UNITED STATES DISTRICT COURT
                  SOUTHERN DISTRICT OF FLORIRA
                                   CASE NO.: 94-2183-CIV-ATKINS

     CUBAN AMERICAN BAR ASS0CIATION, INC.    )
     et. al.                                 )
               Plaintiff,                    )
                                             )
     vs.                                     )
     WARREN CHRISTOPHER, et. al.             )
               Defendents,                   )
     HAITIAN REFUGEE CENTER, INC.,           )
     et. al.                                 )
     Intervenors.                            )
  ___________________________________________)

PLAINTFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

Plaintiffs, Cuban American Bar Association, Inc. ("CABA"), Cuban Legal Alliance, Inc. ("CLA"), and Due Process, Inc. ("DPI") (collectively "Cuban Refugee Service organizations" or "CRSOs"); LIZBET MARTINEZ, ARIANNA GONZALEZ NOBAEZ and ARNIEL DEL CAMPO GONZALEZ (the "Minor Plaintiffs"); NELSON TORRES PULIDO, MARITZA EXPOSITO, DAVID BUZZI, ALBERTO RODRIGUEZ GARCIA, NESTOR RODRIGUEZ LABORI and JOVANI MIGUEL FIFPE PINO ("the Refugee Plaintiffs"); LEYDIS MILAGROS RUIZ MENDEZ (the "Pregnant Refugee Plaintiffs") and ELENA PINO and VIRGINIA PEREZ, (the "Refugee Family Plaintiffs"), on behalf of themselves and all others similarly situated, by and through their undersigned counsel, hereby submit this memorandum in opposition to defendants' motion to dismiss this case for failure to state a claim and for lack of subject matter jurisdiction. Viewing the facts in the light most favorable to plaintiffs, and in light of this Court's own prior rulings in this case, plaintiffs plainly have stated eleven claims upon which relief can be granted. Moreover, this and other courts have repeatedly rejected challenges to the standing of organizational plaintiffs nearly identical to those raised by defendants here. Viewing the facts as true, as it must for purposes of a motion to dismiss, this Court may unhesitatingly exercise subject matter jurisdiction over plaintiffs' various claims.

I. Statement of the Case

At stake in this case are the rights of approximately 32,000 Cuban refugees who are presently detained at the U.S. Naval Base in Guantanamo Bay, Cuba ("Guantanamo"), in the Republic of Panama, and in other locations under the exclusive jurisdiction and control of the United States. On October 24. 1994, plaintiffs, Which include three Miami-based Cuban Refugee Service Organizations ("CRSOs) and twelve named plaintiffs ("Detained Refugee Plaintiffs"), brought this class action seeking declaratory and injunctive relief. The named plaintiffs include six adult political refugees ("Refugee Plaintiffs"), three minor children ("Minor Refugee Plaintiffs"), and one pregnant woman ("Pregnant Refugee Plaintiff"), all of whom am being indefinitely detained by defendant officials in barbed wire camps in Guantanamo or Panama, and two lawful permanent residents who are their relatives ("Relative Plaintiffs") The complaint seeks declaratory and injunctive relief against defendant officials.

The allegations of the complaint, which must be considered true on this motion to dismiss, and the plaintiffs' subsequent supporting factual submissions, conclusively demonstrate, among other things, that the named defendants and other officials and agents of the United States government have: (1) involuntarily detained all Cuban refugees picked up at sea since August 19, 1994; (2) held chose refugees in deplorable conditions at Guantanamo and in other locations subject to the exclusive jurisdiction and control of the United States, (Sanchelima Dec. at 3-12; Walsh Dec. at 3-5; Frelick Dec. at l-5; Dominguez Dec. at 7); (3) denied the Cuban Refugee Service Organizations and other lawyers access to their clients, held at Guantanamo and other U.S. Locations (Martinez Dec.); (4) prohibited the Cuban refugees at Guantanamo from obtaining the advice of their lawyers (Dominguez Dec., Martinez Dec.); (5) advised, encouraged and coerced the Cuban refugees in an effort to coerce their return to Cuba; (6) declared that the Cuban refugees at Guantanamo will be detained indefinitely and will not be allowed to seek refuge in the United States unless they return to Cuba; (7) repatriated approximately 42 Cuban refugees to Havana and are preparing to repatriate approximately 1,000 others without first allowing them access to counsel and sources of information and advice other than the Government.

In particular, the eleven counts of plaintiffs' complaint allege: (1) defendants' viewpoint-based denial of the CRSOs' First Amendment Rights to communicate with the Detained Refugee Plaintiffs; (2) defendants' denial of the Detained Refugee Plaintiffs' First and Fifth Amendment Rights to obtain and associate with their retained counsel; (3) defendants' denial of the Detained Refugee Plaintiffs' right to refugee processing while being held on Guantanamo, Panama, and elsewhere; (4) defendants' denial of the Due Process Rights of Minor Refugee Plaintiffs; (5) defendants' denial of the Due Process Rights of Pregnant Refugee Plaintiffs; (6) defendants' denial of the Due Process Rights of Detained Refugee Plaintiffs to reasonable medical care while confined on Guantanamo, Panama, and elsewhere; (7) defendants' denial of the Due Process Rights of Detained Refugee Plaintiffs by subjecting them to arbitrary discipline while confined on Guantanamo, Panama, and elsewhere; (8) defendants' denial of the Due Process Rights of Detained Refugee Plaintiffs by subjecting them to indefinite detention under an unauthorized extra-statutory legal regime; (9) defendants' denial of the statutory and treaty-based Rights of Detained Refugee Plaintiffs to resist coerced repatriation; (10) defendant Attorney General's unlawful, arbitrary, capricious and unauthorized exercise of her statutory parole discretion in a matter not in accordance with law; and (11) defendants' denial of the Due Process Rights of Detained Refugee Plaintiffs to legitimate expectations of parole, based upon a consistent stream of statutory enactments, congressional resolutions, public presidential and executive branch statements and actions dating back thirty-five years.

For reasons set out more fully below, plaintiffs have clearly stated claims upon which relief can be granted with respect to all eleven counts.

II. Factual Background

A. The Government's Pre-1994 Policy.

The factual record in this case is largely uncontroverted. Since Castro's institution of a Communist regime in Cuba in 1960, the United States continually and consistently has granted refuge, asylum and eventually permanent residence and citizenship to hundreds of thousands of Cuban refugees who have fled Castro's repressive rule for fear of their lives and liberty. Walsh Dec. at 3-5; Clark Dec. Congress enacted the Cuban Adjustment Act, the Refugee Act of 1980 and the Cuban Democracy Act. all of which evidence congressional intent to assist Cuban refugees and permit their refuge in the U.S., during that time. On August 19, 1994, the United States government, at the direction of the defendants, and without an executive order or any act of Congress, abruptly halted its acceptance of Cuban refugees and detained without rights, almost 30,000 Cuban refugees at Guantanamo, Panama, and other locations subject to U.S. jurisdiction.

B. The Parties' Allegations.

On October 24, 1994, plaintiffs filed the eleven count complaint described above and requested immediate temporary relief on only two of the eleven counts: (1) enforcement of their First Amendment right to reasonable access to their clients, Cuban refugees detained behind barbed wire at Guantanamo, Panama, and other locations subject to U.S. Law, and (2) assurance that, pending a preliminary injunction hearing, no bona fide refugee would be returned against his will to Castro's Cuba. At the hearing on the TRO, plaintiffs presented declarations to the court that established:- (1) that the detained refugee plaintiffs are being confined under deplorable and inhumane conditions at Guantanamo. Walsh Dec. at 3-5; Sanchelima Dec. at 3-12; Dominguez Dec. at 4-6; Frelick Dec. at l-5; (2) that the refugees are being deprived of adequate shelter, food, clothing, medical care. communication facilities and other living conditions; (3) that plaintiffs have been denied access to their lawyers and are being coerced to return to Cuba; (4) that defendants are denying the Cuban refugees not only entry into the United States but also the rights to both refugee processing and to present their asylum claims at Guantanamo and other locations under exclusive United States jurisdiction and control. Dominguez Dec. at 4-5; Rizza Dec. at 3; and (5) that defendants are denying the Cuban Refugee Service Organizations and other lawyers reasonable and meaningful access to these clients, in a concerted effort to deny plaintiffs legal representation and advice, thereby furthering their goal of coercing the approximately 32,000 Cubans to return to Cuba without the benefit of full information and legal advice. Martinez Dec.

At the hearing on that temporary order, defendants assured the court that "as requested, access to the camps can be had and private meetings arranged with" plaintiffs' lawyers. Defendants' Opposition to Plaintiffs' Request for Injunctive Relief ("Def. Opp.") at 10. Defendants further conceded that "[n]o "Cuban" person who has expressed a desire to remain in safe haven is in any danger of repatriation.", Id. at 1. On the merits, defendants' sole legal defense, as seated to this Court by Allen W. Hausman of the Department of Justice's Office of Immigration Litigation is:

[T]he people, the Cubans who are in safe haven at Guantanamo, are without rights under our Constitution [or any other U.S. Laws].

Transcript of October 26, 1994 Hearing on Application for Temporary Restraining Order (hereinafter "T.") at 73. They would be, in effect, objects who live in United States custody at the whim of executive officials.

According to the government, to secure any rights or benefits under the Immigration and Naturalization Act (INA), the detainees must first "voluntarily" return from Guantanamo to Cuba, the country from which they have recently fled. (T. 77); Declaration of Michael Skol at 3 ("Cubans in safe haven must return to Cuba in order to be eligible to enter the United States"). The government's written response to the plaintiffs' application further asserted that "under the prevailing law the defendants could, if they chose, forcibly repatriate the Cubans currently in [so called} safe haven." Defendants' Opposition to Plaintiffs' Request for Injunctive Relief ("Government's Response") at 11 (emphasis added). Defendants admitted, however, that [t]he United States Government has neither the desire nor the authority to detain these people in the safe havens against their will. Government's Response at 18 (emphasis supplied). At the hearing, Mr. Hausman repeated that the detainees "are assured of safe haven" and "will not be repatriated to Cuba against their will." (T.89).

C. This Court's October 31 Order

This Court issued its Order Granting Plaintiffs' Emergency Motion for Temporary Restraining Order (TRO) on October 31, 1994. The order imposes two limited restraints on the government;

(a) Defendants shall refrain from denying Cuban Refuges Service Organizations and other counsel reasonable and meaningful access to the detained refugee plaintiffs; and

(b) Defendants shall refrain from repatriating any detained plaintiff refugees ... without permitting them access to counsel and receipt of full information so as to assure an informed and voluntary decision to seek repatriation.

TRO at 12-13.

The court's order further required counsel to submit within five days a proposed agreed plan for visitation, which plaintiffs duly submitted. Para. 3. The order thus envisioned discussions among opposing counsel to effectuate their shared goals of affording Cuban refugees access to counsel and to permit truly voluntary repatriates to return. The Court further indicated that it would "on application, consider appointing a Special Master to supervise the [visitation] proceedings" in the event that opposing counsel could not agree on appropriate arrangements. Para. 3. This Court further contemplated that an evidentiary hearing might follow on the preliminary injunction, where additional, non-duplicative evidence might be submitted. Para. 5. Plaintiffs moved for such a preliminary injunction hearing and promptly initiated talks to work out reasonable access to their clients, so that truly voluntary repatriations might quickly commence.

D. Defendants' Response

Rather than engage in the discussions envisioned by this Court's order, defendants rushed to the Court of Appeals for the Eleventh Circuit seeking extraordinary relief. Without waiting even thirty-six hours for this Court to rule on their stay motion, defendants raced to the Eleventh Circuit to demand that it disrupt its normal procedures. Defendants insisted that this Court hear an interlocutory appeal from a non-appealable order, reverse without a hearing or full factual record, and issue a drastic writ of mandamus, all to prevent the "emergency" that clients would talk to their lawyers before the Government returns them involuntarily to persecution in Castro's Cuba. Before the Eleventh Circuit, defendants; (1) ignored controlling Supreme Court precedent; (2) misread this Court's decision in Haitian Refugee Center, Inc. v. Baker (hereinafter "Baker"), 953 F.2d 1498 (llth Cir,), cert. denied, -- U.S.-, 112 S. Ct. 1245 (1992); (3) dismissed intervening decisions on nearly identical facts by other federal courts, particularly the E.D.N.Y.'s decision in Haitian Centers Council. Inc, v. Sale (hereinafter "Sale", 823 F. Supp. 1028 (E.D.N.Y. 1993); and repeated their breathtaking claim that noncriminal Cuban children, women and men imprisoned behind barbed wire on territory subject to exclusive United States jurisdiction "are without rights under our Constitution" or any other United States laws. TRO hearing at 73.

E. The Eleventh Circuit's November 7 Order

Following oral argument, the Eleventh Circuit unanimously denied defendants' extraordinary demands for summary reversal and/or mandamus and set an expedited appeal of the two issues sub judice: (Count 1) CRSOs plaintiffs' First Amendment Right of access to and communication with their clients, and (Count 9) Detained Refugee Plaintiffs' right to resist coerced repatriation of Plaintiffs to Cuba. In a 2-1 decision, the Eleventh Circuit granted defendants' motion for a stay pending appeal, but only in part. In particular, the Eleventh Circuit majority held that "defendants may repatriate all current detainees [in Camp November or elsewhere] who have expressed a desire, by written declaration, to be returned to sovereign Cuba." Para. c & d. Significantly, however, the U.S. Court of Appeals for the Eleventh Circuit supported this Court's ruling in two critical respects: (1) that "defendants shall afford reasonable and meaningful access for legal counsel" to named plaintiffs and other detainees who request counsel by written declaration. Eleventh Circuit Order, Para. a. Upon information and belief at this writing, in excess of l5,000 detainees have so requested); and (2) that "the defendants shall not repatriate any detainees who do not express, by written declaration, a desire to be returned to sovereign Cuba." Id., pare. e (emphasis added).

At oral argument, the Eleventh Circuit panel: (1) asked repeatedly whether and when this Court would act upon plaintiffs' class action certification motion; (2) declined to address defendants' counsel's objections regarding appointment of a special master; (3) did not enter even a partial stay with respect to Counts 2-8 and 10-11 of the complaint; and, (4) expressed no disapproval whatsoever about this Court proceeding to orderly consideration of all other pretrial motions that may be pending. In short, the Eleventh Circuit merely entered a limited stay pending appeal with regard to the two legal issues contested on the October TRO. and even with respect to those issues partially affirmed this Court's rulings. The Eleventh Circuit in no sense tied this Court's hands with respect to the other nine legal issues before this Court, nor did the Court of Appeals bar this Court from proceeding with the normal and necessary pretrial activity --including discovery motions, preliminary injunction hearings on other counts, class certification, appointment of a special master, and the like that this Court is obliged to pursue in the weeks before the Eleventh Circuit rules on the expedited appeal.

There is thus absolutely no basis for defendants' exorbitant claim that the case at large has been "stayed" by the Eleventh Circuit. Defendant's Appeal of Magistrate fudge's Order Granting Plaintiffs' Motions for Expedited Discovery at 2.1 The Eleventh Circuit only partially stayed this Court's "injunctive relief set out in the [October 31. 1994 injunction] except as hereafter provided. (emphasis added). The Eleventh Circuit's order did not address staying: (1) class certification; (2) other injunctive relief that this Court has yet to issue on the nine counts on which it has not yet heard argument or evidence; (3) pretrial discovery; or (4) other means of pretrial management, including the appointment of a special master to supervise not just visitation, but conditions, disciplinary proceedings, provision of medical care, voluntariness of repatriation, or refugee processing.

III. ARGUMENT

On this motion to dismiss, the Court is obliged to take as true and view the facts of the complaint in the light most favorable to the plaintiffs. Linden v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992). In evaluating whether to grant defendant's motion, the principle is not expressed that a complaint will nor be dismissed for failure to state a claim on which relief can be granted unless "the plaintiff[s] can prove no set of facts which would entitle them to relief.. Id. (citing H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229,249 (1989).

A. Plaintiffs have stated Eleven Claims Upon which Relief can be Granted.

Count I - CRSOs' First Amendment Rights:

By granting stays on October 24 and October 31, 1994. this Court found that plaintiffs have a substantial likelihood of success on their claim that defendants have engaged in unlawful viewpoint-based denial of the CRSOs' First Amendment Rights to communicate with the Detained Refugee Plaintiffs. In its order dated November 7, 1994, the Eleventh Circuit confined that "defendants shall afford reasonable and meaningful access for legal counsel" to named plaintiffs and other detainees who request counsel by written declaration. Eleventh Circuit Order, Para. a. At this writing, some approximately 15,000 detainees have so requested. In a radio broadcast on a Miami-based Spanish-language radio station on October 28, Dennis Hays, the State Department Coordinator of Cuban Affairs and chief of the United States delegation to Cuba pursuant to the September 9 communique, further set forth government policy as follows:

It is important to be very clear on this. And that is that U.S. law will apply to those individuals who are under our protection. See Notice of Filing of Complete Transcript of Radio Broadcast of Dennis Hays Interview ("T. Hays Interview") (October 28, 1994) at 2 (emphasis supplied).2 By opposing-party admission and controlling precedent, plaintiffs have thus stated a claim upon which relief can be granted with respect to this count. Defendants wrongly assert that Baker, provides the applicable standard for attorney rights of access under the First Amendment to clients detained on Guantanamo. Baker, 953 P.2d at 1498. But as this Court has already ruled, the CRSO's have shown that they may suffer viewpoint-based denials of their First Amendment right to provide counseling, advocacy and representation to their clients on Guantanamo. See generally, TRO. It is uncontroverted that Plaintiff counsels' attempts to meet with their clients on Guantanamo are a form of protected political speech under the First Amendment. In re Primus, 436, U.S. 412 (1978); NAACP v. Button, 371 U.S. 415, 429 (]963) (recognizing litigation as "a form of political expression"); Baker, 953 F.2d at 1513. Under very different factual circumstances, the Baker panel found that the exercise of those rights was predicated on the existence of underlying substantive claims for the detainees.

That decision does not apply here for at least six reasons.

First, the Baker opinion is predicated on the factual finding of the district court that the government's denial of access did not represent a form of viewpoint discrimination. As the Baker panel took pains to explain: "The district court noted that there was no allegation that the government's denial of access to the interdicted Haitians was the product of viewpoint discrimination" Baker, 953 F.2d at 1512. Only in this factual context did the panel find that counsel could not exercise their First Amendment rights without demonstrating the existence of underlying legal rights for their clients.3 Moreover, the facts as alleged belie Defendants' claim that their actions do not constitute viewpoint discrimination. Govt. Motion, at 31-33. Just as in Sale, "The legal rights and options of . . . detainees are discussed on Guantanamo, but only from the viewpoint of which the government approves." Sale , 823 F. Supp. at 1040. The government's program of viewpoint discrimination is carried out through a variety of mechanisms. First, ordinary visitors are allowed access so highly constrained that it is meaningless. Yet government employees freely meet with the detainees in the course of daily camp life, providing highly misleading information designed to encourage the refugees to return at great risk to Cuba and employing "psychological operations" specialists to censor the news the refugees receive by radio. The Sale court found clear viewpoint discrimination under less egregious circumstances. Sale, 823 F. Supp. at 1040 (noting that viewpoint discrimination was proven by fact that "the Haitians [had] received legal advice, which has often been erroneous, from the military, the INS, the Community Relations Service and even military doctors: while meaningful access by counsel was foreclosed"). Moreover, the government's own documents demonstrate that it is Defendants' policy to allow "selected NGOs" a "long-term presence at Guantanamo, "while denying similar access to plaintiffs' own counsel. Zaparach Dec. (attachment), at 3. This demonstrates that defendants' screening process is unconstitutionally designed to ensure that "undesirable" viewpoints are not meaningfully represented on Guantanamo or at other detention sites.

Second, viewpoint discrimination issues aside, Baker is inapplicable because the more recent Sale ruling altered the legal landscape - creating cognizable rights claims for the Cuban refugees here that simply did not exist at the time Baker was adjudicated. TRO, at 10; Sale, 823 F. Supp. at 1040. If it were true that Cubans being detained at Guantanamo and elsewhere had no legal rights on which they could be advised by counsel, then American officials would be free to deliberately terrorize, randomly abuse, and even execute the refugees. See discussion in Sale, 823 F. Supp. at 1042.

Third, the Baker opinion's narrow interpretation of counsel's First Amendment rights was predicated on the panel's supposition that the Haitians were in lawful detention. See, e.g., Baker, 953 F.2d at 1512 ( "The cases that the district court relies upon to justify its conclusion that HRC is likely to prevail in its First Amendment claim-NAACP v. Button, and In re Primus -- do not recognize a right of access to persons properly in government custody.") (emphasis added); id. at 1514 ("Neither Button nor In re Primus supports the conclusion that the Government infringes associational free when it denies access to those whom it lawfully detains.") (emphasis added). Here, it is the very lawfulness of the Cuban refugees' detention that this suit challenges.

Fourth, the Cuban refugees here assert entirely new claims of rights not put forward by the Haitian detainees in Baker. Baker concerned the rights of Haitian' on Coast Guard cutters (and transitorily on Guantanamo) to better processing. The underlying claims raised here concern the rights of Cubans indefinitely detained without processing on Guantanamo and in Panama to adequate conditions, to resist forced repatriation, and to some kind of refugee processing. The Baker panel set forth no test to apply in determining whether an underlying rights claims exists. For equitable reasons, this Court should adopt a generous standard. Given the significance of the Plaintiffs' claims in this case -- quite literally life or death is at issue for many - it would be proper for the Court to require only a limited showing before granting, counsel access to develop these claims more fully.

Fifth, the Baker panel expressed concerns that the government would be obliged to provide "transportation to and from Guantanamo. and "other necessities.. Baker, 953 F.2d at 1514. Here, unlike Baker, counsel here are prepared to provide and have already provided independent transportation and assumed the cost of their visits. TRO, at 10-11. The Supreme Court held in Perry Educ. Ass'n v. Perry Local Educ. Ass'n, that the law governing restraints on speech in nonpublic fora prohibits any restraint which serves "to suppress expression merely because public officials oppose the speaker's view" or is otherwise not "reasonable." Perry, 460 U.S. at 46, Sixth, and finally, even if defendants' restrictions on the CRSOs' political speech did not constitute impermissible viewpoint discrimination, courts have been extremely reluctant to uphold government restrictions on speech where other alternative means of communication do not exist. See Perry, 460 U.S. at 53 ("substantial alternative channels ... remain open...."); Cornelius v. NAACP Legal Def. Educ. Fund. Inc., 473 U.S. 788, 809 (1985) ("speakers have access to alternative avenues of communication available); Pell v. Procunier, 417 U.S. at 827-28 (1974) ("alternative channels of communication available"); Longo v. United States Postal Serv., 953 F.2d 790, 793, 797 (2d Cir. 1992) ("leaves open adequate alternative means of communication"); New York City Unemployed & Welfare Council v. Brezenhoff, 742 F.2d 718, 723 (2d Cir. 1984) ("ample alternative forums"); Calash v. City of Bridgeport, 788 F.2d 80, 84 (2d Circ. 1986) "numerous alternative fora").

Plaintiffs' counsel have not yet been granted meaningful access to their clients, except under this Court's order. Given defendants' complete control over all means of access to the base, no alternative means of communication is available or possible under the circumstances. See Petersen v. Talisman Sugar Corp., 478 F.2d 73, 82 (5th Cir. 1973) (biweekly trips by plaintiffs' lawyers to labor camp do not constitute reasonable access given absence of alternative means of communicating with migrant workers). In sum, given that this Court has already formed a substantial likelihood that plaintiffs will succeed on this count, and that Baker is entirely distinguishable, there is no basis whatsoever for dismissing this claim.

Count II- Refugee Plaintiffs' Right to Counsel

In Sale, the District Court "found that Haitian detainees [on Guantanamo] had a due process right to counsel under the Fifth Amendment.. Sale, 823 F. Supp. at 1042. That finding was made first on a motion for preliminary injunction, and embodied by the District Court in a permanent injunction. Id. at 1042-43. Given that Haitian detainees under factually similar circumstances actually obtained final relief on this count, plaintiffs have plainly stated a claim upon which relief can be granted. The Cuban detainees have a protected liberty interest in not being wrongfully repatriated to Cuba, to due process in living, medical, and disciplinary conditions, and in not being indefinitely detained. Id at 1042. The Cuban detainees also have a protected liberty interest in their reasonable expectation of avoiding erroneous return and obtaining parole based on the consistent affirmative actions of the Executive and Congress over decades. Id. at 1042; Haitian Centers Council. Inc. v, McNary (hereinafter "HCCI.), 969 F.2d 1345 (2d Cir. 1992); Yiu Sing Chun v. Sava, 708 F.2d 869, 877 (2d Cir. 1983). The United States cannot deny a protected liberty or property without providing constitutionally adequate due process, which includes a right to counsel. Sale, 823 F. Supp. at 1042; Mullane v, Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). Permitting access to attorneys is a reasonable method protect the Cuban detainees' due process interests in liberty. Sale, 823 F. Supp. at 1043; Sale 1, 969 F. 2d at 1346.

Count III - Right to Refugee Processing

Defendants concede that Cuban refugees have a right to refugee processing under Sections 207 or 208 of the Refugee Act of 1980 and other laws once they reach United States territory. Defendants further argue that Cuban refugees in Cuba have right to in-country processing there, and indeed, are obliged to return to Cuba to pursue in-country processing. There is no dispute that plaintiffs being held on Guantanamo and in the Panama Canal Zone are on territory subject to exclusive United States jurisdiction and control. If such territory is legally equivalent to United States territory, then Cuban refugees have a right to refugee processing under Sections 207 or 208 of the Refugee Act of 1980 and other laws; if such territory is legally equivalent to Cuban territory, plaintiff Cuban refugees have a right to in-country processing there. In either case, by defendants' own concessions, plaintiffs have stated a claim upon which relief can be granted with respect to this count.

However Guantanamo is viewed, Cuban plaintiffs detained there are entitled to refugee processing.4 If, for the purposes of the INA, Guantanamo is considered to be United States territory, plaintiffs are entitled to asylum processing under Section 208 of the Refugee Act of 1980. If Guantanamo is considered to be a territory subject to the jurisdiction of the United States, the Fifth Amendment applies there (see Counts IV-VIII below) and Cuban refugees are entitled to processing as a matter of due process to determine their eligibility for asylum. See United States v. Husband R. (Roach), 453 F.2d 1054 (5th Cir. 1971), cert. denied. 406 U.S. 935; Galvan v. Press, 347 U.S. S22 (1954); see also, De Malherbe v. International Union of Elevator Constructors, 438 F. Supp. 1121 (D.C. Cal 1977); Holt v. Klosters Rederi A/S, 355 F. Supp. 354 (D.C. Mich. 1977) If Guantanamo is deemed to be an adjacent island" to the United States,5 the refugees on Guantanamo may be deemed to have been "inspected" for purposes of the INA,6 and thus are entitled to INA § 236 exclusion processing. Finally, if Guantanamo is considered to be Cuban territory, then the refugees detained there must be accorded access to processing under § 207 of the Refugee Act of 1980 According to the Government, the detainees must "return. to Cuba in order to avail themselves of § 207 processing. The government demands that any detainee ·who intends to seek admission to this country first "voluntarily" return to Cuba: "Cubans in safe haven must return to Cuba in order to be eligible ro enter the United States." Declaration of Michael Skol at 3. Yet the government also insists that Guantanamo "is foreign territory.. Defendants' Motion to Stay Injunction Pending Appeal at 2 (emphasis supplied).

The government's position is thus a logical impossibility. According ro the government, the detainees are not within the United States, but they are also not in Cuba,. This cannot be; Guantanamo is either American or Cuban territory. If, as the government insists, it is indeed Cuban territory, then the detainees were "returned" to Cuba when they were forcibly "rescued" at sea and brought to Guantanamo against their will, and they have rights to in country processing. If they are on United States territory, the INA applies, and detainees must-by the government's own concessions-be permitted to apply for admission on Guantanamo. Finally, whenever the territorial status of Guantanamo may be, the refugees detained there are entitled to asylum processing under international law. In short, however the matter is viewed, plaintiffs have plainly stated a claim upon which relief may be granted with respect to this count.7

Counts IV-VIII- Plaintiffs Have Stated Claims Under The Due Process Clause

Counts four through eight of the Plaintiffs' Complaint allege that the Cuban detainees an Guantanamo, including minors and pregnant women, have due process rights under the Fifth Amendment, as persons in coercive, non-punitive detention, to: (1) medically adequate conditions of confinement; (2) disciplinary procedure that comport with standards of due process before imposition of punishment: and, (3) to be free of indefinite detention where there are no valid reasons for it, where the aliens bear no responsibility for delaying the process, and where there is no assurance that the detention will eventually end. In Sale, the District Court held that Haitian detainees on Guantanamo, including minors and pregnant women, had due process rights under the Fifth Amendment. (1) "[a]s persons in coercive, nonpunitive and indefinite detention [to] . . . medically adequate conditions of confinement;. (2) to disciplinary procedures that require "written notice of the allegations, a hearing, a written decision, an opportunity to call witnesses and present evidence, access to counsel, and an impartial decision maker."before the imposition of punishment;". (3) to be free of indefinite detention where there are no valid reasons for it (e.g., a criminal record), where the alien bears no responsibility for delaying the process, and where there is no assurance that the detention will eventually end. Given that detainees on Guantanamo have obtained final relief under factually similar circumstances, plaintiffs have plainly stated claims upon which relief can be granted with respect to these five counts. The Due Process Clause of the Fifth Amendment applies to the interdicted, non-accused, non-hostile Cubans held at Guantanamo Bay. HCCI, 969 F.2d at 1342-46. Applying due process protections to such a limited, identifiable class of people in these unique factual circumstances is neither impracticable nor anomalous. Id. at 1343; see United Sates v. Verdugo-Urquidez, 494 U.S. 259, 278 (1990) (Kennedy, J. concurring). Recognition of nonresident Aliens' Fifth Amendment due process claims fully comports with the Supreme Courts Fourth Amendment holding in Verdugo-Urquidez United States v. Inigo, 925 F.2d 641, 656 (3d Cir. 1991). The Due Process Clause is phrased in universal terms, protecting any "person," rather than members of "the people". U.S. Const. Amend. V. The Supreme Court has long held that aliens outside the United States are entitled to due process in civil suits in United States courts. Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987); Insurance Co. of Ireland v Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982); Reid v. Covert, 354 U.S. 1 (1957); United States v. Streifel, 665 F. 2d 414 (2d Cir. 1981); United States v. Toscanino, 500 F. 2d 267 (2d Cir. 1974).

The U.S. Naval Base at Guantanamo is subject to the exclusive jurisdiction and control for the United States and only the criminal and civil laws of the United States apply there. Sale, 823 F. Supp. at 1042; See also HCCI, 969 F.2d at 1342, 1343 (citing United States v. Lee, 906 F.2d 117, 117 & n.1 (4th Cir. 1990)). Courts have protected the fundamental constitutional rights of noncitizens in other territories subject to exclusive U.S. jurisdiction and control, including the former American Sector of Berlin, the Canal Zone, and the Pacific Trust Territories. United States v. Tiede, 86 F.R.D. 227, 249-53 (U.S. Ct. Berlin 1979); Canal Zone v. Scott, 502 F.2d 566, 568 (5th Cir. 1974); Ralpho v. Bell, 569 F. 2d 607, 618-19 (D.C. Cir. 1977); Limojwa Nitol v. United States, 7 Cl. Ct. 405 (1985). As the Second Circuit has noted, there is "no principled basis for concluding that the [Haitian refugee] plaintiffs detained at the base would have fewer substantive rights" than aliens "arrested and accused . . . at Guantanamo." HCCI, 969 F.2d at 1343. Moreover, it would not be "incongruous or overreaching to conclude that the United States Constitution limits the conduct of United States personnel with respect to officially authorized interactions with aliens brought to and detained by such personnel on a land mass exclusively controlled by the United States.. Id., at 1343. As Judge Johnson noted in Sale:

it would not be either "impracticable" or "anomalous" to apply the Due Process Clause to [Cubans] held in U.S. custody on Guantanamo. These "interdicted [Cubans] are not 'some undefined, limitless class of noncitizens who are beyond our territory, they are instead an identifiable group of people who were interdicted by Americans in international waters and who have been detained on territory that is subject to the exclusive control of the United States... [I]n this case the United States has exercised its 'undoubted power... to take actions to assert its legitimate power and authority abroad,'... in both interdicting and bringing these [Cubans] to territory controlled by the United States HCCI, 969 F.2d at 1343 (citations omitted). These [Cubans] are at a military base solely because defendants chose to take them there. The United States government has already bound itself by treaty not to "impose penalties" on persons it has recognized as refugees, who flee to the United States "directly from a territory where their life or freedom was threatened" on account of political persecution. U.N. Refugee Convention, art. 31.1. If the Due Process Clause does not apply to the detainees at Guantanamo, Defendants would have discretion deliberately to starve or beat them, to deprive them of medical attention, to return them without process to their persecutors, or to discriminate among them based on the color of their skin.

Sale, 823 F. Supp. at 1041-42. As we now demonstrate, plaintiffs have stated a cognizable claim on each of their specific due process counts.

A. Minor Plaintiffs Due Process Claim

The Minor Refugee Plaintiffs have constitutionally protected liberty interests to be free from institutional confinement and restraint. The United States Supreme Court has recognized a core liberty interest of children being held in detention. Specifically, it has noted that detained juveniles "have a constitutionally protected interest from institutional confinement," That interest lies within the core of the Due Process Clause..." Reno v. Flores, ll3 S. Ct. 1439, 1454 (1993) (Justice O'Connor concurring). In .Schall v. Martin, 467 U.S. 253, 256 (1984) the Supreme Court made clear that children have a protected liberty interest in "freedom from institutional restraint." It follows that a governmental decision implicating a protected liberty interest must comport with substantive and procedural due process. See Flores, 113 S. Ct. at 1456 (O'Connor, J. concurring).

The regulatory scheme for processing juveniles set forth in 8 C.F.R. 242.24 was implemented precisely because juveniles have a protected liberty interest. The procedures governing the detention and release of juveniles by defendants are set forth in 8 C.F.R. 242.24. See also 8 U.S.C. 212(d)(5)(A); 8 C.F.R. 212.5(a)(2)(iii) and (v). The authority for parole of the adult parent class members accompanying the minors is set forth in 8 C.F.R. 212.5(a)(2)(iii) and (v). The authority and the policy of paroling juveniles is grounded in 8 C.F.R. 212.5(a)(2)(ii). That regulation mandates that aliens defined as juveniles (i.e., under 18 years of age), shall be paroled in accordance with the guidelines set forth in 8 C.F.R. 242.24(b). Parole of all detained juveniles is the policy of the INS nationwide. The failure of the defendants to parole the detained Minor Refugee Plaintiffs at Guantanamo and Panama and other U.S. locations is thus a clear violation of their due process rights as juveniles in government custody. In this specific instance, the refusal to consider or grant parole of detained juveniles clearly violates existing public policy and practice regarding the nonpunitive detention of juveniles, as well as the INA and accompanying regulations, the Administrative Procedure Act ("APA"), the due process clause and the equal protection component of the Fifth Amendment. In addition, the violation or failure of INS to comply with an applicable statutory or regulatory provision violates the Due Process Clause of the Fifth Amendment, See, e.g. Accardi v. Shaunessy, 347 U.S. 260 (1954). The mechanism for exercising the discretion in considering parole requests requires that the district directors determine whether the alien presents a security risk or risk of absconding. If neither is likely, the district director must determine whether the grant of parole would be in the public interest. Juveniles are a specific category of aliens who are to be given priority for parole under 8 C.F,R. 212.5. In the present case, the juvenile detainees clearly do not present a security risk, nor are they likely to abscond. Existing policy has reflected that fact that having children harmed psychologically as is the case here could never be in the public interest of the United States.

The evidence will show that physicians and psychologism, who have examined Minor Refugee Plaintiffs, have reported that the children are frustrated, racked by uncertainty over their fate, and are suffering what may prove to be an enduring irreparable trauma. In addition, the social cost of releasing detained adult parents accompanying the children would be greatly outweighed by the benefits to the children and society. This is true from all aspects of psychology and social welfare, as the children and their parents will be in a family environment with relatives domiciled in the United States, under less restrictive and harmful living arrangements. Also, the cost and maintenance will be borne by the relative family members and not the taxpayers as is presently the case. B, Pregnant Refugee Plaintiffs Due Process$ Claim Like Minor Refugee Plaintiffs, Pregnant Refugee Plaintiffs have constitutionally protected liberty interests to be free from institutional confinement and restraint. Moreover, Congress has authorized the Attorney General to temporarily parole out of detention "aliens who have serious medical conditions in which continued detention would not be appropriate. 8 U.S.C. § 1182(d) (emphasis added). Defendants cannot and do not dispute that Pregnant Refugee Plaintiffs have a "serious medical condition." Moreover, on October 14, 1994, defendants chose voluntarily to parole all Cuban detainees on Guantanamo who are over the age of 70, even if those detainees have no serious medical problems whatsoever. INS regulations authorize the parole of aliens with serious medical conditions out of detention for "emergent reasons." 8 C.F.R. § 212.5(a)(l). The only parole regulation pertinent to Pregnant Refugee Plaintiffs' situation explicitly provides that "serious medical conditions" constitute "emergent reasons," such that "continued detention would not be appropriate." 8 C.F.R. § 212.5(a)(1). These regulations create a legitimate expectation of parole on the part of the Pregnant Refugee Plaintiffs, which is protected by due process.

Neither the general parole regulations contained in 8 C.P.R. § 212.5, nor the specific agency guidelines pertaining to parole for asylum-seekers authorize denying parole without regard ro an alien's pregnant status. With respect to individuals who do not otherwise present a security risk or a risk of absconding, the parole regulations expressly list factors that should guide the INS's discretion in determining whether an individuals' release from detention would be "strictly in the public interest.." 8 C.P.R. § 212,5. The Pregnant Refugee Plaintiffs pose no security risk nor risk of absconding, and thus are fully eligible for parole pursuant to 8 C.F.R. §212.5(a)(I). Moreover, defendants, decision to confine and detain Pregnant Refugee Plaintiffs indefinitely, in squalid, psychologically and physically harmful conditions, so that their babies may be born into these same conditions, can serve no valid governmental interest. Nor can that decision be in any way rationally related to any governmental interest in promoting the welfare of the Pregnant Refugee Plaintiffs or their unborn children. Insofar as defendants have deliberately ignored the most relevant parole regulation that applies to this situation, they have deviated from their own regulations, abused their discretion, and violated the due process rights of Pregnant Refugee Plaintiffs. See Jean, 472 U.S. at 856-57; Moret, 746 F.2d at 992-93.

C. Inadequate Medical Care

Constitutional Due Process mandates both the provision of adequate medical care to persons in official custody and safe conditions. Sale, 823 F. Supp. at 1043 (citing Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983)); Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982); Deshaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 199-200 (1989). As persons in coercive, non-punitive and indefinite detention, the Cuban detainees on Guantanamo are constitutionally entitled to medically adequate conditions of confinement. Courts have consistently held, in a variety of contexts, that the due process rights of persons in non-punitive detention are greater than the Eighth Amendment protections afforded to convicted prisoners. Sale, 823 F. Supp. at 1043; Bell v. Wolfish, 441 U.S. 520, 535, n.l6, 99 S. Ct. 1861, 1872, n.l6 (1979); Youngberg, 457 U.S. at 321-22; Rhyne v. Henderson County, 973 F.2d 386, 391 (5th Cir. 1992); Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). Persons in non-punitive detention have a right to "reasonable medical care", a standard demonstrably higher than the Eighth Amendment standard that protects convicted prisoners: "Deliberate indifference to serous medical needs." Sale, 823 F. Supp. at 1043-44; cf Estelle v Gamble, 429 U.S. 97 (1976); Rhyne, 973 F.2d at 391; Cupit v Jones, 835 F.2d 82. 85 (5th Cir. 1987).

At a minimum, due process forbids governmental conduct that is deliberately indifferent to the medical needs of non convicted detainees. Sale, 823 F. Supp. at 1044: see also, Hill v. Nicodemus, 979 F.2d 987, 991-92 (4th Cir. 1992) (including psychological condition); Gordon v. Kidd, 971 F.2d 1087, 1094 (4th Cir. 1992); Bowen v. Manchester, 966 F.2d 13, 16-17 (1st Cir. 1992); Hall v. Ryan, 957 F.2d 402. 406. n.6 (7th Cir. 1992) (including risk of suicide); Barber v. City of Salem, 953 F.2d 232, 238 (6th Cir. 1992); Elliolt v. Cheshire County, 940 F.2d 7, 10 (1st Cir. 1991); Liscio v. Warren, 901 F.2d 274, 276-77 (2d Cir. 1990). Deliberate indifference to medical needs includes government officials' denial or delay of access to medical care, interfering with treatment once prescribed, or their lack of response to detainees' medical needs. Sale, 823 F. Supp. at 1044; see also Estelle, 429 U.S. at 104 05; Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986); Todaro v. Ward, 565 F.2d 48. 52-53 (2d Cir. 1977). Deliberate indifference to medical needs also includes government officials' rejection of recommendations or requests for medical treatment by their own medical doctors that exposes the person detained to undue suffering or serious medical risk. Sale, 823 F. Supp. at 1044; see also Scharfenberger v Wingo, 542 F.2d 328, 331-32 (6th Cir. 1976); Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976); Elliott, 940 F.2d at 10; Youngberg, 457 U.S. at 323.

Plaintiffs have alleged have medical treatment at Guantanamo is unreasonably deficient and unnecessarily threatening lives. The military's own doctors are aware that there are Cuban detainees with serious health problems, such as cancer, who should be immediately evacuated to the United States because of the lack of adequate facilities, treatment and specialists at Guantanamo. Moreover, the defendants are aware that there arc approximately 250 pregnant refugee' at Guantanamo that require special medical care which is unavailable at the medically deficient camps. Defendants have ignored the advice of both Cuban and American doctors recommending that these medically needy detainees be transferred to the United States for treatment. If proven at trial. such actions plainly constitute deliberate indifference to the Cuban refugees' medical needs in violation of their Due Process Rights.

D. Disciplinary Proceedings

Count Seven of the Complaint alleges that the military disciplinary proceedings implemented by the defendants violates the detained refugee plaintiffs' due process rights. Detained aliens, like prisoners, arc entitled to due process protection against arbitrary discipline. Sale, 823 F. Supp. at 1044. When a major change in the conditions of confinement is imposed as punishment for a specific infraction, the due process clause requires a constitutionally adequate process. Id; Bell v Wolfish, 441 U.S. at 535, 537-38; Wolff v, McDonnell, 418 U.S. at 571 n. 19.

Paragraphs 154 through 156 of the Complaint recount the administrative segregation, as a form of disciplinary proceeding, to which some Cuban detainees exhibiting behavioral problems held indefinitely are being subjected. Paragraphs 157 through 160 allege that defendants have failed and continue to fail to implement procedural safeguards required by constitutional due process before such disciplinary proceedings are employed. The Court in Sale found this type of administrative segregation to be tantamount to punishment constituting a deprivation of liberty and raising procedural due process issues. Id. at 1044. In Sale, the District Court held that the Haitian detainees on Guantanamo, including minors and pregnant women, had due process rights under the Fifth Amendment to disciplinary procedures that require "written notice of the allegations, a hearing, a written decision, an opportunity to call witnesses and present evidence, access to counsel and an impartial decision maker" before the imposition of punishment, including confinement in administrative segregation. Sale, 823 F. Supp. at 1044. Given that the Haitian detainees on Guantanamo have obtained final relief under factually similar circumstances, plaintiffs have plainly stated claims upon which relief can be granted with respect to this count.

E. Indefinite Detention

Count Eight of the Plaintiffs' Complaint alleges that defendants' indefinite detention of the plaintiffs violates plaintiffs' due process rights. As individuals held in custody by the United States, the Cuban detainees have a liberty interest in not being arbitrarily or indefinitely detained. Id at 1045; O'Connor v. Donaldson, 422 U.S. 563, 576 (1975); Doherty v. Thornburgh, 943 F. 2d 204, 209 (2d Cir.1991). Courts have upheld continued detention only where (1) there are valid reasons for it, i.e. where the alien possesses a criminal record or constitutes a national security risk; (2) the alien bears some responsibility for delaying the process; and, (3) the detention will eventually end. Sale, 823 F. Supp. at 1045 citing Shaughnessy v. United States, 345 U.S. 206 (1953); Alvartz-Mendez v. Stock, 941 F.2d 956 (9th Cir. 1991); Doherty, 943 F.2d at 211-12.

As is set forth with specificity in the Complaint, in the present case, the Refugee Plaintiffs' continued detention is the result of the defendants' own actions after the August 19 Presidential Announcement, not the detainees' own choices. Even now, the defendants have refused to state when the detention will end, when the detainees will be processed, when individuals' claims will be adjudicated, or when any parole determinations will be made. The defendants have not stated what they will do with those Cubans who are ultimately denied parole but who have demonstrated a well-founded fear of persecution. Defendants have freely admitted their intention to detain these refugees in supposed "safe havens" indefinitely. This continued detention, where there is no guarantee that detention will end, where aliens have no criminal records, and where the aliens bear no responsibility for delaying due process, constitutes a denial of due process. Sale, 823 F. Supp. at 1045. Based on the foregoing, Plaintiffs' Complaint states a claim under the Due Process clause of the Fifth Amendment in counts IV through VIII.

Count IX- Right to Resist Coerced Repatriation

By granting stays on October 24 and October 31, 1994, this Court found that plaintiffs have a substantial likelihood of success on their claim that Detained Refugee Plaintiffs have a right ro resist coerced repatriation. The Eleventh Circuit's order dated November 7, 1994 explicitly confirmed that defendants may only repatriate detainees who express "a desire, by written declaration, to be returned to sovereign Cuba." pares c and d; and ordered that "the defendants shall not repatriate any detainees who do not express, by written declaration, a desire to be returned to sovereign Cuba." Eleventh Circuit Order, pares. c, d and e. On this motion to dismiss, any factual disputes about the voluntariness of given repatriations must be resolved in plaintiffs' favor. Given these prior rulings, plaintiffs have plainly stated claims upon which relief can be granted with respect to this count. At the outset, defendants prove nothing by citing Baker to claim that aliens who have not presented themselves at the borders of this country have no right to judicial review. As noted above, Baker involved a challenge by Haitians held, principally on Coast Guard cutters, to inadequate screening processes. This case, by contrast, presents a challenge by Cubans indefinitely detained on Guantanamo, territory subject to exclusive United States jurisdiction and control, to involuntary repatriation to Cuba. The Supreme Court's post-Baker decision in Sale v. Haitian Centers Council (hereinafter Sale II),____ U.S. _____, 113 S. Ct. 2549 (1993), clearly entertained a right to judicial review of the legality of forced repatriations under Section 243(h) of the Refugee Act of 1980 and Article 33 of the 1951 U.N. Convention Relating to the Status of Refugees. If Baker indeed held that forced reparations are non-reviewable, the Sale II court simply would have dismissed the Haitian refugees' claims there without reaching the merits.

Nor does the Supreme Court's decision in Sale II, which addressed the forced repatriation of Haitians whose boats were interdicted on the high seas by the Coast Guard, have any bearing here. Sale II, 113 S. Ct. at 2555-56. In Sale II, he Court held that neither the Section 253(h) of the INA, 8 U.S.C. § 1253(h), nor Article 33 applied to persons intercepted on the high seas. Id. at 2561. Sale II was silent with respect to the government's choice to forcibly repatriate the interdicted Cuban refugees involuntarily detained within territory subject to United States jurisdiction. Defendants have conceded in prior litigation that Article 33 of the 1951 Refugee Convention applies "to all territories for which the United States is responsible for the conduct of foreign relations, including the Panama Canal Zone, Puerto Rico, the Virgin Islands, Guam, and American Samoa," Government's Brief at 43, n.28; HCC II, 969 F.2d at 1350. Although the U.S. Government did not include Guantanamo on this list by name, the status of Guantanamo is virtually indistinguishable from the Panama Canal Zone in light of the exclusive United States jurisdiction and control over Guantanamo. The United States has a permanent possessory interest in Guantanamo, which includes "complete jurisdiction and control over 45 square miles of land and water. Agreement for the Lease to the United States of lands in Cuba for Coaling and Naval Station, 23 Feb. 1903, U.S.T. 418. By Executive Order, naval officials are authorized to regulate entry and exit of all persons into the base and thus are "responsible for the conduct of {Guantanamo's] foreign relations Exec. Order No 8749 (1941); 32 C.F.R. 761.

The Department of State, in an attempt to define the legal status of the Panama Canal Zone, has likened the Zone to Guantanamo. Referring to both Guantanamo and the Canal Zone, the State Department has noted, "It is clearly established under international law that a state may grant to a foreign state the right to exercise exclusive sovereign powers within portions of its territory without affecting a cession of its own sovereignty over that territory." Department of State, Law of the Sea and Internal Waterways: Canals, 1977 Digest of United States Practice in International Law 7, at 593. Sedgwick W. Green, Applicability of American Laws to Overseas Areas Controlled by the United States, 68 Harv. L. Rev. 781, 793 (1955). The parallel legal status of the Canal Zone and Guantanamo establishes that Article 33 of the Convention, through the 1967 Protocol, applies nor only to Panama Canal Zone but also to Guantanamo. Indeed, in a recent radio broadcast in Miami, Dennis Hays, the State Department Coordinator of Cuban Affairs and chief of the United States delegation to Cuba pursuant to the September 9 Communique, flatly stated that "U.S. law will apply to those individuals who are under our protection." See Notice of Filing of Partial Transcript of Radio Broadcast of Dennis Hays Interview (October 28, 1994) at 2 (emphasis added). Moreover, plaintiffs have plainly stated a claim that defendants have violated international legal standards requiring voluntary repatriation. The 1951 United Nations Convention. requires that signatory states ensure that repatriation of refugees is voluntary because a refugee loses the protections afforded by the Convention when he "voluntarily avail[s] himself of the protection of the country of his nationality.. Convention Art. 1(C)(1); see e.g Office of the United Nations High Commissioner for Refugees, Handbook of Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 27-28 1979)8.

The Executive Committee of the UNHCR (of which the United States is a member), the administrative body of the United Nations responsible for implementing the Convention, has given content of the voluntariness requirement, stating that minimally adequate living conditions and access to information are necessary to ensure the willingness of refugees to be repatriated. See Voluntary Repatriation, Conclusion No. 18 (XXXI), 31st Session (1980); Voluntary Repatriation, Conclusion No. 40 (XXXVI), 36th Session (1985).9 This Court has already found a substantial likelihood that voluntary repatriation requires advice of counsel and full information. By alleging the absence of these plaintiffs have seated a claim that they are being subjected to illegal pressure to repatriate involuntarily.

Count X-Defendant

Attorney General's Unlawful Exercise of Parole Power

In Sale, the District Court held the Attorney General had abused her discretion by denying Haitian detainees on Guantanamo parole out of detention by unjustifiably deviating from established parole policies and by giving effect to considerations that Congress could not have intended to make relevant. Given that detainees on Guantanamo have obtained final relief under factually similar circumstances, plaintiffs have plainly stated claims upon which relief can be granted with respect to this court. The Administrative Procedure Act, 5 U.S.C. §§701,706(2)(1982), authorizes a court at the request of aggrieved persons, to "hold unlawful and set aside agency action [that is] . . . (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; [or] (c) in excess of statutory jurisdiction, authority or limitations ..." Defendants' decision to indefinitely detain Cuban refugees on Guantanamo without processing constitutes final "agency action." because "the agency has completed its decision making process, and . . . the result of that process is one that will directly affect the parties." Franklin v. Massachusetts, 112 S. Ct. 2767, 2773 (1992). As persons "adversely affected or aggrieved by agency action,. 5 U.S.C. § 702, the Detained Refugee Plaintiffs have a cause of action under the APA for declaratory injunctive relief against defendant officials. Nonresident aliens located outside of the United States have been held to qualify as "aggrieved persons" with standing to obtain review in United States courts of the legality of the United States governmental actions that adversely affect them. See, e.g., Juarez v. I.N.S., 732 F.2d 58 (6th Cir. 1984): Silva v. Bell, 605 F.2d 978, 984-85 (7th Cir. 1979); Mendez v. I.N.S., 563 F.2d 956 (9th Cir. 1977); Constructores Civiles de Centroamerica S.A. (Concica) v. Hannah, 459 F.2d 1183, 1191-92 (D.C. Cir. 1972).

The APA authorizes reviewing courts "to hold unlawful and set aside agency action ... in excess of statutory ... authority ...." 5 U.S.C. § 706(2). "It is 'central to the real meaning of "the rule of law," [and] not particularly controversial' that a federal agency does not have the power to act unless Congress, by statute, has empowered it to do so." Transohio Sav. Bank v. Director. Office of Thrift Supervision, 967 F.2d 598, 621 (D.C. Cir. 1992) (citations omitted); Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979) Agency actions that do not fall within the scope of a statutory delegation of authority are ultra vires and must be invalidated by reviewing courts. Id. See also, SEC v. Sloan, 436 U.S. 103, 118-19 (1978); Civil Aeronautics Bd. v. Delta Air Lines. Inc., 367 U.S. 316 (1961). In the immigration field, the authority of the executive "is limited to the zone charted by Congress. If such [executive] officers depart from the channels of authority fixed by statute they act illegally." C. Gordon & S. Mailman, 1 Immigration Law & Practice § 9.02, at 9-519 (citing Mahler v, Eby, 264 U.S. 32, 44 (1924); Gegiow v. Uhl, 239 U.S. 3, 9-10 (1915) (defendant's effort to exclude an alien on a different basis from that authorized by Congress was beyond the scope of defendant's authority and therefore invalid.) Courts have therefore invalidated executive action that is unsupported by express statutory authority. See e.g., Jean v. Nelson, 472 U.S. 846 (1985); Rodriguez-Fernanadez v. Wilkinson, 654 F.2d 1382, 138~90 (10th Cir. 1981) (plaintiff ordered released because INS lacked statutory authority to detain Mariel Cuban indefinitely). American Baptist Churches v. Meese, 712 F. Supp. 756, 774 (N.D. Cal. 1989). Only two provisions of the INA authorize the INS to adjudicate claims of persons seeking refuge from political persecution: Section 207, which governs overseas refugee processing, and Section 208, which governs asylum for aliens at ta land border or physically present in the United States. The complaint alleges that plaintiffs are persons seeking refuge from political persecution. Yet defendants are undeniably subjecting those plaintiffs to treatment that lacks the benefits of both § 207 and § 208. Unlike all other § 207 applicants, Cubans at Guantanamo and Panama are detained in custody under the authority of the United States, are not free to leave or to go to a third country, are deprived of any opportunity to consult counsel or advocates, and may be forcibly repatriated by the United States. Unlike § 208 applicants, Cubans at Guantanamo and Panama are deprived of all the procedural safeguards and guarantees to which they would be entitled if they were in the United States. In effect, defendant Attorney General is using the parole authority as a means of circumventing § 207 and § 208, precisely the artifice Congress sought to forbid when it enacted the Refugee Act of 1980. The parole authority may not be employed to facilitate a continuing deprivation of detainees' statutory rights under the §§ 207 or 208 processes authorized by Congress. See Sale, 823 F. Supp. 1046. Neither can the parole authority be "employed to facilitate a continuing deprivation of [detainees'] constitutional rights." See Nguyen De Yen v. Kissinger, 528 F.2d 1194, 1199 (9th Cir 1975). Defendants thus manifestly lack the authority to maintain the non-statutory system of indefinite detention without the processing that they are applying to Cubans detained at Guantanamo and Panama, and thus, their actions against plaintiffs may be held unlawful and set aside.

Similarly, the APA, 5 U.S.C. § 706(2)(1982), authorizes this Court to "hold unlawful and set aside agency action . . . found to be an abuse of discretion." The statute authorizing parole, INA § 212(d)(5), permits the Attorney General temporarily to "parole" aliens out of detention "for emergency reasons or for reasons deemed strictly in the public interest ...." Jean v. Nelson, 4?2 U.S. at 855 (citing 8 U.S.C. § 1182(d)(5)(A)(1982). Although the Attorney General has "broad discretionary power to parole unadmitted aliens,. but she may not exercise that discretion "to discriminate invidiously against a particular race or group or to depart without rational explanation from established policies.. Bertrand v. Save, 684 F.2d at 212 (citing Wong Wing Hang v. I.N.S., 360 F.2d 715 (2d Cir. 1966); Jean, 472 U.S. at 857 (INS officials concede that parole regulations do not authorize discrimination on the basis of race and national origin). The Attorney General's parole-related discretion is limited, and thus such decisions "may be reviewed under the judicial review provisions of the APA.. Moret v, Karn, 746 F.2d at 991. A reviewing court may find that the Attorney General abused her discretion upon any of three findings. First, she has exercised her discretion to discriminate invidiously. Bertrand, 684 F.2d at 2121 Second, the Attorney General or her agents have deviated from their own internal regulations. Id. at 992-93; Jean, 472 U.S. at 855-56; Haitian Refugee Center v. Civiletti, 503 F. Supp. 442, 452 (S.D. Fla. 1980), aff'd as modified sub nom., Haitian Refugee Center v. Smith, 676 F.2d 1023. 1041 n. 48 (5th Cir. 1982). Third, a court may find that the Attorney General has given "effect ' to considerations that Congress could not have intended to make relevant,'". Doherty, 908 F.2d at 1117-18 (citations omitted); D.C Federation of Civic Ass'ns v. Volpe, 459 F.2d 1231, 1248 (D.C. Cir 1971), cert. denied, 405 U.S. 1030 (1972).

By effectively denying the plaintiffs release from detention, defendant Attorney General has abused her discretion in all three ways. First, the Government has enforced the ban invidiously against Cubans. INS regulations explicitly prohibit the exercise of parole discretion in a manner that discriminates based on race or national origin. Jean v. Nelson, 472 U.S. at 856. Given defendants' concessions that the national origin of these asylum seekers is the overriding factor in the government s refusal to parole plaintiffs, the government's refusal to release the Cubans from detention represents an unjustified departure from its own established policy, and hence, an abuse of discretion. Second, defendants' refusal to release plaintiffs from detention represents an unjustifiable deviation from established parole policy The parole regulations, 8 C.F.R. § 212.5, with respect to individuals who do not otherwise present a security risk or a risk of absconding, expressly list factors that should guide the INS's discretion in determining whether an individual's release from detention would be "strictly in the public interest". As noted under Counts IV and V above, defendants have refused to parole minor refugee and pregnant refugee plaintiffs from detention even though they can identify no public interest for doing so and even though INS regulations authorize the parole of aliens with serious medical conditions out of detention for "emergent reasons." 8 C.F.R. § 212.5(a)(1). Third and finally, in ignoring decades of past presidential statements and congressional enactments to continue to deny the Cuban detainees parole, the Attorney General has given "effect to 'considerations that Congress could not have intended to make relevant'.. Doherty, 908 F.2d at 1117-18; Volpe, 459 F.2d at 1248. Defendants' refusal to release Detained Refugee Plaintiffs from indefinite detention, or even to consider their applications for parole or refugee processing unless they first return to Castro's Cuba, plainly give effect to considerations that Congress could not have intended to make relevant. As recounted in detail in the complaint, the unambiguous policies and practices of the past seven presidential administrations and Congresses dating back thirty-five years have been to routinely parole into the United States Cubans fleeing the Castro regime are subsequently to adjust their status under the Cuban Adjustment Act. Defendants' actions effectively bar Detained Refugee Plaintiffs from becoming eligible to the adjustment of status to which they would ordinarily be entitled under the Cuban Adjustment Act, which remains good law. By making it impossible for any Cuban fleeing by sea to become eligible for adjustment status under the Cuban Adjustment Act the Attorney General has frustrated the purposes of a longstanding congressional statute enacted in an area of plenary congressional authority and in a field that Congress has already occupied by legislation. Defendant's actions, in contravention of clear statutory intent, thus constitute an abuse of discretion that this Court may hold unlawful and set aside.

Count Xl-Due Process Rights of Detained Refugee Plaintiffs To Legitimate Expectations of Parole

In HCCI and Sale, the Second Circuit and District Court both held that Haitian detainees on Guantanamo "have a protected liberty interest in their 'reasonable expectation' of avoiding erroneous return based on the affirmative actions of the Executive and Congress." HCCI, 969 F.2d at 1345; 823 F. Supp. at 1042 (citing U.S. ex rel Paktorovics v, Murff, 260 F.2d 610, 614 (2d Cir. 1958)). The Eleventh Circuit has suggested that such a liberty interest exists when the President makes a public pronouncement to the effect that a certain ethnic group is welcome to come to America and Congress enacts legislation or takes other action endorsing the presidential action.10 Garcia-Mir. v. Meese, 78B F.2d 1446 (llth Cir. 1986). Paragraphs 23-38 of Plaintiffs' Complaint recount a string of similar statutory enactments, congressional resolutions, public presidential and executive branch statements and actions dating back thirty-five years, including the Cuban Adjustment Act, the 1980 Refugee Act, and the Cuban Democracy Act, which have created a legitimate expectation of parole, This precedent goes far beyond mere executive statements encouraging Cubans to come to the U.S. to demonstrate a congressionally mandated desire to afford Cubans fleeing the Castro regime the opportunity to be paroled into and to seek asylum in the United States. Given this precedent, plaintiffs have stated a claim upon which relief can be granted with respect to this count.

A. Defendants' Standing Objection Is Entirely Without Merit

Defendants assert on this motion to dismiss that the three CRSOs lack standing to sue. But that argument has been previously asserted and rejected seven times: (1) by this Court in HRC v. Baker, 789 F. Supp. 1552 (S.D. Fla. 1991); (2) by implication by the Eleventh Circuit in that same case (3, 4) by the E.D.N.Y. in Sale, and the Second Circuit in HCCI; and (5, 6, 7) by the E.D.N.Y., the Second Circuit, and the Supreme Count in Sale II. If such a standing challenge had any merit, the Sale courts would have been obliged to address it as a matter of subject matter jurisdiction. Their failure to do so shows beyond doubt that this contention is wholly without merit, and lends no support whatsoever to defendants' motion to dismiss. The CRSOs clearly have standing. They assert: (1) their own organizational rights, (2) the rights of their members, and (3) third-party rights of Cubans in the U.S., Guantanamo, Panama and elsewhere. We discuss each kind of standing in turn. As paragraphs 7 through 9 and 93 through 95 of the Complaint show, the CRSOs are nonprofit organizations whose purposes, as set ford, in their by-laws, are to promote the well being of Cuban Refugees through social services, education regarding legal rights, and legal representation. The CRSOs assert violations of their own rights, resulting in injury to the organizations themselves, which are redressable by the relief sought. Valley Forge Christian College v. American United for Separation of Church & State, 454 U.S. at 472. Haitian Refugee Center v. Civiletti, 503 F. Supp. 442, 474 (S.D. Fla. 1980) ("Baker has the standing to assert its own free speech rights in federal court.") aff'd as modified sub nom. Haitian Refugee Center v, Smith, 676 F.2d 1023 (5th Cir. 1982).

Moreover, the CRSOs are political and civil liberties organizations, which advocate on behalf of Cubans, in furtherence of their political and civil liberties objectives, and assist Cubans to "engage in association for the advancement of beliefs and ideas." In re Primus, 436 U.S. 412, 422-24 (1978). The CRSOs assert their First Amendment right on behalf of their attorneys, employees and members, to give and receive information crucial to the exercise of their political, associational, and legal rights. In re Primus, 436 U.S. 412, 422-24 (1978); California Motor Transp. Co. v. Trucking Unltd.. 404 U.S. 508, 510 (1972); United Transp. Union v. Sate Bar of Michigan, 401 U,S. 576, 585 (1971); United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 415, 430 (1963); NAACP v. Alabama ex ref.Patterson, 357 U.S. 449, 460 (1958). As action organizations, a major focus of the CRSOs' political activities has traditionally been in the judicial forum.

The right of the CRSOs, their attorneys, employees and member to solicit clients and associate with the Cuban refugees detained by our government in the U.S., Guantanamo, Panama and elsewhere is clearly protected by the First Amendment. In re Primus, 436 U.S.. 412 (1978) NAACP v. Button. 371 U.S. 415 (1963); Cruz v. Beto, 603 F.2d 1178 (5th Cir. 1979); Haitian Refugee Center v. Civiletti, 503 F. Supp. 442 (S.D. Fla 1980), aff'd as modified, 676 F.2d 1023 (5th Cir. 1982).11 Haitian Refugee Center v. Civiletti and HRC v. Baker explicitly recognized that HRC, a Haitian organization analogous to the CRSOs, had a First Amendment right to solicit clients in INS facilities. Civiletti, 503 F. Supp. 442, 531-32 (S.D. Fla. 1980). Similarly, in HCC, the courts up to and inducing the Supreme Court, never questioned the standing of Haitian Center Council and the National Coalition for Haitian Refugees.

The CRSOs have a more direct interest than even private attorneys who solicit inside detention facilities who routinely are held within the generous zone of protection reserved for associational freedoms. See Cruz v. Beto, 603 F.2d 1178 (5th Cir. 1979) (upholding an order which enjoined prison officials from barring an attorney from communicating with potential clients as a denial of attorney's first and Fourteenth Amendment rights). These First Amendment principles apply regardless of whether the recipients of information are U.S. citizens or aliens, and without regard to whether the government's actions occur within our country or abroad. In addition to asserting their own rights, the CRSOs have standing to assert the rights of their members. As the Supreme Court held in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977):an [a]ssociation has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individuals members in the lawsuit. Id at 244. The CRSOs' members are asserting rights under the First Amendment as well as under international law and various statutes. These are plainly issues germane to CRSOs organizational purposes and pursuing the legal claims does not require the individual participation of the members themselves. As a result, the Hunt standard is satisfied and the CRSOs should be allowed to assert the rights of their members. Haitian Refugee Center v. Nelson, 694 F. Supp. 864, 873 (S.D. Fla.), aff'd 872 F 2d 1555 (11th Cir. 1989), aff'd McNarv v. Haitian Refugee Center. inc., 111 S. Ct. 888 894 n. 8 (1991) (upholding organizational standing). Accord, Ukranian-American Bar Ass'n v. Baker, 893 F.2d 1374 (D.C. Cir. 1990).

Even apart from their organizational relationship with the detained Cubans, the CRSOs have third-party standing to assert the rights of these individuals who are disabled from asserting their own rights. Because First Amendment rights are asserted here, any prudential rationale against third-party standing is plainly inapplicable. Secretarv of State of Maryland v Joseph H Munson Co., 467 U.S. 947, 956 (1984); Poe v Ullman, 367 U.S. 497 6 L. Ed. 2d 989, 181 S. Ct. 1752 (1961); Harris v. Evans, 920 F.2d 864 (llth Cir. 1919). In Harris, this Circuit recently recognized that "[i]n the context of allegations of violations of first Amendment rights, the Supreme Court has found that competing considerations may outweigh the prudential rationale againse third-party standing.. Harris, 920 F.2d at 866. Moreover, the CRSOs manifestly qualify under the common law doctrine of jus tertii, which accords third-party standing when there is a close relationship between the parties. Singleton v. Wulff, 428 U.S. 106 (1976); (advocate relationship qualifies as a close relationship); Craig v. Boren, 429 U.S. 190 (1976); Barrows v. Jackson, 346 U.S. 249 (1953). Because the CRSOs have community of interests with the detained Cubans and may adequately represent their interests, and because the Cuban detainees are disabled by defendants from asserting their own rights, jus tertii justifies, at a minimum third-party standing.

CONCLUSION

In sum, plaintiffs have stated claims upon which relief can be granted on all eleven counts and defendants' standing objection is wholly without merit. Accordingly, plaintiffs request that the Court deny the government's motion to dismiss under Fed. R. Civ. P. 12(b)((1) and (6).

FOOTNOTES

1 . This position was taken by the defendants at the hearing on Plaintiffs' Motion for Expedited Discovery before Magistrate Judge Turnoff on November 9, 1994 and properly rejected by the Court.

2 . During that same radio broadcast Richard Nuncio, a State Department representative, commented:

They are complaining about the conditions. They have freedom of speech. Nothing is going to happen to these people for complaining about the existing conditions; on the contrary, that freedom of speech allows us to listen and better respond to those complaints. What is the difference between what's happening in Guantanamo and what's happening in Cuba?

T. Hays Interview at 2.

3 . Defendants make the remarkable claim that the factual predicate of the panel's ruling on access issues applies only to the dictum that follows its formal legal finding, which Defendants peculiarly choose to treat as an "alternate holding." Govt. Motion, at 30. Yet, nothing in the Baker opinion supports this claim. In fact, the Court's opinion explicitly recognizes that in the factual context of that case no viewpoint discrimination was at issue. This discussion comes in a separate section that precedes any legal analysis of the First Amendment claims. See Baker, 953 F.2d at 1511-12 (setting forth factual background for First Amendment analysis).

4 . The Refugee Act of 1980 defines a "refugee" as

(A) any person who is outside any country of such person's nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because ofpersecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Refugee Act of 1980 § 201(a) (codified as amended at 8 U.S.C. § 1101(a)(1980)). The Cuban refugees detained on Guantanamo fit within this definition. This Court has already heard compelling evidence that the detained refugee plaintiffs will be imprisoned, tortured, and possibly murdered if they returned to Cuba. Martinez-Lara Dec. at 6-7 (plaintiffs will face "incarceration and psychological torture," and "may eventually be killed" if returned to Cuba); Elias Dec. at 2-3 (detainees Ibis Salgado Marichal and Alberto Rodriguez Garcia were accused of dissident activities, "forced . . . onto a raft" by Cuban security officers, and warned of incarceration "for a period of not less than seven years for counterrevolutionary activities if they return to Cuba"); Pino Dec. 4-5 (detainee Jovani Pino is an escapee from Cuban prison after incarceration for previous attempt to leave Cuba by raft).

5 . Under INA, 8 U.S.C. § 1101(b)(S), "[t]he term 'adjacent island' includes . . . Cuba,. and hence Guantanamo as well.

6 .As evidenced by the relevant regulations, the "inspection" which triggers exclusion proceedings can be performed outside the strictly defined United States: . . . examination and inspection . . . may be made immediately prior to such departure at the port or place in foreign contiguous territory or adjacent islands and shall have the same effect under the act as though made at the destined port of entry in the United States. 8 C.F.R. § 235.5(b) (1991) (emphasis added).

7 . Article 14(a) of the Universal Declaration of Human Rights, G.A. Res. 217(111)(A), U.N. GAOR 3d. Comm., 3d Sess., Part 1, 183d plen. mtg. at 135, U.N. Doc. A/C.3/1 (1948) states that "[e]veryone has the right to seek and to enjoy in other countries asylum from persecution." Article XXVII of the American Declaration of the Rights and Duties of Man, O.A.S. res. XXX, adopted by the Ninth International Conference of American States, Bogota (1948), provides that "Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements." Similarly, Art. 22(7) of the American Convention on Human Rights, OAE/Ser. L./V/II.23 doc. rev. 2, entered into force July 18, 1978, provides that "Every person has the right to seek and be granted asylum in aforeign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses and related common crimes."

8 . See INS v Cardoza-Fonseca, 480 U.S. 421, 436, 440 n. 22. (1987) (the Handbook has been 'widely . . . use[d]id in giving content to the obligations that the Protocol establishes").

9 . United Nations High Commissioner for Refugees, Training Module: Voluntary Repatriation RP1 at 31 (Jan. 1993) (noting that "minimum standards" include refugees' access to "adequate information to make an informed decision"); United Nations High Commissioner for Refugees, Training Module: Voluntary Repatriation RP1 at 29 (Jan. 1993) (identifying "unsatisfactory conditions in the country of asylum" as commonly giving rise to non-voluntary return of refugees").

10 . Although the Eleventh Circuit recognized that the President or one of his subordinates cannot merely through written or oral public statements alone create an actionable liberty interest, it noted that when these executive statements are buttressed by Congressional legislation, as is the case here, such a liberty interest is in fact created. Garcia-Mir v. Meese, 788 F.2d 1446, 1451 (11th Cir. 1986).

11 . In Button, the Court expressly held that the activities of the NAACP, its affiliates and legal staff, in discussing and advising groups as to their legal rights were modes of expression and association protected by the First Amendment. Button, 371 U.S. at 428-29. The solicitation of prospective litigants, many of whom were not already members of the NAACP, for the purpose of furthering the civil-rights objectives of the organization and its members, was held to come within the right "to engage in association for the advancement of beliefs and ideas." Id. at 430, (quoting NAACP v. Alabama ex rel, Patterson, 357 U.S. 449, 460 (1958)).