Cuban American Bar Ass'n v. Christopher ( 1995 )

United States Court of Appeals,
Eleventh Circuit.
Nos. 94-5138, 94-5231 and 94-5234.
CUBAN AMERICAN BAR ASSOCIATION, INC., Cuban Legal Alliance, Inc.,
Due Process, Inc., Lizbet Martinez, Arianna Gonzalez Nobaez, Arniel
Del Campo Gonzalez, on behalf of themselves and all others
similarly situated, Jovani Miguel Fiffe Pino, Nestor Rodriguez
Labori, Nelson Torres Pulido, Maritza Exposito, David Buzzi,
Alberto Rodriguez Garcia, on behalf of themselves and all others
similarly situated, Leydis Milagros Ruiz Mendez, on behalf of
herself and all others similarly situated, Elena Pino, Virginia
Perez, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellees,
Haitian Refugee Center, Inc.; Garry Joseph, Paulomme Edmond,
Pierre Onel Antoine, Voidieu Jean Louis, Bergeline Jean Louis,
Padeci Jean Louis, on behalf of themselves and others similarly
situated, Provisional Intervenors,
v.
Warren CHRISTOPHER, Secretary of State, William J. Perry,
Secretary of Defense, Doris Meissner, Commissioner, Immigration and
Naturalization Service, Janet Reno, Attorney General, Immigration
and Naturalization Service, Brigadier General Michael Williams,
Commander Joint Task Force, Defendants-Appellants.
CUBAN AMERICAN BAR ASSOCIATION, INC., Cuban Legal Alliance, Inc.,
Due Process, Inc., Lizbet Martinez, Arianna Gonzalez Nobaez, Arniel
Del Campo Gonzalez, on behalf of themselves and all others
similarly situated, Jovani Miguel Feffe Pino, Nestor Rodriguez
Labori, Nelson Torres Pulido, Maritza Exposito, David Buzzi,
Alberto Rodriguez Garcia, on behalf of themselves and all others
similarly situated, Leydis Milagros Ruiz Mendez, on behalf of
herself and all others similarly situated, Elena Pino, Virginia
Perez, on behalf of themselves and all others similarly situated,
Plaintiffs,
Haitian Refugee Center, Inc.; Garry Joseph, Paulomme Edmond,
Pierre Onel Antoine, Voidieu Jean Louis, Bergeline Jean Louis,
Padeci Jean Louis, on behalf of themselves and others similarly
situated, Provisional Intervenors-Appellees,
v.
Warren CHRISTOPHER, Secretary of State, William J. Perry,
Secretary of Defense, Doris Meissner, Commissioner, Immigration and
Naturalization Service, Janet Reno, Attorney General, Immigration
and Naturalization Service, Brigadier General Michael Williams,
Commander Joint Task Force, Defendants-Appellants.
Jan. 18, 1995.
Appeals from the United States District Court for the Southern
District of Florida. (No. 94-2183-CV-CCA), C. Clyde Atkins, Judge.
Before KRAVITCH, BIRCH and CARNES, Circuit Judges.
BIRCH, Circuit Judge:
This case requires us to address the following issues: (1)
whether Cuban and Haitian migrants temporarily provided safe haven
at the United States' naval base at Guantanamo Bay, Cuba, and at
the United States' military installations in Panama, may assert
rights under the Immigration and Nationality Act, the 1951 United
Nations Convention Relating to the Status of Refugees, the Cuban
Adjustment Act, the Cuban Democracy Act and the Constitution of the
United States; (2) whether legal organizations can sustain First
Amendment claims of freedom of speech and association with these
migrants; and (3) whether the First Amendment or the Equal
Protection clause of the Fifth Amendment dictates that the United
States government must furnish a list of Haitian migrants who are
residing at Guantanamo Bay to the Haitian Refugee Center, a legal
service organization. The district court has entered preliminary
injunctions granting attorneys for the Cuban migrants access to all
Cuban migrants provided safe haven prior to voluntary repatriation
and attorneys for Haitian migrants access to their clients and any
other Haitian migrants who request counsel in writing, barring the
government from repatriating any Cuban migrants prior to the
migrant's consultation with a lawyer, directing the United States
Attorney General to parole unaccompanied minor Haitian migrants
into the United States on the same terms that unaccompanied minor
Cuban migrants have been or may be paroled, and requiring the
government to release the names of all Haitian migrants to the
Haitian Refugee Center. After thorough review of authority in this
circuit and the Supreme Court, we VACATE the district court's order
and REMAND to the district court with direction to dismiss the
plaintiffs' claims.
I. BACKGROUND
A. Factual Background
1. Cuban Migration
On August 8, 1994, Fidel Castro, announced that the Cuban
government would no longer forcibly prevent emigration from Cuba by
boat. Castro's new policy encouraged thousands of Cubans to board
makeshift rafts and boats to escape Cuba and head for the shores of
the United States. While many were lost at sea, approximately 8000
Cubans arrived in the United States safely.
In an effort to quell this influx of migrants and to save the
rafters' lives, on August 19, 1994, the President of the United
States ordered the United States Coast Guard to intercept
watercraft carrying persons fleeing from Cuba and bound for the
United States' border and to transport these persons to the
American naval base at Guantanamo Bay, Cuba. The United States
leases its military base at Guantanamo Bay from sovereign Cuba
under a lease agreement negotiated in 1903.1
1
The Agreement for the Lease to the United States of Lands
in Cuba for Coaling and Naval Stations, Feb. 23, 1903, U.S.-Cuba,
art. III, T.S. No. 418, reprinted in, 6 Bevans 1113-15
[hereinafter Lease Agreement], provides that the United States
has "control and jurisdiction" over the leased land, but that
Cuba retains sovereignty over the land. The lease states in
pertinent part:
While on the one hand the United States recognizes
In August, 1994, the United States government began
negotiating with the Cuban government to halt the flow of migrants
to the United States. These diplomatic negotiations culminated on
September 9, 1994, in an accord with the Cuban government. In this
accord, the United States agreed it would only allow Cuban migrants
to enter the United States by applying for immigrant visas or
refugee admittance at the United States Interests Section in
Havana, Cuba. A minimum of 20,000 persons are to be allowed to
migrate legally to the United States each year, not including
immediate relatives of United States citizens who are under no
numerical restrictions. However, in conjunction with this
international agreement, the Attorney General also ordered that no
Cuban who had accepted safe haven in Guantanamo Bay or Panama would
be allowed to apply for a visa or for asylum in the United States
from safe haven.2
Currently, Cuban migrants have three options with respect to
their residence: (1) they may remain in safe haven, (2) they may
repatriate to sovereign Cuba voluntarily; or (3) they may travel
the continuance of the ultimate sovereignty of the
Republic of Cuba over the [leased] areas of land and
water, on the other hand the Republic of Cuba consents
that during the period of the occupation by the United
States of said areas under the terms of this agreement
the United States shall exercise complete jurisdiction
and control over and within said areas....
Lease Agreement, art. III.
2
According to Michael Skol, Principal Deputy Assistant
Secretary of State for Inter-American Affairs at the Department
of State, this policy was implemented "to deter further dangerous
migration from Cuba, and to provide Cubans seeking entry into the
United States a safe alternative to boat departures...." Skol
Decl. ¶ 9.
to a third country willing to accept them. While more than 1000
Cubans have requested voluntarily to be returned to Cuba, the Cuban
government has restricted the return of Cuban nationals and has
delayed the voluntary repatriation process. Persons who repatriate
to Cuba voluntarily may then apply for asylum through the regular
channels commencing at the United States Special Interests Section
in Havana, Cuba.
The United States government's expressed desire is not to
maintain these migrants for an indefinite period of time or against
their will. The government's position is that it could return the
migrants to Cuba legally without a migrant's request. However, the
government has offered the Cuban migrants safe haven for as long as
the migrants wished. All Cuban migrants volunteering to repatriate
execute a form approved by the United Nations High Commissioner for
Refugees ("UNHCR") and meet with a representative from UNHCR before
returning.
UNHCR is an agency of the United Nations specializing in the
care and well-being of refugees worldwide. UNHCR was established
by the United Nations general assembly on January 1, 1951, "to
provide international protection to refugees and to seek permanent
solutions for their problems." UNHCR, Handbook for Emergencies §
2.2(1) (1982). The UNHCR "aim[s] ... to secure treatment in
accordance with universally recognized humanitarian principles not
directly linked to the status [as refugees] of those in need." Id.
§ 2.1(4); see also id. § 2.2(1). UNHCR has participated with the
United States government in ensuring that any return to Cuba was
made on a voluntary basis.
In addition to UNHCR, humanitarian groups such as Amnesty
International, Inc., the U.S. Committee for Refugees, and Church
World Service (Immigration and Refugee Service) as well as legal
organizations such as the Ad Hoc group of Cuban-American Attorneys,
have been allowed to visit the migrants at the base. However, as
the numbers of migrants and the length of the stay in safe haven
have increased, problems have erupted. Many Cuban migrants have
climbed over barbed wire and jumped from treacherous cliffs into
the bay in attempts to swim the mile or so back to sovereign Cuba.
Still others have scaled fences and braved a mine field in order to
reach their homeland. During early December, 1994, many were
injured during riots at the camps, particularly in Panama. The
risk of violence and danger, both to the migrants and the military
personnel charged with their care, has grown. While the United
States has begun negotiating with other countries to accept
migrants from the safe haven and has continued with the voluntary
repatriation program, problems continue.
Since consummation of the accord, the Attorney General has
exercised her discretion to parole into the United States Cuban
migrants who have sponsors in the United States and are (1) over
the age of 70; (2) who are ill; or (3) who are unaccompanied
minors (under the age of 13). She has also begun to consider, on
a case-by-case basis, the possible parole of other Cuban children
at Guantanamo Bay who are accompanied, but who may suffer severe
hardship if they remain in safe haven. Over 20,000 Cubans
currently remain in safe haven at Guantanamo Bay 3 and at military
installations in Panama.
2. Haitian Migration
In 1991, Haiti's elected leader, Jean-Bertrand Aristide, was
ousted from power. As a result, thousands of Haitians departed
Haiti and attempted to reach the United States. Between May, 1992,
and June, 1994, the United States Coast Guard interdicted on the
high seas Haitians bound for the United States and returned them
directly to Haiti. In June, 1994, the government began processing
some migrants for asylum in the United States. However, in July,
1994, the United States began offering safe haven at Guantanamo Bay
to the migrant Haitians; the government was not allowing the
Haitian migrants to enter the United States, but was not returning
them directly to Haiti. At the peak of emigration in 1994, over
16,800 Haitian migrants were housed at Guantanamo Bay
simultaneously.4
On September 19, 1994, the United States led a United
Nations-authorized military intervention in Haiti. Through these
efforts, Haitian President Jean-Bertrand Aristide was returned to
power on October 15, 1994. After his reinstallation, an
ever-increasing number of Haitians in safe haven have volunteered
3
The base at Guantanamo Bay is divided up into various camps
housing families, single men, single women and unaccompanied
children. There are two special camps, Camps November I and II,
where migrants who have voluntarily requested to be repatriated
are housed for their safety.
4
Haitian migrants are only being housed at Guantanamo Bay;
no Haitians are in safe haven in Panama. The camp divisions are
similar to those maintained for Cuban migrants; however, there
are no special camps for those migrants who have requested
repatriation.
to repatriate. Approximately 8000 Haitians remained at Guantanamo
Bay on December 19, 1994.
B. Procedural Background
1. The Cuban Migrants' Case
On October 23, 1994, plaintiffs-appellees, Cuban American Bar
Association, Inc., Cuban Legal Alliance, Inc., and Due Process,
Inc. (collectively "Cuban Legal Organizations"), some Cuban
individuals being held on Guantanamo Bay, and some individuals with
family members being held on Guantanamo Bay (collectively
"individual Cuban plaintiffs") filed a class action complaint
requesting declaratory and injunctive relief under, inter alia, the
First and Fifth Amendments, 8 U.S.C. § 1253(h), 8 U.S.C. § 1158(a),
and Article 33 of the 1951 United Nations Convention Relating to
the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, [hereinafter
the Refugee Convention]5. Specifically, the Cuban Legal
Organizations and the individual Cuban plaintiffs requested that
the district court enter an injunction preventing the
defendants-appellants ("the government") from denying the Cuban
Legal Organizations reasonable access to and communication with
their Guantanamo Bay clients for legal consultation relative to the
Cuban migrants' putative rights regarding asylum petitions and
5
The United States acceded to the United Nation Protocol
Relating to the Status of Refugees on November 6, 1968. The
Protocol bound the United States to comply with Articles 2
through 34 of the Refugee Convention. Protocol Relating to the
Status of Refugees, opened for accession, Jan. 31, 1967, art. I,
§ 1, 19 U.S.T. 6223. The United States agreed to the Protocol
with the following reservation, "[a]s to any such provision, the
United States will accord to refugees lawfully staying in its
territory treatment no less favorable than is accorded aliens
generally in the same circumstances." 19 U.S.T. at 6257.
parole decisions, and an injunction prohibiting the government from
"encouraging or coercing, directly or indirectly, the repatriation
to Cuba of, and repatriating, any [Cuban migrant] currently being
detained by the United States Government." Class Action Compl. at
59, Cuban Am. Bar Ass'n v. Christopher, No. 94-2183 (S.D.Fla. Oct.
24, 1994) [hereinafter CABA I ].
On October 25, 1994, upon learning that at 11:30 a.m. that day
the government would return to Cuba, by plane, twenty-three Cuban
migrants who had previously volunteered for repatriation, the Cuban
Legal Organizations and the individual Cuban plaintiffs filed an
emergency motion for a temporary restraining order and request for
an emergency hearing to block the repatriation. Approximately one
minute before the plane was to take off, the district court
verbally ordered the government to halt the repatriation of these
migrants.
The district court further considered the arguments of the
parties, and on October 31, 1994, the court granted the Cuban Legal
Organizations' and the individual Cuban plaintiffs' motion for an
emergency "temporary restraining order." Order Granting
Plaintiffs' Emergency Mot. for T.R.O., CABA I, (Oct. 31, 1994)
[hereinafter October 31 Order]. The district court specifically
granted the Cuban Legal Organizations and the individual Cuban
plaintiffs the following relief:
(a) [The government] shall refrain from denying [Cuban
Legal Organizations] and other counsel reasonable and
meaningful access to the [Cuban migrants in safe haven]; and
(b) [The government] shall refrain from repatriating any
[Cuban migrants in safe haven], including those twenty-three
(23) persons who were the subject of the temporary restraining
Order entered October 25, 1994, without permitting them access
to counsel and receipt of full information so as to assure an
informed and voluntary decision to seek repatriation.
Id. at 13 (emphasis added). The October 31 Order was put into
effect "until further order of the court." Id.
On November 1, 1994, the government filed a notice of appeal
and a motion requesting the district court to stay its own order.
The district court failed to grant this request and the government,
on November 2, 1994, pursuant to 28 U.S.C. § 1292(a)(1), filed a
motion for summary reversal, or in the alternative, for an
emergency stay pending appeal in this court. On November 3, 1994,
we granted that request in part, staying that portion of the
district court's October 31 Order which prevented repatriation of
Cuban migrants who had requested in writing to be returned. Cuban
Am. Bar Ass'n v. Christopher, No. 94-5138 (11th Cir. Nov. 3, 1994)
[hereinafter CABA II ] [hereinafter November 3 Order]. On November
4, 1994, we heard oral argument on an expedited basis and that day
modified our November 3 Order verbally. We entered a written order
on November 7, 1994, confirming our verbal order. CABA II, (Nov.
7, 1994) [hereinafter November 7 Order]. We granted the
government's motion in part and denied it in part. Specifically,
we instructed the government to allow the Cuban Legal Organizations
reasonable access to their clients and any other Cuban migrants
who, in writing, requested legal counsel. We also stayed that
portion of the district court's order that prevented the government
from arranging repatriation of Cuban migrants in Camp November, who
"expressed a desire, by written declaration, to be returned to
sovereign Cuba"; however, we barred the government from
repatriating any Cuban migrant who did not "express, by written
declaration, a desire to be returned to sovereign Cuba." November
7 Order at 2. After our November 7 Order but prior to oral
argument over 241 Cubans were repatriated.
2. The Haitian Migrants' Case
On October 31, 1994, the Haitian Refugee Center ("HRC") and
some individual Haitian migrants at Guantanamo Bay filed a motion
to intervene and a motion for temporary restraining order. HRC
requested a temporary restraining order instructing the government
to afford HRC access to all Haitian migrants at Guantanamo Bay,
barring the government from denying parole to unaccompanied Haitian
minors, and ordering the disclosure of the identities of all
Haitian migrants in safe haven.
The district court issued two orders granting in part the
relief HRC requested in its original motion for a temporary
restraining order.6 The district court issued its preliminary
6
Prior to the district court's ruling on the original motion
for a temporary restraining order, on November 1, 1994, the
district court heard an oral motion by HRC for a temporary
restraining order blocking the government from repatriating
fourteen Haitians at Guantanamo Bay who were scheduled for
imminent repatriation. The government agreed to delay
repatriation until November 3, 1994. The government was planning
to repatriate a total of fifty-four Haitians; forty of those
were returning to seek medical attention and the remaining
fourteen were the subject of the district court's order. The day
after oral argument, November 2, 1994, the district court
provisionally granted the HRC's motion to intervene and entered a
temporary restraining order preventing the government's scheduled
repatriation of the fourteen Haitians. Corrected Order on Mot.
to Intervene and Mot. for T.R.O., CABA I, (Nov. 2, 1994).
HRC then requested that the district court bar the
government from repatriating Haitians who were scheduled to
return to Haiti on November 20, 1994. On November 18, the
district court ordered that repatriation could occur as
planned under the condition that all Haitians repatriated
had requested repatriation in writing. Order on Haitian
Refugee Ctr.'s Emergency Mot. for T.R.O. and Request for
order on November 22, 1994, granting HRC access to named plaintiffs
and any other Haitian migrants who requested counsel in writing,
ordering the Attorney General to parole from safe haven
unaccompanied Haitian minors in the same manner as unaccompanied
Cuban minors, and directing the government to release the names of
all Haitian migrants to HRC. Order on Provisional Intervenors'
Mot. for T.R.O., CABA I (Nov. 22, 1994) [hereinafter November 22
Order]. Upon the government's motion, the district court granted
a stay of the November 22 Order as it applied to parole of the
minor Haitians and the release of the names of migrants, but
continued in force the order allowing HRC access to detained
Haitians who requested legal counsel. Omnibus Order, CABA I (Nov.
28, 1994) [hereinafter November 28 Order].
Appeals from these orders were filed and on December 1, 1994,
the cases filed by the Cuban Legal Organizations and the individual
Cuban plaintiffs (No. 94-5138) and HRC and the individual Haitian
migrants (Nos. 94-5231 and 94-5234) were consolidated for
consideration by this court. On December 19, 1994, after oral
argument on the issues presented, we dissolved our November 7 Order
and stayed all the relief granted by the district court in its
October 31 Order, November 22 Order and November 28 Order.
Furthermore, by our December 19 Order, we stayed all further
proceedings in the district court, including discovery.
3. Issues on Appeal
We now consider the following issues on appeal:
Emergency Hr'g, CABA I (Nov. 18, 1994). That repatriation
took place as scheduled.
1. Whether the Cuban or Haitian migrants in safe haven outside the
physical borders of the United States have any cognizable
statutory or constitutional rights.
2. Whether the Cuban Legal Organizations or HRC have a First
Amendment right to associate with migrants held in safe haven
outside the physical borders of the United States for the
purposes of engaging in political speech and if so, whether
the government engages in impermissible viewpoint
discrimination violative of any First Amendment rights of the
individual migrants or the Cuban Legal Organizations or HRC by
restricting the legal organizations' access to the migrants
for the purposes of legal consultation.
3. Whether the government must disclose to HRC the names of all
Haitian migrants in safe haven.
II. DISCUSSION
A. Jurisdiction
1. Appealability of Temporary Restraining Orders
While temporary restraining orders are not generally subject
to appellate review, Haitian Refugee Ctr., Inc. v. Baker, 950 F.2d
685, 686 (11th Cir.1991) [hereinafter "HRC I "]; McDougald v.
Jenson, 786 F.2d 1465, 1472 (11th Cir.), cert. denied, 479 U.S.
860, 107 S. Ct. 207, 93 L. Ed. 2d 137 (1986), "where the order has the
effect of a preliminary injunction this court has jurisdiction to
review the order and is not bound by the district court's
designation of the order." HRC I, 950 F.2d at 686. To determine
whether an order denominated as a temporary restraining order is
actually a preliminary injunction, we review the duration of the
order; "whether it was issued after notice and a hearing"; the
extent of evidence submitted to the district court; and the
continuing safeguards installed by the district court. McDougald,
786 F.2d at 1472. After review of the district court's orders, we
conclude that they are in fact appealable preliminary injunctions.
See November 3 Order. With respect to the district court's October
31 Order, the court explicitly referred to the order as
"preliminary injunctive relief." October 31 Order at 4. Moreover,
the order is of indefinite duration; it was issued after notice
and a hearing; the court received evidence and considered
declarations from both parties (commenting that no further factual
development need be made before ruling); and the court required
the parties to report jointly to it every thirty days regarding the
status under its order. We conclude that the characteristics of
this October 31 Order belie the district court's label as a
temporary restraining order; it is in all respects an appealable
preliminary injunction.7 Thus, pursuant to 28 U.S.C. § 1292(a)(1),
we have jurisdiction over an appeal from that order.
With respect to the district court's November 22 Order and
November 28 Order granting HRC and the individual Haitian parties
relief, but staying portions of that relief during appeal, the
district court specifically stated that "pursuant to 28 U.S.C. §
1292(b), the court finds that this Order involves controlling
questions of law regarding the rights of [migrants] in Guantanamo
Bay which are subject to a difference of opinion and that an
7
In Sampson v. Murray, 415 U.S. 61, 94 S. Ct. 937, 39 L. Ed. 2d
166 (1974), the Supreme Court observed:
A district court, if it were able to shield its orders
from appellate review merely by designating them as
temporary restraining orders, rather than as
preliminary injunctions, would have virtually unlimited
authority over the parties in an injunctive proceeding.
In this case, where an adversary hearing has been held,
and the court's basis for issuing the order strongly
challenged, classification of the potentially unlimited
order as a temporary restraining order seems
particularly unjustified.
Id. at 86-87, 94 S.Ct. at 951. Such is the case here.
immediate appeal may advance the ultimate termination of this
case." November 22 Order at 2. On December 1, 1994, we exercised
our discretion and permitted appeal from these orders, and
accordingly, we take jurisdiction of this appeal under 28 U.S.C. §
1292(b).
2. Standing
In its appeal to this court for emergency relief from the
district court's October 31 order, the government raised a question
regarding the standing of the Cuban Legal Organizations and the
individual Cuban plaintiffs relative to the putative injuries to
parties not before the court, specifically all those migrants who
expressed a written desire to be repatriated. Appellants' Mot. for
Summ. Reversal, or, in the Alternative for An Emergency Stay
Pending Appeal (or a Writ of Mandamus), CABA II, at 22 n. 65 (filed
Nov. 2, 1994). These migrants were prevented from returning to
Cuba by the district court's oral order on October 25, 1994, and by
the October 31 Order. After our November 7 Order, repatriation of
those who had expressed in writing a desire to return to sovereign
Cuba was continued as arranged with the Cuban government.
Appellant's Brief at 6 n. 2. But for our stay, the remaining Cuban
migrants in Camp November who had requested to be returned to Cuba
would be affected by the district court's order barring their
repatriation.
The principle of standing is "derive[d] from the Article III
limits on the jurisdiction of federal courts." Jackson v. Okaloosa
County, 21 F.3d 1531, 1536 (11th Cir.1994).
Before rendering a decision ... every federal court
operates under an independent obligation to ensure it is
presented with the kind of concrete controversy upon which its
constitutional grant of authority is based; and this
obligation on the court to examine its own jurisdiction
continues at each stage of the proceedings, even if no party
raises the jurisdictional issue and both parties are prepared
to concede it.
Hallandale Professional Fire Fighters Local 2238 v. City of
Hallandale, 922 F.2d 756, 759 (11th Cir.1991). We recognize two
components to the standing doctrine: the minimum constitutional
requirements of Article III and the prudential considerations of
judicial self-government. Harris v. Evans, 20 F.3d 1118, 1121
(11th Cir.) (en banc), cert. denied, --- U.S. ----, 115 S. Ct. 641,
--- L.Ed.2d ---- (1994); F.D.I.C. v. Morley, 867 F.2d 1381, 1386
(11th Cir.), cert. denied, 493 U.S. 819, 110 S. Ct. 75, 107 L. Ed. 2d
41 (1989). To meet the irreducible minimum constitutional
requirements, the plaintiff must show "(1) that he has suffered an
actual or threatened injury, (2) that the injury is fairly
traceable to the challenged conduct of the defendant, and (3) that
the injury is likely to be redressed by a favorable ruling."
Harris, 20 F.3d at 1121; accord Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc., 454 U.S.
464, 472, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1982); Jackson, 21
F.3d at 1537; Morley, 867 F.2d at 1386. The party must also show
that prudential considerations do not weigh against consideration
of the claims. Harris, 20 F.3d at 1121; Morley, 867 F.2d at 1386.
We have identified three particular situations in which we will
decline to address a party's claim for prudential reasons: "(1)
assertion of a third party's [putative] rights rather than
individual legal rights; (2) allegation of a generalized grievance
rather than an injury peculiar to such litigant; or (3) assertion
of an injury outside the statute's or constitutional provision's
zone of interests." Morley, 867 F.2d at 1386.
For each claim stated in a complaint, there must be a
plaintiff who will achieve some redress by the court's actions.
Jackson, 21 F.3d at 1536. As of this interlocutory appeal, the
classes sought have not been certified; neither the Cuban Legal
Organizations nor the individual Cuban plaintiffs represent the
approximate 1000 Cuban residents of Camp November who expressed
their desire in writing to be returned to sovereign Cuba as soon as
possible. "Inclusion of class action allegations in a complaint
does not relieve a plaintiff of himself meeting the requirements
for constitutional standing, even if the persons described in the
class definition would have standing themselves to sue." Brown v.
Sibley, 650 F.2d 760, 771 (5th Cir. Unit A July 1981); accord
Church v. City of Huntsville, 30 F.3d 1332, 1340 (11th Cir.1994)
("[U]nless ... one of the named plaintiffs is in real and immediate
danger of being personally injured ... the plaintiff class lacks
standing...."); Jones v. Firestone Tire and Rubber Co., 977 F.2d
527, 531 (11th Cir.1992) (holding that a party may only represent
a class to "the extent that he has standing to bring individual
claims"), cert. denied, --- U.S. ----, 113 S. Ct. 2932, 124 L. Ed. 2d
682 (1993). We conclude that the plaintiffs in this case are not
suffering any real or threatened injury by the repatriation of any
migrant who has expressed, in writing, his or her desire to be
returned to sovereign Cuba. None of the individual Cuban
plaintiffs claims to have requested repatriation and are therefore,
outside the group who is being affected directly by the district
court's October 31 Order barring repatriation without prior
consultation with a lawyer. However, the individual Cuban migrants
may properly challenge the United States' repatriation policies to
the extent that they allege that they may suffer imminent injury by
being coerced in the future into signing declarations of desire to
repatriate or being wrongly repatriated to sovereign Cuba, whether
or not they may succeed on the merits of those claims. See Morley,
867 F.2d at 1387 (holding that standing is determined without
considering the party's likelihood of ultimately succeeding on the
merits of their claims).
B. Standard of Review
"Ordinarily, the grant of a preliminary injunction is
reviewed for abuse of discretion; however, if the trial court
misapplies the law we will review and correct the error without
deference to that court's determination." Haitian Refugee Ctr.,
Inc. v. Baker, 949 F.2d 1109, 1110 (11th Cir.1991) (per curiam)
[hereinafter "Baker "], cert. denied, --- U.S. ----, 112 S. Ct.
1245, 117 L. Ed. 2d 477 (1992). As discussed below, the district
court misapplied the law governing the issues presented in this
case. Thus, we accord no deference to the district court's
determinations in granting the preliminary injunctions in this
case.
C. The Merits
A preliminary injunction is extraordinary relief. Church, 30
F.3d at 1342. Because of the nature of a preliminary injunction,
before relief can be granted, the party requesting the injunction
must show: "(1) a substantial likelihood of success on the merits;
(2) a substantial threat of irreparable injury; (3) its own injury
outweighs the injury to the nonmovant; and (4) the injunction
would not disserve the public interest." Baker, 949 F.2d at 1110
(emphasis added); accord Church, 30 F.3d at 1342. The district
court misapplied the law in this case; thus, we accord no
deference to the court's decision. 8 Under the precedent of this
circuit and the Supreme Court,9 we conclude that the Cuban Legal
Organizations, HRC, the individual Cuban plaintiffs and the
individual Haitian migrants cannot meet the first prerequisite to
8
Despite controlling precedent in this circuit, the district
court relied upon Haitian Ctrs. Council, Inc. v. Sale, 823
F. Supp. 1028 (E.D.N.Y.1993) vacated by Stipulated Order Approving
Class Action Settlement Agreement (Feb. 22, 1994) [hereinafter
HCC ], to support its grant of the preliminary injunction as to
the Cuban migrants. Whatever may be the effect in the Eastern
District of New York of this now vacated district court decision
in HCC, it has no precedential value in this circuit. Much of
the reasoning in that decision is contrary to binding precedent
in this circuit.
9
We are bound by precedent established by this court, by the
Fifth Circuit prior to October 1, 1981, and by the Supreme Court
of the United States. See C.G. Willis, Inc. v. Director, Office
of Workers' Compensation Programs, 31 F.3d 1112, 1115 n. 8 (11th
Cir.1994) ("Only the en banc court or the Supreme Court may
overrule the settled law of this circuit."); Bonner v. City of
Prichard, 661 F.2d 1206, 1209, 1210 (11th Cir.1981) (en banc)
(adopting the decisions of the Fifth Circuit handed down on or
before September 30, 1981, as precedent in the Eleventh Circuit,
reasoning that "[s]tability and predictability are essential
factors in the proper operation of the rule of law."). We
recognize no other legally binding precedent. While other
circuit and district courts may have considered similar issues,
it is the case law of this circuit which governs our decisions.
Specifically, Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498
(11th Cir.) (per curiam), cert. denied, --- U.S. ----, 112 S. Ct.
1245, 117 L. Ed. 2d 477 (1992) [hereinafter HRC II ], Jean v.
Nelson, 727 F.2d 957 (11th Cir.1984) (en banc) [hereinafter Jean
I], aff'd on other grounds, 472 U.S. 846, 105 S. Ct. 2992, 86
L. Ed. 2d 664 (1985) [hereinafter Jean II ], and the Supreme
Court's decision in Sale v. Haitian Ctrs. Council, Inc., --- U.S.
----, 113 S. Ct. 2549, 125 L. Ed. 2d 128 (1993), guide and bind us
here.
the grant of a preliminary injunction, a showing of "substantial
likelihood of success on the merits [of their claims]," and thus,
are not entitled to injunctive relief. See Church, 30 F.3d at
1342.
1. Statutory and Constitutional Rights of Migrants in Safe Haven
The Cuban migrants and the Haitian migrants are asserting
statutory rights under the Immigration and Nationality Act, 8
U.S.C. §§ 1101-1503 ("INA") and the Refugee Convention. The
individual Cuban plaintiffs in safe haven also assert rights under
the Cuban Refugee Adjustment Act, 8 U.S.C. § 1255, and the Cuban
Democracy Act, 22 U.S.C. §§ 6001-6010. The individual Haitian
unaccompanied minor plaintiffs assert rights against discriminatory
parole decisions under 8 U.S.C. § 1182. Additionally, the
individual Cuban plaintiffs advance claims to Fifth Amendment
rights of due process and the individual Haitian migrants are
asserting Fifth Amendment rights to due process and equal
protection of the laws.
a. Status of Guantanamo Bay
The district court in this case relied upon Haitian Ctrs.
Council, Inc. v. Sale, 823 F. Supp. 1028 (E.D.N.Y.1993), vacated by
Stipulated Order Approving Class Action Settlement Agreement (Feb.
22, 1994) [hereinafter HCC ], in entering its order granting the
Cuban migrants meetings with lawyers upon request and barring
repatriation of migrants without prior legal consultation. In the
HCC case, the New York district court found that lawyers had a
First Amendment right to free speech and association for engaging
in legal consultation 10 at Guantanamo Bay because it was a naval
base over which the United States has "complete control and
jurisdiction" and "where the government exercises complete control
over all means of delivering communication." Id. at 1040. The
district court here erred in concluding that Guantanamo Bay was a
"United States territory." October 31 Order at 9. We disagree
that "control and jurisdiction" is equivalent to sovereignty. See
Agreement for the Lease to the United States of Lands in Cuba for
Coaling and Naval Stations, Feb. 26, 1903, U.S.-Cuba, T.S. No. 418
(distinguishing between sovereignty of the Republic of Cuba over
the leased land and the "control and jurisdiction" granted the
United States), reprinted in 6 Bevans 1113-15; cf. United States
v. Spelar, 338 U.S. 217, 221-22, 70 S. Ct. 10, 12, 94 L.Ed.3 (1949)
(construing the Federal Tort Claims Act not to apply to an American
military air base in Newfoundland because the lease between
Newfoundland and the United States "effected no transfer of
sovereignty with respect to the military bases concerned").
The Cuban Legal Organizations and HRC attempt to circumvent
precedent in this circuit by arguing that Haitian Refugee Ctr.,
Inc. v. Baker, 953 F.2d 1498 (11th Cir.) (per curiam), cert.
denied, --- U.S. ----, 112 S. Ct. 1245, 117 L. Ed. 2d 477 (1992)
[hereinafter "HRC II "], in contrast with the instant case, dealt
solely with Haitians who were interdicted on the high seas and
returned to Haiti by United States Coast Guard cutters. However,
we also addressed the claims of Haitians who were interdicted on
10
The Eastern District of New York declined to decide
whether the migrants at Guantanamo Bay themselves had any First
Amendment rights. HCC, 823 F. Supp. at 1041.
the high seas and then transported to Guantanamo Bay. See HRC II,
953 F.2d at 1514; id. at 1516-17 (Hatchett, J., dissenting).
Based upon our holding in HRC II, 953 F.2d at 1510, we again reject
the argument that our leased military bases abroad which continue
under the sovereignty of foreign nations, hostile or friendly, are
"functional[ly] equivalent" to being land borders or ports of entry
of the United States or otherwise within the United States.11
Therefore, any statutory or constitutional claim made by the
individual Cuban plaintiffs and the individual Haitian migrants
must be based upon an extraterritorial application of that statute
or constitutional provision.
b. Extraterritorial Application of Legislation and the Constitution
If the migrants have been provided rights by statute, 12 we
need not reach the constitutional questions urged upon us.
However, because the Cuban Legal Organizations and HRC struggle to
re-assert statutory claims foreclosed by HRC II and Sale v. Haitian
Ctrs. Council, Inc., --- U.S. ----, 113 S. Ct. 2549, 125 L. Ed. 2d 128
(1993), and fail to assert new meritorious statutory claims, we
reach the constitutional issues as well.
11
Panama regained sovereignty over the Panama Canal Zone and
the area where the United States maintains military installations
by the Panama Canal Treaty of 1977. Panama Canal Treaty, Sept.
7, 1977, U.S.-Pan., art. III, § 1, art. IV, § 2, 33 U.S.T. 39;
Panama Canal Treaty, Implementation of Article IV, Sept. 7, 1977,
U.S.-Pan., art. I, annex A, 33 U.S.T. 307.
12
Domestic legislation is not presumed to apply
extraterritorially absent express Congressional authorization.
See Sale, --- U.S. at ----, ----, ----, 113 S. Ct. at 2561, 2562,
2567 ("Acts of Congress normally do not have extraterritorial
application unless such an intent is clearly manifested. That
presumption has special force when we are construing treaty and
statutory provisions that may involve foreign and military
affairs for which the President has responsibility.").
We decided in HRC II, 953 F.2d at 1510, and the Supreme Court
agreed in Sale, --- U.S. at ----, ----, 113 S. Ct. at 2557-58, 2563,
that the very same statutes and treaties regarding repatriation,
Article 33 of the Refugee Convention,13 and the INA, specifically,
8 U.S.C. § 1253(h)14 and 8 U.S.C. § 1158(a)15 do not apply
extraterritorially. In HRC II, we unequivocally held that the
13
Article 33 of the Refugee Convention states in pertinent
part that "[n]o 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 ... or political
opinion." Refugee Convention, supra, art. 33, 19 U.S.T. at 6276.
We have held that this article is not self-executing, but must be
given force by enactment of domestic legislation. Baker, 949
F.2d at 1110.
14
Section 1253(h)(1), the domestic legislation implementing
Article 33, provides that "[t]he 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 ... or political opinion." Nothing in this statute
extends its application "beyond the borders of the United
States." HRC II, 953 F.2d at 1509-10.
The individual Cuban plaintiffs also assert rights
under 8 U.S.C. §§ 1101(a)(42), 1157(c), 1182, 1225, 1226,
and 1362; however, because these provisions merely
supplement rather than address the questions presented to
us, we consider their claims as being made under § 1253(h)
and § 1158(a).
15
Section 1158(a) provides that:
The Attorney General shall establish a procedure for an
alien physically present in the United States or at a
land border or port of entry, irrespective of such
alien's status, to apply for asylum, and the alien may
be granted asylum in the discretion of the Attorney
General if the Attorney General determines that such
alien is a refugee within the meaning of section
1101(a)(42)(A) of this title.
§ 1158(a). We have found that the "clear meaning of this
language" is that persons interdicted before reaching the
United States cannot base a right to asylum or asylum
processing on this provision. HRC II, 953 F.2d at 1510.
interdicted Haitians could not claim any rights under sections
1253(h) or 1158(a). We further concluded that:
the interdicted Haitians [on Coast Guard cutters and at
Guantanamo Bay] have none of the substantive rights—under ...
the 1967 United Nations Protocol Relating to the Status of
Refugees, the Immigration and Naturalization Service
Guidelines, the Refugee Act of 1980, the Immigration and
Nationality Act, or international law—that they claim for
themselves or that the HRC claims for them.
HRC II, 953 F.2d at 1513 n. 8 (emphasis added). These laws, which
govern repatriation of refugees, bind the government only when the
refugees are at or within the borders of the United States. See
id. at 1509-10. Therefore, the claims asserted by the migrants
under the INA and under Article 33 continue to be untenable.
The individual Cuban plaintiffs attempt to utilize the Cuban
Refugee Adjustment Act, 8 U.S.C. § 1255, and the Cuban Democracy
Act, 22 U.S.C. §§ 6001-6010, to assert the right of the Cuban
migrants to seek parole and asylum in the United States. While
these acts acknowledge the political climate in Cuba, provide for
economic sanctions for dealing with Cuba, and allow for certain
rights for Cubans who reach the United States, they do not address
the rights of Cuban migrants to enter or to seek entry to the
United States initially, nor do they confer directly any rights
upon the Cuban migrants outside the United States. Hence, neither
of these acts can be relied upon by the individual Cuban plaintiffs
to assert a right against repatriation or to seek parole or asylum
in the United States from safe haven.
Right to Counsel
The individual Cuban plaintiffs and the individual Haitian
migrants claim a due process right to obtain and communicate with
legal counsel of their choice regarding asylum application or
parole in order to protect an interest against being wrongly
repatriated from safe haven. In order for the migrants to have a
right to counsel, they must first have a protectable liberty or
property interest. See Board of Regents v. Roth, 408 U.S. 564,
569-572, 92 S. Ct. 2701, 2705-06, 33 L. Ed. 2d 548 (1972). The
Executive Branch has made the policy decision not to offer
preliminary refugee determination interviews, or "screening"16 to
the Cuban or Haitian migrants. In previous Haitian migrant cases,
migrants who have been held to have a liberty interest to which due
process could attach had been "screened-in" by the government. See
HCC, 823 F. Supp. at 1042; Haitians Ctrs. Council, Inc. v. McNary,
969 F.2d 1326, 1345 (2d Cir.1992), vacated as moot sub nom. Sale v.
Haitians Centers Council, Inc., --- U.S. ----, 113 S. Ct. 3028, 125
L. Ed. 2d 716 (1993). In this case we need not decide whether any
such putative liberty interest arises from being "screened-in." As
discussed below, no such procedure was undertaken.
The individual Cuban and Haitian plaintiffs have argued that
the processing which occurs when the migrants are brought into safe
haven is similar to the screening procedure which takes place when
the government attempts to discern if a migrant is a refugee.
16
"Screening" is a preliminary process during which a
determination may be made that the migrant has a well-founded
fear of persecution if repatriated. See Haitian Ctrs. Council,
Inc. v. McNary, 969 F.2d 1326, 1345 (2d Cir.1992), vacated as
moot sub nom. Sale v. Haitian Ctrs. Council, Inc., --- U.S. ----,
113 S. Ct. 3028, 125 L. Ed. 2d 716 (1993). If the migrant is
preliminarily ascertained to have a well-founded fear of
persecution if repatriated, the migrant is "screened-in." See
id. If after an interview, the determination is made that the
migrant does not have such a fear, then the migrant is
"screened-out" and repatriated.
However, providing safe haven residency is a gratuitous
humanitarian act which does not in any way create even the putative
liberty interest in securing asylum processing that the Second
Circuit found that initial screening creates. See McNary, 969 F.2d
at 1345 ("By these humanitarian actions alone [ (rescuing the
migrants from the sea and bringing them to Guantanamo Bay) ], it
does not appear that the legal status of the aliens was altered.
However, once the interdicted persons have been "screened in' the
appellants[ ] ... can fairly be said to have established a
reasonable expectation in the "screened in' plaintiffs in not being
wrongly repatriated...."). We also note that the district court
mistakenly relied upon the HCC case, because that case addressed
only the plight of Haitian migrants who had been "screened in" as
possible refugees. HCC, 823 F. Supp. at 1041 ("Here, the Haitian
Service Organizations have been retained by the Screened In
Plaintiffs and have asserted a right to speak with their clients,
the screened-in Haitians." (emphasis added)). The migrants in
this case have not been "screened in" or otherwise processed for
asylum. By bringing the migrants to safe haven, the government has
not created any protectable liberty or property interest against
being wrongly repatriated and the migrants may not rest a claim of
right of counsel and information on the due process clause.
Unaccompanied Minor Haitians' Right to Parole
The individual unaccompanied minor Haitian migrants are
asserting statutory and constitutional equal protection claims to
be paroled into the United States on the same basis that
unaccompanied minor Cubans have been or may be paroled into the
United States.17 The unaccompanied minor Haitian migrants claim
that the Attorney General has abused her discretion under the INA,
8 U.S.C. § 1182,18 by paroling in Cuban unaccompanied minors but not
Haitian unaccompanied minors. While this claim is not dependent
upon the extraterritorial application of the statute, it fails
nonetheless. We agree with our en banc court's statement in Jean
v. Nelson, 727 F.2d 957, 981-82 (11th Cir.1984) (en banc)
[hereinafter "Jean I "], aff'd on other grounds, 472 U.S. 846, 105
S. Ct. 2992, 86 L. Ed. 2d 664 (1985) [hereinafter "Jean II "], that
"there is little question that the Executive has the power to draw
distinctions among aliens based on nationality." Jean I, 727 F.2d
at 978 n. 30; see generally, Exec. Order No. 12,711, 55 Fed.Reg.
13,897 (1990), reprinted in 8 U.S.C. § 1157. This authority
extends both to the President of the United States and the Attorney
General.19 Jean I, 727 F.2d at 978. Aliens may be excluded or
17
"Parole is an act of extraordinary sovereign generosity,
since it grants temporary admission into our society to an alien
who has no legal right to enter...." Jean I, 727 F.2d at 972.
18
Section 1182(d)(5)(A) provides in part:
The Attorney General may ... in his discretion parole
into the United States temporarily under such
conditions as he may prescribe for emergent reasons or
for reasons deemed strictly in the public interest any
alien applying for admission into the United States....
§ 1182(d)(5)(A).
19
We note, however, that in the Supreme Court's affirmance
of Jean I, its holding was limited to whether " "low-level ...
government officials [may] act in such a manner which is contrary
to federal statutes ... and the directions of the President and
the Attorney General, both of whom provided for a policy of
non-discriminatory enforcement.' " Jean II, 472 U.S. at 853, 105
S.Ct. at 2996 (first omission added) (quoting Brief for Pet'rs at
37). While we held in Jean I that lower-level Immigration and
Naturalization Service officials could not disregard the orders
denied parole on grounds that might be "suspect in the context of
domestic legislation," because "there are apparently no limitations
on the power of the federal government to determine what classes of
aliens will be permitted to enter the United States or what
procedures will be used to determine their admissibility." Id. at
965 n. 5. Here, the Attorney General has exercised her discretion
on the legitimate basis of the very different political climates in
Haiti, under the newly restored democratic President Jean-Bertrand
Aristide on the one hand, and in Cuba, under the regime of Fidel
Castro on the other. See Garcia-Mir v. Smith, 766 F.2d 1478, 1492
(11th Cir.1985) (per curiam) (holding Attorney General need only
assert a " "facially legitimate and bona fide' " reason for a
parole decision (quoting Jean I, 727 F.2d at 977)), cert. denied,
475 U.S. 1022, 106 S. Ct. 1213, 89 L. Ed. 2d 325 (1986). Thus, we
hold that the statutory claims made by the unaccompanied minor
Haitian migrants are without merit and cannot justify an injunction
directing the government to parole them into the United States.
Because we conclude that the statute alleged does not protect the
unaccompanied Haitian minors, we address their constitutional equal
protection claim.
In Jean I, we held that unadmitted and excludable aliens
"cannot claim equal protection rights under the Fifth Amendment,
even with regard to challenging the Executive's exercise of its
of their superiors, here we are faced with the extensive
authority of the Attorney General and the President to make
distinctions on the basis of citizenship and the political
climate of the alien's homeland.
20
parole discretion. " 727 F.2d at 970 (emphasis added). The
plaintiffs in Jean I could not "challenge the decisions of
executive officials with regard to their applications for
admission, asylum, or parole, on the basis of the rights guaranteed
by the United States Constitution," id. at 984, because they had
"no constitutional rights with regard to their applications," id.
at 968; accord Landon v. Plasencia, 459 U.S. 21, 32, 103 S. Ct.
321, 329, 74 L. Ed. 2d 21 (1982) ("[T]he power to admit or exclude
aliens is a sovereign prerogative."); cf. Perez-Perez v.
Hanberry, 781 F.2d 1477, 1479 (11th Cir.1986) ("The world is not
entitled to enter the United States as a matter of right."). The
individual unaccompanied Haitian migrants here, who are outside the
borders of the United States, can have no greater rights than
aliens in Jean I who were physically present in the United States.
See Landon, 459 U.S. at 32, 103 S.Ct. at 329 ("[H]owever, once an
alien gains admission to our country and begins to develop the ties
that go with permanent residence his constitutional status changes
accordingly.").
In HRC II, we concluded that the interdicted Haitians on Coast
20
Although the Supreme Court held that we should not have
reached the constitutional issue in that case because "the
current statutes and regulations provide petitioners with
nondiscriminatory parole consideration—which is all they seek to
obtain by virtue of their constitutional argument," Jean II, 472
U.S. at 854-55, 105 S.Ct. at 2997, our en banc holding in that
case regarding the constitutional issue remains viable as the
Supreme Court did not vacate the opinion but affirmed and
remanded on alternative grounds. See also Perez-Perez v.
Hanberry, 781 F.2d 1477, 1479 (11th Cir.1986) (dictum); Garcia-
Mir v. Smith, 766 F.2d 1478, 1484 (11th Cir.1985) (per curiam)
(dictum); Jean v. Nelson, 863 F.2d 759, 770 (11th Cir.1988)
(dictum), aff'd, 496 U.S. 154, 110 S. Ct. 2316, 110 L. Ed. 2d 134
(1990).
Guard cutters and at Guantanamo Bay did not possess any of the
statutory rights they claimed under the INA and the Refugee
Convention, or the constitutional rights they claimed under the due
process clause of the Fifth Amendment, and the First Amendment.
HRC II, 953 F.2d at 1503, 1511 n. 6 (agreeing with the district
court that the Haitian migrants had no "correlative First Amendment
rights of their own"). Our decision that the Cuban and Haitian
migrants have no First Amendment or Fifth Amendment rights which
they can assert is supported by the Supreme Court's decisions
declining to apply extraterritorially either the Fourth Amendment,
United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75, 110 S. Ct.
1056, 1066, 108 L. Ed. 2d 222 (1990) (rejecting Fourth Amendment
limits to search and seizure of property owned by a non-resident
alien conducted in Mexico by United States agents), or the Fifth
Amendment, Johnson v. Eisentrager, 339 U.S. 763, 784, 70 S. Ct. 936,
947, 94 L. Ed. 1255 (1950) (rejecting claim that aliens outside the
sovereign territory of the United States are entitled to Fifth
Amendment rights). Cf. Reid v. Covert, 354 U.S. 1, 77 S. Ct. 1222,
1 L. Ed. 2d 1148 (1957) (plurality opinion) (holding the right to a
jury trial applies to an American citizen abroad being tried by a
United States military court (narrowest holding)). Clearly,
aliens, outside the United States, cannot claim rights to enter or
be paroled into the United States based on the Constitution.
Therefore, any right to equal protection of the laws, due
process, or rights under the INA or the Refugee Convention now
asserted by the Haitian and Cuban migrants are not cognizable.
Thus, neither group of migrants could have a "substantial
likelihood of success on the merits" which is a necessary predicate
to the grant of injunctive relief. The district court erred in
granting relief to the individual Cuban and Haitian migrants.
2. First Amendment Rights of the Cuban Legal Organizations and HRC
Both the Cuban Legal Organizations and HRC claim a First
Amendment right to freedom of association with the migrants and
free speech such that the government must provide the lawyers
access to clients and any other migrants who request counsel. In
HRC II, we held that the two primary First Amendment cases
recognizing a First Amendment right for a lawyer to solicit a
client for the purpose of engaging in litigation as a form of
political expression, NAACP v. Button, 371 U.S. 415, 83 S. Ct. 328,
9 L. Ed. 2d 405 (1963), and In re Primus, 436 U.S. 412, 98 S. Ct.
1893, 56 L. Ed. 2d 417 (1978), "recognize a narrow First Amendment
right to associate for the purpose of engaging in litigation as a
form of political expression." HRC II, 953 F.2d at 1513 (emphasis
added). However, we concluded that "[t]his right is predicated
upon the existence of an underlying legal claim that may be
asserted by the potential litigant...." Id. (emphasis added).21
Neither the Cuban nor the Haitian migrants have any of the
statutory or constitutional rights claimed here which might sustain
21
Button and In re Primus "do not recognize a right of
access to persons properly in government custody," HRC II, 953
F.2d at 1512, which is what the Cuban Legal Organizations and HRC
have requested. The lawyers' claims under the First Amendment do
not require that the government assist it in communicating with
clients or potential clients in safe haven. Id. at 1513.
Although the attorneys argue that they require no financial
assistance or transportation from the government, for the lawyers
to meet with their clients, assistance is necessarily required in
providing access to the base, meeting areas, accommodations and
security.
the attorneys' claims to right of association, and "associational
freedom in no way implies a right to compel the Government to
provide access to those with whom one wishes to associate." Id.
Hence, it would not only be improper, but also "nonsensical," for
us to hold today that attorneys for either migrant group suddenly
possess "a right of access to the interdicted [migrants] for the
purpose of advising them of their legal rights." Id.
Because under precedent of this circuit, neither the migrants
nor the lawyers may assert First Amendment rights of association
and speech in this context, we need not determine whether the
government engaged in any viewpoint-based discrimination in denying
the Cuban Legal Organizations and HRC access while granting
humanitarian organizations access. Providing humanitarian
organizations access to the migrants does not, without more, create
a First Amendment right to that access for those humanitarian
organizations or for the Cuban Legal Organizations and HRC. If the
First Amendment does not apply to the migrants or to the lawyers at
Guantanamo Bay, the government cannot be engaging in impermissible
viewpoint-based discrimination by restricting association between
the migrants and counsel. Cf. Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 44, 46, 103 S. Ct. 948, 954, 955, 74
L. Ed. 2d 794 (1983) (holding first that the First Amendment applied
to teachers' mailboxes in a public school, but that the " "First
Amendment does not guarantee access to property simply because it
is owned or controlled by the government,' " and that there was no
First Amendment right to access to the mailboxes (quoting United
States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S.
114, 129, 101 S. Ct. 2676, 2684, 69 L. Ed. 2d 517 (1981))).22 For the
above reasons, an injunction requiring the government to provide
reasonable and meaningful access of legal counsel to the migrants
in the safe haven, based on First Amendment rights of the attorneys
is not justified.
3. Disclosure of Haitian Migrants' Identities
HRC contends that the government's refusal to disclose the
identities of Haitian migrants at Guantanamo Bay violates HRC's
First Amendment rights to freedom of association and violates the
Haitian migrants' rights to equal protection of the laws and rights
under the INA and international law. The district court, without
stating its reasons, ordered that the government provide HRC a list
of all Haitian migrants in safe haven. As decided above, the
22
We recognize that the HCC court found that "First
Amendment [is] applicable to U.S. conduct on a military base."
823 F. Supp. at 1040. The court cited Flower v. United States,
407 U.S. 197, 198-99, 92 S. Ct. 1842, 1843-44, 32 L. Ed. 2d 653
(1972) (per curiam) for this proposition. From our reading of
Flower we find it is clearly distinguishable. The military base
in question in Flower was Fort Sam Houston in San Antonio, Texas;
not Guantanamo Bay or an installation in Panama. There, a
civilian (an American citizen) was arrested for distributing
leaflets on an road within the fort. The Supreme Court found
that the road was essentially a public one as there was "no
sentry post or guard at either entrance or anywhere along the
route," Flower, 407 U.S. at 198, 92 S.Ct. at 1843 (quoting United
States v. Flower, 452 F.2d 80, 90 (5th Cir.1972) (Simpson, J.
dissenting)), and more than 15,000 cars travelled through the
fort each day via this road. These are facts not remotely
analogous to the access policies at Guantanamo Bay, Cuba, or
presumably at the installations in Panama. Moreover, the Supreme
Court has recognized the limited nature of its holding in Flower.
See Greer v. Spock, 424 U.S. 828, 835, 96 S. Ct. 1211, 1216, 47
L. Ed. 2d 505 (1976); U.S. v. Albertini, 472 U.S. 675, 684-86, 105
S. Ct. 2897, 2904-05, 86 L. Ed. 2d 536 (1985); see also M.N.C. of
Hinesville, Inc. v. U.S. Dept. of Defense, 791 F.2d 1466, 1473 n.
3 (11th Cir.1986). Hence, we are of the opinion that this case
does not stand for the proposition that the First Amendment
necessarily applies at American military bases located in foreign
countries.
Haitian migrants in safe haven cannot claim the rights and
privileges of the statutes enumerated or of the Constitution with
respect to a right to counsel, their repatriation or parole into
the United States. Thus, they cannot succeed on any claim that
they have rights which are being violated by failure to disclose
their identities to HRC. What remains then is a request by HRC
that the government release information. Such a claim is typically
made under the Freedom of Information Act; however, no claim has
been made under the Act here. Instead, this claim is
constitutional in nature. The Supreme Court has held that there is
"no discernible basis for a constitutional duty [on the government]
to disclose, or for standards governing disclosure of or access to
information." Houchins v. KQED, Inc., 438 U.S. 1, 14, 98 S. Ct.
2588, 2596, 57 L. Ed. 2d 553 (1978) (plurality opinion). "This Court
has never intimated a First Amendment guarantee of access to all
sources of information within government control." Id. at 9, 98
S.Ct. at 2593-94. Because there is no authority for us to compel
disclosure of the Haitian migrants' identities, we cannot force the
government to provide HRC with access to the list of Haitian
migrants in safe haven. See id.
III. CONCLUSION
While we have determined that these migrants are without legal
rights that are cognizable in the courts of the United States, we
observe that they are nonetheless beneficiaries of the American
tradition of humanitarian concern and conduct. In the context of
the refugees' world of today (e.g., Bosnia and Rwanda) this is
significant. While these migrants are faced with difficult
conditions, the demonstrated concern of groups like the Cuban Legal
Organizations and HRC and the goodwill of their military rescuers
and caretakers will hopefully sustain and reassure them in their
quest for a better life.
Nevertheless, we cannot contravene the law of this circuit and
of the Supreme Court of the United States in order to frame a legal
answer to what is traditionally and properly a problem to be
addressed by the legislative and executive branches of our
government. See Perez-Perez, 781 F.2d at 1479. "Although the
human crisis is compelling, there is no solution to be found in a
judicial remedy." Sale, --- U.S. at ----, 113 S. Ct. at 2567
(quoting Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 841
(D.C.Cir.1987) (Edwards, J., concurring)). For the foregoing
reasons, the preliminary injunctions issued by the district court
and dated October 31, 1994, November 22, 1994, and November 28,
1994, together with our December 19 Order, are hereby DISSOLVED and
these cases are REMANDED to the district court with direction to
dismiss the plaintiffs' claims.