Opposition Brief — Sale v. Haitian Centers Council, Inc.

BU A fe oy O41 ]

i, Be 71 HS

No. 92-528 + |

: GLENS

ecsecn ‘ ee cee

IN THE

Supreme Court of the United States

OctToBer TERM, 1992

CHRIS SALE, ACTING COMMISSIONER, IMMIGRATION

AND NATURALIZATION SERVICE, ET AL.,

Petitioners,

vs.

HAITIAN CENTERS COUNCIL, INC., ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENTS’ OPPOSITION

HAROLD HONGJU KOH

Lowenstein International

Human Rights Clinic

127 Wall Street

New Haven, Connecticut 06520

(203) 432-4932

LUCAS GUTTENTAG

JUDY RABINOVITZ

Immigrants’ Rights Project

American Civil Liberties Union

132 West 43rd Street

New York, New York 10036

(212) 944-9800

ROBERT RUBIN

IGNATIUS BAU

National Refugee Rights Project

Lawyers’ Committee for Civil

Rights of the Bay Area

301 Mission Street

San Francisco, California 94105

(415) 543-9444

*MICHAEL D. RATNER

SUZANNE SHENDE

Center for Constitutional Rights

666 Broadway

New York, New York 10012

(212) 614-6464

JOSEPH TRINGALI

SUSAN SAWYER

Simpson Thacher & Bartlett

425 ' exington Avenue

New tork, New York 10017

(212) 455-2000

Attorneys for Respondents

*Counsel of Record

29 ry

a

QUESTIONS PRESENTED

1. Whether the lower courts abused their discretion by

finding sufficiently serious questions going to the merits that the

Fifth Amendment Due Process Clause applies to non-accused, non-

hostile, “‘screened-in” Haitian aliens being held in custody on

territory within the exclusive jurisdiction and control of the United

States in connection with their efforts to avoid retum to Haiti where

they face political persecution and even death.

2. Whether the courts below abused their discretion by

finding that the Eleventh Circuit’s ruling barring “screened-out”

Haitians from challenging initial INS screening procedures did not

collaterally estop “‘screened-in” Haitians from challenging a new

government practice of reinterviewing “‘screened-in” Haitians on

Guantanamo without legal counsel and forcibly repatriating them to

Haiti.

Table of Contents

Page

5 i

8 iv

ME POE fw tc et ee eee l

ee ee a pw ss ss 6 oR to ee ee» 3

Ee 3

EE Se eee 4

SS 6

re 8

V. District court proceedings since the close of the

record before the court of appeals ............ 9

eaeeepre © ue, Were NIWGs BOE WRIT .............. 10

I. This Court should not review a fact-specific,

nonfinal order that maintains the status quo

when review will not decide all of the issues

between the parties, particularly when a fuller

record is now being made at trial............. 10

IJ. The district court did not abuse its discretion

by issuing the nonfinal order here, and the

court of appeals properly affirmed that order

ees gh kb sb cee bab eee es 16

Page

III. The courts below did not abuse their discretion

by holding that the Eleventh Circuit’s ruling

barring “screened-out” Haitians from

challenging initial INS screening procedures

did not collaterally estop ‘“‘screened-in”

Haitians from challenging a new government

practice of reinterviewing “screened-in”

Haitians on Guantanamo without legal counsel

and forcibly repatriating them to Haiti. ........ 23

IV. Alternatively, the petition should be held and

disposed of in light of no. 92-344, Sale v.

Haitian Centers Council, Inc.; under no

scenano would the remedy of summary

feveraal Re appropriate. .. ww ee es 27

ION gine oes dtc a arr en aoa ee 30

Table of Authorities

Page(s)

Cases

American Constr. Co. v. Jacksonville,

5. Ee, Ch, BO a St ee 6 eo ee RE Ri ee 1]

Asahi Metal Indus. Co. v. Superior Court,

Ce es SO UNRTE 5b a 6 Wa ie ok aes eae 22

Ashwander vy. Tennessee Valley Auth.,

pik ee eres eee Pe eee 15, 30

Azzouka v. Sava, 777 F.2d 68 (2d Cir. 1985) ........... 19

Balzac v. Porto Rico, 258 U.S. 298 (1922) ............. 19

Brown v. Choate, 411 U.S. 452 (1973) ................ 16

De Lima v. Bidwell, 182 U.S. 1 (1901) ............... 19

Dorr v. United States, 195 U.S. 138 (1904) ............ 19

Downes v. Bidwell, 182 U.S. 244 (1901) .............. 19

Eaton v. City of Tulsa, 415 U.S. 647 ...........206- 29, 30

Frisby v. Schultz, 487 U.S. 474 (1988) ................ 14

Goodman y. Lukens Steel Co., 482

ey ee eee ee ae ere ey 16

iV

Page(s)

Haitian Refugee Center v. Baker,

789 F. Supp. 1552 (S.D. Fla. 1991),

injunction dissolved, 949 F.2d 1109

(11th Cir.), cert. denied, 112 S. Ct.

ee rr na 5 a yb ee ea aR ae eS 26

Hamilton-Brown Shoe Co. v. Wolf

ee es NP Rs Ee OO oe ce cere se eaen 10

fansberry v. Lee, 311 U.S. 32 (1940) .. 2... wees 25

House v. Mayo, 324 U.S. 42 (1945) ...............04. 1S

Johnson vy. Eisentrager, 339 US.

ia gt US ee Pe re 18. 21

Kinsella v. United States ex rel.

nn: SO US CPOE. gk a wc wc hwehens 21

Landon vy. Plasencia, 459 U.S. 21 (1982) .............. 20

McNary v. Haitian Centers Council, Inc.,

os yk a ko kde § Mea ae Wwe ele 13

Montana y. Hall, 481 U.S. 401 (1987) ...........2.... 29

Montana v. United States, 440 U.S.

a ER a ee RS yn a

Nicosia v. Wall, 442 F.2d 1005

II, Sse eres eget ae ani e e 19

Nishimura Ekiu v. United States, 142 U.S. 651 (1892) ..... 20

Parklane Hosiery Co. v. Shore, 439 U.S.

oo 2 kes | Sree ae rer a a eee ee 24

Pennsylvania v. Mimms, 434 U.S.

OP rare ea a ge a ea 29

Ralpho v. Bell, 569 F.2d 607

a ee SEED gp cubase chu ee wake tases en seneec eeu 19

Raid eo Covere S56 US. £. SR ERIOTD cv ca caseens 21, 22

Sale v. Haitian Centers Council, Inc.,

No. 92-344 (U.S. argued Mar. 2, 1993) ........ 3, 10, 27, 30

Schweiker v. Hansen, 450 U.S. 785 (1981) ............. 29

Shaughnessy v. United States ex rel.

Rieeel, DES Us Be CHO kn coc cee cee hin wanes .. ao

Stone v. Graham, 449 U.S. 39 (1980) .. 1.2.2.2... 000 29

Straight v. Wainwright, 476 U.S. 1132 (1985) ........... 28

United States v. Caltex, Inc., 344 U.S. 149 (1952) ........ 22

United States v. General Motors Corp...

SEL SHRCEEEE Viv kka ce kas eoavcee he sunesewss 14

United States v. Hollywood Motor Car Co.,

eee, eee Shake ech eee Wak a ee 2 29

United States v. Tiede, 86 F.R.D. 227

CEE, Ce Gi ee GPO eas ech wa en howe ne deucnes 19

vi

United States v. Verdugo-Urquidez,

Te Sh Be CUO kiss nce es anwar ansce . 14, 17, 21-23

Whalen v. Roe, 423 U.S. 1313, (1974) ..........0..4.. 13

Wyrick v. Fields, 459 U.S. 42 (1982) ............ oe

Yiu Sine Chun v. Sava, 708 F.2d 869

I Sa a ee ee ee ee 19

Constitution, Treaty, Statutes

Executive Order No. 12,807,

ok RE . ee 3, &

Pe ET 5 os 4 stn asd peAen cukwaaee es eres

Immigration and Nationality Act § 243(h),

PUR Kw sk awa e ee new ae oss Kwa uke ae

United Nations Convention Relating to the

Status of Refugees, July 28, 1951,

19 U.S.T. 6259, 189 U.N.T.S. 150

oo Ba a Be fk ae | 8, 28

ee SE I Geet ee oa ode alk were’ 6

Ss MU I OE Ao se na aod ak ele wk a kee 21, 22

U.S. Const. amend. V (Due Process Clause) ......... passim

Page(s)

Other Authorities

Restatement (Second) of Judgments

>. ot) +. re ee a er re se ee 27

11 C. Wright & A. Miller, Federal

Practice and Procedure: Civil § 2947

t. & - ar eee eee eee ee ee 14

Vili

In THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-528

CHRIS SALE, ACTING COMMISSIONER, IMMIGRATION

AND NATURALIZATION SERVICE, ET AL.,

Petitioners,

-VS.-

HAITIAN CENTERS COUNCIL, INC., ET AL.,

Respondents.

RESPONDENTS’ OPPOSITION TO PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

SUMMARY OF ARGUMENT

Respondents Haitian Centers Council, Inc., et al. oppose the

petition for a writ of certiorari because the decision below was

correct and warrants no further review, particularly in its current

interlocutory posture. Petitioners seek review of a nonfinal order,

decided on narrow fact-specific grounds, that presents no

extraordinary issue, upon which the circuits are not divided, and

that simply maintains the status quo pending a trial that will be

completed before this Court can dispose of this petition. Petitioners

concede that the district court’s preliminary injunction, as modified

on appeal, “does not require petitioners to grant respondent [Haitian

Service] organizations immediate access to Guantanamo and affects

for now only the several hundred screened-in Haitians at

Guantanamo ... who. . . await further interviews there.” Pet. at

12.’ Nor does the Second Circuit's decision require or even concem

the entry into the United States of the 252 “‘screened-in” Haitians’

who have been forcibly held in custody behind barbed wire on

Guantanamo for as long as fifteen months, many of whom already

have been found to have well-founded fears of political persecution.

Rather, pending trial on the merits, petitioners are enjoined merely

from interviewing respondent Haitians to determine whether to

repatriate them to Haiti unless respondents are represented by

attomeys during those interviews.

Although the Second Circuit rendered its decision ten months

ago, petitioners have not sought a stay in either the Second Circuit

or this Court. On March 8, 1993, a full trial on the issues raised in

the petition, as well as other dispositive issues, began in the district

court, and the factual record has now been dramatically expanded.

The trial is scheduled to end on March 18. If respondents should

win at trial and again on appeal, this Court can review that

judgment on a fully developed record, thereby avoiding the needless

review and piecemeal litigation that granting this petition would

engender.

Furthermore, the lower courts were correct in finding

sufficiently serious questions going to the merits that the Fifth

Amendment Due Process Clause applies to “screened-in” Haitian

aliens being held in custody on territory within the exclusive

jurisdiction and control of the United States in connection with their

efforts to avoid retum to Haiti,’ where they face political

persecution.

1. “Pet.” refers to the petition for a writ of certiorar in No. 92-528. “Pet.

App.” refers to the appendix to the petition in No. 92-344. “J.A.” refers to the

joint appendix in No. 92-344,

2. This is an approximate number. A small number of Haitians have been

paroled into the United States from Guantanamo despite petitioners’ general

ban, because they either have proved HIV-negative and willing to separate

from the HIV-positive members of their family or because they have required

medical treatment that is unavailable on Guantanamo.

Even if the Court were inclined to grant review, this petition

should be held and disposed of in light of the Court’s ruling in Sale

v. Haitian Centers Council, No. 92-344 (HCC II) (argued March 2,

1993). Petitioners concede “much commonality among the issues

raised” in this petition and those to be decided in HCC II, Pet. at

28, thus rendering their own request for summary reversal

completely inappropriate. Summary reversal is granted only in the

most egregious cases and never when a related case is under

plenary review. Summary reversal has no place where, as here, the

decision below was correct, the law is not well-settled, and vital

disputed facts remain to be decided at the trial.

STATEMENT

I. Background

This case concems 252 “screened-in” Haitian refugees who

have been held in petitioners’ custody behind barbed wire for as

long as fifteen months in a detention camp at the Guantanamo

Naval Base. They fled Haiti in the period following the September

30, 1991 coup which ousted President Jean-Bertrand Aristide and

prior to President Bush’s May 24, 1992 issuance of Executive

Order No. 12,807, 57 Fed. Reg. 23,133 (1992) (“Kennebunkport

Order’), Pet. App. at 260a-263a (directing lower government

officials to summarily repatriate all Haitians without any process or

screening). Under the program in effect at the time respondents

were interdicted, Haitians were interviewed, and those found to

have a credible political asylum claim were “screened in” and

brought to the United States where they could apply for asylum.

Those found not to have a credible fear of political persecution

were “screened out” and repatriated to Haiti.’

The Haitians involved in this case were “screened-in,” but not

brought to the United States. Pet. App. at I1la-14a; Pet. at 3.

Instead, because respondents allegedly have a communicable

3. This litigation preceded respondents’ challenge to the Kennebunkport

Order, HCC //, upon which this Court heard oral argument on March 2, 1993.

3

disease, petitioners required Haitian respondents to pass a second

uncounseled interview in order to avoid retum to Haiti. In April,

1992, the district court entered a preliminary injunction to ensure

that such uncounseled second interviews would not occur pending

a trial on the merits.

Il. HRC v. Baker

Haitians began fleeing political reprisals that followed the

September 30, 1991 military coup that overthrew the government

of President Aristide, the first democratically elected govemment of

Haiti. Petitioners continued their long-standing policy of “screening

out” and returning to Haiti interdicted Haitians who lacked credible

fears of persecution, but began housing “‘screened-in” Haitians at

the United States Naval Base at Guantanamo Bay pending their

transfer to the United States. In November 1991, the Haitian

Refugee Center (*HRC’’) brought a suit in the Southem District of

Florida challenging the adequacy of the initial screening procedures.

Plaintiffs included HRC itself and a class represented by fifteen

named plaintiffs, all of whom had been “‘screened-out.” HRC,

Second Amended Compl. ¥§ 7, 9-23, J.A. at 96, 97-104.

At that time, only Haitians who had been “‘screened-out” in the

initial interview process were at nsk of being forcibly retumed to

Haiti as a consequence of faulty INS screening procedures. Thus,

the HRC class included only “screened-out” Haitians, i.¢., those

persons who had suffered harm because of the alleged inadequacies

in the initial screening.* To halt petitioners’ conduct, the district

4. — The fifteen named plaintiffs in HRC moved to certify a class consisting

of all Haitian aliens who are currently detained or who in the future will be

detained on U.S. Coast Guard cutters or at Guantanamo Naval base who were

interdicted on the seas pursuant to the United States Interdiction Program and

who are being denied First Amendment and procedural nights. HRC Class

Cert. Motion, J.A. at 119. Their supporting memorandum made clear that

|t}he individual plaintiffs . .. were intercepted by the United

States Coast Guard pursuant to 4 ‘program of interdiction’

that permits interception and repatriation of undocumented

(continued... )

court issued several injunctions, which the Eleventh Circuit reversed

in two separate rulings. Pet. App. at 171la-189a; id. at 190a-252a.

In opposing cerioran in HRC, the Solicitor General specifically

represented to this Court that

Under current practice {followed for more than a decade},

any [screened-in] aliens who satisfy the threshold

standard are to be brought to the United States so that

they can file an application for asylum under section 208

(a) of the [INA]... . These “screened in” individuals then

have the opponunity for a full adjudicatory determination

of whether they saisfy the statutory standard of being a

“refugee” and otherwise qualify for the discretionary

relief of asylum.

J.A. at 252 (emphasis added). Yet only five days after this Coun

denied certioran in HRC, petitioners changed that practice, began

reinterviewing certain of the “screened-in” Haitians on Guantanamo

without lawyers, and moved to repatnate those “screened-in”

Haitians who “failed” the new uncounseled procedures. This new

practice was embodied in a February 29, 1992 memorandum from

INS General Counsel Grover Joseph Rees, II], which mandated that

“screened-in” Haitians with a communicable disease be given a

second interview to determine if they have a “well founded fear of

persecution on account of . . . political opinion.” Pet. App. at 82.

The memorandum stated that the interviews were to be “identical”

or as “nearly so as possible” to asylum interviews in the United

4.(...continued)

aliens. . . . They have all been ‘screened out’... .

Effectively, as a result, each of these plaintiffs would be

forcibly returned to Haiti. . . were it not for the Court's

order.

HRC Class Cert. Mem., J.A. at 126-127. Only Haitians who had been

“screenéd-out™ in the initial interview process were at risk of being forcibly

returned to Haiti. The HRC defendants did not oppose the motion or respond

to the Memorandum. Accordingly, the district court certified the class without

a hearing or opinion. HRC Order of December 3, 1991. J.A. at 89.

5

States. Pet. App. at 83. However, unlike asylum applicants in the

United States, “screencd-in” Haitians subject to a second interview

were denied all the procedural protections that ordinarily attend

asylum processing in the United States, including access to an

attomecy. These events gave rise to the mstant lawsuit.

Wi. HCCT

Respondents brought this action in March, 1992, in the Eastern

District of New York GJohnson, J.) on behalf, inter alia, of “lajil

Haitian citizens who have been or will be screened-in,” see

Plaintiffs’ Notice of Motion for Provisional Class Cert., J.A. at 281,

challenging petitioners’ changed practice.” Respondents sought a

preliminary order that no “screened-in” Haitian on Guantanamo

could be reimterviewed or repatnated without counsel, pending a

determination at tral of the new policy's legality. The complaint

alleged seven different violations of law, four of which are

currently beimg tned before the distnct coun. The court ts also

hearing two additional claims not raised in the orginal complaint.”

S. Other plaintiffs included three “Haitian Service Organizations,” legal and

advocacy groups that sought to provide counsel and assistance to the

“screened in” Haitians being detained at Guantanamo.

6. The following six issues are currently being litigated in the district court:

(1) the content-based demal of plamtuff Haitian Service

Organizations’ First Amendment nghts to communicate with the

“screened-in” Hastians held on Guantanamo;

(2) the demal of the “screened-in” Haitians’ constitutional rights

to obtain and Communicate with Counsel in the newly implemented

rescreening process on Guantanamo;

(3) petitioners’ arbitrary and capricious action that was not in

accordance with law in connection with, inter alia, petitioners’

intimidating and coercing the screened in Haitians and wrongfully

denying their individual asylum claims;

(4) the demal of the “screened in” Haitians’ equal protection

nights by creating a separate and unequal asylum process for Haitians

only;

(continued...)

6

Thus, the right to counsel under the Due Process Clause—the only

one of plaintiffs’ claims that would be before this Court if it were

to grant this petition—is only a very small piece of a much larger

Case.

On March 27, 1992, the district court issued a 23-page opinion

granung a temporary restraining order requiring that the named

“screened-in” Haitian plaintiffs be given immediate access to their

lawyers and enjoining both uncounseled reinterviews on

Guantanamo and repatriation of uncounseled class members. Pct.

App. at 125a. On April 1, 1992, the district court conducted a full-

day preliminary injunction hearing at which the panties offered

extensive written evidence and oral testimony. On April 6, 1992,

the coun granted a preliminary injunction in a lengthy opinion,

which contained detailed findings of fact, conclusions of law, and

conditional cenificaion of the “screened-in” Haitians on

Guantanamo as a plaintiff class. Pet. App. at 1424.

The coun found that “the balance [of hardships] ups decidedly

in favor of Plainuffs” and “that irreparable harm is likely to result

if this preliminary injunction were [not] issued.”’ Pet. App at 1524,

161a (sic). Specifically, the court determined that “|rjepatnated

Haitians face political persecution and even death on their retum,”

Pet. App. at 148a, and that there were serious questions going to

the merits of respondents’ First and Fifth Amendment claus, Pet.

App. at 155a, 157a. The preliminary relief that Judge Johnson

ordered—preventing the allegedly unlawful repatnation of screened-

6.(...continucd)

(S) the demal of due process nights by detaining “screened in”

Haitians indefinitely; and,

(6) the demal of due process nghts by confining “screened-in”

Haitians in inherently unhealthful and life-threatening conditions.

Claims One through Four were contained in the complaint. J.A. at 31.35. The

district court ruled from the bench on March %, 1993 that pursuant to Fed. R.

Civ. P. 15(b) Claims Five and Six also were to be considered at trial. In a

previous ruling, the court postponed to a later tal respondents” challenge to

the policy of summary return under ® U.S.C. § 12543¢h).

7

in Haitians and preventing respondent advocacy groups’ First

Amendment nghts from being extinguished—was designed to

preserve the status quo unul the full case could be decided after

discovery, on a developed record.

The Second Circuit affirmed, with modifications, the lower

court's grant of a preliminary injunction. Pet. App. at) 73a.

However, the Second Circuit only enjoined petitioners from

reinterviewing or repatniating screened-in Haitians who had not had

an opportunity to consult with counsel. Unlike the district court, the

Court of Appeals did not require petitioners to grant lawyers

immediate access to their clients on Guantanamo. Instead, the

modified injunction required attomey access only if petitioners

elected to subject the “screened-in” Haitians to reinterviews that

could result in repatriation to Haiti prior to tnal. To minimize

hardship to either party, the court specifically directed that the trial

be expedited. Pet. App. at 11 7a.

IV. HCC HI

On May 24, 1992, pursuant to the Kennebunkport Order issued

hy President Bush, petitioners dispensed with the legal obligations

they had previously recognized not to retum aliens to a Country

where such aliens’ life or freedom would be threatened. Pet. App.

at 260a. Instead, petitioners Coast Guard and Immigration and

Naturalization Service (“INS”) instituted a new interdiction program

of summary retum without screening, forcibly retuming bona fide

refugees, without any process or questioning, to conditions of

persecution and death in Haiti.

On March 2, 1993, this Cour heard oral argument regarding

the Second Circuit's order directing the distnct court to enjoin

petitioners’ implementation of the Kennebunkport Order. The Court

of Appeals reasoned that the summary retum policy violates the

plain language of § 243(h) of the Immigration and Nationality Act

(“INA”) and that the extraterritorial scope of § 243(h) conforms to

both the plain language and object and purpose of Article 33.1 of

the U.N. Refugee Convention. Pet. App. at !a-39a.

The 252 “screened-in” Haitians held on Guantanamo, the

subject of HCC 7, were interdicted pursuant to the prior Executive

Order. Thus, neither their separate claims conceming their plight on

Guantanamo, nor the application of due process protections to

aliens in respondents’ situation, were before this Court in HCC /1.

V. District court proceedings since the close of te

record before the court of appeals

Pursuant to the Second Circuit's directive, the district cour

expedited the trial process in HCC /. In that regard, a tral on six

separate Claims raised by the “screened-in” Haitians held on

Guantanamo began on March &, 199% and will have concluded

hefore this Court has an opportunity to decide the instant petition.

The trial record will be far more complete than the evidence

available to the parties at the time of the preliminary injunction

hearing. The Second Circuit's ruling noted the need for a “fuller

record” in order to decide the ultimate ments. Pet. App. at 1094.

Accordingly, the partics have now taken more than forty

depositions and produced thousands of documents to each other

Evidence presented to the district court at tral which was not

available at the time of the preliminary injunction establishes, inter

alia, that: (1) only U.S. criminal and civil laws apply on the

Guantanamo Naval Base; (2) the screened-in Haitians have been

subjected to indefinite confinement in a camp that the govemmment’'s

own health experts have called a potential public health disaster,

and (3) “screened-in” Haitian refugees have not been medically

evacuated even though the military doctors on Guantanamo believe

they cannot be treated adequately there.

This and other evidence is currently under consideration by the

district court, which will very likely make a determination regarding

all of plaintiffs’ claims before the Coun disposes of this peution.

9

REASONS FOR DENYING THE WRIT

The writ should be denied because this case is currently on

trial before the United States District Court for the Eastern District

of New York. Review of the Second Circuit's fact-specific decision

would be utterly premature and a waste of this Court's resources.

Petitioners identify no issues of special importance warranting

review at this stage, nor any issues on which the circuits are

divided. Moreover,-the decision below was correct, with regard to

both the menits and preclusion. Even if the Court were inclined to

consider the questions presented here, it should not grant this

petition, but rather, should hold and dispose of it after resolution of

Sale v. Haitian Centers Council, No. 92-344 (HCC II) (argued

March 2, 1993). Petitioners’ request for summary reversal is

baseless, given that a related case is under plenary review, the

decision below was correct, and the factual record has now been

substantially developed at tnal.

I. This Court should not review a fact-specific,

nonfinal order that maintains the status quo when

review will not decide all of the issues between the

parties, particularly when a fuller record is now

being made at trial.

Petitioners ask this Court to review a preliminary injunction,

rendered on a unique set of facts, that retains the status quo

pending the outcome of a full trial that is currently underway in the

U.S. Distnict Court in Brooklyn. This Court reviews interlocutory

orders “sparingly, and only in cases of peculiar gravity and general

importance, or in order to secure uniformity of decision.”” Hamilton-

Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258. For three

reasons, this is not such a Case.

10

First, the order upon which review is requested was based

upon a unique set of facts that may well never recur.’ Second, the

preliminary injunction, which has been operative for ten months

without the petitioners requesting a stay, is not overbroad, but

carefully tailored to maintain the status quo pending the tral. Third,

a plenary trial in this case began on March 8, 1993, and a full

factual record has now been developed on both the legal issues

relevant to the preliminary injunction as well as upon numerous

additional claims that may prove dispositive of the case.

A. The preliminary injunction warrants no review by this Court

at an interlocutory stage because it is “neither . . . important in its

immediate effect, nor . . . far-reaching in its consequences.”

American Constr. Co. v. Jacksonville, T. & K. R. Co., 148 US.

373, 385-86 (1893). The instant case is highly fact-specific. The

courts below made a preliminary determination that a small number

of Haitians—who have been interdicted on the high seas, held in

U.S. custody on Guantanamo Naval Base over which the U.S.

exercises exclusive jurisdiction, “screened-in” under a policy that

no longer exists, and determined to have a communicable

disease—cannot be repatriated to Haiti while the tral on the merits

proceeds, unless they are given access to counsel at their second

interview. In affirming a modified preliminary injunction, the Court

of Appeals recognized that, based on its ‘‘review of the unique facts

and circumstances,” there were sufficiently serious questions going

7. Nor need the Court review the order to “secure uniformity of decision.”

No circuit split exists on the narrow question here: whether the lower courts

abused their discretion by finding sufficiently serious questions going to the

merits that the Fifth Amendment Due Process Clause applies to non-accused,

non-hostile, “screened-in” Haitian aliens being held in custody in territory

within the exclusive jurisdiction and control of the United States in connection

with their efforts to avoid return to Haiti where they face political persecution

and even death. See Point II, infra.

1]

,

to the merits that respondent Haitians have due process rights under

these unique circumstances. Pet App. at 104a."

B. The preliminary injunction, as modified by the Second

Circuit, is narrowly tailored to preserve the status quo. Initially, the

district court had granted respondent Haitian Service Organizations

immediate access to their clients on Guantanamo, but the court of

appeals vacated that portion of the order as going beyond the status

quo. Pet. App. at 1!6a. The Second Circuit then limited the relief,

enjoining petitioners merely from repatnating “screened-in” Haitians

who were not first afforded an opportunity to communicate with

counsel. Pet. App. at 116a-17a, 85a. Hence, respondent Haitian

Service Organizations have no rights under the order to have access

to their clients. Under the injunction, peutioners retain the power to

repatriate “screened-out” Haitians; to keep “‘screened-in” Haitians

outside the United States; and even to repatriate the “screened-in”

Haitians who fail their second interviews, so long as they have had

the assistance of counsel.’

8. —_ Petitioners seek to broaden the impact of the preliminary injunction by

arguing that 1 could limit the practical options available to them if they once

again decide to interdict and screen refugees. Pet. at 27. But this is completely

speculative, particularly considering that just a few days ago the government

came before this Court in HCC // and defended the policy of summary return

without screening as lawful. Such policy speculation does not create a reason

for this Court to review an interlocutory order in the midst of an ongoing tnal.

Nor would the order limit petitioners’ options except with regard to those

relatively few “screened-in” Haitians with a communicable disease whom

petitioners seek to subject to an uncounseled second interview. Petitioners’

suggestion that the injunction impairs their freedom at sometime in the future

Jo interdict, screen, and then have full refugee determinations on Guantanamo

is not only speculative, but flatly inconsistent with their claim that the base

cannot even accommodate a few attorneys to process the few respondent

Haitians still held here.

9. Respondents falsely claim that “many migrants have expressed a strong

preference to return to Haiti” and that the “Second Circuit's decision, however,

may well bar such voluntary repatriations.” Pet. at 13 n. 9. To the extent that

anyone has supposedly expressed such a desire—and petitioners have notified

(continued...)

12

~

Nor is the limited injunction causing petitioners irreparable

harm that would warrant this Court's short-circuiting an ongoing

trial on the merits.’? Both courts below recognized that the

petitioners will suffer no real harm while the preliminary injunction

is in place, pending the expedited trial. The Second Circuit

recognized that petitioners could only claim vague interference with —

Carrying out their responsibilities. Pet. App. at 116a-117a. Indeed,

during the ten months the injunction has been in place, petitioners

have not requested a stay. Pet. at 12-13. To the contrary, over that

penod, petitioners have voluntarily consented to visits to

Guantanamo ranging from two days to two weeks by more than

forty iawyers, law students, interpreters, and doctors retained by

respondents.'' Accordingly, this Court has no basis now to decide

that the preliminary injunction is causing such harm to petitioners

as to justify premature review of a nonfinal order.

To grant certiorari and reverse the order below would cause

irreparable injury to respondents by retuming many of them to

Haiti. The Second Circuit expressly affirmed the district court's

finding that repatriated Haitians “face political persecution and even

death on their retum.” Pet. App. at 116a. This Cour has granted

9.(...continued)

respondents of only three such persons—return to Haiti would not be blocked

if respondents’ counsel were convinced that the request for voluntary

repatriation is genuine. In fact, all screened-in Haitians we know of have

declined repatriation after mnterviews with counsel.

10. Petitioners do not argue—as they did to the Second Circuit, Bnef for

Appellants, No. 92-6090 at 15, that this limited order would dramatically

increase the outflow of people from Haiti. Not only is the present order far

more limited than the district court order which this Court stayed, McNary v

Haitian Centers Council, Inc., 112 S. Ct. 1714 (1992), but the new

Bush-Clinton policy of summary return has undercut any claim of increased

outflow,

11. In order to successfully seek a stay, petitioners would have had to

demonstrate to this Court that they “will suffer irreparable injury if the

judgment is not stayed . . . pending appeal.” Whalen v. Roe, 423 U.S. 1313,

1316 (1974) (Marshall, J.).

13

review of a nonfinal order only in the rare circumstances where it

is “fundamental to the further conduct of the case,” United States

v. General Motors Corp., 323 U.S. 373, 377 (1945). Here, by

contrast, review and reversal would end the case despite the

numerous new facts and legal issues now adduced by the district

court, not because the legal issue decided here would dispose of

those other issues, but because this Court’s review would free

petitioners to repatriate respondents to Haiti. Such a result would

wholly undercut the most compelling reason for issuing a

preliminary injunction in the first place: “to prevent the judicial

process from being rendered futile by defendant's action or refusal

to act.” 11 C. Wright & A. Miller, Federal Practice and Procedure:

Civil § 2947 (1992 Supp.).

C. It would be highly unusual, if not unprecedented, for this

Coun to grant certioran to review a nonfinal order in a Case in

which a full trial is ongoing, during which new facts and additional

legal claims are being raised and decided. Granting review would

be particularly premature and unwarranted here, where the facts

developed at trial will substantially aid this Court's determination.

Cf. Frisby v. Schultz, 487 U.S. 474, 479 (1988) (certiorari granted

in part when further proceedings not likely to aid Supreme Coun

consideration).

The Second Circuit has demanded a “fuller record” from the

district court, which the trial will provide. Pet. App. at 109a. For

example, the Second Circuit's inquiry as to whether “United States

civil laws apply to the conduct of all aliens on the base,” Pet. App.

at 1094, has now been answered affirmatively.’? Deposition of Lt.

Cmdr. Peter Straub (Judge Advocate General's Corps). Likewise,

discovery and trial have established that providing counsel to the

“screened-in” Haitians is both practicable and critically important

12. Such a finding might well prove crucial in deciding whether applying the

Fifth Amendment would be either “impracticable” or “anomalous” in these

circumstances. United States v. Verdugo-Urquidez, 494 U.S. 259, 27% (1990)

(Kennedy. J., concurring). See Point II, infra.

14

to prevent erroneous repatriations. Depositions of Col. Stephen

Kinder (former camp commander), Deborah Anker (Lecturer,

Harvard Law School), Scott Busby (Guantanamo Asylum Officer),

and Grover Joseph Rees, III (INS General Counsel). Given the

substantial depositions and trial testimony on these and other issues,

it makes no sense, absent immediate harm to respondents, to grant

the petition.

Ultimately, this case also may be decided on grounds not

raised in the petition. Respondents have raised and proceeded to

trial on six legal claims. This petition, however, raises only one of

these, the due process claim.'* See Statement, supra. One of the

claims is statutory—that petitioners’ decision to reinterview the

“screened-in” Haitians was arbitrary and capricious—and could

prove determinative, thereby eliminating the need for this Court to

rule on the constitutional grounds presented in the petition.

Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936)

(Brandeis, J., concurring) (“The Court will not ‘anticipate a

question of constitutional law in advance of the necessity of

deciding it’) (citations omitted).

_ Thus, granting certiorari here would improvidently thrust this

Court into piecemeal litigation and spawn unnecessary decisions on

constitutional questions. Denying certiorari, by contrast, will

“import[] no expression of opinion upon the merits of the case,” but

will ensure that the lower courts and, if need be, this Court will

ultimately review this case on a full, rather than fragmented, record.

House v. Mayo, 324 U.S. 42, 48 (1945).

13. Indeed, the petition only concerns one aspect of that claim—the right of

the “screened-in” Haitians to access to counsel prior to repatriation to Haiti.

It does not concern other aspects of the due process claim that are currently

before the district court, including the right to access to counsel for the

purpose of challenging conditions of confinement and abuse while so confined.

15

II. The district court did not abuse its discretion

by issuing the nonfinal order here, and the

court of appeals properly affirmed that order as

modified.

The coun of appeals affirmed a narrowly drawn preliminary

injunction tailored to maintain the status quo. Pending tnal, the

Second Circuit enjoined petitioners from repatnating to Haiti

“screened-in” Haitians unless they were first provided access to

counsel at their second interview. Both lower courts held that

respondents would suffer irreparable injury if repatriated to Haiti,'*

and that the balance of hardships tips decidedly in respondents’

favor. Pet. App. at 99a-117a; 152a-161a. Petitioners do not contest

either conclusion. Even if respondents had not subsequently

adduced ample evidence at tral to support these factual findings,

under the “two-court rule,” this Cour should not disturb them.

Goodman v. Lukens Steel Co., 482 U.S. 656, 665 (1987).

Both lower courts further found sufficiently serious questions

going to the merits of their claim that respondents—non-accused,

non-hostile Haitians, who were interdicted fleeing Haiti, ““screened-

in,” and held in custody on territory subject to exclusive U.S.

jurisdiction and control—are entitled to due process in connection

with their efforts to avoid erroneous retum to persecution in

Haiti.’* In so ruling, the courts below did not abuse their discretion.

Thus, certioran is inappropriate. Brown vy. Choate, 411 U.S. 452

(1973)

A. Petitioners fundamentally misstate the question presented as

whether any and all aliens outside the United States have due

14. The district court concluded that the “screened-in™ Haitians “may face

torture [and] death if they lack access to counsel, fail in their bids to receive

asylum, and are repatriated to Haiti.” Pet. App. at 1524. The Second Circuit

specifically affirmed that finding. Pet. App. at 99a, 117a.

1S. The Second Circuit found, as did the district court, “that the

plaintiffs... have met [the likelihood of success] standard as well.” Pet. at

1174 0.19.

16

process rights in connection with their attempts to enter the United

States. Pet. at 15a-20a. Yet far from mandating due process nights

for all aliens outside our borders seeking entry, the preliminary

injunction protects a much narrower class of persons who are

subject to a distinctively onerous set of government restraints, a

much narrower territorial sphere, and a much narrower class of

rights. As the Second Circuit carefully explained, its due process

holding reaches only: (1) nonaccused, non-hostile Haitians (2) being

held in United States custody (3) on territory within the exclusive

jurisdiction and control of the United States, (4) who have been

“screened-in” as having credible fears of persecution, and (5) who

claim the right to due process rights only to avoid a distinctive loss

of liberty, i.¢., retum to Haiti, a country where they face death and

persecution. After examining this set of “unique facts—the

interdiction of plaintiffs by United States officials, the status of the

territory upon which they are detained, and the ‘credible’ asylum

claims they have already deen found to possess,” the Second Circuit

found “that there were serious questions going to the merits” of

respondents’ due process claims. Pet. App. at 100a. By its terms,

that holding has no application to the far broader set of persons,

territory, and rights identified by petitioners’ sweeping question

presented. The Second Circuit carefully specified that “the

Constitution does not create, nor do general principles of law create,

any juridical relation between our country and some undefined,

limitless class of noncitizens who are beyond our territory,”’ quoting

United States v. Verdugo-Urquidez, 494 U.S. 259, 275 (1990). Pet.

App. at 108a. But the cour found the Haitians were not that

“limitless class,” but an “identifiable group of people . . . who have

been detained on territory that is subject to the exclusive control of

the United States,” have been “screened-in,” and have a “reasonable

expectation... in not being wrongly repatriated” to Haiti where

they will suffer political persecution. Pet. App. at 108a, 113a. In

our history, no other group of aliens has been similarly screened,

while detained in U.S. custody on territory subject to comparable

U.S. control, and thus been determined to have such an interest in

17

non-retum. On that fact-specific ground, the Second Circuit held

that the respondent “‘screened-in” Haitians were entitled to “some

degree of due process protection” before U.S. officials retum them

to Haiti. Pet. App. at 114a.

Thus, observing that Johnson y. Eisentrager, 339 U.S. 763

(1950), is limited to the claim that the Due Process Clause does not

apply to “convicted, enemy aliens” outside the sovereign territory

of the United States, the court of appeals found “unanswered” the

“serious questions” whether that clause applies to “non-accused,

non-hostile aliens held incommunicado on a military base within

the exclusive control of the United States, namely, Guantanamo

Bay.” Pet. App. at 107a (emphasis in original).

The coun of appeals coupled this ruling with a finding that

“United States citizens and aliens alike, charged with the

commission of crimes on Guantanamo Bay, are prosecuted under

United States laws.” Pet. App. at 106a. The appeals court stated that

a full record might demonstrate that “United States civil laws apply

to the conduct of all aliens on the base,” Pet. App. at 109a, a fact

that respondents have now confinned at trial. Thus, the court held

there was “no principled basis for concluding that the ‘screened in’

plaintiffs detained at the base would have fewer substantive rights

than these other aliens.” Pet. App. at 109a.

Similarly, the court of appeals noted that the Fifth

Amendment, which protects fundamental constitutional nights, “does

not suggest” that it applies “only to areas fitting a circumscribed _

definition of the United States.” Pet. App. at 107a. The Second

Circuit pointed to the unique U.S. agreement with Cuba regarding

Guantanamo, which states that “the United States shall exercise

complete jurisdiction and control over and within said areas.”’ Pet.

App. at 105a. In comparable situations, such as the former Panama

Canal Zone, the Trust Territory of the Pacific Islands, and the

former American sector in Berlin, the courts have held fundamental

18

rights applicable to both aliens and citizens under the rationale of

the Insular Cases.’°

Finally, the court of appeals held that the Due Process Clause

applies to “screened-in” Haitians on Guantanamo because their

screened-in status recognizes their liberty interest in non-retum. As

the Second Circuit found, once the Haitians have been “screened-

in,” there is an alteration in their “fundamental legal and human

rights status... vis-a-vis the United States govemment,”

implicating “the Agreement between the United States and Haiti,

the Refugee Act of 1980, and the Protocol, to which we are a

signatory,” Pet. App. at 1 13a, all of which forbid the forcible retum

of refugees to conditions of persecution. These instruments impose

a legal duty not to return persons who fear political persecution in

their homeland, which in tum creates a liberty interest of which an

individual cannot be divested without due process of law. See Yiu

Sing Chun v. Sava, 708 F.2d 869, 877 (2d Cir. 1983); Azzouka v.

Sava, 777 F.2d 68 (2d Cir. 1985). By screening respondents in, the

Second Circuit concluded, petitioners have altered their status,

which means “that the process thereafter employed by the United

States with respect to determining the aliens’ ‘refugee’ status should

accord with some degree of due process protection.” Pet. App. at

113a-1 14a.

Having found the Due Process Clause applicable “based upon

the unique facts and circumstances of this case,” Pet. App. at 114a,

the court of appeals appropriately concluded that “|pjermitting

access to attomeys is a reasonable method to insure that the

‘screened-in’ plaintiffs are not wrongly repatrjated” to a country

16. De Lima v. Bidwell, 182 U.S. 1 (1901); Downes v. Bidwell, 182 U.S.

244 (1901); Dorr v. United States, 195 U.S. 138 (1904); Balzac v. Porto Rico,

258 U.S. 298 (1922). See generally Nicosia v. Wall, 442 F.2d 1005 (Sth Cir.

1971) (government concedes that U.S. obligation of non-return under the

Protocol Relating to the Status of Refugees applies in the Canal Zone); Ralpho

v. Bell, 569 F.2d 607 (D.C. Cir. 1977) (fundamental constitutional rights

extend to Trust Territory of the Pacific Islands); United States v. Tiede, 86

F.R.D. 227 (U.S. Ct. for Berlin 1979) (same for American sector in Berlin).

19

where they have been found to fear persecution. /d. At both the

preliminary relief and trial stages of this case, respondents have

demonstrated that counsel is essential to the process of guaranteeing

that such wrongful retums do not occur."”

B. Against the Second Circuit's due process determination,

petitioners claim, first, that aliens who are seeking admission to the

United States have no nights under the Due Process Clause, Pet. at

14-19, and, second, that no constitutional provision ever protects

unadmitted aliens outside the country. Pet. at 16.

Even if petitioners’ first claim were true, it would have no

bearing on this petition. Petitioners claim incorrectly that the courts

below found that the “screened-in™ Haitians have due process nights

“in connection with their applications for admission.” Pet. at 16.""

Rather, the injuncuon affirmed by the Second Circuit merely

protects respondents from being “wrongly repatriated to a country

in which they have already been found by our govemment to have

a credible fear of being persecuted.” Pet. App. at 1144. The order

does not require counseling with regard to questions of entry, only

that “screened-in” Haitians have access to counsel before they are

repatnated to Hait! from Guantanamo.

The distinction between entry and retum also renders irrelevant

the cases petitioners cite to demonstrate that aliens seeking to enter

the country lack due process rights.'’ The injunction at issue here

17. The district court found, and the Second Circuit affirmed, that “the

presence of attorneys during an asylum interview on Guantanamo would be

useful, feasible, and would not interfere with the interview process.” Pet. App.

at 116a n. 17. The courts further found that the plaintiffs “may face torture

|and] death if they lack access to counsel.” Pet. App. at 99a.

18. See also Pet. at 14, 16, 17, 19.

19. The cases relied upon by petitioners, Pet. 15-16, such as Landon vy.

Plasencia, 459 U.S. 21 (1982); Shaughnessy v. United States ex rel. Mezet,

345 U.S. 206 (1953): and Nishimura Ekiu v. United States, 142 U.S. 651

(1892), all concern claims of constitutional nights regarding admission. Hence,

they cast no doubt upon the liberty interest in non-return being asserted by

respondents.

20

is not based on any Haitian’s liberty interest in gaining entry to the

United States. The liberty interest, which the courts below found to

implicate the Due Process Clause, lies solely in avoiding forced

retum to the persecution from which they were fleeing. -

Petitioners secondly rely on United States v. Verdugo-

Urquidez, 494 U.S. 259 (1990), which held the Fourth Amendment

inapplicable to warrantless searches of an alien’s residence outside

U.S. territory, to argue that the Fifth Amendment similarly has no

application of any kind to unadmitted aliens. Yet Verdugo cannot

be read so broadly. The Verdugo majority’s only comment on the

Fifth Amendment was its reference, 494 U.S. at 269, in dicta, to

Johnson v. Eisentrager, 339 U.S. 763 (1950), which involved the

rights of enemy aliens in wartime on foreign soil.” As we have

noted, respondents here are not enemy aliens, but rather, ““screened-

in” aliens whom petitioners themselves have determined to have

credible fears of persecution if retumed to Haiti. Nor are they

detained exclusively on foreign soil, but at Guantanamo Bay, a

unique enclave under exclusive U.S. jurisdiction, where the only

law is United States law. Finally, this is manifestly not a wartime

situation. Respondents’ decision to flee their persecutors is neither

a hostile nor a criminal act, but rather, an exercise of their

universally recognized human rights.

Chief Justice Rehnquist’s opinion in Verdugo-Urquidez placed

particular emphasis on the Fourth Amendment’s reference to a right

“of the people,” a phrase he construed to require some connection

with the United States. 494 U.S. at 264-65. The Fifth Amendment.

20. To the extent E:sentrager stands for a geographically restricted approach

to the Bill of Rights, it was repudiated in Reid v. Covert, 354 U.S. 1, 53, 75

(1957) and Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960).

In his concurrence in Reid, Justice Harlan assessed the “particular

circumstances of |the] particular case,” to determine extraterritorial application

of the Constitution. 354 U.S. at 75. Justice Harlan’s particularized approach

was adopted by Justice Kennedy's concurrence in Verdugo-Urquidez, 494 U.S.

at 275-78, and used by the Second Circuit in analyzing the nghts of

respondents, Pet. App. at 104a-09a.

21

by contrast, protects “persons,” a term that encompasses a more

expansive class than those whom the Chief Justice believed were

protected by the Fourth Amendment. Justice Kennedy's decisive

concurning opinion applied the approach of Justice Harlan in Reid

v. Covert, 354 U.S. 1, 75 (1957) (Harlan, J., concurring in the

result), arguing that the extraterntonal application of the Bill of

Rights should be determined by a contextual case-by-case analysis

to determine whether adherence to a specific constitutional

guarantee would be “impracticable and anomalous.” 494 U.S. at

277-78 (Kennedy, J., concurring).

Thus, Verdugo’s narrow holding—the ground actually

supported by a five-member majority of the Coun—is that the

government can rebut the application of a constitutional provision

to the acts of the U.S. govemment outside U.S. termtory by

demonstrating that adherence (© that provision in a particular

circumstance would be “impracticable and anomalous.” 494 U.S. at

278.*' In this case, it would be anomalous not to extend the Due

Process Clause to respondents who are non-hostile, ““screened-in”

aliens who have been held for over a year in U.S custody in

terntory subject to the exclusive jurisdiction and control of the

United States. As the Second Circuit concluded,

applying the Fifth Amendment would not appear to be

either “impracticable” or “anomalous” since the United

States has exclusive control over Guantanamo Bay, and

given the undisputed applicability of federal criminal laws

to incidents that occur there and the apparent familiarity

of the govemmental personnel at the base with the

21. Applying Justice Harlan’s analysis, Justice Kennedy concluded that it

would be impracticable or anomalous to apply the fourth amendment’s warrant

clause to the search of a nonresident alien’s home located abroad. 494 U.S. at

278.

22. This Court has recognized Fifth and Fourteenth Amendment due process

protections for aliens on foreign soil. See, e.g., Asahi Metal Indus. Co. v

Superior Court, 480 U.S. 102, 108 (1987); United States v. Caltex, Inc., 344

U.S. 149 (1952).

22

guarantees of due process, fundamental faimess and

humane treatment that this country purports to afford to

all persons.

Pet. App. at 108a-09a.?*> Given this straightforward, fact-bound

application of Verdugo’s holding, the court of appeals did not abuse

its discretion by determining that respondents presented serious

questions going to the merits regarding the application of due

process protections to ensure that “screened-in” Haitians are not

wrongfully returned to their persecutors.

III. The courts below did not abuse their discretion

by holding that the Eleventh Circuit’s ruling

barring “screened-out”’ Haitians from

challenging initial INS screening procedures did

not collaterally estop “screened-in”’ Haitians

from challenging a new government practice of

reinterviewing “‘screened-in”’ Haitians on

(;uantanamo without legal counsel and forcibly

repatriating them to Haiti.

Petitioners additionally raise a preclusion argument that was

rejected below by six of the seven judges who have considered

it: that the doctrine of collateral estoppel prohibits adjudication of

“screened-in” respondents’ Fifth Amendment due process claim.

Petitioners nowhere claim that the Second Circuit broke new

23. As the Second Circuit explained:

It does not appear to us to be incongruous or overreaching to

conclude that the United States Constitution limits the conduct of

the United States personnel with respect to officially authorized

interactions with aliens brought to and detained by such personnel

on a land mass exclusively controlled by the United States.

Pet. App. at 108a.

24. See Pet. App. at 149a-152a (Johnson, J.); id. at 86a-96a (HCC J) (Pierce

& Cardamone, JJ.); id. at 7a 14a (HCC /1) (Pratt & Newman, JJ.); id. at 40a-

41a (HCC Il) (Newman & Pratt, JJ.). Without questioning the majority's

rejection of petitioners’ collateral estoppel claim in HCC /, Judge Mahoney

implicitly accepted it en route to dissenting on the merits. See id. at 118a-124a

(Mahoney, J.).

- 23

ground in collateral estoppel law or that the estoppel ruling below

created or exacerbated any circuit split. Nevertheless, they ask this

Coun to deny respondents their day in court even though: (1)

respondents were not parties to Eleventh Circuit's decision in HRC

v. Baker, because they were “‘screened-in” at that time and suffered

no harm as a result of the screening procedures then in effect; (2)

the general due process issue was neither actually litigated nor

necessarily determined by the Eleventh Circuit in Baker; and (3) the

specific legal issues relevant to respondents’ due process claim

could not have been addressed in Baker, because the government

had not yet implemented its new rescreening policy for HIV-

positive Haitians.

A. “Screened-in’’ refugee plaintiffs were not

parties to HRC v. Baker.

It is settled law that one cannot be bound by a pnor judgment

unless one was either a party to, or represented by a privy in, the

pnor action. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327

& n.7 (1979). As the courts below have repeatedly held, the

“screened-out” plaintiff class certified in HRC did not represent the

“screened-in” plaintiff class that has been conditionally certified in

this case. As such, “screened-in” plaintiffs were not parties to that

litigation and so cannot be held to be collaterally estopped by it.

The plaintiff class in HRC included only “screened-out”

Haitians. The fifteen named plaintiffs “ha[{d] all been ‘screened

out.” Class Cen. Mem., J.A. 126; Second Amended Compl., J.A.

94-104. According to plaintiffs’ definition of the class, the legal!

issues shared by the named plaintiffs all involved denial of

procedural rights during the initial screening process. Class Cert.

Mem., J.A. 126-27. Each member of the proposed class claimed

“deprivation of his/her nghts based on virtually identical actions”

by the INS. /d. at 6. The plaintiff class was thus composed solely

of persons who had been harmed by allegedly inadequate initial

screening procedures, i.e., the “screened-out” Haitians.

Moreover, the Second Circuit correctly noted that the plaintiff

class in HRC was improperly overbroad if it included both

24

“screened-in” and “‘screened-out” Haitians, because the two groups

had interests antagonistic to one another. Pet. App. at 93a-94a. The

screened-out Haitians in HRC were forcibly repatriated as a result

of the initial screening process. Thus, of necessity, they attacked the

legitimacy of the initial screening process. In contrast, the

“screened-in” Haitians in this case would not have wanted to attack

the initial screening ——— haaietauaes they benefitted from that

process by being screened in.’

B. The due process issue was neither actually

litigated before, nor necessarily determined

by, the Eleventh Circuit.

Even assuming arguendo that the screened-in Haitians were

properly included in the plaintiff class certified in HRC,

respondents’ Fifth Amendment due process claim cannot be barred

because the HRC court never rendered a final ruling on the merits

of the Fifth Amendment claim in that case. In order for further

adjudication of an issue to be deemed collaterally estopped, the

question must have been “actually and necessarily determined by a

court of competent jurisdiction” in a prior judgment. Montana v.

United States, 440 U.S. 147, 153 (1979). The Fifth Amendment

cause of action pleaded in HRC was not necessarily determined.

The HRC complaint mentioned the Fifth Amendment only

once, in a list of eleven possible bases for relief. J.A. 117. Aside

from this brief mention in the complaint, the litigants ignored the

claim and at no point briefed the issue. Nor was the claim ever

adjudicated on the merits. In its preliminary injunction order, the

district court commented on this claim (and five others) only in

passing, Stating: :

With respect to plaintiffs’ remaining claims .

without, of course, adjudicating the claims on the

25. “[A] selection of representatives for purposes of litigation, whose

substantial interests are not necessarily or even probably the same as those

whom they are deemed to represent, does not afford that protection to absent

parties which due process requires.” Hansberry v. Lee, 311 U.S. 32, 45 (1940).

25

merits, we find no substantial likelihood that the

rights asserted are judicially enforceable under the

present circumstances.

Haitian Refugee Center v. Baker, 789 F. Supp. 1552, 1574 (S.D.

Fla. 1991), injunction dissolved, 949 F.2d 1109 (11th Cir.), cert.

denied, 112 S. Ct. 1245 (1992) (emphasis added). Because the

district court subsequently entered the injunction on other grounds,

HRC plaintffs did not appeal this ruling. Thus, when the Eleventh

Circuit later addressed the district court’s comment in dicta, and

without citation to any legal authority, Pet. App. at 200a, like the

district court, it lacked the benefit of any bnefing or argumentation

by the Haitians whose rights allegedly had been infringed. Such a

casual ruling cannot equitably preclude all other interdicted Haitians

from ever raising a due process claim.

C. Plaintiffs’ Fifth Amendment claim differs

from that alleged by the HRC plaintiffs and

only arose after HRC was decided

Finally, even assuming arguendo that the plaintiff classes were

the same and that the Eleventh Circuit actually determined the Fifth

Amendment issues raised in HRC, respondents’ Fifth Amendment

claim still would not be collaterally estopped here. The Fifth

Amendment claim here arose from changed circumstances post-

dating the HRC case and raises a different legal issue from that

addressed in HRC. Because this difference is of constitutional

import and the instant claim could not have been brought in HRC

itself, the Second Circuit could not be barred from adjudicating

instant plaintiffs’ due process claim.

The HRC plaintiffs’ suit challenged the sufficiency of the

procedures used by the INS in its initial screenings. See HRC vy.

Baker, 789 F. Supp. at 1552. Their claim thus would have posed

the question whether the Due Poacess Clause limits the way the

government may screen ali non-resideat aliens interdicted outside

of the terntorial United States. In contrast, respondents challenge

the INS’ policy of subjecting already “screened-in” refugees, who

have been found to possess credible fears of persecution, to final

26

de facto asylum adjudications on Guantanamo without access to

counsel or other procedural protections, a policy not announced

until five days after this Court denied certioran in HRC. Even after

being told by U.S. govemment officials that they would be taken

to the United States, respondents have been detained for more than

a year, on termitory subject to the United States’ exclusive

jurisdiction and control, by these same officials. This case thus

poses the novel question whether such persons have constitutionally

protected liberty interests not otherwise enjoyed by unscreened

refugees—interests of which respondents cannot then be deprived

except through a constitutionally adequate procedure, one hallmark

of which is the nght to counsel.

As this Court has stated, “[c]hanges in facts essential to a

judgment will render collateral estoppel! inapplicable in a subsequent

action raising the same issues.” Montana v. United States, 440 U.S.

147, 159 (1979). Moreover, collateral estoppel will not apply if

“(t}here is a clear and convincing need for a new determination of

the issues. . . (b) because it was not sufficiently foreseeable at the

time of the initial action that the issue would arise in the context of

a subsequent action.” Restatement (Second) of Judgments § 28(5)

(1982). The Fifth Amendment claim asserted here simply could not

have been raised in the HRC litigation because the screened-in

Haitians’ claim targets a post-HRC govemment practice in a setting

raising a different Fifth Amendment issue from that decided in

HRC. Thus, collateral estoppel can pose no bar to the district

court’s adjudication of the Fifth Amendment claim.

IV. Alternatively, the petition should be held and

disposed of in light of no. 92-344, Sale v.

Haitian Centers Council, Inc.; under no scenario

would the remedy of summary reversal be

appropriate.

A. Petitioners propose that the Court “may wish to consider

holding this petition pending” the decision in Sale vy. Haitian

Centers Council, No. 92-344 (argued March 2, 1993), because

“there is much commonality among the issues” in the two cases.

27

Pet. at 28. Petitioners argue in No. 92-344 that Article 33.1 of the

U.N. Convention and 8 U.S.C. § 1253(h) are inapplicable to aliens

outside the United States and that if the Court agrees, its ruling

would undercut the Second Circuit’s decision here that the

“screened-in” respondents have a “‘protectable liberty interest.” Pet.

at 28. We dispute that a decision from this Court in HCC // finding

Article 33.1 and section 1253(h) somehow inapplicable tc Coast

Guard interdictions on the high seas would materially affect

respondents’ due process right to attorneys prior to their repatriation

feom Guantanamo to Haiti by direct action of the Attomey General.

However, it is petitioners who not only request certiorari, but also

emphasize the instant petition’s relationship to No. 92-344. “A vote

to ‘hold’ is a statement . . . that the disposition of the granted case

may have an effect on the merits of the case which is to be held.”

Straight v. Wainwright, 476 U.S. 1132, 1135 (1985) (Brennan, J.,

dissenting). Thus, even if this Court were inclined to examine the

Second Circuit's decision further, it should do no more than hold

this petition pending its plenary decision in No. 92-344.

Petitioners further suggest a hold so that the Court’ may

consider, in light of its decision in No. 92-344, their claims that

“collateral estoppel bars [the interdictees’] due process claim in

light of the HRC district court’s holding,” Pet. 28-29. Although we

plainly are not collaterally estopped by HRC, see point III, supra,

the issue of collateral estoppel has been briefed and argued in No.

92-344, and the Court’s decision there could clarify the issue now

raised by petitioners. Rather than hold the petition solely for the

collateral estoppel issue, however, the better course still would be

to deny certioran. Should the Court later wish to review the issues

in this case, it could do so later, after a full record has been

developed in the ongoing trial and the full range of legal issues has

been determined at trial.

B. Nor, finally, is there any merit whatseéVer in petitioners’

arrogant request for summary reversal. Pet. at 22. As petitioners

themselves argue, two of the issues they ask this Cour to review

share “commonality” with those awaiting decision in No. 92-344.

28

Summary reversals by this Court are strongly disfavored. See, e.g.,

Pennsylvania v. Mimms, 434 U.S. 106, 114 (1977) (Marshall, J.,

dissenting).”° This Court has never granted summary reversal when

it has sub judice matters that will affect the correctness of the very

decision whose summary reversal is urged.

In any event, summary reversal is an extraordinary and

exceptional disposition reserved “for situations in which the law is

settled and stable, the facts are not in dispute, and the decision

below is a@learly erroneous.” Schweiker v. Hansen, 450 U.S. 785,

791 (1981) (Marshall, J., dissenting). None of these prerequisites

has been met here. The fact that some of these very issues are

under review by the Court in No. 92-344 proves conclusively that

the relevant law is neither settled nor stable.’ Additional facts

relevant to the issuance of a preliminary injunction—e.g., the

applicable law on Guantanamo—are under consideration at the

ongoing trial in the district court. Petitioners have not cited any

decision with which the Second Circuit’s ruling, properly

26. See also Eaton vy. City of Tulsa, 415 U.S. 647, 707 (Rehnquist, J.,

dissenting) (“I have no doubt that a majonty of this Court would refuse to

reverse ... if it had a full record before it... .”); Montana v. Hall, 481 U.S.

401, 405 (1987) (Marshall, J., dissenting); Sone v. Graham, 449 U.S. 39, 47

(1980) (Rehnquist, J., dissenting) (condemning “cavalier summary reversal,

without benefit of oral argument or briefs on the merits”); United States v.

Hollywood Motor Car Co., 458 U.S. 263, 271-72 (1982) (Blackmun, J.,

dissenting) (summary reversal “deprives respondents of their “day in court’ in

a singularly inappropriate manner,” and “demeans the Court and its work and

surely tends to lessen the quality of its legal product”).

27. Summary reversal is particularly improper “in a case that involves a

significant issue not settled by [the Court’s] prior decisions.” Wyrick v. Fields,

459 U.S. 42, 52 (1982) (Marshall, J., dissenting). Summary reversal would

also likely involve the Court in reaching the merits of the constitutional due

process issue. despite petitioners’ claim that the Court should not reach that

issue because collateral estoppel bars this litigation. Under the rule in

Ashwander v. Tennessee, 297 U.S. 288, 323 (1936) (Brandeis, J., concurring),

the Court should consider the collateral estoppel issue before addressing the

constitutional issue. Accordingly, the Court should hold the petition, pending

decision of the collateral estoppel issue in No. 92-344.

29

understood, clearly conflicts. Finally, far from being clearly

erroneous, the lower courts’ grant of the preliminary injunction was

correct. Particularly when constitutional questions are at stake,

summary reversal “should be reserved for palpably clear cases of

constitutional error,” Eaton v. City of Tulsa, 415 U.S. 697, 707

(1974) (Rehnquist, J., dissenting), a test plainly not met here.

CONCLUSION

For the foregoing reasons, the petition for a wrt of certiorari

should be denied. Even if the Court is inclined to consider the

questions presented here, it should not grant and reverse summarily,

but rather, should hold the petition pending final disposition of Sale

Vv. Haitian Centers Council, Inc., No. 92-344.

Respectfully submitted,

HAROLD HONGJUL KOH

Lowenstein Intemational

Human Rights Clinic

127 Wall Street

New Haven, Connecticut 06520

(203) 432-4932

JOSEPH TRINGALI

SUSAN SAWYER

Simpson, Thacher & Bartlett

425 Lexington Avenue

New York, New York 10017

(212) 485-2000

ROBERT RUBIN

IGNATIUS BAU

National Refugee Rights Project

Lawyers’ Committee for Civil

Rights of the Bay Area

30] Mission Street

Suite 400

San Francisco, Californa 94105

(415) $43-9444

*MICHAEL RATNER

SUZANNE SHENDE

Center for Constitutional Rights

666 Broadway, 7th Fl.

New York, New York 10012

(212) 614-6485

LUCAS GUTTENTAG

JUDY RABINOVITZ

Immigrants’ Rights Proyect

Amencan Civil Libermes Union

132 West 43rd Street

New York, New York 10036

(212) 944-9800

Attomeys for the Respondents

*Counsel of Record

30)

On the Brief

J.D. Candidates,

Yale Law School:

Melinda Amiotte

Victona Clawson

Lisa Daugaard

Margareth Etienne

Carl Goldfarb

Adam Gutnde

Laura Ho

Stephen Roos

Veronique Sanchez

W. Todd Thomas

Ceallia Wang

Jonathan Weisglass

Michael Wishnie