Cuban American Bar Association v. Christopher : Intervenor Plaintiff's Motion for Temporary Restraining Order

                                   CASE NO.: 94-2183-CIV-ATKINS

et al.,                                 )
               Plaintiffs,              )
vs.                                     )
WARREN CHRISTOPHER, et al.,             )    
               Defendants               )
               Interveners.             )


Plaintiffs, HAITIAN REFUGEE CENTER, INC., GARRY JOSEPH, PAULOMME EDMOND, and PIERRE ONEL ANTOINE, (the Haitian Refugee Plaintiffs); VOIDIEU PIERRE LOUIS, BERGELINE JEAN LOUIS and PADECI JEAN LOUIS (the Minor Plaintiffs); on behalf of themselves and all other similarly situated, by and through their undersigned attorneys, respectfully request this Honorable court to grant this Motion for Temporary Injunctive Relief pursuant to Federal Rule of Civil Procedure 65, (i) restraining the Defendants from forcibly repatriating Haitian refugees detained at Guantanamo; (ii) requiring the government to release the names of Haitian refugees: on Guantanamo to HRC; (iii) restraining the Defendants from preventing HRC's access to Guantanamo; (iv) granting HRC the right to expedited discovery on Guantanamo. The grounds for this motion are as follows:

1. Intervenor-Plaintiffs have filed a complaint for declaratory and injunctive relief arising fro. the detention by the Defendants ("United States" or "government") of Haitian refugees at the United States Naval Base in Guantanamo Bay, Cuba. In particular, Intervenor-Plaintitts ("Haitian refugees" or "HRC") seek relief from the government's: (1) denial of HRC access to the Haitian refugees on Guantanemo; (2) forced repatriation to Haiti through the fostering and maintenance of a coercive environment; (3) refusal to commence proceesing of the Haitian refugees' asylue or refugee claims while on Guantanamo; (4) refusal to parole into the United States approximately 230 unaccompanied Haitian minors and numerous pregnant and seriously ill refugees who are suffering extreme distress and trauma as a result of their detention; (5) refusal to disclose to HRC the identities of the detained Haitian refugees so that their families and friends in the United States will be informed of their detention; (6) refusal to provide the Haitian refuges humane and tolerable conditions of confinement; and (7) refusal to provide equal treatment, opportunities, and protection under the law to the Haitian refugees detained at Guantanamo Bay.

2. The government's conduct toward the Haitian refugees and the HRC has resulted in the deprivation of HRC's First and Fifth Amendment rights and their right to equal protection under the law. In addition, these constitutional and other deprivation" have resulted in and will continue to cause irreparable harm to HRC through coerced and involuntary repatriations of Haitian refugees, the denial of basic due process and other right. to Haitians living in the detention camps at Guantanamo and the irreparable harm to the approximately 400 unaccompanied minor children detained at Guantanamo in traumatic and unhealthy conditions.

3. The government's improper conduct and actions toward the Haitian refugees is getting worse. On information and belief, the government has issued orders requiring the dismantling of the Haitian refugee camps at Guantanamo Bay within the next few months.

4. In order to dismantle the camps on schedule, the government must remove the approximately 6,000 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 or apply for asylum or refugee status, the only alternative for the government is to repatriate these Haitian refugees to Haiti.

5. The government's directive to dismantle the Haitian camps will make the repatriation of the Haitians--currently implemented through a coercive environment--even more coercive and result in the direct, forced repatriation of these refugees. It is simply premature and speculative to implement a forced-repatriation policy given current conditions in Haiti. HRC and the Haitian refugees need immediate relief to enjoin these repatriations in violation of United States and international law.

6. Currently, there are approximately six thousand Haitian refugees being detained by the United States in Guantanamo. On almost a daily basis, beginning on or about July 1994, and continuing on almost a daily basis, the United States has , repatriated groups of Haitian refugees through a coercive 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 deplorable conditions of confinement -- select the option of returning to Haiti, which, despite their fear of persecution there, is nevertheless more palatable than remaining indefinitely on Guantanamo. On October 24, 1994, for example, the government repatriated approximately four hundred Haitian refugees. The threat of ongoing repatriations is imminent.

7. Absent this Court's granting of this Motion for a Temporary Restraining Order, the Intervenors will suffer irreparable harm. Section chiefs and paramilitary forces still operate in Haiti, particularly in rural areas where the MultiNational force can not or will not operate. Persons returning to such areas face a real and substantial threat of persecution.

8. Moreover, a temporary restraining order requiring the parole of unaccompanied Haitian refugee children on Guantanamo is necessary to halt the ongoing trauma and distress that their confinement on Guantanamo is causing them. Conditions on Guantanamo are harsh, especially for non-criminal confinement, and those children should not be expected to endure such conditions.

9. Similarly, the distress of the relatives and friends in the United States of the Haitian refugees on Guantanamo should be stopped by an order requiring the government to release the names of the Haitian refugees on Guantanamo. The Haitian refugees' loved ones in the United States have no way of knowing whether the refugees perished at sea, were returned to Haiti and killed, or are confined in Guantanamo. The government has already voluntarily released the names of the more than thirty thousand Cuban refugees on Guantanamo, but continues to refuse--without justification--to release the names of the Haitians. This court should require an immediate end to this discriminatory and damaging conduct by the government.

10. Finally, this Court in its discretion should also grant intervenor-plaintiffs expedited discovery as part of the temporary restraining order so that HRC may be better able to represent the interests of the Haitian refugees and abate the harms to them that intervenor-plaintiffs' intervention in this suit seeks to redress. Expedited discovery is clearly warranted where, as here, class plaintiffs are being held in detention at a U.S. military base inaccessible to HRC where the information sought is unavailable in any other way, and where clear prejudice results to the rights of the Haitian refugees on Guantanamo by coerced repatriation. The need for expedited discovery is even more compelling given the imminent threat of further coerced repatriations. Thus, these are unusual circumstances, clearly prejudicial to all of the intervenors, which warrant expedited discovery.

11. There is a substantial likelihood that intervenor- plaintiffs will prevail on the merits of their claim. There is no basis in law for the defendants' actions that underlie this lawsuit and intervention. On the other hand, there is substantial authority for enjoining defendants' actions in the United States Constitution, federal statutory law, and international law, as intervenor-plaintiffs will demonstrate upon the hearing of this matter.

12. A temporary restraining order is appropriate since the injuries to intervenor-plaintiffs that they seek to restrain the defendants from inflicting greatly outweighs any harm that could conceivably result to the defendants from preliminary injunctive relief. The marginal cost (economic or otherwise) of maintaining the Haitian refugees in Guantanamo, where austere conditions of hardship predominate in any event, or of providing access and information to HRC, is minimal, whereas the risk of retaliation against repatriated Haitian refugees may be substantial. Moreover, granting the Intervenor/Plaintiffs' Motion for a Temporary Restraining Order will serve the public interest. The public interest is met when the law is obeyed. The Plaintiffs seek equal treatment under the law -- a principle so fundamental to our system of justice it need not be discussed at length here except to recognize that the Immigration and Nationality Act, the decisions of our highest court (Jean v. Nelson, 472 U.S. 846 (1985)), and the due process clause of the Fifth Amendment all support the view that Haitians at Guantanamo should be treated equally.

The public interest is also served in protecting HRC's First Amendment rights. Finally, the policy of the United States has never been to coerce persons to return to a place where they may be harmed. A temporary restraining order would further all of these public policies.

WHEREFORE, Plaintiffs respectfully request, on their own behalf and on behalf of all other individuals similarly situated, that the aforementioned class be certified by this court.

Respectfully submitted,


Ira J. Kurzban, Esq.
Florida Bar No. 225517

Helena Tetzeli, Esq.
Florida Bar No. 759820

Brian Torres, Esq.
2650 S.W. 27th Avenue
Second Floor
Miami, Florida 33133
Telephone: (305) 444-0060
Facsimiles (305) 444-3503

Robert E. Juceam, Esq.
Douglas W. Baruch, Esg.
1001 Pennsylvania Avenue, N. W.
Suite 800
Washington, DC 20004-2505
Telephone: (202) 639-7000
Facsinile: (202) 639-7008

Attorneys for Intervenor
Haitian Refugee center
Of counsel:

Michael Ratner, Esq.
124 Washington Place
New York, NY 10014

Steven Forester, Esq.
Supervising Attorney
Haitian Refugee Center, Inc.
119 H.W. 54th Street
Miami, FL 33137

Bruce J. Winick, Esq.
Irwin P. Stotzky, E6g.
University of Miami
Coral Gables, FL 33134

Lisa Daugaard, Esq.
Coalition for the Homeless
89 Chambere Street, 3d Floor
New York, NY 10007

Cheryl Little
Florida Rural Legal Services
9600 NE 2nd Avenue
Miami, FL 33138


I HEREBY CERTIFY that a true and correct copy of the foregoing was served hand-delivery this 31st day of october, 1994 to: Dexter Lee, Esq., AUSA,Office of the United States Attorney, 99 N.E. 4th Street, Miami, Florida 33132; and Roberto Martinez, Esq., Greenberg Traurig, 1221 Brickell Avenue, Miami, Florida 33131.


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