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, 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. HAITIAN REFUGEE CENTER, INC., Andre Joseph, Lorilus Achat, Plaintiffs-Appellants, 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, Michael Williams, Brigadier General, Commander, Joint Task Force, Defendants-Appellees.
Nos. 94-5138, 94-5231, 94-5234, 95-4043.
United States Court of Appeals, Eleventh Circuit.
Jan. 18, 1995.
“In deciding whether the defendant has made the requisite showing, the court should consider all relevant circumstances.” Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723. “Although statistics showing discriminatory impact may in themselves constitute a showing of intentional discrimination, a statistical showing is not the sole means for establishing a prima facie case of discrimination.” United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986) (citation omitted). “[T]he totality of the relevant facts [may give] rise to an inference of discriminatory purpose.” Id. (quoting Batson, 476 U.S. at 94, 106 S.Ct. at 1721.) Therefore, contrary to the State‘s contention, the statistical evidence is merely one factor which the court examines, and it is not necessarily dispositive.
Moreover, although the seating of blacks on the jury is a significant fact, it does not bar a finding of racial discrimination. Allison, 908 F.2d at 1537. “[U]nder Batson, the striking of one black juror for a racial reason violates the Equal Protection Clause, even where other black jurors are seated, and even when valid reasons for the striking of some black jurors are shown.” David, 803 F.2d at 1571.
In this case, the district court based its decision not only on the statistical evidence in the strike sheets, but also on the testimony of the prosecutor in the case and other members of the district attorney‘s office. The evidence supports the conclusion that a disproportionate number of blacks were struck from the jury in this case, as well as in Cochran‘s previous trials. The evidence also supports the conclusion that at the time of Cochran‘s trial, members of the district attorney‘s office followed an informal policy of striking black jurors because of their race. Finally, the testimony of the individual who prosecuted Cochran supports the district court‘s conclusion that race was a determining factor in the exercise of peremptory challenges at Cochran‘s trial. Notwithstanding the fact that two of the fourteen jurors at the trial were black, the sum of the evidence supports the district court‘s conclusion that race was a determining factor in the prosecution‘s exercise of its peremptory challenges at Cochran‘s 1982 trial. Thus, the district court did not clearly err in concluding that the prosecution impermissibly discriminated against blacks in the selection of the jury at Cochran‘s trial.
V. CONCLUSION
We find that the district court was not precluded from addressing Cochran‘s Batson claim in a federal habeas proceeding because Alabama has not consistently applied a procedural bar to Batson claims in cases like Cochran‘s. Moreover, we find that the district court did not clearly err in finding that the prosecution in this case impermissibly discriminated against blacks in using its peremptory strikes in violation of Batson.12
AFFIRMED.
Elliot H. Scherker, Roberto Martinez, Oscar Levin, Greenberg, Traurig, Hoffman, Lipoff, Rosen, & Quentel, P.A., Marcos D. Jimenez, Carlos B. Castillo, White & Case, Robert L. Boyer, Miami, FL, Leopoldo Ochoa, Coral Gables, FL, Jose Garcia-Pedrosa, Martias Dorta, Tew & Garcia-Pedrosa, Miami, FL, for Cuban American.
Harold Koh, Allard K. Lowenstein, Intern. Human Rights Law Clinic, New Haven, CT, Manuel Kadre, Murai, Wald, Biondo & Moreno, Miami, FL, for Cuban American Bar.
Ahpaly J.G. Coraden, New York City, for amicus movants Nat. Coalition for Haitian Refugees.
Carlos Manuel Vasquez, Washington, DC, for amicus movant Lawyers Committee for Human Rights.
Lucas Guttentag, New York City, for amicus movant ACLU.
Joanne Mariner, Washington, DC, for amicus movant Human Rights Watch.
Gene McNary, Danna, Soraghan, Stockenberg & McNary, P.C., St. Louis, MO, for amicus movants Smith, Livingston, Burton.
Grover Joseph Rees, Lafayette, LA, for amicus movants Smith, Burton.
Douglas W. Baruch, Robert Juceam, Fried, Frank, Harris, Shriver & Jacobson, Washington, DC, Jose Garcia Pedrosa, Tew, Garcia-Pedrosa & Beasley, Miami, FL, for appellees in No. 94-5231.
Douglas W. Baruch, Fried, Frank, Harris, Shriver & Jacobson, Washington, DC, Ira Kurzban, Helena Tetzeli, Kurzban, Kurzban & Weinger, P.A., Miami, FL, for appellees in No. 94-5234.
Robert Juceam, Fried, Frank, Harris, Shriver & Jacobson, Washington, DC, for Haitian Refugee Center.
Before KRAVITCH, BIRCH and CARNES, Circuit Judges.
BIRCH, Circuit Judge:
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
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 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 to the military personnel charged with their care, has grown. While the United States has begun negotiating with other countries to accept migrants from 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 mi-
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 16,300 Haitian migrants were housed at Guantanamo Bay.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 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,
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
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
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:
- Whether the Cuban or Haitian migrants in safe haven outside the physical borders of the United States have any cognizable statutory or constitutional rights.
- 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.
- 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
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
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
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 & 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, 508 U.S. 961, 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. Therefore, all of the individual Cuban plaintiffs are 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, 502 U.S. 1122, 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 determina-
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 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
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 consultation10 at Guantanamo Bay because it was a naval base over which the United States has “complete control and
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, 502 U.S. 1122, 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 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, 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., 509 U.S. 155, 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.
We decided in HRC II, 953 F.2d at 1510, and the Supreme Court agreed in Sale, 509 U.S. at 170-73, 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,
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,
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, 569-72, 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 had been held to have a liberty interest to which due process could attach were “screened-in” by the government. See HCC, 823 F.Supp. at 1042; Haitian Ctrs. Council, Inc. v. McNary, 969 F.2d 1326, 1345 (2d Cir.1992), vacated as moot sub nom. Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 113 S.Ct. 3028, 125 L.Ed.2d 716 (1993). In this case we need not decide whether any such putative
The individual Cuban and Haitian plaintiffs have argued that the processing which occurs when 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. 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,
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 parole discretion.” 727 F.2d at 970 (emphasis added).20 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 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 who are
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 that might sustain 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 be not only 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 injunc-
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 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 that 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, 509 U.S. at 187 (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,
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 a 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); United States 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.
Notes
While on the one hand the United States recognizes 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.
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.
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 ofion.” 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 undersection 1101(a)(42)(A) of this title.
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....