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.                            )
  ___________________________________________)

INTERVENOR PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT

OF MOTION FOR CLASS CERTIFICATION

INTRODUCTION

The naned, individual Plaintiffs, as well aa all class members, are Haitian emigres, who fled from Haiti and who were intercepted at sea by the U.S. Coast Guard and taken to the U.S. Naval base at Guantanamo Bay, Cuba ("Guantanamo") pursuant to a policy announced by the Clinton Administration in July, 1994.

A. The Class.

Plaintiffs, GARRY JOSEPH, PAULOMME EDMOND, and PIERRE ONEL ANTOINE represent all Haitians currently detained at Guantanamo. The class consists of approxinately 6,000 individuals, all of whom have been forced to live under inhumane conditions in camps at Guantanamo. Plaintiffs live in overcrowded tents, that lack any privacy and basic amenities. Defendants, in violation of international, constitutional and statutory law, have denied and continue to deny Plaintiffs and all class members the right to process their claims for asylum or refugee status. This fact, coupled with the squalid conditions ot the Haitian camps, have resulted in, and continue to result in constructively forcing Haitians to return to Haiti, or face continued and indefinite detention under inhumane conditions.

Although conditions have always been substandard for Haitians detained at Guantanamo, Defendants have recently made conditions even worse as part of their illegal effort to coerce and pressure Plaintiffa and class members to return to Haiti. Upon information and belief, Defendants wish to repatriate all Haitians in the imminent future, perhaps as soon as mid-November. In violation of Plaintiffs' and class members' rights under constitutional and international law, Defendants have in the past, and upon information and belief, continue to intimidate and otherwise coerce Plaintiffs into returning to Haiti. Defendants use various methods, including but not necessarily limited to; reducing food rations; reducing and denying access to water, raiding tents in the middle of the night to harass and intimidate Haitians into "volunteering" to repatriate; repeatedly, and indeed almost on a daily basis moving large groups of Plaintiffs from one tent to another or one part of the camp to another for no reason other than to inconvenience Plaintiffs and make conditions even more unbearable; and interrogating and otherwise harassing Haitians who "volunteer" to repatriate and then change their minds because of their fear of returning to the country they fled.

Furthermore, and even though the Defendants have the capacity to keep Plaintiffs informed as to current conditions in Haiti, Defendants have failed to do so. Instead, Defendants provide Plaintiffs only with positive, upbeat, but not necessarily complete or accurate information about conditions in Haiti.

Defendants have and continue to deny Plaintiffs and class members their right to councel in violation of constitutional and statutory law. INA 292, 8 U.S.C. 1362. Thus, further denying Haitians at Guantanamo a source of advice and information regarding conditions in Haiti so that they can make an informed decision to return or stay in Guantanamo. The deplorable conditions at the camp, coupled with the Defendants' denial of Plaintiffs' right to seek asylum or refugee status, alone constitutes a violation of Plaintiffs' due process rights and rights under international law. However, and apparently because the poor conditions and denial of asylum or refugee status apparently have not been effective in coercing sufficient numbers of Haitians into "volunteering" to return to Haiti, Defendants have recently resorted to the methods described above to intimidate and harass Plaintiffs into leaving Guantanamo and return to Haiti.

B. The Sub-Class of Minor, Unaccompanied, Plaintiffs.

BERGELINE JEAN LOUIS and PADECI JEAN LOUIS are both unaccompanied, minor Haitians currently interned at Guantanamo. By and through their father, VOIDIEU JEAN LOUIS, they represent the proposed sub-class of unaccompanied Haitian children at Guantanamo. There are approximately 230 minor, unaccompanied children and minors currently interned at Guantanamo. Minors are segregated from the rest of the camp population in various sections of the camp. They are also being detained illegally and in violation of their rights.

I. THIS CASE SHOULD BE CERTIFIED AS A CLASS ACTION

The overriding purpose of class actions is to achieve economies of time and effort, thus conserving judicial resources, as well as the resources of the parties. As the Supreme Court has held:

The aggregation of individual claims in the context of a class-wide suit is an evolutionary responce to the existence of injuries unremedied by the regulatory action of government. Where it is not economically feasible to obtain relief within the judicial framework of multiplicity of small individual suits for damages, aggrieved persons may be without any effective redress unless they may employ the class action device.

Deposit Guarantee National Bank v. Roper, 445, U.S. 326 (1980). See also Kennedy v. Tallant, 710 F.2d 711, 718 [llth Cir. 1983)[separate actions by each of the class members would be repetitive, wasteful and an extraordinary burden on the courts"]. Thus, Rule 23 is a remedial rule and therefore should be liberally construed and applied. 3B Moor's Federal Practice at 23-70 (1993); see also Eisenberg v. Gagnon, 766 F.2d 770 (3d Cir. 1985), cert. denied, 474 U.S. 946 (1985)(citation. omitted).

In the instant case, the named Plaintiffs, all 6,000 class members, and the members of the sub-class of Minor Plaintiffs all claim identical violations of their respective rights under international law, the Immigration and Nationality Act ("INA"), 8 U.S.C.  1101 et. seq., the Administration Proceduree Act ("APA"), 5 U.S.C.  551 et. seq., and the United States Constitution. Thus, the circumstances of this case present a classic scenario for certification of a class, Indeed, the courts have historically and uniformly granted class certification in similar cases. See e.g. Haitian Refugee Center, Inc. v. Nelson, 694 F.Supp. 864 (S.D. Fla. 1988) ; Jean v. Nelson, 727 F.2d 957 (11th cir. 1984); Haitian Centers Council, Inc v. Sale, 823 F.Supp. 1028 (E.D.N.Y. 1993).

The Plaintiffs in the sub-class of minors have grievances and claims identical to those of members of the class at large. (e.g. detention in inhumane conditions; denial of the right to assert claims for asylum or refugee status; denial of access to counsel). Further, Plaintiffs within the sub-class of minors also have identical claims and grievances. Each minor in this sub-class has an equal protection claim because of Defendants' recent decision to grant refugee status to all minor Cubans detained at Guantanamo, but not to minor Haitians detained at Guantanamo.

Certification of a class under the Federal Rules of Civil Procedure is governed by Rule 23. Puranant to rule 23, Plaintiffs must first satisfy the four requirements of Rule 23(a). In addition, the proposed class must satisfy at least one of the conditions set forth in Rule 23(b). All of the requirements are satisfied in thia case as set forth below.

A. The Requirements Of Rule 23(a) Are Satisfied In This Case.

1. The Proposed Class And Sub-Class Are So Numerous That Joinder 0f All Members Is Impracticable.

The named individual Plaintiffs represent a class of approximately 6,000 Haitians in custody at Guantanamo. Under these facts, Plaintiffs are not required to allege the exact number or identity of class members. Haitian Centers Council, Inc. v. Sale, 823 F.Supp. 1028, 1039 (E.D.N.Y 1993) [class of 200 Haitian refugees detained at Guantanamo was sufficiently numerous to warrant class action treatment.]; Haitian Refueee Center,Inc. v. Nelson, 964 F,Supp. 864, 877 (8.D. Fla. 1988) [ Court held that certification was proper because "the very number of the persons affected as well as the nature of their {situation] makes joinder impracticable."], see also Evans v. United States Pipe and Foundry, 696 F.2d 925, 930 (llth Cir. 1983) [plaintiffs need not show exact number in class, and when the question is a close one, it is better to certify the class].; see also Krenzfeld, A.G. v. Carnehammer, 138 F.R.D. 594, at 599 (S.D. Fla. 1991) [court certified a class of approximately 130 individuals and noted that the numerosity requirement was satisfied with as little as 25 or 30 class members].

The proposed sub-class of unaccompanied minors is also so numerous that joinder of all members is inpracticable. There are at least 230 who form a sub-class of their own. Although there ia no-bright line test for numerosity, a class numbering as little as 25 or 30 may be sufficient for certification. KreuzEeld, supra at 599 [certification of class of approxinately 130 individuals. Court noted that the numerosity requirement could be satisfied with 25 or 30.class members]. Additionally,

"when the question of numerosity is a close one . . . a balance should be struck in favor of a finding of numerosity, as the court has the option to decertify pursuant to Rule 23(c)(1)."

Kreuzfeld supra at 599 (citing to Evans v. U.S. Pipe and Foundry, Co., 696 F.2d 925 (11th Cir. 1983)).

Furthermore, the nature of the sub-class also mandates certification because the numbers in the sub-class may increase.See g. Weaver v. Reagen, 71 F.Supp. 717 (W,D. Mo. 1989), aff 'd, 886 F.2d 194 (8th Cir. 1989). The court in Weaver certified a class comprised of only 7 individuals who had to date been denied medicaid coverage because the joinder of unknown persons who would be denied coverage in the future wee impracticable. Thus, the Weaver court concluded that numerouity had been established and granted class certification. In the case at bar, while the executive policy being challenged in this litigation is still in effect, Haitians continue to be interdicted at sea and interned at Guantanamo. Thus, it is likely that more minors will be added to the population at the camp.

B. There Are Common Questions Of Law and Fact In The Class At Large And In The sub-Class.

Rule 23(a) also requires that class members have in common guestions of law and fact. Complete and total identity of the named Plaintiffs' class with those of the classe is not a requirement. C .V. Reit v. Levy, 144 F. R.D. 690, 696 (S . D. Fla . 1992). As stated by the court in Levy, "a court will normally find commonality where a question of law refere to standardized conduct by defendants towards members of the proposed class." In Re:Amerifirst Securities Litigation, 139 F.R.D. at 428 [noting that individual differences concerning damages will not defeat a finding of commonality]. Thus, Rule 23(a) does not require that all questions of law or fact raised be common to all the plaintiffs. See Cox v. American Cast Iron and Pipe Co., 784 F.2d 1546, 1557 (llth Cir.) Cert. Denied, 479 U.S. 883 (1986); Haitian Refugee Center v. Nelson, 694 F.Supp. at 877; Johnson v. American Credit Co.of Georgia, 581 F.2d 526, 532 (5th Cir. 1978).

Class actions in which the Plaintiffs seek injunctive or declaratory relief, as in this case, logically present common questions of law or fact. Haitian Refugee Center, Inc. v. Nelson, 694 F.Supp. at 877. Further, commonality also exists when plaintiffs allege, as they do in the case at bar, that the Defendants acted uniformly in an illegal manor regarding a class. See Haitian Refugee Center, Inc. v. Nelson, Supra at 864; Jean v. Nelson, 727 F.2d at 957 (llth Cir. 1984); Haitian Refugee Center. Inc. v. Smith, 676 F.2d 1023 (5th Cir. 1982). To sum up, the following is true of the Plaintiffs and class members in the instant case:

1. The Plaintiffs, class members, and sub-class members are all in indefinite detention in the same location;

2. The Plaintiffs, class members, and sub-class members have all been deprived of their right to seek asylum or refugee status;

3. The Plaintiffs, class members, and sub-class members have all been denied humane treatment while in detention

4. The Plaintiffs, class members, and sub-class members have all been subjected to express and/or implicit and illegal coercion to return to Haiti;

5. The Plaintiffs, class members, and sub-class members have all been denied meaningful access to counsel;

6. The Plaintiffs, class members, and sub-class members claim the same violation of their rights under the U.S, constitution, international law, the INA, and the APA.

Furthermore, there are questions or law and fact common to those within the sub-class. E.g. (equal protection claim because Cuban minors paroled into U.S., when Haitian minors have been denied parole.)

C. The Proposed Class and The Sub-Class meet The Typicality, Requirements of Rule 23.

The named Plaintiffs' claims are typical of those of the class at large. Rule 23(a)(3) requires that a proposed class representative establish that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." The requirement of commonality and typicality generally overlap. See E.G. General Telephone Company of the Southwest v. Falcon, 457 V.S. 147, 157, n. 13 (1982). In general, the reguirement of typicality is met if the claims of the named Plaintiffs have the same basic characteristics as the claims of the class at large. Appleyard v. Wallace, 754 F.2d 955, 958 (llth Cir. 1985).

The typicality reguirement is clearly satisfied in this case. Both the named Plaintiffs and the members of the class (and sub-classes) have been illegally detained; have had their rights to counsel violated; have been denied their rights under the constitution and international rights to seek asylue or status as a refugee, and have been denied objective information regarding the potential consequences and ramifications of repatriation; and have been subject to coercion to repatriate by Defendants. Thus, inthis case the claims ot the named Plaintiffs, and the claims of the class at large, stem from the same misconduct on the part of the Detendants, and share the same legal grounds. Thus, the commonality and typicality requiremente of Rule 23(a)(2)(3) have been met. Haitian Refugee Center. Inc. v. Nelson, 964 F.2d at 877; Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1557 (llth Cir. 1986) [clalms actually litigated must aimply be those fairly represented by the named plaintiffs]; see also, Haitian Center Council v. Sale, 823 F.Supp. at 1039.

Furthermore, the typicality requirement is als0 met as to the sub-class. The two minor, unaccompanied Plaintiffs represent a group of unaccompanied minors, all of whom have been denied their Constitutional rights due to their detention and unequal treatment vis-a-vis Cuban minors in detention at Guantanamo.

D. The Named Plaintiffs And Class Counsel Will Adequately Represent The Interests or This class And Sub-Clasees.

Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the interests of a class" Adequacy of representation is established if (i) the named plaintiffa have interests in common with, and not antagonistic to the intereats of the class; and (ii) plaintiffs' attorneye are qualified, experienced and generally competent to conduct the litigation. Kirkpatrick v. J.C. Bradford and Co., 827 F.2d 78 (llth Cir. 1983). In the case at bar, both requirements are amply satisfied.

Plaintiffs' interest are clearly not antagonistic to those of the individual class members. Both the named Plaintiffs, and the members of the class and sub-class are suffering under the same circumstances; both the named class members and the individual members of the class and each sub-class have been injured by the same illega1 and unconstitutional conduct of the Defendants; and all the claims stem from the same violations of the Constitution, international law, the INA, and the APA.

Further, Plaintiffs' councel are eminently qualified to represent the entire class and sub-class in this case. Various members of Plaintiffs' counsel have litigated numerous cases involving the same or similar constitutional and immigration law issues in Federal District Courts, and the Federa1 Courts of Appeal including the Supreme Court. Plaintiffs' lead counsel's zeal and expertise as an advocate for his client. has never been guestioned and is not disputed.

E. The Proposed class and The Sub-Class Satisfy the Requirements of Rule 23(b)(3).

Both the proposed class and the sub-class in this case satisfy the requirements of Rule 23(b)(3). Rule 23(b)(3) requires that the proposed class plaintiffs establiah that common questions of law or fact predominate over individual questions of law or fact; and that a class action is superior to other available methods of adjudication, Here, as set forth above, comnon questions of law and fact clearly predoninate both within the class at large, and in the sub-class. Further, in this case a class action is superior to: other litigation mechanisms, and indeed is the only practical method available to vindicate Plaintiffs' rights.

Common questions of law and fact generally are held to be dominant if they represent important aspects of the case, and if they can be resolved for all class members in a single adjudication. .See Wright Miller and Kane, Fed. Prac. & Proc. 1778 at 528. The common questions need not be dispositive. Id. In considering this part of the Rule 23(b) requirements, this Court has stated:

Courts generally focus on the liability issue in deciding whether the predominance requirement is met, and if the liability issue is common of the class, cmmon questions are held to predominate over individual questions.

In Re: Alexander Grant and Co. Litigation, 110 F.R.D. 528, 534 (S.D. F1a. l9856). As set forth above, the essential issues in this case concern unlawful detention by the Defendants of all the class members and the named class representatives, and the Defendants' continued illegal and unconstitutional conduct.

In considering whether the "superiority" requirements of Rule 23(b)(3) are met, the Court must consider the following factors:

1. The interest of members of the class in individually controlling the prosecution or defense in a separate action;

2. The extent and nature of any litigation concerningthe controversy already commenced by or against members of the class;

3. The Desirability or undesirability of concentrating the litigation of the claims in a particular form; and

4. The difficulties likely to be encountered in the management of a c1ass action.

In the instant case all these considerations favor certification of the class and sub-class. The class members and sub-class members in this case have no interest in individually controlling the prosecution of separate actions. Joinder in the instant case is especially practicable because class members are confined in one location, unsophisticated and indeed in some casesilliterate and lacking the financial wherewithal to file and successfully prosecute individual claims or lawauits. There is no pending litigation concerning any member of the class. Further, in view of Plaintiff counsel's prior and extensive experience in class litigation involving aliens in detention, it is clear that Plaintiff's counsel will not encounter any significant or unusual difficulties in the management of this case and will zealously and ably represent the class at large.

As required by Rule 23(b)(3) certification of this class would not only be "superior to other available methods., but is also the only method for litigating these claims. Indeed, the policy reason for class actions is to allow plaintiffs who would not otherwise be able to bring individual claims to do so because of the econonies of scale inherent in class actions, is strikingly illustrated by this case. Without the availability of the class action mechanism, these Plaintiffs and proposed class members would have no opportunity to obtain justice. See Jean v. Nelson, 727 F.2d 961, Supra; Phillips-Petroleum Co. v. Shutts, 472 U.S. 797,-809 (1985).

CONCLUSION

In conclusion, it is clear that this case satisfies all of the requirements of Rule 23 of the Federal Ruse of Civil Procedure and Plaintiffs' Motion to Certify this class should be granted.