Petitioners, the named representatives of a class of undocumented 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 origin. 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 borders. That court remanded the case to the District Court for consideration of petitioners' claim that their treatment violated 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. 1071. We conclude 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 undocumented excludable aliens who have attempted to migrate from the Caribbean basin to south Florida. Section 235(b) of the Immigration and Nationality Act, 66 Stat. 199, 8 U. S. C. § 1225(b), provides that "[e]very alien . . . who may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry to be conducted by a special inquiry officer." Section 212(d)(5)(A) of the Act, 66 Stat. 188, as amended, 8 U. S. C. § 1182(d)(5)(A), authorizes 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 reasons or for reasons deemed strictly in the public interest." The
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 undocumented 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 admission 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, petitioners alleged that the INS's change in policy was unlawfully effected without observance of the notice-and-comment rulemaking procedures of the Administrative Procedure Act (APA), 5 U. S. C. § 553. Petitioners also 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. Specifically, petitioners alleged that they were impermissibly denied parole because 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
The District Court held that because the new policy of detention and restrictive parole was not promulgated in accordance 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 ordered 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 rulemaking process, 5 U. S. C. §§ 552, 553.
Under the District Court's order, the INS retained the discretion to detain unadmitted aliens who were deemed a security 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 compliance with the law and attendance at required INS proceedings. 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 forthwith, the District Court imposed a 30-day stay upon its order enjoining future use of the INS's policy of incarceration without parole. 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. 30044 (1982), as amended, 47 Fed. Reg. 46494 (1982). Both petitioners and respondents
After 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 Court of Appeals for the Eleventh Circuit affirmed the District Court's judgment on the APA claim, although on a somewhat different rationale than the District Court. Jean I, 711 F. 2d, at 1455. The panel went on to decide the constitutional 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 invidious discrimination on the basis of race or national origin was clearly erroneous. The panel ordered, inter alia, continued 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 treatment." Id., at 1509-1510.
Although the court in Jean II rejected petitioners' constitutional 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 petitioners admit require parole decisions to be made without regard to race or national origin. Because no class members were being detained under the policy held invalid by the District Court, the en banc court ordered a remand to the District Court to permit a review of the INS officials' discretion under the nondiscriminatory regulations which were promulgated in 1982 and are in current effect. The court stated:
The court stated that the statutes and regulations, as well as policy statements of the President and the Attorney General, required INS officials to consider aliens for parole individually, 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's power to parole or refuse parole, 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 978-979. 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:
Petitioners urge that low-level INS officials have invidiously discriminated against them, and notwithstanding the new neutral regulations and the statutes, these low-level agents will renew a campaign of discrimination against the
"Prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision." Gulf Oil Co. 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. TVA, 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. 138 (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 disingenuous evasion" to avoid a constitutional question. United States v. Locke, 471 U.S. 84, 96 (1985). As the Court stressed in Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105 (1944), "[i]f there is one doctrine more deeply rooted than any other in the process of constitutional 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) (STEVENS, 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
Congress has delegated its authority over incoming undocumented aliens to the Attorney General through the Immigration and Nationality 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 immigration judge of the INS. 8 U. S. C. §§ 1225(b), 1226(a); see 8 CFR § 236.1 (1985). The alien may request parole pending the decision on his admission. Under 8 U. S. C. § 1182(d)(5)(A),
The Attorney General has delegated his parole authority to his INS District Directors under new regulations promulgated after the District Court's order in this case. See 8 CFR § 212.5 (1985). Title 8 CFR § 212.5 provides a lengthy list of neutral criteria which bear on the grant or denial of parole. Respondents concede that the INS's parole discretion under the statute and these regulations, while exceedingly broad, does not extend to considerations of race or national origin. Respondents' position can best be seen in this colloquy from oral argument:
See also Brief for Respondents 18-19; 8 U. S. C. § 1182(d) (5)(A); 8 CFR § 212.5 (1985); cf. Statement of the President, United States Immigration and Refugee Policy (July 31, 1981), 17 Weekly Comp. of Pres. Doc. 829 (1981). As our dissenting colleagues point out, post, at 862-863, the INS has adopted nationality-based criteria in a number of regulations. These criteria are noticeably absent from the parole regulations, a fact consistent with the position of both respondents and petitioners that INS parole decisions must be neutral as to race or national origin.
Petitioners protest, however, that such a nonconstitutional remedy will permit lower-level INS officials to commence parole 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 protection results from the terms of a regulation or statute, rather than from a constitutional holding, is a necessary consequence of the obligation of all federal courts to avoid constitutional 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
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 guarantees of the Fifth Amendment's Due Process Clause to challenge 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 nonconstitutional 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 regulatory construction well beyond "the point of disingenuous evasion," United States v. Locke, 471 U.S. 84, 96 (1985), the Court thrusts itself into a domain that is properly that of the political branches. Purporting to exercise restraint, the Court creates out of whole cloth nonconstitutional 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 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 invidious discrimination based on race or national origin. I respectfully dissent.
The Court's decision rests entirely on the premise that the parole regulations promulgated during the course of this litigation preclude INS officials from considering race and national origin in making parole decisions. Ante, at 852-853, 855. The Court then reasons that if petitioners can show
In support of its conclusion, the Court points to no authority 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 administrative practices governing the parole of unadmitted aliens, indicates that there are no nonconstitutional constraints on the Executive's authority to make national-origin distinctions.
Congress provided for the temporary parole of unadmitted aliens in § 212(d)(5)(A) of the Immigration and Nationality Act, 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 reasons 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
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 policy became far more restrictive in 1981. See ante, at 849. 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 not complied with the Administrative Procedure Act (APA), 5 U. S. C. § 553, as it had not published notice of the proposed change and had not allowed interested persons to comment. 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 855.
The new parole regulations track the two statutory standards for the granting of parole: "emergent reasons" and "reasons strictly in the public interest." They first provide that "[t]he parole of aliens who have serious medical conditions
Given the catchall provision, the regulations provide somewhat 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.
Nor is a prohibition on the consideration of national origin to be found in the parole statute, pronouncements of the Attorney General and the INS, or the APA, the only other possible nonconstitutional sources for the constraints the Court believes are imposed upon the INS's District Directors. The first potential constraint, of course, is 8 U. S. C. § 1182(d)(5)(A), which vests full "discretion" over parole decisions in the Attorney General. There can be little doubt that at least national-origin distinctions are permissible under the parole statute if they are consistent with the Constitution. First, the grant of discretionary authority to the Attorney General over immigration matters is extremely broad. See 2 K. Davis, Administrative Law Treatise § 8:10 (2d ed. 1979); 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 8.14 (1985). For example, 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) (presumption of lawful admission for certain national groups); § 212.1 (documentary requirements for nonimmigrants of particular
My conclusion that the parole statute leaves room for nationality-based distinctions is consistent with the Government'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 maintaining that the parole statute does not proscribe differential treatment based on national origin, the Government added:
The conclusion that Congress did not provide the constraint 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 example, he could have published interpretive rules, staff instructions, 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
The final possible constraint comes from the APA's requirement that administrative action not be arbitrary, capricious, 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 immigration 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 decisions under 8 CFR § 212.5 (1985). See also supra, at 862 (discussing Attorney General's discretion). In summary, the Court's conclusion that, aside from constitutional constraints, the parole regulations prohibit national-origin distinctions draws no support from anything in the regulations themselves or in the statutory and administrative background to those regulations.
The Court's view that the regulations are neutral with respect to race and national origin is based only on the representations of the Solicitor General and the purported agreement of the parties.
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. Natural Resources Defense Council, Inc., supra, at 844. Similarly, an agency's interpretation 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 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 considerations apply, of course, to appellate counsel's interpretation 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, supra, at 422 (opinion of Black, J.), we have been directed to no relevant indication that the administrative
More importantly, this Court's judgments are precedents binding on the lower courts. Thus, the proper interpretation 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). The Court's construction of the administrative policy in this case will have implications far beyond the confines of this litigation.
In fact, the Court's decision casts serious doubt on the validity of numerous immigration policies. As I have already mentioned, many statutes in the immigration field vest "discretion" 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 authoritative 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 relevant statute, regulation, or administrative practice, limits
Having shown that the Court's interpretation of the regulations is untenable, I turn to consider the constitutional question presented by this case: May the Government discriminate on the basis of race or national origin in its decision whether to parole unadmitted aliens pending the determination 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 (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.
Ignatz Mezei arrived in New York in 1950 and was temporarily excluded from the United States by an immigration inspector acting pursuant to the Passport Act. Pending disposition 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 nature, the disclosure of which would be prejudicial to the public interest . . . 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 writ of habeas corpus, Mezei argued that the Government's refusal to inform him of the reasons for his continued 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. After the Government refused to comply altogether, the District Court directed Mezei's conditional parole on
The Court first distinguished between aliens who have entered 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, however, 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 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, supra, 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 followed Knauff as if it were directly on point.
Justices Black, Frankfurter, Douglas, and Jackson dissented 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
The statement in Knauff and Mezei that "[w]hatever 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 suggests 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 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:
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 characterization 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 they apply 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, the dicta do not apply only to aliens in detention at modern-day Ellis Islands; they apply also to individuals who literally live within our midst, as our case law establishes that aliens temporarily paroled into the United States have no more rights than those in detention. See Kaplan v. Tod, 267 U.S. 228 (1925).
"It is a maxim, not to be disregarded, that general expressions, 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 presented 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, at 877. The question 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
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 country, he must enjoy at trial all of the protections that the Constitution 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 establish the guilt of the accused." Id., at 237. The right of an unadmitted alien to Fifth Amendment due process protections at trial is universally respected by the lower federal courts and is acknowledged by the Government. See, e. g., 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); Brief in Opposition 20-21. Surely it would defy logic to say that a precondition for the applicability of the Constitution is an allegation 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 organized under, and by virtue of, the Laws of Russia," id., at 487, could invoke the Fifth Amendment to challenge an unlawful 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
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 better spent by hiring additional agents to patrol our borders than by providing food for detainees. Surely we would not condone mass starvation. As Justice Jackson stated in his dissent in Mezei:
Only the most perverse reading of the Constitution would deny detained aliens the right to bring constitutional challenges to the most basic conditions of their confinement.
Fourth, any limitations on the applicability of the Constitution within our territorial jurisdiction fly in the face of this Court's long-held and recently reaffirmed commitment
Therefore, it cannot rationally be argued that the Constitution 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). It 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 limited judicial responsibility under the Constitution even with
Regardless of the proper treatment of constitutional challenges to entry decisions, unadmitted aliens clearly enjoy 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, "[g]ranting 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 Dialectic, 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
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 compelled 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." 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 excluded on security grounds when he sought parole. Under the circumstances, parole would have had the same pernicious effects that the order of exclusion was designed to protect 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 resulting from his admission. Activities such as espionage and 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 admission and parole were deemed coextensive.
In contrast, the petitioners in this case have not been excluded 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 matter of course, we admit tourists, students, and other short-term
This case is different from Mezei in other important ways. One such distinction is well captured in the Government's brief in Mezei:
Through parole, Mezei could have gained the same important substantive immigration rights that he already had been denied 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, Immigration Law and Procedure § 2.54, p. 2-374 (1985). Whereas parole will never give petitioners a "foothold in the United States," Kaplan v. Tod, supra, 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
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 status as an alien than with the Court's willingness to defer to the Executive on national security matters in the midst of the Cold War. Indeed, in Jay v. Boyd, 351 U.S. 345 (1956), the Court upheld the Government's use of similar confidential information in a deportation proceeding. Even though the Court recognized that "a resident alien in a deportation proceeding has constitutional protections unavailable to a nonresident alien seeking entry into the United States," id., at 359, it nonetheless relied on Knauff and Mezei to dismiss the alien's claim, 351 U. S., at 358-359. In doing so, it noted that the constitutionality of the Government's practice gave it "no difficulty." 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 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 decisions on the basis of race or national origin without articulating 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 invidiously 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
This dissent is not the place to determine the precise contours of petitioners' equal protection rights, but a brief discussion might clarify what is at stake. It is clear that, consistent with our constitutional scheme, the Executive enjoys 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 deterrent effect. Then, its policy of detaining Haitians but paroling 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
It is also true that national origin can sometimes be a permissible 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 Executive 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 connection with decisions that lie at the heart of immigration policy. Cf. Hampton v. Mow Sun Wong, 426 U.S. 88, 116 (1976) ("[D]ue 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, however, 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 matter) are more likely than others to commit crimes or be disruptive of the community into which they are paroled, its detention policy certainly would not pass constitutional muster.
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 Government may discriminate on the basis of race and national
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.
Robert E. Jensen filed a brief for the Federation for American Immigration Reform as amicus curiae urging affirmance.
Briefs of amici curiae were filed for the Washington Legal Foundation by Daniel J. Popeo and George C. Smith; for the American Civil Liberties Union by Burt Neuborne and Charles S. Sims; and for Aguilar-Ramos et al. by Dale M. Schwartz and David A. Webster.
The dissent relies upon such cases as Young v. United States, 315 U.S. 257, 259 (1942), and Investment Company Institute v. Camp, 401 U.S. 617 (1971), even though those cases have faint resemblance to this one. In Young the Government 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 rejected 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 federal banking statutes. We rejected the gloss placed upon these statutes by the Solicitor General on appeal; the Comptroller had offered no prelitigation administrative interpretation of these statutes, and the Solicitor General's post hoc interpretation could not cure the conflict between the challenged 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 Court of Appeals to be merely a litigation stance in defense of the agency action which precipitated this litigation.
Moreover, the District Court found "inconsistencies between what the Government witnesses said the policy was and the policy their subordinates 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 (SD Fla. 1982). Similarly, the panel of the Court of Appeals properly found that Associate Attorney General Giuliani's testimony contradicted the testimony 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 (CA11 1983). The unsupported, uncredited, and contradicted 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 entirely separate question of whether different treatment would have been inconsistent with the statutes and regulations.