This suit is before us on appeal from an order releasing over one thousand Haitian immigrants held in detention by the United States Government. The government detained the Haitians as part of a stringent immigration program that followed on the heels of the massive Cuban migration during the Mariel boatlift of 1980. Pursuant to the new policy Haitians were detained in camps or prisons pending a final determination of their right to remain in this country, a process that took months, or in some cases over a year.

This is a complicated case. The issues presented are complex. And, it is an involved case. The record on appeal is voluminous. It is a delicate matter as well: the court below noted the extensive publicity this case has received, and the strong feelings with which it is regarded by either side.

The judgment of the court below ordered the release of the detained Haitian immigrants. The district court's opinion stressed one basic principle: although the Executive, in concert with Congress, has wide authority to act to protect our borders, the governing branches must nonetheless act within the letter of the law. Despite our differences with the district court as to many of the individual bases for decision, as well as some particulars of the relief afforded, we concur in the judgment freeing the Haitians, and in that underlying rationale.

During the week of June 1-5, 1981 the Immigration and Naturalization Service ("INS") held mass "exclusion" hearings for Haitian immigrants to determine whether they were admissible to this country, or should be deported. Many hearings were held behind locked doors in courtrooms from which counsel attempting to inform the Haitians of their rights were barred. Overwhelming evidence established that Creole translators were so inadequate that Haitians could not understand the proceedings nor be informed of their rights. Pursuant to these faulty hearings many Haitians were adjudged excludable from this country, and were subject to deportation.1

Although exclusion and the procedures by which exclusion occurred provided initial impetus for this action the issue of detention too was significant. Pursuant to Administration policy many Haitian immigrants were held in detention camps prior to a determination of excludability. Because of procedural difficulties, and the unwillingness of the government to parole those incarcerated, detention frequently continued for months; in some cases for over a year. In response to this situation the Haitian Refugee Center ("HRC") filed this cause in the United States District Court for the Southern District of Florida. Originally filed as a petition for habeas corpus on behalf of those unlawfully excluded from this country, the complaint was subsequently amended to request class certification allowing named plaintiffs to sue on behalf of themselves and a class of Haitian refugees similarly situated. Alleging seven grounds for relief, inter alia discrimination in enforcement of Administration policy and rulemaking in contravention of required administrative procedure, plaintiffs sought declaratory relief as to the validity of their claims as well as an injunction against enforcement of the Administration's policy mandating such proceedings and detention. Plaintiffs also sought a stay of deportation for any Haitian excluded pursuant to the challenged procedures and a stay of exclusion hearings for Haitians unrepresented by counsel. Hearings commenced shortly thereafter on preliminary injunctive relief.

On September 30, 1981, in a strongly worded opinion, the district court certified the class. The court found the INS was playing "a human shell game" with the Haitians, moving them around the country to desolate areas without available counsel or communication facilities. The court further found faulty the INS proceedings whereby eleven Haitians were deported; these proceedings included mass hearings, behind closed doors, without counsel or adequate translators. Louis v. Meissner, 530 F.Supp. 924, 926-28 (S.D.Fla.1981) ["Louis I" ]. The court therefore enjoined deportation of, and further exclusion hearings for, class members unrepresented by counsel. The government chose not to appeal the preliminary injunction and requested an immediate trial.

On February 24, 1982, the district court dismissed four of the seven claims in the original complaint on jurisdictional grounds.2 Louis v. Meissner, 532 F.Supp. 881 (S.D.Fla.1982) ["Louis II "]. That dismissal, which eliminated many procedural issues, brought to the fore the question of detention. On March 15, 1982, a six-week trial commenced. Three general issues were tried: a claim that the Administration implemented its new immigration policy in violation of the Administrative Procedure Act ["APA"] by failing to engage in notice and comment rulemaking; a claim that the immigration policy was enforced against the Haitians in a discriminatory manner, contravening their fifth amendment equal protection rights, and an issue of first amendment access rights among the Haitians, their attorneys, family and friends.

In a memorandum opinion dated June 18, 1982, Louis v. Nelson, 544 F.Supp. 973 (S.D.Fla.) [hereinafter "Louis III "], Judge Spellman determined that the government had violated the Administrative Procedure Act; consequently he held the detention policy "null and void" and reinstated a prior policy of parole, one he determined "is in full force and effect." Pursuant to the prior policy the court ordered the release of all class members. It further held the plaintiffs had failed to prove their discrimination claim. Finally, the court declined to rule on the access claim, ostensibly because the issue was mooted by the release order.

Following the government's submission of a notice of intention to engage in rulemaking the district court granted a partial stay, the effect of which was to permit detention of aliens who arrived between the date the final judgment was entered and the date the new rules for detention were promulgated. The government appealed the judgment as to rulemaking; plaintiffs cross-appealed the discrimination and access issues, as well as the jurisdictional dismissal of the procedural claims. On July 13, 1982, this court denied the government's emergency motion for a stay pending appeal.

Haitians first began to appear on our shores in numbers in the early 1970's. Often travelling in small boats barely suited to ocean travel, the Haitians came to America seeking relief from economic oppression, as the government would have it, or to escape political oppression, as plaintiffs assert. By 1981, when the government action giving rise to this lawsuit began, the number of undocumented Haitians living in the south Florida area was estimated at thirty-five thousand.3

Although the decade-long influx of undocumented immigrants from the Caribbean basin to south Florida presaged the end of the Administration's permissive attitude toward illegal immigration, an influx in which the Haitians participated, it was the arrival of Cuban immigrants that had the greatest impact. In the spring of 1980 the Mariel boatlift or "Freedom Flotilla" brought some 125,000 Cubans to our shores in a number of weeks. Louis III, 544 F.Supp. at 978. In response to this sudden, massive immigration, President Carter appointed a Select Committee on Immigration to examine the country's immigration woes. That committee issued a report in February, 1981 finding that an "immigration crisis" existed in this country. Louis III at 979. The "crisis" passed unresolved to the new Administration and in March 1981 President Reagan appointed a special task force to consider solutions. This body included the Secretaries of State, Defense, Transportation, Labor, Commerce, Health and Human Services, and the Director of the Office of Management and Budget. Id.

The task force examined several immigration problems, one of which was the number of undocumented aliens unlawfully in this country. Figures gathered by the task force indicated some three to six million aliens had settled here in violation of immigration laws. This massive body, living in constant fear of deportation, oftentimes was exploited by unscrupulous employers. Rather than attempt to apprehend these millions of immigrants, however, the Administration determined to offer a general amnesty to undocumented aliens in this country since 1978. Acting upon a task force recommendation the Administration proposed a special immigrant status to these illegal aliens. See 40 Cong. Q. Weekly Report 3097-98 (1982) (S.2222 & H.R. 7357, neither of which has yet been enacted into law, contain "amnesty" provision).

The problem of the continuing influx into Florida remained. In fact, some task force members feared the amnesty program would trigger increased efforts by aliens to immigrate unlawfully, falsify their date of arrival, and claim entitlement to the amnesty status. The task force report proposed several solutions to the problems of unlawful immigration, therefore, including sanctions against those who employ illegal aliens, and amendment of the criminal laws regarding the rendering of assistance to aliens wishing to immigrate.

One particular recommendation adopted by the Administration as part of its new immigration policy gave rise to this suit. As part of the crackdown on unlawful immigration the task force recommended detaining aliens without parole pending a determination of their right to enter the country. The government had not resorted to widespread detention of undocumented aliens since 1954.

This section bridges the gap between a recommendation of detention and implementation of that policy. In the first part we discuss briefly the constitutional and statutory authority of the political branches over immigration matters, concluding that a policy of detention is within such authority and that Congress may delegate responsibility for detention decisions to the Executive branch. In the second part we review the rights of the Haitian immigrants as "excludable aliens" under the immigration laws, and conclude that although their rights are few, they are entitled to those rights explicitly granted by Congress. Finally, we review the statutory mechanism that grants the Attorney General authority to implement the recommendations of the task force.

We proceed to establish three essential points: (1) that the authority of the political branches over immigration matters and aliens is plenary and knows few bounds, (2) that Congress may, and has chosen to, delegate wide discretionary authority to the Executive to administer immigration matters, and (3) that the Executive's authority is limited by the statutory grant of Congress.

Although the Constitution fails to delegate specifically the power over immigration, the Supreme Court recognized almost a century ago that the political branches have plenary authority over immigration matters as an inherent concomitant of national sovereignty. Mahler v. Eby, 264 U.S. 32, 41, 44 S.Ct. 283, 287, 68 L.Ed. 549, 555 (1924); Ekiu v. United States, 142 U.S. 651, 659, 12 S.Ct. 336, 338, 35 L.Ed. 1146, 1149 (1892); Chae Chan Ping v. United States, 130 U.S. 581, 604, 9 S.Ct. 623, 629, 32 L.Ed. 1068, 1075 (1889) ["the Chinese Exclusion Case"]. Protection of the national borders is within the authority of the national government, inferred from the enumerated foreign commerce, treaty, war, and naturalization powers. The Chinese Exclusion Case, 130 U.S. at 604, 9 S.Ct. at 629, 32 L.Ed. at 1075. See generally Gordon & Rosenfeld, Immigration Law and Procedure § 1.5a (rev. 1982) [hereinafter "Gordon"]. Authority over the national borders encompasses all immigration matters, including exclusion of aliens. Gordon § 1.5a.

Congress and the Executive branch share the immigration power. Ekiu, 142 U.S. at 659, 12 S.Ct. at 338, 35 L.Ed. at 1149. It may be exercised by the Executive and the Senate through the execution of treaties, id., through the legislative powers of Congress, id.; United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317, 324 (1950), and in part by the Executive branch acting alone, as a function of its plenary authority over foreign relations. Knauff v. Shaughnessy, 338 U.S. at 542, 70 S.Ct. at 312, 94 L.Ed. at 324; cf. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936). "Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the Executive department of the sovereign, Congress may in broad terms authorize the Executive to exercise the power, ...." Knauff v. Shaughnessy, 338 U.S. at 542, 70 S.Ct. at 312, 94 L.Ed. at 324.

Congress traditionally exercises authority over matters of immigration and exclusion through passage of immigration legislation. See generally Gordon § 1.2d-1.4g (detailing history of immigration laws). The most recent comprehensive piece of such legislation is the Immigration and Naturalization Act of 1952 as amended and codified at 8 U.S.C. [hereinafter "the 1952 Act"]. The 1952 Act is the primary focus of this suit; through this vehicle Congress transferred great authority over immigration to the Executive branch, the principal actor being the Attorney General. Section 1103(a) of the Act provides:

The Attorney General shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as [power is delegated to other actors] ....

The Act further provides: "[t]hat determination and ruling by the Attorney General with respect to all questions of law [under the Act] shall be controlling." Id. The Attorney General is given authority to delegate his powers under the Act to other employees of the Immigration and Naturalization Service or the Department of Justice. Id.

The Act vests in the Attorney General enormous statutory and discretionary authority over the procedures and policies of immigration. See 8 U.S.C. § 1103 (powers and duties of the Attorney General and Commissioner) (rulings of Attorney General controlling on questions of law; has control over employees of Service; may delegate any duties in his discretion; prescribes regulations, forms and bond; controls borders and appoints employees in his discretion for that purpose). This grant of discretionary authority ranks among the broadest of delegations by Congress to a government officer. Cf. K. Davis, Administrative Law Treatise § 8.10 (2d ed. 1979) [hereinafter "Davis"] (1952 Act replete with provisions allowing Attorney General to, in his discretion, take action concerning an alien). The authority further is delegated from the Attorney General to the Commissioner of the INS, as well as to regional and district directors. Id. Gordon § 1.7b. Even on the lowest rungs of the immigration service decisionmaking discretion is exercised in the name of the Attorney General.4 See Davis § 8.10 (Attorney General's discretion exercised by the seven thousand employees of INS); Gordon § 1.7b (Attorney General may delegate any of his powers or duties to any officer or employee of INS).

Although the wide Congressional grants of discretionary authority embodied in the 1952 Act are permissible in the face of the inherent Executive function to manage foreign affairs, see supra, the Executive's ability to act in the absence of a Congressional grant of authority is limited. Mahler v. Eby, 264 U.S. 32, 45, 44 S.Ct. 283, 288, 68 L.Ed. 549, 557 (1924); cf. Knauff v. Shaughnessy, 338 U.S. at 542, 70 S.Ct. at 312, 94 L.Ed. at 324 (executive officers may be entrusted in broad terms to carry out Congressional intent). However, the joint authority of Congress and the Executive over immigration, and particularly over aliens seeking admission to this country, is extremely broad. Gordon § 1.5a; Knauff v. Shaughnessy, 338 U.S. at 542-44, 70 S.Ct. at 312-13, 94 L.Ed. at 324-35.

Legal "rights" of an alien vary with his "status" under the 1952 Act. The determinative factor is whether the alien has effected an "entry" into this country. Leng May Ma v. Barber, 357 U.S. 185, 188, 78 S.Ct. 1072, 1074, 2 L.Ed.2d 1246, 1248-49 (1958) (law distinguishes between aliens on border seeking to enter and aliens in country, whether legally or not); Barber v. Gonzales, 347 U.S. 637, 640, 74 S.Ct. 822, 824, 98 L.Ed. 1009, 1012-13 (1954) (whether individual is deportable depends on "entry" status under Act). Compare 8 U.S.C. §§ 1221-1230 (rights of aliens seeking to enter) with 8 U.S.C. §§ 1251-54 (rights of aliens in deportation). As a general rule aliens who have effected an entry, whether lawfully or not, are accorded the full panoply of traditional due process rights. See Shaughnessy v. United States ex rel Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956, 963 (1953) [hereinafter "Mezei"]. As a function of plenary Congressional authority, however, aliens seeking to enter this country, as opposed to those who have entered, find much less process due an adjudication of their right of entry.5

In several cases decided in the early 1950's the Supreme Court emphasized the limited rights of an alien seeking entry. See Mezei, supra, 345 U.S. at 212, 73 S.Ct. at 629, 97 L.Ed. at 963; Knauff v. Shaughnessy, supra, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950). In Mezei the Court held that an alien's constitutional and statutory rights were not violated when he was excluded from the United States upon order of the Attorney General for security reasons without a hearing or disclosure of evidence, even when that exclusion resulted in indefinite detention on Ellis Island because all efforts to deport him had failed. The Court noted that an alien who has effected entry is entitled to proceedings conforming to traditional due process. "But an alien on the threshold of initial entry stands on a different footing: 'Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.' " (citation omitted).

Congress has not left the excludable alien without rights, however. In the 1952 Act Congress provides a process for determination of an alien's claim of admission; although limited that process affords the alien certain traditional due process protections. An alien seeking entry is entitled to a determination of the validity of his claim in an exclusion hearing before an immigration judge (equivalent to an administrative law judge). At the hearing an alien has the right to be confronted with, and combat, the evidence against him, to examine and cross-examine witnesses, and to present evidence. See generally 8 C.F.R. § 236.2 (hearing procedures); Gordon § 3.19a & b (same). Further, should the immigration judge decide the alien is not entitled to entry, that decision may be appealed to the Board of Immigration Appeals acting as surrogate for the Attorney General, 8 U.S.C. § 1226(b); 8 C.F.R. § 236.7, and finally the alien may challenge the order of deportation in the appropriate United States District Court by way of a writ of habeas corpus, 8 U.S.C. § 1105a(b).

Accompanying the statutory right to an exclusion proceeding are several incidental statutory entitlements. For example, any alien arriving at our shores may file an application for asylum with the district director or the immigration judge. 8 C.F.R. § 208.3. Although a number of practices incidental to the exclusion hearing are here challenged, one particular concomitant power--the parole power of the Attorney General--provides the primary basis for this litigation.

Because entry status is determinative of the procedure afforded an alien, aliens not clearly admissible are detained "at the border" by INS pending an exclusion hearing. 8 U.S.C. § 1225(b). This detention permits maintenance of the "no entry" status. Section 1225(b) provides in pertinent part:

Every 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.

(emphasis supplied). Parole is a means, however, of allowing an alien into the country temporarily pending determination of admissibility in an exclusion hearing, without destroying the fiction of "no entry" status. To this effect 8 U.S.C. § 1182(d)(5)(A) provides in pertinent part:

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 ....

(emphasis supplied).

Exercise of the parole authority has varied. Prior to 1954 parole was rarely granted. After 1954, until the present time, however, this country maintained a policy of ready parole of aliens seeking entry into the country. As a result of the new policy announced by the Administration in 1981 the exercise of parole power has tightened again. See infra at 1468-1469 (discussion of old policy).

Although the statutory scheme provides for detention and parole, enforcement of the statute has varied widely since its enactment, depending upon the "policy" of the current Administration. The policy here at issue, adopted as a result of the recommendations of the Task Force on Immigration, was announced in July of 1981 and inaugurated the Reagan Administration's program to "enforce" the immigration laws in order to gain control over the influx of undocumented immigrants. Count II of plaintiffs' complaint alleged the Administration initiated its policy without following procedures mandated by the Administrative Procedure Act. Count VII alleged discriminatory application of the policy.

Yet, after weeks of trial and pages of exhibits and testimony, no clear picture of the entire policy emerged. It is apparent the policy requires strict adherence to the "detention" language of § 235 of the 1952 Act, 8 U.S.C. § 1225(b), and a concomitant tightening of the discretionary parole authority in § 212 of the 1952 Act, 8 U.S.C. § 1182(d)(5)(A). Any further effort to define the policy, however, is futile on the basis of the record before us. Whenever plaintiffs offered a document purporting to establish the policy the government denied its relevance, no doubt because the document inevitably was captioned "Haitian Program," which would constitute irresistible proof of discriminatory motive. Whenever the government witnesses sought to explain the policy the plaintiffs demurred on the ground it was nowhere in writing. No witnesses described the "policy" similarly. See Louis III at 981, n. 22.

The resolution of this action requires an understanding of what the evidence at trial showed, or failed to show, about the policy. The district court made extensive findings, no simple task given the state of the evidence. We have reviewed those findings and carefully examined the evidence in order to determine whether that evidence supports the conclusions of the court below. Although we are in substantial agreement with the district court, which noted the failings of the evidence, we believe the court did not always apply its factual determinations in a consistent manner. In order to explain cogently where we agree and differ with the court below, we set out in full our understanding of what the evidence did, and did not, support in regard to the government's policy.

Parole of aliens pending an exclusion hearing is a relatively recent phenomenon. Prior to 1954 it was INS policy to detain almost all aliens at the port of entry pending a determination of their admissibility. Gordon testimony, 38 Tr. 115, 123 et seq; 32 Int.Rel. No. 12 (March 27, 1955).6 Large detention centers existed for this purpose at San Francisco, California and Ellis Island, New York. In 1954, however, the new Commissioner of the INS, General Swing, decided that this policy of mass detention was inhumane and unnecessary. General Swing consulted with the Attorney General, and they determined to close Ellis Island. At that time the policy changed, and aliens were paroled freely into the United States pending a determination of admissibility. There were two exceptions to the rule of general parole: when there was a likelihood of the alien absconding, and when the alien's "freedom of movement could be adverse to the national security or the public safety." 32 Int.Rel. No. 12 (March 22, 1954). The parole policy was flexible in that reasonable restrictions could be imposed by INS to insure availability of the alien. Id.; see also Leng May Ma v. Barber, 357 U.S. at 190, 78 S.Ct. at 1075, 2 L.Ed.2d at 1250 (physical detention now exception not rule).

The 1954 closure of the Ellis Island immigration center was accompanied by announcements that detention of undocumented aliens in exclusion was to cease, except in "but a few cases" where the alien was deemed "likely to abscond or those whose freedom of movement could be adverse to the national security or the public safety." See Address of the Attorney General, Nov. 11, 1954, reported in 32 Int.Rel. No. 12, "New Detention Policy of the Immigration and Naturalization Service." The Attorney General acknowledged the general parole program as a change of policy. The Supreme Court haled the parole policy as one that exhibited the "humane qualities of an enlightened civilization," Leng May Ma v. Barber, 357 U.S. at 190, 78 S.Ct. at 1075, 2 L.Ed.2d at 1250.

The court below acknowledged the post-1954 general parole policy. See Louis III p. 980 n. 18. We concur in its findings in this regard. This policy (prior to the recent change established at trial), [hereinafter "old policy"], was one of general parole. Detention was rare, and limited to those aliens who were likely to abscond, or who posed a threat to the national security.

On July 30, 1981 the President of the United States issued a statement emphasizing the need to "establish control over immigration" to guarantee that foreigners are admitted to this country "in a controlled and orderly fashion." That same morning the Attorney General of the United States addressed a joint subcommittee of Congress testifying that "[w]e have lost control of our borders. We have pursued unrealistic policies. We have failed to enforce our laws effectively." Testimony of William French Smith, Attorney General, before the Senate Subcommittee on Immigration and Refugee Policy and the House Subcommittee on Immigration, Refugees, and International Law, July 31, 1981, at 1 [hereinafter "French Testimony"]. Accordingly, the Attorney General announced the Administration's comprehensive plan to combat the country's immigration problems. Part of this program was a return to a policy of detention of undocumented aliens.

At trial, Administration officials could not agree on whether the policy actually changed following the President's pronouncement. Alan C. Nelson, former Deputy Commissioner, INS, who became Commissioner in January of 1982, maintained that no change in policy had occurred. Rather, increased "enforcement" of the detention statute resulted from the acquisition of detention space. Nelson stated: "plaintiffs' claim that INS has recently changed its detention policy by restricting the use of parole is not founded upon or supported by any change in the applicable statute or regulations." Plaintiff's exhibit ["Px"] 71C (Declaration of Alan C. Nelson, and accompanying affidavit). Joe Howerton, the District Director of INS District VI in Miami also claimed the shift to detention was based only on the increased availability of detention space. 48 Tr. 2186. He disclaimed knowledge of, and testified he never received notice of, a change in policy following the President's announcement on July 30, 1981. Id. at 2211.7

Despite the above testimony to the contrary, the evidence clearly indicates that the Administration viewed its announcement on July 31, 1981 as a change in direction of immigration policy. On the same day the President issued his statement both the Attorney General of the United States, William French Smith, and the then Commissioner of the INS, Doris Meissner, testified before Congressional committees. Smith, on behalf of the Administration, proposed a legislative package to reform many immigration laws. One specific request was for $35 million for increased detention space "to detain temporarily illegal aliens upon arrival pending exclusion or granting of asylum." French Testimony at 12. Detention was necessary as part of a program to "deter the continuing arrival of illegal undocumented aliens to our shores." Meissner described the litany of evils that led to the current immigration problem, then explained the new policy: "[t]herefore, in the future, undocumented aliens ... will be placed in administrative detention pending the determination of their admissibility." Testimony of Doris M. Meissner, Commissioner, INS, before the Senate Committee on the Judiciary, Subcommittee on Immigration & Refugee Policy, July 31, 1981, at 2, 9 [hereinafter "Meissner Testimony"]. When deposed for this action Ms. Meissner was asked "[b]ut, it is your testimony if I understand it, that there was a change in policy and practice as of July 31, 1981," to which she replied, "[t]hat is right." Deposition of Doris Meissner, September 1, 1981 [hereinafter Meissner Dep.] at 7.

The district court reviewed this evidence and determined there had been a change in policy. It stated that "on July 31, 1981, the President issued a statement on the immigration policy of this nation." Louis III at 980. The district court repeatedly referred to the policy as the "new policy," and based its Administrative Procedure Act ruling on a change in policy [hereinafter "policy change"]. This finding, that there was a change in policy, is amply supported by the evidence; on July 31, 1981 the immigration policy changed from what was instituted in 1954 when Ellis Island was closed, (the "old policy") to a new program, described infra (the "new policy").

Evidence concerning the substance of the Administration's "new policy" reveals the particulars of the new policy never were developed fully. Immigration inspectors were left to exercise discretion in an unguided fashion with the result that many individuals were deprived of their liberty in an arbitrary manner.

The Administration's announcement of its new policy on July 30, 1982, was accompanied by much heraldry, but little substance. Although, the government was going to curb the waves of refugees arriving upon the shores of south Florida, it was not at all clear how this was to be accomplished within the framework of the immigration laws. The President's initial policy statement did not mention detention. He spoke of "sudden influxes of foreigners," and the need to "establish control over immigration" to ensure aliens are admitted, or not admitted, in a "controlled and orderly fashion." In this regard the President enumerated a number of "steps," none of which was detention. The statement concluded, "[t]he steps we take to further these objectives, however, must also be consistent with our values of individual privacy and freedom."

The Attorney General of the United States, charged by statute with regulation of immigration, testified before Congress on the day the President announced the new policy. Although he did mention detention, "... [t]he Administration will seek additional resources for the construction of permanent facilities in which to house undocumented aliens temporarily until their eligibility for admission can be determined," he offered no specifics as to parole. His only guideline was evenhanded treatment. "By treating those who arrive by sea in the same way we have long treated those who arrive over our land borders, our policy will be evenhanded, and we can avoid the severe community disruptions that result from large-scale migrations." French Testimony at 15.8

Three highly placed Administration officials gave insight into the specifics of the new policy. Doris Meissner, the former Commissioner of the INS testified before Congress, and was deposed for this action. Rudolph W. Guiliani, Associate Attorney General, the third ranking official at the Department of Justice, bearing primary responsibility for immigration, testified at trial. Commissioner Nelson also discussed the specifics in his trial testimony. The officials contradicted one another several times, and did not agree on the substance of the policy.9

This evidence, and lack thereof, indicates the disarray with which the Administration pursued its new policy.10 The district court generally took a similar view of the facts. It stated, in a section entitled "policy change,"

Part of the new immigration program approved by the President called for more restrictive use of parole and increased use of detention. However, the Task Force's proposal in this area, and the statute on which they relied, did not indicate to those who had to administer the new policy which excludable aliens were to be detained. Justice Department and INS personnel were given the responsibility to develop the specific aspects of this plan.

The people in charge of drafting the detention guidelines were cognizant of the fact that the new policy was not applicable to all excludable aliens. INS never intended to physically incarcerate persons who complied with the prescribed procedures for admission but were excludable on minor, technical grounds such as a clerical error on their visa. The policy was designed to deal with another Mariel type situation, regardless of the nationality or number of the arriving aliens. Therefore, the guidelines for detention had to reflect the perceived characteristics such a group of aliens would have. The problem was isolating these characteristics and incorporating them into guidelines that were capable of being objectively applied in individual cases.

The President did not specify whether the development of specific detention and parole criteria was to be accomplished internally by INS or through a rulemaking procedure in which the public could participate. INS elected to do neither. They admitted to the Court that they made a conscious decision not to promulgate a rule pursuant to the Administrative Procedure Act. The evidence shows that they never seriously undertook the difficult task of drafting a set of guidelines concerning which aliens would be placed in detention. Instead, INS issued general instructions to its field officers to start detaining excludable aliens who do not establish a prima facie claim for admission.

(emphasis in original).

Defendants can point to no operating instruction, internal memorandum or other document that completely reflects the official detention policy. Consequently, the Court cannot precisely define the criteria for detention any better than the Government's witnesses articulated them. However, the general theme that emerges from the evidence is that aliens are to be detained unless and until they establish to INS' satisfaction a prima facie claim for admission. Within this framework, the District Director had no discretion to grant deferred inspection to Haitians arriving aboard non-signatory carriers without first placing them in detention.

In its determination that the new policy never was promulgated or set out in guidelines the district court was correct. That evidence amply supports that determination. In its determination that the record provided no more than a general sense of the criteria for parole and detention the court was likewise correct. The evidence shows that the new policy announced in July, 1981, was never more than a general plan because INS and the Department of Justice failed to follow through with implementing regulations or guidelines.

4. Unguided Discretion--Implementation of the Policy

The most significant and telling testimony was that dealing with the transfer of authority to those responsible for implementing the new policy. The testimony indicates no one in the chain of command from the Attorney General to the immigration officers at Krome North, where the Haitians were detained, admitted to ever receiving or giving guidance as to who should be free and who should be incarcerated.

Guiliani, the Associate Attorney General, testified that parole decisions were to be made on a case-by-case basis. 49 Tr. 2318. He declined to answer specific hypotheticals based on individual factors because he believed there should be no general rule, but a careful consideration of all the facts. Id. at 2317-2326. He did state that if the policy were being applied in a discriminatory manner, that was contrary to the intent of the Attorney General, and that the person who is doing it "should be reprimanded or dismissed, maybe." Id. at 2343.

Nelson, who followed Meissner as the Commissioner of INS, testified that district directors have primary responsibility for parole subject to general INS policy. 47 Tr. 1882. He adhered staunchly to the view that the district director, and not employees under him, should be responsible for the exercise of discretion in parole, subject to general guidelines, id. at 1968. Admitting that an Immigration Inspector might make the initial determination, Nelson nonetheless insisted:

"the basic responsibility is in the district director. Certainly he would not delegate that across the board. The person on the scene such as the inspector would obviously advise the district director on various issues which would lead to the district director's determination.

Id. at 1967. Disclaiming knowledge of any specific case, Nelson testified that if discrimination in detention and parole was occurring, "I would very promptly get personal knowledge of that allegation." Id. at 1971-72.

Joe Howerton, the District Director in Miami and thus, according to Nelson and Guiliani, ultimately responsible for Haitian parole, testified that he was familiar with the general criteria as to parole, but because parole was a matter of discretion on the part of the person granting parole, he "could not attest to [the criteria] in any individual case." 48 Tr. 2159. In his deposition he testified he had "delegated down" his authority. Howerton Dep. at 12. At trial he said he had delegated his parole authority to his assistant director Alan MacAtee, 48 Tr. 2156, then under cross-examination admitted he had to assume MacAtee had further delegated the authority to the people at the airport because MacAtee was not at the airport, and that was where parole occurred. Id. at 2157. Parole authority at Krome, where many Haitians were detained, was delegated to Mr. Leonard Rowland, and Howerton was unaware if there were further subdelegations. He did state he never received guidelines as to parole after July 30, 1981 and denied there was a policy change other than in detention space. Id. at 2180-90. As to the Presidential announcement on July 30, 1981, Howerton stated "many people continue to make announcements but that doesn't necessarily reflect a policy change." Howerton Dep. at 19.

Rowland, to whom Howerton's parole authority at Krome was delegated, was deposed prior to trial. Rowland admitted he had not personally reviewed each individual case, Rowland Dep. at 86. Nor did he ask anyone else to review each case for parole. Id. at 95. Instead, he had his employees review files to see if everything generally was in order, and assumed they would let him know if in the course of file maintenance an appropriate case for parole presented itself. Id. at 89-90.12

Although the district court did not dwell on this delegation, or lack of it, and lack of communication of the policy, Judge Spellman did note "inconsistencies between what the government witnesses said the policy was and the policy their subordinates were carrying out." These inconsistencies the court attributed to "the absence of guidelines for detention and parole." Louis III at 981 n. 24 (describing 15 year old boy in detention, separated from family in community).

In litigation that centers around a complex change in policy we find it significant that INS inspectors were authorized to perform the task of discretionary parole with a complete lack of guidance. It is clear no one knew exactly what the policy was, and no one in authority attempted to supervise the exercise of discretion under the new policy. Not surprisingly, the discretion was exercised with harsh results.

Count Two of the Haitian Refugee Center's complaint alleged the Administration's shift to the new policy was a "rule" within the meaning of § 551(4) of the Administrative Procedure Act ("APA"), and that the rule was established unlawfully because the Administration failed to comply with the procedural safeguards of 5 U.S.C. § 553(b) & (c). APA § 553 requires that an agency follow certain rulemaking procedures whenever it promulgates a "rule," unless a statutory exception to the rulemaking requirement applies. See 5 U.S.C. § 553(b)(A) & (B) (exempt rules); Guardian Federal Savings and Loan Association v. Federal Savings and Loan Insurance Corp., 589 F.2d 658, 662 (D.C.Cir.1978) [hereinafter "Guardian Federal "]. Except in those instances when "on the record" rulemaking is required by statute, 5 U.S.C. § 553(c), an agency engaging in rulemaking must follow the "notice and comment" rulemaking provisions of APA § 553(b) & (c), which require that an agency provide notice of a proposed rule in the Federal Register, and afford an opportunity for interested persons to present their views.

The court below found the new policy was a rule within the meaning of APA § 551(4), Louis III at 993, and the government conceded that the policy was instituted without employing rulemaking procedures, id. at 993. The district court therefore held invalid the new policy, and ordered a return to the old policy, under which parole generally was granted. Then, relying on the old policy, the district court ordered release of the Haitian refugees incarcerated by the federal government.

On appeal the government argues first that the policy change was not a rule. APA § 551(4) defines a rule as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy ...." The district court applied this definition to the new policy and found the change in policy was "clearly" a rule. We conclude the district court was correct; careful analysis of the APA shows the government's argument to be without merit.

The APA establishes procedures governing the conduct of administrative agencies. The structural approach of the APA is to divide all the world of administrative action into two categories; an agency either issues an "order" by "adjudication" or a "rule" by "rulemaking." Guardian Federal, supra, 589 F.2d at 663; Independent Bankers Association of Georgia v. Board of Governors of the Federal Reserve System, 516 F.2d 1206, 1215 & n. 25 (D.C.Cir.1975); see U.S. Dept. of Justice, Attorney General's Manual on the Administrative Procedure Act 12-13 (1947) [hereinafter "Attorney General's Manual"] (setting forth distinction between rulemaking and adjudication; definition of adjudication largely residual one based on rulemaking definition); id. at 126 (Appendix to Attorney General's Statement) (basic scheme of APA is to classify all administrative proceedings into two categories, rulemaking and adjudication).13 See generally Schwartz, Administrative Law 143 (1976) (APA based on fundamental dichotomy between rulemaking and adjudication).14

Given the dichotomous structure of the APA, the Administration's new policy must be a rule or an order. The district court applied the definition of a rule set forth in § 551(4) and found that the policy change fell squarely within that definition. We agree an announcement that INS will universally enforce a detention policy while limiting parole is "an agency statement of general ... applicability and future effect designed to implement, interpret, or prescribe law or policy ...," in other words, a rule. The government attacks this approach as simplistic, yet it is exactly what the Administrative Procedure Act requires.

A similar issue was before us in American Trucking Association, Inc. v. United States, 688 F.2d 1337 (11th Cir.1982), where we were asked to determine whether an action taken by the Interstate Commerce Commission (ICC) revoking all "special permission authorities"15 was a "rule" within the meaning of APA § 551(4). Although the decision to grant or withhold a special permission authority in an individual case was discretionary in the ICC and required no recourse to notice and comment procedures, in American Trucking the ICC determined it would cancel all existing permission authorities and implied it would not issue any in the future. In a carefully reasoned opinion by the Chief Judge we held:

While a decision in a particular case or cases to revoke a special permission authority would not be rulemaking, the decision to reverse a longstanding and uniform practice by revoking all outstanding authorities of a particular type and implicitly indicating that no such authorities will be issued in the future is clearly a rule.

688 F.2d at 1348 (emphasis supplied). This is the situation before us here. Although a decision to grant or deny parole in an individual case would not be rulemaking, the far-reaching policy announced by the government in this case, reversing the longstanding old policy and instituting the new policy "is clearly a rule." Id.

Despite the above authority the government argues that because the statute explicitly mandates detention, see 8 U.S.C. § 1225(b) ("shall be detained") and explicitly leaves parole decisions within the discretion of the Attorney General, id. § 1182(d)(5)(A) ("Attorney General may, ... in his discretion parole"), no rule is required to enforce the statute. In other words, the government contends it is doing nothing more than implementing the express language of the statute. The government's argument, however, misses the mark; the fact that an agency need not employ rulemaking in order to exercise its discretion on a case-by-case basis does not mean it cannot or has not resorted to a rule of general applicability which limits its discretionary function. In the event there is resort to a rule, rulemaking is required. 5 U.S.C. § 553.

In this regard Fook Hong Mak v. Immigration and Naturalization Service, 435 F.2d 728 (2d Cir.1970), is instructive. In Fook Hong Mak appellant originally sought discretionary relief from the INS to prevent his deportation. His primary interest was an adjustment of status so he could remain lawfully in the country, but under regulations adopted by the Attorney General Fook Hong Mak was precluded from consideration for such relief.16 The INS therefore denied him adjustment of status, and granted a request for voluntary departure. Fook Hong Mak challenged this action, stating that "whether or not the Board would have been justified in denying his application for adjustment of status on the merits, the Attorney General's self-imposed restriction [in the regulations] on the consideration of it is unlawful." 435 F.2d at 730. Denying Fook Hong Mak's claims, Judge Friendly wrote, "[w]e are unable to understand why there should be any general principle forbidding an administrator, vested with discretionary power, to determine by appropriate rulemaking that he will not use it in favor of a particular class on a case-by-case basis. ..." Id.

Fook Hong Mak stands for the proposition that an administrator vested with discretionary authority to act on a case-by-case basis may exercise that discretion by promulgating rules of general applicability. If the administrator does announce a general rule, however, rulemaking procedures must be followed. 5 U.S.C. § 553(b) & (c). See also Texaco, Inc. v. Federal Power Commission, 412 F.2d 740, 744-45 (3d Cir.1969) (crucial fact not whether burden could be imposed in ad hoc order, but whether agency elected to proceed with general rule). Here the court below found the new policy to be a rule and we concur in that determination. Whether the statute allowed INS to exercise its discretion on a case-by-case basis without rulemaking is irrelevant; once a rule of general applicability was employed rulemaking was required. Cf. Fook Hong Mak, 435 F.2d at 730. Unless a specific exception to the rulemaking requirement of § 553(c) applies, therefore, it was error for the government to proceed to detain immigrants on the basis of the new policy without adhering to rulemaking procedures.

Complementing the broad definition of "rule" in § 551(4) the APA provides a number of exceptions that permit promulgation of certain rules without recourse to the rulemaking procedures. See 5 U.S.C. §§ 553(a); 553(b)(A) & (B). The government urges that three of these exceptions apply in this case: the foreign affairs function exception, 5 U.S.C. § 553(a)(1), the interpretative rule exception, id. (b)(A) and the exception for general statements of policy, id.

APA § 553(a)(1) exempts from notice and comment rulemaking those rules involving "a military or foreign affairs function of the United States." The legislative history of § 553(a)(1) indicates the exception should be construed narrowly to include only those " 'affairs' which so affect relations with other governments that, for example, public rulemaking provisions would clearly provoke definitely undesirable international consequences." S.Rep. No. 752, 79th Cong., 1st Sess. 13 (1945). The district court found nothing in the record to support a finding that promulgation of the new parole policy would have resulted in "undesirable international consequences." Louis III at 996.17 The court opinion stated: "At best, the connection between the detention policy and this country's conduct of foreign affairs is tenuous and certainly not substantial enough" to fit within the exception of 5 U.S.C. § 553(a)(1). Id. We agree.

Despite a dearth of case law on the exception embodied in § 553(a)(1), what precedent there is supports the district judge's conclusion that application of the exception in this case would distend that exception beyond the scope intended by Congress. See Yassini v. Crosland, 618 F.2d 1356 (9th Cir.1980) (though immigration matters typically implicate foreign affairs court applied exception in light of extraordinary circumstances). The case sub judice readily is distinguishable from cases relied upon by the government. For example, in Yassini the court found an INS directive rescinding deferred departure for Iranian students to be within the foreign affairs exception on the basis that the Commissioner of the INS was "implementing the President's foreign policy." 618 F.2d at 1361. The court there found the challenged directive was part of the Administration's response to the November 4, 1979, takeover of the United States Embassy in Tehran. On November 10, 1979, in reaction to the takeover, the President directed the Attorney General to identify Iranian nationals not in compliance with the terms of their entry visas, and to take steps to deport those who violated immigration laws. Id. at 1359.

The directive at issue in Yassini was related intimately to the foreign policy of this country. At the time the directive issued Iranian militants held American nationals hostage at our embassy in Tehran, and the President was struggling to obtain their release. Actions taken by the Commissioner of the INS were in direct response to those release attempts. In its opinion the Yassini court noted "[a] rule of law that would inhibit flexibility of the political branches should be adopted with only great caution and judicial review of decisions made by the congress or the President in this area is limited." 618 F.2d at 1360.

This case does not involve sensitive foreign policy issues of a magnitude similar to those in Yassini. See also Nademi v. INS, 679 F.2d 811, 814 (10th Cir.) (visa regulations for Iranian nationals during embassy takeover; specific delegation from President to Attorney General to aid resolution of crisis), cert. denied, --- U.S. ----, 103 S.Ct. 161, 74 L.Ed.2d 134 (1982); Malek-Marzban v. INS, 653 F.2d 113, 116 (4th Cir.1981) (voluntary departure regulations for Iranian nationals in face of embassy takeover). The government at trial offered no evidence of undesirable international consequences that would result if rulemaking were employed. It argues only that the new policy touched on national sovereignty because, in the course of developing the policy, the President requested and received international cooperation. Certainly many issues with which the President deals involve national sovereignty; not all would have undesirable international consequences if rulemaking procedures were followed. Not every request for international cooperation seriously may be called "foreign policy." In light of Congress' intention that this exception receive limited application the district court correctly found the exception inapplicable.

APA § 553(b)(A) exempts from the requirements of notice and comment rulemaking "interpretative rules," and "general statements of policy." The district court correctly observed that although the categories differ the APA provides little guidance as to those differences. The government urges that the policy change at issue here is an "interpretative rule or general statement of policy," yet fails to distinguish between them and offers legal argument only for the conclusion that the policy change is a general statement of policy.

The Attorney General's Manual defines "interpretative rule" as an "agency's construction of the statutes and rules which it administers." Id. at 30 n. 3. Courts further define the term to mean "statements as to what the administrative officer thinks the statute or regulation means." Chamber of Commerce v. Occupational Safety and Health Administration, 636 F.2d 464, 469 (D.C.Cir.1980); Citizens to Save Spencer County v. Environmental Protection Agency, 600 F.2d 844, 875 (D.C.Cir.1979). Interpretative rules are a "clarification or explanation of existing laws or regulations rather than a substantive modification [of existing regulations] or adoption of new regulations," Brown Express, Inc. v. United States, 607 F.2d 695, 700 (5th Cir.1979) (citation omitted). Perhaps the most significant factor is that interpretative rules are non-legislative, in that they are promulgated without the exercise of delegated authority to create new law. See American Trucking Association, 688 F.2d 1337 at 1341 (11th Cir.1982).

The announced new policy does not fit comfortably within any of the aforementioned qualifications. It goes further than "explanation" or "clarification" and states a new future course of action. The district court apparently agreed; it set forth the law concerning interpretative rules but drew no conclusion, proceeding instead to examine the rule as a general statement of policy. Because the government offers no support for application of the interpretative rule exception, analyzing the new policy only as a general statement of policy, and because we believe analysis as an interpretative rule inappropriate here, we also proceed to the general statement of policy exception.

The government argues finally that the new policy falls within the exception in APA § 553(b)(A) for "general statements of policy." The district court found the exception inapplicable. Although the law in this area is less than clear, we believe the district court applied the incorrect test, yet reached a correct conclusion.

The court below rested its determination that the new policy was not a general statement of policy on two grounds. First, the district court found the immediate impact of the new policy significant.

Clearly, the new detention policy is not a general statement of policy that INS hopes to implement in the future. It is being implemented right now! Nor does it set a goal that future proceedings may achieve, for the change has been presented as a fait accompli. Immediately upon its effective date the former practice of freely paroling Haitians into the community ceased and a new policy paroling only humanitarian cases began. Thus, the new criteria for release is not exempt from APA requirements as a "general statement of policy."

Louis III at 996-97 (emphasis in original). Although some cases offer support for "immediacy" as a factor, see Pacific Gas & Electric Co. v. Federal Power Commission, 506 F.2d 33, 38 (D.C.Cir.1974) (general statement of policy is an announcement to public of policy agency hopes to implement in future rulemakings); Brown Express, Inc. v. United States, 607 F.2d 695, 701 (5th Cir.1979),18 we do not believe this is the determinative consideration. Nothing in the statutory phrase "general statement of policy" requires or even suggests that to fall within the exception the policy must take effect in the future. As Professor Davis recognizes, it is a general statement of policy to announce: "[o]ur general policy always has been and still is ...." Davis Supp. § 7.5, p. 169.19

Second, the district court relied upon a determination that the policy at hand had a "substantial impact" upon the incarcerated Haitians. The court applied its "substantial impact" test largely in reliance upon the decision in Brown Express, Inc. v. United States, 607 F.2d 695 (5th Cir.1979). Louis III at 997. This reliance was misplaced. A careful reading of Brown Express indicates that opinion did not apply a substantial impact test to the general statement of policy exception. 607 F.2d at 701. The "substantial impact" test was used by the Brown Express court to determine whether a rule was "substantive" or "procedural," in order to determine whether the rule there at issue fell within a separate and distinct rulemaking exception. Id. at 702. See 5 U.S.C. § 553(b)(A) (rules of agency organization, procedure, or practice). See also American Trucking at 1351 (this court has never applied substantial impact test to interpretative rules though we did apply it to procedural rules in Brown Express). But see American Trucking, supra at 1351 (courts usually do not distinguish between § 553(b)(A) exceptions in applying substantial impact test). Further, our recent opinions call into question application of the substantial impact test to any rulemaking exception. See id. at 1352 & n. 20.20

We here conclude that the substantial impact test is insufficient to determine whether a rule is a general statement of policy. Policy statements often have a substantial impact, the more general, the more substantial. As Professor Davis notes, commenting upon the Second Circuit decision in Noel v. Chapman, 508 F.2d 1023 (2d Cir.), cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46 L.Ed.2d 40 (1975), discussed infra:

Even if fairness to the aliens in the Noel case may have called for § 553 procedure before the INS changed the practice of the New York district director to the disadvantage of the aliens, still the element of seeming unfairness may stem much more from Congress than from the court, for § 553 does exempt "general statements of policy" from the procedural requirements and thereby authorizes the most crucial policy determinations to be made without the procedure of notice and written comments.

In all fairness to the district court, analyzing a rule within the general statement of policy exception is akin to wandering lost in the Serbonian Bog. See Guardian Federal, 589 F.2d at 668 (matters concerning application of exception to case not wholly free from doubt); Noel v. Chapman, 508 F.2d at 1030 (general statement of policy exception enshrouded in considerable smog); Davis, § 7.5 p. 32 (area confusing; perhaps only Congress can correct the confusion). The term itself--"general statement of policy"--offers little guidance. The new policy at issue was a "statement," was by its terms "general," and it was a matter of "policy," but if this were all the analysis required many more rules would qualify under the exception and fewer courts would find the area a morass. The legislative history offers little guidance. See Davis § 7.6, p. 32. The Supreme Court has yet to offer a definitive test. Courts that have addressed the issue present any number of ideas as to what constitutes a general statement of policy; the ideas often are intuitive, with little foundation in the statute or legislative history.

Given some of the confusion in this area we approach our analysis with basic principles concerning rulemaking. In Guardian Federal the District of Columbia Circuit set forth succinctly the benefits of notice and comment rulemaking:

This public participation assures that the agency will have before it the facts and information relevant to a particular administrative problem, as well as suggestions for alternative solutions. Public rulemaking procedures increase the likelihood of administrative responsiveness to the needs and concerns of those affected. And the procedure for public participation tends to promote acquiescence in the result even when objections remain as to substance.

589 F.2d at 662. The exceptions to the rulemaking requirement, on the other hand, come into play when the benefits of public rulemaking procedures are outweighed by other considerations, or when no benefits accrue to the use of the rulemaking procedures. The District of Columbia Circuit noted in Guardian Federal that the exceptions "accommodate situations where the policies promoted by public participation in rulemaking are outweighed by the countervailing considerations of effectiveness, efficiency, expedition, and reduction in expense. Id. at 662. Therefore, despite the preferential position of rulemaking in the APA, see American Bus Association v. United States, 627 F.2d 525, 528 & n. 2 (D.C.Cir.1980) (salutary effect of rulemaking procedures cannot be gainsaid; exceptions should be noted reluctantly), there are instances when Congress intended the balance to shift the other way.

In determining whether to apply a general statement of policy exception to a given rule one overriding factor frequently relied upon by courts addressing the issue strikes the balance enunciated above. That factor addresses the extent to which the challenged policy leaves the agency, or its implementing official, free to exercise discretion to follow, or not follow, the general policy in an individual case. Often referred to as examining whether the policy establishes "a binding norm,"21 the issue is whether the policy so fills out the statutory scheme that upon application one need only determine whether a given case is within the rule's criterion.22 The significance of this factor is that it reveals whether, if objections to the rule cannot be voiced through notice and comment rulemaking at the time of promulgation, there will be a subsequent opportunity to object to a specific application of the rule. If an agency, or its official, is bound to apply an airtight rule in a given case it is important to allow specific objections prior to promulgation, lest these objections be forfeited. If, however, a sufficiently general rule guides the agency's decision, but application of the rule to a unique set of facts is subject to challenge, prior opportunity to object is less important and the balance may mitigate against notice and comment rulemaking.23

Here, measuring the new policy by this standard, we find the balance is struck in favor of notice and comment rulemaking. We so hold because of the peculiar facts of this case. This is not a case where a policy was developed and announced at the highest level of government, and implemented in accord with that announcement. Those who formulated the policy failed to convey the policy to those responsible for implementing it. Left without guidance as to how to implement an undefined policy, the immigration inspectors enforced the detention policy as if it was intended to apply solely, and uniformly, to Haitians.

We are faced with the choice of analyzing either a policy ranking immigration officials insist they adopted, or one their subordinates believed they were responsible for implementing.24 The latter presents the only sensible approach. Though the genesis of discriminatory enforcement may have been only a failure to clarify a general policy, the reality is that "the absence of guidelines for detention and parole" accounted for "inconsistencies between what the Government witnesses said the policy was and the policy their subordinates were carrying out." Louis III at 981 n. 24. Those subordinates implemented a policy which led to widespread incarceration of the Haitians, humanitarian cases or otherwise.25 A broad rule of detention with undefined exceptions is susceptible to rigid enforcement with no opportunity to avoid the rule's harsh results.26 Such a rule cannot be a general statement of policy; in truth it creates a binding norm.27 Consequently, the general statement of policy exception is not applicable here. Because we conclude the new policy was not within any of the notice and comment rulemaking exceptions, we affirm the judgment of the district court as to Count II.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The Declaration of Independence (1776).

Plaintiffs asserted below that the government violated their fifth amendment rights by enforcing its new policy in a discriminatory manner. The district court found the Haitians bore the brunt of the new policy to a degree greater than any other nationality at that time, Louis III at 1000, but concluded that "Defendants intended to be fair and that if another class of aliens arrived in this country in a situation similar to that of the Plaintiffs they would be treated in a similar fashion." Id. at 1001. Holding plaintiffs failed to meet their burden of proof on the discrimination issue, the district court ruled in favor of the government.

The district court initially addressed the question whether excludable aliens could raise an equal protection claim. Comparing pre-exclusion parole to a criminal defendant's right to pre-trial bond, the district court determined that class members could seek protection under the fifth amendment from discriminatory exercises of the parole power. We agree.

As we discussed supra, the excludable alien knocking at our door has few constitutional rights when seeking admission to this country. Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n. 5, 73 S.Ct. 472, 477 n. 5, 97 L.Ed. 576 (1953) (Bill of Rights futile authority for alien seeking admission for the first time). Congress, exercising this nation's inherent rights of sovereignty, has plenary authority over the who and how of immigration--"[w]hatever the procedure authorized by Congress is, it is due process as far as the alien denied entry is concerned." Mezei, supra, 97 L.Ed. at 963, 345 U.S. at 212, 73 S.Ct. at 629.28 Just this term the Supreme Court reaffirmed this position, stating "[t]his Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative." Landon v. Plasencia, --- U.S. ---- at ----, 103 S.Ct. 321 at 329, 74 L.Ed.2d 21 (1982) (emphasis supplied).

At issue here, however, is not a right to admission and attendant procedures, but a right to be considered for parole in a non-discriminatory fashion. In this regard Judge Spellman noted "the [Supreme] Court has never held, ... 'the Constitutional guarantees of the Fifth Amendment do not extend to unadmitted aliens.' " Louis III at 998. Indeed, as early as 1885 the Supreme Court, discussing the scope of the Fourteenth Amendment, stated:

The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: 'Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.

Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220, 226 (1886) (emphasis supplied).

The problem here is the fiction that excludable aliens are not within the "territorial limits" of the United States. Though that fiction serves its purpose to limit the procedural rights of an excludable alien "regarding his application" for admission, Landon v. Plascencia, supra, it strains credulity to maintain that an alien within our territorial limits may claim none of the rights accorded our citizens. And, indeed, in situations where excludable aliens within our borders have claimed deprivations of fundamental rights, the courts have been quick to respond. In Rodriquez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir.1981), the Tenth Circuit held "punishment" of excludable aliens was improper without the "substantive and procedural due process guarantees of the Fifth Amendment." "Surely Congress could not order the killing of Rodriquez-Fernandez and others in his status on the ground that Cuba would not take them back and this country does not want them." Id. at 1387. And, in United States v. Henry, 604 F.2d 908 (5th Cir.1979), the court held that an excludable alien is entitled to fifth amendment rights once criminal proceedings against him have commenced. Id. at 914. See also Plyer v. Doe, --- U.S. ----, ----, 102 S.Ct. 2382, 2391, 72 L.Ed.2d 786 (1982) (whatever status is under immigration laws, undocumented alien is surely "person" in ordinary sense of word under fifth and fourteenth amendments) (deportable alien). See generally Note, The Constitutional Rights of Excluded Aliens: Proposed Limitations on the Indefinite Detention of the Cuban Refugees, 70 Geo.L.J. 1303 (1982).

Although the class members ultimately seek admission to this country, the present action does not "relate to admission and does not challenge Congress' power in that regard." Louis III at 34. In fact, though detention is the underlying predicate of this action, class members do not even question the right of Congress or the Executive to detain them. Rather, they challenge the discretionary exercise of the Executive's parole power when that power is exercised on the basis of race or national origin. Accordingly this action falls within the rubric of such cases as Yick Wo, Plyer, Henry and Rodriquez-Fernandez, and differs from challenges to immigration procedures rejected in Mezei and Knauff.

Even were we unprepared to accord these aliens full equal protection rights we would be compelled to consider this discrimination claim. Our standard of review under Mezei and Knauff is to assure aliens receive that process Congress determined was due; on the record before us we can but determine that Congress intended the statutes under which the INS acted to be applied in a non-discriminatory fashion. This the district court explained:

It is important to note that the actions challenged herein are not Congressional. Plaintiffs allege the Defendants are applying a neutral statute in a discriminatory fashion. This distinction, between legislation and enforcement, is critical. Congress can legitimately make distinctions among and against aliens that would be unacceptable if applied to citizens, Matthews v. Diaz, 426 U.S. 67, 80 [96 S.Ct. 1883, 1891, 48 L.Ed.2d 478] (1976), but "[i]n the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process." Galvan v. Press, 347 U.S. 522, 530 [74 S.Ct. 737, 742, 98 L.Ed. 911] (1954) (Frankfurter, J.), cited in, Faillo v. Bell, 430 U.S. 787, 792 n. 4 [97 S.Ct. 1473, 1478 n. 4, 52 L.Ed.2d 50] (1977). (Emphasis added). "A statute, otherwise neutral in its face, must not be applied so as invidiously to discriminate on the basis of race. Yick Wo v. Hopkins, 118 U.S. 356, 369 [6 S.Ct. 1064, 1070, 30 L.Ed. 220] (1886)." Washington v. Davis, 426 U.S. 229, 241 [96 S.Ct. 2040, 2048, 48 L.Ed.2d 597] (1976).

Louis III at 998-99.

2. Proof of Discrimination: the legal standard

In Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) [hereinafter "Arlington Heights"] the Supreme Court held that plaintiffs challenging an action as discriminatory must go further than identifying a disparate impact and prove the challenged action was the product of discriminatory intent. 429 U.S. at 265, 97 S.Ct. at 563, 50 L.Ed.2d at 464; 426 U.S. at 240-42, 96 S.Ct. at 2047-49, 48 L.Ed.2d at 607-09. Recognizing that legislative and administrative actions are rarely motivated by one purpose only, the Court held plaintiffs must establish that the challenged decision was at least motivated in part by a discriminatory purpose. 429 U.S. at 266, 97 S.Ct. at 564, 50 L.Ed.2d at 465. See also Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979). Plaintiffs need not prove a discriminatory purpose was the primary, or dominant purpose, Arlington Heights, 429 U.S. at 266, 97 S.Ct. at 564, 50 L.Ed.2d at 465, but must show that the action taken was, at least in part, "because of," and not merely "in spite of" its adverse effects upon an identifiable group, Feeney, supra, 442 U.S. at 279 & n. 24, 99 S.Ct. at 2296 & n. 24.

The very nature of legislative and administrative action makes it difficult to ascertain the "intent" of the acting body. For that reason, in Arlington Heights the Supreme Court provided some examples of "circumstantial and direct evidence" that courts might properly consider in judging whether invidious discrimination permeated official action. First, there is evidence of "impact," i.e. whether the challenged activity "bears more heavily on one race than another," id. 429 U.S. at 266, 97 S.Ct. at 564, 50 L.Ed.2d at 465, citing Washington v. Davis, 426 U.S. 229, 241, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597, 608.29 In cases where proof of impact alone is insufficient, where a stark pattern of discrimination is not evident, the courts should consider circumstantial evidence, which includes the following factors: (1) historical background of the decision, (2) the specific sequence of events leading up to the challenged decision, (3) departures from the normal procedural sequence, as well as substantive departures, and (4) legislative or administrative history. 429 U.S. at 265-66, 97 S.Ct. at 563, 50 L.Ed.2d at 464-66. And, because these factors are not exhaustive, id. 429 U.S. at 266, 97 S.Ct. at 564, 50 L.Ed.2d at 466, the list has been supplemented: (5) foreseeability of discriminatory impact, Columbus Board of Education v. Penick, 443 U.S. 449, 464-65, 99 S.Ct. 2941, 2950, 61 L.Ed.2d 666 (1979), (6) knowledge of discriminatory impact, NAACP v. Lansing Board of Education, 559 F.2d 1042, 1048 (6th Cir.1977), cert. denied, 434 U.S. 997, 98 S.Ct. 635, 54 L.Ed.2d 491 (1979), and (7) the availability of less discriminatory alternatives, United States v. Board of School Commissioners of Indianapolis, 573 F.2d 400, 413 (7th Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 93, 58 L.Ed.2d 116 (1978).

Once plaintiffs come forward with evidence sufficient to support a prima facie claim the burden shifts to the defendant, the government in this case, "to dispel the inference of intentional discrimination." Castaneda v. Partida, 430 U.S. 482, 497, 97 S.Ct. 1272, 1282, 51 L.Ed.2d 498, 512 (1977); Castaneda v. Pickard, 648 F.2d 989, 1003-04 (5th Cir.1981). Although the quantum of evidence required from the defendant is unclear from the Supreme Court's decisions it is established that mere protestations of lack of discriminatory intent and affirmations of good faith will not suffice to rebut the prima facie case.30 Castaneda, 430 U.S. at 499 n. 19, 97 S.Ct. at 1282 n. 19, 51 L.Ed.2d at 513 n. 19 (cases cited). A defendant must introduce evidence to support its explanations. Castaneda, 430 U.S. at 499 n. 19, 97 S.Ct. at 1282 n. 19, 51 L.Ed.2d at 513 n. 19. Cf. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 9, 101 S.Ct. 1089, 1094 n. 9, 67 L.Ed.2d 207, 216 n. 9 (1981).

Finally, should the government succeed in rebutting plaintiffs' prima facie case, the trial judge must evaluate the weight of the evidence. It is inevitably the task of the trier of fact to decide whether plaintiffs have succeeded, in the face of the defendant's rebuttal, in proving, by a preponderance of the evidence, that defendant's actions were taken in part because of a discriminatory intent or purpose. Cf. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093.

We cannot determine precisely what the district court concluded as to the individual aspects of prima facie case, rebuttal, and ultimate proof. From the absence of any discussion of rebuttal it might appear the court below found insufficient proof to establish a prima facie case. We conclude differently, however, for the district court considered government arguments that are properly considered as rebuttal, if at all.

The government's case rested on two independent general arguments. The first attacked the validity of plaintiff's statistical evidence, and the second proffered explanations to dispel the appearance of disparate impact. Both government arguments are considered properly as rebuttal. See Johnson v. Uncle Ben's, Inc., 628 F.2d 419, 424 (5th Cir.1980) (rebuttal includes existence of "legitimate nondiscriminatory reason for defendant's action, or evidence of "total unacceptability of plaintiff's statistical evidence"), vacated and remanded, 451 U.S. 902, 101 S.Ct. 1967, 68 L.Ed.2d 290 (1981), modified in part, rev'd in part, 657 F.2d 750 (5th Cir.1981), cert. denied, --- U.S. ----, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982).

The prima facie case, however, is based solely on evidence presented by the plaintiff, and is evaluated to determine whether plaintiff could survive a motion to dismiss at the close of its case. See Burdine, 450 U.S. at 253-55, 101 S.Ct. at 1093-95, 67 L.Ed.2d at 215-16 (Title VII); cf. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981) (prima facie showing of personal jurisdiction established on basis of plaintiff's affidavits and materials); White v. Abrams, 495 F.2d 724, 729 (9th Cir.1974) (prima facie case is sufficient evidence for plaintiff to survive motion to dismiss or motion for directed verdict; plaintiff must present evidence sufficient to require defendant to present its case); Warner v. KeWanee Machinery & Conveyor Co., 411 F.2d 1060, 1063 (6th Cir.1969) (prima facie case evaluated to see if plaintiff's evidence raises issue for jury). We are convinced that if the prima facie case were segregated from rebuttal and ultimate proof the district judge would conclude, as we do, that this preliminary burden was met. The statistical evidence presented by plaintiffs, see infra, disclosed a stark pattern of discrimination. We are not overly concerned at this juncture, however, with the district court's failure to separate preliminary and final burdens. It may have been impossible to categorize the evidence, as was the case in Equal Employment Opportunity Commission v. Datapoint Corp., 570 F.2d 1264, 1268 (5th Cir.1978), where we noted:

However, in this case the failure of the trial court to expressly make such determination is not material as plaintiff's proof and defendant's rebuttal are completely interwoven. In this case the very statistics relied upon by plaintiff to establish a prima facie case formed the basis of defendant's rebuttal of it, i.e. that the statistics were not reliable.

Further, the district court correctly identified the ultimate burden upon the plaintiff, to prove intentional discrimination by a preponderance of the evidence. Cf. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093. The district court concluded plaintiffs failed to meet this burden.

Although concurring in the proper legal standard, we disagree with the district court on a plethora of subsidiary issues. Specifically, once we examine the conclusions made by the court below as to the government's arguments, it is apparent as a matter of fact and law that the government failed to rebut plaintiff's evidence of discrimination. Accordingly, we proceed to consider those issues in dispute.

At trial plaintiffs introduced a wealth of statistical evidence to show the vastly disproportionate impact of the government's detention policy on Haitian, as opposed to non-Haitian, immigrants. See Arlington Heights, 429 U.S. at 266, 97 S.Ct. at 564, 50 L.Ed.2d at 465; Castaneda v. Partida, 430 U.S. at 494-96, 97 S.Ct. at 1280-81, 51 L.Ed.2d at 510-11. Additional statistical evidence from a New York case, Bertrand v. Sava, 684 F.2d 204 (2d Cir.1982), was introduced to show that certain factors suggested by the government to explain the disparate impact, such as family ties or documentation, bore little relation to chance of parole.31 Plaintiffs then offered the testimony of Dr. Howard Seth Gitlow, Professor of Statistics, to explain the statistical significance of the data.

The test here employed is not so confusing as the parties make it appear, nor is it unfamiliar in cases of this nature. See Castaneda v. Partida, 430 U.S. at 496-97 n. 17, 97 S.Ct. at 1281 n. 17, 51 L.Ed.2d at 512 n. 17 (application of standard deviation analysis). Dr. Gitlow employed binomial analysis to statistics showing Haitians versus non-Haitians detained and paroled. The purpose of this test is to show how many Haitians one would expect to find detained or paroled based upon the government's treatment of non-Haitians.32

The standard deviation, a final expression of binomial analysis, is nothing more than a measure of the difference between the predicted number and the actual number. "As a general rule for [ ] large samples, if the difference between the expected value and the observed number is greater than two or three standard deviations," then we suspect an unexplained factor, in this case discrimination, is responsible for the difference. See Castaneda v. Partida, 430 U.S. at 496-97 n. 17, 97 S.Ct. at 1281 n. 17, 51 L.Ed.2d at 512 n. 17.

The statistical evidence offered by plaintiffs and analyzed by Dr. Gitlow came from three specific sources. The first source was the secondary inspection logs at the airport in Miami between August 1981 and April 1982. Secondary inspection occurs if upon initial encounter with an Immigration officer there is some doubt as to an individual's right to enter. For comparison this evidence was compiled in two separate time frames. Plaintiff's exhibit 187 reflected secondary inspection between August and December, 1981, and separated the statistics for both Haitians and non-Haitians into "paroled," "paroled for exclusionary hearing," "deferred inspection" and "detained."

Dr. Gitlow then testified concerning the binomial analysis performed with the statistics. He computed standard deviations based on t