Jean v. Nelson Brief for the Respondents

    No. 84-5240

3n tfjp (tort uf %
October Term , 1984

Marie L ucie J e a n , et al., petitioners

v.

Alan  C. N elson , Commissioner of 
I mmigration and N aturalization, 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

R ichard K. Willard
Acting Assistant Attorney General

Kenneth  S. Geller 
Deputy Solicitor General

J oshua I. Schwartz
Assistant to the Solicitor General

Barbara L. Herwig 
Michael J ay 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 Attor­
ney General’s authority to parole unadmitted aliens into 
this country pending a determination of their admis­
sibility.

( i )



TABLE OF CONTENTS

Opinions below ......... ................... ...................................  1

Jurisdiction ............... ........... ............... — ...................  1

Constitutional and statutory provisions involved..... . 2

Statement:
A. Background and proceedings below _________  2
B. Current posture of this case ..... .... .... .................  15

Summary of argum ent.......... ...........................................  20

Argument:
The Fifth Amendment provides no basis for over­
ruling the Attorney General’s decision to deny pa­
role to an excludable alien pending determination 
of the alien’s admissibility to the United States.......  25
A. The Due Process Clause does not augment the

statutory rights of excludable aliens regarding 
determinations related to their admission to the 
United States ______ _____ ___________ __ _ 25

B. The entry doctrine bars petitioners’ challenge to
the denial of parole pending exclusion proceed­
ings .......... ....... ........... ............... ................... . 35

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 h e re _______ ____ _____ _______ ~ 48

Conclusion ____________ ____ —....................................  59

TABLE OF AUTHORITIES
Cases:

Alvarez V. District Director, INS, 539 F.2d 1220,
cert, denied, 430 U.S. 918 ___ __—....... .............  51

Ashwander V. TV A, 297 U.S. 288 ...........................  18

Page

(III)



Cases— Continued:
IV

Page

Baker V. Carr, 369 U.S. 186 ............................. ..... . 54
Balzac v. Porto Rico, 258 U.S. 298 .......................... 31
Bertrand V. Sava, 684 F.2d 204 ...... .......... ........ ...... 18, 58
Buckley V. Valeo, 424 U.S. 1 ........... ..................... . 48
Califano V. Yamasaki, 442 U.S. 682 ____________ 18
Carlson V. Landon, 342 U.S. 524---- ------------------ 22, 40
Castaneda V. Partida, 430 U.S. 482_____ ___ ___ _ 58
Chappell v. Wallace, No. 82-167 (June 13, 1983).... 42
Chinese Exclusion Case, 130 U.S. 581 .....21, 24, 26, 32, 45
Dorr v. United States, 195 U.S. 138 ................ ......  31
Downes V. Bidwell, 182 U.S. 244 ..... ........ ...... ........  31
Dunn V. INS, 499 F.2d 856, cert, denied, 419 U.S.

1106 ................................... ..... ............... ......... . 51
Fiallo V. Bell, 430 U.S. 787________ ....24, 33, 34, 35, 45,

47, 49, 52, 53
Galvan v. Press, 347 U.S. 522 _____ ____ ________ 47
Hampton V. Mow Sun Wong, 426 U.S. 8 8____ __ 32, 49
Haitian Refugee Center, Inc. V. Smith, 676 F.2d

1023 ........ ................. ........ .............. ........ ..............  38
Harisiades V. Shaughnessy, 342 U.S. 580 ................ 34, 35
Hawaii V. Mankichi, 190 U.S. 197  _____ __ ____ 31
Hecht Co. v. Bowles, 321 U.S. 321________ ____  20
Heckler V. Mathews, No. 82-1050 (Mar. 5, 1984).. 43
IN S  V. Hibi, 414 U.S. 5 ..................... .......... ........... . 42
IN S  V. Miranda, 459 U.S. 14 ........... ................. .....  42
INS  V. Stevie, No. 82-973 (June 5, 1984) .......... .....  37
Kleindienst V. Mandel, 408 U.S. 753....13, 27, 33, 34, 35, 47
Korematsu V. United States, 323 U.S. 214 .............  33
Kwong Hai Chew V. Golding, 344 U.S. 590 ____27, 28-29
Landon V. Plasencia, 459 U.S. 21 ........4, 21, 28, 29, 30, 47
Lem Moon Sing v. United States, 158 U.S. 538.......  26
Leng May Ma V. Barber, 357 U.S. 185.......4, 21, 27, 28, 36
Los Angeles v. Lyons, 461 U.S. 9 5 ___ ___ ______  20
Malek-Marzban V. INS, 653 F.2d 113...................... 50
Mathews v. Diaz, 426 U.S. 6 7 __________ ...23, 24, 31, 49,

50, 51, 52, 53
Mississippi University for Women v. Hogan, 458

U.S. 718............... .... ................... ...................... . 16
Narenji V. Civiletti, 617 F.2d 745, cert, denied,

446 U.S. 947 ___ ___ ____ _______ ___ _____ 51, 52, 54
New York City Transit Authority v. Beazer, 440 

U.S. 568 18



Nishimura Ekiu  V. United States, 142 U.S. 651— 21, 26,
27, 28

Nixon V. Fitzgerald, 457 U.S. 731 .... ..... .... ... ......  54
Noel V. Chapman, 508 F.2d 1023, cert, denied, 423

U.S. 824 ........ ............................ ...................... ......  51
Oceanic Steam Navigation Co. V. Stranahan, 214

U.S. 320  ................ ........................ ............ .........  26
Palma V. Verdeyen, 676 F.2d 100___________ __  40
Plyler V. Doe, 457 U.S. 202 ___________ ______  31
Pullman-Standard V. Swint, 456 U.S. 273 ______  59
Reid V. Covert, 354 U.S. 1 .... ...... .... ...... ............... . 31
Rizzo V. Goode, 423 U.S. 362 ...... .............. ....... .....  20
Russian Volunteer Fleet V. United States, 282 U.S.

481 _____ ___________ ___________ _________ _ 31
Sampson V. Murray, 415 U.S. 61.................. ...........  20
Saxbe V. Bustos, 419 U.S. 65 ______ _____ _____  50
Shaughnessy V. United States ex rel. Mezei, 345

U.S. 206 ....... ............... ..... ......................... ........ .passim
Trop v. Didles, 356 U.S. 8 6 ___________ _______  46
United States V. Curtis-Wright Export Corp., 299

U.S. 304 ........... ............. ........... .............. ........... . 54
United States V. Mendoza, No. 82-849 (Jan. 10,

1984) ..... ............. ................. .......... ........ ........... . 54
United States ex rel. Knauff V. Shaughnessy, 338

U.S. 537......................... ...... ............. ............. .....  22,26
United States ex rel. Mezei v. Shaughnessy, 195

F.2d 964, rev’d 345 U.S. 206 ........ .'...... ......... . 39
Village of Arlington Heights V. Metropolitan

Housing Development Corp., 429 U.S. 252___  58
Washington v. Davis, 426 U.S. 229 ____________  58, 59
Weinberger V. Romero-Barcelo, 456 U.S. 305___  20
Wong Wing V. United States, 163 U.S. 228........22, 31, 39
Yassini V. Crosland, 618 F.2d 1356 ...... ..................  51
Yick Wo V. Hopkins, 118 U.S. 356 ......... ..................  31

Constitution, statutes, regulations and rule:
U.S. Const.:

Amend. I ...... ............. ............. 6, 7, 9, 11, 14, 15, 34, 35
Amend. V (Due Process Clause) ................ ...... passim
Amend. V I ........... ....... ...... ..... ........ .............. . 31
Amend. XIV (Equal Protection Clause).... ...  23, 48,

49, 58

V
Cases—Continued: Page



VI

Constitution, statutes, regulations Page
and rule—Continued:

Administrative Procedure Act, 5 U.S.C. 553............ . 6
Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

et seq_________ ___ ___ _______ ___ ____ ____ _ 59
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 ).. 36
§ 103(a), 8 U.S.C. 1103(a) ________ _____ _ 57
§ 201, 8 U.S.C. 1151 ________ _____ ___ ____  50
§201, 8 U.S.C. (1964 ed.) 1151 ............. .......... 50
§ 202(a), 8 U.S.C. 1152(a) ______ __ ______  52
§§ 207-209, 8 U.S.C. 1157-1159 ............. ............ 37
§ 212 (d) (5), 8 U.S.C. 1182 (d) (5 )___ ______  44
§ 212 (d) (5) (A ), 8 U.S.C. 1182 (d) (5) (A) ..2, 22, 23,

28, 36, 44, 52
§ 212(d) (5) (B), 8 U.S.C. 1182(d) (5) (B)....._. 37
§ 212 (f), 8 U.S.C. 1182 (f)  __ _____ ____ ___  52
§ 233(a), 8 U.S.C. 1223(a) ......... .................... . 28
§ 235 (b ), 8 U.S.C. 1225 (b) ...................... ....... 2, 22, 35
§ 243(h), 8 U.S.C. 1253(h) ............ ................  36

Refugee Act of 1980, Pub. L. No. 96-212, § 203(f),
94 Stat. 107......... ........... .... ........ .........................  37

8 C.F.R.:
Section 101.1........ ..................... .................. ......  50
Section 208.3 (b) ............ ........................... .........  36
Section 208.10 (b ) ........ ................. ....... .............  36
Section 208.11.................................. ..................  36
Section 212.1_________________ __ ___ ____ _ 50
Section 212.5.................................. ................... 9,16, 17
Section 231_______       50
Section 242.2(e)... ........     50
Section 252.1....................     50

11th Cir. R. 26 (k) ___ __ ____ ____________ ____ 12

Miscellaneous:
GAO, Detention Policies Affecting Haitian Na­

tionals (1983) _______________________ __ 3, 5, 38
3 G. Hackworth, Digest of International Law

(1942) ............... ................... ........ ..... ............. . 26
8 M. Whiteman, Digest of International Law

(1967)....................    26



In % dmtrt uf % Itnitrft
October Term , 1984

No. 84-5240

Marie Lucie J ea n , et al ., petitioners

v.

Alan  C. N elson , Commissioner of 
I mmigration and N aturalization, 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 J l l  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, without 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 discretion, parole into the 
United States temporarily under such conditions as 
he may prescribe for emergent reasons or for rea­
sons deemed strictly in the public interest any alien 
applying for admission to the United States, but 
such parole of such alien 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

l.a. Section 235(b) of the Immigration and Nation­
ality Act of 1952, 8 U.S.C. 1225 (b ), provides that “ [ejvery 
alien * * * who may not appear to the examining immi­
gration 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 offi­
cer.” Section 212(d)(5)(A ) of the Act, 8 U.S.C. 1182 
(d) (5) (A), modifies this detention mandate by author­
izing 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 in­
terest.” 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



3

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 Immi­
gration established by President Carter issued a report 
declaring that an immigration crisis exists in the United 
States (J.A. 120). Principal reasons for the crisis in­
cluded 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 (4/1/82 Tr. 2398-2399). See also GAO, 
Detention Policies Affecting Haitian Nationals 15 & n.4 
(1983) (hereinafter GAO Rep.). The flood of undocu­
mented 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, originat­
ing in Mariel Harbor (J.A. 118-120).

Because of the continuing immigration crisis confront­
ing the Nation, in March 1981 President Reagan ap­
pointed a special cabinet-level task force, presided over 
by the Attorney General, to consider solutions to the 
pressing problems involved. The task force developed sev­
eral responsive policy proposals. Among these was a rec­
ommendation 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 Gen­
eral 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 con­
cerning the Nation’s immigration policy, emphasizing the 
need to “ ‘establish control over immigration’ ” and indi­
cating that the Attorney General would be taking meas­
ures 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 subcom­
mittees 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 pol­
icies,’ ” and has “ ‘failed to enforce [its] laws effectively’ ” 
{ibid.). 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 in­
creased 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 Na­
tionality 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 h 1

1 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 pro­
ceedings but only to deportation proceedings. See, e.g., Leng May 
Ma v. Barber, 357 U.S. 185, 187 (1958) ; see also Landon v. Plasen- 
cia, 459 U.S. 21, 25-26 (1982). Petitioners are agreed to be ex-



5

By July 31, 1981, then, the “new” policy of more restric­
tive use of parole was initiated with respect to excludable 
aliens generally, including the continuing stream of ar­
rivals 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 Gen­
eral, the INS, the Commissioner of Immigration and 
Naturalization and several regional and local INS offi­
cials. The complaint, which was amended on August 24, 
1981 {id. 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 relat­
ing 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 Amend­
ment (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 simul­
taneously, “NUNC PRO TUNC to September 9, 1981” ) 
into a preliminary injunction barring the government 
from proceeding with exclusion hearings against mem­
bers of the class (J.A. 58-59). As later modified {id. at 
82 (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

dutiable aliens; this case presents no question concerning the rights 
of aliens who have managed to effect an entry into the United 
States.



6

States and who are presently in detention pending 
exclusion proceedings at various INS detention fa­
cilities, for 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 Asso­
ciation.[2]

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 unlaw­
fully effectuated without observance of the notice- 
and-comment rulemaking procedures of the Administra­
tive 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).

2 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 hear­
ings 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 dis­
trict court (id. at 82-83 n.6).



7

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 (id. at 159 
n.49). Although it recognized that a similar disposition 
of the equal protection 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 com­
ponent of the Fifth Amendment Due Process Clause (J.A. 
159-169, 173). After careful consideration of the vol­
uminous factual record (including live testimony during 
a six-week trial), the district court found that “ [t]he 
policies and practices challenged herein, including deten­
tion, were proposed to and approved by the President of 
the United States in the context of developing a compre­
hensive new immigration policy,” and that “ [t]hese meas­
ures 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 rea­
sons, that “Haitians [we] re impacted to a greater degree 
by the new detention policy than aliens of any other na­
tionality at the * * * time” (id. at 165), the court found 
that the policy was “intended to be fair and that if an­
other class of aliens arrived in this country in a situa­
tion similar to that of the [petitioners] they would be 
treated in a similar fashion” (id. at 169; footnote omit­
ted) .

The district court concluded that the statistical evi­
dence adduced by petitioners to show that Haitians were 
disproportionately affected by the government’s revised 
parole policy “does not deserve much weight in deter­
mining the merits of [petitioners’] discrimination claim”



8

(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 “ [pjarole 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 ex­
pert’s purported controls were “far too simplistic” be­
cause they did not distinguish between different types of 
documents possessed by aliens seeking admission or ad­
just 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 chal­
lenged immigration policy was motivated by an invidi­
ously discriminatory purpose in violation of the Due 
Process Clause, the district court found that petitioners 
failed to establish that respondents intended to discrimi­
nate 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 preponder­
ance of the evidence that they were incarcerated be­
cause of their race and/or national origin. The evi­
dence shows that the detention policy was not di­
rected at [petitioners] because they were black and/ 
or Haitian, but because they were excludable aliens 
unable to establish a prima facie claim for admis­
sion and that non-Haitians were detained pursuant



9

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 national­
ities does not render the policy discriminatory. Re­
gardless of its ultimate impact, the policy was in­
tended to be applied and was in fact applied equally 
to all similarly situated aliens regardless of their 
race and/or national origin.

Following a hearing on the relief to be ordered in con­
nection 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 rule- 
making procedures, the court declared that the new policy 
was “null and void” and that the prior policy was re­
stored to “full force and effect” {id. at 178). Therefore, 
the court ordered that all class members in detention 
be released on parole under an interim plan, subject 
to certain terms and conditions {id. 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 par­
tial stay, authorizing future detention of excludable 
aliens refused parole in accordance with a properly pro­
mulgated regulation. On July 13, 1982, the court of ap­
peals 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 re­
sult, the members of the class were paroled, but subse­
quent arrivals have been detained in accordance with the 
new parole regulations, which are codified at 8 C.F.R. 
212.5 (J.A. 296).

4. Respondents appealed from the district court’s rul­
ing on the APA issue. Petitioners took a cross-appeal, 
pressing their due process and First Amendment claims, 
as well as two other claims that the district court had



10

dismissed on jurisdictional grounds in a preliminary rul­
ing (see page 6, supra).3

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 judgment in favor of respond­
ents on the Fifth Amendment discrimination claim, con­
cluding 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 ob­
served preliminarily that, although petitioners “consist­
ently 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). Accordingly, 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; foot­
note omitted).

The panel acknowledged that the government’s new 
parole policy was publicly described by high-level officials 
as requiring “evenhanded treatment” (J.A. 212). But it 
concluded that the evidence offered by petitioners pre­
cluded any such characterization of the parole policy ac­
tually implemented by low-level INS officials in the field.4

3 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.

4 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 en­
forcement may have been only a failure to clarify a general policy” 
(id. at 236), explaining (id. at 235) :



11

Notwithstanding the testimony of high-ranking “INS offi­
cials * * * 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’ ” 
(id. at 258), the panel concluded that petitioners had 
offered evidence of “intentional government discrimina­
tion against Haitians” (id. at 259) and that the govern­
ment had failed to overcome this showing (id. at 259- 
275).5

In light of its rulings, the court of appeals panel con­
cluded that petitioners had impermissibly been denied 
parole (J.A. 291). It directed that the parole of peti­
tioners ordered by the district court be continued, and 
remanded for entry of a remedial order that would ensure 
that the new parole policy “is effectuated in the future in 
a non-discriminatory manner” (ibid. ) :6

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,

5 The panel also held that the district court had erred in dismiss­
ing, 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 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 peti­
tioner, 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).

6 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, supplementing



12

5. The court of appeals granted the government’s peti­
tion for rehearing en banc (714 F.2d 96), thereby vacat­
ing the panel opinion (see 11th Cir. R. 26 (k )). The en 
banc court dismissed in part, reversed in part, and re­
manded 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, promul­
gated regulations in accordance with the APA, and be­
cause 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 judg­
ment based upon its APA ruling be vacated {ibid.).

With respect to the clue 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 an excludable alien is an 
integral part of the admissions process” {id. at 298; see 
also id. at 310-317), the court of appeals concluded that 
petitioners’ claim was barred by the well-settled rule that 
“ [alliens seeking admission to the United States * * * 
have no constitutional rights with regard to their applica­
tions and must be content to accept whatever statutory 
rights and privileges they are granted by Congress” {id. 
at 309). (The four other members of the court of appeals 
deemed it unnecessary to reach this issue. See page 15, 
note 8, in fra ).

Although the court of appeals thus held that the gov­
ernment’s parole policy was not subject to a constitutional

it as necessary to ensure there is no repetition of the equal protec­
tion violation” (J.A. 291 n.63).



13

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 discretionary 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 par­
ticular alien (id. at 326 (emphasis omitted), 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), judi­
cial review in this case could redress any unauthorized 
discrimination in the implementation of that policy (id. 
at 330-331) :

If the [district] court should find that low-level im­
migration 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.[7]

See also J.A. 299.

7 The parties had disputed whether Executive Branch officials 
share with Congress the authority to draw nationality-based dis­
tinctions among aliens seeking to enter the United States. See 
J.A. 328-329. Because the court of appeals determined that “re­
sponsible executive officials” had not sought to exercise such author­
ity here and had instead established a non-discriminatory parole 
policy, it concluded that “resolution of this question is 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).



14

The court of appeals remanded the case so that this 
nonconstitutional 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 rea­
son for [denying parole], remembering that it is not 
the court’s proper role “to disregard the [stated cri­
teria employed] or to substitute its own policy pref­
erences for those of the official vested by law with 
discretionary authority to act on requests for pa­
role” [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 deter­
minations were consistent with the statutory grant 
of discretion by Congress, the regulations promul­
gated by the agencies involved, and the policies which 
had been established by the President and the Attor­
ney General.

The court of appeals thus concluded (J.A. 342-343) that, 
although “ [excludable aliens cannot challenge the deci­
sions of executive officials with regard to their applica­
tions 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.” 8

8 The en banc court also addressed the asylum/notice and First 
Amendment access issues. The court of appeals held that the dis­
trict court had jurisdiction to consider whether petitioners have a 
constitutional right to be advised of their statutory right to seek 
asylum, but, on reaching the merits, held that there is no constitu­



B. Current Posture of this Case
Before discussing the questions presented by the peti­

tion, we believe that it would be useful to clarify the cur­
rent posture of this case. We do so because our further 
study of the decisions below and the arguments of peti­
tioners as they now emerge in this Court persuade us 
that the questions presented bear a rather remote rela­
tionship 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 
change in the dimensions of the case since the Court

tional 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 com­
munications (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 non­
constitutional 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 major­
ity’s ruling on the asylum/notice issue (id. at 353-354).

15



16

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 consid­
erations.

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 questions presented by petition­
ers is likely to have a substantial effect on the court of 
appeals’ judgment. We think this doubtful for two rea­
sons. 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 at­
tributable 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 pa­
role policy was embodied in a rule published under the 
APA. The INS has now promulgated the regulation re­
quired 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.® 9

9 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;



17

Of course, some members of the class apparently are 
now in detention, and others who are presently paroled 
may in the future again be detained. But any discrimina­
tion claims that might arise from such detention would be 
quite different from the claims made here.10

see page 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 11 note 6, 
supra.

10 Challenges to detention may in the future be raised by three 
classes of persons : (1) those class members who have been rede>- 
tained 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 to be ad­
vanced by any such persons, it would not arise out of the events 
and evidence reviewed by the district court pertaining to the gov­
ernment’s initial implementation of its new parole policy—the basis 
for the claims 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 pub­
lished 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 intro­
duction was purely transitional and temporary in nature (J.A. 170, 
235-236 & nn.24 & 26, 330; see pages 10-11 note 4, 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.l. And as to the final group of persons that



18

2. The court of appeals’ ruling already affords peti­
tioners an opportunity to seek relief from any unauthor­
ized discrimination on nonconstitutional grounds that are 
not before the Court. In such circumstances, the Court’s 
usual practice is to decline to decide constitutional ques­
tions unnecessarily. See New York City Transit Author­
ity v. Beazer, 440 U.S. 568, 582 & n.22 (1979); Ash- 
wander V. TV A, 297 U.S. 288, 348 (1936) (Brandeis, J., 
concurring).

The en banc court of appeals held that a denial of 
parole is re viewable'—wholly apart from the provisions of 
the Fifth Amendment—for abuse of discretion, and indi­
cated 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 na­
tional policy. See pages 12-14, 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 discrimina­
tion by low-level INS enforcement officials. Because of the 
availability of this statutory remedy, it may not be neces­
sary to decide here whether the Constitution grants peti­
tioners 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 mem­
bers 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 ap­
peals to reach the constitutional issue here, that the dis­
trict court and the panel had done so erroneously, and 
that the en banc court’s discussion of the issue was dicta 
(see page 15 n.8).

Moreover, this view of the case is reinforced by peti­
tioners’ acceptance of the court of appeals’ conclusion that

may be subject to detention, such detention would not follow auto­
matically 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, par­
ticular paroled aliens should be restored to detention.



the new parole and detention policy established by respon­
sible Executive Branch officials was nondiscriminatory 
(Pet. Br. 7-10, 30, 37, 38). Petitioners have altered their 
claim in this regard. The gravamen of that claim is now 
that INS field officials enforced a facially neutral deten­
tion policy in an unauthorizedly discriminatory fashion 
against Haitians (see, e.g., id. at i, 3, 10, 16, 21-22, 30, 
42).11 As petitioners’ argument now emerges (id. at 37; 
emphasis added) :

This case does not implicate the authority of Con­
gress, the President, or the Attorney General. 
Rather, it challenges the power of low-level politi­
cally 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 non­
discriminatory enforcement.

See also Br. 36-39. Given this reformulation of peti­
tioners’ claim, the court of appeals’ statutory analysis 
offers them a complete remedy.

11 Petitioners had heretofore claimed at least in part that re­
sponsible high-level INS officials had themselves designed a dis­
criminatory parole policy. Both the Attorney General and the INS 
Commissioner were named as defendants (J.A. 30) and the com­
plaint makes no mention of the theory that low-level officials were 
responsible for any discrimination. Instead, the: complaint charges 
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. 
C.A. Opening Br. 6-10 (panel). 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 10-11 n.4, 12-14, supra. The panel s 
opinion makes clear that petitioners there sought to prove discrimi­
natory 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 328-329 & n.30).

19



20

3. Petitioners’ discussion of the relief they seek con­
firms the peculiar posture of this ease. They complain, 
somewhat disingenuously, that the court of appeals’ re­
mand “is directed only to those ‘class members presently 
in detention’ ” and “provides no relief for[] the approxi­
mately 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 would 
be “injunctive relief to prevent the recurrence of the pat­
tern of discrimination to which Haitians have been sub­
jected” (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.12

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 Gen­
eral and other responsible Executive Branch officials have 
in recent years carefully formulated immigration policies

12 Petitioners have not explained the nature or scope of the in­
junction they seek. In light of the broad authority of the Attorney 
General to implement nationality classifications in enforcing the 
immigration laws (see pages 48-59, infra), the unlikelihood of the 
repetition of circumstances that underlie any colorable claim of 
discriminatory enforcement (see pages 17-18 n.10, supra), and doc­
trines 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, 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. Bowles, 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

deemed necessary to regain control of our borders. A key 
part of this effort is the restrictive parole policy chal­
lenged here, which is designed to discourage future waves 
of illegal immigration by greatly restricting the oppor­
tunity for excludable aliens to be paroled pending a de­
termination of admissibility. There is no warrant for 
reading the Constitution to authorize the courts to over­
ride 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 dem­
onstrated.

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 dis­
tinguished 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 con­
stitutional 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 mean­
ing 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 
Attorney General respecting their applications for admis­
sion to this country—or their demand for de facto ad­
mission by parole—invocation of the Fifth Amendment



22

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.l. 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 un­
admitted aliens into the United States “for emergent rea­
sons or for reasons deemed strictly in the public interest” 
(8 U.S.C. 1182(d) (5) (A )). In order to deal more effec­
tively with a threatened breakdown of governmental con­
trol over our borders and stem the tide of illegal immi­
gration, 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 Generars parole and deten­
tion authority is foreclosed by the long-settled principles 
set forth above. When unadmitted aliens seek temporary 
admission via parole pending the outcome of their exclu­
sion proceedings, the Attorney General’s exercise of dis­
cretion is part and parcel of the exclusion process itself. 
As this Court has observed, “detention, or temporary con­
finement” 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.

Indeed, any distinction between parole and admission 
would be wholly incompatible 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



23

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 disposi­
tion of his application for admission. A paroled alien 
may abscond, obtain employment (lawfully or unlaw­
fully) that would otherwise go to an American citizen, 
or cause other harms that our immigration laws are de­
signed to prevent. Moreover, as this case illustrates, 
parole often amounts to admission for an extended pe­
riod 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 here. 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 when the political branches have de­
nied that benefit.

C.l. The unavailability of extrastatutory judicial re­
view of denial of parole also follows from the broad au­
thority of the political branches to apply nationality dis­
tinctions 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 resi­
dent aliens are affected, such rules and classifications are 
not subject to the standards used to judge claims of dis­
crimination 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 clas­
sifications * * * in the light of changing political and 
economic circumstances” ; such classification decisions are



24

“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, 
which frequently represent policy initiatives integral to 
the conduct of our foreign relations. On occasion, nation­
ality classifications have been adopted “in order to make a 
humane response to a natural catastrophe or an interna­
tional 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 Exclu­
sion Case, 130 U.S. at 606. Because the Nation’s policies 
regarding admission of aliens are inextricably bound up 
with control over foreign affairs, 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 in­
consistent with the determinations of the political 
branches. The courts lack the expertise and information 
sources that would be necessary to 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. Accord­
ingly, 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.



25

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 provided ample justification for such a policy. As 
petitioners now concede, the restrictive parole policy in­
stituted 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 excluda­
ble Haitian and Cuban aliens, assumed special dimen­
sions in South Florida by mid-1981. That influx, which 
caused massive disruptions to the State of Florida and 
the communities affected, was a major factor in the 
adoption of the new parole policy. In these circum­
stances, and given the Attorney General’s determination 
that liberal parole merely encouraged further illegal en­
tries, it would have been entirely permissible to imple­
ment 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 EXCLUDA­
BLE 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 De­
terminations Related to Their Admission to the 
United States

1. From its very first examination of the federal gov­
ernment’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 sub­
stantive criteria and procedures for determining whether 
an alien should be admitted to the United States or



26

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 
§§ 15-16 (1967) ; 3 G. Hackworth, Digest of International 
Law § 294 (1942). “ [Ojver no conceivable subject is the 
legislative power of Congress more complete than it is 
over” the admission of aliens (Oceanic Steam 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 re­
gard enforced exclusively through executive officers, 
without judicial intervention, is settled by our pre­
vious 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 proceed­
ings conforming to traditional standards of fairness en­
compassed 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 Con­
gress 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,



27

and courts cannot substitute their judgment for the legis­
lative mandate.” Mezei, 345 U.S. at 216. See also Nishi- 
mura Ekiu V. United, States, 142 U.S. at 660 (emphasis 
added):

It is not within the province of the judiciary to or­
der that foreigners who have never been naturalized, 
nor acquired any domicil or residence within the 
United States, nor even been admitted into the coun­
try pursuant to law, shall be permitted to enter, in 
opposition to the constitutional and lawful measures 
of the legislative and executive branches of the na­
tional 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 extrastatutory 
protection for unadmitted aliens seeking initial admis­
sion has consistently been recognized. The Court ob­
served in Leng May Ma v. Barber, 357 U.S. 185, 187 
(1958):

[0]ur immigration laws have long made a distinc­
tion 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 ex­
tended to those in the former category who are 
merely “on the threshold of initial entry.”

Similarly, the Court indicated in Kwong Hai Chew V. 
Golding, 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 Amendment.”

In Kleindeinst V. Mandel, 408 U.S. 753, 762 (1972), 
the Court reiterated that “an unadmitted and nonresi­



28

dent alien [has] no constitutional right of entry to this 
country as a nonimmigrant or otherwise,” explaining that 
this doctrine is rooted in the core notion of national sov­
ereignty {id. at 765, quoting Gov’t Br. at 20; emphasis 
added):

In accord with the ancient principles of the interna­
tional law 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 to exclude 
aliens is “inherent in sovereignty, necessary for 
maintaining normal international relations and de­
fending 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 constitu­
tional rights regarding his application, for the power to 
admit or exclude aliens is a sovereign prerogative.” Lon­
don 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).13 Accordingly, under the settled principles dis­
cussed above, they are “ ‘excludable’ aliens who are not 
within the protection of the Fifth Amendment.” Kwong

13 The physical presence of class members within the boundaries 
of the United States does not alter their status in this regard. The 
Court has long recognized that an unadmitted excludable alien’s 
legal status is not affected by his physical presence within the ter­
ritorial 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”).



29

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 sanc­
tioned procedures regarding the determination of admis­
sibility or denial of entry. At the outset of their argu­
ment, however, petitioners attempt to sidestep the thrust 
of these governing precedents by stating the question 
presented in inflammatory terms and misrepresenting the 
holding of the court of appeals. Contrary to petitioners’ 
submission (Br. 25-29), the question presented here as­
suredly 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 ques­
tion 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 governmen­
tal 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 impli­
cated” (id. at 317-318; see also id. at 319-320). There is 
no reason to consider in this case the extent of constitu­
tional protection available to excludable aliens in con­
texts removed from immigration proceedings that gov­
ern 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



30

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 hold­
ing of Mezei cannot be averted here (345 U.S. at 212, 
quoting 338 U.S. at 544) : “ ‘Whatever the procedure au­
thorized by Congress is, it is due process as far as an 
alien denied entry is concerned.’ ” As the Court’s lan­
guage clearly indicates, Mezei does not suggest that ex­
cludable 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 con­
stitutional 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 London v. Plasencia, 459 U.S. at 32. Ac­
cordingly, petitioners’ vigorous efforts to establish that 
excludable aliens are “persons” within the Fifth Amend­
ment are directed at a straw man. Plainly it is petition­
ers 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 con­
texts” (Br. 27).14

14 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 law 
(Br. 25-27) are inapposite. None of these cases addresses the 
right of excludable aliens to challenge on Fifth Amendment



31

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

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 il­
legally—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. Plyler, 
457 U.S. at 210. Petitioners’ reliance on Mathews V. Diaz, 426 
U.S. 67, 77 (1976), 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 enforce­
ment of the immigration laws.

Russian Volunteer Fleet V. United States, 282 U.S. 481 (1931), 
addresses only the obligation of the United States to pay just com­
pensation to an alien corporation when the government takes prop­
erty located within the United States; in any event, the Court ulti­
mately 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), con­
siders only whether the Sixth Amendment right to jury trial ap­
plies in Puerto Rico. Applying the doctrine of the Insular Cases 
(Downes V. Bidwell, 182 U.S. 244 (1901), Hawaii v. Mankichi, 
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 
* * * wherever and whenever the sovereign power of that govern­
ment is exerted” (258 U.S. at 312). They ignore, however, the



32

aliens are subject to constitutional scrutiny” (Pet. Br. 
36). Again petitioners serve up a smorgasboard of au­
thorities directed at other issues while adducing none that 
is pertinent here. See also pages 30-32 note 14, 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” is subject to any restraint imposed by 
“the Constitution itself” (130 U.S. at 604), it concluded 
that the Constitution imposes no restraint upon the au­
thority of Congress 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 clas­
sification 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. Al­
though 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 administratively imposed citizenship require­
ments 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

holding of Balzac, which undermines their position. They also 
neglect, the Court’s reconciliation of its holding with its acknowl­
edgment that the Constitution “applies” in Puerto Rico (ibid.) :

The Constitution, however, contains grants of power and limi­
tations which in the nature of things are not always and every­
where applicable, and the real issue in the Insular Cases was 
not whether the Constitution extended to the Philippines or 
Porto Rico when we went; there, but which 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

that any agent of the National Government may arbi­
trarily subject all resident aliens to different substantive 
rules from those applied to citizens” {id. at 101).15

Petitioners also rely on the following language in 
Fiallo v. Bell, 430 U.S.' 787, 793 n.5 (1977) : “Our cases 
reflect acceptance of a limited judicial responsibility under 
the Constitution even with respect to the power of Con­
gress to regulate the admission and exclusion of aliens 
* * * .” This statement is unaccompanied by any cita­
tion of supporting precedent. In any event, read in con­
text Fiallo suggests only that classifications respecting 
aliens are subject to judicial review—albeit of a highly 
deferential nature—when those classifications directly af­
fect 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 ex­
tended special preference immigration status to an il­
legitimate child of a female United States citizen or law­
ful permanent alien, but denied a similar preference to 
an illegitimate child of a citizen or resident father. Ap­
plying the exceedingly deferential standard of review 
announced in Kleindeinst v. Mandel, supra, the Court con­
cluded that the legislative classification should be sus­
tained 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 deci­

15 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 contexts. 
In any event, as we have explained (pages 29-30), 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

sion” (id. 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 partic­
ular 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, quot­
ing 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 discrimination allegedly “infring [ing] upon the due 
process rights of citizens as legal permanent residents” 
and “implicatfing] ‘the fundamental constitutional in­
terests of United States citizens and permanent resi­
dents’ ” (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.

Accordingly, in Fiallo the Court simply had “no occa­
sion 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 793 n.5).16 Nothing in Fiallo—which emphatically re­

16 This view of the ease is corroborated by the Court’s reliance 
(430 U.S. at 794-795) on Kieindeinst v. Mandel. The Fiallo plain­
tiffs had argued that because the rights of United States citizens 
or residents were implicated, the Court should apply a less defer­
ential standard of review than that employed in Mandel. The 
Court responded that Mandel also had concerned an alleged in­
fringement of citizens’ rights (under the First Amendment). 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



35

fused to depart from past precedents governing the proper 
relationship of the courts to the political branches of gov­
ernment respecting admission-related determinations and 
classifications (see id. at 792-793 n.4)—indicates that the 
Court has abandoned or qualified the entry doctrine. Be­
cause 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’ conten­
tions.

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 deten­
tion pending a determination of admissibility. The court 
of appeals correctly rejected this contention (J.A. 311- 
317).

a. The statutory command to detain “for further in­
quiry” every alien not “clearly and beyond a doubt en­
titled to land” (8 U.S.C. 1225(b)), which implements the 
Nation’s plenary authority to exclude aliens, and the statu­
tory grant to the Attorney General of discretionary au­

Court concluded that the citizen-plaintiffs there had asserted a 
non-frivolous claim that their own First Amendment rights were 
infringed by the alien plaintiff’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 
alien’s 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 estab­
lish the availability of limited judicial review in the admission 
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

thority 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 in­
extricably 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 un­
admitted aliens pending exclusion proceedings. The dis­
cretionary authority to grant or withhold parole is, more­
over, inextricably bound up with the inherent sovereign 
authority to exclude and detain aliens. Indeed, the At­
torney General’s discretionary parole authority may be 
exercised only with respect to an “alien applying for ad­
mission 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.17

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 “inter­

17 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 mean­
ing 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 al­
ready been concluded may be reopened on the basis of a request 
for asylum. 8 C.F.R. 208.11.



37

fere with the power of Congress and the President to 
determine admission questions” (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 
excludable aliens have 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 con­
siderations—such as employment and national security 
concerns.—that justify restrictions on admission.” 18 And 
as the court of appeals further noted, although a grant 
of parole is “subject to certain restrictions and is theo­
retically of a short-term character,” the “reality can be 
quite different,” for “an alien with a skilled attorney can

18 We are somewhat mystified by petitioners’ unexplained asser­
tion that “[t]he word ‘parole’ has two entirely separate meanings 
in immigration law,” suggesting that this case involves only “tem­
porary parole” as distinguished from some other kind of non- 
temporary parole (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 “tempo­
rary parole” to. distinguish parole from the admission of refugees 
who are, but for their refugee status, ineligible for admission. See 
page 36 note 17, 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. 
Stevie, No. 82-973 (June 5, 1984), slip op. 7), Section 203(f) of 
the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 107, added the 
provisions now found in 8 U.S.C. 1182(d) (5) (B) that strictly limit 
the use of parole as a substitute for admission of an alien as a 
refugee.



38

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 govern­
ment’s parole and detention policy, precisely this phenom­
enon 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 .ll (1982)).19

19 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 government 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 (4/1/82 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 pre­
sumptively ineligible for admission, coupled with the former policy 
of routine parole, that created an institutional threat to national 
well-being. 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

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 admission process itself, without severely undermin­
ing 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” that, 
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 doc­
trine were inapplicable to parole determinations, as peti­
tioners submit, parole litigation would assuredly have the 
impermissible effect of displacing the properly “political 
decisions as to whom we will permit, even temporarily, to 
join our society” (Br. 35.)20 This is especially so where, 
as here, the President and Attorney General deieded to im­
plement 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, siipra.21

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

20 Denial of parole is readily distinguishable from the hypotheti­
cal measures that troubled Justice Jackson in Mezei—“ejectfing an 
alien] bodily into the sea or [setting] him adrift in a rowboat” 
(345 U.S. at 226) (dissenting opinion). In contrast to these un­
likely hypotheticals, simple confinement of an unadmitted alien 
pending determination of admissibility is “ancillary to exclusion” 
(id. at 227).

21 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 manipu­
late our immigration system in a manner that “would ultimately 
result in our losing control over our borders.”



40

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” {ibid.). See also Carlson v. Lan~ 
don, 342 U.S. 524, 538 (1952) (“Detention is necessarily 
a part of this deportation procedure. Otherwise aliens 
arrested for deportation would have opportunities to 
hurt the United States during the pendency of deporta­
tion 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 ex­
clude him but sought only release pending implementa­
tion 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 chal­
lenging 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. Feather, under Mezei the entry doctrine also fore­
closes efforts to litigate the propriety of denial of in­
terim parole.

2. Petitioners also argue (Br. 35) that even if parole 
determinations are conceded in the abstract to be suffi­
ciently related to the political branches’ unreviewable 
authority over admission itself, extrastatutory judicial re­
view of the former may not be foreclosed under the entry



41

doctrine unless it is demonstrated that the authority to 
exercise parole discretion in a discriminatory manner is 
equally intimately bound up with the unreviewable polit­
ical concerns entrusted exclusively to the Legislative and 
Executive Branches. Petitioners’ argument is fallacious: 
it would effectively circumvent the entry doctrine by re­
quiring 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 collateral claims as well as foreclosing any 
claims of a substantive right to enter. Petitioners press 
an equal protection claim that they portray as analyti­
cally distinct from any assertion of a substantive right 
to parole. Granting parole to class members, they sug­
gest, would merely be a remedy for a kind of collateral 
wrong they have allegedly suffered: discrimination in the 
administration 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 deter­
mine that the reasons for denying parole without a hear­
ing were sufficiently compelling and sufficiently related to 
sovereign prerogatives to preclude judicial review. Com­
pare 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 “en­
trant alien,” the “Attorney General [could] lawfully 
exclude [him] without a hearing as authorized by emer­
gency regulations promulgated pursuant to the Passport 
Act.” (id at 214-215).



42

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 Jackson’s dissent makes clear (345 U.S. at 224- 
228), because Mezei could have been afforded (at the gov­
ernment’s election) a hearing, rather than parole, as a 
remedy, his claim was not inextricably bound up with the 
power to exclude; petitioners’ due process claim, by con­
trast, 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 dis­
crimination : 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 
“nullified d] the very purpose of the exclusion proceed­
ing,” 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 delega­
tion of authority to the Attorney General. Cf. INS v. 
Miranda, 459 U.S. 14, 19 (1982) ; INS v. Hibi, 414 U.S. 
5 (1973).22 Under the entry doctrine, the bar to judicial 
review importing extrastatutory criteria lies not in the

22 Contrary to petitioners’ suggestion (Br. 24 n.28), even the 
strong policy against discrimination reflected in many aspects of 
our laws does not invariably override powerful countervailing pol­
icies that would limit the availability of remedies to persons claim­
ing to have suffered unconstitutional discrimination. See, e.g., 
Chappell V. Wallace, No. 82-167 (June 13,1983).



nature of the right asserted, but in the unavailability of 
the remedy requested.23

3. Petitioners attempt (Br. 40-43) to distinguish Mezei 
on a variety of narrow factual grounds. These efforts 
are unpersuasive.

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 pend­
ing 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 deter­
mination of admissibility is a necessary adjunct of the 
plenary power to exclude those who will ultimately be 
found inadmissible under the applicable statutory stand­
ards. If anything, the factual comparison between this 
case and Mezei suggests that Mezei’s claim was more com­
pelling than that of petitioners. Mezei was already under 
a permanent exclusion order and was being detained prep­
aratory 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 com­
pletion of their exclusion hearings—and resolution of

43

23 The inappropriateness of judicially-mandated parole as a remedy 
for discrimination in the 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 in­
stances where a final order of exclusion is entered. On 
the other hand, any class members who demonstrate ad­
missibility will in due course be admitted. No legally 
cognizable hardship arises from the requirement that pe­
titioners 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 differ­
ence. 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 
Mezei 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 stat­
utory 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 Gen­
eral’s exercise of his statutory parole discretion may be 
reviewed under some nonconstitutional abuse of discre­
tion standard or for consistency with the applicable stat­
utory policy.24 The availability of parole pursuant to 
statute plainly affords no reason to question the rule that 
Congress has complete authority to establish procedures 
and standards governing entry and parole of aliens into 
the United States.

24 Of course, the court below held that such nonconstitutional re­
view is available. See pages 12-14, supra.



45

c. Petitioners also appear to suggest (Br. 42 & n.49, 
46) that Mezei is distinguishable as a Cold War relic in­
volving 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 peti­
tioners’ 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 exist­
ence 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 “aggres­
sion and encroachment” from abroad, whether in the 
form of “the foreign nation acting in its national char­
acter,” 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 ex­
ercise of exclusion authority] in one case must also deter­
mine it in the other. In both cases its determination is 
conclusive upon the judiciary” (i b i d emphasis added). 
See also Harisiades v. Shaughnessy, 342 U.S. at 588-590.



46

d. Ultimately, perhaps despairing of distinguishing 
this Court’s pertinent decisions, petitioners ask the Court 
to overrule these authorities. (Br. 23, 40, 44-46). In sup­
port of this venturesome request petitioners intimate (Br. 
45) that “recent developments have eviscerated Mezei’s 
rationale.” 25 But as we have demonstrated (pages 25- 
29), Mezei marks no departure from the consistent 
thread of this Court’s teachings regarding the protections 
afforded to unadmitted aliens. Moreover, the “assump­
tions” that in petitioners’ view underlie Mezei and that 
are further said no longer to be valid in fact either re­
tain 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 ex­
cludable 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 sep­
aration of powers, and the conclusion that the only con­
tent 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 25-35), the unreviewability under 
the Fifth Amendment of exclusion decisions affecting only 
the rights of unadmitted aliens remains the law today.

Petitioners’ argument, at bottom, asks the Court sim­
ply to discard its past precedents in favor of a new doc- 26

26 Petitioners also seek to discredit Mezei by asserting, incor­
rectly, that a plurality of the Court subsequently “strongly sug­
gested disapproval of Mezei’s extreme position when it stated that 
the decision created an ‘intolerable situation’ ” (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 “in­
tolerable 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

trine petitioners believe to comport better with desirable 
policy. This the Court has refused to do. Rather, its de­
cisions “confirm th [e] view” that “an alien seeking initial 
admission to the United States * * * has no constitu­
tional rights regarding his application” (Landon v. Pla- 
sencia, 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 exposi­
tion 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 
extent of 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 involv­
ing 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 im­
migration. law.20 26

26 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 impossi­
bility 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 they are ultimately 
denied admission). Ibid. Moreover, petitioners, unlike Mezei, can­
not 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 20, and page 42, 
supra.



48

C. Because Nationality Distinctions Are Inherently Per­
missible 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 pro­
tection 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. 40-43) 
why the nature of the claim presented here provides no 
basis for distinguishing this Court’s precedents and can­
not serve to reconcile the relief demanded—judicially di­
rected release of unadmitted aliens into the United States 
—with the plenary authority of Congress and the Ex­
ecutive 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. Signifi­
cantly, 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 na­
tionality distinctions are not subject to the standards that 
would ordinarily govern scrutiny of nationality distinc­
tions 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 pro­
tection component. See Boiling 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 coextensive. Not 
only does the language of the two Amendments dif­
fer, but more importantly, there may be overriding



49

national interests which justify selective federal leg­
islation that would be unacceptable for an individ­
ual State.

Hampton V. Mow Sun Wong, 426 U.S. a t  100 (footnote 
omitted). Specifically, “the Fourteenth Amendment’s lim­
its 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, 86-87 (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 “dis­
crimination within the class of aliens” comparable to that 
provided by the Fourteenth Amendment (Diaz, 426 U.S. 
at 80 (emphasis omitted)). Because decisions respect­
ing 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 neither re­
quirement 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 clas­
sifications in the immigration law. 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



50

the availability of alternatives (430 U.S. at 794, 798- 
799). In short, classifications of this kind—presump­
tively 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 nec­
essarily implicates the relationship of the United States 
with aliens and foreign countries, nationality-based clas­
sifications are precisely the kind of classifications re­
specting aliens that are entirely legitimate. Indeed, it is 
difficult to imagine that any sovereign nation would dis­
able 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. For 
example, Congress historically imposed a nationality-based 
quota system on the issuance of immigrant visas. Prior 
to 1965, each foreign country had a specified immigra­
tion quota. Compare 8 U.S.C. (1964 ed.) 1151 (nation­
ality-based quota system) with 8 U.S.C. 1151 (world­
wide numerical limitations). And it could not seri­
ously 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 At­
torney General also has long drawn distinctions among 
aliens on the basis of nationality, and Congress has not 
disturbed this administrative practice. See, e.g., Saxbe 
V. Bustos, 419 U.S. 65 (1974).27 The courts have consist­
ently recognized the validity of these classifications.28

27 See also 8 C.F.R. 101.1 (presumption of lawful admission for 
certain national groups) ; 8 C.F.R. 212.1 (documentary require­
ments for nonimmigrants of particular nationalities) ; 8 C.F.R. 231 
(arrival-departure manifests for passengers from particular coun­
tries) ; 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).

28 See, e.g., Malek-Marzban v. INS, 653 F.2d 113 (4th Cir. 1981) 
(amendment to rule on voluntary departure to reduce the time



51

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 nat­
ural 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 com­
petent political authority enlarge or restrict the privi­
leges of aliens. It can scarcely be doubted that the vari­
ous administrative initiatives taken with respect to 
Iranian nationals in response to the occupation of this 
Nation’s embassy in Teheran (see pages 50-51 note 28, 
supra) served the most 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 effec­
tively 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, Czecho-

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, 617 F.2d 745 (D.C. Cir. 
1979), cert, denied, 446 U.S. 947 (1980) (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 Hemi­
sphere given preference not applicable to alien relatives of Western 
Hemisphere resident aliens); Alvarez v. District Director, 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 discretionary relief from deportation 
inapplicable to aliens from Western Hemisphere).



52

Slovakia or Afghanistan), or the consequences of our own 
international engagements (e.g., the flood of refugees 
from Vietnam after the fall of Saigon).28

c. It is accordingly clear beyond peradventure that 
Congress and the Executive have exceedingly broad au­
thority to apply nationality classifications under the im­
migration laws.29 30 Thus, even if the Court were prepared 
to reassess the doctrine of the entry cases, it would be 
particularly inappropriate to do so in the context of a 
challenge to the political branches’ authority to recognize

29 As the court of appeals observed (J.A. 329 & n.30), the deci­
sions of this Court make clear that, at least absent contrary statu­
tory language (see, e.g., 8 U.S.C. 1152(a), prohibiting—with stated 
exceptions—specified forms of discrimination in issuance of im­
migrant 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 at 747. Here, of course, Congress has explicitly 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 also1 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.

30 Contrary to the assumption that pervades petitioners’ brief 
(see, e.g., pages i, 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), petitioners’ evidence was in 
fact focused on nationality discrimination against Haitians. More­
over, 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 (Br. 10-18)—contains any sugges­
tion that Haitians were classified for disparate treatment because 
they are black.



53

nationality classifications among aliens seeking to enter 
the United States. Petitioners evidently contend (Br. 36- 
39) that judicial review of nationality classifications— 
even in this wholly “political” context-—should be gov­
erned 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 unad­
mitted aliens is, however, most faithful to separation of 
powers concerns and is supported by compelling policy 
considerations.31

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 the light of changing political 
and economic circumstances” and that are “more appro­
priate to either the Legislature or the Executive than to 
the Judiciary” (Diaz, 426 U.S. at 81). Extrastatutory re­
view of the exercise of the Attorney General’s parole dis­
cretion, even under a deferential standard, would unde­
sirably “inhibit the flexibility of the political branches of 
government to respond to changing world conditions” 
(ibid.). The courts simply are not possessed of the requi­
site expertise or familiarity with international relations 
problems properly to evaluate the policy determinations 
of the political branches respecting nationality classifica­

81 We note that any substantive difference between the two stand­
ards 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’ ” (id. at 799; citation omitted). 
Indeed, the Court has not required that the author of the classifica­
tion even articulate its justification. Ibid. (“Congress obviously 
has determined that preferential status is not warranted for il­
legitimate 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 determinations” (emphasis added)). It is enough that 
the classification be applied and its rationality discernible.



54

tions that may be employed in the administration of pa­
role authority. See Narenji v. Civiletti, 617 F.2d 745, 748 
(D.C. Cir. 1979), cert, denied, 446 U.S. 947 (1980), 
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 judg­
ment on the decisions of the President in the field of 
foreign policy. Judges are not expert in that field 
and they lack the information necessary for the for­
mation of an opinion. The President on the other 
hand has the opportunity of knowing the conditions 
which prevail in foreign countries, he has his confi­
dential sources of information and his agents in the 
form of diplomatic, consular and other officials.

In the final analysis there simply are no “judicially dis­
coverable 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 nation­
ality 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 clas­
sification had been imposed. And it would be burden­
some 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 in­
stances, judicial review of the justifications for nation­
ality classifications would intrude upon sensitive or con­
fidential matters that are the subject of intergovern­
mental 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



55

weapon in the President’s arsenal in dealing with an in­
ternational crisis. There is simply no warrant for judi­
cial oversight that may potentially be embarrassing to 
the United States’ relations with other nations or detri­
mental 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 ex­
isted 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 en­
forcement, 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 re­
turn 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 spe­
cial administrative measures to assure efficient imple­
mentation 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 ex­
cludable Haitian aliens, whose numbers were daily being 
augmented by a “continuous 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 “boatlift.” The federal gov­
ernment assigned a special “Cuban/Haitian” entrant 
status to the Mariel Cubans and to the Haitians who had



56

arrived by October 10, 1980, and it aided in efforts to 
resettle them (J.A. 120). But, as the district court ex­
plained, “ [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 con­
tinues to do so.” Ibid.

In the circumstances, it would have been wholly ra­
tional 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 1981.32 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 unregu­
lated presence of illegal aliens within the United States. 
See pages 3, 37-39, supra. It also would have been reason­
able for decision makers to conclude that the new direc­
tion 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. Devot­
ing special administrative attention to the continuing in­
flux of Haitian aliens thus would have been entirely per­
missible, if that did indeed occur.33

32 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 permis­
sive attitude toward illegal immigration” and that the Marie! 
“boatlift” had the “greatest impact” in catalyzing this change (J.A. 
198).

33 As we have explained (pages 18-19 & note 11), petitioners 
have in this Court shifted or at least refined their claim so that 
they now attribute any discrimination solely to low-level INS en­
forcement officials. This new emphasis cannot affect the resolution 
of the constitutional question they present in this case. The au­
thority to parole unadmitted aliens has been committed by Congress 
to the Attorney General. It is fundamental that even when exer­



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 refu­
gees in deciding to incarcerate them initially, and in 
prolonging their incarceration without parole pending a 
determination of their asylum claims.” As we have ex­
plained in more detail in our Brief in Opposition (pages 
17-19 & n.13), however, petitioners have gravely mis­
represented 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, 
because the en banc court of appeals vacated the panel 
decision. See page 12, supra.3* The opinion of the 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 peti­
tioners’ 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 34

cised by his delegates, that authority is exercised in the name of 
the Attorney General; their actions are his in contemplation of 
law. See 8 U.S.C. 1103(a). Any lack of conformity by the Attor­
ney 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.

34 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

showing that a nationality classification was applied would 
be sufficient to establish impermissible discrimination. 
See pages 48-52, supra. So far as the panel was con­
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 in­
tended (see J.A. 243-244).35

Moreover, the panel treated the case as though it pre­
sented a garden variety claim of invidious discrimination 
in a domestic context, relying upon cases concerning state 
action decided under the Fourteenth Amendment, in dis­
regard of this Court’s decisions establishing a quite dif­
ferent standard of review even for claims of discrimina­
tion 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 re­
garding jury selection challenges (J.A. 243-244). This 
Court’s decisions, of course, make clear that statistical 
demonstrations of disparate impact—which were the back­
bone of petitioners’ evidentiary submission—go much 
further toward establishing proof of discriminatory pur­
pose in the jury selection context than they do in other 
cases. See Castaneda v. Partida, 430 U.S. 482, 493-494 
(1977); Washington y. 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,

35 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 .ll) . The panel added (ibid.) that 
“[t] he effect of the line-drawing suggested by some [of the evi­
dence] * * * [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’ immi­
grants.” As we have explained above (pages 55-56), such a clas­
sification, if it indeed occurred, would have been at the very least 
presumptively permissible.



59

burdens and methods of proof applied in eases 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 y. Davis, 426 U.S. at 238. Finally, the panel 
displayed little of the required deference to the district 
court’s findings of fact. See Pullman-Standard v. Swint, 
456 U.S. 273 (1982). Accordingly, even if it were rele­
vant, 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

J oshua I. Schwartz 
Assistant to the Solicitor General

Barbara L. Herwig 
Michael J ay Singer 

Attorneys

February 1985

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