MOISES GARCIA-MIR, ET AL., RAFAEL FERNANDEZ-ROQUE, ET AL., AND ORLANDO CHAO-ESTRADA, APPLICANTS V WILLIAM FRENCH SMITH, ET AL. No. A-582 In the Supreme Court of the United States October Term, 1984 On Application to Vacate a Stay Pending Appeal to the United States Court of Appeals for the Eleventh Circuit Memorandum for the Respondents in Opposition In 1980, thousands of Cuban nationals unlawfully entered the United States as part of the Mariel boatlift. Certain of these aliens have successfully avoided deportation for more than four and a half years, largely because of Cuba's unwillingness to accept them. On December 14, 1984, the governments of the United States and Cuba finally concluded an agreement under which 2,746 named Cuban nationals who unlawfully entered the United States in 1980 will be returned to Cuba. Performance of this agreement is essential to this country's foreign policy interests. Only a small number of Cubans may be returned each month. It is vital that these returns commence as soon as possible, for Cuba is already beginning to reap the benefits of the agreement in the form of this country's resumption of normal immigrant visa processing. If we are unable to begin returning these excludable aliens in the very near future, the opportunity to do so might be lost, as emigration and changing world conditions lessen the pressure on Cuba to live up to its agreement. Many members of the plaintiff class are to be returned under the agreement. The partial stay entered by the court of appeals permits the United States to begin obtaining the benefit of its agreement with Cuba, while preserving the rights of those class members who may legitimately be eligible for asylum. There is no warrant to vacate that partial stay. STATEMENT These consolidated cases were brought by a class of Cuban nationals who arrived in the United States in the 1980 Mariel boatlift. Many class members were determined to be excludable from this country and have been detained in the federal penitentiary in Atlanta pending Cuba's willingness to accept their return. Cuba has recently agreed to the return of 2,746 named Mariel Cubans, many of whom are plaintiffs here, in exchange for concessions from the United States. Plaintiffs' application arises out of an appeal by the government from an order of the district court entered on October 15, 1984, setting aside the exclusion orders of class members (App. E, infra) and thus preventing the United States from obtaining the benefit of its agreement with Cuba. The district court denied the government's motion for a stay pending appeal (App. D, infra). On January 16, 1985, the court of appeals granted a partial stay pending appeal (App. C, infra). On January 23, 1985, plaintiffs moved that the partial stay be vacated or modified. The court of appeals denied the motion to vacate but clarified its partial stay on January 25, 1985 (App. A, infra). The appeal has been expedited and consolidated with an appeal from another order of the district court (App. B, infra). Argument is set for the week of February 25, 1985 (ibid.). Plaintiffs filed the present application on January 28, 1985. 1. a. These habeas corpus actions by Cuban nationals who entered the United States in the 1980 Mariel boatlift were consolidated in the United States District Court for the Northern District of Georgia. The district court certified a class consisting of those Cubans who are now or have been detained in the federal penitentiary in Atlanta. Fernandez-Roque v. Smith, 91 F.R.D. 117, 123, mod., 91 F.R.D. 239, 244 (1981). Class members initially challenged only their confinement, but later alleged that they are refugees entitled to asylum. See 8 U.S.C. 1158. Although more than 120,000 Cubans entered this country during the 1980 boatlift, most were granted parole upon their arrival. The class numbers approximately 1800. Fernandez-Rogue v. Smith, 671 F.2d 426, 428 & n.1 (11th Cir. 1982); see also Fernandez-Roque v Smith, 734 F.2d 576 (11th Cir. 1984). Final orders of exclusion have been entered with respect to many members of the class. See 8 U.S.C. 1226. b. In April 1982, the district court determined that it lacked jurisdiction to review the exclusion orders of those class members who had not exhausted their administrative remedies and that it lacked "subject matter jurisdiction to remand to the (Immigration and Naturalization Service (INS)) for a classwide hearing" on the aliens' asylum claim. Fernandez-Roque v. Smith, 539 F. Supp. 925, 943; see 8 U.S.C. 1105a(c). Attorneys for the class then sought to reopen the administrative exclusion hearings of two individual class members on the theory that they were members of a "social group" (i.e., the boatlift participants) who would be subject to persecution if they were returned to Cuba, making them eligible for asylum. See 8 U.S.C. 1101(a)(42)(A), 1158. The parties stipulated that decisions on the two individual motions to reopen "will be binding on all asylum/withholding of deportation issues relating to membership in the Freedom Flotilla as a social group" (app. F, infra, 1). The stipulations expressly provided, however, that the two test cases would have no binding effect over the determinations of other class members "with respect to statutory and regulatory exceptions to asylum/withholding eligibility" (ibid.). /1/ The two test motions to reopen were denied by the Board of Immigration Appeals on the ground that the aliens had not presented a prima facie case of persecution (App. G, H, infra). The Board's determination was heavily dependent on the aliens' failure to demonstrate that they would be returned to Cuba without that country's consent, an assumption on which their claim of persecution was largely based (App. G, infra, 6; App. H, infra, 6). The Board did not reach the "social group" issue that was the object of the stipulations nor, on the INS's request for further review, did the Attorney General (App. I, infra). c. The district court ruled on October 15, 1984, that the Board had abused its discretion by failing to open the test cases because the aliens had presented sufficient evidence of the likelihood of persecution (App. E, infra). The court remanded the test cases to the Board and set aside all outstanding orders of exclusion (id. at 15-16). 2. On December 14, 1984, the United States and Cuba concluded an agreement on immigration matters, reflected in a "Communique" and a "Minute on Implementation" (App. J. infra, ex. A). Cuba has agreed to the return of 2,746 named Mariel Cubans in exchange for the resumption of this country's normal processing of preference immigrant visas for Cuban nationals. The agreement limits the number of Mariel Cubans that may be returned to 100 per month, except that, if fewer than 100 aliens are returned in a calendar month, the shortfall may be made up in subsequent months. Under no circumstances may more than 150 Cubans be returned in any calendar month. Cuba's willingness to enter into this agreement probably stems in large part from its desire to resume using immigration to the United States as a means of reducing internal pressures. The United States has already begun the process of issuing up to 20,000 preference immigrant visas and facilitating the admission as refugees of up to 3,000 former political prisoners during 1985. App. J, infra, 203. The government of Cuba has indicated that it will not mistreat any of the persons returned under the agreement. Michael Kozak, head of the United States negotiating team, was assured by Cuban officials that returnees "will not be penalized for having left Cuba or for having participated in the Mariel Boatlift" (App. K, infra, 4). Cuba plans to reintegrate into its society those returnees having no medical or United States criminal problems; Cuba asserts that its own former prisoners "either had already completed their sentences or had had their sentences commuted prior to their departure" (id. at 2). President Castro echoed these views in a speech on December 14, 1984, in which he promised responsible treatment for the returnees (id. at 3). As Mr. Kozak summarized (id. at 4): (T)hrough authoritative statements of Cuban officials, including of President Castro and of the authorized representative of the Government of Cuba, * * * Cuba has undertaken not to persecute any of the returned Mariel participants. Instead, the government of Cuba has expressed its consent to the return of these individuals, and all of its actions and expressed positions are consistent with an orderly reintegration of these returned individuals into Cuban society, save where it is determined on a case by case basis and under Cuban law that particular individuals require institutionalization for their own safety or that of the Cuban public. 3. The government appealed from the district court's October 15, 1984, order and sought a stay pending appeal. The district court refused to grant the stay (App. D, infra). In seeking a stay from the court of appeals, the government argued that many class members are not entitled to asylum regardless of whether they are members of a social group subject to persecution, because they had committed serious crimes. See 8 C.F.R. 208.8 (f)(1). The government also stated that no class members would be returned until February 8, 1985, in order to allow them time to pursue administrative relief on an individual basis. The court of appeals granted a partial stay on January 16, 1985 (App. C, infra), staying those parts of the district court's order that vacated all outstanding orders of exclusion and remanded the test cases to the Board (id. at 2 & n.2). The court noted (id. at 2) that the stay "is without prejudice to the rights of individual members of the class to pursue administrative or, if appropriate, judicial remedies." The court interpreted the government's representations to mean that it would not, during the pendency of the appeal, return to Cuba any class member who is not rendered ineligible for asylum or withholding of deportation by reason of having committed a serious crime either in Cuba or in the United Stated (id. at 2 n.2). The appeal was expedited and argument set for the week of February 25, 1985 (App. B, infra). /2/ On January 23, 1985, plaintiffs moved the court of appeals to vacate or to modify the partial stay entered on January 16. Plaintiffs requested that, if the stay were not vacated, the court modify its order to provide that no alien who files a new asylum claim may be deported pending appeal, or clarify the order with respect to who must make the statutory ineligibility decisions and when those decisions must be made. On January 25, 1985, the court of appeals modified its earlier order to order explicitly (App. A, infra, 2-3; footnotes omitted): that the government take no action to return to Cuba any of those class members identified in the stipulations who claim eligibility for asylum on the ground that they have a well-founded fear of persecution because of membership in a social group, and who are not returnable under subsection 2 of 8 U.S.C. Section 1253(h) (which sets forth the ineligibility criteria), until such time as the issues on this appeal are resolved or until further order of this court. This order shall not preclude the government's return of any excludable alien who comes within the provisions of 8 U.S.C. Section 1253(h)(2). The present application to vacate the partial stay pending appeal entered by the court of appeals was filed on January 28, 1985. ARGUMENT The power to vacate a stay entered by a court of appeals pending its own consideration of the merits "should be exercised with the greatest of caution and should be reserved for exceptional circumstances." Holtzman v. Schlesinger, 414 U.S. 1304, 1308 (1973) (Marshall, Circuit Justice). "A Court of Appeals' decision to enter a stay is entitled to great deference," O'Connor v. Board of Education, 449 U.S. 1301, 1304 (1980) (Stevens, Circuit Justice), and interference with that decision is warranted only by the "weightiest considerations," Bonura v. CBS, Inc., 459 U.S. 1313 (White, Circuit Justice); New York v. Kleppe, 429 U.S. 1307, 1310 (1976) (Marshall, Circuit Justice). A stay may be dissolved only where it is reasonably probable that, if the court of appeals reverses the district court on the merits, four Members of the Court would ultimately vote to grant certiorari; there is a significant possibility that this Court or the court of appeals would agree with the decision of the district court; and the stay, if not vacated, would result in irreparable harm. See Certain Named and Unnamed Non-Citizen Children v. Texas, 448 U.S. 1327, 1330-1332 (1980) (Powell, Circuit Justice). A Circuit Justice must be extremely relectant to vacate an interim stay pending a court of appeals' decision on the merits because such a ruling "invades the normal responsibility of (the) court (of appeals) to provide for the orderly disposition of cases on its docket" (id. at 1331). In sum, a Circuit Justice has jurisdiction to vacate a stay where it appears that the rights of the parties to a case pending in the court of appeals, which case could and very likely would be reviewed (in the Supreme Court) upon final disposition in the court of appeals, may be seriously and irreparably injured by the stay, and the Circuit Justice is of the opinion that the court of appeals is demonstrably wrong in its application of accepted standards in deciding to issue the stay. Coleman v. PACCAR Inc., 424 U.S. 1301, 1304 (1976) (Rehnquist, Circuit Justice). The application to vacate the partial stay pending appeal should be denied because it is not probable that plaintiffs will prevail on the merits in the court of appeals or in this Court; the partial stay does not irreparably harm plaintiffs because only those aliens who would be ineligible for relief even if the court of appeals affirms the district court's order may be deported pending the appeal; and the partial stay is necessary to prevent irreparable harm to the United States and to serve the public interest. 1. Likelihood of success. It is exceedingly unlikely that plaintiffs will prevail in the court of appeals or in this Court. In order to prevail as a class, plaintiffs would have to demonstrate, inter alia, (1) that a favorable resolution of the test cases requires the reopening of the exclusion hearings of all class members, even those who are criminals ineligible for asylum relief and those over whom the district court lacked jurisdiction and (2) that the Board of Immigration Appeals abused its discretion in determing that the aliens had failed to establish a prima facie case of persecution. Plaintiffs cannot prevail on either point. First, many class members are not entitled to reopening no matter what the outcome of the two test cases. /3/ The class of detainees at the Atlanta penitentiary is not a typical cross-section of aliens. It is composed largely of criminals whose release has been determined to be detrimental to the public. Persons who have committed serious crimes may not be granted asylum or withholding of deportation. /4/ Even if the test cases are remanded to the Board and the Board rules favorably with respect to the social group and persecution issues, these members of the class could not avoid deportation. Moreover, many members of the class still have not exhausted their administrative remedies. The district court therefore lacked jurisdiction over their claims, as the court itself recognized earlier (539 F. Supp. at 939). Notwithstanding the stipulations (see note 3, supra), the district court was without power to set aside the exclusion orders pertaining to these aliens. 8 U.S.C. 1105a(c). Second, the Board of Immigration Appeals did not abuse its discretion in denying the motions to reopen. Much of the evidence submitted by the aliens related to boatlift participants who had attempted to return to Cuba without first obtaining the permission of Cuban authorities. Because plaintiffs had not presented evidence that they would be returned in similar circumstances, the Board concluded that the evidence was not sufficient to demonstrate a prima facie case of a likelihood of persecution (App. G, H, infra, 6). Contrary to plaintiffs' claim (Applic. 39-40 n.18), whether the Cuban government has consented to their return is obviously relevant to whether they will be persecuted upon return to their homeland. It is likely that the court of appeals will reverse the district court's order; the fact that it granted a stay demonstrates as much. The court of appeals has already twice determined that the district court erred in its rulings in this case (734 F.2d 576; 671 F.2d 426). It is clear that the district court has again overstepped the bounds of proper review of administrative determinations. Its order (App. E, infra) distorts the Board's opinion, misintrepets the Board's evidentiary conclusions, and, as we have demonstrated, misreads the stipulations and ignores the statutory limits on its own jurisdiction. Finally, it is quite unlikely that four Members of this Court would vote to grant certiorari to review a decision of the court of appeals reversing the district court's order, as only factual and settled legal questions would be presented. 2. Irreparable injury. The partial stay granted by the court of appeals will not irreparably injure plaintiffs. Although the government had asked that the district court's order be stayed in its entirety, the court of appeals entered a stay only with respect to those plaintiffs who come within the statutory and regulatory exceptions to elegibility for asylum and withholding of deportation (see App. A, C, infra; pages 8-9 & n.4, supra). /5/ These are precisely the members of the class who cannot benefit even if the court of appeals affirms the remand of the test cases to the Board. Hence, their deportation during the pendency of the appeal does not constitute the sort of harm relevant to whether a stay should be granted. Significantly, every class member may pursue his own individual remedies during the pendency of the appeal and, if successful, prevent his deportation. Thus, meritorious claims may be distinguished from those without substance. Those aliens barred from obtaining asylum should not be able to receive automatic relief simply because some of their fellow class members may possess the eligibility that they lack. Finally, the agreement with Cuba dispels any likelihood of persecution upon the aliens' return (see page 5, supra). The court of appeals was well within its discretion in determining that plaintiffs have not demonstrated irreparable injury sufficient to overcome the other factors in favor of a stay. Plaintiffs make three responses. First, they argue (Applic. 20-23) that ineligibility determinations cannot be made without balancing the seriousness of the alien's crime against the degree of persecution he is likely to face should he be deported. Nothing in the statute or regulations, however, expressly requires such balancing. Moreover, even if balancing might otherwise be appropriate, the agency is well within its discretion to refuse to undertake that balancing where, as here, the degree of likely persecution is not great. Cf. INS v. Wang, 450 U.S. 139 (1981) (Board may refuse to consider claim of "extreme hardship" without a hearing where prima facie case has not been established); INS v. Bagamasbad, 429 U.S. 24 (1976) (motion to adjust alien's status may be denied as a matter of descretion without findings as to eligibility). Plaintiffs' own expert testified that the sort of persecution class members would most likely face, if returned without Cuba's consent, included only "some elements of house arrest, some element of compulsory work on what might have been vacation time or weekends and the like" (Leon Admin. R. 615). /6/ Finally, the balancing plaintiffs seek must of course be done on an individualized basis. Individual motions to reopen therefore must be filed; the classwide relief plaintiffs seek is inappropriate even on their own theory. Second, plaintiffs argue (Applic. 23-30) that requiring individual motions to reopen would present administrative difficulties. /7/ While real, none of the problems to which they allude is insurmountable. When we filed our stay motion in the court of appeals, we represented that no deportations would take place for 30 days. It is now apparent that deportations cannot begin until at least the middle of February. While time is short, plaintiffs have received adequate notice to make the necessary preparations, especially given the relatively modest rate at which aliens will be returned under the agreement with Cuba. Finally, plaintiffs urge (Applic. 25, 45) various modifications in the court of appeals' partial stay order. The court of appeals rejected these proposals when it entered its last order (App. A, infra), and there is no reason for this Court to interfere with the details of the operation of the stay. In any event, plaintiffs' proposals are without merit. Plaintiffs ask first that deportation be stayed for any alien who files a motion to reopen. This would be tantamount to giving plaintiffs virtually all of the relief they seek. The statute and regulations provide ample opportunity to seek and obtain a stay. See 8 U.S.C. 1105a(a)(3), 1226(b); 8 C.F.R. 3.6, 3.8(a), 242.22. Plaintiffs are not entitled to any special treatment in this regard as compared with other aliens seeking to reopen their hearings. The stay is not ambiguous with respect to who is to make the initial eligibility determinations. Officials of the Department of Justice are the obvious persons to do so, and they are obligated to make a good-faith effort to select for deportation only those aliens who meet the ineligibility criteria. In the unlikely event that they err in a particular case, the individual may obtain relief through a motion to reopen. In fact, this aspect of the court of appeals' order gives the plaintiffs more relief than they are entitled to. Under the statute and regulations, it is the alien who must demonstrate eligibility for asylum. Under the court's partial stay, however, the government may deport only those aliens who it determines are ineligible for relief; the aliens need do nothing. This works to plaintiffs' benefit; it provides no ground for awarding them even more relief. Finally, although names and addresses of class members may be useful to plaintiffs' attorneys, there is no basis for this Court to require such discovery from the government, especially where plaintiffs' counsel do have a list of all present detainees, they know that Cuba has agreed to the return of the vast majority of these persons, and the rate of return cannot average more than 100 aliens per month. 3. Harm to the government and the public interest. The injury to the government caused by the district court's order weighs strongly in favor of the stay entered by the court of appeals. /8/ For four and one-half years, the United States has been unable to return any excludable Mariel participant to Cuba. The Cuban government has finally agreed to the return of its nationals in exchange for normal immigrant visa processing by this country. Pursuant to the agreement, deportations could have commenced in mid-January, but will take several years to complete even under the best of circumstances. Any significant delay at the outset will, at a minimum, substantially prolong the entire process. Cuba, on the other hand, enjoys its benefit of the bargain from the very beginning. Lengthening the duration of the return process greatly increases the risk that the United States will ultimately not reap its benefits, as changing world conditions may alter the climate that enabled the countries to reach the present agreement. As Under Secretary of State Armacost stated (App. J, infra, 5-6): (P)ast experience demonstrates * * * (that) extraneous events in the course of Cuban-United States relations could lead Cuba to act in disregard of its obligations under the agreement at some point in the future. For this reason, it is critical to the successful implementation of the agreement that the United States be able to begin transporting excludable Mariel participants to Cuba as soon as the agreement permits. * * * In addition, there is a risk that sporadic and unpredictable implementation on the United States' part will disrupt the administrative arrangements made by Cuba, and make it more difficult for Cuba to receive and process expeditiously and properly a larger volume of returnees when the United States achieves full implementation. Thus, any unnecessary delay in implementation (sic) of the returnees could have serious, adverse consequences for United States interests and could introduce complications into U.S. migration relations with Cuba. * * * (I)t is vital to United States foreign policy interests that the United States begin returning excludable Mariel Cubans immediately upon expiration of the 30-day period following signature of the agreement, and that it continue to do so at or near the rate envisioned by the agreement. CONCLUSION It is therefore respectfully submitted that the application to vacate the stay pending appeal should be denied. REX E. LEE Solicitor General Department of Justice Washington, D.C. 20530 (202) 633-2217 JANUARY 1985 /1/ Aliens who have committed serious crimes or constitute a danger to the United States are not eligible for asylum or the related remedy of withholding of deportation. See 8 U.S.C. 1253(h)(2); 8 C.F.R. 208.8(f)(1); pages 8-9 & n.4, infra. /2/ The appeal has been consolidated with the government's appeal from another order of the district court concerning the Attorney General's authority to decline to release class members from the penitentiary (App. B, infra). /3/ The stipulations plainly did not convert the two test cases into classwide motions to reopen. The court of appeals recognized this when it stated that the district court was "clearly in error" in characterizing its dissolution of all outstanding exclusion orders as surplusage (App. C, infra, 2 n.1). The stipulations allowed classwide treatment of certain common issues presented by the aliens' claims, particularly with respect to whether they could claim persecution on the basis of membership in a social group by virtue of their participation in the boatlift. By their own terms the stipulations did not purport to substitute for individual motions to reopen, for they did not cover the exceptions to asylum eligibility and they allowed aliens to pursue their own motions (see App. F, infra, 1-2). The district court itself had recognized earlier (539 F. Supp. at 943) that it lacked jurisdiction to remand for a classwide hearing; nothing in the stipulations could or did grant it such jurisdiction. Class treatment would in any event be improper for the ultimate resolution of asylum claims because individual issues predominate over common ones. See Fed. R. Civ. P. 23(b)(3). Finally, contrary to plaintiffs' assertion (Applic. 38), nothing in the stipulations mandates the order in which issues must be decided. /4/ 8 U.S.C. 1253 (h)(2) provides that withholding of deportation is not available if (B) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States; (C) there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States; or (D) there are reasonable grounds for regarding the alien as a danger to the security of the United States. The same grounds disqualify an alien from eligibility for asylum. 8 C.F.R. 208.8(f)(1)(iv)-(vi). /5/ Plaintiffs repeatedly suggest (Applic. 21 & n.7, 30-31 n.14, 32) that class members not within the eligibility exceptions might be deported during the pendency of the appeal. This simply ignores the court of appeals' express limitation on the stay that it entered. Regardless of who is on the list of Cubans to be returned, only those persons ineligible for asylum may be deported while the appeal is pending (App. A, infra, 2-3). And the 147 class members identified as non-violent who are currently detained (see Applic. 9) plainly cannot be deported pending appeal (App. B, infra). /6/ Even if the court of appeals were to affirm the district court's remand of the test cases to the Board because it concluded that persecution was sufficiently likely as to give rise to a prima facie asylum claim, class members who had committed serious crimes would not, on a balancing test, automatically overcome their statutory disqualification. To the contrary, plaintiffs' proposed balancing test assumes that persecution is likely (otherwise, the aliens would not in any event be eligible for asylum), and then asks if that persecution is so severe, above and beyond what is required simply to invoke the protection of the statute, that the alien, though a serious criminal, deserves asylum. Here, even if the probability of Cuban persecution is established, it is only by the thinnest of margins. Hence, it is unlikely that class members with serious criminal backgrounds could obtain relief under their balancing test. /7/ Plaintiffs also argue (Applic. 24 n.9) that it would be futile to seek administrative relief. But the Board's decision in the two test cases did not purport to decide individual eligibility issues, and the possibility of persecution will now be addressed in light of the changed circumstances arising out of this country's agreement with Cuba. Moreover, were the agency to err with respect to whether a particular individaal has a criminal background making him ineligible for asylum, the alien's own motion to reopen would be the logical avenue for him to make his argument. /8/ In addition to the foreign policy concerns discussed in text, it must be noted that the district court's order, if left unstayed, would put the government in an untenable administrative position -- the orders of exclusion would be set aside, but the aliens themselves would not be required to come forward to press their claims. The district court thus gave the class the practical benefit of asylum relief without requiring the aliens acutally to advance their claims so that they could be decided by the INS.