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Cuban American Bar Assn v. Christopher: Memomorandum of Points in Support of Motion to Intervene
                  UNITED STATES DISTRICT COURT                    
                  SOUTHERN DISTRICT OF FLORIRA                    
                                   CASE NO.: 94-2183-CIV-ATKINS   
                                                                  

     CUBAN AMERICAN BAR ASS0CIATION, INC.    )                    
     et. al.                                 )                    

               Plaintiff,                    )                    
                                             )                    

     vs.                                     )                    

     WARREN CHRISTOPHER, et. al.             )                    
               Defendents,                   )                    
     HAITIAN REFUGEE CENTER, INC.,           )                    
     et. al.                                 )                    
     Intervenors.                            )                    

  ___________________________________________)                    

MEMORANDUM OF POINTS AND AUTHORIZES IN SUPPORT OF MOTION TO INTERVENE

Haitian Refugee Center, Inc., Garry Joseph, Paulonme and, Pierrd Onel Antoine, Voidieu Jean Louis, Bergeline Jean Louis and Padeci Jean Louis (referred to collectively as "HRC"), on behalf of themselves and all others similarly situated, by their undersigned attorneys, respectfully submit this memorandum of points and authorities in support of their motion to intervene as plaintiffs in the above-captioned matter.

INTRODUCTION

The pending Complaint in this action seeks injunctive and declaratory relief for certain "Detained Refugee Plaintiffs" and all others similarly situated, by their undersigned attorneys, as and for their complaint, allege as follows:

I. NATURE OF THE ACTION

1. This is a complaint for declaratory and injunctive relief arising from the detention by the Defendants (hereafter referred to collectively as "United States" or "government") of certain Haitian refugees at the United States Naval Base in Guantanamo Bay, Cuba. In particular, Intervenor-Plaintiffs (hereafter referred to collectively as "HRC" or "the Haitian refugees") allege that the government is acting in violation of applicable laws and regulations and seek relief to:

(a) enjoin the government from obstructing, discriminating against and interfering with the Haitian refugees' right to access to counsel, including attorneys and representative of HRC, and family members;

(b) enjoin the government from encouraging and implementing the involuntary repatriation of the Haitian refugees through a coercive environment which includes obstruction of access to counsel, the provision of false, misleading or inaccurate information regarding conditions in Haiti, and inhumane detention conditions; (c) enjoin the government from preventing the Haitian refugees from applying for refugee or asylum status;

(d) enjoin the government from denying parole to the approximately two hundred thirty (230) unaccompanied minor Haitian refugees who are suffering extreme trauma and distress as a result of their confinement at Guantanamo;

(e) enjoin the government from withholding from HRC the identifies of the Haitian refugees, thereby preventing the refugees' friends and relatives in the United States from learning of their fate;

(f) enjoin the government from denying the Haitian refugees acceptable conditions of confinement, including due process of law. and

(g) enjoin the government from providing unequal treatment, opportunities and protection under the law to the Haitian and Cuban refugees detained at Guantanamo Bay.

2. Currently, there are approximately six thousand Haitian refugees being detained by the United States in Guantanamo. Beginning in or about July l994, and continuing on an almost daily basis, the government has been repatriating groups of Haitian refugees through a coercive and forced environment in which the Haitians -- by virtue of their lack of access to counsel and accurate information, by virtue of incomplete and misleading information provided by the government, and because of the inhumane conditions of confinement, select the only option available to them: return to Haiti. On October 24, 1394. for example, the government repatriated approximately four hundred Haitian refugees. The threat of ongoing repatriations is imminent. All such repatriations under these conditions will cause irreparable harm to the repatriated Haitians.

3. The government's conduct will continue to cause irreparable harm through coerced and involuntary repatriations of Haitian refugees, the denial of basic due process and other rights to Haitians living in the detention camps at Guantanamo, and will cause particular harm to the approximately 230 unaccompanied minor child-en detained ac Guantanamo in traumatic and unhealthy conditions.

4. The threat of additional harm is imminent. On information and belief, the government has directed the dismantling of the Haitian -refugee camps at Guantanamo Bay within the next few months. The government mistakenly assumes that these Haitian refugees no longer are entitled to or require safe haven because of recent events in Haiti, namely the October 15,1994 return of Haitian President Jean-Bertrand Ariseide.

5. To dismantle the camps on schedule, the government muse remove the six thousand Haitian refugees who remain at the camps. The government has in recent days, planned to repatriate as many as 400 Haitian refugees each day. Since the government has stated that it will not permit any of the Haitian refugees to be admitted to the United States, apply for asylum, or obtain refugee status, and since, on information and belief, no third country placement is available to the government for these detainees, the government will repatriate these Haitian refugees to Haiti.

6. The government's directive to dismantle the Haitian camps will make the repatriation of the Haitian -- currently implemented through a coercive environment -- even more coercive and result in the direct, forced repatriations of these refugees. It simply is premature and speculative to implement a force- repatriation policy when there are areas of Haiti, particularly where section chiefs and other para-military chugs continue to operate, that remain unprotected because the multi-national force is unable or unwilling to maintain troops there. HRC and the Haitian refugees need immediate relief to enjoin these repatriations in violation of United States and international law.

7. This lawsuit also seeks to enjoin the government from obstructing access to the Haitian plaintiffs by the HRC and denying HRC equal access; to these plaintiffs, many of whom are members of the HRC, to advise them of their rights and of the HRC's interest in providing representation and assistance to them in furtherance of its organizational goals. In addition, HRC seeks to assure that the Haitian refugees are treated fairly and equally vis-a-vis the Cuban refugees also detained at Guantanamo under similar conditions. Intervenor-Plaintiffs invoke the Court's equitable powers to ensure that U.S. and international laws are complied with and that the involuntary repatriations cease.

II. JURISDICTION AND VENUE

8. Plaintiffs' claims arise under the Immigration and Nationality Act, 8 U.S.C. ll01(a)(42). 1158, 1253(h), the Refugee Act of 1980, 8 U.S.C. 1521, and regulations promulgated thereunder, the Administrative Procedure Act, 5 U.S.C. 5511 et seg., the First and Fifth Amendments to the United States Constitution. the United Nations Protocol Relating to the Status of Refugees, the Universal Declaration of Human Rights, and principles of international law.

9. Jurisdiction is based on 28 U.S.C. 1331, as a civil action arising under the Constitution, laws, or treaties of the United States; 8 U.S.C. 1329, as a civil cause arising under the Immigration and Nationality Act, as amended; 5 U.S.C. 702, as a civil action arising under the Administrative Procedure Act; and 28 U.S.C. 2201 and 2202, as a civil action seeking a declaratory judgment.

lO. Venue is proper in this district under 28 U.S.C. 1391(e), as the defendants include officers, agents and employees of the United States and agencies thereof acting in their official capacity, and some plaintiffs reside in this district. No real property is involved in this action.

11. Intervenor-Plaintiffs, by their attorneys, bring this action for injunctive and declaratory relief pursuant to Rules 65 and 57 of the Federal Rules of Civil Procedure.

III. PARTIES

12. Intervenor-Plaintiff HRC is a non-profit membership corporation located in Miami, Florida. The HRC's purpose, as set forth in its bylaws, is to promote the well-being of Haitian refugees through appropriate programs and activities, including legal representation of Haitian refugees, education regarding legal and civil rights, orientation, acculturation, and social and referral services, It has brought substantial lawsuits challenging procedures and practices of the INS ,in processing Haitian refugee applications and has been recognized by the INS as a source of legal counsel for indigent Haitians.

13. The HRC's membership includes United States citizens, resident aliens and non-resident aliens, including the individual Haitian refugee intervenor-plaintiffs and the class they represent, as well as the parents, relatives and representatives of some of the unaccompanied minors detained at Guantanamo. HRC's membership interests, including its financial support, is directly affected by the policy of discriminatory detention and forced repatriation by making HRC's work of assisting the refugee community more difficult. This results in the diversion of HRC's limited resources away from members and clients having other needs.

l4. HRC seeks to represent the Haitian refugee's interests in this lawsuit. HRC has been denied, and continues to be denied in its own right, the ability to provide effective representation to its members.

15. Intervenor-plaintiff GARRY JOSEPH is a single adult male Haitian refugee detained at Guantanamo Bay. Mr. Joseph's mother was arrested in Haiti in June 1994 and has "disappeared." Mr. Joseph fled Haiti fearing persecution and death. Mr. Joseph fears persecution if he is repatriated to Haiti. Mr. Joseph wants to seek advice and counsel, including legal representation, through HRC.

16. Intervenor-plaintiff PAULOMME EDMOND is a single adult male Haitian refugee detained at Guantanamo Bay. Mr. Edmond was a member of a political organization in Haiti known as ODIP. Shortly before he fled from Haiti, the President of ODIP "disappeared." Mr. Edmond fears persecution if he is repatriated to Haiti and wants to seek advice and council, including legal representation, through HRC.

17. Intervenor-plaintiff PIERRE ONEL ANTOINE is an adult male Haitian refugee detained at Guantanamo Bay. Mr. Antoine is a journalist who, before he fled from Haiti, worked for Radio Dame Marie. Mr. Antoine fears persecution if he is repatriated to Haiti and wants to seek advice and counsel, including legal representation, through HRC.

18. Intervenor-plaintiff VOIDIEU JEAN LOUIS resides in the United States in the State of Florida. Mr. Louis is a refugee from Haiti who was granted humanitarian parole into the United States. Mr. Louis is the parent and legal guardian of his two sons, Bergeline and Padeci Jean Louis, both of whom are minors detained by the government at Guantanamo Bay. As the legal guardian of his sons, MS. Louis does not want them to be repatriated to Haiti because he fears they will be persecuted there and he wants to be reunited with them. Instead, he wants his sons paroled into the United States. In addition, Mr. Louis seeks to have himself and his sons represented in this action by the HRC.

19. Intervenor-plaintiffs BERGELINE JEAN LOUIS.(age 14) and PADECI JEAN LOUIS (age 17, are unaccompanied minor Haitian refugees detained by the government at Guantanamo Bay. These minors are facing severe hardship and trauma due to their separation from their father, who resides in the United States. They seek to be paroled into the United States. These minors do not want to be repatriated to Haiti where they fear persecution and they want to have HRC, and their attorneys, represent their interests in this matter.

20. The HRC also considers the named intervenor-plaintiffs and similarly situated persons to be members of HRC by virtue of their presence at Guantanamo, a territory within the exclusive jurisdiction and control of the United States. The Haitian refugees are entitled to seek effective assistance from the HRC.

21. Defendant, WARREN CHRISTOPHER, is the United States Secretary of State and in that capacity has the final decision-making authority within his department. Upon information and belief, the State Department has participated with other United States agencies in determining the status and detention of the Haitian refugees at Guantanamo. Defendant Christopher is sued in his official capacity.

22. Defendant, WILLIAM J. PERRY. is the United States Secretary of Defense. Upon information and belief, he is in charge of implementing the practices and procedures under which the Haitian refugees are being detained. All officers and employees of the United States Armed Forces, including the Join Task Force at Guantanamo, are acting under his direction and supervision. Defendant Perry is sued in his official capacity.

23. Defendant, DORIS MEISSNER, is the Commissioner of the Immigration and Naturalization Service ("INS"). She is in charge of implementing the practices and procedures under which the Haitian refugees are being denied their statutory and constitutional rights and their right to resist coerced repatriation. Any and all INS officers involved in determining the Haitian refugees' situation and status are acting under her direction, supervision, or delegated authority. Defendant Meissner is sued in her official capacity.

24 Defendant, JANET RENO. is the United States Attorney General and in that capacity has ultimate responsibility for the enforcement of the immigration laws of the United States. Defendant Reno is sued in her official capacity.

25. Defendant, IMMIGRATION AND NATURALIZATION SERVICE ("INS"), is the agency charged with direct responsibility for enforcing the immigration laws of the United States.

26. Defendant, BRIGADIER GENERAL MICHAEL WILLIAMS , is the Commander of the Joint Tack Force at Guantanamo, in whose custody the Haitian refugees are being held. Defendant Williams is sued in his official capacity.

27. Defendant the United States is a sovereign and has ultimate responsibility for all of its agencies and officers.

IV. FACTS

28. President Aristide was elected in December 1990 in the first fully democratic elections to take place in Haiti in over 200 years. Shortly thereafter, President Aristide was overthrown by a military-led coup and forced into exile in the United States. The coup resulted in a widely publicized reign of terror in Haiti in which supporters (and suspected supporters) of the Aristide government and democracy were killed or subjected to violence and destruction of their property, producing fear and desperation throughout the country.

29. In the wake of this chaos and mass violence, thousands of Haitians sought to escape by sea. Many of the Haitians who fled in the 1991-92 time frame were interdicted by the United States Coast Guard and detained at the U.S. military installation at Guantanamo Bay, Cuba.

30. These detainees were interviewed by INS officials and those determined to have a credible fear of persecution in Haiti were paroled into the United States and allowed to apply for asylum. Approximately eleven thousand Haitian refugees were admitted to the United States in the direct aftermath of the coup. In addition, the government attempted to detain certain Haitian refugees at Guantanamo who -- despite their acknowledged credible fear of persecution -- the government deemed inadmissible to the United States. Following legal proceedings in the United States, the government admitted these refugees to this country in June 1993 to enable them to adjudicate their claims for asylum.

31. During the period in 1992 and l993 when the government detained Haitians at Guantanamo, the government (after initial resistance) permitted attorneys for the refugees access to their clients. Attorneys maintained a virtually continuous presence at Guantanamo during this period and the presence of the attorneys and counseling of their clients in no way disrupted the administration or operation of the detention camps.

32. Between approximately May 1992 and June 1994, the government's policy toward Haitian refugees fleeing persecution in Haiti was to interdict the refugees and summarily repatriate them to Haiti without any refugee processing or even prima facie interviews.

33. In approximately mid-June 199., the government commenced a new policy toward the refugees fleeing Haiti. Under this new policy, the Coast Guard continued to interdict the Haitians, but the Haitians then underwent "refugee interviewing" as a means of determining which of the fleeing Haitians qualified for asylum in the United States. Notwithstanding substantial flaws in the "refugee interviewing" process, the government determined that several hundred interdicted Haitians had established a well-founded fear of persecution and were admitted to the United States. The vast majority of the Haitians interdicted under this policy, however, were summarily repatriated to Haiti.

34. In or about July, 1994, the government implemented yet another policy toward the ever- increasing numbers of Haitians fleeing the island. Under the new policy, the government interdicted the fleeing Haitians and offered them what the government described as "temporary protection in safe haven "camps" at Guantanamo, and what others described as indefinite detention.

35. By July 1994, the number of Haitian refugees detained at Guantanamo Bay had reached approximately twenty-one thousand.

36. On or about August 8, 1994, the Government of Cuba did not stop Cubans fleeing from Cuba via sea. Thereafter, thousands of Cubans began setting sail for the United States. Many of the Cubans were interdicted by the United States Coast Guard and United States Navy.

37. On or about August 19, 1994, the United States commenced a policy of detaining interdicted Cuban refugees at Guantanamo Bay, Cuba, in camps separate from the Haitian refugees. Additional Cuban refugees are being detained in third countries.

38. Although maintained in separate camps at Guantanamo, both the Haitian and Cuban refugees have many common confinement conditions including barbed-wire enclosures, makeshift tents with close quarters and little privacy, unsanitary conditions and the same military Joint Task Force overseeing detention facilities and security.

39. On or about September 19, 1994. the United States military led a United Nations-authorized military intervention in Haiti. This intervention resulted in the resignation of the key senior loaders of the 1991 coup against President Aristiae in mid-October, 1994, barely two weeks ago.

40. The government reported that, as of September 30, 1994, the Haitian refugee population at Guantanamo was 13,700.

41. On information and belief, between October 3 and October 7, 1994, the government repatriated approximately 1,975 Haitian refugees who had been detained at Guantanamo.

42. On information and belief, between October 11 and October 17, 1994, the government repatriated approximately 1,251 Haitian refugees who had been detained at Guantanamo.

43. On information and belief, between October 18, and October 21, 1991, the government repatriated approximately 2,532 Haitian refugees who had been detained at Guantanamo.

44. On information and belief, between the U.S. led intervention on September 19 and October 2,, 1994, the government repatriated approximately 6,271 Haitian refugees who had been detained at Guantanamo. This number reduced the Haitian refugee population by almost 50%.

45. On or about October 15. 1994, following the intervention of the United States military, President Jean Bertrand Aristide returned to Haiti.

46. Notwithstanding the multi-national force intervention, and the return of President Aristide, section chiefs and other pare-military forces opposed to democracy continue to operate in Haiti and threaten people, particularly in rural areas of Haiti. The multi-national force has not deployed into most rural areas of Haiti, offering chose populations no direct protection. Many Haitians live in isolated, mountain-top hamlets and 70%, overall live in rural areas.

47. The multi-national force commanders repeatedly have stated that they will not act as a police force, with the result that at night, especially in the Port-au-Prince neighborhoods of Cite Soleil. Carrefour, La Saline and gel-Air, the troops and even the potential for their possible protection is wholly absent.

48. The multi-national force also has not aggressively disarmed pare-military forces -- including "FRAPH" -- in Haiti. FRAPH is responsible for much of the abuses and persecution that occurred following the coup of 1991. The multi-national force's refusal to aggressively disarm FRAPH and other such organizations in Haiti undermines efforts to create a safe and secure environment which is a necessary prerequisite to insuring respect for human rights. Since the intervention of the multi-national force, a number of pro-democracy supporters have been killed.

49. On information and belief, none of the Haitian refugees repatriated to Haiti had been afforded access to legal counsel to advise them of their rights and options and most, if not all, cannot afford counsel.

50. On information and belief, none of the Haitian refugees repatriated to Haiti had been provided -- prior to repatriation -- with credible, reliable and current information about the conditions in Haiti to enable them to make and informed decision regarding whether it is safe to return to Haiti, based on their individual cases. Haitian refugees simply lack the information and counsel necessary to enable truly voluntary repatriations to Haiti.

51. The primary source of information about conditions in Haiti has been the government agents at Guantanamo who have provided incomplete, inaccurate and misleading reports about the risks they would face in Haiti and their legal status and rights.

52. The government actively encourages and coerces the Haitian refugees to consent to return to Haiti by denying them access to counsel, denying them access to information about the current conditions in Haiti, denying them access to friends, relatives and loved ones, and by making their detention conditions so inhumane that the refugees are susceptible to being encouraged to return to Haiti rather than to remain in detention.

53. The government has undertaken other strategies with the purpose and effect of having the refugees "volunteer" to return to Haiti. The government has, at times, deprived the Haitian refugees of adequate water; reduced their food rations; unnecessarily and without explanation uprooted them from one camp to another; invaded what little privacy they have; and maintained the camps in poor condition, leading to unsanitary facilities and the spread of disease.

54. Recently, the government -- primarily soldiers providing security at the camps -- embarked on a psychological practice of awakening the refugees shortly after midnight by lifting the flaps of the tents and turning on the lights. Thus aroused and stuporous, the soldiers told them that they should return to Haiti.

55. Representatives of Haitian refugee organizations, including HRC, have on numerous occasions requested the defendants to allow HRC and others equal, direct and regular access to the Haitian refugees to advise the refugees regarding their legal options and to inform them regarding conditions in Haiti. The government has refused to permit such access to counsel and actively has obstructed access by attorneys to the Haitian refugees while affording greater access to other groups and organizations. This denial of access to HRC counsel has and is depriving the Haitian refugees of their ability to obtain legal advice regarding their detention conditions, their legal status as refugees and the conditions in Haiti. This deprivation is particularly injurious where the Haitian refugees receive information solely from government sources. This government obstruction is based on the viewpoint of the information the counsel would disseminate to the Haitian refugees.

56. In July 1994, the government, under pressure from HRC and other organizations, agreed to a one day trip to Guantanamo to observe the conditions at the Haitian camps. The cost for the trip for the non-government observers was $477 per person. What was supposed to be a full day visit was in reality a 1 1/2 hour tour of several Haitian camps. Moreover, the government actively interfered with all attempts by the observers -- including attorneys -- to interact meaningfully and privately with the Haitian detainees. This obstruction and interference included the government videotaping communications with the refugees while camp officers purposely positioned themselves to overhear and react to communication. with the detainees.

57. In recent weeks, HRC representatives requested the government to identify to HRC the names of the Haitians being detained at Guantanamo Bay. Identification of the Haitian refugees is vitally important to the refugees' relatives and supporters in the United States who, absent such identification, have no way of knowing the whereabouts or fate of the refugees. In many instances, the relatives have no idea that their loved ones were able to escape from Haiti and make it safely to Guantanamo Bay, as opposed to being lost at sea, or killed or "disappeared" at the hands of the para-military forces in Haiti.

58. The INS, at the request of representatives of the Cuban refugees, published a list of the Cuban refugees detained at Guantanamo in El Nuevo Herald, the Miami Herald's Spanish edition, shortly after Cuban refugees began to arrive at Guantanamo.

59. On or about October 14, 1994, the government announced that it would permit three categories of Cuban refugee detainees at Guantanamo to be paroled into the United States, effective immediately. Those three classes are; (l) children without parents at the camps; (2) certain ill refugees; and (3) refugees over the age of 70. A senior State Department official described the rational for the policy: "There's a general recognition that these are humanitarian cases. They're the sick, the very young and the very old. You can't keep these people locked up." At the time of the announcement, government officials stated that the policy might be expanded to all of the minors in government custody at Guantanamo, as well as the spouses of those who quality for parole and the care-givers to the ill. The government announcement applied only to Cuban refugees.

60. The government has refused to parole any Haitian refugees into the United States, including the 230 or so unaccompanied minors who reside in the Haitian camps, the sick and the elderly. The psychological trauma and physical harm to these groups, particularly the minors, is extreme and is deteriorating on a daily basis.

61. The United States is a party to the United Nations Protocol Relating to the Status of Refugees (the "Protocol"), which incorporates the United Nations Convention Relating to the Status of Refugees ("Convention"). Article 33 of the Convention provides that

No contracting state shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion.

Section 243 (h)(1) of the Immigration and Nationality Act("INA"), 8 U.S.C. 1253(h)(1), also states that

The attorney general shall not deport or return any alien . . . to a country if the attorney general determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.

In addition, sections 207 and 208 of the immigration and Nationality Act provide the framework for the processing of asylum claims in the jurisdiction of the United States or refugee processing outside United States jurisdiction.

62. United States immigration law makes certain categories of aliens eligible to apply for entry into the United States based upon those aliens' relationships to citizens, legal permanent residents, asylees and others physically present in the United States. Eligibility for discretionary parole can also be based on the presence of family members in the United States, the applicant's medical needs, or humanitarian factors. On information and belief, many of the Haitian refugees may have these derivative claims aside from their own fear of political persecution if returned to Haiti. Without access to counsel, the Haitian refugees cannot be adequately informed of these derivative claims.

63. In the Refugee Act of 1980, Congress limited executive discretion with respect to treatment of applicants for parole and asylum, and prohibited all discrimination in the administration of the asylum program and the parole power on the basis of race or national origin.

FIRST CLAIM FOR RELIEF

(Interference With Access)

COUNT ONE

(Denial of First Amendment and Due Process Rights )

64. HRC repeats and reallege paragraphs 1 through 63 as though fully set forth herein.

65. HRC is a non-profit advocacy group formed for the purpose, among other things, of providing or securing counseling, advocacy and legal representation to Haitian refugees and detainees, including those detained at Guantanamo.

66. In furtherance of HRC's goals, it seeks to communicate and provide legal representation and other counseling to the Haitian refugees detained at Guantanamo. In addition, HRC has been retained by certain of the Haitian refugees, as well as certain relatives of Haitian detainees, including the parents of minor detainees.

67. The presence of the HRC and associated counsel at the refugee camps would in no way disrupt legitimate governmental or military functions. The counsel and advice they would provide their refugee clients as to the refugees' status would serve to lessen confusion and tension in the camps.

68. Notwithstanding HRC's compelling interest in providing such counsel, and notwithstanding the expressed desire of several of the Haitian refugees to secure such counsel from the HRC, the government steadfastly, and without lawful justification, has denied HRC reasonable and meaningful access to its clients at Guantanamo, resulting in injury to HRC's speech and associational rights under the First Amendment.

69. In addition to depriving HRC of its constitutional rights, the government, on information and belief, has provided the Haitian refugees with false, misleading and/or incomplete information regarding their rights as detainees and the conditions in Haiti. By providing such false or inaccurate information, and falling to permit HRC -- because of the content and viewpoint of its speech -- to advise the Haitian refugees regarding their rights and to provide them with additional and accurate information, the government has sought to isolate the detainees and has wrongfully interfered with the attorney-client relationship between HRC and the Haitian refugees.

70. By denying HRC access to the Haitian refugees, while at the same time furnishing the Haitian refugees with information from other sources and groups, the government has discriminated against HRC in regard to the content and viewpoint of its speech and has deprived HRC of its right to express its views.

COUNT TWO

(Interference With Access To Counsel)

71. HRC repeats and reallege paragraphs 1 through 70 as though fully set forth herein.

72. The government has denied and continues to deny the Haitian refugees reasonable access to class counsel and the HRC. The government also has denied and continues to deny the Haitian refugees any meaningful opportunity to retain and receive assistance or information from other counsel or advocates of their choice.

73. Without access to counsel, the Haitian refugees have been and continue to be subject to deprivations of rights and liberties without due process of law. These deprivations include but are not limited to: isolation and punishment by the government, without any process, and forced and coercive repatriation without the opportunity to seek asylum or refugee status.

74. Without access to counsel, the Haitian refugees who may be eligible to apply for entry into the United States on grounds other than their own fear of persecution if returned to Haiti are unable to assert their rights to parole, asylum or other status.

75. The government's denial of the Haitian refugees' rights to communicate with counsel and to avoid wrongful repatriation violates the Haitian refugees' constitutional rights to obtain and associate with counsel.

SECOND CLAIM FOR RELIEF

(Involuntary Repatriations)

76. HRC repeats and reallege paragraphs 1 through 75 as though fully set forth herein.

77. The Haitian refugees have rights under United States and international law to avoid involuntary repatriation to conditions of persecution.

78. Under Articles l(c)(l) and 33 of the United Nations Convention on the Status of Refugees, as incorporated by the 1967 Protocol Relating to the Status of Refugees, and codified by section 243(h) of the Immigration and Nationality Act, the United States is required to ensure that any repatriation of the Haitian refugees is voluntary. Article 33 requires the United States to make a refugee status determination prior to repatriating a person within exclusive United States jurisdiction. These provisions apply to the Haitian refugees under international and United States law.

79. The Haitian refugees cannot make an informed decision to voluntarily repatriate to Haiti because the government has improperly denied them access to counsel.

80. The Haitian refugees cannot make an informed decision to voluntarily repatriate to Haiti because the government has improperly denied them access to accurate information regarding the current conditions in Haiti, and has subjected them to inaccurate, incomplete or misleading information regarding conditions in Haiti.

81. The Haitian refugees cannot make an informed decision to voluntarily repatriate to Haiti because the government has improperly subjected them to forms of direct and indirect coercion, including but not limited to: inhumane living conditions, planned psychological coercion, preventing the refugees from obtaining asylum or refugee processing, and other means of impairing the ability of the refugees to make rational and voluntary decisions regarding repatriation.

THIRD CLAIM FOR RELIEF

(Constitutional Violations Re Unaccompanied Minors)

COUNT ONE

(Due Process)

82. HRC repeats and reallege paragraphs 1 through 81 as though fully set forth herein.

83. Approximately 230 of the Haitian refugees at Guantanamo Bay are unaccompanied minor children.

84. These children have Special needs and requirements, due to the lack of family support and care, the trauma of separation from their families and relatives, the trauma of their voyage from home, the disruption to their educational needs, their confinement and restraint, and other requirements unique to minors.

85. The deprivation suffered by these unaccompanied minors is a liberty interest within the meaning of the due process clause of the Fifth Amendment to the Constitution. The government's confinement and restraint of these minors in inhumane conditions violates substantive and procedural due process and is arbitrary ant capricious, unrelated to a government interest and serves no valid government interest.

86. These minors should be paroled into the United States and are eligible for parole under applicable laws and regulations.

87. The harm suffered by these minors through their continued detention is ongoing and irreparable and no adequate remedy at law is available to redress this harm.

COUNT TWO

(Equal Protection)

88. HRC repeats and reallege paragraphs 1 through 87 as though fully set forth herein.

89. The government's October 14, 1994 directive directs the parole into the United States of all unaccompanied minor Cuban refugees detained at Guantanamo Bay, Cuba.

90. The government has refused to permit unaccompanied minor Haitian refugees to be paroled into the United States.

91. The government's disparate treatment of Haitian and Cuban minor refugee. is arbitrary and capricious, irrational, unrelated to any valid government interest and deprives the Haitian minors of the equal protection of the laws in violation of the Refugee Act, the Immigration and Nationality Act, the Constitution, the Convention and Protocol Relating to the status of Refugees and other international agreements as well as customary international law.

COUNT THREE

(Regulatory Action)

92. HRC repeats and reallege paragraphs 1 through 91 as though fully set forth herein.

93. Pursuant to 8 C.F.R. 212.5(a)(2)(ii). INS is authorized to parole juvenile detainees into the United States. The government has acted arbitrarily and capriciously in failing to grant parole to the unaccompanied Haitian minor refugees.

FOURTH CLAIM FOR RELIEF

(Failure to Identify Haitian Refugees)

94. HRC repeats and reallege paragraphs 1 through 93 as though fully set forth herein.

95. The government maintains a list identifying by name, age, sex and other information all of the Haitian refugees detained at Guantanamo Bay. HRC, as representative of the Haitian refugees and as an information resource to the families of Haitian refugees, has sought access to the government's list of detainees in order to provide that information to relatives seeking to learn the fate of their loved ones and friends.

96. On information and belief. the government refuses to disclose the list to any private parties, including the HRC.

97. At the request of relatives and representatives of the Cuban refugees, the government disclosed to the media and others a list of all Cuban refugees detained at Guantanamo Bay.

98. The government's refusal to disclose the list (or individual names thereon) to bona fide representatives and relatives of the Haitian refugees has wrongfully impaired the HRC's and relatives' constitutional rights of freedom of association.

99. The government's refusal to disclose the identity of the Haitian refugees is arbitrary and capricious and unrelated to any valid government interest and deprives HRC and the refugees' relations in the United States of their First Amendment rights under the Constitution.

100. The government's disclosure of the list of Cuban refugees while at the same time refusing to make an even more limited disclosure of the list of Haitian refugees constitutes an unconstitutional deprivation of the equal protection of the laws, is arbitrary and capricious and is unrelated to any valid government interest. Such unequal treatment violate the Refugee Act, the Immigration and Nationality Act, the Constitution, the Convention and protocol Relating to the Status of Refugees and other international agreements as well as customary international law.

FIFTH CLAIM FOR RELIEF

(Right to Refugee or Asylum Processing)

101. HRC repeats and reallege paragraphs 1 through 100 as though fully set forth herein.

102. The Haitian refugees, as "refugees," have the right under United States statutory law, federal regulations, international law and treaties to which the United States is a signatory, to refugee processing or to petition for asylum in the United States.

103. In the Refugee Act of 1980, Congress provided the mechanisms through which the government may respond to persons seeking refuge from political persecution. The refugee program under section 207 of the Act and the asylum program under section 208 of the Act, and the limited parole power of the INS, are the sole programs which Congress has authorized the executive to administer with regard to persons such as the Haitians presently detained at Guantanamo.

lO4. The actions of the government described herein have effectively denied the detained Haitian refugees access to any of the programs which congress authorized The government to administer with regard to persons fleeing political persecution. The government's actions constitute extra-statutory action unauthorized by law, within the meaning of section 706 of the Administrative Procedure Act.

105. Under Sections 207 and 208 of the Immigration and Nationality Act and the Refugee Act of 1980, the provisions of 8 C.F.R.. Article 33 of the 1951 United Nations convention, Article XXVII of the American Declaration of the Rights and Duties of Man, and Article 22(7) of the American Convention on Human Rights, the Haitian refugees should have the opportunity to seek refugee processing while being detained at Guantanamo, a location under United States jurisdiction and control or to petition for asylum.

106. Under applicable law, the refugees are entitled to refugee or asylum processing and the government has wrongfully denied them these options, in violation of the law.

SIXTH CLAIM FOR RELIEF

(Confinement Conditions)

107. HRC repeats and reallege paragraph 1 through 106 as though fully set forth herein.

108. The government has undertaken a policy of making the detention conditions on Guantanamo so inhumane that the Haitian refugees will want to face the risk of returning to Haiti rather than remain in indefinite detention under such conditions. The conditions include, but are not limited to, arbitrary discipline, punishment and administrative segregation without due process of law, indefinite detention in tents with bare earth floors, close living quarters, lack of privacy, intimidating and oppressive measures such as barbed wire enclosures around the tents, lack of adequate water for bathing and drinking, lack of access to telephones and unsanitary latrines which foster the spread of disease and misery, and extreme uncertainty about their status and rights.

109. Many of these detention conditions, particularly the administrative segregation of those detainees suspected of disciplinary problems and the prospects of indefinite detention, result in the deprivation of liberty interests without due process of law, in violation of the Constitution. The government has failed to implement any procedures to afford the Haitian refugees placed in administrative segregation with due process of law.

110. On information and belief, the government has commenced efforts to provide better living and deception conditions to the Cuban refugees than those afforded to the Haitian refugees. Although the conditions faced by the Cuban refugees detained at Guantanamo are also inhumane, Haitian conditions are deliberately worse and unequal.

111. The government has directed that the Haitian camps be dismantled within the next few months. The facilities -- minimal as they are -- available to the detained Haitians will be cutback further, thus adding to the coercive environment which already exists.

112. The government's disparate treatment of the Haitian and Cuban refugees constitutes discrimination and denial of the equal protection of the laws to the Haitian refugees, in violation of the Constitution.

CLASS ACTIONS ALLEGATIONS

113. HRC brings this action pursuant to Rule 23(a) and (b)(2) on behalf of themselves and all other persons similarly situated. The class consists of the following presently ascertainable members: All Haitian refugees who are currently detained or who in the future will be detained at Guantanamo Naval Base and who are asserting violations of their Constitutional and other rights.

114. There is also one subclass in this action. This subclass consists of all unaccompanied minor refugees detained at Guantanamo.

115. The government has acted or threatened to act on grounds generally applicable to each member of the class and subclass, thus making final declaratory and injunctive relief with respect to the class, as a whole, appropriate.

116. Intervenor-plaintiff~ are adequate representatives of their class because they have been subjected to or threatened with policies and procedures that are identical with the policies and procedures that the members of their class have been subjected to or are threatened with, and because like members of their class, they seek declaratory and injunctive ,relief protecting their rights under the First Amendment, the Administrative Procedure Act, the immigration statute and regulations, the Protocol and other provisions of law.

117. A community of interest exists between intervenor plaintiffs and members of their class in that there are questions of law and fact which are common to all. They seek a determination of whether or not the practices and procedures of defendants are consistent with the APA, with the immigration statute, with INS Regulations, with the Protocol, With the Constitution, and with other provisions of law.

118. Individual suits by each member of the class would be impracticable because:

(a) There exist common and identical issues of law and fact for all members of the class; whether the policies and procedures of defendants with respect to exclusion violate INS Guidelines, Regulations and Statute., the APA, the Protocol, the Constitution, and other provisions of law.

(b) The number of suits would impose an undue burden upon the courts. (c) Many members of the class are unaware of their rights and/or are intimidated, due to their status as aliens.

119. A class action is superior to other available methods for the fair and efficient adjudication of this controversy.

120. No administrative remedies under the Immigration and Nationality Act exist which remain to be exhausted that would not be futile or that would provide the relief sought herein.

121. No independent litigation has, as of the time of filing this suit, been brought by any member of the class against defendants as to the issues raised in this complaint.

122. HRC's counsel are experienced in class action litigation and can adequately represent the interests of class members as well as the named intervenor-plaintiffs.

123. Under the Equal Access to Justice Act, intervenor plaintiffs will seek attorney's fees, expenses and costs in this action.

RELIEF SOUGHT

WHEREFORE, intervenor-plaintiffs respectfully request the Court to grant the following relief against defendants and their successors in office:

(a) Certification of the class;

(b) Declaratory relief that:

(i) the government's practices in coercively returning Haitian refugees to Haiti under the circumstances set forth in the Complaint are in violation of the Constitution and the laws of the United States; and

(ii) the Haitian refugees are entitled to refugee processing or to apply for asylum; and

(iii) the Haitian refugees are entitled to assert the Constitutional claims raised in this Complaint.

(c) Preliminary and permanent injunctive relief ordering the government to:

(i) refrain from repatriating any Haitian refugee without first providing the refugee with access to counsel, adequate information regarding the current conditions in Haiti, and adequate detention conditions that do not result in coerced and forced repatriations;

(ii) refrain from denying HRC regular, meaningful, equal and unobstructed access to the Haitian refugees;

(iii) remedy the inadequate living conditions at Guantanamo Bay;

(iv) identify the Haitian refugees at Guantanamo Bay to HRC;

(v) refrain from providing discriminatory and/or disparate treatment (including opportunities to parole into the United States) to the Haitian and Cuban refugees;

(vi) provide access to refugee processing and/or asylum processing to the Haitian refugees;

(vii) immediately parole into the United States the 230 or so unaccompanied minor Haitian refugees; and

(d) Such other and further relief as the Court may deem just and proper, including reasonable attorneys' fees, expenses and costs.

VERIFICATION
STATE OF FLORIDA )
                 ) ss.
COUNTY OF DADE   )

I, GUY VICTOR, verify under oath that the foregoing is true and correct.

GUY VICTOR
Director, HRC, Inc .

SUBSCRIBED AND SWORN to before me this 31th day of October, 1994., Guy Victor who personally signed above and who took an oath.

_________________

Notary Public
My commission expires: ;
October 31, 1994
Respectfully submitted,

KURZBAN, KURZBAN AND WEIN6ER, P.A.

_________________________

Ira J. Kurzban (Fla. Bar. No. 225517)
Helena Tetzeli (Fla. Bar. No. 759820)
Brian Torres
Plaza 2650, Second Floor
2650 S.W. 27th Avenue
Miami, Florida 33133
PHONE: 305/444-0060
FAX: 305/444-3503


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