judge court heard both cases together and ruled unanimously in their favor.

In a 5 to 4 decision, the U.S. Supreme Court affirmed the judgments of the District Court. The majority opinion by Mr. Justice Blackmun emphasized that State classifications based "on alienage are 'inherently suspect and subject to close judicial scrutiny.' Graham v. Richardson, 403 U.S. 365, 372 (1971)." 45 Law Week 4657. Further, "§ 661 (3) is directed at aliens and . . . only aliens are harmed by it." Id. Relying upon clause 4 of Section 8 of Article I of the U.S. Constitution, which gives Congress the power to "establish an uniform rule of naturalization," Justice Blackmun stated that "[c]ontrol over immigration and naturalization is entrusted exclusively to the Federal Government, and a State has no power to interfere." Id. 4658. The Court responded as follows to the appellants' assertions that section 661 (3) could be justified as "an incentive for aliens to become naturalized" and that the assistance program should serve only those who can or will vote:

. . If the encouragement of naturalization through these programs were seen as adequate, then every discrimination against aliens could be similarly justified. Id. 4658.

Resident aliens are obligated to pay their full share of the taxes that support the assistance programs. There thus is no real unfairness in allowing resident aliens an equal right to participate in programs to which they contribute on an equal basis. Id. 4658.

Three separate dissents were filed. In the principal dissent, with whom the Chief Justice joined, Mr. Justice Rehnquist contended that § 661 (3) should be sustained because this section permits the alien to escape the discriminatory effect of the statute:

[A] resident alien has, at all times, the power to remove himself from one classification and to place himself in the other, for, at all times, he may become entitled to benefits either by becoming a citizen or by declaring his intention to become a citizen as soon as possible. (Footnote omitted.) . Unlike the situation in Griffiths, Sugarman, and Graham, there exists no period of disability, defined by status, from which the alien cannot escape. Id. 4660.

...

In a footnote, the majority opinion of Justice Blackmun responded to Justice Rehnquist :

.. By the logic of the dissenting opinion [of Justice Rehnquist], the suspect class for alienage would be defined to include at most only those who have resided in this country for less than five years, since after that time, if not before, resident aliens are generally eligible to become citizens. 8 U.S.C. § 1427 (a). The Court has never suggested, however, that the suspect class is to be defined so narrowly. In fact, the element of voluntariness in a resident alien's retention of alien status is a recognized element in several of the Court's decisions. For example, the Court acknowledged that Griffiths involved an appellant who was eligible for citizenship, but who had not filed a declaration of intention to become a citizen, and had "no present intention of doing so." 413 U.S., at 718 n. 1. And insofar as the record revealed, nothing precluded the appellees in Sugarman v. Dougall from applying for citizenship. 413 U.S., at 650 (Rehnquist, J., dissenting).

Id. 4657, n.11.

See the 1973 Digest, Ch. 3, § 3, pp. 91-97, for a further discussion of In re Griffiths, 413 U.S. 717 (1973) and Sugarman v. Dougall, 413 U.S. 634 (1973). Section 1 of the Fourteenth Amendment reads in pertinent part as follows:

No state shall make or enforce any law within its jurisdiction the equal protection of the laws.

; nor deny to any person

Revocation of Naturalization and Deportation

On August 3, 1977, Leonel J. Castillo, Commissioner of the Immigration and Naturalization Service, testified before the Subcommittee on Immigration, Citizenship and International Law of the Committee on the Judiciary of the House of Representatives concerning the investigation of alleged Nazi war criminals by the Immigration and Naturalization Service. Portions of his prepared remarks describing actions of the U.S. Government with regard to these investigations follow:

[T]he Service has received allegations that certain individuals residing in the United States, either as citizens or as lawful permanent residents, committed atrocities or war crimes during World War II in several Eastern European countries such as Poland, Latvia, and Lithuania. These allegations were investigated by the Service, and as a result, a number of actions have been instituted...

Revocation of naturalization pursuant to section 340 (a) of the Immigration and Nationality Act, 8 U.S.C. 1451 (a), is presently being sought in United States District Court in four cases involving five individuals. No hearing dates have been set yet

Four aliens are presently under deportation proceedings brought pursuant to section 241 (a) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)..

In an additional case, the Service has informed an alien who has already been found deportable that it intends to withdraw an order of temporary withholding of deportation under section 243 (h) of the Act, 8 U.S.C. 1253 (h)

One criminal prosecution under 18 U.S.C. 1425 for attempted unlawful procurement of naturalization has been submitted to the Grand Jury which is considering whether to indict.

Ten cases are presently being reviewed for the possible institution of revocation of naturalization proceedings..

As of July 22, 1977, the Service had 22 recent allegations of Nazi war criminality pending a preliminary inquiry, which serves to identify the person against whom the allegation is made and to determine his present whereabouts and the state of his health. Domestic investigations, which include inquiries in Israel, were

pending in 13 cases. 69 cases were pending inquiries in Europe to be made by the Department of State.

Determination of Refugee Status

In Pierre v. United States, 547 F. 2d 1281 (1977), the United States Court of Appeals for the Fifth Circuit, Robert A. Ainsworth, Jr., Circuit Judge, affirmed a district court denial of the habeas corpus petition of 147 Haitian nationals who challenged the U.S. Immigration and Naturalization Service's (INS) denial of their request for parole into the United States as political refugees. The court held in an opinion decided on March 7, 1977 (rehearing and rehearing en banc denied April 12, 1977), that the Protocol relating to the Status of Refugees (Protocol) done on January 31, 1967 (TIAS 6577; 19 UST 6223; entered into force for the United States November 1, 1968), did not "substantively" alter the "statutory immigration scheme" of the United States and that the Protocol did not invest the petitioners "with a liberty right protectable by due process or other constitutional protections." Id. 1288-1289. The court also held, inter alia, that the U.S. statutory distinction between excludable aliens and aliens who have made entry, even if illegally, did not deny excludable aliens such as the petitioners equal protection of the law; and that the Administrative Procedure Act, 5 U.S.C. 500 et seq., did not require the kind of hearing requested by petitioners to determine their refugee status.

The petitioning 147 Haitian nationals, while admitting their excludability under 8 U.S.C. 1182 (a) (20) due to their lack of appropriate documentation, requested parole into the United States under section 1182 (d) (5) as political refugees as defined in the Protocol. In describing U.S. asylum policy, the Court quoted article 33 of the Protocol:

No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Id. 1284.

The Court next quoted the Protocol's definition of "refugee" which substantially incorporates the following definition of "refugee" found in the Convention relating to the Status of Refugees done on July 28, 1951 (189 UNTS 150):

A. For the purposes of the present Convention, the term "refugee" shall apply to any person who:

(2) As a result of events occurring before January 1, 1951, and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Id. 1284.

Portions of the Court's opinion concerning the Protocol follow:

On appeal petitioners contend that the INS and the District Court misconstrue the effect of the Protocol on the statutory immigration scheme. They argue that on the one hand Article 33 of the Protocol permits the INS no discretion to exclude bona fide refugees; and that on the other hand the Protocol vests in all potential refugees a liberty right or expectation protectable under the due process clause of the Fifth Amendment to the United States Constitution, cf. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Neither contention has merit.

The legislative history of United States accession to the Protocol shows that the State Department, in presenting the Protocol to the Senate for ratification, believed that the Protocol would require no changes in the current administration of immigration policy. Lawrence Dawson, Acting Deputy Director of the Office of Refugee and Migration Affairs of the State Department, testified to this effect before the Senate Foreign Relations Committee when that committee was conducting hearings concerning the Protocol:

[A]ccession does not in any sense commit the contracting state to enlarge its immigration measures for refugees. Rather, the asylum concept is set forth in the prohibition against the return of a refugee in any manner whatsoever to a country where his life or freedom would be threatened; and the prohibition under Article 32 against the deportation of a refugee lawfully in the territory of a Contracting State to any country except in cases involving national security or public order. The deportation provisions of the Immigration and Nationality Act, with limited exceptions, are consistent with this concept. The Attorney General will be able to administer such provisions in conformity with the Protocol without amendment of the Act. [Emphasis added.] [Appendix 90th Cong., 2d Sess., Ex

ecutive Report No. 14, Protocol Relating to Refugees, September 30, 1968, at 6.]

Id. 1287-1288.

We... determine... that accession to the Protocol by the United States was neither intended to nor had the effect of substantively altering the statutory immigration scheme. From this determination we draw two conclusions: that no new rights or entitlements were vested in these petitioners by operation of the Protocol, and that the procedures by which the INS determines refugee status were not invalidated.

Petitioners' contention that the Senate's accession [sic] to the Protocol vested in aliens a United States constitutional entitlement accompanied by a full array of constitutional protections flies in the face of the legislative history just reviewed.... The entire immigration scheme would be nullified if any alien desiring entry could demand the full process of the courts to adjudicate his refugee status, merely by appearing at our shores and proffering assertions of status of the nature of those in this case. Therefore, we reject petitioners' contention that the Protocol invests them with a liberty right protectable by due process or other constitutional protections.

We also reject petitoners' contention that the INS procedures for determining refugee status are inadequate in light of the terms of Article 33 of the Protocol, and that the Protocol creates an "absolute right" against return of a bona fide refugee to a country in which he fears political persecution. Petitioners' assertion fails to consider that asylum results from a two-part determination. First a determination whether the applicant is a bona fide refugee must be made. Under existing statutes the Attorney General then has discretion whether to parole the refugee into the United States. We need not decide whether the Protocol deprives the Attorney General of discretion regarding parole once refugee status is affirmatively determined because petitioners before us failed the first part of the test. The INS, in consultation with the State Department, determined that they were not bona fide refugees. It is clear from the terms of the Protocol itself that an applicant for asylum must fit the definition of bona fide refugee before he can take relief from the terms of the Protocol. Because the Protocol contained no procedures for making this determination, and because Congress saw fit at the time of accession to leave existing procedures unchanged, we conclude that it was the intent of Congress that existing procedures be followed. These procedures were followed with respect to petitioners' applications for refugee status in this case. This discretionary judgment of a political department is reviewable by us only for abuse of discretion, Kleindienst v. Mandel, 408 U.S. 753, 769-70, 92 S.Ct. 2576, 2585, 33 L.Ed.2d 683 (1972). The burden was on petitioners to show the INS that they were refugees, see Paul v. INS, 5 Cir., 1975, 521 F.2d 194. To carry this burden an alien must show a "clear probability" of persecution, Cisternas-Estay v. INS, 3 Cir., 1976, 531 F.2d 155, 159; see Gena v. INS, 5 Cir., 1970, 424 F.2d 227, 229–30.

The present petitioners provided, at best, unsubstantiated and ambiguous claims of conflicts with government authorities in Haiti.