Haitian Centers Council, Inc. v. McNary

Citations: 807 F. Supp. 928; 1992 U.S. Dist. LEXIS 20809; 1992 WL 360088Docket: 92 CV 1258 (SJ)

Court: District Court, E.D. New York; November 12, 1992; Federal District Court

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Plaintiffs, including Haitian Centers Council, National Coalition for Haitian Refugees, and various individuals, filed a class action against multiple government officials and agencies, seeking declaratory and injunctive relief related to the treatment of Haitians following the military coup that ousted Jean-Bertrand Aristide on September 30, 1991. The complaint includes several claims: 

1. Haitian Service Organizations have been denied First Amendment rights to access clients at Guantanamo.
2. Haitian plaintiffs allege violations of their statutory right to counsel under 8 U.S.C. 1362 and 8 C.F.R. 208.9.
3. Plaintiffs assert violations of their constitutional rights to counsel under the First and Fifth Amendments.
4. The government allegedly failed to adhere to the rulemaking procedures mandated by the Administrative Procedure Act (APA).
5. Plaintiffs claim a pattern of intimidation and coercion by the government, which has undermined their asylum rights and relied on false information, rendering actions arbitrary and capricious under the APA.
6. The government is accused of failing to protect political refugees from persecution and not providing adequate procedures for evaluating asylum claims, as required by the United Nations Convention on Refugees, the Refugee Act of 1980, and the Immigration and Nationality Act.

The excerpt details legal proceedings involving Haitian refugees and the U.S. Government's asylum policies. The Seventh Claim for Relief alleges that the Government has violated the plaintiffs' rights by establishing a separate and unequal asylum process for Haitians. In response, the Government moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, leading to a mixed ruling by the court.

Background events include the plaintiffs filing for a temporary restraining order (TRO) on March 17, 1992, which was subsequently referred to the civil docket. The court held oral arguments and decided to issue a TRO on March 27, 1992, after determining that prior litigation (Haitian Refugee Center, Inc. v. Baker) did not entirely preclude the current action. A preliminary injunction was granted on April 6, 1992, based on findings of irreparable harm and likelihood of success on the merits, which included the Government's denial of access to counsel, lack of rights for detained Haitian aliens under relevant statutes, and Fifth Amendment protections for some plaintiffs.

The Government's appeal led to a stay from the Supreme Court, and the Second Circuit subsequently affirmed and modified the preliminary injunction on June 10, 1992, while not addressing First Amendment claims related to Haitian Service Organizations. Meanwhile, on May 24, 1992, the Government changed its policy by directing the Coast Guard to return any Haitians intercepted outside U.S. waters to Haiti without providing them the chance for INS refugee screening.

Plaintiffs sought a temporary restraining order under Fed. R. Civ. P. 65 to prevent the Government from enforcing a May 24th Executive Order. At a May 29, 1992 hearing, they contended the new policy contravened Section 243(h) of the Immigration and Nationality Act (INA), Article 33 of the UN Refugee Convention, and the 1981 U.S.-Haiti Executive Agreement. The court denied the preliminary injunction on June 6, 1992, prompting an immediate appeal to the Second Circuit, which reversed the decision on July 29, citing INA Section 243(h) as mandating non-return of aliens to persecution. The Supreme Court subsequently granted the Government a stay while considering a certiorari petition, leading to the case McNary v. Haitian Centers Council, Inc.

The court will evaluate the plaintiff's claims under Rule 12(b)(6), focusing on the legal sufficiency of the complaint rather than weighing evidence. The court accepts the complaint's allegations as true and will deny a dismissal motion unless it is clear that the plaintiff cannot prove any set of facts supporting their claim.

Plaintiffs also allege that the Government did not adhere to Administrative Procedure Act (APA) rulemaking procedures in implementing rescreening policies for "screened-in" Haitians. The APA requires public notice of proposed rulemaking, including essential details about the rule and its legal authority. The Government claims the Rees memorandum is exempt as a general policy statement or interpretative rule. The Second Circuit has ruled that rules changing existing rights are not exempt, while those that do not alter substantive rights may qualify for exemption. The Rees memorandum aims to guide INS personnel on interviewing Haitian aliens with communicable diseases.

INS officers are instructed to conduct a second round of interviews for asylum applicants already in the U.S., mirroring the initial interviews by asylum officers. This directive specifically targets INS officials and mandates that while screened Haitians must undergo these interviews, the criteria for asylum eligibility remain unchanged. The Court determines that the Rees memorandum is a general policy statement under 5 U.S.C. § 553, leading to the dismissal of Plaintiffs' Fourth Claim for Relief due to failure to state a claim.

Plaintiffs' Fifth Claim for Relief asserts that the Government's actions are arbitrary and capricious, constituting an abuse of discretion under 5 U.S.C. § 701 et seq. They claim violations of Section 243(h) of the INA and the President's Executive Order No. 12324. The Court finds this claim sufficient under Rule 12(b)(6).

Regarding judicial enforceability of non-refoulement, the Court initially ruled Section 243(h) inapplicable to Haitian aliens in international waters, but the Second Circuit reversed this, confirming the statute's applicability to all aliens and imposing a judicially enforceable duty on the U.S. not to return aliens to persecution. Consequently, the Court finds the Plaintiffs' Sixth Claim for Relief legally sufficient.

The Seventh Claim for Relief alleges that since the September 1991 coup, officials have denied Haitians equal protection by operating a separate and unequal asylum process. The Government contends that Haitian aliens outside the U.S. lack Fifth Amendment rights, but the Court disagrees, affirming that these plaintiffs are "persons" entitled to Fifth Amendment protections. Although the Fifth Amendment does not explicitly guarantee equal protection, it prohibits unjustifiable discrimination. The Court acknowledges the executive branch's discretion in nationality-based distinctions among aliens, but such distinctions can be reviewed for equal protection violations.

Lastly, the Court indicated that its preliminary injunction favoring the Plaintiffs suggested likely success on the merits of Counts One and Three, confirming these claims met Rule 12(b)(6) standards, while also clarifying that 8 U.S.C. § 1362 and 8 C.F.R. § 208.9 do not apply extraterritorially.

The Second Claim for Relief has been dismissed for failing to state a claim. The Government's Motion to Dismiss the Complaint is granted for the Second and Fourth Claims for Relief, but denied for all other claims. Important notes include prior case law referenced for context, the withdrawal of a Motion for Sanctions by the Government, and clarification that the Court did not rule on a Motion to Dismiss until after a preliminary injunction hearing. A memorandum from Grover Joseph Rees outlines the legal framework under the Immigration and Nationality Act (INA) regarding the exclusion of individuals with communicable diseases, detailing that refugees may be granted waivers for humanitarian reasons but must be individually assessed. It emphasizes the necessity for interviews to determine refugee status for those "screened in" at Guantanamo, particularly for Haitian nationals, who must demonstrate a well-founded fear of persecution to qualify as refugees.

The criteria for granting asylum or refugee status necessitates that interviews for applicants mirror those conducted by asylum officers for existing applicants in the U.S. These interviews must adhere to established standards outlined in the INS Asylum Branch Procedures Manual. Each applicant requires an Asylum Assessment prepared per the specified format, which is then submitted to the Director of the Asylum Branch. If an officer finds an applicant not credible or insufficiently demonstrates a well-founded fear of persecution, these findings must be recorded with justifications in the assessment. Conversely, if the applicant is deemed credible and presents facts that could substantiate a well-founded fear of persecution, the assessment is forwarded to the State Department for verification of the applicant's claims and relevant country conditions. These procedures apply specifically to individuals with non-curable communicable diseases, while those with treatable conditions should follow standard procedures until further guidance is provided. Additionally, a reference is made to a legal case concerning the Fifth Amendment rights of Haitians detained at Guantanamo.