Petition for Writ of Certiorari — Moise v. Bulger

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No. Q8 230 AUG 11 2003

In The OFFICE OF THE CLERK

Supreme Court of the Anited States

ERNEST MOISE, HEDWICHE JEANTY, BRUNOT

COLAS, JUNIOR PROSPERE, PETERSON BELIZAIRE,

and LAURENCE ST. PIERRE, on behalf of themselves

and all others similarly situated,

Petitioners,

JOHN M. BULGER, Interim District Director, Florida,

Bureau of Citizenship and Immigration Services;

THOMAS RIDGE, Secretary, Department of Homeland

Security; JOHN ASHCROFT, Attorney General of the

United States; DEPARTMENT OF HOMELAND

SECURITY; BUREAU OF IMMIGRATION AND

CUSTOMS ENFORCEMENT; UNITED STATES

DEPARTMENT OF JUSTICE,

Respondents.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

REBECCA SHARPLESS CHARLES F. ELSESSER, JR.

Counsel of Record JONEL NEWMAN

CHERYL LITTLE Florida Legal Services. -

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OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

In Jean v. Nelson, 472 U.S. 846 (1985), this Court held

that the facially-neutral immigration parole statute and

regulations at issue in this case require immigration

officials to make “individualized parole determinations”

and that such determinations be made “without regard to

race or national origin.” In the instant case, however, the

district court and the court of appeals limited this Court’s

holding in Jean v. Nelson to its facts. In distinguishing

Jean, the lower courts held that immigration officials have

the authority, despite the neutral parole statute and

regulations, to use national origin and/or race as a broad

factor in discriminating against Haitian asylum-seekers

regarding their release from detention pending the adjudi-

cation of their asylum claims. The questions presented

are:

(1) Whether, consistent with this Court’s

interpretation in Jean v. Nelson, immigration

officials may act contrary to facially-neutral

statutes and regulations in the making of immi-

gration parole decisions by discriminating

against Haitian asylum-seekers based on their

nationality and/or race.

(2) Whether the lower courts, under either

habeas or federal question jurisdiction, erred in

failing to follow the Federal Rules of Civil Proce-

dure when they ruled against petitioners on the

merits without granting discovery, hearing, or

trial; without construing the facts in the light

most favorable to petitioners; without determin-

ing whether there were genuine issues of mate-

rial fact; and while considering only limited

briefing on emergency motions for preliminary

relief.

PARTIES TO THE PROCEEDING

Petitioners (appellants below) are Ernest Moise,

Hedwiche Jeanty, Brunot Colas, Junior Prospere, Peterson

Belizaire, and Laurence St. Pierre, on behalf of themselves

and all others similarly situated.

Respondents (appellees below) are John M. Bulger,

Interim District Director, Florida, Bureau of Citizenship

and Immigration Services; Thomas Ridge, Secretary,

Department of Homeland Security; John Ashcroft, Attor-

ney General of the United States; Department of Home-

land Security; Bureau of Immigration and Customs

Enforcement; and United States Department of Justice.’

* Effective March 1, 2003, the Immigration and Naturalization

Service (“INS”) ceased to exist as an agency of the Department of

Justice, and its immigration enforcement functions were transferred to

the Bureau of Immigration and Customs Enforcement (“BICE”) within

the Department of Homeland Security (“DHS”). Under Supreme Court

Rule 34.1(c), this petition amends the caption and parties as they

appeared before the lower courts to reflect this change.

ili

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .............csccssssssssccssssssesscccsees ili

TABLE OF AUTHORITIES ................ccccccsssssssssssceees vi

I TRETE SEI TY nis ccsnsnnvacescsaseonssesssesersvbovecesenessess 1

BASIS FOR SUPREME COURT JURISDICTION.... 1

STATUTORY AND REGULATORY PROVISIONS

INVOLVED ........ Ms pbin ebb Rialshdgs beabbssekwaiuotawenedkewcdeein 2

STATEMENT OF THE CASE ...0....... cece cccccccceccueeees 3

cians dricenuncnekansadabsanesavcvesaenesace 3

B. The Becraft Haitian Detention Policy ............... 5

nn 9

D. The Effects of the Haitian Detention Policy...... 14

REASONS FOR GRANTING THE PETITION ......... 15

A. The Decisions Below Directly Conflict With

This Court’s Decision in Jean v. Nelson......... 16

B. This Case Raises an Issue of National Impor-

tance Because the Decisions Below Endorse

Nationality and/or Race Discrimination by

Lower-Level Government Officials in the

Face of Neutral Statutes and Regulations—

Discrimination Never Before Permitted by

I alae anacuclinv hanacasesadekesdseceacsearksawins 20

C. In Refusing to Assert Federal Question

Jurisdiction and Otherwise Follow the Fed-

eral Rules of Civil Procedure, the Decisions

Below Fail to Follow this Court’s Decisions in

Zadvydas v. Davis, Adickes v. S.H. Kress &

Co., and Walker v. Johnston .........ccccecccccseeeeese 22

TABLE OF CONTENTS -— Continued

Page

a. This Court’s Decisions in Zadvydas uv.

Davis Makes It Clear That the Jurisdic-

tional Bar That Prevents Review of Dis-

cretionary Decisions Does Not Apply to

PON CIE coscrcececececconssscncnsveccses 23

b. Because the District Court Possessed

Federal Question Jurisdiction, the Dis-

trict Court Erred in Reaching the Merits

of Petitioners’ Claims Without Providing

BOE GR Fe riiicvctencciceasinnnidaicommanets 25

c. Even if the District Court Were Limited

to Habeas Jurisdiction, Petitioners Were

Entitled to an Evidentiary Hearing......... 27

CIO x pcnnsisernncuneioeenindinienmennnsniileanendinisenies 29

APPENDIX

Court of Appeals Opinion: Moise v. Bulger, 321 F.3d

1336 (11th Cir. 2003), No. 02-13009-DD (Febru-

ee Be cenittesiticas neers saetiinhdepactcnndecdaielasentatncinsntins App. 1

District Court Order: Jeanty v. Bulger, 204 F. Supp.

2d 1366 (S.D. Fla. 2002), No. 02-20822 (May 17,

Se civasvsihacicniaonsninaianicrasissinastueulanaaimaseuaiademesaiamiass App. 4

ger, No. 02-13009-DD (May 13, 2003)................... App. 41

Statutory and Regulatory Frovisions Involved:

aa, SS vitkentcntonncipttannniinennciesinnsnitanenbeses App. 43

8 U.S.C. § LIGBCANGEKA) (19B2Z) ........00scececcssscereesesere App. 43

SOP BO isi rsesroccterccione App. 44

TABLE OF CONTENTS -— Continued

Page

B CBR. § BIBS CIGD) .ccvccscccessscrsccvoscscevesesonssaeenesepses App. 47

B U.B.C. § 1BGBaNBNENKED)....cccesccrcccrescccescscsssssssvserenss App. 51

Excerpts from Record Below:

Class Action Petition for Writ of Habeas Corpus

and Complaint for Injunctive and Declaratory

BeaNAE, RE]. .cevsssccscccssnsereeesesssescucetsossuisanessonvavencesees App. 52

Declaration of Clarel Cyriaque, R1-4-Ex. 1.............. App. 80

Declaration of Chery] Little, R1-4-Ex. 2................. App. 83

Declaration of Evenette Mondesir, R1-4-Ex. 3......... App. 92

Declaration of Charlotte Newhouse al-Sahli, R1-4-

TE, Bis inicecvovenssseakescssesusenieebeoephannescetnepensetineaaannans App. 97

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Adickes v. S.H. Kress & Co., 398 U.S. 144

(SIP Hii ines sinssnstntetcackicieebenmanenuaianiannaa 15, 22, 25, 27 7

Bridges v. Wixon, 326 U.S. 135 (1945)... eeeseeeeeeees 22

Cuban Am. Bar Ass’n v. Christopher, 43 F.3d 1412

CERE RR, FE csnisirinintntnnennemiamaienmanan 22

Haitian Refugee Ctr. v. Baker, 953 F.2d 1498 (11th

GA Fe censsinapciechienincnnenninaaneee 4, 22

Haitian Refugee Ctr. v. Civiletti, 503 F. Supp. 442

(S.D. Fla. 1980), aff’d as modified sub nom.,

Haitian Refugee Ctr. v. Smith, 676 F.2d 1023 (5th

Cae. Cat BE TI ccicncnessensesitinstemstisnmtnnaliinanennanas 3

INS v. St. Cyr, 533 U.S. 289 (2001)...............ssssessssseees 12, 24

Jean v. Nelson, 472 U.S. 846 (1985) ........ eee eeeee passim

Louis v. Meissner, 530 F. Supp. 924 (S.D. Fla. 1981)......... 3

McNary v. Haitian Refugee Ctr, 498 U.S. 479

(SURFED sssussanienssarsteareacietvamncnmekoeainenaaaaaaaaae 4

Molaire v. Smith, 743 F. Supp. 839 (S.D. Fla. 1990).......... 4

Nat'l Council of Churches v. Egan, No. 79-2959-Civ-

WOPEES DD. FOR. BF i ci censeintarsnsssssitcabiiennemaaeian 3

Nat'l Council of Churches v. INS, No. 78-5163-Civ-

SEM GEER FUR. BFGF vianivincccimemieionenenne 3

People ex rel: Herndon v. Nierstheimer, 152 F.2d

GED CT Ga Cae DGD eiccenssrrviotsctvccccsetinveneennieiemeeenn 27

Sannon v. United States, 427 F. Supp. 1270 (S.D.

Fla. 1977), vacated and remanded on other

grounds, 566 F.2d 104 (5th Cir. 1978).................ccceeeeeeees 3

Vii

TABLE OF AUTHORITIES -— Continued

Page

Sannon v. United States, 460 F. Supp. 458 (S.D.

Wes. ROT cecnncocorsccesccccserescsvassescocccerseescneninsneconesoccenvesansnces 3

United States ex rel. Accardi v. Shaughnessy, 347 |

U7.B, BOD CIDBE) ...ccccceccccescscececcrscccccsessseccccovensscossevsesesonsnes 22

Walker v. Johnston, 312 U.S. 275 (1941).............4. 16, 22, 27

Zadvydas v. Davis, 533 U.S. 678 (2001)...........00 15, 22, 23

FEDERAL STATUTES

Administrative Procedures Act (“APA”), 5 U.S.C.

8§ 551 et S€.........secsccccsssssssrseesseceesesersessssesssssnssssenscscesoeees 9

INA § 212(f), 8 U.S.C. § 1182(f).........::cceeeeeeeeeeeseeeennnneeeeeees 21

INA § 235(b)(1)(B)(v), 8 U.S.C. § 1225(b)(1)(B)(V).....- eee 5

8-U.S.C. § 1182(d (5A) ..... ccc cccesceeeeeeseeeeeeeeeeeeseseeeeeeeeees 2,16

8 U.S.C. § 1182(d)(5)(A) (1982) ......cccceceecceeeeeeeeeeeeeeeeeeeeerenes 16

8 U.S.C. § 1252(a)(2)(B)(ii)...........eeeeeeereeeeeeeeserneeenenees passim

QB U.S.C. § 1254(1) ........ccrccccccecccccccsccccvevsevevcssessssssssesecaverees 1

BE U.S.C. 8 1SB1........cccccccccccscsccccsvesccssconsvesssvensessesnensonostons 25

QB U.S.C. § BB4L.....c.cccsccrsresvereccosescvcscccevevevessesecessscsoneces 12, 28

BB U.S.C. 8 BBEB...cccccccccccseverccevcccosessosesscsscvssevsrenoensnsssessooses 27

FEDERAL REGULATIONS

8 C.ER. § 212.5 (1985)............ccecccccsssrerrrreessesssssesenssees 2,16

8 CER. § 212.5 (2001)...........cccccccsccccsccccceeessssesscssssssseseceees 16

viii

TABLE OF AUTHORITIES — Continued

Page

MISCELLANEOUS

Pe SIO Be RD winetsenetinnsenenineindelaiintann 25

Rule 1(b), Rules Governing Section 2254 ...........ceeeees 28

Rule 6, Rules Governing Section 2254 ................ccccceeeeeeees 28

ND CARTE FEI GIs NED wremcenscccesasontecnncenenntcicnsentinasndens ii

PETITION FOR A WRIT OF CERTIORARI

Ernest Moise, et al., respectfully petition for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Eleventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. 1-3) is

reported at 321 F.3d 1336.* The original order of the court

of appeals denying both the petition for rehearing and the

petition for rehearing en banc (App. 41-42) is unreported.

The opinion of the district court (App. 4-40) is reported at

204 F. Supp. 2d 1366.

BASIS FOR SUPREME COURT JURISDICTION

The court of appeals entered its judgment on Febru-

ary 20, 2003. Petitions for rehearing and for rehearing en

banc were denied on May 13, 2003. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

? Record documents reproduced in the Appendix to this petition are

referenced by “App.” followed by the page number. Other documents

contained in the record of the Eleventh Circuit Court of Appeals are

referenced by “R” followed by the volume, document, and page numbers.

"reenact taal aati aaa

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Reprinted in the appendix to this petition are perti-

nent provisions of Section 1182(d)(5)(A) of Title 8 of the

United States Code (the parole statute), Section 212.5 of

Title 8 of the Code of Federal Regulations (the parole

regulation), and Section 1252(a)(2)(B)(ii) of Title 8 of the

United States Code (judicial review provision). App. 47-51.

STATEMENT OF THE CASE

A. Introduction.

In Jean v. Nelson, 472 U.S. 846 (1985), a group of

Haitian asylum-seekers challenged a _ discriminatory

detention policy substantially similar to the policy at issue

in this case. Like petitioners here, the petitioners in Jean

were detained under a policy that mandated the prolonged

incarceration of virtually all Haitian asylum-seekers

pending an adjudication of their asylum claims, while

asylum-seekers of other nationalities were routinely

released on parole during the same period. This Court

considered the discriminatory detention policy, which by

then had been abandoned by immigration officials, and

held that such a policy was prohibited by the facially-

neutral parole statute and regulations, which required

that immigration officials (1) make “individualized deter-

minations of parole” and (2) do so “without regard to race

or national origin.” Jean, 472 U.S. at 857. Thus, the Court

and the government assured petitioners that they were

protectea from future discrimination by the immigration

statute and regulations it interpreted.

Despite this assurance, however, immigration officials

have again instituted a discriminatory parole policy that

differentiates on the basis of Haitian nationality, resulting

in prolonged detention for Haitian asylum-seekers in

south Florida and release for asylum-seekers of other

nationalities. Although this Court held in Jean that the

facially-neutral statute and regulations require nondis-

criminatory parole determinations, the courts below

concluded that immigration officials can consider Haitian

nationality—and thus discriminate against Haitian

asylum-seekers—when making parole determinations.

The lower courts’ endorsement of this discriminatory

treatment, which follows a long history of discrimination

against Haitian nationals in immigration matters,’ cannot

be reconciled with this Court’s holding in Jean.

* The present case is the latest manifestation of a stark historical

pattern of discriminatory treatment by immigration officials against

Haitians seeking political asylum. For over 25 years, immigration

officials have systematically denied Haitian refugees their right to the

fair and impartial administration of our immigration laws. See Sannon

v. United States, 427 F.Supp. 1270 (S.D. Fla. 1977), vacated and

remanded on other grounds, 566 F.2d 104 (5th Cir. 1978) (denied right

to a fair immigration court hearing); Sannon v. United States, 460

F. Supp. 458 (S.D. Fla. 1978) (denied notice of procedures to be used in

court proceedings); Natl Council of Churches v. Egan, No. 79-2959-Civ-

WMH (S.D. Fla. 1979) (denied right to work during pendency of their

asylum claims); Nat’! Council of Churches v. INS, No. 78-5163-Civ-J LK

(S.D. Fla. 1979) (denied access to information to support asylum

claims); Haitian Refugee Ctr. v. Civiletti, 503 F. Supp. 442 (S.D. Fila.

1980), aff’d as modified sub nom., Haitian Refugee Ctr. v. Smith, 676

F.2d 1023 (5th Cir. Unit B 1982) (denied right to be heard on asylum

claims and subjected to a “Haitian Program”); Louis v. Meissner, 530

F. Supp. 924, 926 (S.D. Fla. 1981) (denied counsel and fair process in

exclusion hearings by being shipped, like cattle, to remote areas of the

United States); Jean v. Nelson, 472 U.S. 846 (1985) (denied right to

(Continued on following page)

The petition challenges this discrimination as well as

the district court’s failure to follow the Federal Rules of

Civil Procedure when it ruled against petitioners on the

merits without granting discovery, hearing, or trial;

without construing the facts in the light most favorable to

petitioners; and while considering only limited briefing on

emergency motions for preliminary relief. The petition

does not challenge the authority of the Department of

Homeland Security (hereinafter “DHS”)‘ to admit or

remove aliens. Indeed, it does not even challenge the

authority of the DHS to maintain a policy of detaining

inadmissible aliens on a non-discriminatory basis. Apart

from the procedural issue, the petition challenges only

nationality and race discrimination in the incarceration of

aliens pending a determination of their claims to asylum.

As the record in this case demonstrates, immigration

officials have illegally and unfairly discriminated against

black Haitian nationals by implementing a policy of

detaining Haitian asylum-seekers despite the relevant

individual circumstances of their cases.

individualized and impartial determination of parole pending adjudica-

tion of their asylum claims); Haitian Refugee Ctr. v. Baker, 953 F.2d

1498, 1520 (11th Cir. 1992) (Hatchett, J., dissenting) (been expedi-

tiously repatriated, after interdiction, despite lack of adequate proce-

dures to identify and protect those with valid persecution claims);

Molaire v. Smith, 743 F. Supp. 839 (S.D. Fla. 1990) (denied procedural

due process in immigration court); McNary v. Haitian Refugee Ctr., 498

U.S. 479 (1991) (denied due process in programs aimed at benefiting

immigrants).

* As noted earlier, the Department of Homeland Security has

largely taken over the immigration authority of the now defunct

Immigration and Naturalization Service (hereinafter “INS”).

B. The Becraft Haitian Detention Policy.

On December 3, 2001, approximately 185 Haitian

nationals arrived off the coast of south Florida in a de-

crepit sailboat, the Simapvivetzi (“If I’m still alive, it’s

because of Jesus”). App. 7. The INS immediately detained

the majority of these Haitians, placed them in removal

proceedings, and interviewed them to determine if they

had a “credible fear” of persecution in Haiti.” App. 7-8.

Those who demonstrated a “credible fear” of persecution

became immediately eligible for release on parole. Histori-

cally, at this point in the process, the INS in south Florida

generally released such aliens on parole pending the final

adjudication of their asylum applications. App. 8, 26.

Beginning in mid-December 2001, however, the INS

reversed its general policy of release with respect to

’ Haitian asylum-seekers. App. 8.

* “Credible fear” is defined in the Immigration and Nationality Act

(“INA”) as a significant possibility of demonstrating eligibility for

asylum. INA § 235(b)(1)(B)(v), 8 U.S.C. § 1225(b)(1)(B{v).

* It is the government’s policy to consider asylum-seekers who have

passed their credible fear interviews as the lowest priority for deten-

tion. App. 26. The INS’s “Detention Use Policy” provides, “Although

parole is discretionary in all cases where it is available, it is INS policy

to favor release of aliens found to have a credible fear of persecution,

provided they do not pose a risk of flight or danger to the community.”

App. 26. Additionally, the government conceded that:

In practice, the application of INS Detention Use Policy in

the Miami District, because of limited detention space in

that district, resulted in the parole of most arriving aliens

found to have credible fear unless they were identified as

posing a danger to the community because of a criminal re-

cord or other factors.

App. 26.

On or about December 14, 2001, Acting Deputy INS

Commissioner Peter Michael Becraft adopted a new and

secret detention policy for Haitians, which resulted in the

detention of virtually all Haitian asylum-seekers in south

Florida regardless of the manner in which they arrived in

the United States. Specifically, Deputy Commissioner

Becraft instructed the INS Office of Field Operations to

adjust its parole criteria with respect to inadmissible

Haitians arriving in south Florida. Under the new policy,

arriving Haitian nationals would no longer be considered

as “low priority” for detention under the longstanding INS

Detention Use Policy. App. 27. Instead, Haitians would be

paroled only upon the approval of INS Headquarters and

only in cases where continued detention would result in

unusual hardship to the individual alien. App. 8, 27. While

adopting the Haitian policy, the INS made no changes

with respect to asylum-seekers of any other nationality

and continued routinely to release those who had passed

their credible fear interviews.

The effect of the Haitian detention policy was dra-

matic and immediate. The release rate for Haitians who

had passed their credible fear interviews dropped from 96

percent in November 2001 to 6 percent for the period

December 14, 2001 to March 18, 2002. App. 97; R2-26-5.

Altogether, INS officials in Miami requested approval to

release only five individuals who had passed their credible

fear interviews, all of whom were pregnant women.’ App.

8, 27. The officials did not request approval for the more

” Ten unaccompanied minors were also released. Unaccompanied

minors, however, are not generally subject to expedited removal and the

credible fear process and therefore fall outside the scope of this case.

than 240 other Haitian asylum-seekers who had passed

their credible fear interviews. Id. Indeed, INS officials

failed to consider the individual merits of their release

requests and instead either ignored the requests or

quickly issued virtually identical boilerplate denials.” App.

80-81, 84; R1-4-Ex. 6. While denying release to Haitians,

INS officials continued to release other asylum-seekers in

the Miami District at an extremely high rate. The release

rate for similarly situated non-Haitians remained at 95

percent during December 2091 and January 2002. App. 98.

The Becraft Haitian detention policy thus represents

a radical departure from INS’s prior policy, which did not

make distinctions based on nationality or race and ex-

pressly favored the release of asylum-seekers of all na-

tionalities who passed their “credible fear” interviews in

the Miami District. Non-Haitians who demonstrate a

credible fear of persecution now continue to be routinely

paroled in the Miami District under the old Detention Use

Policy. In contrast, the Becraft Haitian detention policy

mandated that Haitian nationals—and only Haitian

nationals—no longer be considered for parole. Unlike

persons of other nationalities, the presumption for Hai-

tians is continued detention, regardless of the individual’s

risk of flight or danger to the community.

For months after the Haitian detention policy was

adopted, INS officials from the Miami District Office

denied the existence of the policy to advocates and

® Even Haitians who had been granted asylum and who could no

longer be legally detained by INS were not immediately released. R2-

39-21-23.

community leaders. App. 80-81, 88-89, 93-95. Indeed, in

adjudicating release reques' INS officials issued over

ninety virtually identical boil«. ‘late denials of parole, which

did not mention the Haitian policy but instead claimed that

Haitians were flight risks because they had failed to suffi-

ciently prove their identity and because of unspecified

“particular facts of [their] case[s].” App. 84, 93; R1-4-Ex. 6. In

reliance on INS’s claim that the Haitians had failed ade-

quately to prove their identity, the Haitians’ families and

advocates made significant efforts to secure identity docu-

ments in the hopes of obtaining release. App. 95.

Only in March 2002 did INS officials finally acknowl-

edge that they had indeed adopted a policy of continued

detention for Haitians. According to Deputy Commissioner

Becraft, he adopted the December 14, 2001 policy because

of generalized concerns that there was going to be a “mass

migration” of people arriving by boat from Haiti, that

Haitians were risking their lives on the high seas, and

that Haitians who arrived by boat were desperate and

therefore might constitute flight risks. App. 8, 33-34. At no

point did the Deputy Commissioner state that he adopted

the Haitian detention policy because the Haitians had

failed to sufficiently prove their identity as was claimed in

their denials. Nor did any official ever state that the

detained Haitians themselves posed a threat to national

security.

Finally, according to the government, the President

did not authorize the Becraft Haitian detention policy. Nor

did the Attorney General, in this case, take action by

promulgating regulations or otherwise authorizing the

policy. Acting Deputy INS Commissioner Becraft was the

highest level executive branch official who authorized the

policy. R2-38-Ex. 1 at 4. The government created no

written document to communicate the policy to Miami INS

officials but instead communicated the policy verbally and

by electronic mail. App. 27.

C. Proceedings Below.

1. On March 15, 2002, petitioners filed a class action

petition for writ of habeas corpus and complaint for

injunctive and declaratory relief, seeking to end the

discriminatory treatment under the Becraft Haitian

detention policy. App. 10. Petitioners simultaneously filed

a motion to certify the class and an emergency motion for

temporary restraining order and/or preliminary injunction

or class writ of habeas corpus and for immediate hearing.”

Id. Petitioners asserted that the government’s actions

violated (a) the neutral parole statutes and regulations, as

interpreted by this Court in Jean v. Nelson, which re-

quired individualized determinations without regard to

race or national origin; (b) the Due Process Clause of the

Fifth Amendment; (c) the equal protection component of

the Fifth Amendment; (d) the Administrative Procedures

Act (“APA”), 5 U.S.C. §§ 551 et seq., by not providing an

accurate statement of the grounds of denial of parole

requests; (e) the APA, in that the Haitian detention policy

* Petitioners sought to certify the class of:

All detained Haitian aliens in the Southern District of Flor-

ida who arrived on or after December 3, 2001, whe are ap-

plying for admission into the United States, have passed

their “credible fear” interviews with the Asylum Office of the

INS, and are in detention pending removal proceedings, for

whom a final order of removal has not been entered.

App. 13-14.

was a substantive rule that must be adopted through

notice-and-comment rulemaking procedures; and (f) the

APA, in that the government had unlawfully withheld

agency action to which petitioners were entitled and had

not acted in accordance with applicable statutes, regula-

tions, and constitutional provisions. App. 14. Petitioners

requested injunctive relief or a class writ of habeas corpus

to compel the government to: (a) release petitioners and

class members; (b) cease using race and/or nationality as a

factor in parole determinations; (c) evaluate all pending

and future parole requests on a case-by-case basis in

accordance with the law; and (d) provide accurate notice of

the reasons for the denial of release requests. App. 14-15.

2. Later that same day, on March 15, 2002, the

district court issued an order directing the government to

respond to the emergency motion by March 19, 2002 and

directing petitioners to reply two days later. App. 10. On

April 5, 2002, the court issued an order directing the

parties to submit additional documentation, including

additional information and documentation about the

parole policy for Haitians and how it was communicated.

Id. In response to that order, the INS submitted a declara-

tion from Acting Deputy INS Commissioner Becraft and

heavily redacted electronic mail messages, among other

things. Jd. Petitioners moved for leave to start discovery

on May 7, 2002 to test the validity of the hotly disputed

assertions in the Becraft declaration. App. 12. Petitioners

also filed a motior to compel production of the redacted

portions of the electronic mail messages. Jd. On May 9,

2002, the Lawyers Committee for Human Rights submitted

an amicus brief in support of petitioners. Jd. On May 14,

2002, the government filed a motion to dismiss in part and

for summary judgment in part.”

3. On May 17, 2002, the court dismissed the case in

its entirety. The court held no evidentiary hearing or trial,

did not rule on petitioners’ motion for leave to start discov-

ery or motion to compel, did not rule on the motion for

class certification, and dismissed the case on the merits

before petitioners could commence discovery. App. 40. In

dismissing the case, the court relied on facts asserted by

the government—but strongly disputed by petitioners—

and found that the issues were “fully briefed” when only

preliminary briefs had been filed on petitioners’ emergency

motion for temporary restraining order and/or preliminary

injunction or class writ of habeas corpus and for immedi-

ate hearing. App. 13. Because of its decision on the merits,

the court denied as moot the government's motion to

dismiss and for summary judgment. App. 40.

a. In its decision, the district court first determined

that it had no jurisdiction except for habeas jurisdiction

district court, the INS changed its detention policy to permit the release

of certain Haitian asylum-seekers who arrived at the Miami airport or

other ports-of-entry. App. 9. The INS never advanced any explanation

for why Haitians who arrived by air had been included in the detention

policy for three months. Unlike the December 14, 2001 policy, this

policy change was put in writing. Under the policy, all Haitians in the

credible fear asylum process who arrive by boat continue to be subject

to detention, with the sole exception of some pregnant women. Haitians

who arrive by airplane may now be released but are still subject to an

“ynusual hardship” standard and subject to burdensome “enhanced

procedures” for release which INS (now DHS) does not apply to any

other nationality.

under 28 U.S.C. § 2241. App. 16, 20. The court held that

because the authority to grant parole is within the discre-

tion of the Attorney General, and because 8 U.S.C.

§ 1252(a)(2)(B)(ii) restricts the jurisdiction to review

discretionary decisions of the Attorney General, the court

was without jurisdiction to consider the complaint for

injunctive and declaratory relief—even though petitioners

raised constitutional, statutory, and APA claims in the

complaint and did not question any exercise of discretion.

App. 18-20. ‘he district court then determined that it had

habeas jurisdiction pursuant to this Court’s holding in INS

v. St. Cyr, 533 U.S. 289 (2001). Id.

b.- As to the merits, the court first summarily denied

petitioners’ constitutional arguments, reasoning that

excludable aliens have no rights or privileges under the

Constitution. App. 20-23. The court then considered the

lawfulness of the Haitian detention policy under the

parole statute and regulations. The court found that the

‘Becraft Haitian detention policy differentiated between

nationalities, but held that the policy did not violate the

parole statute or its regulations. App. 17, 28-37. In so

doing, the court limited this Court’s ruling in Jean v.

Nelson to its facts, expressly asserting that this Court had

“confined its ruling to the unique factual and procedural

history of [that] case.” App. 28. The court then distin-

guished Jean, concluding that Jean’s internretation of the

parole statute and regulations es requiring individualized

determinations “without regard to race or national origin”

did not apply in this case because Deputy Commissioner

Becraft implemented national origin as a factor based on

“specific policy concerns, including the goals of preventing

a mass migration from Haiti and ensuring the presence of

Haitian asylum-seekers at their removal hearings.” App.

30. The court did not explain, however, how the existence

of “specific policy concerns,” even if valid, allowed lower-

level immigration officials to discriminate against Haitian

nationals as a group when this Court in Jean held that the

parole statute and regulations require race- and national-

ity-neutral parole determinations.

Once the court concluded that the parole statute and

regulations did not prohibit discrimination, the court

considered the implemented detention policy. The court

determined that (1) Acting Deputy Commissioner Becraft

had the authority to promulgate the detention policy; (2)

the government had advanced “a facially legitimate and

bona fide reason” for the policy, in that the INS had

adopted the policy to prevent a mass migration and save

lives and because Hizitians who arrived by boat were

considered flight risks; and (3) INS officials continued to

engage in case-by-case determinations of Haitian release

requests. App. 32-37. The court made these determina-

tions after accepting as true facts asserted by the govern-

ment but disputed by petitioners, without aid of hearing or

trial, and based solely on the parties’ briefing in aid of

emergency motions for preliminary relief.” Finally, the

" Specifically, the court accepted without question the govern-

ment’s assertions that (1) immigration officials were engaging in case-

by-case determinations of Haitian release requests, App. 27, 36-37, and

(2) INS officials adopted the Haitian detention policy for the reasons

they claimed they did, App. 30, 33-34. Not only were these facts

disputed, but the court also failed to address the evidence presented

that contradicted these claims. In dismissing the case, the court, for

example, failed to assume as true petitioners’ material factual asser-

tions that the INS deliberately denied the existence of the Haitian

detention policy until March 2002, that INS officials issued numerous

(Continued on following page)

court concluded that the Haitian detention policy did not

violate any of the rules under the APA. App. 37-39.

4. On May 24, 2002, petitioners filed a timely appeal

to the United States Court of Appeals for the Eleventh

Circuit. The court of appeals dismissed this appeal in

summary fashion on February 20, 2003. In its two-page

decision, the court of appeals simply recounted petitioners’

claims and stated that it affirmed the district court’s

decision “based upon the district court’s well-reasoned

order of May 17, 2002, within which each of the[] issues is

comprehensively resolved.” On April 4, 2003, petitioners

timely filed a petition for rehearing and petition for

rehearing en banc. These petitions were denied on May 13,

2003.

D. The Effects of the Haitian Detention Policy.

Haitian nationals in the proposed class have lan-

guished in detention and suffered irreparable harm as a

result of their incarceration. R1-4-Ex. 7. Due to their

incarceration, Haitian detainees have had extreme diffi-

culty in retaining legal representation, and the vast

majority have proceeded with their asylum claims without

legal assistance. App. 84-88, 94; R2-19-Ex. 2 at 3-12; R2-

~.40-Ex. 3 at 1. Because of the complexity of asylum law,

unrepresented Haitians are far less likely to win asylum

than represented asylum-seekers. R2-40-Ex. 3 at 1. Com-

pounding the difficulty, asylum applications are written in

English and must be completed in English. Yet almost

parole decisions that contained false reasons for denial of parole, and

that there was no evidence of a pending mass migration from Haiti.

none of the Haitians speaks, reads, or writes English. App.

87. Despite the strength of the Haitians’ claims, many of

their asylum applications contained only a few sentences

and failed to adequately express the facts underlying their

fear of return. App. 85-86.

Haitian detainees have been further harmed by the

expedited nature of their asylum proceedings. To begin

with, detained asylum applicants have their hearings

scheduled on an expedited basis, while paroled asylum-

seekers have their asylum hearings scheduled about a

year after their parole, allowing them sufficient time to

retain counsel and prepare their claims. Jd. Yet INS

officials have not only proceeded with the Haitian cases on

an expedited basis, they have placed these cases on a

special Haitian-only docket that is governed by more

restrictive rules than the docket for detainees of other

nationalities. App. 81, 86-87, 94; R2-19-Ex. 2 at 3.

REASONS FOR GRANTING THE PETITION

This petition should be granted because there is a

direct conflict between the decision below and this Court’s

decision in Jean v. Neison on an issue of far-reaching

importance to the nation—the ability of lower-level gov-

ernment officials to discriminate on the basis of race

and/or national origin without a congressional mandate or

a presidential order. The petition should also be granted

because the lower courts’ failure to assert federal question

jurisdiction and otherwise follow the Federal Rules of Civil

Procedure has deprived petitioners of meaningful review

and is directly at odds with this Court’s decisions in

Zadvydas v. Davis, 533 U.S. 678 (2001), Adickes v. S.H.

Kress & Co., 398 U.S. 144, 157-160 (1970), and Walker v.

Johnston, 312 U.S. 275 (1941).

A. The Decisions Below Directly Conflict With

This Court’s Decision in Jean v. Nelson.

The decisions of the district and court of appeals

courts in this case are squarely at odds with this Court’s

holding in Jean v. Nelson. In Jean, this Court was faced

with a constitutional challenge to a detention policy

substantially similar to the policy at issue in this case.

Jean, 472 U.S. at 848-50. Petitioners in Jean, the named

representatives of a class of incarcerated Haitians who

had been denied parole under the detention policy, argued

that the policy “violated the equal protection guarantee of

the Fifth Amendment because it discriminated against the

petitioners on the basis of race and national origin.” Jd. at

849.

The Jean Court, however, found it unnecessary to

reach the constitutional issue. Noting that courts must

consider “nonconstitutional grounds for decision[s]” prior

to reaching any constitutional questions, id. at 854, the

Court looked first to the parole statute and regulations

and held that they required what petitioners sought

through constitutional argument, “nondiscriminatory

parole consideration.”” Id. at 855. Because (1) the parole

statute and regulations provided a list of neutral criteria

” Although the precise wording has changed slightly over time, the

parole statute and regulations considered in Jean are in all relevant

respects identical to those at issue here. Compare 8 U.S.C.

§ 1182(d)(5\A) (1982), and 8 C.F.R. § 212.5 (1985), with 8 U.S.C.

§ 1182(d)(5)(A) (2001), and 8 C.F.R. § 212.5 (2001), App. at 43-50.

ai a sai aries StS a ince Na RRA RARE al RS SE,

for the granting of parole, (2) nationality-based criteria

had been adopted in other INS regulations, and (3) the

government itself conceded that the facially-neutral

statute and regulations did not allow consideration of race

or national origin, the Court held that immigration offi-

cials were required to make “individualized determina-

tions of parole” and that they make these determinations

“without regard to race or national origin.” Id. at 855-57.

The Court found it unnecessary to determine whether the

equal protection component of the Constitution prohibited

the consideration of race or national origin in parole

determinations. The parole statute and regulations them-

selves prohibited the consideration of such factors. Id. at

857.

Indeed, any question that this Court definitively

interpreted the parole statute and regulations as prohibit-

ing immigration officials from considering race or national

origin in parole determinations was put to rest by this

Court when it assured petitioners that its nonconstitu-

tional remedy was as potent as a constitutional one. The

Court guaranteed petitioners that immigration officials,

“while like all others bound by the provisions of the

Constitution, are just as surely bound by the provisions of

the statute and of the regulations (emphasis added).” Id.

Since the unequal treatment complained of by petitioners

was prohibited by the very parole statute and regulations

the INS had been implementing, the Court assured peti-

tioners that they were protected from discrimination

despite the failure to reach the constitutional issue. Id.

(“The fact that the protection results from the terms of a

regulation or statute, rather than from a constitutional

holding, is a necessary consequence of the obligation of all

federal courts to avoid constitutional adjudication except

where necessary.”); see also id. at 856 n.3 (“The interpreta-

tion of INS regulations we adopt today involves no post hoc

rationalizations of agency action.”) (emphasis added).

This Court’s decision in Jean cannot be reconciled

with the holding of the district and court of appeals below.

Despite this Court’s conclusion that the parole statute and

regulations prohibit immigration officials from considering

race or national origin when making parole determina-

tions, the court of appeals in this case affirmed the district

court’s conclusion that Acting Deputy INS Commissioner

Becraft could require the consideration of Haitian nation-

ality in the adjudication of parole requests. After finding

that the Haitian detention policy differentiated between

nationalities, the district court simply dismissed Jean by

stating:

The crucial difference between Jean and the in-

stant case is that, here, the Acting Deputy Com-

missioner has authorized a policy of denying

parole to inadmissible Haitian nationals based

on specific policy concerns, including the goals of

preventing a mass migration from Haiti and en-

suring the presence of Haitian asylum seekers at

their removal hearings.

App. 30 (emphasis added). No other reasoning was given

to distinguish the holding in Jean.

However, neither the district court nor the court of

appeals attempted to explain how the existence of “specific

policy concerns” allowed the Acting Deputy INS Commis-

sioner to require the use of Haitian nationality as a factor

in parole determinations when this Court in Jean held

that the parole statute and regulations require INS

officials to make nationality- and race-neutral parole

determinations. Without expressly creating an exceptior.,

statutory and regulatory language cannot be read both

ways—to prohibit the use of race and nationality and, at

the same time, to permit such discrimination when “spe-

cific policy concerns” arise. Immigration officials must

abide by the law as it is written.

Moreover, it is not the case here that the “specific

policy concerns” asserted by the government relate to the

individual petitioners themselves or to the factors perti-

nent to their parole determinations (i.e., risk of flight or

danger to the community). The government can deny

aliens parole in cases where individual reasons exist to

deny parole. But here, the government below urged that

immigration officials should be able to discriminate

broadly against Haitian nationals when policy factors

unrelated to the petitioners’ release requests are present.

According to the government, the statute and regulations

should allow them to keep petitioners in prolonged deten-

tion in order to deter possible future mass migrations and

deaths on the high seas. In the government's view, it is

irrelevant that the individual alien poses nu danger to the

community or risk of flight. Indeed, it is irrelevant that

the entire class being denied parole itself poses no greater

danger to the community or flight risk than other classes

of aliens.

If the government desires to employ nationality and/or

race as a factor in parole determinations, the solution is

not to circumvent the law but to change it. The courts

below refused to recognize the statutory and regulatory

prohibition—affirmed by this Court in Jean—against

using race and nationality as factors in determinations of

parole. Because the decisions below cannot be squared

with this Court’s holding in Jean, this Court should grant

review to resolve the conflict.

B. This Case Raises an Issue of National Impor-

tance Because the Decisions Below Endorse

Nationality and/or Race Discrimination by

Lower-Level Government Officials in the

Face of Neutral Statutes and Regulations—

Discrimination Never Before Permitted by

this Court.

Even apart from failure of the courts below to follow

this Court’s precedent, this case warrants the Court’s

attention because of its unquestionable importance to the

country. Despite facially-neutral statutes and regulations

that require individualized determinations, the govern-

ment asked the courts below to accept reasons for the

denial of parole that are not only speculative but that have

nothing to do with the individuals seeking parole. The

lower courts accepted the government’s arguments and

determined that, notwithstanding the facially-neutral

parole statutes and regulations, Acting Deputy INS

Commissioner Becraft had the authority to require the use

of Haitian nationality as a factor in parole determina-

tions.” The courts’ remarkable analysis thus invites lower-

level immigration officials, in the absence of authorization

from Congress or the President, to adopt policies regarding

the incarceration of aliens—and unrelated to their

* In fact, Haitian nationality in the vast majority of cases was the

decisive factor. As noted above, the only Haitian nationals released on

parole were pregnant women and unaccompanied minors.

admission—that discriminate on the basis of nationality

and/or race.

Moreover, the pernicious effects of the decisions below

extend far beyond the sphere of this case, possibly allow-

ing immigration officials to create national origin- and/or

race-based policies in other areas of immigration law

where Congress has required even-handed treatment and

individualized determinations. So long as lower-level

immigration officials are able to drum up specific policy

concerns, they would be permitted to bypass the legislative

process, disregard their duty to act in an individualized

and nondiscriminatory manner, and initiate new discrimi-

natory policies where none existed before. For example,

notwithstanding facially-neutral statutes and regulations

that require individualized determinations for the grant-

ing of asylum, naturalization, and work authorization,

immigration officials could elect to withhold these benefits

to a broad class of aliens, so long as policy reasons could be

articulated for doing so.

Such actions, however, would violate not only the INA,

but also the inviolable precept that laws are created by

those with the authority to make them. While Congress

has authority to discriminate on national origin grounds in

the area of immigration, immigration officials do not have

such authority unless it is given to them by Congress or

unless it derives from the President's inberent power over

immigration pursuant to INA § 212(f), 8 U.S.C. § 1182(f).

Under the INA, only the President is expressly authorized

to make nationality-based distinctions in the face of

neutral statutes and regulations. 8 U.S.C. § 1182(f) (au-

thorizing only the President to “suspend the entry of all

aliens or any class of aliens ... or impose on the entry of

aliens any restrictions he may deem to be appropriate”).

All executive officials lower than the President, including

the Attorney General, are strictly bound by the neutral

parole statute and regulations. Even though the Attorney

General has broad powers to act in matters concerning

immigration, neither he nor his subordinates have the

authority to violate immigration statutes or INS regula-

tions. Bridges v. Wixon, 326 U.S. 135 (1945) (courts may

“inquire whether the Attorney General has exceeded his

statutory authority or acted contrary to law”); United

States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954)

(Attorney General cannot interfere with procedure estab-

lished in INS regulations).

C. In Refusing to Assert Federal Question Juris-

diction and Otherwise Follow the Federal

Rules of Civil Procedure, the Decisions Below

Fail to Follow this Court’s Decisions in Zad-

vydas v. Davis, Adickes v. S.H. Kress & Co.,

and Walker v. Johnston.

The district court below concluded that 8 U.S.C.

§ 1252(a)(2)(B)ii), which limits jurisdiction to review

“decisions or actions” that are authorized as being “in the

discretion of the Attorney General,” applied to petitioners’

“ A number of cases decided by the U.S. Court of Appeals for the

Eleventh Circuit suggest that the Attorney General also has the

authority to make nationality-based distinctions. See, e.g., Cuban Am.

Bar Ass’n v. Christopher, 43 F.3d 1412, 1427 (11th Cir. 1995); Haitian

Refugee Ctr. v. Baker, 953 F.2d 1498, 1507 (11th Cir. 1992). In each of

these cases, however, the Attorney General was acting pursuant to his

authority delegated by Congress. None of these cases suggest that the

Attorney General could act in a way inconsistent with the INA.

eS Sea TA ARE Su Nita AF oR

claims and divested the court of all but habeas jurisdic-

tion. App. 19-20. Asserting habeas jurisdiction, the court

then denied petitioners discovery, as well as a hearing or

trial. Instead, although only limited briefing on petition-

ers’ motions for preliminary, emergency relief had been

filed, the court ruled on the merits of petitioners’ claims

and accepted as true facts strongly disputed by petitioners.

Each of these actions by the district court constitutes a

failure to follow this Court’s precedent as well as the

Federal Rules of Civil Procedure.

a. This Court’s Decision in Zadvydas v. Davis

Makes It Clear That the Jurisdictional

Bar That Prevents Review of Discretion-

ary Decisions Does Not Apply to Petition-

ers’ Claims.

In concluding that 8 U.S.C. § 1252(a)(2)(B)(ii) applied

to petitioners’ claims, the courts below failed to follow this

Court’s recent decision in Zadvydas v. Davis, 533 U.S. 678

(2001). In Zadvydas, this Court held that Section

1252(a)(2)(B)(ii) applies only to claims that seek review “of

the Attorney General’s exercise of discretion.” 533 U.S. at

688. The provision does not apply, however, to questions

concerning “the extent of the Attorney General's authority”

with respect to any particular provision. Id.

In this case, petitioners do not raise any claims that

seek review “of the Attorney General’s exercise of discre-

tion.” Id. They do not question the weighing of the discre-

tionary factors in their individual parole determinations,

nor do they ask this Court to weigh—or reweigh—those

factors and determine if their individual cases require

release. Rather, petitioners question “the extent of the

_ Attorney General’s authority,” asserting that the Acting

Deputy INS Commissioner was prohibited by statute from

requiring the consideration of national origin in parole

determinations. Whether or not such an official acted

beyond the scope of his authority in requiring considera-

tion of national origin is “not a matter of discretion” and

thus does not fall within the jurisdictional bar at 8 U.S.C.

§ 1252(a)(2)(B)(ii).

As this Court explained with respect to the petitioners

in Zadvydas:

The aliens here ... do not seek review of the At-

torney General’s exercise of discretion; rather,

they challenge the extent of the Attorney Gen-

eral’s authority under the ... detention statute.

And the extent of that authority zs not a matter

of discretion.

Id. (emphasis added). The courts below apparently con-

flated claims that seek review of discretionary decisions

with claims that seek review of nondiscretionary matters

related to discretionary decisions. As this Court held in

INS v. St. Cyr, 533 U.S. 289 (2001), there is a marked

difference between challenges to “substantively unwise

exercise[s] of discretion” and “questions of law that [arise]

in the context of discretionary relief.” St. Cyr, 533 U.S. at

307-08. Whether the Haitian detention policy violated the

facially-neutral parole statute and regulations, as well as

the Constitution, is not a discretionary determination and

review is thus not barred by 8 U.S.C. § 1252(a)(2)(B)(ii).

shah cil

Nesciiothitie VO Gi ed PLE DS GIM RTS Ween frp Lop Lo

b. Because the District Court Possessed

Federal Question Jurisdiction, the Dis-

trict Court Erred in Reaching the Merits

of Petitioners’ Ciaims Without Providing

Discovery or Trial.

Because 8 U.S.C. § 1252(a)(2)(B)(ii) does not apply to

petitioners’ claims, the provision did not divest the district

court of federal question jurisdiction under 28 U.S.C.

§ 1331. Therefore, because the district court had such

jurisdiction, it was required under the Federal Rules of

Civil Procedure (1) to rule on the government’s motion to

dismiss and for summary judgment while construing the

facts in the light most favorable to petitioners and, (2) if

the motion was denied, to provide petitioners with discov-

ery and a trial. Acourt cannot dismiss a case before it goes

to trial unless there is “no genuine issue as to any material

fact” and “the moving party is entitled to a judgment as a

matter of law.” FED. R. Civ. P. 56(c); Adickes v. S.H. Kress

& Co., 398 U.S. 144, 157-160 (1970). Moreover, to rule ona

motion to dismiss, a court must construe disputed facts in

favor of the nonmoving party. To rule on a motion for

summary judgment, a court must determine there are no

genuine issues of material facts. Fep. R. Civ. P. 56(c);

Adickes, 398 U.S. at 157. In this case, the court did nei-

ther.

The district court in this case violated these funda-

mental rules by dismissing the case in its entirety after

only a preliminary, emergency briefing on the merits and

without permitting discovery. Once the court found that

the parole statute and regulations did not prohibit na-

tional origin discrimination, the court determined there

was a “facially legitimate and bona fide reason” for the

discrimination. In so concluding, the court relied on facts

asserted by the government, but disputed by petitioners.

Indeed, rather than determining whether there were

genuine issues of material fact, the court ignored alto-

gether material facts asserted by petitioners that contra-

dicted the government’s allegations. Although the court

stated that it was not considering the government’s

motions to dismiss or for summary judgment, the court’s

action in dismissing the case effectively amounted to an

improper grant of a motion for summary judgment or

motion to dismiss.

Specifically, the court accepted without question the

government’s assertions that (1) INS officials were engag-

ing in case-by-case determinations of release requests filed

by Haitians; and (2) INS adopted the Haitian policy to

prevent a mass migration and to save lives and because it

believed that Haitians who arrived by boat were flight

risks. App. 32-37. Petitioners disputed each of these

factual assertions. Petitioners alleged and presented

ample, credible evidence that INS officials were, in fact,

not adjudicating release determinations on a case-by-case

basis. App. 80-81, 84, 93; R1-4-Ex. 6. Petitioners also

alleged and pointed to substantial evidence in the record

demonstrating that the INS officials, in fact, did not adopt

the Haitian policy for the reasons they claimed they did.”

App. 68, 80-81, 88-89, 93-95; R1-4-Ex. 6. A court cannot

dismiss a case in summary judgment fashion before trial

and/or without permitting discovery on the assumption

that facts asserted by the moving party—which are

* For example, the district court ignored evidence that INS

officials kept secret the existence of the detention policy, even though

such evidence tended to disprove the government’s contention that the

policy was implemented for deterrence purposes.

disputed by the nonmoving party—are true. Adickes, 398

U.S. at 157. Nor can it rule on a motion for summary

judgment without making findings regarding whether

there are genuine issues of material fact.

c. Even if the District Court Were Limited to

Habeas Jurisdiction, Petitioners Were En-

titled to an Evidentiary Hearing.

Even if the district court was limited to habeas juris-

diction, it erred by failing to hold an evidentiary hearing to

settle material disputed facts and it abused its discretion by

denying petitioners discovery. A district court is obligated to

hold an evidentiary hearing in a habeas proceeding. 28

U.S.C. § 2243 states: “When the writ of order is returned a

day shall be set for hearing, not more than five days after

the return unless for good cause additional time is allowed”

(emphasis added). Courts have recognized a limited excep-

tion to this rule only when the habeas petition raises pure

questions of law. Walker v. Johnston, 312 U.S. 275 (1941) (if

there is an issue of fact upon return of habeas petition,

court shall proceed “to determine facts of case by hearing

testimony and argument”); People ex rel. Herndon v. Nier-

stheimer, 152 F.2d 453 (7th Cir. 1945) (court may dispose of

case on basis of return and answer where only questions of

law are presented).

Petitioners raised material factual allegations in their

habeas petition that were then disputed by respondents.

As stated above, petitioners asserted INS officials were

not, in fact, giving Haitians case-by-case adjudications of

release requests and the Becraft Haitian detention policy

was not, in fact, adopted for any of the reasons claimed by

INS. The district court expressly based its decision on the

findings that Acting Deputy INS Commissioner aaopted

the Haitian policy for the reasons he said he did and that

“the deportation officers in Miami continued to review

Haitians’ parole requests on an individual, case-by-case

basis.” App. 36. Because the parties disputed important

facts, the district court was required to hold an evidentiary

hearing.

Additionally, the district court erred in not permitting

petitioners to conduct discovery. A court has the discretion

to permit discovery in habeas proceedings under 28 U.S.C.

§ 2241. Rule 6, Rules Governing Section 2254 Cases

(permitting discovery under Federal Rules of Civil Proce-

dure if granted by court in the exercise of discretion and

for good cause shown); Rule l(b) (permitting the applica-

tion of Section 2254 rules to other habeas proceedings).

The district court abused its discretion by denying peti-

tioners the opportunity to conduct discovery. Petitioners

moved for leave to start discovery, but the district court

did not rule on their motion. R2-50, 51. Specifically,

petitioners asked to be able to depose the officials who had

submitted sworn declarations in the case. R2-50. Petition-

ers also asked to serve interrogatories and a request for

production. R2-50, 51.

The discovery requests were directed at testing the

veracity of the Acting Deputy INS Commissioner’s reasons

for adopting the Becraft Haitian detention policy as well

as the claim that INS deportation officers were reviewing

parole requests filed by Haitians on a case-by-case basis.

The court ultimately decided the case based on these facts,

even though they were keenly disputed by petitioners. It

was an abuse of discretion for the court to base its decision

on these key facts without permitting petitioners first to

conduct discovery.

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CONCLUSION

For the reasons stated above, the petition for certio-

rari should be granted.

August 11, 2003

Respectfully submitted,

REBECCA SHARPLESS

Counsel of Record

CHE &YL LITTLE

FLORIDA IMMIGRANT ADVOCACY

CENTER

3000 Biscayne Boulevard

Suite 400

Miami, Florida 33137

(305) 573-1106 ext. 1080

IRA J. KURZBAN

KURZBAN, KURZBAN, WEIGNER &

TETZELI

2650 SW 27th Avenue, 2nd Floor

Miami, FL 33133

(305) 444-0060

CHARLES F. ELSESSER, JR.

JONEL NEWMAN

FLORIDA LEGAL SERVICES, INC.

3000 Biscayne Boulevard

Suite 450

Miami, Florida 33137

(305) 573-0092

Attorneys for Petitioners

etn 2S eet we

App. 1

ERNEST MOISE, et al., Plaintiffs, HEDWICHE

JEANTY, BRUNOT COLAS, et al., on behalf of

themselves and all others similarly situated,

Plaintiffs-Appellants, versus JOHN M. BULGER,

Acting Director for District 6, Immigration and

Naturalization Service, JAMES W. ZIGLAR,

Commissioner, Immigration and Naturalization

Service, et al., Defendants-Appellees.

No. 02-13009

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

321 F.3d 1336; 2003 U.S. App. LEXIS 3162;

16 Fla. L. Weekly Fed. C 342

February 20, 2003, Decided

PRIOR HISTORY: Appeal from the United States Dis-

trict Court for the Southern District of Florida. D.C.

Docket No. 02-20822-CV-JAL. Judge: Joan A. Lenard.

Jeanty v. Bulger, 204 F. Supp. 2d 1366, 2002 U.S. Dist.

LEXIS 15368, (S.D. Fla. 2002)

DISPOSITION: AFFIRMED.

COUNSEL: For Hedwiche Jeanty, Appellant: Rebecca

Sharpless, Florida Immigrant Advocacy Center, Inc.,

Miami, FL.

For Brunot Colas, Laurence St. Pierre, Appellant: Charles

F. Elsesser, Jr., Florida Legal Services, Inc., Miami, FL.

For John M. Bulger, Appellee: M. Jocelyn Wright, Wash-

ington, DC.

App. 2

For Michael Garcia, Attorney General, Immigration

Service, Appellees: David V. Bernal, Civil Division, Wash-

ington, DC.

For United States Department of Justice, Appellee: Anne

R. Schultz, Miami, FL.

For Lawyers Committee for Human Rights, Amicus:

Douglas C. Gray, Kramer Levin Naftalis & Frankel LLP,

New York, NY.

For Marie Guerrier, Darius Satune, Guerda Alexis, Inter-

venors: Rebecca Sharpless, Florida Immigrant Advocacy

Center, Inc., Miami, FL.

JUDGES: Before WILSON and FAY, Circuit Judges, and

LIMBAUGH ,, District Judge.

OPINION: PER CURIAM:

Laurence St. Pierre’ appeals the district court’s order

denying Petitioners’ Emergency Motion for a Temporary

Restraining Order and/or Preliminary Injunction or Class

Writ of Habeas Corpus and Request for an Immediate

Emergency Hearing, denying as moot the motion to certify

the class, and dismissing the Class Action Petition for Writ

of Habeas Corpus and Complaint for Injunctive and

* Honorable Stephen N. Limbaugh, United States District Judge

for the Eastern District of Missouri, sitting by designation.

* Initially, four of the six petitioners who brought the underlying

action in the district court were parties to this appeal. Junior Prospere,

Hedwiche Jeanty, and Brunot Colas were removed to Haiti, however,

and, as a result, were dismissed from this appeal. Thus, St. Pierre is

the only remaining appellant, and we address the issues set forth

herein as they pertain to her.

aR ay, sa be

App. 3

Declaratory Relief. St. Pierre challenges an Immigration

and Naturalization Service (INS) policy implemented in

December of 2001, which instructed the Miami INS office

that no undocumented Haitian nationals arriving in South

Florida were to be paroled without the approval of the INS

headquarters. In reaching our decision, we considered (1)

whether, given the jurisdictional bar set forth in 8 U.S.C.

§ 1252(a)(2)(B)ii), the district court properly concluded

that it had only habeas jurisdiction over the claims; (2)

whether Peter Michael Becraft, the Acting Deputy Com-

missioner of the INS, validly exercised the attorney

general's delegated authority over parole determinations

when he implemented the Haitian detention policy; (3)

whether the reasons given by the government for the

implementation of the Haitian detention policy were

facially legitimate and bona fide; (4) whether the district

court erred by failing to conduct an evidentiary hearing or

permit discovery; (5) whether the Haitian detention policy

was exempt from the rulemaking requirements of the

Administrative Procedures Act; and (6) whether the Fifth

Amendment challenge to the Haitian detention policy was

valid. After a thorough review of the record and the

parties’ briefs and after the benefit of oral argument, we

affirm based upon the district court's well-reasoned order

of May 17, 2002, within which each of these issues is

comprehensively resolved. See Jeanty v. Bulger, 204 F.

Supp. 2d 1366 (S.D. Fla. 2002).

AFFIRMED.

App. 4

HEDWICHE JEANTY, BRUNOT COLAS, JUNIOR

PROSPERE, and LAURENCE ST. PIERRE, on behalf

of themselves and all others similarly situated,

Petitioners, vs. JOHN M. BULGER, Acting Director

for District 6, Immigration and Naturalization

Service; JAMES ZIGLAR, Commissioner, Immigra-

tion and Naturalization Service; JOHN ASHCROFT,

Attorney General of the United States; IMMIGRA-

TION AND NATURALIZATION SERVICE; and

UNITED STATES DEPARTMENT OF JUSTICE,

Respondents.

CASE NO. 02-20822-CIV-LENARD/SIMONTON

UNITED STATES COURT FOR THE SOUTHERN

DISTRICT OF FLORIDA

204 F. Supp. 2d 1366; 2002 U.S. Dist. LEXIS 15368; 15

Fla. L. Weekly Fed. D 303

May 17, 2002, Decided

May 17, 2002, Filed

DISPOSITION: Petitioners’ Emergency Motion for

Temporary Restraining Order and/or Preliminary Injunc-

tion or Class Writ of Habeas Corpus, and for an Immediate

Hearing denied. Class Action Petition for Writ of Habeas

Corpus and Complaint for Injunctive and Declaratory

Relief dismissed. All motions not otherwise ruled upon by

separate order denied as moot.

COUNSEL: For ERNEST MOISE, HEDWICHE JEANTY,

BRUNOT COLAS, JUNIOR PROSPERE, PETERSON

BELIZAIRE, LAURENCE ST. PIERRE: JoNel Newman,

Florida Justice Institute, Ira Jay Kurzban, Kurzban

Kurzban Weinger & Tetzeli, Charles F. Elsesser, Jr.,

ee ee ee —

App. 5

Florida Legal Services Inc, Rebecca Ann Sharpless, Flor-

ida Immigrant Advocacy Center, Miami, FL.

For ATTORNEY GENERAL, John Ashcroft, IMMIGRA-

TION SERVICE, UNITED STATES DEPARTMENT OF

JUSTICE: M. Jocelyn Lopez Wright, Mary Jane Candaux,

Anthony C. Payne, United States Department of Justice,

Washington, DC.

JUDGES: JOAN A. LENARD, UNITED STATES DIS-

TRICT JUDGE.

OPINION BY: JOAN A. LENARD

OPINION:

ORDER DENYING PETITIONERS’ EMER-

GENCY MOTION FOR TEMPORARY RESTRAINING

ORDER AND/OR PRELIMINARY INJUNCTION OR

CLASS WRIT OF HABEAS CORPUS AND FOR

IMMEDIATE HEARING, DENYING MOTION TO

CERTIFY CLASS, AND DISMISSING CLASS AC-

TION PETITION FOR WRIT OF HABEAS CORPUS

AND COMPLAINT FOR INJUNCTIVE AND

DECLARATORY RELIEF

App. 6

Petitioners journeyed the high seas to flee Haiti, with

hopes of obtaining political asylum and discovering free-

dom in America. Rather than liberation, they find them-

selves confined in Miami detention facilities while their

asylum applications remain pending. Understandably,

Petitioners express confusion about their present circum-

stances, and they implore the Court to grant them free-

dom.

Yet, “no judge writes on a wholly clean slate”. A

district court must apply the body of law found in statutes

enacted by Congress, regulations and policies promulgated

by the Executive, and the precedents handed down by the

Supreme Court and appellate courts.

Courts are the mere instruments of the law, and

can will nothing. ... Judicial power is never ex-

ercised for the purpose of giving effect to the will

of the Judge; always for the purpose of giving ef-

fect to the will of the Legislature; or, in other

words, to the will of the law.

Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738,

866, 6 L. Ed. 204 (1824) (Marshall, C.J.).

Particularly in the area of immigration, which strikes

at the heart of a nation’s sovereignty, courts generally

must defer to the laws established by Congress and

administered by the Executive branch of government.

Given the narrow scope of judicial review permitted in this

* Justice Felix Frankfurter, The Commerce Clause 12 (1937).

RRS ON rere

A Me AE TLE SET NO Ce

Se Se Tes eS ee ee

Pe So ea eee

ee NS ae ee Sarr hee

App. 7

area, Petitioners’ cry for freedom needs to be directed to

those representatives of the political branches responsible

for enacting immigration laws and policies. Mindful of the

limits on judicial power, the Court proceeds to wade

through the complicated issues presented by the instant

case.

I. Factual and Procedural Background

On December 3, 2001, U.S. Coast Guard officials

sighted a rickety and overloaded sailboat, the Simap-

vivetzi, off the coast of South Florida, near Biscayne

National Park. The Coast Guard rescued approximately

167 Haitian nationals from the boat. Eighteen others

swam to shore, and two more individuals reportedly

drowned while attempting to swim to shore.’ The Coast

Guard turned over the 167 rescued Haitians to the custody

of the Immigration and Naturalization Service (“INS”).

The INS placed male detainees at Krome Detention

Center, female detainees at Turner Guilford Knight

Detention Center, and families at a local motel.

As none of the aliens arrived with proper entry docu-

mentation, they were legally “inadmissible” under the

Immigration and Naturalization Act (“INA”) and, there-

fore, were placed into expedited removal procedures. Each

of the adults was referred for an interview with an INS

* The eighteen Haitian migrants who swam to shore were consid-

ered by the INS io be “present without inspection,” rather than

“arriving aliens,” as were the aliens brought to shore by the Coast

Guard. (Gov't Opp. to Pets.’ Mot. for TRO/PI/Writ at 5 n.3.) As such, the

eighteen who swam to shore were released from detention and are not

parties to this action.

App. 8

Asylum Officer to determine whether he or she had a

“credible fear” of persecution if returned to Haiti. Each

individual that passed the credible fear interview received

a Form I-862 “Notice to Appear” for full non-expedited

removal proceedings, including the opportunity to apply

for asylum before an immigration judge.’ At this point in

the process, the INS typically releases aliens on parole

pending the final adjudication of their asylum petitions.

Beginning in mid-December, 2001, the INS reversed

its general presumption of release for undocumented

Haitians arriving in South Florida. According to INS

Acting Deputy Commissioner Peter Michael Becraft,

officials from several Executive agencies had observed a

sharp increase in dangerous maritime departures from

Haiti and grew concerned over the potential for more loss

of life and the threat of mass migration. (Becraft Decl.

q 8.) Based on consultations with other Executive officials,

Becraft instructed the Miami INS office that no undocu-

mented Haitian should be released without the approval of

INS Headquarters. (/d.) Miami officials learned of the

policy adjustment on or about December 14, 2001. (Lee

Decl. J 11.) Miami officials continued to review the cases of

arriving Haitians and recommended to Headquarters the

release of approximately fifteen Haitians, including

pregnant women and unaccompanied minors, who arrived

after December 3, 2001 (Ud. 4 12.) On February 12, 2002,

* The Government indicates that 165 of the 167 Haitian nationals

rescued from the Simapvivetzi passed their “credible fear” interviews.

(Gov't Opp. to Pets.’ Mot. for TRO/PI/Writ at 5 n.3.) The other two were

placed into expedited removal proceedings and are not parties to the

instant action.

ECR

NR ne emanate Tre,

dares

PROMILA LA Ae Nae

Ati: aks

App. 9

Miami officials received permission to release pregnant

women and unaccompanied minors without obtaining

Headquarters’ approval. (2/15/02 e-mail of David J. Ven-

turalla.) On March 8, 2002, the Miami office was author-

ized to release, without Headquarters approval, Haitians

granted asylum where the INS decided not to appeal.

(Becraft Suppl. Decl. 4 7.) On April 5, 2002, Executive

Associate Commissioner for the Office of Field Operations

Johnny N. Williams and Regional Director J. Scott Black-

man authorized Miami officials to release Haitians who

arrived by “regular means at a designated port of entry”

(e.g. by airplane), pursuant to enhanced procedures for

assuring the alien’s likelihood of appearing at immigration

proceedings. (Id. { 9.)

Petitioners are four Haitian nationals who were

rescued from the Simapvivetzi on December 3, 2001.‘ All

four have passed their crediblé fear interviews yet remain

* Originally, six named Plaintiffs/Petitioners filed this action.

Subsequently, two of the original six were released from custody. The

original lead Plaintiff/Petitioner, Ernest Moise, arrived aboard the

Simapvivetzi. He and his family were granted asylum and released

from detention on March 19, 2002. The Government filed a Motion to

Dismiss Moise (D.E. 16) on March 20, 2002. Petitioners conceded that

his claims are moot. (D.E. 29.) The Court granted the Motion to Dismiss

Moise on May 10, 2002. (D.E. 57.) The other original named Petitioner,

Peterson Belizaire, arrived by plane at Miami International Airport on

December 17, 2001. He applied for parole on February 27, 2002, and his

application was denied on April 4, 2002. After the INS changed its

policy with regard to Haitians arriving by plane, Belizaire completed a

new parole request form. Upon his sponsor’s completion of an affidavit

of support, Belizaire was released on parole on April 18, 2002. The

Government filed a Motion to Dismiss Belizaire (D.E. 45) on April 26,

2002. Petitioners conceded that his claims are moot. (D.E. 53.) The

Court granted the Motion to Dismiss Belizaire on May 10, 2002. (D.E.

57.)

App. 10

in detention. Petitioners Jeanty, Colas, and Prospere

applied for and were denied parole in late January, 2002.

Petitioner St. Pierre submitted a letter requesting parole

on February 7, 2002. On April 9, 2002, she submitted a

parole request form and identified a sponsor. As of April

12, 2002, the sponsor had not submitted an affidavit of

support, and Petitioner St. Pierre’s parole request re-

mained pending. (Lee Suppl. Decl. 4 12.)

On March 15, 2002, Plaintiffs/Petitioners filed a Class

Action Petition for Writ of Habeas Corpus and Complaint

for Injunctive and Declaratory Relief (D.E. 1), an Emer-

gency Motion for Temporary Restraining Order and/or for

Preliminary Injunction or Class Writ of Habeas Corpus,

and for an Immediate Emergency Hearing (D.E. 2), and a

Motion to Certify Class (D.E. 5). The Government filed an

Opposition to Petitioners’ Motion to Certify Class (D.E. 13)

and an Opposition to Plaintiffs’ Emergency Motion for

Temporary Restraining Order and/or for Preliminary

Injunction or Class Writ of Habeas Corpus (D.E. 14) on

March 18, 2002. Petitioners filed Replies on March 21,

2002. (D.E. 20, 21.)

Upon consideration of the briefs, the Court requested

further information from both sides on April 5, 2002 (D.E.

30.) Pursuant to the April 5th Order, Petitioners submit-

ted copies of the named Petitioners’ parole requests (D.E.

34); the Government submitted copies of Petitioners’

immigration files (D.E. 37); and Becraft and Lee submitted

supplemental declarations (D.E. 38). The Government also

submitted a copy of the INS’s “Detention Use Policy,”

copies of electronic communications between INS officials

regarding the policies toward Haitians arriving in South

Florida, and copies of two memoranda, dated April 5, 2002,

entitled “Procedures for Paroling Haitians Arriving by

App. 11

Regular Means at a Designated Port of Entry in South

Florida.” (D.E. 39.)

Once the issues were fully briefed, the parties contin-

ued to file additional pleadings. Petitioners submitted a

Notice of Filing of Supplemental Exhibits, including an

advisory opinion issued by the United Nations High

Commissioner for Refugees on April 15, 2002, and state-

ments by social workers and legal personnel regarding the

conditions at the detention facilities. (D.E. 40.) The Gov-

ernment moved to strike the supplemental argument as

untimely, or, alternatively, to respond. (D.E. 46.) The

Government also requested leave to file supplemental

exhibits, including statements by Miami INS officials with

respect to policies at the detention facilities. (D.E. 47.)

Petitioners filed an Opposition to the Motion to Strike,

maintaining that the international law issues raised in the

advisory opinion are relevant, although conceding that

they have not alleged international law claims.* (D.E. 58)

* The opinion, issued by the UNHCR at the request of Petitioners’

counsel, concludes that under international refugee law (including the

1967 Protocol relating to the Status of Refugees, to which the United

States is a party), detention should not be used as a means of deterring

asylum seekers from seeking protection in a given country, and that

detention is arbitrary, and therefore illegal, when asylum seekers of a

particular national origin are subject to more restrictive criteria for

release from detention than those of other nationalities. (UNHCR

Advisory Opinion at 7.) Petitioners state that the advisory opinion is

“relevant to the present case” without addressing the issue of whether

it constitutes binding authority in this Court. (Pets.’ Not. of Filing

Supp’ Exs. at 1.) Appellate courts, including the Eleventh Circuit, have

held that the 1967 Protocol provides no enforceable rights in U.S. courts

because it is not a self-executing treaty. See Haitian Refugee Ctr., Inc. v.

Baker, 949 F.2d 1109, 1110 (11th Cir. 1991); Bertrand v. Sava, 684 F.2d

204, 218 (2d Cir. 1982). As Petitioners concede that they have not

(Continued on following page)

App. 12

On May 7, 2002, Petitioners filed an Emergency

Motion for Leave to Take Depositions of Respondents and

to Otherwise Begin Discovery and also to Shorten Time for

Response to Petitioners’ First Request to Produce. (D.E.

50.) On May 8, 2002, Petitioners filed a Motion to Compel,

seeking to compel Respondents to produce the redacted

portions of the documents submitted in response to the

Court’s April 5, 2002 Order. (D.E. 54.) ;

On May 9, 2002, the Lawyers’ Committee for Human

Rights (“LCHR”) filed an Amicus Curiae Brief (D.E. 55).°

On May 14, 2002, the Government filed a Motion to

Dismiss in Part and for Summary Judgment in Part,

seeking dismissal of the Class Action Petition for Writ of

Habeas Corpus and Complaint for Injunctive and Declara-

tory Relief, or, alternatively, dismissal of claims 2 and 3 for

alleged any cause of action under international law, the Court need not

further address the conclusions of the advisory opinion.

* The amicus brief argues that Petitioners’ detention violates

international law, including the 1967 Protocol and the International

Covenant on Civil and Political Rights (“ICCPR”), and alleges that

continued detention will have an adverse impact on Petitioners’ mental

and physical well-being and their ability to present their asylum

claims. The brief does not address whether the treaties are enforceable

in U.S. courts. The law makes clear that neither the Protocol nor the

ICCPR is a self-executing treaty, and, thus, neither provides enforce-

able rights in U.S. courts. See supra note 5; United States v. Duarte-

Acero, 208 F.3d 1282, 1284 n. 8 (11th Cir. 2000) (ICCPR not self-

executing); Buell v. Mitchell, 274 F.3d 337, 372 (6th Cir. 2001) (holding

that ICCPR is not enforceable in U.S. courts). Moreover, the Complaint

states no cause of action under international law, and the brief alleges

no specific facts directed toward the current detention of Petitioners or

any other Haitians in Miami. Therefore, the Court need not further

address the amicus curiae brief.

eee

App. 13

lack of jurisdiction, and summary judgment on all other

claims.’ (D.E. 60.)

Upon consideration of the entire record in this matter,

the Court finds that the issues were fully briefed in the

Petitioners’ Emergency Motion for Temporary Restraining

Order and/or for Preliminary Injunction or Class Writ of

Habeas Corpus, and for an Immediate Emergency Hearing

(D.E. 2), Motion to Certify Class (D.E. 5), Government’s

Responses (D.E. 13, 14), Petitioners’ Replies (D.E. 20, 21),

and the parties’ submissions in response to the Court’s

April 5th Order Directing to Submit Additional Documen-

tation (D.E. 34, 37, 38, 39.) Accordingly, the Court finds as

follows.

II. Parties’ Arguments

Petitioners seek a writ of habeas corpus on behalf of

themselves and a class of:

All detained Haitian aliens in the Southern Dis-

trict of Florida who arrived on or after December

3, 2001, who are applying for admission into the

United States, tiave passed their “credible fear”

interviews with the Asylum Office of the INS,

" The Government previously filed an Opposition to Petitioners’

Emergency Motion for Temporary Restraining Order and/or for

Preliminary Injunction or Class Writ of Habeas Corpus, responding in

full to the Emergency Motion. (D.E. 14.) Petitioners seek the same relief

in the Complaint (D.E. 1) and the Emergency Motion (D.E. 2). There-

fore, the Court finds it unnecessary to consider the Government’s

Motion to Dismiss and for Summary Judgment, and rules upon the

basis of the Emergency Motion and related pleadings.

App. 14

and are in detention pending removal proceed-

ings, for whom a final order of removal has not

been entered.

(Pets.’ Mot. to Certify Class at 1.)

Petitioners argue that the Government has violated

their rights pursuant to: (1) the parole statute and regula-

tions, in that parole decisions were not made on a case-by-

case basis; (2) the due process clause of the Fifth Amend-

ment, as Petitioners have a right to be free from unlawful

detention; (3) the equal protection component of the Fifth

Amendment, because the Government has discriminated

against them on the basis of race and/or national origin;

(4) section 555(e) of the Administrative Procedures Act

(“APA”), by not providing an accurate statement for the

grounds of denial of parole requests; (5) APA § 553, in that

the Government’s new policy is a substantive rule that

must be adopted through notice-and-comment rulemaking

procedures; and (6) APA § 701, in that the Government has

unlawfully withheld agency action to which Petitioners are

entitled and has not acted in accordance with applicable

statutes, regulations, and constitutional provisions.

Petitioners request this Court to issue a temporary

restraining order, injunctive relief, or, in the alternative, a

class writ of habeas corpus, to compel the Government to:

(a) immediately release Petitioners and class members; (b)

cease using race and/or nationality as a factor in adjudi-

cating requests filed by Haitian asylum seekers who have

passed their credible fear interviews or who are otherwise

eligible to be considered for release; (c) evaluate all pend-

ing and future requests on a case-by-case basis; (d) re-

evaluate all denied requests for release filed by Haitian

asylum seekers since December 3, 2001, in accordance

with the statute, the regulations, and the Constitution; (e)

inte BANG

BRR a eal ad | eh.

Sine DEBE Bike a ARO miadibliacsntc a Tatas We Clb ee MI eee nid didn bY EC an Mtoe WHIMS

App. 15

provide accurate notice of the reasons for the denial of the

release request; and (f) complete the above within ten

days.

The Government opposes class action status on

grounds that INA § 242(f)(1) prohibits the Court from

granting class-wide relief or, alternatively, due to the fact-

sensitive nature of Petitioner’s parole applications. Fur-

ther, the Government argues that the Court lacks jurisdic-

tion, under INA § 242(a)(2)(B)(ii), over Petitioners’

challenge to the Attorney General’s discretionary decision

to deny parole. With respect to habeas and injunctive

relief, the Government contends that Petitioners have not

shown a substantial likelihood of success on the merits, in

that: (1) the Fifth Amendment provides Petitioners no

relief; (2) the statute presumes the denial of parole, and

the Government continues to make case-by-case decisions

regarding Petitioners’ parole requests; (3) the APA does not

apply; (4) the Government has provided a “facially legiti-

mate and bona fide” reason for denying Petitioners’ parole

applications; and (5) Petitioners have not shown that they

will suffer irreparable harm in the absence of an injunc-

tion, or that the balance of hardships tips in their favor.

With its Response, the Government submitted decla-

rations by Peter Michael Becraft, Acting Deputy Commis-

sioner of the INS, and Wesley Lee, Officer in Charge of

INS Krome Service Processing Center in Miami, Florida

Becraft stated that after the arrival of 167 Haitians by

boat on December 3, 2001, the Government feared a mass

migration and sought to deter more Haitians from making

the dangerous voyage. (Becraft Decl. J 8.) Becraft asserted

that after consulting with various INS officials, he directed

the INS Office of Field Operations to adjust its parole

criteria with respect to inadmissible Haitians arriving in

App. 16

South Florida, and he instructed that no such Haitians

should be paroled without the approval of INS Headquar-

ters. (Id.)

In their Reply, Petitioners argue that Becraft lacks

sufficient authority to establish a policy that discriminates

against Haitians. According to Petitioners, “Only Con-

gress, the President, or possibly the Attorney General has

such authority.” (Pets. Reply at 2.) They contend, and

submit statistics purported to demonstrate, that there is

no current Haitian migration crisis. The crux of Petition-

ers’ argument is that the Supreme Court’s decision in Jean

v. Nelson, 472 U.S. 846, 86 L. Ed. 2d 664, 105 S. Ct. 2992

(1985), requires the INS to make parole determinations in

a non-discriminatory manner without treating Haitians

different than other nationalities.

III. Analysis

Initially, the Court must determine whether it has

jurisdiction in view of the limits on judicial review of

immigration matters imposed by Congress in 1996. The

Court concludes that the statute precludes full-scale

judicial review of Petitioner’s parole applications, but

habeas jurisdiction exists to determine the legality of

Petitioners’ detention.

Limited to habeas jurisdiction, the Court then exam-

ines the scope of legal protection available to Petitioners.

The law makes clear that Petitioners, as arriving aliens,

have no constitutional rights with respect to their immi-

gration applications but, rather, only the rights granted by

Congress and the Executive by statute or administrative

regulation. By statute, Congress has delegated the author-

ity over parole determinations to the Attorney General,

—

App. 17

who has further delegated the power to certain high-level

INS officials, including the Deputy Commissioner. Third,

the Court finds that the Supreme Court’s holding in Jean

v. Nelson does not preclude the Government from adopting

a parole policy that differentiates between nationalities.

Fourth, the Court must determine whether Acting Deputy

Commissioner Becraft has the authority to adjust parole

policy. The Court concludes that the Attorney General has

conferred all of his parole-related authority upon the

Deputy Commissioner, and the Court thus analyzes the

policy as if the Attorney General himself had promulgated

it.

hi eeruauleier

inate td »

The case law establishes that the Court’s scope of

review is limited to determining whether the Government

has advanced a “facially legitimate and bona fide reason”

for its parole policies and decisions. Applying this ex-

tremely deferential standard, the Court next finds that

saving lives, deterring mass migration, and ensuring the

presence of inadmissible aliens at their immigration

hearings are facially legitimate and bona fide reasons

supporting the policy of granting parole to Haitians only in

cases of unique hardship. Since Petitioners have not

alleged that Miami officials have misapplied the policy in

any individual case, the Court concludes that Petitioners’

detention is legal.

PRAM Catalase SE ake ry aL bi

NI ds AR td Loa

Finally, the Court examines Petitioners’ APA claims.

First, the Court finds that it lacks jurisdiction to review

Petitioners’ individual challenges to their parole denials.

The Court also rejects Petitioners’ claim that formal

notice-and-comment rulemaking is required, finding that

the INS merely adjusted its general parole policy with

regard to Haitians arriving in South Florida.

App. 18

A. Jurisdiction

Congress imposed several limitations on the scope of

judicial review in the Illegal Immigration Reform and

Responsibility Act of 1996 (“IIRIRA”). One such limitation

provides:

Notwithstanding any other provision of law, no

court shall have jurisdiction to review — (ii) any

other decision or action of the Attorney General

the authority for which is specified under this

subchapter to be in the discretion of the Attorney

General, other than the granting of relief under

section 1158(a) of this title. ;

INA § 242(a)(2)(B)ii), 8 U.S.C. § 1252(a)(2)(B)(Gii). As the

authority to grant parole is specified under INA

§ 212(b)(5)(A) to be within the discretion of the Attorney

General, the Government contends that the Court has no

jurisdiction over this matter.

The Supreme Court examined similar post-ITRIRA

provisions of the INA in St. Cyr v. INS, 533 U.S. 289, 121

S. Ct. 2271, 150 L. Ed. 2d 347 (2001), and concluded that

the statute precludes federal courts from engaging in full-

scale “judicial review” of the Attorney General’s decisions,

but does not strip them of habeas jurisdiction under 28

U.S.C. § 2241 to review the legality of executive actions.

121 S. Ct. at 2285-86. The St. Cyr Court noted that in the

immigration context, “judicial review” and “habeas corpus”

have historically distinct meanings. 121 S. Ct. at 2285

(citing Heikkila v. Barber, 345 U.S. 229, 97 L. Ed. 972, 73

S. Ct. 603 (1953)). The crucial difference is the limited

scope of habeas review. Jd. Given the historic use of section

2241 habeas jurisdiction as a means of reviewing deporta-

tion and exclusion orders, the Supreme Court found.

é athe a iS wena haa er oh

2b abla a pales itink ennai e

App. 19

Congress’ failure to refer specifically to section 2241 to be

particularly significant. 121 S. Ct. at 2286 n.36.

Apparently, the Tenth Circuit is the only appellate

court that has addressed the issue of whether INA

§ 242(a)(2)(B)(ii) strips federal courts of habeas jurisdic-

tion over challenges to INS parole determinations. See

Sierra v. INS, 258 F.3d 1213 (10th Cir. 2001). Applying the

reasoning of St. Cyr, the Sierra court held that federal

courts retain jurisdiction over habeas challenges to parole

determinations.° Jd. at 1217-18. The Court agrees with the

Tenth Circuit for a number of reasons. First, the Supreme

Court in St. Cyr concluded that the phrase “jurisdiction to

review” as used in INA § 242(a)(2)(C), does not preclude

habeas review. The Court sees no reason why the same

phrase, as used in INA § 242(a)(2)(B)(ii) should have «2

broader meaning. Both provisions were enacted simulta-

neously in section 306 of IIRIRA, and Congress did not

explicitly mention section 2241 habeas review in either

subsection. Thus, neither provision “speaks with sufficient

clarity to bar jurisdiction pursuant to the general habeas

statute.” St. Cyr, 121 S. Ct. at 2286. To the extent that

Petitioners challenge the Attorney General’s statutory and

constitutional authority to refuse them parole allegedly

without making case-by-case determinations, habeas

jurisdiction exists to determine whether Petitioners are

* Sierra involved the withdrawal of parole of a Mariel Cuban,

which is covered by separate immigration regulations, yet the Tenth

Circuit found no material difference between the situation in Sierra and

a previous case involving a non-Mariel Cuban challenging the initial

denial of parole, 258 F.3d at 1219 n.4. Likewise, this Court finds no

material difference between Sierra and the present case. The same

jurisdiction-stripping provision, INA § 242(a)(2)(B)(ii), is at issue here.

App. 20

held in custody “in violation of the Constitution or the

laws or treaties of the United States.”® 28 U.S.C.

§ 2241(c)(3); see Sierra, 258 F.3d at 1217; cf: Zavdydas v.

Davis, 533 U.S. 678, 121 S. Ct. 2491, 2497-98, 150 L. Ed.

2d 653 (2001) (holding that section 2241 habeas proceed-

ings remain available as a forum for statutory and consti-

tutional challenges to post-removal-period detention). The

Court limits the scope of its review accordingly.”

B. Constitutional Rights of Excludable Aliens

“For reasons long recognized as valid, the responsibil-

ity for regulating the relationship between the United

States and our alien visitors has been committed to the

political branches of the Federal Government.” Mathews v.

Diaz, 426 U.S. 67, 81, 48 L. Ed. 2d 478, 96 S. Ct. 1883

(1976). Courts “ ‘have long recognized the power to expel or

* By contrast, the Court lacks jurisdiction over Petitioners’

attempts to obtain full APA-style judicial review of the Attorney

General’s discretionary parole decisions. See infra section III.E.

’° In the instant Emergency Motion, Petitioners seek a temporary

restraining order, preliminary injunction, or, in the alternative, a class

writ of habeas corpus. For the reasons set forth in this Order, the Court

finds that it lacks independent jurisdiction over Petitioners’ constitu-

tional and APA claims apart from habeas jurisdiction under 28 U.S.C.

§ 2241. Habeas jurisdiction allows a court to equitably “dispose of the

matter as law and justice require.” 28 U.S.C. § 2243. Thus, a court

granting a writ of habeas corpus may issue an injunction in aid of the

writ. See Pierre v. United States, 525 F.2d 933, 936 (5th Cir. 1976)

(“injunctive relief may be necessary to enforce the petitioners’ right of

liberty”); United States v. Doherty, 786 F.2d 491, 499 n.11 (2d Cir. 1986)

(citing Louis v. Nelson, 544 F. Supp. 1004 (S.D. Fla. 1982)); Moore v.

DeYoung, 515 F.2d 437, 447 (8d Cir. 1975). However, where a court has

only habeas jurisdiction and determines that no writ shall issue, no

separate basis exists for the issuance of injunctive relief.

AOS AE AER Ay ae LN sal

Ses ae ES il a Cah eS MER MRE

Mi CESAR Acard nt MLDS Agha atti SNE Scat ie nana 2 RO Sr hich kin RNAI

App. 21

exclude aliens as a fundamental sovereign attribute

exercised by the Government's political departments

largely immune from judicial control.’” Fiallo v. Bell, 430

U.S. 787, 792, 52 L. Ed. 2d 50, 97 S. Ct. 1473 (1977)

(quoting Shaughnessy v. United States ex rel. Mezei, 345

U.S. 206, 210, 97 L. Ed. 956, 73 S. Ct. 625 (1953)). “‘Over

no conceivable subject is the legislative power of Congress

more complete.’” Id. (quoting Oceanic Navigation Co. v.

Stranahan, 214 U.S. 320, 339, 53 L. Ed. 1013, 29 S. Ct.

671 (1909)). Thus, “in the exercise of its broad power over

immigration and naturalization, ‘Congress regularly

makes rules that would be unacceptable if applied to

citizens.’” Jd. (quoting Mathews, 426 U.S. at 79-80).

Particularly with regard to aliens seeking initial

admission to this country, the role of federal courts is

limited. The Supreme Court “has long held that an alien

seeking initial admission to the United States requests a

privilege and has no constitutional rights regarding his

application, for the power to admit or exclude aliens is a

Sovereign prerogative.” Landon v. Plasencia, 459 U.S. 21,

32, 74 L. Ed. 2d 21, 103 S. Ct. 321 (1982). Excludable

aliens are “those who seek admission but who have not

been granted entry into the United States. Even if physi-

cally present in this country, they are legally considered

detained at the border”. Garcia-Mir v. Smith, 766 F.2d

1478, 1483-84 (11th Cir. 1985). This is known as the “entry

fiction.” Id. Deportable aliens, by contrast, “have suc-

ceeded in either legally or illegally entering the country.”

Id. “Excludable aliens have fewer rights than do deport-

able aliens, and those seeking initial admission to this

country have the fewest of all.” Id. (citing Landon, 459

U.S. 21).

App. 22

Despite Petitioners’ physical presence in this country,

neither detention nor parole affects their legal status as

excludable aliens. See INA § 212(d)(5)(A) (“Parole cf such

alien shall not be regarded as an admission of the alien

... ”). As excludable aliens, Petitioners “have no constitu-

tional rights with regard to their [parole] applications.”

Garcia-Mir, 766 F.2d at 1484 (citing Jean v. Nelson, 727

F.2d 957, 968 (11th Cir. 1984)). Rather, they possess only

the statutory rights and privileges granted by Congress

See id. Because the contours of such rights are “to be

largely left to the discretion of the political branches,”

courts “should ordinarily abstain where excludable aliens

are concerned.”” Jd. Thus, recognizing its narrow role, the

" Garcia-Mir was part of lengthy litigation following the Mariel

Boatlift of 1980, in which 125,00 [sic] Cubans participated in a mass

exodus from Cuba to the United States. 766 F.2d at 1480. In Garcia-

Mir, the Eleventh Circuit emphasized the importance of judicial

deference to the political branches’ decisions with respect to such a

crisis: “In overriding the government’s decisions about how best to

handle the sudden influx of Mariel Cubans, the district court has failed

to take account of those significant countervailing national concerns

that have led our immigration law to place primary decisionmaking

authority about such a problem squarely into the hands of the political

branches.” Jd. at 1484. In the instant action, the Government asserts

that the Haitian adjustment policy was adopted, in part, to avoid a

mass migration from Haiti. (Becraft Decl. 8.) Petitioners contend and

submit statistics to show that, unlike the Mariel Boatlift, there is no

current Haitian migration crisis. (Pets.’ Reply at 7-10.) Petitioners’

argument, however, disregards the importance of the separation of

powers concerns that mandate judicial deference. The same “significant

countervailing national concerns” that prevented the Garcia-Mir court

from second-guessing the Attorney General’s decisions in response to

the Mariel Boatlift also guide this Court. Executive officials have

considerable knowledge and experience with respect to both the history

and the current situation in Haiti and South Florida. Thus, the Court

must allow them to make policy determinations at the outset in an

(Continued on following page)

DNs A Racca NR Nae SN Rell

App. 23

Court looks to the statutes and regulations promulgated

by the political branches to determine whether Govern-

ment officials have acted within the scope of their statu-

tory and delegated authority.

C. Statutory and Regulatory Framework

(1) Statutory Authority for Detention of Arriving

Aliens

An alien who arrives without the proper documenta-

tion required by the INA is inadmissible pursuant to INA

§ 212(a)(7), and subject to expedited removal procedures

under INA § 235. Under INA § 235, an immigration officer

shall order the removal of an arriving alien unless the

alien indicates an intention to apply for asylum or a fear

of persecution, in which case the officer shall refer

the alien for an interview by an asylum officer under

INA § 208(bX1)(B). See INA § 235(b)\(1)(A), 8 U.S.C.

§ 1225(b)(1)(A). If the asylum officer conducting the

interview determines that the alien has a “credible fear” of

persecution, the statute provides that “the alien shall be

detained for further consideration of the application for

asylum.” INA § 235(b)(1)(B)(ii), 8 U.S.C § 1225(b)(1)(B)(ii).

Thus, by statute, Congress has plainly indicated its intent

and approval of the detention of an undocumented alien

who has passed the credible fear interview, until adjudica-

tion of the asylum application.

attempt to avoid what they perceive as a potential threat of another

mass migration.

App. 24

(2) Parole of “Credible Fear” Aliens

Notwithstanding the broad statutory authority for

detention of “credible fear” aliens, the Attorney General’s

regulations authorize the INS to consider parole for such

aliens. The regulations provide that an alien who has

passed the credible fear interview shall receive a Form I-

862, Notice to Appear, for full consideration of the asylum

and/or withholding of removal claim in regular removal

proceedings under INA § 240.” 8 C.F.R. § 208.30(f). In

addition, the regulations provide that “parole of the alien

may be considered only in accordance with [INA]

§ 212(d)(5) and (8 C.F-R.] § 212.5.” 8 C.F-.R. § 208.30(f).

By statute, Congress has delegated to the Attorney

General the authority to make parole determinations, as

follows:

The Attorney General may ... in his discretion

parole into the United States temporarily under

such conditions as he may prescribe only on a

case-by-case basis for urgent humanitarian rea-

sons or significant public benefit any alien apply-

ing 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

General, have been served the alien shall forth-

with return or be returned to the custody from

" At this point, the alien moves out of “expedited removal proceed-

ings” under INA § 235, and into regular removal proceedings under INA

§ 240. A “credible fear” alien’s petition for asylum is then adjudicated

before an immigration judge at a removal hearing. Currently, Petition-

ers are in regular section 240 proceedings, awaiting their removal

hearings.

M. te ieee ee ne ee ee ee ea

Se ee, et a Ae

App. 25

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 admission

to the United States.

INA § 212(d5)(A), 8 U.S.C. § 1182(d)(5)(A).

Pursuant to this statutory authority, the Attorney

General has promulgated 8 C.F.R. § 212.5 to govern parole

determinations. By regulation, the Attorney General has

delegated his parole authority, as follows:

The authority of the Commissioner to continue

an alien in custody or grant parole under [INA]

§ 212(d)(5)(A) shall be exercised by the district

director or chief patrol agent, subject to the pa-

role and detention authority of the Commissioner

or her designees, which include the Deputy

Commissioner, the Executive Associate Commis-

sioner for Field Operations, and the regional di-

rector, any of whom in the exercise of discretion

may invoke this authority under [INA]

§ 212(d)(5)(A).

8 C.F.R. § 212.5(a).”

With respect to aliens who have passed the credible

fear interview, the regulations establish the following

standard for parole determinations:

* Acting Deputy Commissioner Peter Michael Becraft acted

pursuant to this authority when he instructed Miami officials to adjust

the parole criteria for Haitians arriving in South Florida. (Becraft Decl.

{ 2; Becraft Suppl. Decl. ¥ 7.)

“* 8 C.F.R. § 212.5(b) governs parole for aliens in expedited removal

proceedings. Once an alien moves into regular removal proceedings, see

supra note 12, 8 C.F.R. § 212.5(c) applies.

— LS —

App. 26

“The district director or chief patrol agent may,

after review of the individual case, parole into

the United States temporarily in accordance with

[INA] § 212(d)(5)(A), any alien applicant for ad-

mission under such terms and conditions, includ-

ing those set forth in paragraph (d) of this

section, as he or she may deem appropriate.”

8 C.F.R. § 212.5(c).

In furtherance of the regulations, in October, 1998,

the INS issued a “Detention Use Policy” establishing the

INS’s priorities for the use of limited detention space.

(Becraft Suppl. Decl. 95.) The Detention Use Policy

defines four categories of aliens: (1) required detention

(with limited exceptions); (2) high priority; (3) medium

priority; and (4) low priority. With respect to “credible fear”

aliens, the Detention Use Policy provides, “Although

parole is discretionary in all cases where it is available, it

is INS policy to favor release of aliens found to have a

credible fear of persecution, provided that they do not pose

a risk of flight or danger to the community.” Such aliens

fall within Category 4, or “low priority.” The Government

concedes that:

In practice, the application of INS Detention Use

Policy in the Miami District, because of limited

detention space in that district, resulted in the

parole of most arriving aliens found to have

credible fear unless they were identified as pos-

ing a danger to the community because of a

criminal record or other factors.

(Becraft Suppl. Decl. { 6.)

App. 27

(3) Haitian Policy Adjustment

Becraft states that on or about December 14, 2001, he

adjusted the criteria of the Detention Use Policy for

arriving Haitian nationals, pursuant to his delegated

authority under 8 C.F.R. § 212.5(a). (Becraft Suppl. Decl.

11 2, 7.) As a result of this adjustment, arriving Haitian

nationals would no longer be considered “Category 4” or

“low priority” aliens under the Detention Use Policy. (Id.

q{ 8.) Specifically, Becraft instructed the INS Office of Field

Operations that “no Haitian should be paroled without the

approval of INS Headquarters.” (Jd. 7 7.) His instructions

were conveyed to the Miami District both orally and via

electronic mail. (/d.) After the issuance of Becraft’s in-

struction, the Miami District continued to review the files

of arriving Haitians and advised INS Headquarters of

cases of “unusual hardship,” including pregnant women

and unaccompanied minors. (Jd.) INS Headquarters

approved parole releases for the cases of unusual hard-

ship. (/d.) Beginning on February 15, 2002, the Miami

office was allowed to release juveniles with approved

sponsors and pregnant females, without requesting

approval from Headquarters. (2/15/02 e-mail of David J.

Venturalla.) The Miami office also informed Headquarters

of individuals who had been granted asylum by an immi-

gration judge where INS counsel had decided not to appeal

the grant of asylum, and Headquarters approved the

release of the asylees on March 18, 2002. (Becraft Suppl.

Decl. { 7.)

App. 28

D. Lawfulness of the Haitian Policy Adjust-

ment

(1) Jean v. Nelson

According to Petitioners, the Supreme Court held in

Jean v. Nelson, 472 U.S. 846, 86 L. Ed. 2d 664, 105 S. Ct.

2992 (1985), that the parole statute and regulations

require the INS to make individualized parole determina-

tions without regard to race or nationality. Upon closer

examination, however, Jean establishes no such broad

rule. The Jean majority expressly refused to address the

constitutional issue and confined its ruling to the unique

factual and procedural history of the case, as follows.

Until 1981, the INS followed a policy of general parole

for undocumented aliens. Id. at 849. In the late 1970’s and

early 1980's, large numbers of undocumented aliens

arrived in South Florida, mostly from Haiti and Cuba. Id.

Concerned about the large influx of undocumented aliens,

the Attorney General ordered the INS to detain without

parole any alien who could not present a prima facie case

for admission. Id. The petitioners, Haitian detainees who

had been denied parole, filed a class action lawsuit. The

district court held that the new policy of detention without

parole must be promulgated in accordance with APA

rulemaking procedures and ordered parole of the detained

class, with certain exceptions. Louis v. Nelson, 544

F. Supp. 973 (S.D. Fla. 1982). The INS promptly promul-

gated 8 C.F.R. § 212.5.

On appeal, the Eleventh Circuit affirmed the district

court’s ruling on the APA claim. Jean v. Nelson, 711 F.2d

1455, 1483 (11th Cir. 1983) (hereinafter “Jean I”). In

addition, the panel held that the Fifth Amendment’s equal

protection guarantee applied to the parole of unadmitted

on Se ae Pe eee Te)

App. 29

aliens, and found that the district court’s finding of no

invidious discrimination was clearly erroneous. Id. at

1483-1503. Subsequently, the Eleventh Circuit granted

rehearing en banc, thereby vacating the panel opinion.

Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984) (hereinafter

“Jean IT”). By then, the remaining petitioners were being

held under the new regulations; thus, the en banc court

held that the APA claim was moot. Jd. at 962. The en banc

court also reversed the panel on the constitutional issue,

holding that the Fifth Amendment’s equal protection

guarantee does not apply to the parole of undocumented

aliens. Id. at 968-75. Notwithstanding its constitutional

holding, the en banc court concluded that an INS official’s

decision to deny parole may be subject to limited judicial

review for abuse of discretion, and remanded to the dis-

trict court for a determination of whether low-level INS

officials had exercised their discretion in an individualized

and non-discriminatory manner. Jd. at 975-79.

The Supreme Court held that the Eleventh Circuit

should not have addressed the constitutional issue, since

the petitioners only sought to have the statutes and

regulations applied in a non-discriminatory manner.”

Jean, 472 U.S. at 854-55. In the Supreme Court, the

government argued that it would be constitutionally

permissible for the government to adopt different parole

criteria for different nationalities, but also conceded that

“ Although the Supreme Court held that the appellate court in

Jean II should not have reached the constitutional issue, the en banc

holding regarding the constitutional issue remains viable as the

Supreme Court did not vacate the opinion but affirmed and remanded

on alternative grounds. See Cuban Am. Bar Ass’n, Inc. v. Christopher,

43 F.3d 1412, 1428 n.20 (11th Cir. 1995) (internal cites omitted).

App. 30

both the statute and the newly issued regulations, on their

face, required INS officials in the field to make race- and

nationality-neutral parole determinations. Jd. at 855-56.

The Supreme Court adopted the petitioners’ statement of

the issue:

This case does not implicate the authority of

Congress, the President, or the Attorney General.

Rather, it challenges the power of low-level po-

litically unresponsive government officials to act

in a manner which is contrary to federal statutes

... and the directions of the President and the

Attorney General, both of whom provided for a

policy of non-discriminatory enforcement.

Id. at 853. With this narrow statement of the issue, the

Supreme Court affirmed the Eleventh Circuit’s remand for

a determination of whether INS officials made parole

determinations without regard to race or national origin,

as the government conceded was required in that case. Id.

at 857. The Supreme Court held neither that excludable

aliens have any constitutional rights with regard to their

parole applications, nor that the Executive must maintain

nationality-neutral parole criteria as a policy matter.

The crucial difference between Jean and the instant

case is that, here, the Acting Deputy Commissioner of the

INS has authorized a policy of denying parole to inadmis-

sible Haitian nationals based on specific policy concerns,

including the goals of preventing a mass migration from

Haiti and ensuring the presence of Haitian asylum seekers

at their removal hearings. Accordingly, the Court must

determine whether Becraft, as Acting Deputy Commis-

sioner, has the authority to promulgate such a policy.

App. 31

(2) Authority of Deputy Commissioner to Promul-

gate Policy

By statute, Congress has delegated to the Attorney

General the authority to make parole determinations. See

INA § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). Congress has

also authorized the Attorney General to establish regula-

tions and “perform such other acts as he deems necessary

for carrying out his authority under the provisions of [the

INA].” INA § 103(a)X(3), 8 U.S.C. § 103(a)X(3). In addition,

the statute provides that, “[the Attorney General] may

require or authorize any employee of the [INS] or the

Department of Justice to perform or exercise any of the

powers, privileges, or duties conferred or imposed by this

chapter or regulations issued thereunder upon any other

employee of the [INS].” INA § 103(aX(4), 8 U.S.C.

§ 1103(a)(4).

Pursuant to statutory authority, the Attorney General

has promulgated 8 C.FR. § 212.5 to govern parole

determinations. By regulation, the Attorney General has

delegated the discretionary power to invoke the parole

authority of INA § 212(d)(5)(A) to the INS Commissioner

and certain designees, namely, the Deputy Commissioner,

the Executive Associate Commissioner for Field Opera-

tions, and the regional director. 8 C.FR. § 212.5(a). This

provision was added to the regulations, effective J anuary

29, 2001, in order to clarify that the parole authority

vested in the Attorney General by INA § 212(d)(5) is

delegated to the Commissioner, and that the parole power

flows from the Commissioner to his designated subordi-

nates without divesting the Commissioner or his subordi-

nates of the delegated authority. See 65 Fed. Reg. 82254,

82254-55 (Dec. 28, 2000). Because the regulation explicitly

delegates the Attorney General’s parole authority to the

App. 32

Deputy Commissioner, the Court analyzes the Haitian

adjustment policy established by Acting Deputy Commis-

sioner Becraft in the same manner as if the Attorney

General himself had promulgated the policy.

(3) “Facially Legitimate and Bona Fide Reason”

Having determined that Acting Deputy Commissioner

Becraft possesses sufficient authority to speak for the

Executive branch, the Court reaches the heart of this

dispute, namely, whether the Government is justified in

adjusting its policy so as to result in the differential

treatment of one national group. Here, the law makes

clear that courts generally should defer to the Executive

prerogative:

‘There is little question that the Executive has

the power to draw distinctions among aliens

based on nationality.’ . .. Aliens may be excluded

on grounds that might be ‘suspect in the context

of domestic legislation,’ because ‘there are appar-

ently no limitations on the power of the federal

government to determine what classes of aliens

will be permitted to enter the United States or

what procedures will be used to determine their

admissibility.’

Cuban Am. Bar Ass’n, 43 F.3d at 1427-28 (quoting Jean II,

727 F.2d at 978 n.30, 965 n.5).

Due to the political nature of decisions made by

Congress and the Executive in the immigration area, the

standard of review applicable to immigration decisions is

extremely deferential. A federal court’s scope of review is

limited to ascertaining whether the Government has

advanced “a facially legitimate and bona fide reason” for

OS AVION Ue RE ARE,

sii ane aad:

App. 33

its decision. Garcia-Mir, 766 F.2d at 1484-85 (citing Jean

IT, 727 F.2d at 977); see also Cuban Am. Bar Ass’n, 43 F.3d

at 1427-28. Because the political branches share concur-

rent authority over immigration matters, the same narrow

standard of review applies to actions taken by Congress or

the Executive. Jean II, 727 F.2d at 976. With respect to

parole determinations, the same standard applies to

general policy decisions of high-level Executive officials

and to individual determinations made by INS field

officers. See Garcia-Mir, 766 F.2d at 1485.

(a) The Policy Adjustment

Acting Deputy Commissioner Becraft advances a

number of justifications for the adjusted policy with

respect to undocumented Haitians. First, he notes a sharp

increase in maritime departures from Haiti beginning in

November, 2001, when the Coast Guard reported interdict-

ing vessels carrying a total of 350 Haitian nationals, in

contrast to a total of 96 interdictions in the preceding

three months. (Becraft Decl. 7 6.) After the Coast Guard

rescued 187 Haitian nationals from the Simapvivetzi in

early December, and the reported drowning of two others,

Becraft explains:

In the wake of this sharp increase in dangerous

maritime departures from Haiti, consultations

occurred among officials from several executive

agencies and INS officials, including myself. In

these consultations, the following concerns were

discussed: (1) the possibility that the numbers of

Haitians embarking in U.S.-bound boats would

continue to increase and turn into a mass migra-

tion; (2) that the U.S. should take steps to dis-

courage Haitians from contemplating dangerous

voyages to the United States; (3) that paroling

App. 34

the migrants from the December 3 vessel might

cause others to attempt dangerous maritime de-

partures, placing themselves at risk, or trigger a

mass migration from Haiti to the United States;

(4) that adjusting the INS’ parole criteria with

respect to Haitians arriving by boat in South

Florida, so that the parole criteria would be ap-

plied in a more restrictive manner, would be a

reasonable step to take to address concerns (1) to

(3) above; and (5) that the Haitians from the De-

cember 3 vessel, and other Haitians who might

arrive in a similar fashion in South Florida, are

less likely to appear for their immigration pro-

ceedings or for removal, if they ultimately re-

ceived final orders of removal, given their

demonstrated desperation to depart Haiti.

(Becraft Decl. 7 8.) Based on these considerations, Becraft

states that he exercised his authority under INA

§ 212(d)(5) and 8 C.F.R. § 212.5(a), and instructed the

Office of Field Operations to adjust its parole criteria with

regard to inadmissible Haitians arriving in South Florida

so that no Haitian would be released without INS Head-

quarters approval. (d.) After Becraft’s instructions were

communicated to the Miami office, local officials continued

to review the parole applications of arriving Haitians and

released individuals with unusual hardships, such as

pregnant women and unaccompanied minors. (Lee Decl.

q 12.)

When analyzing an Executive official’s exercise of

discretion, a court must avoid overriding the policy deter-

mination of the Attorney General’s designee. See Garcia-

Mir, 766 F.2d at 1485. The Court need not agree with the

policymaker’s choice nor approve of the policy reasons

underlying it; rather, the Court must only ascertain

bibsateis es Ti uy

App. 35

whether the Government has advanced a facially legiti-

mate and bona fide reason supporting the decision. See id.

(citing Jean II, 727 F.2d at 977). Here, the Court finds that

preventing loss of life and avoiding a mass migration from -

Haiti are facially legitimate and bona fide reasons for

detaining Haitian nationals who arrive by boat in South

Florida. This conclusion is supported by the declaration of

U.S. Coast Guard Lieutenant Bryan E. Clampitt, indicat-

ing that at least eighteen Haitian migrants died attempt-

ing to reach the shores of South Florida in the past year, in

addition to the two who reportedly drowned attempting to

swim ashore from the Simapvivetzi.* (Clampitt Decl. 7] 4-

5.) Lieutenant Clampitt also states that the Coast Guard

interdicted approximately thirty vessels containing Hai-

tian migrants between March 15, 2001 and March 15,

2002, and that almost all such vessels must be destroyed

by the Coast Guard after interdiction, due to their unsea-

worthy condition. (Id. ] 3.) In light of such credible evi-

dence from Executive officials of recurring loss of life and

the potential for future danger and large-scale loss of life,

the Court may not further scrutinize the policy choices

made by the properly delegated Executive officials.

In addition, parole determinations normally take

account of the possibility that an excludable alien may

“In addition, the Coast Guard recently rescued 73 Haitian

survivors from a 35-foot sailboat that capsized near the Bahamas.

When the Coast Guard suspended its search for survivors on May 11,

2002, thirteen Haitians were reported dead, and another fourteen

remained missing. See Anabelle de Gale, One Body Recovered, but

Search Suspended for Haitians at Sea, Miami Herald, May 12, 2002.

App. 36

abscond to avoid being returned to his or her home coun-

try. See, e.g. Garcia-Mir, 766 F.2d at 1485; Bertrand, 684

F.2d at 214-18. Here, Acting Deputy Commissioner Becraft

concluded that Haitians arriving by boat would be less

likely to appear for immigration proceedings, given their

demonstrated desperation to leave Haiti. (Becraft Decl.

q 8.) The Court finds that this is a facially legitimate and

bona fide reason to deny parole, and, therefore, the Court

will not speculate as to whether the same goal could be

achieved through alternative means.

(b) Individualized Determinations

Having determined that the Haitian adjustment

policy is supported by a facially legitimate and bona fide

reason, the only remaining question is whether low-level

Miami officials implemented the policy as intended by the

policymakers. The Officer in Charge of INS Krome Service

Processing Center indicates that after receiving Becraft’s

instructions on December 14, 2001, the deportation offi-

cers in Miami continued to review Haitians’ parole re-

quests on an individual, case-by-case basis. (Lee Decl.

¥ 12.) Lee himself recommended to Headquarters the

release of approximately fifteen Haitians with cases of

unusual hardship, and Headquarters approved of parole in

those cases. (/d.)

Petitioners do not allege that they are entitled to

release under the adjusted policy. In addition, none of the

named Petitioners’ parole applications indicates any

unusual hardship that would qualify for consideration by

Headquarters. Based on the record, the Court finds that

Miami officials have implemented the policy as established

by high-level INS officials. Because the policy is supported

App. 37

by a facially legitimate and bona fide reason, the Court

concludes that the named Petitioners were properly denied

parole.

E. APA Challenges

The APA provides that “[a] person suffering legal

wrong because of agency action, or adversely affected or

aggrieved by agency action within the meaning of a

relevant statute, is entitled to judicial review.” 5 U.S.C.

§ 702. However, judicial review is not available under the

APA where otherwise precluded by statute. 5 U.S.C.

§ 701(a)(1). In the instant case, the INA precludes judicial

review of any decision or action of the Attorney General

“the authority for which is specified under [title II of the

INA] to be in the discretion of the Attorney General.” INA

§ 242(a)(2)(BXii), 8 U.S.C. § 1252(a)(2)(B)(ii). Thus, the

APA does not provide a basis for Petitioners to challenge

the Attorney General’s exercise of discretion in denying

their parole requests. See, e.g., St. Cyr, 121 S. Ct. at 2285-

86.

Petitioners also argue that the INS’s policy toward

Haitians is subject to the APA’s “notice and comment”

rulemaking requirements, 5 U.S.C. § 533 et seq. Here,

Petitioners claim that the Government's adjustment of

policy violated the APA's statutory requirements, not that

it constituted an abuse of discretion. Thus, INA

§ 242(a)(2)(BXii) does not preclude jurisdiction. The Court

may address this claim under habeas jurisdiction because

if the APA required notice-and-comment rulemaking for

the policy pursuant to which Petitioners were held, their

detention could be “in violation of ... the laws ... of the

United States.” 28 U.S.C. § 2241(c\3). The Government

App. 38

contends that the current policy toward Haitians is

“merely an adjustment to the INS’s Detention Use Guide-

lines, limited to one district.” (Resp. at 31.) The Govern-

ment maintains that its actions toward Haitians are

exempt from the APA’s rulemaking requirements under

the “general policy statement” and “foreign affairs” excep-

tions.

The APA defines a “rule” as “the whole or a part of an

agency statement of general or particular applicability and

future effect designed to implement, interpret, or prescribe

law or policy or describing the organization, procedure, or

practice requirements of an agency. ...” 5 U.S.C. § 551(4).

As the definition of “rule” is quite broad, the APA provides

a number of exceptions that permit promulgation of

certain rules without recourse to the rulemaking proce-

dures. One exception is for “general statements of policy,”

a term not defined by statute. 5 U.S.C. § 553(b)(3)(A). “A

critical test of whether a rule is a general statement of

policy is its practical effect in a subsequent administrative

proceeding: A general statement of policy ... does not

establish a ‘binding norm.’ It is not finally determinative of

the issues or rights to which it is addressed.” Guardian

Fed. Sav. & Loan Assoc. v. Fed. Sav. & Loan Ins. Corp.,

191 U.S. App. D.C. 135, 589 F.2d 658, 666 (D.C. Cir. 1978),

cited with approval in Ryder Truck Lines, Inc. v. United

States, 716 F.2d 1369, 1377 (11th Cir. 1983); Jean J, 711

F.2d at 1480-83 (vacated as moot).

Here, the policy adjustment does not establish a

binding norm because it does not finally dispose of an

individual Haitian’s parole application. The Detention Use

Policy, which was not promulgated as a rule, specifically

states, “Although parole is discretionary in all cases where

it is available, it is INS policy to favor release of aliens

App. 39

found to have a credible fear of persecution.... ” The

adjusted policy does not negate the discretionary nature of

the parole determination, and it does not prevent INS

officials from granting parole. Instead, the adjustment

only requires that Miami officials obtain Headquarters’

approval before granting parole to a Haitian who did not

arrive by regular means at a designated port of entry. The

policy allows Miami officials to release pregnant women

and juveniles with approved sponsors on parole without

obtaining Headquarters approval, and it allows them to

forward any other case of unusual hardship to Headquar-

ters for approval. Even under the adjusted policy, each

case receives individual consideration. Therefore, the

adjustment does not establish a “binding norm,” and it

need not be promulgated as a rule under the APA.””

IV. Conclusion

When Petitioners boarded the Simapvivetzi, they

risked their lives in search of freedom and democracy in

the United States. Paramount within our democratic

values is the separation of powers among the three co-

equal branches of government. The law teaches us that the

power to control a nation’s borders is so fundamental to its

sovereignty that we must abide by the lawfully enacted

policy decisions made by the Legislative and Executive

branches, or seek change at the ballot box. In immigration

matters, neither individuals nor the Court can substitute

" Because the Court finds that the Haitian policy qualifies for the

“general statement of policy” exception to the APA rulemaking require-

ments, the Court need not decide whether the politically sensitive

“foreign affairs” exception applies.

App. 40

their policy perspectives for the judgments made by

Executive officials, based upon facially legitimate and

bona fide reasons, pursuant to statutory and delegated

authority.

As the Court has determined that a writ of habeas

corpus shall not issue, no basis exists for the issuance of a

preliminary injunction or temporary restraining order, or

any further action in this matter. Accordingly, it is

ORDERED AND ADJUDGED that:

1. Petitioners’ Emergency Motion for Temporary

Restraining Order and/or Preliminary Injunction or Class

Writ of Habeas Corpus, and for an Immediate Hearing

(D.E. 2), filed March 15, 2002, is DENIED.

2. The Class Action Petition for Writ of Habeas

Corpus and Complaint for Injunctive and Declaratory

Relief (D.E. 1), filed March 15, 2001, is DISMISSED.

3. This case is CLOSED.

4. All motions not otherwise ruled upon by separate

order are DENIED AS MOOT.

DONE AND ORDERED in Chambers at Miami,

Florida this 17 day of May, 2002.

JOAN A. LENARD

UNITED STATES DISTRICT JUDGE

be me eee ree

App. 41

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 02-13009-DD

HEDWICHE JEANTY,

BRUNOT COLAS,

et al.,

Plaintiffs-Appellants,

versus

JOHN M. BULGER, Acting Director for District 6,

Immigration and Naturalization Service,

MICHAEL GARCIA, Acting Commissioner,

Immigration and Naturalization Service, et al.,

Defendants-Appellees.

On Appeal from the United States District Court

for the Southern District of Florida

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

(Opinion » 11th Cir, 19__,_ = F2d___),

Before: WILSON and FAY, Circuit Judges and LIM-

BAUGH%, District Judge.

* Honorable Stephen N. Limbaugh, United States District

Judge for the Eastern District of Missouri, sitting by designation.

App. 42

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member

of this panel nor other Judge in regular active service on

the Court having requested that the Court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the Petition(s) for

Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/

UNITED STATES CIRCUIT JUDGE

App. 43

8 U.S.C. § 1182(d)(5)(A), I.N.A. § 212(d)(5)(A)

§ 1182. Inadmissible aliens

(d) Temporary admission of nonimmigrants

* * *

(S)(A) The Attorney General may, except as provided in

subparagraph (B) or in section 1184(f) of this title, in his

discretion parole into the United States temporarily under

such conditions as he may prescribe only on a case-by-case

basis for urgent humanitarian reasons or significant

public benefit 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 Attor-

ney General, 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 manner as that of any other applicant for

admission to the United States.

8 U.S.C. § 1182(d) (1982), I.N.A. § 212(d) (1982)

§ 1182(d). Temporary admission of nonimmigrants

* * *

(5A) The Attorney General may, except as provided in

subparagraph (B), in his discretion parole into the United

States temporarily under such conditions as he may

prescribe for emergent reasons or for reasons deemed

strictly in the public interest any alien applying for admis-

sion 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 General, have been served the alien shall

App. 44

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 manner as that of any other appli-

cant for admission to the United States.

8 C.F.R. § 212.5

§ 212.5 Parole of aliens into the United States.

(b) The parole of aliens within the following groups who

have been or are detained in accordance with § 235.3(b)

or (c) of this chapter would generally be justified only

on a case-by-case basis for “urgent humanitarian rea-

sons” or “significant public benefit,” provided the aliens

present neither a security risk nor a risk of abscond-

ing:

(1) Aliens who have serious medical conditions in

which continued detention would not be appro-

priate;

(2) Women who have been medically certified as

pregnant;

(3) Aliens who are defined as juveniles in § 236.3(a)

of this chapter... .

(4) Aliens who will be witnesses in proceedings

being, or to be, conducted by judicial, administra-

tive, or legislative bodies in the United States; or

(5) Aliens whose continued detention is not in the

public interest as determined by the district di-

rector or chief patrol agent.

detained under § 235.3(b) or (c) of this chapter and

paragraph (b) of this section, the district director or

chief patrol agent may, after review of the individual

(d)

App. 45

case, parole into the United States temporarily in ac-

cordance with section 212(d)(5\A) of the Act, any

alien applicant for admission, under such terms and

conditions, including those set forth in paragraph (d)

of this section, as he or she may deem appropriate.

An alien who arrives at a port-of-entry and applies

for parole into the United States for the sole purpose

of seeking adjustment of status under section 245A of

the Act, without benefit of advance authorization as

described in paragraph (f) of this section shall be de-

nied parole and detained for removal in accordance

with the provisions of § 235.3(b) or (c) of this chapter.

An alien seeking to enter the United States for the

sole purpose of applying for adjustment of status un-

der section 210 of the Act shall be denied parole and

detained for removal under § 235.3(b) or (c) of this

chapter, unless the alien has been recommended for —

approval of such application for adjustment by a con-

sular officer at an Overseas Processing Office.

Conditions. In any case where an alien is paroled

under paragraph (b) or (c) of this section, the district

director or chief patrol agent may require reasonable

assurances that the alien will appear at all hearings

and/or depart the United States when required to do

so. Not all factors listed need be present for parole to

be exercised. The district director or chief patrol

agent should apply reasonable discretion. The con-

sideration of all relevant factors includes:

(1) The giving of an undertaking by the applicant,

counsel, or a sponsor to ensure appearances or

departure, and a bond may be required on Form

I-352 in such amount as the district director or

chief patrol agent may deem appropriate;

(2) Community ties such as close relatives with

known addresses; and

App. 46

(3) Agreement to reasonable conditions (such as

periodic reporting of whereabouts).

* * *

App. 47

8 C.F.R. § 212.5 (1985)

§ 212.5 Parole of aliens into the United States.

(a) In determining whether or not aliens who have been

or are detained in accordance with § 235.3(b) or (c) will be

paroled out of detention, the district director should

consider the following:

(a1) The parole of aliens who have serious medical

conditions in which continued detention would not be

appropriate would generally be justified by “emergent

reasons’;

(a)(2) The parole of aliens within the following groups

would generally come within the category of aliens for

whom the granting of the parole exception would be

“strictly in the public interest", provided that the aliens

present neither a security risk nor a risk of absconding:

(a)(2)(i) Women who have been medically certified as

pregnant;

(a)(2)(ii) Aliens who are defined as juveniles should only

be placed in a juvenile facility or with an appropriate

responsible agency or institution, recognized or licensed to

accommodate juveniles by the laws of that State. A juve-

nile is generally defined as a person subject to the jurisdic-

tion of a juvenile court. To determine what constitutes

legal age or exceptions to the above definition in a particu-

lar State, the laws of the state where the alien is physi-

cally present will apply. Children of tender years who are

too young to be placed in a juvenile facility or youth hall,

and older juveniles who it is anticipated will remain in

detention for a period longer than thirty days, should be

placed with relatives or friends. In those extreme cases

where it is impossible to accommodate a child of tender

App. 48

years accompanied by an adult or juvenile who will or has

remained in detention for periods of over 30 days, consid-

eration should be given to paroling the juvenile with the

accompanying adult to a responsible agency, relative, or

friend. When it is determined that such juvenile should be

paroled from detention, the following guidelines should be

followed:

(a)(2)Gi(A) Juveniles may be released to a relative

(brother, sister, aunt, uncle) not in Service detention who

is willing to sponsor a minor and the minor may be re-

leased to that relative notwithstanding that he has a

relative who is in detention.

(a)(2)Gi)(B) Ifa relative who is no: in detention cannot be

located to sponsor the minor, the minor may be released

with an accompanying relative whois in detention.

(a)(2)(GiiC) If the Service cannot locate a relative in or

out of detention to sponsor the minor, but the minor has

identified a nonrelative in detention who accompanied him

on arrival, the question of releasing the minor and the

accompanying nonrelative adult shall be addressed on a

case-by-case basis.

(a)(2)(iii) Aliens who have close family relatives in the

United States (parent, spouse, children, or siblings who

are United States citizens or lawful permanent resident

aliens) who are eligible to file, and have filed, a visa

petition on behalf of the detainee;

(a)(2)(iv) Aliens who will be witnesses in proceedings

being, or to be, conducted by judicial, administrative, or

legislative bodies in the United Staves:

(a)(2Xv) Aliens whose continued detention is not in the

public interest as determined by the district director.

App. 49

(a)(3) Aliens subject to prosecution in the United States

who are needed for the purposes of such prosecution may

be paroled to the custody of the appropriate responsible

agency or prosecuting authority.

(b) In the cases of all other arriving aliens except those

detained under § 235.3(b) or (c), and paragraph (a) of this

section, the district director in charge of a port of entry

may, prior to examination by an immigration officer, or

subsequent to such examination and pending a final deter-

mination of inadmissibility 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 accordance with section 212(d) (5) of

the Act any such alien applicant for admission at such port

of entry under such terms and conditions, including those

set forth in paragraph (c) of this section, as he may deem

appropriate.

under paragraph (a) or (b) of this section, the district

director may require reasonable assurances that the alien

will appear at all hearings and/or depart the United States

when required to do so. Not all factors listed need be

present for parole to be exercised. The district director

should apply reasonable discretion. The consideration of

all relevant factors includes:

(cX1) The giving of an undertaking by the applicant,

counsel, or a sponsor to ensure appearances, and a bond

may be exacted on Form I-352 in such amount as the

district director may deem appropriate;

(cX2) Community ties such as close relatives with known

addresses; and (c)(3) Agreement to reasonable conditions

(such as periodic reporting of whereabouts).

App. 50

(d) Termination of parole — (d)(1) Automatic. Parole shall

be automatically terminated without written notice (i)

upon the departure from the United States of the alien, or,

(ii) if not departed, at the expiration of the time for which

parole was authorized, and in the latter case the alien

shall be processed in accordance with paragraph (d) (2) of

this section except that no written notice shall be required.

(d)(2) On notice. In cases not covered by paragraph (d) (1)

of this section, upon accomplishment of the purpose for

which parole was authorized or when in the opinion of the

district director in charge of the area in which the alien is

located neither emergency nor public interest warrants

the continued presence of the alien in the United States,

parole shall be terminated upon written notice to the alien

and he or she shall be restored to the status which he or

she had at the time of parole. Any further inspection or

hearing shall be conducted under section 235 or 236 of the

Act and this chapter, or any order of exclusion and depor-

tation previously entered shall be executed. If the exclu-

sion order cannot be executed by deportation within a

reasonable time, the alien shall again be released on

parole unless in the opinion of the district director the

public interest requires that the alien be continued in

custody.

(e) Advance authorization. When parole is authorized for

an alien who will travel to the United States without a

visa, the alien shall be issued Form I- 512.

Se a aes De ARI il ait Nill ion a br

PN Asn Naa wl TO te ti Ri Dee: Re eS AE a

App. 51

8 U.S.C. § 1252(a)(2)(B) Gi)

I.N.A. § 242(a)(2)(B) (ii)

§ 1252. Judicial review of orders of removal.

(a) Applicable provisions

(2)

* * *

Matters not subject to judicial review

* * *

(B) Denials of discretionary relief Notwithstand-

ing any other provision of law, no court shail

have jurisdiction to review-

* *

(ii) any other decision or action of the

Attorney General the authority for which is

specified under this subchapter, to be in the

discretion of the Attorney General, other

than the granting of relief under section

1185(a) of this title.

App. 52

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

ERNEST MOISE, HEDWICHE

JEANTY, BRUNOT COLAS,

JUNIOR PROSPERE, PETERSON

BELIZAIRE, and LAURENCE

ST. PIERRE, on behalf of themselves

and all others similarly situated,

Case No.

Petitioners/Plaintiffs,

)

VS. )

JOHN M. BULGER, Acting Director ?

for District 6, Immigration and )

Naturalization Service, JAMES W. )

ZIGLAR, Commissioner, Immigration )

and Naturalization Service, JOHN?

ASHCROFT, Attorney General of

AND NATURALIZATION SERVICE, ?

and UNITED STATES )

DEPARTMENT OF JUSTICE,

)

Respondents/Defendants.

CLASS ACTION PETITION FOR WRIT OF

HABEAS CORPUS AND COMPLAINT FOR

INJUNCTIVE AND DECLARATORY RELIEF

1. Petitioners are Haitian asylum seekers detained

in the Southern District of Florida under a policy of the

Immigration and Naturalization Service (INS) that refuses

them individualized determinations of their release

requests and denies them release because of their race

and/or national origin. On or about December 3, 2001, INS

enforcement officials in South Florida began disregarding

the facially neutral parole provision of the Immigration

App. 53

and Nationality Act (INA) and INS regulations and com-

menced a policy of detaining all Haitian asylum seekers in

the credible fear asylum process. Since December 3, 2001,

INS has detained in custody over 240 Haitian asylum

seekers in the credible fear asylum process and has

released only three pregnant women and one man. Even in

cases in which Haitians have been granted asylum by an

immigration judge, INS has reserved appeal and refused

to release the Haitians.

2. In November 2001, prior to the change in policy,

INS officials in South Florida released 96 percent of all

eligible Haitian asylum seekers in the credible fear asylum

process. Those INS officials continue to release similarly

situated asylum seekers of other nationalities at a high

rate. They have released non-Haitian asylum seekers who

arrived from December 1, 2001 to February 15, 2002 at a

rate of 91 percent.

3. INS officials in South Florida have engaged in

deliberate deception by denying the existence of the

Haitian policy. They have also issued over a hundred

deliberately false and misleading decisions denying

Haitians release on parole. These decisions contain false

reasons for denial and are an attempt to deceive the

Haitians about the true reasons they are being refused

release.

4. On behalf of themselves and all others similarly

situated, Petitioners challenge their incarceration as

violating the facially neutral parole provision of the INA

and INS regulations, as well as the equal protection and

due process protections of the fifth amendment to the

United States Constitution. Petitioners further challenge

App. 54

the INS policy of incarcerating Haitians as violating the

Administrative Procedures Act (APA).

5. Petitioners, on behalf of themselves and all others

similarly situated, request this Court to issue a prelimi-

nary injunction or; in the alternative, a class writ of

habeas corpus to compel the Respondents to:

(a) immediately release Petitioners and class

members who are being held unlawfully on ac-

count of their nationality and/or race;

(b) cease using race and/or nationality as a fac-

tor in adjudicating requests filed by Haitian asy-

lum seekers who have passed their credible fear

interviews or who are otherwise eligible to be

considered for release;

release on a case-by-case ' usis in accordance

with 8 U.S.C. § 1182(d)(5).A), 8 C.FR. § 212.5,

and the equal protection and due process protec-

tions guaranteed by the fifth amendment to the

United States Constitution;

(d) reevaluate all denied requests for release

filed by Haitian asylum seekers since Decem-

ber 3, 2001 in accordance with 8 U.S.C.

§ 1182(d)(5)(A), 8 C.F.R. § 212.5, and the equal

protection and due process protections guaran-

teed by the fifth amendment to the United States

Constitution; and

(e) provide accurate notice of the reasons for the

denial of a release request; and

(f) complete (a) through (e) within ten (10) days.

ee eee Tee en

i ne Wnt nt.

App. 55

JURISDICTION

6. Jurisdiction is conferred on the Court under 28

U.S.C. § 2241, Art. I, §9, cl. 2 of the United States Consti-

tution, 28 U.S.C. § 1361, 28 U.S.C. § 1331(a), and 5 U.S.C.

§§ 701-706. This Court has jurisdiction to grant declara-

tory relief pursuant to 28 U.S.C. §§ 2201 and 2202 and

Fed. R. Civ. P. 57 and 65.

VENUE

7. Venue in the Southern District of Florida is proper

pursuant to Title 28 U.S.C. § 1891(e) because Defendant

John M. Bulger, Acting Director of District 6, Immigration

and Naturalization Service, resides in the Southern

District of Florida, as do all members of the Petitioner

class.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

8. Petitioners have exhausted their administrative

remedies. No statutory exhaustion requirements apply to

Petitioners’ claims.

PAR‘ TES

Petitioners

9. Petitioner ERNEST MOISE is a Haitian asylum

seeker detained by INS in Miami, Florida. He is detained

with his minor children. Mr. Moise fled Haiti because

members of the Lavalas political party threatened to kill

him numerous times on account of his support of an

opposing political party. Fearing for his own safety and the

App. 56

safety of his family, Mr. Moise and his minor children fled

Haiti by boat.

10. The boat arrived in the United States on Decem-

ber 3, 2001 and, upon its arrival, INS detained Mr. Moise

and his children. Mr. Moise was interviewed by an officer

of the INS Asylum Office and found to have a significant

possibility of being eligible for asylum. The officer further

found that he had sufficiently established his identity.

11. On January 23, 2002, Mr. Moise filed a written

release request with INS requesting that he be released on

temporary parole. On January 31, 2002, the INS denied

this request, finding that Mr. Moise was a flight risk

“based on the particular facts of [his] case, including

manner of entry.” The decision -does not specify what

“particular facts” or what about Mr. Moise’s manner of

entry makes him a flight risk. INS issued the decision on a

standardized form containing five reasons for denial. INS

indicated its reason for denial by putting a check mark

next to the applicable reason.

12. On February 22, 2002, an immigration judge

granted asylum to Mr. Moise and his two children. The

INS reserved appeal and still refuses to release Mr. Moise.

13. Mr. Moise and his family are suffering substan-

tial psychological harm due to their prolonged incarcera-

tion. He and his children are locked in one room during

the day and night and have no contact with anyone be-

sides INS officers. INS does not give them access to recrea-

tion. They are given food that they must eat in their room.

The children are not provided with any education and

have nothing to do besides play cards and watch televi-

sion. They cry and ask their father why they are being

detained and why they cannot go to school. Moreover, the

PS et ae ee ee

App. 57

children are separated from their mother, who is detained

at a different location.

14. Petitioner HEDWICHE JEANTY is a Haitian

asylum seeker detained by INS at the Krome Service

Processing Center in Miami, Florida. He fled to the United

States after members of the Lavalas political party threat-

ened to kill him and shot at his house due to his political

activities.

15. On December 3, 2001, Mr. Jeanty arrived in the

United States by boat and was detained by INS. An officer

of the INS Asylum Office interviewed him and found that

there is a significant possibility that he will be eligible for

asylum. The officer further found that he had established

his identity.

16. Mr. Jeanty submitted a letter requesting that he

be released on temporary parole. INS denied this request

in a letter dated January 28, 2002, finding that Mr. Jeanty

was a flight risk “based on the particular facts of [his]

case, including manner of entry.” The decision does not

specify what “particular facts” or what about Mr. Jeanty’s

manner of entry makes him a flight risk. INS issued the

decision on a standardized form containing five reasons for

denial. INS indicated its reason for denial by putting a

check mark next to the applicable reason.

17. Mr. Jeanty is suffering significant harm from

being detained. He is held in an overcrowded facility that

is dirty and does not provide adequate clean clothes. Due

to his inability to speak English and the lack of legal

assistance at the detention center, he is confused by the

legal process and, prior to the intervention of undersigned

counsel, was unable to properly fill out his application for

asylum. Moreover, he is subject to an expedited hearing

App. 58

process on a special court docket for Haitians and is being

deprived of a full and fair opportunity to present his

asylum claim.

18. Petitioner BRUNT COLAS is a Haitian asylum

seeker detained by the INS at the Krome Service Process-

ing Center in Miami, Florida. He fled Haiti after he was

attacked multiple times by members of the Lavalas

political party due to his political activities. Mr. Colas

arrived by boat in the United States on December 3, 2001

and was detained by INS. The INS Asylum Office found

that there is a significant possibility that Mr. Colas will be

eligible for asylum and that he had established his iden-

tity.

19. On January 15, 2002, Mr. Colas filed a written

request for his release with Respondent John Bulger,

— Acting District Director. INS denied this request, finding

that Mr. Colas was a flight risk “based on the particular

facts of [his] case, including manner of entry.” The decision

does not specify what “particular facts” or what about Mr.

Colas’s manner of entry makes him a flight risk. INS

issued the decision on a standardized form containing five

reasons for denial. INS indicated its reason for denial by

putting a check mark next to the applicable reason.

20. Mr. Colas has suffered significant harm on

account of his detention. He is detained in overcrowded

conditions and, prior to the intervention of undersigned

counsel, Mr. Colas was unable to properly complete his

application for asylum. Moreover, he is subject to an

expedited hearing process on a special court docket for

Haitians and is being deprived of a full and fair opportu-

nity to present his asylum claim.

EO eee

App. 59

21. Petitioner JUNIOR PROSPERE is a Haitian

asylum seeker detained by INS at the Krome Service

Processing Center in Miami, Florida. He left Haiti because

members of the Lavalas political party beat him and his

brother and threatened to kill them on account of their

support for an opposing political party. Mr. Prospere

decided to flee Haiti.

22. On December 3, 2001, Mr. Prospere arrived in

the United States by boat and was detained by INS. An

officer of the INS Asylum Office of the INS interviewed

him and found that there is a significant possibility that

he will be eligible for asylum. The officer further found

that he had established his identity.

23. Mr. Prospere submitted a letter requesting that

he be released on temporary parole. INS denied this

request, finding that Mr. Prospere was a flight risk “based

on the particular facts of [his] case, including manner of

entry.” The decision does not specify what “particular

facts” or what about Mr. Prospere’s manner of entry makes

him a flight risk. INS issued the decision on a standard-

ized form containing five reasons for denial. INS indicated

its reason for denial by putting a check mark next to the

applicable reason.

24. Mr. Prospere is suffering significant harm due to

his prolonged incarceration. The air conditioning at the

detention center makes the air so cold and dry that his

nose and ears bleed. INS fails to provide him with enough

warm clothes and does not permit him to use a blanket for

warmth during the day. He is also unable to obtain enough

clean clothes and must wear the same uniform for up to

one week Moreover, he is subject to an expedited hearing

process on a special court docket for Haitians and is being

eee lia eee

App. 60

deprived of a full and fair opportunity to present his

asylum claim.

25. Petitioner PETERSON BELIZAIRE is a Haitian

asylum seeker detained by the INS at the Krome Service

Processing Center in Miami, Florida. Mr. Belizaire fled

Haiti after a member of the Lavalas political party threat-

ened him and his family multiple times and his aunt was

beaten to death. Mr. Belizaire arrived in the United States

by plane on January 17, 2002 and was detained by INS.

An officer of the INS Asylum Office of the INS interviewed

him and found that there is a significant possibility that

he will be eligible for asylum. The officer further found

that he had established his identity.

26. On several occasions, Mr. Belizaire filed written

requests for his release with INS. INS has not responded

to Mr. Belizaire’s requests and refuses to release him

based on the INS illegal practice of not releasing Haitians

alleged herein.

27. Mr. Belizaire is suffering substantial mental and

physical harm as a result of his detention. He is detained

in overcrowded conditions and has special medical needs

due to back and knee injuries. These needs are not being

met and, as a result, Mr, Belizaire suffers from chronic

pain. Moreover, he is subject to an expedited hearing

process on a special court docket for Haitians and is being

deprived of a full and fair opportunity to present his

asylum claim.

28. Petitioner LAURENCE ST. PIERRE is a Haitian

asylum seeker detained by INS at the Turner Guilford

Knight Correctional Center in Miami, Florida. She fled

Haiti after she was beaten and raped by members of the

Lavalas political party. Ms. St. Pierre was forced to leave

ER AE ee IP ha Oe

App. 61

her children behind in Haiti. Ms. Si. Pierre arrived by boat

in the United States on December 3, 2001 and was de-

tained by INS. An officer of the INS Asylum Office of the

INS interviewed her and found that there is a significant

possibility that she will be eligible for asylum. The officer

further found that she had established her identity.

29. On February 7, 2002, Ms. St. Pierre filed a

written request for her release with Respondent John

Bulger, Acting District Director. Mr. Bulger has not re-

sponded to Ms. St. Pierre’s request and refuses to release

her based on the INS illegal practice of not releasing

Haitians alleged herein.

30. Ms. St. Pierre is suffering substantial psycho-

logical harm from being detained. She was raped in Haiti

and feels retraumatized by the experience of being in

detention. Ms. St. Pierre is locked in a cell with no other

people for long periods of time and is served food that is

often spoiled or otherwise not edible. Only one of the

detention officers speaks Creole, so she is often unable to

understand what is happening. She is scared of some

officers who yell at her. There is virtually no one to give

legal assistance to her and the other Haitian women

detained at the Turner Guilford Knight Correctional

Center. Moreover, she is subject to an expedited hearing

process on a special court docket for Haitians and is being

deprived of a full and fair opportunity to present her

asylum claim.

Respondents

31. Respondent JOHN M. BULGER is sued in his

official capacity as the Acting Director for District 6 of the

INS. As Acting District Director, he is a legal custodian of

App. 62

Petitioners and responsible for adjudicating their release

requests.

32. Respondent JAMES W. ZIGLAR is sued in his

official capacity as the Commissioner of the INS, an

agency of the U.S. Department of Justice. He is responsi-

ble for the administration of the INS and the implementa-

tion and enforcement of the immigration laws of the

United States. He is a legal custodian of Petitioners and is

responsible for overseeing the adjudication of their release

requests.

33. Respondent JOHN ASHCROFT is sued in his

official capacity as the Attorney General of the United

States. He is responsible for the administration and

enforcement of the immigration laws pursuant to 8 U.S.C.

§ 1103 and is a legal custodian of Petitioners. He oversees

the unlawful policy of refusing release to Haitian asylum

seekers on account of their race and/or nationality that is

alleged herein.

34. Respondent IMMiGRATION AND NATURALI-

ZATION SERVICE is an agency of the United States

Department of Justice and is the agency responsible for

enforcing the immigration laws.

35. Respondent UNITED STATES DEPARTMENT

OF JUSTICE is a department of the executive branch of

the United States government and is responsible for

enforcing the immigration laws.

CLASS ACTION ALLEGATIONS

36. Pursuant to Fed. R. Civ. P. 23(a) and 23(b1) and

(b)(2), Petitioners bring this action on behalf of themselves

App. 63

and all other similarly situated individuals. ios Petitioner

class consists of:

All detained Haitian aliens in the Southern Dis-

trict of Florida who arrived on or after December

3, 2001 who are applying for admission into the

United States, have passed their “credible fear”

interviews with the Asylum Office of the INS,

and are in detention pending removal proceed-

ings, for whom a final order of removal has not

been entered.

37. The class is so numerous that joinder of all

memb

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