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Immigration and Naturalization (13 of 13)
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Immigration and Naturalization (13 of 13)
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: Immigration and Naturalization
(13 of 13)
Box: 28
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
U.S. Department of Justice
Office of
The Deputy Attorney General
Washington, D.C. 20530
February 22, 1985
TO: Dick Hauser
To
FROM: Roger Clegg
TGR
Per your request.
No. 84-5240
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1984
MARIE LUCIE JEAN, FT AL., PETITIONERS
V.
ALAN C. NELSON, COMMISSIONER OF
IMMIGRATION AND NATURALIZATION, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE RESPONDENTS
REX E. LEE
Solicitor General
RICHARD K. WILLARD
Acting Assistant Attorney General
KENNETH S. GELLER
Deputy Solicitor General
JOSHUA I. SCHWARTZ
Assistant to the Solicitor General
BARBARA L. HERWIG
MICHAEL JAY SINGER
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 633-2217
QUESTION PRESENTED
Whether petitioners, a class of excludable Haitian aliens
seeking admission into the United States, may invoke the Fifth
Amendment to challenge the exercise of the Attorney General's
authority to parole unadmitted aliens into this country pending a
determination of their admissibility.
(I)
TABLE OF CONTENTS
Page
Opinions below
Jurisdiction
Constitutional and statutory provisions involved
Statement:
A.
Background and proceedings below
B.
Current posture of this case
Summary of argument
Argument:
The Fifth Amendment provides no basis for overruling
the Attorney General's decision to deny parole to an
excludable alien pending determination of the alien's
admissibility to the United States
A.
The Due Process Clause does not augment the
statutory rights of excludable aliens regarding
determinations related to their admission to the
United States
B.
The entry doctrine bars petitioners' challenge
to the denial of parole pending exclusion pro-
ceedings
(III)
IV
Argumen Continued
Page
C.
Because nationality distinctions are inherently
permissible in the formulation and application
of the immigration laws, restriction of judicial
review under the entry doctrine is especially
appropriate here
Conclusion
TABLE OF AUTHORITIES
Cases:
Alvarez V. District Director of INS, 539 F.2d 1220,
cert. denied, 430 U.S. 918
Ashwander V. TVA, 297 U.S. 288
Baker V. Carr, 369 U.S. 186
Balzac V. Porto Rico, 258 U.S. 298
Bertrand V. Sava, 684 F.2d 204
Bolling V. Sharpe, 347 U.S. 497
Buckley V. Valeo, 424 U.S. 1
Califano V. Yamasaki, 442 U.S. 682
Carlson V. Landon, 342 U.S. 524
V
Cases Continued
Page
Castaneda V. Partida, 430 U.S. 482
Chappell V. Wallace, No. 82-167 (June 13, 1983)
Dorr V. United States, 195 U.S. 138
Downes V. Bidwell, 182 U.S. 244
Dunn V. INS, 499 F.2d 856, cert. denied, 419 U.S.
1106
Fiallo V. Bell, 430 U.S. 787
Fong Yue Ting V. United States, 149 U.S. 698
Galvan V. Press, 347 U.S. 522
Hampton V. Mow Sun Wong, 426 U.S. 88
Haitian Refugee Center, Inc. V. Smith, 676 F.2d
1023
Harisiades V. Shaughnessy, 342 U.S. 580
Hawaii V. Manchiki, 190 U.S. 197
Hecht Co. V. Bowles, 321 U.S. 321
Heckler V. Mathews, No. 82-1050 (Mar. 5, 1984)
INS V. Hibi, 414 U.S. 5
VI
Cases Continued
Page
INS V. Miranda, 459 U.S. 14
INS V. Stevic, No. 82-973 (June 5, 1984)
Kleindienst V. Mandel, 408 U.S. 753
Korematsu V. United States, 323 U.S. 214
Kwong Hai Chew V. Colding, 344 U.S. 590
Landon V. Plasencia, 459 U.S. 21
Lem Moon Sing V. United States, 158 U.S. 538
Leng May Ma V. Barber, 357 U.S. 185
Los Angeles V. Lyons, No. 461 U.S. 95
Malek-Marzban V. INS, 653 F.2d 113
Mathews V. Diaz, 426 U.S. 67
Mississippi University for Women V. Hogan, 458 U.S.
718
Narenji V. Civiletti, 617 F.2d 745, cert. denied,
446 U.S. 947
New York Transit Authority V. Beazer, 440 U.S.
568
VII
Cases Continued
Page
Nishimura Ekiu V. United States, 142 U.S. 651
Nixon V. Fitzgerald, 457 U.S. 731
Noel V. Chapman, 508 F.2d 1023, cert. denied,
423 U.S. 824
Oceanic Navigation Co. V. Stranahan, 214 U.S. 320.
Palma V. Verdeyen, 676 F.2d 100
Plyler V. Doe, 457 U.S. 202
Pullman-Standard V. Swint, 456 U.S. 273
Reid V. Covert, 354 U.S. 1
Rizzo v. Goode, 423 U.S. 362
Russian Volunteer Fleet V. United States, 282 U.S.
481
Sampson V. Murray, 415 U.S. 61
Saxbe V. Bustos, 419 U.S. 65
Shaughnessy V. United States ex rel. Mezei, 345
U.S. 206
The Chinese Exclusion Case, 130 U.S. 581
VIII
Cases Continued
Page
Trop V. Dulles, 356 U.S. 86
United States V. Curtiss-Wright Export Corp.
299 U.S. 304
United States ex rel. Knauff V. Shaughnessy, 338
U.S. 537
United States ex rel. Mezei V. Shaughnessy, 195
F.2d 964
Village of Arlington Heights V. Metropolitan Housing
Development Corp., 429 U.S. 252
Washington V. Davis, 426 U.S. 229
Weinberger V. Romero-Barcelo, 456 U.S. 305
Wong Wing V. United States, 163 U.S. 228
Yassini V. Crosland, 618 F.2d 1356
Yick Wo V. Hopkins, 118 U.S. 356
Constitution, statutes, regulations and rule:
U.S. Const.:
Amend. I
XIX
Constitution, statutes, regulations
Page
and rule--Continued
Amend. V (Due Process Clause)
Amendo VI
Amend. XIV
Administrative Procedure Act (APA), 5 U.S.C. 553
Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e
et seq.
Immigration and Nationality Act of 1952, 8 U.S.C.
1101 et seq.:
§ 101 (a) (42) (A), 8 U.S.C. 1101(a) (42) (A)
§
, 8 U.S.C. 1103(a)
§
, 8 U.S.C. 1151
§
,
8 U.S.C. 1152(a)
§
, 8 U.S.C. (1964 ed.) 1151
§ 212 (d) (5), 8 U.S.C. 1182(d)(5)
§ 212(d) (5) (A), 8 U.S.C. 1182 (d) (5) (A)
§ 212(d) (5) (B), 8 U.S.C. 1182(d) (5) (B)
X
Constitution, statutes, regulations
Page
and rule Continued
§ 212(f), 8 U.S.C. 1182(f)
§ 232(a), 8 U.S.C. 1223(a)
§ 235(b), 8 U.S.C. 1225(b)
§
, 8 U.S.C. 1253(h)
Refugee Act of 1980, Pub. L. 96-212, § 203(f),
94 Stat. 107
8 C.F.R.:
Section 101.1
Section 208.3(b)
Section 208.10(b)
Section 208.11
Section 212.1
Section 212.5
Section 231
Section 242.2(e)
Section 252.1
11th Cir. R. 26(k)
XI
Miscellaneous:
Page
3 G. Hackworth Digest of International Law (1942).
Report by the General Accounting Office, Detention
Policies Affecting Haitian Nationals (June 16,
1983)
8 M. Whiteman Digest of International Law (1967)
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1984
No. 84-5240
MARIE LUCIE JEAN, ET AL., PETITIONERS
V.
ALAN C. NELSON, COMMISSIONER OF
IMMIGRATION AND NATURALIZATION, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE RESPONDENTS
OPINIONS BELOW
The opinion of the court of appeals sitting en banc (J.A.
292-354) is reported at 727 F.2d 957. The vacated opinion of the
court of appeals panel (J.A. 193-291) is reported at 711 F.2d
1455. The pertinent opinions of the district court (J.A. 113-174
and 78-100) are reported at 544 F. Supp. 973 and 532 F. Supp.
881.
JURISDICTION
The judgment of the en banc court of appeals (J.A. 356-357)
was entered on February 28, 1984. A petition for rehearing was
denied on May 4, 1984 (J.A. 355). The petition for a writ of
certiorari was filed on August 1, 1984, and was granted on
December 3, 1984 (J.A. 358). The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).
(1)
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
1. The Fifth Amendment provides in pertinent part:
No person shall * * * be deprived of
life, liberty, or property, with
out due process of law * * *.
2. 8 U.S.C. 1182 (d) (5) (A) provides:
The Attorney General may, except as
provided in subparagraph (B), in his dis-
cretion, parole into the United States
temporarily under such conditions as he may
prescribe for emergent reasons or for reasons
deemed strictly in the public interest any
alien applying for admission to the United
States, but such parole shall not be regarded
as an admission of the alien and when the
purposes of such parole shall, in the opinion
of the Attorney General, have been served the
alien shall forthwith return or be returned to
the custody from which he was paroled and
thereafter his case shall continue to be dealt
with in the same manner as that of any other
applicant for admission to the United States.
STATEMENT
A. Background and Proceedings Below
1.a. Section 235(b) of the Immigration and Nationality Act
of 1952, 8 U.S.C. 1225(b), provides that "[e]very alien * * * who
may not appear to the examining immigration officer at the port
of arrival to be clearly and beyond a doubt entitled to land
shall be detained for further inquiry to be conducted by a
special inquiry officer." Section 212 (d) (5) (A) of the Act,
8 U.S.C. 1182 (d) (5) (A), modifies this detention mandate by
authorizing the Attorney General, "in his discretion," to parole
into the United States any alien applying for admission "under
such conditions as he may prescribe for emergent reasons or for
reasons deemed strictly in the public interest." The statute
makes clear, however, that such parole "shall not be regarded as
an admission of the alien" and that the alien shall be returned
forthwith to custody when, "in the opinion of the Attorney
General," the purposes of the parole have been served (ibid.).
b. In February 1981, the Select Committee on Immigration
established by President Carter issued a report declaring that an
3
immigration crisis exists in the United States (J.A. 120).
Principal reasons for the crisis included the arrival on our
shores of increasing numbers of aliens lacking required entry
visas and a policy under which such undocumented aliens were
routinely paroled prior to hearings on their applications for
admission. As a result, further illegal immigration was
encouraged (id. at 118-120 & n.17) and aliens often failed to
appear at their hearings (Tr. 2398-2399). See also Report by the
General Accounting Office, Detention Policies Affecting Haitian
Nationals 15 & n.4 (June 16, 1983) (hereinafter GAO Rep.). The
flood of undocumented aliens included an estimated 35,000
Haitians who arrived and were paroled into South Florida between
1972 and 1981, and some 125,000 Cubans who arrived in the region
in the spring of 1980 in a massive "boatlift" orchestrated or
permitted by Cuban authorities, originating in Mariel Harbor
(J.A. 118-120).
Because of the continuing immigration crisis confronting the
Nation, in March 1981 President Reagan appointed a special
cabinet-level task force, presided over by the Attorney General,
to consider solutions to the pressing problems involved. The
task force developed several responsive policy proposals. Among
these was a recommendation that the government return to a
general policy of detaining incoming aliens unable to support
their claims for admission to this country (J.A. 120-122). A
policy of detention of such aliens had been applied by the
government during the 1940s and early 1950s but was largely
abandoned following 1954, when the detention facility at Ellis
Island was closed and the Attorney General began to exercise his
parole authority more leniently, allowing most undocumented
aliens to be at large within our borders pending appropriate
immigration proceedings in which their admissibility would be
determined (id. at 122 n. 18).
4
On July 30, 1981, the President issued a statement concern-
ing the Nation's immigration policy, emphasizing the need to
"'establish control over immigration" and indicating that the
Attorney General would be taking measures to ensure that aliens
are admitted to the United States "in a controlled and orderly
fashion (J.A. 123). On the same day, the Attorney
General testified before a joint hearing of the Senate and House
subcommittees with jurisdiction over immigration and refugee
matters. He advised Congress of the severe problems in the
immigration area, noting that the Nation has "lost control of
[its] borders, has "'pursued unrealistic policies, and has
"failed to enforce [its] laws effectively'" (1b1d.). He further
testified that the government's effort to regulate the entry of
aliens has "'crumbled under the burden of overwhelming numbers'"
(ibid.). In outlining a remedial strategy, the Attorney General
underscored the "'necessity of detaining illegal aliens pending
exclusion" (ibid.).
Consistent with these pronouncements, a key element of the
new immigration policy endorsed by the task force, approved by
the President and announced by the Attorney General "called for
more restrictive use of parole and increased use of detention"
(J.A. 123). The Immigration and Naturalization Service (INS)
implemented this "new" policy (which in many ways was a return to
the "old" pre-1954 policy embodied in the Immigration and
Nationality Act) by issuing "general instructions to its field
officers to start detaining excludable aliens who do not
establish a prima facie claim for admission" (id. at 124).
/
/ An "excludable" alien is an alien subject to exclusion under
the Immigration and Nationality Act who has been stopped by INS
officials at the border and who therefore has not effected an
entry into the United States. A "deportable" alien, by contrast,
is one who has managed -- legally or otherwise -- to enter the
United States, and is, by virtue of such entry, no longer subject
to exclusion proceedings but only to deportation proceedings.
See, e.g., Leng May Ma V. Barber, 357 U.S. 185, 187 (1958); see
also Landon V. Plasencia, 459 U.S. 21, 25-26 (1982). Petitioners
are agreed to be excludable aliens; this case presents no ques-
(Continued)
5
By July 31 1981, then, the "new" policy of more restrictive use
of parole was initiated with respect to excludable aliens
generally, including the continuing stream of arrivals from Haiti
(id. at 125). See also GAO Rep. 15-16.
2. This litigation was commenced by filing of a petition
for a writ of habeas corpus (J.A. 14-23) in the United States
District Court for the Southern District of Florida on June 10,
1981. An amended petition combined with a complaint for
declaratory, injunctive and mandatory class action relief (id. at
24-46) was filed on June 16, 1981. Defendants and respondents
included the Attorney General, the INS, the Commissioner of
Immigration and Naturalization and several regional and local INS
officials. The complaint, which was amended on August 24, 1981
(1d. at 49-56), set out seven causes of action. Among these was
a claim that respondents had treated Haitian aliens differently
from other groups of aliens in connection with their detention
and other matters relating to their applications for admission,
and had thereby discriminated against petitioners on the basis of
race and national origin, in alleged violation of the Fifth
Amendment (J.A. 38-39).
On September 30, 1981, the district court (Hastings, J.)
granted petitioners' motion for class certification and converted
a temporary restraining order (entered simultaneously, "nunc pro
tunc to September 9, 1981") into a preliminary injunction barring
the government from proceeding with exclusion hearings against
members of the class (J.A. 58-69). As later modified (id. at 83
(footnote omitted); see also id. at 176, 294 n.2), the certified
class
consists of all Haitian aliens who have
arrived in the Southern District of Florida on
or after May 20, 1981, who are applying for
entry into the United States and who are pres-
ently in detention pending exclusion proceed-
ings at various INS detention facilities, for
tion concerning the rights of aliens who have managed to effect
an entry into the United States.
6
whom an order of exclusion has not been
entered and who are either: (1) unrepresented
by counsel; or (2) represented by counsel pro
bono publico assigned by the Haitian Refugee
Volunteer Lawyer Task Force of the Dade County
Bar Association. [/]
On February 24, 1982, the district court (Spellman, J.)
dismissed many of petitioners' claims on jurisdictional grounds
(J.A. 78-100). Petitioners' surviving claims were then as
follows: (1) Count II, which alleged that the change in the
government's parole policy was unlawfully effectuated without
observance of the notice-and-comment rulemaking procedures of the
Administrative Procedure Act (APA), 5 U.S.C. 553; (2) Count IV
insofar as it alleged violations of a First Amendment right of
access by detained Haitians to persons not in detention, and by
the Haitian Refugee Center, Inc., to persons in detention, and
(3) Count VII insofar as it challenged the revised parole policy
as discriminating on the basis of race and national origin in
alleged violation of the equal protection component of the Due
Process Clause of the Fifth Amendment.
3. Following a trial, the district court issued findings of
fact and conclusions of law (J.A. 112-174) on June 18, 1982. The
court ruled in petitioners' favor on the APA claim, holding that
the revised parole policy should have been promulgated in
accordance with the notice-and-comment rulemaking procedures (id.
at 150-159). The court reserved judgment on the First Amendment
claims, suggesting that, depending on the kind of relief to be
awarded in respect of petitioners' APA claim, the First Amendment
claim might become moot (1d. at 159 n.49). Although it
recognized that a similar disposition of the equal protection
/ In its final judgment, the district court further modified
the class certification by enlarging the class to include all
detained Haitians for whom a counsel's notice of appearance form
had been entered (J.A. 184). The court earlier had modified the
preliminary injunction to allow the government to proceed with
exclusion hearings for those petitioners who were represented by
counsel, but the modified injunction provided that no final order
of exclusion against such a petitioner could be executed without
prior notice to the district court (id. at 82-83 n.6).
7
claim was possible (id. at 159), the district court determined to
reach the issues presented by that claim, in order to avoid a
remand "for findings on issues already tried" in the event the
court of appeals reversed its ruling on the APA issue (ibid.).
On the discrimination claim, the district court held that
the government did not violate the equal protection component of
the Fifth Amendment Due Process Clause (J.A. 159-169, 173).
After careful consideration of the voluminous factual record
(including live testimony during a six-week trial), the district
court found that "[t]he policies and practices challenged herein,
including detention, were proposed to and approved by the
President of the United States in the context of developing a
comprehensive new immigration policy," and that "[t]hese measures
were intended to be applied to all aliens regardless of their
race or national origin" (id. at 166-167). The court found that
the revised parole policy was "designed to deal with another
Mariel type situation, regardless of the nationality or number of
the arriving aliens" (id. at 124). Although it had turned out,
for a variety of reasons, that "Haitians [we]re impacted to a
greater degree by the new detention policy than aliens of any
other nationality at the * * * time" (id. at 165), the court
found that the policy was "intended to be fair and * * * that if
another class of aliens arrived in this country in a situation
similar to that of the [petitioners] they would be treated in a
similar fashion" (id. at 169; footnote omitted). .
The district court concluded that the statistical evidence
adduced by petitioners to show that Haitians were disproportion-
ately affected by the government's revised parole policy "does
not deserve much weight in determining the merits of
[petitioners'] discrimination claim" (J.A. 128). The court
observed that the statistical method employed by petitioners'
expert was designed to test the probability that a particular
result could have come about in a random manner, but that
8
"[p]arole is not a random process and the probability of parole
is not the same for every person" (ibid.). The statistician's
analysis failed to take account of many relevant factors, such as
the alien's age and health, the alien's reasons for seeking
parole, the pendency of an asylum request by the alien, or the
presence of a minor with the alien. Indeed, the only parole
criterion that petitioners' statistician had adjusted for was the
documentation status of the alien. Ibid. And even with respect
to documentation, the expert's purported controls were "far too
simplistic" because they did not distinguish between different
types of documents possessed by aliens seeking admission or
adjust for differences respecting the apparent validity or lack
of regularity in any documentation presented (ibid.). In short,
the court found that the evidence "simply did not establish the
existence of a statistically significant relationship between
being detained and being Haitian in the context of similarly
situated individuals" (ibid.).
On the ultimate factual question of whether the challenged
immigration policy was motivated by an invidiously discriminatory
purpose in violation of the Due Process Clause, the district
court found that petitioners failed to establish that respondents
intended to discriminate against petitioners on the basis of race
or national origin. Accordingly, the court rejected petitioners'
Fifth Amendment claim. The court summarized its factual finding
as follows (J.A. 173):
[Petitioners] have failed to prove by a
preponderance of the evidence that they were
incarcerated because of their race and/or
national origin. The evidence shows that the
detention policy was not directed at [peti-
tioners] because they were black and/or
Haitian, but because they were excludable
aliens unable to establish a prima facie claim
for admission and that non-Haitians were
detained pursuant to this policy as well. The
mere fact that more Haitians were detained and
kept in detention for longer periods of time
than aliens of other nationalities does not
render the policy discriminatory. Regardless
of its ultimate impact, the policy was
intended to be applied and was in fact applied
9
equally to all similarly situated aliens
regardless of their race and/or national
origin.
Following a hearing on the relief to be ordered in
connection with its APA ruling, the district court rendered its
final judgment on June 29, 1982 (J.A. 175-185). In view of its
holding that the government's revised parole policy was not
promulgated in accordance with APA rulemaking procedures, the
court declared that the new policy was "null and void" and that
the prior policy was restored to "full force and effect" (id. at
178). Therefore, the court ordered that all class members in
detention were to be released on parole under an interim plan,
subject to certain terms and conditions (1d. at 179-184). The
court further held that, in light of the relief awarded,
petitioners' First Amendment access claims had indeed become moot
(id. at 175-176 n.2).
By order of June 30, 1982, the district court refused to
stay the requirement that petitioners be released from
detention. On July 2, however, the court granted a partial stay,
authorizing future detention of excludable aliens refused parole
in accordance with a properly promulgated regulation. On July
13, 1982, the court of appeals likewise denied the government's
request to stay that portion of the district court's order
requiring release of petitioners from detention (J.A. 191-192).
As a result, the members of the class were paroled, but
subsequent arrivals have been detained in accordance with the new
parole regulations, which have been codified at 8 C.F.R. 212.5
(J.A. 296).
4. Respondents appealed from the district court's ruling on
the APA issue. Petitioners took a cross-appeal, pressing their
due process and First Amendment claims, as well as two other
10
claims that the district court had dismissed on jurisdictional
grounds in a preliminary ruling (see page
, supra).
/
A panel of the court of appeals ruled for petitioners on all
issues save one (J.A. 193-291). The panel affirmed the district
court's judgment with regard to the APA claim, although it
adopted a different rationale for its ruling (id. at 219-237).
On the other hand, the panel reversed the district court's judg-
ment in favor of respondents on the Fifth Amendment discrimina-
tion claim, concluding that the district court's extensive
findings of fact on this complex matter were clearly erroneous
(id. at 238-276).
In connection with the due process claim the panel observed
preliminarily that, although petitioners "consistently have
addressed this case as one premised both on nationality (Haitian)
and race (black) [,] [t]he bulk of the evidence * * * was
addressed to the nationality claim" (J.A. 243 n.29). Accord-
ingly, the panel analyzed the claim in terms of nationality-based
discrimination, and framed its instructions on remand in terms of
"ensur[ing] that all aliens, regardless of their nationality or
origin, are accorded equal treatment" (id. at 291; footnote
omitted).
The panel acknowledged that the government's new parole
policy was publicly described by high-level officials as re-
quiring "evenhanded treatment" (J.A. 212). But it concluded that
the evidence offered by petitioners precluded any such
characterization of the parole policy actually implemented by
/ The additional claims presented the following questions:
(1) whether individuals appearing for a preliminary inspection at
the border are entitled to counsel and to be advised of any such
right, and (2) whether INS must advise individuals of their right
to apply for political asylum.
11
low-level INS officials in the field. / Notwithstanding
the
testimony of high-ranking "INS officials * * * that the [new
parole] policy was intended to be applied 'across the boards,'
but had its greatest impact on Haitians because no one else was
'similarly situated" (1d. at 258) the panel concluded that
petitioners had offered evidence of "intentional government
discrimination against Haitians" (id. at 259) and that the
government had failed to overcome this showing (id. at 259-
275).
/
In light of its rulings, the court of appeals panel
concluded that petitioners had impermissibly been denied parole
(J.A. 291) It directed that the parole of petitioners ordered
by the district court be continued, and remanded for entry of a
remedial order that would ensure that the new parole policy "is
/ In discussing the APA issue the panel acknowledged that
"[t]he Administration announced a broad policy of detention"
(J.A. 236 n.26) and stated that "the genesis of discriminatory
enforcement may have been only a failure to clarify a general
policy" (id. at 236), explaining (id. at 235):
Those who formulated the policy failed to
convey the policy to those responsible for
implementing it. Left without guidance as to
how to implement an undefined policy, the
immigration inspectors enforced the detention
policy as if it was intended to apply solely,
and uniformly, to Haitians.
/ The panel also held that the district court had erred in
dismissing, on jurisdictional grounds, petitioners' claim
concerning advice of their right to seek asylum before the INS
district director (J.A. 276-285). On the other hand, the panel
sustained the district court's "discretion in dismissing the
notification of a right to counsel claim as unexhausted" (id. at
284). Proceeding to the merits of the asylum notice claim, the
panel held that the Fifth Amendment requires that excludable
aliens such as petitioners be notified that they have a
constitutionally protected right to seek asylum before the INS
district director (id. at 286-287).
Finally, the panel concluded that the claim of the non-class
petitioner, Haitian Refugee Center, Inc., that it has a First
Amendment right of access to the detained class petitioners was
not moot (J.A. 287-288). This claim was remanded to the district
court for further proceedings (id at 288-289).
12
effectuated in the future in a non-discriminatory manner"
(ibid.).
/
5. The court of appeals granted the government's petition
for rehearing en banc (714 F.2d 96 (11th Cir. 1983)), thereby
vacating the panel opinion (see 11th Cir. R. 26(k)). The en banc
court dismissed in part, reversed in part, and remanded with
instructions (J.A. 356-357).
All members of the en banc court of appeals agreed that the
APA claim was moot because the government had, subsequent to the
district court's decision, promulgated regulations in accordance
with the APA, and because the only persons remaining in detention
in the wake of the district court's order granting parole "either
had their parole revoked for failure to comply with the terms of
the district court's order * * * or arrived in this country after
the government's promulgation of its new regulations" (J.A.
296). The en banc court accordingly directed that the
government's appeal be dismissed and that the remedial provisions
of the district court's judgment based upon its APA ruling be
vacated (ibid.).
With respect to the due process claim, an eight-member
majority of the court of appeals held that petitioners, as
excludable aliens, were not entitled to invoke the Fifth
Amendment to attack the Attorney General's refusal to grant them
parole (J.A. 296-323, 341-343). Because "the decision to parole
or detain is an integral part of the admissions process" (id. at
298; see also 1d. at 310-317), the court of appeals concluded
that petitioners' claim was barred by the well-settled rule that
"[a]liens seeking admission to the United States * * * have no
/ The panel observed that although the relief granted by the
district court had been premised solely on a violation of the
APA, the "terms of the relief ordered by the district court are
not inconsistent with our holding here today and the court below
should feel free to adhere to its original release program, sup-
plementing it as necessary to ensure that there is no repetition
of the equal protection violation" (J.A. 291 n.63).
13
constitutional rights with regard to their applications and must
be content to accept whatever statutory rights and privileges
they are granted by Congress" (1d. at 309). (The four other
members of the court of appeals deemed it unnecessary to reach
this issue. See page note , infra).
Although the court of appeals thus held that the govern-
ment's parole policy was not subject to a constitutional due
process attack, the court indicated (J.A. 323-331) that the
implementation of this policy was not "immune from judicial
review" to correct arbitrary exercise or withholding of discre-
tionary action (id. at 323). The court of appeals held that
judicial review was available to assure that there was a
"'facially legitimate and bona fide reason'" for the action taken
in the case of a particular alien (id. at 326, quoting
Kleindienst V. Mandel, 408 U.S. 753, 770 (1972); J.A. 330) and to
determine "whether the actions of lower level officials in the
field conform to the policy statements of their superiors in
Washington" (ibid.). Because the court of appeals accepted the
government's contention that, as the district court had found,
the new restrictive parole policy was not designed to
discriminate on the basis of national origin (id. at 298-299,
328-330), judicial review in this case could redress any
unauthorized discrimination in the implementation of that policy
(1d. at 330-331)
If the [district] court should find that low-
level immigration officials have discriminated
on the basis of national origin despite the
adoption of a contrary policy by their
superiors in the executive branch, such
conduct would constitute an abuse of
discretion that would justify appropriate
relief.
/
The parties had disputed whether Executive Branch officials
share with Congress the authority to draw nationality-based
distinctions among aliens seeking to enter the United States.
See J.A. 328-329. Because the court of appeals determined that
"responsible executive officials" had not sought to exercise such
authority here and had instead established a non-discriminatory
parole policy, it concluded that "resolution of this question is
(Continued)
14
See also J.A. 299.
The court of appeals remanded the case so that this non-
constitutional standard of review could be applied to the cases
of those "class members presently in detention" (J.A. 330; see
also id. at 342). The court of appeals directed that (id. at
330):
[t]he district court on remand should conduct
such proceedings as are necessary to determine
whether there exists a facially legitimate and
bona fide reason for [denying parole], remem-
bering that it is not the court's proper role
to "disregard the [stated criteria employed]
or to substitute its own policy preferences
for those of the official vested by law with
discretionary authority to act on requests for
parole" [Bertrand V. Sava, 684 F.2d 204,] 217
[ (2d Cir. 1982) The district court should
consider (1) whether local immigration
officials in fact exercised their discretion
under [8 U.S.C.] § 1182(d) (5) (A) to make
individualized determinations and (2) whether
the criteria employed in making those
determinations were consistent with the
statutory grant of discretion by Congress, the
regulations promulgated by the agencies
involved, and the policies which had been
established by the President and the Attorney
General.
The court of appeals thus concluded (J.A. 342-343) that, although
"[e]xcludable aliens cannot challenge the decisions of executive
officials with regard to their applications for admission,
asylum, or parole on the basis of the rights guaranteed by the
United States Constitution," they "do have rights * * * to
whatever process Congress - and through its regulations and
established policies, the Executive Branch -- have extended
them," and accordingly "do[] not stand altogether outside the
protection of our laws." /
not essential to our holding" (id. at 328-329). Nevertheless,
the court of appeals stated that "there is little question that
the Executive has the power to draw distinctions among aliens on
the basis of nationality" and that this executive authority is
vested in "responsible executive officials such as the President
or Attorney General" under the Immigration and Nationality Act
(J.A. 329 & n. 30).
/ The en banc court also addressed the asylum/notice and First
Amendment access issues. The court of appeals held that the
district court had jurisdiction to consider whether petitioners
have a constitutional right to advice of their statutory right to
seek asylum, but, on reaching the merits, held that there is no
(Continued)
15
B. Current Posture of this Case
Before discussing the questions presented by the petition,
we believe that it would be useful to clarify the current posture
of this case. We do so because our further study of the deci-
sions below and the arguments of petitioners as they now emerge
in this Court persuade us that the questions presented bear a
rather remote relationship to petitioners' interests.
We do not suggest that the case is moot. Nor do we urge
that the writ of certiorari should be dismissed as improvidently
granted. There has been no significant charge in the dimensions
of the case since the Court granted certiorari; the Court has
discretion to decide the question presented and its resolution is
important to the administration of our immigration laws.
Nevertheless, the Court should be fully aware of the following
considerations.
constitutional right to such notice (J.A. 331-340). The court of
appeals also held that the Haitian Refugee Center's First
Amendment access claim was not moot, but could not be properly
evaluated on the existing record (id. at 340-341). This claim
was remanded to the district court (id. at 341).
Judge Tjoflat, who joined the majority opinion in all other
respects, dissented with regard to the scope of nonconstitutional
review available on remand, criticizing that remand as unduly
broad and needlessly intrusive upon intra-Executive Branch
communications (J.A. 343-346). He suggested that the court of
appeals had unrealistically posited a dichotomy between general
INS policy set at the national level and implementation of that
policy in the field (id. at 344-345). Instead, Judge Tjoflat
reasoned, the courts should "assume the Attorney General to adopt
the actions of his officers in the field and ask him to justify
them" under a narrow abuse of discretion standard (id. at 344,
345-346).
Judge Kravitch, joined by three other members of the court,
concluded in a separate opinion that, in light of the scope of
nonconstitutional review available on remand, "the district court
and the panel erroneously reached the constitutional questions,"
that those questions were not properly before the court of
appeals, and that the majority's discussion of them "can only be
viewed as dicta" (J.A. 347, 348). Although these judges
apparently agreed with the majority that the authority of the
Executive to draw distinctions among aliens based on nationality
was not before the court (id. at 347-348 & n.2), they argued that
distinctions drawn by high-level officials must be rational in
order to pass muster under an abuse of discretion standard (id.
at 348-351). Finally, the judges joining in the separate opinion
dissented from the majority's ruling on the asylum/notice issue
(id. at 353-354).
16
It is fundamental that this Court reviews judgments rather
than statements in the opinions that underlie them. Mississippi
University for Women V. Hogan, 458 U.S. 718, 723 n.7 (1982). It
is therefore appropriate to ask whether resolution of the ques-
tions presented by petitioners is likely to have a substantial
effect on the court of appeals' judgment. We think this doubtful
for two reasons. First, the members of the class generally have
already received the relief (release on parole) to which they
claim they were entitled. Second, as to any class members now in
detention, the court of appeals' remand provides an opportunity
for redress on nonconstitutional grounds if it can be shown that
their detention is attributable to unauthorized discrimination.
1. As we have explained (pages 6, 9, supra), based on its
Administrative Procedure Act ruling the district court's final
judgment required the release of all class members in detention
on the date of the judgment, and barred future detention of new
arrivals until the new parole policy was embodied in a rule
published under the APA. The INS has now promulgated the
regulation required by the district court's judgment. See 8
C.F.R. 212.5. Thus, any current detention of excludable Haitians
either is being carried out pursuant to the new regulation or
results from the detainees' violation of the terms of the
district court's release plan. See page 12, supra. There
accordingly is no reason to determine whether a showing of
discrimination in the original detention of class members would
have entitled them to the remedy of release on parole.
/
Of course, some members of the class apparently are now in
detention, and others who are presently paroled may in the future
/ We note that the district court reached the due process
issue only because of its concern that judicial economy would be
ill served in the event that its APA ruling were reversed (J.A.
159 & n.49; see pages 6-7, supra). Significantly, the court of
appeals panel left open the question whether its finding of
discrimination required any change in the district court's
judgment. See page 12, note
, supra.
17
again be detained. But any discrimination claims that might
arise from such detention would be quite different from the
claims made here.
/
2. The court of appeals' ruling already affords petitioners
an opportunity to seek relief from any unauthorized discrimina-
tion on nonconstitutional grounds that are not before the
Court. In such circumstances, the Court's usual practice is to
/ Challenges to detention may in the future be raised by three
classes of persons: (1) those class members who have been
redetained following the district court's release order because
of a violation of its terms, (2) those Haitians who have recently
been detained on arrival pursuant to the uniform regulation
governing parole promulgated in response to the district court's
APA ruling, and (3) those class members whose parole may be
revoked at such time as the district court acts upon the court of
appeals' direction to vacate its APA-based injunction (see page
12, supra). None of these groups could present a claim similar
to that presented here by petitioners.
Even if a claim of discriminatory detention were in the
future advanced by any such persons, it could not arise out of
the events and evidence reviewed by the district court pertaining
to the government's initial implementation of its new parole
policy -- the basis for the claim before this Court. Moreover,
the first group of detainees plainly could raise no colorable
equal protection objection. The district court's order expressly
authorized revocation of parole for those who "inexcusabl[y]"
fail to meet the terms of their parole or who are deemed a
security risk or likely to abscond (J.A. 179, 183, 184 & n.6).
As to the second and third groups of detainees, any
detention would arise from the routine and practiced application
of the published regulation that establishes uniform guidelines
regarding detention pending exclusion proceedings.
Significantly, despite their disagreement on other key matters,
each of the opinions below strongly suggests that any problem of
unequal application of the new parole policy that may have
accompanied its initial introduction was purely transitional and
temporary in nature (J.A. 170, 235-236 & nn.24, 26, 330; see page
11 & note
, supra). We note, as well, that the district
court has recently determined that Haitians detained under 8
C.F.R. 212.5 are outside of the certified class. See Order on
Mandate, No. 81-1260-CIV.-EPS (S.D. Fla. June 8, 1984), at 1
n.1. And as to the final group of persons that may be subject to
detention, such detention would not follow automatically from the
lifting of the district court's injunction. Rather, the Attorney
General would first have to exercise his statutory authority to
determine whether, and in what circumstances, particular paroled
aliens should be restored to detention.
18
decline to decide constitutional questions unnecessarily. See
New York Transit Authority V. Beazer, 440 U.S. 568, 582 & n.22
(1979); Ashwander V. TVA, 297 U.S. 288, 348 (1936) (Brandeis, J.,
concurring).
The en banc court of appeals held that a denial of parole is
reviewable -- wholly apart from the provisions of the Fifth
Amendment -- for abuse of discretion, and indicated that such an
abuse could be made out in the present case by demonstrating a
discriminatory denial of parole in contravention of the
nondiscriminatory uniform national policy. See pages 13-15,
supra. To the extent that any member of the class remains in
detention, he thus retains the opportunity to seek relief upon
showing that his detention is attributable to unauthorized
discrimination by low-level INS enforcement officials. Because
of the availability of this statutory remedy, it may not be
necessary to decide here whether the Constitution grants
petitioners an additional avenue for relief. See Califano V.
Yamasaki, 442 U.S. 682, 693 (1979); Bertrand V. Sava, 684 F.2d
204, 207 n.6 (2d Cir. 1982). Indeed, the members of the panel
(who had initially concluded that the Fifth Amendment does allow
a challenge to discriminatory exercise of parole authority (J.A.
238-241)), ultimately concluded that there was no reason for the
court of appeals to reach the constitutional issue here, that the
district court and the panel had done so erroneously, and that
the en banc court's discussion of the issue was dictum (see page
15 n. ).
Moreover, this view of the case is reinforced by peti-
tioners' acceptance of the court of appeals' conclusion that the
new parole and detention policy established by responsible
Executive Branch officials is nondiscriminatory (Pet. Br. 7-10,
30, 37, 38). And they have altered their claim accordingly. The
gravamen of that claim is now that INS field officials enforced a
facially neutral detention policy in an unauthorizedly discrimi-
19
natory fashion against Haitians (see, e.g., id. at 1, 3, 10, 16,
21-22, 30, 42). / As petitioners' argument now emerges (id. at
37; emphasis added):
This case does not implicate the authority of
Congress, the President or the Attorney
General. Rather, it challenges the power of
low-level politically unresponsive government
officials to act in a manner which is contrary
to federal statutes, treaty, and the
directions of the President and the Attorney
General, both of whom provided for a policy of
nondiscriminatory enforcement.
See also Pet. Br. 36-39. Given this reformulation of peti-
tioners' claim, the court of appeals' statutory analysis offers
them a complete remedy.
3. Petitioners' discussion of the relief they seek confirms
the peculiar posture of this case. They complain, somewhat
disingenuously, that the court of appeals' remand "is directed
only to those 'class members presently in detention" and
"provides no relief for[] the approximately 1700 class members
who have been released from detention" (Br. 21 n.27, quoting J.A.
330). Petitioners acknowledge, however, that the only additional
relief they could seek in the event of a reversal by this Court
/
Petitioners had heretofore claimed at least in part that
responsible high-level INS officials had themselves designed a
discriminatory parole policy. Both the Attorney General and the
INS Commissioner were named as defendants (J.A. 30) and the
complaint makes no mention of the theory that low-level officials
were responsible for any discrimination. Instead, the complaint
charged without differentiation that "Defendants have followed a
'Haitian Program, treating Haitian refugees differently than
other refugee groups" (J.A. 38). See also Pretrial Stipulation
at J.A. 106; 5/14/82 Tr. 84, 133-137, 153-157, 171-172; 5/18/82
Tr. 143; Pet. Opening Br. before the court of appeals panel 6-
10. The opinion of the district court confirms that petitioners
did not then draw the distinction upon which they now rely. See
e.g. J.A. 160-169, 173.
The new focus of petitioners' argument appears to be a
response to the vacated opinion of the court of appeals panel and
the decision of the en banc court. See pages 11, 13-15, 18,
supra. The panel's opinion makes clear that petitioners there
sought to prove discriminatory intent on the part of high-level
INS officials (see J.A. 251-254, 257-259). The en banc court of
appeals' discussion of the authority of responsible Executive
officials to draw nationality-based distinctions also reflects
petitioners' continuing pursuit of their claim of high-level
discrimination (see id. at 329-329 & n.30).
20
would be "injunctive relief to prevent the recurrence of the
pattern of discrimination to which Haitians have been subjected"
(Pet. Br. 21 n.27). Petitioners thus seem to recognize that the
question presented is of only academic interest except insofar as
it might support entry of an injunction against future low-level
discrimination. /
/ Petitioners have not explained the nature or scope of the
injunction they seek. In light of the broad authority of the
Attorney General to implement nationality classifications in
enforcing the immigration laws (see pages 48-56, infra), the
unlikelihood of the repetition of circumstances that underlie any
colorable claim of discriminatory enforcement (see page 18, supra),
and doctrines that limit the granting of injunctive relief, we very
much doubt that any such relief would be available. See, e.g. Los
Angeles V. Lyons, No. 461 U.S. 95 (1983); Rizzo V. Goode, 423 U.S.
362, 376-377 (1976); see also Weinberger V. Romero-Barcelo, 456
U.S. 305, 312 (1982); Sampson V. Murray, 415 U.S. 61, 83 (1974);
Hecht Co. V. Powles, 321 U.S. 321, 329-330 (1944). In any event,
to the extent that injunctive relief may not be foreclosed,
petitioners have not explained why the availability of a
nonconstitutional right of review recognized by the court of
appeals would not provide an adequate basis for an equitable
remedy.
21
SUMMARY OF ARGUMENT
The question presented in this case goes to the very heart
of the sovereign power of the United States to determine whether
particular aliens shall be eligible to enter our Nation and join
our society. Acting pursuant to statutory authority, the
President, the Attorney General and other responsible Executive
Branch officials have in recent years carefully formulated
immigration policies deemed necessary to regain control of our
borders. A key part of this effort is the restrictive parole
policy challenged here, which is designed to discourage future
waves of illegal immigration by greatly restricting the
opportunity for excludable aliens to be paroled pending a
determination of admissibility. There is no warrant for reading
the Constitution to authorize the courts to override this policy
determination made by the political branches of government and to
afford the remedy of parole into the United States to a class of
aliens stopped at our borders whose admissibility has never been
demonstrated.
22
A. For nearly a century, this Court has recognized the
plenary authority of the Legislative and Executive Branches over
matters pertaining to the admission or exclusion of aliens. See
The Chinese Exclusion Case, 130 U.S. 581 (1889); Nishimura Ekiu
V. United States, 142 U.S. 651 (1892). This sovereign authority
is at its zenith with respect to excludable aliens -- those who
stand "on the threshold of initial entry" (Shaughnessy V. United
States ex rel. Mezei, 345 U.S. 206, 212 (1953)) -- as
distinguished from deportable aliens, who have already gained
entry within our borders in some fashion. See Leng May Ma V.
Barber, 357 U.S. 185, 187 (1958).
Petitioners concededly fall within the former category; they
are excludable aliens. Accordingly, as this Court has long held
and repeatedly reaffirmed, they have "no constitutional rights
regarding [their] application[s]' for admission to this country
(Landon V. Plasencia, 459 U.S. 21, 32 (1982)). This settled
constitutional rule does not mean that petitioners are not
"persons" within the meaning of the Fifth Amendment; nor does it
suggest that they have no rights to due process or other
constitutional protections. Rather, the rule means only that,
when petitioners challenge the authorized determinations of the
23
Attorney General respecting their applications for admission to
this country or their demand for de facto admission by parole
- invocation of the Fifth Amendment does not enlarge their
rights: "Whatever the procedure authorized by Congress is, it is
due process as far as an [excludable] alien denied entry is
concerned." United States ex rel. Knauff V. Shaughnessy, 338
U.S. 537, 544 (1950).
B.1. Congress has commanded the Attorney General to detain
"for further inquiry" every alien not "clearly and beyond a doubt
entitled to land" (8 U.S.C. 1225(b)), but has conferred upon him
some discretion to parole unadmitted aliens into the United
States "for emergent reasons or for reasons deemed strictly in
the public interest" (8 U.S.C. 1182(d) (5) (A) In order to deal
more effectively with a threatened breakdown of governmental
control over our borders and stem the tide of illegal immigra-
tion, the Attorney General determined in 1981 that it was
necessary to institute a restrictive parole policy under which
excludable aliens unable to demonstrate a right of admission were
generally to be detained as authorized by statute, rather than
granted discretionary parole.
Petitioners' attempt to raise a due process challenge to
this exercise of the Attorney General's parole and detention
authority is foreclosed by the long-settled principles set forth
above. When unadmitted aliens seek temporary admission via
parole pending the outcome of their exclusion proceedings, the
Attorney General's exercise of discretion is part and parcel of
the exclusion process itself. As this Court has observed,
"detention or temporary confinement" is "part of the means
necessary to give effect to the provisions for the exclusion or
expulsion of aliens ***." Wong Wing V. United States, 163 U.S.
228, 235 (1896); see also Carlson V. Landon, 342 U.S. 524, 538
(1952). Mezei, too, confirms that parole decisions are an
integral part of the exclusion process.
24
Indeed, any distinction between parole and admission would
be wholly imcompatible with the bases for the entry doctrine
established by this Court's decisions. Release on parole means
de facto admission into this country. Although such temporary
admission does not alter the alien's legal status as "excludable"
(8 U.S.C. 1182 (d) (5) (A)), as a practical matter it enables him to
remain physically at large within our borders until final
disposition of his application for admission. A paroled alien
may abscond, obtain employment (lawfully or unlawfully) that
would otherwise go to an American citizen, or cause other harms
that our immigration laws are designed to prevent. Moreover, as
this case illustrates, parole often amounts to admission for a
extended period of years. Accordingly, recognition of the right
to judicially-mandated parole sought by petitioners cannot be
reconciled with the plenary authority of the political branches
to govern the admission of aliens into the United States.
2. Petitioners argue that because they claim to have
suffered unlawful discrimination among excludable aliens, the
entry doctrine is inapplicable. But the obstacle to judicial
review of the denial of parole arises from the nature of the
remedy sought, not the nature of the right invoked or the
violation claimed. The courts simply lack authority to authorize
entry into the United States by an unadmitted alien where the
political branches have denied that benefit.
C.1. The unavailability of extrastatutory judicial review
of denial of parole also follows from the broad authority of the
political branches to apply nationality distinctions in framing
and implementing the immigration laws. This Court has recognized
that in the immigration context the government "regularly makes
rules that would be unacceptable if applied to citizens," among
them rules governing exclusion of aliens, and that even when
resident aliens are affected, such rules and classifications are
25
not subject to the standards used to judge claims of
discrimination under the Fourteenth Amendment. Mathews V. Diaz,
426 U.S. 67, 80, 87 (1976). The political branches have
authority to adopt a "wide variety of classifications * * * in
light of changing political and economic circumstances"; such
classification decisions are "frequently of a character more
appropriate to either the Legislature or the Executive than to
the Judiciary" (id. at 81). Thus, even when the rights of
admitted aliens are at issue, such classifications may be set
aside only when "wholly irrational" (id. at 83) or lacking facial
legitimacy (Fiallo V. Bell, 430 U.S. 787, 798 (1977)).
Because of the inherent subject matter of immigration law -
the relationship of the United States with nationals of various
foreign countries -- nationality classifications have been
commonplace in this context. The courts have consistently
recognized the validity of such classifications. Moreover, such
classifications are supported by compelling justifications. On
occasion, they have been adopted "in order to make a humane
response to a natural catastrophe or an international political
situation" (Diaz, 426 U.S. at 81); but they are equally necessary
when the actions of a foreign government or its people require
the political branches to restrict the opportunity for entry.
See The Chinese Exclusion Case, 130 U.S. at 606. Because the
Nation's policies regarding admission of aliens are inextricably
bound up with control over foreign relations, any rule inhibiting
the ability of the Executive and Legislative Branches to draw
nationality classifications in this field would diminish the
United States' sovereign authority to protect itself against
threats to our interests in the world arena.
In the special context of claims of unadmitted aliens,
considerations of sound policy and separation of powers dictate
that court-ordered parole be foreclosed when inconsistent with
the determinations of the political branches. The courts lack
the expertise and information sources that would be necessary to
26
appraise the basis for nationality classifications established
with regard to the entry of aliens. Nor do they possess
standards by which to assess the justifications for such
distinctions. Accordingly, any effort to undertake such judicial
review would be an empty formality that would serve only to
burden and intrude upon sensitive operations of the Executive.
2. Assuming that petitioners were able to show that
nationality classifications adversely affected their chances for
parole, the circumstances that existed at the time petitioners
attempted unlawfully to enter the United States provide ample
justification for such a policy. As petitioners now concede, the
restrictive parole policy instituted in 1981 was intended to be
applied evenhandedly to aliens seeking admission. Even the court
of appeals panel recognized (J.A. 198), however, that the
Nation's immigration crisis had, because of the influx of
excludable Haitian and Cuban aliens, assumed special dimensions
in South Florida by mid-1981. That influx, which had caused
massive disruptions to the State of Florida and the communities
affected, was a major factor in the adoption of the new parole
policy. Under the circumstances, and given the Attorney
General's determination that liberal parole merely encouraged
further illegal entries, it would have been entirely permissible
to implement the new parole policy vigorously and promptly with
respect to petitioners.
ARGUMENT
THE FIFTH AMENDMENT PROVIDES NO BASIS FOR OVERRULING THE
ATTORNEY GENERAL'S DECISION TO DENY PAROLE TO AN EXCLUDABLE
ALIEN PENDING DETERMINATION OF THE ALIEN'S ADMISSIBILITY TO
THE UNITED STATES
A.
The Due Process Clause Does Not Augment the Statutory
Rights of Excludable Aliens Regarding Determinations
Related to Their Admission to the United States
1. From its very first examination of the federal
government's exclusion power nearly a century ago, this Court has
consistently recognized the plenary authority of the Legislative
and Executive Branches to establish and implement, free from
judicial intervention, the substantive criteria and procedures
27
for determining whether an alien should be admitted to the United
States or whether he should instead be denied the right to enter
and thus be excluded. See The Chinese Exclusion Case, 130 U.S.
581, 603-604, 606, 609 (1889); Nishimura Ekiu V. United States,
142 U.S. 651 (1892). The untrammeled authority to govern
admission of aliens is a fundamental and inherent attribute of
sovereignty. See United States ex rel. Knauff V. Shaughnessy,
338 U.S. 537, 542 (1950). See also 8 M. Whiteman Digest of
International Law 581 et seq. (1967); 3 G. Hackworth Digest of
International Law 725 et sea. (1942). "[0]ver no conceivable
subject is the legislative power of Congress more complete than
it is over" the admission of aliens (Oceanic Navigation Co. V.
Stranahan, 214 U.S. 320, 339 (1909)). And this pervasive
authority extends to both the Legislative and Executive Branches
in the fulfillment of their respective functions.
The power of Congress to exclude aliens
altogether from the United States, or to
prescribe the terms and conditions upon which
they may come to this country, and to have its
declared policy in that regard enforced
exclusively through executive officers,
without judicial intervention, is settled by
our previous adjudications.
Lem Moon Sing V. United States, 158 U.S. 538, 547 (1895).
Although "aliens who have once passed through our gates,
even illegally, may be expelled only after proceedings conforming
to traditional standards of fairness encompassed in due process
of law" (Shaughnessy V. United States ex rel. Mezei, 345 U.S.
206, 212 (1953)), aliens who have not been admitted to this
country are governed by a different constitutional rule. "[A]n
alien on the threshold of initial entry stands on a different
footing: 'Whatever the procedure authorized by Congress is, it
is due process as far as an alien denied entry is concerned."
Ibid. (quoting United States ex rel. Knauff V. Shaughnessy, 338
U.S. at 544). An alien's right "to enter the United States
depends on the congressional will, and courts cannot substitute
their judgment for the legislative mandate." Mezei, 345 U.S. at
28
216. See also Nishimura Ekiu V. United States, 142 U.S. at 660
(emphasis added):
It is not within the province of the judiciary
to order that foreigners who have never been
naturalized, nor acquired any domicil or
residence within the United States, nor even
been admitted into the country pursuant to
law, shall be permitted to enter, in opposi-
tion to the constitutional and lawful measures
of the legislative and executive branches of
government. As to such persons the decisions
of executive or administrative officers
acting within powers expressly conferred by
Congress, are due process of law.
The critical distinction between aliens who have gained
entry to the United States and those who have not is ingrained in
our law. The absence of extra-statutory protection for unad-
mitted aliens seeking initial admission has consistently been
recognized. The Court observed in Leng May Ma V. Barber, 357
U.S. 185, 187 (1958):
[0]ur immigration laws have long made a dis-
tinction between those aliens who have come to
our shores seeking admission * * * and those
who are within the United States after an
entry, irrespective of its legality. In the
latter instance the Court has recognized
additional rights and privileges not extended
to those in the former category who are merely
"on the threshold of initial entry."
Similarly, the Court indicated in Kwong Hai Chew V. Colding, 344
U.S. 590, 600 (1953) (emphasis added), that an immigration
regulation denying a hearing on an order of permanent exclusion
"raises no constitutional conflict if limited to 'excludable'
aliens who are not within the protection of the Fifth Amend-
ment. "
In Kleindeinst V. Mandel, 408 U.S. 753, 762 (1972), the
Court reiterated that "an unadmitted and nonresident alien [has]
no constitutional right of entry to this country as a nonimmi-
grant or otherwise," explaining that this doctrine is rooted in
the core notion of national sovereignty (id. at 765, quoting
Gov't Br. at 20; emphasis added):
In accord with the ancient principles of
nation-states, the Court in The Chinese
Exclusion Case, 130 U.S. 581, 609 (1889), and
in Fong Yue Ting V. United States, 149 U.S.
698 (1893), held broadly * * * that the power
29
to exclude aliens is "inherent in sovereignty,
necessary for maintaining normal international
relations and defending the country against
foreign encroachments and dangers -- a power
to be exercised exclusively by the political
branches of government
Finally, the Court has only recently recapitulated and reaffirmed
this "entry doctrine" established by earlier cases: "[A]n alien
seeking initial admission to the United States requests a
privilege and has no constitutional rights regarding his
application, for the power to admit or exclude aliens is a
sovereign prerogative." Landon V. Plasencia, 459 U.S. 21, 32
(1982).
It is undisputed that the Haitian petitioners in this case
have not been admitted into the United States and fall within the
category of "excludable" aliens (J.A. 160, 310). / Accord-
ingly, under the settled principles discussed above, they are
"'excludable' aliens who are not within the protection of the
Fifth Amendment." Kwong Hai Chew V. Colding, 344 U.S. at 600.
They thus have "no constitutional rights regarding [their]
application[s]" for admission. Landon V. Plasencia, 459 U.S. at
32.
2. This Court's decisions establish beyond question that
the Due Process Clause does not augment the rights available to
excludable aliens under congressionally sanctioned procedures
regarding the determination of admissibility or denial of
entry. At the outset of their argument, however, petitioners
attempt to sidestep the thrust of these governing precedents by
stating the question presented in inflammatory terms and
/ The physical presence of class members within the boundaries
of the United States does not alter their status in this re-
gard. The Court has long recognized that an unadmitted exclud-
able alien's legal status is not affected by his physical
presence within the territorial boundaries of the United States;
"he is treated as if stopped at the border" (Mezei, 345 U.S. at
215). See also Leng May Ma V. Barber, 357 U.S. at 188; Nishimura
Ekiu V. United States, 142 U.S. at 661; 8 U.S.C. 1182(d) (5) (A)
(grant of parole "shall not be regarded as an admission of the
alien"); 8 U.S.C. 1223(a) (removal of alien from vessel or
aircraft for examination by immigration official "shall not be
considered a landing").
30
misrepresenting the holding of the court of appeals. Contrary to
petitioners' submission (Br. 25-29), the question presented here
assuredly is not whether "excludable aliens are 'persons'
protected by the Fifth Amendment" (id. at 25). Nor was the court
of appeals confused on this score, as petitioners charge (id. at
27).
The court of appeals correctly recognized that the question
whether excludable aliens are "persons" within the meaning of the
Fifth Amendment simply is not at issue. The court below
acknowledged that "there are certain circumstances under which
even excludable aliens are accorded rights under the
Constitution" (J.A. 317), citing as examples constitutional
protections granted criminal defendants and the right to
compensation for governmental taking of property located within
the United States (id. at 318-319). The court of appeals
explained that excludable aliens can raise such "constitutional
challenges to deprivations of liberty or property" because they
arise "outside the context of entry or admission, when the
plenary authority of the political branches is not implicated"
(1d. at 317-318; see also id. at 319-320). There is no reason to
consider in this case the extent of constitutional protection
available to excludable aliens in contexts removed from immigra-
tion proceedings that govern or affect their entry into the
United States. As the court of appeals understood, this case
must be decided on far narrower and more specific grounds:
whether the requirements of due process under the Fifth Amendment
enlarge excludable aliens' procedural and substantive rights in
the exclusion process, beyond those provided by statute,
administrative rule and practice.
Viewed in this correct focus, the precisely stated holding
of Mezei cannot be averted here (345 U.S. at 212, quoting 338
U.S. at 544): "Whatever the procedure authorized by Congress
is, it is due process as far as an alien denied entry is
concerned. As the Court's language clearly indicates, Mezei
31
does not suggest that excludable aliens are not persons in
contemplation of law. Rather, it is carefully directed at the
constitutional rights of such persons regarding their exclusion
and related detention. Indeed, even in the exclusion context
Mezei does not in arbitrary fashion simply bar assertion of
constitutional rights by excludable aliens. Instead, the Court
concluded that, because of the plenary authority of the political
branches to establish terms and conditions under which aliens may
be received into our Nation's midst, the requirements of due
process simply have no content in this context apart from the
rights granted by Congress. See Landon V. Plasencia, 459 U.S. at
32. Accordingly, petitioners' vigorous efforts to establish that
excludable aliens are "persons" within the Fifth Amendment are
directed at a straw man. Plainly it is petitioners and not the
court of appeals who have "confused the fact that all 'persons'
such as the Haitian petitioners are covered by the Fifth
Amendment, with the extent of the reach of their constitutional
protection in differing contexts" (Pet. Br. 27).
/
/ Petitioners' claim (Br. 28-29) that the cases we rely on do
not establish that they are not persons within the meaning of the
Fifth Amendment is thus simply beside the point. Conversely, the
cases on which petitioners rely to establish the legal status of
excludable aliens as persons within the contemplation of the law
(Pet. Br. 25-27) are inapposite. None of these cases addresses
the rights of excludable aliens to challenge on Fifth Amendment
grounds the decisions of the Legislative and Executive Branches
respecting their admission to the United States.
For instance, Plyler V. Doe, 457 U.S. 202 (1982), addresses
the rights of persons who have entered the United States --
albeit illegally -- with regard to discriminatory action by
states, which do not have constitutional responsibility for
immigration matters. The very passage cited by petitioners (Br.
25) is carefully addressed to persons "presen[t] in this country"
and rests directly upon the distinction recognized in Mezei
between unadmitted aliens and those who are present, even
illegally, in the United States. Id. at 210. Petitioners'
reliance on Mathews V. Diaz, 426 U.S. 67, 77 (1975), a case
addressed to rights of resident aliens in a context wholly
unrelated to administration of the immigration laws, is misplaced
for the same reason. As the court of appeals noted (J.A. 318-320
& n.22), Wong Wing V. United States, 163 U.S. 228 (1896),
likewise addresses the rights of a resident alien regarding
criminal prosecution. That case explicitly distinguishes between
the exclusion and criminal prosecution contexts in holding
constitutional protection available to aliens in the latter
situation. 163 U.S. at 237. Yick Wo V. Hopkins, 118 U.S. 356
(1886), again addresses the rights of resident aliens, and is
unrelated to enforcement of the immigration laws.
(Continued)
32
3. In another effort to parry the thrust of the entry
doctrine cases petitioners assert that "even congressional and
presidential decisions concerning the admission of aliens are
subject to constitutional scrutiny" (Pet. Br. 36). Again
petitioners serve up a smorgasboard of authorities directed at
other issues while adducing none that is pertinent here. See
also page 31 note
, supra.
Petitioners' reliance on The Chinese Exclusion Case is
misplaced. Although the Court there indicated that the
"sovereign power[ to "admit subjects of other nations to
citizenship" was subject to any restraint imposed by "the
Constitution itself" (130 U.S. 604), it concluded that the
Constitution imposes no restraint upon the authority of Congress
Russian Volunteer Fleet V. United States, 282 U.S. 481
(1931), addresses only the obligation of the United States to pay
just compensation to an alien corporation when it takes property
located within the United States; in any event, the Court
ultimately concluded in that case that there was statutory
authorization for payment of just compensation. See id. at 489-
492. Reid V. Covert, 354 U.S. 1 (1957), addresses only the
rights of United States citizens. Finally, Balzac V. Porto Rico,
258 U.S. 298 (1922), considers only whether the Sixth Amendment
right to jury trial applies in Puerto Rico. Applying the
doctrine of the Insular cases (Downes V. Bidwell, 182 U.S. 244
(1901), Hawaii V. Manchiki, 190 U.S. 197 (1903), and Dorr V.
United States, 195 U.S. 138 (1904)), the Court determined that
Puerto Rico did not have the status of an incorporated territory
and that the Sixth Amendment jury trial guarantee accordingly was
unavailable to a criminal defendant. Petitioners quote out of
context (Br. 26) the Court's statement that the "Constitution of
the United States is in force * * * whenever and wherever the
sovereign power of that government is exerted. They ignore,
however, the holding of Balzac, which undermines their
position. They also neglect the Court's reconciliation of its
holding with its acknowledgment that the Constitution "applies"
in Puerto Rico (258 U.S. at 312):
The Constitution, however, contains grants of
power, and limitations which, in the nature of
things, are not always and everywhere appli-
cable, and the real issue in the Insular Cases
was not whether the Constitution extended to
the Philipines or Porto Rico when we went
there, but which ones of its provisions were
applicable by way of limitation upon the
exercise of executive and legislative power
* * *
The entry doctrine is completely consistent with this view of the
Constitution. In the end, petitioners are unable to cite any
decision of any court that recognizes rights such as they claim
in a situation comparable to this case. See Resp. Br. in Opp.
20-21; compare Pet. Br. 26 n.31.
33
to exclude a class of aliens based on their national origin, and
that the determination of the Legislative Branch as to the
"necessity" of any such classification is "conclusive upon the
judiciary" (id. at 606). Petitioners' citation of Hampton V. Mow
Sun Wong, 426 U.S. 88, 101-103 (1976), is likewise unavailing.
Although the Court referred in passing to the availability of
"narrow judicial review" with respect to the exercise of "the
power over aliens" (id. at 101-102 n.21), the case was addressed
only to the rights of resident aliens with regard to administra-
tively imposed citizenship requirements for federal employment.
In this context, wholly unrelated to admission or immigration,
the Court merely held that "federal power over aliens" is not "so
plenary that any agent of the National Government may arbitrarily
subject all resident aliens to different substantive rules from
those applied to citizens" (id. at 101).
/
Petitioners also rely on the following language in Fiallo V.
Bell, 430 U.S. 787, 793 n.5 (1977): "Our cases reflect accept-
ance of a limited judicial responsibility under the Constitution
even with respect to the power of Congress to regulate the
admission and exclusion of aliens * * *." This statement is
unaccompanied by any citation of supporting precedent. In any
event, read in context Fiallo suggests only that classifications
respecting aliens are subject to judicial review -- albeit of a
highly deferential nature -- when those classifications directly
affect the rights of citizens or resident aliens who are proper
parties to the litigation.
Fiallo involved a Fifth Amendment equal protection challenge
to provisions of the immigration laws that extended special
/ Korematsu V. United States, 323 U.S. 214 (1944), and the
other cases cited by petitioners (Br. 36) are inapposite here as
well, for they address only the rights of United States citizens
and have no bearing on the special question of the extrastatutory
rights of excludable aliens in the admission and parole con-
texts. In any event, as we have explained (pages 29-31) the
entry doctrine does not rest on any view that excludable aliens
are not persons, or that the Constitution simply does not apply
to such persons.
34
preference immigration status to an illegitimate child of a
female United States citizen or lawful permanent resident alien,
but denied a similar preference to an illegitimate child of a
citizen or resident father. Applying the exceedingly deferential
standard of review announced in Kleindeinst V. Mandel, supra, the
Court concluded that the legislative classification should be
sustained because it was based on a "'facially legitimate and
bona fide'" policy decision by Congress, as to which the courts
possess "no * * * authority to substitute [their own] political
judgment" (430 U.S. at 794, quoting 408 U.S. at 770; 430 U.S. at
798). The Court remarked that "it is not the judicial role in
cases of this sort to probe and test the justifications for the
legislative decision" (1d. at 799 (footnote omitted)), and it
refused to reweigh competing policy considerations or assess the
comparative merit of alternative policies, stating that the
"decision not to accord preferential status to this particular
class of aliens * * * remains one 'solely for the responsibility
of the Congress and wholly outside the power of this Court to
control'" (430 U.S. at 799, quoting Harisiades V. Shaughnessy,
342 U.S. 580, 597 (1952) (Frankfurter, J., concurring)).
To be sure, in Fiallo the Court turned aside the govern-
ment's threshold suggestion that the challenged statutory
provisions were wholly exempt from judicial scrutiny. 430 U.S.
at 793 n.5. But Fiallo itself presented a claim of discrimina-
tion allegedly "infring[ing] upon the due process rights of
citizens as legal permanent residents" and "implicat[ing] 'the
fundamental constitutional interests of United States citizens
and permanent residents'" (id. at 794, quoting Appellant's Br. at
53-54; see also 430 U.S. at 798). Indeed, the plaintiffs in
Fiallo included citizens or resident aliens who sought to invoke
a preference status on behalf of their children or parents,
notwithstanding the illegitimate status of the relationship
involved. 430 U.S. at 790. Thus the case did not involve only
the rights of unadmitted aliens.
35
Accordingly, in Fiallo the Court simply had "no occasion to
consider * # * whether there may be actions of the Congress with
respect to aliens that are so essentially political in character
as to be nonjusticiable" (430 U.S. at 790). / Nothing in
Fiallo which emphatically refused to depart from past
precedents governing the proper relationship of the courts to the
political branches of government respecting admission-related
determinations and classifications (see 1d. at 792-793 n.4) --
indicates that the Court has abandoned or qualified the entry
doctrine. Because the claim presented in this case entails only
the alleged violation of the due process rights of excludable
aliens, Fiallo provides no support for petitioners' contentions.
B. The Entry Doctrine Bars Petitioners' Challenge to the
Denial of Parole Pending Exclusion Proceedings
1. Petitioners contend (Br. 31-35) that the principles of
the entry doctrine do not, in any event, govern this case because
they invoke the Fifth Amendment not with respect to their
applications for admission but, instead, with respect to their
applications for parole from detention pending a determination of
/ This view of the case is corroborated by the Court's reliance
(430 U.S. at 794-795) on Kleindeinst V. Mandel. The Fiallo
plaintiffs had argued that because the rights of United States
citizens or residents were implicated, the Court should apply a
less deferential standard of review than that employed in
Mandel. The Court responded that Mandel also had concerned an
alleged infringement of citizens' rights (under the First Amend-
ment). 430 U.S. at 794. Of course Mandel itself makes clear
that excludable aliens "personally" enjoy no constitutional
rights respecting entry to the United States (408 U.S. at 762).
It was only because the Court concluded that the citizen-
plaintiffs there had asserted a non-frivolous claim that their
own First Amendment rights were infringed by the alien plain-
tiff's exclusion (id. at 762-765) that the Court proceeded to
consider whether "a facially legitimate and bona fide" (id. at
769, 770) justification had been adduced for the aliens'
exclusion (compare id. at 762 with id. at 765-770). Indeed, even
in this context, the Court reserved rather than rejected the
government's contention that the justification for excluding the
alien was wholly beyond judicial review. Id. at 769, 770.
Thus the Fiallo Court's detailed and explicit reliance on
Mandel, coupled with its unexplained reference to prior cases
said to establish the availability of limited judicial review in
the admission's context, strongly suggests that the narrow right
of judicial review recognized does not extend beyond cases where
the constitutional rights of United States citizens or residents
are implicated.
36
admissibility. The court of appeals correctly rejected this
contention (J.A. 311-317).
a. The statutory command to detain "for further inquiry"
every alien not "clearly and beyond a doubt entitled to land" (8
U.S.C. 1225(b)), which implements the Nation's plenary authority
to exclude aliens, and the statutory grant to the Attorney
General of discretionary authority to parole unadmitted aliens
into the United States "for emergent reasons or for reasons
deemed strictly in the public interest" (8 U.S.C. 1182(d) (5) (A)),
are inextricably interrelated both in legal and practical
terms. The availability of parole in appropriate cases "is
simply a device through which needless confinement is avoided
while administrative proceedings are conducted." Leng May Ma V.
Barber, 357 U.S. at 190. Where appropriate, parole thus serves,
in practical effect, to moderate the rigor of the rule that
freely permits detention of unadmitted aliens pending exclusion
proceedings. The discretionary authority to grant or withhold
parole is, moreover, inextricably bound up with the inherent
sovereign authority to exclude and detain aliens. Indeed, the
Attorney General's discretionary parole authority may be
exercised only with respect to an "alien applying for admission
to the United States" (8 U.S.C. 1182(d) (5) (A) ) and cannot
realistically be viewed in isolation from the authority to
exclude and detain, of which it is but an outgrowth.
/
/ All of the petitioners are, by definition of their certified
class, excludable aliens "who are applying for entry into the
United States" (J.A. 176). We note that the only basis for
admission suggested by petitioners during the course of this
litigation is their desire to be granted asylum in this
country. If the Attorney General determines that an alien is a
"refugee" within the meaning of 8 U.S.C. 1101 (a) (42) (A), the
alien may be granted asylum, released from custody and allowed to
be physically at large within the United States. An application
for asylum will be treated as a request for withholding of
exclusion under 8 U.S.C. 1253(h) and will cause the exclusion
proceeding to be adjourned. See 8 C.F.R. 208.3(b); 208.10(b).
Indeed, an exclusion proceeding that has already been concluded
may be reopened on the basis of a request for asylum. 8 C.F.R.
208.11.
37
Petitioners, however, seize upon the established rule that
parole from detention pending a determination of admissibility
does not effect an entry into the United States in contemplation
of law, see Leng May Ma, 357 U.S. at 190, and argue that judicial
review of parole decisions on extrastatutory grounds accordingly
would not "interfere with the power of Congress and the President
to determine admission questions" (Pet. Br. 32). While we agree
with petitioners' predicate, it does not support their sophistic
conclusion. Of course granting parole would not deprive the
Attorney General of the legal authority to revoke parole. But
the cases that hold that a paroled alien acquires no legal rights
respecting admission above and beyond one who stands (in fact as
well as in law) outside the United States plainly do not suggest
that such a person has extrastatutory rights to parole.
More to the point, the practical effect of a de facto
admission through parole is not appreciably different from that
of a formal legal admission. As the court of appeals observed
(J.A. 316), parole of an alien into the United States "permit[s]
the physical entry of the alien into the midst of our society and
implicates many of the same considerations -- such as employment
and national security concerns - that justify restrictions on
admission." / And as the court of appeals further noted,
although a grant of parole is "subject to certain restrictions
/ We are somewhat mystified by petitioners' unexplained
assertion that "[t]he word 'parole' has two entirely separate
meanings in immigration law,' suggesting that this case involves
only "temporary parole" as distinguished from some other supposed
kind of non-temporary parole (Pet. Br. 6 n.10; see also id. at 43
n.51). It may be that petitioners allude only to the duration of
the parole involved. Alternatively petitioners may employ the
label temporary parole to distinguish parole from the admission
of refugees who are, but for their refugee status, ineligible for
admission. See page note , supra. Admission of aliens
determined to be eligible for asylum is now governed by 8 U.S.C.
1157-1159 and is not properly regarded as parole. Although it
appears that the Attorney General's parole authority was, prior
to 1980, employed as an additional means of accommodating
refugees (see INS V. Stevic, No. 82-973 (June 5, 1984), slip op.
7), Section 203(f) of the Refugee Act of 1980, Pub. L. 96-212, 94
Stat. 107, added the provisions now found in 8 U.S.C.
1182(d) (5) (R) that strictly limit the use of parole as a
substitute for admission of an alien as a refugee.
38
and is theoretically of a short-term character," the "reality can
be quite different," for "an alien with a skilled attorney can
delay the exclusion process for years" (J.A. 315-316 & n.20).
More telling still, paroled "aliens who choose to abscond face
only a minimal risk of apprehension" (id. at 316 n.20). Thus,
the availability of parole may have a corrosive effect on the
government's plenary authority to exclude aliens (id. at 315 n.
18). This effect is especially debilitating of the government's
lawful authority because allowance of parole may act as an
inducement to persons ineligible for admission to seek to enter
the United States. In fact, both the district court and the
Eleventh Circuit have concluded that, prior to the 1981 shift in
the government's parole and detention policy, precisely this
phenomenon was operating with respect to Haitians seeking entry
to this country (J.A. 119 n.17, quoting Haitian Refugee Center,
Inc. V. Smith, 676 F.2d 1023, 1029 n.11 (1982)). /
Accordingly, it is wholly unrealistic to suggest that the
exercise of the Attorney General's parole authority may be
subjected to extrastatutory constraints, inapplicable to the
/ Petitioners repeatedly assert (Br. 17-18, 22, 29-30) that
the government had no legitimate basis for concern that their
parole would adversely affect national security or that they were
likely to abscond if released on parole. Petitioners misread the
record in this regard and, in any event, have missed the critical
point. It is true that the INS had not identified any reason to
believe that Haitian aliens were more likely to abscond than
other excludable aliens. But there is no doubt that the govern-
ment did have reason to fear that paroled Haitians, like other
paroled aliens, might abscond and become difficult or impossible
to locate. For instance, paroled Haitians frequently failed to
appear as required at INS hearings (Tr. 2398-2399). See also GAO
Rep. 15 & n.4 (Haitian aliens failed to appear at more than 300
of the 500 cases scheduled for hearing between March 5, and
May 28, 1981; 2,429 out of 3,311 appearances missed between
February 18, and July 16, 1982).
Petitioners also misapprehend the nature of the national
security concern posed by parole of large numbers of unadmitted
aliens. The point is not that any one individual was a security
risk. Rather, it was the specter of loss of effective control of
the Nation's borders created by the accumulation of masses of
unadmitted aliens presumptively ineligible for admission, coupled
with the former policy of routine parole, that created an
institutional threat to national well-being. See pages 40-41,
infra. As the court of appeals observed (J.A. 314 n.16), "[a]ny
broad conception of "national security" must surely include the
ability to regulate entry into a country * * #."
39
admission process itself, without severely undermining the
government's plenary authority to control entry of aliens. As
Judge Learned Hand explained in Mezei, anticipating this Court's
ruling, temporary parole "does give [an excludable alien] a
privilege of entry" which, while "hedged about in various ways"
enables him to "mingle with the mass of citizens." United States
ex rel. Mezei V. Shaughnessy, 195 F.2d 964, 970-971 (2d Cir.
1952) (dissenting opinion). In short, if the entry doctrine were
inapplicable to parole determinations, as petitioners submit, it
would assuredly have the impermissible effect of displacing the
properly "political decisions as to whom we will permit, even
temporarily, to join our society" (Pet. Br. 35). / This is
especially so where, as here, the President and Attorney General
decided to implement a new restrictive parole policy precisely
because they had determined that such a policy was necessary to
maintain the efficacy of the Nation's sovereign authority to
exclude aliens. See pages 3-5, supra. /
b. In any event, this Court has expressly recognized that
"detention or temporary confinement" is "part of the means
necessary to give effect to the provisions for the exclusion or
expulsion of aliens" (Wong Wing V. United States, 163 U.S. 228,
235 (1896)). "Proceedings to exclude or expel would be in vain
if those accused could not be held in custody pending the inquiry
into their true character, and while arrangements were being made
for their deportation" (1bid.). See also Carlson V. Landon, 342
U.S. 524, 538 (1952) ("Detention is necessarily a part of this
/ Denial of parole is readily distinguishable from the
hypothetical measures that troubled Justice Jackson in Mezei --
"eject[ing an alien] bodily into the sea or [setting] him adrift
in a rowboat" (345 U.S. at 226) (dissenting opinion). In
contrast to these unlikely hypotheticals, simple confinement of
an unadmitted alien pending determination of admissability is
"ancillary to exclusion" (id. at 227).
/ As the court of appeals pointedly observed (J.A. 322-323), if
an excludable alien could challenge a decision of the political
branches to deny him parole, a hostile foreign leader could
manipulate our immigration system in a manner that "would
ultimately result in our losing control over our borders."
40
deportation procedure. Otherwise aliens arrested for deportation
would have the opportunity to hurt the United States during the
pendency of deportation proceedings"); Palma V. Verdeyen, 676
F.2d 100, 104 (4th Cir. 1982).
Moreover, as the court of appeals observed (J.A. 311-313),
this Court's decision in Mezei is directly on point. There, the
Court held that the Fifth Amendment afforded an excludable alien
no right to be allowed temporary physical entry into this
country. The issue presented was "whether the Attorney General's
continued exclusion of respondent without a hearing amounts to an
unlawful detention, so that courts may admit him temporarily to
the United States on bond until arrangements are made for his
departure abroad" (345 U.S. at 207). Because Mezei did not
challenge the government's power to exclude him but sought only
release pending implementation of the exclusion order, this
Court's decision, as the court of appeals recognized, "did not
concern admission or exclusion per se, but the rights of an alien
when challenging his continued detention pending the enforcement
of an exclusion order that had been entered against him" (J.A.
312). It follows, then, that the holding of Mezei denying
extrastatutory rights to excludable aliens is not restricted to
frontal challenges to denial of the right to enter. Rather,
under Mezei the entry doctrine also forecloses efforts to
litigate the propriety of denial of interim parole.
2. Petitioners also argue (Br. 35) that even if parole
determinations are conceded in the abstract to be sufficiently
related to the political branches' unreviewable authority over
admission itself, extrastatutory judicial review of the former
may not be foreclosed under the entry doctrine unless it is
demonstrated that the authority to exercise parole discretion in
a discriminatory manner is equally initimately bound up with the
unreviewable political concerns entrusted exclusively to the
Legislative and Executive Branches. Petitioners' argument is
fallacious: it would effectively circumvent the entry doctrine
41
by requiring any nationality-based distinctions among classes of
aliens employed by the Attorney General in exercising his parole
authority to pass judicial scrutiny in order to demonstrate that
no such scrutiny is warranted.
Furthermore, petitioners' formulation is inconsistent with
Mezei itself, which teaches that the entry doctrine extends to
procedural claims as well as foreclosing any claims of a substan-
tive right to enter. Petitioners press an equal protection claim
that they portray as analytically distinct from any assertion of
a substantive right to parole. Granting parole to class members,
they suggest, would merely be a remedy for a kind of collateral
wrong they have allegedly suffered: discrimination in the ad-
ministration of parole. But Mezei, too, arguably had a discrete
constitutional claim (sounding in procedural due process) that
could have been distinguished analytically from any assertion of
a substantive right to parole - i.e., that he had been excluded
without a hearing in violation of due process and accordingly
should be judicially paroled (345 U.S. at 207). Nevertheless, in
extending the entry doctrine to bar even Mezei's claim for
parole, the Court in Mezei did not deem it necessary to determine
that the reasons for denying parole without a hearing were
sufficiently compelling and sufficiently related to sovereign
prerogatives to preclude judicial review. Compare 345 U.S. at
217-218 (Black, J., dissenting); id. at 224-228 & n.9 (Jackson,
J., dissenting). Instead, the Court simply remarked that because
Mezei was an "entrant alien," the "Attorney General [could]
lawfully exclude [him] without a hearing as authorized by
emergency regulations promulgated under the Passport Act." (id.
at 214-215).
Thus Mezei forecloses petitioners' contention that the
government must justify the withholding of extrastatutory
judicial review of the particular claim that an alien seeks to
raise in challenging the denial of parole. Indeed, as Justice
42
Jackson's dissent makes clear (345 U.S. at 224-228), because
Mezei could have been afforded (at the government's election) a
hearing, rather than parole, as a remedy, his claim was not
intimately bound up with the power to exclude; petitioners' due
process claim, by contrast, effectively asserts a substantive
right of entry. Justice Jackson, of course, agreed that
unadmitted aliens have no such right. Id. at 222-224.
The most compelling reason for foregoing the extra inquiry
proposed by petitioners lies in the nature of the remedy they
seek based on their claim of unlawful discrimination: release
from detention. Notwithstanding the arguably discrete character
of the denial of procedural rights challenged in Mezei, the fact
remained that to admit Mezei as a sanction for that denial would
have "nullifie[d] the very purpose of the exclusion proceeding,"
impermissibly negating the decision of the political branches
that parole should not be available to Mezei. 345 U.S. at 216.
The situation regarding petitioners' claim is not essentially
different. Notwithstanding the claimed discrimination, extension
of parole to petitioners as a remedy is impermissible because the
courts simply lack authority to admit excludable aliens to the
United States on terms inconsistent with the statutory delegation
of authority to the Attorney General. Cf. INS V. Miranda, 459
U.S. 14, 19 (1982); INS V. Hibi, 414 U.S. 5 (1973). / Under
the entry doctrine, the bar to judicial review importing
extrastatutory criteria lies not in the nature of the right
/ Contrary to petitioners' suggestion (Br. 24 n.28), even the
strong policy against discrimination reflected in many aspects of
our law does not invariably override powerful countervailing
policies that would limit the availability of remedies to persons
claiming to have suffered unconstitutional discrimination. See,
e.g., Chappell V. Wallace, No. 82-167 (June 13, 1983).
43
asserted, but in the unavailability of the remedies that they
seek.
/
3. Petitioners attempt (Br. 40-43) to distinguish Mezei on
a variety of narrow factual grounds. These efforts are unper-
suasive.
a. Petitioners contend (Br. 40-43) that this case is
distinguishable from Mezei because there the excludable alien
sought parole after he was already subject to a final order of
exclusion, whereas here the excludable Haitian aliens who
challenge their detention have not yet been issued final
exclusion orders and are being detained pending a determination
of admissibility. But petitioners do not offer any reason why
this distinction should alter the outcome. As we have already
explained (pages 35-40), the power to detain unadmitted aliens
pending a determination of admissibility is a necessary adjunct
of the plenary power to exclude those who will ultimately be
found inadmissible under the applicable statutory standards. If
anything, the factual comparison between this case and Mezei
suggests that Mezei's claim was more compelling than that of
petitioners. Mezei was already under a permanent exclusion order
and was being detained preparatory to deportation, but no other
country was willing to admit him. The detention that he
challenged thus was indefinite in duration. 345 U.S. at 208-
209. By contrast, petitioners are merely being detained pending
the completion of their exclusion hearings--and resolution of
/
The inappropriateness of judicially-mandated parole as a
remedy for discrimination in exercise of parole authority is
especially clear on the record of the present case. Petitioners'
claim in this Court is in substantial measure that field-level
INS personnel administered a neutral national policy intended
sharply to restrict the availability of parole to alien entrants
of all nationalities in an unauthorizedly underinclusive fashion,
with the result that Haitians were differentially affected. See
pages 18-19, supra. That some excludable aliens may have been
improperly allowed parole does not justify refusal to enforce
against others the deliberately established Executive policy
restricting parole. See Heckler V. Mathews, No. 82-1050 (Mar. 5,
1984), slip op. 9-10.
44
asylum claims that they have themselves made--and there will be
no impediment to their return to their country of origin upon
completion of those proceedings in those instances where a final
order of exclusion is entered. On the other hand, any class
members that demonstrate admissibility will in due course be
admitted. No legally cognizable hardship arises from the
requirement that petitioners be denied entry to the United States
until their right thereto has been properly established in
appropriate proceedings.
b. Petitioners also seek (Br. 43) to distinguish Mezei on
the ground that no statutory authority then existed for granting
parole to an excludable alien (see 345 U.S. at 216 nn.14-15),
whereas the Attorney General has now been vested with parole
authority under 8 U.S.C. 1182 (d) (5) (A). Again, this is a
distinction without a difference. Petitioners do not explain how
the existence of statutory parole authority could affect the
constitutional analysis embodied in Mezei. To be sure, the Court
in Meze1 commented that the then newly enacted 8 U.S.C.
1182(d) (5) was "not now" before it. 345 U.S. at 216 n.14. But
this comment merely explained the Court's statement that
statutory authority for Mezei's parole was lacking (id. at 216)
and provides context for its holding that Mezei's detention did
not deprive him of "any statutory or constitutional right" (id.
at 215; emphasis added). The most that can be said in this
respect is that Mezei leaves open the question whether the
Attorney General's exercise of his statutory parole discretion
may be reviewed under some nonconstitutional abuse of discretion
standard or for consistency with the applicable statutory
policy. / The availability of parole pursuant to statute
plainly affords no reason to question the rule that Congress has
/ Of course, the court below held that such nonconstitutional
review is available. See pages 13-14, 17-18, supra.
45
complete authority to establish procedures and standards
governing entry and parole of aliens into the United States.
c. Petitioners also appear to suggest (Br. 42 & n.49, 46)
that Mezei is distinguishable as a Cold War relic involving
national security concerns and that the entry doctrine is
similarly limited in reach. This Court rejected a virtually
identical contention in Fiallo V. Bell, 430 U.S. at 796. There
the plaintiffs sought to distinguish the Court's "prior
immigration cases as involving foreign policy matters and
congressional choices to exclude or expel groups of aliens that
were 'specifically and clearly perceived to pose a grave threat
to the national security' *** 'or to the general welfare of
this country. The Court pointedly disagreed in terms that
foreclose petitioners' arguments here (430 U.S. at 796):
We find no indication in our prior cases that
the scope of judicial review is a function of
the nature of the policy choice at issue.
In any event, as we have discussed (pages 37-39) this case,
too, implicates the authority of the government to act regarding
matters vital to the general welfare of the country and its
security. The Court has long recognized that the authority of
the political branches to control our borders and determine who
shall enter into our midst is a fundamental attribute of
sovereignty and that the existence of this authority does not
depend on any judicial appraisal of the gravity of the situation
confronting the Nation. The Court explained in The Chinese
Exclusion Case, 130 U.S. at 606, that the exclusion power of the
political branches is appropriately addressed to "aggression and
encroachment" from abroad, whether in the form of "the foreign
nation acting in its national character," as in the event of war,
or simply in the form of "its people crowding in upon us." The
Court added that "the same authority which adjudges the necessity
[of exercise of exclusion authority] in one case must also
determine it in the other. In both cases its determination is
46
conclusive upon the judiciary" (ibid.; emphasis added). See also
Harisiades V. Shaughnessy, 342 U.S. at 588-590.
d. Ultimately, perhaps dispairing of distinguishing this
Court's pertinent decisions, petitioners ask the Court to
overrule these authorities (Pet. Br. 23, 40, 44-46). In support
of this venturesome request petitioners intimate (Br. 45) that
"recent developments have eviscerated Mezei's rationale." / But
as we have demonstrated (Br. 27-29), Mezei marks no departure
from the consistent thread of this Court's teachings regarding
the protections afforded to unadmitted aliens. Moreover, the
"assumptions" that in petitioners' view underlie Mezei and that
are further said no longer to be valid in fact either retain
undiminished vitality or else never formed any part of the entry
doctrine.
Contrary to petitioners' assertions, the entry doctrine does
not rest on the simplistic notion that any class of governmental
action is exempt from otherwise applicable constitutional
restraints, nor on any doctrine that excludable aliens are not
persons in the eyes of the law, nor on any doctrine respecting
the geographical reach of the Constitution's provisions.
Instead, the rule rests firmly on principles of sovereignty, the
doctrine of separation of powers, and the conclusion that the
only content that may be assigned to the concept of due process
in the context of regulating the entrance of aliens into this
Nation is that which Congress provides. Thus, as we have
explained (pages 27-37), the unreviewability under the Fifth
/
Petitioners also seek to discredit Mezei by asserting,
incorrectly, that a plurality of the Court subsequently "strongly
suggested disapproval of Mezei's extreme position when it stated
that the decision created an 'intolerable situation" (Pet. Br.
45, citing Trop V. Dulles, 356 U.S. 86, 102 n.36 (1958)).
Examination of that plurality opinion, however, reveals that the
reference to an "intolerable situation" was merely intended to
describe the unenviable position in which Mezei found himself
when he was determined to be excludable but remained in
indefinite detention because no other country would admit him.
47
Amendment of exclusion decisions affecting only the rights of
unadmitted aliens remains the law today.
Petitioners' argument, at bottom, asks the Court simply to
discard its past precedents in favor of a new doctrine
petitioners believe to comport better with desirable policy.
This the Court has refused to do. Rather, its decisions "confirm
th[e] view" that "an alien seeking initial admission to the
United States * * * has no constitutional rights regarding his
application" (Landon V. Plasencia, 459 U.S. at 32). Indeed, the
Court has at least twice in recent times declined to reconsider
the doctrines on which we rely. Fiallo V. Bell, 430 U.S. at 792-
793 & n.4; Kleindienst V. Mandel, 408 U.S. at 765-767. On each
occasion the Court adopted Justice Frankfurter's exposition of
the reasons why stare decisis applies with unique force in this
context. Writing on a closely related issue in Galvan V. Press,
347 U.S. 522, 530-531 (1954), Justice Frankfurter stated that
"the slate is not clean. As to the power of Congress under
review there is not merely a 'page of history,' but a whole
volume" (ibid.; citation omitted). Justice Frankfurter stated
that the doctrine of exclusive political control over matters
involving entry of aliens "has become about as firmly embedded in
the legislative and judicial tissues of our body politic as any
aspect of our government," and added: "We are not prepared to
deem ourselves wiser or more sensitive to human rights than our
predecessors" (ibid.). Petitioners have failed to offer a
sufficient reason why the Court should suddenly abandon this
well-settled precept of immigration law.
/
/
Petitioners' reliance on Justice Jackson's dissent in Mezei,
said to articulate views "more consonant with modern constitutional
doctrine" (Pet. Br. 46), is in any event factually unwarranted.
The key to Justice Jackson's disapproval of the result in Mezei
was that there the excludable alien was, because of the
impossibility of effectuating deportation, effectively detained
indefinitely. 345 U.S. at 227. Here, unlike Mezei, detention is
not "indefinite" or an "end in itself"; rather it is "ancillary
to exclusion," and "can be justified as a step in the process of
turning [petitioners] back to the country whence [they] came" (if
(Continued)
48
C.
Because Nationality Distinctions Are Inherently
Permissible In The Formulation And Application Of The
Immigration Laws, Restriction Of Judicial Review Under
The Entry Doctrine Is Especially Appropriate Here
1. In this case petitioners seek to press an equal protec-
tion claim; they assert (Br. 30, 35, 42-43) that the gravamen of
their claim takes it outside the reach of the entry doctrine. We
have already explained (Br. 42-44) that the nature of the claim
presented here provides no basis for distinguishing this Court's
precedents and cannot serve to reconcile the relief demanded --
judicially directed release of unadmitted aliens into the United
States -- with the plenary authority of Congress and the
Executive to determine whether an alien should be allowed to
enter this country. But an equally compelling reason for
rejecting petitioners' contentions lies in the unique footing
upon which nationality distinctions applicable to immigration and
naturalization matters stand. Significantly, even outside the
present context -- admission and de facto admission decisions
affecting only excludable aliens, where notions of sovereignty
and separation of powers dictate maximum judicial deference --
such nationality distinctions are not subject to the standards
that would ordinarily govern scrutiny of nationality distinctions
under the Fourteenth Amendment Equal Protection Clause.
a. To be sure, this Court has held that the Fifth
Amendment's Due Process Clause includes an equal protection
component. See Bolling V. Sharpe, 347 U.S. 497 (1954). In some
contexts, this component requires an analysis similar to that
conducted in cases involving the Equal Protection Clause of the
Fourteenth Amendment. See, e.g., Buckley V. Valeo, 424 U.S. 1,
93 (1976). But the Court has recognized that
the two protections are not always coexten-
sive. Not only does the language of the two
they are ultimately denied admission). Ibid. Moreover,
petitioners, unlike Mezei, cannot conceivably be said to have
been "entrapped into leaving the other shore by reliance on a
visa which the Attorney General refuses to honor" (ibid.). See
also page 39 note
, and pages 41-42, supra.
49
Amendments differ, but more importantly, there
may be overriding national interests which
justify selective federal legislation that
would be unacceptable for an individual State.
Hampton V. Mow Sun Wong, 426 U.S. at 100 (footnote omitted).
Specifically, "the Fourteenth Amendment's limits on state powers
are substantially different from the constitutional provisions
applicable to the federal power over immigration and
naturalization.' Mathews V. Diaz, 426 U.S. 67, 87 (1976).
Indeed, in the immigration context, the government "regularly
makes rules that would be unacceptable if applied to citizens"
(id. at 80). Among these are the rules governing exclusion of
aliens. Ibid.
Even aliens who have been admitted to the United States do
not enjoy protection against official federal "discrimination
within the class of aliens" comparable to that provided by the
Fourteenth Amendment (Diaz, 426 U.S. at 80). Because decisions
respecting relations between the United States and aliens "may
implicate our relations with foreign powers," and because. "a wide
variety of classifications must be defined in light of changing
political and economic circumstances," the Court explained in
Diaz that a "rule of constitutional law that would inhibit the
flexibility of the political branches of government to respond to
changing world conditions should be adopted only with the
greatest caution" (426 U.S. at 81). These matters, the Court
acknowledged, are "frequently of a character more appropriate to
either the Legislative or the Executive than to the Judiciary."
Ibid.
In Diaz, the Court upheld the restriction of Medicare
eligibility to aliens who had been admitted for permanent
residence and had resided in the United States for at least five
years. The Court determined that that neither requirement was
"wholly irrational." 426 U.S. at 83. Diaz was followed by
Fiallo V. Bell, supra, which rejected an equal protection attack
on sex and illegitimacy classifications in the immigration law.
50
The Court found that the classifications were "facially
legitimate and bona fide," declining the plaintiffs' invitation
to weigh the policy justifications for the classifications or to
consider the availability of alternatives (430 U.S. at 794, 798-
799). In short, classifications of this kind -- presumptively
suspect in other contexts -- are permissible as to aliens, even
outside the admission context, so long as they are not "wholly
irrational" (Diaz, 426 U.S. at 83).
b. Because the subject matter of immigration law
necessarily implicates the relationship of the United States with
aliens and foreign countries, nationality-based classifications
are precisely the kind of classifications respecting aliens that
are entirely legitimate. Indeed, it is difficult to imagine that
any sovereign nation would disable itself from taking nationality
into account in dealing with aliens or in promulgating its
immigration code.
In the immigration field, Congress has repeatedly drawn
distinctions on the basis of national origin. Indeed, Congress
historically imposed a nationality-based quota system on the
issuance of immigrant visas. Prior to 1965, each foreign country
had a specified immigration quota. Compare 8 U.S.C. (1964 ed.)
1151 (nationality-based quota system) with 8 U.S.C. 1151 (1982)
(worldwide numerical limitations). And it could not seriously be
suggested that the immigration quota system was unlawful, or even
that the courts had any authority to assess the basis for these
classifications. The Attorney General also has long drawn dis-
tinctions among aliens on the basis of nationality, and Congress
has not disturbed this administrative practice. See, e.g., Saxbe
51
V. Bustos, 419 U.S. 65 (1974). / The courts have consistently
recognized the validity of these classifications.
/
Nationality-based classifications among aliens in the
framing and implementation of the immigration laws typically
arise from deliberate decisions of our Nation's political
branches made in response to the actions of other nations that
affect our vital interests or otherwise engage our sovereign
prerogatives. For instance, the Court in Diaz observed that the
plaintiffs, Cuban parolees, were "but one of several categories
of aliens who have been admitted in order to make a humane
response to a natural catastrophe or an international political
situation" under a legal regime that permits "flexibility in
policy choices" (426 U.S. at 81). This latitude must exist
whether the actions determined to be necessary by competent
political authority enlarge or restrict the privileges of
aliens. It can scarcely be doubted that the various
administrative initiatives taken with respect to Iranian
nationals in response to the occupation of this Nation's embassy
in Teheran (see page 51 note
, supra) served the most
/ See also 8 C.F.R. 101.1 (presumption of lawful admission for
certain national groups); 8 C.F.R. 212.1 (documentary
requirements for nonimmigrants of particular nationalities);
8 C.F.R. 231 (arrival-departure manifests for passengers from
particular countries); 8 C.F.R. 242.2(e) (nationals of specified
countries entitled to special privilege of communication with
diplomatic officers); 8 C.F.R. 252.1 (relaxation of inspection
requirements for certain British and Canadian crewmen).
/ See, e.g., Malek-Marzban V. INS, 653 F.2d 113 (4th Cir.
1981) (amendment to rule on voluntary departure to reduce the
time allowed for Iranian nationals); Yassini V. Crosland, 618
F.2d 1356 (9th Cir. 1980) (INS directive revoking deferred
departure dates for Iranian nationals); Narenji V. Civiletti,
supra (regulation requiring Iranian students to report on their
current status) ; Noel V. Chapman, 508 F.2d 1023, 1028 (2d Cir.),
cert. denied, 423 U.S. 824 (1975) (alien relatives of resident
aliens from Eastern Hemisphere given preference not applicable to
alien relatives of Western Hemisphere resident aliens); Alvarez
V. District Director of INS, 539 F.2d 1220 (9th Cir. 1976), cert.
denied, 430 U.S. 918 (1977) (special status for commuter aliens
only from Mexico and Canada); Dunn V. INS, 499 F.2d 856 (9th Cir.
1974), cert. denied, 419 U.S. 1106 (1975) (one type of discre-
tionary relief from deportation inapplicable to aliens from
Western Hemisphere).
52
compelling national interests. Any rule restricting the use of
nationality classifications might inhibit the ability of the
Executive to exercise its discretion under the immigration laws
to respond effectively to external factors such as that crisis,
or Cuba's effort to foist its undesirable citizens upon this
country at the time of the Mariel "boatlift," or Soviet actions
that create streams of refugees (in Poland, Hungary,
Czechoslovakia or Afghanistan), or the consequences of our own
international engagements (e.g., the flood of refugees from
Vietnam after the fall of Saigon).
/
C. It is accordingly clear beyond peradventure that
Congress and the Executive have exceedingly broad authority to
apply nationality classifications under the immigration laws. /
Thus, even if the Court were prepared to reassess the doctrine of
the entry cases, it would be particularly inappropriate to do so
/ As the court of appeals observed (J.A. 329 & n.30), the
decisions of this Court make clear that, at least absent contrary
statutory language (see, e.g., 8 U.S.C. 1152(a), prohibiting --
with stated exceptions -- specified forms of discrimination in
issuance of immigrant visas), authority to draw nationality-based
classifications generally is shared by Congress and the Executive.
See Fiallo, 430 U.S. at 796; Diaz, 426 U.S. at 81-82; see also
Narenji V. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979), cert.
denied, 446 U.S. 957 (1980). Here, of course, Congress has ex-
plicitly delegated to the Attorney General broad discretion to
make determinations as to the availability of parole. 8 U.S.C.
1182 (d) (5) (A). This grant of discretion necessarily includes the
authority to draw nationality distinctions in the exercise of
parole authority "for reasons deemed strictly in the public
interest" (ibid.). See Diaz, 426 U.S. at 81; see also 8 U.S.C.
1182(f) (authorizing the President to suspend or condition the
entry of "any aliens or any class of aliens" whose entry is
deemed "detrimental to the interests of the United States").
Petitioners appear (Br. 36-39 & n.45) to concede the authority of
the President and the Attorney General to draw such distinctions.
/ Contrary to the assumption that pervades petitioners' brief
(see, e.g., pages 8, 3, 22, 24 & n.28, etc.), this case does not
present any question as to the constitutional restraints that may
apply to racial classifications in the admission of aliens. As
the court of appeals panel observed (J.A. 243 n.29), petitioner's
evidence was in fact focused on nationality discrimination
against Haitians. Moreover, whatever else may be said about the
factual record in this case, it is clear that none of the
evidence said to support petitioners' discrimination claim - --
evidence that is rather selectively canvassed by petitioners in
this Court (Pet. Br. 10-18) -- contains any suggestion that
Haitians were classified for disparate treatment because they are
black.
53
in the context of a challenge to the political branches'
authority to recognize nationality classifications among aliens
seeking to enter the United States. Petitioners evidently
contend (Br. 36-39) that judicial review of nationality classifi-
cations -- even in this wholly "political" context -- should be
governed by the standards articulated in Fiallo and Diaz (see
pages 49-50, supra), rather than by the doctrine of the entry
cases. The established rule regarding unadmitted aliens is,
however, most faithful to separation of powers concerns and is
supported by compelling policy considerations.
/
As the examples we have given (pages 51-52, supra)
illustrate, the nationality classifications that are drawn from
time to time in the Attorney General's exercise of parole
discretion are precisely the kind of classifications that "must
be defined in light of changing political and economic
circumstances" and that are "more appropriate to either the
Legislative or the Executive than to the Judiciary" (Diaz, 426
U.S. at 81). Extrastatutory review of the exercise of the
Attorney General's parole discretion, even under a deferential
standard, would undesirably "inhibit the flexibility of the
political branches of government to respond to changing world
conditions" (1bid.). The courts simply are not possessed of the
requisite expertise or familiarity with international relations
problems properly to evaluate the policy determinations of the
/ We note that any substantive difference between the two
standards may be more apparent than real. Fiallo makes clear
that the courts are in no event to become embroiled in judging
the merits of the policy decisions of the Executive and Congress
that classify aliens. 430 U.S. at 798-799. Such matters remain
"'wholly outside the power of this Court to control'" (1d. at
799; citation omitted). Indeed, the Court has not required that
the author of the classification even articulate its justifica-
tion. Ibid. ("Congress obviously has determined that
preferential status is not warranted for illegitimate children
and their natural fathers, perhaps because of a perceived absence
in most cases of close family ties as well as a concern with the
serious problems of proof that usually lurk in paternity determi-
nations" (emphasis added)). It is enough that the classification
be stated and its rationality discernible.
54
political branches respecting nationality classifications that
may be employed in the administration of parole authority. See
Narenji V. Civiletti, 617 F.2d at 748, citing United States V.
Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936) :
[I]t is not the business of the courts to pass
judgment on the decisions of the President in
the field of foreign policy. Judges are not
expert in that field and they lack the inform-
ation necessary for the formation of an
opinion. The President on the other hand has
the opportunity of knowing the conditions
which prevail in foreign countries, he has his
confidential sources of information and his
agents in the form of diplomatic, consular and
other officials.
In the final analysis there simply are no "judicially
discoverable and manageable standards" for assessing the
justifications for such nationality classifications (Baker V.
Carr, 369 U.S. 186, 217 (1962)).
Any effort to inquire into the justifications for
nationality classifications respecting unadmitted aliens would
ultimately be sterile and burdensome to both the courts and the
political branches. Such an inquiry would be sterile because of
the sheer improbability of discovering an instance in which a
wholly irrational nationality classification had been imposed.
And it would be burdensome because of the fruitless imposition
upon the courts, and because the opportunity for litigation
itself would threaten to divert the energies and influence the
conduct of responsible officials to whom discretionary authority
to admit aliens is committed. See Nixon V. Fitzgerald, 457 U.S.
731, 751-753 (1982). Finally, in many instances, judicial review
of the justifications for nationality classifications would
intrude upon sensitive or confidential matters that are the
subject of intergovernmental communications. See United States
V. Mendoza, No. 82-849 (Jan. 10, 1984), slip op. 2.
In sum, the ability to establish needed classifications on
short notice -- without pausing to satisfy the courts of their
rationality or necessity -- may be an essential weapon in the
55
President's arsenal in dealing with an international crisis.
There is simply no warrant for judicial oversight that may
potentially be embarrassing to the United States' relations with
other nations or detrimental to the Nation's ability to deal
effectively in the international arena.
2. Assuming arguendo that petitioners' opportunity for
parole was, contrary to the testimony of responsible high
government officials, adversely affected by a nationality-based
classification, there is no reason to doubt that such a
classification would, given the circumstances that existed in
1981, meet any standard of rationality that might be applied to
judge it. As we have explained (pages 2-5), in early 1981 this
Nation was confronted with a serious and widespread breakdown in
immigration enforcement. The Attorney General, acting on the
counsel of a cabinet level task force, determined that in order
to restore credibility and efficacy to our exclusion procedures
it was necessary to adopt a new policy -- actually, to return to
the pre-1954 policy -- of detaining unadmitted aliens stopped at
the border who are unable to establish a prima facie claim for
admission.
That policy was, as petitioners now concede, intended to be
applied on a wholly non-discriminatory basis. At the same time,
however, in putting the new policy into effect, it would have
been entirely rational to take special administrative measures to
assure efficient implementation in regard to Haitians. As the
district court found, a prime example of the breakdown of prior
parole policy was the presence in Florida of about 35,000
excludable Haitian aliens, whose numbers were daily being
augmented by a "continuing flow of Haitians into South Florida"
(J.A. 118-119, 130). The situation in South Florida was further
aggravated by the arrival in that region in the spring of 1980 of
125,000 excludable Cuban aliens as part of the Mariel "boat-
lift." The federal government had assigned a special
56
"Cuban/Haitian" entrant status for the Mariel Cubans and for the
Haitians arriving by October 10, 1980, and aided in efforts to
resettle them (J.A. 120). But, as the district court explained,
"[t]he local communities were left with the task of providing
jobs, housing, health care and food for the approximately 150,000
new residents of South Florida. This burden taxed local
resources to their limits and continues to do so." Ibid.
In the circumstances, it would have been wholly rational to
take special steps vigorously to implement the new detention
policy with respect to Haitian aliens who continued to arrive in
South Florida in the second half of 1981. / This is especially
so because of the certainty that adherence to the old policy of
uncritically granting parole would have continued to encourage
new waves of arrivals, and would have led, in practice, to the
unregulated presence of illegal aliens within the United
States. See pages 3, 37-39, supra. It also would have been
reasonable for decision makers to conclude that the new direction
of federal policy to discourage illegal entry would be
communicated with particular efficacy to persons of a given
nationality contemplating unauthorized entry to the United States
as that policy was applied to their countrymen who had already
made the attempt. Devoting special administrative attention to
the continuing influx of Haitian aliens thus would have been
entirely permissible, if that did indeed occur.
/
/ Even the court of appeals panel acknowledged that "the
decade-long influx of undocumented immigrants from the Carribean
Basin to south Florida presaged the end of the Administration's
permissive attitude toward illegal immigration" and that the
Mariel "boatlift" had the "greatest impact" in catalyzing this
change (J.A. 198).
/ As we have explained (pages 19-20 & note
), petitioners
have in this Court shifted or at least refined their claim so
that they now attribute any discrimination solely to low-level
INS enforcement officials. This new emphasis cannot affect the
resolution of the constitutional question they present in this
case. The authority to parole unadmitted aliens has been
committed by Congress to the Attorney General. It is fundamental
that even when exercised by his delegates, that authority is
exercised in the name of the Attorney General; their actions are
(Continued)
57
3. Petitioners portray this case in a quite different
light, asserting (Br. 3) that "the record in this case
demonstrates, without contradiction, [that] INS officials have
discriminated invidiously against black Haitian refugees in
deciding to incarcerate them initially, and in prolonging their
incarceration without parole pending a determination of their
asylum claims." As we have explained in more detail in our Brief
in Opposition (pages 17-19 & n.13), however, petitioners have
gravely misrepresented the posture of this case in this regard.
To the extent that petitioners rely on the opinion of the court
of appeals panel, their reliance is wholly impermissible, for the
en banc court of appeals vacated the panel decision. See page
12, supra. / The opinion of en banc court does not disturb the
findings of the district court, which include a determination
that no unconstitutional discrimination occurred. See pages 7-9,
supra.
In any event, even if the decision of the panel had not been
vacated, it would be a weak reed to support petitioners' factual
assertions. There is no occasion here to consider in detail the
flaws in the panel's determination that petitioners had proven
nationality discrimination. But it is plain at the threshold
that the panel's entire analysis proceeds on the erroneous
assumption that a showing that a nationality classification was
applied would be sufficient to establish impermissible discrimi-
nation. See pages 48-50, supra. So far as the panel was con-
his in contemplation of law. See 8 U.S.C. 1103(a). Any lack of
conformity by the Attorney General's subordinates to his policies
has no bearing on the question whether parole of an unadmitted
alien may be ordered because of a constitutional violation. On
the other hand, as the court of appeals held, a challenge to a
denial of parole on abuse of discretion grounds may be based on
disobedience of official policy by subordinate decision makers.
/ The en banc court's statement (J.A. 295) that "the facts of
this case have been extensively set forth in the opinions of the
panel and the district court" plainly does not suggest that the
en banc court adopted the panel's rulings on the discrimination
issue. Petitioners' assertion (Br. 3 n.2) that the en banc court
"implicitly concurred" in the panel's "findings" is simply
fantastic.
58
cerned, if petitioners made out a prima facie case of nationality
classification, it was open to the government only to show that no
nationality classification was intended (see J.A. 243-244).
/
Moreover, the panel treated the case as though it presented
a garden variety claim of invidious discrimination in a domestic
context, relying upon cases concerning state action decided under
the Fourteenth Amendment, in disregard of this Court's decisions
establishing a quite different standard of review even for claims
of discrimination against resident aliens under the Fifth
Amendment. See pages 48-50, supra; see also Bertrand V. Sava,
684 F.2d at 218 n.17. Indeed, the panel relied heavily and
impermissibly on Fourteenth Amendment decisions regarding jury
selection challenges (J.A. 243-244). This Court's decisions, of
course, make clear that statistical demonstrations of disparate
impact -- which were the backbone of petitioners' evidentiary
submission --- go much further toward establishing proof of
discriminatory purpose in the jury selection context than they do
in other cases. See Castaneda V. Partida, 430 U.S. 482, 493-494
(1977); Washington V. Davis, 426 U.S. 229, 241 (1976); see also
Village of Arlington Heights V. Metropolitan Housing Development
Corp., 429 U.S. 252, 266 (1977). The panel also acknowledged
relying upon the standards, burdens and methods of proof applied
in cases under Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e et seq. (J.A. 244 & n.30); such reliance was
erroneous. Washington V. Davis, 426 U.S. at 238. Finally, the
panel displayed little of the required deference to the district
/ Elsewhere in its opinion the panel stated cryptically that
"this case never reached the examination of a rational reason for
the discriminatory treatment, because [petitioners'] prima facie
case was unrebutted" (J.A. 216 n.11). The panel added (ibid.)
that "[t]he effect of the line-drawing suggested by some [of the
evidence] * * * [was] to deter with one narrowly formulated rule
the immigration of aliens we do not wish to have enter, while
treating quite differently other classes of equally 'illegal'
immigrants." As we have explained above (pages 55-56), such a
classification, if it indeed occurred, would have been at the
very least presumptively permissible.
59
court's findings of fact. See Pullman-Standard V. Swint, 456
U.S. 273 (1982). Accordingly, even if it were relevant, this
case does not come before the Court impressed with any credible
determination that petitioners' claims have factual merit.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
REX E. LEE
Solicitor General
RICHARD K. WILLARD
Acting Assistant Attorney General
KENNETH S. GELLER
Deputy Solicitor General
JOSHUA I. SCHWARTZ
Assistant to the Solicitor General
BARBARA L. HERWIG
MICHAEL JAY SINGER
Attorneys
FEBRUARY 1985