Documento: Recurso de emergencia en favor de balseros del faro de Sugarloaf Key

Texto del recurso de emergencia presentado por el Movimiento Democracia y seis balseros ante un tribunal federal de Miami para definir la suerte de un grupo de 21, hallados y detenidos por el Servicio Guardacostas en un faro cercano a Sugarloaf Key, el 20 de mayo de 2016.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MOVIMIENTO DEMOCRACIA, INC.;
LIO, LIBAN CONCEPCION;
LEYVA, ALEXEIS;
PEREZ PEREZ, MICHAEL;
PEREZ VAREA, YORDANKI;
VERGARA LOPEZ, ALEXANDER;
ALMAGUER, JEGNIER CESPEDES
Plaintiff(s)
JEH CHARLES JOHNSON, Secretary for the Department of Homeland Security; JOHN KERRY, Secretary of State; LORETTA E. LYNCH, Attorney General of the U.S. Department of Justice; LINDA SWACINA, Director of U.S. Citizenship and Immigration Services, and the District Director of the U.S. Citizenship and Immigration Services; local Office in Miami, Florida
Defendant(s)
___________________________________/

1. PRELIMINARY STATEMENT

1. This action is brought on behalf of U.S. citizens, a U.S. non-profit corporation, legal U.S. residents and aliens seeking judicial definition of the terms lighthouse rocks and U.S. territory in the context of the American Shoal lighthouse; and injunctive relief to bring certain Plaintiffs to the United States that are currently on a U.S. Coast Guard cutter on U.S. territorial waters. The specific request is as follows:

• Judicial definition of the term” U.S. territory” in connection with Department of Homeland Security-Immigration  (DHS-1) application of  “at or within the borders  of the United States” for repatriation purposes; including whether presence on a U.S. lighthouse and/or permanent structure of the United States equals presence within or at the borders of the United States;
• Injunctive and mandamus relief ordering the Executive Branch (“White House”) through the Department of Homeland Security (“DHS”) and the Secretary of State (“DOS”) to bring the interdicted Plaintiffs to U.S. land territory for proper processing by DHS on U.S. soil. The Plaintiffs are entitled to processing on U.S. land as they have arrived on U.S. territory for purpose of the “wet foot/dry foot” policy.

2. The Immigration and Nationality Act of 1952, codified as 8 U.S.C. Section  101 et seq. (1982):

“…delegates   responsibility   for regulating   the entry   of   aliens jointly   to the Attorney General, the Secretary of State, and United States consular officials abroad.”
Abourzek v. Reagen, 785 F.2d 1043, 251 U.S. App. D.C. 355 (1985)

3. The history of the Immigration and Nationality Act of 1952, (U.S.C. 1101 et seq) contains references to restrictive provisions in other related acts, noting the favorable treatment extended to United States Citizens, and citizens of Canada, Cuba and Mexico upon their arrival to U.S. ports, (H.R. Rep. 82-1365, 1952 U.S.C.C.A.N. 1653, at 1664), as in the 1903 refusal to extend the “head tax.”
4. Upon information and belief, on May f20^th, 2016, approximately 21 Cuban refugees entered U.S. territorial waters on a boat and landed on the American Shoal Lighthouse. This lighthouse is located east of the Saddlebunch Keys, just offshore from Sugarloaf Key, close to Looe Key, in Florida, which is U.S. territory. See composite Exhibit “A”, photographs of the location where 21 of the Plaintiffs were found. They were subsequently interdicted by the U.S. Coast Guard, along with two (2) others, that were swimming when found. Those two other had also been on the American Shoal Lighthouse.
5. By virtue of their entry and arrival on U.S. territory, the American Shoal Lighthouse, the nineteen (19) refugees have become entitled to certain rights. These rights are established by the Refugee Act of 1980, 8 U.S.C. Section 1521 and the Immigration and Nationality Act, 8 U.S.C. Section 1253.
6. Under the “wet foot/dry foot” policy, and in accordance with the U.S.C.G. website, if a person “touches U.S. soil, bridges, piers or rocks, they are subject to U.S. Immigration processes for removal.” This would entitle each plaintiff due process in the United States. Plaintiffs not only touched U.S. territory but landed on the lighthouse for a significant period of time. See exhibit “B,” copy of Associated Press (A.P.) report and newspaper article refrencing the U.S.C.G. website and its comments on the “wet-foot/dry-foot” policy and its relationship to “soil, bridges, piers or rocks.” Undersigned counsel are not aware of any policy changes or other written changes U.S.C.G. has made to the website regarding this matter.
7. DHS conducts final adjudication of refugee cases under section 101 (A) (42) of the Immigration and Nationality Act.
8. The Immigration and Nationality Act defines as a refugee:

“…any person who is unable or unwilling to  avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Section 101 (A) (42) of the Immigration and Nationality Act.

9. Executive Order 12324 provides that:

“…no person who is a (political) refugee will be returned without his (or her) consent;” and the mandate that the Attorney General take all necessary steps to “…ensure the strict observation of our international obligations concerning those who genuinely flee persecution in their homeland.”

10. Plaintiffs, Liban Concepcion Lio, Alexeis Leyva, Michael Perez Perez, Yordanki Perez Varea, Alexander Vergara Lopez, Jegnier Cepedes Almaguer, and others similarly situated but unknown at this time, are protected by the Cuban Refugee Adjustment Act, 8 U.S.C. Section 1255 and the Cuban Democracy Act 22 U.S.C. sections 6001-6010.
11. All Cuban, Haitian and other “boat people” who arrive on land in the territorial United States and request political asylum, are interviewed by DHS asylum officers and given the benefit of presenting a request for political asylum. Often these persons are represented by counsel and or agencies on their behalf. The twenty-one (21) Plaintiffs have arrived on land in the territorial United States and have been transferred to a U.S. C.G. Cutter and should be brought into U.S. land for further processing.
12. Once brought into U.S. land, if DHS determines that there is a “credible fear” of returning them to their country, then in a great majority of cases, asylum seekers in this district are released from custody, prior to their complete asylum hearings.
13. Current federal caselaw has established that refugees interdicted on the high seas are not entitled to the rights and protections that arise under the Refugee Act of 1980, and the Immigration and Nationality Act. No Federal Court has analyzed and ruled on the issue of refugees who are stopped after entering U.S. territorial waters and landing on a U.S. lighthouse that is currently under U.S. jurisdiction.
14. However, if the Cuban refugees arrive on U.S. land territory, such as bridges, etc., the courts have generally been in agreement that the refugees should be brought into land for proper processing. See Movimiento Democracia, Inc. v. Chertoff, (S.D.S.F., Case No. 06 civ. 20044)
15. For the above reasons, Plaintiffs seek the entry of an order requiring the United States Government to allow the twenty-one (21) Plaintiffs that landed on the American Shoal Lighthouse, for proper immigration processing.
16. JURISTCITION AND VENUE
17. This Court has jurisdiction under its general federal question jurisdiction, 28 U.S.C. Section 1331, and specific jurisdiction over claims arising under the Immigration and Nationality Act 8 U.S.C. 1329. This Court is the proper venue for the writ of mandamus pursuant to 28 U.S.C. section 1361. Jurisdiction is also conferred pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure which permit declaratory and injunctive actions.
18. The Southern District of Florida is the proper venue for this action pursuant to 28 U.S.C. 1391 (e), as it is here where the Defendants’ policies have been implemented.

III.   STANDING

18. Plaintiffs have standing to commence this action under the Administrative Procedures Act (A.P.A.) which confers standing to any party who is “…adversely affected or aggrieved by agency action within the meaning of a relevant statue.” 5 U.S.C. section 702 (1988).
19. The Defendants’ policy also prolongs the separation of family members. Plaintiffs have a particular interest in preserving their family units. (See Abourzek v. Reagan, 785 F. 2d 1043,251 U.S. App. D.C. 355 (1985); Clark v. Securities (Indus) Ass’n.

479 U.S. 388, 395-96, 107 S. Ct. 750, 754, 93 L.Ed. i757 (1987).  H.R. Rep No. 1365. 82d Cong., 2d Sess. (1952) reprinted in 1952 U.S.C. C.A.N. 1653, 1680.

1. PARTIES
2. Plaintiff Movimiento Democracia, is a non-profit corporation. Plaintiffs’ family members, Carlos Leyva and Jose Alberto Concepcion both Lawful Permanent Residenst of the United States are individuals who reside in Miami-Dade, Florida. Liban Concepcion Lio, Alexeis Leyva, Michael Perez Perez, Yordanki Perez Varea, Alexander Vergara Lopez, Jegnier Cepedes Almaguer, and others similarly situated but unknown at this time, were taken off US territory by the U.S.C.G. on or about May 20^th, 2016, and are currently on a U.S. Coast Guard cutter.
3. Defendant Jeh C. Johnson is the Director of the Department of Homeland Security and in that capacity is the Chief Executive of the Department of Homeland Security. He is therefore directly responsible for the direction, conduct and action of the officers and employees of the Department of Homeland Security concerning the acts challenged herein. He is sued in his official capacity.
4. Defendant Jim Kerry, is the Secretary of State and in that capacity is the Chief Executive of the State Department. He is therefore directly responsible for the direction, conduct and action of the officers and employees of the State Department concerning the acts challenged herein. He is sued in her official capacity.
5. Defendant Loretta E. Lynch is the Attorney General of the United States and in that capacity has final authority over the decisions, practices and procedures challenged herein. As Attorney General, Ms. Lynch has final authority over the Department of Justice. She has apparently delegated her authority to officials of the Department of Homeland Security. She is sued in her official capacity.
6. Defendant Linda Swanica District Director of the U.S. Citizenship and Immigration Services’ local office in Miami, Florida, is the Director of the USCIS office in Miami, Florida. He is therefore directly responsible for the direction, conduct and action of the officers and employees of USCIS concerning the acts challenged herein. He is sued in his official capacity.
7. FACTS
8. On or about, May 20^th, 2016, Plaintiffs Liban Concepcion Lio, Alexeis Leyva, Michael Perez Perez, Yordanki Perez Varea, Alexander Vergara Lopez, Jegnier Cepedes Almaguer, and others similarly situated but unknown at this time, departed from Cuba and headed to the United States on board a small home-made vessel.
9. After traveling for days on the high seas they arrived in the United States as their vessel broke down, and twenty-one (21) of the individuals aboard climbed onto the lighthouse. Enclosed please find Composite Exhibit “C”, affidavits from Lawful Permanent Residents, Carlos Leyva and Jose Alberto Concepcion, who have family members on board the U.S. Coast Guard cutter. Also, enclosed as Exhibit “D” are the names of four (4) individuals that are known to be on the U.S. Coast Guard cutter.
10. Enclosed as Exhibit “E”, are the names of the individuals we believe to be on the U.S. Coast Guard cutter, with corresponding affidavits from their family members who permanently reside in the U.S.
11. Enclosed as Exhibit “F”, are the names of individuals we also believe to be on the U.S. Coast Guard cutter, but who do not have corresponding affidavits from family members.
12. On or about May 20^th, 2016, Plaintiffs Liban Concepcion Lio, Alexeis Leyva, Michael Perez Perez, Yordanki Perez Varea, Alexander Vergara Lopez, Jegnier Cepedes Almaguer, and others similarly situated were taken off the American Shoal Lighthouse by the U.S. C. G.

COUNT I CLASS ACTION
Plaintiffs reallege and incorporate Paragraphs 1 through 29 inclusive and file this COUNT I as a Class Action for Declaratory and Injunctive Relief and allege:

30. Although Congress has delegated to the President extremely broad discretion to act in regards to the interdiction program, there are certain procedural guidelines which must be followed once refugees arrive on U.S. territory. This is especially true in light of prior congressional acts which confer specific rights to Cuban Nationals. (The Cuban Refugee Adjustment Act and the Cuban Democracy Act).
31. Plaintiffs bring this action as a class action pursuant to Rule 23 (a) and (b) (1) (2) on behalf of themselves and all others similarly situated. The class consists of the following ascertainable members, the names and alien registration numbers of whom can be ascertained from records in the possession of the Defendants :

All 21 individuals who were on board the lighthouse that arrived on U.S. territory on January 2, 2006, and were subsequently taken onto U.S.C.G. Cutter. Apparently, all 21 refugees were on one point together on the lighthouse. Two of them, jumped into the water once they saw U.S.C.G. approaching.

32. Defendants have acted, and will continue to act on grounds generally applicable to each member of both classes, making appropriate final declaratory, injunctive and mandamus relief to both classes as a whole.
33. Plaintiffs in the class are entitled to relief for having arrived on U.S. territory.
34. Plaintiffs Liban Concepcion Lio, Alexeis Leyva, Michael Perez Perez, Yordanki Perez Varea, Alexander Vergara Lopez, Jegnier Cepedes Almaguer, and all others similarly situated, are adequate representatives of the class because, like members of their respective class, they seek a meaningful opportunity to apply for political asylum and lawful permanent residency.
35. There exists a community of interest between Plaintiffs and members of their class in that there are questions of law and fact which are common to all. The Plaintiffs seek a determination of whether or not the practices and procedures used by the Defendants upon interdiction are consistent with the INA, the Cuban Adjustment Act, DHS guidelines and any and all applicable United States Laws.
36. Individual suits by each member of the class would be impractical because:

• There exist common and identical issues of law and fact for all members of the class, whether the policy and procedures of the Defendants with respect to Plaintiffs violate separation of powers, due process and any and all applicable laws of the United States;
• The number of individual suits would impose an undue burden  on the courts as there appear to be a voluminous amount of members;
• Many members of the class are unaware of their rights and/or are intimidated due their status.

37. A class action is superior to other available methods for the fair and efficient adjudication of this controversy.
38. Upon information and belief no independent litigation has been brought by any member of the respective class against Defendants as to the issues raised in this Complaint.
39. Plaintiffs’ counsel are experienced in class action litigation and can adequately represent the interest of class members as well as the named Plaintiffs.
40. As a result of the Defendants’ illegal and improper procedures and policies, Plaintiffs and the members of the class will continue to be deprived of their opportunity to apply for political asylum, to be joined with close family members, and to avail of all other benefits that accrue from such status.
41. There exists  no  adequate remedy  at  law  if  the  Plaintiffs  are not  brought unto U.S. land. Plaintiffs  are  not  allowed  to  properly  apply  for  political  asylum,  lawful  permanent residency or any other form of relief  in the United States if not brought unto U.S. land.  The denial of the opportunity to apply for relief on US soil, far outweighs any possible change of policy to Defendants, and it is in the public interest for the proper and fair administration of the law.

WHEREFORE Plaintiffs seek Certification of the Class.
COUNT II DECLARATORY ACTION

42. Plaintiffs reallege and incorporate Paragraphs 1 through 41 inclusive and file this COUNT II for Declaratory Relief and allege:
43. There exists confusion in the administrative definition of the term “borders” of the United States in connection with DHS interdiction and application of “at or within the borders of the United States” for repatriation purposes, and corresponding constitutional rights and protections.
44. There is no uniformity in construing whether presence on a U.S. lighthouse or a portion of a lighthouse equals presence within, or at the borders, of the United States.
45. There is disparity in the administration of justice and the determination of rights depending on whether or not an individual is “at, or within the borders of the United States” which affects the integrity and reunification of families.

WHEREFORE Plaintiffs seek judicial definition of the term “territory” of the United States in connection with DHS application of “at or within the border of the United States” for repatriation purposes, including whether presence on a U.S lighthouse and/or structure of the United States equals presence within or at the borders of the United States; thus enabling the invocation of the respective right conferred to individuals residing within United States territory.
COUNT III DECLARATORY ACTION

46. Plaintiffs reallege and incorporate Paragraphs 1 through 45 inclusive and file this COUNT for Declaratory Relief and allege:
47. The actions of the governmental agencies deprive Plaintiffs ___ of their family and cause injury by prolonging family separation. These Plaintiffs and Plaintiff MOVIMIENTO DEMOCRACIA are citizens, legal institutions and residents and have the right to invoke review of the respective governmental agency conduct. The Plaintiffs are being denied their constitutional due process and equal protection rights.

WHEREFORE Plaintiffs pray this Court Order DHS to bring the 21 individuals unto U.S. land for DHS processing.
Respectfully submitted,
WILLIAM J. SANCHEZ, ESQ.
Florida Bar No.: 749060
12600 SW 120th Street, Suite #102
Miami, FL 33186
Tel: (305) 232-8889
Fax: (305) 232-8819
______________________________
VIRLENYS H. PALMA, ESQ.
Florida Bar No.:
303 N Krome Ave,
Homestead, FL 33030
Tel: (786) 601-2293
Fax: (786) 513-5700
______________________________
LUIS FERNANDEZ, ESQ.            
Florida Bar No.: 271578
2250 SW 3^rd Avenue, Suite 303
Miami, FL 33129
Tel: (305) 854-5955
Fax: (305) 854-5324
______________________________
WILFREDO O. ALLEN, ESQ.
Florida Bar No.: 5557900
2250 SW 3rd Avenue, Suite #303
Miami, FL 33129
Tel: (305) 854-5955
Fax: (305) 854-5324
______________________________
KENDALL COFFEE, ESQ.                                    
Florida Bar No.: 259861
2665 S. Bayshore Drive
Miami FL, 33132
Tel: (305) 857-9797
Fax: (305) 859-9919
______________________________
JOSEPH GELLER, ESQ.
Florida Bar No.: 292771
2411 Hollywood Blvd.
Hollywood, FL 33020
Tel: (954) 920-2300
Fax: (954) 920-6885
______________________________
BEN KUEINE, ESQ.
Florida Bar No.: 233293
100 SW 2^nd Avenue
Miami, FL 33020
Tel: (305) 524-1114
Fax: (305) 789-5987                                      
CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that a true and correct copy of the foregoing Pleading was hand delivered to the U.S. Attorney’s Office in Miami, Florida this __ day of May, 2016
_____________________________
WILLIAM J. SANCHEZ, ESQ.