Case: Fernandez-Roque v. Smith

On or about June 6, 1981, Cuban refugees filed a lawsuit against the Immigration and Naturalization Services ("INS") under 28 U.S.C. § 2241 in the U.S. District Court for the Northern District of Georgia. Plaintiffs sought to be released on parole from INS custody.

The Fernandez-Roque case was consolidated with Garcia-Mir v. Smith, Civil Action No. C81-938A (originally filed in Kansas [IM-KS-1] but transferred to N.D. Georgia.) By a court order dated July 14, 1981. A third lawsuit, Orlando Chao-Estrada v. Smith, Civil Action No. C81-1350A, was consolidated with the other two cases on July 17, 1981.

On August 7, 1981, the court (Judge Shoob) held that the class met the requirements to be certified as a class action, and the breakdown of class action into subclasses was allowed due to the fact that it was based on "excludability determinations" made by the immigration judges. Fernandez-Roque v. Smith, 91 F.R.D. 117 (N.D.Ga. 1981). The plaintiffs represent approximately 1800 Cuban refugees who were detained by the INS upon their arrival in the U.S. as part of the 1981 Freedom Flotilla.

On August 20, 1981, the court (Judge Shoob) held that the detention of the refugees, who posed no immediate threat to the United States and were unlikely to be sent back to Cuba soon, was an abuse of the INS's parole authority. On an unknown date, the government appealed the decision to bar the deportation of the Cuban refugees. On March 4, 1982, the court (Judge Tuttle) held that the government could not appeal the temporary restraining order, and remanded the issue back to the District Court in order to discuss the jurisdictional issues.

On April 28, 1982, the court (Judge Shoob) granted the plaintiffs' motion to amend their complaint, and held that it had jurisdiction over the habeas corpus portion of the case. Therefore the court also held that it had jurisdiction on a class-wide basis through habeas corpus, but it lacks jurisdiction over plaintiffs' claim of entitlement to a remand to the INS for a class-wide hearing. The court kept the injunction entered on August 19, 1981 in effect. The court deferred the defendant's motion to dissolve the injunction and the plaintiffs' motion for a preliminary injunction pending appeal.

On November 23, 1982, the court (Judge Shoob) held that it was not reasonable for federal officials to exclude, as sponsors, all family sponsorships from state of Florida. The court also determined that the failure of the defendants to try to find "suitable individual, non-family member sponsors" was unreasonable and arbitrary, especially since they had the ability to screen potential sponsors, and there was no evidence that non-family members were less effective as sponsors than were relatives. The court, however, stated that although there was an abuse of discretion during the process of placing the detainees in parole, "the issuance of writ ordering immediate release of those determined releasable was neither desirable nor warranted, and thus appropriate relief was order correcting the abuses found." Fernandez-Roque v. Smith, 557 F.Supp. 690, 691 (N.D.Ga. 1982).

On July 7, 1983, the court (Judge Shoob) held that the government's decision to use statutory authority to detain excludable aliens indefinitely when their immediate exclusion was impractical, due to the fact that after a certain period of time the U.S. Constitution requires that further detention must be justified on the basis of "procedurally adequate finding that detainee, if released, is likely to abscond, to pose risk to national security, or to pose significant threat to persons or property within the United States." The court determined that the Attorney General's Status Review Plan does not give detainees procedurally adequate hearings. Fernandez-Roque v. Smith, 567 F.Supp. 1115, 1115 (N.D.Ga. 1983).

On June 1, 1984, the court (Judge Henderson) held that the government had the authority to detain aliens indefinitely in those cases where immediate exclusion was not a practical means to perpetuate INA, and the denial or revocation of parole of excludable aliens does not qualify as constitutional infringement. The court also determined that the Attorney General's policy of refusing to authorize individual non-family member sponsors and his policy of restricting resettlement in Florida to family members were not abuse of discretion.

On October 15, 1984, the court (Judge Shoob) reversed and remanded the previous court decision. The court held that the Board of Immigration Appeals abused its discretion when it denied the petitions to reopen claims "where it used incorrect legal standard in deciding the motion, disregarded or mischaracterized evidence tending to establish claim of well-founded fear of persecution, and impermissibly prejudged the case on the merits." Fernandez-Roque v. Smith, 599 F.Supp. 1103 (N.D.Ga. 1984).

On an unknown date, the government filed a motion to stay the district court's order pending the appeal. On December 31, 1984, the court (Judge Shoob) denied the motion and held that government was not entitled to stay an order "remanding claims for administrative adjudication, inasmuch as it failed to demonstrate that it was likely to prevail on merits, and grant of stay was likely to cause irreparable harm to detainees." Fernandez-Roque v. Smith, 599 F.Supp. 1110 (N.D. Ga. 1984). On January 21, 1985, the court (Judge Shoob) ordered the plaintiffs to be released on parole as ordered, due to the fact that the Attorney General abused his discretion in refusing to release Cuban detainees.

On July 11, 1985, the court issued a per curiam reversal of the previous decision, holding that the Attorney General could temporarily halt the release of Mariel Cubans under the "status review plan," if based on his concern that Cuba's agreement to take back 2,746 Mariel Cubans increased the likelihood that aliens would attempt to escape if released on parole, "and notwithstanding stipulations stating that Board of Immigration Appeals' decisions in two test cases would be binding on persecution issue for all members of class who chose to include the issue in their individual motions to reopen." The court also held that the district court lacked subject matter jurisdiction over the plaintiffs' eligibility for asylum based on the new evidence "where those class members had not exhausted their administrative remedies." Garcia-Mir v. Smith, 766 F.2d 1478 (11th Cir. 1985).

On November 25, 1985, the court (Judge Shoob) denied the defendant's motion for reversal. The court held that Cubans had standing to have their claim decided on the merits. More specifically, Cubans who had been continuously detained as mental incompetents or for having committed serious crimes in Cuba who had no liberty interest in parole which could justify relief, but "Mariel Cubans who were not mental incompetents and had not committed serious crimes in Cuba, who came to the U.S. in response to invitation from the President of the U.S. that created a protected liberty interest in continued parole for such Cubans." The court also held that these Cubans who were invited by the President were entitled to due process standards. Fernandez-Roque v. Smith, 622 F.Supp. 887 (D.C.Ga. 1985).

On January 21, 1986, the court (Judge Johnson) held that the plaintiffs' motion for stay would be denied to the extent that the order directed the Attorney General to submit his plans for conducting hearings, but would be granted to the extent that it required the implementation of this type of plan. The court also denied the motion for summary reversal. Judge Clark concurred with his own opinion. On February 24, 1986, the Supreme Court denied the petition for writ of certiorari to the U.S. Court of Appeals for the Eleventh Circuit.