Public Notice. Following the release of the hostages on Jan. 20, 1981, the Department of State allowed the notice to expire.

See further, in regard to Exec. Order 12211, "Further Prohibitions on Transactions with Iran," dated Apr. 17, 1980, this Digest, Ch. 10, §12.

On May 2, 1980, the Immigration and Naturalization Service amended, effective May 7, 1980, its documentary requirements for aliens returning to an unrelinquished lawful permanent residence in the United States to bar their readmission after travel to, in, or through Iran, unless the Secretary of State had granted permission for such travel. The amendments: (1) barred the use of Forms I-151 or I-551, Alien Registration Receipt Card, for readmission, except by an alien crewman whose travel to Iran was pursuant to his/her employment (8 CFR 211.1(b)(1)); (2) invalidated reentry permits (8 CFR 211.1(b)(2)); and (3) withdrew the authorization for waiver of visas. (9 CFR 211.1(b)(3)).

Fed. Reg., Vol. 45, No. 90, May 7, 1980, pp. 30062-30063.

On May 5, 1981, eff. Apr. 24, 1981, the Service rescinded the great majority of restrictions that had been placed on Iranian nationals as a result of the taking of the American hostages and the break in diplomatic relations. The restrictions contained in 8 CFR 211.1(b)(1) and (2), ante, were among those removed. See, also, this chapter, “Visas”, ante.

Alien Anti-Smuggling Statutes-"Freedom Flotilla”

The plaintiffs in Pollgreen v. Morris, 496 F. Supp. 1042 (S.D. Fla. 1980), were 19 American owners, managing agents or captains of vessels used in the "Freedom Flotilla", which the United States Customs Service and the United States Immigration and Naturalization Service had "constructively" seized, following their return from Mariel, Cuba. (The vessels remained in the physical custody of the plaintiffs, but were prohibited from leaving port.)

Officials of the two services, relying on a customs boarding statute (19 U.S.C. 1581 (e)), refused to permit the plaintiffs to avail themselves of post-seizure hearings, under 8 C.F.R. Part 274, at which they could have raised the issue of improper seizure. Instead, they advised that the plaintiffs' recourse was to challenge under 8 C.F.R. Part 280 the imposition of the fines, for which they were allegedly liable under sections 271, 273, and 274 of the Immigration and Nationality Act, 8 U.S.C. 1321, 1323, and 1324. Alleging deprivation of due process under the Fifth Amendment, the plaintiffs then brought suit against district and regional officials of the two services for a declaration that the vessel seizures had been unlawful and for permanent injunctive relief from seizure of the vessels or levy of any fines under the statutory provisions, ante. The core of the plaintiffs' claims that the vessels had been improperly seized was that at the time of the allegedly illegal act, their owners or operators had been under duress from Cuban authorities.

In a motion for preliminary injunction, the plaintiffs sought return of the vessels for normal commercial fishing use. On trial of the motion, District Judge Sidney M. Aronovitz ruled in the plaintiffs' favor both on the due process issue and on their entitlement to a preliminary injunction. With respect to the latter, Judge Aronovitz held that the plaintiffs had made a sufficient showing of probable success on their defense of duress.

Excerpts from the Court's memorandum opinion and preliminary injunction, dated June 25, 1980, as modified July 7, 1980, follow:

[O]n April 19, 1980, small clusters of boats began to leave Key West, Florida for Mariel Harbor, Cuba to pick up refugees. The first boatloads returned from Mariel on April 21, foreshadowing the masses which followed-nearly 1800 boats carrying approximately 114,000 refugees.

The government maintains that from the outset of the "Freedom Flotilla" the public was warned that anyone travelling to Mariel to pick up refugees without valid visas would be subject to arrests and fines. Whether this position is substantiated by the record the Court need not say. Suffice it to note that whatever the government's enforcement posture was previously, President Carter raised serious questions on May 5, 1980, when asked what he intended to do "about enforcing current immigration laws." In response, the President promised "[w]e'll continue to provide an open heart and open arms to refugees seeking freedom from communist domination and from the economic deprivation brought about primarily by Fidel Castro and his government." Par. 28 Plaintiffs' Complaint, p. 10.2

On May 14, 1980, the President took affirmative steps to end the "Freedom Flotilla" by imposing a blockade on outgoing vessels and ordering the return of U.S. vessels already at Mariel Harbor....

The flow of vessels and refugees returning from Mariel eventually began to decline and now has diminished to a trickle.

These . . . actions were brought by 19 Plaintiffs who are owners, managing agents or captains of 31 vessels which participated in the "Freedom Flotilla," transporting various numbers of Cuban refugees from Mariel to Key West. The record reveals that the majority, if not all of the vessels received prior "clearance"5 from Customs officials to travel to Mariel. Upon return of the vessels to Key West, however, each Plaintiff was served with a Notice of Intention to Fine Under Immigration and Nationality Act... The notices specifically referenced potential liability under 8 U.S.C. §§ 1321, 1323 and 1324. Further, Plaintiffs' vessels were seized by the U.S. Customs Service and U.S. Immigration and Naturalization Service,6

(I)

In order to deal with the legal issues raised by the parties, it is necessary to understand the statutory and regulatory scheme in question...

The last statute, 8 U.S.C. § 1324, imposes a fine not to exceed $2,000.00 or a term of imprisonment not to exceed five years for any person who:

(a) brings into the United States an alien not lawfully entitled to enter;

(b) willfully or knowingly conceals or harbors an alien not lawfully entitled to enter; or

(c) willfully or knowingly encourages or induces the entry of an alien not lawfully entitled to enter.

Notably, the first act listed above is the same activity prohibited by § 1323. Section 1324 further provides that any vessel used in the commission of a violation is subject to seizure and forfeiture except when the owner "was not at the time of the alleged illegal act a consenting party or privy thereto. . . ." 8 U.S.C. § 1324(b)(1)(A) (emphasis supplied).

(III)

Plaintiffs have carried their initial burden of demonstrating a substantial likelihood of prevailing on the merits. Plaintiffs contend that seizure of their vessels, whether for purposes of forfeiture or as security for payment of fines, was unjustified inasmuch as they never intended to return to the United States with illegal aliens. Rather, Plaintiffs maintain the violations of immigration law with which they have been charged and for which their vessels were seized were committed while Plaintiffs were acting under duress. At common law, duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. See, e.g., United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 (1980). Significantly, this common law notion of duress has been incorporated in 8 U.S.C. § 1324(b)(1)(A), which authorizes seizure of vessels except when the owner or other person in charge of such vessel was not, at the time of the alleged illegal act, a consenting party or privy thereto.

From the evidence presented, the Court would preliminarily find that Plaintiffs have an arguably viable defense of duress, which would render seizure of their vessels improper and would entitle them to mitigation of fines assessed under 8 U.S.C. §§ 1321, 1323 or 1324.18 The testimony is uncontroverted that Plaintiffs

intended to transport only a limited number of specified persons, mostly relatives and friends, all of whom Plaintiffs assumed had valid visas for entry into the United States. Despite these intentions, Plaintiffs were required by armed soldiers of the Cuban Government to take on board their vessels other Cuban nationals, whether documented or not. Testimony adduced at the hearing indicates that Cuban gunboats in fact prevented Plaintiffs from departing Mariel Harbor without bringing back Cuban nationals whose entry into the United States would, under the applicable immigration laws, be illegal.19 For example, one of the Plaintiffs herein, who sought to pick up 20 family members, was forced to overload his vessel with 134 additional Cuban passengers. That some boats in the "Freedom Flotilla" returned without illegal aliens aboard in no way bears upon the coercion to which these Plaintiffs were allegedly subjected. So too, the fact that Plaintiffs received money for the transportion of their Cuban passengers is irrelevant to the duress under which Plaintiffs acted in connection therewith.

In light of the foregoing, then, the court is persuaded that Plaintiffs are likely to prevail on their challenges to the propriety of Defendants' actions by reason of duress.

2 Testimony adduced before the Court revealed the broad press coverage this statement received, and its profound effect upon the Cuban-American community.

5 "Clearance" constitutes the right of a vessel to leave port to travel to a foreign port and is evidenced by an executed Certificate (Customs Form 1378) from the District Director of Customs. See 19 C.F.R. § 4.6.

6 Seizures commenced as early as April 26, 1980.

18 Plaintiffs would be entitled to avail themselves of the defense of duress, even though no statute, such as 8 U.S.C. § 1324(b)(1)(A) so provided, at least on the issue of mitigation of damages. Cf. United States v. Barbacoff,... [416 F. Supp. 606 (D.D.C. 1976)].

19 Mariel Harbor was described in uncontroverted testimony as entrenched with gunboats and armed soldiers, which tends to support Plaintiffs' defense of duress, i.e. that the threatening conduct of Cuban armed forces produced in Plaintiffs a reasonable fear of immediate death or serious bodily harm to themselves or their passengers.

496 F. Supp. 1042, 1047-1049, 1054-1056.

The Court concluded that the plaintiffs would be irreparably harmed unless a preliminary injunction were granted, permitting them immediate use of their vessels, from which they derived most, if not all, of their means of support. The balance of relative hardships was thus in the plaintiffs' favor; and nothing in the record, the Court said, substantiated the defendants' contentions that continued seizure of the vessels was necessary to prevent them from being used in the further immigration of Cuban nationals or to prevent the plaintiffs from departing altogether, thereby evading payment of fines.

Having found that the plaintiffs could not meet the government's bonding requirements-and noting that the defendant officials cited no specific authority to support them, the Court fixed its own bonding requirements. At the same time, it set out detailed provisions to protect the government's interest in assuring that the boatlift would not be resumed, and that vessels would not be used except for domestic fishing and would not travel to Cuba or any other foreign ports or waters.

On Jan. 24, 1984, Judge Aronovitz granted summary judgment for the plaintiffs, in Pollgreen v. Morris, 579 F. Supp. 711. The Court found that "the very record before the Board of Immigration Appeals and/or the Agency [the Immigration and Naturalization Service] in each instance clearly supported the applicability of the defense of duress and coercion directly or through mitigation of fines as a matter of law." It granted the plaintiffs' prayer for release and discharge from constructive seizure of all vessels that had been seized, for discharge of all bonds and sureties, and for release of conditions previously imposed by the preliminary injunction entered earlier, and made that injunction permanent "insofar as it is ordered and directed that each of the vessels constructively seized herein shall be forthwith returned to the rightful owner/ plaintiff free and clear of all liens and claims arising out of this litigation." The Court also declared that the seizures and the fines imposed under 8 U.S.C. 1323 had been unlawfully made and imposed under the attendant facts and circumstances. 579 F. Supp., at pp. 722-724.

The case of United States v. Anaya, 509 F. Supp. 288 (S.D. Fla. 1980), aff'd, 685 F.2d 1272 (11th Cir. 1982), also arose out of the Mariel boatlift. On December 19, 1980, the United States District Court for the Southern District of Florida, sitting en banc, granted motions to dismiss 84 indictments against a total of 336 persons, who had each been charged with violating section 274(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1324(a)(1), or with conspiracy to violate section 274(a) of the Act, 8 U.S.C. 1324(a).

Section 274(a)(1) of the Immigration and Nationality Act makes it a felony for any person to bring "into" or land "in" the United States aliens “not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States" under the Act or any other law relating to the immigration or expulsion of aliens.

The motions were argued on an agreed stipulation of facts: the defendants were owners, captains and/or crew members of vessels that departed from or were en route to Mariel, Cuba, with the object of bringing back Cuban nationals without visas; the defendants presented the Cubans to Immigration and Naturalization Service officials at Key West, Florida, so that they could seek political asylum or some other status permitting them to come into the United States and remain; the Cuban nationals were granted parole status