Jean v. Nelson, Commissioner, Immigration and Naturalization Service
Decided on June 26, 1985; 472 US 846


A. Issues Discussed:  Governmental Authority (immigration) 

B. Legal Question Presented: 

Can detained unadmitted immigrants 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?


A. Background:

Petitioners, a class of undocumented and unadmitted immigrants from Haiti, brought suit against the Commissioner of the Immigration and Naturalization Service (INS) in Federal District Court, alleging that they had been detained without parole by INS officials on the basis of race and national origin, in violation of the equal protection guarantee of the 5th Amendment. INS had ruled petitioners as "economic refugees," therefore excluding them from parole status. The District Court rejected the constitutional claim, but a panel of the United States Court of Appeals for the 11th Circuit held that the 5th Amendment's equal protection guarantee applied to the parole of unadmitted immigrants.  After a rehearing en banc, the Court of Appeals held that the 5th Amendment did not apply to the consideration of unadmitted immigrants for parole.  Although rejecting the constitutional claim, the Court of Appeals accorded relief based on the applicable INS regulation (8 CFR 212.5), remanding to the District Court to ensure that the INS exercised its discretion in making parole decisions in an individualized and nondiscriminatory manner. 

The United States Supreme Court granted certiorari to review the case.
B. Counsel of Record:
Opposing Side
Ira J. Kurzban argued the cause for petitioners. With him on the briefs were Bruce J. Winick, Irwin P. Stotzky, Christopher Keith Hall, Michael J. Rosen, and Robert E. Juceam.
Solicitor General Lee argued the cause for respondents. With him on the briefs were Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, Joshua I. Schwartz, Barbara L. Herwig, and Michael Jay Singer.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging reversal were filed for the American Immigration Lawyers Association by Donald L. Ungar and Bill Ong Hing; for Amnesty International U.S.A. by Joan Hartman, Paul Hoffman, and Ralph Steinhardt; for the Asian American Legal Defense and Education Fund, et al., by Linton Joaquin; for Metropolitan Dade County, et al., by Robert A. Ginsburg, Dianne Saulney Smith, Lucia A. Dougherty, and Gisella Cardonne; for the NAACP Legal Defense and Educational Fund, Inc., by Julius LeVonne Chambers and Charles Stephen Ralston; for the National Association for the Advancement of Colored People, et al., by Robert H. Kapp, Roderic V. O. Boggs, and Carolyn Waller; for the National Coalition for Haitian Refugees, et al., by Wade J. Henderson; for the Procedural Aspects of International Law Institute, et al., by Roberts B. Owen, David Carliner, and Sarah Wunsch; and for the Lawyers Committee for International Human Rights, et al., by Arthur C. Helton, Harriet Rabb, Lucas Guttentag, Jeffrey P. Sinensky, Ruti G. Teitel, and Phil Baum.

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.
Robert E. Jensen filed a brief for the Federation for American Immigration Reform as amicus curiae urging affirmance.

"Petitioners contend that the only adequate remedy is 'declaratory and injunctive relief' ordered by this Court, based upon the Fifth Amendment. The limited statutory remedy ordered by the court... petitioners contend, is insufficient. For their part respondents are also eager to have us reach the Fifth Amendment issue. Respondents wish us to hold that the equal protection component of the Fifth Amendment has no bearing on an unadmitted alien's request for parole...

'Prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision...' This is a 'fundamental rule of judicial restraint...' 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... '[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...'

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

Petitioners protest, however, that such a nonconstitutional remedy will permit lower-level INS officials to commence 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...

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

Justice Vote: 2 Pro vs. 7 Con

  • Rehnquist, W.  Con  (Wrote majority opinion)
  • Burger, W.  Con  (Joined majority opinion)
  • White, B.  Con  (Joined majority opinion)
  • Blackmun, H.  Con  (Joined majority opinion)
  • Stevens, J.  Con  (Joined majority opinion)
  • Powell, L.  Con  (Joined majority opinion)
  • O’Connor, S.  Con  (Joined majority opinion)
  • Marshall, T.  Pro  (Wrote dissenting opinion)
  • Brennan, W.  Pro  (Joined dissenting opinion)

The ACLU filed as amicus urging reversal; the United States Supreme Court affirmed the ruling of the Court of Appeals for the Eleventh Circuit in a 7-2 vote, giving the ACLU an apparent loss.