Jean v. Nelson

LOCATION: Elstad's Residence

DOCKET NO.: 84-5240
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Eleventh Circuit

CITATION: 472 US 846 (1985)
ARGUED: Mar 25, 1985
DECIDED: Jun 26, 1985

Ira Jay Kurzban - on behalf of the petitioners
Rex E. Lee - on behalf of the respondents

Facts of the case


Media for Jean v. Nelson

Audio Transcription for Oral Argument - March 25, 1985 in Jean v. Nelson

Warren E. Burger:

We will hear arguments next in Jean against the Commissioner of Immigration.

Mr. Kurzban, you may proceed whenever you are ready.

Ira Jay Kurzban:

Mr. Chief Justice and may it please the Court, this is a case about invidious discrimination in enforcement of the immigration laws of the United States against black Haitian refugees who were seeking political asylum in the United States.

For over ten years, immigration enforcement officials in south Florida have applied the law with an unequal hand and an evil eye, as this Court said in Yick Wo v. Hopkins, against Haitians seeking political asylum as is their right under the statutes and treaties of the United States.

Although it has occurred in a variety of contexts, this case raises the issue with respect to detention and parole and discrimination in that detention and parole.

In the spring of 1981, approximately 1,700 Haitians came to the United States fleeing the politically repressive conditions and the persecution of their homeland in Haiti.

Unlike refugees such as Nicaraguan refugees, such as Cuban refugees, who entered south Florida at the same time, under the same circumstances, and indeed, unlike other excludable aliens who entered the United States at the same time, Haitians and Haitians alone were incarcerated.

Sandra Day O'Connor:

Mr. Kurzban, are any of the people detained who constituted the member class still detained?

Or have they been paroled?

Ira Jay Kurzban:

Yes, Your Honor, although it is not in the record directly, there are 400, approximately 400 Haitians who are presently detained, and they constitute 70 percent of the population incarcerated at the present time in south Florida.

Sandra Day O'Connor:

The court below remanded the case, did it not?

Ira Jay Kurzban:

Yes, Your Honor.

Sandra Day O'Connor:

For findings of the District Court?

Now, what findings are open to the District Court on remand?

Is it compliance with the government's regulations?

Ira Jay Kurzban:

I think it is very unclear, to be quite frank, Your Honor, about what the standard is on remand and what the en banc court said.

They said that it should be remanded on a facially legitimate and bona fide standard.


Sandra Day O'Connor:

The question of whether the neutral standards since adopted by regulation by the government were complied with and as applied kind of a compliance standard, is that what you understand?

Ira Jay Kurzban:

--Well, again, I honestly think it is unclear.

I think they remanded it back to determine whether or not it was discrimination with respect to the 400 people, but they paid lip service to that discrimination because they did it under a standard which in effect is a narrow standard, appropriate in other contexts such as the substantive review of a decision, as Justice Blackmun found in Kleindienst versus Mandel, of the Attorney General.

But it is not clear what the ultimate outcome of that review would be, and in addition they gave no relief to the 1,700 class members who have been released and at the same time they lifted the injunction that prevented the government from reincarcerating those 1,700.

So those 1,700 petitioners that are still part of this class are subject to being incarcerated again, and we have no reason to believe, based on the continuing pattern and practice of discrimination, that Haitians who have suffered in south Florida based on that continuing pattern, that these Haitians will not be redetained in a discriminatory manner.

Sandra Day O'Connor:

I guess the difference is that when you started the action there were no government regulations in effect governing the detention and parole.

Ira Jay Kurzban:

But there was a statute, Your Honor, that said... there was a facially neutral statute, 1182(d)(5), and low-level immigration officials enforced that statute in a discriminatory way.

We have no reason to believe today and in fact we believe that they are enforcing their present policy in the same discriminatory manner, and unless this Court makes it clear that the Immigration Service cannot enforce a neutral statute or regulation--

Sandra Day O'Connor:

Well, do we have the cart before the horse a little bit, trying to decide the constitutional issue before we know whether in fact it is being discriminatorily applied?

Normally don't we wait until that is decided before going off on the constitutional ground?

Ira Jay Kurzban:

--Well, Your Honor, I think in some circumstances that is correct, but not in this circumstance, for several reasons.

First, the remand standard offers no relief for the 1,700 petitioners, as I said.