Jean v. Nelson , 105 S. Ct. 2992 ( 1985 )

Justice Rehnquist

delivered the opinion of the Court.

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 statute further provides that such parole shall not be regarded as an admission of the alien, and that the alien shall be returned to custody when in the opinion of the Attorney General the purposes of the parole have been served.

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 not been entered . . ." Louis v. Nelson, 544 F. Supp. 1004, 1005 (SD Fla. 1982). After discovery and a 6-week bench trial the District Court held for petitioners on the APA claim, but concluded that petitioners had failed to prove by a preponderance of the evidence discrimination on the basis of race or national origin in the denial of parole. Louis v. Nelson, 544 F. Supp. 973 (1982); see also id., at 1004.

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 rule-making 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 agree that this new rule requires even-handed treatment and prohibits the consideration of race and national origin in the parole decision. Except for the initial 30-day stay, the District. Court’s injunction against the prior INS policy ended the unwritten INS policy put into place in the first half of 1981. Some 100 to 400 members of the class are currently in detention; most of these have violated the terms of their parole but some may have arrived in this country after the District Court’s judgment.¹ It is certain, however, that no class member is being held under the prior INS policy which the District Court invalidated. See Jean II, 727 F. 2d, at 962.

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.

The Eleventh Circuit granted a rehearing en banc, thereby vacating the panel opinion. See 11th Cir. Ct. Rule 26(k). After hearing argument, the en banc court held that the APA claim was moot because the Government was no longer detaining any class members under the stricken incarceration and parole policy.² All class members who were incarcerated had either violated the terms of their parole or were postjudgment arrivals detained under the regulations adopted after the District Court’s order of June 29, 1982. Jean II, supra, at 962. The en banc court then turned to the constitutional issue and held that the Fifth Amendment did not apply to the consideration of unadmitted aliens for parole. According to the court the grant of discretionary authority to the Attorney General under 8 U. S. C. § 1182(d)(5)(A) permitted the Executive to discriminate on the basis of national origin in making parole decisions.

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 question that the district court must therefore consider with regard to the remaining Haitian detainees is thus not whether high-level executive branch officials such as the Attorney General have the discretionary authority under the Immigration and Nationality Act (INA) to discriminate between classes of aliens, but whether lower-level INS officials have abused their discretion by discriminating on the basis of national origin in violation of facially neutral instructions from their superiors.” Jean II, 727 F. 2d, at 963.

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 unad-mitted 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:

“This case does not implicate the authority of Congress, the President, or the Attorney General. Rather, it challenges the power of low-level politically unresponsive government officials to act in a manner which is contrary to federal statutes . . . and the directions of the President and the Attorney General, both of whom provided for a policy of non-discriminatory enforcement.” Brief for Petitioners 37.

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 class members on parole and those members who are currently detained. 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 in Jean II, 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.” 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. TV A, 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 provide petitioners with nondiscriminatory parole consideration — which is all they seek to obtain by virtue of their constitutional argument — there was no need to address the constitutional issue.

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),

“[t]he Attorney General may . . . 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.”

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:

“Question: You are arguing that constitutionally you would not be inhibited from discriminating against these people on whatever ground seems appropriate. But as I understand your regulations, you are also maintaining that the regulations do not constitute any kind of discrimination against these people, and . . . your agents in the field are inhibited by your own regulations from doing what you say the Constitution would permit you to do.”

“Solicitor General: That’s correct.” Tr. of Oral Arg. 28-29.

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.³

Accordingly, we 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.

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

Affirmed.

1 The record does not inform us of exactly how many class members are in detention, and whether these are postjudgment arrivals or original class members who violated the terms of their parole as set by the District Court. The precise makeup of the class may be addressed on remand. See Tr. of Oral Arg. 42; Jean II, 727 F. 2d 957, 962 (1984); Order on Mandate, Louis v. Nelson, No. 81-1260, p. 1, n. 1 (SD Fla. June 8, 1984); Record, Vol. 17, pp. 4014, 4026, 4085.

2 The APA issue is not before us and we express no view on it. The court in Jean II was presented with other issues, none germane to the issues we discuss today.

3 We have no quarrel with the dissent’s view that the proper reading of important statutes and regulations may not be always left to the stipulation of the parties. But when all parties, including the agency which wrote and enforces the regulations, and the en banc court below, agree that regulations neutral on their face must be applied in a neutral manner, we think that interpretation arrives with some authority in this Court.

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 pre-litigation 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.