Movimiento Democracia, Inc., et al. v. Secretary, Department of Homeland Security, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16732
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D.C. Docket No. 1:16-cv-21868-DPG
MOVIMIENTO DEMOCRACIA, INC.,
LIBAN CONCEPCION LIO,
ALEXEIS LEYVA,
MICHAEL PEREZ PEREZ,
YORDANKI PEREZ VAREA,
ALEXANDER VERGARA PEREZ,
JEGNIER ALMAGUER CESPEDES,
Plaintiffs-Appellants,
versus
SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
SECRETARY OF STATE, U.S. DEPARTMENT OF STATE,
UNITED STATES ATTORNEY GENERAL,
DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION
SERVICES,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 21, 2017)
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Before HULL and DUBINA, Circuit Judges, and RESTANI,∗ Judge.
PER CURIAM:
Twenty-four Cuban migrants sought sanctuary on the American Shoal
Lighthouse (the “Lighthouse”), located seven miles south of Florida’s Sugarloaf
Key. They were discovered by the U.S. Coast Guard, detained aboard a cutter
vessel, and classified as removable for not having reached U.S. dry land.1
Movimiento Democracia, Inc. (“Movimiento”), U.S. citizen and lawful permanent
resident family members of the Cuban migrants (“Family Plaintiffs”), and the
detained Cuban migrants themselves (“Migrant Plaintiffs”) challenged this
determination before the district court, seeking a preliminary injunction based on
alleged violations of the Cuban Adjustment Act (“CAA”) and the Cuban migrants’
Fifth Amendment due process rights. Following a hearing, the district court denied
plaintiffs’ motion and later granted summary judgment in favor of the Department
of Homeland Security (“DHS”). Plaintiffs appeal this decision.
First, Movimiento contends that the district court improperly concluded it
lacks standing to pursue this action and, alternatively, could not claim “next
friend” status. As the district court both found that Migrant Plaintiffs had standing
∗ Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
1 During the pendency of this appeal, all detained Migrant Plaintiffs have been repatriated
to Cuba (7), or a third country (17).
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and granted “next friend” status to Family Plaintiffs, we need not resolve
Movimiento’s claims on appeal. See, e.g., Watt v. Energy Action Educ. Found.,
454 U.S. 151, 160 (1981). If analyzed, Movimiento’s failure to adequately allege
an injury in fact to itself or one of its members precludes finding organizational or
associational standing, essentially for the reasons stated by the district court. See
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181
(2000) (associational standing); Nat'l All. for Mentally Ill, St. Johns Inc. v. Bd. of
Cty. Comm'rs of St. Johns Cty., 376 F.3d 1292, 1294 (11th Cir. 2004)
(organizational and associational standing). Regarding “next friend” status, there
has been no suggestion that Family Plaintiffs were unable to advance Migrant
Plaintiffs’ interests, thus the Migrant Plaintiffs have had adequate access to the
court through Family Plaintiffs without extending “next friend” status to
Movimiento. Cf. Whitmore v. Arkansas, 495 U.S. 145, 161–66 (1990) (requiring
prospective next friends to show that the real party in interest is “unable to litigate
his own cause due to, [inter alia] . . . lack of access to court”).
Substantively, the Migrant and Family Plaintiffs first challenge the district
court’s review of the U.S. Coast Guard (“Coast Guard”)’s interpretation and
application of the “Wet-Foot/Dry-Foot” policy. Plaintiffs challenge the district
court’s grant of Gonzalez deference, Gonzalez v. Reno, 212 F.3d 1338 (11th Cir.
2000), and argue the Migrant Plaintiffs’ presence on the Lighthouse constituted
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presence in the United States under 8 U.S.C. § 1225(a)(1). Second, these plaintiffs
argue that the Coast Guard’s refusal to process them as refugees violated the
Migrant Plaintiffs’ Fifth Amendment procedural due process rights.
We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291.
Whether the district court applied the correct standard in analyzing the agency
determination is a legal question reviewed de novo. Stansell v. Revolutionary
Armed Forces of Colombia, 771 F.3d 713, 730 (11th Cir. 2014). The district
court’s grant of summary judgment in an Administrative Procedure Act (“APA”)
case is reviewed de novo. Miccosukee Tribe of Indians of Fla. v. United States,
566 F.3d 1257, 1264 (11th Cir. 2009). Finally, constitutional challenges to agency
orders are reviewed de novo. Toro v. Sec’y, U.S. Dept. of Homeland Sec., 707 F.3d
1224, 1230 (11th Cir. 2013). After a thorough review of the record and having the
benefit of oral argument, we affirm the district court’s grant of summary judgment.
Under the CAA, “Cuban nationals, who have no documents authorizing their
presence in the United States, can remain in the United States without
demonstrating that they suffered persecution or proving refugee status. The
benefits of the CAA, however, can only apply to those Cubans who reach the
United States (those with ‘dry feet’), while Cubans who are interdicted at sea
(those with ‘wet feet’) are repatriated to Cuba. This rule is commonly referred to
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as the ‘Wet-Foot/Dry-Foot’ policy.”2 U.S. v. Dominguez, 661 F.3d 1051, 1067
(11th Cir. 2011) (citing the Cuban Adjustment Act, Pub. L. No. 89–732, § 1, 80
Stat. 1161 (1966) (codified as amended at 8 U.S.C. § 1255 (2006))). The “Wet-
Foot/Dry-Foot” policy does not alter the Immigration and Nationality Act
(“INA”)’s definition of the United States, but does treat Cubans reaching the
United States differently from migrants of other nationalities in view of the CAA.
Relevant to this appeal, the INA defines “United States” to include “the
Continental United States.” 8 U.S.C. § 1101(38). Unlike its predecessor, the
Immigration Act of 1917, the INA makes no reference to U.S. waters. Compare
Immigration Act of 1917, Pub. L. No. 301, § 1, 39 Stat. 874 (1917).
In determining that the Migrant Plaintiffs should be detained, the Coast
Guard applied its Enforcement Manual to interpret the INA’s definition of “United
States,” finding that Migrant Plaintiffs had not reached the United States, i.e., had
“wet feet,” because the offshore Lighthouse on which they were present was an aid
to navigation. The Coast Guard Manual states:
Migrants interdicted in U.S. internal waters, U.S. territorial sea or
onboard a vessel moored to a U.S. pier are not considered to have
entered the U.S. Migrants located on pilings, low-tide elevations or
2 The “wet-foot/dry-foot” policy was ended, in its entirety, by the White House on
January 12, 2017. Office of the Press Secretary, Statement by the President on Cuban
Immigration Policy, THE W HITE HOUSE (January 12, 2017), available at
https://obamawhitehouse.archives.gov/the-press-office/2017/01/12/statement-president-cuban-
immigration-policy.
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aids to navigation3 are not considered to have come ashore in the U.S.
Migrants who reach bridges, piers, or other structures currently and
permanently connected to dry land have not, as a matter of law,
reached dry land; however, they are generally treated as if they had
reached dry land in order to have a workable, operational standard
from a policy perspective.
Maritime Law Enforcement Manual, Art. 8.D.1 (footnote added).
At the time of the INA’s passage, authority to interpret the INA was vested
with U.S. Immigration and Naturalization Services (“INS”), a component of the
Department of Justice. The Homeland Security Act of 2002 later dissolved INS
and transferred INS’ authority to DHS. The Coast Guard is a component of DHS;
however, under DHS regulations, it has not been granted any authority to
“administer and enforce” the INA. See 8 C.F.R. § 100.1 (granting such authority
to the following DHS components: U.S. Citizenship and Immigration Services,
U.S. Immigration and Customs Enforcement, and U.S. Customs and Border
Protection). The Coast Guard’s authority to interpret the INA is instead grounded
in an executive order, which provides that the DHS Secretary “shall issue
appropriate instruction to the Coast Guard in order to enforce the suspension of the
entry of undocumented aliens by sea and the interdiction of any defined vessel
carrying such aliens.” See Exec. Order No. 12,807, 57 Fed. Reg. 21,133 (1992).
3 Lighthouses are “prominent beacons of varying size, color, and appearance
employed to mark headlands, landfalls, harbor entrances, channel edges, hazards, and other
features.” 33 C.F.R. § 62.37. An “aid to navigation” is “any device external to a vessel or
aircraft intended to assist a navigator to determine position or safe course, or to warn of
dangers or obstructions to navigation.” 33 C.F.R. § 62.3(a). Thus, although all lighthouses are
aids to navigation, aids to navigation encompass things other than lighthouses.
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The Maritime Law Enforcement Manual was issued in accordance with that
executive order.
Despite plaintiffs’ arguments, we conclude that the Coast Guard’s decision
in this instance is entitled to some deference. The district court applied Gonzalez
deference, reasoning that the Coast Guard had engaged in “an informal
adjudication with foreign policy implications.” Here, plaintiffs argue that only
Christensen deference should apply, that is, we should defer to the Coast Guard’s
interpretation “only to the extent that those interpretations have the ‘power to
persuade.’” Christensen v. Harris Co., 529 U.S. 576, 587 (2000).4 We need not,
however, determine whether the APA applies to the Coast Guard’s immigration
determination, whether an informal adjudication took place within the meaning of
5 U.S.C. § 555, or the exact level of deference owed. Even applying the lenient
Christensen standard sought by plaintiffs, we find the Coast Guard’s determination
in this instance – that this particular Lighthouse does not constitute part of the
“continental United States” within the meaning of 8 U.S.C. § 1101(38) – is
persuasive.
Plaintiffs contend that the once-inhabited, eight-room Lighthouse, which
rests on Florida land deeded to the U.S. government and was placed on the
4 We owe no deference to DHS’ mere litigating position. See Romano-Murphy v. C.I.R.,
816 F.3d 707, 715 (11th Cir. 2016). Thus, our only basis for deference on appeal must concern
the Maritime Law Enforcement Manual and the Coast Guard’s application thereof.
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National Register of Historic Places, constitutes part of the continental United
States. We conclude that the Lighthouse is instead properly considered part of the
country’s waters, thus falling outside the “United States” for purposes of the INA.
It is undisputed that the Lighthouse rests on submerged land. The only part of the
Lighthouse which is, or ever has been, above water is a man-made iron structure
which had been decommissioned and deemed “abandoned,” “unstable,” and
“unsafe” the year before Migrant Plaintiffs’ landing. The Lighthouse lies seven
miles from the nearest Florida Key, and has been unmanned since 1963, except for
a few months in 1980, when it served as a lookout tower during the Mariel boatlift.
Over the period between 1963 and its decommissioning in 2015, the Lighthouse
simply housed an automated, rotating light.
Finally, plaintiffs’ constitutional claim is predicated on their argument that
the Migrant Plaintiffs should be considered to have been “present in the United
States” for constitutional purposes. Any procedural due process right to apply for
asylum which might flow from the INA would be predicated upon such presence,
which is required by the asylum statute. See Jean v. Nelson, 727 F.2d 957, 981–83
(11th Cir. 1984) (finding no substantive due process right to asylum); 8 U.S.C. §
1158. As we have determined that the Migrant Plaintiffs were not “present in the
United States,” their constitutional claims necessarily fail.
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Having disposed of all issues raised on appeal, we affirm the judgment of
the district court.
AFFIRMED.
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