Jean v. Nelson Brief for Petitioners

    No. 84-5240

IN  TH E

Supreme Court of tfje ®lntteb States;
October  T e r m , 1984

Marie Lucie J ean, E t A l.,
Petitioners,

v.
A lan C. N elson, E t A l.,

Respondents.

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

BRIEF FOR PETITIONERS

Counsel:
Bruce J. W inick, E sq.
Irwin P. Stotzky, E sq. 
Christopher Keith Hall, E sq. 
Michael J. Rosen, E sq.
Of Counsel:
F ried, F rank, Harris, Shriver 

& Jacobson
By: Robert E. Juceam, E sq.

Terrence A. Corrigan, E sq.
Attorneys for Petitioners

Counsel of Record: 
Ira J. Kurzban, E sq.
Kurzban, Kurzban & 

Weinger, P.A. 
Suite 901
700 Brickell Avenue 
Miami, Florida 33131 
(305) 371-0268

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 (301) 864-6662



1

QUESTIONS PRESENTED1
Is invidious discrimination on the basis of race and national­

ity by immigration enforcement officials, acting pursuant to 
neutral statutes and directives, in the incarceration of ex­
cludable black Haitian refugees in detention camps, wholly 
beyond constitutional scrutiny?

Whatever judicial deference may be accorded the actions of 
Congress and the President in exercising their authority to 
admit or exclude aliens, does such deference wholly preclude 
constitutional review of the established invidiously discrimina­
tory conduct of low-level government officials in regard to 
non-admission questions?

Does Shaughnessy v. United States ex rel. Mezei, 345 U.S. 
206 (1953), have continuing validity, and should it be extended 
to permit invidious discrimination based on race and national 
origin by Immigration and Naturalization Service enforcement 
officials in the incarceration of aliens pending a determination 
of their asylum claims? 1

1 The parties to the proceedings are listed below. The petitioners 
are: Marie Lucie Jean, Lucien Louis, Herold Jacques, Jean Louis 
Servebien, Pierre Silien, Wilner Luberisse, Job Dessin, Joel Casmir, 
Serge Verdieu, Milfort Vilgard, and the heirs of Prophete Tal­
leyrand, on behalf of themselves and all others similarly situated. Mr. 
Talleyrand committed suicide during the pendency of this suit while 
being held in detention by the Immigration and Naturalization Ser­
vice.

The respondents are: Alan C. Nelson, Commissioner, Immigration 
and Naturalization Service; Perry Rivkind, District Director, 
Immigration and Naturalization Service, District VI; Leonard Row­
land, Assistant District Director for Deportation, Immigration and 
Naturalization Service, District VI; Franklin Graves, Immigration 
and Naturalization Service, Officer in Charge, Krome Avenue North 
Detention Facility; The Immigration and Naturalization Service; and 
William French Smith, Attorney General of the United States.



11

TABLE OF CONTENTS

Table of Au th o rities .......... ........................................   jv
Opinions Below ..............    i
J urisdictional Statem ent .................................................. 1
Constitutional And Statutory P rovisions Involved 2 
Statement of the Case ......................................................  3

1. The Petitioners And The Applicable Statutory, Reg­
ulatory And Treaty Provisions .................................  4

2. The Genesis Of The Case ............................................ 7
3. The Announced, Facially N eutral Detention Policy 7
4. The Detention Policy Applied To Haitians: Proof Of

Discrimination Under Arlington Heights ............... 10
a. Statistical And Non-Quantitative Evidence Of

A Disproportionate Impact ...............................  11
b. Historical Background Of D iscrim ination___ 14
c. O ther Factors Under Arlington Heights ___ 16
d. No Justification Existed Or Was Offered For

The Proven Invidious Discrimination Against 
P e titio n e rs ..............................................................  17

5. The Devastating Effect Of Incarceration ............... 18
Summary of Argument . . . ........   21
Argum ent................................................................................. 24

I. Black Haitian Refugees Are E ntitled to E qual 
P rotection of The La w .............. ..............................  24

A. Excludable Aliens Are “Persons” Protected By
The Fifth Amendment .......................................  25

B. None Of The Cases Cited By The Lower Court
Could Possibly Justify A Finding That Petition­
ers Are Not Persons Within The Meaning Of 
The Fifth Amendment .......................................  28

Page



Ill

Table of Contents Continued
Page

II. Permitting Constitutional Scrutiny of D iscrimi­
natory Incarceration by Immigration E nforce­
ment Officials of E xcludable A liens Pending A 
D etermination of Their A dmissibility W ould 
N either Hamper the E xecutive’s E nforcement 
of Immigration Laws N or Interfere W ith the 
Sovereign A uthority of Congress and the Presi­
dent To Decide W ho W ill Be Permitted E ntry 
Into Our Society ..........................................................  29
A. The Considerations Of National Sovereignty

And Separation Of Powers That Insulate Deci­
sions Concerning Admission Of Aliens Into Our 
Country From Close Judicial Scrutiny Do Not 
Apply To Decisions Concerning Incarceration 
Of Aliens Pending A Determination Of Their 
Admissibility.............................. ............ .........  31

B. Since Even Congressional And Presidential
Decisions Concerning The Admission Of Aliens 
Are Subject To Constitutional Scrutiny, Dis­
crim inatory Incarceration By Subordinate 
Agency Officials Must Be Subject To Con­
stitutional R ev iew ............................................. 36

III. T he L ower Court Improperly R elied  U pon 
Shaughnessy v. United States E x R el. Mezei,
345 U. S. 206 (1953), Which Is N ot Controlling and 
The U nderlying Premises of Which Have Been
Rejected ...........................................................................  39
A. Mezei Does Not Control This C a s e ................ 40
B. The Underlying Premises Of Mezei Have Been

Rejected By Subsequent Constitutional Devel­
opments ...........................    44

Conclusion ...............................................................................  46



IV

TABLE OF AUTHORITIES
Cases:
Afroyim  v. Rusk, 387 U.S. 253 (1967)

Page
45

Arlington Heights v. Metropolitan Housing Develop­
ment Corp., 429 U.S. 252 (1977) ........ii, 10, 12, 15, 16

Augustin v. Sava, 735 F.2d 32 (2d Cir. 1984) .............. 26
Balzac v. Porto Rico, 258 U.S. 298 (1922) .................... 26
Bell v. Burson, 402 U.S. 535 (1971)...............................  45
Board of Regents v. Roth, 408 U.S. 564 (1972) ........... 45
Bolling v. Sharpe, 347 U.S. 497 (1954) ......................... 44
Carlson v. Landon, 342 U.S. 524 (1952) .................... 29, 30
The Chinese Exclusion Case, 130 U.S. 581 (1889) . . .  23, 36 
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) . 4
Ex parte Milligan, 71 U.S. (4 Wall.) 281 (1866) . 26, 36, 39
Fiallo v. Bell, 430 U.S. 787 (1977) ......................  23, 35, 36
Fong Yue Ting v. United States, 149 U.S. 698 (1893) 34, 36
Goldberg v. Kelly, 397 U.S. 254 (1970)  ........................ 45
Goss v. Lopez, 419 U.S. 565 (1975).................................  45
Greenholtz v. Inmates of Neb. Penal & Correctional 

Complex, 442 U.S. 1 (1979) ................................. ... 34
Haitian Refugee Center v. Civiletti, 503 F. Supp. 442 

(S.D. Fla. 1980), affd as modified sub nom. Haitian 
Refugee Center v. Smith, 676 F.2d 1023 (5th Cir.
1982)...........................................................................  5, 16

Hampton v. Mow Sun Wong, 426 U.S. 88 
(1976) ..................................................... 23, 36, 37, 38

Hernandez v. Texas, 347 U.S. 475 (1954)...................... 24
Hudson v. Palmer, 104 S. Ct. 3194 (1984) .................... 24
The Japanese Immigrant Case (Kaoru Yamataya v. 

Fisher), 189 U.S. 86 (1903).......................................  26
Jean v. Meissner, 90 F.R.D. 658 (S.D. Fla. 1981) ___ 1
Jean v. Nelson, 105 S.Ct. 565 (1984) ...........................  1; 21
Jean v. Nelson, 733 F.2d 908 (11th Cir. 1984).............. 1
Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984)........passim
Jean v. Nelson, 711 F.2d 1455 (11th Cir. 1983) . . . .  passim



V

Jean v. Nelson, 683 F.2d 1311 (11th Cir. 1982)............ 1
Kaplan v. Tod, 267 U.S. 228 (1925) ...........................  32, 43
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) .. 45
Kleindienst v. Mandel, 408 U.S. 753 (1972) ........  34-35, 40
Korematsu v. United States, 323 U.S. 214

(1944) ..........................................................  25, 30, 36, 39
Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) .. 28, 29
Landon v. Plasencia, 459 U.S. 21 (1982) ...................... 28
Lee v. Washington, 390 U.S. 333 (1968) .......................  24
Leng May Ma v. Barber, 357 U.S. 185 (1958) . 6, 8, 22, 32 
Louis v. Meissner, 532 F. Supp. 881 (S.D. Fla. 1982) . 1
Louis v. Meissner, 530 F. Supp. 924 (S.D. Fla.

1981) ......................................... . 1, 4, 16, 18, 20
Louis v. Nelson, 544 F. Supp. 1004 (S.D. Fla.

1982) ........................................................... 1, 4, 17, 31, 33
Louis v. Nelson, 544 F. Supp. 973 (S.D. Fla.

1982) ............................................................. 1, 6, 8, 12, 19
Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803) ..................................................................  36, 38-39
Mathews v. Diaz, 426 U.S. 67 (1976) .........................  25, 26
Meachum v. Fano, 427 U.S. 215 (1976) .......................  34
National Council of Churches v. Egan, No. 79-2959-CIV- 

WMH (S.D. Fla. 1979)........‘ ....................................  16
National Council of Churches v. Immigration and 

Naturalization Service, No. 78-5163-CIV-JLK(S.D.
Fla. 1979) ....................................................................  16

New York Times Co. v. United States, 403 U.S. 713
(1971) ............................. ................................................  45

Nishimura Ekiu  v. United States, 142 U.S. 651
(1892) ........................................................................  28, 34

Oyler v. Boles, 368 U.S. 448 (1962) ...............................  43
Patmore v. Sidoti, 104 S.Ct. 1879 (1984) .....................  24
Plyler v. Doe, 457 U.S. 202 (1982) ........... 22, 25, 26, 27

Table of Authorities Continued
Page



VI

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265(1978) 38
Reid v. Covert, 354 U.S. 1 (1957) ........................ 26, 36, 45
Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th 

Cir. 1981) .....................................................................  26
Rose v. Mitchell, 443 U.S. 545 (1979) ...........................  24
Russian Volunteer Fleet v. United States, 282 U.S. 481

(1931) .......................... .................................... 26, 27, 28
Sannon v. United States, 460 F.Supp. 458 (S.D. Fla.

1978) ...........................................................................  15-16
Sannon v. United States, 427 F.Supp. 1270 (S.D. Fla. 

1977), vacated and remanded on other grounds, 566 
F.2d 104 (5th Cir. 1978) ...........................................  15

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 
(1953)  ............   passim

Swann v. Charlotte-Mecklenburg Bd. of Education, 402 
U.S. 1 (1971) ...........................    21

Trop v. Dulles, 356 U.S. 86 (1958) .................................  45
Truax v. Corrigan, 257 U.S. 312 (1921) .......................  24
United States v. De?nanett, 629 F.2d 862 (3d Cir,), cert, 

denied, 450 U.S. 910 (1980) ...................................... 26
United States v. Henry, 604 F.2d 908 (5th Cir. 1979) . 26
United States v. Pink, 315 U.S. 203 (1942) .................. 26
United States ex rel. Knauff v. Shaughnessy, 338 U.S.

537 (1950)........................................................... 28, 34, 45
Washington v. Davis, 426 U.S. 229 (1976) .................... 10
Wong Wing v. United States, 163 U.S. 228 (1896) .. passim 
Yick Wo v. Hopkins, 118 U.S. 356 (1886) . . .  12, 24, 25, 26 
Yiu Sing Chun v. Sava, 708 F.2d 869 (2d Cir. 1983) .. 26

Table of Authorities Continued
Page

Constitutional, Statutory A nd Treaty Provisions:
U.S. Const., amend. V. ................ ............ ........ . . . .  passim
5 U.S.C. § 553 ...................... . 7, 20, 33
8 U.S.C. § 1101(a)(42) ....................................................... 44



Table of Authorities Continued
Page

8 U.S.C. § 1152(a) ........
8 U.S.C. § 1158 ............
8 U.S.C. § 1182 ............
8 U.S.C. § 1182(a)........
8 U.S.C. § 1182(d)(5)(A)
8 U.S.C. § 1182(f) ........
8 U.S.C. § 1225(b)
8 U.S.C. § 1253(h)
28 U.S.C. § 1254(1) . . . .

. . .  8, 44
5

. passim 
. . .  35

. passim 
9, 38, 40

6

2
United Nations Convention and Protocol Relating to the 

Status of Refugees, done January 31,1967,19U.S.T.
6223, T.I.A.S. 6577 (entered into force with respect to 
the United States, Nov. 1, 1968) .....................  5, 9, 44

R ules A nd Regulations:
8C .F .R . § 208.1 ...............................................................  5, 6
8 C.F.R. § 208.3 ................................................................  5
8 C.F.R. § 236.3 ................................................................  5
8 C.F.R. § 242.17(c) ..........................................................  5

Other A uthorities:
111 Cong. Rec. H21765, H21778, S24446, S24482-83, 

S24781 (1965) ..............................................................  8, 9
111 Cong. Rec. H21759, H21764, H21787, S24238, (1965) 44
2 Davis, Administrative Law (2d ed. 1979) .................. 46
Hart, The Power of Congress to Limit the Jurisdiction of 

Federal Courts: An Exercise in Dialectic, 66 Harv.
L. Rev. 1362 (1953) ..................................................  45

Hearings on S. 500, 89th Cong., 1st Sess., Part 1 (1965) 44
Helton, The Most Ambitious Pro Bono Ever Attempted,

12 Hum. Rts. 19 (1984) ............................................. 33
Martin, Due Process and Membership in the National 

Community: Political Asylum and Beyond, 44 U.
Pitt. L. Rev. 165 (1983) . ' . ......................................... 46



Vlll

Page
Note, Constitutional Limits on the Power to Exclude 

Aliens, 82 Colum. L. Rev. 957 (1982) .................... 46
Schuck, The Transformation of Immigration Law, 84 

Colum. L. Rev. 1 (1984) ...........................................  46
S. Rep. No. 590, 96th Cong. 2d Sess. (1980) ................ 44
Statement of the President, U.S. Immigration and Refu­

gee Policy, July 30, 1981 .........................................  8, 10
L. Tribe, American Constitutional Law (1978)............ 37
V an Alstyne, The Demise of the Rights-Privilege Distinc­

tion in Constitutional Law, 81 Harv. L. Rev. 1439 
(1968)............................................................................  45

Table of Authorities Continued



OPINIONS BELOW
On December 3, 1984, this Court granted certiorari and 

petitioners’ motion to proceed in forma pauperis. Jean v. 
Nelson, 105 S.Ct. 563 (1984) (J.A. 358).

On May 4, 1984, the United States Court of Appeals for the 
Eleventh Circuit denied petitioners’ request for a rehearing of 
its en banc decision, Jean v. Nelson, 733 F.2d 908 (11th Cir. 
1984) (J.A. 355)1 and entered its final judgment on rehearing en 
banc, which is not reported. (J.A. 356). The en banc court’s 
opinion is reported. Jean v. Nelson, 727 F.2d 957 (11th Cir. 
1984) (“Jean II”) (J.A. 292). The panel opinion is reported. 
Jean v. Nelson, 711 F.2d 1455 (11th Cir. 1983) (“Jean I”) (J.A. 
193). The decision of the court of appeals denying the govern­
ment’s request for a stay is also reported. Jean v. Nelson, 683 
F.2d 1311 (11th Cir. 1982) (J.A. 191).

The district court’s final judgment is reported, Louis v. 
Nelson, 544 F. Supp. 1004 (S.D. Fla. 1982) (“Louis IV”) (J.A. 
175), as is its opinion. Louis v. Nelson, 544 F.Supp. 973 (S.D. 
Fla. 1982) (“Louis III”) (J.A. 112). Other earlier opinions of the 
district court are also reported, including its decision dismiss­
ing several claims before trial on jurisdictional grounds, Louis 
v. Meissner, 532 F. Supp. 881 (S.D. Fla. 1982) (“Louis II”) 
(J.A. 78), its decision enjoining exclusion hearings against 
unrepresented incarcerated class members, Louis v. Meiss­
ner, 530 F.Supp. 924 (S.D. Fla. 1981) (“Louis I”) (J.A. 58), and 
its decision permitting petitioners’ amended petition and com­
plaint. Jean v. Meissner, 90 F.R.D. 658 (S.D. Fla. 1981).

JURISDICTIONAL STATEMENT
This case seeks review of the decision of the United States 

Court of Appeals for the Eleventh Circuit en banc entered on 
February 28, 1984. (J.A. 292). On May 4, 1984, that court

1 “J.A .” refers to the Joint Appendix to the briefs on the merits in 
this case.



2

denied petitioners’ request for rehearing en banc (J.A. 355), 
and entered its judgment. (J.A. 356). Petitioners filed a timely 
petition for certiorari on August 1, 1984. The petition was 
granted by this Court on December 3, 1984.

The jurisdiction of this Court is invoked pursuant to 28 
U.S.C. § 1254(1) (1982).

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED

Petitioners’ claims are based on the equal protection guaran­
tee of the due process clause of the fifth amendment to the 
United States Constitution, and 8 U.S.C. § 1182(d)(5)(A) 
(1982). These provisions are set forth below:

U.S. Const., amend. V:
No person shall be held to answer for a capital, or 

otherwise infamous crime, unless on a presentment or 
indictment of a Grand Jury, except in cases arising in the 
land or naval forces, or in the Militia, when in actual 
service in time of War or public danger; nor shall any 
person be subject for the same offence to be twice put in 
jeopardy of life or limb; nor shall be compelled in any 
criminal case to be a witness against himself, nor be de­
prived of life, liberty, or property, without due process of 
law; nor shall private property be taken for public use, 
without just compensation.

8 U.S.C. § 1182(d)(5)(A) (1982):
The Attorney General may, except as provided in sub- 

paragraph (B), in his discretion parole into the United 
States temporarily under such conditions as he may pre­
scribe for emergent reasons or for reasons 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 pur­
poses 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 admis­
sion to the United States.



3

STATEMENT OF THE CASE

This case challenges the Eleventh Circuit’s unprecedented 
holding that invidious race and national origin discrimination in 
the incarceration of black Haitian refugees by low-level 
immigration enforcement officials is wholly immune from con­
stitutional scrutiny. Petitioners do not challenge the authority 
of the Congress, the President, the Attorney General, or even 
of the Immigration and Naturalization Service (“INS”) to 
admit or exclude aliens. They do not challenge the proposition 
that the Constitution limits neither the grounds on which an 
alien seeking initial admission may be excluded, nor the proce­
dures employed in making that determination. Indeed, peti­
tioners do not even challenge the authority of INS to maintain a 
policy of detaining excludable aliens on a non-discriminatory 
basis. Petitioners challenge only the authority of INS enforce­
ment officials to discriminate invidiously in decisions concern­
ing the incarceration of excludable aliens pending a determina­
tion of their claims to asylum. As the record in this case 
demonstrates, without contradiction, INS officials have dis­
criminated invidiously against black Haitian refugees in decid­
ing to incarcerate them initially, and in prolonging their in­
carceration without parole pending a determination of their 
asylum claims.

Notwithstanding what a panel of the Eleventh Circuit found 
to be overwhelming and unrebutted evidence establishing a 
stark pattern of invidious discrimination,2 the en banc court 
held that excludable aliens such as Haitian petitioners may not 
assert the equal protection component of the fifth amendment

2 The en banc court, without questioning or disturbing, Jean II 
(J.A. 295), the detailed factual findings of invidious discrimination 
made by a panel of the Eleventh Circuit, Jean I (J.A. 246-276, 290), 
proceeded to decide the constitutional question: “whether the Hai­
tian plaintiffs may invoke the equal protection guarantee of the fifth 
amendment’s due process clause as a basis for challenging the 
government’s refusal to grant them parole.” Jean II (J.A. 296). It, 
therefore, implicitly concurred in the panel’s factual findings that the 
evidence established intentional discrimination.



4

against such practices. This holding—that excludable aliens 
are outside the protection of the Constitution—is not only 
unprecedented, but it is at war with our nation’s history, 
values, and constitutional traditions.3 Moreover, no circum­
stance of this case—not the race or nationality of petitioners, 
not their status as excludable aliens, and not the government’s 
interests—could possibly justify the en banc court’s decision.

1. The Petitioners And The Applicable Statutory, Regula­
tory And Treaty Provisions

Petitioners, approximately 2,000 black Haitian asylum 
seekers,4 are part of the first substantial flight of black re­
fugees who have come to our shores seeking political asylum. 
They made “a long and perilous journey” over eight hundred 
miles of open sea, Louis I  (J. A. 61), to escape the harsh political

3 Not since the Dred Scott decision, Dred Scott v. Sandford, 60 
U.S. (19 How.) 393 (1857), has this or any other court ever held thata 
class of persons is wholly immune from constitutional protection. Nor 
has any court, except for the en banc Eleventh Circuit’s opinion, ever 
held that invidiously discriminatory incarceration is immune from all 
constitutional review.

4 The district court certified the class as:
All Haitian aliens who have arrived in the Southern District of 

Florida on or after May 20, 1981, who are applying for entry into 
the United States and who are presently held in detention pend­
ing exclusion proceedings at various INS detention facilities, for 
whom an order of exclusion has not been entered and who are 
unrepresented by counsel.

Louis I (J. A. 69). The class was later amended in the Final Judgment 
to include all Haitians in detention for whom a G-28 (counsel’s notice 
of appearance form) had been filed. Louis IV  (J. A. 176). Although the 
district court released many class members from detention, a sub­
stantial number of class members still are being held in detention. 
Jean II (J.A. 296).



5

conditions in Haiti. Our government,5 including our courts6 as 
well as international organizations and other observers,7 have 
repeatedly recognized the repressive political conditions from 
which these Haitians fled. Upon their arrival in the United 
States, many of the petitioners sought asylum and requested 
they not be sent back to Haiti because they feared persecution 
or death.8

Under our law, any alien, regardless of race or nationality, 
has a statutory, regulatory and treaty right to seek asylum if 
he has a well founded fear of persecution, 8 U.S.C. § 1158, 8 
C.F.R. §§ 208 et seq., 236.3, or if his life or freedom would be 
threatened if returned to his country of origin. 8 U.S.C. 
§ 1253(h), 8 C.F.R. § 208.3, § 242.17(c), United Nations Pro­
tocol Relating to the Status of Refugees, done January 31, 
1967, 19 U.S.T. 6223, T.I.A.S. 6577 (entered into force with

5 Record (“R.”) at Vol. 51, pp. 2568-2570 (testimony of Steven 
Cohen, Deputy Assistant Secretary of State, Bureau of Human 
Rights and Humanitarian Affairs between 1977-1980, that the 
United States Embassy in Haiti and other U.S. government depart­
ments that had studied the issue had concluded that “Haiti was highly 
repressive and there is virtually no or little political freedom in 
Haiti.”).

6 Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 450 (S.D. 
Fla. 1980) (“Haitians have flocked to the shores of South Florida 
fleeing the most repressive government in the Americas”), affd as 
modified sub nom. Haitian Refugee Center v. Smith, 676 F.2d 1023 
(5th Cir. 1982).

7 Petitioners’ Exhibit (“Px.”) 129 (R. at Vol. 52, pp. 2774, 2775, 
2781), Px. 164 (R. at Vol. 52, pp. 2773, 2775, 2781), Px. 165 (id,), 
168-174,177 (R. at Vol. 52, pp. 2796-98; Vol. 53, p. 2863), Px. 184 (R. 
at Vol. 52, pp. 2773, 2775, 2781); R. at Vol. 52, pp. 2769-2799 (testi­
mony of Patricia Rengel, Director of the Washington Office of 
Amnesty International); R. at Vol. 51, pp. 2654-2748 (testimony of 
Michael Hooper, Director of the Haitian Project of the Lawyers 
Committee for International Human Rights).

8See, e.g., R. at Vol. 46, pp. 1720-1721 (testimony of Pierre Silien); 
R. at Vol. 46, p. 1734 (testimony of Henrick Desulme).



6

respect to the United States, Nov. 1,1968), Art. 33. Excludable 
aliens, such as the Haitian petitioners, are accorded these 
rights whether they arrive at our shores by boat or by other 
means. 8 C.F.R. § 208.1. The process for determining asylum 
claims is complex and often takes many months,9 in sharp 
contrast to the relatively immediate determinations that are 
made by the thousands daily in non-asylum exclusion cases.

Although Congress permitted the Attorney General to in­
carcerate aliens on a non-discriminatory basis during the 
determination of an alien’s claim, 8 U.S.C. § 1225(b), the stat­
ute does not require incarceration and was not read to require 
incarceration by INS officials from 1954 until this case. Leng 
May Ma v. Barber, 357 U.S. 185, 190 (1958); Louis III  (J.A. 
150-53); R. at Vol. 38, pp. 123-130,151, 211-217; Vol. 40, p. 611; 
Vol. 45, p. 1613. Indeed, Congress specifically provided that 
excludable aliens, such as petitioners, could be paroled10 pend­
ing a d e term ina tion  of th e ir  adm issib ility . 8 U .S .C . 
§ 1182(d)(5). Prior to the events of this case, excludable aliens 
seeking asylum pending determinations of their claims were 
routinely paroled under this statute, regardless of race or 
nationality. R. at Vol. 38, pp. 173-175; Vol. 40, p. 606; Vol. 41, 
p. 819. This case arose precisely because INS officials denied 
parole to black Haitian asylum seekers based on their race and 
nationality, in contrast to all other excludable aliens, including 
similarly situated asylum seekers entering Florida from Cuba 
and Nicaragua. In short, INS applied Congress’ intent to per­
mit temporary release pending a determination of admissibil­
ity, as expressed in 8 U.S.C. § 1182(d)(5)(A), to all except 
black Haitian refugees.

9R. at Vol. 38, pp. 186-87 (testimony of Charles Gordon).
10 The word “parole” has two entirely separate meanings in 

immigration law. Only temporary parole is involved here. The parole 
involved is not parole into the country in the sense of admission, but 
ra th e r tem porary release from physical custody pending a 
determination of asylum or final excludability.



7

2. The Genesis Of The Case
This case began in response to the actions of INS officials 

during the week of June 1-5, 1981, in holding mass exclusion 
“hearings” for Haitian refugees seeking asylum in the United 
States. The respondents held these hearings behind locked 
courtroom doors and intentionally barred pro bono counsel 
who sought access to the Haitians. INS officers deliberately 
routed Haitians being brought to the INS courtroom from the 
detention center through back stairwells and immigration 
offices at a double-time pace, to avoid lawyers known to be 
waiting in public areas of the courthouse offering to provide 
them with free legal assistance. The subsequent hearings, held 
without lawyers, and marred by inaccurate and misleading 
translations, prevented the Haitians from understanding the 
proceedings or being informed of their rights. Jean I  (J.A. 
195); Louis I  (J.A. 60-62); R. at Vol. 45, pp. 1596-98.

On June 10, 1981, petitioners—a class of black Haitian re­
fugees seeking asylum—filed an emergency habeas corpus 
petition challenging the procedural fairness of these hearings 
and the discriminatory treatment applied only to Haitians. 
After a hearing that documented the procedural irregularities 
and the inaccurate, misleading translations of the mass hear­
ings, the government confessed error, but not before respon­
dents improperly deported eleven Haitians. Jean I  (J.A. 195).11

3. The Announced, Facially Neutral Detention Policy
At approximately the same time that these unlawful actions 

took place, the Administration established a new policy of 
detention for excludable aliens.11 12 In discussing this policy, high

11 The government admitted that these procedures “were faulty 
and not in compliance with law.” Jean I  (J.A. 195).

12 It did so without complying with the rulemaking requirements of 
the Administrative Procedure Act, 5 U.S.C. § 553 (1982) (“APA”), as 
the district court and Eleventh Circuit panel found. Jean I (J.A.



8

ranking members of the Executive branch spoke with a single 
voice: they publicly proclaimed that the policy of detention 
should be applied evenhandedly to all aliens seeking asylum.

In describing this new policy to the Congress, the Attorney 
General called for an “evenhanded” rule of detention. Jean I  
(J.A. 212). At the same time, the President confirmed that 
administrative action was to be “consistent with fair proce­
dures and our constitution,” and “consistent with our values of 
individual privacy and freedom.” Statement of the President, 
United States Immigration and Refugee Policy, July 30, 1981 
at 829, cited in Jean I  (J.A. 208-09). The Associate Attorney 
General and third-ranking official at the Department of Jus­
tice, bearing primary responsibility for immigration, testified 
at trial that if the detention policy was being applied in a 
discriminatory manner, that was contrary to the intent of the 
Attorney General, and that any official doing so should be 
reprimanded or dismissed. Jean I  (J.A. 217); R. at Vol. 49, p. 
2343. Furthermore, congressional policy strongly condemned 
invidious discrimination by the INS on the basis of race and 
nationality in all immigration m atters.13 Although Congress

219-37); Louis III  (J.A. 220-37). This abruptly changed a long­
standing policy, in effect since 1954, of releasing all aliens pending a 
determination of their admissibility unless the alien was likely to 
abscond or posed a threat to national security. Jean I  (J.A. 207-08); 
Leng May Ma v. Barber, 357 U.S. at 190.

13 In 1965, Congress abolished the national origin quota system and 
special immigration restrictions relating to Orientals, and forbade 
discrimination based on race, sex, nationality, place of birth or place 
of residence in all immigration matters. Act of October 3, 1965, P.L. 
89-236, 76 Stat. 911, 8 U.S.C. § 1152(a) (1982). Indeed, members of 
Congress compared this legislation to the Civil Rights Act. See, e.g., 
111 Cong. Rec. S24781 (Sept. 22,1965) (“Last year the Congress took 
a great step toward the elimination of racial discrimination against 
American citizens here at home. . . . This immigration reform bill is 
no less a civil rights measure. It will end four decades of intolerance 
toward those who seek shelter on our shores, and who, until they



9

gave the President authority to impose restrictions on the 
entry of any class of aliens found detrimental to the United 
States, 8 U.S.C. § 1182(f),14 this grant of authority was con­
ditioned on his issuance of a proclamation. Here, however, the

have actually sought entrance, have looked upon our nation as a 
refuge and a haven from intolerance.”) (remarks of Sen. Tydings); 
111 Cong. Rec. H21765 (Aug. 25,1965) (“I would consider the amend­
ments to the Immigration and Nationality Act to be as important as 
the landmark legislation of this Congress relating to the Civil Rights 
Act. The central purpose . . .  [of the bill] is to once again undo 
discrimination. . . .”) (remarks of Rep. Sweeney). The legislative 
history is replete with denunciations of race and nationality as 
criteria in the administration of our immigration laws. See, e.g., I l l  
Cong. Rec. S24482-83 (Sept. 20, 1965) (‘‘It will eliminate from the 
statute books a form of discrimination totally alien to the Constitu­
tion. Distinctions based on race or national origin assume what our 
law, our traditions and our common sense deny: that the worth of 
men can be judged on a group basis.”) (remarks of Sen. Kennedy); id. 
at S24446 (Sept. 20, 1965) (“Elimination of racial barriers against 
citizens of other lands is a logical extension of eliminating discrimina­
tion against American citizens.”) (remarks of Sen. Fong).

In 1968, the United States acceded to the United Nations Protocol 
Relating to the Status of Refugees, done January 31, 1967, 19 U.S.T. 
6223, T.I.A.S. 6577 (entered into force with respect to the United 
States Nov. 1, 1968), provisions of which specifically prohibit dis­
crimination against refugees on the grounds of race or national ori­
gin. For example, Article 3 of the Protocol specifically provides: “The 
Contracting States shall apply the provisions of this Convention to 
refugees without discrimination as to race, religion or country of 
origin.” The provisions include a prohibition against refoulment (Art. 
33), restriction of movement (Art. 31(2)), and against penalizing an 
alien for his method of entry (Art. 31(1)). The accession by Congress 
to the Protocol shows Congress’ commitment to a non-discriminatory 
policy in dealing with asylum seekers such as the Haitian petitioners.

148 U.S.C. § 1182(f) states:
Whenever the President finds that the entry of any aliens or of 
any class of aliens into the United States would be detrimental to 
the interests of the United States, he may by proclamation, and



1 0

President neither issued any such proclamation nor made any 
finding as to the petitioners or any other racial or nationality 
group. Despite the Attorney General’s publicly expressed in­
tention, the President’s statement, and congressional policy 
providing for facial neutrality and nondiscriminatory applica­
tion of parole under 8 U.S.C. § 1182(d)(5)(A)(1982),* 15 INS 
enforcement officials applied this facially neutral policy dis- 
criminatorily against the Haitians, resulting in their prolonged 
incarceration.16

4. The Detention Policy Applied To Haitians: Proof Of Dis­
crimination Under Arlington Heights

The record reveals an overwhelming and unrebutted stark 
pattern of discrimination against Haitian refugees sufficient to 
meet the most exacting requirements for proving intentional 
discrimination. Jean I  (J.A. 246-76, 290). See Arlington 
Heights v. Metropolitan Housing Development Corp., 429 
U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976). 
Petitioners proved that INS enforcement officials intentional­
ly discriminated against black Haitian nationals in initially 
incarcerating them, and in keeping them in prolonged in­
carceration pending a determination of their claims to political 
asylum. Jean I  (J.A. 276). Petitioners proved intentional dis­
crimination both directly and indirectly through witnesses,

for such period as he shall deem necessary, suspend the entry of 
all aliens or any class of aliens as immigrants or nonimmigrants, 
or impose on the entry of aliens any restrictions he may deem to 
be appropriate.

15The legislative history of 8 U.S.C. § 1182(d)(5)(A) centers on 
non-discriminatory factors such as reuniting families and releasing 
detainees for medical reasons. Jean II (J.A. 348) (Kravitz, J., con­
curring and dissenting).

16 Unlike excludable aliens of other nationalities who were not 
incarcerated or, in a small percentage of cases, were incarcerated 
only briefly (usually less than 72 hours), Haitians were incarcerated 
for prolonged periods of time. Indeed, in most cases, the incarcera­
tion of Haitians lasted up to one year. Jean I  (J.A. 195).



1 1

documents, and expert statistical analysis of data provided by 
respondents. Jean I  (J.A. 274).

a. Statistical And Non-Quantitative Evidence Of A Dispro­
portionate Impact

At trial, petitioners introduced a wealth of statistical evi­
dence which confirmed the vastly disproportionate impact of 
the INS detention policy on Haitian aliens as compared with 
other similarly situated excludable aliens seeking asylum, such 
as Cubans and Nicaraguans. Petitioners’ statistical expert, 
Dr. Gitlow, examined several sets of data, all of which were 
supplied by the government. One set of data contained 
secondary inspection logs at the Miami airport between Au­
gust 1,1981 and April, 1982. Px. 186 (R. at Vol. 53, p. 2873; R. 
at 2986), Px. 187 (R. at Vol. 53, pp. 2875, 2885; R. at 2986), Px. 
188 (R. at Vol. 53, pp. 2876-2920; R. at 2986). Dr. Gitlow 
analyzed three separate compilations of this data to ensure 
accuracy. He found in each of these compilations that the 
probability of so many more Haitians than non-Haitians being 
detained, or so many fewer Haitians paroled, was “on the order 
of less than two in ten billion times.” Jean I (J.A. 248); R. at 
Vol. 53, p. 2948. In some cases, it was “far less than one in ten 
billion,” Jean I  (J.A. 248); R. at Vol. 53 p. 2949, and equalled 
approximately 17.6 standard deviations. Id. at 2951.

The second set of data reflected persons placed in exclusion 
or in an exclusion catagory who sought entry into the United 
States between August 1, 1981 and November 1, 1981. The 
data was coded by nationality, documentation, attempted en­
try, date of parole, length of detention, whether an asylum 
claim was filed, family ties, and comments. Px. 189 (R. at Vol. 
53, p. 2906), Px. 190 (id. pp. 2907-2920; R. at 2986), Px. 191 (R. 
at Vol. 53, p. 2951; R. at 2986); Jean I (J.A. 248-49). Dr. Gitlow 
performed binomial analysis on a number of compilations of 
this data. He evaluated both detention versus parole and 
length of detention. With regard to each data set, Dr. Gitlow 
concluded that the chance that the disparate impact of the INS 
detention policy on Haitians could have occurred at random



1 2

was “astronomically remote,” R. at Vol. 53, p. 2955, and that 
the relationship between being Haitian and being detained was 
“statistically significant.” Jean I  (J.A. 249). Indeed, for some 
of the data sets, Dr. Gitlow declined to calculate the standard 
deviation because “it would be so large that my calculator 
would not hold the numbers.” Jean 1 (J.A. 249); R. at Vol. 53, 
pp. 2964-2965. Dr. Gitlow also performed multivariate, or Chi- 
squared, analysis of this data to take account of the possible 
impact of documentation status and other variables, and con­
cluded that the relationship between being Haitian and being 
detained remained statistically significant, after eliminating 
the effects of these variables. Jean I  (J.A. 249-50).

The third set of data, Px. 188 (R. at Vol. 53, pp. 2876-2920; R. 
at 2986), Px. 193-196 (R. at Vol. 53, pp. 3016-18, 3029-30, 3033; 
R. at 2986), taken from the government’s computer system at 
the Krome detention camp, covered detention and parole be­
tween January and April 1982. This data revealed that the 
relationship between being Haitian and being detained was 
highly statistically significant, Jean I  (J.A. 250), with standard 
deviations ranging from 7.64 to over 15. R. at Vol. 53, p. 3037. 
Dr. Gitlow also analyzed data introduced by the government 
and reached equally, if not more damaging, conclusions from 
this evidence. Jean I  (J.A. 250).

Petitioners’ statistical evidence showed such a disparate 
impact on Haitians that, by itself, it demonstrated a pattern of 
discrimination “as stark as that in Gomillion . . .  or Yick Wo. ” 
Jean I  (J.A. 250-51) quoting Arlington Heights, 429 U.S. at 
266. In sum, the Administration’s new detention policy, in­
tended to be neutral in coverage, was applied by INS enforce­
ment officials to Haitians in a manner so disparate that expert 
statistical testimony described the chances that the disparity 
could have occurred at random as “a statistical joke.” Jean I  
(J.A. 249).17

17 Indeed, even the district court found that it was “undisputed” 
that the new detention policy had a disproportionate impact on the 
petitioners. Louis 111 (J.A. 165).



13

Furthermore, testimony of witnesses and the government’s 
own documents18 dramatically revealed that INS officials dis- 
criminatorily targeted Haitians for incarceration, Jean I  (J. A. 
251-59), while releasing other excludable aliens similarly situ­
ated. The most dramatic comparison was presented by the 
treatm ent accorded Nicaraguan applicants. Robert Boyer, an 
immigration attorney specializing in Nicaraguan asylum mat­
ters (R. at Vol. 39, pp. 400-401), testified at length concerning 
the treatm ent received by Nicaraguans who sought political 
asylum in the United States and whose admissibility was chal­
lenged. Id. at 400-450 et seq. In contrast to the treatment of the 
Haitians, Boyer testified that very few, if any, Nicaraguans 
had been placed in exclusion proceedings before they had the 
opportunity to seek political asylum before the District Direc­
tor. Id. at 405. Boyer testified that his Nicaraguan clients in 
exclusion proceedings had been regularly released from in­
carceration (id. at 418-419), and that other than one isolated 
case of a Nicaraguan convicted of a cocaine charge, none of his 
many Nicaraguan clients whose admissibility had been chal­
lenged was subjected to prolonged incarceration. Id. at 420.19

Similarly, Frank Murray, an attorney who at the time of his 
testimony had practiced immigration law in South Florida for 
thirteen years, testified that his non-Haitian clients whose 
admissibility was challenged at the airport were paroled into 
the United States for their deferred inspection and were con­
tinued on parole following the service of an order to show cause 
why the alien should not be excluded, form 1-122. R. at Vol. 42,

18 See footnotes 23 and 24, infra.
19 This non-detention policy included individuals assisted by the 

Nicaraguan Refugee Organization (R. at Vol. 39, p. 420), which 
Boyer represented (id. at 401) and which had assisted 12,000 to 
13,000 Nicaraguans since 1979. Id. at 403. Further, he testified that 
the Nicaraguans, once questioned as to admissibility, were regularly 
released. These included both documented and undocumented 
Nicaraguans who arrived either by boat or at the airport. Id. at 
449-450.



14

pp. 970-973. In contrast, Haitians were served with I-122s 
shortly after their arrival (id. at 973-974), and were held in 
detention pending a hearing. Id. at 974.

Finally, incarcerated Haitians provided poignant personal 
testimony to the fact of discriminatory incarceration of Hai­
tians as compared to other groups of similarly situated aliens, 
such as Cubans, Colombians, and Mexicans. R. at Vol. 42, pp. 
963-964; Vol. 43, pp. 1205, 1259; Vol. 46, p. 1690. Respondents 
did not rebut, or even attempt to rebut, this testimony. Jean I  
(J.A. 259).

b. Historical Background Of Discrimination
The discriminatory application of prolonged incarceration to 

Haitians occurred in the context of a lengthy historical pattern 
of discrimination by INS officials against black Haitian re­
fugees. Jean I  (J.A. 254). Numerous witnesses,20 including 
“former high-ranking INS and Department of Justice officials 
attested to the persistent targeting and mistreatment of Hai­

20 Virtually from their initial landing on our nation’s shores, Hai­
tians have been treated differently and far worse than all other 
persons seeking asylum. Many witnesses and documents provided 
unrebutted evidence of this discrimination. Ira Goilobin, a well 
known immigration lawyer and counsel to the National Council of 
Churches, testified to the persistent discriminatory treatment of 
Haitians over ten years. Jean I (J.A. 254-55) R. at Vol. 40, p. 645 et 
seq. Indeed, the discriminatory conduct toward Haitians by INS 
officials has even been explicitly conceded by government officials. In 
May 1979, the Deputy Associate Attorney General, in a memoran­
dum to the General Counsel of INS, stated that “we should strive to 
end the double standard that now seems to prevail between the 
handling of these Haitian claims and those made by others.” Jean I 
(J.A. 252); Px. 109a (R. at Vol. 40, pp. 656-657).

The discriminatory treatment of Haitians was also testified to by 
Charles Gordon, a former General Counsel of the INS and the leading 
authority on immigration law of the United States. Mr. Gordon 
stated that he “never heard of a policy to single out any other



15

tian[s].” Jean I  (J.A. 252). The “unrebutted and unexplained 
testimony” showed “a historical pattern of discrimination 
under Arlington Heights.” Jean I  (J.A. 253-54).21

particular group other than Haitians,” R. at Vol. 38, p. 140, and that 
he never heard of simultaneous scheduling of lawyers for any group 
other than Haitians. Id. at 157-158; Jean I  (J.A. 252).

Other knowledgeable witnesses testified to the disparate treat­
ment of black Haitian refugees as compared to Cubans, Nicaraguans 
and other groups seeking asylum between 1972 and 1980 in regard to 
refugee status, release, work authorization, length of incarceration 
and treatment in incarceration. See testimony of Monsignor Brian 
Walsh, a well-known expert on refugee matters, Jean I (J.A. 252); R. 
at Vol. 38, pp. 260-264; Larry Mahoney, the Public Affairs Officer for 
the Department of State in the Cuban/Haitian Task Force from July 
1980 to May 1981, Jean I  (J.A. 253); R. at Vol. 43, pp. 1140-43, 
1148-50; Jacqueline Rowe, an Equal Opportunity Officer for the 
Community Action Agency of Metro-Dade County, Jean I (J.A. 253); 
R. at Vol. 44, pp. 1355-72, 1385 et seq. In addition, the Mayor of 
Miami, Maurice Ferre, stated that in his experience as a government 
official he was aware there had been “indeed a differential in the way 
Cubans were being treated and the Haitians.” JeanIQ. A. 252); R. at 
Vol. 41, p. 787.

21 The present case is only the latest in a series of cases brought by 
Haitians to challenge the disparate treatment of Haitian asylum 
seekers as compared to other groups of refugees. All of these cases 
demonstrate that Haitians historically have been the victims of law­
less conduct by INS enforcement officials.

For over a decade, INS enforcement officials have systematically 
denied Haitian refugees seeking asylum in this country their right to 
the fair and impartial administration of our immigration laws. They 
have unlawfully denied Haitians their statutory and treaty rights to a 
hearing before an immigration judge in exclusion proceedings on 
their claims for political asylum. Sannon v. United States, 427 F. 
Supp. 1270 (S.D. Fla. 1977), vacated and remanded on other 
grounds, 566 F.2d 104 (5th Cir. 1978). They have unlawfully denied 
Haitians their right to notice of the procedures that the government 
intended to use against them in exclusion proceedings. Sannon v.



16

c. Other Factors Under Arlington Heights

In addition to statistical and historical evidence, the record 
demonstrated “a plethora” of other evidence of discriminatory 
intent under Arlington Heigh ts, including departures from the 
normal procedural sequence and administrative history. Jean 
I  (J.A. 251). For example, INS officials departed from their 
normal procedures in the treatm ent of aliens by intentionally 
cutting off the Haitians’ rights to claim asylum,22 and by deny­
ing them fair hearings. Jeanl{J.A. 256n.40);Louis/(J .A . 63).

Further, the evidence of administrative history demon­
strated that enforcement officials intentionally singled out 
Haitians for discriminatory treatment. Jean I  (J.A. 252). In­
deed, the INS established a special code number for Haitians 
which appeared “on a variety of documents alarming as to both 
their number and content.” Jean I  (J.A. 257).23 Internal docu-

United States, 460 F. Supp. 458 (S.D. Fla. 1978). They have 
unlawfully denied Haitians the right to work during the pendency of 
their asylum claims. National Council of Churches v. Egan, No. 
79-2959-Civ-WMH (S.D. Fla. 1979). They have unlawfully denied 
Haitians access to information to support their asylum claims. Na­
tional Council of Churches v. Immigration and Naturalization 
Service, No. 78-5163-Civ-JLK (S.D. Fla. 1979). They have unlawful­
ly denied Haitians the very right to be heard on their asylum claims, 
and have subjected them to a special “Haitian Program.” Haitian 
Refugee Centers. Civiletti, 503 F. Supp. 442 (S.D. Fla. 1980), affd as 
modified sub nom. Haitian Refugee Center v. Smith, 676 F.2d 1023 
(5th Cir. 1982). They have unlawfully denied Haitians their right to 
counsel and to fair process in their exclusion hearings by shipping 
them, like cattle, to remote areas of America. Louis I  (J.A. 60-62). 
See Jean I  (J.A. 287).

22 Px. 94 at 1 (R. at Vol. 38, p. 162) (“[Haitian] aliens will immedi­
ately be served with Notice to Appear for exclusion hearings before 
they can make asylum applications to the District Director, thus 
cutting off that option.”).

23 See, e.g., Px. 80 (R. at Vol. 48, p. 2048), “Report as to status of 
space for detention and prior surveys” (David Crosland, General 
Counsel INS to David Hiller, Special Assistant to the Attorney



17

merits of the INS itself demonstrated an awareness that the 
detention policy would have its greatest impact on black Hai­
tians who amounted to a tiny fraction of aliens similarly situ­
ated. Jean I  (J.A. 258). Other INS documents demonstrated 
that low-level officials singled out Haitians for disparate treat­
ment both before and after the President adopted a uniform 
detention policy in the summer of 1981. Jean I  (J.A. 258).24

d. No Justification Existed Or Was Offered For The 
Proven Invidious Discrimination Against Petitioners

Respondents never refuted any of the evidence of invidious 
discrimination, except to protest that they did not intend to 
discriminate. The incarceration of Haitians in an invidiously 
discriminatory manner was also devoid of any justification. 
The Haitians posed no threat to the national security, were not 
likely to abscond, and represented an insignificant number of 
undocumented aliens seeking entry into the United States. 
Jean I  (J.A. 255 n.38); Louis IV  (J.A. 178). Indeed, the Hai­
tians represented less than two percent of the undocumented 
immigration into the United States. Jean I  (J.A. 255 n.38).

General, 19 May 1981); Px. 86 (R. at Vol. 47, p. 1830), “Contingency 
Plan for the Detention of Cubans/Haitians in Florida and Other 
Locations” (Hugh J. Brian, Action Associate Commissioner, 
Enforcement to Doris Meissner, Deputy Commissioner, 27 April 
1981) (specifically referring to eliminating the right to apply for 
asylum to the District Director); Px. 92 (R. at Vol. 47, p. 1834), 
“Cuban/Haitian Policy” (Crosland to Hiller, 2 April 1981) (detention 
of Haitians and Cubans); Px. 94 (R. at Vol. 38, p. 162), “Haitian 
Policy” (Crosland to Kenneth Starr, Counselor to the Attorney 
General, 20 March 1981) (deprive Haitians of the right to claim 
political asylum before District Director; detention for Haitians de­
spite fact that appeal process could extend over one year).

24 The best example of this is Px. 1 (R. at Vol. 38, pp. 138-39) a telex 
from the Regional Commissioner, Dallas to INS District Director, 
New Orleans, INS Associate Commissioner for Enforcement, and 
INS Associate Commissioner for Detention and Deportation, dated 
September 2, 1981, requiring that “Haitians . . .  be detained . . . .”



18

Moreover, INS officials conceded that the Haitians were not 
incarcerated because they were a threat to national security or 
likely to abscond. R. at Vol. 43, p. 1160; Vol. 47, p. 2035; Vol. 
49, pp. 2338, 2396, 2398.

Respondents did not attempt to justify their discriminatory 
actions on these or on any other grounds. Rather, they merely 
contended that they had not discriminated against the Hai­
tians, a contention totally belied by the record. As the panel 
opinion noted:

All told plaintiffs mustered an impressive array of witnes­
ses and an equally impressive number of documents to 
demonstrate circumstantially, and to an extent directly, 
intentional government discrimination against Haitians. 
This evidence, in addition to the statistical evidence, was 
unrebutted but for the government’s testimonial evi­
dence, which can at best be termed “mere protestation.” 
Without evidence of similar mistreatment of other immi­
grant groups, the district court had no factual basis for 
finding these practices were directed at others, or that 
they would be directed to others who were similarly situ­
ated. Based on the lack of evidence, the district court’s 
findings are clearly erroneous.

Jean I  (J.A. 259).

5. The Devastating Effect Of Incarceration
INS officials discriminated against Haitians not only in the 

initial and then prolonged incarceration of class members, but 
also in the manner in which they incarcerated them. Haitians 
were shipped to federal prisons and INS detention facilities 
throughout the United States, which were located in “deso­
late, remote, hostile, culturally diverse areas, containing a 
paucity of available legal support and few, if any, Creole in­
terpreters.” Louis I  (J.A. 61). For example, INS officials 
shipped Haitians, already represented in Florida by immigra­
tion lawyers, from Florida to isolated desert areas such as Big 
Springs, Texas or other isolated areas such as Raybrook, New 
York, where immigration counsel were unavailable. INS had 
never before treated any other race or nationality in this man­



19

ner. R. at Vol. 42, p. 977; Vol. 38, pp. 161, 219 (testimony of 
Charles Gordon). They separated husbands and wives and 
parents and children, with “cruel results.” Louis III  (J. A. 125 
n.24); R. at Vol. 43, p. 1141; Vol. 44, pp. 1479-81. They applied 
the detention policy to Haitian children, Louis III  (J. A. 126-27 
n.24), Px. 45 (R. at Vol. 45, pp. 1529-1531), Px. 46 (id, at 
1561-1562), Px. 47 (id.); the elderly, Px. 47 (R. at Vol. 45, pp. 
1561-1562), Px. 48 (id.); and those with medical problems. Px. 
47 (id.), Px. 48 (id.). They held petitioners in substandard 
facilities and subjected them to harsh conditions, R. at Vol. 41, 
pp. 918-19, in sharp contrast to asylum seekers of other 
nationalities.26 They physically abused some Haitians, R. at 
Vol. 43, pp. 1224, 1251, and denied others appropriate care for 
their medical conditions. Id. at 1258. They moved some Hai­
tians to other facilities at night, without allowing them to take 
their own clothes or belongings and without telling them where 
they were going, leading some to be terrified that they were 
being taken to Haiti. R. at Vol. 41, pp. 923-25. The district

28 In contrast to the Haitians, INS officials treated other similarly 
situated groups in a humane fashion. Larry Mahoney, the Public 
Affairs Officer for the Department of State in the Cuban/Haitian 
Task Force from July 1980 to May 1981, noted the incredible dis­
parity between Cuban and Haitian refugees detained at Krome. He 
stated poignantly that Haitians “were not being treated the same as 
the Cubans were” at Krome. R. at Vol. 43, p. 1143. He noted the 
discriminatory treatment that Haitians previously received “still 
exists at Krome.” Id. at 1140-41. Mahoney recounted that Krome, 
commonly referred to as the “Caribbean Ellis Island,” provided 
completely different services for Cubans and Haitians. Cubans were 
able to resettle swiftly, and substantially more resources were put 
toward their resettlement than that of the Haitians. Id. at 1148-50. 
Moreover, while Haitians were always segregated by sex and had no 
access to telephones, Cuban families were allowed to stay together 
and a bank of telephones was put in “almost overnight” for the 
Cubans. Id. at 1140-42. In addition, Cubans were provided re­
creational facilities and trips outside of Krome. His request to pro­
vide the same facilities to Haitians was denied. Id. at 1143.



2 0

court aptly concluded that the INS was playing a “human shell 
game” with the Haitians. Louis I  (J.A. 61).

The effect of such long-term and isolated detention was 
devastating. Master’s Report and Recommendations at 12,14, 
15, 16, 18 (R. 2112, 2114, 2115, 2116, 2118); Px. 62.1A (R. at 
Vol. 39, pp. 335-36). The mental health of many of the Haitians 
in detention deteriorated rapidly under these conditions. R. at 
Vol. 39, pp. 370-371; Vol. 42, p. 1058. Indeed, one of the named 
plaintiffs, Prophete Talleyrand, committed suicide while incar­
cerated during the pendency of this litigation.

* * *
After carefully reviewing the evidence presented to the trial 

court, the panel affirmed the district court’s conclusion that the 
fifth amendment applied to excludable aliens, such as the Hai­
tian petitioners, but reversed as “clearly erroneous” its factual 
determination that petitioners had failed to carry their burden 
of proving that government officials had intended to discrimi­
nate in the incarceration of the Haitians. Jean I  (J.A. 290).26 
The panel remanded to the district court, ordering it to grant 
broad injunctive relief prohibiting future invidious discrimina­
tion against petitioners. Jean I  (J.A. 291).

On August 16, 1983, the court of appeals ordered rehearing 
en banc. On February 28,1984, the en banc court dismissed the 
government’s appeal on the APA issue as moot and remanded 
to the district court with instructions to vacate the injunctive 
relief based on the APA violation. Jean II  (J.A. 295). The en 
banc court, which neither questioned nor rejected the panel’s 
factual findings of invidious discrimination, nevertheless re­
versed the panel’s holding that such discrimination could 
violate the Constitution. The en banc court found that low- 
level executive branch officials possess power in immigration 
matters that is wholly unrestrained by the Constitution. It 
held broadly that “excludable aliens such as the Haitian plain­

26 The procedural history of the litigation prior to the panel’s deci­
sion is summarized in the Petition for a Writ of Certiorari at 11 n.6.



2 1

tiffs have no constitutional rights with respect to their applica­
tions for admission, asylum or parole.” Jean II  (J.A. 341).

The en banc court suggested that a non-constitutional stand­
ard to measure abuse of discretion could be employed by the 
district court on remand, although it was unclear what issues 
would be subject to this standard. It purports to be a standard 
solely for reviewing alleged abuses of discretion by INS 
enforcement officials. It is not, however, a standard for 
reviewing the petitioners’ claims of discrimination.27 Four 
members of the en banc court dissented from the court’s con­
stitutional conclusions and its standard for reviewing abuses of 
discretion by low-level agency officials. Jean II  (J.A. 346-54).

On May 4, 1984, the court of appeals denied petitioners’ 
request for rehearing en banc, (J.A. 355), and for a stay pend­
ing petition for a writ of certiorari, and entered its final judg­
ment on rehearing en banc. (J.A. 356). On August 1, 1984, 
petitioners timely filed a petition for writ of certiorari, which 
this Court granted on December 3, 1984. 105 S.Ct. 563 (1984).

SUMMARY OF ARGUMENT
1. No principle is more fundamental to this nation than that 

invidious discrimination on the basis of race and national origin 
by government officials has no acceptable place in our society. 
The unprecedented holding of the court below—that the action 
of INS enforcement officials in incarcerating petitioners solely 
on the basis of their race and nationality is wholly beyond

27 The remand is directed only to those “class members presently in 
detention.” Jean II (J.A. 330). The remand is not directed to, and 
provides no relief for, the approximately 1700 class members who 
have been released from detention. In the absence of reversal of the 
en banc court’s decision by this Court, these petitioners would be 
deprived of injunctive relief to prevent the recurrence of the pattern 
of discrimination to which Haitians have been subjected for ten years 
by INS officials. See Swann v. Charlotte-Mecklenburg Bd. of Educa­
tion, 402 U.S. 1 (1971); Jean 1 (J.A. 290-91).



2 2

constitutional scrutiny—is fundamentally at odds with this 
basic principle.

Neither legal precedent nor the facts of this case could 
possibly justify the en banc court’s conclusions. This case does 
not present a challenge to the power of Congress or the Execu­
tive to admit or deny admission to aliens. It merely challenges 
invidious discrimination in incarceration on the basis of race 
and nationality against black Haitian refugees by INS enforce­
ment officials.

Petitioners are persons “in any ordinary sense of that term ,” 
Plyler v. Doe, 457 U.S. 202, 210 (1982), and, as such, are 
entitled to challenge invidiously discriminatory incarceration 
by INS enforcement officials. No government interest could 
ever justify the total absence of constitutional scrutiny of such 
discrimination.

2. The en banc court refused to subject respondents’ in­
carceration of these black Haitian refugees to any con­
stitutional review because, in its view, the discriminatory in­
carceration was somehow related to the important govern­
ment interest in controlling the entry of aliens. Not only is the 
en banc court’s premise false both factually and legally, but its 
constitutional conclusion would not follow in any event. On the 
facts of this case, there was no danger that temporary release 
on parole would lead to absconding or risk the nation’s 
security—the traditional reasons supporting detention—and 
INS officials conceded as much. See pp. 17-18, supra. Nor has 
the temporary release of these petitioners pending determina­
tion of their asylum claims been tantamount to their admission. 
Parole determinations are entirely separate from admission 
both factually and legally, and have no effect on immigration 
status. Leng May Ma v. Barber, 357 U.S. at 190; 8 U.S.C.
§ 1182(d)(5)(A). As a result, parole does not interfere with the 
power of Congress and the President to determine admission 
questions and does not implicate the considerations of national 
sovereignty and separation of powers that insulate admission 
questions from close judicial scrutiny.



23

Petitioners do not contend that the Constitution requires the 
adoption of any particular substantive policy in regard to 
detention or parole, but only that whatever policy is adopted 
must be applied in an evenhanded manner. Even assuming 
arguendo a relationship between incarceration and admission, 
discriminatory incarceration simply does not implicate any 
legitimate concerns pertaining to the regulation of admission of 
aliens into our country.

In any case, even the broad power concededly possessed by 
Congress and the President to regulate admission into the 
country, and in appropriate cases to make distinctions in 
admission based on nationality, is not immune from con­
stitutional scrutiny. Fiallo v. Bell, 430 U.S. 787, 793 n.5 
(1977); The Chinese Exclusion Case, 130 U.S. 581, 604 (1889). 
A fortiori where Congress and the President have chosen not 
to draw such distinctions in the application of incarceration 
pending a determination of admissibility, and where the Attor­
ney General announced and intended an evenhanded policy, 
discriminatory incarceration by subordinate enforcement offi­
cials must receive constitutional scrutiny. Hampton v. Mow 
Sun Wong, 426 U.S. 88 (1976).

3. Furthermore, the en banc court’s conclusion was based 
on a fundamental misreading of Shaughnessy v. United States 
ex rel. Mezei, 345 U.S. 206 (1953), which it believed “con­
trolled” its decision. Mezei, however, is not controlling because 
the Court’s holding rested upon the recognition that Mezei’s 
incarceration, unlike the incarceration here, was to continue 
his previously determined exclusion order. While Mezei’s re­
lease would have “nullified” his exclusion order based on na­
tional security and would have granted him a de facto admis­
sion because no other country would accept him, neither of 
those factors is present here. Moreover, this case does not, as 
did Mezei, implicate procedural due process hearing rights, 
but rather the equal protection of the law. Further, the prem­
ises underlying the result in Mezei have been rejected by 
subsequent constitutional developments.



24

ARGUMENT
I. BLACK HAITIAN REFUGEES ARE ENTITLED TO 

EQUAL PROTECTION OF THE LAW
No principle is more fundamental to our nation’s history or 

values or more firmly established in our law than that invidious 
discrimination on the basis of race and national origin by 
government officials has no acceptable place in our political and 
social life.28 The Eleventh Circuit’s unprecedented holding— 
that the actions of INS enforcement officials in incax derating 
petitioners solely on the basis of their race and nationality is 
wholly beyond constitutional scrutiny—is fundamentally at 
war with this basic principle. Nothing in the facts of this case29 
can justify the Eleventh Circuit’s conclusion, and no overriding 
governmental interest is at stake that could possibly justify a

28 No value is more enshrined in our law or in our nation’s life than 
the non-discrimination principle contained in the fifth and fourteenth 
amendments. As Chief Justice Taft wrote for the Court in Truax v. 
Corrigan, 257 U.S. 312, 332 (1921), “Our whole system of law is 
predicated on the general, fundamental principle of equality of appli­
cation of the law. ” Moreover, discrimination based on race and na­
tional origin “strikes at the core concerns” of the fifth and fourteenth 
amendments “and at fundamental values of our society and our legal 
system.” Rose v. Mitchell, 443 U.S. 545, 564 (1979). This Court 
recently reemphasized the “important federal concerns arising from 
the Constitution’s commitment to eradicating discrimination based 
on race.” Palmore v. Sidoti, 104 S.Ct. 1879, 1881 (1984). Indeed, in 
Lee v. Washington, 390 U.S. 333 (1968), this Court affirmed that 
even a class of persons whose substantive liberty interests have 
largely been extinguished by their valid convictions—sentenced 
prisoners—may not be subjected to racial discrimination, a holding 
reiterated just this past term. Hudson v. Palmer, 104 S.Ct. 3194, 
3198 (1984) (“invidious racial discrimination is as intolerable within a 
prison as outside”). The same core concerns apply equally to matters 
concerning discrimination based upon national origin. Hernandez v. 
Texas, 347 U.S. 475, 479 (1954); Yick Wo v. Hopkins, 118 U.S. 356 
(1886).

29 See pp. 17-18, supra.



25

total absence of constitutional scrutiny. Indeed, even during 
the most extreme emergency such as the perceived threat of 
invasion and sabotage in the midst of a world war, this Court 
subjected discriminatory incarceration to constitutional scru­
tiny. Korematsu v. United States, 323 U.S. 214 (1944). Nor do 
separation of powers concerns that would ordinarily command 
judicial deference to the political branches of the federal 
government apply where, as here, those political branches 
have established a neutral policy that was then applied by 
low-level agency officials “with an evil eye and an unequal hand 
------” Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886).

A. Excludable Aliens Are “Persons” Protected By The 
Fifth Amendment

The equal protection guarantee of the fifth amendment pro­
tects all “persons” without qualification. The fifth amendment 
provides that “No person shall. . . be deprived of life, liberty, 
or property, without due process of law . . . .” (Emphasis 
added). This language could not be more explicit. Unlike the 
limitation of citizenship under the privileges and immunities 
clause of the fourteenth amendment, or the requirement that a 
person be “within the jurisdiction” of a state under the equal 
protection clause of the fourteenth amendment, the fifth 
amendment permits neither a geographic nor a citizenship 
limitation. It encompasses all persons wherever situated, in­
cluding all aliens. Plyler v. Doe, 457 U.S. 202, 210 (1982) 
(“Whatever his status under the immigration laws, an alien 
surely is a ‘person’ in any ordinary sense of that term. Aliens, 
even aliens whose presence in this country is unlawful, have 
long been recognized as ‘persons’ guaranteed due process of 
law by the Fifth and Fourteenth amendments.”); Mathews v. 
Diaz, 426 U.S. 67, 77 (1975) (“Even [an alien] whose presence 
in this country is unlawful, involuntary, or transitory is enti­
tled to that constitutional protection.”); Wong Wing v. United 
States, 163 U.S. 228, 238 (1896) (“all persons within the territo­
ry of the United States are entitled to the protection guaran­



26

teed by [the fifth amendment]”);30 Yick Wo v. Hopkins, 118 
U.S. 356, 369 (1886) (“These provisions are universal in their 
application, to all persons within the territorial jurisdiction 
. . . .”); Ex parte Milligan, 71 U.S. (4 Wall.) 281, 295 (1866) 
(“The Constitution . . . covers with the shield of its protection 
all classes of men, at all times, and under all circumstances.”).

The fifth amendment protects citizens and foreign nationals 
without distinction, including friendly aliens, United States v. 
Pink, 315 U.S. 203, 228 (1942), aliens outside the United 
States, Russian Volunteer Fleet v. United States, 282 U.S. 
481 (1931), citizens challenging actions by the United States 
taken against them outside the country, Reid v. Covert, 354 
U.S. 1 (1957); Balzac w. Porto Rico, 258 U.S. 298, 312-13 (1922) 
(“The Constitution of the United States is in force . . . wher­
ever and whenever the sovereign power of [the] government is 
exerted”), aliens illegally within the country, Plyler v. Doe, 
457 U.S. 202, 210 (1982); Mathews v. Diaz, 426 U.S. 67, 77 
(1976), and excludable aliens stopped at the border or allowed 
into the country but considered as though stopped at the 
border.31 Thus, any person may invoke the fifth amendment to

30 In Wong Wing, this Court recognized that regardless of an alien’s 
status in this country, federal courts may review challenges to his 
detention under the fifth amendment. Although the aliens involved in 
Wong Wing, under present terminology, would be deemed deport­
able rather than excludable aliens, the decision in Wong Wing oc­
curred before this Court’s decision in The Japanese Immigrant Case 
(Kaoru Kamataya v. Fisher), 189 U.S. 86 (1903), adopting this 
distinction. As a result, the broad language in Wong Wing defining 
aliens as “persons” within the coverage of the fifth amendment 
should not be limited to deportable aliens. Ironically, this principle 
was recognized by even the en banc court. Jean II (J.A. 318 n.22).

31 Augustin v. Sava, 735 F.2d 32, 37 (2d Cir. 1984); Yin Sing Chun 
v. Sava, 708 F.2d 869, 877 (2d Cir. 1983); Rodriguez-Femandez v. 
Wilkinson, 654 F.2d 1382, 1387 (10th Cir. 1981); United States v. 
Henry, 604 F.2d 908, 913 (5th Cir. 1979); see also United States v. 
Demanett, 629 F.2d 862 (3d Cir.), cert, denied, 450 U.S. 910 (1980) 
(fourth amendment rights).



27

challenge action by the United States government, regardless 
of his immigration status and regardless of whether he is or is 
deemed to be inside the country, outside of it, or “at the 
border.” Plainly, if an excludable alien (or even an alien 
corporation) not within the territorial boundaries of the United 
States may invoke the protections of the fifth amendment, as 
may an unlawful alien within our boundaries, an excludable 
alien who, although physically present within our boundaries is 
deemed to be “at the border” for immigration purposes, is 
protected by the Constitution. As persons “in any ordinary 
sense of that term ,” Plylerv. Doe, 457 U.S. at 210, excludable 
aliens such as the Haitian petitioners cannot be barred from 
invoking the Constitution to challenge governmental actions 
taken against them.

The en banc court’s failure to recognize or address the pri­
mary question of the fifth amendment’s coverage led that court 
into fundamental error. The en banc court confused the fact 
that all “persons” such as the Haitian petitioners are covered 
by the fifth amendment, with the extent of the reach of their 
constitutional protection in differing contexts. Although in 
certain contexts important governmental interests may out­
weigh fifth amendment claims, particularly those advanced by 
classes of persons with reduced liberty interests-—such as 
sentenced prisoners, public school students, and aliens—every 
“person” is entitled to assert fifth amendment claims and to 
invoke judicial scrutiny of invidiously discriminatory gov­
ernmental conduct. This confusion was evident in the en banc 
court’s unsuccessful attempt to distinguish such cases as Rus­
sian Volunteer Fleet and Wong Wing. The en banc court found 
that these cases did not control the question of whether ex­
cludable aliens may assert constitutional rights because they 
did not involve national power over immigration (Russian 
Volunteer Fleet) or because even where they did, the alien was 
subjected to a different form of governmental power—criminal 
prosecution (Wong Wing). Jeanll (J.A. 319-20). These distinc­
tions, of course, are of no consequence when deciding whether 
an alien is a “person” within the meaning of the fifth amend­



28

ment. Both Russian Volunteer Fleet and Wong Wing stand for 
the proposition that excludable aliens are persons within the 
meaning of the fifth amendment and are protected by the 
Constitution.

B. None Of The Cases Cited By The Lower Court Could 
Possibly Justify A Finding That Petitioners Are Not 
Persons Within The Meaning Of The Fifth Amendment

Similarly, the lower court’s reliance on such cases as Nishi- 
muri a Ekiu  v. United States, 142 U.S. 651, 660 (1892), Kwong 
Hai Chew v. Colding, 344 U.S. 590, 600 (1953), Shaughnessy 
v. United States ex rel. Mezei, 345 U.S. 206,212(1953), United 
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), and 
Landon v. Plasencia, 459 U.S. 21 (1982), for the proposition 
that excludable aliens have no constitutional rights, Jean II  
(J.A. 307-08), ignores the distinction between coverage under 
the fifth amendment and the scope of that coverage. Although 
these cases may recognize that an excludable alien may have no 
substantive constitutional liberty interest in admission to our 
country,32 and that his procedural due process rights concern­
ing determination of his admissibility are reduced,33 none holds

S2See, e.g., Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“an alien 
seeking initial admission to the United States requests a privilege 
and has no constitutional right regarding his application”); Kwong 
Hai Chew v. Colding, 344 U.S. 589, 596 n.5 (1953) (“The Bill of Rights 
is a futile authority for the alien seeking admission for the first time to 
these shores,” quoting Bridges v. Wixon, 326 U.S. 135, 161 (1945) 
(Murphy, J., concurring)); United States ex rel. Knauff v. Shaugh­
nessy, 338 U.S. 537, 542 (1950) (“an alien who seeks admission to this 
country may not do so under any claim of right. Admission of aliens to 
the United States is a privilege granted by the sovereign United 
States Government.”); Nishimura Ekiu v. United States, 142 U.S. 
651, 659 (1892).

33Shaughnessy v. United States ex rel. Mezei, 345 U.S. at 212 
(“Whatever the procedure authorized by Congress is, it is due proc­
ess as far as an alien denied entry is concerned.”); United States ex 
rel. Knauff v. Shaughnessy, 338 U.S. at 544 (same); Nishimura 
Ekiu v. United States, 142 U.S. at 660.



29

that excludable aliens have no constitutional rights in any 
immigration context or that they are not persons within the 
meaning of the fifth amendment.34 And none even hints that 
government officials can deprive a person of physical liberty 
solely on the basis of his race or national origin wholly free from 
constitutional scrutiny, particularly where high-level execu­
tive officials and Congress have decreed otherwise.35

II. PERMITTING CONSTITUTIONAL SCRUTINY OF 
D I S C R I M I N A T O R Y  I N C A R C E R A T I O N  BY 
IMMIGRATION ENFORCEMENT OFFICIALS OF EX­
CLUDABLE ALIENS PENDING A DETERMINATION 
OF THEIR ADMISSIBILITY WOULD NEITHER HAM­
PE R  THE EXECUTIVE’S ENFORCEMENT OF 
IMMIGRATION LAWS NOR INTERFERE WITH THE 
SOVEREIGN AUTHORITY OF CONGRESS AND THE 
PRESIDENT TO DECIDE WHO WILL BE PERMIT­
TED ENTRY INTO OUR SOCIETY

The en banc court refused to subject respondents’ incarcera­
tion of these black Haitian refugees to any constitutional re­
view because in its view the discriminatory incarceration was 
somehow related to the important government interest in con­
trolling the entry of aliens into our country. On the facts of this 
case, however, there was no danger that temporary release on

34 The unnecessarily broad language in Kwong Hai Chew v. Cold- 
ing, 344 U.S. 590, 600 (1953), that “ ‘excludable’ aliens . . .  are not 
within the protection of the Fifth Amendment,” was not only dictum 
wholly unrelated to the Court’s holding concerning a returning resi­
dent alien, but when read in context, plainly does not suggest that 
excludable aliens may not assert fifth amendment protections. It 
suggests only that they may not assert procedural due process 
protections in connection with admissibility greater than provided.

35 The lower court relied on Shaughnessy v. United States ex rel. 
Mezei, 345 U.S. 206 (1953), which it found “controlling” on this issue, 
and on language in Wong Wing v. United States, 163U.S. 228(1896), 
and Carlson v. London, 342 U.S. 524 (1952). See Jean II (J.A. 312, 
309-323). As demonstrated below, at pp. 39-46, Mezei clearly does



30

parole would lead to absconding or risk the nation's security. 
See pp. 17-18, supra. Nor has the temporary release of these 
petitioners pending determination of their asylum claims been 
tantamount to their admission. Parole determinations are 
entirely separate from admission both factually and legally, do 
not implicate national sovereignty, and have no effect on 
immigration status. Moreover, discriminatory incarceration 
simply does not implicate legitimate concerns pertaining to the 
regulation of admission of aliens into our country.

In any case, even the broad power concededly possessed by 
Congress and the President to regulate admission into the 
country, and in appropriate cases to make distinctions in 
admission based on nationality, is not immune from con­
stitutional scrutiny. A fortiori where Congress and the Presi­
dent have chosen not to draw such distinctions in the applica­
tion of incarceration pending a determination of admissibility, 
and where the Attorney General announced and intended an 
evenhanded policy, discriminatory incarceration by sub­
ordinate enforcement officials must receive constitutional 
scrutiny.

not control the present case since the Court in Mezei was addressing 
an entirely different issue—detention as the continuation or effectua­
tion of a previously rendered decision that an alien was excluded, a 
circumstance where the question of detention and inadmissibility are 
not merely related but are one and the same. The lower court’s 
reliance on Wong Wing and Carlson was equally misplaced. Both 
cases stand for the very proposition asserted here: that the detention 
of aliens is subject to constitutional scrutiny even when it is asserted 
that detention is related to admission. Indeed, this Court has long 
recognized that the incarceration of a person by the government is 
subject to constitutional scrutiny. Korematsu v. United States, 323 
U.S. 214 (1944).



31

A. The Considerations Of National Sovereignty And 
Separation Of Powers That Insulate Decisions Con­
cerning Admission Of Aliens Into Our Country From 
Close Judicial Scrutiny Simply Do Not Apply To Deci­
sions Concerning Incarceration Of Aliens Pending A 
Determination Of Their Admissibility

The en banc court believed that extending any constitutional 
protection against discriminatory incarceration to these ex­
cludable aliens would hamper the authority of the Executive to 
enforce our immigration laws and “control our borders.” In the 
court’s view, such protection would also interfere with con­
gressional and executive authority to make sovereign deci­
sions as to who will be admitted or denied admission into our 
society, since parole determinations are somehow related to 
admission. Neither the relief the petitioners seek, the facts of 
this case, nor the en banc court’s reliance on the mantle of 
national sovereignty can justify its conclusion.

Petitioners do not contend that the Constitution requires the 
adoption of any particular substantive policy in regard to 
detention or parole, but only that whatever policy is adopted 
must be applied in an evenhanded manner. Even the Execu­
tive has not asserted that we ought to have a discriminatory 
policy. The en banc court confused the issue by treating peti­
tioners’ request for equal treatment as if it were a request for a 
substantive parole or detention policy.

Moreover, the record in this case demonstrates that the 
release of the petitioners, whose continued detention was 
based upon race and nationality and not upon traditional con­
cerns of security or public safety, would not erode or hamper 
the executive’s ability to enforce our immigration laws. The 
traditional concerns of detention—to restrict absconding and 
to protect the public safety and national security—were never 
in issue here. See pp. 17-18, supra. As both the panel and the 
district court correctly found, Haitian refugees posed no threat 
to the national security, were not likely to abscond, and repre­
sented an insignificant number of undocumented aliens. Jean I 
(J.A. 255 n.38); Louis IV  (J.A. 178). Indeed, even the INS



32

conceded at trial that petitioners were not incarcerated be­
cause they were a threat to national security or because they 
were likely to abscond. Scepp. 17-18, supra. Further, Haitians 
constituted less than two percent of the undocumented 
immigration into the United States. See p. 17, supra. The 
temporary parole of Haitians, therefore, could not and did not 
affect these concerns.

Similarly, the en banc court’s theoretical concern, that 
granting temporary parole would interfere with the power of 
Congress and the President to determine admission questions, 
is unfounded. Temporary release on parole is simply not tanta­
mount to admission, factually or legally. Temporary release 
from incarceration (parole) is a distinct event from admission, 
and provides neither the benefits of admission nor any legal 
status equivalent even to that of a visitor temporarily admit­
ted. Leng May Ma v. Barber, 357 U.S. at 190 (temporary 
release or parole from incarceration does not create an admis­
sion into the United States, but is “simply a device through 
which needless confinement is avoided while administrative 
proceedings are conducted. It was never intended to affect an 
alien’s status . . . .”); Kaplan v. Tod, 267 U.S. 228, 230-31 
(1925). Congress has also recognized this distinction. The very 
statute at issue here plainly provides that the parole of an alien 
from incarceration “shall not be regarded as an admission of 
the alien and when the purposes of such parole shall. . . have 
been served the alien shall forthwith return or be returned to 
the custody from which he was paroled . . . . ” 8 U.S.C. 
§ 1182(d)(5)(A) (1982).36

Moreover, the facts of this case demonstrate that the tempo­
rary release of an alien pending a determination of his asylum

36 Indeed, the en banc court’s concern that release would “erode” 
the admissions process, Jean II  (J. A. 322), is inconsistent with Con­
gress’ authorization of the benefits of temporary release, while 
recognizing that such release would not result in admission, 8 U.S.C. 
§ 1182(d)(5)(A), and with the long-standing administrative practice 
which favored release from 1954 until this case. R. at Vol. 38, pp.



33

claim does not affect the government’s ability to deny him 
admission. Although many of the petitioners in this case were 
released after a year of detention, their release has not re­
sulted in their admission, legally or factually. They are still 
subject to exclusion and physical removal to Haiti, as the lower 
court recognized. Jean II  (J.A. 322 n.26). In fact, many have 
already been ordered excluded.37 As persons temporarily re­
leased pending a determination of their admissibility, they 
share none of the rights or benefits of aliens admitted, even 
temporarily, into the United States. They are all subject to 
strict reporting requirements; their physical movement is res­
tricted; their temporary parole may be terminated at any time; 
and they remain separated from family members abroad who 
have no right to enter the United States to join them. Louis IV  
(J.A. 179-85).

Not only did the lower court err in its belief that detention 
was integrally related to admission, but even if its premise 
were correct, its constitutional conclusion is not. Even if 
admission decisions are committed to the political branches of 
our government, questions relating to detention simply are 
not. To suggest that the two are related in some fashion does

123-30 (testimony of Charles Gordon); R. at Vol. 38, pp. 211-18 
(testimony of Sam Bernsen); R. at Vol. 40, p. 611 (testimony of James 
Orlow); Leng May Ma, 357 U.S. at 190 (parole policy reflects an 
“enlightened civilization”).

37 Although many of the Haitians have been released by the district 
court judge due to his finding that the government violated the 
rule-making requirements of the APA, they are currently undergo­
ing exclusion proceedings. Spearheaded by the American Bar Asso­
ciation, various local bar associations, organized groups of immigra­
tion lawyers, human rights organizations, and many other groups 
have provided a majority of the released Haitians with free legal 
representation. Indeed, the Haitian representation effort has been 
widely praised. See Helton, The Most Ambitious Pro Bono Ever 
Attempted, 12 Hum. Rts. 19 (1984). Approximately 1,600 lawyers 
across the country have volunteered to represent the Haitians. Id. at 
48.



34

not mean that the considerations of national sovereignty and 
constitutional authority that insulate the basic question of 
admission or exclusion from close judicial scrutiny would also 
apply to detention decisions, particularly when made, as here, 
by politically unresponsive enforcement officials.38

Congress and the President, when “acting within powers 
expressly conferred by Congress,” Nishimura Ekiu  v. United 
States, 142 U.S. at 660, have broad authority over the question 
of the admission of aliens into the United States. United States 
ex rel. Knauffv. Shaughnessy, 338 U.S. at 542; Fong Yue Ting 
v. United States, 149 U.S. 698, 707-11 (1893). This broad 
authority is recognized as an attribute of sovereignty, so that a 
sovereign nation, within the limits prescribed by international 
law, may choose whom it wishes to admit into its political 
community. Fong Yue Ting, 149 U.S. at 707-11; Nishimura 
Ekiu, 142 U.S. at 659. Indeed, this Court has upheld the 
decision and power of Congress to exclude aliens based solely 
on criteria it would find impermissible in other contexts. Klein-

38 An analogy from the criminal justice system is apt. Sentenced 
defendants may have had their liberty interests under the Constitu­
tion extinguished to a great extent by their valid convictions. See,
e.g., Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 
442 U.S. 1, 7 (1979); Meachum v. Fano, 427 U.S. 215 (1976). Judicial 
deference to the sentencing-decisions of the Congress or of state 
legislatures may, in such circumstances, be particularly appropriate. 
A state or the federal government may choose not to have a system of 
parole or of clemency under which prisoners are released from cus­
tody prior to the termination of their sentence. See Greenholtz. If 
parole or clemency is provided for, however, certain constitutional 
implications follow. Even though prisoners may have no right to 
parole or clemency—it may literally be a matter of grace—they are 
entitled to parole or clemency consideration on a non-cliscriminatory 
basis. Surely equal protection would be offended if parole or clemen­
cy board officers targeted specific racial or national groups for dis­
criminatory treatment notwithstanding the fact that parole and 
clemency are integrally related to criminal conviction and sentence. 
Although “related” in some fashion, the considerations that insulate 
sentencing decisions from scrutiny simply do not obtain when con­
sidering a claim of discrimination in the granting of parole or 
clemency.



35

dienst v. Mandel, 408 U.S. 753, 765-766 (1972); Fiallo v. Bell, 
430 U.S. at 792. The separation of powers concerns that have 
led to limited constitutional scrutiny of admissions decisions 
and to broad deference by the judiciary to the coordinate and 
politically responsive branches of our government, however, 
do not apply to questions that do not involve admission, be­
cause such questions do not involve political decisions as to 
whom we will permit, even temporarily, to join our society.39

Moreover, even assuming arguendo a relationship between 
incarceration and admission, the court below analyzed the 
wrong relationship. The question is not the theoretical one of 
whether a uniform policy of incarceration would further the 
concerns that implicate admission, but whether discriminato­
ry incarceration can implicate these concerns. Since Congress 
has explicitly rejected race and national origin as criteria for 
admission itself,40 the en banc court’s analysis cannot stand as a 
m atter of law. In any case, whatever relationship might exist 
between the legitimate governmental concerns associated 
with detention—the prevention of absconding and security 
threats—and the concerns that insulate admission decisions 
from close judicial scrutiny, no relationship exists between 
these concerns and the discriminatory incarceration of aliens 
based solely on their race and national origin.41

39 Indeed, this fundamental distinction is evidenced by the differ­
ent criteria applied to parole and to entry even temporarily into our 
society. To obtain temporary admission, an alien must demonstrate 
the inapplicability of the same 33 separate restrictions that apply to 
applicants for permanent residency. 8U.S.C. § 1182(a)(1 )-(33). Con­
gress did not require that parolees make this showing to obtain 
temporary parole.

40 See footnote 13, supra.
41 The en banc court’s concern that a due process right to tempo­

rary release would “severely erode” the “government’s power to 
control ‘entry,’ ” Jean II (J. A. 315 n. 18), is not at issue here. Petition­
ers here assert only an equal protection claim, and do not assert a 
procedural due process right in connection with release. Whatever 
relationship might exist between a due process hearing right for 
release and the concerns that insulate admission decisions from scru­
tiny, no relationship exists between these concerns and discriminato­
ry incarceration.



36

B. Since Even Congressional And Presidential Decisions 
Concerning The Admission Of Aliens Are Subject To 
Constitutional Scrutiny, Discriminatory Incarceration 
By Subordinate Agency Officials Must Be Subject To 
Constitutional Review

It is “one of the fundamental principles of our society” that all 
governmental action is subject to the limitations of the Con­
stitution. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 
(1803). E.g., Reid v. Covert, 354 U.S. at 6 (every action by our 
government must be “[i]n accordance with all the limitations 
imposed by the Constitution.”); Korematsu v. United States, 
323 U.S. 214 (1944) (Presidential action authorized by Con­
gress under war power subjected to strict constitutional scru­
tiny); Ex parte Milligan, 71 U.S. (4 Wall.) at 295. This is, of 
course, true when the Congress or the President assert their 
broad sovereign powers to regulate immigration, whatever 
may be the constitutional source of that power. The Chinese 
Exclusion Case, 130 U.S. at 604 (“The powers to declare war, 
make treaties, suppress insurrection, repel invasion, regulate 
foreign commerce, secure republican governments to the 
States, and admit subjects of other nations to citizenship, are 
all sovereign powers, restricted in their exercise only by the 
Constitution . . . .”) AccordFiallo v. Bell, 430 U.S. at 793 n.5 
(“Our cases reflect acceptance of a limited judicial responsibil­
ity under the Constitution even with respect to the power of 
Congress to regulate the admission and exclusion of aliens 
. . . . ”) (emphasis added); Hampton v. Mow Sun Wong, 426 
U.S. at 101-03; Fong Yue Ting v. United States, 149 U.S. at 
713 (“the paramount law of the Constitution” limits con­
gressional and executive power to exclude aliens).

If action by Congress and the President concerning their 
sovereign powers to regulate admission of aliens are subject to 
at least some constitutional scrutiny, a fortiori discriminatory 
action by subordinate agency officials administering a facially 
neutral statute intended to be applied evenhandedly by the 
President and the Attorney General must be subject to con­
stitutional scrutiny, particularly where the locus of action is



37

not admission itself, but the distinct question of temporary 
release on parole.

This case does not implicate the authority of Congress, the 
President, or the Attorney General. Rather, it challenges the 
power of low-level politically unresponsive government offi­
cials to act in a manner which is contrary to federal statutes, 
treaty, and the directions of the President and the Attorney 
G eneral, both of whom provided for a policy of non- 
discriminatory enforcement. Constitution-:!.! protection against 
discriminatory enforcement of our immigration laws by low- 
level government officials does not affect the plenary power of 
Congress to legislate or the authority of the President to 
enforce immigration laws. The inherently political concerns 
implicit in determinations by Congress and the President, in 
exercising the powers of a sovereign nation, regarding admis­
sion into our political community, lose their force in the context 
of enforcement actions by low-level politically unresponsive 
officials. See Tribe, American Constitutional Law 283 (1978). 
Constitutional protection here ensures fidelity to law, by 
providing that federal statutes will be enforced consistently 
with their language and with the intent of Congress and the 
President.

In this respect, Hampton v. Mow Sun Wong, 426 U.S. 88 
(1976), is instructive. There, this Court was unwilling to defer 
to the actions of the Civil Service Commissioner when he 
determined by regulation that non-citizen resident aliens were 
barred from federal employment, finding that “some judicial 
scrutiny. . . is mandated by the Constitution. ” Id. at 103. This 
was so even though the Court recognized both the narrow 
scope of judicial scrutiny of immigration policy and the broad 
character of presidential and congressional power in the 
immigration field. Id. at 101 n.21. While this Court assumed 
“that if the Congress or the President had expressly imposed 
the citizenship requirement, it would be justified,” it was not 
willing to reach this conclusion when the requirement was 
imposed by the agency. Id. at 105. Finding that “neither the 
Congress nor the President has ever required the Civil Service



38

Commission to adopt the citizenship requirement as a condi­
tion of eligibility for employment,” id. (emphasis in original), 
and that neither had approved it, this Court held the agency 
rule unconstitutional.42

This case is an even more compelling one than Hampton. 
Here, the President, the Attorney General, and the Congress 
have established facially neutral statutes and policies. Al­
though the President had statu to ry  authority, through 
proclamation, to distinguish among classes of aliens, 8 U.S.C. 
§ 1182(f), he declined to do so. In the face of that facial neutrali­
ty and recent congressional history disavowing iyividious ra­
cial and nationality discrimination,43 low-level enforcement 
officials subjected Haitians, but not other similarly situated 
groups of excludable aliens, to prolonged incarceration. As in 
Hampton, the actions of low-level politically unresponsive offi­
cials which were not adopted or approved by Congress or the 
President, and which the agency never attempted to justify on 
neutral grounds, must be found unconstitutional.

The lower court’s decision that the Constitution places no 
limits whatsoever on executive action, including that taken by 
subordinate agency officials, constitutes an unprecedented 
abdication of the federal judiciary’s role as guardian of the 
Constitution. The lower court’s misplaced concerns about 
“protecting our borders” and congressional and executive 
sovereign powers led the judges to “close their eyes on the 
Constitution, and see only” the executive’s power. Marburxj v.

42 See also Regents ofUniv. of Cal. v. Bakke, 438 U.S. 265, 308-09 
(1978) (opinion of Powell, J.) (relying on Hampton to support the 
conclusion that although the legislature might have the authority to 
enact an affirmative action medical school admissions program to 
remedy past discrimination, the Regents did not have this power 
absent a clear legislative delegation).

43 See footnote 13, supra.



39

Madison, 5 U.S. (1 Cranch) at 178.44 In effect, the en banc court 
fell into the error condemned by this Court in Ex parte Milli­
gan, 71 U.S. (4 Wall.) at 295.

No doctrine, involving more pernicious consequences, 
was ever invented by the wit of man than that any of [the 
Constitution’s] provisions can be suspended during any of 
the great exigencies of government. Such a doctrine leads 
directly to anarchy or despotism, but the theory of ne­
cessity on which it is based is false; for the government, 
within the Constitution, has all the powers granted to it 
which are necessary to preserve its existence . . . .

The en banc court’s refusal to subject the actions even of 
low-level officials to constitutional scrutiny where race and 
national origin discrimination are at issue, and where the rec­
ord reveals no threat to national security or legitimate con­
cerns about protecting our borders, would leave the federal 
judiciary without the constitutional tools to deal with immigra­
tion practices equal to or even more outrageous than discrimi­
natory incarceration. Surely no legitimate separation of pow­
ers concern can justify suspending the constitutional limits 
that our legal system places on all government officials.45

III. THE LOWER COURT IMPROPERLY RELIED UPON 
SHAUGHNESSY v. UNITED STATES EX REL.  
MEZEI, 345 U.S. 206 (1953), WHICH IS NOT CON­
TROLLING AND THE UNDERLYING PREMISES OF 
WHICH HAVE BEEN REJECTED

In reaching its conclusion that excludable black Haitian re­
fugees who have suffered incarceration due to invidious racial 
and national origin discrimination have no constitutional

44 Of course, recognizing the propriety of constitutional scrutiny 
does not mean that appropriately weighty governmental interests 
will be subordinated to the constitutional claim asserted. See, e.g., 
Korematsu v. United States, 323 U.S. 214 (1944).

45 The lower court’s non-constitutional remand standard, under 
which discriminatory actions of subordinate government officials 
would be upheld if a “facially legitimate and bona fide reason” were



40

protection, the en banc court squarely relied on Shaughnessy 
v. United States ex rel. Mezei, 345 U.S. 206 (1953). The court 
found that the decision was “controlling on this issue” and that 
it “forecloses us from relying on the arguments that the panel 
and the district court found persuasive.” JeanII (J.A. 311-12). 
The en banc court’s failure to perform an independent assess­
ment of the applicability of the equal protection guarantee to 
the incarceration of petitioners was based on a fundamental 
misreading of this Court’s decision in Mezei. It is not control­
ling here and the premises on which it was based have been 
seriously eroded.

A. Mezei Does Not Control This Case
In relying on Mezei as “controlling” precedent in a case of 

invidious race and national origin discrimination, the en banc 
court misconstrued that precedent and extended it far beyond 
its intended scope. Mezei is distinguishable both factually and 
legally from this case. In Mezei, the issue presented for review 
was whether an alien who had already been ordered excluded 
on the grounds of national security pursuant to a war power 
(not immigration) act was entitled, as a matter of constitutional 
right, to release because his physical removal from the United 
States could not be accomplished. Mezei was temporarily 
ordered excluded upon arrival in the United States without a

invoked in justification, Jean II (J.A. 330), is a wholly inadequate 
substitute for constitutional scrutiny, particularly of discrimination. 
Although the scope of review of admission decisions by the Attorney 
General may be exceedingly narrow when applying a specific legisla­
tive standard of exclusion, see Kleindienst v. Mandel, 408 U.S. 753 
(1972), the “facially legitimate and bona fide” standard is inapplicable 
to the actions of low-level officials in dealing with questions such as 
release on parole that are not equivalent to admissions decisions. 
This is particularly true since low-level officials do not possess the 
discretion to discriminate based on race and nationality in dealing 
even with admission questions, see 8 U.S.C. § 1182(f) (giving this 
power only to the President, to be exercised only by presidential 
proclamation).



41

hearing, pursuant to the Passport Act of 1918 and a Presiden­
tial Proclamation invoking the national security.46 The Attor­
ney General thereafter ordered Mezei permanently excluded 
without a hearing because he determined that disclosure of the 
nature of Mezei’s threat to the national security would “be 
prejudicial to the public interest.” Mezei, 345 U.S. at 210-11.

Pursuant to this order of exclusion, the Attorney General 
sought to remove Mezei physically from the United States, but 
no country would accept him. Mezei, 345 U.S. at 208-09. Mezei 
was held at Ellis Island to continue his already-determined 
exclusion until he could be physically removed from the United 
States. In this manner, his detention was not incidental to or 
merely related to his exclusion but was, as the government 
argued,47 the effectuation of the Attorney General’s previous 
exclusion order.

46 The Passport Act of 1918 permitted the President by proclama­
tion to establish special restrictions on the entrance or departure of 
aliens into or out of the United States “[wjhen the United States is at 
war or during the existence of a national emergency proclaimed by 
the President . . . .” Mezei, 345 U.S. at 210-11 n.7.

47 The distinction between detention as related to or incidental to 
exclusion and detention as a continuation of the exclusion order was 
stated quite plainly in the government’s brief:

It is the position of the United States that since the restraint is 
not incidental to an order but is, itself, the effectuation of the 
exclusion order, there is no limit to its continuance other than 
the statutory time limit on the authority of the Attorney General 
to exclude him.

Brief for the Petitioners in Shaughnessy v. United States ex ret. 
Mezei, at 9. According to the government:

Here the restraint follows from the shutting out of the alien. The 
Attorney General has found that respondent’s entry would be 
prejudicial to the public interest. So long as the finding is 
outstanding, the restraint resulting from exclusion cannot be 
regarded as unreasonably prolonged regardless of how long it 
continues.

Id. at 28.



42

For this reason, this Court addressed both the propriety of 
Mezei’s exclusion order and “the issue of respondent’s con­
tinued exclusion on Ellis Island.” Mezei, 345 U.S. at 215 (em­
phasis added). In the bulk of its opinion, this Court discussed 
the propriety of Mezei’s order of exclusion. Mezei, 345 U.S. at 
210-15.48 Only the final two paragraphs of the opinion ad­
dressed the question of whether Mezei’s exclusion should be 
continued or whether he should be released because no other 
country would accept him. This Court held “that [Mezei’s] 
continued exclusion [does not] deprivfe] him of any statutory 
or constitutional right.” Mezei, 345 U.S. at 215 (emphasis 
added). Accepting the government’s argument, this Court 
found that “to admit an alien barred from entry on security 
grounds nullifies the very purpose of the exclusion proceeding 
____” Id. at 216.49

In sharp contrast to the factual and legal determinations in 
Mezei, the present case involves the question of equal treat­
ment in detention and parole prior to any determination of 
excludability. The petitioners here challenge the actions of 
low-level officials, rather than those of the Attorney General as 
in Mezei. Moreover, petitioners do not challenge the substan­
tive basis for incarceration as in Mezei, but rather the in­

48 The broad language in Mezei, that “the power to expel or exclude 
aliens [is] a fundamental sovereign attribute,” Mezei, 345 U.S. at 
210, went to the propriety of Mezei’s exclusion order, not to the issue 
of his continued detention. Petitioners here do not challenge this 
broad authority when it is addressed, as it was in Mezei, to the issue 
of exclusion.

49 In its brief in Mezei, the government argued that “where an alien 
is ordered excluded for reasons of internal security, pursuant to the 
mandate of Congress and the President, it cannot be unreasonable to 
continue his detention for the purpose of debarring him from the 
United States so long as his entry continues to be a menace to the 
safety of the United States.” Brief for the Petitioners, at 29.



43

vidiously discriminatory application of a parole provision.50 In 
Mezei, discriminatory application of parole was not asserted or 
at issue. Further, at the time Mezei’s case arose, no statutory 
provision expressly authorizing parole existed, a factor which 
influenced the Court’s decision in Mezei. 345 U.S. at 216 nn. 14- 
15. In this case, there is such a statutory authorization. 8 
U.S.C. § 1182(d)(5)(A). In addition, the rationale of Mezei, 
that detention was merely a continuation of a previously deter­
mined exclusion order, is not applicable here because petition­
ers were detained prior to a finding of excludability, and be­
cause petitioners, unlike Mezei, can be physically removed 
from the United States and returned to their country of origin, 
which has expressed its willingness to accept them. Jean II  
(J.A. 322 n.26). Their temporary parole would not, as with 
Mezei, be tantamount to admission and would not, as in Ka- 
planw. Tod and Mezei,51 bootstrap them into admission. Unlike 
Mezei’s release, which would have thwarted the political bran­
ches’ sovereign control over admission and would have “nulli- 
fie[d] the very purpose of the exclusion proceeding,” Mezei, 
345 U.S. at 216, the grant of temporary parole, on a non- 
discriminatory basis, pending a determination of petitioners’ 
claims for political asylum, would not frustrate Congress’ will.

50 However broad may be the Attorney General’s substantive dis­
cretion to make parole decisions, such decisions are not immune from 
constitutional scrutiny in all contexts. Prosecutorial discretion is 
largely beyond judicial scrutiny, but not if invidious discrimination is 
involved. Oyler v. Boles. 368 U.S. 448 (1962). Whatever limitations 
Mezei may place on the procedural or substantive rights of a detained 
alien who has been excluded, those limitations do not extend to equal 
protection.

51 Only temporary parole is involved here. See footnote 10, supra. 
Unlike the case here, where petitioners are subject to exclusion and 
physical removal since Haiti is willing to accept them, Jean II (J.A. 
322 n.26), the parole sought by Mezei would have been a de facto 
admission, not permitted under Kaplan, because the United States 
could not deport Mezei as no country would accept him. Mezei, 345 
U.S. at 208.



44

Most importantly, the lower court’s decision to extend Mezei 
to insulate from constitutional scrutiny invidious race and 
nationality discrimination results from its misunderstanding of 
that decision. The en banc court’s decision ignored the central 
distinction between the existence of constitutional protection 
and the extent or scope of that protection. In Mezei, this Court 
did not hold that Mezei had no constitutional rights or that his 
detention was justified by extra-constitutional authority, but 
only that the extent of his procedural and substantive due 
process rights to parole were limited under the peculiar facts of 
that case. The extent of equal protection guarantees for ex­
cludable aliens was not decided, or even at issue, in Mezei.52

B. The Underlying Premises Of Mezei Have Been Rejected 
By Subsequent Constitutional Developments

In any event, the premises underlying Mezei have been 
undercut by subsequent constitutional developments. Five 
years after this Court decided Mezei, a plurality of the Court

32 The decision to regard Mezei as a “controlling” precedent which 
sanctions invidious discrimination is particularly dubious in light of 
congressional enactments and decisions of this Court subsequent to 
that decision. In 1954, this Court determined conclusively that the 
fifth amendment did encompass equal protection guarantees which 
apply to the federal government. Bolling v. Sharpe, 347 U.S. 497 
(1954). In January 1965, the Congress abolished the national quota 
system thereby eliminating the vestiges of invidious racial or 
nationality based discrimination in the immigration statutes. The 
legislative history is replete with references to the need to eliminate 
invidious discrimination. Hearings on S.500. 89th Cong., 1st Sess., 
Part 1, 45-48, 217-20 (1965); 111 Cong. Rec. H21759, H21764, 
H21787, S24238 (1965). The 1965 Act not only abolished the national 
origin quota system, but also specifically established a statutory bar 
to invidious discrimination based on race and nationality. 8 U.S.C. 
§ 1152(a) (1982). Additionally, the Refugee Act of 1980 specifically 
sought to end nationality based distinctions in our treatment of 
refugees by accepting the definition of refugee contained in the 
United Nations Convention and Protocol. S. Rep. No. 590, 96th 
Cong., 2d Sess., 19 (1980); 8 U.S.C. § 1101(a)(42) (1982).



45

strongly suggested disapproval of Mezei’s extreme position 
when it stated that the decision created an “intolerable situa­
tion.” Trop v. Dulles, 356 U.S. 86, 102 n.36 (1958). More 
recent developments have eviscerated Mezei’s rationale. 
Mezei rested upon three assumptions which are no longer 
valid: (1) that the exclusion power is a special governmental 
power not subject to constitutional limitations; (2) that pro­
cedural due process did not apply because the release of an 
excludable alien from detention is a privilege, not a right; and 
(3) that the Constitution has no extraterritorial effect. None of 
these assumptions has continuing vitality. First, this Court, 
subsequent to Mezei, has repeatedly rejected, in a variety of 
contexts, the argument that the government has inherent pow­
ers which are not subject to constitutional limitation. See, e.g., 
New York Times Co. v. United States, 403 U.S. 713, 719(1971); 
Afroyim  v. Rusk, 387 U.S. 253, 257 (1967); Kennedy v. 
Mendoza-Martinez, 372 U.S. 144,164-165 (1963); Section IIB, 
supra. Second, the rights-privilege distinction has been re­
jected as a basis for determining the applicability of procedural 
due process.53 Finally, the claim that the Constitution does not 
reach excludable aliens because they are “outside” of the 
United States has been squarely rejected. Reid v. Covert, 354 
U.S. 1 (1957).54

53 E.g., Goss v. Lopez, 419 U.S. 565,573 (1975); Board of Regents v. 
Roth, 408 U.S. 564 (1972); Bell v. Berson, 402 U.S. 535 (1971); 
Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970); see Van Alstyne, The 
Demise of the Rights-Privilege Distinction in Constitutional Laiv, 81 
Harv. L. Rev. 1439 (1968).

54 In addition to its diminishing vitality in light of subsequent 
constitutional developments, the majority’s opinion in Mezei has 
been scathingly criticized by the commentators. Professor Hart in 
The Power of Congress to Limit the Jurisdiction of Federal Courts: 
An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1392-96 (1953), 
described the majority’s opinion as an “aberration” which “ignores 
the painful forward steps of a whole century of adjudication.” More 
recent commentaries have described the decision and that of United 
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), in even



46

Surely the views articulated by Mr. Justice Jackson in his 
dissent in Mezei are more consonant with modern con­
stitutional doctrine:

Because the respondent has no right of entry, does it 
follow that he has no rights at all? Does the power to 
exclude mean that exclusion may be continued or effectu­
ated by any means which happen to seem appropriate to 
the authorities? It would effectuate his exclusion to eject 
him bodily into the sea or to set him adrift in a rowboat. 
Would not such measures be condemned judicially as a 
deprivation of life without due process of law?
Congress has ample power to determine whom we will 
admit to our shores and by what means it will effectuate its 
exclusion policy. The only limitation is that it may not do so 
by authorizing United States officers to take without due 
process of law the life, the liberty or the property of an 
alien who has come within our jurisdiction . . . .

Mezei, 345 U.S. at 226-28 (Jackson, J., dissenting).
In sum, Mezei is simply not controlling here. It should not be 

extended beyond the Cold War context of its narrow, unique 
facts. In any event, its premises have been eviscerated by 
subsequent decisions of this Court and it should not be applied 
to sanction invidious discrimination.

CONCLUSION
For the foregoing reasons, this Court should reverse and 

vacate the decision of the en banc court, reinstate the panel

less sympathetic terms as “a rather scandalous doctrine, deserving to 
be distinguished, limited or ignored.” Martin, Due Process and 
Membership in the National Community: Political Asylum and 
Beyond, 44 U. Pitt. L. Rev. 165 (1983). See also 2 K. Davis, Admin­
istrative Law § 11.5 (2d ed. 1979); Schuck, The Transformation of 
Immigration Law, 84 Colum. L. Rev. 1, 20 (1984); Note, Con­
stitutional Limits on the Power to Exclude Aliens, 82 Colum. L. 
Rev. 957 (1982). Indeed, even the lower court recognized that the 
decision has been “heavily criticized” and is “controversial.” Jean II 
(J.A. 314).



47

opinion and order the district court to enter broad injunctive 
relief to remedy the invidious discrimination against peti­
tioners.

B ruce J. W inick, E sq.
American Civil Liberties Union 

Foundation of Florida, Inc. 
University of Miami School of Law 
P.O. Box 248087 
Coral Gables, Florida 33124 
(305) 284-2971

Irwin P. Stotzky, E sq.
University of Miami School of Law 
P.O. Box 248087 
Coral Gables, Florida 33124 
(305) 284-2549
F ried, F rank, Harris, Shriver 

& Jacobson 
One New York Plaza 
New York, New York 10004 
(212) 820-800
By: Robert E. J uceam, E sq. 

Terrence A. Corrigan, E sq.

Respectfully submitted,

/s/ Ira J. Kurzban, E sq.
National Emergency Civil 

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

Weinger, P.A.
Suite 901
700 Brickell Avenue 
Miami, Florida 33131 
(305) 371-0268
Christopher Keith Hall, E sq. 
32-32 32nd Street 
Long Island City, NY 11106 
(718) 204-5427
Michael J. Rosen, E sq. 
American Civil Liberties Union 

Foundation of Florida, Inc.
19 West Flagler Street 
Miami, Florida 33131 
(305) 377-3736