Cuban American Bar Ass'n v. Christopher

United States Court of Appeals,

Eleventh Circuit.

Nos. 94-5138, 94-5231 and 94-5234.

CUBAN AMERICAN BAR ASSOCIATION, INC., Cuban Legal Alliance, Inc.,
Due Process, Inc., Lizbet Martinez, Arianna Gonzalez Nobaez, Arniel
Del Campo Gonzalez, on behalf of themselves and all others
similarly situated, Jovani Miguel Fiffe Pino, Nestor Rodriguez
Labori, Nelson Torres Pulido, Maritza Exposito, David Buzzi,
Alberto Rodriguez Garcia, on behalf of themselves and all others
similarly situated, Leydis Milagros Ruiz Mendez, on behalf of
herself and all others similarly situated, Elena Pino, Virginia
Perez, on behalf of themselves and all others similarly situated,
Plaintiffs-Appellees,

Haitian Refugee Center, Inc.; Garry Joseph, Paulomme Edmond,
Pierre Onel Antoine, Voidieu Jean Louis, Bergeline Jean Louis,
Padeci Jean Louis, on behalf of themselves and others similarly
situated, Provisional Intervenors,

v.

Warren CHRISTOPHER, Secretary of State, William J. Perry,
Secretary of Defense, Doris Meissner, Commissioner, Immigration and
Naturalization Service, Janet Reno, Attorney General, Immigration
and Naturalization Service, Brigadier General Michael Williams,
Commander Joint Task Force, Defendants-Appellants.

CUBAN AMERICAN BAR ASSOCIATION, INC., Cuban Legal Alliance, Inc.,
Due Process, Inc., Lizbet Martinez, Arianna Gonzalez Nobaez, Arniel
Del Campo Gonzalez, on behalf of themselves and all others
similarly situated, Jovani Miguel Feffe Pino, Nestor Rodriguez
Labori, Nelson Torres Pulido, Maritza Exposito, David Buzzi,
Alberto Rodriguez Garcia, on behalf of themselves and all others
similarly situated, Leydis Milagros Ruiz Mendez, on behalf of
herself and all others similarly situated, Elena Pino, Virginia
Perez, on behalf of themselves and all others similarly situated,
Plaintiffs,

Haitian Refugee Center, Inc.; Garry Joseph, Paulomme Edmond,
Pierre Onel Antoine, Voidieu Jean Louis, Bergeline Jean Louis,
Padeci Jean Louis, on behalf of themselves and others similarly
situated, Provisional Intervenors-Appellees,

v.

Warren CHRISTOPHER, Secretary of State, William J. Perry,
Secretary of Defense, Doris Meissner, Commissioner, Immigration and
Naturalization Service, Janet Reno, Attorney General, Immigration
and Naturalization Service, Brigadier General Michael Williams,
Commander Joint Task Force, Defendants-Appellants.
 Jan. 18, 1995.

Appeals from the United States District Court for the Southern
District of Florida. (No. 94-2183-CV-CCA), C. Clyde Atkins, Judge.

Before KRAVITCH, BIRCH and CARNES, Circuit Judges.

BIRCH, Circuit Judge:

This case requires us to address the following issues: (1)

whether Cuban and Haitian migrants temporarily provided safe haven

at the United States' naval base at Guantanamo Bay, Cuba, and at

the United States' military installations in Panama, may assert

rights under the Immigration and Nationality Act, the 1951 United

Nations Convention Relating to the Status of Refugees, the Cuban

Adjustment Act, the Cuban Democracy Act and the Constitution of the

United States; (2) whether legal organizations can sustain First

Amendment claims of freedom of speech and association with these

migrants; and (3) whether the First Amendment or the Equal

Protection clause of the Fifth Amendment dictates that the United

States government must furnish a list of Haitian migrants who are

residing at Guantanamo Bay to the Haitian Refugee Center, a legal

service organization. The district court has entered preliminary

injunctions granting attorneys for the Cuban migrants access to all

Cuban migrants provided safe haven prior to voluntary repatriation

and attorneys for Haitian migrants access to their clients and any

other Haitian migrants who request counsel in writing, barring the

government from repatriating any Cuban migrants prior to the

migrant's consultation with a lawyer, directing the United States

Attorney General to parole unaccompanied minor Haitian migrants

into the United States on the same terms that unaccompanied minor

Cuban migrants have been or may be paroled, and requiring the
government to release the names of all Haitian migrants to the

Haitian Refugee Center. After thorough review of authority in this

circuit and the Supreme Court, we VACATE the district court's order

and REMAND to the district court with direction to dismiss the

plaintiffs' claims.

I. BACKGROUND

A. Factual Background

1. Cuban Migration

On August 8, 1994, Fidel Castro, announced that the Cuban

government would no longer forcibly prevent emigration from Cuba by

boat. Castro's new policy encouraged thousands of Cubans to board

makeshift rafts and boats to escape Cuba and head for the shores of

the United States. While many were lost at sea, approximately 8000

Cubans arrived in the United States safely.

In an effort to quell this influx of migrants and to save the

rafters' lives, on August 19, 1994, the President of the United

States ordered the United States Coast Guard to intercept

watercraft carrying persons fleeing from Cuba and bound for the

United States' border and to transport these persons to the

American naval base at Guantanamo Bay, Cuba. The United States

leases its military base at Guantanamo Bay from sovereign Cuba

under a lease agreement negotiated in 1903.1

1
The Agreement for the Lease to the United States of Lands
in Cuba for Coaling and Naval Stations, Feb. 23, 1903, U.S.-Cuba,
art. III, T.S. No. 418, reprinted in, 6 Bevans 1113-15
[hereinafter Lease Agreement], provides that the United States
has "control and jurisdiction" over the leased land, but that
Cuba retains sovereignty over the land. The lease states in
pertinent part:

While on the one hand the United States recognizes
 In August, 1994, the United States government began

negotiating with the Cuban government to halt the flow of migrants

to the United States. These diplomatic negotiations culminated on

September 9, 1994, in an accord with the Cuban government. In this

accord, the United States agreed it would only allow Cuban migrants

to enter the United States by applying for immigrant visas or

refugee admittance at the United States Interests Section in

Havana, Cuba. A minimum of 20,000 persons are to be allowed to

migrate legally to the United States each year, not including

immediate relatives of United States citizens who are under no

numerical restrictions. However, in conjunction with this

international agreement, the Attorney General also ordered that no

Cuban who had accepted safe haven in Guantanamo Bay or Panama would

be allowed to apply for a visa or for asylum in the United States

from safe haven.2

Currently, Cuban migrants have three options with respect to

their residence: (1) they may remain in safe haven, (2) they may

repatriate to sovereign Cuba voluntarily; or (3) they may travel

the continuance of the ultimate sovereignty of the
Republic of Cuba over the [leased] areas of land and
water, on the other hand the Republic of Cuba consents
that during the period of the occupation by the United
States of said areas under the terms of this agreement
the United States shall exercise complete jurisdiction
and control over and within said areas....

Lease Agreement, art. III.
2
According to Michael Skol, Principal Deputy Assistant
Secretary of State for Inter-American Affairs at the Department
of State, this policy was implemented "to deter further dangerous
migration from Cuba, and to provide Cubans seeking entry into the
United States a safe alternative to boat departures...." Skol
Decl. ¶ 9.
to a third country willing to accept them. While more than 1000

Cubans have requested voluntarily to be returned to Cuba, the Cuban

government has restricted the return of Cuban nationals and has

delayed the voluntary repatriation process. Persons who repatriate

to Cuba voluntarily may then apply for asylum through the regular

channels commencing at the United States Special Interests Section

in Havana, Cuba.

The United States government's expressed desire is not to

maintain these migrants for an indefinite period of time or against

their will. The government's position is that it could return the

migrants to Cuba legally without a migrant's request. However, the

government has offered the Cuban migrants safe haven for as long as

the migrants wished. All Cuban migrants volunteering to repatriate

execute a form approved by the United Nations High Commissioner for

Refugees ("UNHCR") and meet with a representative from UNHCR before

returning.

UNHCR is an agency of the United Nations specializing in the

care and well-being of refugees worldwide. UNHCR was established

by the United Nations general assembly on January 1, 1951, "to

provide international protection to refugees and to seek permanent

solutions for their problems." UNHCR, Handbook for Emergencies §

2.2(1) (1982). The UNHCR "aim[s] ... to secure treatment in

accordance with universally recognized humanitarian principles not

directly linked to the status [as refugees] of those in need." Id.

§ 2.1(4); see also id. § 2.2(1). UNHCR has participated with the

United States government in ensuring that any return to Cuba was

made on a voluntary basis.
 In addition to UNHCR, humanitarian groups such as Amnesty

International, Inc., the U.S. Committee for Refugees, and Church

World Service (Immigration and Refugee Service) as well as legal

organizations such as the Ad Hoc group of Cuban-American Attorneys,

have been allowed to visit the migrants at the base. However, as

the numbers of migrants and the length of the stay in safe haven

have increased, problems have erupted. Many Cuban migrants have

climbed over barbed wire and jumped from treacherous cliffs into

the bay in attempts to swim the mile or so back to sovereign Cuba.

Still others have scaled fences and braved a mine field in order to

reach their homeland. During early December, 1994, many were

injured during riots at the camps, particularly in Panama. The

risk of violence and danger, both to the migrants and the military

personnel charged with their care, has grown. While the United

States has begun negotiating with other countries to accept

migrants from the safe haven and has continued with the voluntary

repatriation program, problems continue.

Since consummation of the accord, the Attorney General has

exercised her discretion to parole into the United States Cuban

migrants who have sponsors in the United States and are (1) over

the age of 70; (2) who are ill; or (3) who are unaccompanied

minors (under the age of 13). She has also begun to consider, on

a case-by-case basis, the possible parole of other Cuban children

at Guantanamo Bay who are accompanied, but who may suffer severe

hardship if they remain in safe haven. Over 20,000 Cubans
currently remain in safe haven at Guantanamo Bay 3 and at military

installations in Panama.

2. Haitian Migration

In 1991, Haiti's elected leader, Jean-Bertrand Aristide, was

ousted from power. As a result, thousands of Haitians departed

Haiti and attempted to reach the United States. Between May, 1992,

and June, 1994, the United States Coast Guard interdicted on the

high seas Haitians bound for the United States and returned them

directly to Haiti. In June, 1994, the government began processing

some migrants for asylum in the United States. However, in July,

1994, the United States began offering safe haven at Guantanamo Bay

to the migrant Haitians; the government was not allowing the

Haitian migrants to enter the United States, but was not returning

them directly to Haiti. At the peak of emigration in 1994, over

16,800 Haitian migrants were housed at Guantanamo Bay

simultaneously.4

On September 19, 1994, the United States led a United

Nations-authorized military intervention in Haiti. Through these

efforts, Haitian President Jean-Bertrand Aristide was returned to

power on October 15, 1994. After his reinstallation, an

ever-increasing number of Haitians in safe haven have volunteered

3
The base at Guantanamo Bay is divided up into various camps
housing families, single men, single women and unaccompanied
children. There are two special camps, Camps November I and II,
where migrants who have voluntarily requested to be repatriated
are housed for their safety.
4
Haitian migrants are only being housed at Guantanamo Bay;
no Haitians are in safe haven in Panama. The camp divisions are
similar to those maintained for Cuban migrants; however, there
are no special camps for those migrants who have requested
repatriation.
to repatriate. Approximately 8000 Haitians remained at Guantanamo

Bay on December 19, 1994.

B. Procedural Background

1. The Cuban Migrants' Case

On October 23, 1994, plaintiffs-appellees, Cuban American Bar

Association, Inc., Cuban Legal Alliance, Inc., and Due Process,

Inc. (collectively "Cuban Legal Organizations"), some Cuban

individuals being held on Guantanamo Bay, and some individuals with

family members being held on Guantanamo Bay (collectively

"individual Cuban plaintiffs") filed a class action complaint

requesting declaratory and injunctive relief under, inter alia, the

First and Fifth Amendments, 8 U.S.C. § 1253(h), 8 U.S.C. § 1158(a),

and Article 33 of the 1951 United Nations Convention Relating to

the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, [hereinafter

the Refugee Convention]5. Specifically, the Cuban Legal

Organizations and the individual Cuban plaintiffs requested that

the district court enter an injunction preventing the

defendants-appellants ("the government") from denying the Cuban

Legal Organizations reasonable access to and communication with

their Guantanamo Bay clients for legal consultation relative to the

Cuban migrants' putative rights regarding asylum petitions and

5
The United States acceded to the United Nation Protocol
Relating to the Status of Refugees on November 6, 1968. The
Protocol bound the United States to comply with Articles 2
through 34 of the Refugee Convention. Protocol Relating to the
Status of Refugees, opened for accession, Jan. 31, 1967, art. I,
§ 1, 19 U.S.T. 6223. The United States agreed to the Protocol
with the following reservation, "[a]s to any such provision, the
United States will accord to refugees lawfully staying in its
territory treatment no less favorable than is accorded aliens
generally in the same circumstances." 19 U.S.T. at 6257.
parole decisions, and an injunction prohibiting the government from

"encouraging or coercing, directly or indirectly, the repatriation

to Cuba of, and repatriating, any [Cuban migrant] currently being

detained by the United States Government." Class Action Compl. at

59, Cuban Am. Bar Ass'n v. Christopher, No. 94-2183 (S.D.Fla. Oct.

24, 1994) [hereinafter CABA I ].

On October 25, 1994, upon learning that at 11:30 a.m. that day

the government would return to Cuba, by plane, twenty-three Cuban

migrants who had previously volunteered for repatriation, the Cuban

Legal Organizations and the individual Cuban plaintiffs filed an

emergency motion for a temporary restraining order and request for

an emergency hearing to block the repatriation. Approximately one

minute before the plane was to take off, the district court

verbally ordered the government to halt the repatriation of these

migrants.

The district court further considered the arguments of the

parties, and on October 31, 1994, the court granted the Cuban Legal

Organizations' and the individual Cuban plaintiffs' motion for an

emergency "temporary restraining order." Order Granting

Plaintiffs' Emergency Mot. for T.R.O., CABA I, (Oct. 31, 1994)

[hereinafter October 31 Order]. The district court specifically

granted the Cuban Legal Organizations and the individual Cuban

plaintiffs the following relief:

(a) [The government] shall refrain from denying [Cuban
Legal Organizations] and other counsel reasonable and
meaningful access to the [Cuban migrants in safe haven]; and

(b) [The government] shall refrain from repatriating any
[Cuban migrants in safe haven], including those twenty-three
(23) persons who were the subject of the temporary restraining
Order entered October 25, 1994, without permitting them access
 to counsel and receipt of full information so as to assure an
informed and voluntary decision to seek repatriation.

Id. at 13 (emphasis added). The October 31 Order was put into

effect "until further order of the court." Id.

On November 1, 1994, the government filed a notice of appeal

and a motion requesting the district court to stay its own order.

The district court failed to grant this request and the government,

on November 2, 1994, pursuant to 28 U.S.C. § 1292(a)(1), filed a

motion for summary reversal, or in the alternative, for an

emergency stay pending appeal in this court. On November 3, 1994,

we granted that request in part, staying that portion of the

district court's October 31 Order which prevented repatriation of

Cuban migrants who had requested in writing to be returned. Cuban

Am. Bar Ass'n v. Christopher, No. 94-5138 (11th Cir. Nov. 3, 1994)

[hereinafter CABA II ] [hereinafter November 3 Order]. On November

4, 1994, we heard oral argument on an expedited basis and that day

modified our November 3 Order verbally. We entered a written order

on November 7, 1994, confirming our verbal order. CABA II, (Nov.

7, 1994) [hereinafter November 7 Order]. We granted the

government's motion in part and denied it in part. Specifically,

we instructed the government to allow the Cuban Legal Organizations

reasonable access to their clients and any other Cuban migrants

who, in writing, requested legal counsel. We also stayed that

portion of the district court's order that prevented the government

from arranging repatriation of Cuban migrants in Camp November, who

"expressed a desire, by written declaration, to be returned to

sovereign Cuba"; however, we barred the government from

repatriating any Cuban migrant who did not "express, by written
declaration, a desire to be returned to sovereign Cuba." November

7 Order at 2. After our November 7 Order but prior to oral

argument over 241 Cubans were repatriated.

2. The Haitian Migrants' Case

On October 31, 1994, the Haitian Refugee Center ("HRC") and

some individual Haitian migrants at Guantanamo Bay filed a motion

to intervene and a motion for temporary restraining order. HRC

requested a temporary restraining order instructing the government

to afford HRC access to all Haitian migrants at Guantanamo Bay,
barring the government from denying parole to unaccompanied Haitian

minors, and ordering the disclosure of the identities of all

Haitian migrants in safe haven.

The district court issued two orders granting in part the

relief HRC requested in its original motion for a temporary

restraining order.6 The district court issued its preliminary

6
Prior to the district court's ruling on the original motion
for a temporary restraining order, on November 1, 1994, the
district court heard an oral motion by HRC for a temporary
restraining order blocking the government from repatriating
fourteen Haitians at Guantanamo Bay who were scheduled for
imminent repatriation. The government agreed to delay
repatriation until November 3, 1994. The government was planning
to repatriate a total of fifty-four Haitians; forty of those
were returning to seek medical attention and the remaining
fourteen were the subject of the district court's order. The day
after oral argument, November 2, 1994, the district court
provisionally granted the HRC's motion to intervene and entered a
temporary restraining order preventing the government's scheduled
repatriation of the fourteen Haitians. Corrected Order on Mot.
to Intervene and Mot. for T.R.O., CABA I, (Nov. 2, 1994).

HRC then requested that the district court bar the
government from repatriating Haitians who were scheduled to
return to Haiti on November 20, 1994. On November 18, the
district court ordered that repatriation could occur as
planned under the condition that all Haitians repatriated
had requested repatriation in writing. Order on Haitian
Refugee Ctr.'s Emergency Mot. for T.R.O. and Request for
order on November 22, 1994, granting HRC access to named plaintiffs

and any other Haitian migrants who requested counsel in writing,

ordering the Attorney General to parole from safe haven

unaccompanied Haitian minors in the same manner as unaccompanied

Cuban minors, and directing the government to release the names of

all Haitian migrants to HRC. Order on Provisional Intervenors'

Mot. for T.R.O., CABA I (Nov. 22, 1994) [hereinafter November 22

Order]. Upon the government's motion, the district court granted

a stay of the November 22 Order as it applied to parole of the

minor Haitians and the release of the names of migrants, but

continued in force the order allowing HRC access to detained

Haitians who requested legal counsel. Omnibus Order, CABA I (Nov.

28, 1994) [hereinafter November 28 Order].

Appeals from these orders were filed and on December 1, 1994,

the cases filed by the Cuban Legal Organizations and the individual

Cuban plaintiffs (No. 94-5138) and HRC and the individual Haitian

migrants (Nos. 94-5231 and 94-5234) were consolidated for

consideration by this court. On December 19, 1994, after oral

argument on the issues presented, we dissolved our November 7 Order

and stayed all the relief granted by the district court in its

October 31 Order, November 22 Order and November 28 Order.

Furthermore, by our December 19 Order, we stayed all further

proceedings in the district court, including discovery.

3. Issues on Appeal

We now consider the following issues on appeal:

Emergency Hr'g, CABA I (Nov. 18, 1994). That repatriation
took place as scheduled.
1. Whether the Cuban or Haitian migrants in safe haven outside the
physical borders of the United States have any cognizable
statutory or constitutional rights.

2. Whether the Cuban Legal Organizations or HRC have a First
Amendment right to associate with migrants held in safe haven
outside the physical borders of the United States for the
purposes of engaging in political speech and if so, whether
the government engages in impermissible viewpoint
discrimination violative of any First Amendment rights of the
individual migrants or the Cuban Legal Organizations or HRC by
restricting the legal organizations' access to the migrants
for the purposes of legal consultation.

3. Whether the government must disclose to HRC the names of all
Haitian migrants in safe haven.

II. DISCUSSION

A. Jurisdiction

1. Appealability of Temporary Restraining Orders

While temporary restraining orders are not generally subject

to appellate review, Haitian Refugee Ctr., Inc. v. Baker, 950 F.2d

685, 686 (11th Cir.1991) [hereinafter "HRC I "]; McDougald v.

Jenson, 786 F.2d 1465, 1472 (11th Cir.), cert. denied, 479 U.S.

860, 107 S.Ct. 207, 93 L.Ed.2d 137 (1986), "where the order has the

effect of a preliminary injunction this court has jurisdiction to

review the order and is not bound by the district court's

designation of the order." HRC I, 950 F.2d at 686. To determine

whether an order denominated as a temporary restraining order is

actually a preliminary injunction, we review the duration of the

order; "whether it was issued after notice and a hearing"; the

extent of evidence submitted to the district court; and the

continuing safeguards installed by the district court. McDougald,

786 F.2d at 1472. After review of the district court's orders, we

conclude that they are in fact appealable preliminary injunctions.

See November 3 Order. With respect to the district court's October
31 Order, the court explicitly referred to the order as

"preliminary injunctive relief." October 31 Order at 4. Moreover,

the order is of indefinite duration; it was issued after notice

and a hearing; the court received evidence and considered

declarations from both parties (commenting that no further factual

development need be made before ruling); and the court required

the parties to report jointly to it every thirty days regarding the

status under its order. We conclude that the characteristics of

this October 31 Order belie the district court's label as a

temporary restraining order; it is in all respects an appealable

preliminary injunction.7 Thus, pursuant to 28 U.S.C. § 1292(a)(1),

we have jurisdiction over an appeal from that order.

With respect to the district court's November 22 Order and

November 28 Order granting HRC and the individual Haitian parties

relief, but staying portions of that relief during appeal, the

district court specifically stated that "pursuant to 28 U.S.C. §

1292(b), the court finds that this Order involves controlling

questions of law regarding the rights of [migrants] in Guantanamo

Bay which are subject to a difference of opinion and that an

7
In Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d
166 (1974), the Supreme Court observed:

A district court, if it were able to shield its orders
from appellate review merely by designating them as
temporary restraining orders, rather than as
preliminary injunctions, would have virtually unlimited
authority over the parties in an injunctive proceeding.
In this case, where an adversary hearing has been held,
and the court's basis for issuing the order strongly
challenged, classification of the potentially unlimited
order as a temporary restraining order seems
particularly unjustified.

Id. at 86-87, 94 S.Ct. at 951. Such is the case here.
immediate appeal may advance the ultimate termination of this

case." November 22 Order at 2. On December 1, 1994, we exercised

our discretion and permitted appeal from these orders, and

accordingly, we take jurisdiction of this appeal under 28 U.S.C. §

1292(b).

2. Standing

In its appeal to this court for emergency relief from the

district court's October 31 order, the government raised a question

regarding the standing of the Cuban Legal Organizations and the

individual Cuban plaintiffs relative to the putative injuries to

parties not before the court, specifically all those migrants who

expressed a written desire to be repatriated. Appellants' Mot. for

Summ. Reversal, or, in the Alternative for An Emergency Stay

Pending Appeal (or a Writ of Mandamus), CABA II, at 22 n. 65 (filed

Nov. 2, 1994). These migrants were prevented from returning to

Cuba by the district court's oral order on October 25, 1994, and by

the October 31 Order. After our November 7 Order, repatriation of

those who had expressed in writing a desire to return to sovereign

Cuba was continued as arranged with the Cuban government.

Appellant's Brief at 6 n. 2. But for our stay, the remaining Cuban

migrants in Camp November who had requested to be returned to Cuba

would be affected by the district court's order barring their

repatriation.

The principle of standing is "derive[d] from the Article III

limits on the jurisdiction of federal courts." Jackson v. Okaloosa

County, 21 F.3d 1531, 1536 (11th Cir.1994).

Before rendering a decision ... every federal court
operates under an independent obligation to ensure it is
 presented with the kind of concrete controversy upon which its
constitutional grant of authority is based; and this
obligation on the court to examine its own jurisdiction
continues at each stage of the proceedings, even if no party
raises the jurisdictional issue and both parties are prepared
to concede it.

Hallandale Professional Fire Fighters Local 2238 v. City of

Hallandale, 922 F.2d 756, 759 (11th Cir.1991). We recognize two

components to the standing doctrine: the minimum constitutional

requirements of Article III and the prudential considerations of

judicial self-government. Harris v. Evans, 20 F.3d 1118, 1121

(11th Cir.) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 641,

--- L.Ed.2d ---- (1994); F.D.I.C. v. Morley, 867 F.2d 1381, 1386

(11th Cir.), cert. denied, 493 U.S. 819, 110 S.Ct. 75, 107 L.Ed.2d

41 (1989). To meet the irreducible minimum constitutional

requirements, the plaintiff must show "(1) that he has suffered an

actual or threatened injury, (2) that the injury is fairly

traceable to the challenged conduct of the defendant, and (3) that

the injury is likely to be redressed by a favorable ruling."

Harris, 20 F.3d at 1121; accord Valley Forge Christian College v.

Americans United for Separation of Church and State, Inc., 454 U.S.

464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); Jackson, 21

F.3d at 1537; Morley, 867 F.2d at 1386. The party must also show

that prudential considerations do not weigh against consideration

of the claims. Harris, 20 F.3d at 1121; Morley, 867 F.2d at 1386.

We have identified three particular situations in which we will

decline to address a party's claim for prudential reasons: "(1)

assertion of a third party's [putative] rights rather than

individual legal rights; (2) allegation of a generalized grievance

rather than an injury peculiar to such litigant; or (3) assertion
of an injury outside the statute's or constitutional provision's

zone of interests." Morley, 867 F.2d at 1386.

For each claim stated in a complaint, there must be a

plaintiff who will achieve some redress by the court's actions.

Jackson, 21 F.3d at 1536. As of this interlocutory appeal, the

classes sought have not been certified; neither the Cuban Legal

Organizations nor the individual Cuban plaintiffs represent the

approximate 1000 Cuban residents of Camp November who expressed

their desire in writing to be returned to sovereign Cuba as soon as

possible. "Inclusion of class action allegations in a complaint

does not relieve a plaintiff of himself meeting the requirements

for constitutional standing, even if the persons described in the

class definition would have standing themselves to sue." Brown v.

Sibley, 650 F.2d 760, 771 (5th Cir. Unit A July 1981); accord

Church v. City of Huntsville, 30 F.3d 1332, 1340 (11th Cir.1994)

("[U]nless ... one of the named plaintiffs is in real and immediate

danger of being personally injured ... the plaintiff class lacks

standing...."); Jones v. Firestone Tire and Rubber Co., 977 F.2d

527, 531 (11th Cir.1992) (holding that a party may only represent

a class to "the extent that he has standing to bring individual

claims"), cert. denied, --- U.S. ----, 113 S.Ct. 2932, 124 L.Ed.2d

682 (1993). We conclude that the plaintiffs in this case are not

suffering any real or threatened injury by the repatriation of any

migrant who has expressed, in writing, his or her desire to be

returned to sovereign Cuba. None of the individual Cuban

plaintiffs claims to have requested repatriation and are therefore,

outside the group who is being affected directly by the district
court's October 31 Order barring repatriation without prior

consultation with a lawyer. However, the individual Cuban migrants

may properly challenge the United States' repatriation policies to

the extent that they allege that they may suffer imminent injury by

being coerced in the future into signing declarations of desire to

repatriate or being wrongly repatriated to sovereign Cuba, whether

or not they may succeed on the merits of those claims. See Morley,

867 F.2d at 1387 (holding that standing is determined without

considering the party's likelihood of ultimately succeeding on the

merits of their claims).

B. Standard of Review

"Ordinarily, the grant of a preliminary injunction is

reviewed for abuse of discretion; however, if the trial court

misapplies the law we will review and correct the error without

deference to that court's determination." Haitian Refugee Ctr.,

Inc. v. Baker, 949 F.2d 1109, 1110 (11th Cir.1991) (per curiam)

[hereinafter "Baker "], cert. denied, --- U.S. ----, 112 S.Ct.

1245, 117 L.Ed.2d 477 (1992). As discussed below, the district

court misapplied the law governing the issues presented in this

case. Thus, we accord no deference to the district court's

determinations in granting the preliminary injunctions in this

case.

C. The Merits

A preliminary injunction is extraordinary relief. Church, 30

F.3d at 1342. Because of the nature of a preliminary injunction,

before relief can be granted, the party requesting the injunction

must show: "(1) a substantial likelihood of success on the merits;
(2) a substantial threat of irreparable injury; (3) its own injury

outweighs the injury to the nonmovant; and (4) the injunction

would not disserve the public interest." Baker, 949 F.2d at 1110

(emphasis added); accord Church, 30 F.3d at 1342. The district

court misapplied the law in this case; thus, we accord no

deference to the court's decision. 8 Under the precedent of this

circuit and the Supreme Court,9 we conclude that the Cuban Legal

Organizations, HRC, the individual Cuban plaintiffs and the

individual Haitian migrants cannot meet the first prerequisite to

8
Despite controlling precedent in this circuit, the district
court relied upon Haitian Ctrs. Council, Inc. v. Sale, 823
F.Supp. 1028 (E.D.N.Y.1993) vacated by Stipulated Order Approving
Class Action Settlement Agreement (Feb. 22, 1994) [hereinafter
HCC ], to support its grant of the preliminary injunction as to
the Cuban migrants. Whatever may be the effect in the Eastern
District of New York of this now vacated district court decision
in HCC, it has no precedential value in this circuit. Much of
the reasoning in that decision is contrary to binding precedent
in this circuit.
9
We are bound by precedent established by this court, by the
Fifth Circuit prior to October 1, 1981, and by the Supreme Court
of the United States. See C.G. Willis, Inc. v. Director, Office
of Workers' Compensation Programs, 31 F.3d 1112, 1115 n. 8 (11th
Cir.1994) ("Only the en banc court or the Supreme Court may
overrule the settled law of this circuit."); Bonner v. City of
Prichard, 661 F.2d 1206, 1209, 1210 (11th Cir.1981) (en banc)
(adopting the decisions of the Fifth Circuit handed down on or
before September 30, 1981, as precedent in the Eleventh Circuit,
reasoning that "[s]tability and predictability are essential
factors in the proper operation of the rule of law."). We
recognize no other legally binding precedent. While other
circuit and district courts may have considered similar issues,
it is the case law of this circuit which governs our decisions.
Specifically, Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498
(11th Cir.) (per curiam), cert. denied, --- U.S. ----, 112 S.Ct.
1245, 117 L.Ed.2d 477 (1992) [hereinafter HRC II ], Jean v.
Nelson, 727 F.2d 957 (11th Cir.1984) (en banc) [hereinafter Jean
I], aff'd on other grounds, 472 U.S. 846, 105 S.Ct. 2992, 86
L.Ed.2d 664 (1985) [hereinafter Jean II ], and the Supreme
Court's decision in Sale v. Haitian Ctrs. Council, Inc., --- U.S.
----, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993), guide and bind us
here.
the grant of a preliminary injunction, a showing of "substantial

likelihood of success on the merits [of their claims]," and thus,

are not entitled to injunctive relief. See Church, 30 F.3d at

1342.

1. Statutory and Constitutional Rights of Migrants in Safe Haven

The Cuban migrants and the Haitian migrants are asserting

statutory rights under the Immigration and Nationality Act, 8

U.S.C. §§ 1101-1503 ("INA") and the Refugee Convention. The

individual Cuban plaintiffs in safe haven also assert rights under

the Cuban Refugee Adjustment Act, 8 U.S.C. § 1255, and the Cuban

Democracy Act, 22 U.S.C. §§ 6001-6010. The individual Haitian

unaccompanied minor plaintiffs assert rights against discriminatory

parole decisions under 8 U.S.C. § 1182. Additionally, the

individual Cuban plaintiffs advance claims to Fifth Amendment

rights of due process and the individual Haitian migrants are

asserting Fifth Amendment rights to due process and equal

protection of the laws.

a. Status of Guantanamo Bay

The district court in this case relied upon Haitian Ctrs.

Council, Inc. v. Sale, 823 F.Supp. 1028 (E.D.N.Y.1993), vacated by

Stipulated Order Approving Class Action Settlement Agreement (Feb.

22, 1994) [hereinafter HCC ], in entering its order granting the

Cuban migrants meetings with lawyers upon request and barring

repatriation of migrants without prior legal consultation. In the

HCC case, the New York district court found that lawyers had a

First Amendment right to free speech and association for engaging
in legal consultation 10 at Guantanamo Bay because it was a naval

base over which the United States has "complete control and

jurisdiction" and "where the government exercises complete control

over all means of delivering communication." Id. at 1040. The

district court here erred in concluding that Guantanamo Bay was a

"United States territory." October 31 Order at 9. We disagree

that "control and jurisdiction" is equivalent to sovereignty. See

Agreement for the Lease to the United States of Lands in Cuba for

Coaling and Naval Stations, Feb. 26, 1903, U.S.-Cuba, T.S. No. 418

(distinguishing between sovereignty of the Republic of Cuba over

the leased land and the "control and jurisdiction" granted the

United States), reprinted in 6 Bevans 1113-15; cf. United States

v. Spelar, 338 U.S. 217, 221-22, 70 S.Ct. 10, 12, 94 L.Ed.3 (1949)

(construing the Federal Tort Claims Act not to apply to an American

military air base in Newfoundland because the lease between

Newfoundland and the United States "effected no transfer of

sovereignty with respect to the military bases concerned").

The Cuban Legal Organizations and HRC attempt to circumvent

precedent in this circuit by arguing that Haitian Refugee Ctr.,

Inc. v. Baker, 953 F.2d 1498 (11th Cir.) (per curiam), cert.

denied, --- U.S. ----, 112 S.Ct. 1245, 117 L.Ed.2d 477 (1992)

[hereinafter "HRC II "], in contrast with the instant case, dealt

solely with Haitians who were interdicted on the high seas and

returned to Haiti by United States Coast Guard cutters. However,

we also addressed the claims of Haitians who were interdicted on

10
The Eastern District of New York declined to decide
whether the migrants at Guantanamo Bay themselves had any First
Amendment rights. HCC, 823 F.Supp. at 1041.
the high seas and then transported to Guantanamo Bay. See HRC II,

953 F.2d at 1514; id. at 1516-17 (Hatchett, J., dissenting).

Based upon our holding in HRC II, 953 F.2d at 1510, we again reject

the argument that our leased military bases abroad which continue

under the sovereignty of foreign nations, hostile or friendly, are

"functional[ly] equivalent" to being land borders or ports of entry

of the United States or otherwise within the United States.11

Therefore, any statutory or constitutional claim made by the

individual Cuban plaintiffs and the individual Haitian migrants

must be based upon an extraterritorial application of that statute

or constitutional provision.

b. Extraterritorial Application of Legislation and the Constitution

If the migrants have been provided rights by statute, 12 we

need not reach the constitutional questions urged upon us.

However, because the Cuban Legal Organizations and HRC struggle to

re-assert statutory claims foreclosed by HRC II and Sale v. Haitian

Ctrs. Council, Inc., --- U.S. ----, 113 S.Ct. 2549, 125 L.Ed.2d 128

(1993), and fail to assert new meritorious statutory claims, we

reach the constitutional issues as well.

11
Panama regained sovereignty over the Panama Canal Zone and
the area where the United States maintains military installations
by the Panama Canal Treaty of 1977. Panama Canal Treaty, Sept.
7, 1977, U.S.-Pan., art. III, § 1, art. IV, § 2, 33 U.S.T. 39;
Panama Canal Treaty, Implementation of Article IV, Sept. 7, 1977,
U.S.-Pan., art. I, annex A, 33 U.S.T. 307.
12
Domestic legislation is not presumed to apply
extraterritorially absent express Congressional authorization.
See Sale, --- U.S. at ----, ----, ----, 113 S.Ct. at 2561, 2562,
2567 ("Acts of Congress normally do not have extraterritorial
application unless such an intent is clearly manifested. That
presumption has special force when we are construing treaty and
statutory provisions that may involve foreign and military
affairs for which the President has responsibility.").
 We decided in HRC II, 953 F.2d at 1510, and the Supreme Court

agreed in Sale, --- U.S. at ----, ----, 113 S.Ct. at 2557-58, 2563,

that the very same statutes and treaties regarding repatriation,

Article 33 of the Refugee Convention,13 and the INA, specifically,

8 U.S.C. § 1253(h)14 and 8 U.S.C. § 1158(a)15 do not apply

extraterritorially. In HRC II, we unequivocally held that the

13
Article 33 of the Refugee Convention states in pertinent
part that "[n]o 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 ... or political
opinion." Refugee Convention, supra, art. 33, 19 U.S.T. at 6276.
We have held that this article is not self-executing, but must be
given force by enactment of domestic legislation. Baker, 949
F.2d at 1110.
14
Section 1253(h)(1), the domestic legislation implementing
Article 33, provides that "[t]he Attorney General shall not
deport or return any alien ... 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 ... or political opinion." Nothing in this statute
extends its application "beyond the borders of the United
States." HRC II, 953 F.2d at 1509-10.

The individual Cuban plaintiffs also assert rights
under 8 U.S.C. §§ 1101(a)(42), 1157(c), 1182, 1225, 1226,
and 1362; however, because these provisions merely
supplement rather than address the questions presented to
us, we consider their claims as being made under § 1253(h)
and § 1158(a).
15
Section 1158(a) provides that:

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.

§ 1158(a). We have found that the "clear meaning of this
language" is that persons interdicted before reaching the
United States cannot base a right to asylum or asylum
processing on this provision. HRC II, 953 F.2d at 1510.
interdicted Haitians could not claim any rights under sections

1253(h) or 1158(a). We further concluded that:

the interdicted Haitians [on Coast Guard cutters and at
Guantanamo Bay] have none of the substantive rights—under ...
the 1967 United Nations Protocol Relating to the Status of
Refugees, the Immigration and Naturalization Service
Guidelines, the Refugee Act of 1980, the Immigration and
Nationality Act, or international law—that they claim for
themselves or that the HRC claims for them.

HRC II, 953 F.2d at 1513 n. 8 (emphasis added). These laws, which

govern repatriation of refugees, bind the government only when the

refugees are at or within the borders of the United States. See

id. at 1509-10. Therefore, the claims asserted by the migrants

under the INA and under Article 33 continue to be untenable.

The individual Cuban plaintiffs attempt to utilize the Cuban

Refugee Adjustment Act, 8 U.S.C. § 1255, and the Cuban Democracy

Act, 22 U.S.C. §§ 6001-6010, to assert the right of the Cuban

migrants to seek parole and asylum in the United States. While

these acts acknowledge the political climate in Cuba, provide for

economic sanctions for dealing with Cuba, and allow for certain

rights for Cubans who reach the United States, they do not address

the rights of Cuban migrants to enter or to seek entry to the

United States initially, nor do they confer directly any rights

upon the Cuban migrants outside the United States. Hence, neither

of these acts can be relied upon by the individual Cuban plaintiffs

to assert a right against repatriation or to seek parole or asylum

in the United States from safe haven.

Right to Counsel

The individual Cuban plaintiffs and the individual Haitian

migrants claim a due process right to obtain and communicate with
legal counsel of their choice regarding asylum application or

parole in order to protect an interest against being wrongly

repatriated from safe haven. In order for the migrants to have a

right to counsel, they must first have a protectable liberty or

property interest. See Board of Regents v. Roth, 408 U.S. 564,

569-572, 92 S.Ct. 2701, 2705-06, 33 L.Ed.2d 548 (1972). The

Executive Branch has made the policy decision not to offer

preliminary refugee determination interviews, or "screening"16 to

the Cuban or Haitian migrants. In previous Haitian migrant cases,

migrants who have been held to have a liberty interest to which due

process could attach had been "screened-in" by the government. See

HCC, 823 F.Supp. at 1042; Haitians Ctrs. Council, Inc. v. McNary,

969 F.2d 1326, 1345 (2d Cir.1992), vacated as moot sub nom. Sale v.

Haitians Centers Council, Inc., --- U.S. ----, 113 S.Ct. 3028, 125

L.Ed.2d 716 (1993). In this case we need not decide whether any

such putative liberty interest arises from being "screened-in." As

discussed below, no such procedure was undertaken.

The individual Cuban and Haitian plaintiffs have argued that

the processing which occurs when the migrants are brought into safe

haven is similar to the screening procedure which takes place when

the government attempts to discern if a migrant is a refugee.

16
"Screening" is a preliminary process during which a
determination may be made that the migrant has a well-founded
fear of persecution if repatriated. See Haitian Ctrs. Council,
Inc. v. McNary, 969 F.2d 1326, 1345 (2d Cir.1992), vacated as
moot sub nom. Sale v. Haitian Ctrs. Council, Inc., --- U.S. ----,
113 S.Ct. 3028, 125 L.Ed.2d 716 (1993). If the migrant is
preliminarily ascertained to have a well-founded fear of
persecution if repatriated, the migrant is "screened-in." See
id. If after an interview, the determination is made that the
migrant does not have such a fear, then the migrant is
"screened-out" and repatriated.
However, providing safe haven residency is a gratuitous

humanitarian act which does not in any way create even the putative

liberty interest in securing asylum processing that the Second

Circuit found that initial screening creates. See McNary, 969 F.2d

at 1345 ("By these humanitarian actions alone [ (rescuing the

migrants from the sea and bringing them to Guantanamo Bay) ], it

does not appear that the legal status of the aliens was altered.

However, once the interdicted persons have been "screened in' the

appellants[ ] ... can fairly be said to have established a

reasonable expectation in the "screened in' plaintiffs in not being

wrongly repatriated...."). We also note that the district court

mistakenly relied upon the HCC case, because that case addressed

only the plight of Haitian migrants who had been "screened in" as

possible refugees. HCC, 823 F.Supp. at 1041 ("Here, the Haitian

Service Organizations have been retained by the Screened In

Plaintiffs and have asserted a right to speak with their clients,

the screened-in Haitians." (emphasis added)). The migrants in

this case have not been "screened in" or otherwise processed for

asylum. By bringing the migrants to safe haven, the government has

not created any protectable liberty or property interest against

being wrongly repatriated and the migrants may not rest a claim of

right of counsel and information on the due process clause.

Unaccompanied Minor Haitians' Right to Parole

The individual unaccompanied minor Haitian migrants are

asserting statutory and constitutional equal protection claims to

be paroled into the United States on the same basis that

unaccompanied minor Cubans have been or may be paroled into the
United States.17 The unaccompanied minor Haitian migrants claim

that the Attorney General has abused her discretion under the INA,

8 U.S.C. § 1182,18 by paroling in Cuban unaccompanied minors but not
Haitian unaccompanied minors. While this claim is not dependent

upon the extraterritorial application of the statute, it fails

nonetheless. We agree with our en banc court's statement in Jean

v. Nelson, 727 F.2d 957, 981-82 (11th Cir.1984) (en banc)

[hereinafter "Jean I "], aff'd on other grounds, 472 U.S. 846, 105

S.Ct. 2992, 86 L.Ed.2d 664 (1985) [hereinafter "Jean II "], that

"there is little question that the Executive has the power to draw

distinctions among aliens based on nationality." Jean I, 727 F.2d

at 978 n. 30; see generally, Exec. Order No. 12,711, 55 Fed.Reg.

13,897 (1990), reprinted in 8 U.S.C. § 1157. This authority

extends both to the President of the United States and the Attorney

General.19 Jean I, 727 F.2d at 978. Aliens may be excluded or

17
"Parole is an act of extraordinary sovereign generosity,
since it grants temporary admission into our society to an alien
who has no legal right to enter...." Jean I, 727 F.2d at 972.
18
Section 1182(d)(5)(A) provides in part:

The Attorney General may ... in his discretion parole
into the United States temporarily under such
conditions as he may prescribe for emergent reasons or
for reasons deemed strictly in the public interest any
alien applying for admission into the United States....

§ 1182(d)(5)(A).
19
We note, however, that in the Supreme Court's affirmance
of Jean I, its holding was limited to whether " "low-level ...
government officials [may] act in such a manner which is contrary
to federal statutes ... and the directions of the President and
the Attorney General, both of whom provided for a policy of
non-discriminatory enforcement.' " Jean II, 472 U.S. at 853, 105
S.Ct. at 2996 (first omission added) (quoting Brief for Pet'rs at
37). While we held in Jean I that lower-level Immigration and
Naturalization Service officials could not disregard the orders
denied parole on grounds that might be "suspect in the context of

domestic legislation," because "there are apparently no limitations

on the power of the federal government to determine what classes of

aliens will be permitted to enter the United States or what

procedures will be used to determine their admissibility." Id. at

965 n. 5. Here, the Attorney General has exercised her discretion

on the legitimate basis of the very different political climates in

Haiti, under the newly restored democratic President Jean-Bertrand

Aristide on the one hand, and in Cuba, under the regime of Fidel

Castro on the other. See Garcia-Mir v. Smith, 766 F.2d 1478, 1492

(11th Cir.1985) (per curiam) (holding Attorney General need only

assert a " "facially legitimate and bona fide' " reason for a

parole decision (quoting Jean I, 727 F.2d at 977)), cert. denied,

475 U.S. 1022, 106 S.Ct. 1213, 89 L.Ed.2d 325 (1986). Thus, we

hold that the statutory claims made by the unaccompanied minor

Haitian migrants are without merit and cannot justify an injunction

directing the government to parole them into the United States.

Because we conclude that the statute alleged does not protect the

unaccompanied Haitian minors, we address their constitutional equal

protection claim.

In Jean I, we held that unadmitted and excludable aliens

"cannot claim equal protection rights under the Fifth Amendment,

even with regard to challenging the Executive's exercise of its

of their superiors, here we are faced with the extensive
authority of the Attorney General and the President to make
distinctions on the basis of citizenship and the political
climate of the alien's homeland.
 20
parole discretion. " 727 F.2d at 970 (emphasis added). The

plaintiffs in Jean I could not "challenge the decisions of

executive officials with regard to their applications for

admission, asylum, or parole, on the basis of the rights guaranteed

by the United States Constitution," id. at 984, because they had

"no constitutional rights with regard to their applications," id.

at 968; accord Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct.

321, 329, 74 L.Ed.2d 21 (1982) ("[T]he power to admit or exclude

aliens is a sovereign prerogative."); cf. Perez-Perez v.

Hanberry, 781 F.2d 1477, 1479 (11th Cir.1986) ("The world is not

entitled to enter the United States as a matter of right."). The

individual unaccompanied Haitian migrants here, who are outside the

borders of the United States, can have no greater rights than

aliens in Jean I who were physically present in the United States.

See Landon, 459 U.S. at 32, 103 S.Ct. at 329 ("[H]owever, once an

alien gains admission to our country and begins to develop the ties

that go with permanent residence his constitutional status changes

accordingly.").

In HRC II, we concluded that the interdicted Haitians on Coast

20
Although the Supreme Court held that we should not have
reached the constitutional issue in that case because "the
current statutes and regulations provide petitioners with
nondiscriminatory parole consideration—which is all they seek to
obtain by virtue of their constitutional argument," Jean II, 472
U.S. at 854-55, 105 S.Ct. at 2997, our en banc holding in that
case regarding the constitutional issue remains viable as the
Supreme Court did not vacate the opinion but affirmed and
remanded on alternative grounds. See also Perez-Perez v.
Hanberry, 781 F.2d 1477, 1479 (11th Cir.1986) (dictum); Garcia-
Mir v. Smith, 766 F.2d 1478, 1484 (11th Cir.1985) (per curiam)
(dictum); Jean v. Nelson, 863 F.2d 759, 770 (11th Cir.1988)
(dictum), aff'd, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134
(1990).
Guard cutters and at Guantanamo Bay did not possess any of the

statutory rights they claimed under the INA and the Refugee

Convention, or the constitutional rights they claimed under the due

process clause of the Fifth Amendment, and the First Amendment.

HRC II, 953 F.2d at 1503, 1511 n. 6 (agreeing with the district

court that the Haitian migrants had no "correlative First Amendment

rights of their own"). Our decision that the Cuban and Haitian

migrants have no First Amendment or Fifth Amendment rights which

they can assert is supported by the Supreme Court's decisions

declining to apply extraterritorially either the Fourth Amendment,

United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75, 110 S.Ct.

1056, 1066, 108 L.Ed.2d 222 (1990) (rejecting Fourth Amendment

limits to search and seizure of property owned by a non-resident

alien conducted in Mexico by United States agents), or the Fifth

Amendment, Johnson v. Eisentrager, 339 U.S. 763, 784, 70 S.Ct. 936,

947, 94 L.Ed. 1255 (1950) (rejecting claim that aliens outside the

sovereign territory of the United States are entitled to Fifth

Amendment rights). Cf. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222,

1 L.Ed.2d 1148 (1957) (plurality opinion) (holding the right to a

jury trial applies to an American citizen abroad being tried by a

United States military court (narrowest holding)). Clearly,

aliens, outside the United States, cannot claim rights to enter or

be paroled into the United States based on the Constitution.

Therefore, any right to equal protection of the laws, due

process, or rights under the INA or the Refugee Convention now

asserted by the Haitian and Cuban migrants are not cognizable.

Thus, neither group of migrants could have a "substantial
likelihood of success on the merits" which is a necessary predicate

to the grant of injunctive relief. The district court erred in

granting relief to the individual Cuban and Haitian migrants.

2. First Amendment Rights of the Cuban Legal Organizations and HRC

Both the Cuban Legal Organizations and HRC claim a First

Amendment right to freedom of association with the migrants and

free speech such that the government must provide the lawyers

access to clients and any other migrants who request counsel. In

HRC II, we held that the two primary First Amendment cases

recognizing a First Amendment right for a lawyer to solicit a

client for the purpose of engaging in litigation as a form of

political expression, NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328,

9 L.Ed.2d 405 (1963), and In re Primus, 436 U.S. 412, 98 S.Ct.

1893, 56 L.Ed.2d 417 (1978), "recognize a narrow First Amendment

right to associate for the purpose of engaging in litigation as a

form of political expression." HRC II, 953 F.2d at 1513 (emphasis

added). However, we concluded that "[t]his right is predicated

upon the existence of an underlying legal claim that may be

asserted by the potential litigant...." Id. (emphasis added).21

Neither the Cuban nor the Haitian migrants have any of the

statutory or constitutional rights claimed here which might sustain

21
Button and In re Primus "do not recognize a right of
access to persons properly in government custody," HRC II, 953
F.2d at 1512, which is what the Cuban Legal Organizations and HRC
have requested. The lawyers' claims under the First Amendment do
not require that the government assist it in communicating with
clients or potential clients in safe haven. Id. at 1513.
Although the attorneys argue that they require no financial
assistance or transportation from the government, for the lawyers
to meet with their clients, assistance is necessarily required in
providing access to the base, meeting areas, accommodations and
security.
the attorneys' claims to right of association, and "associational

freedom in no way implies a right to compel the Government to

provide access to those with whom one wishes to associate." Id.

Hence, it would not only be improper, but also "nonsensical," for

us to hold today that attorneys for either migrant group suddenly

possess "a right of access to the interdicted [migrants] for the

purpose of advising them of their legal rights." Id.

Because under precedent of this circuit, neither the migrants

nor the lawyers may assert First Amendment rights of association

and speech in this context, we need not determine whether the

government engaged in any viewpoint-based discrimination in denying

the Cuban Legal Organizations and HRC access while granting

humanitarian organizations access. Providing humanitarian

organizations access to the migrants does not, without more, create

a First Amendment right to that access for those humanitarian

organizations or for the Cuban Legal Organizations and HRC. If the

First Amendment does not apply to the migrants or to the lawyers at

Guantanamo Bay, the government cannot be engaging in impermissible

viewpoint-based discrimination by restricting association between

the migrants and counsel. Cf. Perry Educ. Ass'n v. Perry Local

Educators' Ass'n, 460 U.S. 37, 44, 46, 103 S.Ct. 948, 954, 955, 74

L.Ed.2d 794 (1983) (holding first that the First Amendment applied

to teachers' mailboxes in a public school, but that the " "First

Amendment does not guarantee access to property simply because it

is owned or controlled by the government,' " and that there was no

First Amendment right to access to the mailboxes (quoting United

States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S.
114, 129, 101 S.Ct. 2676, 2684, 69 L.Ed.2d 517 (1981))).22 For the

above reasons, an injunction requiring the government to provide

reasonable and meaningful access of legal counsel to the migrants

in the safe haven, based on First Amendment rights of the attorneys

is not justified.

3. Disclosure of Haitian Migrants' Identities

HRC contends that the government's refusal to disclose the

identities of Haitian migrants at Guantanamo Bay violates HRC's

First Amendment rights to freedom of association and violates the

Haitian migrants' rights to equal protection of the laws and rights

under the INA and international law. The district court, without

stating its reasons, ordered that the government provide HRC a list

of all Haitian migrants in safe haven. As decided above, the

22
We recognize that the HCC court found that "First
Amendment [is] applicable to U.S. conduct on a military base."
823 F.Supp. at 1040. The court cited Flower v. United States,
407 U.S. 197, 198-99, 92 S.Ct. 1842, 1843-44, 32 L.Ed.2d 653
(1972) (per curiam) for this proposition. From our reading of
Flower we find it is clearly distinguishable. The military base
in question in Flower was Fort Sam Houston in San Antonio, Texas;
not Guantanamo Bay or an installation in Panama. There, a
civilian (an American citizen) was arrested for distributing
leaflets on an road within the fort. The Supreme Court found
that the road was essentially a public one as there was "no
sentry post or guard at either entrance or anywhere along the
route," Flower, 407 U.S. at 198, 92 S.Ct. at 1843 (quoting United
States v. Flower, 452 F.2d 80, 90 (5th Cir.1972) (Simpson, J.
dissenting)), and more than 15,000 cars travelled through the
fort each day via this road. These are facts not remotely
analogous to the access policies at Guantanamo Bay, Cuba, or
presumably at the installations in Panama. Moreover, the Supreme
Court has recognized the limited nature of its holding in Flower.
See Greer v. Spock, 424 U.S. 828, 835, 96 S.Ct. 1211, 1216, 47
L.Ed.2d 505 (1976); U.S. v. Albertini, 472 U.S. 675, 684-86, 105
S.Ct. 2897, 2904-05, 86 L.Ed.2d 536 (1985); see also M.N.C. of
Hinesville, Inc. v. U.S. Dept. of Defense, 791 F.2d 1466, 1473 n.
3 (11th Cir.1986). Hence, we are of the opinion that this case
does not stand for the proposition that the First Amendment
necessarily applies at American military bases located in foreign
countries.
Haitian migrants in safe haven cannot claim the rights and

privileges of the statutes enumerated or of the Constitution with

respect to a right to counsel, their repatriation or parole into

the United States. Thus, they cannot succeed on any claim that

they have rights which are being violated by failure to disclose

their identities to HRC. What remains then is a request by HRC

that the government release information. Such a claim is typically

made under the Freedom of Information Act; however, no claim has

been made under the Act here. Instead, this claim is

constitutional in nature. The Supreme Court has held that there is

"no discernible basis for a constitutional duty [on the government]

to disclose, or for standards governing disclosure of or access to

information." Houchins v. KQED, Inc., 438 U.S. 1, 14, 98 S.Ct.

2588, 2596, 57 L.Ed.2d 553 (1978) (plurality opinion). "This Court

has never intimated a First Amendment guarantee of access to all

sources of information within government control." Id. at 9, 98

S.Ct. at 2593-94. Because there is no authority for us to compel

disclosure of the Haitian migrants' identities, we cannot force the

government to provide HRC with access to the list of Haitian

migrants in safe haven. See id.

III. CONCLUSION

While we have determined that these migrants are without legal

rights that are cognizable in the courts of the United States, we

observe that they are nonetheless beneficiaries of the American

tradition of humanitarian concern and conduct. In the context of

the refugees' world of today (e.g., Bosnia and Rwanda) this is

significant. While these migrants are faced with difficult
conditions, the demonstrated concern of groups like the Cuban Legal

Organizations and HRC and the goodwill of their military rescuers

and caretakers will hopefully sustain and reassure them in their

quest for a better life.

Nevertheless, we cannot contravene the law of this circuit and

of the Supreme Court of the United States in order to frame a legal

answer to what is traditionally and properly a problem to be

addressed by the legislative and executive branches of our

government. See Perez-Perez, 781 F.2d at 1479. "Although the

human crisis is compelling, there is no solution to be found in a

judicial remedy." Sale, --- U.S. at ----, 113 S.Ct. at 2567

(quoting Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 841

(D.C.Cir.1987) (Edwards, J., concurring)). For the foregoing

reasons, the preliminary injunctions issued by the district court

and dated October 31, 1994, November 22, 1994, and November 28,

1994, together with our December 19 Order, are hereby DISSOLVED and

these cases are REMANDED to the district court with direction to

dismiss the plaintiffs' claims.