Jean v. Nelson, 82-5772

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK; VANCE; KRAVITCH, Circuit Judge, specially concurring in part and dissenting in part with whom JOHNSON, HATCHETT and CLARK
Citation727 F.2d 957
PartiesMarie Lucie JEAN, et al., Plaintiffs, Lucien Louis, et al., Plaintiffs-Appellees-Cross-Appellants, State of Florida, Intervenor-Appellant, v. Alan C. NELSON, et al., Defendants-Appellants-Cross-Appellees.
Docket NumberNo. 82-5772,82-5772
Decision Date28 February 1984

Stanley Marcus, U.S. Atty., Sonia O'Donnell, Asst. U.S. Atty., Miami, Fla., Leon B. Kellner, New York City, Robert L. Bombaugh, Rudolph W. Giuliani, Associate Atty. Gen., Barbara L. Herwig, Michael Jay Singer, Appellate Staff, Civ.Div., Dept. of Justice, Washington, D.C., Nade E. Strickland, Crim. Investigator, U.S. INS, Dept. of Justice, Atlanta, Ga., for defendants-appellants-cross-appellees.

Ira J. Kurzban, Christopher Keith Hall, Kurzban, Kurzban & Weinger, National Emergency Civil Liberties Committee and Haitian Refugee Center, Inc., Miami, Fla., Bruce J. Winick, ACLU Foundation Michael Rosen, ACLU Foundation of Fla., Miami, Fla., Irwin P. Stotzky, University of Miami, School of Law, Coral Gables, Fla., Vera Weisz, Los Angeles, Cal., Mary B. Gilmore, Terrence A. Corrigan, Marla Simpson, Robert E. Jucean, New York City, for plaintiffs-appellees-cross-appellants.

J. Kendrick Tucker, Deputy Atty. Gen., Tallahassee, Fla., for intervenor State of Fla. Dan Paul, Paul & Thomson, Steven M. Kamp, Miami, Fla., for amicus American Immigration Lawyers Ass'n.

Arthur C. Helton, Lawyers Committee for Intern. Human Rights, Richard Simpson, Elise A. Bloustein, Robert L. Weigel, Philip S. Weber, New York City, for amicus Immigration Law Clinic of Columbia University School of Law and Lawyers Committee for Intern. Human Rights.

Appeals from the United States District Court for the Southern District of Florida.


VANCE, Circuit Judge:

This case presents complex and fundamental constitutional questions concerning the rights of excludable or unadmitted aliens 1 and the authority of the Executive branch over immigration matters. It arises out of a class action brought on behalf of Haitian aliens who arrived in the Southern District of Florida on or after May 20, 1981 and were detained at various facilities of the Immigration and Naturalization Service (INS) pending a final determination of the merits of their petitions for asylum. 2

Plaintiffs allege that their incarceration was improper for two reasons. First, they contend that the government improperly failed to comply with the notice and comment provisions of the Administrative Procedure Act (APA) when it adopted a new practice of detaining aliens who could not establish a prima facie claim of admission to this country, rather than paroling them pending a hearing on their petitions for admission to asylum. Second, plaintiffs assert that the new detention policy is illegal because it is discriminatory either on its face or in its application, since Haitian aliens appear to be disproportionately affected by the new policy.

The district court concluded that the policy had not been applied in a discriminatory manner, but ruled that the government had failed to comply with the requirements of the APA and ordered the release of the detained class members. Louis v. Nelson [Louis III], 544 F.Supp. 973 (S.D.Fla.1982). A panel of this court subsequently affirmed the district court's decision with regard to the requirements of the APA, but found that the district court had erred in holding that plaintiffs had failed to demonstrate that the government's actions were the product of discriminatory intent. Jean v. Nelson, 711 F.2d 1455, reh'g en banc granted, 714 F.2d 96 (11th Cir.1983). We now reverse and remand for further findings by the district court. Because the facts of this case have been extensively set forth in the opinions of the panel and the district court, we proceed directly to a discussion of the legal questions involved.


Count Two of plaintiffs' complaint asserted that the new detention policy adopted by the Administration in the summer of 1981 constituted a "rule" within the meaning of the Administrative Procedure Act (APA), see 5 U.S.C. Sec. 551(4), and that the government's failure to comply with the rulemaking procedures of the APA rendered the plan void and unenforceable. An administrative agency generally cannot adopt a substantive rule without first publishing notice of the proposed regulation and providing interested parties with an opportunity to comment. Id. Sec. 553(b), (c). The government conceded that it had not followed these procedures when it adopted the new detention policy, but argued that it was exempt from these requirements on the grounds that the new approach was not a "rule" within the meaning of the APA. Alternatively, the government argued that even if the new detention program did constitute a rule, it fell within the foreign affairs, interpretative rules, and general statements of agency policy exceptions to the APA's rulemaking requirements. See id. Sec. 553(a)(1), (b)(A) & (B). The district court rejected these arguments. Louis III, 544 F.Supp. at 997. It ordered the government to parole the class members then detained and enjoined the government from enforcing its new detention program until the INS complied with the rulemaking procedures of the APA. Louis v. Nelson [Louis IV], 544 F.Supp. 1004, 1006 (S.D.Fla.1982).

After the district court rendered its decision, the government promulgated new regulations in accordance with the APA. See 8 C.F.R. Sec. 212.5 (1982). At oral argument before this court counsel for petitioners stated that one hundred or more class members are currently being held in detention, but these detainees either had their parole revoked for failure to comply with the terms of the district court's order, see Louis IV, 544 F.Supp. at 1009, or arrived in this country after the government's promulgation of its new regulations. Because the government is no longer detaining any class members except pursuant to the new regulations, the APA issue as originally presented has been rendered moot. The validity of these new regulations is not before this court, and we express no opinion in this regard. We accordingly dismiss the appeal as to Count Two of plaintiffs' complaint and remand with instructions that this part of the district court's judgment be vacated.


The central question raised by this case in its present posture is whether the Haitian plaintiffs may invoke the equal protection guarantee of the fifth amendment's due process clause as a basis for challenging the government's refusal to grant them parole. The district court, reasoning that "the [Supreme] Court has never held [that] 'the Constitutional guarantees of the Fifth Amendment do not apply to unadmitted aliens,' " Louis III, 544 F.Supp. at 998, decided that it could reach the merits of the Haitians' claim that the government's new restrictive parole policy was being applied in a discriminatory manner. The lower court noted that a string of Supreme Court decisions beginning with Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) have recognized that aliens are "persons" for the purposes of the fifth and fourteenth amendments and concluded that "[p]laintiffs are entitled to the same constitutional protections afforded all persons within the territorial jurisdiction of the United States." Louis III, 544 F.Supp. at 998; see also Jean, 711 F.2d at 1484. The district court conceded that the Supreme Court has repeatedly stressed that excludable aliens have no constitutional rights with respect to their applications for admission into this country, but it distinguished this case on the grounds that "the[ ] claim before this Court does not relate to admission and does not challenge Congress' power in that regard. Plaintiffs' claim is that they cannot be denied parole, pending a determination of their admissibility, because of their race and/or national origin." Louis III, 544 F.Supp. at 998; see also Jean, 711 F.2d at 1484-85.

The lower court also emphasized that while prior Supreme Court decisions have recognized that there are few if any limitations on Congress' power to formulate guidelines and procedures governing the exclusion of unadmitted aliens, even excludable aliens must receive from the Executive whatever degree of due process protection has been authorized by Congress. Thus, the district court held that if Congress intended the statutes under which the INS acted to be applied neutrally to all excludable aliens, the judiciary could review the Haitian plaintiffs' claim that executive officials violated their fifth amendment rights to due process and equal protection by exercising their discretionary parole authority in a discriminatory manner. Louis III, 544 F.Supp. at 998-99; see also Jean, 711 F.2d at 1485.

The district court therefore stressed that this case involves a challenge to detention, rather than admission. The court below also drew a sharp distinction between the actions of the legislative and the executive branches, asserting that while Congress is free to discriminate in adopting policies that govern the admission or the processing of excludable aliens, the Executive is prohibited from doing so in the absence of an express congressional mandate. We conclude, however, that the lower court's reasoning is flawed with regard to both points. It is our view that the decision to parole or detain an excludable alien is an integral part of the admissions process and that the grant of discretionary authority to the Attorney General under 8 U.S.C. Sec. 1182(d)(5)(A) permits the Executive to discriminate on the basis of national origin in making parole decisions.

The Executive, however, apparently contends that its parole policy does not discriminate on...

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