Jean v. Nelson Slip Opinion

    (Slip Opinion)

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 
being done in connection with this ease, at the time the opinion is issued.
The syllabus const itutes no part of the opinion of the Court but has been pre­
pared by the Reporter of Decisions for the convenience of the reader. See 
United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

JEA N  e t  a l . v. NELSON, COMMISSIONER, IMMIGRA­
TION AND NATURALIZATION SERVICE e t  a l .

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE ELEVENTH CIRCUIT

No. 84-5240. Argued March 25, 1985—Decided June 26, 1985

Petitioner named representatives of a class of undocumented and 
unadmitted aliens from Haiti filed suit in Federal District Court alleging 
that the change by the Immigration and Naturalization Service (INS) 
from a policy of general parole for undocumented aliens seeking admis­
sion to a policy, based on no statute or regulation, of detention without 
parole for aliens who could not present a prima facie case for admission 
was unlawful because it did not comply with the notice-and-comment 
rulemaking procedures of the Administrative Procedure Act (APA). It 
was further alleged that the restrictive parole policy, as executed by 
INS officers in the field, violated the Equal Protection guarantee of the 
Fifth Amendment because it discriminated against petitioners on the 
basis of race and national origin. The District Court held for petitioners 
on the APA claim, but concluded that they had failed to prove dis­
crimination on the basis of race or national orgin. The court then en­
joined future use of the restrictive parole policy but stayed the injunction 
to permit the INS to promulgate a new parole policy in compliance with 
the APA. The INS promptly promulgated a new rule that prohibits the 
consideration of race or national origin. Ultimately, the Court of Ap­
peals held that the APA claim was moot because the Government was no 
longer detaining any class members under the invalidated policy, and 
that the Fifth Amendment did not apply to the consideration of 
unadmitted aliens for parole. The court then remanded the case to the 
District Court to permit review of the INS officials’ discretion under the 
new nondiscriminatory rule.

Held: Because the current statutes and regulations provide petitioners 
with nondiscriminatory parole consideration, there was no need for the 
Court of Appeals to address the constitutional issue, but it properly re-

I



II JEAN v. NELSON

Syllabus

manded the case to the District Court. On remand, the District Court 
must consider (1) whether INS officials exercised their discretion under 
the statute to make individualized parole determinations, and (2) 
whether they exercised this discretion under the statutes and regula­
tions without regard to race or national origin. Such remand protects 
the class members from the very conduct they fear, and the fact that the 
protection results from a regulation or statute, rather than from a con­
stitutional holding, is a necessary consequence of the obligation of all fed­
eral courts to avoid constitutional adjudication except where necessary. 
Pp. 6-11.

727 F. 2d 957, affirmed.

Rehnquist, J., delivered the opinion of the Court, in which Burger, 
C. J., and White, Blackmun, Stevens, and O’Connor, JJ., joined. 
Marshall, J., filed a dissenting opinion, in which Brennan, J., joined. 
Powell, J., took no part in the decision of the case.



NOTICE: This opinion is subject to formal revision before publication in the 
preliminary print of the United States Reports. Readers are requested to 
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order 
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 84-5240

MARIE LUCIE JEAN, e t  a l ., PETITIONERS v. ALAN 
NELSON, COMMISSIONER, IMMIGRATION AND 

NATURALIZATION SERVICE e t  a l .

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE ELEVENTH CIRCUIT

[June 26, 1985]

J u st ic e  R e h n q u ist  delivered the opinion of the Court.
Petitioners, the named representatives of a class of undoc­

umented and unadmitted aliens from Haiti, sued respondent 
Commissioner of the Immigration and Naturalization Service 
(INS). They alleged, inter alia, that they had been denied 
parole by INS officials on the basis of race and national ori­
gin. See 711 F. 2d 1455 (CA11 1983) (panel opinion) (Jean 
I). The en banc Eleventh Circuit concluded that any such 
discrimination concerning parole would not violate the Fifth 
Amendment to the United States Constitution because of the 
Government’s plenary authority to control the Nation’s bor­
ders. That court remanded the case to the District Court for 
consideration of petitioners’ claim that their treatment vio­
lated INS regulations, which did not authorize consideration 
of race or national origin in determining whether or not an 
excludable alien should be paroled. 727 F. 2d 957 (1984) 
(Jean II). We granted certiorari 469 U. S .----- . We con­
clude that the Court of Appeals should not have reached and 
decided the parole question on constitutional grounds, but we 
affirm its judgment remanding the case to the District Court.

Petitioners arrived in this country sometime after May 
1981, and represent a part of the recent influx of undocu­
mented excludable aliens who have attempted to migrate 
from the Caribbean basin to South Florida. Section 235(b)



2 JEAN v. NELSON

of the Immigration and Nationality Act of 1952, 66 Stat. 199, 
8 U. S. C. § 1225(b), provides that “[ejvery alien . . . who 
may not appear to the examining immigration officer at the 
port of arrival to be clearly and beyond a doubt entitled to 
land shall be detained for further inquiry to be conducted by a 
special inquiry officer.” Section 212(d)(5)(A) of the Act, 66 
Stat. 188, as amended, 8 U. S. C. §§ 1182(d)(5)(A), author­
izes the Attorney General “in his discretion” to parole into 
the United States any such alien applying for admission 
“under such conditions as he may prescribe for emergent rea­
sons or for reasons deemed strictly in the public interest.” 
The statute further provides that such parole shall not be re­
garded as an admission of the alien, and that the alien shall be 
returned to custody when in the opinion of the Attorney Gen­
eral the purposes of the parole have been served.

For almost 30 years before 1981, the INS had followed a 
policy of general parole for undocumented aliens arriving on 
our shores seeking admission to this country. In the late 
1970’s and early 1980’s, however, large numbers of undocu­
mented aliens arrived in South Florida, mostly from Haiti 
and Cuba. Concerned about this influx of undocumented 
aliens, the Attorney General in the first half of 1981 ordered 
the INS to detain without parole any immigrants who could 
not present a prima facie case for admission. The aliens 
were to remain in detention pending a decision on their ad­
mission or exclusion. This new policy of detention rather 
than parole was not based on a new statute or regulation. 
By July 31, 1981, it was fully in operation in South Florida.

Petitioners, incarcerated and denied parole, filed suit in 
June 1981, seeking a writ of habeas corpus under 28 U. S. C. 
§2241 and declaratory and injunctive relief. The amended 
complaint set forth two claims pertinent here. First, peti­
tioners alleged that the INS’ change in policy was unlawfully 
effected without observance of the notice-and-comment rule- 
making procedures of the Administrative Procedure Act



JEAN v. NELSON 3

(APA), 5 U. S. C. § 553. Petitioners also alleged that the re­
strictive parole policy, as executed by INS officers in the 
field, violated the equal protection guarantee of the Fifth 
Amendment because it discriminated against petitioners on 
the basis of race and national origin. Specifically, petition­
ers alleged that they were impermissibly denied parole be­
cause they were black and Haitian.

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 in detention pending 
exclusion proceedings . . .  for whom an order of exclusion has 
not been entered. . . .” Louis v. Nelson, 544 F. Supp. 1004, 
1005 (SD Fla. 1982). A fter discovery and a 6-week bench 
trial the District Court held for petitioners on the APA claim, 
but concluded that petitioners had failed to prove by a pre­
ponderance of the evidence discrimination on the basis of race 
or national origin in the denial of parole. Louis v. Nelson, 
544 F. Supp. 973 (1982); see also id., at 1004.

The District Court held that because the new policy of de­
tention and restrictive parole was not promulgated in accord­
ance with APA rulemaking procedures, the INS policy under 
which petitioners were incarcerated was “null and void,” and 
the prior policy of general parole was restored to “full force 
and effect,” 544 F. Supp. at 1006. The District Court or­
dered the release on parole of all incarcerated class members, 
about 1,700 in number. See ibid. Additionally, the court 
enjoined the INS from enforcing a rule of detaining 
unadmitted aliens until the INS complied with the APA rule- 
making process, 5 U. S. C. §§552, 553.

Under the District Court’s order, the INS retained the dis­
cretion to detain unadmitted aliens who were deemed a secu­
rity  risk or likely to abscond, or who had serious mental 
or physical ailments. The court’s order also subjected the 
paroled class members to certain conditions, such as compli­



4 JEAN v. NELSON

ance with the law and attendance at required INS proceed­
ings. The court retained jurisdiction over any class member 
whose parole might be revoked for violating the conditions of 
parole.

Although all class members were released on parole forth­
with, the District Court imposed a 30-day stay upon its order 
enjoining future use of the INS’ policy of incarceration with­
out parole policy. The purpose of this stay was to permit the 
INS to promulgate a new parole policy in compliance with the 
APA. The INS promulgated this new rule promptly. See 8 
CFR §212.5 (1985); 47 Fed. Reg. 30045 (July 9, 1982), as 
amended, 47 Fed. Reg. 46494 (Oct. 19, 1982). Both petition­
ers and respondents agree that this new rule requires even- 
handed treatment and prohibits the consideration of race and 
national origin in the parole decision. Except for the initial 
30-day stay, the District Court’s injunction against the prior 
INS policy ended the unwritten INS policy put into place in 
the first half of 1981. Some 100 to 400 members of the class 
are currently in detention; most of these have violated the 
terms of their parole but some may have arrived in this coun­
try  after the District Court’s judgment.1 It is certain, how­
ever, that no class member is being held under the prior INS 
policy which the District Court invalidated. See Jean II, 
727 F. 2d, at 962.

A fter the District Court entered its judgment respondents 
appealed the decision on the APA claim and petitioners cross- 
appealed the decision on the discrimination claim. A panel 
of the Eleventh Circuit Court of Appeals affirmed the Dis­
trict Court’s judgment on the APA claim, although on a

1 The record does not inform us of exactly how many class members are 
in detention, and whether these are post-judgment arrivals or original 
class members who violated the terms of their parole as set by the District 
Court. The precise make-up of the class may be addressed on remand. 
See Tr. of Oral Arg. 42; Jean II, 727 F. 2d at 962; Order on Mandate, Louis 
v. Nelson, No. 81-1260, p. 1, n. 1 (SD Fla. June 8, 1984); Record, Vol. 17, 
pp. 4014, 4026, 4035.



JEAN v. NELSON 5

somewhat different rationale than the District Court. Jean 
1, 711 F. 2d, at 1455. The panel went on to decide the con­
stitutional discrimination issue as well, holding that the Fifth 
Amendment’s equal protection guarantee applied to parole of 
unadmitted aliens, and the District Court’s finding of no in­
vidious discrimination on the basis of race or national origin 
was clearly erroneous. The panel ordered, inter alia, con­
tinued parole of the class members, an injunction against 
discriminatory enforcement of INS parole policies, and any 
further relief necessary “to ensure that all aliens, regardless 
of their nationality or origin, are accorded equal treatm ent.” 
Id., at 1509-1510.

The Eleventh Circuit granted a rehearing en banc, thereby 
vacating the panel opinion. See 11th Cir. Ct. Rule 26(k). 
A fter hearing argument the en banc court held that the APA 
claim was moot, because the Government was no longer de­
taining any class members under the stricken incarceration 
and parole policy.2 All class members who were incarcer­
ated had either violated the terms of their parole or were 
postjudgment arrivals detained under the regulations 
adopted after the District Court’s order of June 29, 1982. 
Jean II, supra, at 962. The en banc court then turned to the 
constitutional issue and held that the Fifth Amendment did 
not apply to the consideration of unadmitted aliens for parole. 
According to the court the grant of discretionary authority to 
the Attorney General under 8 U. S. C. § 1182(d)(5)(A) per­
mitted the Executive to discriminate on the basis of national 
origin in making parole decisions.

Although the court in Jean II  rejected petitioners’ con­
stitutional claim, it accorded petitioners relief based upon the 
current INS parole regulations, see 8 CFR §212.5 (1985), 
which are facially neutral and which respondents and peti­
tioners admit require parole decisions to be made without re­

2 The APA issue is not before us and we express no view on it. The 
court in Jean II  was presented with other issues, none germane to the 
issues we discuss today.



6 JEAN v. NELSON

gard to race or national origin. Because no class members 
were being detained under the policy held invalid by the Dis­
trict Court, the en banc court ordered a remand to the Dis­
trict Court to permit a review of the INS officials’ discretion 
under the non-discriminatory regulations which were pro­
mulgated in 1982 and are in current effect. The court stated:

“[t]he question that the district court must therefore 
consider with regard to the remaining Haitian detainees 
is thus not whether high-level executive branch officials 
such as the Attorney General have the discretionary 
authority under the Immigration and Nationality Act 
(INA) to discriminate between classes of aliens, but 
whether lower-level INS officials have abused their dis­
cretion by discriminating on the basis of national origin 
in violation of facially neutral instructions from their 
superiors.” Jean II, supra, at 963.

The court stated that the statutes and regulations, as well 
as policy statements of the President and the Attorney Gen­
eral, required INS officials to consider aliens for parole indi­
vidually, without consideration of race or national origin. 
Thus on remand the District Court was to ensure that the 
INS had exercised its broad discretion in an individualized 
and nondiscriminatory manner. See id., at 978-979.

The court noted that the INS’ power to parole or refuse pa­
role, as delegated by Congress in the United States Code, 
e. g. 8 U. S. C. §§ 1182(d)(5)(A), 1225(b), 1227(a), was quite 
broad. 727 F. 2d, at 978-997. The court held that this 
power was subject to review only on a deferential abuse of 
discretion standard. According to the court “immigration 
officials clearly have the authority to deny parole to 
unadmitted aliens if they can advance a ‘facially legitimate 
and bona fide reason’ for doing so.” Jean II, supra, at 977, 
citing Kleindienst v. Mandel, 408 U. S. 753, 770 (1972).

The issue we must resolve is aptly stated by petitioners:



JEAN v. NELSON 7

“This Case does not implicate the authority of Con­
gress, the President, or the Attorney General. Rather, 
it challenges the power of low-level politically unrespon­
sive government officials to act in a manner which is con­
trary  to federal statutes . . . and the directions of the 
President and the Attorney General, both of whom pro­
vided for a policy of non-discriminatory enforcement.” 
Brief for Petitioners 37.

Petitioners urge that low-level INS officials have invidi­
ously discriminated against them, and notwithstanding the 
new neutral regulations and the statutes, these low-level 
agents will renew a campaign of discrimination against the 
class members on parole and those members who are cur­
rently detained. Petitioners contend that the only adequate 
remedy is “declaratory and injunctive relief” ordered by this 
Court, based upon the Fifth Amendment. The limited statu­
tory remedy ordered by the court in Jean II, petitioners con­
tend, is insufficient. For its part respondents are also eager 
to have us reach the Fifth Amendment issue. Respondents 
wish us to hold that the equal protection component of the 
Fifth Amendment has no bearing on an unadmitted alien’s re­
quest for parole.

“Prior to reaching any constitutional questions, federal 
courts must consider nonconstitutional ground for decision.” 
Gulf Oil v. Bernard, 452 U. S. 89, 99 (1981); Mobile v. 
Bolden, 446 U. S. 55, 60 (1980); Kolender v. Lawson, 461 
U. S. 352, 361, n. 10 (1983), citing Ashwander v. TV A, 297 
U. S. 288, 347 (1936) (Brandeis, J ., concurring). This is a 
“fundamental rule of judicial restraint.” Three Affiliated 
Tribes of Berthold Reservation v. Wold Engineering, 467
U. S .----- (1984). Of course, the fact that courts should not
decide constitutional issues unnecessarily does not permit a 
court to press statutory construction “to the point of 
disengenuous evasion” to avoid a constitutional question.
United States v. Locke, ----- U. S. -------(1985), slip op. at
10-11. As the Court stressed in Spector Motor Co. v.



8 JEAN v. NELSON

McLaughlin, 323 U. S. 101, 105 (1944), “[i]f there is one doc­
trine more deeply rooted than any other in the process of con­
stitutional adjudication, it is that we ought not to pass on 
questions of constitutionality . . . unless such adjudication is 
unavoidable.” See also United States v. Gerlach Livestock 
Co., 339 U. S. 725, 737 (1950); Larson v. Valente, 456 U. S. 
228, 257 (1982) (St e v e n s , J ., concurring).

Had the court in Jean II  followed this rule, it would have 
addressed the issue involving the immigration statutes and 
INS regulations first, instead of after its discussion of the 
Constitution. Because the current statutes and regulations 
provide petitioners with nondiscriminatory parole consider­
ation—which is all they seek to obtain by virtue of their 
constitutional argument—there was no need to address the 
constitutional issue.

Congress has delegated its authority over incoming undoc­
umented aliens to the Attorney General through the Immi­
gration and Naturalization Act, 8 U. S. C. § 1101, et seq. 
The Act provides that any alien “who [upon arrival in the 
United States] may not appear to [an INS] examining officer 
. . .  to be clearly and beyond a doubt entitled to land” is to be 
detained for examination by a special inquiry officer or immi­
gration judge of the INS. 8 U. S. C. §§ 1225(b), 1226(a) 
(1985); see 8 CFR §236.1 (1985). The alien may request pa­
role pending the decision on his admission. Under 8 
U. S. C. § 1182(d)(5)(A):

“[t]he Attorney General may . . . 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.”

The Attorney General has delegated his parole authority to 
his INS District Directors under new regulations promul­
gated after the District Court’s order in this case. See 8 
CFR § 212.5 (1982). Title 8 CFR §212.5 provides a lengthy 
list of neutral criteria which bear on the grant or denial of pa­



JEAN v. NELSON 9

role. Respondents concede that the INS’ parole discretion 
under the statute and these regulations, while exceedingly 
broad, does not extend to considerations of race or national 
origin. Respondent’s position can best be seen in this collo­
quy from oral argument:

Question: “You are arguing that constitutionally you 
would not be inhibited from discriminating against these 
people on whatever ground seems appropriate. But as I 
understand your regulations, you are also maintaining 
that the regulations do not constitute any kind of dis­
crimination against these people, and . . . your agents 
are already inhibited by your own regulations from doing 
what you say the Constitution would permit you to do.” 
Solicitor General: “That’s correct.”

Transcript of Oral Argument at 28—29. See also Brief for 
Respondents 18-19; 8 U. S. C. § 1182(d)(5)(A); 8 CFR §212.5 
(1982); cf., Statement of the President, U. S. Immigration 
and Refugee Policy (July 31, 1981). As our dissenting col­
leagues point out, ante at 6, the INS has adopted nationality- 
based criteria in a number of regulations. These criteria are 
noticeably absent from the parole regulations, a fact consist­
ent with the position of both respondent and petitioner that 
INS parole decisions must be neutral as to race or national 
origin.3 * * *

3 We have no quarrel with the dissent’s view7 that the proper reading of
important statutes and regulations may not be always left to the stipulation
of the parties. But when all parties, including the agency which wrote and
enforces the regulations, and the en banc court below, agree that regula­
tions neutral on their face must be applied in a neutral manner, we think 
that interpretation arrives with some authority in this Court.

The dissent relies upon such cases as Young v. United States, 315 U. S. 
257, 259 (1942) and Investment Co. v. Camp, 401 U. S. 617 (1970) even 
though those cases have faint resemblance to this one. In Young the gov­
ernment confessed error, arguing that the Court of Appeals was wrong in 
its affirmance of a conviction under a broad reading of the Harrison Anti- 
Narcotics Act. Because of the importance of a consistent interpretation of 
criminal statutes, we declined to adopt the Solicitor General’s view, and



10 JEAN v. NELSON

Accordingly, we affirm the en banc court’s judgment inso­
far as it remanded to the District Court for a determination 
whether the INS officials are observing this limit upon their 
broad statutory discretion to deny parole to class members 
in detention. On remand the District Court must consider: 
(1) whether INS officials exercised their discretion under 
§ 1182(d)(5)(A) to make individualized determinations of pa­
role, and (2) whether INS officials exercised this broad dis­
cretion under the statutes and regulations without regard to 
race or national origin.

Petitioners protest, however, that such a nonconstitutional 
remedy will permit lower-level INS officials to commence pa­
role revocation and discriminatory parole denial against class 
members who are currently released on parole. But these 
officials, while like all others bound by the provisions of the 
Constitution, are just as surely bound by the provisions of 
the statute and of the regulations. Respondents concede 
that the latter do not authorize discrimination on the basis of 
race and national origin. These class members are therefore 
protected by the terms of the Court of Appeals’ remand from 
the very conduct which they fear. The fact that the protec­
tion results from the terms of a regulation or statute, rather

reject the Circuit Court’s interpretation, without ourselves considering 
and deciding the merits of the question. See 315 U. S. at 258—259. 
Young has little bearing on the interpretation of the INS regulations at 
issue today.

In Camp the Solicitor General attempted to defend a banking regulation 
promulgated by the Comptroller, which was in apparent conflict with fed­
eral banking statutes. We rejected the gloss place upon these statutes by 
the Solicitor General on appeal; the Comptroller had offered no pre-litiga­
tion administrative interpretation of these statutes and the Solicitor Gener­
al’s post-hoc interpretation could not cure the conflict between the chal­
lenged regulation and the statutes.

The interpretation of INS regulations we adopt today involves no post- 
hoc rationalizations of agency action. Unlike the Court in Camp we do not 
view the new INS policy or the interpretation of that policy agreed to by all 
parties and the en banc Circuit Court to be merely a litigation stance in 
defense of the agency action which precipitated this litigation.



JEAN v. NELSON 11

than from a constitutional holding, is a necessary conse­
quence of the obligation of all federal courts to avoid constitu­
tional adjudication except where necessary.

The judgment of the Court of Appeals remanding the case 
to the District Court for consideration of petitioner’s claims 
based on the statute and regulations is

Affirmed.
J u st ic e  P o w ell  took no part in the decision of this case.



SUPREME COURT OF THE UNITED STATES

No. 84-5240

MARIE LUCIE JEAN, ET AL., PETITIONERS v. ALAN 
NELSON, COMMISSIONER, IMMIGRATION AND 

NATURALIZATION SERVICE, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE ELEVENTH CIRCUIT

[June 26, 1985]

J u st ic e  Ma r sh a l l , w ith  whom J u st ic e  B r e n n a n  joins, 
dissenting.

Petitioners are a class of unadmitted aliens who were 
detained at various federal facilities pending the disposition 
of their asylum claims. We granted certiorari to decide 
whether such aliens may invoke the equal protection guaran­
tees of the Fifth Amendment’s Due Process Clause to chal­
lenge the Government’s failure to release them temporarily 
on parole. The Court today refuses to address this question, 
invoking the well-accepted proposition that constitutional 
issues should be avoided whenever there exist proper non­
constitutional grounds for decision. I, of course, have no 
quarrel with that proposition. Its application in this case, 
however, is more than just problematic; by pressing a regula­
tory construction well beyond “the point of disingenuous eva­
sion,” United States v. Locke, 471 U. S. ----- , ------(1985)
(slip. op. 10-11), the Court thrusts itself into a domain that is 
properly that of the political branches. Purporting to exer­
cise restraint, the Court creates out of whole cloth noncon­
stitutional constraints on the Attorney General’s discretion to 
parole aliens into this country, flagrantly violating the maxim 
that “amendment may not be substituted for construction,” 
Yu Cong Eng v. Trinidad, 271 U. S. 500, 518 (1926) (Taft, 
C. J.). In my mind, there is no principled way to avoid



2 JEAN v. NELSON

reaching the constitutional question presented by the case. 
Turning to that question, I would hold that petitioners have 
a Fifth Amendment right to parole decisions free from invidi­
ous discrimination based on race or national origin. I 
respectfully dissent.

I

The Court’s decision rests entirely on the premise that the 
parole regulations promulgated during the course of this liti­
gation preclude INS officials from considering race and na­
tional origin in making parole decisions. Ante, at 5-6, 9. 
The Court then reasons that if petitioners can show disparate 
treatm ent based on race or national origin, these regulations 
would provide them with all the relief that they seek. Thus, 
it sees no need to address the independent question whether 
such disparate treatment would also violate the Constitution, 
and invokes Ashwander v. TV A, 297 U. S. 288, 347 (1936) 
(Brandeis, J ., concurring), to avoid deciding that question. 
If the initial premise were correct, the Court’s decision would 
be sound. But because it is not, the remainder of the Court’s 
opinion simply collapses like a house of cards.

In support of its conclusion, the Court points to no author­
ity other than arguments in the parties’ briefs, which in turn 
cite nothing of relevance. The Court’s failure to rely on any 
other authority is not surprising, for an examination of the 
regulations themselves, as well as the statutes and adminis­
trative practices governing the parole of unadmitted aliens, 
indicates that there are no nonconstitutional constraints 
on the Executive’s authority to make national-origin 
distinctions.1

1 That the analysis would be different for race discrimination in no way 
detracts from the force of my argument. Petitioners complain in part 
about differential treatment based on national origin. Because neither the 
statute nor the regulations prohibit nationality distinctions, the Court errs 
in failing to address petitioners’ constitutional arguments, at least insofar 
as they pertain to national-origin discrimination.



JEAN v. NELSON 3

A

Congress provided for the temporary parole of unadmitted 
aliens in § 212(d)(5) of the Immigration and Nationality Act of 
1952, 66 Stat. 188, as amended, 8 U. S. C. § 1182(d)(5)(A), 
which states in pertinent part that the Attorney General may 
“in his discretion parole into the United States temporarily 
under such conditions as he may prescribe for emergent rea­
sons or for reasons deemed strictly in the public interest any 
alien applying for admission to the United States.” (emphasis 
added). Pursuant to this statute, the INS promulgated 
regulations in 1958, in which the Attorney General’s dis­
cretionary authority was delegated to INS district directors:

“The district director in charge of a port of entry may 
. . . parole into the United States temporarily in accord­
ance with section 212(d)(5) of the act any alien applicant 
for admission . . .  as such officer shall deem appropri­
a t e . 23 Fed. Reg. 142 (1958); see 8 CFR §212.5 (1959) 
(emphasis added).

The quoted portion of the regulations remained unchanged in 
1982, at the time of the trial in this case. See 8 CFR §212.5 
(1982).

The District Court found that between 1954 and 1981 most 
undocumented aliens detained at the border were paroled 
into the United States. Louis v. Nelson, 544 F. Supp. 973, 
980, n. 18, 990 (SD Fla. 1982); see Brief for Respondents 3. 
During that period, physical detention was the exception, not 
the rule, and was “generally employed only as to security 
risks or those likely to abscond,” Leng May Ma v. Barber, 
357 U. S. 185, 190 (1958). See 544 F. Supp., at 990.

As the Court acknowledges, the Government’s parole pol­
icy became far more restrictive in 1981. See ante, at 2. In 
June 1982, the District Court below enjoined enforcement of 
this new policy. Louis v. Nelson, 544 F. Supp. 1004, 1006 
(final judgment). The District Court found that the INS had



4 JEAN v. NELSON

not complied with the Administrative Procedure Act (APA), 
5 U. S. C. §553, as it had not published notice of the pro­
posed change and had not allowed interested persons to com­
ment. See 544 F. Supp., at 997. As a result of the District 
Court’s judgment, the INS promulgated new regulations in 
July 1982. See 47 Fed. Reg. 30044 (1982); 8 CFR §212.5 
(1982). According to the Court, these regulations, on which 
this case turns, provide a “lengthy list of neutral criteria 
which bear on the grant or denial of parole.” Ante, at 8-9.

The new parole regulations track the two statutory stand­
ards for the granting of parole: “emergent reasons” and “rea­
sons strictly in the public interest.” They first provide that 
“[t]he parole of aliens who have serious medical conditions in 
which continued detention would not be appropriate would 
generally be justified by ‘emergent reasons.’” 8 CFR 
§ 212.5(a)(1) (1985). The regulations then define five groups 
that would “generally come within the category of aliens for 
whom the granting of the parole exception would be ‘strictly 
in the public interest’, provided that the aliens present nei­
ther a security risk nor a risk of absconding.” §212.5(a)(2). 
The first four groups are pregnant women, juveniles, certain 
aliens who have close relatives in the United States, and 
aliens who will be witnesses in official proceedings in the 
United States. §212.5(a)(2)(i)-(iv). The fifth category is 
a catchall: “aliens whose continued detention is not in the 
public interest as determined by the district director.” 
§212.5(a)(2)(v).2

Given the catchall provision, the regulations provide some­
what tautologically that it would generally be “strictly in the 
public interest” to parole aliens whose continued detention is 
not “in the public interest”; the “lengthy list” of criteria on 
which the Court relies so heavily is in fact an empty set.3

2 The regulations also provide for the parole of aliens who are subject to 
prosecution in the United States. 8 CFR § 212.5(a)(3) (1985).

3 To be sure, a district director cannot parole an alien under 8 CFR 
§ 212.5(a)(2) unless he determines that the alien “present[s] neither a seen-



JEAN v. NELSON 5

Certainly the regulations do not provide either exclusive cri­
teria to guide the the “public interest” determination or a list 
of impermissible criteria. Moreover, they do not, by their 
terms, prohibit the consideration of race or national origin. 
As Judge Tjoflat aptly noted in his separate opinion below:

“The policy in CFR is not a comprehensive policy . . . .  
It merely sets out a few specific categories of aliens . . . 
who the district director generally should parole in the 
absence of countervailing security risks. It leaves the 
weighing necessary to making parole decisions regarding 
these categories, as well as all other parole decisions, 
purely in the discretion of the district director. Such a 
minimal directive is not enough to infer with any cer­
tainty that the Attorney General never wants district 
directors, in making parole decisions, to consider nation­
ality.” 727 F. 2d 957, 985-986 (1984) (concurring in part 
and dissenting in part) (emphasis added).

B
Nor is a prohibition on the consideration of national origin 

to be found in the parole statute, pronouncements of the At­
torney General and the INS, or the Administrative Proce­
dure Act (APA), the only other possible nonconstitutional 
sources for the constraints the Court believes are imposed 
upon INS’s district directors. The first potential constraint, 
of course, is 8 U. S. C. § 1182(d)(5)(A), which vests full “dis­
cretion” over parole decisions in the Attorney General. 
There can be little doubt that at least national-origin distinc­
tions are permissible under the parole statute if they are con­
sistent with the Constitution. First, the grant of discretion­
ary authority to the Attorney General over immigration

rity risk nor a risk of absconding.” This condition, which has been a tradi­
tional prerequisite to parole, Leng May Ma v. Barber, 357 U. S. 185, 190 
(1958), merely requires the district director to make a threshold deter­
mination before he exercises his discretion. It is of no aid to the subse­
quent inquiry of defining the “public interest.”



6 JEAN v. NELSON

matters is extremely broad. See 2 K. Davis, Administrative 
Law Treatise §8:10 (2d ed. 1979); 2 C. Gordon & H. Rosen- 
field, Immigration Law and Procedure § 8.14 (1985). For ex­
ample, in Hintopoulos v. Shaughnessy, 353 U.. S. 72 (1957), 
this Court held that, where Congress does not specify the 
standards that are to guide the Attorney General’s exercise 
of discretion in the immigration field, the Attorney General 
can rely on any reasonable factors of his own choosing. Id ., 
at 78.

Moreover, with respect to other immigration matters in 
which Congress has vested similar discretion in the Attorney 
General, the INS, acting pursuant to authority delegated by 
the Attorney General, has specifically adopted nationality- 
based criteria. See, e. g., 8 CFR §101.1 (1985) (presump­
tion of lawful admission for certain national groups); §212.1 
(documentary requirements for nonimmigrants of particular 
nationalities); §231 (arrival-departure manifests for passen­
gers from particular countries); § 242.2(e) (nationals of cer­
tain countries entitled to special privilege of communication 
with diplomatic officers); §252.1 (relaxation of inspection 
requirements for certain British and Canadian crewmen). 
These regulations indicate that the INS believes that nation­
ality-based distinctions are not necessarily inconsistent with 
congressional delegation of “discretion” over immigration de­
cisions to the Executive. That interpretation of the statutes 
is, of course, entitled to deference. See Chevron U. S. A. 
Inc. v. NRDC, 467 U. S . ----- , ------(1984).

My conclusion that the parole statute leaves room for na­
tionality-based distinctions is consistent with the Govern­
ment’s position before the en banc Court of Appeals. The 
brief filed by Assistant Attorney General McGrath in that 
court explicitly stated that “the Executive is not precluded 
from drawing nationality-based distinctions, for Congress 
has delegated the full breadth of its parole and detention 
authority to the Attorney General.” En Banc Brief of Alan 
C. Nelson in No. 82-5772 (CA11 1983), p. 18. In maintain­



JEAN v. NELSON 7

ing that the parole statute does not proscribe differential 
treatm ent based on national origin, the Government added: 

“Congress knows how to prohibit nationality-based dis­
tinctions when it wants to do so. In the absence of such 
an express prohibition, it should be presumed that the 
broad delegation of authority encompasses the power to 
make nationality-based distinctions.” En Banc Reply 
Brief of Alan C. Nelson in No. 82-5772 (CA11 1983),
p. 11.

The conclusion that Congress did not provide the con­
straint identified by the Court does not end the inquiry, as 
the Attorney General could have narrowed the discretion 
that the regulations vest in the district directors. For exam­
ple, he could have published interpretive rules, staff instruc­
tions, or policy statements making clear that this discretion 
did not extend to race or national-origin distinctions. But 
throughout this litigation, the Government has pointed to ab­
solutely no evidence that the Attorney General in fact chose 
to narrow the discretion of district directors in this manner. 
Moreover, neither the INS’s Operations Instructions nor its 
Examinations Handbook, which provide guidance to INS offi­
cers in the field, indicate that race and national origin cannot 
be taken into account in making parole decisions.

The final possible constraint comes from the APA’s re­
quirement that administrative action not be arbitrary, capri­
cious, or an abuse of discretion, 5 U. S. C. § 706(2)(A). See 
Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 
411 (1971); Abbott Laboratories v. Gardner, 387 U. S. 136, 
140-141 (1967). For better or worse, however, nationality 
classifications have played an important role in our immigra­
tion policy. There is thus no merit to the argument that it is 
arbitrary, capricious, or an abuse of discretion for a district 
director to take nationality into account in making parole de­
cisions under 8 CFR §212.5 (1985). See also supra, a t -----
(discussing Attorney General’s discretion). In summary, 
the Court’s conclusion that, aside from constitutional con­



JEAN v. NELSON

straints, the parole regulations prohibit national-origin dis­
tinctions draws no support from anything in the regulations 
themselves or in the statutory and administrative back­
ground to those regulations.

C
The Court’s view that the regulations are neutral with re­

spect to race and national origin is based only on the repre­
sentations of the Solicitor General and the purported agree­
ment of the parties.4 On the first point, the Court states: 
“Respondents concede that the INS’ parole discretion under 
the statute and these regulations, while exceedingly broad, 
does not extend to considerations of race or national origin.” 
Ante, at 9. Such reliance on the Solicitor General’s interpre­
tation of agency regulations is misplaced.

An agency’s reasonable interpretation of the statute it is 
empowered to administer is entitled to deference from the 
courts, and will be set aside only if it is inconsistent with 
the clear intent of Congress. See Chevron U. S. A. Inc. v. 
NRDC, 467 U. S., a t ----- . Similarly, an agency’s interpre­
tation of its own regulations is of “controlling weight unless it 
is plainly erroneous or inconsistent with the regulation.” 
Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414 
(1945); see Ford Motor Credit Co. v. Milhollin, 444 U. S. 
555, 566 (1980); United States v. Larionoff, 431 U. S. 864, 
872 (1977). These presumptions do not apply, however, to 
representations of appellate counsel. As we stated in 
Investment Company Institute v. Camp, 401 U. S. 617 
(1971), “Congress has delegated to the administrative official 
and not to appellate counsel the responsibility for elaborating 
and enforcing statutory commands. It is the administrative

“The Court also appears to share the Court of Appeals’ misconception 
that the new regulations somehow changed the substantive standards for 
parole. By the INS’s own admission, however, those regulations merely 
“sought to codify existing Service practices.” See 47 Fed. Reg. 46494 
(1982).



JEAN v. NELSON 9

official and not appellate counsel who possess the expertise 
that can enlighten and rationalize the search for the meaning 
and intent of Congress.” Id., at 628; see Motor Vehicle 
Mfrs. Assn. v. State Farm Mutual Automobile Insurance 
Co., 463 U. S. 29, 50 (1983); Burlington Truck Lines Inc. v. 
United States, 371 U. S. 156, 168-169 (1962). The same con­
siderations apply, of course, to appellate counsel’s interpreta­
tion of regulations.

The Solicitor General’s representations to this Court are 
not supported by citation to any authoritative statement by 
the Attorney General or the INS to the effect that the statute 
and regulations prohibit distinctions based on race or national 
origin. See Brief for Respondents 18-19. Indeed, “except 
for some too-late formulations, apparently coming from the 
Solicitor General’s office,” Citizens to Preserve Overton Park 
v. Volpe, 401 U. S., at 422 (opinion of Black, J.), we have 
been directed to no relevant indication that the adminis­
trative practice was to prohibit such distinctions.5 See 
supra, at — —. The Solicitor General’s contention to the 
contrary is merely an unsupported assertion by counsel for a 
litigant; this Court owes it no deference at all.6

5 The Court’s conclusion that the Solicitor General’s statements are not 
mere “post-hoc rationalizations for agency action,” ante 9, n. 6, is untena­
ble. Before this Court, the Solicitor General argues that the INS is pre­
cluded by the statute and regulations from making nationality-based dis­
tinctions. At trial, however, the Government argued the opposite, 
namely that “nationality may well be a factor that leads to parole.” 
Record, Vol. 47, p. 1858. Because the substantive criteria for parole have 
not changed during the course of this litigation, see n. 4, supra, the Solici­
tor General’s representations are flatly inconsistent with the Government’s 
own position at trial; they reflect nothing but a change in the Government’s 
litigation strategy. This is precisely the sort of post-hoc rationalization 
that is entitled to no weight. See Motor Vehicle Mfrs. Assn. v. State 
Farm. Mutual Automobile Insurance Co., 463 U. S. 23, 50 (1983).

6 At trial, one Government witness, Associate Attorney General Giuli­
ani, stated that “if the statute is being applied discriminatorily, it is being 
applied in violation of the policies of the Attorney General.” Id., Vol. 49, 
p. 2343. This witness, however, did not indicate what he meant by “dis­



10 JEAN v. NELSON

The Court also relies on the purported agreement between 
petitioners and the Solicitor General that the regulations 
require parole decisions to be made without regard to race or 
national origin. Ante, at 5-6. First, I do not read petition­
ers’ arguments as the Court does. In my mind, the main 
thrust of the relevant portion of petitioners’ brief is that the 
regulations in question set out neutral criteria for parole. 
See Brief for Petitioners 7-10, 30, 37, 38. Unless such crite­
ria are exclusive, however, they are not necessarily inconsist­
ent with distinctions based on race or national origin. Cer­
tainly no plausible argument can be made that the criteria of 
8 CFR § 212.5(a) (1985) were intended to be exclusive. See 
supra, a t ----- .

More importantly, this Court’s judgments are precedents 
binding on the lower courts. Thus, the proper interpreta­
tion of an important federal statute and regulations, such as 
are at issue here, cannot be left merely to the stipulation of 
parties. See Young v. United States, 315 U. S. 257, 259 
(1942); see also Sibron v. New York, 392 U. S. 40, 59 (1968).

crimination,” and did not point to any specific “policies.” To the extent 
that he was referring to distinctions based on national origin, his statement 
was inconsistent with the Government’s own theory. See n. 5, supra.

Moreover, the District Court found “inconsistencies between what the 
Government witnesses said the policy was and the policy their subordi­
nates were carrying out,” as a result of “the absence of guidelines for 
detention and parole.” Louis v. Nelson, 544 F. Supp. 973, 981, n. 24 
(1982). Similarly, the panel of the Court of Appeals properly found that 
Associate Attorney General Giuliani’s testimony contradicted the testi­
mony of INS Commissioner Alan C. Nelson, one of the respondents in this 
case, as well as statements by former INS Commissioner Doris Meissner. 
711 F. 2d 1455, 1471 (1983). The unsupported, uncredited, and contra­
dicted assertions of one Government witness are of course insufficient to 
establish the existence of an administrative practice. Not surprisingly, 
the Government does not direct this Court’s attention to that testimony.

Finally, the Government’s position at trial that it had not in fact treated 
Haitians differently from other detained aliens sheds no light on the en­
tirely separate question of whether different treatment would have been 
inconsistent with the statutes and regulations.



JEAN v. NELSON 11

The Court’s construction of the administrative policy in this 
case will have implications far beyond the confines of this 
litigation.7

In fact, the Court’s decision casts serious doubt on the va­
lidity of numerous immigration policies. As I have already 
mentioned, many statutes in the immigration field vest “dis­
cretion” in the Attorney General. The Court’s restrictive 
view of the Attorney General’s discretionary authority with 
respect to parole decisions, adopted in the face of no authori­
tative statements limiting such discretion, will presumably 
affect the scope of his permissible discretion in areas other 
than parole decisions. Moreover, because the Court does 
not explain what in the language or policy underlying any rel­
evant statute, regulation, or administrative practice, limits 
the Attorney General’s discretion only with respect to the 
consideration of race and national origin, its opinion can be 
read to preclude the Attorney General from making distinc­
tions based on other factors as well. Such a result is incon­
sistent with well-established precedents of immigration law 
and threatens to constrain severely the Executive’s ability to 
address our Nation’s pressing immigration problems. This 
is indeed a costly way to avoid deciding constitutional issues. 
See supra, at 1.

II
Having shown that the Court’s interpretation of the regu­

lations is untenable, I turn to consider the constitutional 
question presented by this case: May the Government dis­
criminate on the basis of race or national origin in its decision 
whether to parole unadmitted aliens pending the determina­
tion of their admissibility? The en banc Court of Appeals 
rejected petitioners’ constitutional claim, holding that 
Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206

7 In addition, the Court cites the President’s statement on United States 
Immigration and Refugee Policy (17 Weekly Comp, of Pres. Doc. 829 
(1981)). Nothing in that statement is relevant to the question whether na­
tional-origin distinctions are consistent with the statute and regulations.



12 JEAN v. NELSON

(1953), compels the conclusion that petitioners “cannot claim 
equal protection rights under the fifth amendment, even with 
regard to challenging the Executive’s exercise of its parole 
discretion.” 727 F. 2d, at 970.8 Before this Court, the Gov­
ernment takes the same position, arguing that “Mezei is di­
rectly on point.” Brief for Respondents 40. I agree that 
broad dicta in Mezei might suggest that an undocumented 
alien detained at the border does not enjoy any constitutional 
protections, and therefore cannot invoke the equal protection 
guarantees of the Fifth Amendment’s Due Process Clause. 
See also United States ex rel. Knauff v. Shaughnessy, 33S 
U. S. 537, 544 (1950); Kwong Hai Chew v. Colding, 344 U. S. 
590, 601 (1953). This broad dicta, however, can withstand 
neither the weight of logic nor that of principle, and has 
never been incorporated into the fabric of our constitutional 
jurisprudence. Moreover, when stripped of its dicta, Mezei 
stands for a narrow proposition that is inapposite to the case 
now before the Court.

A
Ignatz Mezei arrived in New York in 1950 and was tempo­

rarily excluded from the United States by an immigration in­
spector acting pursuant to the Passport Act. Pending dispo­
sition of his application for admission, he was detained at 
Ellis Island. A few months after his arrival and initial 
detention, the Attorney General entered a permanent order 
of exclusion, on the “basis of information of a confidential

8 The Court of Appeals acknowledged that its holding was squarely at 
odds with the holding of the Court of Appeals for the Tenth Circuit in 
Rodriguez-Femandez v. Wilkinson, 654 F. 2d 1382 (1981). See 727 F. 2d, 
at 974-975. Moreover, the Court of Appeals for the Second Circuit has 
suggested that unadmitted aliens can invoke the protections of the Con­
stitution. See Augustin v. Sava, 735 F. 2d 32, 37 (1984) (“it appears likely 
that some due process protection surrounds the determination of whether 
an alien has sufficiently shown that return to a particular country will jeop­
ardize his life or freedom”); Yiu Sing Chun v. Sava, 708 F. 2d 869, 877 
(1983) (a refugee’s “interest in not being returned may well enjoy some due 
process protection”).



JEAN v. NELSON 13

nature, the disclosure of which would be prejudicial to the 
public in te res t . . .  for security reasons.” 345 U. S., at 208. 
Mezei was not told what this information was and was given 
no opportunity to present evidence of his own.

Mezei then began a year-long search for a country willing 
to accept him. All of his attempts to find a new home failed, 
however, as did the State Department’s efforts on his behalf. 
As a result, Mezei “sat on Ellis Island because this country 
shut him out and others were unwilling to take him in.” Id., 
at 209.

Seeking a w rit of habeas corpus, Mezei argued that the 
Government’s refusal to inform him of the reasons for his con­
tinued detention violated due process. United States ex rel. 
Mezei v. Shaughnessy, 101 F. Supp. 66, 68 (SDNY 1951). 
The District Court ordered the Government to disclose those 
reasons but gave it the option of doing so in camera. A fter 
the Government refused to comply altogether, the District 
Court directed Mezei’s conditional parole on bond. A di­
vided panel of the Court of Appeals for the Second Circuit af­
firmed the parole order but, in a 5-4 decision, this Court 
reversed.

The Court first distinguished between aliens who have en­
tered the United States, whether legally or illegally, and 
those who, like Mezei and petitioners here, are detained at 
the border as they attempt to enter. The former group, the 
Court reasoned, could be expelled “only after proceedings 
conforming to traditional standards of fairness encompassed 
in due process of law.” 345 U. S., at 212. The Court, how­
ever, refused to afford such protections to the latter group. 
Citing United States ex rel. Knauff v. Shaughnessy, supra, 
the Court stated: ‘“Whatever the procedure authorized by 
Congress is, it is due process as far as an alien denied entry is 
concerned.’” 345 U. S., at 212 (quoting 338 U. S., at 544).

In Knauff, a 4-3 decision, an alien married to a United 
States citizen had sought to enter the United States to be 
naturalized. Upon arrival at our border, she was detained



14 JEAN v. NELSON

at Ellis Island. Eventually, and without a hearing, she was 
permanently excluded from the United States on the basis of 
undisclosed confidential information. The Court refused to 
find a constitutional right to a hearing prior to exclusion, 
stating that “it is not within the province of any court, unless 
expressly authorized by law, to review the determination of 
the political branch of the Government to exclude a given 
alien.” United States ex rel. Knauff v. Shaughnessy, 338 
U. S., at 543. Even though the procedural challenge in 
Mezei was not related to an exclusion order, but instead to 
the Government’s refusal to temporarily parole an alien who 
already had been deemed excludable, the Court in Mezei did 
not distinguish between the two situations. Instead, it fol­
lowed Knauff as if it were directly on point.

Justices Black, Frankfurter, Douglas, and Jackson dis­
sented in Mezei. Focusing on Mezei’s detention on Ellis 
Island, Justice Jackson asked: “Because the respondent has 
no right of entry, does it follow that he has no rights at all?” 
345 U. S., at 226 (Jackson, J ., joined by Frankfurter, J ., dis­
senting). He concluded that this detention could be enforced 
only through procedures “which meet the test of due process 
of law.” Id., at 227. Similarly, Justice Black stated that 
“individual liberty is too highly prized in this country to allow 
executive officials to imprison and hold people on the basis of 
information kept secret from courts.” Id., at 218. (Black, 
J ., joined by Douglas, J ., dissenting). He too thought that 
“Mezei’s continued imprisonment without a hearing violate[d] 
due process of law.” Id., at 217.

The statement in Knauff and Mezei that “[wjhatever the 
procedure authorized by Congress is, it is due process as far 
as an alien denied entry is concerned,” lies at the heart of the 
Government’s argument in this case. This language sug­
gests that aliens detained at the border can claim no rights 
under the Constitution. Further support for that view 
comes from Kwong Hai Chew v. Colding, supra, which was 
decided after Knauff but one month before Mezei. The alien



JEAN v. NELSON 15

in Chew was a permanent resident of the United States who 
was “excluded” upon his return to this country following a 5- 
month trip  abroad as a crewman on an American merchant 
ship. The Court declined to follow Knauff, which, it stated, 
“relates to the rights of an alien entrant and does not deal 
with the question of a resident alien’s right to be heard.” 
Kwong Hai Chew v. Colding, 344 U. S., at 596. The Court 
then stated that a resident alien, unlike an alien entrant, “is a 
person within the protection of the Fifth Amendment.” 
Ibid. Focusing on Chew’s hybrid status—that of a resident 
alien attempting to enter the United States—the Court said:

“While it may be that a resident alien’s ultimate right 
to remain in the United States is subject to alteration by 
statute or authorized regulation because of a voyage un­
dertaken by him to foreign ports, it does not follow that 
he is thereby deprived of his constitutional right to pro­
cedural due process. His status as a person within the 
meaning and protection of the Fifth Amendment cannot 
be capriciously taken from him.” Id., at 601 (emphasis 
added).

In the Court’s view, because he was a resident alien, Chew 
was a “person” for the purposes of the Fifth Amendment. 
Also under the Court’s view, however, the Executive’s char­
acterization of Chew as a first-time entrant—rather than a 
resident alien—was equivalent to taking away his status as a 
“person” for the purposes of constitutional coverage.

The broad and ominous nature of the dicta in Knauff, 
Chew, and Mezei becomes clear when one realizes that it ap­
plies not only to aliens outside our borders, but also to aliens 
who are physically within the territory of the United States 
and over whom the Executive directly exercises its coercive 
power. Moreover, it does not apply only to aliens in deten­
tion at modern-day Ellis Islands; it applies also to individuals 
who literally live within our midst, as our case law estab­
lishes that aliens temporarily paroled into the United States



16 JEAN v. NELSON

have no more rights than those in detention. See Kaplan v. 
Tod, 267 U. S. 228 (1925).

B

“It is a maxim, not to be disregarded, that general expres­
sions, in every opinion, are to be taken in connection with the 
case in which those expressions are used. If they go beyond 
the case, they may be respected, but ought not to control the 
judgment in a subsequent suit when the very point is pre­
sented for decision.” Cohens v. Virginia, 6 Wheat. 264, 399 
(1821) (Marshall, C. J.). The narrow question decided in 
Knauff and Mezei was that the denial of a hearing in a case in 
which the Government raised national security concerns did 
not violate due process. See also infra, a t ----- . The ques­
tion decided in Chew was that the alien’s due process rights 
had been violated. The broad notion that “ ‘excludable’ 
aliens . . .  are not within the protection of the Fifth Amend­
ment,” Kwong Hai Chew v. Golding, 344 U. S., at 600, on 
which the Government heavily relies in this case, Brief for 
Respondents 28-29, is therefore clearly dictum, and as such 
it is entitled to no more deference than logic and principle 
would accord it. Under this standard, the broad dictum in 
question deserves no deference at all.

Our case law makes clear that excludable aliens do, in fact, 
enjoy Fifth Amendment protections. First, when an alien 
detained at the border is criminally prosecuted in this coun­
try, he must enjoy at trial all of the protections that the Con­
stitution provides to criminal defendants. As early as Wong 
Wing v. United States, 163 U. S. 228 (1896), the Court 
stated, albeit in dictum, that while Congress can “forbid 
aliens or classes of aliens from coming within [our] borders,” 
it cannot punish such aliens without “a judicial trial to estab­
lish the guilt of the accused.” Id., at 237. The right of an 
unadmitted alien to Fifth Amendment due process protec­
tions at trial is universally respected by the lower federal 
courts and is acknowledged by the Government. See, e. g.,



JEAN v. NELSON 17

United States v. Henry, 604 F. 2d 908, 912-913 (CA5 1979); 
United States v. Casimiro-Benitez, 533 F. 2d 1121 (CA9), 
cert, denied, 429 U. S. 926 (1976); Respondents Brief in Op­
position 20-21. Surely it would defy logic to say that a pre­
condition for the applicability of the Constitution is an allega­
tion that an alien committed a crime. There is no basis for 
conferring constitutional rights only on those unadmitted 
aliens who violate our society’s norms.

Second, in Russian Volunteer Fleet v. United States, 282 
U. S. 481 (1931), the Court held that a corporation “duly or­
ganized under, and by virtue of, the Laws of Russia,” id., at 
487, could invoke the Fifth Amendment to challenge an un­
lawful taking by the Federal Government. The corporation 
in that case certainly had no more claim to being “within the 
United States” than do the aliens detained at Ellis Island. 
Nonetheless, the Court broadly stated that “[a]s alien 
friends are embraced within the terms of the Fifth Amend­
ment, it cannot be said that their property is subject to con­
fiscation here because the property of our citizens may be 
confiscated in the alien’s country.” Id., at 491-492 (empha­
sis added). Under the dicta in the Knauff-Chew-Mezei tril­
ogy, however, an alien could not invoke the Constitution to 
challenge the conditions of his detention at Ellis Island or at a 
similar facility in the United States. It simply is irrational 
to maintain that the Constitution protects an alien from 
deprivations of “property” but not from deprivations of “life” 
or “liberty.” Such a distinction is rightfully foreign to the 
Fifth  Amendment.

Third, even in the immigration context, the principle that 
unadmitted aliens have no constitutionally protected rights 
defies rationality. Under this view, the Attorney General, 
for example, could invoke legitimate immigration goals to 
justify a decision to stop feeding all detained aliens. He 
might argue that scarce immigration resources could be bet­
te r spent by hiring additional agents to patrol our borders 
than by providing food for detainees. Surely we would not



18 JEAN v. NELSON

condone mass starvation. As Justice Jackson stated in his 
dissent in Mezei,

“Does the power to exclude mean that exclusion may be 
continued or effectuated by any means which happen to 
seem appropriate to the authorities? It would effectu­
ate [an alien’s] exclusion to eject him bodily into the sea 
or to set him adrift in a rowboat. Would not such meas­
ures be condemned judicially as a deprivation of life 
without due process of law?” Shaughnessy v. United 
States ex rel. Mezei, 345 U. S., at 226-227.

Only the most perverse reading of the Constitution would 
deny detained aliens the right to bring constitutional chal­
lenges to the most basic conditions of their confinement.

Fourth, any limitations on the applicability of the Constitu­
tion within our territorial jurisdiction fly in the face of this 
Court’s long-held and recently reaffirmed commitment to 
apply the Constitution’s due process and equal protection 
guarantees to all individuals within the reach of our sover­
eignty. “These provisions are universal in their application, 
to all persons within the territorial jurisdiction, without re­
gard to any differences of race, of color, or of nationality.” 
Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886). Indeed, by 
its express terms, the Fourteenth Amendment prescribes 
that “[n]o State . . . shall deprive any person of life, liberty, 
or property without due process ofiaw; nor deny to any per­
son within its jurisdiction the equal protection of the laws.” 
In Plyler v. Doe, 457 U. S. 202 (1982), we made clear that 
this principle applies to aliens, for “[wjhatever his status 
under the immigration laws, an alien is surely a ‘person’ in 
any ordinary sense of that term .” Id., at 210; see also 
Mathews v. Diaz, 426 U. S. 67, 77 (1976). Such emphasis on 
universal coverage is not surprising, given that the Four- 
teentn Amendment was specifically intended to overrule a 
legal fiction similar to that undergirding Knauff, Chew, and 
Mezei—that freed slaves were not “people of the United 
States.” Scott v. Sandford, 19 How. 393, 404 (1857).



JEAN v. NELSON 19

Therefore, it cannot rationally be argued that the Constitu­
tion provides no protections to aliens in petitioners’ position. 
Both our case law and pure logic compel the rejection of the 
sweeping proposition articulated in the Knauff-Chew-Mezei 
dicta. To the extent that this Court has relied on Mezei at 
all, it has done so only in the narrow area of entry decisions. 
See, e. g., Landon v. Plasencia, 459 U. S. 21, 32 (1982); 
Kleindienst v. Mandel, 408 U. S. 753, 766 (1972). I t is in 
this area that the Government’s interest in protecting our 
sovereignty is at its strongest and that individual claims to 
constitutional entitlement are the least compelling. But 
even with respect to entry decisions, the Court has refused to 
characterize the authority of the political branches as wholly 
unbridled. Indeed, “[o]ur cases reflect acceptance of a lim­
ited judicial responsibility under the Constitution even with 
respect to the power of Congress to regulate the admission 
and exclusion of aliens.” Fiallo v. Bell, 430 U. S. 787, 793, 
n. 5 (1977).9

Regardless of the proper treatm ent of constitutional chal­
lenges to entry decisions, unadmitted aliens clearly enjoy

“Even in the 1950’s, Mezei was heavily criticized by academic commen­
tators. See, e. g ., Hart, The Power of Congress to Limit the Jurisdiction 
of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1392- 
1396 (1953) (describing the rationale behind Mezei as “a patently preposter­
ous proposition”); 1 K. Davis, Administrative Law Treatise, §7.15, pp. 
479-482 (1958); see also 2 K. Davis, Administrative Law Treatise, § 11:5, 
p. 358 (2d ed. 1979) (“The holding that a human being may be incarcerated 
for life without opportunity to be heard on charges he denies is widely con­
sidered to be one of the most shocking decisions the Court has ever ren­
dered”); Martin, Due Process and the Treatment of Aliens, 44 U. Pitt. L. 
Rev. 165, 176 (1983) (describing Mezei as “a rather scandalous doctrine, de­
serving to be distinguished, limited, or ignored”); Schuck, The Transforma­
tion of Immigration Law, 84 Colum. L. Rev. 1, 20 (1984) (“[one] of the most 
deplorable governmental conduct toward both aliens and American citizens 
ever recorded in the annals of the Supreme Court”); Developments in the 
Law—Immigration Policy and the Rights of Aliens, 96 Harv. L. Rev. 1286, 
1322-1324 (1983); Note, Constitutional Limits on the Power to Exclude 
Aliens, 82 Colum. L. Rev. 957 (1982).



20 JEAN v. NELSON

constitutional protections with respect to other exercises of 
the Government’s coercive power within our territory. Of 
course, this does not mean that the Constitution requires 
that the rights of unadmitted aliens be coextensive with 
those of citizens. But, “[ gjranting that the requirements of 
due process must vary with the circumstances,” the Court is 
obliged to determine whether decisions concerning the parole 
of unadmitted aliens are consistent with due process, and it 
cannot “pass back the buck to an assertedly all-powerful and 
unimpeachable Congress.” Hart, The Power of Congress to 
Limit the Jurisdiction of Federal Courts: An Exercise in Di­
alectic, 66 Harv. L. Rev. 1362, 1394 (1953) (discussing 
Knauff and Mezei). The proper constitutional inquiry must 
concern the scope of the equal protection and due process 
rights at stake, and not whether the Due Process Clause can 
be invoked at all.

C
The Government argues, however, that the parole decision 

at issue here is no different from an entry decision, and it 
maintains that the holding of the Court of Appeals is com­
pelled not only by the broad dicta in Mezei but also by Mezei's 
actual holding. In support of this position, the Government 
seizes on one phrase in Mezei—that to temporarily admit an 
alien “nullifies the very purpose of the exclusion proceeding.” 
Shaughnessy v. United States ex rel. Mezei, 345 U. S., at 
216. It is simply untenable to weave a broad principle out of 
the anomalous facts of Mezei.

The most obvious—and controlling—difference between 
the two cases is that the alien in Mezei had already been ex­
cluded on security grounds when he sought parole. Under 
the circumstances, parole would have had the same perni­
cious effects that the order of exclusion was designed to pro­
tect against. Indeed, to the extent that Mezei’s presence in 
this country was a threat to our national security, the threat 
flowing from his temporary parole was as serious as that re­
sulting from his admission. Activities such as espionage and



JEAN v. NELSON 21

sabotage can accomplish their objectives quickly; it does not 
necessarily take years to steal sensitive materials or blow up 
strategic buildings. Under the idiosyncratic facts of Mezei, 
it was reasonable that the alien’s rights with respect to ad­
mission and parole were deemed coextensive.

In contrast, the petitioners in this case have not been ex­
cluded from the United States. In fact, the reason that they 
are still in this country is that the Government has not yet 
performed its statutory duty to evaluate their applications 
for admission. More importantly, there is no argument here 
that security questions are at stake, and there is no reason to 
believe that petitioners’ parole would “nullify the purpose” of 
their potential exclusion in some other way. As a m atter of 
course, we admit tourists, students, and other short-term 
visitors whom we would not want to have permanently in our 
midst. Whatever immigration goals might be compromised 
by actually admitting petitioners would not necessarily be 
compromised similarly by paroling them pending the deter­
mination of their admissibility. Here, unlike in Mezei, 
parole and admission cannot be evaluated by the same 
yardstick.

This case is different from Mezei in other important ways. 
One such distinction is well captured in the Government’s 
brief in Mezei:

“[I]f the court below is correct in determining that an 
alien who can find no country to give him refuge is enti­
tled at least to temporary admittance here, it follows 
that the more undesirable an alien is, the better are his 
chances of admission, since the less likely he is to find 
other countries willing to accept him. In fact, if he is 
undesirable enough, he may attain what amounts to per­
manent residence in this country since no other nation 
will ever take him in.” Brief for Petitioner in No. 52- 
139, 0. T. 1952, p. 19.

Through parole, Mezei could have gained the same important 
substantive immigration rights that he already had been de­



22 JEAN v. NELSON

nied when he was excluded. In contrast, petitioners here 
could gain no such rights. Their parole could be terminated 
at any time at the discretion of the Attorney General and 
their admissibility would then be determined at exclusion 
proceedings just as if they had never been paroled. See 8 
U. S. C. § 1182(d)(5)(A); Leng May Ma v. Barber, 357 U. S., 
at 188; Kaplan v. Tod, 267 U. S., at 230; 1 C. Gordon & H. 
Rosenfield, 1 Immigration Law and Procedure, §2.54, at 
2-374. Whereas parole will never give petitioners a “foot­
hold in the United States,” Kaplan v. Tod, at 230, it might 
have made it possible for Mezei to stay here indefinitely.

Moreover, Mezei’s incentives to look for a country willing 
to take him would have disappeared had he been released 
from Ellis Island and allowed to return to his wife and home 
in Buffalo, N. Y. See Shaughnessy v. United States ex rel. 
Mezei, 345 U. S., at 217 (Black, J ., dissenting). In this case, 
the same incentives are simply not present.

Turning from substance to procedure, I find that the 
Court’s refusal to accord Mezei the procedural due process 
rights that he sought—namely, to know what information the 
Government had relied upon—had less to do with Mezei’s sta­
tus as an alien than with the Court’s willingness to defer to 
the Executive on national security m atters in the midst of the 
Cold War. Indeed, in Jay v. Boyd, 351 U. S. 345 (1956), the 
Court upheld the Govenment’s use of similar confidential in­
formation in a deportation proceeding. Even though the 
Court recognized that “a resident alien in a deportation pro­
ceeding has constitutional protections unavailable to a non­
resident alien seeking entry into the United States,” id., at 
359, it nonetheless relied on Knauff and Mezei to dismiss the 
alien’s claim, id., at 358-359. In doing so, it noted that the 
constitutionality of the Government’s practice gave it “no dif­
ficulty.” Id., at 357, n. 21. In Jay, the Court viewed 
Knauff and Mezei as national security cases and not as cases 
involving aliens attempting to enter the United States. In



JEAN v. NELSON 23

this case, in contrast, no national security considerations are 
said to be at stake.

Finally, whatever Mezei may have held about procedural 
due process rights in connection with parole requests is not 
applicable to the separate constitutional question whether 
the Government may establish a policy of making parole deci­
sions on the basis of race or national origin without articulat­
ing any justification for its discriminatory conduct. As far 
back as Yick Wo v. Hopkins, 118 U. S. 356 (1886), the Court 
recognized that even decisions over which the Executive has 
broad discretion, and which the Executive may make without 
providing notice or a hearing, cannot be made in an invidi­
ously discriminatory manner. Under the statute that the 
Court reviewed in Yick Wo, the State did not have to give 
reasons for its decision to prosecute violators of an ordinance 
making it illegal under most circumstances to maintain a 
laundry without consent of the board of supervisors, Yet 
the Court held that the ordinance could not be applied selec­
tively in a manner that discriminated against Chinese-Ameri- 
cans. Finding that the law was “applied and administered 
by a public authority with an evil eye and an unequal hand, so 
as practically to make unjust and illegal discriminations be­
tween persons in similar circumstances,” the Court reversed 
the convictions of those who had violated the ordinance. Id . , 
at 373-374. More recently, in Mt. Healthy City School Dis­
trict Board of Education v. Doyle, 429 U. S. 274 (1977), we 
stated that an employee who “could have been discharged for 
no reason whatever, and had no constitutional right to . . . 
the decision not to rehire him, [could] nonetheless establish a 
claim to reinstatement if the decision not to rehire him was 
made by reason of his exercise of constitutionally protected 
F irst Amendment freedoms.” Id ., at 283-284 (citation omit­
ted); see also Heckler v. Chaney, 470 U. S .----- , ------(1985).
Thus, the Attorney General’s broad discretion in the im­
migration area is not a license to engage in invidious 
discrimination.



24 JEAN v. NELSON

D

This dissent is not the place to determine the precise con­
tours of petitioners’ equal protection rights, but a brief dis­
cussion might clarify what is at stake. It is clear that, 
consistent with our constitutional scheme, the Executive en­
joys wide discretion over immigration decisions. Here, the 
Government would have a strong case if it showed that (1) 
refusing to parole Haitians would slow down the flow onto 
United States shores of undocumented Haitians, and that (2) 
refusing to parole other groups would not have a similar de­
terrent effect. Then, its policy of detaining Haitians but pa­
roling other groups might be sufficiently related to the valid 
immigration goal of reducing the number of undocumented 
aliens arriving at our borders to withstand constitutional 
scrutiny. Another legitimate governmental goal in this area 
might be to reduce the time it takes to process applications 
for asylum. If the challenged policy serves that goal, then 
arguably it should be upheld, provided of course that it is not 
too underinclusive.

It is also true that national origin can sometimes be a per­
missible consideration in immigration policy. But even if 
entry quotas may be set by reference to nationality, national 
origin (let alone race) cannot control every decision in any 
way related to immigration. For example, that the Execu­
tive might properly admit into this country many Cubans but 
relatively few Haitians does not imply that, when dealing 
with aliens in detention, it can feed Cubans but not feed 
Haitians.

In general, national-origin classifications have a stronger 
claim to constitutionality when they are employed in connec­
tion with decisions that lie at the heart of immigration policy. 
Cf. Hampton v. Mow Sun Wong, 426 U. S. 88, 116 (1976) 
(“due process requires that [an agency’s] decision to impose 
[a] deprivation of an important liberty . . .  be justified by 
reasons which are properly the concern of that agency”). 
When central immigration concerns are not at stake, how­



JEAN v. NELSON 25

ever, the Executive must recognize the individuality of the 
alien, just as it must recognize the individuality of all other 
persons within our borders. If in this case the Government 
acted out of a belief that Haitians (or Negroes for that mat­
ter) are more likely than others to commit crimes or be dis­
ruptive of the community into which they are paroled, its de­
tention policy certainly would not pass constitutional muster.

I l l

The narrow question presented by this case is whether, in 
deciding which aliens will be paroled into the United States 
pending the determination of their admissibility, the Govern­
ment may discriminate on the basis of race and national ori­
gin even in the absence of any reasons closely related to im­
migration concerns. To my mind, the Constitution clearly 
provides that it may not. I would therefore reverse the 
judgment of the Court of Appeals and remand for a deter­
mination of the scope of petitioners’ equal protection rights.

The Court instead disposes of this case through reliance on 
a statutory and regulatory analysis that finds no support in 
either the statute or the regulations. I therefore dissent.