Case 1:91-cv-02653-CCA Document 1 Entered on FLSD Docket 11/21/1991 Page 1 of 18

UNI'l'ED STATES DISTRICT CQTJRT · SOUTHERN DISTRICT Of FLORIDA

HAITIAN REFUGEE CENTER, INC. , a not-for-profit Florida corporation,
Plaintiff, -aqainatJAMES BAKER, III, Secretary of State, REAR ADMIRAL ROBERT KRAME:K and ADMIRAL RIME, commandants, United statea Coast Guard, GENE McNARYI commissioner, Immiqration and Naturalization service, ~he United States Department of Justice, Immigration and Naturalization service, and The United States,
Defendants.

:ctv.:ATKINS.:
-.,,___
91-265
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VJRIPIJC COMPLAINT FOB DECLAJATORY AHD·XNJVNCTIVJ RELIEF

Plaintiff, by ita unaersiqned attorneys, aa and for

its complaint, allege• aa follows:

1. This is a complaint for declaratory and

injunctive relief arising trom the interdiction by the United

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Stataa Coast Guard of Haitian vessels and their paasenqara on

the high seas, and the failure of defendants to follow INS

rules proteotinq the potential asylees among those paasangQrs

from forcible return to Haiti.

2 • Under an "interdiction pro9ram, " the Coast Guard.

and the Immigration and Naturalization Service ("INS"·)

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intercept vessels on the high seas believed to be carrying undocumented aliena attempting- to enter the territorial wat.ers of the United States. The Executive Order authorizing interdiction, Executive Order 12324, titled "Interdiction of Ille;al Aliena," rR Doc. Bl-28829, Ui Feel. Reg. 48109 ("Executive Order"), does not permit the foroibla return of refu;eea. PUrsuant to thia order the INS haa promulgated guidel-ines designed to ensure the identification and protection ot retuqees.
3. In the aftermath ot a September, 1991 military coup in Haiti, the coast Guard· has intercepted numeroua veasels containinq more than 1500 Haitians, many of whom are fleeinq for their lives. Defendant& have failed to follow INS guidelines daaignad to protect the rights of potential applicants for political asylum and withholdin; ot deportation who are among the Haitians currently detained. This action seeks to enjoin defendants from forcing interdicted veaaale containing these people to return to Haiti until the INS has followed ita own rules setting forth procedure• to identify and protect those who are potential asylaea. Defendants' actions violate the terms ot the Executive Order, the guidelines promulgated pursuant to it, and the anforcaabla rules of international law, incorporated therein, includinq tha protection aqainat refoultmtnt (forci~lt return) qrantad political ratugaes by the United Nations Protocol Ralatinq to
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the statue of Refuge••· Defendants' actions· alao deprive intercepted Haitians who are potential aayleea ot the protections aet forth in the Refugee Act of 1980, and the Immigration and Nationality Act, that are extended to intercepted Haitian• by the INS rule that all audh Haitian• who have a potential asylum claim are to be tranaported to the United Stat••·
3uritdictign and Venua 4. Plaintift'a claims arise under the Immigration
and Nationality Aet, 8 u.s.c. Sections llOl(a)(43), 1158, l253(h), tha Refugee Aet ot 1980, 8 u.s.c. Section• 1!21 note,
and regulations promulgated thereunder, the Fifth Amendment to tha United States Constitution, the United Nations Protocol Relating to the Status of Refuqaas, the Universal Declaration ot Human Riqhta, and principles ot international law.
5. Juriadiotion in this action over plaintiff'• claims under the Immi;ration ana Nationality Act, the Retuqaa Act ot 1980 and regulations pro~ulgatad thereunder, and the Fifth Amendment to the United States Constitution, is baaed on
28 u.s.c.- f 1331, as a civil action arising uncla:r the
Constitution, laws, or treaties of the United Statea, and 8 'O'.S.c. ! 1329, as a oivil causa arising under the Iuiqratic:m and Nationality Aet.
6. Venue is proper in this district under 28 o.s.c.
Section 1391, as plaintitt resides hera, some defendants raaida

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in this district and the claims have, in part, arisen in this district.
1. Plaintiff, by its attorneys, brinq thl• action tor injunctive and declaratory relief pursuant to Rules 65 and !7 of tha raderal Rules of civil Procedure.
Partial 8. Plaintiff, Haitian Refuqee Center (11HRC") is a non-profit membership corporation located in Miami, Florida. The HRC's purpose, aa set forth in its bylaws, is to promote the wall-bainq of Haitian refugees through appropriate programs and activities, including laqal representation of Haitian refugees, education reqardinq legal and civil rights, orientation, acculturation, and social and referral services. Xt has in the past brou;ht lawsuits challenginq procedures and ~racticea ot the INS in processing Haitian refu~ee applications and haa been recognized by the INS as a aource of legal counsel for indiqent Haitians. 9. The HRC' s membership includas the Haitian refugee community and the members of the community at larqe who have ahown interest in and support for the defined purpoaaa and activities of the corporation. Prom its inception, the HRC'a membership has included Haitian refugees seeking political asylum in the United States. The HRC is tunded through contri~utiona from voluntary aqencies, includinq the National Council of Churches, foundations, and donation• from privata
peraona aolioited trom the community at lar~•·
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10. The Haitians who are presently aboard veasals

intercepted by the coast Guard inolude persona who aaak, and

are entitled to seek, refugee status in the United Stataa.

They wiah to avoid forcible return to Haiti, where they face

unlawful arrest, detention, and peraecution. The HRC conaiders

these people to be members of HRC by virtue of their presence

on territory within the control of tha United Stataa aueh aa

the Coast Guard base at Guantanamo Bay and coaat Guard

vessels. Tha intercepted Haitians would seek repreaantatian by

the HRC if permitted to do so by defendants, and likawiaa, HRC

would meet and confer with the interdicted Haitians reqardinq

their desires to seek refugee status if permitted.

11. The Haitians on the intercepted veaaela are, by

the currant operation and implementation of the interdiction

program, in such a position aa to be unable to enforce thalr

rights atfectively without a spokesman. HRC seeks to reprllaent

these members' interests in this lawsuit. HR.C has been denied

and continues to be denied in its own right tha ability to

provide affective representative to it• interdicted members.

12. Dafendanta Kramek and Kime are commandants of the

United states Coast Guard. The coast Guard oftioara who are

implementinq the interdiction proqram are acting under thalr

direction and command. These defendants are beinq sued in

their official capacity.

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13. Defendant Gene McNary is the commia1ionar ot the INS. The INS otfioera on board the coaat Guard cutters are acting under his direction an~ auperviaion. Defendant McNary ia being auad in his.official capacity.
14. Defendant James Baker, III i• the Sec~etary of State and in that capacity has the final 4aci•ion making authority within his department. Upon information and belief, it 'is the State Department that has directed the other United States aqenciaa to forcibly return Haitian refugees. Defendant Baker ia sued in his official capacity.
15. Defendant Department ot Justice ia the agency of the United states with oversight and ult~ate raaponaibility for the enforcement ot the immigration laws of tha United states.
16. Defendant Immiqration and Naturalization Service ia the agency obarged with the direct reaponaiDility tor entorcinq the immigration laws ot the United statea.
·11. Defendant ~he United states ia a sovereign and
haa ultimata responsibility for all cf ita •9•noies and officers.
Tb• Interdigtion p;ogram
18. on September 29, 1981 the President i1auad
Proclamation 486!5, FR Doe,. 81-28828, 46 Pad. Reg. 48107 ("the Proclamation"), whioh announced a program of "interdiction" on the bi;h aeas of vessels transportinq aliena. The Proclamation
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was followed on the •ame date by tha Executive Order, whioh purports to authorize the United statea Coast G.uard to atop an4 board United state•, unreqistered, and certain toraiqn ve•aala, make inquiries tc determine if their paaaanqar• are
undocumented miqranta bound tor the United statea, and, if ao,
to ratu:rn them to the country from which they oama, proyidld th1Y are npt ;pglitical ftfugeea .•
19. Section a(c) (3) of the Executive Order instructs the Coaat Guard to "r•turn (a] veaaal and it• paaaenqera to the country from whieh it came • I • p;oyicled, hpweyer. that no peraon who ia a politicAl refugee will be retu;nad withgut his conatJlt.." (Emphasis added). Accordingly, section 3 ot Executive Order 12324 requires the Attorney General to "taka whatever atepa are necessary to insure the fair enforcement of our laws ralatinq to immigration • I • and the strict observance of our international obligations concerning thoee who qenuinaly flee persecution in their homeland."
20. The initial "INS Role in and Guidelines For Interdiction at Sea," isauac1 October 15, 1981, provic2acl numerous procedure• c1eaiqned to ensure identification and protection ot potential aayleea, including:
(a) that INS officers shall be p•••ent aboard Coast Guard veasala carryinq out the interdiction progranu
(b) that auch INS personnel "shall be constantly watchtul tor any indication (includin; ~ glaims) that a

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person or persona on board the interdicted v••••l may qualify aa retugaea under The United Nations convantian.and Protocol" (emphasis added)1
(o) that interviews shall be conducted in conditions, including privacy, deaiqnad to enaura full preaentation of claimar
(d) that transcription of interviews and other recorda sh~ll be maintained. to f'aoilitize eventual preaent11tion of claims to authorities in the United statea; and
(e) That potential aayleea shall be removed from the veaael and provided with paaaaga to the United States.
21. The INS did not obaerve these initi•l rulea. Durinq the daeade following their promulgation, interviews conducted were often ae short as tive minutaar tbey were not conducted in privata and they were otherwise insuttioient as the Haitians on the interdicted vesaals had often »ean deprived of tood and water and ware physically and mentally incapable of' taking part in an effective interview. Aa a result ot these defective procedures, from the inception of the interdiction proqram in 1981 until mid-1991, only 28 of the over 24,000 Haitians on vessels interdicted by the Coast Guard were identitied by INS officials e.s potential aaylee•.
22. In response to complaints about the interview process on interdicted vessels, the Justice Department acknowledged in June 1991 that pre-screening prooedurea aboard
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interdicted vaaaela were faulty and outline4 intended

improvements, including:

(a) better training of INS paraGnnel and formal

certification of creole interpratora;

())) more careful briefinq of Haitians aa to the

purpose of pre-screening procedurear

(c) lengthier and more careful interviewaJ

(d) more thorough documentation of claima and

more careful review ot auch documentation; and

(a) parole for all parson• tranaportea to the

·onitad States to pursue asylum claims and adjudication of such

claim• before a member ot the Asylum Officer corps.
IAI letter trom w. ~e Rawla, Assistant Attorney General, To

'l'ha Honorable Stepl)en J. Solarz, June &, 19il. Recent events

auqgeat that these intentions have not bean translated into

meaninqful action.

Th' Eyenta qiyins Bi•• ta th~• Actign

a3. on September 30, 19gl, a military coup ousted the

democratically al~ctad Haitian President J•an-Bartrand

Ariatide. The violence and political oppression that tollo·wed

the coup have been widely reported by the international preaa.

Following the coup, a lar;e number of Haitians, fearing tor

their lives, began to flea Haiti ~y aaa.
a4. Pursuant to the Exaeutiva Order, United Statea

Coast Guard cutters have been on patrol in the international

·'91...." &i "' ·t.ll£. 'I - - JW'"'" d

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watera of the Windward Paaaage near Haiti ainoe october 9,

1981. On or ~out October 29, 1991, coaat Guard veaaala began

to interdict veasela carrying Haitians fleeing from Ha,iti aa e

result of the coup, To data, approximately 19 auoh ve•aela

have been intercepted. More than 1500 Haitians from thaae ·

vesaala were detained on coast Guard cutters.

25.. INS ·officials have reported. that only eleven

innnigration offioera, accompanied by translators, have bean

aaaigl'leCl to interview more than 1500 interdicted Haitians.

Accordinq to INS officials, interviews cona!stad of a tew

·minutes of questioning concerning: the Haitian's icS.entity and

whether there waa eny reason he or aha could not go back to

Haiti, The interview• were not conducted in privacy and urlder

other conditions provided by guidelines, and were otherwise

insufficient qiven the conditions under which the interviews

took place. several ot the Haitians, includinq babiea,

children, and preqnant women, were ill ancl had high teve2:s.

Many of the Haitians were aeaaick, having spent eeveral daya at

••a in rough watera. ~he Haitians were exposed to extreme

temperatures on the deck of the coast Guard veaaela, where they

ware not ahaltered or only parti1lly sheltered, from aun, rain

and wind and cold. The Haitians were exhausted, and were in

too much physical and mental distress to underatand the imp,~rt

ot the interviews or become aware ot their ri;hta.

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26. As a raault of defective procedurea, leaa than 60 of tha intercepted Haitians were found to have atated a ;rima
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faci1 caaa for asylum in tha United St~tea, notw!thstandinq wide pUblic knowledge of the pblitical violeRc• an4 bloodabad !rom which these boat people fled. Approximately 400 of the remaining·Haitians were taken to a United s~ate• baae in Guantanuo lay, Cuba, where they are living in tenta and in otharwiae aubatandard conditions. The reat remain on interdicted or Coaat Guard veaaala in condition• that worsen as their detention stretches into weeka.
27. On November 18, 1991, defendants announced· that it had commenced tbe forcible return of the••· peopJ.e to Haiti, notwithatandin; the evident inildequacy of INS etf·orts to· identity potential aayleea.
CQQNT ,l
28. Plaintiff repeats and raallagoea para9raphs:l tbrcuqh 27 aa thou;h fully sat torth herein.
29. In the Executive 9rder, tha United Statas : explicitly concede• that ita in~ernAtional o~ligationa with respect to retuqaes qovern ita conduct of the interdiction program, regardless of the location of thea• refuqeea outside the territory of the United States. Pursuant to the Executive Orde~, the INS haa promulgated guidelines aetting forth apecific procedural requirements designed to ensure, in conformance with thaae international obliqat.iona, the

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if!antification and protection of retugaea i·nte:rcepted on the high •••••
30. The United States 1• a party to the United Nation• Protocol Relatinq to the status of Retut••• ("the Protocol") which aubatantially incorporates the United Nations Convention relating to the Status of Refu;aea ("the Convention")· Article 33 of the convention pzoOb.ibita "ratpulement", or the forced return of peracna to a country where their "li.te or freedom would be threatenec1 on account of membership in a partl,.cular aocial qroup or political opinion." -Article 3 ot the Convention provides that ita provisions are to be applied "to retugeea without discrimination aa to race, religion or country ot oriqin. 11
31. The United States has also acceded t~ the Unitec1 Nations Charter, which provides. in Articles 55 and 56 for the promotion of fundamental human riqhts. In accordance with this article the General Assembly of the United Nations unanimously adopted on December 10, 1948, the Universal Declaration of Human Riqhta ("the Declaration••) • Article 13 ot the Declaration states that "ta]veryone has the right to leave any country, includinq hia own •• ··" Article 14 atataa that "[a]veryone has the riqht to seek and to enjoy in other countr~as asylum from peraecution. 11
32. ln addition, the Exoecutive Order requires tha INS to "enaure the fair enforce:rnent of our laws relatinq to

.,... ,"'tFJf,SfOI, .\iii~.'· Mi8 ·" Li.. WJ<:&:U414, ••,

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immigration," and the gu~delinea promulgate4 p~~auant to this
requiraaant provide potential aayleea with tranaportation to
the United stataa tor the explicit purpoaa of ••••rting their ri;hta under the immigration laws.
33. The United states immigration lawa include the Refugee Act of 1980, Pub, L. 96--212, 94 stat. 102 ("Refugee Act"), which stataa that "it is the histo:r:ic policy ot the United States to reapond to the urgent needs ot paraona subject
to peraecution in their homalends.n 8 u.s.c. Section 1521
nota (a). Pursuant to the Retuqee Act, uniform procedures have been established by regulation under which applicants tor ratuq•e statua are given opportunities to atata their clai£a fUlly in writing, to adduce •vidence supporting their claims, to have their claims reviewed and supported by th• state Department'• Bureau of Human Rights and Humanitari~n Attaira and not to be returned to territoriea whara they fa~• persecution.

34. Further unaer the Immiqration and Nationality
Act, 8 u.s.c. I 1253(b), an alien may not~· returned to a
country where he will face threata to lita or freedom on account or race, religion, nationality, membership in a particular aocial qroup, o:r political opinion. Pursuant to the Immigration and Nationality Act, procedures have been eatabliahed that enable aliens asserting a claim tor aaylum to a hearing before an Immigration Judge, an appeal from his decision and the aaaiatance of counael in those proceedings.

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35. Defendants' failure to oomply with INS quiaelinea has harmed, and, unleaa enjoined, will con~inue.to harm Haitians tleeinq persecution who have been in~arcepted by the Coast Guard. By tailing to comply with INS guideline•, defendants have deprived the intercepted Haitian& of their riqhta under the Executive Order, the Retuqee Act, the INA and international law. The intercepted Haitians have no adequate remedy ~t law.
36. The HRC has bean directly injure4 by defendant•' action• in that ita or;anizational purpose haa been tbwartod. It haa been unable to effectively provide aaaiatance to the interdicted paasenqera claiming refuqee status and other• desiring to apply for •imilar status. Defendants' failure to comply with INS guidelines also threatens to deprive the HRC of the benefit• that would inure to it from the presence ot tbeaa Haitiana, who are members of the HRC, in the United Stataa. Moreover, the persona KRC represents in this lawauit will ba irreparably barmed unleaa injunctive re~iaf ia granted. Without immediate injunctive reliet the inderdicted Haitians will be forcibly returned to Haiti whe~e thai~ lives and freedom will be threatene4.
WHEREFORE, plaintiff respectfully requeats the Court to ;rant the following relief against deten~anta and their auccessora in office:

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Case 1:91-cv-02653-CCA Document 1 Entered on FLSD Docket 11/21/1991 Page 15 of 18
(a) Declaratory relief that the defendants' practioea in forcibly ~aturninq Haitian rat'uv••• to Haiti under thaae circumatancaa violate the terms ot IXaoutive Order 12324, the quidelinaa promulvated pursuant to the Bxecutiva Order, the interdiction treaty between the United Stat•• and Haiti, the Refugee Act of 1980, the Immigration and Nationality Act, Sections lOl(a) (43), 208 and 243(h), The United Nations Protocol Relatinq To status of R$fuqeaa, and. the Fifth Amendment to the United Stataa Constitution.
(b) Preliminary and parman•nt injunctive relief ordarinq defendants to refrain from sending back to Haiti those Haitians who have not ~aen idanti:iad aa oandidatea tor asylum until auch tima aa procedures are implementa4 and followed which adequately protect and recoqniza the rights of these paraona under the Executive Order, the INS guidelines promulgated pursuant thereto, international law, aa well aa the privilaqea ordinarily afforded potential retugeea under the Refuqae Act of 1980 and the Immigration and Nationality ACt7 and
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(c) such other and further relief aa the court may dao juat and proper; including rea•onabl• •ttorneys' feea anc! coat•.
Dated: November 19, 1991

Of Counsel: Sandra M. Lipaman, Esq. Polly Maier, Eaq.
0870f/1034f

ZBAN, ESQ. Xurzba , Kur&ban & Weinger
P26la50zasw262507,thSAecvoenndueFloor
Miami, Florida 33133
(305) 444•0060
National lmergeney Civil Liberti•• roundation
Attorney• tor Plaintiff
Florida Bar No. 225517

~ . ~ r .~·. :

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gr YDIFIQTlON QOMPUlmt'
I hereby verity that X have ret4 the above complaint and the facta atated therein are true and correct to the beat
~
of my knowledqa and belief.

Cheryl counse Sworn to and aubacribec1
betore ae thia 19th day ot
Nove1DDer, 1991.

~;o·~-t\!:,l P:.-~:~1-~ ~lY CC·'~·.::~~~!~.:>
30~':'~~~ T; i~~J ... ~.

~.U.l~ r~~- :-LC~.:2·'
>:;) •. )1_;~~(. ?, 1:!-95 C~i.L I ~J'J.. ij:~:i.

•• " J "

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______ ............ ·---............ ·-~,.... ·-· ......_..

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. rciV:ATKlNS Case 1:91-cv-02653-CCA Document 1 Entered on FLSD Docket 11/21/1991 Page 18 of 18

~ ~~COVER J~- _ ..
a~~~·· ~~.-~ns.otd;.Bided lpprov~;-J"~diCi The JS-44 cnnl cover sheet lnd ttl...
rules of Court. ThiS form,
.--- lheet. (SEE INSTRUCTIONS ON THE REVi'IIS

SHEET ·

s~-~ th(f replace '\C!•:Ji.pplement lhe filing ond ...vice of pleo<Hn

• rJn.ted

September 1974, IS required for the use of

. ' . · ·. ·

1
.. ,,.
.~ ..
13: Court

by IOCJ!I e civil d.xkft

I (a) PLAINTIFFS

DEFENDANTS

HAITIAN REFUGEE CENTER 1 INC. , a Florida not-for-profit corporation

JAMES BAKER III, Secretary of State; REAR Ar::t-URAL ROBERT KRAMEK and AOOIRAL KIME, Ccmnandants, U.S. Coast Guard; GENE McNARY,

Oommdssioner of Immigration and Naturaliza-

(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF --=Da~d___:e:___ _
(EXCEPT IN U.S. PLAINTIFF CASES)

COUNTY ct#ioJTnJS~e~rovfl!!m~:4•h!:U"fN~DITDIHD':=:NSDTANATT- ES-D-EP-A- R'IM-E- NT OF (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE

TRACT OF LAND INVOLVED

(C) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER)

ATTORNEYS (IF KNOWN)

•

IRA J. KURZBAN, ESQ. (305-444-0060)

DEXTER LEHTINEN, U.S. ATIDRNm;'., ( 305-536__:4471)

2650 SW 27th Avenue, 2nd Floor Miami, El· 33133

155 S. Miami Avenue, Suite '80itF
Miami, Florida 33130 _fj.· S

CIRCLE COUNTY WHERE ACTION AROSE:

•;. :::::J

D~ MONROE BROWARD PALM BEACH MARTIN, ST. LUCIE, INDIAN RIVER, OKEECHOBE~ HftHLANDS

II. BASIS OF JURISDICTION

(Pl.AC£ AN • IN ONE BOX ONLY)

0 1 U.S. Government Plaintiff

0 3 Federal Quntlon (U.S. Government Not a Party)

Ill. CITIZENSHIP OF PRINCIPAL PARTIES
(For Diversity Cases Only)
PTF DEF

Citizen of Thla Stille

01 01

04

XX 2 U.S. Government

0 4 Dlveralty

Defendant

(lndocate Citizenship or

Citizen of Another Slllte 02 02

05

Partoes in Item Ill)

Citizen or Subject of •

03 03

08

Foreign Country

IV. CAUSE OF ACTION ~NOEA (CITE THEus CIVIL STATUTE

WHIOi YOU ARE FIUNGANO -ITE A BRIEF STATEMENT OF CAUSE

00 NOT CrTf JURISDICTIONAL STATUTES UNLESS OIVERSIT't')

I
/

IVa. 5 days estimated (for both sides) to try entire case.

v. NATURE OF SUIT (PLACE AN X IN ONE BOX ONLY)

A

CONTRACT

0 110 lnsuroonce

0 120 Manno

0 130 MoUer Aco 0 140 ~lolble lnsorvmeno

0 150 Recovery ol Ovorpaymeno & E.ntorcement ol

..Judgment
0 151 Mo<locaro Ad

B 0 152 Recovery of Defaunod Studenl Loans ~EJ.cl Vetet"lfl5)
B 0 153 Recovery ol Overpayment ol Veleran s Benefits 0 160 SloC~hokioro Surts

0 190 Other Conoroct

0 195 Conlr11C1 Produell.ial>iooy

A REAL PROPERTY

0 21 0 Land Condemnauoo
B 0220 For~ro
0 230 Reno Loue & EJOCimeno 0 240 Ton• to Lanrl 0 245 Ton PrrxluCI l.ial>ihly 0 290 All Other Real Property

f5- VI. Of;IIGIN 1 Onginal

0

Proceeding

A

TORTS

B FORFEITURE /PENAlTY

A

BANKRUPTCY

A OlliER STATUTES

PERSONAL INJURY

PERSONAL INJURY

0 31 0 A>rplane 0 315 A>rpoone Produco
i.Jabolly
0 320 ......un. I.Jbol & Slander
0 330 Federal Employers· umooy

0 362 Personal ln1ury-
Mod MalpractJce
0 365 Personal ln1ury-
Product l.Jabrllry
0 368 Asbeslos Personal
ln1ury Product
umooy

0 340 Manno

0 345 Manne ProduCI

PERSONAL PROPEI:TY

Ualdly

0 370 Other Fraud

0 350 Molar \lellrciO

B 0 371 Truth on Londong

0 355 Mooor Vohicle Producr I.Jol)otly

0 380 Other Personal Property Damage

0 360 Other P - '

0 385 Properly Damage

1'11Jry

Product l.Jablllly

A CIVIL RIGHTS
0 441 Volong 0442 E~menl 0 443 Hausongt
AccommodatiOns
0 444 Welfare 0 440 Other Civil Ro;)t\IS

B PRISONER PETITIONS
0 510 Mot100s lo vacate
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VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION

COMPLAINT:

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JURY DEMAND:

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VIII. RELATED CASE(S) <See instruct1cns): IF ANY

DATE
ll
UNITED STATES DISTRICT COURT
S/F I-2 REV. 6/90

SIGNATURE OF ATTORN

Date Paid:_ _ _ _ _ _ _ _ M/ifp: ______

 
 789 F.Supp. 1552 (1991)
HAITIAN REFUGEE CENTER, INC., et al., Plaintiffs, v.
James BAKER, III, Secretary of State, Rear Admiral Robert Kramek and Admiral Kime, Commandants, United States Coast Guard, Gene McNary, Commissioner, Immigration and
Naturalization Service, the United States Department of Justice, Immigration and Naturalization Service, and the United States of America, Defendants.
No. 91-2653-CIV.
United States District Court, S.D. Florida.
December 3, 1991.
15534 *1553 *1554 Ira J. Kurzban, Kurzban, Kurzban & Weinger, Miami, Fla., for plaintiffs.
Dexter Lee, Asst. U.S. Atty., Miami, Fla., for defendants.
ORDER GRANTING PRELIMINARY INJUNCTIVE RELIEF AND SUPPORTING MEMORANDUM OPINION
ATKINS, Senior District Judge.
THIS CAUSE comes before the court on the application of Haitian Refugee Center, Inc., ("HRC"), individual plaintiffs ("individual plaintiffs") (collectively "plaintiffs"), and class members for preliminary injunctive relief pursuant to Rule 65, Federal Rules of Civil Procedure.[1] The application asks the court to extend a Temporary Restraining Order prohibiting defendants from forcefully repatriating Haitians in their custody either until the merits of the underlying action are resolved or until defendants implement and follow procedural safeguards adequate to ensure that Haitians with bona fide claims of political persecution are not forcefully returned to Haiti. By this application, plaintiffs do not seek entry to this country; rather, they seek only the protection of procedures to ensure that they are not forcefully returned to a country where, on account of their political opinion, their life and liberty are threatened by a brutal and illegitimate military regime.
The court determines that plaintiffs are entitled to the requested injunctive relief for the following reasons, as set forth more fully below. First, plaintiffs have standing and have demonstrated a substantial likelihood of prevailing on the merits of two justiciable, judicially enforceable claims: HRC's right of association and counsel, which arises from the First Amendment to the United States Constitution; and the Haitians plaintiffs' right of non-refoulement, which arises under Article 33 of the 1967 United Nations Protocol Relating to the Status of Refugees. Second, plaintiffs have demonstrated a substantial threat that they will suffer irreparable, even fatal, injury if the injunction is not granted. Third, plaintiffs have shown that this threatened injury outweighs the potential harm an injunction would cause defendants. Finally, plaintiffs have shown that the injunction would not be adverse to the public interest.
A. BACKGROUND
The facts most relevant to the present inquiry can be summarized as follows. In 1981, President Ronald Reagan formally found that the migration of aliens without visas to the United States was "a serious national problem detrimental to the interests of the United States." Proclamation No. 4865, 46 Fed.Reg. 48,107 (1981), reprinted in 8 U.S.C. § 1182 note at 993 (1982). Specifically, President Reagan noted that "[a] particularly difficult aspect of the problem [was] the continuing illegal migration by sea of large numbers of undocumented aliens into to the southeastern United States." Id. Invoking both his constitutional and statutory authority, he decided that "international cooperation to intercept vessels trafficking in illegal migrants [was] a necessary and proper means of insuring the effective enforcement of our [immigration] laws." Id.

1555 To implement this stated policy, on September 29, 1981, President Reagan ordered *1555 the Secretary of State to enter into "cooperative arrangements with appropriate foreign governments for the purpose of preventing illegal migration to the United States by sea." Exec.Order No. 12324, 46 Fed.Reg. 48,109 (1981), reprinted in 8 U.S.C. § 1182 note at 992-93 (1982). The President also ordered the Secretary of Transportation to instruct the Coast Guard to interdict undocumented-alien-carrying vessels of foreign nations with which the United States has a cooperative arrangement authorizing the United States to stop and board such vessels. Id. The Coast Guard was further directed to "return the vessel and its passengers to the country from which it came, when there is reason to believe that an offense is being committed against the United States immigration laws, or appropriate laws of a foreign country with which we have an arrangement to assist." These actions were to be taken only beyond the territorial waters of the United States. Id.

Executive Order 12324 also addressed the unique situation of individuals who might qualify as political refugees, providing that "no person who is a [political] refugee will be returned without his [or her] consent." See 8 U.S.C. § 1101(a)(42) (defining political refugee as "any person who is outside any country of such person's nationality ... and who is unable or unwilling to return to, and 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 ... political opinion"). The Executive Order further ordered the Attorney General, in consultation with the Secretaries of State and Transportation, to take any steps necessary "to ensure the fair enforcement of our laws relating to immigration ... and the strict observance of our international obligations concerning those who genuinely flee persecution in their homeland." Exec.Order No. 12324, 46 Fed. Reg. at 48,110.

On September 23, 1981, Haiti and the United States entered into a cooperative arrangement to prevent the illegal migration of visaless aliens to the United States. Interdiction Agreement, Sept. 23, 1981, United States-Haiti, T.I.A.S. No. 10241. The agreement provides, in relevant part, that United States authorities may board Haitian flag vessels on the high seas for the purpose of making certain inquiries relating to the condition and destination of the vessel and the status of those on board. If a violation of a United States law or an appropriate Haitian law is discovered, the vessel and its passengers may be returned to Haiti. The government of Haiti also formally agreed that Haitians returned to that country (with the exception of those organizing the illegal departures) would not be prosecuted for illegal departure. Finally, within this arrangement, as in the Executive Order, the potential political refugee was singled out for differential treatment. The agreement states that it is "understood that ... the United States does not intend to return to Haiti any Haitian migrants whom the United States authorities determine to qualify for refugee status." Id.

To effect the cooperative arrangement with Haiti, officers of the Immigration & Naturalization Service (INS) were assigned to Coast Guard vessels involved in interdiction operations. The INS also issued Guidelines to govern its conduct during interdiction engagements. The relevant portions of those Guidelines provide as follows:

INS ROLE AND GUIDELINES FOR INTERDICTION AT SEA

The following directives are to be followed by INS employees assigned to Coast Guard vessels interdicting vessels at sea pursuant to Presidential Proclamation 4865, dated September 29, 1981, and Executive Order Number 12324, dated September 29, 1981.

GENERAL

* Due to the sensitive nature of this assignment, all INS employees will be under the direct supervision of INS Central Office Headquarters, Associate Commissioner, Examinations.

1556

* The only function INS officers are responsible for is to ensure that the United *1556 States is in compliance with its obligations regarding actions toward refugees, including the necessity of being keenly attuned during any interdiction program to any evidence which may reflect an individual's well-founded fear of persecution by his or her country of origin for reasons of race, religion, nationality, membership within a particular social group or political opinion.

* The duties of INS employees assigned to United States Coast Guard vessels will be limited to matters related to the interview of persons on board with respect to documentation relating to entry to the United States and possible evidence of refugee status.
* Except for independent determinations with respect to documentation relating to entry into the United States and possible claims to refugee status, INS officers will be subject to maritime directives and rules made by the Commanding Officer of the United States Coast Guard vessel.
* * * * * *
BOARDING OF VESSELS
* All decisions relating to which vessels will be interdicted and in what manner vessels will be boarded will be made at the discretion of the Commanding Officer of the United States Coast Guard vessel.
* INS officers and interpreters will be members of each boarding party. INS employees will not be armed.
* All initial announcements to the master, crew, and passengers of a boarded vessel as to the purpose of boarding, separation of crew and passengers, and general procedures (including advice that the boarded vessel may be returned to Haiti) will be made by United States Coast Guard personnel at the time the vessel is first boarded.
INS OFFICER RESPONSIBILITIES
A. To the extent that it is, within the opinion of the Commanding Officer of the United States Coast Guard vessel, safe and practicable, each person aboard an interdicted vessel shall be spoken to by an INS officer, through an interpreter. A log record shall be maintained of each such person's name, date of birth, nationality, home town, all documents or evidence presented, and the reason for departure.
B. A copy of the log prepared by the INS officers shall be provided to the Commanding Officer of the Coast Guard vessel.
C. INS officers shall be constantly watchful for any indication (including bare claims) that a person or persons on board the interdicted vessel may qualify as refugees under the United Nations Convention and Protocol.
D. If there is any indication of possible qualification for refugee status by a person or persons on board an interdicted vessel, INS officers shall conduct individual interviews regarding such possible qualification.
E. Interviews regarding possible refugee status shall be conducted out of the hearing of other persons.
F. If necessary, INS officers will consult with Department of State officials, either on board, or via radio communications.
G. Individual records shall be made of all interviews regarding possible qualification for refugee status.
H. If the interview suggests that a legitimate claim to refugee status exists, the person involved shall be removed from the interdicted vessel, and his or her passage to the United States shall be arranged.
I. Individual record folders shall be prepared and maintained by INS officers in every case where a person is being sent on to the United States, and such record folder may be used to support such

person's claim in the United States. (The individual folder shall contain a sworn statement by the applicants concerning the claim.)
* * * * * *
INS Role In and Guidelines For Interdiction at Sea, October 6, 1981 (Attached as Exhibit C to Memorandum in 1557 Support of Plaintiff's Application for a Temporary Restraining *1557 Order) [hereafter "Guidelines" or "INS
Guidelines"].
In December of 1990, in Haiti's first fully democratic elections in over 200 years, Jean Bertrand Aristide was elected President. In September of 1991, after President Aristide was overthrown by brutal military leaders, thousands of Haitians began to escape by sea in boats, many unseaworthy. As a result, the United States Coast Guard began interdicting an increasing number of vessels carrying fleeing Haitians; to date, at least nineteen (19) such vessels have been intercepted and more than 5000 Haitians have been detained. In addition, apparently in light of the political violence occurring in Haiti, the Coast Guard temporarily discontinued the repatriation of the interdicted Haitians. However, on November 18, 1991, defendants announced they had begun the forced return of the interdicted Haitians.
B. PROCEDURAL BACKGROUND
The following day, November 19, 1991, HRC[2] filed a Verified Complaint for Declaratory and Injunctive Relief, as well as an Application for Temporary Restraining Order (TRO), against the following defendants in their official capacities: JAMES BAKER, III, Secretary of State; REAR ADMIRAL ROBERT KRAMEK and ADMIRAL KIME, Commandants, United States Coast Guard; GENE McNARY, Commissioner, Immigration and Naturalization Service; THE UNITED STATES DEPARTMENT OF JUSTICE; THE IMMIGRATION AND NATURALIZATION SERVICE; and THE UNITED STATES OF AMERICA.
The relief sought by Application for TRO and Verified Complaint is essentially the same, i.e., that the court enjoin defendants from forcefully repatriating Haitians not identified as candidates for asylum until the implementation of procedures providing adequate protection to Haitians pursuing political asylum. The Application for TRO and Verified Complaint, as amended, allege that defendants' actions violate rights of HRC, the individual Haitian plaintiffs, and members of a class of interdicted Haitians. The rights asserted allegedly arise from the following sources: the first and fifth amendments to the United States Constitution; an Executive Order; guidelines promulgated pursuant to the Executive Order; the Refugee Act of 1980; the Immigration and Nationality Act; the Administrative Procedure Act; and rules of international law, including the protection against forcible return granted political refugees by the United Nations Protocol Relating to the Status of Refugees.
Following a nonadversarial hearing on the afternoon of November 19, 1991, The Honorable Donald L. Graham, United States District Judge for the Southern District of Florida, issued a TRO, which provided as follows:
Defendants are precluded from continuing to repatriate Haitians currently on board U.S.-flagged vessels and Haitians currently being held on land under United States' control and at Guantanamo Bay, Cuba until further order, to maintain the status quo.
On November 20, 1991, defendants filed two motions challenging entry of this TRO: Motion to Vacate TRO or to Stay Such Order Pending Appeal; and Motion for Emergency Hearing and to Shorten Notice Time Pursuant to Rule 65(b). On November 21, 1991, this court entered an order denying defendants' motions and granting a Motion to Expedite Discovery filed by plaintiff. The order also set a preliminary injunction hearing on the TRO for November 27, 1991. Defendants took an immediate appeal of the order. In the early evening of November 21, the 1558 Eleventh Circuit Court of Appeals stayed the discovery portion *1558 of the order. In the afternoon of November 22, the Eleventh Circuit lifted the stay and dismissed defendants' appeal of this court's denial of defendants' motions to vacate or stay and for emergency hearing.
On Sunday, November 24, 1991, the parties agreed to an accelerated discovery schedule and to an extension of the TRO to and through Tuesday, December 3, 1991. The court received legal briefing from the parties between

Saturday, November 30 and Monday, December 2, 1991. On Monday, December 2, 1991, plaintiff filed motions seeking to amend the complaint. As noted earlier, those motions have been granted. The court heard oral argument on the relevant legal issues the evening of Monday, December 2. Following oral argument, the court asked the parties whether they would consent to extension of the TRO through Thursday, December 5, in order to give the court additional time to consider the weighty legal issues involved. Counsel for defendants refused.
C. DISCUSSION
A party moving for a preliminary injunction must establish the following four elements: (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of suffering irreparable injury in the absence of an injunction; (3) that the threatened injury to the moving party outweighs the potential harm an injunction would cause the opposing party; and (4) that the injunction would not be adverse to the public interest. Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555, 1561-62 (11th Cir.1989), aff'd, ___ U.S. ___, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). A preliminary injunction is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant carries the burden of establishing the four elements described above. United States v. Lambert, 695 F.2d 536, 539 (11th Cir.1983).
1. Likelihood of Success on Merits
We first consider whether plaintiffs have shown a substantial likelihood of prevailing on the merits of the underlying claims. This consideration implicates the following questions: whether plaintiffs have legal standing to bring this action; whether the issues posed are justiciable; whether plaintiffs have any judicially enforceable rights; and whether these rights are being violated by defendants' actions. For the reasons that follow, we find that plaintiffs have demonstrated a substantial likelihood of the following: that they have standing; that their claims are justiciable; that at least two rights are judicially enforceable; and that these rights are being violated by defendants' actions.
a. Standing
Article III of the Constitution limits the judicial power of federal courts to the resolution of actual "cases" and "controversies." U.S. Const. Art. III, Sec. 2. In order to satisfy the requirements of article III, litigants must establish standing to challenge the action sought to be litigated in the lawsuit. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982). The Supreme Court has recognized that in addition to the constitutional requirements, the concept of standing encompasses certain prudential considerations. Id.
(1) Organizational Standing of HRC
(a) Constitutional Requirements
At a minimum, article III requires a party to "`show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant' and that the injury `fairly can be traced to the challenged action' and `is likely to be redressed by a favorable decision.'" Id. at 472, 102 S.Ct. at 758 (citations omitted). We find a substantial likelihood that the injury alleged by HRC satisfies the constitutional requirements for standing.
(i) Injury
Plaintiff HRC claims that it has suffered the particularized injury of being denied access to a particular and 1559 identifiable group of individuals which it is mandated *1559 to serve, and that its members have suffered the
denial of their rights to assert particular claims. HRC also alleges that its organizational purpose has been

thwarted because it has been unable to effectively provide assistance to the interdicted individuals claiming or desiring to apply for refugee status. Complaint at 14. Additionally, HRC claims that its first amendment right to meet, speak with and solicit its members in Guantanamo and on the Coast Guard cutters has been denied. Amendment to Complaint at 1.
HRC's injury is similar to that alleged in Ukrainian-American Bar Association v. Baker, 893 F.2d 1374 (D.C.Cir.1990). The Ukrainian-American Bar Association [UABA] asserted that the government's failure to provide them access to Soviet and East Bloc aliens seeking asylum in the United States, which prevented them from counseling such persons regarding their rights, infringed upon their first amendment rights and hampered their pursuit of their political agenda. Id. at 1378. The court found that the UABA's claim alleged a "demonstrable, particularized injury." Id. (citing Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975)). Denying the UABA the opportunity to communicate their particular message to a uniquely relevant audience resulted in a "personal and concrete" injury. Id. (citing Kurtz v. Baker, 829 F.2d 1133, 1142 (D.C.Cir.1987)). The United States Supreme Court has also found that the frustration of a plaintiff organization's efforts to fulfill its purpose through activities such as counseling and referral constituted injury in fact. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 1124, 71 L.Ed.2d 214 (1982). Similarly, we find a substantial likelihood that denying HRC the opportunity to meet, speak with and solicit its members results in personal and concrete harm to HRC.
HRC is injured directly in that its organizational purpose is thwarted by the defendants' alleged violations. In addition, it is injured indirectly through the adverse effect on its members. See Haitian Refugee Center v. Nelson, 694 F.Supp. 864, 875 (S.D.Fla.), aff'd, 872 F.2d 1555 (11th Cir. 1989), aff'd sub nom. McNary v. Haitian Refugee Center, ___ U.S. ___, 111 S.Ct. 888, 894 n. 8, 112 L.Ed.2d 1005 (1991) (finding organizational standing where HRC suffered direct and indirect injury). Thus, HRC's claim falls into the category of cases exemplified by NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405 (1963), in which the Supreme Court recognized standing based on alleged activities that injure both the association and its members. See 13 Wright, Miller & Cooper, Federal Practice & Procedure, Jurisdiction § 3531.9, at 608 (2d ed. 1984) (discussing NAACP v. Button). In NAACP v. Button, the Court held that a state law prohibiting solicitation of legal business abridged the first amendment right of the NAACP, its members and lawyers to associate for the purpose of furthering civil rights objectives. 371 U.S. at 428-29, 83 S.Ct. at 335. The Court found that NAACP had standing to assert this right on its on behalf and that it had standing to assert the corresponding rights of its members. Id. at 428, 83 S.Ct. at 335.
As in Ukrainian-American Bar Association, the denial of access to this particular group of Haitian refugees and HRC's corresponding inability to fulfill its organizational mandate distinguish its injury from an "`abstract social interest' that is insufficient to confer standing." 893 F.2d at 1378 (citation omitted). Contrary to the defendants' contention, the injury alleged by HRC differs from the abstract allegations in Haitian Refugee Center v. Gracey, where the appellants did not assert that they knew or knew of any of the interdicted Haitians with whom they wished to associate. 809 F.2d 794, 800 (D.C.Cir.1987). In this case, there is an identifiable group of Haitian refugees with whom HRC is unable to communicate or associate due to the government's alleged violations of international and domestic law.
Also, in contrast to Gracey, where the court noted that HRC, "rather curiously, [did] not make the claim that the interdiction program violate[d] their first amendment rights," HRC has made such a claim in this case. Not only 1560 has HRC alleged the *1560 violation of its first amendment rights, it has made that claim with respect to a specific group of individuals. Consequently, we find "substantial likelihood that HRC has alleged a `particularized, demonstrable injury,'" Warth v. Seldin, 422 U.S. at 490, 95 S.Ct. at 2197, and furthermore, that HRC has standing on the basis of a legal right which it claims has been violated. See Gracey, 809 F.2d at 800.
(ii) Traceability and Redressability
In addition to injury in fact, article III requires that the alleged injury fairly can be traced to actions taken pursuant to the interdiction program and that the injury is likely to be redressed by a favorable decision. Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758. HRC has established both traceability and redressability. "To the extent that there

is a difference, it is that the former examines the causal connection between the assertedly unlawful conduct and the alleged injury, whereas the latter examines the causal connection between the alleged injury and the relief requested." Allen v. Wright, 468 U.S. 737, 753 n. 19, 104 S.Ct. 3315, 3325 n. 19, 82 L.Ed.2d 556 (1984).
The defendants argue that HRC raises the same allegations that it raised in Gracey, where it failed to establish standing due to a lack of causality. In Gracey, Judge Bork discussed the unlikelihood of a finding of a causal relationship where the causal chain involves a prediction about the independent actions of third parties. 809 F.2d at 805.[3]
However, unlike Gracey, this case does not involve a "prediction about independent actions of third parties." Rather, HRC claims that the defendants' failure to comply with its domestic and international obligations affects HRC's own actions. Like the plaintiffs in Ukrainian-American Bar Association, HRC asserts a violation of its own claimed constitutional right to contact and to offer counsel to its members. 893 F.2d at 1379. Judge Ginsburg, in commenting on the organizational plaintiff's first amendment challenge, stated that
the right to speak protected by the first amendment is not, however, a right to be heeded; it is abridged even when speech that we may think would not make a mark in the marketplace of ideas is denied the opportunity to compete for acceptance. We may not, by denying standing under the rubric of causation, narrow the protection afforded by the first amendment.
Id. at 1379-80. Based on this reasoning, we conclude there is a substantial likelihood that HRC has a first amendment right which exists regardless of the actions of any third party with whom it seeks to communicate or associate.
Also, in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), the Supreme Court considered the claim that the government's refusal to admit Ernest E. Mandel, an advocate of communism, to the United States violated the first amendment rights of the United States citizens who had invited him to speak. Although the issue of standing was not addressed, "it may be assumed that [this allegation] satisfied the article III 1561 requirement of a distinct and palpable, not abstract or conjectural or hypothetical, injury." Gracey, *1561 809 F.2d at 800. Similarly, HRC's allegation that the government's actions have resulted in the violation of its first amendment rights may be assumed to have satisfied the article III requirement of a "distinct and palpable" injury.
The defendants argue that it is speculative to presume that prohibiting the refugees' return to Haiti and ordering different procedures would lead to an increase in the number of Haitians associating with HRC. A similar argument was made in Gracey, 809 F.2d at 807. Again, however, the allegations in Gracey were different than those raised by HRC in this case. Instead of generally alleging that absent the interdiction program some refugees would have dealt with it, HRC has alleged that the government's conduct has resulted in a denial of HRC's access to an identified group of Haitian refugees. As discussed above, there is no speculation about the actions of unidentified refugees in this case. The causal link exists between the government's action and HRC's own alleged injury of being denied access to these refugees. Thus, the causal connection is not dependent on the actions of unidentified third parties, but on HRC's decision to act, which is far from speculative. See Allen v. Wright, 468 U.S. at 759, 104 S.Ct. at 3328.
HRC's inability to reach the identifiable group of Haitians is directly traceable to the government's alleged wrongful interdiction of those individuals. Furthermore, that injury would be redressed by a decision in HRC's favor. It does not require speculation to find that the government's alleged violations result in the frustration of HRC's ability to reach its members, causing injury by thwarting HRC's ability to promote the well-being of Haitian refugees attempting to enter the United States. Nor does it take conjecture to find that the relief requested would redress the injury by allowing HRC access to the refugees.
(b) Prudential Considerations
In addition to the article III requirements, standing doctrine embraces certain prudential considerations: (1) the general prohibition on a litigant's raising another person's legal rights; (2) the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches; and (3) the requirement

that the plaintiff's complaint fall within the zone of interests protected by the law invoked. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The government challenges HRC's standing on the basis of the first and third considerations.
At the outset, we note that the United States Supreme Court has stated that "[w]ithin the context of the First Amendment, the Court has enunciated other concerns that justify a lessening of prudential limitations on standing." Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956-57, 104 S.Ct. 2839, 2847, 81 L.Ed.2d 786 (1984). Because HRC has alleged the violation of a first amendment right, we believe that prudential considerations should be given less weight in determining whether HRC has established standing. Nevertheless, we address the government's challenges on prudential grounds in turn.
(i) Third party standing
(a) HRC's assertion of its own rights
This is not a case of an organization attempting to achieve standing by relying solely upon the rights of third parties. Nor is it a case of an association bringing suit only on behalf of its members. Rather, HRC has an injury in its own right. As Justice Powell observed in Warth v. Seldin, "in attempting to secure relief from injury to itself the association may assert the rights of its members, at least so long as the challenged infractions adversely affect its associational ties." 422 U.S. at 511, 95 S.Ct. at 2211. The defendants' alleged violations clearly have an adverse effect on HRC's associational ties.
Organizational plaintiffs have been accorded standing based on the assertion of their own rights in a number of cases. For example, in the leading case of Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 1562 L.Ed.2d 214 (1982), an organization promoting racially integrated *1562 housing established standing by alleging that the defendants' racial steering practices frustrated its efforts to assist equal access to housing through counseling and other referral services. In Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 937-38 (D.C.Cir.1986), the court found that the counseling organization had standing based on its own right where it alleged that its operations were inhibited by the Department of Health and Human Services' implementation of the Age Discrimination in Employment Act of 1967. The Eleventh Circuit addressed the issue in Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555 (11th Cir.1989), aff'd sub nom. McNary v. Haitian Refugee Center, Inc., ___ U.S. ___, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), and acknowledged that HRC had standing to challenge INS practices in its own right as opposed to on a third party theory. Id. at 1561 n. 10. As in Havens Realty, Action Alliance, and HRC v. Nelson, HRC has demonstrated a substantial likelihood that it has standing based on its own right.
(b) Assertion of third party rights
We also find a substantial likelihood that HRC has standing to assert the interests of the interdicted Haitians.[4] The Supreme Court has recognized that certain competing concerns may outweigh any prudential rationale against third party standing and therefore that there's a relaxed prudential standing limitation when such concerns are present. Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S.Ct. 2839, 2846, 81 L.Ed.2d 786 (1984) (citing Craig v. Boren, 429 U.S. 190, 193-94, 97 S.Ct. 451, 454-55, 50 L.Ed.2d 397 (1976)).
Where practical obstacles prevent a party from asserting rights on behalf of itself, for example, the Court has recognized the doctrine of jus tertii standing. In such a situation, the Court considers whether the third party has sufficient injury-in-fact to satisfy the Art. III case-or-controversy requirement, and whether, as a prudential matter, the third party can reasonably be expected to properly frame the issues and present them with the necessary adversarial zeal.
Id.

HRC has demonstrated a substantial likelihood of the existence of all of the requirements for jus tertii standing. First, there are a number of practical obstacles that prevent the Haitian refugees' assertion of their rights. Second, HRC has alleged sufficient injury in fact. And third, HRC can reasonably be expected to properly frame the issues and to advocate the interdictees' interests zealously, as it has in the past.
Courts have also found third party standing appropriate when a special relationship exists between the plaintiff and the third party whose rights are allegedly infringed. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 443-46, 92 S.Ct. 1029, 1033-34, 31 L.Ed.2d 349 (1972) (holding that defendant charged with giving away contraceptives could raise rights of those who wanted to use them). See generally, Monoghan, Third Party Standing, 84 Colum.L.Rev. 277 (1984). For example, in Craig v. Boren, the relationship of a beer vendor and a potential customer was sufficient for the vendor to raise the rights of the potential customers to challenge a prohibition of selling beer to minors on the grounds of gender-based discrimination. 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). In Barrows v. Jackson, the relationship between a minority and one who acted to protect the rights of the minority was sufficient to confer jus tertii standing. Eisenstadt v. Baird, 405 U.S. at 445, 92 S.Ct. at 1034 (discussing Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953)). Note that the relationship 1563 may be between the litigant *1563 and a potential third party. Craig v. Boren, 429 U.S. at 194, 97 S.Ct. at 455.
In contrast to the cases discussed above, the Supreme Court refused to allow plaintiff banks to strengthen their own claims by asserting the rights of their depositors in challenging federal recordkeeping and reporting requirements. See California Bankers Assoc. v. Shultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974). The Court held that the requirements did not violate the banks' rights, stating that "[w]hatever wrong such a result might work on a depositor, it works no injury on his bank." Id. at 51, 94 S.Ct. at 1512. The Court did note that although under other circumstances the bank might rely on the injury to its depositors, the Court did not need to reach that question because any claim the depositors might have was premature. Id. (citing Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972)).
California Bankers is distinguishable from the present case for two reasons. First, the wrongs which affect the interdicted Haitians do work injury on the HRC by frustrating its efforts to assist the refugees.[5] Second, any claims the interdictees have based on the alleged violations of the Protocol are not premature.
As in Barrows, Eisenstadt, and Craig, there is a special relationship between HRC and the Haitian plaintiffs that is sufficient to confer jus tertii standing. Unlike California Bankers, the alleged wrongs suffered by the Haitian refugees do result in injury to the HRC. Where "the same activity injures both the interests of the organization as such and related interests of its members, it is a natural extension to rule that the organization can assert the rights of its members." 13 Wright, Miller & Cooper, Federal Practice & Procedure, Jurisdiction § 3531.9, at 608. Therefore, in bringing this suit, HRC may properly rely not only upon its own rights, but may also assert the interests of the interdicted Haitians. In fact, it may be impossible to decide HRC's claims without considering the interests of the Haitians. See id. at 554.
(ii) Zone of interests
The defendants also argue that HRC's interests in counseling and representing the interdicted Haitians are outside the "zone of interests" of the laws cited by HRC, which do not regulate or protect the right of an organization to associate with aliens interdicted on the high seas. The zone of interests test asks whether the interests advanced by the plaintiff are "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970).
HRC's interests are "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." HRC's interest in having access to the interdicted Haitians is clearly within the zone of interests to be protected by the First Amendment. In re Primus, 436 U.S. 412, 422-24, 98 S.Ct. 1893, 1899-1900, 56 L.Ed.2d 417 (1978); NAACP v. Button, 371 U.S. 415, 428-29, 83 S.Ct. 328, 335, 9 L.Ed.2d 405 (1963); Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 531-32 (S.D.Fla.1980).

Also, the legislative history of the Refugee Act of 1980 is replete with references to the interests of voluntary and 1564 nonprofit agencies such as HRC in the refugee admission *1564 process. For example, the following statement in
the House Report highlights the importance of the role that Congress envisioned for agencies like HRC in implementing the Refugee Act:
Refugee resettlement in this country has traditionally been carried out by private voluntary resettlement agencies.... The Congress recognizes that these agencies are vital to successful refugee resettlement.
H.R.Rep. No. 608, 96th Cong., 1st Sess. 6 (1979) U.S.Code Cong. & Admin.News 1980, p. 141 [hereinafter "House Report"]. A comment by Representative Holtzman also was indicative of the legislature's intent to involve the interests of voluntary agencies:
If this legislation is enacted, for the first time there will be some predictability to our Government's response to refugee problems that exist around the world. The Congress, the executive branch, and the voluntary agencies, will as a result be able to engage in long-term planning.
Refugee Act of 1979: Hearings on H. 2816 Before the Subcomm. on Immigration, Refugees, and International Law on the Judiciary of the House of Representatives, 96th Cong., 1st Sess. 1 (1979).
The legislative history of the United States' adherence to the United Nations Protocol on the Status of Regulations confirms a contemplation of the interests of voluntary agencies like HRC:
The American Council of Voluntary Agencies, embracing 43 agencies and representing all factions and all of the organizations which carry on work on behalf of the refugees and other needy people abroad, and which also serve as a liaison in developing support for their efforts in this country, has unanimously endorsed U.S. accession to the protocol; [They] have petitioned the government on several occasions to take all necessary steps with a view to securing U.S. accession to the protocol.... [On] behalf of the President and the Secretary of State, I would like to reiterate their earnest hope.
S.Exec.Rep. No. 14, 90th Cong., 2d Sess. Appendix at 5 (1968) (testimony of Mr. Lawrence A. Dawson, Acting Deputy Director, Office of Refugee and Migration Affairs, Dept. of State).
The explicit references to the importance of the voluntary agencies, their interests and their concerns, including their role in formulating the Refugee Act, appear throughout the legislative history in both the House and the Senate. See House Report and S.Rep. No. 256, 96th Cong., 1st Sess. 7-8 (1979), U.S.Code Cong. & Admin.News 1980, p. 141. Based on the legislative history, we are convinced there is a substantial likelihood that, in addition to falling within the zone of interests of the First Amendment, HRC's interests fall within the zone of interests of the provisions at issue in this case.
Finally, the Supreme Court has recently held that the zone of interest test "is not meant to be especially demanding; in particular there need be no indication of congressional purpose to benefit the would-be plaintiff." Clarke v. Securities Industry Association, 479 U.S. 388, 399-400, 107 S.Ct. 750, 757, 93 L.Ed.2d 757 (1987). The Court further stated that the zone of interests test "denies the right of review if the plaintiffs' interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit suit." Id. at 399, 107 S.Ct. at 757. As discussed above, HRC's interests are far from marginally related or inconsistent with the laws in question.
(2) Standing of Individual Plaintiffs
Plaintiffs contend that the interdiction program violates Article 33 of the United Nations Protocol Relating to the Status of Refugees. Because we find, as discussed below, that there is a substantial likelihood that the United States has violated international law, we also find that the individual plaintiffs have standing.

The individuals have satisfied the constitutional requirements of standing. They have demonstrated that they 1565 personally have suffered some actual or threatened injury as a result of the defendants' alleged *1565 wrongful
conduct. Valley Forge, 454 U.S. at 471, 102 S.Ct. at 757. The injury alleged is the wrongful forced return of these individuals, without the opportunity to meaningfully assert their claims for asylum, to a country where they may face persecution, detention or death. The injury "`fairly can be traced to the challenged action' and `is likely to be redressed by a favorable decision.'" Id. at 472, 102 S.Ct. at 758 (citations omitted).
In addition, the individual plaintiffs' claims present no prudential concerns. They bring suit in their own right, not on behalf of third parties. Moreover, the individual plaintiffs are clearly within the zone of interests protected by the Protocol.
b. Justiciability
Having found a substantial likelihood of standing, we consider the difficult question of whether judicial review of HRC's claims is barred by the "murky and unsettled" political question doctrine. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 803 n. 8 (D.C.Cir.1984) (Bork, J., concurring) (stating "[t]hat the contours of the doctrine are murky and unsettled is shown by the lack of consensus about its meaning among the members of the Supreme Court"). Generally speaking, a cause of action is nonjusticiable if it is "unsuited to judicial inquiry or adjustment" because it presents a "political question" by involving "the relationship between the judiciary and the coordinate branches of the Federal Government" in such a way as to implicate the doctrine of "the separation of powers." Baker v. Carr, 369 U.S. 186, 196, 210, 82 S.Ct. 691, 699, 706, 7 L.Ed.2d 663 (1962). Defendants argue that the issues raised by plaintiffs present political questions because of the constitutional commitment to the political branches of matters relating to immigration and foreign affairs, because there are no standards by which this court could judge the propriety of the actions being taken pursuant to the President's directive, and because the basic policy questions are not appropriate for judicial resolution.
We recognize that the execution of immigration and foreign affairs matters traditionally has been committed to the executive and legislative branches. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) (characterizing power to make immigration determinations as a "fundamental sovereign attribute exercised by the government's political departments largely immune from judicial control"). However, the fact that a controversy affects immigration or foreign policy does not of itself render the controversy nonjusticiable. See Baker v. Carr, 369 U.S. at 211, 82 S.Ct. at 706 (stating that "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance"); INS v. Chadha, 462 U.S. 919, 942-44, 103 S.Ct. 2764, 2779-80, 77 L.Ed.2d 317 (1983) (declining to dismiss on political question ground challenge to congressional veto of INS order suspending plaintiff's deportation). Indeed, the Supreme Court has expressly left room for a "narrow standard of [judicial] review of decisions made by the Congress or the President in the area of immigration and naturalization." Mathews v. Diaz, 426 U.S. 67, 82, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976). An analysis of the present case shows a substantial likelihood that the claims presented are not exclusively committed for resolution to the executive branch. Unlike the claim in Johnson v. Eisentrager, 339 U.S. 763, 789, 70 S.Ct. 936, 949, 94 L.Ed. 1255 (1950), for example, plaintiff does not seek to adjudicate the lawfulness of United States military presence abroad.[6] Properly understood, plaintiff's claims are narrowly focused on whether defendants' execution of the interdiction policy violates rights of plaintiffs arising under international law and the United States Constitution, statutes and guidelines.
1566 *1566 Resolution of the presented claims will not require this court to move outside of its areas of expertise. On the basis of the record developed, it appears that adjudication of this case will necessitate interpretation of the nature of the rights asserted and adjudication of the defendants' compliance with those rights. Regarding the government's conformity with its own rules and the other sources of rights presently asserted, we note that courts have found sufficient standards to assess such conformity. See, e.g., Hotel and Rest. Emp. Union, Local 25 v. Smith, 563 F.Supp. 157, 160 (D.C.D.C.1983). HRC does not challenge a determination left exclusively to executive discretion, but rather procedures utilized by the executive pursuant to its constitutional and statutory authority.

Moreover, to the extent that conditions in Haiti are relevant to the adjudication of the claims, we recognize that courts have made findings of fact about conditions in other countries when such determinations are relevant to deciding whether the policies and procedures of the INS violate the statutory or constitutional rights of aliens. See, e.g., Coriolan v. INS, 559 F.2d 993, 1002-03 (5th Cir.1977); Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 507-09 (S.D.Fla. 1980), aff'd as modified, Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982); Orantes-Hernandez v. Smith, 541 F.Supp. 351, 358 (C.D.Cal.1982) (taking judicial notice that El Salvador in midst of civil war, that continuing military actions created substantial civilian danger, and that government and guerilla forces responsible for political persecution). In short, it appears substantially likely that there is no "lack of judicially discoverable and manageable standards" to apply. Baker v. Carr, 369 U.S. at 211, 82 S.Ct. at 706.
Finally, we find a substantial likelihood that the prudential considerations set out in Baker v. Carr, supra, do not bar adjudication of the claims.[7] For example, the claims presented do not call upon this court to make or review foreign policy determinations, nor do they challenge the facial validity of the interdiction program, cf. Johnson, 339 U.S. at 789, 70 S.Ct. at 949; Dickson v. Ford, 521 F.2d 234 (5th Cir.1975) (upholding dismissal as nonjusticiable question of taxpayer's challenge to military and economic assistance to Israel), cert. denied, 424 U.S. 954, 96 S.Ct. 1428, 47 L.Ed.2d 360 (1976). The claims do not challenge the traditional power of Congress to control entry into the United States, seek a declaration of admissibility of any alien or request this court to declare the ultimate eligibility of specific aliens to asylum protection.
Instead, the claims call upon the court to decide whether the defendants' actions in carrying out the program violate U.S. and international law. As the United States Court of Appeals for the District of Columbia Circuit has recognized,
The political question doctrine is a tempting refuge from the adjudication of difficult constitutional claims. Its shifting contours and uncertain underpinnings make it susceptible to indiscriminate and overbroad application to claims properly before the federal courts.... Despite confusion over whether a retreat to the political question doctrine is proper in particular cases, it is clear that the doctrine is, at best, a narrow one.
Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1514 (D.C.Cir.1984). Accordingly, we find that plaintiffs have shown a substantial likelihood that the claims presented are justiciable and not barred by the political question doctrine.
c. Judicial Enforceability and Merits of Claims
1567 Plaintiffs allege that defendants' actions in carrying out the interdiction program *1567 violate their rights and the rights of their class members. As sources of the alleged rights, plaintiffs advance the following: (1) Article 33 of the United Nations Protocol Relating to the Status of Refugees; (2) the first amendment to the United States Constitution; (3) the fifth amendment to the United States Constitution; (4) Executive Order 12324 and guidelines promulgated pursuant thereto; (5) the Refugee Act of 1980; (6) the Immigration and Nationality Act; and (7) the Administrative Procedures Act. Defendants contend that none of the alleged rights is judicially enforceable. We disagree and find that plaintiffs have demonstrated a substantial likelihood that the first amendment and Article 33 provide rights enforceable by this court. We also find a substantial likelihood that plaintiffs will otherwise prevail on the merits of their claims.
(1) U.N. Protocol Relating to Status of Refugees
Plaintiffs contend that the interdiction program violates the 1967 United Nations Protocol Relating to the Status of Refugees (Protocol). The United States is a party to the Protocol, which incorporates Articles 2 to 34 of the 1951 Convention Relating to the Status of Refugees.[8] 19 U.S.T. 6223; T.I.A.S. No. 2545. The Protocol defines a refugee as any person who, "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country."

Article 33 of the Convention, incorporated into the Protocol, provides as follows:
No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion.
Article 3 of the Convention, also incorporated into the Protocol, provides that the provisions of the Protocol are be applied "to refugees without discrimination as to race, religion or country of origin."
Plaintiffs claim that the defendants' actions in carrying out the interdiction program violate Article 33 by providing inadequate procedural safeguards to ensure that interdicted Haitians are not returned to Haiti where, on account of their political opinion, their life and liberty are threatened by a brutal and illegitimate military regime. Defendants deny they have a judicially enforceable non-refoulement obligation to the interdicted Haitians under the Protocol. First, defendants argue that the Protocol is not binding on the United States because the Protocol was not self-executing. Second, defendants argue that even if the Protocol were self-executing and therefore binding on the United States, the non-refoulement protections of Article 33 do not extend to Haitians interdicted in international waters. Although the question is a very close one, we determine that plaintiffs have shown a substantial likelihood that the Protocol was self-executing and that the protections of Article 33 extend to the Haitians interdicted on high seas.
(a) Self-Execution of Protocol
A treaty can become binding upon a party to the treaty in one of two ways. First, the treaty's provisions can be implemented by legislation enacted by the party state. Congress has implemented the Protocol, at least in part, through the Refugee Act of 1980. See Bertrand v. Sava, 684 F.2d 204, 218-19 (2d Cir.1982). However, as discussed below, the Refugee Act provides no rights to aliens outside of the United States. See 8 U.S.C. § 1158. Accordingly, to the extent the Protocol provides non-refoulement protection to aliens outside the United States, the provision of that protection has not been implemented by United States legislation.
1568 *1568 The second way a treaty's provisions can become binding upon a party is by self-execution. Self-executing provisions of a treaty become effective and binding upon the parties immediately upon ratification of the treaty. See Cook v. United States, 288 U.S. 102, 119, 53 S.Ct. 305, 311, 77 L.Ed. 641 (1933); United States v. Postal, 589 F.2d 862, 875 (5th Cir.1979). Opinions out of two Eleventh Circuit courts which appear to have considered whether the Protocol was self-executing support the proposition that it was and therefore is binding on the United States. See Nicosia v. Wall, 442 F.2d 1005, 1006 n. 4 (5th Cir.1971) (stating, without recognizing implementing legislation, that "Protocol binds acceding States to apply certain provisions of the 1951 Refugee Convention") (emphasis added); Fernandez-Roque v. Smith, 539 F.Supp. 925, 935 n. 25 (N.D.Ga.1982) (stating inclination toward view that Protocol is self-executing). Moreover, the United States Supreme Court has recognized that "[t]he Protocol bound parties to comply with the substantive provisions of Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees." Immigration and Naturalization Service v. Stevic, 467 U.S. 407, 416, 104 S.Ct. 2489, 2494, 81 L.Ed.2d 321 (1984) (emphasis added).
We also recognize that at least two courts have reached the contrary conclusion. See Bertrand v. Sava, 684 F.2d 204, 218-19 (2d Cir.1982) (holding that "the Protocol's provisions were not themselves a source of rights under our law unless and until Congress implemented them by appropriate legislation"); Haitian Refugee Center, Inc. v. Gracey, 600 F.Supp. 1396, 1403-04 (D.C.D.C.1985) (same), aff'd on other grounds, 809 F.2d 794 (D.C.Cir.1987). Nevertheless, in light of the following analysis, we find a substantial likelihood that the Protocol was selfexecuting and therefore binding upon the United States.
Because the Protocol itself contains no express declaration or denial of its self-executing nature, we must look elsewhere to determine whether or not the Protocol was self-executing, "one of the most confounding [questions] in treaty law," Postal, 589 F.2d at 876 (noting that "[t]heoretically a self-executing ... provision should be readily distinguishable" but that "[i]n practice it is difficult"); see Haitian Refugee Center, Inc. v. Gracey, 809 F.2d 794, 840 (D.C.Cir.1987) (Edwards, J., concurring) (describing question as "complex"). To do so, we must consider the

parties' intent and the subject matter, legislative history and subsequent constructions of the treaty. See Postal, 589 F.2d at 876-77.
Due to the multilateral nature of the treaty, consideration of the parties' intent is least helpful. See id. at 878 (noting difficulty of determining common intent regarding self-execution of multilateral treaty). Because some parties, such as Great Britain, never recognize a treaty as self-executing, see id. at 878 n. 24, these parties lack any intent with respect to the direct application of the provision in their countries. Ascertaining intent of the multiple parties to the Protocol is made even more difficult by the fact that many countries "lack the equivalent of the Supremacy Clause." Iwasawa, The Doctrine of Self-Executing Treaties in the United States: A Critical Analysis, 26 Va.J.Int'l L. 627, 656 n. 122 (1986).
The subject matter of the Protocol supports the proposition that the non-refoulement provision is self-executing and therefore governing in the United States. The provision neither explicitly calls for legislation nor requires positive legislative action, such as the appropriation of money or the imposition of sanctions. The provision mandates neither material assistance nor expenditure of funds; therefore, it should operate of itself, without the aid of any legislation. See Postal, 589 F.2d at 877 (stating relevancy of such considerations); Note, Interdiction: The United States' Continuing Violation of International Law, 68 B.U.L.Rev. 773, 785 (1988) [hereinafter "Interdiction Note"]. The mandatory nature of the non-refoulement provision of the Protocol also supports a finding that it is self-executing. See Protocol, art. 7, para. 1 (prohibiting parties from excluding or modifying the 1569 non-refoulement provision); see also Frolova v. U.S.S.R., 761 F.2d 370, 373 *1569 (7th Cir.1985) (stating that one factor bearing on whether treaty is self-executing is "the nature of the obligation imposed by the agreement" and that lack of legal obligation in treaty indicates non-self-executing nature of treaty).
The legislative history surrounding the Protocol further supports the conclusion that the non-refoulement provision is self executing. In a letter transmitting the Protocol to the Senate, President Lyndon Johnson expressed a belief that United States law already met the standards of the Protocol, suggesting that further implementation was unnecessary for incorporation of the Protocol into United States law. See 114 Cong.Rec. 27,757 (1968), quoted in Interdiction Note at 781-82. Noting the Protocol's provision of non-refoulement, President Johnson wrote that "accession to the Protocol would not impinge adversely upon established practices under existing laws in the United States." Id.; see also Cong.Research Serv., Library of Cong., 96th Cong., 1st Sess., Review of U.S. Refugee Resettlement Programs and Policies 14 (Comm.Print 1979) (stating that "[i]t should be remembered that during Senate consideration of the United Nations Protocol on Refugees in 1968, the Department of State noted that legislation was not required to implement the Protocol"), reprinted in Interdiction Note at 785-86.
Finally, it appears that the subsequent construction of the Protocol generally supports the conclusion that it was self-executing. As noted above, two courts have concluded that the treaty was not self-executing. See Bertrand v. Sava, 684 F.2d 204, 218-19 (2d Cir.1982); Haitian Refugee Center, Inc. v. Gracey, 600 F.Supp. 1396, 1403-04 (D.C.D.C.1985), aff'd on other grounds, 809 F.2d 794 (D.C.Cir.1987). However, several courts in addition to the ones already noted, see Nicosia v. Wall, 442 F.2d 1005, 1006 n. 4 (5th Cir.1971); Fernandez-Roque v. Smith, 539 F.Supp. 925, 935 n. 25 (N.D.Ga.1982), have concluded that the Protocol was self-executing. See Sannon v. United States, 427 F.Supp. 1270, 1274 (S.D.Fla.1977) (holding that Protocol established alien's right to hearings), vacated and remanded on other grounds, 566 F.2d 104 (5th Cir.1978); Matter of Dunbar, Interim Decision of Board of Immigration Appeals, No. 2192, 310 at 313 (April 17, 1973) (stating in regard to Protocol that "such a treaty, being self-executing, has the force and effect of an act of Congress").
In light of the foregoing, we determine that HRC has demonstrated a substantial likelihood that the Protocol's protection against refoulement was self-executing. Although the intent of the parties is unclear, the subject matter, legislative history and subsequent construction of the Protocol by United States courts support this determination. Accordingly, the Protocol is binding upon the United States. To hold otherwise might very well ignore the Constitutional mandate that treaties are the "supreme law of the land." U.S. Const. art. VI, cl. 2.

(b) Protocol's Coverage of Haitians on High Seas
Having concluded that the Protocol was self-executing and therefore that the United States is bound by Article 33's prohibition against refoulement of political refugees, we must determine whether the Haitians interdicted by defendants are entitled to that protection. Article 33 of the Convention, incorporated into the Protocol, provides as follows:
No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion.
(emphasis added).
Based on our review of the caselaw, it appears that only one court has considered whether Haitians intercepted pursuant to the interdiction program are protected against refoulement. In Haitian Refugee Center, Inc. v. Gracey, 809 F.2d 794 (D.C.Cir.1987), Judge Harry Edwards determined in dicta that Article 33 "was not intended to 1570 govern parties' conduct outside of their national borders." Id. at 840 (Edwards, J., concurring). Judge Edwards *1570 based his determination on a discussion among the parties to the treaty which suggested their agreement that "`expulsion' would refer to a `refugee already admitted into a country' and that `return' would refer to a `refugee already within the territory but not yet resident there.'" Id. at 840 n. 133 (quoting discussion among parties at second and final reading of draft Convention). Because a Haitian interdicted in international waters is neither admitted into nor already within the United States, under Judge Edwards' interpretation such a person receives no benefit of Article 33's prohibition against refoulement.
The question whether Article 33's non-refoulement obligation extends to the high seas is a close one. American commentators appear split on the question. Compare Note, The Rights of Asylum Under United States Law, 80 Col.L.Rev. 1125, 1126-27 (1980) (stating that Article 33 does not extend to refugees outside contracting country's borders) with Interdiction Note, 68 B.U.L.Rev. at 794 (1988) (stating that Article 33 does extend to refugees outside contracting country's borders). Once this court reaches the merits underlying this action, the court may determine, as did the Gracey court, that Article 33 provides no protection to the intercepted Haitians.
However, for several reasons we find a substantial likelihood that the interdicted Haitians are protected under Article 33 of the Protocol. Initially, we note that Judge Edward's determination in Gracey is dictum from a court outside this circuit. Moreover, Judge Edward's determination appears to ignore Article 32 of the Protocol, which
requires an interpreting body to conclude that an ordinary meaning of the text is either obscure or unreasonable before it can look to `supplementary means' [and] reflects reluctance to permit the use of materials constituting the development and negotiation of an agreement (Travaux Preparatoire) as a guide to interpretation of the agreement.
Rest.For.Rel. § 325, comment (e) (quoted in Plaintiff's Reply Memorandum in Support of Motion For Preliminary Injunctive Relief).
Second, the plain language of the Protocol manifests a purpose to provide liberal protection for those facing political persecution. Article 33 provides that "No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his ... political opinion." (emphasis added). The present action asserts that defendants are refouling political refugees to Haiti in the manner of interdicting their boats and returning them to that violence-torn land without sufficient inquiry into their political asylum claims. As shown below, the limited evidence taken thus far supports HRC's claim. Notwithstanding the debate transcripts relied upon by the Gracey court to the contrary, it seems substantially unlikely that a Protocol designed to protect refugees fleeing bona fide political persecution could have been intended not to provide protection to the Haitians fleeing the brutal, military regime now in power on the ground that those fleeing had not yet reached the territory of a Party to the Protocol. Indeed, the United Nations High Commission for Refugees has stated that "according to the terms of Article 33, the principle of non-

refoulement applies extraterritorially." Letter from Rene van Rooyen, Representative of United Nations High Commissioner for Refugees, to HRC Counsel (dated November 29, 1991).
Third, subsequent constructions by the United States support the notion that the interdicted Haitians are covered by Article 33 of the Protocol. Most importantly, Executive Order 12324 and the accompanying guidelines reflect an understanding by the United States that the prohibition against refoulement is binding and protects Haitians interdicted on the high seas. As noted above, Executive Order 12324, which sets forth the interdiction program, specifically provides that following the interdiction of a boat in international waters, "no person who is a refugee 1571 will be returned without his consent." Executive Order 12324 § 2(c)(3). The Executive Order also authorizes *1571 the Attorney General to promulgate guidelines "to ensure the fair enforcement of our laws relating to immigration ... and the strict observance of our international obligations concerning those who genuinely flee persecution in their homeland." Id. § 3 (emphasis added). In light of this language, defendants' argument that Article 33 does not extend to international waters is curious, since Executive Order 12324 applies only to persons interdicted in international waters. See id. § 2(d) (authorizing interdiction program "only outside territorial waters of the United States").
The nature of the United States' subsequent construction is confirmed by the INS Guidelines promulgated in accordance with Executive Order 12324; the Guidelines evince the construction of Article 33 as binding with respect to Haitians interdicted in international waters. Indeed, the Guidelines, which have effect only in international waters, instruct INS officers to be "constantly watchful for any indication (including bare claims) that a person or persons on board the interdicted vessel may qualify as refugees under the United Nations Protocol." Interdiction Guidelines at 3 (emphasis added). Moreover, the opening section of the guidelines describes the function of INS officers taking part in the Interdiction Program as being "to ensure that the United States is in compliance with its obligations regarding actions toward refugees." INS Guidelines at 1 (emphasis added). In addition, "Article 33, United Nations Convention and Protocol Relating to the Status of Refugees," is listed prominently among the "Authority" set forth on the second page of the Guidelines.[9]
To be sure, the question whether Article 33's protections against non-refoulement extend to the Haitians being interdicted in international waters, like the question regarding the self-executory nature of the Protocol, is a close one. However, as the Supreme Court has held, "Treaties are to be construed in a broad and liberal spirit[,] and when two constructions are possible, one restrictive of rights which may be claimed under it, and the other favorable to them, the latter is preferred." Asakura v. Seattle, 265 U.S. 332, 342, 44 S.Ct. 515, 516, 68 L.Ed. 1041 (1924). In this light and based on the foregoing, we conclude that HRC has demonstrated a substantial likelihood that the right against refoulement can be asserted in the present case.
In light of the evidence discussed in section C(2) below, we also find a substantial likelihood that plaintiffs will otherwise prevail on the merits. In other words, we find a substantial likelihood that defendants' actions in carrying out the interdiction program violate plaintiffs' right of non-refoulement under Article 33 of the Protocol, in that the actions fall short of procedural safeguards set forth in the INS Guidelines.
(2) The First Amendment
HRC claims that its first amendment right of access to the interdicted Haitians has been violated by defendants' 1572 action of forcibly returning the interdictees.[10] While *1572 the interdictees are detained on the Coast Guard
cutters and the Guantanamo Base, they are denied information concerning their rights, the availability of counsel, and assistance in making their asylum claims.
The Eleventh Circuit has recognized that "the Supreme Court has repeatedly emphasized that counsel have a First Amendment right to inform individuals of their rights, at least when they do so as an exercise of political speech without expectation of remuneration." Jean v. Nelson, 727 F.2d 957, 983 (1984) (citing In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); NAACP v. State ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958)). HRC alleges precisely this first amendment right: the right to counsel and meet with the interdicted Haitians as an exercise of political speech and with no expectation of remuneration.[11]

In NAACP v. Button, the Court held that the activities of the NAACP, its affiliates and legal staff in discussing and advising groups about their legal rights were modes of expression and association protected by the first amendment. 371 U.S. at 428-29, 83 S.Ct. at 335. The Court reaffirmed this holding in In re Primus, finding that a nonprofit organization that pursued litigation as a means of political expression and association was protected by the first amendment. 436 U.S. at 426-28, 98 S.Ct. at 1901-02. Also, in Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 531-32 (S.D.Fla.1980). The court explicitly recognized HRC's first amendment right to solicit clients in INS facilities.
The defendants contend that HRC lacks first amendment rights of access to the interdictees based on UkrainianAmerican Bar Association v. Baker, 893 F.2d 1374, 1381 (D.C.Cir.1990), where the UABA challenged the government's refusal to inform Soviet and East Bloc detainees of its willingness to provide free legal services. The court held that the plaintiffs first amendment right of access to potential clients did not establish an affirmative right to the government's interest in providing UABA literature to detainees. Id. at 1382. However, Ukrainian-American Bar Association is distinguishable because, unlike the UABA, HRC is not asserting that its 1573 First Amendment right imposes any affirmative obligation on the *1573 part of defendants. Instead, HRC seeks reasonable and meaningful access that is consistent with the government's time, place and manner restrictions.
Relying on Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), HRC argues that the first amendment serves as a limitation on governmental action wherever that action may occur. In Reid v. Covert, the Court stated that "the United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations of the Constitution." Id. at 5, 77 S.Ct. at 1224. Accordingly, the Court held that United States citizens tried by United States military authorities in a foreign country were entitled to the protections of the fifth and sixth Amendments. Id. at 7-9, 77 S.Ct. at 1225-26.
The defendants argue that in light of United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), HRC cannot rely on Reid v. Covert as establishing its claim to offshore First Amendment protection. We disagree. In Verdugo-Urquidez, the Court simply distinguished Reid as standing for the proposition that only United States citizens, as opposed to aliens, abroad could invoke the protection of the Fifth and Sixth Amendments. 494 U.S. at 270, 110 S.Ct. at 1063. We find a substantial likelihood that HRC, a Florida nonprofit corporation, may invoke constitutional rights abroad under either Reid or Verdugo-Urquidez.
Also, the United States' lease of the land for the Guantanamo Naval Base provides that "during the period of 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 ..." Defendants' Exhibits Opposing Injunctive Relief, Exhibit 9, at 2. We find a substantial likelihood that a United States citizen can invoke the first amendment in an area over which the United States exercises complete jurisdiction.
Having concluded that HRC has asserted a right which falls within the scope of the first amendment, and having found a substantial likelihood that HRC may invoke the protection of the first amendment abroad, particularly in an area controlled by the United States, we now turn to the more difficult question of whether the level of protection afforded by the Constitution gives HRC a right of access to the military facilities.
The "First Amendment does not guaranty access to property simply because it is owned or controlled by the government." United States Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 129, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981). The Eleventh Circuit addressed a newspaper publisher's first amendment right of access to a military base in M.N.C. Hinesville v. U.S. Dept. of Defense, 791 F.2d 1466 (11th Cir.1986). The court stated in determining the level of protection afforded by the first amendment, that two factors determine the burden that the government must shoulder in justifying its restriction of the first amendment activity: the nature of the forum where the speech takes place and the nature of the restriction. Id. at 1472.
The nature of the forum in which a speaker wishes to convey its message is relevant to the government's ability to regulate that speech. For example, in public forums such as streets and parks, the government's ability to restrict speech is at its minimum. However, in nonpublic forums the government enjoys its widest latitude in restricting speech. Id. at 1472-73 (citing Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)). Military bases are generally nonpublic forums. M.N.C. of

Hinesville, 791 F.2d at 1473. The defendants' action of establishing the detainee center at the military base has not converted it into a public forum because it has not opened the base to indiscriminate use by the public. Greer v. Spock, 424 U.S. 828, 835, 96 S.Ct. 1211, 1216, 47 L.Ed.2d 505 (1976) (citing Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972) (military abandoned claim to special interest in street running 1574 through military base by allowing *1574 indiscriminate public use)). The military facilities to which HRC seeks access are clearly a nonpublic forum. However, in order to determine the level of justification that the government must show to sustain its restriction on the asserted first amendment right, we also must examine the nature of the restriction. M.N.C. of Hinesville, 791 F.2d at 1474.
As noted above, the government has wider latitude in regulating speech in non-public forums. In nonpublic forums, the government may subject speech to reasonable content-neutral, time, place and manner restrictions. Id. (citing Perry, 460 U.S. at 46, 103 S.Ct. at 955). In addition to time, place and manner restrictions, the government may reserve the forum for its intended purposes as long as the restriction on speech is reasonable and not an effort to restrain expression because the government opposes the speaker's view. Perry, 460 U.S. at 46, 103 S.Ct. at 955. Because there is no allegation that the defendants' denial of access to the interdictees constitutes viewpoint discrimination, the test is whether the restriction is "reasonable in light of the purpose which the forum at issue serves." Id. at 49, 103 S.Ct. at 957.
In this case, HRC seeks access to that portion of the base which is used for detaining the refugees. The purpose that the forum at issue serves, at least during the present crisis, is to detain interdicted Haitians. Certainly, the government has security and administrative interests in this particular forum; however, the government also has stated that it too has an interest in not wrongfully returning interdictees who qualify for political asylum. We question whether denying HRC access to the interdictees is consistent with that interest and whether the restriction is reasonable in light of the difficulty the government appears to be having in administering adequate procedures for screening the interdictees. Conversely, HRC's interest does not appear to be inconsistent with the government's purpose.
Another factor in determining the reasonableness of a challenged restriction is the existence of alternative means of exercising a first amendment right of the challenged restriction. See Perry, 460 U.S. at 53, 103 S.Ct. at 959; M.N.C. of Hinesville, 791 F.2d at 1476; see also, Jean v. Nelson, 727 F.2d at 983 (finding that challenged restrictions on HRC's access to Haitians did not "amount to an absolute denial of access"). Under the extraordinary circumstances of this case, HRC has no alternative means of exercising the particular first amendment right asserted, the right of access to the interdicted refugees. The gravity of HRC's asserted right of access and the lack of alternative means of exercising that right is highlighted by the likelihood that some of the interdictees returned to Haiti will face persecution or even death 0907 the very result HRC desires to prevent by exercising its right to associate with these individuals.
Concededly, we have reservations about HRC's right of access to a military installation. Nevertheless, in light of the factors discussed above and the highly unusual circumstances of this case, we are not convinced that the challenged restriction is reasonable. Accordingly, we find that HRC has demonstrated a substantial likelihood that it will succeed on its first amendment claim 0907 especially where it seeks only reasonable access consistent with the government's reasonable time, place and manner restrictions.
(3) Remaining Claims
With respect to plaintiffs' remaining claims 0907 under the fifth amendment, Executive Order 12324 and guidelines promulgated pursuant thereto, the Refugee Act of 1980, the Immigration and Nationality Act, and the Administrative Procedure Act 0907 without, of course, adjudicating the claims on the merits, we find no substantial likelihood that the rights asserted are judicially enforceable under the present circumstances.
First, plaintiffs allege that defendants' interdiction and repatriation procedure violates the fifth amendment to the United States Constitution's guarantee of due process of law. Aliens who successfully enter the United States are 1575 entitled to *1575 due process protections with respect to immigration matters. See Jean v. Nelson, 727 F.2d 957, 967 (11th Cir.1984) (en banc). However, the United States Supreme Court "has long held that an alien seeking admission to the United States requests a privilege and has no constitutional rights regarding his application."

Landon v. Plascencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982); Jean, 727 F.2d at 967 (holding that aliens outside United States have no rights under U.S. Constitution). Based on this binding precedent, HRC's fifth amendment argument must fail.
Second, plaintiffs assert the violation of rights arising under the Refugee Act of 1980, see 8 U.S.C. § 1521, and the Immigration and Nationality Act, see 8 U.S.C. § 1253. A review of the relevant statutes reveals that HRC's claims must fail because the statutory rights and protections asserted are reserved, by the very terms of the statutes, to aliens within the United States. See 8 U.S.C. § 1158(a) (providing for establishment of procedures only for aliens "physically present in the United States or at a land border or port of entry"); id. §§ 1251, 1253(a) (providing deportation provisions only for aliens "in the United States"). Courts making the present inquiry have uniformly determined that Haitians interdicted on the high seas are unentitled to the rights and protections arising under the Refugee Act of 1980 and the Immigration and Nationality Act. See, e.g., Haitian Refugee Center, Inc. v. Gracey, 600 F.Supp. 1396, 1403-04 (D.C.D.C. 1985), aff'd on other grounds, 809 F.2d 794 (D.C.Cir.1987).
Third, plaintiffs argue that defendants' actions violate Executive Order 12324, which, as discussed earlier, provides that "no person who is a [political] refugee will be returned without his [or her] consent," and that the Attorney General shall take all steps necessary "to ensure ... the strict observance of our international obligations concerning those who genuinely flee persecution in their homeland." Plaintiffs also contend that defendants' actions violate the INS Guidelines promulgated pursuant to the Executive Order. Based on binding precedent, we find no substantial likelihood that a judicially enforceable right arises from either the Executive Order, see Farkas v. Texas Instrument, Inc., 375 F.2d 629, 632-33 (5th Cir.1967) (declining to find that executive order creates right of action), or from the accompanying INS Guidelines, see Pasquini v. Morris, 700 F.2d 658, 662 (11th Cir.1983) (holding that "[t]he internal operating procedures of the INS are for the administrative convenience of the INS only"); Dong Sik Kwon v. INS, 646 F.2d 909, 918-19 (5th Cir.1981) (stating that INS operations instructions "do not have the force of law"). But see Nicholas v. Immigration and Naturalization Service, Inc., 590 F.2d 802, 806 (9th Cir.1979) (determining that INS guideline "far more closely resembles a substantive provision for relief than an internal procedural guideline").
Fourth and finally, plaintiffs contend that the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq., provides a source of judicially enforceable rights. Based upon our review of the law, however, we find that HRC has failed to show a substantial likelihood that the APA would provide the relief sought, primarily because it appears that the actions in question are "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). The statutory provision under which the interdiction program is principally carried out provides the following:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose upon the entry of aliens any restrictions he may deem to be appropriate.
8 U.S.C. § 1182(f). By this provision, Congress has delegated to the President extremely broad discretion to act. Moreover, because exercise of this discretion is not limited to circumstances defined in the statute, but rather is 1576 geared to Executive *1576 "find[ings]" and what is "deem[ed]" necessary or appropriate, the statute provides no discernable standards by which this court can review the challenged actions under the APA. See CC Distributors, Inc. v. United States, 883 F.2d 146, 153-54 (D.C.Cir.1989); Greenwood Utilities Comm'n v. Hodel, 764 F.2d 1459, 1464 (11th Cir.1985).
2. Irreparable Injury to Plaintiff
We next consider whether plaintiffs have demonstrated a substantial threat of irreparable injury if the injunction does not issue. In sum, plaintiffs argue that in the absence of injunctive relief, they and their class members will be returned to Haiti, where they stand to be persecuted on account of their political opinion. The government responds that the Haitians already are provided a meaningful opportunity to present any political asylum claims, and therefore that no irreparable injury would occur. The government also notes that defendants "ensure that the international committee of the Red Cross is notified to meet the returning [Haitian] migrants upon arrival." Leahy

Statement at 4. Based on the evidence, we have no difficulty finding that plaintiffs have demonstrated a substantial threat of irreparable injury in the absence of an injunction.
The most substantial threat of injury facing plaintiffs in the absence of injunctive relief is loss of liberty or death at the hands of Haiti's military on the account of plaintiffs' political beliefs. The related threat in the absence of an injunction, which causes the threat of death, is that defendants' process of screening political asylum claims will continue to fall short of the procedures provided in the Guidelines. A quick review of the depositions of the individual plaintiffs, which the court finds credible, illustrates these danger. The court notes that all the individual plaintiffs described below were interdicted at sea and, despite having substantial political asylum claims, were "screened out" and not allowed to continue the application process. Plaintiff Raymond Edme was a member of a pro-Aristide youth organization; he fled Haiti after he learned the military had come to his home searching for him. Raymond Edme Deposition at 12. Plaintiff Roland Providence, a long-time Aristide supporter, was a delegate responsible for monitoring polling places during the 1990 election; he fled Haiti after learning from his brothers that the military shot up his house looking for him. Roland Providence Deposition at 17. Plaintiff Eric Pierre was a member of Haiti's National Front for Change to Democracy (FNCD), the political coalition supporting Aristide; he fled by sea based on warnings that the army was about to arrest him and the fact that the army had previously been to his home and sprayed it with bullets, killing his father. Eric Pierre Deposition at 7, 11, 22. Plaintiff Golbert Miracle resided with mother and aunts, with whom he worked for the FNCD. On November 8, 1991, a dozen soldiers came to their home. Miracle's mother, who was in the courtyard in the front of the home, was shot to death by the soldiers. Miracle's aunt and sisters were arrested by the soldiers and their whereabouts are unknown. Golbert Miracle Deposition at 5-10, 27. Plaintiff Roland Jean was a member of the "Komite Ti-Legliz" (Committee of Small Churches), which constituted an important segment of national support for Aristide. On November 5, 1991, Haitian police forcibly arrested his father, also a known Aristide supporter. Jean managed to escape arrest and fled Haiti. Roland Jean Declaration at 7, 8, 21.
The circumstances described above strongly suggest that plaintiffs have well-founded fears of political persecution if returned to Haiti. The related threat in the absence of an injunction, which directly leads to the above-described threat of death, is that defendants' process of screening political asylum claims will continue to fall short of standards rendering the process meaningful. Certainly, an INS officer following the INS Guidelines' mandate to "be constantly watchful for any indication (including bare claims) that a person ... may qualify as [a] refugee" would be substantially unlikely to screenout, during the preliminary questions, the persons described above.
1577 *1577 Indeed, the circumstances recounted by the plaintiffs above suggest that some INS screeners are failing to follow the INS Guidelines. Raymond Edme, for example, after telling his screener that the military was searching for him on account of his political affiliation, was not ever asked about the nature of this affiliation. Raymond Edme Deposition at 8-9. Roland Providence, the long-time Aristide supporter and polling-place delegate whose house was shot up by members of the military looking for him, was rushed through his interview and not given an opportunity to explain his story in any detail. Roland Providence Deposition at 19. Eric Pierre, the FNCD member whose father was killed by a military search party which sprayed Pierre's home with bullets, was not asked about his FNCD membership or otherwise given an opportunity to state his claim in any detail. Eric Pierre Deposition at 5, 13-20. Golbert Miracle, whose mother was shot and killed and aunt and sisters were arrested and disappeared, apparently on the basis of their affiliation with a group to which Miracle belonged, was given only three minutes to state his claim; moreover, even before the interview started, his interviewer said "`Everybody comes here and talks about one thing, politics, politics. Whatever you do, you are going to be sent back. Whatever you do.'" Golbert Miracle Deposition at 16 (quoting interviewer); id. at 21-22. Plaintiff Roland Jean, the member of "Komite Ti-Legliz" who managed to escape arrest when Haitian police forcibly arrested his father, was informed by his interpreter that he would be sent back to Haiti because he lacked proper respect for the military. Roland Jean Deposition at 14. An additional way in which the screening process falls short of meaningful review, e.g., compliance with the INS Guidelines, is due to interviewers' not informing the interdictees of the purpose of the interviews. Pierre Delios Declaration at 13.
Defendants attempt to minimize the harms advanced by plaintiffs in two ways. First, they point to follow-up procedures designed to monitor repatriated Haitians and to verify their safety. For example, defendants advance the notion that the repatriated Haitians are entrusted to the care of the Haitian Red Cross. See Aronson

Declaration. However, the Haitian Red Cross is not a member of the International Red Cross and is not independent of government interference and pressure. See Jocelyn McCalla Declaration at 12. Indeed, the head of the Haitian Red Cross, Dr. William Fougere, was only recently appointed by the military regime. Id. Moreover, "[t]he Haitian military considers persons who fled Haiti by boat after the coup to be Aristide partisans, enemies of the military." Declaration of Jean-Claude Jean (soldier in Haitian Armed Forces) at 3. Second, defendants assert that the screening procedures presently in place keep low the risk of repatriating Haitians with bona fide political asylum claims. However, as discussed above, the procedures presently in place appear substantially inadequate.
We find that the individual plaintiffs have shown a substantial threat that the absence of injunctive relief will cause the most irreparable type of injuries. This threat also exists with respect to the potential class members. See, e.g., Yvette Dieudonne Declaration at 2; Pierre Delios Declaration at 3, 5. The threat also creates an additional one 0907 an adverse effect on HRC's first amendment rights to counsel and associate. Though extradition of aliens "is always a harsh measure, it is all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country." Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 1222, 94 L.Ed.2d 434 (1987). Accordingly, plaintiffs have shown a substantial threat of irreparable injury and therefore met the second test required for issuance of preliminary injunctive relief.
3. Balance of Injury
We next consider whether plaintiffs have shown that the threatened injury to plaintiff outweighs the threatened harm an injunction may cause defendants. As discussed above, the threatened injury to plaintiffs is significant. In 1578 the absence of a preliminary injunction, hundreds of Haitians *1578 may be returned to Haiti to face possible political persecution. Such a result will adversely affect not only the claims and lives of the Haitians, but also the HRC's first amendment rights to counsel and associate. Against this threatened injury we must balance the harm an injunction will cause defendants, who allege three types of harm. First, defendants assert that an order prohibiting the repatriation of any Haitians will cause the expenditure of millions of dollars. Second, they contend that requiring the use of Coast Guard cutters to house Haitians precludes the cutters' use for other important tasks, such as the interdiction of illegal drugs, the enforcement of fisheries laws, and the execution of search and rescue missions. Finally, defendants assert that the use of Guantanamo Bay to house Haitians whom the defendants are enjoined from repatriating risks fouling diplomatic relations between the United States and Cuba.
The court does not take these harms lightly. Nevertheless, for two reasons the court determines that plaintiffs have demonstrated that the balance of harm weighs in their favor. First, the injunctive relief provided herein is alternative. Defendants are enjoined from repatriating Haitians only until such time as the court reaches the merits of the underlying lawsuit or defendants implement and follow procedures, such as the INS Guidelines, which are adequate to ensure that class members are not forcefully returned to a country where, on account of their political opinion, their life and liberty are threatened by a brutal and illegitimate military regime. In other words, the harm advanced by defendants would be ameliorated were defendants to implement and follow adequate procedures, such as those provided by the INS Guidelines, for screening potential asylum applicants.
Second, the court finds that the largely liberty- and life-implicating threats of injury to plaintiffs outweigh the largely financial threat of harm to defendants. Cf. Federation of Japan Salmon Fisheries Coop. Ass'n v. Baldridge, 679 F.Supp. 37, 48 (D.D.C.1987) (involving balancing of economic harm); DiDomenico v. Employers Coop. Indus. Trust, 676 F.Supp. 903, 908 (N.D.Ind.1987) (recognizing importance of sanctity of life). Moreover, to the extent that the other harms alleged by defendants are nonfinancial, they are largely speculative.
4. Disservice to Public Interest
Finally, we determine that plaintiff has demonstrated that granting the injunction will not disserve the public interest. Indeed, the injunction requested will serve the public interest. The public undoubtedly has an interest in the United States' living up to its international obligations, particularly where the failure to live up to those obligations might result in the loss of life and liberty by political refugees fleeing a country ruled by a brutal and illegitimate military regime. Cf. DiDomenico, 676 F.Supp. at 908 (noting that "[w]ith respect to public interest, it

suffices to state that the interest in the sanctity and quality of life is paramount"). This public interest is particularly strong where the people facing such persecution have risked their lives to support a democratic movement in a country that had not experienced democracy in over 200 years.
D. CONCLUSION
For the foregoing reasons, the court determines that plaintiffs are entitled to the requested injunctive relief. Accordingly, defendants are hereby enjoined from forcefully repatriating the individual plaintiffs or class members in their custody either until the merits of the underlying action are resolved or until defendants implement and follow procedures, such as those contained in the INS Guidelines, adequate to ensure that Haitians with bona fide political asylum claims are not forced to return to Haiti in violation of Article 33 of the Protocol. To this end, within seven days defendants shall submit to the court a recital of the procedures to be followed.
The court again stresses that the relief provided herein does not grant plaintiffs entry to this country, but merely 1579 prohibits their forced return to Haiti until the court reaches the merits of the underlying lawsuit *1579 or
defendants implement and follow procedures adequate to ensure that plaintiffs and class members are not forcefully returned to a country where their life and liberty are threatened on account of their political opinion.
Finally, plaintiff HRC, a not-for-profit corporation, shall post a personal bond in the amount of $5,000 by 5 p.m. on Wednesday, December 4, 1991, in conformity with Rule 65(c), Federal Rules of Civil Procedure. The individual plaintiffs and class members, in light of their inaccessibility, are not required to post security, the court finding that the posting of bond by HRC satisfies the mandate of Rule 65(c).
DONE AND ORDERED.
[1] By separate order, the court earlier today granted the following motions of HRC: Motion for Leave to File Supplemental Pleading and Second Amended Complaint; and Motion to Maintain the Amended Complaint for Declaratory and Injunctive Relief as the Class Action on Behalf of Plaintiffs.
[2] HRC is a non-profit membership corporation located in Miami, Florida. The HRC's purpose, as set forth in its Bylaws, is to promote the well-being of Haitian refugees through appropriate programs and activities, including legal representation of Haitian refugees. It has in the past brought lawsuits and procedures and practices of the Immigration and Naturalization Service (INS) in processing Haitian refugee applications and has been recognized by the INS as a source of legal counsel for indigent Haitians. The HRC's membership includes Haitian refugees seeking political asylum in the United States.
[3] Defendants' argument appears to draw from the following formulation of causation advanced by Judge Bork:
[There is] a heavy presumption that causation is too speculative if injury or redress depends upon the independent action of a third party not before the court, a presumption that in the absence of a legal prohibition can be overcome by both a demonstration that the purpose of the law or governmental action was to prevent the relationship between the litigant and the third party and a convincing demonstration of a "substantial probability" that the third party would otherwise have entered into the alleged relationship with the litigant.
Gracey, 809 F.2d at 805. Judge Bork concluded that even the existence of an official INS referral policy was not sufficient to show causation because the "interdiction program was not designed to interfere with HRC's counseling of Haitian refugees." Id. at 807.
Because Judge Bork's formulation appears to state a new rule of causation that is not supported by any of the Supreme Court cases addressing the issue, we do not follow it here. For a well-reasoned criticism of Judge Bork's approach, see Kahaner, Separation of Powers and the Standing Doctrine: the Unwarranted Use of Judicial Restraint, 56 Geo.Wash.L.Rev. 1074, 1087 (1988).
[4] We note that there is a difference, albeit a subtle one, between asserting the rights of a third party and an association suing on behalf of its members. See Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Because we find that HRC has standing in its own right and

standing to assert the interests of its members, we do not reach the question of whether it satisfies the associational standing test set forth in Hunt.
[5] The Supreme Court has recognized third party standing much more readily where the litigant asserts its own rights and alleges injuries to itself. See e.g., Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 80, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978), where the Supreme Court held that standing existed despite the fact that the litigant's claim implicated the rights of third parties:
Where a party champions his own rights and where the injury alleged is a concrete and particularized one which will be prevented or redressed by the relief requested, the basic practical and prudential concerns underlying the standing doctrine are generally satisfied when the constitutional requisites are met.
Id. at 80-81, 98 S.Ct. at 2634. HRC champions its own rights in this litigation and, as discussed above, it has satisfied all of the constitutional requisites for standing.
[6] In Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), the Supreme Court refused to adjudicate claims by enemy aliens who were convicted of violating laws of war in China after Germany had surrendered. The Court found that resolution of the claims were committed to resolution by the political branches because the claims basically challenged the propriety of United States military action in China. Id. at 789, 70 S.Ct. at 949.
[7] These considerations are the following:
[T]he impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; of an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Baker v. Carr, 369 U.S. at 217, 82 S.Ct. at 710.
[8] For sake of clarity, the court will refer to the Convention Articles incorporated into the Protocol as Articles of the Protocol.
[9] Ensuring compliance with international obligations, the Guidelines continue, includes "the necessity of being keenly attuned during any interdiction program to any evidence which may reflect an individual's well-founded fear of persecution by his or her country of origin for reasons of ... political opinion." Id.
[10] HRC also states that "such Haitians have a correlative First Amendment right. Memorandum in Support of Motion for Preliminary Injunction at 36. HRC argues that Kleindienst v. Mandel 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) does not support defendants' argument that excluded aliens have no first amendment rights. Rather, Kleindienst holds only that aliens have no first amendment right of entry. Id. at 762, 92 S.Ct. at 2581 (holding that while United States citizens could assert first amendment right to hear and speak and meet with excluded alien, alien had no constitutional right of entry). However, the United States Supreme Court held early on that excluded aliens may not assert First Amendment Rights. United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904) (holding that alien could not assert first amendment right of freedom of speech because "those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise."). Compare Bridges v. Wixon, 326 U.S. 135, 148, 65 S.Ct. 1443, 1449, 89 L.Ed. 2103 (1945) (holding that resident aliens have first amendment rights). Also, the Court recently emphasized that aliens generally receive constitutional protections only when they have come within United States territory and developed substantial connections with this country. United States v. VerdugoUrquidez, 494 U.S. 259, 271, 110 S.Ct. 1056, 1064, 108 L.Ed.2d 222 (1990).
[11] Significantly, the Supreme Court has recognized a first amendment right to associate with an excluded alien. Kleindienst v. Mandel, 408 U.S. 753, 765, 92 S.Ct. 2576, 2582, 33 L.Ed.2d 683 (1972). However, in Kleindienst v. Mandel, the Supreme Court decided the narrow issue of whether the first amendment conferred upon the plaintiff professors the ability to compel the Attorney General to admit a nonresident alien with whom they wished to

speak, debate and hear in person. 408 U.S. at 753, 92 S.Ct. at 2576. The Court held that where the Attorney General has a "facially legitimate and bona fide reason" not to waive the statutory exclusion of an alien, "the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant." Id. at 769-70, 92 S.Ct. at 2372.
The defendants argue that Kleindienst governs this case. However, as noted above, the Court there addressed only the very narrow issue of whether the plaintiffs could assert their first amendment right to compel the entry of an alien. Unlike the plaintiffs in Kleindienst, HRC does not seek an order compelling the entry of the interdicted Haitians. Consequently, we conclude that Kleindienst does not control this case. Moreover, even if the Kleindienst standard did apply in this case, we are not convinced that the defendants have advanced a "facially legitimate and bona fide reason" for excluding the Haitian refugees.
In Kleindienst, the facially legitimate and bona fide reason for exclusion offered by the Attorney General was prior abuse of visa privileges, namely, that the alien's activities in the United States during a prior visit "went far beyond the stated purposes of his trip, on the basis of which his admission had been authorized and represented a flagrant abuse of the opportunities afforded to him to express his views in this country." Id. at 758-59, 769, 92 S.Ct. at 2579-80, 2585. Unlike the Attorney General in Kleindienst, the government has offered no "facially legitimate, bona fide reason" for returning the interdicted Haitians. In fact, if the very process by which the government could ascertain any facially legitimate, bona fide reason is as defective as the plaintiff alleges, it might be impossible for the government to offer such a reason.
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 789 F.Supp. 1579 (1991)
HAITIAN REFUGEE CENTER, INC., et al., Plaintiffs, v.
James BAKER, III, et al., Defendants.
No. 91-2653-CIV.
United States District Court, S.D. Florida.
December 20, 1991.
Ira J. Kurzban, Kurzban, Kurzban, Weinger, PA, Miami, Fla., for plaintiffs.
Dexter Lee, Asst. U.S. Atty., Miami, Fla., for defendants.
ORDER GRANTING LIMITED PRELIMINARY INJUNCTIVE RELIEF
ATKINS, Senior District Judge.
THIS CAUSE comes before the court on plaintiffs' requests that the court do the following: first, enter supplemental findings of fact and conclusions of law in support of the December 17, 1991 "Temporary 1580 Restraining Order" (TRO) presently on appeal before the Eleventh Circuit Court of *1580 Appeals; second, order defendants preliminarily to allow plaintiffs' lawyers access under the first amendment to the interdicted Haitian class members; and third, prohibit defendants preliminarily from forcefully repatriating Haitians in their custody either until the court reaches the merits of the other remaining claims in the Amended Complaint or until defendants implement and follow procedural safeguards adequate to ensure that Haitians with bona fide claims of political persecution are not forcefully returned to Haiti in violation of domestic and international law.
I. BACKGROUND
The relevant procedural background can be summarized as follows. On December 3, 1991, this court granted plaintiffs' first application for preliminary injunctive relief. The basis of that ruling was the court's finding a substantial likelihood that defendants' actions in carrying out an Executive program providing for the interdiction and repatriation of Haitians on the high seas violated the following two justiciable, judicially enforceable rights: the class members' right of non-refoulement, arising under Article 33 of the 1967 United Nations Protocol Relating to the Status of Refugees; and HRC's right of association and counsel, arising from the first amendment to the United States Constitution. As bases for granting the first application for preliminary injunctive relief, the court also found that plaintiffs had demonstrated a substantial threat of suffering irreparable, even fatal, injury in the absence of an injunction; that this threatened injury outweighed the potential harm an injunction would have caused defendants; and that the injunction would not have been adverse to the public interest. See Order Granting Preliminary Injunctive Relief and Supporting Memorandum Opinion (hereafter "Memorandum Opinion") at 55-62.
Based on these findings, the court granted the following injunctive relief:
defendants are hereby enjoined from forcefully repatriating the individual plaintiffs or class members in their custody either until the merits of the underlying action are resolved or until defendants implement and follow procedures, such as those contained in the INS Guidelines, adequate to ensure that Haitians with bona fide political asylum claims are not forced to return to Haiti in violation of Article 33 of the Protocol.
Id. at 62. Immediately thereafter, defendants appealed to the Eleventh Circuit Court of Appeals.

In a two-to-one decision issued on December 17, 1991, the Court of Appeals dissolved the injunction and remanded the case back to this court, with instructions to dismiss the claims predicated on Article 33 of the Protocol. The primary basis of the majority's ruling was a determination that "Article 33 is not self-executing and thus provides no enforceable rights to the Haitian plaintiffs in this case." December 17, 1991 Per Curiam Opinion at 3. The majority also concluded that because the injunctive relief provided did not redress HRC's first amendment right of access to the class members, that right alone could not support the relief granted. Id. at 4. Having found no substantial likelihood of success on the Article 33 claim 0907 the primary basis of this court's injunction 0907 the Court of Appeals' three-page per curiam opinion did not disturb this court's findings regarding the threat of irreparable harm to plaintiffs, the balance of harms, or disservice to the public interest.[1]
Within hours of the Court of Appeals' dissolution of the preliminary injunction on Tuesday, December 17, plaintiffs filed an Emergency Motion for Issuance of Temporary Restraining Order Based Upon the APA (Emergency 1581 Motion for TRO). In essence, the motion requested that, in light of *1581 the thorough briefing in the Court of Appeals, this court reconsider its previous ruling finding no likelihood of success on the APA grounds and enter a TRO. At approximately 10:00 p.m. on Tuesday, December 17, this court orally granted, on the APA grounds pending a hearing set for Friday, December 27, 1991, a TRO maintaining the status quo, i.e., enjoining defendants from repatriating interdicted class members.[2] This court also denied defendants's oral Emergency Motion for Stay of the TRO Pending Appeal. On Wednesday, December 18, defendants filed with the Eleventh Circuit Court of Appeals an appeal of the TRO. Defendants also filed an Emergency Motion for Stay [of the TRO] Pending Appeal Or, In the Alternative, for Summary Reversal or for Writ of Mandamus. At approximately 8:00 p.m. on Thursday, December 19, 1991, the Court of Appeals stayed and suspended pending appeal this court's TRO, deeming the TRO to be an appealable preliminary injunction.
Earlier today 0907 Friday, December 20, 1991 0907 plaintiffs once again asked this court for relief. As noted above, plaintiffs request that this court do the following: first, enter supplemental findings of fact and conclusions of law in support of the December 17, 1991 "TRO" presently on appeal before the Eleventh Circuit Court of Appeals; second, order defendants to allow plaintiffs' lawyers access under the first amendment to the interdicted Haitian class members; and third, prohibit defendants from forcefully repatriating Haitians in their custody either until the court reaches the merits of the remaining claims in the Amended Complaint or until defendants implement and follow adequate screening procedures. We address these requests in return.
II. SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW
A majority of the Eleventh Circuit Court of Appeals has determined that this court's December 17, 1991 TRO was, in effect, a preliminary injunction. Accordingly, an appeal of that preliminary injunction is before the Court of Appeals, where it is stayed and suspended pending appeal. This court had only several hours to consider the propriety of entering the December 17 preliminary injunction. Due to this fact, and in order to aid appellate review, this court finds it appropriate to describe briefly the basis, both legal and factual, for that ruling.[3]
A necessary basis for the court's ruling was the determination that three of the four elements required to obtain a preliminary injunction remained clearly tilted in plaintiffs' favor. Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555, 1561-62 (11th Cir.1989), aff'd, ___ U.S. ___, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) (setting forth requirements for preliminary injunctive relief). First, the court determined that plaintiffs had clearly demonstrated a substantial threat of suffering irreparable injury in the absence of an injunction. See Memorandum Opinion at 55-60. Worsening political conditions in Haiti since issuance of the Memorandum Opinion underscore this very serious threat. See, e.g., Affidavit of William G. O'Neill at para. 10 (describing persecution of Haitians upon their return to Haiti by defendants); id. at para. 6 (describing persecution of Haitians involved in grass-roots, prodemocracy organizations). Second, the court determined that plaintiffs had demonstrated that this threatened injury outweighed the potential harm an injunction would have caused the defendants. See Memorandum Opinion at 60-61. Third, the court determined that the injunction would not disserve the public interest. See id. at 61-62.

1582 This court's fourth determination regarding the propriety of issuing a preliminary injunction was that plaintiffs had *1582 demonstrated a substantial likelihood of prevailing on their claims under the APA. As suggested in the footnote on page one, the court's December 17 order concluded that the challenged actions are not committed to agency discretion by law within the meaning of 5 U.S.C. § 701(a). See State of Florida, Dep't of Business Regulation v. United States Dep't of Interior, 768 F.2d 1248, 1255 (11th Cir.1985) (holding that "[t]his exception to judicial review is a narrow one that must be clearly demonstrated before it can be invoked"). To be sure, this court's December 3 order determined that plaintiffs had not shown a likelihood of prevailing under the APA; this determination was made in light of Congress' broad grant of discretion to the President in establishing the interdiction program. See Memorandum Opinion at 54-55. However, on December 17, having the benefit of the more thorough briefing before the Court of Appeals, we recognized the significant distinction between the President's discretion in establishing the program and subordinates' discretion or lack thereof in following program procedures and guidelines. Whereas a court reviewing the President's actions in establishing the interdiction program would have no meaningful standards against which to measure the actions, a court reviewing the actions of subordinates in carrying out the program would have such standards. Compare 8 U.S.C. § 1182(f) (statutorily authorizing Executive Order 12324) with INS Operating Procedures. Accordingly, the court determined that the challenged actions do not fall within the "committed to agency discretion" exception to APA review.
A final basis of the court's December 17 preliminary injunction meriting explanation was the further determination that plaintiffs had shown a substantial likelihood that the challenged actions in fact violated the APA. As that statute provides, a court may review "final agency action for which there is no other adequate remedy in a court," 5 U.S.C.A. § 704, and "shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [or found to be] ... without observance of procedure required by law," id. § 706 (emphasis added). A review of the previously developed factual record clearly reveals a substantial likelihood that the actions of defendants' subordinates, in carrying out the interdiction program, are arbitrary or without observance of procedure required by law. See Memorandum Opinion at 55-60 (describing serious deficiencies of interview process as described by plaintiffs).
III. FIRST AMENDMENT RIGHT TO ACCESS
Without disturbing this court's conclusion that HRC had established a likelihood of prevailing on its first amendment claim,[4] the Eleventh Circuit held that the first amendment claim could not support the injunctive relief granted in this court's prior order. The majority found that the relief granted 0907 a ban on repatriation 0907 did not address the right of access asserted by HRC. December 17, 1991 Per Curiam Opinion at 4. HRC now reasserts its first amendment right of access to the interdicted Haitians and requests a remedy which does address that right.
For the reasons set forth in this court's Memorandum Opinion, we reaffirm our conclusion that HRC has established a substantial likelihood of success on the merits of its first amendment claim.[5]See Jean v. Nelson, 727 F.2d 957, 983 (11th Cir.1984); In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Furthermore, HRC may invoke its first amendment rights in an offshore area over which the United States has jurisdiction and control. See United States v. Verdugo1583 Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990); Reid v. Covert, *1583 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957).
In this court's December 3, 1991 Memorandum Opinion, we expressed concern regarding HRC's right of access to a military installation. Nevertheless, given HRC's lack of alternative means of exercising its first amendment right and the fact that HRC's interest would further the government's interest in assuring that no political refugee was wrongfully repatriated, we were not convinced that the challenged restriction on access was reasonable. Additional facts presented at today's hearing reinforce this position. First, the portions of the military installation to which HRC seeks access are not used for military purposes; they serve the non-military function of detaining refugees. Second, the government has opened the camps to members of the press and to representatives of the United Nations High Commission on Refugees. Finally, the additional evidence regarding the conditions in Haiti,

see section II, magnifies the importance of HRC's right of access because of the increased likelihood that interdictees returned to Haiti will face persecution or death. The severity of these consequences weighs heavily in favor of permitting HRC to exercise its first amendment right to counsel its members before they are repatriated.
The Eleventh Circuit majority held that the prior relief granted 0907 a complete ban on repatriation 0907 was overly broad with respect to the first amendment claim:
The injunctive relief granted by the district court does not require the defendants to allow HRC access to the Haitian interdictees, it enjoins the defendants from repatriating them. Because the relief granted does not address the right of access asserted by HRC, the First Amendment claim cannot support the injunction.
December 17, 1991 Per Curiam Opinion at 4. Consistent with the majority's holding, we now attempt to fashion a remedy which directly addresses the first amendment right of access. Rather than a complete ban on repatriation, we find that a reasonable delay in returning the interdicted Haitians is necessary to give HRC an opportunity to exercise its first amendment right of access to the class members. Accordingly, defendants will be ordered to grant plaintiffs' counsel meaningful access, before repatriation, to the interdicted class members, subject to reasonable, contentneutral, time, place and manner restrictions.
IV. INJUNCTIVE RELIEF ON OTHER GROUNDS
Finally, the court considers plaintiffs' application for injunctive relief based on other enforceable rights, i.e., Executive Order 12324, the Immigration and Nationality Act, and the Refugee Act of 1980. On December 3, 1991, without determining the merits, this court denied relief on those bases. Since that time, the court has had the opportunity to review the additional, more thorough briefing filed with this court and the Eleventh Circuit Court of Appeals. As a result of this review, the court determines that the questions of the judicial enforceability of these rights are very close ones. However, for the reasons set forth in the December 3, 1991 order, the court determines that plaintiffs have not shown a substantial likelihood of prevailing on the merits of these claims. Accordingly, they provide no basis for an injunction against repatriation.
V. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
First, plaintiffs' request that the court enter findings of fact and conclusions of law in support of its December 17, 1991 preliminary injunction based on the APA is GRANTED as set forth in section II;
Second, for the reasons described in section III, plaintiffs' request for an injunction ordering defendants' to grant plaintiffs' lawyers access to the interdicted class members is GRANTED as follows: defendants shall grant 1584 plaintiffs' counsel meaningful access to its interdicted class members, before repatriation, subject to reasonable, *1584 content-neutral, time, place and manner restrictions;
Third, plaintiffs' request for injunctive relief based on grounds previously asserted, i.e., Executive Order 12324, the Immigration Act, and the Refugee Act of 1980, is DENIED for the reasons set forth in section IV;
Finally, no motions for stay of this order pending appeal will be entertained in the district court from any party.
DONE AND ORDERED.
[1] In a fifteen-page dissent, Circuit Judge Hatchett concluded that this court properly issued the injunction. Id. at 1, 77 S.Ct. 1222 (Hatchett, J., dissenting). Judge Hatchett also disagreed with the majority's refusal to consider whether the APA was an appropriate basis for upholding the injunction, which he apparently thought was the case. See id. at 4 (per curiam majority) (stating that "Judge Hatchett, in dissent, would uphold the issuance of the preliminary injunction on the basis of the APA claim").

[2] This TRO did not preclude the return of class members who, as determined by representatives of the United Nations High Commissioner on the Status of Refugees, wished to be returned to Haiti.
[3] In light of the Court of Appeals' December 19, 1991 per curiam majority opinion, this court is constrained to decline plaintiffs' invitation again to consider granting injunctive relief on the basis of the APA.
[4] Additionally, in remanding the case the Eleventh Circuit instructed this court to dismiss, on the merits, only those claims predicated on Article 33.
[5] As noted above, we reaffirm our findings and conclusions as to the remaining three prerequisites for a preliminary injunction.
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 Haitian Refugee Center, Inc. v. Baker, Not Reported in F.Supp. (1991)

1991 WL 330942 Only the Westlaw citation is currently available.
United States District Court, S.D. Florida.
HAITIAN REFUGEE CENTER, INC., a not-for-profit corporation, Plaintiff, v.
James BAKER, III, Secretary of State, Rear Admiral Robert Kramek, and Admiral Kime, Commandants, United States Coast Guard, Gene
McNary, Commissioner, Immigration and Naturalization Service, the United States Department of Justice, Immigration and Naturalization Service, and the United States of
America, Defendants.
No. 91–2653–CIV–ATKINS. | Nov. 19, 1991.
Opinion
TEMPORARY RESTRAINING ORDER
GRAHAM, District Judge.
*1 THIS CAUSE came before the Court upon Plaintiff’s emergency application for a temporary restraining order to prevent Defendants from returning to Haiti, Haitians intercepted and/or in the care, custody and control of the United States Coast Guard. Presently, the Haitians are being detained on the high seas and at the U.S. Coast Guard Base at Guantanamo Bay, Cuba.
THE COURT has considered the Motion, argument of counsel, and the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED that the said Application

is GRANTED. Defendants are precluded from continuing to repatriate Haitians currently on board U.S.-flagged vessels and Haitians currently being held on land under United States’ control and at Guantanamo Bay, Cuba until further order, to maintain the status quo.
Due to the importance of the matters presented and the exigent circumstances surrounding this case, additional consideration on the issue of standing is critical. Therefore, it is further
ORDERED AND ADJUDGED that Plaintiff’s counsel shall, within five (5) days from the date of this Order, file a memorandum of law discussing whether Plaintiff has standing to file suit on behalf of the Haitians that have been intercepted by the United States Coast Guard, and addressing the following elements required for the issuance of a temporary restraining order:
1. that there is a substantial likelihood that Plaintiff will prevail on merits;
2. that there is a substantial threat that Plaintiff will suffer irreparable injury if the injunction is not granted;
3. that threatened injury to Plaintiff outweighs threatened harm the injunction may do to Defendant; and
4. that granting preliminary injunction will not disserve the public interest.
Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555, 1561–1562 (11th Cir.1989) (listing factors for granting injunctive relief), aff’d, 111 S.Ct. 888 (1991). Defendants shall file a reply memorandum of law within two (2) days of the filing of Plaintiff’s memorandum. The Court will then determine the appropriateness of granting continuing or further injunctive relief.
	  

1

 
 Haitian Refugee Center, Inc. v. Baker, Not Reported in F.Supp. (1991)

1991 WL 330944 Only the Westlaw citation is currently available.
United States District Court, S.D. Florida.
HAITIAN REFUGEE CENTER, INC., et al, Plaintiffs, v.
James BAKER, III, et al, Defendants.
No. 91–2653–CIV–ATKINS. | Dec. 18, 1991.
Opinion
ORDER MEMORIALIZING ORAL RULINGS
ATKINS, Senior District Judge.
*1 At approximately 10:00 p.m. on December 17, 1991, following a telephonic conference with counsel, this court made rulings on the following two motions: first, plaintiffs’ Emergency Motion for Issuance of Temporary Restraining Order Based Upon the Administrative Procedure Act (APA); and second, defendants’ Emergency Motion for Stay of Temporary Restraining Order Pending Appeal. Upon consideration of the motions and the relevant law, it was
ORDERED AND ADJUDGED that plaintiffs’ Emergency Motion for Temporary Restraining Order (TRO) is GRANTED, for the following reasons. First, plaintiffs have demonstrated a substantial likelihood of prevailing on their claims under the APA.1 Second, plaintiffs have demonstrated a substantial threat that they will suffer irreparable, even fatal, injury if the TRO is not granted. Third, plaintiffs have shown that this threat outweighs the potential harm the TRO would cause defendants. Finally, plaintiffs have shown that the TRO would not disserve the public interest. Accordingly, in an

effort to preserve the status quo pending the preliminary injunction hearing provided for below, defendants are hereby temporarily restrained from forcefully repatriating plaintiffs and class members in their custody.2
It was further ORDERED AND ADJUDGED that defendants’ Emergency Motion for Stay of the Temporary Restraining Order Pending Appeal is DENIED for the reasons set forth above.
Finally, it was ORDERED AND ADJUDGED that a hearing on this matter will be held on Friday, December 20, 1991, at 10:00 a.m., in Courtroom 4, Federal Courthouse Square, 301 North Miami Ave, Miami, Florida. Each side will have thirty (30) minutes for argument.

1

The court recognizes its previous determination that

plaintiffs had not shown a likelihood of prevailing

under the APA. That determination was based on

Congress’ broad grant of discretion to the President in

establishing the interdiction program. However, the

court now has the benefit of the thorough briefing of

the APA issue before the Eleventh Circuit Court of

Appeals, as well as the Court of Appeals’ December

17, 1991 per curiam opinion. In this new light, the court

now finds a substantial likelihood of success, based in

part on the distinction between the President’s

discretion in establishing the program and subordinates’

discretion or lack thereof in following program

procedures and guidelines.

2

This TRO does not preclude the return of class

members who, as determined by representatives of the

United Nations High Commissioner on the Status of

Refugees, wish to be returned to Haiti.

	  

1

 
 Haitian Refugee Center, Inc. v. Baker, Not Reported in F.Supp. (1991)

1991 WL 330943 Only the Westlaw citation is currently available.
United States District Court, S.D. Florida.
HAITIAN REFUGEE CENTER, INC., et al, Plaintiffs, v.
James BAKER, III, et al, Defendants.
No. 91–2635–CIV–ATKINS. | Dec. 23, 1991.
Opinion
ORDER SUPPLEMENTING DECEMBER 20, 1991 ORDER GRANTING LIMITED PRELIMINARY INJUNCTIVE RELIEF
ATKINS, Senior District Judge.
*1 THIS CAUSE comes before the court on plaintiffs’ December 23, 1991 Emergency Motion for Entry of Supplemental Order supplementing this court’s December 20, 1991 Order Granting Limited Preliminary Injunctive Relief. Upon consideration of the Emergency Motion, this court’s December 3, 1991 Order Granting Preliminary Injunctive Relief and Supporting Memorandum Opinion (except to the extent based upon Article 33 claims in the Amended Complaint), this court’s December 20, 1991 Order Granting Limited Preliminary Injunctive Relief, and the findings and conclusions set forth in each of them, it is
ORDERED AND ADJUDGED that plaintiffs’ December

23, 1991 Emergency Motion for Entry of Supplemental Order is granted. Accordingly, it is further
ORDERED AND ADJUDGED that plaintiffs’ prior request for injunctive relief based on the Administrative Procedure Act (APA) is granted as follows: defendants are hereby enjoined from forcefully repatriating the individual plaintiffs or class members in their custody either until the merits of the underlying action are resolved or until defendants implement and follow procedures, such as those contained in the INS Guidelines, adequate to ensure that Haitians with bona fide political asylum claims are not forced to return to Haiti in violation of law.1 Finally, it is
ORDERED AND ADJUDGED that the injunctive relief set forth in the preceding paragraph is stayed and suspended pending appeal, pursuant to Rule 62(c), Federal Rules of Civil Procedure.

1

The court notes that this paragraph provides for relief

that a majority of the Eleventh Circuit Court of Appeals

voted to stay in the Circuit Court’s December 19, 1991

stay order. By the express terms of this court’s

December 17 and 18, 1991 orders, however, that relief

was effective only pending the 10:00 a.m. hearing on

Friday, December 20, 1991. Accordingly, it appears

that the APA-based injunction—entered by this court

on December 17, clarified by this court on December

18, suspended by the Eleventh Circuit on December 19,

and further clarified by this court on December

20—was moot as of the end of the hearing on Friday,

December 20, 1991.

	  

1

 
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U.S. District Court Southern District of Florida (Miami) CIVIL DOCKET FOR CASE #: 1:91-cv-02653-CCA

CLOSED

Haitian Center, Inc., et al v. Baker, et al Assigned to: Judge C. Clyde Atkins Demand: $0 Cause: 28:1331 Federal Question Special Master Donald Bierman Plaintiff Haitian Refugee Center, Inc.
V. Defendant Secretary of State James Baker, III
Defendant Rear Admiral Robert Kramek
Defendant

Date Filed: 11/19/1991 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by Ira Jay Kurzban Kurzban Kurzban Weinger & Tetzeli 2650 SW 27th Avenue 2nd Floor Miami, FL 33133 305-444-0060 Fax: 444-3503 Email: ira@kkwtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dexter Lee United States Attorney's Office 99 NE 4 Street Miami, FL 33132 305-961-9320 Fax: 530-7139 Email: dexter.lee@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dexter Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Admiral Kime Commandant, United States Coast Guard
Defendant Commisioner Gene McNary Immigration & Naturalization Service
Defendant United States Department of Justice
Defendant United States Department of Immigration and Naturalization Service
Defendant United States
Plaintiff Roland Providence
Plaintiff Moise Charles
Plaintiff Eric Pierre
Plaintiff

https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?866532631993265-L_92...
represented by Dexter Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dexter Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dexter Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dexter Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dexter Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Raymond Edme
Plaintiff Golbert Miracle
Plaintiff Roland Jean
Plaintiff Roosevelt Alexis
Plaintiff Luc Luxembourg Sanon
Plaintiff Leger Pierre Frantz
Plaintiff Ochel Engerril
Plaintiff Jean Michel Mario Avilus
Plaintiff
3 of 17

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represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Archille Belvu
Plaintiff Lucien Rozier
Plaintiff Emmanuel Saintil
Plaintiff Codanser Joseph on behalf of themselves and all other similarly situated

represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ira Jay Kurzban (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/19/1991 11/19/1991 11/19/1991 11/19/1991 11/19/1991 11/19/1991
11/19/1991

#

Docket Text

1 COMPLAINT filed; FILING FEE $ 120.00 RECEIPT # 604924 A-7 Mag BLG (vp, Deputy Clerk) (Entered: 11/21/1991)
Magistrate identification: Magistrate Judge Barry L. Garber (vp, Deputy Clerk) (Entered: 11/21/1991)
2 SUMMONS(ES) issued for James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States (vp, Deputy Clerk) (Entered: 11/21/1991)
3 MOTION by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States for temporary restraining order (vp, Deputy Clerk) (Entered: 11/21/1991)
4 MEMORANDUM by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States in support of [3-1] motion for temporary restraining order (vp, Deputy Clerk) (Entered: 11/21/1991)
5 ORDER granting [3-1] motion for temporary restraining order. Defendants precluded from continung to repatriate Haitians currently aboard U.S. vessels until further order setting Memo of Law due for 11/25/91 ( signed by Judge Donald L. Graham on 11/19/91) CCAP (vp, Deputy Clerk) (Entered: 11/21/1991)
1 MOTION by Haitian Center, Inc. for preliminary injunction (vp, Deputy Clerk) Modified on 12/09/1991 (Entered: 12/09/1991)

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11/20/1991 11/20/1991 11/20/1991 11/20/1991 11/20/1991 11/20/1991 11/20/1991 11/20/1991 11/21/1991
11/21/1991 11/21/1991 11/21/1991

6 MOTION by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States for leave to file memorandum in excess of 20 pages (vp, Deputy Clerk) (Entered: 11/21/1991)
7 MOTION by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States to vacate [5-1] temporary restraining order , or to stay order pending appeal (vp, Deputy Clerk) (Entered: 11/21/1991)
8 AFFIDAVIT of Captain J. David Spade Re: [7-1] motion to vacate [5-1] temporary restraining order, [7-2] motion to stay order pending appeal (vp, Deputy Clerk) (Entered: 11/21/1991)
9 AFFIDAVIT of Rear Admiral William P. Leahy, Jr. Re: [7-1] motion to vacate [5-1] temporary restraining order, [7-2] motion to stay order pending appeal (vp, Deputy Clerk) (Entered: 11/21/1991)
10 AFFIDAVIT of Leon Jennings Re: [7-1] motion to vacate [5-1] temporary restraining order, [7-2] motion to stay order pending appeal (vp, Deputy Clerk) (Entered: 11/21/1991)
11 AFFIDAVIT of Bernard W. Aronson Re: [7-1] motion to vacate [5-1] temporary restraining order, [7-2] motion to stay order pending appeal (vp, Deputy Clerk) (Entered: 11/21/1991)
13 MOTION by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States for emergency Hearing and to shorten time to respond (vp, Deputy Clerk) Modified on 11/25/1991 (Entered: 11/21/1991)
12 AFFIDAVIT of Robert K. Wolthuis Re: [7-1] motion to vacate [5-1] temporary restraining order (vp, Deputy Clerk) (Entered: 11/25/1991)
14 ORDER denying [13-1] motion for emergency Hearing and to shorten time to respond, denying [7-1] motion to vacate [5-1] temporary restraining order, denying [7-2] motion to stay order pending appeal, granting [6-1] motion for leave to file memorandum in excess of 20 pages, setting hearing in aid of judgment for 3:00 11/27/91 before Judge C. C. Atkins , and expediting discovery ( signed by Judge C. C. Atkins on 11/21/91) CCAP (vp, Deputy Clerk) Modified on 11/25/1991 (Entered: 11/21/1991)
15 NOTICE OF APPEAL by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States from Omnibus Order entered 11/21/91. Fee Status: paid (Copies to USCA & Attorneys of record) (vp, Deputy Clerk) Modified on 11/25/1991 (Entered: 11/21/1991)
Certified copies of Notice of Appeal, Docket, and Order under appeal to USCA: [14-1] appeal by United States, Immigration and Nat., U.S. Dept. Justice, Gene McNary, Kime, Robert Kramek, James Baker III transmitted to USCA. (vp, Deputy Clerk) (Entered: 11/22/1991)
NOTICE of Receipt of Transmittal Letter from USCA Re: [14-1] appeal by United States, Immigration and Nat., U.S. Dept. Justice, Gene McNary, Kime, Robert Kramek, James Baker III USCA NUMBER: 91-6028 (vp, Deputy Clerk) (Entered: 11/22/1991)

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11/21/1991 11/21/1991
11/21/1991 11/21/1991 11/21/1991 11/21/1991 11/21/1991 11/21/1991 11/21/1991 11/21/1991 11/21/1991 11/21/1991 11/21/1991 11/21/1991 11/22/1991 11/22/1991

16 ORDER OF USCA ON PETITION FOR WRIT OF MANDAMUS (certified copy), temporarily staying discovery proceedings until further order of this court (vp, Deputy Clerk) Modified on 11/25/1991 (Entered: 11/22/1991)
17 AMENDED COMPLAINT as of right to verified complaint by Haitian Center, Inc. , (Answer due 12/2/91 for United States, for Immigration and Nat., for U.S. Dept. Justice, for Gene McNary, for Kime, for Robert Kramek, for James Baker III ) amending [1-1] complaint (vp, Deputy Clerk) (Entered: 11/25/1991)
18 NOTICE of filing copy of amended complaint filed in state court by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States (vp, Deputy Clerk) (Entered: 11/25/1991)
19 NOTICE by Haitian Center, Inc. to take deposition of Capt. J. Daivid Spade (vp, Deputy Clerk) (Entered: 11/25/1991)
20 NOTICE by Haitian Center, Inc. to take deposition of John Baker 11/21/91 at 9:30 (vp, Deputy Clerk) (Entered: 11/25/1991)
21 NOTICE by Haitian Center, Inc. to take deposition of William P. Leahy, Jr. 11/21/91 at 7:00 (vp, Deputy Clerk) (Entered: 11/25/1991)
22 NOTICE by Haitian Center, Inc. to take deposition of Bernard Aaronson 11/21/91 at 9:00 (vp, Deputy Clerk) (Entered: 11/25/1991)
23 NOTICE by Haitian Center, Inc. to take deposition of Leon Jennings 11/21/91 at 8:00 (vp, Deputy Clerk) (Entered: 11/25/1991)
24 NOTICE by Haitian Center, Inc. to take deposition of All Haitian Refugees on Coast Guard Cutters and at Guantanamo Naval Base on 11/22/91 at 9:00 (vp, Deputy Clerk) (Entered: 11/25/1991)
25 NOTICE by Haitian Center, Inc. to take deposition of Gregory Byer 11/21/91 at 8:00 (vp, Deputy Clerk) (Entered: 11/25/1991)
26 REQUEST for Production of Documents by Haitian Center, Inc. (vp, Deputy Clerk) (Entered: 11/25/1991)
27 MOTION with memorandum in support by Haitian Center, Inc. to expedite discovery (vp, Deputy Clerk) (Entered: 11/25/1991)
28 MEMORANDUM by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States in opposition to [27-1] motion to expedite discovery (vp, Deputy Clerk) (Entered: 11/25/1991)
29 MOTION by National Broadcasting Company and WTVJ-TV for access to deposition in Guantanamo Bay, Cuba (vp, Deputy Clerk) (Entered: 11/25/1991)
30 NOTICE of filing copies of declarations in support of motion to vacate stay by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States (vp, Deputy Clerk) (Entered: 11/25/1991)
31 NOTICE of joinder in motion for access to deposition in Guantanamo Bay, Cuba by Miami Herald Publishing Company. (vp, Deputy Clerk) (Entered: 11/25/1991)

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11/22/1991 11/22/1991 11/22/1991 11/22/1991 11/22/1991
11/22/1991
11/22/1991
11/22/1991
11/23/1991 11/23/1991 11/23/1991

32 NOTICE of attorney appearance for National Broadcast, WTVJ by Teresa Davenport (vp, Deputy Clerk) (Entered: 11/25/1991)
33 RESPONSE by Haitian Center, Inc. to [29-1] motion by National Broadcast and WTVJ for access to deposition in Guantanamo Bay, Cuba (vp, Deputy Clerk) (Entered: 11/25/1991)
34 MOTION with memorandum in support to intervene by Post-Newsweek , and for order granting access to Haitian depositions &/or interviews (vp, Deputy Clerk) (Entered: 11/25/1991)
35 RESPONSE by Haitian Center, Inc. to [34-1] motion to intervene by Post-Newsweek, [34-2] motion for order granting access to Haitian depositions &/or interviews (vp, Deputy Clerk) (Entered: 11/25/1991)
36 RESPONSE by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States to [34-1] motion to intervene by Post-Newsweek, [34-2] motion for order granting access to Haitian depositions &/or interviews, [29-1] motion by National Broadcast & WTVJ-TV for access to deposition in Guantanamo Bay, Cuba (vp, Deputy Clerk) (Entered: 11/25/1991)
37 NOTICE OF APPEAL by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States from Temporary Restraining Order entered 11/21/91. Fee Status: not required (Copies to USCA & Attorneys of record). (vp, Deputy Clerk) Modified on 11/25/1991 (Entered: 11/25/1991)
38 JUDGMENT OF USCA (certified copy) dismissing [15-1] appeal for want of jurisidiction. USCA views district court's order as temporary restraining order and not a preliminary injunction. Petition for writ of mandamus is denied. and temporary stay of discovery is LIFTED. (vp, Deputy Clerk) Modified on 12/10/1991 (Entered: 11/25/1991)
39 ORDER Referring Motion(s) [34-1] motion to intervene by Post-Newsweek, [34-2] motion for order granting access to Haitian depositions &/or interviews, and [29-1] motion for access to deposition in Guantanamo Bay, Cuba referred to Magistrate Judge Barry L. Garber ( signed by Judge C. C. Atkins on 11/22/91) (vp, Deputy Clerk) (Entered: 12/04/1991)
40 NOTICE of joinder in motion for access to deposition in Guantanamo Bay, Cuba by CBS, Inc., WCIX-Channel 6 (vp, Deputy Clerk) (Entered: 12/04/1991)
41 ORDER APPOINTING Special Master to handle all matters pertaining to depositions taken in Guantanamo Bay, Cuba ( signed by Magistrate Judge Barry L. Garber on 11/23/91 & confirmed by Judge C. Clyde Atkins on 11/23/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
42 ORDER granting in part, denying in part [34-1] motion to intervene, [34-2] motion for order granting access to Haitian depositions &/or interviews, & [29-1] motion for access to deposition in Guantanamo Bay, Cuba. One representative from the media will be allowed to attend depositions. No cameras will be allowed. Voluntary interviews may be conducted and transcripts of all depositions will be immediately prepared and made available to all interested

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11/23/1991
11/24/1991 11/24/1991 11/24/1991 11/24/1991 11/24/1991 11/24/1991 11/24/1991 11/24/1991 11/24/1991 11/24/1991 11/24/1991 11/24/1991 11/24/1991 11/24/1991 11/25/1991
11/25/1991

parties. ( signed by Magistrate Judge Barry L. Garber on 11/23/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
NOTICE of Receipt of Transmittal Letter from USCA Re: [37-1] appeal by United States, Immigration and Nat., U.S. Dept. Justice, Gene McNary, Kime, Robert Kramek, James Baker III USCA NUMBER: 91-6049 (vp, Deputy Clerk) (Entered: 12/10/1991)
43 STIP & ORDER pertaining to scheduled discovery ( signed by Judge C. C. Atkins on 11/24/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
44 STIP & ORDER pertaining to scheduled dicovery ( signed by Judge C. C. Atkins on 11/24/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
45 STIP & ORDER pertaining to scheduled discovery ( signed by Judge C. C. Atkins on 11/24/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
46 STIP & ORDER pertaining to scheduled disocvery ( signed by Judge C. C. Atkins on 11/24/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
47 STIP & ORDER pertaining to scheduled discovery ( signed by Judge C. C. Atkins on 11/24/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
48 STIP & ORDER pertaining to scheduled discovery ( signed by Judge C. C. Atkins on 11/24/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
49 STIP & ORDER pertaining to scheduled discovery ( signed by Judge C. C. Atkins on 11/24/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
50 STIP & ORDER pertaining to scheduled discovery ( signed by Judge C. C. Atkins on 11/24/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
51 STIP & ORDER pertaining to scheduled discovery ( signed by Judge C. C. Atkins on 11/24/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
52 STIP & ORDER pertaining to scheduled discovery ( signed by Judge C. C. Atkins on 11/24/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
53 STIP & ORDER p[ertaining to scheduled discovery ( signed by Judge C. C. Atkins on 11/24/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
54 STIP & ORDER pertaining to scheduled discovery ( signed by Judge C. C. Atkins on 11/24/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
55 STIP & ORDER pertaining to scheduled discovery ( signed by Judge C. C. Atkins on 11/24/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
56 STIP & ORDER pertaining to scheduled discovery ( signed by Judge C. C. Atkins on 11/24/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
Certified copies of Notice of Appeal, Docket, and Order under appeal transmitted to USCA: [37-1] appeal by United States, Immigration and Nat., U.S. Dept. Justice, Gene McNary, Kime, Robert Kramek, James Baker III (vp, Deputy Clerk) (Entered: 11/25/1991)
MOTION by National Broadcast, WTVJ, Miami Herald, CBS, Inc., WCIX-Channel 6 for clarification of [42-1] order on depositions (vp, Deputy

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11/25/1991 11/26/1991 11/27/1991
11/27/1991 11/29/1991 11/29/1991 11/29/1991 11/29/1991 11/29/1991 11/29/1991 11/29/1991 11/29/1991 12/02/1991 12/02/1991 12/02/1991 12/02/1991

Clerk) (Entered: 12/04/1991)
83 MOTION by National Broadcast for clarification of [42-1] order (cf, Deputy Clerk) (Entered: 12/09/1991)
57 NOTICE of adoption of motion for clarification of deposition order by Post-Newsweek Inc., Post-Newsweek (vp, Deputy Clerk) (Entered: 12/04/1991)
58 ORDER granting [0-0] motion for clarification of [42-1] order on depositions. Clarifying order in that the use of videos or still cameras are also restricted by applicable military regulations currently in force at various deposition sites. ( signed by Magistrate Judge Barry L. Garber on 11/26/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
59 NOTICE of filing exhibits re: Res Judicata & Collateral Estoppel by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States (vp, Deputy Clerk) (Entered: 12/04/1991)
60 MOTION by Haitian Center, Inc. to compel production of documents (vp, Deputy Clerk) (Entered: 12/04/1991)
61 MOTION by Haitian Center, Inc. for leave to file memorandum in excess of 20 pages (vp, Deputy Clerk) (Entered: 12/04/1991)
62 MEMORANDUM by Haitian Center, Inc. in support of [1-1] motion for preliminary injunction (vp, Deputy Clerk) (Entered: 12/04/1991)
63 NOTICE of filing exhibits in further support of motion for preliminary injunction by Haitian Center, Inc. (vp, Deputy Clerk) (Entered: 12/04/1991)
64 AFFIDAVIT of Robert E. Juceam by Haitian Center, Inc. Re: [63-1] notice filing exhibits in support of motion for preliminary injunction (vp, Deputy Clerk) (Entered: 12/04/1991)
65 MEMORANDUM by Haitian Center, Inc. in opposition to [12-1] affidavit of Robert K. Wolthuis. (vp, Deputy Clerk) (Entered: 12/04/1991)
66 MEMORANDUM by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States in opposition to [1-1] motion for preliminary injunction (vp, Deputy Clerk) (Entered: 12/04/1991)
67 EXHIBITS filed by Defendants in opposition to injunctive relief. (vp, Deputy Clerk) (Entered: 12/04/1991)
68 NOTICE of filing photographs taken on U.S. ships docked at Guantanamo Bay, Cuba by Haitian Center, Inc. (vp, Deputy Clerk) (Entered: 12/04/1991)
69 NOTICE of filing second declaration of Jocelyn McCalla by Haitian Center, Inc. (vp, Deputy Clerk) (Entered: 12/04/1991)
70 NOTICE of filing original deposition transcripts by Haitian Center, Inc. (NOTE23 transcripts listed but not attached to notice-sent directly to chambers) (vp, Deputy Clerk) (Entered: 12/04/1991)
71 Report of Special Master: by Donald Bierman (vp, Deputy Clerk) (Entered: 12/04/1991)

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12/02/1991 12/02/1991 12/02/1991 12/02/1991 12/02/1991 12/02/1991
12/02/1991 12/02/1991 12/02/1991 12/02/1991 12/03/1991 12/03/1991
12/03/1991
12/03/1991

72 MOTION by Haitian Center, Inc. for leave to file supplemental pleading , and for leave to file second amended complaint (vp, Deputy Clerk) (Entered: 12/04/1991)
73 MEMORANDUM by Haitian Center, Inc. in support of [72-1] motion for leave to file supplemental pleading, [72-2] motion for leave to file second amended complaint (vp, Deputy Clerk) (Entered: 12/04/1991)
SECOND AMENDED COMPLAINT ADDING ADDITIONAL NAMED PLAINTIFFS (vp, Deputy Clerk) (Entered: 12/04/1991)
74 MOTION by Haitian Center, Inc. to maintain the amended complaint as a class action on behalf of plaintiffs (vp, Deputy Clerk) (Entered: 12/04/1991)
75 MEMORANDUM by Haitian Center, Inc. in support of [74-1] motion to maintain the amended complaint as a class action on behalf of plaintiffs (vp, Deputy Clerk) (Entered: 12/04/1991)
76 MEMORANDUM by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States in opposition to [60-1] motion to compel production of documents (vp, Deputy Clerk) (Entered: 12/04/1991)
77 REPLY MEMORANDUM by Haitian Center, Inc. in support of [1-1] motion for preliminary injunction (vp, Deputy Clerk) (Entered: 12/04/1991)
78 MEMORANDUM by Haitian Center, Inc. in further support of [62-1] support memorandum (vp, Deputy Clerk) (Entered: 12/04/1991)
Text not available. (Entered: 12/04/1991)
78 MEMORANDUM by Haitian Center, Inc. in opposition to [66-1] opposition memorandum (vp, Deputy Clerk) (Entered: 12/04/1991)
79 NOTICE of filing original transcript of deposition of Bernard Aronson with transcript attached by Haitian Center, Inc. (vp, Deputy Clerk) (Entered: 12/04/1991)
80 ORDER granting [1-1] motion for preliminary injunction, ENJOINING defendants from forcefully repatriating plaintiffs until merits of underlying action have been resolved or until defendants implement and follow procedures outlined in the INS Guidelines and ensure that plaintiffs with bona fide political asylum claims are not forced to return to Haiti in violation of Article 33 of the Protocol and REQUIRING Plaintiff (HRC) to post a personal Bond in the amount of $50,000.00 by 12/4/91 pursuant to Rule 65(c) ( signed by Judge C. C. Atkins on 12/3/91) CCAP (vp, Deputy Clerk) (Entered: 12/04/1991)
81 NOTICE OF APPEAL by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States from Order Granting Preliminary Injunctive Relief entered 12/4/91. Fee Status: not required (Copies to USCA and Attorneys of record) (vp, Deputy Clerk) (Entered: 12/04/1991)
82 EMERGENCY MOTION by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States to stay

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12/04/1991 12/04/1991 12/05/1991 12/06/1991 12/06/1991 12/06/1991 12/06/1991
12/06/1991
12/09/1991 12/09/1991 12/10/1991 12/10/1991

preliminary injunction pending appeal (vp, Deputy Clerk) (Entered: 12/04/1991)
84 BOND $ 5,000.00 postedd by Haitian Center, Inc. pursuant to Court order of 12/3/91. (vp, Deputy Clerk) (Entered: 12/10/1991)
NOTICE of Receipt of notice of appeal from USCA Re: [37-1] appeal by United States, Immigration and Nat., U.S. Dept. Justice, Gene McNary, Kime, Robert Kramek, James Baker III USCA NUMBER: 91-6049 (Former Deputy Clerk) Modified on 12/13/1991 (Entered: 12/13/1991)
NOTICE of Receipt of Transmittal Letter from USCA Re: [81-1] appeal by United States, Immigration and Nat., U.S. Dept. Justice, Gene McNary, Kime, Robert Kramek, James Baker III USCA NUMBER: 91-6060 (vp, Deputy Clerk) (Entered: 12/10/1991)
85 NOTICE of submitting documents for in camera inspection by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration and Nat., United States (vp, Deputy Clerk) (Entered: 12/10/1991)
86 NOTICE of filing documents for in camera inspection by Immigration and Nat. (vp, Deputy Clerk) (Entered: 12/10/1991)
87 NOTICE of filing original declarations previously filed by facsimile by Immigration and Nat. (vp, Deputy Clerk) (Entered: 12/10/1991)
88 ORDER granting [74-1] motion to maintain the amended complaint as a class action on behalf of plaintiffs, granting [72-1] motion for leave to file supplemental pleading, granting [72-2] motion for leave to file second amended complaint ( signed by Judge C. C. Atkins on 12/3/91) CCAP (vp, Deputy Clerk) (Entered: 12/10/1991)
89 SECOND AMENDED COMPLAINT by Haitian Center, Inc. , (Answer due 12/16/91 for United States, for Immigration and Nat., for U.S. Dept. Justice, for Gene McNary, for Kime, for Robert Kramek, for James Baker III ) amending [17-1] amended complaint adding Roland Providence, Moise Charles, Eric Pierre, Raymond Edme, Golbert Miracle, Roland Jean, Roosevelt Alexis, Luc Luxembourg Sanon, Leger Pierre Frantz, Ochel Engerril, Jean Michel Mario Avilus, Archille Belvu, Lucien Rozier, Emmanuel Saintil, Codanser Joseph (vp, Deputy Clerk) (Entered: 12/10/1991)
90 ORDER denying [82-1] motion to stay preliminary injunction pending appeal ( signed by Judge C. C. Atkins on 12/9/91) CCAP (vp, Deputy Clerk) (Entered: 12/10/1991)
91 NOTICE of filing documents for in camera inspection by All Defendants (vp, Deputy Clerk) (Entered: 12/18/1991)
Transmitted interlocutory record on appeal to U.S. Court of Appeals: consisting of 3 volumes of pleadings and 1 accordian folder of exhibits in re: [81-1] appeal by United States, Immigration and Nat., U.S. Dept. Justice, Gene McNary, Kime, Robert Kramek, James III (vp, Deputy Clerk) (Entered: 12/10/1991)
92 NOTICE of filing exhibits to declaration of Robert S. Gelbard by All Defendants (vp, Deputy Clerk) (Entered: 12/18/1991)

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12/10/1991 12/16/1991 12/16/1991 12/16/1991 12/18/1991 12/18/1991 12/18/1991
12/18/1991 12/18/1991
12/18/1991 12/19/1991 12/20/1991
12/20/1991

93 RESPONSE by All Defendants to [80-1] order REQUIRING defendant to submit a recital of procedures used in processing interdicted Haitian migrants. (vp, Deputy Clerk) (Entered: 12/18/1991)
94 MOTION by All Plaintiffs for defendants to produce prescreening interview records (vp, Deputy Clerk) (Entered: 12/18/1991)
95 NOTICE by All Plaintiffs to take deposition of several witnessess on 12/21/91 (vp, Deputy Clerk) (Entered: 12/18/1991)
96 MOTION by All Plaintiffs to expedite dicovery (vp, Deputy Clerk) (Entered: 12/18/1991)
EMERGENCY MOTION in open court by All Plaintiffs for temporary restraining order based upon Administrative Procedure Act (APA) (vp, Deputy Clerk) (Entered: 12/18/1991)
EMERGENCY MOTION in open court by All Defendants to stay temporary restraining order pending appeal (vp, Deputy Clerk) (Entered: 12/18/1991)
97 ORDER denying [0-0] emergency motion to stay temporary restraining order pending appeal, granting [0-0] emergency motion for temporary restraining order based upon Administrative Procedure Act (APA), setting hearing in aid of judgment for 10:00 12/20/91 before Judge C. C. Atkins ( signed by Judge C. C. Atkins on 12/18/91) CCAP (vp, Deputy Clerk) (Entered: 12/18/1991)
98 NOTICE OF APPEAL by All Defendants from oral order entered 12/17/91. Fee Status: not required (Copies to USCA & Attorneys of record). (vp, Deputy Clerk) (Entered: 12/18/1991)
99 AMENDED NOTICE OF APPEAL by All Defendants from order Memorializing oral rulings entered 12/18/91. Fee Status: not required (Copies to USCA & Attorneys of record) (vp, Deputy Clerk) Modified on 12/20/1991 (Entered: 12/20/1991)
NOTICE of Receipt of Transmittal Letter from USCA Re: [99-1] appeal by All Defendants, [98-1] appeal by All Defendants USCA NUMBER: 91-6099 (vp, Deputy Clerk) (Entered: 12/26/1991)
100 MEMORANDUM by All Defendants in opposition to [97-1] order contradicting Eleventh Circuit mandate (vp, Deputy Clerk) (Entered: 12/20/1991)
101 ORDER GRANTING All Plaintiffs' request for entry of findings of fact and conclusions of law in support of 12/17/91 preliminary injuction based on APA; GRANTING All Plaintiffs' request for acess to its interdicted class members befroe repatriation ; DENYING All Plaintiff's request for injunction based on Executive Order 12324, Immigration Act and Refugee Act of 1980; NO motions for stay of this order will be entertained by the District Court ( signed by Judge C. C. Atkins on 12/20/91) CCAP (vp, Deputy Clerk) (Entered: 12/23/1991)
102 NOTICE OF APPEAL by All Defendants from Order Granting Limited Preliminary Injunctive Relief entered 12/23/91. Fee Status: not required (Copies to USCA & Attorneys of record) (vp, Deputy Clerk) (Entered: 12/23/1991)

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12/20/1991 12/20/1991 12/20/1991 12/23/1991
12/23/1991
12/23/1991 12/23/1991 12/23/1991 12/23/1991 12/23/1991 12/23/1991
12/23/1991
12/26/1991 12/27/1991

103 MEMORANDUM by All Defendants in opposition to [96-1] second motion to expedite dicovery (vp, Deputy Clerk) (Entered: 12/23/1991)
104 MOTION with memorandum in support by All Defendants to dismiss case (vp, Deputy Clerk) (Entered: 12/23/1991)
NOTICE of Receipt of Transmittal Letter from USCA Re: [102-1] appeal by All Defendants USCA NUMBER: 91-6099 (vp, Deputy Clerk) Modified on 02/10/1992 (Entered: 12/26/1991)
105 JUDGMENT OF USCA (certified copy) DISSOLVING preliminary injuction and REMANDING cause to District Court with instructions to dismiss claims predicated on Article 33. Record to be returned at a later date. (91-6060) (vp, Deputy Clerk) Modified on 12/26/1991 (Entered: 12/23/1991)
106 NOTICE OF CROSS-APPEAL by All Plaintiffs from 12/20/91 Order to the extent that it does not grant relief under the Executive Order 12324, the Immigration Act and the Refugee Act of 1980. Fee Status: paid Receipt # 606213 (copies to USCA & Attorneys of record) (vp, Deputy Clerk) (Entered: 12/23/1991)
107 REPLY by All Plaintiffs to [103-1] opposition to second motion to expedite discovery (vp, Deputy Clerk) (Entered: 12/23/1991)
108 EMERGENCY MOTION by All Plaintiffs for entry of supplemental order (vp, Deputy Clerk) (Entered: 12/23/1991)
NOTICE of Receipt of Transmittal Letter from USCA Re: [106-1] cross-appeal by All Plaintiffs USCA NUMBER: 91-6105 (vp, Deputy Clerk) (Entered: 12/26/1991)
109 ORDER OF USCA (certified copy), consolidating cases 91-6099 and 91-6105 and DENYING appellee's alternative petition for writ of mandamus. (vp, Deputy Clerk) Modified on 02/10/1992 (Entered: 12/26/1991)
110 EMERGENCY MOTION by All Plaintiffs for entry of supplement to 12/20/91 court order (vp, Deputy Clerk) Modified on 12/26/1991 (Entered: 12/26/1991)
111 ORDER granting [110-1] motion for entry of supplement to 12/20/91 court order granting [1-1] motion for preliminary injunction based on the administrative Procedure Act (APA ), staying and suspending injunctive relief pending appeal ( signed by Judge C. C. Atkins on 12/23/91) CCAP (vp, Deputy Clerk) Modified on 12/26/1991 (Entered: 12/26/1991)
112 NOTICE OF APPEAL by All Defendants from Order Supplementing 12/20/91 order and Granting limited preliminary injunctive relief . Fee Status: not required (Copies to USCA & Attorneys of record). (vp, Deputy Clerk) Modified on 12/26/1991 (Entered: 12/26/1991)
Certified copies of Notice of Appeal, Docket, and Order under appeal transmitted to USCA: [112-1] appeal by All Defendants (vp, Deputy Clerk) (Entered: 12/26/1991)
NOTICE of Receipt of record on appeal from USCA Re: [81-1] appeal by United States, Immigration and Nat., U.S. Dept. Justice, Gene McNary, Kime, Robert

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12/30/1991 12/31/1991
12/31/1991 12/31/1991 01/07/1992 01/14/1992
01/14/1992 01/16/1992
01/17/1992 01/22/1992 01/27/1992 02/03/1992 02/03/1992 02/05/1992

Kramek, James Baker III USCA NUMBER: 91-6060 (vp, Deputy Clerk) (Entered: 01/09/1992)
113 MOTION by Haitian Center, Inc. to extend time respond to defendants' motion to dismiss (cf, Deputy Clerk) (Entered: 01/06/1992)
114 ORDER granting [113-1] motion to extend time respond to defendants' motion to dismiss, denying as moot [96-1] motion to expedite dicovery, Response to motion to dismiss up to 1/14/92 ( signed by Judge C. C. Atkins on 12//30/91) CCAP (cf, Deputy Clerk) (Entered: 01/07/1992)
116 TRANSCRIPT filed [102-1] appeal by All Defendants for dates of 12/20/91 Pages 1-38. (vp, Deputy Clerk) (Entered: 01/09/1992)
115 NOTICE of filing affidavit and evidentiary materials by All Plaintiffs (vp, Deputy Clerk) (Entered: 01/14/1992)
117 MOTION by All Defendants to stay discovery (vp, Deputy Clerk) (Entered: 01/14/1992)
Transmitted interlocutory record on appeal to U.S. Court of Appeals: [112-1] appeal by All Defendants, [106-1] appeal by All Plaintiffs, [102-1] appeal by All Defendants, [99-1] appeal by All Defendants, [98-1] appeal by All Defendants (vp, Deputy Clerk) (Entered: 01/14/1992)
118 RESPONSE by Haitian Center, Inc. to [117-1] motion to stay discovery (sl, Deputy Clerk) (Entered: 01/23/1992)
NOTICE of Receipt of 1st supplemental record on appeal consisting of 1 volume pleadings and 1 volume transcript from USCA Re: [112-1] appeal by All Defendants, [106-1] appeal by All Plaintiffs, [102-1] appeal by All Defendants, [99-1] by All Defendants, [98-1] appeal by All Defendants USCA NUMBER: 91-6060 & 91-6099 (Former Deputy Clerk) (Entered: 01/30/1992)
119 PLAINTIFF'S appellees further factual submissions in response to defendants-appellants' denial of access to interdicted Haitians (cf, Deputy Clerk) (Entered: 01/28/1992)
120 ORDER denying [117-1] motion to stay discovery ( signed by Judge C. C. Atkins on 1/21/92) CCAP (cf, Deputy Clerk) (Entered: 01/29/1992)
NOTICE of Receipt of notice of appeal from USCA Re: [112-1] appeal by All Defendants USCA NUMBER: 91-6118 (Former Deputy Clerk) Modified on 02/10/1992 (Entered: 01/30/1992)
121 MOTION by Donald Bierman, Special Master to set fee for services and enter order for payment (vp, Deputy Clerk) (Entered: 02/10/1992)
122 ORDER, expediting discovery deposition schedule , and staying for 24 hours this order granting expedited discovery ( signed by Judge C. C. Atkins on 1/31/92) CCAP (vp, Deputy Clerk) (Entered: 02/10/1992)
123 ORDER, granting defendants' ex parte motion for protective order ( signed by Judge C. C. Atkins on 2/5/92) CCAP (vp, Deputy Clerk) (Entered: 02/10/1992)

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02/06/1992 02/06/1992 02/06/1992
02/10/1992 02/10/1992 02/10/1992 02/10/1992 02/11/1992 02/11/1992 02/11/1992 02/11/1992 02/11/1992 02/13/1992 02/13/1992 02/14/1992 02/19/1992

124 NOTICE of filing deposition transcript of John W. Cummings, L.E. Allen, Bernard Williams and William P. Leahy, Jr.by Haitian Center, Inc. (vp, Deputy Clerk) (Entered: 02/10/1992)
125 JUDGMENT OF USCA (certified copy) dismissing [98-1] appeal dismissing [99-1] appeal AS MOOT. (USCA 91-6099) (Copy to Judge). (vp, Deputy Clerk) (Entered: 02/10/1992)
125 JUDGMENT OF USCA (certified copy) VACATING all injunctions issued and REMANDING case to District Court with instructions to dismiss complaint for failure to state a cause upon which relief can be granted. (91-6099 & 91-6118) (Copy to Judge). (vp, Deputy Clerk) Modified on 02/10/1992 (Entered: 02/10/1992)
126 SEALED DOCUMENT placed in vault (vp, Deputy Clerk) (Entered: 02/10/1992)
127 NOTICE of filing deposition transcript by Haitian Center, Inc. (dr, Deputy Clerk) (Entered: 02/11/1992)
128 DEPOSITION transcript of John W. Cummings (dr, Deputy Clerk) (Entered: 02/11/1992)
129 ORDER, Directing parties to Respond to motion reset to 2/17/92 for [121-1] motion to set fee for services and enter order for payment ( signed by Judge C. C. Atkins on 2/7/92) CCAP (vp, Deputy Clerk) (Entered: 02/12/1992)
130 ORDER, that Mandate of USCA is hereby made the order of this court and dismissing case pursuant to mandate issued 2/4/92 ( signed by Judge C. C. Atkins on 2/11/92) CCAP (vp, Deputy Clerk) (Entered: 02/12/1992)
Case closed (vp, Deputy Clerk) (Entered: 02/12/1992)
131 NOTICE of filing deposition Transcript of John W. Cummings and L.E. Allen, Jr. by Haitian Center, Inc. (cf, Deputy Clerk) Modified on 02/13/1992 (Entered: 02/13/1992)
132 DEPOSITION of John W. Cummings on 2/3/92 (cf, Deputy Clerk) (Entered: 02/13/1992)
133 DEPOSITION of L.E. Allen, Jr. on 2/3/92 (cf, Deputy Clerk) Modified on 02/13/1992 (Entered: 02/13/1992)
134 JUDGMENT OF USCA (certified copy), dismissing government's appeal for lack of jurisdiction (91-6049 and DENYING HRC's motion for attorney's fees. (vp, Deputy Clerk) (Entered: 02/19/1992)
135 ORDER VACATING order on Mandate until United States Supreme Court makes a final determination ( signed by Judge Federico A. Moreno for C. Clyde Atkins on 2/13/92) CCAP (cf, Deputy Clerk) (Entered: 02/21/1992)
136 RESPONSE by Haitian Center, Inc. to [121-1] motion to set fee for services and enter order for payment (cf, Deputy Clerk) (Entered: 02/25/1992)
Record on appeal returned from U.S. Court of Appeals: consisting of 5 volumes, 1 envelope and 2 boxes of exhibits in [106-1] appeal by All Plaintiffs, [102-1]

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02/20/1992 03/03/1992 03/06/1992 03/06/1992 03/06/1992 03/16/1992 03/16/1992 03/25/1992
04/02/1992 06/22/1992
06/22/1992

appeal by All Defendants, [99-1] appeal by All Defendants, [98-1] appeal by All Defendants, [81-1] appeal by United States, Immigration, U.S. Dept. Justice, Gene McNary, Kime, Robert Kramek, James Baker III, [37-1] appeal by United States, Immigration, U.S. Dept. Justice, Gene McNary, Kime, Robert Kramek, James Baker III, [15-1] appeal by United States, Immigration, U.S. Dept. Justice, Gene McNary, Kime, Robert Kramek, James Baker III (vp, Deputy Clerk) (Entered: 02/19/1992)
137 OPPOSITION by James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, Immigration, United States to [121-1] motion to set fee for services and enter order for payment (Former Deputy Clerk) (Entered: 02/27/1992)
138 RESPONSE by Donald Bierman Re: Compensation (dr, Deputy Clerk) (Entered: 03/05/1992)
139 MOTION by All Defendants to amend [123-1] order granting defendants' ex parte motion for protective order (mg, Deputy Clerk) (Entered: 03/19/1992)
140 Bill of costs in Amount of $ 294.80 for James Baker III (mg, Deputy Clerk) (Entered: 03/19/1992)
141 Bill of costs in Amount of $ 141.90 for James Baker III (mg, Deputy Clerk) (Entered: 03/19/1992)
142 Bill of costs from USCA in Amount of $ 294.80 (USCA #91-6060) (Former Deputy Clerk) (Entered: 03/31/1992)
143 Bill of costs from USCA in Amount of $ 141.90 (USCA #91-6099) (Former Deputy Clerk) (Entered: 03/31/1992)
144 ORDER, GRANTING motion for extension of time Response to motion reset to 4/6/92 for [121-1] motion to set fee for services and enter order for payment ( signed by Judge C. C. Atkins on 3/25/92) CCAP (cf, Deputy Clerk) (Entered: 05/15/1992)
145 ORDER VACATING paragraph 5 of order of 2/5/92, which ordered defendants to provide non-classidied privilege log to plaintiffs ( signed by Judge C. C. Atkins on 4/2/92) CCAP (cf, Deputy Clerk) (Entered: 05/15/1992)
146 STIPULATION by Haitian Center, Inc., James Baker III, Robert Kramek, Kime, Gene McNary, U.S. Dept. Justice, U.S. - INS, United States, National Broadcast, WTVJ, Miami Herald, Post-Newsweek Inc., Post-Newsweek, CBS, Inc., WCIX-Channel 6, Donald Bierman, Roland Providence, Moise Charles, Eric Pierre, Raymond Edme, Golbert Miracle, Roland Jean, Roosevelt Alexis, Luc Luxembourg Sanon, Leger Pierre Frantz, Ochel Engerril, Jean Michel Mario Avilus, Archille Belvu, Lucien Rozier, Emmanuel Saintil, Codanser Joseph, All Plaintiffs, All Defendants of costs and damages (cf, Deputy Clerk) (Entered: 06/25/1992)
147 ORDER granting [146-1] Stipulation of costs and damages; Each party bear its own attorneys' fees, costs and expenses; Plaintiff haitian Refugee Center, Inc recover $5,000.00 bond signed by Judge C. C. Atkins on 6/22/92) CCAP (cf, Deputy Clerk) (Entered: 06/25/1992)

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08/09/1993

148 ORDER mooting [139-1] motion to amend [123-1] order granting defendants' ex parte motion for protective order, mooting [121-1] motion to set fee for services and enter order for payment ( signed by Judge C. C. Atkins on 8-4-93) CCAP (sk, Deputy Clerk) (Entered: 08/11/1993)

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 949 F.2d 1109 (1991)
HAITIAN REFUGEE CENTER, INC., et al., Plaintiffs-Appellees, v.
James BAKER, III, Secretary of State, Robert Kramek, Rear Admiral, Kime, Admiral, Commandant, United States Coast Guard, Gene McNary, Commissioner, Immigration and
Naturalization Service, United States Department of Justice, Immigration and Naturalization Service, United States of America, Defendants-Appellants.
No. 91-6060.
United States Court of Appeals, Eleventh Circuit.
Rehearing and Rehearing Denied January 28, 1992. December 17, 1991.
1110 *1110 John F. Daly, Michael Jay Singer, Edward T. Swaine, Kenneth W. Starr, Washington, D.C., for defendantsappellants.
Ira Kurzban, Kurzban, Kurzban & Weinger, Miami, Fla., for plaintiffs-appellees.
Before TJOFLAT, Chief Judge, HATCHETT and COX, Circuit Judges.
Rehearing and Rehearing En Banc Denied January 28, 1992.
PER CURIAM:
On December 3, 1991, the district court issued a preliminary injunction prohibiting the defendants, James Baker, III, and others from forcefully repatriating Haitians in their custody. The defendants appeal. The appeal has been expedited and is now ripe for decision on the merits.
The district court's order granting the preliminary injunction was grounded on a finding that there was a substantial likelihood that the plaintiffs would prevail on the merits of two judicially enforceable claims: (1) "HRC's right of association and counsel, which arises from the First Amendment to the United States Constitution;" and (2) "the Haitian plaintiffs' right of nonrefoulment, which arises under Article 33 of the 1967 United Nations Protocol Relating to the Status of Refugees."
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. Cable News Network, Inc. v. Video Monitoring Servs., Inc., 940 F.2d 1471, 1477 (11th Cir.1991).
In order to prevail on a motion for preliminary injunction, the movant has the burden of proving: (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. Id. at 1478, Tally-Ho, Inc. v. Coast Community College Dist., 889 F.2d 1018, 1022 (11th Cir.1990).
Defendants argue that the Haitian plaintiffs in this case have no enforceable rights under Article 33 because Article 33 is not self-executing as to persons situated like the plaintiffs in this case. The individual Haitians who are plaintiffs in this case have not reached United States territory.
The language of the Protocol and the history of the United States' accession to it leads to the conclusion that Article 33 is not self-executing and thus provides no enforceable rights to the Haitian plaintiffs in this case. (A "self-executing" international agreement is one that directly accords enforceable rights to persons without the benefit of Congressional implementation.) See Haitian Refugee Center v. Gracey, 809 F.2d 794 (D.C.Cir.1987) (Edwards, J. concurring in part and dissenting in part); Bertrand v. Sava, 684 F.2d 204 (2nd Cir.1982); Pierre v.

United States, 547 F.2d 1281 (5th Cir.1977), vacated on other grounds, 434 U.S. 962, 98 S.Ct. 498, 54 L.Ed.2d 447 (1977).

Next, the defendants argue that even if the plaintiffs had a First Amendment right of access to the interdicted Haitians, the relief granted by the injunction is unrelated to the right asserted by HRC. The district court's injunction order states as follows:

1111

[D]efendants are hereby enjoined from forcefully repatriating the individual plaintiffs or class members in their custody either until the merits of the underlying *1111 action are resolved or until defendants implement and follow procedures, such as those contained in the INS Guidelines, adequate to ensure that Haitians with bona fide political asylum claims are not forced to return to Haiti in violation of Article 33 of the Protocol. To this end, within seven days defendants shall submit to the court a recital of the procedures to be followed.

The district court's order is not merely overly broad, see United States v. Gilbert, 920 F.2d 878 (11th Cir.1991), it fails to redress the right asserted by HRC. Here, HRC asserts a right of access to the interdicted Haitians. The injunctive relief granted by the district court does not require the defendants to allow HRC access to the Haitian interdictees, it enjoins the defendants from repatriating them. Because the relief granted does not address the right of access asserted by HRC, the First Amendment claim cannot support the injunction.

Judge Hatchett, in dissent, would uphold the issuance of the preliminary injunction on the basis of the APA claim. The district court refused to grant relief on this claim. The plaintiffs do not cross-appeal. We cannot properly uphold the injunction based on the APA claim under these circumstances. Furthermore, to do so would constitute a holding by this court, on appeal, that the plaintiffs are entitled to injunctive relief on the APA claim as a matter of law.

For the foregoing reasons, the preliminary injunction issued by the district court is hereby DISSOLVED and the case is REMANDED to the district court with instructions to dismiss, on the merits, the claims predicated on Article 33.

The mandate shall issue immediately and no petition for panel rehearing will be entertained.[1]

HATCHETT, Circuit Judge, dissenting:

I respectfully dissent. The district court properly issued the preliminary injunction in this case. Additionally, I dissent from the majority's decision that although this court has jurisdiction over this case, the scope of our jurisdiction is not broad enough to afford review of the district court's refusal to grant the preliminary injunction on the Administrative Procedures Act (APA) claim.

A. FACTUAL MATTERS

It is important to put this case in proper context through consideration of factual matters borne out by the record.
1. Under existing law, any refugee may reach the shores of the United States and thereby acquire the right to enforce United States immigration laws in United States courts, except Haitian refugees. Only Haitian refugees are intercepted in international waters and repatriated to their country of origin. This activity is conducted under an agreement between the Reagan administration and the totalitarian Haitian government in place in 1981, the regime of Jean-Claude Duvalier.
2. The government asserts that prior to the district court's entry of the preliminary injunction, it fairly and adequately applied United States immigration laws to the refugees' claims of political asylum. The district court's preliminary injunction provides that the government refrain from repatriating Haitian refugees until the court has determined the merits of this case or until the government submits a plan outlining its screening procedures.[1] Consequently, the district court has ordered the government to do no more than the government maintains it was already doing. Thus, the order does not harm the government at all, and certainly imposes no "irreparable harm."

The balance of harms in this case tips decidedly in favor of the Haitian refugees, who face injury or death if wrongfully repatriated.
3. A simple reading of the district court's preliminary injunction belies the government's argument that the district 1112 court has barred it from returning these *1112 refugees to Haiti. At most, the preliminary injunction delays the
return of refugees not entitled to political asylum in the United States. Nothing in the preliminary injunction can lead one to conclude that these refugees must either be brought to the United States or carried to Guantanamo Bay, Cuba, to be held indefinitely.
4. The government seeks to convince this court that its interdiction program was instituted as an effort to save the lives of Haitian refugees traveling in unseaworthy vessels. But the government's own brief shows that the program was instituted in 1981, long before the current immigration wave, for the express purpose of more efficiently enforcing United States immigration law. The primary purpose of the program was, and has continued to be, to keep Haitians out of the United States.
5. At the bottom of this case is the government's decision to intercept Haitian refugees on the high seas, in international waters, to prevent them from reaching United States territory. If these refugees reach United States territory, they will have the right to insist, in United States courts, that they be accorded proper, fair, and adequate screening procedures.[2] In addition, they will receive counseling from the Haitian Refugee Center (HRC) and volunteer lawyers who will ensure the proper application of United States immigration laws. The interdiction program is a clear effort by the government to circumvent this result.
The United Nations Protocol on Refugees, and the United States immigration laws which execute it, were motivated by the World War II refugee experience. Jewish refugees seeking to escape the horror of Nazi Germany sat on ships in New York Harbor, only to be rebuffed and returned to Nazi Germany gas chambers. Does anyone seriously contend that the United States's responsibility for the consequences of its inaction would have been any less if the United States had stopped the refugee ships before they reached our territorial waters? Having promised the international community of nations that it would not turn back refugees at the border, the government yet contends that it may go out into international waters and actively prevent Haitian refugees from reaching the border. Such a contention makes a sham of our international treaty obligations and domestic laws for the protection of refugees.
6. Through this lawsuit, these refugees are not requesting admission to the United States, but are only seeking to have their claims for political asylum fairly considered.
B. JURISDICTION AND APPEALABILITY
HRC contended in the court below that the APA gives it a cause of action to challenge the actions of lower executive branch officials in carrying out the interdiction program. The district court held that the APA afforded no such relief, on the grounds that the challenged agency actions were committed to agency discretion, and thus exempt from review. HRC properly seeks review of this adverse determination on appeal. The majority contends, however, that this court may not review the district court's holding on the APA claim because the district court ultimately granted injunctive relief on other grounds.
The denial or granting of a preliminary injunction gives this court jurisdiction to decide all the issues on which the 1113 district *1113 court ruled, and the preliminary injunction may be upheld on the basis of any valid claim. 28 U.S.C.
§ 1292(a)(1). We are called upon to decide whether the preliminary injunction was properly issued on any ground asserted and determined. By not reviewing the APA claim, the majority takes an unrealistic and narrow view of this court's jurisdiction and role. In this highly expedited case, concerns of finality and conservation of judicial labor favor the swift resolution of all claims upon which the district court ruled.
Section 1292(a)(1) provides, in pertinent part:

"[T]he courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts ... granting, continuing, modifying, or refusing or dissolving injunctions, or refusing to dissolve or modify injunctions,...." (Emphasis added.)
The district court refused to grant the refugees the preliminary injunction on their APA claim; therefore, no jurisdictional impediment exists which prevents this court from reaching and deciding whether the preliminary injunction is proper based on the APA claim. See Roberts v. St. Regis Paper Co., 653 F.2d 166 (5th Cir.1981). This court should reach and determine the merits of the APA claim.[3]
C. ARTICLE 33
The majority holds that the district court erred in concluding that the 1967 United Nations Protocol Relating to the Status of Refugees (Protocol), which incorporates Article 33 of the 1951 Convention Relating to the Status of Refugees, gives refugees outside the territorial boundaries of the United States the right to press in domestic courts claims that the United States is violating obligations under the Protocol treaty.[4] Because Article 33 is selfexecuting and applies extra-territorially, I would uphold the preliminary injunction.
In the Protocol, a refugee is defined as any person who,
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.
Protocol, art. 1, ¶ 2, 19 U.S.T. 6223, 6225; T.I.A.S. No. 6577 at 3. Article 33, which is incorporated into the Protocol, provides:
No contracting state shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group, or political opinion.
Convention Relating to the Status of Refugees, art. 33, ¶ 1, 198 U.N.T.S. 150, 176 (July 28, 1951). Additionally, Article 3 of the Convention provides that the provisions of the Protocol are to be applied to all refugees without 1114 discrimination as to race, religion or country of origin. See Convention, *1114 art. 3, 189 U.N.T.S. 150 (July 28, 1951). The majority holds that Haitian refugees outside the territorial boundaries of the United States have no right to challenge whether the procedures which implement the United States interdiction program violate the principles in the Protocol, regardless of whether the procedures are inadequate to ensure that refugees are not returned to territories where their lives or freedom will be threatened on account of their race, religion, nationality, membership in particular social groups or political opinions.
The majority so holds even though citizens or subjects of other nations ordinarily can enforce a treaty in the domestic courts of the United States to the extent that the treaty's provisions confer certain rights upon them and take on the nature of domestic law. See Edye v. Robertson, 112 U.S. 580, 598-99, 5 S.Ct. 247, 253-54, 28 L.Ed. 798 (1884). The former Fifth Circuit held that "treaties affect the municipal law of the United States only when those treaties are given effect by congressional legislation or are, by their nature, self-executing." United States v. Postal, 589 F.2d 862, 875 (5th Cir.), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 40 (1979); see also Whitney v. Robertson, 124 U.S. 190, 8 S.Ct. 456, 31 L.Ed. 386 (1888). The provision of the Protocol which provides non-refoulement protection to refugees outside the United States has not been given effect by congressional legislation. See Bertrand v. Sava, 684 F.2d 204, 218-19 (2d Cir.1982) (holding that Congress has implemented the Protocol, at least in part, through the Refugee Act of 1980, but noting that the Refugee Act does not provide rights to aliens outside the United States). Nevertheless, the Protocol affects the domestic law of the United States and is binding upon the government to the extent that it is self-executing. See Postal, 589 F.2d at 875.

In Postal, the court held that "whether a treaty is self-executing is a matter of interpretation for the courts." Postal, 589 F.2d at 876. Additionally, the court noted in Postal that in determining self-execution, courts consider the parties' intent, the legislative history, and the subject matter of the treaty. Postal, 589 F.2d at 876-77. However, the court also noted that it is difficult to ascribe a common intent to the language of a multilateral treaty which indicates a manifest purpose for the treaty to operate as the domestic law of the ratifying nations by its own force. See Postal, 589 F.2d at 878; see also Iwasawa, The Doctrine of Self-Executing Treaties in the United States; a Critical Analysis, 26 Va.J. Int'l L., 627, 656 n. 122 (1986); Note, Interdiction: The United States Continuing Violation of International Law, 68 B.U.L.Rev. 773, 780 (1988). Thus, consideration of the intent of the parties to the Protocol is least helpful, and the majority should have limited its consideration to the subject matter, legislative history, and subsequent treaty construction. See Postal, 589 F.2d at 876-77.
The Protocol's subject matter supports the proposition that the treaty is self-executing, because it neither explicitly calls for legislation nor requires positive legislative action, such as the appropriation of money or the imposition of sanctions. See Postal, 589 F.2d at 877; Note, Interdiction, 68 B.U. L.Rev. at 781. Additionally, the legislative history surrounding the Protocol further supports the conclusion that the treaty is self-executing. For example, the committee report recommending accession provided that the United States is automatically bound to apply articles 2 through 34 of the convention. See Sen.Exec.Rep. No. 14, 90th Cong., 2d Sess. (1968); see also Note, Interdiction, 68 B.U. L.Rev. at 785-86.
Finally, the subsequent construction of the Protocol also supports the proposition that it is self-executing. See Nicosia v. Wall, 442 F.2d 1005, 1006 n. 4 (5th Cir. 1971) (without recognizing implementing legislation, the court noted that the Protocol binds acceding states to apply certain provisions of the 1951 Refugee Convention); Fernandez-Roque v. Smith, 539 F.Supp. 925, 935 n. 25 (N.D.Ga.1982) (inclined towards view of self-execution); see also Sannon v. United States, 427 F.Supp. 1270, 1274 (S.D.Fla.1977) (holding that Protocol established 1115 aliens' right to a hearing), vacated and remanded on other grounds, 566 F.2d 104 (5th Cir.1978); Matter of *1115 Dunbar, Interim Decision of Board of Immigration Appeals No. 2192,310 at 313 (April 17, 1973) (stating in regard to protocol that "such a treaty, being self-executing, has the force and effect of an act of Congress"); but see Bertrand v. Sava, 684 F.2d 204, 218-19 (2d Cir.1982) (holding that "the Protocol provisions were not themselves a source of rights under our law unless and until Congress implemented them by appropriate legislation"); Haitian Refugee Center, Inc. v. Gracey, 600 F.Supp. 1396, 1403-04 (D.D.C.1985) (holding the same as Bertrand v. Sava ), aff'd on other grounds, 809 F.2d 794 (D.C.Cir. 1987). Thus, although the intent of the parties is unclear, the subject matter, legislative history, and subsequent construction of the Protocol support the proposition that the Protocol is self-executing and binding upon the United States in accordance with Article VI of the United States Constitution.
After establishing that the Protocol is self-executing, the question becomes whether the Protocol's protections apply to refugees outside the territorial boundaries of the United States. The Supreme Court stated in United States v. Stuart, 489 U.S. 353, 109 S.Ct. 1183, 103 L.Ed.2d 388 (1989) that "the clear import of treaty language controls unless `application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.'" Stuart, 489 U.S. at 365-66, 109 S.Ct. at 1191 (quoting Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180, 102 S.Ct. 2374, 2377, 72 L.Ed.2d 765 (1982)). In his concurrence, Justice Scalia was even more emphatic, stating that "our traditional rule of treaty construction is that an agreement's language is the best evidence of its purpose and its parties intent." Stuart, 489 U.S. at 372, 109 S.Ct. at 1194. (Scalia, J., concurring). Article 33 unequivocally provides that "[n]o contracting state shall expel or return (refouler) a refugee," fleeing bona fide political persecution, "in any manner whatsoever to ... territories where [the refugee's] life or freedom would be threatened." Article 33, 198 U.N.T.S. at 176 (emphasis added). As noted earlier, it is difficult to ascribe a common intent to the language of a multilateral treaty. See Postal, 589 F.2d at 878. Therefore, the clear import of the treaty language must control in determining the purpose of the treaty. Compare United States v. Postal, 589 F.2d 862, 875 (5th Cir.1979) (difficult to ascribe a common intent to the language of a multilateral treaty) with United States v. Stuart, 489 U.S. 353, 365-66, 109 S.Ct. 1183, 1191, 103 L.Ed.2d 388 (1989) (clear import of treaty language controls unless inconsistent with intent).

The Supreme Court also stated in Stuart that "the practice of treaty signatories counts as evidence of the treaties' proper interpretation, since their conduct generally evinces their understanding of the agreement they signed." Stuart, 489 U.S. at 369, 109 S.Ct. at 1193. Executive Order 12324 and the accompanying guidelines reflect the United States's understanding that the prohibition against refoulement is binding and protects Haitians interdicted on the high seas. Moreover, the district court correctly noted:
it seems substantially unlikely that a protocol designed to protect refugees fleeing bona fide political persecution could have been intended not to provide protection to the Haitians fleeing the brutal, military regime now in power on the ground that those fleeing had not yet reached the territory of a party to the Protocol.
The United Nations High Commission for Refugees asserts that the terms of Article 33 and the nonrefoulement principle apply extraterritorially. The Supreme Court held in Stuart that
given that a treaty should generally be `construed ... liberally to give effect to the purpose which animates it,' and that `even where a provision of a treaty fairly admits two constructions, one restricting, the other enlarging, rights which may be claimed under it, the more liberal interpretation is to be preferred.'
Stuart, 489 U.S. at 368-69, 109 S.Ct. at 1192-93 (quoting, Bacardi Corp. of America v. Domenech, 311 U.S. 150, 1116 163, 61 S.Ct. 219, 225-26, 85 L.Ed. 98 (1940)). *1116 Thus, Haitians interdicted on the high seas outside the
territorial boundaries of the United States are entitled to the Protocol's protections.
D. FIRST AMENDMENT
The district court did not err in finding a substantial likelihood of success on the grounds that the government had violated the Haitian Refugee Center's (HRC) First Amendment right of access to the interdicted Haitians. As this court has held, "counsel have a First Amendment right to inform individuals of their rights, at least when they do so as an exercise of political speech without expectation of remuneration." Jean v. Nelson, 727 F.2d 957, 983 (11th Cir.1984) (en banc); see also In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). HRC seeks to exercise precisely such a right of access in this case. The fact that the Haitian refugees are currently outside the borders of the United States does not diminish HRC's right of access. The Haitian Refugee Center, a Florida nonprofit corporation, may invoke constitutional rights that are impaired by U.S. Government action abroad. See United States v. VerdugoUrquidez, 494 U.S. 259, 270, 110 S.Ct. 1056, 1063, 108 L.Ed.2d 222 (1990); Reid v. Covert, 354 U.S. 1, 7, 77 S.Ct. 1222, 1225, 1 L.Ed.2d 1148 (1957).[5]
With respect to the Guantanamo Bay Naval Station, an area under the "complete jurisdiction and control" of the United States, HRC is entitled to First Amendment protection. Of course, HRC's First Amendment rights are constrained by the government's strong interest in regulating activities on its military bases. Like most military bases, the Guantanamo Bay Naval Station is a "nonpublic forum." See MNC Hinesville v. United States Dept. of Defense, 791 F.2d 1466, 1473 (11th Cir.1986). Consequently, the government may reserve it entirely for its intended purpose as a military base, so long as any restriction on speech is reasonable and content neutral. Perry Education Association v. Perry Local Educators Association, 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983).
The district court correctly found that the government acted unreasonably in denying HRC access to the interdicted Haitians. HRC seeks access only to that part of Guantanamo Bay used to detain interdicted Haitians. In that area, the government's purely military interests are diminished while HRC's interest in counseling the Haitians is increased. The government too shares an interest in ensuring that no political refugees are wrongfully repatriated. In gaining access to the Haitians, HRC helps the United States carry out its obligations under domestic and international law. Finally, as the district court noted, HRC has no alternative means of exercising the First Amendment right it asserts in this case. I would hold that the government must afford HRC access to the

interdicted Haitians detained at Guantanamo Bay, subject to reasonable, content-neutral, time, place, and manner restrictions.[6]
1117 *1117 Because this case is alive in the district court on other issues not ruled upon, and because the preliminary injunction is well grounded in law, it should be left in place at least until the district court determines all the issues in the case.[7]
[1] This brief opinion is filed in order to expedite disposition of the appeal. No supplemental opinion will be filed.
[1] The government has not submitted such a plan.
[2] In its Reply Brief the government states:
As explained in our opening brief, the Executive Order and the INS guidelines are fully compatible with Article 33: if an INS interview suggests that a legitimate claim to refugee status exists, the person is to be removed from the interdicted vessel and transported to the United States, where the statutory provisions for withholding of deportation and asylum become applicable, as do our international obligations under the Protocol.
This is a long way of saying that the government will afford political asylum to those refugees it cares to, but will not afford any opportunity for review for those it denies relief. Consequently, the government will apply United States law to these refugees 0907 in the middle of the sea 0907 but will not have the application of United States law tested in United States courts. Since no other forum is available, the refugees are completely at the mercy of their captors. In fact, the capture prevents the refugees from seeking asylum in other countries.
[3] In Jean v. Nelson, 727 F.2d 957 (11th Cir.1984) (en banc), this court recognized that a reviewing court could uphold the relief granted by the lower court on grounds different from those relied upon by the lower court. The en banc court in Jean rejected the district court's holding that the plaintiffs (Haitians) could assert due process and equal protection challenges to the government's decision to detain or parole excludable aliens. 727 F.2d at 963. The court went on to hold however, that the Haitians could challenge the government's decision to detain them under an abuse of discretion standard. 727 F.2d at 975-76. The court stated:
The district court erred to the extent that it based its jurisdiction to review these determinations on constitutional grounds. The basis for jurisdiction here must be found elsewhere, in the principle that agencies must respect the statutory limits on their discretion, and in the recognition that agency deviation from its own internal regulations and procedures may justify judicial relief in a case otherwise properly before the court. 727 F.2d at 976 [internal quotations and citation omitted].
Thus in Jean, this court, sitting en banc, explicitly recognized that it could grant relief on grounds not even before the district court, especially where, as here, the substance of the claim for relief involves "agency deviation from its own regulations and procedures." 727 F.2d at 976.
[4] This provision will be referred to as Article 33. The Protocol incorporates articles 2 through 34 of the Convention. The United States acceded to the protocol on November 1, 1968. 19 U.S.T. 6223; T.I.A.S. 6577.
[5] The majority obviously accepts the government's contention that Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), controls HRC's first amendment claim. In Kleindienst, the plaintiffs claimed that their first amendment rights were violated by the exclusion of a foreign Marxist. In the instant case, HRC claims its first amendment rights are violated by the government's refusal to give it access to Haitians detained at Guantanamo Bay. The court's holding in Kleindienst that the plaintiffs' first amendment rights could not compel the government to grant entry to an excluded alien is simply irrelevant to the relief demanded by HRC in the instant case. Here, HRC seeks not entry of the Haitians, but access to them at the places where they are held by the U.S. government. Thus, the case is far more analogous to the facts in Jean v. Nelson, 727 F.2d 957, 983 (11th Cir.1984) (en banc), where the court found a right of access, than to Kleindienst, where the court found no right of entry.

[6] Contrary to the government's protestations, HRC seeks only such access as a remedy. It has never argued that a ban on repatriation is the only way to effectuate its first amendment right of access.
Even if the majority is correct in holding that the district court's preliminary injunction is too broad on the HRC's First Amendment claim, the district court should only be ordered to narrow the scope of the relief. Rather, the majority dissolves the preliminary injunction.
[7] Due to the expedited nature of this case, this dissent only discusses issues the majority discusses. I agree to immediate issuance of the mandate and no further rehearing by this panel.
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 950 F.2d 685 (1991)
HAITIAN REFUGEE CENTER, INC., et al., Plaintiffs-Appellees, v.
James BAKER, III, Secretary of State, Robert Kramek, Rear Admiral, Kime, Admiral, Commandant, United States Coast Guard, Gene McNary, Commissioner, Immigration and
Naturalization Service, United States Department of Justice, Immigration and Naturalization Service, United States of America, Defendants-Appellants.
No. 91-6099.
United States Court of Appeals, Eleventh Circuit.
December 19, 1991.
John F. Daly, Michael Jay Singer, Washington, D.C., for defendants-appellants.
Ira Kurzban, Kurzban, Kurzban & Weinger, Miami, Fla., Robert E. Juceam, Fried, Frank, Harris, Shriver & Jacobson, New York City, for plaintiffs-appellees.
Before TJOFLAT, Chief Judge, HATCHETT and COX, Circuit Judges.
686 *686 BY THE COURT:
This matter is before the court on the Appellants' emergency motion seeking a stay of the district court's injunction order pending appeal.
On November 19, 1991, the district court issued a temporary restraining order preventing the defendants from repatriating interdicted Haitians. Following a hearing and briefing on December 3, 1991, the district court issued a preliminary injunction enjoining such repatriation. The court found that the plaintiffs had a substantial likelihood of success on the merits of their claims under the First Amendment and Article 33 of the Convention Relating to the Status of Refugees. Following an expedited appeal, this court dissolved the injunction, holding that the plaintiffs had no enforceable claims under Article 33 and that the First Amendment claim did not support the injunctive relief granted.
This court's mandate issued December 17, 1991, and later that night the district court issued what purports to be another temporary restraining order to enable it to reconsider the plaintiffs' APA claim. In its order dated December 3, 1991, the court had rejected the plaintiffs' APA claim. The present "temporary restraining order," like the previous orders, prevents the defendants from repatriating Haitian interdictees located at Guantanamo Bay Naval Base and on Coast Guard vessels in the Caribbean. The district court denied Appellants' request to stay this order pending appeal.
We must initially decide whether we have jurisdiction. Although a temporary restraining order is not ordinarily appealable, where the order has the effect of a preliminary injunction this court has jurisdiction to review the order and is not bound by the district court's designation of the order. See Sampson v. Murray, 415 U.S. 61, 86-87 n. 58, 94 S.Ct. 937, 951 n. 58, 39 L.Ed.2d 166 (1974); 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).
In Connell v. Dulien Steel Products, Inc., 240 F.2d 414 (5th Cir.1957), cert. denied, 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1074 (1958),[1] the court cited the practical reasons for not ordinarily allowing an appeal from a temporary restraining order. Temporary restraining orders are usually effective for short periods of time that are too brief to allow appeal; they are usually issued without notice to the nonmoving party, thus allowing the trial judge to hear only one side of the case; and the trial court should have an opportunity to have a full presentation of the facts and law before an order is appealable. Id. at 418.

In this case, these practical constraints are not present. The "temporary restraining order" issued on December 17, 1991, was issued after the district court had heard from all parties. The plaintiffs' APA claim was included in the complaint before the district court on December 3. The court issued a temporary restraining order on November 19, 1991, in order to consider the plaintiffs' claims for injunctive relief, including the APA claim. Following a full hearing and briefing on the merits, the district court rejected the plaintiffs' APA claim and refused to grant injunctive relief on that claim because it concluded that there was no substantial likelihood that the plaintiffs would succeed on the merits of the claim. Haitian Refugee Center, Inc. v. Baker, No. 91-2653-CIV-Atkins (S.D.Fla., filed Dec. 3, 1991) (order granting preliminary injunctive relief). The district court has had an opportunity to have full presentation of the merits of this claim. For the foregoing reasons, we conclude that the "temporary restraining order" issued by the district court on December 17, 1991, is in effect a preliminary injunction. We therefore have jurisdiction of the defendants' appeal from the order issuing that injunction.
687 The parties briefed the merits of the APA claim in the previous appeal to this *687 court, so the court already has the benefit of full briefing on the claim. Having considered the matter, we conclude that there is a strong likelihood that the defendants will prevail on that claim for the reasons stated by the district court in its original Order Granting Preliminary Injunctive Relief dated December 3, 1991. We conclude that the appellants' motion seeking a stay of that order pending appeal is due to be granted. See Fed.R.App.P. 8.
The temporary restraining order issued by the district court on December 17, 1991, is STAYED and SUSPENDED pending appeal.
HATCHETT, Circuit Judge, dissenting:
I respectfully dissent. In case number 91-6060, the case in which we issued an opinion two days ago, and in which this court dissolved the December 3, 1991, preliminary injunction, the majority held that it did not reach the Administrative Procedures Act (APA) issue because the appellees (Haitians) had not cross-appealed the district court's denial of that claim. The majority stated:
Judge Hatchett, in dissent, would uphold the issuance of the preliminary injunction on the basis of the APA claim. The district court refused to grant relief on this claim. The plaintiffs did not crossappeal. We cannot properly uphold the injunction based on the APA claim under these circumstances. Furthermore, to do so would constitute a holding by this court, on appeal, that the plaintiffs are entitled to injunctive relief on the APA claim as a matter of law.
This language in the majority's opinion states that if the APA issue had been cross-appealed, and if sufficient facts had been developed for the record, at least one of the judges of the panel would have granted relief on the APA claim.
Further, the language quoted above indicates (1) that the court did not reach the APA issue, (2) that no determination was made on the APA claim, and (3) that the APA claim would need further factual development in the district court. No reasonable person could read the above quoted language in any other way. Reading that language, on remand, the district court properly found that the APA issue remained alive for determination. From briefs filed today, it is apparent that the parties to this action also read the above quoted language as leaving the APA issue open. Surprisingly, the majority now holds that the district court adequately considered the APA claim the first time and that the claim is ripe for review. The majority's actions, rulings, and holdings in this case are inconsistent with its actions, holdings, and rulings of two days ago in case number 91-6060.
Contrary to the majority's holding, the district court is not considering the same APA claim as that previously presented in 91-6060. In its latest order, the district court states:
The court recognizes its previous determination that plaintiffs had not shown a likelihood of prevailing under the APA. That determination was based on Congress' broad grant of discretion to the President in establishing the interdiction program. However, the court now has the benefit of the thorough briefing of the APA issue before the Eleventh Circuit Court of Appeals, as well as the Court of Appeals' December 17, 1991 per curiam opinion. In this new light, the court now finds a substantial likelihood of success, based in part on the distinction between the President's

discretion in establishing the program and subordinates' discretion or lack thereof in following program procedures and guidelines.
The district court makes clear that its previous ruling on the APA claim, which this court earlier refused to review, was based upon the discretion which Congress had delegated to the President; whereas, the district court is now considering the APA claim based on "subordinates' discretion or lack thereof in following program procedures and guidelines." In 91-6060, this court refused to reach the APA claim under any theory; now, through some 688 procedure here before unknown to the law, the majority is able not only to reach the APA *688 claim, but to decide that the claim is without merit even though no hearing has been held and the district court has made no factual findings or legal conclusions.
The district court has scheduled a hearing on the APA claim for 10 a.m. on December 20, 1991, less than fourteen hours from the time the orders in this case will be filed (91-6099). This court should not take the highly unusual and extraordinary step of preventing the district court from hearing the APA claim that the coast guardsmen and immigration officials at Guantanamo Bay, Cuba and on the Coast Guard cutters are not properly interviewing these refugees.[1]
I would deny the Petition for Writ of Mandamus because mandamus may not serve as a substitute for an appeal. Fernandez-Rogue v. Smith, 671 F.2d 426 (11th Cir.1982). Likewise, I would deny the Motion for Stay for the reasons stated above and for the additional reason that nothing in this record indicates that the district court has not speedily resolved the issues presented to it.
I would dismiss this case because temporary restraining orders are not appealable under the law of this circuit, and the district court has not even made factual findings. Surely, nothing in this record allows this court to hold, as a matter of law, that the low ranking government officials charged with the duty of properly interviewing the refugees are proceeding in accordance with established law.
[1] In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
[1] The district court has invited on some occasions and ordered on others the government to present a plan outlining the procedures that it is following in interviewing the refugees. The government has steadfastly refused to comply.
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 953 F.2d 1498 (1992)
HAITIAN REFUGEE CENTER, INC., et al., Plaintiffs-Appellees, v.
James BAKER, III, Secretary of State, Robert Kramek, Rear Admiral, Kime, Admiral, Commandant, United States Coast Guard, Gene McNary, Commissioner, Immigration and
Naturalization Service, United States Department of Justice, Immigration and Naturalization Service, United States of America, Defendants-Appellants.
HAITIAN REFUGEE CENTER, INC., a not-for-profit corporation, Roland Providence, Moise Charles, Eric Pierre, Raymond Edme, Golbert Miracle, Roland Jean, Roosevelt Alexis, Luc
Luxembourg Sanon, Leger Pierre Frantz, Ochel Engerril, Jean Michel Mario Avilus, Archille Belvu, Lucien Rozier, Emmanuel Saintil and Condanser Joseph, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, Cross-Appellants,
v. James BAKER, III, Secretary of State, Rear Admiral Robert Kramek and Admiral Kime, Commandants, United States Coast Guard, Gene McNary, Commissioner, Immigration and
Naturalization Service, United States Department of Justice, Immigration and Naturalization Service, and United States of America, Defendants-Appellants, Cross-
Appellees.
Nos. 91-6099, 91-6105 and 91-6118.
United States Court of Appeals, Eleventh Circuit.
February 4, 1992. Certiorari Denied February 24, 1992.
1459090 *1499 *1500 John F. Daly, Michael Jay Singer, Kenneth W. Starr, Edward T. Swaine, U.S. Dept. of Justice, Appellate Staff, Civil Div., Washington, D.C., for defendants-appellants.
Ira Kurzban, Kurzban, Kurzban & Weinger, Miami, Fla., Bruce Winick, University of Miami, School of Law, Coral Gables, Fla., for plaintiffs-appellees.
Before TJOFLAT, Chief Judge, HATCHETT and COX, Circuit Judges.
Certiorari Denied February 24, 1992. See 112 S.Ct. 1245.
PER CURIAM:
I. FACTS AND PROCEDURAL HISTORY
In 1981, President Ronald Reagan determined that the uncontrolled immigration of visaless aliens was a "serious national problem detrimental to the interests of the United States." Proclamation No. 4865, 46 Fed.Reg. 48,107 (1981), reprinted in 8 U.S.C.A. § 1182 note (1982). As a result of this determination, President Reagan issued an Executive Order directing the Secretary of State to enter "cooperative arrangements with appropriate foreign governments for the purpose of preventing illegal immigration to the United States by sea." Exec.Order No. 12324, 46 Fed.Reg. 48,109, 48,210 (1981), reprinted in 8 U.S.C.A. § 1182 note (Executive Order). The Executive Order required the Secretary of Transportation to instruct the Coast Guard to enforce "the suspension of the entry of undocumented aliens and the interdiction of any defined vessels carrying such aliens." Id. at § 2(a). Among the "defined" vessels to be interdicted by the Coast Guard were vessels of foreign nations that had entered into agreements with the United States authorizing the United States to stop and board their vessels. Id. at § 2(b)(3).

The instructions given the Coast Guard were to include appropriate directives for it to stop and board defined vessels when there was reason to believe that such vessels were engaged in the irregular transportation of people or that the laws of the United States or the agreeing nation were being violated. Further, the Coast Guard was to determine the destination and status of those on board and to return the vessel to the country from which it came when there was reason to believe that the immigration laws of the United States or the foreign country were being violated. Finally, the Coast Guard was to be instructed not to return a "refugee" without his consent. Id. at § 2(c). These actions by the Coast Guard were authorized to be taken only outside the territorial waters of the United States. Id. at § 2(d).
Also pursuant to the Executive Order, the Attorney General, in consultation with the Secretary of State and the Secretary of Transportation, was to take steps necessary to "ensure the fair enforcement of our laws relating to immigration (including effective implementation of the Executive Order) and the strict observance of our international obligations concerning those who genuinely flee persecution in their homeland." Id. at § 3.
1501 *1501 In compliance with the Executive Order, the Secretary of State entered into an agreement with the Haitian government under which the United States was authorized to interdict and board Haitian flagged vessels suspected of carrying illegal immigrants. T.I.A.S. No. 10,241. Under the agreement, it was understood that the United States would not return immigrants whom immigration officials determined to qualify for refugee status. Id. Also, Haiti agreed that any immigrants returned to Haiti would not be prosecuted for illegal departure. Id.
An "international obligation" to which the Executive Order refers and that is at issue in this case is the 1967 United Nations Protocol Relating to the Status of Refugees (Protocol). Article 33 of the Protocol provides in part as follows:
1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
The term "refugee" as defined in the Protocol and incorporated in 8 U.S.C. § 1101(a)(42)(A) means:
[A]ny person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and 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,....
Pursuant to the Executive Order, the Immigration and Naturalization Service (INS) promulgated guidelines to be followed by INS employees assigned to the interdiction program. The Guidelines read as follows:
INS ROLE AND GUIDELINES FOR INTERDICTION AT SEA
The following directives are to be followed by INS employees assigned to Coast Guard vessels interdicting vessels at sea pursuant to Presidential Proclamation 4865, dated September 29, 1981, and Executive Order Number 12324, dated September 29, 1981.
GENERAL
* Due to the sensitive nature of this assignment, all INS employees will be under the direct supervision of INS Central Office Headquarters, Associate Commissioner, Examinations.
* The only function INS officers are responsible for is to ensure that the United States is in compliance with its obligations regarding actions toward refugees, including the necessity of being keenly attuned during any interdiction program to any evidence which may reflect an individual's well-founded fear of persecution by his or her country of origin for reasons of race, religion, nationality, membership within a particular social group or political opinion.

1502

* The duties of INS employees assigned to United States Coast Guard vessels will be limited to matters related to the interview of persons on board with respect to documentation relating to entry to the United States and possible evidence of refugee status.
* Except for independent determinations with respect to documentation relating to entry into the United States and possible claims to refugee status, INS officers will be subject to maritime directives and rules made by the Commanding Officer of the United States Coast Guard vessel.
* * * * * *
BOARDING OF VESSELS
* All decisions relating to which vessels will be interdicted and in what manner vessels will be boarded will be made at the discretion of the Commanding Officer of the United States Coast Guard vessel.
* INS officers and interpreters will be members of each boarding party. INS employees will not be armed.
*1502 * All initial announcements to the master, crew, and passengers of a boarded vessel as to the purpose of boarding, separation of crew and passengers, and general procedures (including advice that the boarded vessel may be returned to Haiti) will be made by United States Coast Guard personnel at the time the vessel is first boarded.
INS OFFICER RESPONSIBILITIES
A. To the extent that it is, within the opinion of the Commanding Officer of the United States Coast Guard vessel, safe and practicable, each person aboard an interdicted vessel shall be spoken to by an INS officer, through an interpreter. A log record shall be maintained of each such person, based on their responses to the following inquiries:
1. Name;
2. Date of Birth;
3. Nationality;
4. Home Town (obtain sufficient information to enable a later location of the individual to check on possible persecution);
5. All Documents or Evidence Presented;
6. Why did you leave Haiti;
7. Why do you wish to go to the United States;
8. Is there any reason why you cannot return to Haiti?
B. A copy of the log prepared by the INS officers shall be provided to the Commanding Officer of the Coast Guard vessel.
C. INS officers shall be constantly watchful for any indication (including bare claims) that a person or persons on board the interdicted vessel may qualify as refugees under the United Nations Convention and Protocol.
D. If there is any indication of possible qualification for refugee status by a person or persons on board an interdicted vessel, INS officers shall conduct individual interviews regarding such possible qualification.

E. Interviews regarding possible refugee status shall be conducted out of the hearing of other persons.
F. If necessary, INS officers will consult with Department of State officials, either on board, or via radio communications.
G. Individual records shall be made of all interviews regarding possible qualification for refugee status.
H. If the interview suggests that a legitimate claim to refugee status exists, the person involved shall be removed from the interdicted vessel, and his or her passage to the United States shall be arranged.
I. Individual record folders shall be prepared and maintained by INS officers in every case where a person is being sent on to the United States, and such record folder may be used to support such person's claim in the United States. (The individual folder shall contain a sworn statement by the applicants concerning the claim).
In September, 1981, the Coast Guard began interdicting vessels suspected of carrying undocumented aliens leaving Haiti bound for the United States. Upon interdiction of the boats, the passengers were interviewed by INS officials to determine their status. If the passengers were determined to be economic migrants, and not refugees, they were repatriated to Haiti. If they were determined to have a possible claim to political asylum, they were brought to the United States to continue the asylum process. Over the ten year period from 1981 to September, 1991, over twenty-five thousand migrants were interdicted.
On September 30, 1991, the democratically elected President of Haiti, Jean-Bertrand Aristide, was overthrown in a military coup. Following the coup, the United States suspended the interdiction program. Also, economic sanctions were imposed against Haiti. As a result of the coup and the economic sanctions, migration from Haiti increased.
On November 18, 1991, the United States announced that it would resume its interdiction and repatriation 1503 program. The next day, November 19, the Haitian Refugee Center, Inc. (HRC) filed a complaint seeking *1503
declaratory and injunctive relief in the United States District Court for the Southern District of Florida. The defendants named are James Baker, III, Secretary of State; Rear Admiral Robert Kramek and Admiral Kime, Commandants, United States Coast Guard; Gene McNary, Commissioner, Immigration and Naturalization Service; and the United States.
HRC sought a temporary restraining order enjoining the defendants from repatriating Haitians not identified as candidates for political asylum until the implementation of procedures adequate to protect Haitians qualifying for asylum. The complaint alleges that the defendants have failed to follow INS rules and procedures that were intended to protect against the forced return to Haiti of interdictees with potentially valid claims to political asylum. The complaint further alleges that the defendants' actions violated the terms of Executive Order 12324, the INS Guidelines promulgated pursuant to the order, and rules of international law, including Article 33 of the Protocol. Further, the complaint alleges that the defendants' actions deprived the interdictees of the protections set forth in the Refugee Act of 1980, the Immigration and Nationality Act (INA), and the due process protections of the Fifth Amendment of the Constitution. More specifically, the complaint alleges that interviews conducted on Coast Guard cutters were often as short as five minutes, were not conducted in private, and were conducted at a time when the Haitians suffered from a lack of adequate food and water and were otherwise in no condition for an adequate interview. Finally, the plaintiffs allege that the officers conducting the interviews were inadequately educated with respect to the political situation in Haiti to make sound judgments regarding claims for asylum.
The district court granted HRC's application for a temporary restraining order on November 19, 1991. The temporary restraining order precluded the defendants from repatriating Haitians on board U.S. flagged vessels or Haitians being held on land under United States control and at Guantanamo Bay, Cuba. The stated purpose of the order was to maintain the status quo "until further order."

On November 20, 1991, the defendants filed a motion to vacate the temporary restraining order or to stay the order pending appeal. These motions were denied by the district court on November 21, 1991. The district court granted plaintiffs' motion to expedite discovery and set a preliminary injunction hearing for November 27, 1991[1].
On December 3, 1991, the district court granted the plaintiffs' motion for a preliminary injunction. The district court's order was grounded on a finding that there was a substantial likelihood that the plaintiffs would prevail on the merits of two judicially enforceable claims: (1) "HRC's right of association and counsel, which arises from the First Amendment to the United States Constitution;" and (2) "the Haitian plaintiffs' right of non-refoulement, which arises under Article 33 of the 1967 United Nations Protocol Relating to the Status of Refugees."
After determining that the plaintiffs had shown a substantial likelihood of success on these two claims, the district court went on to conclude that there was no substantial likelihood of success on the plaintiffs' remaining claims under the Fifth Amendment, the Executive Order, the INS Guidelines, the Refugee Act, the INA, and the APA.
First, the court followed settled law and found that these Haitian interdictees, who were not present in the United States, had no rights under the United States Constitution and therefore their Fifth Amendment claim must fail. Second, the court concluded that the protections afforded by the Refugee Act and the INA were limited "by the 1504 very terms of the statutes" to aliens *1504 within the United States. Therefore, the Haitian interdictees had no enforceable claim on these grounds. Third, the district court found that the Executive Order created no independent right of action and that the INS Guidelines were more akin to internal operating procedures and thus could not form the basis for a judicially enforceable claim. Finally, the district court concluded there was no substantial likelihood of the plaintiffs succeeding on their APA claim. The court concluded that the actions in question were committed to agency discretion and thus not reviewable under the APA.
The defendants appealed that part of the district court's order granting injunctive relief on HRC's First Amendment claim and claim under Article 33 of the Protocol. This court expedited the appeal. We held that Article 33 of the Protocol is not self-executing and therefore did not give rise to any rights enforceable by the plaintiffs. We further held that the First Amendment claim did not support the injunction. We held that HRC asserted a right of access to the interdictees while the relief granted by the district court enjoined repatriation of the Haitians. Because the relief granted did not address the right asserted, the First Amendment claim did not support the injunction. We then dissolved the injunction and remanded the case to the district court with instructions to dismiss on the merits the claim based upon Article 33 of the Protocol. Haitian Refugee Center, Inc. v. James Baker, III, Secretary of State, 949 F.2d 1109 (11th Cir.1991). The court's mandate issued December 17, 1991.
Later that night the district court issued what purported to be another temporary restraining order. The district court had changed its mind since issuing its December 3, 1991 order and found that the plaintiffs had shown a substantial likelihood of success on their claim under the APA. The defendants filed an immediate appeal and motion for a stay pending appeal, arguing that the temporary restraining order was in effect a preliminary injunction. We agreed, concluded that we had jurisdiction and, pursuant to Fed.R.App.P. 8, stayed the order pending appeal. Haitian Refugee Center, Inc. v. James Baker, III, Secretary of State, 950 F.2d 685 (11th Cir. 1991).
On December 20, 1991, after a hearing at which plaintiffs requested preliminary injunctive relief under the First Amendment, the Executive Order, the Refugee Act, and the INA, the district court granted "Limited Preliminary Injunctive Relief" based on HRC's claimed First Amendment right of access to the interdicted Haitians. In this order, the district court barred repatriation of the interdicted Haitians until plaintiffs' counsel was given meaningful access to the interdictees subject to reasonable, content-neutral, time, place, and manner restrictions. Haitian Refugee Center, Inc. v. Baker, No. 91-2653-CIV (S.D.Fla. filed Dec. 20, 1991) (order granting limited preliminary injunctive relief). The district court denied injunctive relief based on the plaintiffs' asserted rights under the Executive Order, the INA, and the Refugee Act, finding that the plaintiffs had failed to show a substantial likelihood of success on these claims. Id. The defendants immediately appealed that part of the order granting relief on the plaintiffs' First Amendment claim. The plaintiffs filed a cross-appeal challenging that part of the order denying relief on the claims predicated upon the Executive Order, the INA, and the Refugee Act. This appeal and cross-appeal are docketed in this court as No. 91-6105.

On December 23, 1991, following a hearing on the plaintiffs' request for a preliminary injunction based on the APA, the district court entered an order supplementing its December 20, 1991 order. This supplemental order granted the plaintiffs' request and enjoined the defendants from forcibly repatriating the Haitian interdictees pending resolution of plaintiffs' claims on the merits or until suitable procedures were implemented. The district court stayed this order pending appeal. The defendants' appeal of this supplemental order is docketed in this court as No. 91-6118.
We consolidated the defendants' appeal of the district court's December 17, 1991 order purporting to grant a 1505 temporary restraining *1505 order under the APA (No. 91-6099), their appeal of the December 20, 1991 order
granting preliminary injunctive relief under the First Amendment (No. 91-6105), and their appeal of the December 23, 1991 supplemental order granting preliminary injunctive relief under the APA (No. 91-6118). These consolidated appeals have been expedited and are now ripe for decision.
II. ISSUES ON APPEAL
1. Whether the district court erred in granting preliminary injunctive relief on the plaintiffs' claim that the APA authorizes judicial review of the defendants' actions under the law embodied in the Protocol, the Executive Order, the INA, the Refugee Act[2], and the INS Guidelines.
2. Whether the district court erred in denying preliminary injunctive relief on the plaintiffs' claims to independently enforceable rights under the Executive Order, the INA, the Refugee Act, the INS Guidelines, and customary international law.
3. Whether the district court erred in granting preliminary injunctive relief on the plaintiffs' claimed right of access under the First Amendment.
III. STANDARD OF REVIEW
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. Guaranty Fin. Servs., Inc. v. Ryan, 928 F.2d 994, 998 (11th Cir.1991); Tally-Ho, Inc. v. Coast Community College Dist., 889 F.2d 1018, 1022 (11th Cir. 1989).
IV. JUDICIAL REVIEW UNDER THE APA
The plaintiffs contend that the APA authorizes review of their claims that repatriation violates the law embodied in the United Nations Protocol, the Executive Order, the INA, and the INS Guidelines. We disagree.
The plaintiffs claim that they have a right to judicial review of the defendants' compliance with the INA through the APA. We conclude that such review is precluded by the INA.
The INA expressly creates extensive rights of review regarding asylum claims and withholding of deportation claims, but only for aliens who have reached our borders. The INA provides no such provisions for review at the behest of aliens beyond our borders. This leads us to conclude that Congress intended to bar review to aliens similarly situated to the plaintiffs in this case.
The APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review." 5 U.S.C. § 702. However, judicial review under the APA is not available where "statutes preclude judicial review," 5 U.S.C. § 701 (a)(1), or where "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2).
In order to determine whether Congress intended to preclude judicial review under the APA, the courts look not only at the express language of the statute but the statutory scheme as a whole. Block v. Community Nutrition

Institute, 467 U.S. 340, 345, 104 S.Ct. 2450, 2454, 81 L.Ed.2d 270 (1984). The presumption favoring judicial review of administrative action may be overcome by Congressional intent inferred from contemporaneous judicial construction barring review and Congress's acquiescence in it. Block, 467 U.S. at 349, 104 S.Ct. at 2455.

1506 In this case, judicial review under the APA is foreclosed because the relevant *1506 provisions of the INA provide the sole and exclusive avenue for judicial review. Plaintiffs claim that the defendants have violated 8 U.S.C. § 1253(h) and contend that the defendants' determination is reviewable under the APA.

Section 1253(h) provides as follows:

The Attorney General shall not deport or return any alien (other than an alien described in section 1251(a)(4)(D) of this title) to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.

Section 1253(h) is included in Part V of the INA, which deals with deportation of aliens. The provisions of Part V dealing with deportation only apply to aliens within the United States. Therefore, 8 U.S.C. § 1252(b), which sets out the procedures for determining deportability of an alien, and which is also included in Part V of the INA, applies only to aliens "in the United States." 8 U.S.C. § 1251. Further, 8 U.S.C. § 1105a provides the exclusive procedure for judicial review of all final orders of deportation made pursuant to section 1252(b). Section 1105a provides in relevant part:

The procedure prescribed, and all the provisions of chapter 158 of Title 28 shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title or compatible provisions of any prior Act, ...

8 U.S.C. § 1105a(a) (emphasis added).

Contrary to the extensive procedures provided for with regard to aliens within the United States, 8 U.S.C. § 1157, which applies to refugees seeking admission from outside the United States, makes no provision for judicial review. Section 1157, as amended, gives the Attorney General discretion, within numerical limits, to permit refugees who are overseas to immigrate to the United States. No judicial review is provided for. The extensive procedures set out in section 1252(b) and the procedures for judicial review provided for pursuant to section 1105a, along with the absence of procedures for judicial review provided in section 1157, demonstrate a Congressional intent to preclude judicial review at the behest of aliens beyond the borders of the United States.

The conclusion that no right to judicial review exists for aliens who have not presented themselves at the borders of this country is supported by case law. In Brownell v. Tom We Shung, 352 U.S. 180, 77 S.Ct. 252, 1 L.Ed.2d 225 (1956), the Supreme Court held that exclusion orders may be challenged, not only by habeas corpus, but by declaratory judgment action. The Court, however, limited its holding by stating that: "We do not suggest, of course, that an alien who has never presented himself at the borders of this country may avail himself of the declaratory judgment action by bringing the action from abroad." Id. at 184 n. 3, 77 S.Ct. at 255 n. 3.

In Braude v. Wirtz, 350 F.2d 702 (9th Cir.1965), 181 Mexican nationals brought suit to challenge an administrative determination denying them visas to enter the United States. The court held that these Mexican nationals, who had never sought admission at the borders of the United States, had no right to judicial review of the denial of their visas. In so holding the court cited the Supreme Court's language in United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950). In Shaughnessy, the Supreme Court stated:

When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.

1507

Thus the decision to admit or to exclude an alien may be lawfully placed with the President, who may in turn delegate the carrying out of this function to a responsible executive officer of the sovereign, such as the Attorney General. The action of the executive officer under *1507 such authority is final and conclusive. Whatever the rule may be concerning deportation of persons who

have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law to review the determination of the political branch of the Government to exclude a given alien.
338 U.S. at 542-43, 70 S.Ct. at 312.
In Cobb v. Murrell, 386 F.2d 947 (5th Cir.1967),[3] the Fifth Circuit followed Braude and held that a Mexican alien outside the United States without a visa had no standing to challenge a determination of the Secretary of Labor denying her a visa. The court went on to state that "Congress can make an administrative officer the apogee of finality, and no constitutional safeguard requires judicial review in denying entry to aliens." Id. at 951.[4]
Finally, in Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970 (9th Cir.1986), the Ninth Circuit affirmed the district court's dismissal of the case for lack of jurisdiction to review the acts of consular officials in denying visas. The court stated that the power of Congress to exclude aliens altogether from the country or to prescribe the conditions of such entry and to have its declared policy in that regard enforced exclusively through the executive branch, without judicial interference, is well settled. Id. at 971 (quoting Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972).
The foregoing cases evidence Congress's intent to preclude judicial review of administrative determinations concerning aliens who have never presented themselves at the borders of the country. Review under the APA would be inconsistent with that intent.
Assuming, arguendo, that the action in question is within the scope of the APA, the government argues that APA review is nevertheless barred by 5 U.S.C. § 701(a)(2). Section 701(a)(2) provides that the APA does not apply where "agency action is committed to agency discretion by law." This exception, however, is very narrow. It is applicable only when the statute granting agency discretion is so broad that it provides no law for courts to apply when reviewing the agency action. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971).
8 U.S.C. § 1182(f) clearly grants the President broad discretionary authority to control the entry of aliens into the United States. Section 1182(f) grants the President the discretion to act to exclude aliens "as he deems necessary." Pursuant to this power, President Reagan issued Executive Order 12324 authorizing the interdiction of illegal aliens at sea. HRC concedes that the President's order is not reviewable under the APA. They argue that the President's subordinates are not carrying out his directive and that their failure to do so is subject to judicial review[5]. Further, they argue that the defendants' actions violate 8 U.S.C. § 1253(h), which provides that the Attorney General shall not deport or return an alien if it is determined that he will be subject to persecution. Their claim, however, is not based on a challenge to any individual determination made by the INS officers. 1508 Rather, the plaintiffs challenge the procedure used to interview the interdictees *1508 in order to determine which ones are subject to being repatriated.
We begin by noting that this court's decision in Greenwood Utilities Comm'n v. Hodel, 764 F.2d 1459 (11th Cir.1985), appears to bar HRC's claim. In Greenwood, a panel of this court held that "[o]nly if a specific statute somehow limits the agency's discretion to act is there sufficient `law to apply' as to allow judicial review." Id. at 1464 (emphasis added). Neither § 1182(f), § 1253(h) nor any other act of Congress relied on by the plaintiffs provide any guidance regarding the procedures to be used in making repatriation decisions with respect to aliens who have not yet reached the United States. Without such congressionally-mandated limits on agency authority, it is inappropriate for this court to exercise judicial review over the operation of the executive branch.
In a decision which appeared shortly after Greenwood, however, another panel of this court suggested in a footnote that "[e]ven when a decision is committed to agency discretion, a court may consider allegations that an agency failed to follow its own binding regulations." Florida, Dep't of Business Regulation v. United States Dep't of the Interior, 768 F.2d 1248, 1257 n. 11 (11th Cir.1985), cert. denied 475 U.S. 1011, 106 S.Ct. 1186, 89 L.Ed.2d 302 (1986). Although the Florida, Dep't of Business Regulation panel did not address Greenwood and relied instead upon an earlier Third Circuit decision, we will apply the panel's analysis in Florida, Dep't of Business Regulation to this case.

HRC claims that INS and Coast Guard officials are violating Executive Order 12324's requirement that "no person who is a refugee will be returned without his consent." This command, however, in no way limits the discretion of INS officials in their determination of who qualifies as a refugee or the procedures to be used to make such a determination. It does not identify any specific factors to be considered or suggest how competing interests must be balanced. The determination of refugee status rests solely with the INS official. Since the Order does not constrain that official's discretion, it cannot provide this court with any "meaningful standard against which to judge the [official]'s exercise of discretion." See Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985).
HRC also argues that the INA, international treaties, and the INS Guidelines constrain INS officials' discretion in determining who is a refugee. The Executive Order does provide that the Attorney General shall ensure fair enforcement of immigration laws and strict observance of our international obligations. As noted above, however, the INA does not extend its protection to aliens who have never entered the United States. Furthermore, although Article 33 provides that no refugee will be returned to a country if he has a well-founded fear of persecution, it provides no standards against which to judge the procedures about which the plaintiffs complain. Finally, the INS Guidelines issued pursuant to Executive Order 12324 provide no meaningful standards for judicial review.
As with the Executive Order itself, the exercise of the INS officer's discretion in determining who has a legitimate claim to refugee status is in no way constrained by the INS Guidelines. There are, therefore, no "binding regulations" which limit agency discretion in such a way as to permit meaningful judicial review. See Florida, Dep't of Business Regulation, 768 F.2d at 1256-57.
Because the action in question is "committed to agency discretion," HRC's claim for APA review is also barred by 5 U.S.C. § 701(a)(2).
The conclusion that APA review is not available in this situation is supported by Supreme Court precedent. In the case of Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1955), the Supreme Court held that the APA was not applicable to deportation proceedings. Marcello, 349 U.S. at 308, 75 S.Ct. at 757. The Court discussed the case of Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950), in which it had held that the APA was applicable to proceedings under the Immigration and Nationality Act of 1917. Marcello, 1509 349 U.S. at 306, 75 S.Ct. *1509 at 760. The Court noted that six months after their decision in McGrath, Congress legislatively overruled it by providing in a rider to the Supplemental Appropriation Act of 1951, 64 Stat. 1048, that proceedings concerning the expulsion and exclusion of aliens should not be governed by sections 5, 7 and 8 of the APA. Id. Next, the Court examined the procedures concerning deportation under the Immigration and Nationality Act of 1952 to determine if Congress had intended to have the APA apply to this new act. After a very detailed analysis of the deportation proceedings provided for in section 242(b) of the then new Immigration Act, the Court stated that:
Exemptions from the terms of the Administrative Procedure Act are not lightly to be presumed in view of the statement in § 12 of the Act that modifications must be express. But we cannot ignore the background of the 1952 immigration legislation, its laborious adoption of the Administrative Procedure Act to the deportation process, the specific points at which deviations from the Administrative Procedure Act were made, the recognition in the legislative history of this adoptive technique and of the particular deviations, and the direction in the statute that the methods therein prescribed shall be the sole and exclusive procedure for deportation proceedings. Unless we are to require the Congress to employ magical passwords in order to effectuate an exemption from the Administrative Procedure Act, we must hold that the present statute expressly supersedes the hearing provisions of that Act.
Marcello, 349 U.S. at 310, 75 S.Ct. at 762.
In a recent decision, Ardestani v. INS, ___ U.S. ___, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991), the Supreme Court interpreted its holding in Marcello and held that "Congress intended the provisions of the Immigration and Nationality Act of 1952 (INA), 66 Stat. 163, as amended, 8 U.S.C. 1101 et seq., to supplant the APA in immigration proceedings." Id. at ___, 112 S.Ct. at 518.

V. OTHER MISCELLANEOUS CLAIMS
Plaintiffs also claim that they have independent judicially enforceable rights under the Executive Order, the INS Guidelines, and the INA, as it was amended by the Refugee Act of 1980. In its order dated December 3, 1991, the district court refused to grant injunctive relief based on these claims and reiterated this holding in its order dated December 20, 1991 which granted limited preliminary injunctive relief on HRC's First Amendment claim. The plaintiffs cross-appeal, asserting that the district court erred in refusing relief on these other claims. For the reasons stated below, we agree with the district court's rulings on these issues.
A. Plaintiffs' Claim under the INA and the Refugee Act
The plaintiffs claim that they have judicially enforceable rights under the INA because the defendants' actions violate 8 U.S.C. § 1253(h) as it was amended by the Refugee Act. They argue that this section is applicable to them even though they have not reached the United States. They argue that the 1980 amendment to this section shows Congressional intent to extend the section's application.
Before this section was amended by the Refugee Act, § 1253(h) provided as follows:
The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason.
8 U.S.C. § 1253(h) (1976 ed.)
After the 1980 amendment, § 1253(h) was changed in relevant part as follows: "The Attorney General shall not deport or return any alien (other than an alien described in section 1251(a)(4)(D) of this title) to a country ..." (emphasis added). Plaintiffs argue that because the amendment added the words "or return" and deleted the words "within the United States," Congress must have intended to expand the scope of the statute to include 1510 aliens beyond *1510 the borders of the United States. We disagree.
As discussed above in Section IV, section 1253(h) is found in Part V of the INA, which deals with deportation and adjustment of status. The provisions of Part V of the INA dealing with deportation only apply to aliens "in the United States." 8 U.S.C. § 1251, 1253(a); Haitian Refugee Center, Inc. v. Gracey, 600 F.Supp. 1396, 1404 (D.D.C.1985), aff'd on other grounds, 809 F.2d 794 (D.C.Cir.1987). The language of § 1253(h) was changed to conform with Article 33 of the Protocol. The plaintiffs in this case cannot avail themselves of any judicially enforceable rights under section 1253(h).
Finally, the INA's asylum provision which was added by the Refugee Act of 1980 is also limited by its terms to aliens in the United States or at its borders or a port of entry. Section 1158(a) states as follows:
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 of section 1101(a)(42)(A) of this title.
8 U.S.C. § 1158(a) (emphasis added).
We agree with the district court that the clear meaning of this language is that the plaintiffs in this case 0907 who have been interdicted on the high seas 0907 cannot assert a claim based on the INA or the Refugee Act.
Plaintiffs argue that the language of § 1158(a) should be read to include a land border or port of entry or its functional equivalent. Plaintiffs contend that because the United States Government is reaching out into the Caribbean to interdict them, it is effectively extending the borders to that extent. We decline to interpret the

statute this broadly. The plain language of the statute is unambiguous and limits the application of the provision to aliens within the United States or at United States' borders or ports of entry. See Haitian Refugee Center v. Gracey, 600 F.Supp. 1396, 1404 (D.D.C.1985), aff'd on other grounds, 809 F.2d 794 (D.C.Cir. 1987). The plaintiffs in this case have been interdicted on the high seas and have not yet reached "a land border" or a "port of entry." Therefore, their claims under the INA must fail.
B. Plaintiffs' Claim under the Executive Order
Congress has committed to the President broad authority to control the entry of aliens or of any class of aliens when he determines that it would be detrimental to the interests of the United States. 8 U.S.C. § 1182(f). The President may suspend or restrict the entry of aliens for the period he deems necessary and impose the restrictions he deems appropriate. Id. Pursuant to this broad grant of authority, President Reagan issued Executive Order 12324.
The plaintiffs assert that the Executive Order provides a basis for a private cause of action that may be enforced by the district court pursuant to its federal question jurisdiction. Plaintiffs contend that the Executive Order embodies, and on its own terms sets forth, the law against forced return of political refugees. Specifically, the plaintiffs rely on the language in the Executive Order that says "no person who is a refugee will be returned without his consent."
Assuming that the district court has jurisdiction to review a claim based on the Executive Order, plaintiffs still must state a cause of action on which relief can be granted. See Farkas v. Texas Instrument, Inc., 375 F.2d 629 (5th Cir.), cert. denied 389 U.S. 977, 88 S.Ct. 480, 19 L.Ed.2d 471 (1967). We hold that the Executive Order does not give rise to a private cause of action.
The Executive Order was issued specifically to establish a procedure for interdiction of Haitian migrants on the 1511 high seas. The program was intended as an emergency measure to deal with a situation that the *1511 President
determined to be detrimental to the interests of the United States. By its terms, the Executive Order envisioned a procedure taking place entirely on the high seas. It contemplated a procedure that could quickly screen those on board interdicted boats and determine who had potential claims of persecution that would prevent repatriation. Because of the nature of the screening process and the fact that it was to take place on the high seas, it could not have been the intention of the President to allow the interdictees to initiate judicial review of their cases in the district courts of the United States. A private civil action was not contemplated under Executive Order 12324 and the plaintiffs' claim based on this order does not state a claim upon which relief can be granted.
C. Plaintiffs' Claim under the INS Guidelines
Plaintiffs also contend that they have substantive rights under the INS Guidelines which are being violated by the defendants' actions in this case. We disagree. The INS Guidelines, as discussed above, create no substantive rights that can be judicially enforced. The guidelines are more akin to internal operating instructions as opposed to regulations. As such, they do not have the force and effect of law. Pasquini v. Morris, 700 F.2d 658 (11th Cir.1983); Dong Sik Kwon v. INS, 646 F.2d 909 (5th Cir.1981).
In Pasquini, this court analyzed an internal operating instruction of the INS, O.I. 103.1(a)(1)(ii), and determined that the INS's internal operating instructions came within the exception to the APA's procedure for publication in the Federal Register of all proposed rulemaking by administrative agencies.
Section 553(b) of the APA provides, with certain exceptions not applicable here, that the publication procedures do not apply "to interpretive rules, general statements of policy, or rules of agency organization, procedure or practice ..." 5 U.S.C. § 553(b). The court concluded that internal operating instructions fell within this category "since the INS considers such instructions to be internal directives, not having the force and effect of law as do regulations." Pasquini, 700 F.2d at 662 (citing Dong Sik Kwon, 646 F.2d at 918) (internal quotes omitted). Finally, the court held that "[t]he internal operating procedures of the INS are for the administrative convenience of the INS only." Id.

We hold that the INS Guidelines in this case are internal guidelines for employees of the INS. These Guidelines were sent in the form of a memorandum to INS employees assigned to duties relating to the interdiction program. They were not intended to grant substantive rights but were only intended to give guidance to those INS employees involved in the interdiction program. The district court correctly denied injunctive relief based on this claim.
The plaintiffs also claim that customary international law, or international common law, creates enforceable rights. This claim is meritless and does not warrant discussion.
VI. HRC'S FIRST AMENDMENT RIGHT OF ACCESS

One of the grounds relied upon by the district court in issuing the December 3, 1991 preliminary injunction against repatriation of the interdicted Haitians was HRC's claimed First Amendment right of access to those Haitians.[6] This court vacated that preliminary injunction on December 17, 1991. At that time we did not address HRC's First Amendment claim on the merits. Rather, this court held that HRC's purported First Amendment right of access to the Haitians could not support the preliminary injunction because the injunction merely barred repatriation and did not grant the access sought.

1512

The injunctive relief granted by the district court does not require the defendants to allow HRC access to the Haitian interdictees, it enjoins the defendants from repatriating them. Because the relief *1512 granted does not address the right of access asserted by HRC, the First Amendment claim cannot support the injunction.

Haitian Refugee Center v. Baker, 949 F.2d 1109, 1111 (11th Cir.1991).

On remand, the district court reiterated its conclusion that HRC has a First Amendment right of access to the interdicted Haitians. The court found that, with respect to Guantanamo Bay Naval Station, HRC sought access to portions of the installation which were being used for the non-military purpose of detaining refugees. Dec. 20, 1991 Order at 9. The district court also found that HRC lacked alternative means of exercising its First Amendment right other than direct access to the interdicted Haitians in United States custody. Id. The court then issued the following injunctive relief:

[F]or the reasons described in section III, plaintiffs' request for an injunction ordering defendants to grant plaintiffs' access to the interdicted class members is GRANTED as follows: defendants shall grant plaintiffs' counsel meaningful access to its interdicted class members, before repatriation, subject to reasonable, content-neutral, time, place and manner restriction....

Id. at 11.

On appeal, the United States argues that HRC has no First Amendment right whatsoever to communicate with aliens being held outside the United States. The government also maintains that the district court's preliminary injunction is overly broad and imposes affirmative obligations on the United States. HRC, on the other hand, claims that "[t]he denial of access to the emigrees [sic] on Coast Guard cutters and at Guantanamo Bay Naval Station violates the rights of the HRC, whose organizational purpose has been thwarted in that it has been unable effectively to provide assistance to the refugees including legal assistance and information concerning their legal rights."[7] HRC also argues that the issue of whether the preliminary injunction requires access to Coast Guard ships is not ripe for review since the district court has not resolved this question. Because we can find no support for its claim in the laws or Constitution of the United States, we hold that HRC has failed to state a claim upon which relief can be granted.

The cases that the district court relies upon to justify its conclusion that HRC is likely to prevail in its First Amendment claim 0907 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) 0907 do not recognize a right of access to persons properly in government custody. In Button, the National Association for the Advancement of Colored People (NAACP) challenged a Virginia statute that proscribed "the improper solicitation of any legal or professional business." 371

U.S. at 419, 83 S.Ct. at 331. The Supreme Court of Virginia had interpreted this statute as prohibiting "any arrangement by which prospective litigants are advised to seek the assistance of particular attorneys." Id. at 433, 83 S.Ct. at 338. This ban encompassed the NAACP's efforts to encourage others to bring suits, with the assistance of the NAACP's legal staff, challenging segregation in Virginia's public schools. Id. at 426, 83 S.Ct. at 334. The United States Supreme Court held "that the activities of the NAACP [soliciting prospective litigants] ... are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession...." Id. at 428-29, 83 S.Ct. at 335 (emphasis added). Thus, the Court held that the statute, as applied to the NAACP, unconstitutionally infringed the organization's rights of free speech and association. Id.
Similarly, in In re Primus, the Supreme Court held that the South Carolina Supreme Court had unconstitutionally 1513 infringed the associational rights of an American *1513 Civil Liberties Union (ACLU) staff attorney by publicly
reprimanding her after she solicited a potential litigant by mail on behalf of the ACLU. 436 U.S. at 439, 98 S.Ct. at 1908. The potential litigant had been sterilized as a condition of receiving public medical assistance. Id. at 415, 98 S.Ct. at 1896. The Court noted that "[t]he First and Fourteenth Amendments require a measure of protection for `advocating lawful means of vindicating legal rights,'" Id. at 432, 98 S.Ct. at 1904-05 (quoting Button, 371 U.S. at 437, 83 S.Ct. at 340). Finding that "[t]he ACLU engages in litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public," id. 436 U.S. at 431, 98 S.Ct. at 1904, the Court concluded that South Carolina's disciplinary rules could not constitutionally be applied to the ACLU attorney's solicitation of a potential litigant by letter since that solicitation was "intended to advance beliefs and ideas." Id. at 438 n. 32 & 439, 98 S.Ct. at 1908 & n. 32.
Button and In re Primus recognize a narrow First Amendment right to associate for the purpose of engaging in litigation as a form of political expression. This right is predicated upon the existence of an underlying legal claim that may be asserted by the potential litigant. See Button, 371 U.S. at 440, 83 S.Ct. at 341 ("the exercise ... of First Amendment rights to enforce constitutional rights through litigation, as a matter of law, cannot be [prohibited]"). In the present case, the interdicted Haitians have no recognized substantive rights under the laws or Constitution of the United States.[8] Thus, it would be nonsensical to find that HRC possesses a right of access to the interdicted Haitians for the purpose of advising them of their legal rights.
Even assuming arguendo that HRC has some limited right to associate with interdicted Haitians who are detained outside of the United States and who themselves have no substantive rights enforceable in the United States, this right of association would not give rise to the right of access that HRC claims. In reality, HRC's claim is that it has a right to associate with the interdicted Haitians and it has a right to compel the Government to assist it in exercising that right. The Constitution, however, does not require the Government to assist the holder of a constitutional right in the exercise of that right. Ukrainian-American Bar Ass'n. v. Baker, 893 F.2d 1374, 1381 (D.C.Cir.1990); see also DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 196, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989) ("the Due Process clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual"); Harris v. McRae, 448 U.S. 297, 317-18, 100 S.Ct. 2671, 2688-89, 65 L.Ed.2d 784 (1980) ("[a]lthough the liberty protected by the Due Process Clause affords protection against unwarranted government interference ..., it does not confer an entitlement to such [government assistance] as may be necessary to realize all the advantages of that freedom"). Thus, associational freedom in no way implies a right to compel the Government to provide access to those with whom one wishes to associate. See Houchins v. KQED, Inc., 438 U.S. 1, 9 & 15, 98 S.Ct. 2588, 2594 & 2597, 57 L.Ed.2d 553 (1978) (acknowledging that the media has a right to communicate information once it is obtained yet holding that "[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government 1514 information or sources of information within the government's control"). Certainly, *1514 neither Button nor In re Primus supports the conclusion that the Government infringes associational freedom when it denies access to those whom it lawfully detains.
The district court's preliminary injunction extends to grant HRC access to Haitians aboard Coast Guard ships at sea. As noted above, HRC suggests that we need not address this issue until the district court has resolved the entire First Amendment claim on its merits. The preliminary injunction, however, clearly raises this question. By its terms, the injunction extends to all "interdicted class members." These class members are being held both at

Guantanamo Bay Naval Station and on Coast Guard cutters. The order is in no way limited to those Haitians at Guantanamo. It is equally applicable to those interdictees currently on Coast Guard ships, as well as those who may be on board Coast Guard ships in the future. Indeed, under the injunction the United States may not repatriate the Haitians aboard Coast Guard ships until HRC has been granted access to them. We also note this relief is consistent with that sought by HRC in its amended complaint, which specifically requests access to Haitians both at Guantanamo and on Coast Guard ships.

Providing access to these ships would impose a substantial burden on the United States. Such access would interfere with the ships' "intended purposes" of interdicting and screening the Haitian migrants and returning those deemed to be ineligible for refugee status. Coast Guard officials would be forced to either remove the ship from the theater of operation or suffer the presence of untrained civilians while conducting their mission. In order to provide access to the Haitians aboard the Coast Guard cutters, the United States must put the Haitians ashore at Guantanamo, in the United States, or elsewhere or, alternatively, transport HRC representatives to the ships themselves. Either way, the United States is forced to assist HRC and subsidize the pursuit of its objectives.

Similarly, with reference to the Haitians being held at Guantanamo Bay Naval Station, the United States must hold the interdicted Haitians in custody 0907 at tremendous expense to the American taxpayer 0907 to assist HRC in its right to "meaningful access." Presumably, the government is also obligated to provide HRC representatives with transportation to and from Guantanamo, as well as shelter and other necessities while they are there.

Directly on point is Ukrainian-American Bar Ass'n. In that case, the Ukrainian-American Bar Association (UABA) brought suit to establish its "rights of access to [Soviet aliens seeking asylum in the United States] under the First Amendment to counsel such individuals regarding their Constitutional and statutory right to apply for political asylum." 893 F.2d at 1377. The United States Court of Appeals for the D.C. Circuit framed the issue presented as "whether the Government, once having acted to place [an] alien in custody, violates the first amendment rights of third parties when it declines to make provision for them to contact him." Id. at 1381. The court acknowledged that Button and In re Primus recognize a First Amendment right to solicit clients to engage in litigation as a form of political expression. Id. The court concluded, however, that the Government does not infringe that right when it refuses to provide access to an alien in its custody who is seeking political asylum:

[W]hen an unadmitted alien is taken into custody for interrogation and "immediate action," his entrance into custody does not infringe the right of any third party 0907 whether a lawyer or another with an interest in getting a message through to the alien 0907 to engage in constitutionally protected political expression....

1515

Furthermore, the Government does not infringe a third party's first amendment right to associate with an alien by holding the alien for a period of time during which the third party is unable to contact him. The loss of the right of association while the alien is held incommunicado by the Government is not of constitutional significance; it is but an indirect consequence of the Government's pursuit of *1515 an important task, viz. resolving "immediate action" cases.

Id.

HRC does not assert that the Government seeks to repatriate the interdicted Haitians in order to interfere with HRC's associational freedom. Indeed, in light of the record before us, it would be absurd for HRC to make such an allegation. HRC's claim is, therefore, nothing more than a claim that it has a right to compel the Government to assist it in exercising a right of association. Any court order enforcing this so-called "right" would impose an inappropriate affirmative obligation on the Government. This is more than the Constitution requires. We hold, therefore, that HRC's claim to a right of access to the interdicted Haitians is not a claim upon which relief can be granted and instruct the district court on remand to dismiss it.

VII. CONCLUSION

Case No. 91-6099
The "temporary restraining order" issued on December 18, 1991, has expired by its terms. The appeal of that order, our Case No. 91-6099, is DISMISSED as MOOT.
Case No. 91-6105 and 91-6118
All injunctive orders issued by the district court in its Case No. 91-2653-CIV are VACATED. The case is REMANDED to the district court. The district court is instructed upon remand to dismiss the action because the complaint fails to state a claim upon which relief can be granted.
The mandate shall issue immediately.
INJUNCTION ORDERS VACATED; REMANDED WITH INSTRUCTIONS.
HATCHETT, Circuit Judge, dissenting:
I respectfully dissent. We should examine what is really involved in this case. Reading the majority opinion, one might suppose that many precedents and principles of law prevent the Haitian Refugee Center (HRC) from having meaningful access to the refugees at Guantanamo Bay and on Coast Guard vessels. In reality, that is not the case. The principal matters before this court are: (1) whether the refugees have rights under the Administrative Procedures Act (APA), and (2) whether HRC has a First Amendment right to meaningful access to the refugees.[1] The district court correctly ruled that (1) the refugees have the right under the APA to be properly interviewed, and (2) HRC has a First Amendment right of access in accordance with reasonable time, place, and manner limitations. Consequently, the district court ordered the government not to repatriate the refugees before HRC's representatives were given the opportunity to counsel them regarding their rights and status in the present situation. Although the district court allowed the government to impose strict limitations, the government has steadfastly refused to allow HRC meaningful access to the refugees, under any circumstances.
The majority cites many cases for many legal propositions, but when all is said and done, the majority simply accepts the government's contention that these refugees have no enforceable rights in an American court because they have not reached the continental United States. For the majority, that is the heart of the matter; the refugees are outside of the United States. The government makes the "outside the United States" argument, and the majority accepts it, although everyone in this case agrees that agencies of the United States captured the refugees and are holding them on United States vessels and leased territory. Moreover, the majority accepts this argument although everyone in the case agrees that the refugees are being prevented from reaching the shores 1516 of the continental United States.[2] The majority *1516 accepts a pure legal fiction when it holds that these refugees are in a different class from every other "excludable alien" because Haitians, unlike other aliens from anywhere in the world, are prevented from freely reaching the continental United States.[3]
In addition to accepting this pure legal fiction, the majority fails to follow at least two well established principles of American law. First, from the beginning, the majority has proceeded as though called upon to decide the issues on the merits, rather than to review the appropriateness of the district court's entry of preliminary injunctions. Under our circuit's law, the majority should have reviewed the appropriateness of the district court's preliminary injunctions by considering whether HRC and the refugees have proved: (1) a substantial likelihood of prevailing on the merits of their claims; (2) a substantial threat of suffering irreparable injury in the absence of an injunction; (3) that the threatened injury to them outweighs the potential harm an injunction would cause the government; and (4) that the injunction would not be adverse to the public interest. Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555 (11th Cir.1989).
Secondly, the majority determines the issues on appeal as though they are purely matters of law, without considering the district court's findings of fact. For example, early in this case, the majority held that the district court's First Amendment remedy was too broad because the Guantanamo Naval Base is a military installation

and military activities would be disrupted if a few lawyers visited the refugee compound.[4] To the contrary, the district court found that the refugees are being held in a portion of the base not used for military purposes. The record in this case shows that television reporters, church officials, political activists, congressmen, and a host of other people regularly visit the Haitian compound at Guantanamo, evidently without disrupting military operations.
Among the other district court findings the majority ignores, are the following: The refugees fled Haiti because of the overthrow of the legal government; many face irreparable and even fatal injury, if returned; the government's harms, if any, are monetary and speculative; low level officials are not screening according to the INS guidelines; screening procedures are inadequate; conditions in Haiti have worsened in the last month [November-December, 1991]; refugees who have been returned have faced persecution; the Haitian Red-Cross is under the control of the military; and the government continues to deny HRC's representatives access to the refugees. Had the majority seriously considered these factual findings and reviewed the preliminary injunctions under the proper standards, it would have concluded, as I do, that the preliminary injunctions were properly issued.
I. THE FIRST AMENDMENT CLAIM
In an earlier opinion, the majority stated that the injunction granted by the district court was too broad to serve the First Amendment right of access asserted by HRC. HRC v. Baker, 949 F.2d 1109, 1111 (11th Cir.1991). In its opinion today, the majority holds that HRC has no such right. While I concur in the majority's conclusion that HRC's right of access to the interdicted Haitians cannot compel the government to allow it aboard United States Coast Guard cutters on the high seas, I dissent from the remainder of the majority's opinion on the First Amendment issue.
As a reviewing court, we must clearly state the law. In Jean v. Nelson, 727 F.2d 957 (11th Cir.1984) (en banc), a case the majority completely ignores, we did so. "The Supreme Court has repeatedly emphasized that counsel 1517 have a first amendment *1517 right to inform individuals of their rights, at least when they do so as an exercise of political speech without expectation of remuneration...." 727 F.2d at 983. HRC asserts precisely such a right in this case. Yet, despite Jean, the majority concludes that HRC has no First Amendment right of access to the refugees, because the refugees themselves have no rights. One conclusion simply does not follow from the other. Nothing in Jean predicates HRC's First Amendment right of access to the Haitians on the existence of rights in the Haitians themselves. The majority reinterprets 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) to find such a predicate which the holdings of those cases do not require.
The district court found that Guantanamo Bay Naval Base is replete with civilians and civilian functions. The base as a whole, however, is surely a non-public forum. See Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976). The Supreme Court stated the law governing First Amendment rights in non-public forums in Perry Education Ass'n v. Perry Local Education Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983):
In addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.
460 U.S. at 46, 103 S.Ct. at 955 (emphasis added). Later in the opinion, the Court stated:
Implicit in the concept of the non-public forum is the right to make distinctions in access on the basis of subject matter and speaker identity.... The touchstone for evaluating these distinctions is whether they are reasonable in light of the purpose which the forum at issue serves.
460 U.S. at 49, 103 S.Ct. at 957 (emphasis added). Thus, even in a non-public forum, restrictions on speech must be reasonable and not motivated solely by the government's opposition to the speaker's point of view. While the government may decide that its interests in reserving the non-public forum for its intended purposes require the complete exclusion of certain speakers, such an exclusion must be "reasonable in light of the purpose which the forum at issue serves." Perry, 460 U.S. at 46, 49, 103 S.Ct. at 955, 957.

The record reveals that the government has indeed discriminated against HRC based upon the content of its speech. The district court found that the government has "opened the camps to members of the press and to representatives of the United Nations High Commission on Refugees." It has allowed access to the refugees to many individuals and groups. But, it has denied such access to the HRC lawyers who seek to assist the Haitians in understanding and navigating through the predicament in which our government placed them.
Applying the Perry standard to these facts, the district court did not err in holding that the government must allow HRC access to the Haitians at Guantanamo Bay, subject to appropriate time, place, and manner restrictions. First Amendment rights vary according to the specific characteristics of the forum. Heffron v. Int'l Society for Krishna Consciousness, 452 U.S. 640, 650-51, 101 S.Ct. 2559, 2565-66, 69 L.Ed.2d 298 (1981). Accordingly, such rights are broader in those parts of a military base used for nonmilitary functions than in areas utilized for purely military functions. See Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972). The majority completely ignores the significance of the district court's finding that "the portions of the military installation to which HRC seeks access are not used for military purposes." The special master found that Guantanamo hums with civilian activity and is a "slice of America." Thus, the district court did not abuse its discretion in finding that the government's decision to exclude HRC from Guantanamo Bay was unreasonable in light of the "purpose which the forum at issue serves." Perry, 460 U.S. at 49, 103 S.Ct. at 957.
1518 *1518 As the Supreme Court held in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), an American citizen's First Amendment rights may not constrain the government's power to exclude aliens from the United States. 408 U.S. at 768, 92 S.Ct. at 2584. In this case, however, HRC only asked for access to the Haitians, not their admission to the United States. I would uphold the district court's grant of a preliminary injunction temporarily staying repatriation of the Haitians under the general principle that federal courts may issue injunctions to preserve the status quo during litigation. See, e.g., Hollon v. Mathis Independent School Dist., 491 F.2d 92, 93 (5th Cir.1974) (per curiam). While an appeal was pending in this case, the district court properly issued a limited preliminary injunction to ensure that HRC's First Amendment right was not circumvented by repatriation of the refugees pending expedited determination on the merits.
The majority is correct in holding that the government is not required to subsidize HRC's access to the Haitians. In order to allow HRC the access to which it is entitled under the First Amendment, however, the government may have to provide some assistance in this case that it would not be obligated to provide under more "normal" circumstances.[5] The district court must determine these factual matters. The majority's presumption that the government is "obligated" under the district court order "to provide HRC representatives with transportation to and from Guantanamo as well as shelter and other necessities while they are there," is completely unsupported by the record before this court. This appellate court may not make findings of fact, especially on matters not borne out by the record.
Finally, the majority opinion flouts a recognized canon of the legal profession. Lawyers must have access to their clients so they may advise them of potential rights and causes of action in American courts. Even if the clients have no such rights or causes of action, the lawyer is entitled to counsel the client regarding the legal situation and the available options. Instead, in this case, the majority holds that the Haitian refugees have no rights enforceable in American courts, and therefore they have no business meeting with lawyers. Thus, the majority deprives these non-English speaking Haitians, unschooled in the American legal system, of lawyers in a situation affecting their most fundamental interests, because of a prior determination that they have no rights to justify meeting with American lawyers. Obviously, such a determination of the Haitians' rights should be made only after they have received the benefit of counsel.
I would remand the case to the district court for it to make findings of fact regarding the scope of HRC's First Amendment right of access to the Haitians at Guantanamo Bay, to determine the appropriateness of time, place, and manner restrictions on that right, and to tailor the existing injunction to conform to its findings.
II. JUDICIAL REVIEW UNDER THE APA

A. BACKGROUND
After previously determining that the HRC would not prevail on the merits of an APA claim, the district court 1519 reconsidered the APA claim in light of this court's December *1519 17, 1991 opinion and the briefs filed before
this court. The district court, having the benefit of this court's opinion and a thorough briefing of the issue, recognized the significant distinction between "the President's discretion in establishing the program and subordinates' discretion or lack thereof in following program procedures and guidelines." The district court concluded that a court reviewing the actions of subordinates in carrying out the program would have meaningful standards against which to measure those actions. On appeal, the Eleventh Circuit majority reversed the district court on the basis of the district court's previous understanding of the APA issue which viewed the suit as challenging the broad grant of discretion to the President in establishing the interdiction program.
B. DISCUSSION
The majority holds that the APA provides no basis for HRC's claims, because the presumption of reviewability normally afforded agency action withers in the light of national security or foreign affairs concerns. Additionally, the majority holds that neither the Executive Order nor the various international laws and statutory provisions upon which HRC relies provide any guidance regarding the procedures used in repatriation decisions. Because the APA provides for judicial scrutiny of the actions of low ranking government officials in order to determine if the officials are in compliance with Article 33 and the INS guidelines issued pursuant to Executive Order 12324, I would uphold the preliminary injunction on the APA claim.
Generally, the APA provides a cause of action to "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702. Both Article 33 and Executive Order No. 12324 with its implementing INS guidelines charge executive officials with the enforcement of United States immigration law. The law prohibits the return of political refugees to a country where they face persecution because of their political views. The actions of lower level executive officials in the field are subject to judicial review under the APA in order to determine if the officials are complying with the law's mandate, unless the law itself precludes judicial review, or the actions of the executive officials have been committed to their discretion by law. Compare 5 U.S.C. § 706(2)(A) (providing the scope of judicial review) with 5 U.S.C. § 701(a) (providing exceptions to judicial review). HRC and the class of Haitians interdicted on the high seas can avail themselves of this judicial review if: (1) they satisfy the standard set out in 5 U.S.C. § 702, (2) the officials' actions are reviewable under 5 U.S.C. § 704 and (3) the officials' actions do not come under the exclusion provisions of 5 U.S.C. § 701(a)(1) and (2).
1. Refugees Satisfy Sections 702 and 704
First, a reviewing court must determine whether HRC and the class satisfy the standard of 5 U.S.C. § 702. Section 702 provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. The majority implies that the APA does not apply to aliens outside the borders of the United States because such aliens are not "persons" for purposes of APA review. Nowhere in the language of the statute does it state that a "person" must be a United States citizen. In fact, the statutory definition of "person," defined at 5 U.S.C. § 551(2), broadly defines the word as an "individual, partnership, corporation, association, or public or private organization other than an agency." Since the language of the APA does not specify that persons bringing suit under the Act must be United States citizens, HRC should not be precluded from raising an APA claim on that basis. See also Stone v. Export-Import Bank, 552 F.2d 132, 136 (5th Cir.1977), cert. denied, 434 U.S. 1012, 98 1520 S.Ct. 726, 54 L.Ed.2d 756 (1978) (holding that foreign agency was a person); Constructores Civiles De Centro *1520 America, S.A. v. Hannah, 459 F.2d 1183, 1190 (D.C.Cir.1972) (holding that APA review concerning a project in Nicaragua was available to a Honduran corporation); Estrada v. Ahrens, 296 F.2d 690 (5th Cir. 1961) (noting that the APA "does not say `any citizen.' It does not say `any person physically present in the United

States.' ... [T]he emphasis is on the breadth of the coverage."). O'Rourke v. United States Dept. of Justice, 684 F.Supp. 716, 718 (D.D.C.1988) (holding that an Irish citizen imprisoned in his own country fell within the definition of "person" used in the APA); and Neal-Cooper Grain Co. v. Kissinger, 385 F.Supp. 769, 776 (D.D.C.1974) (holding that "person" included Mexican government).
Next, a reviewing court must determine whether HRC is "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action." 5 U.S.C. § 702. The actions of low ranking government officials charged with the duty of properly interviewing the refugees constitute agency actions. See 5 U.S.C. § 701(b)(1); see also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971). The district court found that the refugees interdicted on the high seas have "well founded fears of political persecution if returned to Haiti." Specifically, the district court found that the refugees will suffer irreparable injury in the absence of an injunction because the procedures the agency followed in screening them were inadequate to properly identify political refugees. Under the Executive Order with its implementing guidelines, Haitians interdicted on the high seas are to be returned to Haiti, unless they are political refugees. Therefore, HRC and the interdicted Haitian class have been adversely affected by the agency's action of failing to follow agency rules setting forth adequate procedures to identify and protect Haitians who are political refugees.
Low ranking government officials have failed to take the steps necessary to ensure the enforcement of United States immigration laws as found in the Protocol and the Executive Order with its implementing INS guidelines. Thus, the Haitians interdicted on the high seas are "suffering legal wrong because of agency action." See 5 U.S.C. § 702. Both the Protocol and the Executive Order with its implementing INS guidelines constitute the relevant United States law relating to the interdiction of Haitians on the high seas. As I have previously concluded, the subject matter, legislative history, and subsequent construction of the Protocol support the proposition that it is self-executing and binding upon the United States in accordance with Article VI of the United States Constitution. See Haitian Refugee Center, Inc. v. Baker, 949 F.2d 1109, 1113-14 (11th Cir.1991) (Hatchett, J., dissenting). Additionally, the Protocol's protections apply to refugees outside the continental United States. Thus, Haitians interdicted on the high seas outside the continental United States are entitled to the Protocol's protections. See Haitian Refugee Center, Inc. v. Baker, 949 F.2d at 1115-16.
The Executive Order, which is based upon the authority vested in the President by the Constitution and statutes of the United States, including sections 212(f) and 215(a)(1) of the Immigration and Nationality Act (INA), as amended, 8 U.S.C. §§ 1182(f) and 1185(a)(1), is accorded the force and effect of a statute enacted by Congress. See Farkas v. Texas Instruments, 375 F.2d 629, 632 (5th Cir.), cert. denied, 389 U.S. 977, 88 S.Ct. 480, 19 L.Ed.2d 471 (1967); see also Legal Aid Society of Alameda City v. Brennan, 608 F.2d 1319, 1329-30 n. 14 (9th Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980). Since the low ranking government officials' actions violate these laws, the Haitians interdicted on the high seas are aggrieved by agency action within the meaning of relevant law. See 5 U.S.C. § 702. Thus, HRC and the refugees satisfy the requirements of 5 U.S.C. § 702.
Nevertheless, in order to be reviewable, the decision to repatriate must constitute "final agency action for which 1521 there is no other adequate remedy in a court." 5 U.S.C. § 704. The refugees were forcefully *1521 repatriated
despite inadequate screening procedures used by low ranking government officials. Therefore, INS took final action, and the Haitians had no other adequate remedy to compel INS officials to comply with the mandates of United States law. Thus, this agency action is subject to judicial review unless the relevant law precludes judicial review, or the action of the agency is committed to its discretion by law. See 5 U.S.C. § 701(a)(1) and (2).
2. Reviewability and Section 701(a)(1) Exceptions
Once the refugees established that they met the criteria set out in APA sections 702 and 704, a strong presumption of reviewability of agency action attached. Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 2135, 90 L.Ed.2d 623 (1986). In Bowen, the Court noted:
Very rarely do statutes withhold judicial review. It has never been the policy of Congress to prevent the administration of its own statutes from being judicially confined to the scope of authority granted or to the objectives specified. Its policy could not be otherwise, for in such a

case statutes would in effect be blank checks drawn to the credit of some administrative officer or board.
Bowen, 476 U.S. at 671, 106 S.Ct. at 2136 (citing S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)). In the present case, the government is in effect asking for a "blank check" drawn to the credit of the INS because the Haitian refugees have not reached the shores of the United States.
The actions of low ranking government officials charged with the duty of properly interviewing the refugees are subject to judicial review unless it is clear that such review is barred. See Morris v. Gressette, 432 U.S. 491, 500-01, 97 S.Ct. 2411, 2418, 53 L.Ed.2d 506 (1977); Barlow v. Collins, 397 U.S. 159, 165, 90 S.Ct. 832, 837, 25 L.Ed.2d 192 (1970); Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). Nothing in the Protocol or Executive Order 12324 with its implementing INS guidelines precludes judicial review. As noted earlier, I concluded in Haitian Refugee Center v. Baker, 949 F.2d at 1113-16 that the Protocol incorporating Article 33 is self-executing and applies extraterritorially. Article 33 provides:
No contracting state shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group, or political opinion.
Convention Relating to the Status of Refugees, art. 33, ¶ 1, 198 U.N.T.S. 150, 176 (July 28, 1951). The Protocol defines "refugee" as any person who,
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.
Protocol, art. 1, ¶ 2, 19 U.S.T. 6223, 6225; T.I.A.S. No. 6577 at 3. Nothing in the language of Article 33 or definitional sections of the Protocol precludes judicial review of the enforcement of the law's mandate.
Additionally, a district court does have jurisdiction to evaluate claims based on an executive order. See Farkas, 375 F.2d at 632. The Executive Order on which the refugees rely states:
[N]o person who is a refugee will be returned without his consent.... The Attorney General shall, in consultation with the Secretary of State and the Secretary of the Department in which the Coast Guard is operating, take whatever steps are necessary to ensure the fair enforcement of our laws relating to immigration (including effective implementation of this Executive Order) and the strict observance of our international obligations concerning those who genuinely flee persecution in their homeland.
Exec.Order No. 12324, 46 Fed.Reg. 48,109 (1981). Nevertheless, the majority rejects the refugees' claim based 1522 on the Executive *1522 Order, stating that the Executive Order does not give rise to a private cause of action.
Apparently, the majority believes that since the Executive Order establishes an interdiction program that takes place on the high seas, "it could not have been the intention of the President to allow the interdictees to initiate judicial review of their cases in the district courts of the United States." Majority Op. at 1511 (emphasis added). At this point the majority's position must fail.
The refugees do not seek judicial review of the denial of asylum in their individual cases. The majority took note of this fact when it recognized "[HRC's] claim ... is not based on a challenge to any individual determination made by the INS officers. Rather, the plaintiffs challenge the procedure used to interview the interdictees in order to determine which ones are subject to being repatriated." Majority Op. at 1508. The refugees' assertion that low level executive officials are not following guidelines for the interviewing procedures enables them to pursue this cause of action.
This case is analogous to 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). In Jean, we held that although courts have no authority to evaluate individual deportation orders, courts do have the authority to determine whether the actions of lower-level immigration officials were exercised in accordance with executive policy. We stated:

[S]ince the discretion of lower-level immigration officials is circumscribed not only by legislative enactments but also by the instructions of their superiors in the executive branch, ... [t]he district court must still determine whether the actions of lower-level officials in the field conform to the policy statements of their superiors in Washington.
Jean, 727 F.2d at 978. In this case, the refugees do not seek review of individual asylum determinations, but rather seek review of the procedures the lower-level officials employed. The refugees claim that these lower-level officials did not follow the guidelines promulgated pursuant to the Executive Order in processing them. They also allege that the officials acted arbitrarily and capriciously. Although the aliens in Jean were on United States soil and the Haitians in this case were not, nothing in the language of the APA suggests that aliens cannot seek redress under the APA. Further, nothing in the language of the Protocol or the Executive Order precludes the refugees from asserting a cause of action based on the APA to set aside the acts of low ranking government officials.
The Supreme Court, however, has held that section 701(a)(1) of the APA can still apply to preclude judicial review even if the specific language of the law does not preclude such review. In Bowen, the Supreme Court stated that the presumption against reviewability can be overcome by "specific language or specific legislative history that is a reliable indicator of congressional intent, or a specific congressional intent to preclude judicial review that is `fairly discernible' in the detail of the legislative scheme." Bowen, 476 U.S. at 673, 106 S.Ct. at 2137 (quoting Block v. Community Nutrition Institute, 467 U.S. 340, 349, 104 S.Ct. 2450, 2456, 81 L.Ed.2d 270 (1984)). The Bowen Court also recognized that
the congressional intent necessary to overcome the presumption may also be inferred from contemporaneous judicial construction barring review and the congressional acquiescence in it ... or from the collective import of legislative and judicial history behind a particular statute, ... [or] by inferences of intent drawn from the statutory scheme as a whole.
Bowen, 476 U.S. at 673 n. 4, 106 S.Ct. at 2137 n. 4 (citations omitted). In this case, Presidential or Congressional intent to bar judicial review of the actions of low level government officials charged with the duty of properly interviewing refugees is not "fairly discernable" in laws relating to the interdiction of Haitians. The legislative history surrounding the United States' accession to the Protocol does not indicate that Congress intended to bar judicial review of the enforcement of this law. Congress intended that the Protocol be 1523 selfexecuting *1523 and apply extraterritorially. See Haitian Refugee Center v. Baker, 949 F.2d 1109, 1113-14 (11th Cir.1991) (Hatchett, J., dissenting). See also Note, Interdiction: The United States Continuing Violation of International Law, 68 B.U.L.Rev. 773 (1988). Neither specific language nor reliable indicators rebut the presumption of reviewability. After examining as a whole the scheme of the United States's laws relating to the interdiction of Haitians on the high seas, I conclude that United States immigration law concerning interdiction does not preclude judicial review in this setting. Thus, section 701(a)(1) of the APA is inapplicable.
Additionally, the President specifically provided in his Executive Order that the United States's immigration laws would be enforced outside the territorial boundaries and waters of the United States. This exportation of laws also constitutes an exportation of rights and duties. These rights and duties are detailed in the Protocol and the Executive Order. Since the government has a duty to enforce these rights outside the borders of the United States, the corresponding enforcement mechanisms must accompany these rights. Thus, I cannot conclude that the President did not intend for the remedy provided by the APA to accompany the exportation and enforcement of United States immigration laws. This court must not adopt the unconscionable position of divorcing the remedy of APA review from the right to such review created by the Protocol and the Executive Order.
3. Reviewability and the Section 701(a)(2) Exception
The majority states that the refugees have no right to judicial review of the government's compliance with the INA through the APA. Specifically, the majority points to the language of the INA to determine that the interdicted Haitians have no cognizable rights. However, it is on the refugees' right to judicial review, through the APA, testing the government's compliance with the Protocol and the Executive Order upon which I find that the

refugees have demonstrated a likelihood of success. Thus, the court must determine whether meaningful guidelines exist that provide a method to evaluate the actions of the lower-level INS officials. See Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985) (the APA is applicable in "instances where statutes are "drawn so that a court would have [a] meaningful standard against which to judge the agency's exercise of discretion"). In the language of the APA, the inquiry is whether the officials' actions were "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). I find that they are not.
The majority concedes that "`[e]ven when a decision is committed to agency discretion, a court may consider allegations that an agency failed to follow its own binding regulations.'" Majority Op. at 1508 (quoting State of Florida, Dept. of Business Regulation v. United States Dept. of the Interior, 768 F.2d 1248, 1257 n. 11 (11th Cir.1985), cert. denied, 475 U.S. 1011, 106 S.Ct. 1186, 89 L.Ed.2d 302 (1986)). Further, in CC Distributors, Inc. v. United States, 883 F.2d 146, 154 (D.C.Cir.1989), the court held that administrative regulations promulgated to execute an agency's legal directives may serve as standards for judicial review. See also Center for Auto Safety v. Dole, 846 F.2d 1532 (D.C.Cir. 1988). The majority, however, finds that the language of the Protocol and the Executive Order neither limits lower-level INS agents' discretion nor enumerates specific criteria to be weighed when deciding who is a "refugee."[6]
What the majority fails to recognize is that the INS Guidelines serve as the standard for judicial review for both the Protocol and the Executive Order. The INS guidelines state that the "authority" upon which the guidelines are based includes "Article 33, United Nations Convention and Protocol Relating to the Status of Refugees" and 1524 "Executive Order No. 12324 dated *1524 September 29, 1981 (interdiction of Illegal Aliens)." The INS Guidelines for Interdiction at Sea were promulgated as a direct result of the Protocol and the Executive Order. The majority noted, "The Executive Order was issued specifically to establish a procedure for interdiction of Haitian migrants on the high seas." Majority Op. at 1510. The majority, however, found that the INS Guidelines did not provide meaningful standards for judicial review. Thus, the majority held that lower-level INS officials' actions were committed to agency discretion by law. This conclusion is erroneous. In part, the INS guidelines state:
INS OFFICER RESPONSIBILITIES
A. To the extent that it is, within the opinion of the Commanding Officer of the United States Coast Guard vessel, safe and practicable, each person aboard an interdicted vessel shall be spoken to by an INS officer, through an interpreter. A log record shall be maintained of each such person, based on their responses to the following inquiries:
1. Name;
2. Date of Birth;
3. Nationality;
4. Home Town (obtain sufficient information to enable a later location of the individual to check on possible persecution);
5. All Documents or Evidence Presented;
6. Why did you leave Haiti;
7. Why do you wish to go to the United States;
8. Is there any reason why you cannot return to Haiti?
B. A copy of the log prepared by the INS officers shall be provided to the Commanding Officer of the Coast Guard vessel.
C. INS officers shall be constantly watchful for any indication (including bare claims) that a person or persons on board the interdicted vessel may qualify as refugees under the United Nations Convention and Protocol.

D. If there is any indication of possible qualification for refugee status by a person or persons on board an interdicted vessel, INS officers shall conduct individual interviews regarding such possible qualification.
E. Interviews regarding possible refugee status shall be conducted out of the hearing of other persons.
F. If necessary, INS officers will consult with Department of State officials, either on board, or via radio communications.
G. Individual records shall be made of all interviews regarding possible qualification for refugee status.
H. If the interview suggests that a legitimate claim to refugee status exists, the person involved shall be removed from the interdicted vessel, and his or her passage to the United States shall be arranged.
I. Individual record folders shall be prepared and maintained by INS officers in every case where a person is being sent on to the United States, and such record folder may be used to support such person's claim in the United States. (The individual folder shall contain a sworn statement by the applicants concerning the claim).
The guidelines specifically detail information that INS officials are to obtain from each Haitian claiming refugee status. The guidelines do not use permissive language to describe how INS officials are to treat Haitians who make even bare claims that they qualify as refugees under the Protocol. Instead, the guidelines employ mandatory language such as "INS officers shall conduct individual interviews"; "Interviews ... will be conducted out of the hearing of other persons"; "Individual records shall be made"; "If the interview suggests that a legitimate claim to refugee status exists, the person involved shall be removed from the interdicted vessel, and his or her passage to the United States shall be arranged." INS Guidelines §§ C, D, E, G, and H. These guidelines state standards that are to be adhered to when processing interdicted Haitians. The government's 1525 failure to follow these guidelines, as found by the district court, means *1525 that the refugees have demonstrated a substantial likelihood of success on the APA claim.
C. CONCLUSION
HRC and the class of Haitians interdicted on the high seas can avail themselves of judicial review because: (1) they satisfy the standard set out in 5 U.S.C. § 702; (2) the government officials' actions are reviewable under 5 U.S.C. § 704; and (3) the government officials' actions do not come under the exclusion provisions of 5 U.S.C. § 701(a). Thus, the APA provides HRC with a cause of action to seek judicial review of the actions of low ranking government officials charged with the duty of properly screening Haitian interdictees.
[1] The defendants filed an emergency appeal of the district court's temporary restraining order, filed a petition for a writ of mandamus, and sought a stay of the expedited discovery order. On November 21, this court stayed the district court's discovery order. On November 22, this court lifted the stay of discovery, dismissed the appeal of the temporary restraining order for want of jurisdiction, and denied the petition for a writ of mandamus.
[2] Although the plaintiffs assert a claim under the INA and the Refugee Act of 1980, we view their claim to be based on the INA as it has been amended by the Refugee Act of 1980. More specifically, we view their claim to be based primarily on 8 U.S.C. § 1253(h) as it was amended by the Refugee Act of 1980 and 8 U.S.C. § 1158(a) which was added to the INA by the Refugee Act.
[3] In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

[4] Plaintiffs argue that Estrada v. Ahrens, 296 F.2d 690 (5th Cir.1961), supports their position that the APA should be applied in this case. Estrada dealt with an alien who held a valid visa and subsequently was refused entry. In this case the plaintiffs have never reached the United States so Estrada is not controlling. Further, the court in Estrada distinguishes the facts of its case from those of an alien initially applying for a visa. The court stated that "an alien initially applying for a visa, however, may be summarily turned down by the American consul. Such refusal is usually considered immune to judicial review." Id. at 692 n. 2.
[5] The logical extension of this argument would make all of the President's discretionary decisions subject to review except in matters he can personally execute without the assistance of subordinates.
[6] We agree with the district court's conclusion that the Haitian refugees do not have correlative First Amendment rights of their own. See Dec. 3, 1991 Memorandum Order at 44.
[7] The district court noted that there was no allegation that the government's denial of access to the interdicted Haitians was the product of viewpoint discrimination. See Dec. 3, 1991 Memorandum Order (incorporated into Dec. 20, 1991 Order at 8).
[8] The district court previously concluded that the interdicted Haitians have no rights under the United States Constitution. See Dec. 3, 1991 Memorandum Order at 44. Today, we express agreement with that conclusion. See ante at 1511 n. 6. Moreover, we decide today that the interdicted Haitians have none of the substantive rights 0907 under Executive Order No. 12324, 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 0907 that they claim for themselves or that the HRC claims for them. See ante at 1514-15.
[1] Other issues were brought to the court through HRC cross-appeal, but will not be addressed in this dissent due to the expedited nature of this case.
[2] As stated in a previous dissent, the capture of Haitian refugees in international waters is authorized under a 1981 agreement between the Reagan administration and the totalitarian government of Jean-Claude "Baby Doc" Duvalier. The record does not disclose such an agreement with any other country.
[3] This court noted in Jean v. Nelson, 727 F.2d 957, 961 n. 1 (11th Cir.1984) (en banc): "[A]liens who have reached our border but have not formally been admitted to the United States are described as `excludable' ... aliens."
[4] Surprisingly, at this stage of the case, the majority holds that HRC has no First Amendment rights.
[5] None of the cases cited by the majority compel a different result. DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 196, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989) and Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) were both cases brought under the Due Process Clause and thus are not dispositive of the First Amendment claim asserted here. Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) is a case dealing with media access to government information and thus is also inapposite to the right asserted here. Finally, Ukrainian American Bar Ass'n v. Baker, 893 F.2d 1374, 1381 (D.C.Cir.1990) is inapplicable for two reasons. First, the plaintiffs in that case sought to require the government to provide information to excludable aliens. In this case, HRC seeks only a removal of the government's bar on HRC's ability to communicate with the Haitians. Second, Ukrainian American Bar Ass'n is not the law of this circuit, unlike Jean v. Nelson, a case which the majority has completely ignored.
[6] In this instance, "refugee" is used as a legal term of art indicating interdictees who have undergone the appropriate screening procedures set forth in the INS guidelines. On other occasions, I have used the term "refugee" in its broad and non-legal sense.
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 Haitian Refugee Center, Inc. v. Baker, 954 F.2d 731 (Table) (1992)

954 F.2d 731 (Table) (The decision of the Court is referenced in an Eleventh Circuit Table of Denials of Rehearing En
Banc appearing in the Federal Reporter.) United States Court of Appeals, Eleventh Circuit.
Haitian Refugee Center, Inc. v.
Baker (James, III)

NO. 91-6060 | Jan 28, 1992 S.D.Fla., 949 F.2d 1109
Opinion DENIALS OF REHEARING EN BANC.
	  

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 Baker v. Haitian Refugee Center, Inc., 502 U.S. 1083 (1992)

112 S.Ct. 1072 Supreme Court of the United States
James BAKER, III, Secretary of State, et al., applicants, v.
HAITIAN REFUGEE CENTER, INC., et al.
No. A-551. | January 31, 1992
Opinion
The application of the Solicitor General for stay, presented to Justice Kennedy and by him referred to the Court, is granted. It is ordered that the order of the United

States District Court for the Southern District of Florida, case No. 91-2635-CIV-Atkins, filed December 20, 1991, is stayed pending disposition of the appeal by the United States Court of Appeals for the Eleventh Circuit.
Justice BLACKMUN, Justice STEVENS and Justice THOMAS would deny the application.
Parallel Citations 112 S.Ct. 1072 (Mem), 117 L.Ed.2d 277, 60 USLW 3544
	  

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 Haitian Refugee Center, Inc. v. Baker, 502 U.S. 1084 (1992)

112 S.Ct. 1073 Supreme Court of the United States
HAITIAN REFUGEE CENTER, INC., et al., petitioners, v.
James BAKER, III, Secretary of State, et al.
No. A-581 (91-1292). | February 11, 1992
Case below, 949 F.2d 1109; 950 F.2d 685; 954 F.2d 731.
Opinion
The application for stay of mandate of the United States Court of Appeals for the Eleventh Circuit presented to

Justice KENNEDY, has been referred to the Court by him. The motion of petitioners for temporary waiver of Rule 33 is granted. The Solicitor General is directed to file a response to the application for stay and the petition for a writ of certiorari on or before 3 p.m. Friday, February 14, 1992.
Justice BLACKMUN would grant the application for stay at this time.
Parallel Citations
112 S.Ct. 1073 (Mem), 117 L.Ed.2d 278, 60 USLW 3553
	  

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 Haitian Refugee Center, Inc. v. Baker, 502 U.S. 1122 (1992)

112 S.Ct. 1245 Supreme Court of the United States
HAITIAN REFUGEE CENTER, INC., et al., petitioners, v.
James BAKER, III, Secretary of State, et al. (two cases).
No. 91-1292 (A-581). | February 24, 1992
Former decision, 502 U.S. 1084, 112 S.Ct. 1073.
Case below, 11 Cir., 949 F.2d 1109; 953 F.2d 1498.
On application for stay and on petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit.
Opinion
The application for stay of mandates, presented to Justice KENNEDY and by him referred to the Court, is denied. The petition for a writ of certiorari is denied.
Justice STEVENS, respecting the denial of certiorari.
It is important to emphasize that the denial of the petition for writ of certiorari is not a ruling on any of the unsettled and important questions of law presented in the petition. See Singleton v. Commissioner, 439 U.S. 940, 942, 99 S.Ct. 335, 337, 58 L.Ed.2d 335 (1978) (STEVENS, J., respecting denial of certiorari).
Justice THOMAS, respecting the denial of certiorari.
On 502 U.S. 1083, 112 S.Ct. 1072, 117 L.Ed.2d 277. The petitioners have since briefed the merits of their petition for certiorari, and I now conclude that under the standards this Court has traditionally employed, cf. this Court’s Rule 10.1, the petition should be denied.
The affidavits filed throughout this litigation have sought to describe the conditions in *1246 Haiti and the

treatment the returnees have received there. I am deeply concerned about these allegations. However, this matter must be addressed by the political branches, for our role is limited to questions of law. Because none of the legal issues presented in this petition provides a basis for review, I join the Court’s denial of certiorari.
Justice BLACKMUN, dissenting from denial of certiorari.
The world has followed with great concern the fate of thousands of individuals who fled Haiti in the wake of that country’s September 1991 military coup. As the complex procedural history of this case reveals, the legal issues surrounding the rights of Haitians interdicted on the high seas by the United States Coast Guard have deeply divided the four federal judges who have considered their claims. Each of the issues presented-whether the United States Government is violating the First Amendment by denying lawyers from the Haitian Refugee Center a right of access to the Haitians held at Guantanamo Bay; whether international or domestic law affords the Haitians a substantive right not to be returned to a country where they face possible persecution; and whether the Haitians may challenge the adequacy of procedures employed by the United States Government to identify those facing political persecution-is difficult and susceptible to competing interpretations.
A quick glance at this Court’s docket reveals not only that we have room to consider these issues, but that they are at least as significant as any we have chosen to review today. If indeed the Haitians are to be returned to an uncertain future in their strife-torn homeland, that ruling should come from this Court, after full and careful consideration of the merits of their claims.
I dissent from the Court’s decision to deny a writ of certiorari.
Parallel Citations
112 S.Ct. 1245 (Mem), 117 L.Ed.2d 477, 60 USLW 2513, 60 USLW 3600, 60 USLW 3564, 60 USLW 3577
	  

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