Wednesday, July 20, 2016

Law Student Katie Kelly: Movimiento Democracia, Inc. v. Johnson, The Feet Wet/Feet Dry Policy's Latest Application


Law student Katie Kelly writes this summary of the latest application of the "feet we/feet dry policy" as applied to Cuban migrants:


Movimiento Democracia, Inc., et al. v. Jeh Charles Johnson (S.D. Fla. June 28, 2016) centers around twenty-four Cuban migrants who were spotted on a vessel and approached by the Coast Guard to be detained.  The migrants armed themselves with metal pipes, jumped into the ocean, and swam to the American Shoal Lighthouse, seven miles south of Sugarloaf Key, Florida, within United States sea territory.  The water beneath the Lighthouse is at least four feet deep.  The Coast Guard determined that the presence at the Lighthouse fell under wet-foot rule, and the migrants would be processed at sea, rather than as dry-foot migrants on land.  The U.S. Citizenship and Immigration Service concluded that the migrants were due no protection and could be returned to their home country.  Plaintiffs seek declaratory and injunctive relief to be declared to have reached dry U.S. land and provided relief as Cuban refugees.


  1. Did the Coast Guard abuse its discretion in finding the migrants to be wet-foot, thus denying the migrants protection under the Cuban Adjustment Act?
  2. Are these Cuban migrants entitled to due process and equal protections rights under the Constitution?


  1. No, the Coast Guard did not abuse its discretion by denying protections to the migrants because the Coast Guard did not act unreasonably in determining that Plaintiffs were “wet foot,” despite reaching the Lighthouse.
  2. No, having been properly screened and afforded due process, these migrants are not entitled to constitutional protections because aliens interdicted on the high seas (outside of the U.S.) are not entitled to protections under the Constitution.


            Using Gonzalez deference, the Court determined that the Coast Guard’s decision regarding the migrants’ wet-foot/dry-foot status was reasonable, finding that the Lighthouse was merely a navigation tool and did not constitute dry land of the United States. Gonzalez v. Reno, 212 F.3d 1338, 1344 (11th Cir. 2000).  The Lighthouse has never been connected to dry land, and the migrants would require transport in order to reach the mainland to survive, thus landing at the Lighthouse was virtually no different than having been interdicted at sea.  The Court also notes Plaintiff’s armament before arriving at the Lighthouse.  Plaintiff’s argument that arrival on the Lighthouse, a federal structure, indicated their presence in the U.S. fails because that interpretation of the definition of “United States” is too broad for Congress’s intent of the Immigration and Nationality Act, which only defines the U.S. as “the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the U.S., and the Commonwealth of the Northern Mariana Islands.”  8 U.S.C. § 1101(38).  As the Coast Guard was implementing Executive orders, the Court remains deferential to those orders and neither approves nor disapproves of them. 


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