Cuban American Bar Association v. Christopher: Memorandum in Support of Restraining Order and to Expedite Discovery
                                   CASE NO.: 94-2183-CIV-ATKINS

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


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 others similarly situated, by and through the undersigned counsel, and pursuant to Federal Rules of Civil Procedure 65, 33 and 34, respectfully submit their Memorandum of Law in Support of their Motion for Temporary Restraining Order and to Expedite Discovery.

Since July, 1994, the United States Government, pursuant to a policy announced by the Clinton Administration, has detained at the U.S. Naval Base in Guantanamo Bay, Cuba, all Haitian refugees interdicted at sea. Currently, there are approximately 6,000 Haitian refugees interned at camps in Guantanamo. The Haitians live in overcrowded, filthy conditions. They lack any privacy or the basic amenities of life.

The Government has denied, and continues to deny these Haitian refugees the right to process their respective claims for asylum or refugee statue. This fact, coupled with the overcrowded, dirty, and generally inhumane conditions at Guantanamo has resulted in constructively forcing thousands of Haitian refugees to return to Haiti, rather than face continued and indefinite detention under these conditions

Further, Defendants have recently made conditions in the camp even worse and have begun a campaign to intentionally coerce, Haitians to return to Haiti. As set forth in more detail below, the Defendants have employed various methods to increase the numbers of Haitians repatriated. Defendants have recently reduced food rations; reduced and denied access to water; raided tents in the middle of the night and awoken refugees to harass and intimidate them into "volunteering" to repatriate; repeatedly moved large groups of Haitians from one tent to another or from one part of the camp to another for no other reason other than to make life even worse at the camps; and interrogated Haitians who "volunteer" to repatriate and then change their minds.

Further, refugees have been involuntarily returned to Haiti without access to accurate information concerning conditions in Haiti or counsel to advise them.

Further, the government has violated Plaintiff HAITIAN REFUGEE CENTER, INC.'s ("HRC") First Amendment right to meet with Haitian refugee clients at the camp. Finally, and as set forth in more

detail below, Defendants have treated the Haitian refugees at Guantanamo differently from the Cuban refugees at Guantanamo, Although both groups are forced to live under deplorable conditions, the Defendants have paroled Cuban minors into the United States, and have provided to the public (including relatives of Cuban refugees in the united States) a list of the approximately 32,000 Cuban refugees detained at Guantanamo. Defendants have failed and refused to parole unaccompanied Haitian minors into the U.S., and have failed and refused to provide HRC with the identities of Haitian refugees interned at Guantanamo, who currently number 6,000.



1. Involuntary Repatriation of the Haitian Refugees would Violate The Due Process Clause of the fifth Amendment, Article 33 of the 1951, United Nations Convention Relating to the Status of Refugees, and INA 243(h).

The Haitian refugees seek to prevent involuntary returns to the country from which they fled and seek injunctive relief against unlawful conduct by those U.S. government officials not complying with the law. The Haitian refugees are entitled to this relief under U.S. statutory law, treaty, and customary international law-embodied in the rule of non- refoulement --which protect Haitian refugees fearing persecution from forced return to Haiti before a determination of their claim for asylum or refugee status is made. Further, they seek procedural protections in connection with the manner in which this status is determined, as afforded by international law and the INA.

The Haitian refugees have a vested, due process right in not being repatriated--coercively or otherwise--to Haiti. Executive officials of the U.S. government explicitly set up the "safe haven" on Guantanamo for the purpose of providing Haitians interdicted at sea who were determined to have a "credible fear of persecution" a place to go, other than being returned to Haiti against the principle of non-refoulement. The defendants encouraged Haitians fleeing persecution to rely in good faith on this offer of safe haven. Having done so, lower government officials now seek to coerce Haitians into returning to Haiti by reneging on the expectation of safe haven that Executive officials have created in the Haitian refugees. Such repatriation constitutes an infringement of the Haitian refugees due process rights under the Fifth Amendment. Haitian Centers Council. Inc. v. McNary , 969 F.2d 1326 (2d Cir. 1992)("Once 'screened in'--that is, found by the government to have a credible fear of persecution if returned to Haiti--the plaintiffs are entitled to due process prior to United States officials altering their now-different status."); see also United States ex ref. Paktorovics v. Murff, 260 F.2d 610, 614 (2d Cir. 1958)(speech by President and non-binding Congressional resolution induced legitimate expectation by Hungarian refugees of parole into U.S., due process required that parole procedures by plaintiff Hungarians be expanded).

Further, Article 33 of the 1951 United Nations Convention Relating to the Status of Refugees (the "Convention"), 19 U.S.T. 6259, T.I.A.S. 6557, which is binding on the United States through its accession to the United States Protocol Relating to the Status of Refugees (the "protocol"), 19 U.S.T. 6223, T.I.A.S. No. 6577, prohibits signatory states from expelling or returning any refugee "in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." The Convention also requires that signatory states ensure that repatriation of refugees is voluntary because a refugee loses the protections afforded by the Convention when he "voluntarily re-avil[s] himself of the protection of the country of his nationality." Convention Art. l(C)(l) 1 The protection afforded by Articles l(C)(l) and 33 apply to refugees until the refugees voluntarily avail themselves of the protections that their country of origin will afford them.

The Defendants will attempt to argue that Eleventh Circuit and U.S. Supreme Court case law preclude the enforcement of the Haitian refugees' Article 33 rights. First, citing Haitian Refugee Center, Inc. v. Baker, 949 F.2d 1109, the Defendants will argue that Article 33 is not "self-executing" and accords the Haitian refugees no enforceable rights. Id. at 1110. Second, the Defendants will urge that, even if Article 33 is deemed enforceable, Article 33 cannot be applied "extraterritorial" to the Haitians on Guantanamo because the Haitian refugees are not "within the United States." Sale v, Haitian Centers Council, Inc , 113 S.Ct. 2549 (1993). Neither of those arguments preclude enforcement of the rights Article 33 grants the Haitian refugees on Guantanamo.

With respect to whether Article 33 is "self-executing," the Baker decision ignored binding law that indicates that Article 33 is "self-executing." The Supremacy clause of the U.S. Constitution provides that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." U.S. Const., Art. VI, cl. 2. Article 33 is a provision of a valid treaty, in force, made under the authority of the United States, and thus has the force of domestic law. The Baker court in its summary opinion never addressed this issue. See Baker, 949 F.2d at 1110. Baker also ignored language in Supreme Court cases that indicates that Article 33 is indeed "self-executing." In INS v. Stevic, 467 U.S. 407, 428-29 n.22, 104 S.Ct 2489, 2501 n.22 (1984), the Court stated that Article 33 "gave the refugee an entitlement to avoid deportation to a country in which his life or freedom would be threatened." Moreover, in Cardoza Fonseca, 480 U.S. 421, 429, 107 S.Ct. 1207, 1212 (1987), the court stated that Article 33 "imposed a mandatory duty on contracting States not to return an alien to country where his 'life or freedom would be threatened' on account of one of the enumerated reason." President Johnson, in describing the Protocol to the Senate for its advice and consent, said that "[f]oremost among the humanitarian rights which the Protocol provides &is the prohibition against expulsion or return of refugees to any country where they would face persecution." Message from the President of the United States transmitting the Protocol Relating to the Status of Refugees, S. Exec. X, 90th Cong., 2d Sess. III (1968). These authorities confirm that Article 33 imposes an immediate, effective obligation not to deliver refugees into the hands of their persecutors, not an obligation to take further legislative steps to make the Article effective.

With respect to whether Article 33 provides enforceable rights to the Haitians, the Supreme Court's decision in Sale cast doubt on the continuing validity of Baker, as it seemed not to question the validity of Article 33 as an independent source of rights. See generally Sale, 113 S.Ct. 2549.

Moreover, Sale is inapposite on the point as to whether the Haitian refugees on Guantanamo can avail themselves of the protections of Article 33. Sale addressed the question as to whether Article 33 afforded Haitian refugees interdicted by the Coast Guard in international waters and forcibly returned to Haiti any rights of non-refoulement. 113 S.Ct. at 2552. The Supreme Court concluded that neither the text nor the negotiating history of Article 33 indicated that it was intended to have "extraterritorial effect." Id. at 2563-67. Whether Article 33 has any extraterritorial effect, however, is irrelevant with respect to the Haitian refugees on Guantanamo, since those persons are neither on the high seas, as were the Haitians in Sale, nor is Guantanamo outside of the control and jurisdiction of the United States.2

In addition to Article 33, the Haitian refugees on Guantanamo also have enforceable rights under 234(h) of the Immigration and Nationality Act, 8 U.S.C. 1253(h), which prohibits their coerced repatriation to Haiti. That section prohibits the Attorney General from deporting or returning a refugee to a country if the Attorney General determines that the refugee'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." 8 U.S.C. 1253(h)(1). Section 243(h) is the statutory enactment of Article 33 of the 1951 United Nations Convention Relating to the Status of Refugees. As with Article 33, the Eleventh Circuit and the Supreme Court have interpreted 243(h)not to provide enforceable rights to Haitians detained on the high seas. Haitian Refugee Center, Inc. v. Baker, 953 F,2d 1498, 1510 (llth Cir. 1992); Sale v. Haitian Centers Council, Inc., 113 S.ct 2549, 2562 (1993). But those courts' interpretations of 243(h) is distinguishable from this case for the same reason that Sale's interpretation of Article 33 is inapposite: the Haitians in Guantanamo are no longer on the high seas but are within the jurisdiction of the United States.3

2. Haitian Refugees Who Have Already Been Repatriated Have Not Freely Given "Voluntary". Consent to Return to Haiti, and the Conditions of the Remaining Refugees' Confinement Make It Likely the Further Repatriations Will also Be Involuntary.

Further, under Article 33, the Office of the United Nations High Commissioner for Refugees (the "UNHCR") has interpreted Articles l(c)(1) and 33 as permitting repatriation only when three requirements are met: (a) voluntariness; the refugee must act voluntarily; (b) intention: the refugee must intend by his action to re-avail himself of the protection of the country of his nationality; (c) re-avilment: the refugee must actually obtain such protection. Office of the United Nations High Commissioner for Refugees, Handbook of Procedure and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, 27-28 (1979).4 The Executive Committee of the UNHCR, of which the United States is a member, is the administrative body of the United Nations responsible for implementing the Convention. The Executive Committee has issued policies and recommendation in the form of "Conclusions," including Conclusion No.'s 18, 22 and 40, which require that:

(I) Refugees contemplating repatriation be briefed about the dangers and other conditions they face upon their return to their country of nationality.5

(ii) Minimally adequate living conditions be provided to refugees contemplating repatriation so as to ensure that the refugees are not indirectly coerced to repatriate.

(iii) Repatriation take place only at the freely expressed wish of refugees.6

Based on the foregoing, it is settled that a refugee's decision to repatriate is voluntary only if: (1) the refugee has been provided with essential information about the risks facing him and his options, enabling him to make an informed choice; and (2) the refugee is free from other forms of direct and indirect coercion, as, for example, when living conditions are adequate, ensuring that detention in a squalid environment which appears to be punitive and indefinite does not coerce him into returning to a place of persecution. These two aspects of voluntariness are essential. Refugees must have accurate information regarding the conditions in, and likely consequences of returning to, their country of origin.7 In addition to accurate reports on the conditions in the refugee's country of nationality, this principle would also seem to require that an alien seeking asylum be provided with an accurate account of the likelihood that the alien will receive refugee status if she remains in the safe haven site or returns to the alien's home country.

In its treatment of Haitians detained on Guantanamo, the United States has failed to provide the two preconditions for voluntary repatriation discussed above. The defendants have violated and are prepared to violate Article 33 of the Convention and 243(h) of the INA through coercion of the refugees into involuntary repatriation. These Haitian refugees, without legal counsel, and facing inhumane treatment and living conditions, are not likely to grant informed consent to a voluntary return as required by Article 33 of the Convention and 243(h).

In addition to the lack of informed consent, the inadequate conditions imposed on the Haitian refugees continue to exert pressure on the Haitians to return to their home country. Numerous visits to the Guantanamo camps have revealed inadequate living conditions there. Even with the efforts to improve these conditions, the prospect of indefinite detention is so uninviting that it does not constitute a viable option that the Haitians can weigh against the option of returning.

In the event that the Court declines to enter preliminary relief enjoining the government from repatriating any of the detained Haitian under the coercive conditions described herein, Intervenor Plaintiffs respectfully request that the Court enjoin the repatriation of any minor Haitian refugee, on equal protection grounds, in that Defendants have permitted minor Cuban refugees at Guantanamo the option of parole into the United States, and thus those Cubans have not been forced to choose repatriation over the untenable conditions of indefinite detention at Guantanamo. Such relief would preserve the status quo until this Court can determine whether such Haitian refugees are entitled to the same consideration for parole into the United States under the Administrative Procedure Act and the constitutional guarantee of equal protection.

Although the Attorney General has "broad discretionary power to parole unadmitted aliens," she may not exercise that discretion to discriminate invidiously against a particular race or group, or depart without rational explanation from established policies, Bertrand v. Sava, 684 F.2d 204, 212 (2d Cir. 1982), citing Wong Wing Hang. v. INS, 360 F.2d 715, 719 (2d Cir. 1966). Nor may she exercise her parole power in a manner which gives "effect to considerations which Congress could not have intended to make relevant." Doherty v. INS, 908 F.2d 1108, 1117-18 (2d Cir. 1990); D.C Federation of civic Ass'ns v. Volpe, 459 F.2d 123l, 1248 (D.C. Cir.), cert. den., 405 U.S. 1030 (1972). Parole determinations must be made on an individualized basis, and the Refugee Act of 1980 specifically proscribed parole decisions based on group characteristics. Doherty v. INS, supra at 1119 (2d Cir. l990)(Refugee Act intended to eliminate reliance on geographic or ideological factors in parole decisions), rev'd on other grounds, 112 S.Ct. 719 (1992); Bertrand v. Save, supra (individualized determination); Louis v. Nelson, 544 F.Supp. 973 (S.D. Fla. 1982).

Indeed, Defendant's own regulations do not permit taking national origin into account in making decisions to parole aliens out of detention. Jean v. Nelson, 472 U.S. 846, 857 (l984). Moreover, INS regulations at 8 C.F.R. 212.5(a)(2)(ii) provide that minor status of the applicant shall generally make the granting of parole "strictly in the public interest~ within the meaning of the statute authorizing parole, 1HA S 212(d)tS)(A). Deviation from those regulations based on national origin as in the case at hand, which comes into stark relief when the treatment of Haitian minors in compared to that of Cuban minors, should be reviewed and reversed by this Court as arbitrary, capricious, not in accordance with law. Jean v. Nelson, supra; Moret v. Karn, 746 F.ad 989, 992-92 (3d Cir. 1984); Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 452 (S.D. Fla. 1980), aff'd as modified sub nom Haitian Refugee Center v. Smith, 676 F.2d 1023, 1041 n.48 (5th Cir. Unit B 1982).


HRC's constitutional right of access to Haitian asylees has been and continues to be irreparably harmed by defendants' practices with respect to Haitians interned at Guantanamo. HRC is a political and civil liberties organization, and assists the Haitians to "engage in association for the advancement of beliefs and ideas." In re Primus, 436 U.S. 412, 422-24 (1978). HRC's rights to access to it. clients on Guantanamo have been expressly recognized by the courts. Jean v. Nelson, 727 F.2d 957 (llth Cir. 1984)(en banc), aff'd on other grounds, 472 U.S. 486 (1985);8. see also Haitian Refugee Center V. Civiletti, 503 F.Supp. 442, 531-32 (S.D. Fla. 1980) (recognizing right to solicit clients at INS facilities).

1. The First Amendment has extraterritorial application.

The Constitution, including the First Amendment's ban on laws abridging freedom of expression and associated rights, serves as a limitation on governmental action wherever it may occur. In Reid. v. Covert, 354 U.S. 1, 1 L.Ed. 2d ll48, 77 S.ct. 1222 (l957), a Supreme Court plurality concluded that American citizens tried by United States military authorities in a foreign country were entitled to the protections of the Fifth and Sixth Amendments, and concluded that "[t]he Constitution imposes substantive constraints on the federal government, even when it operates abroad." We could not imagine an argument that the Government of the United States could boil in oil Nazi war criminals convicted at Nuremberg without violating the Eighth Amendment's unmodified restriction on governmental imposition of cruel and unusual punishment, or by incarceration abroad in isolation and silence those who would speak in their defense without violating the First Amendment's mandates on freedom of expression.

2. The First Amendment applies on Guantanamo.

The First Amendment applies on Guantanamo Naval Base. Guantanamo is under the exclusive jurisdiction and control of the U.S. Government. The Government has complete control over all means of communication and outside information. See generally Flower v. U.S., 407 U.S. 197, 198-99 (1972)(First Amendment applicable to U.S. conduct on a military base); see also Lamont v. Woods, 948 F.2d 825, 835 (2d Cir. 1991)(establishment clause of First Amendment applies extraterritorially).

Indeed, denial of the First Amendment right of access of an association, organized in the United States for the express purpose of asserting First Amendment rights, applied even in a war theater. See Nation Magazine v, United States Dep't of Defense, 762 F.Supp.1558, 1572 (S.D.N.Y. 1991) (holding that there is some minimal constitutional right to access of the press in a military zone); see also Greer v. Spock, 424 U.S. 828, 834 (1976)(recognizing that the First Amendment applies to military installations, although upholding content-neutral restrictions found necessary to prevent "a clear danger to the loyalty, discipline, or morale of troops"); Flower v. United States, 407 U.S. 197, 32 L.Ed. 2d 653, 92 S.Ct. 1842, (1972)(holding that the First Amendment applies on a military base and recognizing that First Amendment rights are broader in areas on military bases utilized for non-military functions).

Where, as here, access is sought to a portion of a government installation at Guantanamo that is serving a non-military function and is instead more similar to a prison or to a remote courtroom than it is to a war zone, there should be no doubt that the First Amendment applies. Nation Magazine, 762 F.Supp. at 1572. The

Guantanamo naval base is a large facility which serves military, as well as non-military purposes. It is subject to a long-term lease from the government of Cuba, and is an area over which our country exercises the functional equivalent of full sovereignty. The portion of the base to which access is sought serves the non-military function of detaining refugees. See Flower, Supra. Permitting HRC's access to this portion of the base will in no way present "a clear danger to the loyalty, discipline, or morale of troops."

3. The First Amendment bars limitations on speech based on content.

The decision in Haitian Centers Counsel. inc. v. Sale, 823 F.Supp 1028 (E.D.N.Y. 1993), is informative on the issue of counsel's constitutional right to communicate with clients or prospective clients. The Sale court held that the United States could not preclude attorneys from contacting their Haitian refugee clients detained at Guantanamo, particularly if the United States opens its non-public forum to some, but excludes others who seek to communicate. Sale, 823 F.Supp. at 1040. The Sale court held that when the United States opened a non-public forum to some, but excluded attorneys from "speaking with their clients because of the viewpoint of the attorneys' speech, the government did not establish that legitimate state interest. Id. at 1040. The Sale decision establishes that the Government cannot knit advice concerning the legal rights and options available to detainees at Guantanamo to the viewpoint approved by the Government alone. ID."Such Government discrimination against the disfavored viewpoint strikes at the hearts of the First Amendment. Id. at 1941.

The facts in Sale are similar to the facts at issue before this Court. In Sale, the plaintiff-attorneys were completely denied access to their clients -- Haitian refugees being forcibly detained at Guantanamo. Id. at 1040-41. Here, HRC's access has been so limited so as to be meaningless. Affidavit of Steve Forester, Exhibit "D". The plaintiff-attorneys in Sale, as in the case at hand, were denied meaningful access despite the fact that non-lawyer news reporters, clergy persons, and politicians were allowed to meet with and give advice to the detainees. Id. at 1041 ("Countless persons other than the Haitians' lawyers have been permitted to visit, consult with, and give advice to the Haitians being detained at Guantanamo"). Further, while excluding attorney communications, the defendants in the Sale case provided the Haitian detainees with erroneous legal advice. Id. at 1040. The same remains true today.

In Sale, the court found that the United States engaged in viewpoint discrimination because it opened up a forum to some, and, indeed, offered a viewpoint itself, regarding the legal rights of Guantanamo detainees, while at the same time excluding any other viewpoint that may contradict the government. Id. at 1040. "Legal rights and options of [Guantanamo] detainees are discussed on Guantanamo, but only from the viewpoint of which the Government approves." Id. at 1040.

Even if Guantanamo is not considered a public forum, discrimination by the government on the basis of viewpoint is unconstitutional and violates the First Amendment. Perry Educ.. Ass'n v. Perry Local Educ.. Ass'n, 460 U.S. 37, 46 (1983). As the Supreme Court held in Perry, even in a non-public forum, government censorship of speech must be" . . . reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." see also, Abdul Wali v. Couglin, 754 F.2d 1015, 1031 (2d Ctr. 1985)(Prison commissioner's decision to exclude a report on prison conditions to prison inmates exceeded his discretion because his decision to ban the [r]eport was based solely on his distaste for its message"].

In the instant case it is clear that the Defendants are denying HRC access to the refugees' because they disagree with HRC's viewpoint. The government's virtually complete ban on communications between HRC and its clients fails to meet the test for abridgment of speech in a non-public forum because it does not reasonably serve a legitimate government interest. Perry, Id. Indeed, the Supreme Court has been especially hostile to government limits on speech where alternative means of communication do not exist. See Perry, Supra; Cornelius v. N.A.A.C.P. Legal Def. Educ.. Fund. Inc., 473 U.S. 788, 809 (l985).

The Supreme Court has recently affirmed that viewpoint discrimination, even in non-public fore, violates the First Amendment. Lamb's Chapel v. Center Moriches School Dist., 113 S.Ct. 2141, 2147 (1993). See also Travis v. Oswego-Appalachian School Dist., 927 F.2d 688, 693-94 (2d Cir. l990)(striking down school district's exclusion of nonprofit religious group from nonpublic forum as viewpoint-based abridgement of free speech because the school district allowed other groups to address the same issue).

Here, the government has given members of the press, clergy, and celebrities access to offer their respective viewpoints on the subject of the Haitian Refugees detention and rights. The Government itself has expressed its viewpoint on the Haitians' loyal rights and advised them incorrectly that they must return to Haiti to have any hope of gaining refuge in the United States. The Government, however, has denied access to HRC, Plaintiffs' counsel, who may seek to express a differing viewpoint. Thus, in light of Sale and Lamb's Chapel, it is clear that the United States in this case is engaging in viewpoint discrimination against protected speech in violation of the First Amendment.9

4. Policy Reasons Favor Allowing HRC Access to Guantanamo.

In addition to the aforecited First Amendment law, policy reasons favor permitting open access by attorneys to their clients -- especially when the clients desperately need counsel. In Peterson v. Talisman Sugar Co., 478 F.2d 73, 82, (5th Cir. 1973), the former 5th Circuit found that attorneys must be given access to their clients in labor camps because of the absence of other means for communicating with their migrant worker clients. Similarly, in Louis v. Meissner, 530 F.Supp. 924, 929-30 (S.D. Fla. 1981). this court enjoined exclusion and deportation hearings for class members without counsel because the government transferred the Haitian refugee aliens to detention facilities located in remote areas with few or no immigration attorneys or interpreters. In sum, courts have rightly been protective of free communications between attorney and client and have thus been reluctant to alloy any government restrictions on such communications.

Finally, because the First Amendment protects both the conveyance and the receipt of speech, Procunier v. Martinez, 416 U.S. 396, 40 L.Ed. 2d 224, 94 S.Ct. 1800 (1974), a total denial of access constitutes a violation of the First Amendment rights of the Haitian refugees in U.S. custody as well as of HRC, its attorneys, employees, and members."Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid." Procunier v. Martinez, 416 U.S. at 419. Moreover, "[t]o determine whether access is meaningful, adequate, and effective, defendants' policies and practices must be viewed in light of the characteristics and needs of the[persons] in government custody.. Robbins v. Budke, 739 F.Supp. 1479, 1485 (D.N.M. 1990). See also Bounds v. Smith, 430 U.S. 817, 823-34 (1977) (requiring meaningful access). The Haitians in defendants' custody are sociologically and historically conditioned to be fearful of and submissive to government officials and other authority figures.

The First Amendment rights of HRC and the Haitian refugees are clearly implicated, and "meaningful access" in the circumstances in required.


Pursuant to the policy that President Clinton announced in August with regard to detention of Cubans on Guantanamo, the U.S. Government has publicly disseminated the names of those Cubans so that family members and friends of the detainees would be able to determine if their loved ones were in detention. In Miami, the relatives and friends of Cuban detainees have been able to avail themselves of this information and frequently check to determine if their loved ones were detained on Guantanamo. Lists have been posted in public--outside Cuban radio stations, for example--and anyone desiring that information may receive it. This policy was implemented shortly after the President announced his decision on August 19, 1994 to detain on Guantanamo Cuban refugees who were fleeing Cuba in rafts.

By contrast, the Defendants have never released the names of the Haitian refugees detained on Guantanamo, many of whom have been there for months and months, notwithstanding that the Haitian relatives and friends of Haitians detained on Guantanamo share just as great a desire for that information as do Cuban Americans in Miami. The Defendants have this information in their possession, and use it for their own purposes on Guantanamo, in Washington, D.C., and elsewhere. There is no government interest--rational, significant, compelling, or otherwise--that justifies this disparate treatment of the Haitian refugees on Guantanamo. This disparate treatment constitutes invidious discrimination based on race and/or national origin and is a violation of the INA, as well as of the Fifth Amendment to the United States Constitution.

To be clear, the Haitian Refugee Center seeks only a more limited benefit of the same nature that the government has already accorded the Cuban---the names of those Haitians detained on Guantanamo and the ability to provide information to Haitians in the United States who seek to determine whether loved ones have actually been detained. Furthermore, the Haitian Refugee Center intends to disseminate the information in a far narrower manner than the government has with respect to the Cubans. Rather than disseminating the lists to the public at large, HRC will keep the list in its possession, simply informing Haitians who inquire as to whether their loved ones' names appear on the list.

It is a fundamental principal of constitutional law that classifications of persons based on race or national origin are the most suspect of governmental classifications, and receive strict judicial scrutiny when determining their validity under the U.S. Constitution. Korematsu v. U.S., 323 U.S. 214, 216 (1944)(strict scrutiny in incarceration of Japanese during WWII); Bolling v. Sharpe, 347 U.S. 497 (1954) (strict scrutiny in race discrimination in schools in Washington, D.C.); Castaneda v. Partida, 430 U.S. 482 (1977); Hernandez v.Texas, 347 U.S. 475 (1954) (National origin discrimination against Hispanics in grand jury selection impermissible); Oyama v. California, 332 U.S. 633, 644-47 (1948) (Restriction on transfer of agricultural property of Japanese LPR is a violation of equal protection); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

Moreover, the U.S. Supreme Court has held that immigration officials may not exercise their broad discretion under immigration statutes and regulations with regard to race or national origin. Jean v. Nelson, 472 U.S. 846, 105 S.Ct. 2992, 2998 (1985). In Jean, a class of Haitians detained by the INS challenged a change in INS policy from one of general parole for undocumented aliens seeking admission to the United States to one of detention without parole for aliens who could not present a prime facie case for admission--a change without basis in statute or regulation. Id. at 2994. Without reaching the constitutional issue, the court affirmed a remand to the district court to determine whether immigration officials had discriminatorily exercised their discretion with regard to the Haitian detainees. Id. at 2998. Thus, while Congress is given broad latitude to make distinctions otherwise impermissible against U.S. citizens with respect to broad questions of immigration policy, see, e.g., Fiallo v. Bell, 430 U.S. 787.(1977)(illegitimacy); Smith v. INS, 684 F.Supp. 1113 (D, Mass. 1988)(upholding carriage fraud amendments act regarding separation of wife and husband for two years), invidious discrimination is reviewable in executive agency enforcement of the law. This is all the more true where Congress has expressly forbidden all discrimination, as in the treatment of applicants for parole and asylum, which was prescribed by the Refugee Act of 1990. See Jean v. Nelson, 472 U.S. 846, 105 S.Ct. 2992 (1985); Sale v. Haitian Centers Council. Inc., 113 S. Ct 2549 (1993).

The above principles indicate that the government's refusal to provide the names of Haitian detainees on Guantanamo constitutes invidious discrimination on the basis of race or nationality in violation of statutory and constitutional law. Without disclosure to HRC of the names of those detainees, all of the plaintiff-intervenors will be irreparably harmed. Among other things, HRC will be unable to determine whether any of those detainees are eligible for relief under the INA, such as through derivative citizenship through Haitian American relatives in the United States. Were this relief to be denied, undoubtedly at least some of the Haitian detainees to be repatriated to Haiti will never have their valid claims to relief processed and will risk persecution upon return to Haiti. Moreover, the interests of Haitian family members residing in the United States in those detained in Guantanamo, and of the Haitian detainees themselves, substantially outweigh any interest the government may have in not releasing those names, particularly in light of the fact that they publicly released the names of those Cubans already detained on Guantanamo. Thus, the temporary restraining order requiring the government to release those names is warranted.10


Expedited discovery should be granted as part of this temporary restraining order as a logical complement to the other relief sought and to allow the Haitian Refugee Center the opportunity to gather information, so that they may be better able to represent the Haitian refugees' interests prior to the repatriation of any more Haitian refugees. "Expedited discovery should be granted when some unusual circumstances or conditions exist that would likely prejudice the party if he were required to wait the normal time." Fimab-Finanziara Maglificio v. Kitchen, 548 F.Supp. 248, 250 (S.D. Fla. 1982); Gibson v. Bagas Restaurant, 87 F.R.D. 60, 62 (W.D. Mo. 1980). Discovery matters are committed to the discretion of this court. See, e.g., Levy Etowah County Bd. of Educ.., 963 F.2d 1416 (llth Cir. 1992). Courts have previously granted expedited discovery in order to ensure that evidence is not lost. See Schiff v. Steiger, 1991 W.L. 28065 (N.D. Ill. 1991).

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.

Moreover, this relief is necessary in order to render effective the other relief requested. Obviously, HRC'c request to gain access to the Haitian refugees on Guantanamo would be meaningless were such counsel not granted expedited discovery in order to better represent the Haitian refugees interests prior to repatriation. Failure to grant expedited discovery under these circumstances would be akin to tying one hand behind the back of HRC. HRC has already been denied its First Amendment rights to counsel the Haitian refugees at Guantanamo, and those refugees have likewise been denied one of the most basic constitutional rights that his country recognizes: the right to counsel in matters seriously affecting persons' life, liberty and property.

As the Intervenors will be irreparably harmed by failure to grant this relief, and the Defendants will suffer no injury if this information is produced to Plaintiffs on an expedited basis, this relief should be granted.


This court should enjoin the Defendants, their employees, agents, and representatives from repatriating any of the Haitian refugees remaining on Guantanamo to Haiti prior to this Court's making a determination on the availability of more permanent injunctive relief. There is a substantial risk that Haitian refugees repatriated to Haiti will suffer retaliatory persecution upon their return to Haiti, particularly in areas where the multi-national force are not present, and also in rural areas where the notoriously repressive section chiefs ("chefs de section") still retain some measure of control and influence. Further, paramilitary units still retain their firearms. See Exhibit "A" (Organization of Am. States Press Release, No. 22/94, Oct, 27, 1994, at 2-3).

Further, HRC will suffer irreparable harm if the Defendants continue to deny HRC its First Amendment rights of access to its clients. A temporary restraining order is necessary to prohibit further repatriations of class members before HRC can obtain access to them. Such repatriation, of course, would render HRC's First Amendment rights meaningless. As the Supreme Court has held, "The loss of first amendment rights for even minimal periods of time unquestionably constitutes irreparable harm. Elrod v. Burns, 427 U.S. 347, 373 (1976); accord, Taylor v. City of Fort Lauderdale , 810 F.2d 1551, l554 (llth Cir. 1987); Cate v. Oldhem, 707 F.2d 1176, 1188 (llth Cir. 1983).

Finally, the unaccompanied Haitian minors will suffer irreparable harm in the absence of an order restraining the government from further confining those children on Guantanamo. At least one court has recognized that involuntary confinement can exact irreparable harm on minors. Kidd v. Schmidt, 399 F. Supp. 301 (E.D. Wisc. 1975). This court should do the same. The conditions on Guantanamo are difficult even for adults to endure, and the unaccompanied Haitian children should no longer be forced to suffer them. The restraining order with respect to their confinement should be granted.


The irreparable harm that Intervenor Plaintiffs will certainly suffer in the absence of temporary injunctive relief from this Court has been discussed above. None of the temporary relief measure requested will impose any more than a de minimus burden on the Defendants, and any such burden is heavily outweighed by the imminent danger that the constitutional and statutory rights of HRC and the detained Haitian Plaintiffs will be permanently extinguished. as well as the lives and physical safety of the latter. Rather, Intervenor Plaintiffs have requested only that temporary relief which will be adequate to preserve the status quo and prevent the extinguishment of rights pending an opportunity for the Court to more fully examine that issues at stake in this case.

Ceasing coerced repatriations. With regard to this portion of Intervenor Plaintiffs' notion, a temporary restraining order would merely preserve the status quo until such time as the Court is able to more thoroughly examine the rights and obligations of the parties. The vast majority of the detained Haitian Plaintiffs have been at Guantanamo for many months; the Haitian camp is now less than half the size it was at its peak in July, 1994. As the district court noted when it issued a TRO on analogous facts in Haitian Centers Council v. McNary 11, the burden of housing the detained Haitians for a few days longer can scarcely outweighs the irreparable harm faced by Plaintiffs here should the repatriations continue. 789 Y.Supp. 541.,548 (E.D.N.Y. 1992).12

Access to counsel. The experience of attorneys counseling detained Haitian refugee clients on Guantanamo in the recent past teaches unequivocally that the Defendants are more likely to derive benefits than to suffer disruptions in the running of the Guantanamo camps if HRC is allowed access to its clients. The former Commander of the military Joint Task Force, tasked with administering every aspect of the Haitian detention camps at Guantanamo, testified in Haitian Centers Council v. Sale, that, when the Haitians' counsel were present on the base, he found no disruption to the operation of the camp.13 The district court also found that the presence of counsel to the detained Haitians on Guantanamo for months prior to trial had not been disruptive of military or governmental operations. 823 F.Supp. at 1036 (E.D.N.Y. 1993). Rather, testimony at trial indicated that it was a lack of certainty about the Haitians' fate and status, exacerbated by the absence of independent counsel, that caused tensions to rise in the camps. Indeed, many of the attorney. associated with HRC who are I willing to go to Guantanamo to counsel the Haitians detained there have already done uneventful "tours of duty." at Guantanamo in previous Haitian camps, under the very same circumstances that obtain there today. Provision to HRC of the list of Haitians detained at Guantanamo. Defendants have already compiled this information for their own use. Thus, granting this aspect of Intervenor Plaintiffs' motion would impose no additional cost or administrative burden upon Defendants. Moreover, defendants previously supplied a much longer list of Cubans detained at Guantanamo to a variety of Cuban and Cuban-American groups and institutions in Miami. The publication of the Cuban list has had the benefit of reassuring family and friends of those detained at Guantanamo that their loved ones did not drown in the attempt to leave Cube, or otherwise disappear. Friends and families are then in a position to seek to aid their loved one in material and nonmaterial ways. Defendants cannot argue that the privacy interests of the Haitians whom Defendants have taken forcibly into custody preclude their providing this information to HRC. Aside from the fact that Defendants were not prevented by this or other considerations from releasing the list of detained Cubans, HRC has repeatedly offered to guarantee the security of the names, proposing to merely confirm or deny that a given individual is at Guantanamo in response to credible inquiries from family and friends. Protecting the safety, security and interest of Haitian refugees from political persecution is central to HRC's session; on that basis, courts have regularly allowed HRC to assert the interest of its members, including refugees in detention, in litigation. See, e.g., Haitian Refugee Center V. Nelson, 694 F.Supp. 864, 875 (S.D. Fla.), aff'd, 872 F.2d 1555 (llth Cir. 1989), aff'd sub nom McHarv v. Haitian Refugee Center, 498 U.S. 479 (1991); Haitian Refugee Center v. Baker, 789 F.Supp. 1552 (S.D. Fla. 1991), rev'd on other grounds, 953 F.2d 1498 (llth Ctr. 1992), cert. den_, 112 U.S. 1245 (1992).


The relief Intervenor Plaintiffs have requested would serve the public interest, by providing vital information to those members of the public who are particularly concerned with the fate and present situation of the Haitians detained at Guantanamo; by restoring the integrity of the attorney-client relationship between HRC and its clients at Guantanamo; and by ensuring that the detained Haitian Plaintiffs will not decide to take their lives in their hands in returning to Haiti on the basin of incomplete or wholly inaccurate information about conditions in that country. "[W]ith respect to public interest, it suffices to state that the interest in the sanctity and quality of life is paramount." DiDomenico v. Employers Coop. Indus. Trust, 676 F.Supp. 903, 908 (N,D. In. 1987).


The Intervenor have demonstrated that: (1) there is a substantial likelihood of prevailing on the merits of their claim at trial; (2) there is a substantial threat that if injunctive relief is denied the Intervenor. will sustain irreparable injury; (3) the injuries to the Intervenors interests substantially outweigh any damage, if any, the injunction may cause the Defendants; (4) the injunction will serve the public interest. Tally-Ho, Inc. v. Coast Community Collage Dist. 889 F.2d 1018, 1022 (llth Cir. 1989); E. Remy Martin & Co. S.A. v. Shaw-Ross Int'l Imports, Inc., 756 F.2d 1525, l530 n.l3 (llth Cir. 1985); Burger King Corp. v. Lee, 766 F.Supp. 1149, 1154 (S.D. Fla. 1991).

Intervenor Plaintiffs respectfully request that this Court grant their request for a temporary restraining order enjoining the Defendants from denying HRC access to their clients at Guantanamo and requiring that Defendants provide reasonable access to HRC's clients at Guantanamo, enjoining the Defendants from engaging in involuntary repatriation of Haitian refugees to Haiti through the conditions maintained at Guantanamo, and expediting discovery to enable HRC effectively to represent their clients' interests prior to a coerced repatriation to Haiti.

Respectfully submitted,

Ira J. Kurzban
Florida, Bar No: 225517

Helen Tetzeli, Esq.
Florida Bar No. 759820

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

Robert E. Juceam, Esq.
Douglas W. Baruch, Esq.
1001 Pennsylvania Avenue, N.W.
Suite 800
Washington, DC 20004-2505
Telephone: (202) 639-7000
Facsimile: (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 N.W. 54th Street
Miami, FL 33137

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

Lisa Daugaard, Esq.
Coalition for the Homeless
89 Chanbers 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, l994 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.



1 . Article 1(c)(l), one of the 6 cessation clauses appearing in Article 1 of the convention, provides, in pertinent part, that the Convention "cease[s] to apply to any person ... if... [h]e has voluntarily re-availed himself of the protection of the country of his nationality."

2 .In a 1903 lease agreement, the United States acquired a permanent possessory interest in 45 square miles of land and water at Guantanamo. Under the agreement, the United States exercises "complete jurisdiction and control" over that land. See Agreement for the Lease to the United States of Lands in Cuba for Coaling and Naval Station, 23 Feb. 1903, U.S.T. 418; see also Part II, infra (First Amendment rights of HRC, Haitian refugees enforceable on Guantanamo). Thus, Sale and Baker simply do not apply in the context of Haitian refugees seeking to enforce Article 33 rights while detained at the U.S. naval base at Guantanamo, within the Jurisdiction of the United States and its laws.

3 .Moreover, in Sale v. Haitian Centers Council, Inc., 823 F.Supp. 1028 (E.D.N.Y.1993),the court examined the applicability of U.S. law on Guantanamo and held that the criminal and civil laws of the U.S. apply because the naval base is subject to the exclusive jurisdiction and control of the government. Id at 1041.

4 .The Handbook has been "widely ... use[d] in giving

content to the obligations that the Protocol establishes." INS v, Cardoza-Fonseca, 480 U,S. 421, 436, 440 n.22. (1987).

5 .This element of "voluntary" is also found in the United States common law. See Black's Law Dictionary 1413 (5th ed. 1979). ("The word, especially in statutes, often implies knowledge of essential facts.")

6 .See Voluntary Repatriation, Conclusion No. 18 (XXXI), 31st Session (1980); Voluntary Repatriation, Conclusion No. 40 (XXXVI), 36th Session (1985).

7 .The Executive Committee of the UNHCR Program explicitly has recognized that information about conditions in a refugee's country of nationality is a necessary precondition to the refugee having free choice to re-avail herself of the protection of tat country. In Conclusion No. 18, the Committee stressed "the importance of refugees being provided with the necessary information regarding conditions in their country of origin in order to facilitate their decision to repatriate." Voluntary Repatriation, conclusion No. 18 (XXXI), 31st Session (1980).

8 . Haitian Refugee Center. Inc. v. Baker, 949 F.2d llO9 (llth Cir. l99l), is no obstacle to providing HRC access to the Haitians on Guantanamo. That court held that a lower court injunction prohibiting the government from repatriatingHaitians on Guantanamo could not be sustained on the basis of HRC's asserted First Amendment right of access to the Haitians. Id. at 1111. However, as the dissent in Baker noted, the majority completely ignored binding en banc precedent in the Eleventh Circuit. Id. at 1116 (Jean v. Nelson, 727 F.2d 957, 983 (llth Cir. 1984). Jean held that counsel's right of access is not dependent on where its clients are located. 727 F.2d at 983. This means that HRC's access rights are not dependent on where the Haitians are located or what their substantive rights may be there. Moreover, Baker is limited to its facts since the Haitians on Guantanamo do have rights to equal protection (as in the case of the minor children) as well as due process and statutory rights against repatriation under INA 243(h) and Article 33, as explained Supra.

9 .It should also be noted that, in seeking access to its clients on Guantanamo, HRC is not asking tho United States government or military to affirmatively render assistance in facilitating client contact on Guantanamo. Ukranian-American Bar Ass'n. Inc. v. Baker, 893 F.2d 1374 (D.C. Cir 1990). Rather, HRC asks only that the government and military cease to block its access to its clients on Guantanamo, a request which surely would not impose affirmative burdens on the government, but in fact may be of help to the government in easing tensions on the base. Thus, not only are the facts of this case distinguishable from the Ukrainian-Bar Assn. case, but the facts of this case also positively militate in favor of granting the Motion for Temporary Restraining Order in this respect.

10 . The Defendants may claim that they cannot lawfully be compelled to release the Haitian detainees' names where doing so would constitute an invasion of the detainees privacy under Department of State v. Ray, 112 S.Ct. 541 (1991). In that case, the U.S. Supreme Court addressed the "narrow question," Id. at 545, of whether the government could refuse to disclose the names of Haitians redacted from State Department interview summaries of Haitians who had been repatriated to Haiti. The plaintiffs, a lawyer and certain Haitian asylum-seekers, sought the information pursuant to a Freedom of Information Act ("FOIA") request to determine the danger of retaliation to repatriated Haitians. The State Department redacted the names from the interview summaries, claiming an exemption from disclosure under a FOIA exemption that allows nondisclosure where disclosure "would constitute a clearly unwarranted invasion of privacy.. Id. at 547. The Court upheld the nondisclosure on the grounds that the government met its burden of proving that the information sought was within theterms of the exemption. Id. at 548. The court was persuaded that the dual disclosure of the names and substantial personal information constituted a significant invasion of privacy. Id. It also found significant the facts that disclosure would publicly identify the interviewees as persons who had cooperated with the State Department, possibly subjecting then to retaliation in Haiti, and that the interviewees gave the information pursuant to a confidentiality agreement. Id. at 548-49.

Ray, however, has no application to the instant case. First, HRC is not proceeding under the FOIA, which makes the Ray decision inapplicable on its face. But more importantly, HRC is not a third party who seeks disclosure, but counsel for the very Haitians whose names it seeks. The Ray court was convinced that disclosure to third parties of names coupled with summaries of other "highly personal information" constituted a "significant" invasion of privacy. Id. at 548. In that light, the Court was persuaded that the prospect of retaliation in Haiti against the persons whose names were sought, in combination with the breach of the confidentiality agreement, favored nondisclosure. Id. at 548-49.

In this case, the HRC seeks the names of Haitians detained on Guantanamo for no other purpose than to facilitate identification and representation of those persons. The names will not be released to the public at large (as in the case of the Cubans), but only to friends and relatives of Haitian detainees. The Ray court made clear that it was not holding that release of names was per se an invasion of the privacy of the individuals on the list. See Ray, 112 S.Ct. at 548 n.l2 "citation omitted). Thus, Ray is no bar to compelling the defendants to release to HRC the names of Haitian detainees on Guantanamo.

11 .One salient difference between the facts in McNary and those before this Court is that, when Judge Johnson granted the TRO in McNary, the flow of asylum-seekers out of Haiti was ongoing, and an injunction against repatriation meant the population at Guantanamo increased daily. In contrast, should this Court issue the TRO Intervenor Plaintiffs are requesting, the Haitian population at Guantanamo will merely remain at its present level.

12 .Under Fed. R. Civ. Pro. 65(b), a temporary restraining order expires by its own terms 10 days after if was issued, and can be extended to 20 days only if the issuing court finds good cause to do so

13 .Haitian Centers Council v. McNary, Trial Trans. at 418-20 (testimony of Col. Stephen Kinder).

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