In the spring of 1980 approximately 125,000 Cubans participated in a mass exodus from their country to the United States. Although the "Mariel Boatlift" Cubans were properly characterized as excludable aliens with no right of entry when they arrived on our shore, the vast majority of them were eventually paroled into this country and have been given the opportunity to apply for resident status. The government has, however, exercised its discretion under the immigration laws to refuse admission to a small percentage of the Mariels. Virtually all of these aliens have been issued final exclusion orders by immigration authorities, but have not been returned because Cuba has been unwilling to take them back. Of this group, about 1,800 have also been denied parole and remain incarcerated in the Atlanta federal penitentiary. Many, but not all, of the detainees have criminal records or histories of mental problems.
The appeals before us are but one stage in the complicated history of the 1,800 detainees' legal battle to gain release from custody and avoid return to Cuba. At this juncture, we consolidate two separate appeals for the convenience of the parties and the court, and we resolve three issues: (1) the validity of the district court's order requiring the Attorney General to resume procedures for releasing certain of the plaintiffs from custody under his Status Review Plan; (2) the validity of the district court's order requiring the government to reopen two of the Mariels' exclusion hearings based on new evidence that they have produced to support claims for asylum, and (3) the district court's jurisdiction to stay or set aside all other purported class members' exclusion orders on the basis of this new evidence despite their failure to make individual motions to reopen.
The history of this litigation is, as noted, complex. It has progressed along two largely independent strands, the first involving the Mariels' challenges to their continued detention, and the second their attempts to avoid being returned to Cuba.
As of December 14, 1984, 147 of those still incarcerated in the Atlanta prison had been approved for release under the Plan. On that date, however, Cuba agreed to take back 2,746 Mariel Cubans, including those incarcerated in Atlanta, in exchange for the United States' resumption of the immigration policy that it had pursued toward Cuba until the Freedom Flotilla. After reaching this agreement, the Attorney General issued a directive suspending releases under the Plan until he could modify it to take into account the likelihood that an alien now faced with imminent deportation would abscond if released on parole. Shortly thereafter, 146 of the 147 detainees who had been approved requested the district court to order the Attorney General to release them on the ground that he was abusing his discretion in failing to follow his own rules. On January 7, 1985, the district court ordered the government to show cause why the approved individuals should not be released as soon as suitable sponsors were found. After two hearings, the district court rejected the Attorney General's increased likelihood of absconding argument for lack of objective evidence, and ordered the immediate release of the thirty-four detainees who had been approved for release and who had found sponsors prior to the Attorney General's suspension of releases. Fernandez-Roque v. Smith, 600 F.Supp. 1500, 1507 (N.D.Ga.1985). The government's appeal in 85-8043 followed.
Appeal No. 84-8993 relates to the second major thrust of the litigation; the plaintiffs' attempts to avoid being returned to Cuba. The plaintiffs initiated it on August 7, 1981, when they amended their complaint to request review under 8 U.S.C. § 1105a(b), and nullification of their exclusion orders on the ground that they were "refugees" under 8 U.S.C. § 1101(a)(42)(A), and therefore entitled to either asylum under 8 U.S.C. § 1158 or else withholding of deportation under 8 U.S.C. § 1253(h).
Meanwhile, the plaintiffs had accumulated new evidence which they believed would lend support to their asylum and withholding of deportation claims. In order to bring this evidence into the litigation, and to comply with the statutory exhaustion requirement, the plaintiffs brought two administrative "test cases" which both parties stipulated would be binding "on all asylum/withholding of deportation issues relating to membership in the Freedom Flotilla as a social group, except with respect to statutory and regulatory exceptions to asylum/withholding eligibility." In the first, Matter of Leon-Orosco, one of the class members who had failed to appeal to the BIA the IJ's decision denying his asylum claim in his original exclusion hearing requested reopening before the IJ on the ground that the new evidence established his eligibility for asylum. In the second, Matter of Rodriguez-Colas, a class member who had properly exhausted his asylum claim in his initial exclusion proceeding made a motion to reopen directly before the BIA in order to submit the new evidence as support for a new asylum request.
Both plaintiffs alleged in their motions to reopen that they should be granted asylum under 8 U.S.C. § 1158, or withholding of deportation under 8 U.S.C. § 1253(h) because they were members of a "social group", namely the Freedom Flotilla, who had "a well-founded fear of persecution" should they be repatriated to Cuba. They offered identical evidence to support their motions. First, they produced affidavits from thirteen Mariels who had voluntarily returned to Cuba in 1980 without permission of the Cuban authorities. The affidavits stated that on their return the Mariels had been incarcerated, tortured, indicted, and tried as "Mariel scum" who had illegally entered Cuba, and had then been cast adrift on the ocean without food, water or navigational equipment. Second, the claimants submitted two State Department Country Reports on Human Rights Practices in Cuba which documented the inhumane treatment received by the Cubans as they sought to leave Mariel Harbor. Third, they produced correspondence from the State Department indicating that the Cuban government initially resisted repatriation efforts by claiming that all those who had left via Mariel had made an irrevocable decision to leave Cuba. Fourth, they offered a statement from a United States Refugee Affairs Coordinator dated April 21, 1980, which stated that all Cubans who
Having thus lost their two "test cases", the plaintiffs returned to the district court and filed a motion entitled "Renewed Motion for Habeas Corpus to Review and Reverse Decision of Board of Immigration Appeals." The motion, which had the effect of updating and amending the plaintiffs' complaint, alleged that the BIA's refusal to reopen Leon-Orosco's and Rodriguez-Colas' exclusion hearings constituted an abuse of discretion, and claimed that the court could extend remedial action under section 1105a(b) to the entire class.
As a general matter, we believe that the district court's treatment of this litigation suggests that it views the plaintiffs as persons who should be accorded at least some of the legal protections given to those who have effected an entry into this country. This, however, improperly blurs the fundamental distinction between excludable aliens and deportable aliens which permeates our immigration law. Jean v. Nelson, 727 F.2d 957 (11th Cir.1984) (en banc), aff'd, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985). Excludable aliens
These legal realities may be harsh, but they are that way by design. As the history of its immigration policy makes clear, this nation has long maintained as a fundamental aspect of its right to self-determination the prerogative to determine whether, and in what numbers, outsiders without any cognizable connection to this society shall be permitted to join it. Because this scheme weighs the nation's interest in self-determination so much more heavily than it does the alien's interest in entering, the courts — which are at times inclined to place limits on government discretion where important individual interests are at issue — should ordinarily abstain where excludable aliens are concerned. In overriding the government's decisions about how best to handle the sudden influx of Mariel Cubans, the district court has failed to take account of those significant countervailing national concerns that have led our immigration law to place primary decisionmaking authority about such a problem squarely into the hands of the political branches.
We first address the government's claim in No. 85-8043 that the district court exceeded its authority in ordering the government to resume its procedures for releasing the detainees under the Attorney General's Status Review Plan. We begin by determining whether the district court erred in using the traditional abuse of discretion standard in reviewing the Attorney General's suspension of releases under the Plan. As we stated in Jean, Congress has delegated remarkably broad discretion to executive officials under the Immigration and Naturalization Act, and these grants of statutory authority are nowhere more sweeping than in the context of parole of excludable aliens. 727 F.2d at 977. Specifically, Congress has delegated the following authority to the Attorney General:
8 U.S.C. § 1182(d)(5)(A). We observed in Jean that "the obverse of the grant of discretionary authority in § 1182(d)(5) to
Plaintiffs concede that where the Attorney General acts directly under section 1182(d)(5), the Jean standard applies. Nonetheless, they offer two rationales to justify the district court's application of the traditional abuse of discretion standard in this case. First, they contend that the Attorney General has less discretion to deny parole under his specially adopted Status Review Plan than he does under the broad mandate of section 1182(d)(5) because the Plan limits the Attorney General's discretion to determinations of dangerousness. We reject this argument because we find that in temporarily suspending releases under the Plan, the Attorney General was acting pursuant to the authority delegated to him under section 1182(d)(5). In the memorandum that temporarily suspended releases under the Plan, the Attorney General specifically stated that he was doing so pursuant to the powers granted him under section 1182(d)(5). More importantly, section 1182(d)(5) is the only statute which delegates authority to the Attorney General to grant parole. The facially legitimate and bona fide reason standard of section 1182(d)(5) therefore applies to all of the Attorney General's parole decisions, whether made under the Status Review Plan or otherwise.
Plaintiffs' second argument for application of the traditional abuse of discretion standard is that a previous panel of this court applied that standard when reviewing the Attorney General's policy regarding conditions of sponsorship for parolees under the Plan. See Fernandez-Roque v. Smith, 734 F.2d 576, 582 (11th Cir.1984). We cannot agree with plaintiffs' reading of that panel decision. Although the panel used the term "abuse of discretion" in its opinion, id. at 582-83, a reading of that statement in context indicates that the panel actually applied the standard of review enunciated in Jean. In setting out the appropriate standard of review, the Fernandez-Roque panel stated:
Fernandez-Roque v. Smith, 734 F.2d at 583. While the panel's use of language may not have been precise, its intent was clear — the standard enunciated in Jean was the appropriate standard for review.
The next question, then, is whether the Attorney General advanced a "facially legitimate and bona fide reason" for temporarily suspending releases under his Status Review Plan. The justification offered by the Attorney General for suspending releases was that Cuba's agreement to take back 2,746 Mariel Cubans increased the likelihood that an alien would abscond if released on parole. We hold that this is a facially legitimate and bona fide reason for the Attorney General's action, and that the district court therefore erred in overriding him by ordering the immediate release of the thirty-four detainees.
Our conclusion is buttressed by the facts surrounding the implementation and subsequent suspension of the Plan. In normal situations, parole determinations take account of the possibility that the excludable alien may abscond to avoid being returned to his home country. See, e.g., Bertrand v. Sava, 684 F.2d 204, 214-18 (2d Cir.1982); Fernandez-Roque v. Smith, 91 F.R.D. at 125. In the case of the Mariel Cubans however, the Status Review Plan was adopted on the premise that their home
We next address No. 84-8993, in which the government asserts two challenges to the district court's rulings on the plaintiffs' motions to reopen their exclusion hearings. The government argues first that the court erred in ordering the BIA to reopen the exclusion hearings of class members Rodriguez-Colas and Leon-Orosco. Second, it argues that the court lacked jurisdiction to extend this order to all members of the class by setting aside their exclusion orders before they had made their own individual motions to reopen.
Because it is necessary to resolve all doubts as to the district court's subject matter jurisdiction before proceeding to the merits, we address first the government's jurisdictional challenge. The issue to be determined is a narrow one. Although the government concedes that both Rodriguez-Colas and Leon-Orosco satisfied all the administrative exhaustion requirements that must precede the court's determination of whether new evidence required a reopening of their exclusion orders, it claims that the court erred in concluding that the BIA's disposition of those cases also served to satisfy the jurisdictional exhaustion requirements for the rest of the class.
As the district court recognized in Fernandez-Roque v. Smith, 539 F.Supp. at 944, the exhaustion statute severely limits the federal courts' review of exclusion orders. 8 U.S.C. § 1105a(b) permits review only on habeas corpus, and 8 U.S.C. § 1105a(c) further states that "[a]n order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations...."
According to our reading, however, the stipulations expressed no such intent. The stipulations state only that the BIA's decisions in the two test cases would be binding on all parties with regard to the "asylum/withholding of deportation issues related to membership in the Freedom Flotilla as a social group" (emphasis added). Those terms do not suggest to us that the stipulations were meant to waive the entire administrative proceeding for what might well in certain cases be multi-issue claims for exclusion or withholding of deportation. Notwithstanding plaintiffs' protestations that our reading of the stipulations will only lead to futile administrative procedures and therefore will constitute a waste of resources,
Our conclusion is bolstered by our belief that section 1105a(c) does not permit the government to waive the administrative reopening procedure even if it might want to do so. Plaintiffs correctly point out that the Supreme Court has held in a trio of cases that agencies may be permitted to waive a statutory exhaustion requirement in some instances. See Weinberger v. Salfi, 422 U.S. 749, 765-67, 95 S.Ct. 2457, 2466-68, 45 L.Ed.2d 522 (1975); Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). As the Court also made clear in Salfi and its progeny, however, where there exists a statutory requirement of administrative exhaustion, each participant in a class action must at the very least have "presented his claim" to the administrator. Mathews v. Eldridge, 424 U.S. at 329, 96 S.Ct. at 900, citing Salfi, 422 U.S. at 764, 95 S.Ct. at 2466.
Beyond the requirement of individualized filing, however, we believe that the jurisdictional exhaustion requirement presented by section 1105a(c) is even more extensive than that identified in the statute before the court in Salfi. In that case, as in Eldridge and Diaz, the plaintiffs sought judicial review under 42 U.S.C. § 405(g), which governs review of denials of benefits by the Social Security Administration. The Court in Salfi found that once the initial filing had occurred, the particular wording of section 405(g) gave the Secretary some discretion to define when the statute's exhaustion requirement had been fulfilled. 422 U.S. at 766-67, 95 S.Ct. at 2467-68. Section 405(g) provides that:
42 U.S.C. 405(g) (emphasis added). The Court found that the term "final decision" was not defined in the Act, and that the Act allowed the Secretary to flesh out its meaning by regulation. The exhaustion requirement of 8 U.S.C. § 1105a(c) is, however, considerably more explicit. By providing in section 1105a(c) that an exclusion order "shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right," Congress made explicit that it intended to make exhaustion of all available administrative remedies an absolute prerequisite to judicial review. All individual class members are entitled, as a matter of right, not only to file motions to reopen their orders of exclusion but also to appeal an unfavorable ruling to the BIA. Only Leon-Orosco and Rodriguez-Colas have done both. They, therefore, are the only class members who can be said to have exhausted their administrative remedies under the terms of the jurisdictional statute.
Finally, we address the district court's holding that the BIA erred in failing to find that Rodriguez-Colas and Leon-Orosco had produced prima facie evidence that they had a "well-founded fear of persecution."
Judicial review of denials of discretionary relief incident to deportation proceedings, including denials of motions to reopen, is limited to determining "whether there has been an exercise of administrative discretion and whether the matter of exercise has been arbitrary or capricious." Jarecha v. INS, 417 F.2d 220, 224 (5th Cir.1969) (quoting Kam Ng v. Pilliod, 279 F.2d 207, 210 (7th Cir.1960), cert. denied, 365 U.S. 860, 81 S.Ct. 828, 5 L.Ed.2d 823 (1961)).
In finding fault with the legal standard used by the BIA, the court concluded that it had contravened the directives of 8 U.S.C. § 1158 and 8 U.S.C. § 1101(a)(42)(A) by considering whether deportation of the plaintiffs was a "present reality" in determining whether the plaintiffs were entitled to a grant of asylum or refugee status. Fernandez-Roque v. Smith, 599 F.Supp. at 1108. The district court pointed out that the proper test under 8 U.S.C. § 1158 and 8 U.S.C. § 1101(a)(42)(A) for determining whether a plaintiff is entitled to refugee status and therefore eligible for asylum is "whether the alien has demonstrated a well-founded fear of persecution." Id. We agree with the district court that this is the proper standard to be applied, and after considering the BIA's decision and reviewing the record we conclude that this is precisely the standard that the BIA applied in considering the motions.
The district court's sole support for its conclusion consisted of two sentences near the end of the concluding paragraph of the BIA's six page, single-spaced opinion. The more appropriate place to look for the standard applied by the BIA in considering the motion is, in our view, the section of its opinion which explicitly sets out the various standards to be applied. There, the BIA articulated the very standard cited by the district court. It stated that "[i]n order to demonstrate prima facie eligibility for asylum, the applicant bears the burden of showing that he has a well-founded fear of persecution if returned to his native land." Further, in making its decision to deny Leon-Orosco's motion the BIA concluded that:
In our view these statements conclusively show that the BIA applied the appropriate standard in considering the motions to reopen. The district court's contrary conclusion is based on a misreading of the BIA's opinion.
As to its finding that the BIA had disregarded or mischaracterized evidence which tended to establish plaintiffs' prima facie case of a well-founded fear of persecution, the district court cited two pieces of evidence to support that conclusion. First, the district court faulted the BIA for characterizing the Mariel Cubans who attempted to return to Cuba in 1980 as "those Cubans who sought to enter Cuba without first obtaining permission and in violation of Cuban travel laws" and for "apparently attributing the persecution of returnees solely, or almost entirely, to their illegal entry into Cuba." Fernandez-Roque v. Smith, 599 F.Supp. at 1108. The factual characterization made by the BIA is, however, entirely correct. There is no dispute that those Cubans who returned to Cuba in 1980 did so without the Cuban government's permission and in violation of Cuban law.
The district court's real disagreement with the BIA's opinion is not that it mischaracterized the evidence, but rather that it apparently attributed the persecution of the returnees "solely, or almost entirely, to their illegal entry into Cuba." The BIA's decision indicates that it placed significance on the fact that the Mariel Cubans who returned in 1980 did so without the permission of the Cuban government. Specifically, the Board stated:
Our reading of the record indicates that this was both a fair characterization of the evidence and an entirely permissible conclusion to be drawn from that evidence. Professor Dominguez testified that it is against Cuban law to return to the country without an entry permit and that in the past Cuba has severely punished those emigrees who have attempted to return without an entry permit. He also stated that the absence of the permit was one of the aggravating circumstances for someone returning under these conditions and that those who "returned without an entry permit were prosecuted for that purpose." We therefore conclude that the BIA acted well within its discretion in assigning some significance to the fact that the Mariel Cubans who returned to Cuba in 1980 did so without the permission of the Cuban authorities. The district court's rejection of that decision constituted an improper substitution of its own view of the evidence for that of the BIA. See Jarecha v. INS, 417 F.2d at 225.
The district court cited the BIA's following interpretation of Professor Dominguez's testimony regarding the likely treatment of plaintiffs if they returned to Cuba as a second example of the BIA's mischaracterization of the evidence:
Fernandez-Roque v. Smith, 599 F.Supp. at 1108-09. Again, we find that the district court has mischaracterized the BIA's opinion and improperly substituted its view of the evidence for that of the BIA. The BIA's opinion contains a very complete and
Finally, the district court found that the BIA had prejudged the case on its merits, instead of limiting its inquiry to whether plaintiffs had presented a prima facie case. The only support given for this finding is the sentence that, "[a]lthough BIA need not have assumed that plaintiffs would present more persuasive evidence in a reopened hearing, it incorrectly assumed that plaintiffs would have no further evidence to present." Id. at 1109. The BIA's speculation as to whether more evidence would be available at a hearing on the merits is insufficient to support a finding that the BIA abused its discretion by prejudging the merits of the plaintiffs' claims.
In summary, we conclude in appeal No. 85-8043 that the district court erred in applying the traditional abuse of discretion standard, instead of the facially legitimate and bona fide reason standard enunciated by this court in Jean, 727 F.2d at 975-79, to the Attorney General's temporary suspension of releases under his Status Review Plan. Because the Attorney General's order was issued pursuant to the authority granted him under 8 U.S.C. § 1182(d)(5), the Jean standard should have been applied. Applying the appropriate standard, we conclude that the Attorney General's concern with respect to the likelihood of absconding is a facially legitimate and bona fide reason for suspending releases under the Plan, and we therefore reverse the district court's contrary ruling.
In appeal No. 84-8993, we conclude that the district court had subject matter jurisdiction only over the individual habeas petitions of Leon-Orosco and Rodriguez-Colas. In reaching this conclusion, we have carefully examined the language of the stipulations which plaintiffs claim to have conferred jurisdiction, the express language of 8 U.S.C. § 1105a(c), and the Supreme Court decisions in Salfi, Mathews, and Diaz, and we have determined that the parties did not and could not stipulate to the waiver of the exhaustion requirement of section 1105a(c). Because Leon-Orosco and Rodriguez-Colas were the only class members who had filed and exhausted individual motions to reopen, their habeas petitions were the only ones properly before the district court.
Finally, we conclude that the district court erred in holding that the BIA abused its discretion in denying Leon-Orosco's and Rodriguez-Colas' individual motions to reopen. In considering whether those plaintiffs had made out a prima facie asylum claim the BIA applied the well founded fear of persecution standard as is required by the statutes and regulations. The
The differing procedural postures of the initial asylum claims, see 539 F.Supp. at 935-36, do, however, highlight the difficulties involved in attempting to confer classwide relief on the asylum issue. Some members of the purported class raised their asylum claims and had that issue resolved against them in their exclusion proceedings. Others failed to raise their claims altogether and still others raised their claims but later abandoned them. When irregularities such as these outnumber the common elements, classwide treatment is not appropriate. See also note 11, infra.
Aside from the fact that we believe that exhaustion is hardly futile where alternative claims for relief and alternative grounds for denying it remain available, we reject this argument because Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), dictates that we view futility arguments with circumspection. Salfi expressly held that a statutory exhaustion requirement could not be dispensed with "merely by a judicial conclusion of futility." 422 U.S. at 766, 95 S.Ct. at 2467. See also Power Plant Div., Brown & Root Inc. v. O.S.H.R.C., 673 F.2d 111, 115 (5th Cir. Unit B 1982).
Mathews v. Eldridge, 424 U.S. at 328-29, 96 S.Ct. at 899-900 (citations and footnote omitted).
To the extent that definition of the jurisdictional requirement is within the discretion of the agency, we also point out that the Attorney General, unlike the Secretary in Salfi, actively contends that the class members other than Rodriguez-Colas and Leon-Orosco have failed to exhaust their administrative remedies.
We find additional support for this conclusion in our treatment of a similar jurisdictional requirement found in 29 U.S.C. § 660(a) which governs judicial review of decisions by the Occupational Safety Health Review Commission (OSHRC). Section 660(a) provides that:
29 U.S.C. § 660(a). Although it has been argued that the section 660(a) requirement that an objection first be urged before the OSHRC is waivable under certain circumstances, see Power Plant Div. Brown & Root, Inc. v. O.S.H.R.C., 673 F.2d 111, 112-13 (5th Cir. Unit B 1982), this court refused to find the requirement waivable since the claim being raised involved matters within the competence of the administrative agency. Similarly, the dispute here involves not a constitutional question or other matter outside the agency's authority, but rather an interpretation of the very statutes and regulations that the BIA has been entrusted with administering.