RAFAEL FERRER-MAZORRA, ET AL., PETITIONERS V. EDWIN C. MEESE, III, ATTORNEY GENERAL, ET AL. No. 85-7230 In the Supreme Court of the United States October Term, 1986 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit Brief for the Respondents in Opposition OPINIONS BELOW The April 1986 opinion of the court of appeals (Pet. App. A1-A10) is reported at 788 F.2d 1446. The June 1984 opinion of the court of appeals (Pet. App. A21-A29) is reported at 734 F.2d 576. The corresponding opinions of the district court (Pet. App. A34-A51, A64-A95) are reported at 622 F. Supp. 887 and 567 F. Supp. 1115. JURISDICTION The judgment of the court of appeals was entered on April 23, 1986 (Pet. App. A96-A97). Rehearing was not sought. The petition for a writ of certiorari was filed on July 1, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether admittedly excludable aliens have a constitutional right to be released within the United States if their native country refuses to accept them back. 2. Whether the Fifth Amendment requires an excludable alien be given a hearing prior to the revocation of his immigration parole. 3. Whether the court of appeals correctly concluded that the circumstances surrounding the 1980 "Mariel Flotilla" did not give rise to a federally created liberty interest in release on immigration parole for excludable Cubans. 4. Whether the court of appeals correctly ruled that the detained petitioners were not entitled to relief on the basis of customary international law. STATEMENT 1. a. The Immigration and Nationality Act provides that an alien who has not yet been granted entry into the United States may be excluded for any of numerous reasons, including lack of entry documents, conviction of a crime involving moral turpitude, and certain mental disabilities. 8 U.S.C. 1182(a). Normally, an alien excluded under the Act "shall be immediately deported." 8 U.S.C. 1227(a). An exception is allowed, however, where "the Attorney General, in an individual case, in his discretion, concludes that immediate deportation is not practicable or proper." Ibid. In such a case, the alien may be "paroled" into the United States, but such parole is discretionary, temporary, and revocable. Thus, the Act provides 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, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States. 8 U.S.C. 1182(d)(5)(A). Parole under this provision releases the alien into the United States, but it does not alter the alien's legal status as an excluded alien subject to deportation. Leng May Ma v. Barber, 357 U.S. 185, 190 (1958). b. In 1980, the Mariel boatlift brought approximately 125,000 Cuban nationals to the United States (Pet. App. A3, A38). Although virtually all were excludable aliens with no right to enter the United States, the vast majority were paroled into this country and have been given the opportunity to seek regularized status (Pet. App. A38). Among those arriving in the boatlift, however, were a number of Cubans found ineligible for initial or continued parole, including some with a history of serious mental problems and, at Cuba's direction, many hardened criminals. See 16 Weekly Comp. Pres. Doc. 819-820 (May 2, 1980) (announcement of President Carter that immigration officials would detain and deport "individuals with records of criminal activity who represent a threat to the country or whose presence would not be in the best interest of the United States"); see also id. at 915, 917 (May 14, 1980), id. at 1053 (June 13, 1980); Garcia-Mir v. Smith, 766 F.2d 1479, 1480 (11th Cir. 1985), cert. denied sub nom. Marquez-Medina v. Meese, No. 85-5874 (Feb. 24, 1986). Approximately 1800 of the Mariel Cubans were accordingly held for deportation in the Atlanta Penitentiary (Pet. App. A38). c. Faced with the unusual circumstance of Cuba's refusal to take any of these Cuban nationals back, the Attorney General, "(n)ot wishing to incur the expense of lengthy detentions, but also not wanting to release dangerous criminals, * * * undertook various screening measures to decide who among this riskier group could be released" (T. Aleinikoff & D. Martin, Immigration: Process and Policy 294 (1985)). Thus, in 1981, the Attorney General adopted a special Status Review Plan to establish a procedure for making immigration-parole decisions for the detained Cubans. The Plan provided for screening by a Justice Department panel and the Commissioner of Immigration and Naturalization to determine which detainees were currently nonviolent, likely to remain nonviolent, and unlikely to commit any criminal offense following their release (Pet. App. A24). Actual release required the Commissioner's approval and sponsorship by an organization such as a halfway house (id. at A24-A25). Once granted, parole could be revoked, without a hearing, if the alien was convicted of a felony or serious misdemeanor, posed a clear and imminent danger to the community or himself, or violated the terms of his placement with the sponsor (id. at A24, A89-A90). The Attorney General terminated the Status Review Plan in early 1985, after diplomatic efforts resulted in Cuba's agreeing to take back 2,746 named Mariel Cubans (Pet. App. A38). In May 1985, however, after 201 of the Cuban nationals (members of the plaintiff class here) had been returned to Havana, Cuba suspended implementation of the repatriation agreement. Negotiations with Cuba aimed at resuming repatriation were conducted in July of 1986, but they have not yet produced a resumption of repatriation. Nevertheless, the considerations that we believe led Cuba to enter into the original repatriation agreement remain, and the United States therefore continues to expect that we will at some point be able to resume returning Mariel Cubans to their homeland. In the meantime, the Immigration and Naturalization Service (INS) is continuing to administer the parole program. The INS has revoked immigration parole for a number of Mariel Cubans -- for the most part, those completing state and federal prison sentences for serious crimes. The INS has also granted release on parole to a number of Mariel Cubans, although on a scale smaller than under the now-retired Status Review Plan. Parole decisions for the Mariel Cubans are now made in accordance with normal parole regulations. 8 C.F.R. 212.5 (see Pet. App. A38). /1/ The Cuban population at the Atlanta Penitentiary remains roughly 1800 today. Three or four hundred of these detainees have never been paroled. The remainder were paroled under the Status Review Plan or current regulations but have had their paroles revoked for committing offenses or violating parole conditions (Pet. App. A38). 2. a. Petitioners are members of the class of Mariel Cubans being held in Atlanta until Cuba is willing to accept their return. Petitioners' habeas corpus actions, filed in 1981, were consolidated in the United States District Court for the Northern District of Georgia, which subsequently certified a class consisting of those Cubans who have been or are now being detained in Atlanta. See Fernandez-Roque v. Smith, 91 F.R.D. 117, 123, modified, 91 F.R.D. 239, 244 (1981). Virtually all of the petitioners have been issued final orders of exclusion (Pet. App. A23). In these actions, petitioners do not attack either the accuracy or the procedural adequacy of the determinations that they are excludable from the United States. /2/ Rather, assuming the validity of the government's refusal to admit them to the United States, petitioners challenge the government's authority to detain them pending deportation. b. In 1983, the district court found that class members, whose immediate exclusion was impracticable because of Cuba's refusal to accept their return, had a liberty interest, arising from the due process clause of the Fifth Amendment, in being free from administrative detention. /3/ The Court ruled that a finding of excludability permits detention "only for an initial, temporary period of time" (Pet. App. A77). Without specifying the source for its ruling, the court then established a substantive standard for release: further detention requires a "finding that the detainee, if released, is likely to abscond, to pose a risk to the national security, or to pose a serious and significant threat to persons or property within the United States" (ibid. (footnote omitted)). Moreover, the finding must be made after a procedurally adequate hearing -- a hearing that would, among other things, place a "clear and convincing evidence" burden of proof on the government, give indigent detainees the right to counsel appointed at taxpayer expense, allow detainees to invoke without adverse inference a privilege against self-incrimination with respect to United States criminal activity, and give them the rights to compel the attendance of witnesses and "to confront and cross-examine witnesses who provide evidence in support of continued detention" (id. at A83-A89). With respect to the revocation of parole, the court found that the government's parole revocation policies are reasonable (id. at A90) but held that class members were entitled to parole revocation hearings comparable to those required in the criminal law context (id. at A91-A92). /4/ c. The court of appeals reversed the district court in 1984. Relying on decisions of this Court and on its en banc decision in Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984), aff'd on other grounds, No. 84-5240 (June 26, 1985), the court ruled that "aliens have no constitutional right to be admitted into this country" and "that parole is part of the admissions process" (Pet. App. A26-A27). Accordingly, the "denial or revocation (of parole) does not rise to the level of a constitutional infringement" (id. at A27 (footnote omitted)). In finding that "the Cubans lack a constitutional liberty interest," the court of appeals, quoting from its Jean decision, reasoned that acceptance of the district court's approach would impair our national sovereignty: "'A foreign leader could eventually compel us to grant physical admission via parole to any aliens he wished by the simple expedient of sending them here and then refusing to take them back'" (ibid.). Having rejected the claim of a liberty interest deriving directly from the Constitution, the court of appeals remanded the case for consideration of whether Executive Branch action had given rise to a liberty interest and whether continued detention violated customary international law (id. at A27, n.10, A29). 3. a. On remand, the district court rejected the detainees' international law argument (Pet. App. A48-A51). With respect to the liberty-interest contention, the court followed Garcia-Mir v. Smith, 766 F.2d 1479, 1484 (11th Cir. 1985), cert. denied sub nom. Marquez-Medina v. Meese, No. 85-5874 (Feb. 24, 1986), and Jean v. Nelson, 727 F.2d 957, 977, 981 (11th Cir. 1981), aff'd on other grounds, No. 84-5240 (June 26, 1985), and ruled that the Status Review Plan did not create a liberty interest because it left the Attorney General such broad discretion in making parole decisions (Pet. App. A41). Nevertheless, the district court ruled that certain Executive Branch actions at the time of the flotilla did give rise to a protected liberty interest in continued parole for those Mariel Cubans who, prior to arrival, were not mentally incompetent and had not committed serious crimes in Cuba (id. at A48). In particular, the government's reaction to the 1980 boatlift, especially President Carter's so-called "open heart and open arms" statement of May 5, 1980 (16 Weekly Comp. Pres. Doc. 834-835), had extended an "invitation" to Mariel Cubans that placed "'substantive limitations on official discretion'" and thereby created a liberty interest in parole (Pet. App. A47, A51). This liberty interest, the district court held, required that each class member be given a hearing, governed by the same procedures mandated in the earlier district court ruling, "at which his continued detention must be justified by a finding that he is likely to abscond, to pose a risk to the national security, or to pose a serious and significant threat to persons or property within the United States" (id. at A51). /5/ b. On cross-appeals, the Eleventh Circuit affirmed the rejection of customary international law as placing limits on the detention of petitioners, but reversed the district court's finding of a "federally created" liberty interest (Pet. App. A1-A10). Without deciding whether the United States was acting contrary to international-law norms, the court of appeals noted that "public international law is controlling only 'where there is no treaty and no controlling executive or legislative act or judicial decision'" (id. at A8, quoting from The Paquete Habana, 175 U.S. 677, 700 (1900)). The court found a controlling executive act by the Attorney General in his decision to detain and a controlling judicial decision in Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953). /6/ These decisions extinguish any possible claim under international law (Pet. App. A9-A10). The court of appeals similarly rejected the claim of a liberty interest in parole created by federal government action. The court held that creation of such a liberty interest would require a finding that the making of parole determinations had been subjected to "'substantive limitations on official discretion' or 'particularized standards or criteria (to) guide the State's decisionmakers'" (Pet. App. A7, quoting Olim v. Wakinekona, 461 U.S. 238, 249 (1983)). This, the court held, petitioners had failed to establish (Pet. App. A7). The creation of a special parole category for arriving Cubans (Refugee Education Assistance Act of 1980, Pub. L. No. 96-422, Section 501(e), 94 Stat. 1799) was meant only to provide social welfare benefits and, by its express terms, did not alter or constrain parole decisionmaking (Pet. App. A7, quoting 1980 Act, Section 501(a)(1)). No other statute, regulation, or special rule required Cubans to be treated differently from other arriving aliens for purposes of parole (Pet. App. A7). Moreover, the oral public statement by President Carter, by itself, was insufficient to create a protected liberty interest: to give countenance to the notion that one of the political branches can simply wave a magic wand and 'create' (and by implication extinguish) constitutional rights would be to undo completely the notion of limited government through separated, checked and balanced powers. (Pet. App. A6). With respect to those petitioners who had once been paroled but had been returned to detention, the court of appeals likewise rejected petitioners' claim to a liberty interest. In particular, the court held that petitioners' reliance on Morrissey v. Brewer, 408 U.S. 471 (1972), was misplaced. Morrissey held that a criminal convict already on parole had a constitutionally protected liberty interest that placed due process demands on parole revocation. The court of appeals concluded that the "rights created in Morrissey are directly derived from the Due Process Clause" (Pet. App. A8). But, as the court had already held in its 1984 decision in this case, petitioners, being excludable aliens, have no rights respecting immigration parole stemming directly from the Constitution (ibid.). ARGUMENT This petition raises several challenges to the government's authority to detain, for potentially indefinite periods of time, arriving aliens who are subject to exclusion from the country but cannot immediately be removed because their home country refuses to take them back. The challenged authority obviously presents issues of considerable importance to both the nation and the affected individuals. But there is no circuit conflict on any of the issues raised by the petitioners, and the court of appeals correctly rejected their contentions, in accordance with settled legal principles established in this Court's decisions. 1. Petitioners' primary argument is that they have a core Fifth Amendment liberty interest in immigration parole. Petitioners acknowledge "that aliens applying for admission into this country are entitled to no particular process in the decision to admit or exclude them" (Pet. 19 (emphasis in original)). But, asserting incorrectly that detainees are denied information or effective judicial review of immigration parole decisions (Pet. 14) and that the petitioner class is no longer held for return to Cuba (Pet. 16), petitioners suggest that detention pending deportation is constitutionally different from exclusion, even when deportation is not currently possible (ibid.). Recognizing that Shaughnessy v. U.S. ex rel. Mezel, 345 U.S. 206 (1953), stands clearly against their contention, they urge this Court to reconsider that decision as inconsistent with subsequent rulings (Pet. 17-19). Mezel rejected the argument that an alien seeking entry, in contrast to an alien already in the United States, has Fifth Amendment due process rights over and above what Congress grants: "'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 United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950)). Contrary to petitioners' contention, this holding hardly stands alone. Earlier cases such as Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892), Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895), and the Knauff case quoted in Mezei had all recognized the admissions process to be subject to the exclusive control of the political branches. And this recognition has repeatedly been confirmed since Mezei was decided. See, e.g., Fiallo v. Bell, 430 U.S. 787, 792 (1977); Kleindienst v. Mandel, 408 U.S. 753 (1972). As the Court stated in Landon v. Plasencia, 459 U.S. 21, 32 (1982), "(t)his Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative." Petitioners, all of whom were aliens seeking admission to the United States when they arrived in 1980, fall squarely within this long-standing rule. And, as the court of appeals correctly held (Pet. App. A26-A27), petitioners cannot render the rule inapplicable by changing the focus from "exclusion" to detention pending deportation. The parole process in which petitioners claim a liberty interest is inextricably linked to the exclusion process both legally and practically. Parole is available only for an "alien applying for admission" (8 U.S.C. 1182(d)(5)(A)) and does not alter the alien's legal status. Leng May Ma v. Barber 357 U.S. 185, 190 (1958). Moreover, as a practical matter, the plenary authority over exclusion plainly requires plenary authority over parole, since parole permits physical entry into the country and litigation over continued detention would seriously impair the political branches' ability to control who is to be admitted, even temporarily, to our society. As this Court has recognized, "detention, or temporary confinement" is "part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens." Wong Wing v. United States, 163 U.S. 228, 235 (1896). See also ibid ("Proceedings to exclude or expel would be in vain if those accused could not be held in custody pending the inquiry into their true character, and while arrangements were being made for their deportation"); Carlson v. Landon, 342 U.S. 524, 538 (1952) ("Detention is necessarily a part of this deportation procedure"). Indeed, as even petitioners effectively acknowledge, this Court's decision in Mezei is directly on point. The Court there held that the Fifth Amendment affords an excludable alien no right against continued detention while efforts are being made to arrange for his actual departure. 345 U.S. at 207, 214-216. /7/ That decision, as noted above, is wholly consistent with the long line of this Court's rulings regarding the constitutional rights of unadmitted aliens. Moreover, it is founded both in the practical reality that the detention power is a necessary concomitant of the exclusion power and in fundamental principles of separation of powers and the inherent sovereign prerogative to control admission to its territory. This Court recently has twice specifically declined to reconsider the long-established precepts of immigration law that petitioners challenge (see Fiallo v. Bell, 430 U.S. at 792-783 & n. 4; Kleindienst v. Mandel, 408 U.S. at 765-767), and petitioners offer no persuasive reason to abandon those principles now. /8/ 2. Relying on Morrissey v. Brewer 408 U.S. 471 (1972), petitioners contend (Pet. 19-21) that, once released on immigration parole, an excludable alien has a liberty interest, deriving directly from the Constitution, in not being returned to custody for deportation. This argument must fail. Because immigration parole is not comparable to criminal parole, Morrissey cannot support a claim of constitutionally protected liberty interest (whatever its source) in continued parole for excludable aliens. The criminal convict in Morrissey "relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions." 408 U.S. at 482. Moreover, continuation of parole in the criminal context addressed in Morrissey is simply dependent "on the condition that the prisoner abide by certain rules during the balance of the sentence." Id. at 477. Thus, release on criminal parole is done in comtemplation of returning the parolee to normal society, subject only to moderate restrictions, with at least an implied promise that parole will not be revoked unless specific conditions are violated. Immigration parole is markedly different. Immigration parole is granted to persons like petitioners here, not in contemplation of entry into the United States, but as a temporary moderation of confinement pending deportation. Thus, in contrast to criminal parole, it is not a step toward ending the parolee's exclusion from society. It is granted in the Attorney General's discretion, when immediate deportation is not practical or proper, 8 U.S.C. 1227(a), and only "for emergent reasons or for reasons deemed strictly in the public interest," 8 U.S.C. 1182(d)(5)(A). It does not alter an alien's status as excludable. Leng May Ma v. Barber, 357 U.S. 185, 190 (1958) (parole "was never intended to affect an alien's status, and to hold that petitioner's parole placed her legally 'within the United States' is inconsistent with the congressional mandate, the administrative concept of parole, and the decisions of this Court"). Immigration parole may be revoked, not simply for violation of specified conditions, but in order to deport the alien or, indeed, whenever "the purposes of such parole shall, in the opinion of the Attorney General, have been served." 8 U.S.C. 1182(d)(5)(A). And once this discretionary revocation decision is made, the alien is to be returned to custody "forthwith." Ibid. Accordingly, the freedom from detention enjoyed by an immigration parolee, unlike that of a criminal-law parolee, is the most tenuous of privileges. An exludable alien is granted parole, for the convenience of the United States, on the clear understanding that he has no right to be in the country. Although an alien released on immigration parole may unilaterally hope that his parole will never be revoked, he has, unlike a criminal-law parolee, no legitimate expectation that his freedom from detention will continue. See Leng May Ma v. Barber, 357 U.S. 185, 189-190 (1958) (reaffirming holding of Kaplan v. Tod, 267 U.S. 228, 230 (1925) (Holmes, J.), "explicitly equating parole with detention"). Whatever the source of the "liberty" interest recognized in Morrissey, the interest of an immigration parolee is not comparable. A claim to due process protection for the revocation of immigration parole status was rejected by the Fifth Circuit in 1961, Ahrens v. Rojas, 292 F.2d 406, 408-410, and the same result is correct today. /9/ 3. Petitioners contend (Pet. 21-24) that, for those who were once paroled but later returned to custody (the so-called Second Group), federal government actions in 1980, as opposed to the Constitution itself, created a liberty interest in receiving and remaining on immigration parole. In the court of appeals, petitioners argued that this group was entitled to a "presumption of freedom" by virtue of an "invitation" to come here from President Carter, the establishment of the "Cuban/Haitian Entrant" parole classification, and actual release on parole. The basis for the argument, which assumes that President Carter extended an irrevocable right of permanent residence to the entire sane and law-abiding population of Cuba, is the "open heart and open arms" statement of the President in response to a question from a representative of the League of Women Voters. 16 Weekly Comp. Pres. Doc. 834-835 (May 5, 1980). /10/ The court of appeals correctly rejected this contention -- which amounts, ultimately, to an argument that a President could, by merely extending an "invitation," effectively amend the immigration laws without action by Congress. /11/ The court recognized the "profound and dangerous" implications of a holding that a President's oral public statements could create constitutional rights (Pet. App. A6). Not surprisingly, there is no precedent to support the notion that new legal rights, with potentially expensive and time-consuming administrative procedures to protect them, can spring up, not from any "'statute, regulation, administrative practice, contractual arrangement or other mutual understanding'" (ibid., quoting Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467 (1981) (Brennan, J., concurring)), but from a President's informal public remarks. Moreover, a statement like President Carter's does not establish any "'particularized standards or criteria'" to guide persons charged with applying or enforcing the alleged newly created entitlement (ibid.). For all these reasons, the court of appeals' conclusion that federal action in 1980 created no liberty interest for petitioners is correct and does not merit further review. /12/ 4. Lastly, petitioners ask this Court to grant certiorari to decide whether customary international law affords them any right to relief from their confinement (Pet. 24-28). The court of appeals, like the district court, carefully considered and correctly rejected this claim. Applying the test set forth in The Paquete Habana, 175 U.S. 677 (1900) (international law does not apply when there is a controlling legislative or executive act or a controlling judicial decision authorizing the challenged conduct), the court of appeals held that a controlling legislative act defeated the international-law claim of those petitioners never paroled and that the international-law claim of the once-paroled petitioners was defeated by both the Attorney General's determination authorizing detention and this Court's ruling in Mezei (Pet. App. A8-A10). /13/ Petitioners agree that The Paquete Habana provides the proper legal standard. And petitioners merely assert their disagreement with the finding of a controlling legislative act for those never paroled (Pet. 25, n. 17). Moreover, there is no doubt that the Attorney General, exercising properly delegated statutory powers, clearly and deliberately authorized petitioners' detention (and parole revocation). /14/ On the latter point, the court of appeals rightly rejected petitioners' claim that only the President's acts may be deemed controlling under The Paquete Habana. /15/ That case speaks of "executive" acts, not "presidential" acts. 175 U.S. at 700. See also id. at 708 (international law binds courts "in the absence of any treaty or other public act of their own government in relation to the matter"). And nothing in that case or in any other even suggests a limitation, based on international law, on the power of the President or Congress to delegate authority to Executive Department heads. See Tag v. Rogers, 267 F.2d 664, 666-668 (D.C.Cir.), cert. denied, 362 U.S. 904 (1959). Indeed, such a suggestion would have no proper foundation in the Constitution, which alone determines the distribution of power in the federal government, and would fly in the face of the history, structure, and practical needs of the federal government. Such a limitation would be especially out of place in the field of immigration law, which involves the fundamental sovereign power to control the nation's borders. Indeed, Congress has delegated broad discretionary authority regarding the treatment of excludable aliens directly to the Attorney General (see, e.g., 8 U.S.C. 1182(d)(5) (parole), 1227(a) (immediate deportation of excluded aliens)), and governmental decisions in this area "are so exclusively entrusted to the policial branches of government as to be largely immune from judicial inquiry" (Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952)). See U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) (broad delegation upheld); cf. Mathews v. Diaz, 426 U.S. 67, 81 (1976) ("Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution"). Petitioners, all of whom are inadmissible to the United States, are being detained to protect the American public pending their expected eventual return to Havana. Contrary to petitioners' assertion (Pet. 16), confinement is not simply an alternative to exclusion but is necessary while diplomatic efforts, once temporarily successful, seek the return of petitioners to Cuba. The vast majority of the 125,000 Mariel Cubans have been paroled into this country, and class members are continuing to be released on parole. /16/ Petitioners' circumstances are certainly unfortunate, but their plight is attributable to the current refusal of Cuba to honor its obligation to accept their return. See T. Aleinikoff & D. Martin, supra, at 293-294 ("it is usually recognized under international law that a nation has an obligation to permit the return of its nationals"). Simply put, the court of appeals correctly followed sound, controlling precedent of this Court when it declined to hold that the sovereignty of the United States could be compromised by a foreign government's choosing to send hardened criminals to the United States and then refusing to take them back. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General LAURI STEVEN FILPPU Attorney SEPTEMBER 1986 /1/ These regulations contemplate that arriving excludable aliens will be detained, unless an INS district director finds such detention not to be in the public interest, or the alien has a serious medical condition, is pregnant, is a juvenile, has a close relative capable of conferring an immigration benefit on the alien, is to be a witness, or is subject to prosecution (in which event, the alien is paroled into the custody of the appropriate authorities). See generally 8 C.F.R. 212.5(a); Jean v. Nelson, No. 84-5240 (June 26, 1985). /2/ Exclusion orders are issued after hearings before immigration judges (Pet App. A23). In these hearings, the aliens are informed of and can challenge the basis for exclusion, can be represented by retained or pro bono counsel, can present evidence orally or in writing, can cross-examine witnesses, and can apply for relief such as political asylum. Moreover, the decision must be based on the record and is subject to administrative and judicial review. See 8 U.S.C. 1226; 8 C.F.R. 236.1 -- 236.7; Garcia-Mir v. Smith, 766 F.2d 1479, 1486 (11th Cir. 1985), cert. denied sub nom. Marquez-Medina v. Meese, No. 85-5874 (Feb. 24, 1986). /3/ The district court first determined that the Attorney General has the statutory power "to detain excludable aliens for an indefinite period if immediate exclusion is impracticable" (Pet. App. A74). See Palma v. Verdeyen 676 F.2d 100 (4th Cir. 1982). But see Rodriquez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir. 1981). The Eleventh Circuit agreed with the district court in this respect (Pet. App. A25, n.6), and petitioners do not challenge the Attorney General's statutory authority to hold them. /4/ On the strength of these rulings the court ordered the government to develop a plan for conducting such detention hearings and to begin implementation within 60 days (Pet. App. A94). /5/ Once again the government was directed to develop and implement a plan for providing these hearings (Pet. App. A51). /6/ The court of appeals also found a controlling legislative act with respect to those Mariel Cubans who have never been paroled (Pet. App. A9, citing and quoting Pub. L. No. 96-533, Title VII, Section 716, 94 Stat. 3162 (1980), 8 U.S.C. Section 1522 note). /7/ In Mezei, Justices Black and Douglas dissented on the ground that "continued imprisonment without a hearing violates due process of law." 345 U.S. at 217. Justices Jackson and Frankfurter also dissented, agreeing with the majority that detention is constitutionally permissible but concluding that "when indefinite confinement becomes the means of enforcing exclusion, * * * due process requires that the alien be informed of its grounds and have a fair chance to overcome them." 345 U.S. at 227. Today, as noted above (supra pp. 4-5, n. 2), aliens seeking admission, like petitioners, are given hearings at which they can contest the charges against them, which typically relate to criminal activity, medical or psychiatric disorders, or visa violations. Moreover, contrary to petitioners' suggestion (Pet. 14), detainees can and do request parole from INS district directors, are provided written explanations of the decisions, and can obtain limited judicial review. See Moret v. Karn, 746 F.2d 989 (3d Cir. 1984). /8/ In any event, petitioners' argument suffers from an additional flaw. The Immigration and Nationality Act specifies no standards for the admission of excludable aliens whose physical removal from the United States is impracticable. See 8 U.S.C. 1227(a). Congress has given the Attorney General discretion to release an excludable alien on parole "for emergent reasons or for reasons deemed strictly in the public interest * * * ." 8 U.S.C. 1182(d)(5)(A). And the parole decision is generally subject to a "public interest" standard. 8 C.F.R. 212.5. Petitioners do not explain the source of any additional proposed substantive standards governing release, such as those created by the district court, or how providing greater procedural rights than now exist will aid in applying the existing standards. /9/ Moreover, subjecting revocation decisions to procedural constraints would operate as a deterrent to the granting of parole in the first place. /10/ In answer to a question, President Carter stated: * * * We, as a nation, have always had our arms open to receiving refugees in accordance with American law. * * * I have a responsibility to administer the law, because I've taken an oath to do so, and to administer it in a fair and equitable way. * * * * * * * As you know, there are almost 400 of those (Cuban political prisoners) who have been issued visas by our country who are hiding from mob violence * * * . So, those 400 plus literally tens of thousands of others will be received in our country with understanding, as expediously as we can, as safely as possible on their journey across the 90 miles of ocean, and processed in accordance with the law. * * * We do have a need to go back to the Congress for additional funds to care for this unexpected influx of refugees. * * * But we'll continue to provide an open heart and open arms to refugees seeking freedom from Communist domination and from economic deprivation, brought about primarily by Fidel Castro and his government. 16 Weekly Comp. Pres. Doc. 834-835. /11/ The court of appeals correctly concluded that the legislation granting a special status to petitioners for social welfare purposes was entirely irrelevant to the question of parole (Pet. App. A7). /12/ Nor, contrary to petitioners' suggestion (Pet. 23-24), does the court of appeals' reading of Morrissey merit review. Morrissey bears only on petitioners' claim of a liberty interest in continuation of once-granted parole. As we demonstrated supra, reliance on Morrissey, whatever the source of the liberty interest recognized there, is misplaced because immigration parole is fundamentally different from criminal parole. /13/ Petitioners misread the court of appeals in claiming that it found its own en banc decision in Jean v. Nelson to be a controlling judicial decision (Pet. 27-28). The court of appeals found this Court's decision in Mezei to be controlling on the power of the United States to detain aliens in these circumstances (Pet. App. A10). /14/ It is, of course, not necessary that the Attorney General expressly refer to international law in order for his actions to be fully effective as a matter of United States law. /15/ In any event, the actions of the Attorney General that the court of appeals found sufficient to establish a controlling domestic rule were in keeping with President Carter's direction to the Attorney General to protect the American public by taking appropriate actions, including detention, in response to Cuba's having included hardened criminals among the boatlift participants. 16 Weekly Comp. Pres. Doc. 819-820, 915, 1053, 1072 (May & June 1980). /16/ The INS informs us that, as of early August 1986, the Atlanta district director had authorized the parole of 105 detainees since termination of the Status Review Plan and that 59 of these individuals have actually been released to sponsors.