Visa Revocation and Dual Citizenship Issues in the Cuban Parole Program ( 1978 )

December 18, 1978
78-67 MEMORANDUM OPINION FOR THE SPECIAL
ASSISTANT TO THE ATTORNEY GENERAL
Immigration and Nationality Act (8 U.S.C.
§ 1182(d)(5))—Cuban Parole Program
This responds to your request that we address the following questions:
1. Can a parole visa be revoked once the parolee has entered the
United States? If so, under what conditions?1
2. Does the law allow any Cuban who holds dual U.S.-Cuban
citizenship to immigrate to the United States with his or her
entire family?
I. Parole Revocation
Parole of aliens into the United States is governed by § 212(d)(5) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(d)(5). That
provision reads as follows:
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 re­
turned 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.
Thus, when the Attorney General determines that the purposes of parole have
been served, parole is revoked and the parolee faces exclusion proceedings as
described in §§ 235 and 236 of the Act, 8 U.S.C. §§ 1225, 1226, as would any
alien initially applying for admission into the United States. Section 212.5(b) of
'An alien who is paroled into the United States does not receive a visa. A visa is a document
issued by a consular officer to immigrants and nonimmigrants coming to the United States.
Moreover, a parolee does not ‘‘enter" the United States in a legal sense. See 8 U.S.C.
§ 1182(d)(5).
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Title 8 of the Code of Federal Regulations provides that parole shall be
terminated and pre-parole status restored upon an alien’s receiving written notice
of the following: expiration of his parole period; that the purpose for which the
parole was authorized has been accomplished; or when the District Director of
the Immigration and Naturalization Service (INS) in charge of the area where
the alien is located determines that neither emergency reasons nor public
interest warrants his continued presence in the United States. In parole
revocation proceedings, parolees are not entitled to the full panoply of
procedural rights accorded aliens in deportation proceedings.2 See, Leng May
Ma v. Barber, 357 U.S. 185 (1958); Rogers v. Quart, 357 U.S. 193 (1958); Siu
Fung Luk v. Rosenberg, 409 F. (2d) 555 (9th Cir. 1969), cert, dismissed, 396
U.S. 801 (1969). Moreover, as stated above, the discretion to terminate parole
resides in the Attorney General or his delegates and none of the statutory
grounds for deportation under § 241 of the Act, 8 U.S.C. § 1251, need be
alleged.
However, in one case, United States v. Murjf, 260 F. (2d) 610 (2d Cir.
1958), the court held that the parole of certain refugees may be revoked only if
they are accorded the same rights as those given aliens in deportation cases.
The court after acknowledging that parolees may, in the normal case, have their
parole summarily revoked, held that under the particular facts involved
additional procedural protections were required before parole could be revoked.
It noted that the circumstances under which the Hungarian refugees there
involved were paroled into the United States made the case sui generis. In
concluding that the refugees were “ invited” to this country, the court stressed
that the President had directed the Attorney General to exercise his § 212(d)(5)
parole power to admit a certain number of Hungarian refugees in excess of the
visas authorized under the Refugee Relief Act. Id., at 613. It also stressed the
fact that Congress had passed legislation endorsing the President’s action.
The M urff case seems to stand alone; other courts have consistently
distinguished Murjf. See, Ahrens v. Rojas, 292 F. (2d) 406 (5th Cir. 1961)
(case involving Cuban refugees); Siu Fung Luk v. Rosenberg, 409 F. (2d) 555
(9th Cir. 1969), cert, dismissed, 396 U.S. 801 (1969). But see the dictum of the
Board of Immigration Appeals in Matter o f O, Interim Decision 2614 (1977),
suggesting that M urff might have some applicability to parole revocations of
certain aliens paroled into the United States as part of the Vietnam evacuation.
However, it would seem that even if the M urff rationale were invoked, a court
would not necessarily require the full range of procedural protections required
in deportation proceedings. See the comments of the Board of Immigration
Appeals in Matter o f O, supra.
Once parole is revoked, the alien becomes subject to an exclusion proceed­
ing, in which he may seek asylum in the United States as a political refugee.
Previously the law was unsettled. See, Sannon v. United States, 421 F. Supp.
1270 (S. D. Fla. 1977) (asylum claims must be heard in exclusion proceed­
2The procedural rights due aliens subject to deportation proceedings are set forth in § 242 of the
Act, 8 U.S.C. § 125;.
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ings), and Pierre v. United Stales, 547 F. (2d) 1281 (5th Cir. 1977) (asylum
claims are not required to be considered in exclusion proceedings).3 However,
the issue has been mooted since the Solicitor General represented to the
Supreme Court that the Government would grant a hearing on asylum
applications in exclusion proceedings. See Memorandum Suggesting Mootness,
in Pierre v. United States, O. T. 1977, No. 77-53. The Court granted
certiorari, vacated the judgment, and remanded the case to the Court of Appeals
to determine the mootness question. Pierre v. United States, 434 U.S. 962(1977). In the meantime, INS has proposed a regulation to grant hearings on
asylum claims in exclusion proceedings. 43 F.R. 48629. Thus, asylum claims
must now be heard in an exclusion proceeding.
II. Dual United States and Cuban Citizenship
A U.S. citizen possessing dual citizenship may leave and reenter the United
States without regard to any restrictions applicable to aliens. Cuban residents
related to U.S. citizens and who are themselves U.S. citizens at birth by virtue
of section 301(a) of the Act, 8 U.S.C. § 1401(a), may also enter the United
States without regard to such restrictions.
Alien “ immediate relatives” of U.S. citizens may be admitted to this country
without regard to quota limitations pursuant to § 201(a) of the Act, 8 U.S.C.
§ 1151(a). That term includes a U.S. citizen’s children, spouse, and where the
U.S. citizen is at least 21 years old, his parents. § 201(b), 8 U.S.C. § 1151(b).
Also, it is permissible first to parole these persons into the United States and
permit them thereafter to seek adjustment of their status to that of persons
admitted for permanent residence. § 245, 8 U.S.C. § 1255. Other members of
the U.S. citizen’s family may be paroled into the United States although they
may not enjoy the status of immediate relatives of a U.S. citizen.
John M . H arm on
Assistant Attorney General
Office o f Legal Counsel
3The issue in these cases centered on the interpretation of the United Nations Convention and
Protocol Relating to the Status of Refugees, 19 U .S.T. 6223, TIAS 6557, to which the United
States became a signatory on November 1, 1968.
Article I of that document incorporates by reference the 19 5 1 Geneva Convention Relating to the
Status of Refugees. Article 1, as modified by the Protocol, defines a refugee as one who—
. . . owing to well-founded fear of being prosecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the
country of his nationality and is unable or, owing to such fear, is unwilling to avail himself
of the protection of that country, or who. not having a nationality and being outside the
country of his former habitual residence, is unable or, owing to such fear, is unwilling to
return to it.
Article 33 of the Protocol provides in pertinent part that ''[n]o Contracting State shall expel or
return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life
or freedom would be threatened on account of his race, religion, nationality, membership of a
particular social group or political opinion.”
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