetrated there cannot

be enumerated. The people have been despoiled even of their

lowly means of subsistence, often beaten to a bloody pulp, with-

out any recourse to and explanation from the militiamen of the

area. They do everything arbitrarily; this region was once the

breadbasket of Irois and even of surrounding countries. For the

past two or three years, it has faced a scarcity of basic food-

stuffs and misery has settled in...

“Torture was awaiting the thief. The so-called agents of

peace inflicted on him a horrible treatment: the poor man was

bludgeoned; they enjoyed pummelling his stomach with a cudgel,

hitting him in the ribs. Besides wounds here and there, fractures

to the spinal column were observed, and the poor man succumbed

in excruciating pain on November 4, at 8 pm in public view. All

this happened because he had not what it takes to buy his free-

dom.”

By reputation, the worst prison in Haiti is Fort Dimanche,

where many of the political prisoners are kept. While other pris-

oners are given exercise and can receive visits, political prisoners

are kept in total isolation. They are not allowed access to law-

yers, and indeed no lawyers would dare defend a political pris-

oner for fear of suffering the same fate. The only way of securing

release is if you have an influential friend who will intervene on

your behalf. But even this possibility, out of the question for

the majority, is denied those who are accused of being ‘commu-

nist,’ when only the Duvaliers themselves or the Chief of Police

have the power to release them.

ee Keb

43a

Prisoners are kept in groups of five or six in cells 3 metres

by 2. They have no beds or washing facilities. The prisons are in-

fested with insects from the generations of prisoners that have

passed through their cells and are never cleaned. The diet con-

sists solely of a kind of maize broth and is never varied by the

addition of any meat or vegetables. The prisoners are often so

deprived of liquids that they are forced to drink their own urine.

Latrines are noticeable only by their absence; a metal can pro-

vides a substitute, but is only emptied when it is completely full.

Often prisoners may not see the light of day for years.

Maltreatment begins at the moment of arrest. Prisoners are

beaten up and often have their skin badly burnt with cigarettes.

Other tortures are often of a sophisticated and always of a brutal

kind. One example is when the prisoner has his left and right

sides attached to two parallel poles, which are then spread apart

or turned in opposite directions. It is common practice just be-

fore interrogation to attach prisoners by their ankles to the back

of a jeep and then drag them at high speed over the ground.

During interrogation prisoners are subjected to electric shocks

and starved till they can no longer stand. Their torturers then

beat them with the cry of “Stand up the dead!”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.