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.

257-179 079 11

The Office of Refugee and Migration Affairs advised the INS that in its judgment these petitioners did not face political persecution on their return to their homes, and that in many cases the Haitian Government appeared to be unaware of them. On this basis petitioners were denied refugee status. Given a second opportunity to submit information or evidence bearing on their status petitioners were unable or unwilling to provide it. On this record we cannot say that a "clear probability" of persecution was shown. Therefore, the INS did not abuse its discretion in refusing refugee status to the petitioners. . . .

Id. 1288-1289.

On November 18, 1977, the U.S. Supreme Court granted a petition for a writ of certiorari in this case and vacated the judgment. In light of a change of policy in Immigration and Naturalization Service procedures for handling applications for asylum announced on November 8, 1977, the U.S. Supreme Court remanded the case to the U.S. Court of Appeals for the Fifth Circuit to consider the question of mootness. See 46 Law Week 3356.

On November 8, 1977, the Immigration and Naturalization Service (INS) announced a change of its procedure for handling applications for asylum and released about 120 Haitians who came to the United States seeking asylum as political refugees but who were being held in custody on the grounds that they were seeking employment, not fleeing persecution. INS Commissioner Leonel J. Castillo indicated that the Haitians would be released on their own recognizance and that the INS would give them permission to work. Set forth below are portions of the announcement of the release:

The Haitians arrived in the United States mostly by small boat and sought asylum. They were taken into custody by the Immigration Service. Their asylum applications were denied by INS on grounds that they were seeking jobs in the United States rather than fleeing Haiti out of fear of persecution.

They have appealed to the courts and have been held in detention in Florida because of concern that they would leave the area while the court cases were being heard. Only about 10 percent of those involved in the cases have been detained.

In ordering their release, Mr. Castillo said previous policy has not discouraged asylum applicants from coming to the United States over the last several years, and the detention of a significant number of aliens is an unnecessary expense to the Government.

The change in INS policy on asylum allows persons to apply before an Immigration Special Inquiry Officer, an immigration judge, in an exclusion proceeding. This will give applicants an opportunity to make a detailed presentation and a record of their claim to asylum.

Under previous INS policy, applicants were interviewed by a Service officer after filing a formal application. A decision on the claim would be made later by the local INS District Director.

Aliens in the United States who are subject to exclusion proceedings and have previously applied for asylum may reapply under the new procedures and present their claims to a Special Inquiry Officer.

Dept. of Justice Release, Nov. 8, 1977.

Refugees From the Soviet Union

Secretary of State Henry A. Kissinger sent a letter on December 17, 1976, to Attorney General Edward H. Levi requesting the parole into the United States of approximately 4,000 Soviet refugees living near Rome, most of whom were Jewish :

There are some 3,000 such refugees [seeking immigration to the United States], mainly Jews in Italy now and the number is expected to exceed 4,000 by the end of the current year. This accumulation has resulted in part from the increased drop-out rate in Vienna from the flow of Soviet refugees to Israel and the decreased rate of processing for U.S. immigration, the latter being due to the lack of nonpreference visa numbers and the limited availability of numbers under the provisions of section 203 (a)(7) of the Immigration and Nationality Act.

The accumulation of ever-increasing numbers of Soviet refugees in an asylum area such as Italy could become an embarrassment to that government and might affect its bilateral relations with the Soviet Union. Sizeable numbers of these people waiting for entry into the United States could also adversely affect Soviet exit procedures. Moreover, extended delays in immigration processing frequently cause difficulties for the persons involved and result in high care and maintenance costs to the United States Refugee Program (USRP) and the voluntary agencies.

For these various reasons I should like to recommend that in order to overcome this backlog of cases in Italy you exercise your parole authority under section 212(d) (5) of the Immigration and Nationality Act to permit entry into the United States of Jews and others from the Soviet Union who prior to January 1, 1977, have left the U.S.S.R. with exit visas for the U.S., or used exit permits for Israel as a means of leaving the Soviet Union in order to get to the United States and otherwise meet standard criteria for admission to the United States, either with immigrant visas or for conditional entry.

I believe that the judicious use of parole is fully consistent with congressional intent for assistance to Soviet refugees and parallels the use of the parole authority by the then Attorney General during the period August 1973-May 1974 to clear the backlog of a similar group of refugees.

Dept. of State. File No. P77 0042–621.

On January 13, 1977, Attorney General Levi announced in a Department of Justice news release that he had approved the parole into the United States of these approximately 4,000 Soviet refugees under the following conditions:

The [parole] program will apply to refugees who left the Soviet Union prior to January 1, 1977, with the intention of seeking entry into the United States. The applicants must be admissible to the United States under the Immigration and Nationality Act, and, in addition, have a sponsor here who will take responsibility for them. The Department of Justice news release dated January 13, 1977, indicated that nearly 104,000 Soviet refugees have left the Soviet Union during the past five years and that more than 11,000 of these came to the United States under the Immigration and Nationality Act.

On December 14, 1977, the Department of Justice announced that Judge Griffin B. Bell, U.S. Attorney General, had approved the parole into the United States of 5,000 Soviet refugees, most of whom are Jewish, between the date of the announcement and May 1, 1978. The Justice Department announcement indicated that the applications of about 3,000 such refugees were already being processed in Rome, Italy. The announcement further indicated that the refugees were being permitted to leave the Soviet Union with exit visas for the United States or for Israel and that most of the refugees were eligible to enter the United States but had not been able to do so because not enough visas were available under the limits set by the Immigration and Nationality Act of 1952.

The Department of State had requested the parole of the 5,000 refugees. Before granting the request, Judge Bell consulted with members of the Judiciary Committees of the House of Representatives and the Senate.

Dept. of Justice Release, Dec. 14, 1977.

Refugees From Indochina

On July 16, 1977, Secretary Vance wrote Judge Bell a letter indicating that President Carter had "approved my recommendation that I be authorized to request you to exercise your parole authority to admit 15,000 Indochinese refugees." On August 4, 1977, Judge Bell appeared before the Subcommittee on Immigration, Citizenship and International Law of the House Judiciary Committee to discuss this proposed parole. Portions of his comments follow:

As you are aware, . . . section 212(d) (5) of the Immigration and Nationality Act states that the Attorney General

may in his discretion parole into the United States . . . for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States.

I think it important that Congress have an opportunity to study fully proposals for the exercise of parole such as this and the facts upon which such action is based.

[I]t is my present intention to authorize the parole of these 15,000 refugees on August 11, 1977.

The present parole divides itself into two groups of refugees. One group of 7,000 consists of refugees, mostly Vietnamese, who have escaped their homeland by boat. These refugees are often passed at sea by ships hesitant to come to their rescue because few nearby ports will accept them. Many drown or die of other

causes.

Those who reach safety often find themselves restricted to their boats or a narrow strip of beach. Too often, men, women, and children have actually been turned back to the perils of the sea.

I do not believe that this government should ignore such a condition. It presents, in my judgment, an emergent situation, and I believe it is in the national interest to act promptly to alleviate it.

Our granting of parole to 7,000 such refugees, along with the assistance of other countries, will meet the immediate emergency, encourage ship captains and countries of first asylum to welcome future refugees, and give us time in which to plan how to cope with the longer-term problem. Refugees can be expected to continue to seek to escape the new Communist governments in their homelands in the foreseeable future.

The second group for parole consideration consists of 8,000 refugees, primarily from Laos, who have crossed by river or land into Thailand. These refugees, too, find themselves in most difficult straits. They are restricted to camps with minimal living standards and few prospects for the future.

Of the some 81,000 such refugees, we propose to select about ten percent. Those eligible for consideration would be those who can lay special claim to consideration for acceptance into the United States. As in previous parole actions, they would include close relatives of Indochinese already in the United States, those who formerly served the U.S. Government in Indochina, and others who were associated with United States programs and policies in their homelands. I consider it both a compelling emergent humanitarian reason and in the public interest to assist these refugees who have special ties to this country.

Dept. of Justice Press Release, Aug. 4, 1977.