Full opinion text
JAMES LAWRENCE KING, District Judge. TABLE OF CONTENTS I. Introduction 450 A. Limits of Immigration Law 452 B. Asylum Rights: Substantive 453 C. Asylum Rights: Procedural 454 II. Threshold Legal Issues 456 A. Jurisdiction 457 B. Justiciability 461 1. Mootness 462 2. Timing of Judicial Review 467 3. Political Question 470 4. Standing 473 III. Conditions in Haiti 474 A. Haitian Refugees: Treatment on Return 476 1. A Pattern of Persecution 476 2. The State Department Report 482 a. Composition of the Study Team 486 b. The Sample 487 c. Assurances to Returnees 488 d. The Interviews 491 e. Conclusion 492 B. Haitian Prisons: Persecution Exemplified 493 C. Haitian Power: The Rule of the Duvalier Security Forces 497 D. Haitian Legal Systems: The Absence of a Rule of Law 500 E. Haitian Politics: Suppression of the Opposition 503 F. Haitian Society: Suppression of Free Voices 506 6. Haitian Economics: The Economics of Repression 507 H. Conclusion 510 IV. INS Treatment of Haitian Asylum Claims 510 A. The Has+ian Program: Intentional Discrimination 511 1. The Haitian Problem 511 2. The Goals of the Haitian Program 512 IV. INS Treatment of Haitian Asylums Claims — Continued A. The Haitian Program: Intentional Discrimination — Continued page 3. Implementation at the District Level 516 4. Conclusion: Discrimination 518 B. The Haitian Program: Systematic Due Process Violations 519 1. Immigration Judge Action 519 a. Failure to Suspend Deportation Proceedings 520 b. Derogation of the Right to Remain Silent 521 c. Time Limits 521 d. Conclusion 523 2. Cumulative Effect of Accelerated Process 523 a. Mass Scheduling 523 b. Cumulative Effect 525 c. Conclusion 526 3. Conduct of Asylum Interviews 526 4. Asylum Decision-Making 527 5. Other Asylum Procedures 529 a. Public Access to Prior Decisions and Nonrecorded Matter 529 b. Use of Form Letter Denials 530 c. Accuracy of Translation 530 d. Failure to Advise Haitians of Rights Prior to Taking Statements 530 6. State Department Participation in Asylum Decisions 531 7. Deprivation of the Haitian Refugee Center’s Right to Free Speech 531 C. Conclusion 532 V. Relief 532 FINAL ORDER GRANTING RELIEF This case involves thousands of black Haitian nationals, the brutality of their government, and the prejudice of ours. Perhaps thirty thousand Haitians have flocked to the shores of South Florida over the past twenty years, fleeing the most repressive government in the Americas. From among that group come the plaintiffs: five thousand persons who have sought political asylum in the United States. They claim that if they are returned to Haiti they will face persecution, imprisonment and death. All of their asylum claims were denied by the Immigration and Naturalization Service. For the most part, the plaintiffs reached the United States in old, small, leaky wooden sailboats. The boats are dangerously overcrowded, but these Haitians continue to brave the elements across eight hundred miles of open sea. The vast number spent weeks adrift without food or water. Many died in the attempt: When I heard the news, I went to Freeport. When I entered the morgue, I saw my wife lying there with the four children. I had nothing in my hand. It was only myself and God there. Constant Louis, Tr. at 1195-96. This case has forced the court to confront a profound set of questions: Why have so many taken such great risks? What do they flee? Why do they fear to return? In searching for the answer to these and other questions, the court has seen a stark picture of how these plaintiff-immigrants will be treated if they return to Haiti. And it has seen an equally stark, and even more troubling, picture of the treatment of Haitians by the Immigration and Naturalization Service. I. INTRODUCTION The plaintiffs seek political asylum in this country. Hence, this case calls into question many of the intricacies of asylum procedures before the Immigration and Naturalization Service (INS). The court must examine the minutiae of those procedures to determine if the plaintiffs were accorded fundamentally fair due process. One central issue, however, overshadows this entire case: unlawful discrimination. The plaintiffs charge that they faced a transparently discriminatory program designed to deport Haitian nationals and no one else. The uncontroverted evidence proves their claim. The Haitians allege that the actions of INS constitute impermissible discrimination on the basis of national origin. They have proven their claim. This court cannot close its eyes, however, to a possible underlying reason why these plaintiffs have been subjected to intentional “national origin” discrimination. The plaintiffs are part of the first substantial flight of black refugees from a repressive regime to this country. All of the plaintiffs are black. In contrast, for example, only a relatively small percent of the Cuban refugees who have fled to this country are black. Prior to the most recent Cuban exodus, all of the Cubans who sought political asylum in individual 8 C.F.R. Sec. 108 hearings were granted asylum routinely. None of the over 4,000 Haitians processed during the INS “program” at issue in this lawsuit were granted asylum. No greater disparity can be imagined. In contrast to the discriminatory practices of INS, local government and private charity groups have tried mightily to help all the refugees who have come to Florida, irrespective of race. A report by Dade County Manager Stierheim advocates: “Agencies of local government which conduct broad community development and protection responsibilities that are largely preventive find that they are properly blind to technical questions of residence or nationality or legal presence in the United States.” PE # 353 at 3 (emphasis in original). After summarizing a number of arguments for humane treatment of the refugees, the report concludes “[tjhese arguments all recommend a minimum standard of health and decency for all persons, as a matter of course.” Id. at 6. The burden often falls on private charities as well. Monsignor Brian Walsh, the Director of Catholic Charities of the Social Service Agency of the Miami Archdiocese, testified that Haitians-as opposed to other refugee groups-have to depend exclusively on private charity when they reach the United States because unlike other groups they are prevented from obtaining work permits. Tr. at 951. Irony after irony plagues this case. A research instructor in the Psychiatry Department of the University of Miami School of Medicine testified that the Haitians “come here with the expectation that they should reach a land of freedom.” Tr. at 2134. What they found was an Immigration Service which sought to send them back to Haiti without any hearing by an immigration judge on their asylum claims, Sannon v. United States, 421 F.Supp. 1270 (S.D.Fla.1977), and a systematic program designed to deport them irrespective of the merits of their asylum claims. They were assured by good people in this country that Miami was not Haiti, that they did not have to fear persecution by the United States, and then their claims were denied without any meaningful consideration. They came to a land where both local officials and private groups were compassionate, indeed where the President had once promised that the government would be as compassionate as its people, and then their applications for asylum from persecution were arbitrarily denied en masse by a somewhat less than compassionate INS. In reaching its conclusions the court has listened to a wealth of in-court testimony, examined numerous depositions, and read hundreds of documents submitted by the parties. Much of the evidence is both shocking and brutal, populated by the ghosts of individual Haitians-including those who have been returned from the United States-who have been beaten, tortured and left to die in Haitian prisons. Much of the evidence is not brutal but simply callous-evidence that INS officials decided to ship all Haitians back to Haiti simply because their continued presence in the United States had become a problem. The manner in which INS treated the more than 4,000 Haitian plaintiffs violated the Constitution, the immigration statutes, international agreements, INS regulations and INS operating procedures. It must stop. A. Limits of Immigration Law There is no area of law in which Congress has more unreviewable power than in immigration and naturalization matters. The Supreme Court has explicitly warned lower courts that they are not to imply restrictions on Congressional flexibility to respond to changing international conditions which might require changes in immigration and naturalization matters. For example, Congress, if it so chooses, may discriminate against and among aliens on grounds which would violate the Constitution if applied to American citizens. Nonetheless, the discretion of Congress is not completely unfettered. Its classifications with respect to aliens must have some rational basis. In addition, persons must be afforded fundamentally fair proceedings under the due process clause before they may be deported. By contrast, the power of INS is more circumscribed. In addition to complying with the limited application of the Constitution to aliens, INS must conform its actions to the statutes passed by Congress and the international agreements joined by the United States. Where it has been given discretion by statute or treaty, INS may not exercise that discretion arbitrarily or capriciously. In addition, INS must adhere to its own regulations and procedures. The history of immigration laws in the United States is a tale of accommodation between the humanitarian goal of accepting into this country those immigrants who seek to build a new life here and a variety of reasons for restricting immigration. In retrospect, one cannot be proud of all the measures taken by Congress in the past. For many years, the immigration laws explicitly discriminated against persons of various races and nationalities. Fortunately, such provisions are now gone from the immigration statutes. In 1965, Congress abandoned the national quota system of immigration and added a provision prohibiting discrimination in the granting of visas on the basis of “race, sex, nationality, place of birth, or place of residence.” This provision manifested Congressional recognition that the maturing attitudes of our nation made discrimination on these bases improper. In the face of such a decision by Congress, INS has no authority to discriminate on the basis of national origin or race-except perhaps by promulgating regulations in a time of national emergency. B. Asylum Rights: Substantive Morally, persons fleeing political persecution have long had a special claim on this land of freedom. In 1952, Congress explicitly recognized this claim by granting the Attorney General the power to withhold the deportation of aliens who would face “physical persecution” if they were deported. In 1965, this provision was rewritten and broadened to include “persecution on account of race, religion, or political opinion.” In 1968, the United States became a party to the United National Protocol Relating to the Status of Refugees which defines refugees as persons who have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” The Protocol prohibits the deportation of a refugee “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.” Moreover, it also requires that the United States apply the provisions of the Protocol “without discrimination as to race, religion or country of origin.” In March of this year, Congress enacted a statute entitled the Refugee Act of 1980 which seeks to deal with the admission of refugees in a comprehensive fashion. Neither party has argued that the present plaintiffs come within the scope of the 1980 Act and the court declines to so hold. The court merely observes that Congress declared in the Act “that it is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands.” Just as the old provisions on asylum did not discriminate on the basis of country of origin or race, neither does the new statute. Irrespective of the 1980 Act, the plaintiffs had a right to the Attorney General’s nonarbitrary, nondiscriminatory consideration of their individual claims for political asylum pursuant to 8 U.S.C. Sec. 1253(h) and the United Nations Protocol. C. Asylum Rights: Procedural An alien in this country who seeks political asylum here may have his application considered by either of two routes. On the one hand, he may apply for asylum before the local INS District Director, who will grant or deny the application in the Director’s discretion. 8 C.F.R. § 108.2 (1978). An alien may also raise his claim for asylum during a deportation hearing as a claim for discretionary relief under 8 U.S.C. § 1253(h) or the United Nations Protocol. However, the application to the District Director is the alien’s primary means of obtaining asylum. It is something he can initiate. Moreover, under the regulations and operating instructions in force during the time period at issue in this case, if the application was made after a show cause order had been issued but before the hearing on that order, or even if it was made for the first time in an actual deportation hearing, the issue of asylum was to be referred to the District Director for his initial consideration. See 8 C.F.R. §§ 108.1 & 108.2; Operating Instruction 108.1f(l) & (2). While it is true that, if denied by the District Director, the asylum application may also be presented to an immigration judge, 8 C.F.R. § 108.2, there was considerable evidence at trial that the immigration judge often bases his decision solely on the administrative record compiled by the District Director and will permit the applicant to be impeached on the basis of the prior administrative record if he seeks to bring additional evidence to the attention of the immigration judge. The evidence adduced at trial tended to show that the immigration judge’s decision on an asylum application never differed from the local District Director’s decision. Hence, although it is true that the alien may resurrect his asylum application before an immigration judge, he must have asylum from the District Director if he wants to avoid deportation. The Constitution states flatly: “No person shall be ... deprived of life, liberty, or property, without due process of law.” Amend. V. This constitutional guarantee of due process of law protects an alien within this country’s borders as well as a United States citizen. The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86, 101, 23 S.Ct. 611, 615, 47 L.Ed. 721 (1903). Both are persons. Cf. Graham v. Richardson, 403 U.S. 365, 371, 91 S.Ct. 1848, 1851, 29 L.Ed.2d 534 (1971). Nonetheless, due process is a flexible concept which mandates varying procedures and different degrees of formality in sundry contexts. See Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961) quoted in Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 86, 98 S.Ct. 948, 953, 55 L.Ed.2d 124 (1978). The Supreme Court has observed that deportation, while not a criminal penalty, can realistically deprive an individual of all that makes life worth living. See, e. g., Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938 (1922) quoted in Bridges v. Wixon, 326 U.S. 135,147, 65 S.Ct. 1443, 1449, 89 L.Ed. 2103 (1945). Hence, the Constitution requires that before a person may be deported he must be afforded most of the protections provided to citizens who face serious deprivations of life, liberty, or property. For instance, an alien facing deportation has the right to a fair hearing before an unprejudiced arbiter. He has the right to be represented by counsel. In sum, his hearing-while it need not conform to all of the punctilious requirements of a criminal trial-must conform to our society’s standards of fundamental fairness. See, e. g., Wong Yang Sung v. McGrath, 339 U.S. 33, 50-51, 70 S.Ct. 445, 454, 94 L.Ed. 616 (1950). In considering a request for asylum, the District Director must weigh various issues which realistically involve the applicant’s life, liberty, and property in a most direct fashion. In a very graphic sense, the political asylum applicant who fears to return to his homeland because of persecution has raised the specter of truly severe deprivations of life, liberty, and property: in this case, harassment, imprisonment, beatings, torture, and death. Moreover, if granted by the District Director, the asylum application will prevent the alien from having to face the rigors of deportation proceedings. Clearly then, just as a deportation hearing must conform to the flexible standards of due process, so too must the processing of the application for asylum. Moreover, lest due process get lost in the shuffle between District Director and immigration judge, the requirements of due process must be met in the initial proceeding before the District Director. Of course, this conclusion does not mean that proceedings before the District Director must be as formalized as the deportation hearing before an immigration judge. This court need not decide all the ramifications of applying due process to asylum applications before a District Director. However, a good starting point for an examination of procedural fairness is the relevant statute and the agency’s own regula-f tions and operating procedures. Indeed, de- \ partures from the statute, and regulations, \ and the standardized operating procedures l must be studied quite closely since such ■ departures, especially if willful, systematic, j and cumulative, may amount to a breach of j the fundamental fairness which due process j guarantees. See, e. g. United States ex rel. [Accardi v. Shaughnessy, 347 U.S. 260, 268, 74 S.Ct. 499, 504, 98 L.Ed. 681 (1954). Neither 8 U.S.C. § 1253(h) nor the United Nations Protocol specify a procedure for deciding on asylum applications. In the absence of the specification of any particular procedure, it is assumed that Congress intended that the procedure used by INS would comport with due process: The constitutional requirement of procedural due process of law derives from the same source as Congress’ power to legislate and, where applicable, permeates every valid enactment of that body. Wong Yang Sung v. McGrath, 339 U.S. 33, 49, 70 S.Ct. 445, 454, 94 L.Ed. 616 (1950). Where, as here, the Attorney General is authorized to promulgate regulations, issue instructions, delegate his authority, and “perform such other acts as he deems necessary for carrying out his authority” under the immigration laws, 8 U.S.C. § 1103, clearly he or his designated subordinate has the power to specify procedures for granting asylum, generally subject only to the constraints of due process and the substantive provisions of the immigration statute. The procedures specified by INS, the Attorney General’s delegated authority, encompass both formal regulations and INS Operating Instructions. As they pertain to this case, the regulations require the alien to submit his application for asylum on Form 1-589 and later to appear in person before the immigration officer who will handle the application. 8 C.F.R. §§ 108.1 & 108.2. When the applicant appears before the immigration officer, he is to be “given an opportunity to fully present [sic] his case” and the immigration officer is to double check that “the applicant has no additional factors he may wish to have considered.” Operating Instruction [hereinafter O.I.] 108.1. The District Director, generally operating through his subordinates, is to classify the application into one of three categories: (1) Cases clearly meriting asylum, (2) Doubtful cases, and (3) Asylum cases that do not appear to have substance or are clearly lacking in substance. 8 C.F.R. § 108.2; O.I. 108.1. The views of the State Department on the application are to be sought in all doubtful cases. Id. If the application is denied as clearly lacking in substance, the State Department is to be notified and the alien’s departure is stayed for 30 days or until the State Department responds. Id. Although the District Director may grant or deny the application in his discretion, the regulations and operating instructions make it clear that his discretion is to be an informed one. No administrative appeal lies from the District Director’s decision unless he denies an application in spite of a State Department recommendation to grant. Id. The State Department statement is to be made part of the record and the applicant has an opportunity to examine and rebut the State Department statement. Id. The District Director’s decision on the application is to be made in writing. Id. As already noted, a denial by the District Director does not preclude raising an asylum claim in a later deportation hearing before an immigration judge. Id. Moreover, if the asylum claim was advanced between the issuance of a show cause order and the hearing thereon, the matter was to be referred to the District Director and the deportation hearing postponed. I.O. 108f(l). If the asylum claim was made during a deportation hearing, then the hearing was to be adjourned so that the District Director could process the asylum application. O.I. 108.1f(2). The rationale for these last two procedures is clear: the District Director should uniformly be given the first opportunity to rule on the asylum application and the applicant for asylum should not have to prejudice his other defenses to deportation in order to raise an asylum claim. Cf. 8 C.F.R. § 242.-17(d). The procedures outlined above clearly provide a good foundation for procedural due process even if they do not necessarily exhaust the requirements of due process or are not explicitly required by the Constitution. Unfortunately there is many a slip between the cup and the lip, and proper procedures must be implemented properly before the particulars of due process are satisfied. II. THRESHOLD LEGAL ISSUES The threshold legal question is whether each of the sixteen causes of action is properly before the court. The defendants have asserted several reasons why various of the plaintiffs’ causes of action should be dismissed without reaching their merits. First, the defendants argue that the district court does not have jurisdiction to entertain causes of action 1, 2, and 3, asserting that the court of appeals has exclusive jurisdiction over those three claims pursuant to 8 U.S.C. § 1105a(a). Second, the defendants raise four issues which may be considered together as questions of justiciability: mootness, the timing of judicial review, the political question doctrine, and standing. Each of the defendants’ challenges will be addressed in turn. In the course of examining each of these arguments, however, it is essential to understand and bear in mind the unusual nature of this case. The plaintiffs are not trying to litigate the merits of any single decision by INS or a particular immigration judge. Rather, the gravamen of the plaintiffs’ complaint is that INS instituted a program “to achieve expedited mass deportation of Haitian nationals” (Complaint, ¶ 3) irrespective of the merits of an individual Haitian’s asylum application and without regard to the constitutional, treaty, statutory, and administrative rights of the plaintiff class. Causes of action 1-14 each allege some aspect of this program. Cause of action 15 further alleges that the entire program constituted impermissible discrimination based on national origin. Finally, cause of action 16 alleges that the cumulative effect of all of the various practices in the program deprived the class of fundamental fairness in processing their asylum claims. A. Jurisdiction The plaintiffs aver that this court has jurisdiction to hear their claims pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1361 (mandamus jurisdiction), and 8 U.S.C. § 1329 (jurisdiction over causes arising from the Immigration sub-chapter). The defendants do not contest this court’s general jurisdiction, but they contend that causes of action 1-3 cannot be raised in the district court because of the grant of exclusive jurisdiction to review final orders of deportation vested in the court of appeals. See 8 U.S.C. § 1105a(a). In this instance, then, the question of jurisdiction becomes one of statutory construction. Prior to 1961, Congress had specified no particular procedure for the judicial review of deportation proceedings. See e. g., C. Gordon & H. Rosenfield, 2 Immigration Law and Procedure § 8.1 (1980). As a result, the courts devised various means of reviewing deportation proceedings, including the application of the review provisions of the Administrative Procedure Act to deportation proceedings. See, e. g., Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955). In 1961, Congress added the present provision codified at 8 U.S.C. § 1105a which inter alia limited the review of final orders of deportation to the appropriate court of appeals. In doing so, Congress sought to eliminate the abuse of the prior avenues of judicial review. Primarily, Congress concluded that judicial review had been abused by aliens whose sole motives were dilatory. Exclusive review by the courts of appeals was chosen as an efficient and just means of expediting judicial review of these final deportation orders. The Supreme Court has construed Section 1105a in a manner which realizes the Congressional goal of efficient judicial review but does not stretch the phrase “final order of deportation” beyond its linguistic limits. All of these cases have involved the review of an individual deportation proceeding. In this context, the Court opined that all determinations incident to the deportation hearing and reviewable by the Board of Immigration Appeals were committed to the court of appeals’ exclusive jurisdiction. Foti v. Immigration and Naturalization Service, 375 U.S. 217, 229, 84 S.Ct. 306, 314, 11 L.Ed.2d 281 (1963). On the other hand, the Court later decided that a District Director’s denial of a stay of deportation which is not entered in the course of a deportation hearing and is not appealable within INS does not come within the exclusive jurisdiction of the court of appeals. Cheng Fan Kwok v. Immigration and Naturalization Service, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968). In this latter case, the Court reasoned that the District Director’s denial was not encompassed by a “final order of deportation” but rather was purely discretionary relief external to deportation hearings. As such, judicial relief would be available first in the district court. Id. 392 U.S. at 210, 88 S.Ct. at 1973. The analytical framework advanced in Foti and Cheng Fan Kwok was followed, for example, in Immigration and Naturalization Service v. Stanisic, 395 U.S. 62, 68, 89 S.Ct. 1519, 1523, 23 L.Ed.2d 101 (1969) where a District Director’s denial of a political asylum claim was properly reviewed by the district court. See also Fleurinor v. Immigration and Naturalization Service, 585 F.2d 129, 134-36, n.6 (5th Cir. 1978) (political asylum determination by the District Director cannot be reviewed by the court of appeals, but procedural irregularities therein are reviewable in the district court). Most of the claims now before this court allege irregularities in the procedures used by the District Director in processing asylum claims, and as such they are clearly within this court’s jurisdiction. However, because causes of action 1-3 allege, at least in part, irregularities in deportation hearings themselves, the government contends they are beyond this court’s oversight. The Government’s interpretation of Section 1105a and the above Supreme Court cases, is neither required by the statutory language nor supported by Congressional intent. Various statutes dividing judicial review responsibilities between the district court and the court of appeals have provoked a substantial amount of confusion in administrative law recently. See K. Davis Administrative Law Treatise § 23.03-1 (1980 Supplement). Professor Davis has argued that “[t]he law on choice between court of appeals review and district court review is becoming inordinately complex, and much of the complexity stems from judicial departures from clear statutes.” Id. at 191. Apparently, even in the face of a clear statute giving the court of appeals exclusive jurisdiction, the courts of appeal would construe the statute to vest review initially in the district court if the appeals court concluded that it would otherwise have an insufficient record upon which to base its review. Id. (and cases cited therein). Compare PPG Industries, Inc. v. Harrison, 587 F.2d 237, 244-45 (5th Cir. 1979) (review not appropriate in court of appeals because, in part, the record is inadequate for such review) rev’d 446 U.S. 578, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980) with United States Steel Corp. v. United States Environmental Protection Agency, 595 F.2d 207, 212 (5th Cir. 1979) (review proper in the court of appeals because it may be based on a substantial record). The Supreme Court’s reversal in PPG Industries halted jurisdictional construction which is unsupported by legislative intent and which flies in the face of explicit statutory language conferring jurisdiction on the court of appeals. 446 U.S. at 589-595, 100 S.Ct. at 1896-1899. In the instant case, however, district court jurisdiction over causes of action 1-3 would not be contrary to the clear wording of Section 1105a. That section confers exclusive jurisdiction on the court of appeals only to review “final orders of deportation,” as opposed to the general jurisdiction of the district courts over other causes of action arising from the immigration laws. See, e. g., 8 U.S.C. § 1329; 28 U.S.C. § 1331. Causes of action 1-3 do not ask this court to review final orders of deportation. Thus, a literal construction of Section 1105a would leave no doubt that this court has jurisdiction to entertain causes of action 1-3. Causes of action 1-3 cannot be categorized as simply as the defendants propose. Certainly, cause of action 1 “relat[es] to the decision of an immigration judge during the course of a deportation hearing to grant a continuance when a political asylum claim not previously decided by the district director is made.” Memorandum in Support of Defendants’ Renewal and Supplement to Motion to Dismiss at 3. The pertinent consideration, however, is how this cause of action “relates” to the immigration judges’ decisions. The plaintiffs contend that the immigration judges consistently refused to suspend deportation hearings promptly-even though they were supposed to do so under I.N.S. Operating Instructions-as part of a discriminatory policy directed solely at Haitians. The object of this policy, as alleged in the complaint, was to expedite the mass deportation of Haitians. The evidence reflects that this “judicial” practice was adopted at the instigation of the INS Central Office. Such a practice could never be effectively demonstrated in the record of any single deportation hearing, and so it would completely escape judicial review if-just because it “relates” to an immigration judge’s decision-it cannot be raised in a class action before the district court. Causes of action 2 and 3 would similarly escape judicial review. Congress did not intend that Section 1105a produce the anomalous result that meritorious claims of agency misconduct escape effective judicial review. Congress made it clear that Section 1105a “implements and applies Section 10 of the Administrative Procedure Act.” H.R.Rep. No. 1086, 87th Cong., 1st Sess., reprinted in [1961] U.S.Code Cong. & Ad.News pp. 2950, 2966. The House Report explicitly sets out the pertinent provision of the A.P.A., adding that Section 1105a was drafted “precisely as is contemplated” by the A.P.A.: The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court of competent jurisdiction. Id. U.S.Code Cong. & Admin.News 1961 at 2971, quoting Section 10 of the Administrative Procedure Act now codified at 5 U.S.C. § 703 (emphasis added). The conclusion is inescapable that Congress intended that “any court of competent jurisdiction” be able to hear a claim which cannot be adequately presented to the court of appeals under Section 1105a. Clearly, the district court is otherwise a court of competent jurisdiction. Congress’ broader intent of efficient judicial review of administrative action also supports jurisdiction over causes of action 1-3 in this court. In the context of a single individual’s deportation hearing, the Supreme Court has recognized that this goal of efficiency can be best realized by consolidating judicial review in the court of appeals. See, e. g., Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963). However, in the context of a proper class action contesting initial actions in deportation hearings which are alleged to be part of a plan to deprive the class of rights otherwise available independent of the deportation hearings, the Congressional policy of efficient judicial review can be best, and solely, realized by jurisdiction in the district court. Congress conferred broad jurisdiction on the district courts to hear cases arising under the immigration subchapter. 8 U.S.C. § 1329: see also 28 U.S.C. § 1331. Neither the language nor the intent of Section 1105a supports the conclusion that this court has been deprived of its jurisdiction to hear causes of action 1-3. B. Justiciability The defendants raise four issues of justiciability: mootness, the timing of judicial review (both exhaustion and ripeness), the political question doctrine, and standing. New areas of the law present a court with less of an understandable and coherent framework than justiciability. Although this court cannot undertake to synthesize a coherent justiciability theory from this conceptual morass, a few prefatory words are in order. Federal courts are not roving engines of justice careening about the land in search of wrongs to right. Rather, federal courts were designed to be much like all other courts: passive entities resolving only the quarrels which are properly put before them by interested parties and which are within the competence of courts in a tripartite system of constitutional government. Questions of justiciability are all related in that the various justiciability doctrines are intended to keep the courts within their proper constitutional and prudential bounds. At the same time, one cannot lose sight of the fact that throughout our nation’s history, and increasingly in the last quarter of a century, litigants have confronted the federal courts with real and palpable cases of individual and systemic injustice for which the courts are the only realistic source of relief. In the face of such litigation, the courts have-often with great reluctance-measured up to their historic constitutional task of declaring what the law is and enforcing the law between the parties. Although it is almost tautological to so state, questions of justiciability do not impede a case proper for adjudication. For six years now, the black Haitian nationals who have sought refuge in Florida have protested to the courts their treatment at the hands of the Immigration and Naturalization Service. The courts-including this court-have pursued a policy of utmost restraint. The courts have continued to believe that once they declared the law, the Immigration and Naturalization Service would follow that law. For example, Haitian litigants have repeatedly asked INS and the courts to consider the political and social conditions in Haiti when deciding and reviewing, respectively, their applications for political asylum. In general, courts-including this court-have skirted such issues or determined them adverse to the Haitians. Indeed, the courts have been willing to seize on the tiniest scintilla of evidence that administrative actions were justified. The allegations in the present complaint are so troubling that not to reach the merits of this case would be an exercise in judicial abdication rather than judicial restraint. Most issues of justiciability stem from the constitutional restriction of judicial power to “cases” and “controversies.” As the late Chief Justice Earl Warren observed, “those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government.” Flast v. Cohen, 392 U.S. 83, 94, 88 S.Ct. 1942, 1949, 20 L.Ed.2d 947 (1968). The defendants urge that the plaintiffs’ case is as leaky and unseaworthy as most of the decrepit boats used by the plaintiffs to arrive on these shores, and can be sunk by the submerged complexities underneath the tip of justiciability icebergs they sight. However, the justiciability dangers sighted by the defendants are no more than mirages; the waters of this litigation are as free as ice floes as are the warm Caribbean waters of the Gulf Stream. 1. Mootness The defendants cite a single case for the proposition that the plaintiffs’ claims are moot: Sannon v. United States, Case No. 74-428-Civ-JLK (final order entered January 7, 1980, as amended April 11, 1980). The Sannon case was decided by this court and is presently on appeal to the Fifth Circuit on the limited issue of whether the additional notice required of INS by the court was within the court’s authority. See Brief for Appellants, Sannon v. United States, Case No. 80-5088 (filed May 5, 1980). The defendants’ reliance on Sannon is misplaced. In Sannon, the three hundred Haitians in the plaintiff class were excludable aliens whose claims for political asylum had been denied by the District Director and who had been found excludable in hearings before immigration judges. The plaintiffs complained inter alia that the immigration judges had refused to consider their asylum claims. This court concluded that the plaintiffs were entitled to present their asylum claims also to the immigration judges and granted relief on that basis. Sannon v. United States, 427 F.Supp. 1270 (S.D.Fla.1977). Three weeks after the decision in Sannon, the Fifth Circuit decided Pierre v. United States, 547 F.2d 1281 (5th Cir. 1977), which rejected claims similar to those upheld by this court. Sannon was then appealed to the Fifth Circuit. Thereafter, the Pierre plaintiffs petitioned for a writ of certiorari from the Supreme Court. At the Solicitor General’s suggestion that the Pierre petition was moot because INS intended to promulgate new regulations granting the petitioners the hearing they wanted before immigration judges, the Supreme Court granted certiorari, vacated the Fifth Circuit decision, and remanded the case for consideration of the mootness question. Pierre v. United States, 434 U.S. 962, 98 S.Ct. 498, 54 L.Ed.2d 447 (1977). See also Pierre v. United States, 570 F.2d 95 (5th Cir. 1978) (remanding to district court for consideration of mootness question). Similarly, Sannon was remanded to this court. Sannon v. United States, 566 F.2d 104 (5th Cir. 1977) (mem.). Upon remand, this court initially held that the new regulations were improperly promulgated by INS in violation of the Administrative Procedure Act. Sannon v. United States, 460 F.Supp. 458 (S.D.Fla.1978). Thereafter, the regulations were repromulgated. 8 C.F.R. §§ 108.1 & 108.2 (1978). In its final order, this court decided that the new regulations-once properly promulgated and with some added notice requirements-rendered the Sannon litigation moot. No appeal was taken from the decision on mootness. Mootness contentions require an intensely factual inquiry. During its five year history, the Sannon litigation focused on one major issue: What consideration should be given asylum claims in exclusion hearings before immigration judges? With that issue effectively decided in the plaintiffs favor in the new regulations the court declined the plaintiffs’ invitation to rule on various matters not squarely presented by that case. In sum, the case was adjudged moot because the plaintiffs had been granted by the new regulations the primary relief they had sought from the court. In the case now at bar, the defendants argue that the new regulations promulgated by INS similarly moot the present plaintiffs’ claims, contending that the difference between this case and Sannon “is purely a legal distinction.” Defendants’ Memorandum in Support of Defendants’ Renewal and Supplement to Motion to Dismiss at 2. However, even in an intensely factual inquiry, “purely legal” distinctions are quite important to a court of law. Moreover, there are distinctions between the two cases which are more than “purely legal.” Under the regulations in force during the time period at issue in this lawsuit, the plaintiffs had a right to have their asylum applications considered by the District Director, whose decision was unreviewable within INS. 8 C.F.R. §§ 108.1 & 108.2. A District Director’s denial of asylum would not preclude the alien from applying for asylum during the course of a later deportation hearing before^an immigration judge. 8 C.F.R. § 108.2. As amended effective May 10, 1979, these regulations were changed to eliminate any application to the District Director unless the alien’s presence in the United States “is authorized” by INS, or other exceptions not pertinent here. Under the new regulations, then, asylum applications are to be considered by the immigration judge only. The defendants contend that this new procedure is available to all members of the class. Unlike Sannon, which turned on the question of what an immigration judge should consider in an exclusion hearing, the essence of the complaint in this case is that the procedures before the District Director were contrived to deny the Haitians’ asylum applications despite their individual merits. Sannon was rendered moot because the new regulations granted those excludable plaintiffs the right they sought, the right to present their cases to immigration judges. In contrast, the amended regulations no longer afford a deportable alien the right to a District Director’s determination of his asylum claim prior to any litigation before the immigration judge. Because the defendants’ state that the plaintiffs can elect to have their asylum applications reprocessed under the new unified procedure before an immigration judge, the defendants argue that the plaintiffs’ claims are moot. In essence, the defendants assert that because these plaintiffs can elect to give up a right they had, a right which INS now denies new applicants for asylum, their claims of past wrong are moot. The logic of this position escapes the court. Mootness is a constitutional doctrine which has both mandatory and discretionary applications. See generally C. Wright, A. Miller & E. Cooper, 13 Federal Practice & Procedure § 3533 at 263 (1975). In its mandatory aspect, it ensures that disputes in the federal courts-throughout their passage in those courts-remain the “live” disputes envisioned by the “cases” or “controversies” limitation on judicial power contained in Article III of the Constitution. On the other hand, its discretionary aspect often leads courts, based on considerations of judicial administration, to dismiss as moot litigation which otherwise meets the “cases” or “controversies” test. Consequently, there is no precise rule to be applied in determining whether a particular case has been rendered moot. The court is unpersuaded by the defendants’ mere reference to Sannon. On the contrary, the court finds the following four considerations persuasive. First, the rights which the plaintiffs seek to vindicate have not been in any manner extinguished by the new regulations. The new regulations are not on their face retroactive and this court should not interpret them to deprive the plaintiffs of their vested rights. See Greene v. United States, 376 U.S. 149, 158-60, 84 S.Ct. 615, 621-22, 11 L.Ed.2d 576 (1964). The plaintiffs in this case all applied for political asylum prior to the effective date of the new regulations; and the prior regulations gave them the right to have their applications considered by the District Director before undergoing the rigors of proceedings before an immigration judge. This right vested upon the making of the application for asylum. This court does not understand the defendants’ contention that the plaintiffs may elect to be reconsidered under the new procedure as an assertion that their right to fair consideration under the old procedure has somehow vanished. Second, this case is not one in which the defendants have voluntarily ceased the allegedly illegal activity and can show that (1) the allegedly illegal activity will not recur and (2) events have eradicated the effects of the alleged violations. See County of Los Angeles v. Davis, 440 U.S. 625, 630-31, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). The plaintiffs complain that the defendants adopted a systematic program designed to deport Haitians without regard to the merits of their individual asylum claims through initial proceedings before immigration judges and later actions by the District Director. The mere fact that the plaintiffs are now offered the opportunity to proceed entirely before the immigration judges does not indicate that the defendants have abandoned any plan to effect deportation of Haitians despite their assertedly valid asylum claims; the plaintiffs may properly suspect that the defendants have merely shifted the focus of their plan to a new setting: the hearings before immigration judges. Moreover, even if the defendants’ conduct might somehow be deemed a voluntary discontinuance of allegedly illegal activity, they have not met the “heavy” burden of demonstrating “that there is no reasonable expectation that the wrong will be repeated.” United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). If this case were deemed moot, the defendants would be able to return to their old ways, either under the altered procedure or under still more recent regulations promulgated pursuant to the Refugee Act of 1980, Pub.Law 96-212 (March 17, 1980.) Also, it would be incredible to contend that the plaintiffs are no longer suffering the effects of the defendants’ alleged misconduct. As alleged by the plaintiffs, the District Director failed to consider fairly their applications for asylum which resulted in those applications being arbitrarily denied. Had those applications not been so denied, as alleged, some number of the plaintiffs would now be enjoying political asylum in the United States rather than facing deportation hearings arid possible return to a nation where they contend they may be beaten or killed. Clearly, the effects of the defendants alleged misconduct persist. Third, while it is true that a challenge to a statute or to administrative regulations may be mooted by the enactment of a new statute or the promulgation of new regulations if the new statute or regulations satisfy all the bases for the attack on the old regulations, such is not the case here. See generally C. Wright, A. Miller & E. Cooper, supra at 276-79. Rather than challenging the regulations which were amended by the defendants, the plaintiffs here rely in part on those regulations to challenge the practices of the defendants. To hold that subsequent changes in the regulations moot this case would be one sure way to insulate from judicial review INS actions which are in derogation of its own regulations. Cf. id. at 279 (legislature should not be able to contrive methods for avoiding Supreme Court review). Any time anyone challenged such actions INS could simply amend its regulations. Moreover, as noted above, the amended regulations do not satisfy the specific challenges to agency practices which could easily be transferred to the new asylum procedures. Fourth, courts have often examined whether any remedy they could grant would be meaningful in cases challenged as moot, and this court concludes that it could grant meaningful relief if the various alleged violations-which include constitutional violations-are proved. Although remedial measures must be carefully tailored to the past violations proved, see, e. g., Dayton Board of Education v. Brinkman, 433 U.S. 406, 419-20, 97 S.Ct. 2766, 2775, 53 L.Ed.2d 85 (1977), this court believes that Chief Justice Burger’s forceful admonition remains good law and applicable to this case: Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies. . . . [A] school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15-16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). Although a rehearing of asylum claims before immigration judges rather than the District Director might be one method of remedying proven constitutional violations by the District Director, such an option might be particularly inappropriate in this case if it is proved as alleged in causes of action 1-3 that the immigration judges participated in the systematic denial of the class members’ rights. In sum, this court can see no possible constitutional or prudential rationale for holding that this case has been rendered moot by INS’s amendment of its own regulations. This case of manifest public importance has been vigorously contested by advocates representing the opposing parties. The parties contest alleged violations of the plaintiffs’ unextinguished rights to fundamentally fair consideration of their asylum applications by the District Director. The court can think of few cases or controversies more “live” or more deserving of judicial resolution. 2. Timing of Judicial Review In their original motion to dismiss, the defendants sought the dismissal of the entire action on the grounds that (a) the plaintiffs had failed to exhaust their administrative remedies and (b) this litigation was otherwise unripe. In their renewal and supplement to their motion to dismiss, the defendants appeared to abandon their claim that the litigation was unripe and they narrowed their exhaustion of administrative remedies claim to causes of action 1-3. The doctrines of ripeness and exhaustion of administrative remedies, though distinct, are clearly interrelated when courts are called upon to review administrative decisions. Professor Davis has written: When a court determines at what stage of administrative action judicial review may be sought, the court is either applying the requirement of ripeness, the broad doctrine that governs the kind of functions that courts may perform, or the relatively narrow doctrine of exhaustion, which focuses not upon the functions of courts but merely upon the completion or lack of completion of administrative action. K. Davis, 3 Administrative Law Treatise § 20.01 at 57 (1958). Since the defendants have raised both issues of ripeness and exhaustion in arguing that judicial review is inappropriate at this time, the court will address both issues, taking the more narrow question of exhaustion first. a. Exhaustion By not pressing their exhaustion argument with respect to causes of action 4-16, the defendants have implicitly admitted the obvious: the exhaustion contention with respect to those causes is frivolous. Causes of action 4-16 assert unlawful conduct in the District Director’s consideration of asylum applications. Under INS regulations, “no appeal shall lie” from the District Director’s decision on asylum applications. Hence, with respect to decisions of the District Director, there exist no more administrative remedies for the plaintiffs to pursue and the plaintiffs have exhausted their administrative remedies on causes of action 4-16. Moreover, this same rationale applies to cause of action 2. As alleged in cause of action 2, immigration judges required Haitians to present their asylum claims to the District Director within ten days. As alleged, if the applications were not filed within the ten day period, the District Di rector dismissed the applications as untimely. Because it was the District Director who dismissed the application, a Haitian could obtain no review of the dismissal within INS and his administrative remedies are exhausted. With respect to causes of action 1-3, the defendants contend that the plaintiffs have failed to appeal within INS the actions of the immigration judges in allegedly refusing to suspend deportation hearings upon the making of an asylum claim (cause of action 1), allegedly requiring the presentation of asylum applications to the District Director within ten days (cause of action 2), and allegedly scheduling deportation hearings en masse (cause of action 3). As an initial matter, the court concludes that these causes of action are so intimately entwined with the other fourteen causes of action as to make the application of the exhaustion requirement improvident, even if technically permissible. Cf. NLRB v. Industrial Union of Marine and Shipbuilding Workers, 391 U.S. 418, 426 n.8, 88 S.Ct. 1717, 1723 n.8, 20 L.Ed.2d 706 (1968) (exhaustion requirement “is a matter within the sound discretion of the courts”); Ecology Center of Louisiana, Inc. v. Coleman, 515 F.2d 860, 865-66 (5th Cir. 1975) (exhaustion is a flexible concept tailored to administrative statutes and circumstances). Exhaustion of administrative remedies is generally required to avoid the premature interruption of the administrative process. By letting the administrative process run its course several policies are advanced: (i) a more complete record is developed, (ii) the agency is allowed to exercise its discretion or expertise, (iii) the agency is given the chance to correct its own errors, and (iv) the agency is not weakened by easy circumvention of its procedures. See generally McKart v. United States, 395 U.S. 185, 193-95, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969); Ecology Center of Louisiana, Inc. v. Coleman, 515 F.2d 860, 866 (5th Cir. 1975). Of course, these cases recognize that the exhaustion doctrine is subject to numerous exceptions. For example, a plaintiff need not exhaust administrative remedies if such remedies would be inadequate to resolve his complaint. See, e. g., NLRB v. Industrial Union of Marine and Shipbuilding Workers, 391 U.S. 418, 426 n.8, 88 S.Ct. 1717, 1723 n.8, 20 L.Ed.2d 706 (1968). See generally K. Davis, 3 Administrative Law Treatise § 20.-07 (1958). This court has already concluded that traditional judicial review in the court of appeals would be inadequate to detect the violations of law alleged in causes of action 1-3. This court similarly concludes that the limits of internal agency review would be inadequate to resolve a class-wide complaint such as alleged in causes of action 1-3. The Supreme Court has recognized a second exception closely analogous to the inadequate administrative remedy exception. An individual challenging the Social Security Act’s administrative procedures as violative of constitutional due process need not present his constitutional challenge to the administrative agency or exhaust his administrative appeals to the Secretary thereon. See Mathews v. Eldridge, 424 U.S. 319, 328-30, 96 S.Ct. 893, 899-900, 47 L.Ed.2d 18 (1976). The Court noted: It is unrealistic to expect that the Secretary would consider substantial changes in the current administrative review system at the behest of a single aid recipient raising a constitutional challenge in an adjudicatory context. The Secretary would not be required even to consider such a challenge. Id. 424 U.S. at 330, 96 S.Ct. at 900. This rationale applies to the case at bar as well. Here, although the complaint is ambiguous, the evidence reflects that individual class members sought to have their deportation hearings suspended (cause of action 1), protested the ten day limitation on presentation of asylum applications to the District Director (cause of action 2), and protested the mass scheduling of hearings and interviews (cause of action 3). Their objections received short shrift. The plaintiffs allege that they were treated thus as part of a single unconstitutional plan and a systematic practice of accelerating their deportation proceedings in such a manner as to have them deported regardless of the merits of their individual asylum applications. Even if the internal appeal procedures were adequate to consider such a claim, the court believes that it is unrealistic to expect that such a challenge would receive serious consideration by INS. Indeed, the Board of Immigration Appeals refuses to hear constitutional challenges or challenges to INS regulations. See C. Gordon & H. Rosenfield, 1 Immigration Law and Procedure § 1.10e at 1-77 (1980). See also Greene v. McElroy, 360 U.S. 474, 507, 79 S.Ct. 1400, 1419, 3 L.Ed.2d 1377 (1959). For these reasons, causes of action 1-3, as well as causes of action 4-16, come within clear exceptions to the doctrine of exhaustion of administrative remedies. In addition, even if the exhaustion doctrine might otherwise be applicable, the balancing approach outlined by the Fifth Circuit in Ecology Center of Louisiana, Inc. v. Coleman, 515 F.2d 860, 865-66 (1975) would make a dismissal on that basis unwise. b. Ripeness In their renewed motion to dismiss, the defendants did not renew their earlier contention that the issues in this case were not “ripe” for adjudication. Again, the implicit abandonment of this contention arises from good cause. The claim that this litigation is not ripe for adjudication is patently frivolous. The Supreme Court has outlined a two step process for determining whether a particular case is ripe for adjudication: “The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). However, the Court did not intend that every federal court had to apply this two step procedure in every case; before a court is obligated to explore “the intricacies of the ripeness doctrine,” id. at 148, 87 S.Ct. at 1515, the party suggesting unripeness ought to be able to articulate why the case may be unripe. To test whether the party suggesting unripeness has articulated a proper reason to arouse judicial concern that the litigation may be unripe, a court need look no further than the late Justice Harlan’s summary of the ripeness doctrine: [I]ts basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. Id., at 148-49, 87 S.Ct. at 1515. As alleg