But the slate is not clean. As to the extent of the power of Congress under review, there is not merely "a page of history," ... but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process.... But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government....

The limits to this legislative power are few, "for an alien has no constitutional right to enter or remain in this country... (and) he may be denied entrance on grounds that would be constitutionally suspect or impermissible in the context of domestic policy, namely, race, physical condition, political beliefs, sexual proclivities, age, and national origin." Fiallo v. Levi, 406 F. Supp. 162, 165 (E.D.N.Y.1975) (three-judge court) (Moore, J., sitting by designation) (footnotes omitted), aff'd sub nom. Fiallo v. Bell, supra. See also Pierre v. United States, 547 F.2d 1281, 1290 (5th Cir. 1977) (en banc), vacated and remanded to consider mootness, 434 U.S. 962, 98 S. Ct. 498, 54 L. Ed. 2d 447 (1977).

It is not disputed that the "plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established(,)" Kleindienst v. Mandel, 408 U.S. 753, 769-770, 92 S. Ct. 2576, 2585-2586, 33 L. Ed. 2d 683 (1972); the cases supporting the principle "have been legion." Id. 408 U.S. at 765-766 & n.6, 92 S. Ct. at 2582-2583 & n.6. It is in the exercise of this plenary authority over immigration matters that Congress granted to the Attorney General of the United States broad discretionary power to parole unadmitted aliens pending a final determination on their applications for admission to the United States. 8 U.S.C. § 1182(d)(5).

The unusually broad Congressional power over the admission of aliens into the United States is reflected in the narrow construction by the courts of their own power to review the discretionary decisions of the Attorney General made pursuant to authority delegated to him by Congress. The historic deference of the courts to the political branches of our national government in immigration matters is at the heart of the Supreme Court's statement of the scope of review of the Attorney General's exercise of discretion to deny temporary admission to an unadmitted alien in Kleindienst v. Mandel, supra. In that case, Congress exercised its plenary powers to deny admission to defined classes of persons and granted to the Attorney General discretion to waive inadmissibility and approve temporary admission. As in the case before us, the Attorney General exercised this discretionary power negatively. The Court concluded that in such a case "the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against ... First Amendment interests ...." Id. at 770, 92 S.Ct. at 2585. This was true, however, only as long as the Attorney General exercised that discretionary, power "on the basis of a facially legitimate and bona fide reason(.)" Id.

By the same token, as long as the Attorney General exercises his broad discretion under 8 U.S.C. § 1182(d)(5) to determine whether unadmitted aliens may be paroled pending final determination of their applications for admission to the United States, his decision may not be challenged on the grounds that the discretion was not exercised fairly in the view of a reviewing court or that it gave too much weight to certain factors relevant to the risk of abscondence and too little to others. Indeed, section 1182(d)(5) permits the Attorney General to deny parole to all or to certain groups of unadmitted aliens on the ground that he finds no emergent or public interest reasons justifying their release on parole. The discretion may not be exercised to discriminate invidiously against a particular race or group or to depart without rational explanation from established policies. See Wong Wing Hang v. Immigration and Naturalization Service, 360 F.2d 715, 719 (2d Cir. 1966). Such exercise of the power would not be "legitimate and bona fide" within the meaning of Kleindienst v. Mandel.12 But the Attorney General's exercise of his broad discretionary power must be viewed at the outset as presumptively legitimate and bona fide in the absence of strong proof to the contrary. The burden of proving that discretion was not exercised or was exercised irrationally or in bad faith is a heavy one and rests at all times on the unadmitted alien challenging denial of parole. See Pierre v. United States, supra, 547 F.2d at 1289.

The Decision and Judgment of the District Court

A review of the District Court's rulings and the record of this case reveals that the INS District Director, in denying petitioners' applications for parole, did exercise the discretion delegated to him by the Attorney General. It also reveals that the trial court improperly concluded that the INS District Director abused his discretion.

In its ruling of March 5, 1982, the District Court first concluded that the discretion vested in the Attorney General by statute and delegated to Sava had not been exercised because Sava had failed to make individual decisions on the petitioners' parole requests. This conclusion was grounded on a finding that Sava's knowledge of the matter was based on "casual, inaccurate generalizations (that) rebut (Sava's) claim to have conducted individualized review(s)" and on a finding that "(e)ach denial, five of which were issued on the same day, contained the same language concerning the insufficiency of the information presented in the parole requests." To the trial court, "(b)oth the wording and the timing of these responses indicate that denial (of the parole requests) was a foregone conclusion, not a decision reached through independent review and analysis of each file." 535 F. Supp. at 1014 & n.21.

The testimony upon which the court relied consisted of a brief exchange between the court and Sava in which the latter stated-in response to the court's request that Sava state "(j)ust generally, what kind of things (he knew) about (the petitioners)"-that the petitioners were "for the most part illiterate" and "(m)ost of them were farmers, working the land in Haiti." Id. The court, upon a review of the affidavits submitted by the petitioners and exhibits produced by the Government, concluded that the "generalizations" offered by Sava in response to the court's own request for general information were "casual" and "inaccurate" and inconsistent with an individualized review of the eight requests for parole. Id.13

Even if we assume for the argument that Sava's decision to deny parole was based on generalizations that were "casual" or "inaccurate," it does not follow that Sava thus failed entirely to exercise the discretion vested in him by law. Moreover, the finding that all of the notices sent to the petitioners informing them that their parole requests had been denied were form letters containing virtually identical language does not necessarily support the court's conclusion that no discretion had been exercised. While this finding may prove that the decision made in each case was the same-that is, that the parole requests were all denied-it is not at all probative on the question of whether there had been an individualized consideration of the actual parole requests.

The probative evidence in the record on which the trial court relied, therefore, is not sufficient to support its conclusion that Sava failed to exercise any discretion in rejecting the petitioners' parole requests. The record includes uncontroverted evidence that Sava did indeed affirmatively act to deny each petitioner's parole. Moreover, the record includes much evidence on the criteria used by Sava in making parole decisions and his conclusion that none of these eight petitioners met those criteria. The record here thus permits no conclusion other than that Sava did exercise his discretion, although perhaps partly on the basis of "generalizations."

The District Court did not rest its judgment exclusively on its finding that Sava had failed to exercise any of the discretion delegated to him by the Attorney General. Assuming arguendo that Sava had exercised some discretion, the court reviewed Sava's decisions under principles and evidentiary standards borrowed from domestic discrimination cases arising under the Fifth and Fourteenth Amendments to the Constitution. It concluded that Sava had unlawfully discriminated against the petitioners on the basis of race or national origin, thereby abusing his discretion. In reaching this conclusion, however, the court improperly substituted its judgment for that of the INS District Director on the criteria or factors to be used for deciding whether an alien poses a risk of absconding if paroled; it then undertook a broad-ranging comparative analysis of the eight petitioners and other unadmitted aliens upon whose parole applications Sava had passed. Had the court not substituted its judgment for that of Sava on the relevant parole criteria, its comparative analysis might have shown that the petitioners were not the victims of any invidious discrimination. Accordingly, we reverse the judgment of the District Court and remand the cause for further proceedings.

At the January 1982 evidentiary hearing, the Government set forth the criteria used to evaluate the risk of absconding of applicants for parole. The first criterion the Government claimed to employ in making decisions on parole applications is an alien's "documentation." An alien is said to be minimally documented, in the Government's view, "to the extent that (he has a) passport (,)" because, to obtain a passport the alien would "have been through a prior screening process(.)" The quality of an alien's documentation is substantially enhanced, according to the Government, if he has a visa issued by an American consulate abroad because an American consular screening process is a necessary condition for the issuance of a visa.

The second criterion the Government claimed to consider in making decisions on the risk of absconding is the likelihood of success of the alien's political asylum application-in Sava's words, "(H)ow much chance does (an alien's) application (for asylum) have of flying?"

The third criterion upon which the Government assertedly relied in deciding whether an applicant for parole posed a risk of absconding is whether the alien has a family member residing in this country who can confer an "immigration benefit" on him, such as a preferred entrance status. See 8 U.S.C. § 1154(a) and 8 C.F.R. §§ 204.1 et seq.

Finally, the Government claimed that it considered also several other factors in passing on parole requests by an unadmitted alien. These include the alien's prior immigration history (which might show whether he has complied with our laws when previously given the opportunity to do so); the alien's ability to sustain himself financially while on parole; sponsorship of the alien, if any, by a family member or an organization; and the ability of an alien to have bond posted on his behalf.

Although it had no burden on the matter, the Government presented evidence (most of which was undisputed) on how those criteria applied to the petitioners and other unadmitted aliens. It also offered evidence regarding its experience in paroling unadmitted Haitian aliens who had in recent years arrived under circumstances comparable to the petitioners.14 Much of this evidence tended to indicate that the petitioners were quite different, in relevant respects, from the other, non-Haitian aliens over whose parole applications Sava had passed.15

Notwithstanding this evidence, the District Court found that the eight petitioners did not present any greater risk of absconding than did the twelve non-Haitians who were found to have no compelling humanitarian reasons justifying their parole. 535 F. Supp. at 1013; see notes 7 and 15, supra. The court reached this conclusion by substituting its judgment for that of Sava in deciding what criteria were relevant to determine whether a parole applicant presented a significant risk of absconding. While noting the factors articulated by the Government at the January 1982 hearing, the court discounted all of the differences between the two groups of applicants and concluded that in all relevant respects they were "indistinguishable." 535 F. Supp. at 1013.

The court recognized that "(a)n alien's documentation is important (in estimating) the absconding threat insofar as documented aliens have been through a screening process at a United States consular office abroad and have their identities and histories examined and verified," thereby crediting the Government's evidence concerning the importance of documentation. Id. at 1008. It concluded, however, that Sava rigidly categorized aliens as either "documented" or "undocumented" depending upon whether they had been through U.S. consular screening for a visa. See id. at 1008-09, 1012 & n.15. Noting that under this definition of "documented" the eight Haitians and most of the non-Haitians were "undocumented," the court concluded that with respect to this criterion the petitioners were indistinguishable from the non-Haitians.

The court's finding of rigid categorization is clearly erroneous. Sava testified that while he valued a U. S.-issued visa, he also gave weight to an applicant's lesser documentation. See Joint Appendix at 778, 781. Thus it was improper for the court to fail to consider the distinctions between the eight Haitians and the twelve non-Haitians in the degree to which they were documented. Moreover, the court found that the INS had "detailed information about each petitioner" from his own sworn statement contained in his political asylum application and that this self-generated information made the petitioner's lack of documentation virtually irrelevant. 535 F. Supp. at 1015. Had the court not substituted its judgment for that of Sava in determining the nature and importance of the documentation criterion, it might have concluded, on the basis of the record before it, that the petitioners were indeed different from the twelve non-Haitians in this respect.

The District Court recognized also that a second criterion relevant to parole decisions is the "likelihood that (an alien's) immigration application will meet with success," and it thus credited the Government's view of the significance of this criterion. Id. at 1009. It concluded, however, that the likelihood of a successful claim of asylum was not relevant in this case because Sava had stated that petitioners' applications were "serious" and "non-skeletal," id. at 1014; the court thereby implicitly suggested that the test of "seriousness" is synonymous with the question of whether an asylum application is or is not "skeletal." There is no support in the record for this conclusion. Sava did state that the petitioner's applications were not merely "skeletal." However, he never equated (the trial court's suggestions to the contrary notwithstanding) "non-skeletal" applications for asylum with "serious" applications, nor did he indicate that "non-skeletal" applications were sufficiently likely to succeed so as to minimize the risk of absconding. By adopting an unsupported interpretation of one of the Government's stated criteria for deciding parole requests, the court again improperly substituted its own judgment for Sava's judgment. In doing so, it arguably accorded too little weight to the petitioners' asylum applications; the court itself expressly found that Sava's finding that the petitioners were "unlikely to succeed(,)" id. at 1012, "seem(s) to be uncontradicted by the files." Id. at 1013.

The court also addressed the third criterion considered by the INS-whether the alien in question might derive from a family member, in the near future, an "immigration benefit." The court concluded that if an alien's relative is not currently in a position to confer such a benefit, or has not yet acted to confer a benefit, the alien is in no better position than an alien who has no relatives at all in the United States. Id. at 1016, n.26. The court discounted the Government's position that the alien was less likely to abscond if he had a relative in the United States who could, in time, pass such a benefit to an alien. If the court had applied the criterion as articulated by Sava, the uncontradicted evidence would have revealed that none of the eight petitioners had any relatives in the United States who are, or in the near future will be, in a position to confer upon them an "immigration benefit." On the other hand, it appears that two of the twelve non-Haitian parolees may have had relatives who will in the near future be able to confer on them an "immigration benefit" and another non-Haitian parolee may have had a relative who is now able to confer a benefit on him.

The District Court considered also another factor noted by the Government in addressing the risk of absconding presented by parole applicants-the identity of the alien's proposed sponsor. The Government presented evidence to support its preference that unadmitted aliens seeking parole obtain sponsorship from members of their family who reside in the United States rather than from large institutions or organizations. In the Government's view, it is easier to keep "track" of aliens whose sponsors are family members because family members generally have only one person to supervise and are more likely to feel personally responsible to keep "track" of the whereabouts of their paroled relative. Accordingly, the Government considers aliens who have family sponsors to present less of a risk of absconding than do aliens who are sponsored by large institutions or organizations. The trial court recognized that this was the Government's judgment on the matter but concluded that the Government's judgment was in error. Id. at 1009. In the court's view, large organizations "appear better structured than individual families" to act as sponsors. Id. The court's adoption of its own policy preference may have made the petitioners appear to be less likely to abscond than if the Government's criterion had been applied.

A review of the record convinces us that on several occasions the trial court improperly substituted its own judgment and policy preferences for those of Sava, thereby effectively distorting the case-by-case analysis of the likelihood that each of the petitioners would abscond if paroled and distorting also the comparison of the petitioners with the twelve non-Haitian parolees. Sava's stated criteria were neither irrational nor unreasonable.16 The court was not empowered to disregard them or to substitute its own policy preferences for those of the official vested by law with discretionary authority to act on requests for parole. See Johns v. Department of Justice, 653 F.2d 884, 891 (5th Cir. 1981); 2 Gordon and Rosenfield § 8.14 at 8-121.

The court's finding that the petitioners were "indistinguishable" from the twelve non-Haitians with whom the court chose to compare them was the result of its improper substitution of its judgment for that of Sava and therefore is fatally flawed. The finding that the two groups were "indistinguishable" constitutes an essential feature of the conclusion that Sava's decisions on the petitioners' parole requests were not legitimate and bona fide or were the product of invidious discrimination on the basis of race or national origin. Consequently, the petitioners cannot be said to have overcome the presumptive legitimacy of the Government's discretionary decisions.17

The District Court relied upon the Protocol, to which the United States is a party,18 as an additional basis for its holding that Sava had abused his discretion. It did so without deciding whether the Protocol is a "self-executing" international agreement which directly accords rights to persons without the benefit of Congressional legislation implementing the international obligations embodied in the instrument. See generally, L. Henkin, Foreign Affairs and the Constitution 156-164 (1972); Restatement, Second, Foreign Relations Law of the United States § 141 (1965).

The leading case on the Protocol concluded that "(t)he history of the adoption of the Protocol by this country makes clear that all the individuals and institutions involved in that process had a continuing belief that the (Protocol) would not alter or enlarge the effect of existing immigration laws, chiefly because it was felt that our immigration laws already embodied the principles of the (Protocol)." Ming v. Marks, 367 F. Supp. 673, 677 (S.D.N.Y.1973), aff'd on opinion below, 505 F.2d 1170, 1172 (2d Cir. 1974) (per curiam), cert. denied, 421 U.S. 911, 95 S. Ct. 1564, 43 L. Ed. 2d 776 (1975); see also Pierre v. United States, supra, 547 F.2d at 1288-1290 (rejecting the contention of unadmitted Haitian aliens seeking parole "that the Protocol invests them with a liberty right protectable by due process or other constitutional protections," and noting "the intent of Congress in acceding to the Protocol to leave existing immigration procedures intact"). To the extent that the Protocol "(does) not alter or enlarge the effect of existing immigration law," we are required to conclude, for the reasons noted above, that the judgment of the District Court must be reversed.

Only recently we noted Ming v. Marks, supra, in a case which concluded that the Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 102, had brought "the (domestic law) definition of refugee ... into compliance with the Protocol (,)" Stevic v. Sava, 678 F.2d 401, 406, 408 (2d Cir. 1982), by changing the domestic law standard governing applications for political asylum. In Stevic, we noted that "Article 33 of the Convention imposes an absolute obligation upon the United States" requiring that domestic law "standards developed in an era of discretionary authority (be adjusted,)" id. at 406-407, and that "Congress left no ambiguity about its intention to conform United States domestic law to the Protocol." Id. at 409. We also observed a "suggestion" of a "lack of identity" between actual domestic legal practice "and what should be expected after accession to the Protocol(.)" Id. at 406. In concluding that the Refugee Act of 1980 was designed, at least in part, to bring the United States into compliance with the Protocol, we indicated that the Protocol's provisions were not themselves a source of rights under our law unless and until Congress implemented them by appropriate legislation.

Accordingly, under the circumstances presented here, the Protocol affords the petitioners no rights beyond those they have under our domestic law.

The Forty-Five Additional Petitioners: The Motion to Amend,

Motion For Class Certification and the Motion for

In its opinion of April 5, 1982, the District Court granted the motion of the eight petitioners to amend the petition to add class action allegations covering all other Haitians then detained at the SPC and a motion to certify a class of fifty-three persons as defined in the amended petition. It also granted, on the basis of its March 5, 1982 ruling with respect to the original eight petitioners, a motion for summary judgment in behalf of the newly certified class.

We find no error in the ruling on the motion to amend or on the motion to certify a class of "all Haitian aliens transferred from INS's Krome facility to the SPC on July 18, 1981, who have requested political asylum and parole, but have remained in respondent's custody."

In granting the motion for summary judgment, the court relied on its March 5, 1981 ruling to hold that "the (forty-five) new petitioners are indistinguishable from the original eight" who were the subject of evidentiary hearings and concluded that the forty-five "(were) thus deserving of summary judgment." Inasmuch as we have concluded that the court erred in holding in favor of the original eight petitioners, that holding cannot support the entry of summary judgment in favor of the forty-five additional members of the newly-certified class. However, because the court found that the forty-five new class members are indistinguishable from the original eight petitioners, we leave undisturbed the District Court's certification of the class, without prejudice to its being reopened upon remand in light of the principles set forth herein for guidance of the District Court.

Ordinarily we would reverse and remand the case to the District Court for further proceedings consistent with our decision. However, we have been advised that there have been changes in some of the circumstances bearing directly on whether parole should now be granted, regardless of the INS District Director's past decisions. For instance, orders have apparently been entered denying all petitioners' applications for political asylum and directing that they be deported, subject to appeal to the BIA. In addition, new guidelines have been issued by the INS with respect to the parole of unadmitted aliens. Joint Appendix at 1490-92; letter of June 11, 1982 from Government enclosing Attorney General's memorandum of same date. Since the Attorney General's exercise of discretion, like a court's decision to grant bail in a criminal case, may be affected by a change in current circumstances, it is appropriate that the INS District Director be given the opportunity to reexercise that discretion (which is his and not that of the District Court) in light of all of the present relevant circumstances. Moreover, since the case must be remanded, the INS District Director should not be precluded, in the reexercise of his discretion, from taking into consideration the factors referred to in his March 15, 1982 affidavit, which were not introduced until after the District Court's March 5, 1982 decision.

Accordingly, the judgment of the District Court is reversed and the case is remanded with directions to permit the INS District Director to reexercise his discretion in accordance with the foregoing, which may then, upon petitioners' application, be reviewed by the District Court in accordance with the principles set forth in this decision.

I concur in the result and in the reasoning of the majority opinion, although I have a somewhat different perception as to the details of some of the district court's analysis. Whereas the majority views the district court as having improperly substituted its own judgment and policies for those of District Director Sava "on several occasions," it appears to me that on some of the occasions referred to the district court was merely making credibility evaluations. Thus, in reviewing some of the factors outlined by Sava as to the likelihood of abscondence, the district court was making an effort to determine whether these were bona fide factors in Sava's own conclusion. This emerged most clearly in the matter of Sava's inclusion of State Department action or inaction as a pertinent factor, which the district court found "disingenuous", 535 F. Supp. at 1014, and in the discussion of documentation in which the court referred to one feature as "the most incredible aspect of Sava's testimony,"1 id. at 1012 n.15.

To the extent that the district court was making credibility assessments, its review was consistent with the strictures of Kleindienst v. Mandel, 408 U.S. 753, 92 S. Ct. 2576, 33 L. Ed. 2d 683 (1972). But I agree with the majority that with regard to at least one of Sava's factors-i.e., the preferability of family sponsorship over group sponsorship-the district court did indeed substitute its own judgment and its own weighing of the relevant considerations for those of the District Director; and as to certain other factors, it is not clear from the opinion whether the district court was engaging in an impermissible reevaluation or a permissible assessment of credibility.

Since it is clear that at least to some extent the district court impermissibly substituted its judgment for those of Sava and that these substitutions were essential to the court's conclusion that the 8 Haitians were indistinguishable from the 12 non-Haitians, and thus to the finding of impermissible discrimination, I agree with the majority that the case must be remanded. In that a remand is required, I concur in the remand to the District Director for a fresh evaluation of the parole applications in light of the current circumstances.