The opinion of the court was delivered by: JOYCE HENS GREEN
To end the massive flow of Cuban nationals fleeing Cuba in makeshift boats for the United States in the summer of 1994, the governments of the United States and the Republic of Cuba signed the United States-Cuba Joint Communique Concerning Normalizing Migration Procedures ("Joint Communique") on September 9, 1994. The Joint Communique provides for the migration of at least 20,000 Cubans per year into the United States in exchange for Cuba's promise to patrol its borders to prevent unauthorized departures.
Plaintiff, Federation for American Immigration Reform, Inc. ("FAIR"), instituted this action against defendants, Janet Reno, Attorney General of the United States, and Doris Meissner, Commissioner of the United States Immigration and Naturalization Service ("INS"), claiming that several of the methods defendants will utilize to meet the 20,000 person threshold violate federal immigration law. Defendants have moved to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Because plaintiff lacks standing, defendants' Rule 12(b)(1) motion is granted and this case is dismissed.
FAIR is a nonprofit, tax-exempt, charitable and educational membership organization founded in 1978. Its objectives include improving the enforcement of laws against illegal immigration and ensuring levels of legal immigration that are consistent with the capacity of the areas in which immigrants typically settle to absorb them. To achieve these ends, FAIR studies the economic, environmental, and social consequences of immigration into the United States. The results of its studies, as well as other information regarding national immigration policy, are disseminated to its members, educational institutions and policymakers.
Significant to the instant case, FAIR has approximately 1400 dues-paying members in the Miami-Hialeah Primary Metropolitan Statistic Area ("Miami PMSA"), which is coextensive with Dade County, Florida, and includes the cities of Miami, Miami Beach and Hialeah. The INS has estimated that 75% of all Cuban immigrants in fiscal years 1991-93 intended to settle in the Miami PMSA.
As Attorney General of the United States, Janet Reno is responsible for administering and enforcing all "laws relating to the immigration and naturalization of aliens", 8 U.S.C. § 1103(a), and is authorized to "parole" aliens temporarily into the United States "for emergent reasons or for reasons deemed strictly in the public interest", 8 U.S.C. § 1182(d)(5). Doris Meissner, the Commissioner of the INS, must perform any responsibilities relating to immigration delegated to her by the Attorney General, 8 U.S.C. § 1103(b), and is charged with the responsibility of collecting and disseminating information related to immigration. 8 U.S.C. § 1103(c). Both defendants are sued in their official capacities.
In the spring, large numbers of Haitians fled the deplorable conditions in Haiti on makeshift boats and rafts to seek entry into the United States. In May 1994, President Clinton ended the policy of direct repatriation of Haitians found at sea. He instituted a new policy effective June 16 whereby Haitians were screened for refugee status on United States Coast Guard ships or in other countries. In July, further new procedures were implemented through which Haitians were offered temporary protection in safe haven camps. The cessation of air links between the United States and Haiti in early August restricted the processing of refugees in Haiti, but the United States has continued to assist Haitian refugees who fear persecution in their homeland. Id. at 22-25.
Also in August, the Cuban government announced that it would no longer forcibly prevent emigration from Cuba by boat. Id.; see also Cuban Am. Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412 (11th Cir. 1995). This announcement exacerbated an already irregular and highly unsafe pattern of migration that has existed between Cuba and the United States since Fidel Castro rose to power in Cuba 35 years ago. Throughout this period, Cubans who do not qualify for "in-country" refugee processing,
have regularly set sail on the open seas for the southeast coast of the United States.
These voyages are almost always made on overcrowded, substandard boats or homemade rafts and frequently end in disaster. The reward for those who successfully evade the Cuban boat and shore patrols, however, was that the United States did not return these would-be refugees to Cuba. The United States brought Cubans rescued at sea into this country, where they were paroled and issued work authorization. Any Cuban who was "paroled in the United States could file for asylum or apply for adjustment of status to lawful permanent resident after one year as provided in the Cuban Adjustment Act of 1966." Meissner Testimony at 26.
The August 1994 announcement by the Cuban government prompted a massive flow of Cuban nationals toward the United States. It is estimated that 40,000 Cubans attempted the perilous journey across the Florida straits in August and September of 1994.
Not since the Mariel boatlift in the early 1980's had Cubans fled in such numbers.
Of these would-be refugees, approximately 8000 arrived safely in the United States; about 32,000 were rescued at sea by United States military vessels; several hundred were lost at sea.
Back in early September, officials of the United States met with representatives of the Cuban government to negotiate an end to this crisis. The result of these negotiations was the Joint Communique, signed on September 9, 1994, in which the two countries recognized their "common interest in preventing unsafe departures from Cuba which risk loss of human life." Joint Communique, attached at Tab 7 to Defendants' Motion to Dismiss Pursuant to Rule 12(b)(1), at 1. The Joint Communique committed the Cuban government to "take effective measures in every way it possibly can to prevent unsafe departures". Id. By December, the emigration virtually ceased.
The Joint Communique emphasized the two countries' desire "to direct Cuban migration into safe, legal and orderly channels". Id. The United States will strive to achieve this goal in a number of ways. It will continue its policy of issuing visas to immediate relatives of United States citizens, which will result in between 500 and several thousand Cuban nationals being lawfully admitted each year. The United States also agreed to permit the migration of qualified Cuban nationals on the immigrant visa waiting list as of September 9, 1994. This measure, which the Joint Communique refers to as "extraordinary", will bring an estimated 4000-6000 Cuban nationals into the United States. In addition, the United States committed "to authorize and facilitate additional lawful migration to the United States from Cuba. The United States ensures that total legal migration to the United States from Cuba will be a minimum of 20,000 Cubans each year, not including immediate relatives of United States citizens." Id.
Shortly after the Joint Communique was signed, the United States announced the details of how it would meet the 20,000 immigrant threshold. First, the United States will encourage earlier Cuban immigrants to become United States citizens and then petition for the admission of their relatives. These "preference immigrant visa holders" will constitute several thousand new Cuban nationals being lawfully admitted into the United States each year. Second, the United States will admit Cuban nationals who come within the INA's definition of "refugee", 8 U.S.C. § 1157, within certain numerical limits.
This policy change will result in 6000-8000 new Cuban nationals in the United States lawfully.
The final new policy adopted by the United States is the special migration program for Cuban immigrants who could not otherwise be lawfully be admitted into the United States ("Special Cuban Migration Program"). These immigrants will be selected mostly by lottery from an applicant pool. Eligibility for the applicant pool is based upon such factors as language skills, job skills, education level, family ties and discrimination in Cuba.
Cubans selected under the Special Cuban Migration Program are admitted to the United States in the following sequence: (1) the INS issues documents that permit the Cuban nationals to enter and remain in the United States; (2) the Attorney General releases, or "paroles", these migrants from her custody upon their arrival and permits them to remain in the United States; (3) after one-year's residence, the migrants can apply for an adjustment of status pursuant to the Cuban Adjustment Act, Act of Nov. 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161 (1966), 8 U.S.C. § 1255 note.
In Count I, plaintiff asserts that the use of parole to allow ineligible Cuban nationals to "enter and remain in the United States permanently" is inconsistent with the Attorney General's statutory parole authority granted by Section 212(d)(5)(A) of the Immigration and Naturalization Act ("INA"), codified at 8 U.S.C. § 1182(d)(5)(A). FAIR claims that this provision mandates that parole be temporary and that parolees are to be treated just as any other ...