Correspondence from Liebman to Capital Punishment Attorneys; Memorandum on Ineffective Assistance of Counsel

    N o. 84-5240

IN THE

Supreme (ta r t of tljr Mmtrd States

October  T er m , 1984

Marie Lucie Jean , Et A l.,

Petitioners,

v.

A lan C. Nelson, Et A l.,

Respondents.

On Writ Of Certiorari To The United States 
Court Of Appeals For the Eleventh Circuit

REPLY BRIEF FOR PETITIONERS

Counsel:
Bruce J. Winick, Esq.
Irwin P. Stotzky, Esq. 
Christopher Keith Hall, Esq. 
Michael J. Rosen, Esq.

O f Counsel:
Fried, Frank, Harris, Shriver 

& Jacobson
By: Robert E. Juceam , Esq.

Terrence A. Corrigan, Esq.
A ttorneys fo r  Petitioners

Counsel o f Record:
Ira J. Kurzban, Esq.

Kurzban, Kurzban & 
Weinger, P.A.

Suite 901
700 Brickell Avenue 
Miami, Florida 33131 
(305) 371-0268



TABLE OF CONTENTS
PAGE

TABLE OF AUTHORITIES.............................................. iii
PRELIMINARY STATEMENT............................................  1

1. Respondents’ Mischaracterization of the Issues .. 3

2. Respondents’ Concessions...................................... 3

3. Respondents’ Failure to Meet Petitioners’ Conten­
tions ................................................................................. 4

ARGUM ENT..........................................................................  6

I. THIS COURT SHOULD REJECT RESPOND­
ENTS’ ATTEMPT TO EQUATE TEMPORARY 
RELEASE FROM DETENTION PENDING A 
DETERMINATION OF ADMISSIBILITY WITH 
ADMISSION ITSELF..................................................  6

II. THIS COURT SHOULD REJECT RESPOND­
ENTS’ USE OF SHAUGHNESSY v. UNITED 
STATES ex re/. MEZEI TO JUSTIFY INVIDI­
OUS DISCRIMINATION.....................................  9

III. THE OVERWHELMING EVIDENCE OF RACE 
AND NATIONALITY DISCRIMINATION RE­
MAINS UNREBUTTED........................................ 12

A. The Unrebutted Facts in this Record Dem­
onstrate Race As Well As Nationality Dis­
crimination.................................................... 12

B. Discrimination Against Haitian Petitioners
Is Subject to Strict Scrutiny......................  13

C. Respondents’ Novel Rationalization As­
serted On Certiorari Is Insufficient to Jus­
tify Their Discrimination............................ 16



11

PAGE

IV. THE CONSTITUTIONAL QUESTIONS PRE­
SENTED IN THE PETITION FOR CER­
TIORARI ARE NOT MOOT, AND THEIR 
RESOLUTION MAY NOT BE AVOIDED BY 
THE REMAND SUGGESTED BY THE EN
BANC  C O U R T........................................................ 17

CONCLUSION...................................................................  20



Ill

TABLE OF AUTHORITIES

CASES: PAGE

Ahrens v. Rojas, 292 F.2d 406 (5th Cir. 1961)................  11

Alvarez v. District Director, 539 F.2d 1220 (9th Cir. 1976) 15

Arlington Heights v. Metropolitan Housing Authority,
429 U.S. 252 (1977).......................................................  2

Bell v. Wolfish, 441 U.S. 520 (1979)................................ 17

Bertrand v. Sava, 684 F.2d 204 (2d Cir. 1982)................  11

Buckley v. Valeo, 424 U.S. 1 (1976).................................. 13

Carlson v. London, 342 U.S. 524 (1952).......... ...............  9
Castaneda v. Partida, 403 U.S. 482 (1977)........................2, 19

Evitts v. Lucey, 105 S. Ct. 830 (1985).............................. 8

Fiallo v. Bell, 430 U.S. 787 (1977)....................................13, 14
Francois v. Rivkind, No. 84-1894-CIV-Nesbitt (S.D.

F la .) .................................................................................  6
Furman v. Georgia, 408 U.S. 238 (1972) ........................  11

Galvan v. Press, 347 U.S. 522 (1954).............................. 14

Gerstein v. Pugh, 420 U.S. 103 (1975)............................ 17
Graham v. Richardson, 403 U.S. 365 (1971).................. 13

Haitian Refugee Center v. Civiletti, 503 F. Supp. 442 
(S.D. Fla. 1980), a ff’d as modified sub nom. Haitian 
Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982) 8, 12

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976)............5, 13

Hernandez v. Texas, 347 U.S. 475 (1954)........................ 13
Hirabayashi v. United States 320 U.S. 81 (1943)............  12
Jean v. Nelson, 711 F.2d 1455 (11th Cir. 1983) (“Jean I”), .pas­

sim



IV

Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984) (“Jean II”) 19
Kleindienst v. Mandel, 408 U.S. 753 (1972)....................19, 20

Korematsu v. United States, 323 U.S. 214 (1944). . .12, 13, 16
London v. Plasencia, 459 U.S. 21 (1982)........................  10

Leng May Ma v. Barber, 357 U.S. 185 (1958)................  9

Los Angeles v. Lyons, 461 U.S. 95 (1983) ......................  18

Louis v. Nelson, 544 F. Supp. 973 (S.D. Fla. 1982) 
(“Louis III”) ...................................................................  8

Louis v. Nelson, 544 F. Supp. 1004 (S.D. Fla. 1982) 
(“Louis IV”) ...................................................................  7, 8

Malek-Marzban v. Immigration and Naturalization Ser­
vice, 653 F,2d 113 (4th Cir. 1981)......................... 15

Mathews v. Diaz, 426 U.S. 67 (1976)..............................13, 14

Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982) 17

Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979)........  15

New York City Transit Authority v. Beazer, 440 U.S. 568 
(1979)...............................................................................  18

Noel v. Chapman, 505 F.2d 1023 (2d Cir. 1975)............ 15
Oyama v. California, 323 U.S. 633 (1948)......................  12

Palma v. Verdiyen, 676 F.2d 100 (4th Cir. 1982)............  11

Pullman-Standard v. Swint, 456 U.S. 273 (1982)..........  2

Regents o f the Univ. o f Cal. v. Bakke, 438 U.S. 265 
(1978) ...............................................................................  5

Rizzo v. Goode, 423 U.S. 362 (1976)...............................  18

Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th 
Cir. 1981).......................................................................  11

Saxbe v. Bustos, 419 U.S. 65 (1974)................................ 15

PAGE



V

SEC v. Sloan, 436 U.S. 103 (1978)..................................  17

Shaughnessy v. United States ex re. Mezei, 345 U.S. 206 
(1953)................................................................................. 5, 10

Sompteur v. Rivkind, No. 84-1892-CIV- Nesbitt (S.D.
F la .) .................................................................................  6

Swann v. Charlotte-Mecklenburg Bd. o f  Education, 402 
U.S. 1 (1971)...................................................................  18

Thelemaque v. Rivkind, No. 84-1893-CIV- Nesbitt (S.D.
F la .) .................................................................................  6

United States v. W.T. Grant Co., 345 U.S. 629 (1953) . . 17
Washington v. Davis, 426 U.S. 229 (1977)......................  2

Wong Wing v. United States, 163 U.S. 228 (1896)........  9

Yassini v. Crosland, 618 F.2d 1356 (9th Cir. 1980)........  15

Yick Wo v. Hopkins, 118 U.S. 356 (1886).................1, 12, 13

CONSTITUTIONAL, STATUTORY AND TREATY 
PROVISIONS:

U.S. Const., amends. Vand X IV ....................................passim

5 U.S.C. § 706(2)(B)..........................................................  11
8 U.S.C. § 1181(d)(4)(B)..................................................  15

8 U.S.C. § 1182(d)(5)(A)..................................................  14

8 U.S.C. § 1182(f)............................................................... 14, 15
8 U.S.C. § 1185............................................................. .. . .14, 15

8 U.S.C. § 1225(b)............................................................  4

8 U.S.C. § 1254(a) and ( e ) ..............................................  7
Refugee Act of 1980 Pub. L. No. 96-212 97 Stat. 107 .. 14

PAGE



V)

PAGE

RULES, REGULATIONS AND ORDERS:

8C.F.R. §1 0 1 .1 .................................................................  14

8 C.F.R. § 212.1.................................................................  15

8 C.F.R. § 214.1(c).............................................................. 7

8 C.F.R. §231 ...............................................    15

8 C.F.R. § 242.2(e).............................................................   15

8 C.F.R. § 248.1(a).............................................................. 7

Exec. Order No. 12172 (1979).......................................... 15

Exec. Order No. 12206 (1980) .......................................... 15

OTHER AUTHORITIES:

INS Operations Instruction 212.5(c)................................ 7
Dade County Resolution No. R-798-82 (June 1, 1982).. 17

Conf. Rep. on Refugee Act of 1980, 126 Cong. Rec. 
S3756-58 (Feb. 26, 1980)................................................ 14



I n  t h e

Supreme (Court of tire United States
O ctober  Te r m , 1984 

N o. 84-5240

Marie Lucie Jean , Et Al .,
Petitioners,

v.

Alan C. Nelson, Et Al.,
Respondents.

On Writ Of Certiorari To The United States 
Court Of Appeals For the Eleventh Circuit

REPLY BRIEF FOR PETITIONERS

PRELIMINARY STATEMENT

This is an action to end a continuing pattern of unlawful 
discrimination against petitioners and similarly situated Hai­
tians. This case is not, as respondents argue, solely about the 
remedy of release or even the power to exclude (Respondents’ 
Brief at 23, 40-42; hereinafter, “R. Br.”), but rather, is about 
the discriminatory enforcement by INS officials of the immi­
gration laws of the United States.

Respondents do not and cannot deny that Haitians, unlike 
other aliens, have been the target of unequal and discrimina­
tory enforcement of the immigration laws by INS officials 
since 1973. Jean I  (LA . 251-53); Petitioners’ Brief at 14-15 and 
nn. 20 and 21 (hereinafter, “P. Br.”). For over a decade, the 
INS has applied the immigration laws to Haitians with “an 
unequal hand” (Yick Wo v. Hopkins, 118 U.S. 356, 373-74



2

(1886)) through a variety of illegal practices which have been 
attested to by lawsuits successfully challenging such practices, 
and by knowledgeable immigration experts, INS officials 
themselves, and a former general counsel of INS. P. Br. 14, 
n.20.

It is against this history and continuing pattern of dis­
crimination against black Haitians that the discriminatory 
detention at issue in this case must be viewed. At trial, in 
addition to comprehensive and unrebutted statistical proof,1 
petitioners presented a “plethora” of testimonial and docu­
mentary evidence which revealed that INS officials discrimina- 
torily targeted Haitians for incarceration, while paroling other 
similarly situated excludable aliens. See P. Br. at 13-14, 16-17 
and nn. 23, 24.2

1. Respondents claim that petitioners’ statistical proof was inadequate 
because, they assert, the only criteria which petitioners’ expert considered in 
determining parole status was documentation. R. Br. 8. On the contrary, as 
both the panel recognized (J.A. 268-269) and the evidence demonstrated (R. 
at Vol. 45, pp. 1631-34), petitioners’ statistician tested some of the data for 
numerous variables including whether petitioners had any immediate family 
in the United States or any recommendation on their asylum claim from the 
Department of State. He concuded that these variables had no impact on the 
release decision. Id. Respondents never performed any statistical analysis of 
any of the data presented.

2. Contrary to respondents’ bewildering suggestion (R. Br. 58-59), the 
panel did not improperly rely on this Court’s decisions in Arlington Heights 
v. Metropolitan Housing Authority, 429 U.S. 252 (1977), Washington v. 
Davis, 426 U.S. 229 (1977), and Castaneda v. Partida, 430 U.S. 482 (1977) in 
weighing petitioners’ discrimination claim. The teaching of these cases is 
that, unlike a Title VII case, an equal protection violation cannot be proven 
solely by disproportionate impact (Washington v. Davis, 426 U.S. at 239), 
and that “ [ajbsent a pattern as stark as that in Gomillion and Yick Wo, 
impact alone is not determinative, and the Court must look to other 
evidence.” Arlington Heights, 429 U.S. at 266. Here, not only did the panel 
find that the statistical evidence revealed a pattern as stark as that in 
Gomillion or Yick Wo, but concluded that a “plethora” of other direct and 
indirect evidence under Arlington Heights factors established discrimination. 
Jean I  (J.A. 251).

In addition, the panel, fully cognizant of the requirements of Pullman- 
Standard v. Swint, 456 U.S. 273 (1982), properly ruled that the district 
court’s factual findings on a number of issues were clearly erroneous, since 
“the record permitted] only one resolution of the factual issues.” 456 U.S. at 
292.



3

Unable to rebut the evidence of discrimination against Hai­
tians, respondents have once again submitted a brief which is 
largely irrelevant to the issues raised in this case.3 In their 
brief, respondents mischaracterize the issues by constructing 
and then defending propositions that petitioners do not con­
test, make significant concessions which substantially undercut 
their position, and fail to meet petitioners’ principal conten­
tions.

1. Respondents’ Mischaracterization of the Issues

Respondents assert that the due process clause does not 
augment the statutory right of excludable aliens to admission; 
but petitioners in this case do not seek to be admitted, and do 
not assert any constitutional right to admission. Respondents 
defend the propriety of nationality distinctions in the formula­
tion of immigration policy; but this case concerns the enforce­
ment, not the formulation, of an immigration policy that the 
relevant policymakers intended to be applied evenhandedly. 
Respondents defend the broad powers in the immigration area 
possessed by Congress, the President, and the Attorney 
General; but petitioners do not challenge the constitutional 
authority of Congress, the President, or the Attorney 
General—only the constitutionality of the actions of INS 
enforcement officials in applying neutral statutes and policies 
in a discriminatory fashion.

2. Respondents’ Concessions

For the first time in this four-year old litigation, respond­
ents, having previously asserted that excludable aliens have no 
constitutional rights, now concede that they are “persons” 
within the fifth amendment who have “rights to due process or

3. Respondents mischaracterize the issue in this case by asserting that 
“ [t]he question presented . . . 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.” R. Br. 20. As demonstrated below, 
temporary parole during the pendency of the determination of the admissibil­
ity of an excludable alien is in no way a determination concerning who is 
“eligible to enter our Nation and join our society.”



4

other constitutional protections” (R. Br. 21), but argue that 
these rights do not extend beyond those provided by statute, 
administrative rule and practice. R. Br. 29-30. This concession 
is fatal because petitioners do not assert any procedural or 
substantive due process rights with regard to admission or, 
indeed, to parole. What petitioners do assert is the right to 
have the neutral parole statute and administrative practice 
adopted by Congress, the President, and the Attorney General 
applied evenhandedly.

Respondents concede that the government’s new parole 
policy was “intended to be applied on a wholly non-discrimina- 
tory basis.” R. Br. 55. Not only is the relevant statute govern­
ing parole neutral on its face, but respondents now also 
concede, contrary to their briefing below, that the statutory 
scheme, including 8 U.S.C. § 1225(b), does not mandate incar­
ceration and from 1954 until this litigation was never read by 
the executive to mandate detention. R. Br. 2-3. These critical 
concessions demonstrate that the relief sought by petitioners— 
the evenhanded application of the law—would in no way 
interfere with the sovereign prerogatives of Congress and the 
President.

Respondents concede that an alien released from detention 
pending a determination of admissibility “does not effect an 
entry into the United States in contemplation of law . . . .” R. 
Br. 36. Therefore, respondents’ attempt to use the entry doc­
trine to insulate discriminatory enforcement of a neutral deten­
tion policy from constitutional scrutiny hinges entirely on their 
characterization of parole as de facto admission, a character­
ization which is neither legally nor factually accurate.

3. Respondents’ Failure to Meet Petitioners’ Contentions

Respondents’ brief is understandably silent concerning the 
facts of this case, which establish an egregious case of invidi­
ous race and nationality discrimination. Respondents merely 
protest that “[t]here is no occasion here to consider in detail 
the flaws in the panel’s determination that petitioners had 
proven nationality discrimination.” R. Br. 57. This feeble 
protest is disingenuous since respondents filed a printed brief



5

of 59 pages, including a 19 page factual exposition, without 
addressing any such alleged flaws. Similarly, respondents’ 
charge that petitioners “selectively canvassed” the factual rec­
ord to prove discrimination (id. 52, n.30) is belied by their 
failure to point to a single fact in the record which would rebut 
such proof.4

Respondents’ brief similarly fails to address the distinction 
between the actions of coordinate branches of government— 
Congress and the President—and the actions of low-level 
enforcement officials in enforcing the policies fashioned by 
these branches. See P. Br. 37-38. Not surprisingly, respondents 
seek to blur this critical distinction with a broad defense of the 
sovereign prerogatives of Congress and the President to make 
policy in this area. This case, properly understood, does not 
implicate the authority of these coordinate branches of the 
government, which, as even respondents now concede, in­
tended an evenhanded parole policy.5

Finally, as demonstrated below, respondents’ recharacteriza­
tion of Shaughnessy v. United States ex rel. Mezei, 345 U.S. 
206 (1953), fails totally to meet our distinction of that case 
from the situation presented here. Mezei was simply a case in 
which, given its unique facts, the relief sought—release from 
detention—would have set Mezei at large in the United States

4. Not only do respondents ignore the facts so graphically presented in 
the record, but they seek to dismiss the panel’s careful and thorough analysis 
of those facts on the ground that the en banc court vacated the panel’s 
decision. R. Br. 57. However, the decision of the en banc court would have 
been an academic exercise had it not accepted the findings of discrimination 
made by the panel.

5. Respondents wholly ignore the argument (P. Br. 37-38) based upon 
Hampton v. Mow Sun Wong, 426 U.S. 88 (1976), and Regents v. Bakke, 438 
U.S. 265 (1978), demonstrating the constitutional significance of this distinc­
tion. Rather, respondents boldly assert that the discriminatory actions of 
low-level enforcement officials, because done in the name of the Attorney 
General, “are his in contemplation of law.” R. Br. 56-57, n.33. In Hampton, 
the Civil Service Commissioner acted pursuant to a congressional delegation 
of power. This Court, however, held that although the Congress might 
possess the authority to discriminate against aliens, its delegate, the commis­
sioner, could not do so consistently with the Constitution.



6

permanently because no other country would accept him. 
Respondents have chosen to ignore the fact that because Haiti 
will accept the return of any petitioners found excludable and 
deportable, their temporary release from detention pending 
that determination in no way implicates the substantive admis­
sion power apparently thought to be impinged in Mezei.

ARGUMENT

I. THIS COURT SHOULD REJECT RESPONDENTS’ 
ATTEMPT TO EQUATE TEMPORARY RELEASE 
FROM DETENTION PENDING A DETERMINATION 
OF ADMISSIBILITY WITH ADMISSION ITSELF

In view of their concession that “ parole from detention 
pending a determination of admissibility does not effect an 
entry into the United States in contemplation of law” (see R. 
Br. 36 and compare with P. Br. 32), respondents’ entire case is 
reduced to the argument that such parole is inextricably related 
to admission into the country because it constitutes de facto 
admission. In support of their contention, respondents argue 
that parole “ is not appreciably different from . . . formal 
legal admission” (R. Br. 37), that the availability of parole 
“ may have a corrosive effect on the government’s plenary 
authority to exclude aliens” (id. at 38), and that parole “ may 
act as an inducement to persons ineligible for admission to seek 
to enter the United States.” Id.

Although respondents pretend that temporary release on 
parole is not “ appreciably different” from “ a formal legal 
admission,” in reality the two are quite different. Excludable 
aliens granted such parole may be excluded and physically 
removed to their country of origin;6 their parole may be 
terminated at any time; and they remain separated from family 
members who have no right to enter the United States to join

6. Indeed, since this Court granted certiorari in this case, respondents 
deported to Haiti several members of petitioners’ class. See, e.g., Sompteur 
v. Rivkind, No. 84-1892-CIV-Nesbitt (S.D. Fla.), Thelemaque v. Rivkind, 
No. 84-1893-CIV-Nesbitt (S.D. Fla.), and Francois v. Rivkind, No. 84-1894- 
CIV-Nesbitt (S.D. Fla.).



7

them, as would family members of admitted aliens. Paroled 
petitioners are all subject to strict reporting requirements, they 
must all have approved sponsors, and their physical movement 
is restricted (Louis IV, J.A. 179-85)—requirements to which 
admitted aliens are clearly not subject.

The grant of temporary parole does not provide the alien 
with any additional procedural rights concerning his exclusion 
and deportation; in contrast, an admitted alien may only be 
deported following deportation proceedings which require con­
siderably more formal protections. An admitted alien may 
petition to change from one non-immigrant status to another, 
and may petition to extend his stay (8 C.F.R. §§ 214.1(c), 
248.1(a)); a parolee may not petition to change his status or to 
extend his stay. An admitted alien who subsequently becomes 
out of status may also be eligible for a number of benefits 
under the immigration law, including entitlement to voluntary 
departure and to petition for suspension of deportation; in­
deed, even an undocumented alien who has made an entry may 
assert these benefits. 8 U.S.C. § 1254(a) and (e).

As a practical matter, admitted aliens granted visas or lawful 
permanent residency may travel in and out of the United 
States, for example, to visit family members, without special 
permission; a parolee who leaves the country cannot re-enter 
unless prior permission has been specifically granted. See INS 
Operations Instructions 212.5(c). Moreover, upon an appropri­
ate basis, the government may place a variety of conditions on 
the grant of parole, including prohibiting the alien from 
working. Perhaps most importantly, time spent by admitted 
immigrants in this country qualifies in establishing eligibility 
for citizenship while time spent by parolees does not. Thus, 
parole provides neither the benefits of admission nor any legal 
status equivalent even to that of a visitor temporarily admitted, 
and in no way constitutes a de facto admission into the 
country.7

7. While it is true, of course, that temporary parole of an excludable alien 
may permit him to “ mingle with the mass of citizens” (see R. Br. 39), this 
simple observation does not lead to respondents’ conclusion that parole 
constitutes de facto admission. A person accused of a crime and released on 
bail may “ mingle with the mass of citizens.” The grant of bail, however, is



8

Respondents assert that parole constitutes de facto admis­
sion due to the length of time exclusion proceedings sometimes 
take. R. Br. 37-38. This bootstrap argument is disingenuous. 
The simple fact is that respondents control the pace of the 
exclusion process. Here, any delays in exclusion proceedings 
were attributable to the misconduct of the INS in implement­
ing those proceedings {Jean I  (J.A. 271)) which led to this 
action, and the failure of the INS to allocate sufficient re­
sources to conduct such proceedings. Louis III (J.A. 119). 
Indeed, this is not the first example of the government seeking 
to justify its mistreatment of Haitians by referring to “ delays” 
of its own creation in the exclusion or deportation process—a 
justification which has properly been rejected by the courts. 
See, e.g., Haitian Refugee Center v. Civiletti, 503 F. Supp. 442 
(S.D. Fla. 1980), a ff’d as modified sub nom. Haitian Refugee 
Center v. Smith, 676 F.2d 1023 (5th Cir. 1982).

Moreover, the record of this case demonstrates that subject­
ing discriminatory detention to constitutional review would not 
“ erode” the admissions process. As both the district court and 
panel found, and as respondents now concede, “ INS had not 
identified any reason to believe that Haitian aliens were more 
likely to abscond than other excludable aliens.” R. Br. 38, 
n. 19; see also Louis IV  (J.A. 178), Jean I  (J.A. 255 n.38).8

not a de facto acquittal. Just as granting bail to an accused does not affect a 
determination of the accused’s guilt or innocence, the decision to parole an 
excludable alien does not affect the question of his admission into this 
country. See Louis III (J.A. 161) (“ parole . . .  is equivalent to pre-trial 
bond for a criminal defendant” ).

Release on bail or parole permits the defendant to remain in the “ midst of 
our society” and “ implicates many of the same considerations” — such as 
deterence and incapacitation—that justify criminal incarceration. Defendants 
released on bail or offenders released on parole “ who choose to abscond” 
may also “ face only a minimal risk of apprehension.” Thus, bail may have a 
“ corrosive effect” on the state’s power to convict and “ may act as an 
inducement” to criminal activity. Nonetheless, when a state provides for a 
system of bail or parole, “ the procedures used . . . must comport with the 
demands of the Due Process and Equal Protection Clauses of the Constitu­
tion.” Evitts v. Lucey, 105 S.Ct. 830, 839 (1985).

8. Respondents improperly refer to a non-record, self-serving GAO 
report which was amended favorably in response to respondents’ comments 
to directly support their arguments. Their use of this post-litigation report to



9

Similarly, as both the district court and panel found, non-dis- 
criminatory parole of petitioners posed no threat to our na­
tion’s security.* 9 Accordingly, given the nature of the parole 
process, and the facts of this case, there is no support for the 
proposition that admission and parole are so interwoven as to 
preclude judicial review of discriminatory detention.10

II. THIS COURT SHOULD REJECT RESPONDENTS’
USE OF SHAUGHNESSY  v. UNITED STATES ex rel.
M EZEI TO JUSTIFY INVIDIOUS DISCRIMINATION

Even if the considerations of national sovereignty which 
have traditionally been advanced to insulate admissions deci­
sions from close judicial review applied to parole decisions, no 
such considerations apply in the context of discriminatory

support their assertion that INS might have feared that Haitians might 
abscond because some failed to appear at INS hearings is obviously strained. 
Significantly, the GAO report does not itself state that any Haitians have 
“ absconded,” and does not purport to explain why some may have missed 
appearances at INS hearings. In fact, testimony of the INS District VI 
district director suggests that those Haitians who failed to appear may never 
have received notice of their hearings due to INS failure to record changes of 
address by Haitians. (R. at Vol. 48, pp. 2198-2201).

9. Respondents now acknowledge that petitioners posed no security 
threat. See R. Br. at 38, n.19 (“ The point is not that any one individual was a 
security risk” ). However, respondents seek to change the meaning of 
“ security risk” as traditionally used in the context of parole, and redefine the 
phrase to mean “ the specter of loss of effective control of the Nation’s 
borders.” Compare Leng May Ma v. Barber, 357 U.S. 185, 190 (1958), with 
R. Br. at 38, n.19. Even if respondents’ novel definition of “ security risk” 
were valid, they cannot explain how Haitians, who constitute less than 2Vo of 
all illegal immigrants, uniquely threaten national security. See also Brief of 
Amici Curiae Metropolitan Dade County et al. at 16-17 (discussing low crime 
rate and high motivation in Haitian community).

10. In view of the undisputed facts of this case, respondents’ reliance on 
Wong Wing v. United States, 163 U.S. 228 (1896) and Carlson v. London, 
342 U.S. 524 (1952) for the proposition that admission and detention are 
integrally related is misplaced. Both cases treated detention as analogous to 
pretrial confinement, in which restraint may be necessary to prevent the 
accused from absconding (Wong Wing, 163 U.S. at 235) or endangering the 
community while free on bond (Carlson, 342 U.S. at 538). As respondents 
concede, neither consideration was present here.



10

detention of a particular race and nationality. See P. Br. at 35. 
Respondents do not address this obvious truth, but claim that 
judicial review of discriminatory incarceration is nonetheless 
foreclosed by Mezei and by the purported nature of the relief 
sought by petitioners. R. Br. at 41-42. Neither of respondents’ 
arguments has merit.

Respondents read Mezei far too broadly as holding that the 
Constitution may never afford an excludable alien the remedy 
of release from detention. Because no nation would accept 
Mezei, the remedy of release would have effectively reversed 
the Attorney General’s decision that he be excluded on na­
tional security grounds. Thus, unlike the present case, Mezei’s 
release would have been permanent and would have 
“ nullified] the very purpose of the exclusion proceed­
ings. . . .” 345 U.S. at 216.

Further, respondents’ attempt to characterize Mezei as ex­
tending the entry doctrine to “ collateral claims” has been 
rejected by this Court’s decision in Landon v. Plasencia, 459 
U.S. 21 (1982). In seeking to characterize petitioners’ dis­
crimination claim as a “ collateral claim” foreclosed by the 
entry doctrine, respondents state that “ 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. . . .” R. Br. 41. 
In Plasencia, the alien, to whom the entry doctrine concededly 
applied, also had a discrete constitutional claim sounding in 
procedural due process, which this Court recognized. If re­
spondents’ assertion that the entry doctrine foreclosed “ collat­
eral claims” such as equal protection and due process were 
correct, then this Court would not have permitted her to assert 
her procedural due process claim.

Respondents also contend that “ [ujnder the entry doctrine, 
the bar to judicial review importing extrastatutory criteria lies 
not in the nature of the right asserted, but in the unavailability 
of the remedy requested.” R. Br. 42-43.11 Respondents have

11. Evidently fearful of the phrase “ constitutional” review, respondents 
have invented the term “ extrastatutory” review.



11

mischaracterized the relief sought by petitioners. Haitian class 
members are not claiming a procedural or substantive right to 
release. See P. Br. 3. Rather, petitioners seek to enjoin the INS 
from applying the laws unequally. Amended Petition for Writ 
of Habeas Corpus and Complaint (J.A. at 43-44). The Attor­
ney General, the President and the Congress remain free to 
fashion a non-parole policy, if in their judgment one is desir­
able. Having adopted, however, a discretionary parole policy 
intended to be applied evenhandedly, the will of the coordinate 
branches of government is not frustrated by judicial enforce­
ment of the neutrality of this policy.'2

Respondents assert that “ extention of parole to petitioners 
as a remedy is impermissible because the courts simply lack 
authority to admit excludable aliens.” R. Br. 42. This assertion 
is simply irrelevant because parole, not admission, is at issue 
here, and courts routinely review parole decisions alleged to be 
abuses of discretion or to violate the Constitution.12 13 Moreover, 
respondents suppress the fact that Congress has itself autho­
rized judicial review of agency action generally, including 
“ agency action found to be contrary to constitutional 
right. . . . ” 5 U.S.C. § 706(2)(B).

12. Similarly, states may have the substantive power to impose the death 
penalty. But where state legislatures delegate to judges and juries the decision 
as to those cases in which it will be imposed, the arbitrary application of that 
authority may nonetheless be unconstitutional. Furman v. Georgia, 408 U.S. 
238, 310-14 (1972) (White, J. concurring). Invalidating death sentences under 
such statutes does not infringe upon the substantive power of the state to 
impose capital punishment because under such statutory schemes, the “ legis­
lative will is not frustrated if the penalty is never imposed. . . Id. at 311 
(White, J., concurring); id. at 309 (Stewart, J., concurring).

13. E.g., Bertrand v. Sava, 684 F.2d 204 (2d Cir. 1982); Palma v. 
Verdiyen, 676 F.2d 100 (4th Cir. 1982); Rodriguez-Fernandez v. Wilkinson, 
654 F.2d 1382 (10th Cir. 1981); Ahrens v. Rojas, 292 F.2d 406 (5th Cir. 
1961).



12

III. THE OVERWHELMING EVIDENCE OF RACE AND 
NATIONALITY DISCRIMINATION REMAINS UN­
REBUTTED

Respondents do not deny or rebut any of the facts in the 
record which evidence their ten-year history of discrimination 
against black Haitian refugees. They simply deny that they 
discriminated on the basis of race, preferring to characterize 
their discrimination, “ if that did indeed occur” (R. Br. 56), as 
discrimination based on nationality. Nationality discrimina­
tion, however, is no less objectionable under relevant constitu­
tional standards than race discrimination, and none of the 
arguments respondents advance to avoid the legal conse­
quences of their invidious discrimination has merit.

A. The Unrebutted Facts in this Record Demonstrate Race 
As Well As Nationality Discrimination

The evidence in this case went to both race and nationality 
discrimination against petitioners—all of whom are black. See 
Haitian Refugee Center v. Civiletti, 503 F. Supp. at 451. The 
panel did not conclude that there was no evidence of race 
discrimination. It simply noted that “ [t]he bulk of the evidence 
. . . was addressed to the nationality claim.” Jean I  (J.A. 243 
at n.29) (emphasis supplied). Since the panel recognized that 
some of the evidence went to race discrimination and since all 
of the evidence of discrimination was “ essentially unrebutted 
by the government” Jean I  (J.A. 274), petitioners proved that 
respondents discriminated on the basis of race and nationality. 
Furthermore, this Court has customarily treated discrimination 
on the basis of national origin as racial discrimination where, 
as here, the nationality discrimination is coterminous with a 
minority’s race. See Yick Wo v. Hopkins, 118 U.S. 356 (1886); 
see also Oyama v. California, 332 U.S. 633 (1948); Korematsu 
v. United States, 323 U.S. 214 (1944); Hirabayashi v. United 
States, 320 U.S. 81 (1943).14

14. In any event, nationality discrimination is no less odious than racial 
discrimination. Race and nationality discrimination are unique. As this 
Court has long recognized, the protections of the Constitution “ are universal



13

B. Discrimination Against Haitian Petitioners Is Subject to 
Strict Scrutiny

Respondents contend that decisions of INS officials must be 
upheld unless “ wholly irrational,” asserting that the equal 
protection component of the fifth amendment provides peti­
tioners with less protection against invidious discrimination 
than the equal protection guarantee of the fourteenth amend­
ment. R. Br. 48-50. On the contrary, “ both Amendments 
require the same type of analysis.” Hampton, 426 U.S. at 105; 
Buckley v. Valeo, 424 U.S. 1, 93 (1976). While “ there may be 
overriding national interests which justify selective federal 
legislation that would be unacceptable for an individual state” 
(id.), the same balancing approach of strict scrutiny of race 
and nationality discrimination applies. The only difference is 
that the federal government has certain unique interests which 
the states lack, and that the proper assertion of those interests 
by the Congress or the President may outweigh the non-dis­
crimination principle. See Korematsu v. United States, 323 
U.S. 214 (1944).15
in their application, to all persons within the territorial jurisdiction, without 
regard to any differences of race, of color, or of nationality.” Yick Wo v. 
Hopkins, 118 U.S. 356, 369 (1886). “ Classifications . . . based on national­
ity or race are inherently suspect and subject to close judicial scrutiny.” 
Graham v. Richardson, 403 U.S. 365, 372 (1971); see also Hernandez v. 
Texas, 347 U.S. 475 (1954). This Court has repeatedly held that invidious 
race and national origin discrimination under any circumstances, even by the 
federal government, is subject to strict scrutiny. Korematsu v. United States, 
323 U.S. 214 (1944). Respondents are unable to cite any cases by this Court 
holding otherwise.

15. This Court has carefully limited the situations in which overriding 
national interests would prevail to those where the Congress or the President, 
not low-level officials, are acting. Hampton, 426 U.S. at 105 (federal 
employment bar on resident-aliens might be justified by overriding national 
interest, but not if imposed by Civil Service Commissioner); Fiallo v. Bell, 
430 U.S. 787 (1977) (congressional admission classification); Mathews v. 
Diaz, 426 U.S. 67 (1976) (same). Furthermore, each of these cases involved 
only semi-suspect classifications which are subject to intermediate scrutiny. 
Hampton (alienage); Fiallo (sex, illegitimacy); Diaz (alienage). Indeed, not 
since Korematsu v. United States, 323 U.S. 214 (1944), has this Court held 
that there was an overriding national interest which could justify invidious 
discrimination on the basis of race or national origin.



14

Respondents also assert that “[b]ecause 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 
that are entirely legitimate.” R. Br. 50. Respondents’ conten­
tion, however, proves too much. The ability of Congress to 
take nationality into account in a politically responsive manner 
in setting immigration policy is quite distinct from the enforce­
ment of neutral policies or laws in a discriminatory manner. 
Thus, this Court has recognized that “policies pertaining to the 
entry of aliens. . . are peculiarly concerned with the political 
conduct of government,” but that “in the enforcement of these 
policies, the Executive Branch of the Government must respect 
the procedural safeguards of due process.” Galvan v. Press, 
347 U.S. 522, 531 (1954).

In any event, petitioners have not suggested that Congress or 
the President, acting pursuant to expressly conferred powers 
(as under the statutory authority granted in 8 U.S.C. 
§§ 1182(f), 1185), may never make nationality-based deter­
minations concerning whom to admit or exclude—only that 
such classifications are subject to constitutional scrutiny. See, 
e.g., Fiallo v. Bell, 430 U.S. at 793, n.5. The power of 
Congress and the President16 to make such classifications does 
not exempt invidiously discriminatory incarceration by en­
forcement officials from constitutional scrutiny, and none of 
the regulations or cases cited by respondents (R. Br. 50-55) 
supports this contention. Each of the regulations cited involved 
nationality classifications that arose from specific statutory 
provisions or were required to comply with treaty obligations.17

16. Respondents assert that section 1182(d)(5)(A) authorizes the Attorney 
General to draw nationality distinctions, citing Mathews v. Diaz, 426 U.S. at 
81. Not only are the actions of low-level officials rather than the Attorney 
General at issue here, but the parole authority referred to in Diaz was 
expressly eliminated by Congress in enacting the Refugee Act of 1980. See 
Conf. Rep. on Refugee Act of 1980, 126 Cong. Rec. S3756-58 (Feb. 26, 
1980). Congress has granted only the President the discretion to distinguish 
among classes of aliens, but has not given this power to the Attorney General 
or to lower-level officials. 8 U.S.C. § 1182(f).

17. The nationality distinctions contained in 8 C.F.R. § 101.1 were based 
on distinctions contained in immigration statutes during the periods set forth



15

Each of the classifications in the cases cited (R. Br. n.28) 
involved residence or alienage, or were promulgated pursuant 
to the direction of the President in retaliation to direct threats 
by a foreign government.18 Accordingly, none of these classifi­
cations provide support for the invidious race and nationality 
discrimination here.

Respondents’ claim that subjecting discriminatory incarcera­
tion by enforcement officials to constitutional scrutiny would 
inhibit the ability of the Executive to respond effectively to 
foreign policy threats such as the seizure of the American 
Embassy in Teheran or waves of immigrants (R. Br. 51-52) is 
without merit. The President has ample statutory authority, 
never invoked here, to respond to any such crisis. 8 U.S.C. 
§§ 1182(f), 1185. Furthermore, this Court subjected dis­
criminatory incarceration on the basis of race and national

in the regulation. Thus, for example, certain Oriental nationalities who 
entered the United States after July 1, 1924, were not given a presumption of 
lawful admission because, as of that date, restrictive legislation barring their 
entry was in effect. Nationality distinctions in 8 C.F.R. § 212.1, waiving 
certain documentary requirements for some nationalities, is based on 8 
U.S.C. § 1181(d)(4)(B) which allows waiver of such requirements. The same 
statutory basis would provide the justification for relaxed procedures for 
certain residents of Canada and Bermuda in 8 C.F.R. § 231. Finally, 8 C.F.R. 
§ 242.2(e) provides certain nationals privileges regarding communications 
with diplomatic personnel based upon “ [ejxisting treaties.”

18. Each of these cases involved challenges based on alienage, not na­
tionality. Each involved admissions criteria. Saxbe v. Bustos, 419 U.S. 65 
(1974) (admission classification based on residence in a contiguous country); 
Alvarez v. District Director, 539 F.2d 1220 (9th Cir. 1976), cert, denied, 430 
U.S. 918 (1977) (same); Noel v. Chapman, 508 F.2d 1023 (2d Cir.), cert, 
denied, 423 U.S. 824 (1975) (alienage not a suspect class).

During the Iranian Crisis, the President issued executive orders under 8 
U.S.C. § 1185 authorizing limitations on the rules and regulations governing 
the entry of Iranian students. See Exec. Orders 12172, 12206 at 44 F.R. 67947 
(1979), 45 F.R. 24101 (1980); Malek-Marzban v. Immigration and Naturali­
zation Service, 653 F.2d 113 (4th Cir. 1981); Yassini v. Crosland, 618 F.2d 
1356 (9th Cir. 1980); Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979), cert, 
denied, 446 U.S. 957 (1980). (However, in each of these cases, the courts 
improperly relied on alienage cases when they concluded that nationality 
classifications are subject to rational basis review.)



16

origin by the President to constitutional scrutiny even when 
this nation was faced with what it perceived as the far more 
extreme threat of invasion and sabotage during a world war, 
Korematsu v. United States, 323 U.S. 214 (1944), and the 
Republic survived. It can do no less here.

C. Respondents’ Novel Rationalization Asserted On Cer­
tiorari Is Insufficient to Justify Their Discrimination

Perhaps despairing of persuading this Court that their dis­
criminatory conduct is not subject to judicial review, respond­
ents, for the first time in nearly four years of litigation, offer a 
post hoc rationalization for their discriminatory incarceration 
of black Haitian refugees.19 In light of the neutral policy 
prescribed by Congress, the later confirmation of evenhanded 
enforcement announced by the President, and the record in 
this case, the belated rationalization cannot survive constitu­
tional scrutiny.

Respondents seek to justify singling out Haitians for dis­
criminatory incarceration as necessary to deter arrivals of 
illegal immigrants in South Florida because, they assert, South 
Florida was inundated with 150,000 aliens.20 However, the
35.000 Haitians who arrived over a ten year period comprised 
only a small portion of the total in comparison with the
125.000 Cubans who arrived “in a fraction of the time” (Jean I  
(J.A. 198 n.3)), and the almost one million excludable aliens 
apprehended by INS each year. There simply was no justifica­
tion for singling out black Haitians from all others for dis­
criminatory incarceration, especially where responsible local 
officials branded such discrimination for what it obviously

19. As the panel found, respondents simply protested at trial that they did 
not discriminate. Jean l  (J.A. 275). Respondents’ appellate briefing and 
position here has been a continuing effect to avoid the consequences of their 
inability to make an evidentiary response which could be tested on the factual 
record.

20. Significantly, respondents do not identify the individuals who targeted 
Haitians for discrimination, preferring to refer to them anonymously as 
“decision makers.” See R. Br. 56



17

was—“illegal, inhumane and unacceptable.” See Dade County 
Resolution No. R-798-82 (June 1, 1982), cited in Brief of Amici 
Curiae Metropolitan Dade County et al. at 11.

IV. THE CONSTITUTIONAL QUESTIONS PRESENTED 
IN THE PETITION FOR CERTIORARI ARE NOT 
MOOT, AND THEIR RESOLUTION MAY NOT BE 
AVOIDED BY THE REMAND SUGGESTED BY THE 
E N  B A N C  COURT

Respondents concede that this case is not moot and that the 
grant of the writ of certiorari was proper. Nonetheless they 
proceed to make a thinly-veiled mootness argument in the 
guise of requesting that this Court not decide the constitutional 
question presented. See R. Br. 15-20. Petitioners could not 
more strongly disagree.

Respondents’ first argument is premised on the fallacy that 
INS’ discriminatory treatment of Haitians has ceased. R. Br. at 
14-15 n.8, 20 n.12. This bald, self-serving assertion, in the 
context of the decade-long history of INS discrimination 
against Haitians, does not make it unlikely that INS officials 
will continue their discrimination without a mandatory injunc­
tion based upon the Constitution. Furthermore, respondents’ 
purported voluntary cessation of their illegal conduct does not 
deprive this Court of its power to review the legitimacy of their 
prolonged practices, United States v. W.T. Grant Co., 345 U.S. 
629 (1953), and there can be no assurance that respondents will 
not revert to their prior practices. Mesquite v. Aladdin’s 
Castle, Inc., 455 U.S. 283, 289 (1982) (“city’s repeal of 
objectionable language would not preclude it from reenacting 
precisely the same provision”); SEC v. Sloan, 436 U.S. 103 
(1978).21

Respondents next invoke the doctrine that a court should 
not reach a constitutional issue if it can decide a case on a

21. In any event, this is a classic case of “capable of repetition, yet evading 
review.” Gerstein v. Pugh, 420 U.S. 103, 110 n. 11 (1975) (although no longer 
in pretrial detention, “ [t]he individual could nonetheless suffer repeated 
deprivation”); see also Bell v. Wolfish, 441 U.S. 520, 526 (1979).



18

non-constitutional ground, and urge this Court not to decide 
the question presented by this case. However, this doctrine 
applies only where the non-constitutional remedy will provide 
“virtually all of the relief” which would be provided under the 
Constitution. New York City Transit Authority v. Beazer, 440 
U.S. 568, 583 n.23 (1979). Here, the en banc court’s remedy 
denies petitioners full relief because both the scope of the 
remedy and the standard of review are woefully inadequate.22

The scope of the non-constitutional remedy provided by the 
en banc court would, quite simply, not provide petitioners with 
the injunctive relief against future discrimination which they 
seek and to which they are entitled. Swann v. Charlotte-Meck- 
lenburg Bd. o f Ed., 402 U.S. 1 (1971).23 The difference 
between the remedy for a constitutional violation and the 
remedy for a statutory violation is well illustrated by a com­
parison of the relief ordered by the panel and by the en banc 
court. The panel, having found unconstitutional discrimina­
tion, properly remanded for broad class-wide relief to remedy 
past discrimination and prevent future discriminatory enforce­
ment, in order to assure that all aliens are accorded equal

22. Contrary to respondents’ assertion (R. Br. 17, n. 10), the class did not 
terminate at the time of the final judgment. See J.A. 189 (“The Court finds 
to be without merit Defendants’ contention that the class cannot include 
individuals who are not a part thereof at the time of Final Judgment”). 
Although the district court recently expressed the “view” that the definition 
of the class should be rethought, the court has not, as respondents assert, 
made any determination in this regard. See Order on Mandate, No. 81-1260- 
CIV-EPS (S.D. Fla. June 8, 1984), at 1 n .l.

23. Respondents’ assertion (R. Br. 20 n. 12) that Los Angeles v. Lyons, 
461 U.S. 95 (1983), bars injunctive relief to remedy invidious discrimination 
is without merit. In Lyons, this Court denied injunctive relief because the 
individual respondent lacked standing as there was no likelihood that he 
would be injured again. Flere, unlike Lyons, the court has certified a class, 
some of whom remain in detention and all of whom are potentially subject to 
re-detention (R. Br. 17 n. 10). Furthermore, in the light of the ten-year 
history of discrimination, there is no reason to believe that respondents will 
not repeat their discrimination. Respondents’ citation of Rizzo v. Goode, 423 
U.S. 362, 377 (1976) can only be described as puzzling since there this Court 
denied injunctive relief because “none of the petitioners had deprived the 
respondent classes of any rights secured under the Constitution.”



19

treatment. Jean I  (J.A. 291). In contrast, the en banc court 
limited its relief to only those class members currently in 
detention, and further limited the relief to a determination of 
whether the agency action was arbitrary.24 25 Under this ap­
proach, the majority of the class released because of respond­
ents’ APA violation would not receive the injunctive relief 
against future discrimination to which they are entitled.

Second, the narrow standard on remand suggested by the en 
banc court—limiting review to whether there was a “facially 
legitimate and bona fide reason” provided by the agency—is 
altogether inadequate to protect against discriminatory action, 
and indeed, provides an all too easy way for the agency to 
mask discrimination. This standard would effectively preclude 
the district court from looking behind a “facially legitimate 
and bona fide” reason put forth by the agency to justify its 
action, even if wholly pretextual.2' Moreover, the “facially 
legitimate and bona fide reason” standard directs the court to 
determine whether the agency has exercised its substantive 
discretion and, if so, whether the agency has asserted a justifi­
cation for its determination consistent with its legal mandate. 
This standard does not purport to be a test for determining 
whether discrimination occurred. While this standard of review 
may be appropriate to measure the validity of an immigration 
policy, see Fiallo v. Bell, or to review decisions concerning

24. Plainly, the en banc court’s remand does not contemplate injunctive 
relief for all class members even if arbitrary official conduct is found with 
respect to detained class members. Similarly revealing is the en banc court’s 
suggestion that the district court “may wish to reconsider whether class 
treatment is still an appropriate vehicle for making [relief] determinations.” 
Jean II {J.A. 331).

25. This standard would permit INS to offer mere protestation that they 
had a facially legitimate and bona fide explanation for conduct challenged as 
discriminatory. This Court has, of course, rejected the notion that, in the 
context of a discrimination suit, “a simple protestation from a commissioner 
that racial considerations played no part [in his decision] would be enough” 
to rebut a prima facia case of discrimination. Castaneda v. Partida, 430 U.S. 
at 498, n.19. Furthermore, under the facially legitimate standard, it is 
unlikely that a trial court would permit discovery to test the validity of an 
assertion of bona fide action. See Kliendeinst v. Mandell, 408 U.S. at 770 
(under facially legitimate standard, “the courts will [not] look behind the 
exercise of . . . discretion”).



20

admission, see Kliendienst v. Mandel, it simply cannot func­
tion as a standard to measure the existence of discrimination in 
a parole context.

CONCLUSION
For all the foregoing reasons, and the reasons set forth in 

petitioners’ initial brief, this Court should reverse and vacate 
the decision of the en banc court, reinstate the panel opinion, 
and order the district court to enter broad injunctive relief to 
remedy the invidious discrimination against petitioners.

Respectfully submitted,

Bruce J. Winick 
American Civil Liberties 

Union Foundation o f  
Florida, Inc.

University of Miami School 
of Law

P.O. Box 248087 
Coral Gables, FL 33124 
(305) 284-2971

Irwin P. Stotzky 
University of Miami School 

of Law
P.O. Box 248087 
Coral Gales, FL 33124 
(305) 284-2549

Fried, Frank, Harris, 
Shriver & Jacobson 

One New York Plaza 
New York, NY 10004 
By: Robert E. Juceam

Terrence A. Corrigan

Ira J. Kurzban 
National Emergency Civil 

Liberties Committee and 
Haitian Refugee Center, Inc. 
Kurzban, Kurzban & 

Weinger, P.A.
Suite 901 
700 Brickel Ave.
Miami, FL 33131 
(305) 372-0268

Ira J. Kurzban

Christopher Keith Hall 
32-32 32nd Street 
Long Island City, NY 11106 
(718) 204-5427

Michael J. Rosen 
American Civil Liberties 

Union Foundation o f  
Florida, Inc.

19 West Flagler Street 
Miami, FL 33131 
(305) 377-3736



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