MOISES GARCIA-MIR, ET AL., RAFAEL FERNANDEZ-ROQUE, ET AL., AND
ORLANDO CHAO-ESTRADA, APPLICANTS V WILLIAM FRENCH SMITH, ET AL.

   No. A-582

   In the Supreme Court of the United States

   October Term, 1984

   On Application to Vacate a Stay Pending Appeal to the United States
Court of Appeals for the Eleventh Circuit

   Memorandum for the Respondents in Opposition

   In 1980, thousands of Cuban nationals unlawfully entered the United
States as part of the Mariel boatlift.  Certain of these aliens have
successfully avoided deportation for more than four and a half years,
largely because of Cuba's unwillingness to accept them.  On December
14, 1984, the governments of the United States and Cuba finally
concluded an agreement under which 2,746 named Cuban nationals who
unlawfully entered the United States in 1980 will be returned to Cuba.

   Performance of this agreement is essential to this country's
foreign policy interests.  Only a small number of Cubans may be
returned each month.  It is vital that these returns commence as soon
as possible, for Cuba is already beginning to reap the benefits of the
agreement in the form of this country's resumption of normal immigrant
visa processing.  If we are unable to begin returning these excludable
aliens in the very near future, the opportunity to do so might be
lost, as emigration and changing world conditions lessen the pressure
on Cuba to live up to its agreement.

   Many members of the plaintiff class are to be returned under the
agreement.  The partial stay entered by the court of appeals permits
the United States to begin obtaining the benefit of its agreement with
Cuba, while preserving the rights of those class members who may
legitimately be eligible for asylum.  There is no warrant to vacate
that partial stay.

                               STATEMENT

   These consolidated cases were brought by a class of Cuban nationals
who arrived in the United States in the 1980 Mariel boatlift.  Many
class members were determined to be excludable from this country and
have been detained in the federal penitentiary in Atlanta pending
Cuba's willingness to accept their return.  Cuba has recently agreed
to the return of 2,746 named Mariel Cubans, many of whom are
plaintiffs here, in exchange for concessions from the United States.
Plaintiffs' application arises out of an appeal by the government from
an order of the district court entered on October 15, 1984, setting
aside the exclusion orders of class members (App. E, infra) and thus
preventing the United States from obtaining the benefit of its
agreement with Cuba.  The district court denied the government's
motion for a stay pending appeal (App. D, infra).

   On January 16, 1985, the court of appeals granted a partial stay
pending appeal (App. C, infra).  On January 23, 1985, plaintiffs moved
that the partial stay be vacated or modified.  The court of appeals
denied the motion to vacate but clarified its partial stay on January
25, 1985 (App. A, infra).  The appeal has been expedited and
consolidated with an appeal from another order of the district court
(App. B, infra).  Argument is set for the week of February 25, 1985
(ibid.).  Plaintiffs filed the present application on January 28,
1985.

   1. a. These habeas corpus actions by Cuban nationals who entered
the United States in the 1980 Mariel boatlift were consolidated in the
United States District Court for the Northern District of Georgia.
The district court certified a class consisting of those Cubans who
are now or have been detained in the federal penitentiary in Atlanta.
Fernandez-Roque v. Smith, 91 F.R.D. 117, 123, mod., 91 F.R.D. 239, 244
(1981).  Class members initially challenged only their confinement,
but later alleged that they are refugees entitled to asylum.  See 8
U.S.C. 1158.  Although more than 120,000 Cubans entered this country
during the 1980 boatlift, most were granted parole upon their arrival.
 The class numbers approximately 1800.  Fernandez-Rogue v. Smith, 671
F.2d 426, 428 & n.1 (11th Cir. 1982);  see also Fernandez-Roque v
Smith, 734 F.2d 576 (11th Cir. 1984).  Final orders of exclusion have
been entered with respect to many members of the class.  See 8 U.S.C.
1226.

   b. In April 1982, the district court determined that it lacked
jurisdiction to review the exclusion orders of those class members who
had not exhausted their administrative remedies and that it lacked
"subject matter jurisdiction to remand to the (Immigration and
Naturalization Service (INS)) for a classwide hearing" on the aliens'
asylum claim.  Fernandez-Roque v. Smith, 539 F. Supp. 925, 943;  see 8
U.S.C. 1105a(c).  Attorneys for the class then sought to reopen the
administrative exclusion hearings of two individual class members on
the theory that they were members of a "social group" (i.e., the
boatlift participants) who would be subject to persecution if they
were returned to Cuba, making them eligible for asylum.  See 8 U.S.C.
1101(a)(42)(A), 1158.  The parties stipulated that decisions on the
two individual motions to reopen "will be binding on all
asylum/withholding of deportation issues relating to membership in the
Freedom Flotilla as a social group" (app. F, infra, 1).  The
stipulations expressly provided, however, that the two test cases
would have no binding effect over the determinations of other class
members "with respect to statutory and regulatory exceptions to
asylum/withholding eligibility" (ibid.).  /1/

   The two test motions to reopen were denied by the Board of
Immigration Appeals on the ground that the aliens had not presented a
prima facie case of persecution (App. G, H, infra).  The Board's
determination was heavily dependent on the aliens' failure to
demonstrate that they would be returned to Cuba without that country's
consent, an assumption on which their claim of persecution was largely
based (App. G, infra, 6;  App. H, infra, 6).  The Board did not reach
the "social group" issue that was the object of the stipulations nor,
on the INS's request for further review, did the Attorney General
(App. I, infra).

   c. The district court ruled on October 15, 1984, that the Board had
abused its discretion by failing to open the test cases because the
aliens had presented sufficient evidence of the likelihood of
persecution (App. E, infra).  The court remanded the test cases to the
Board and set aside all outstanding orders of exclusion (id. at
15-16).

   2. On December 14, 1984, the United States and Cuba concluded an
agreement on immigration matters, reflected in a "Communique" and a
"Minute on Implementation" (App. J. infra, ex. A).  Cuba has agreed to
the return of 2,746 named Mariel Cubans in exchange for the resumption
of this country's normal processing of preference immigrant visas for
Cuban nationals.  The agreement limits the number of Mariel Cubans
that may be returned to 100 per month, except that, if fewer than 100
aliens are returned in a calendar month, the shortfall may be made up
in subsequent months.  Under no circumstances may more than 150 Cubans
be returned in any calendar month.  Cuba's willingness to enter into
this agreement probably stems in large part from its desire to resume
using immigration to the United States as a means of reducing internal
pressures.  The United States has already begun the process of issuing
up to 20,000 preference immigrant visas and facilitating the admission
as refugees of up to 3,000 former political prisoners during 1985.
App. J, infra, 203.

   The government of Cuba has indicated that it will not mistreat any
of the persons returned under the agreement.  Michael Kozak, head of
the United States negotiating team, was assured by Cuban officials
that returnees "will not be penalized for having left Cuba or for
having participated in the Mariel Boatlift" (App. K, infra, 4).  Cuba
plans to reintegrate into its society those returnees having no
medical or United States criminal problems;  Cuba asserts that its own
former prisoners "either had already completed their sentences or had
had their sentences commuted prior to their departure" (id. at 2).
President Castro echoed these views in a speech on December 14, 1984,
in which he promised responsible treatment for the returnees (id. at
3).  As Mr. Kozak summarized (id. at 4):

      (T)hrough authoritative statements of Cuban officials, including
      of President Castro and of the authorized representative of the
      Government of Cuba, * * * Cuba has undertaken not to persecute
      any of the returned Mariel participants.  Instead, the
      government of Cuba has expressed its consent to the return of
      these individuals, and all of its actions and expressed
      positions are consistent with an orderly reintegration of these
      returned individuals into Cuban society, save where it is
      determined on a case by case basis and under Cuban law that
      particular individuals require institutionalization for their
      own safety or that of the Cuban public.

   3. The government appealed from the district court's October 15,
1984, order and sought a stay pending appeal.  The district court
refused to grant the stay (App. D, infra).  In seeking a stay from the
court of appeals, the government argued that many class members are
not entitled to asylum regardless of whether they are members of a
social group subject to persecution, because they had committed
serious crimes.  See 8 C.F.R. 208.8 (f)(1).  The government also
stated that no class members would be returned until February 8, 1985,
in order to allow them time to pursue administrative relief on an
individual basis.

   The court of appeals granted a partial stay on January 16, 1985
(App. C, infra), staying those parts of the district court's order
that vacated all outstanding orders of exclusion and remanded the test
cases to the Board (id. at 2 & n.2).  The court noted (id. at 2) that
the stay "is without prejudice to the rights of individual members of
the class to pursue administrative or, if appropriate, judicial
remedies." The court interpreted the government's representations to
mean that it would not, during the pendency of the appeal, return to
Cuba any class member who is not rendered ineligible for asylum or
withholding of deportation by reason of having committed a serious
crime either in Cuba or in the United Stated (id. at 2 n.2).  The
appeal was expedited and argument set for the week of February 25,
1985 (App. B, infra).  /2/

   On January 23, 1985, plaintiffs moved the court of appeals to
vacate or to modify the partial stay entered on January 16.
Plaintiffs requested that, if the stay were not vacated, the court
modify its order to provide that no alien who files a new asylum claim
may be deported pending appeal, or clarify the order with respect to
who must make the statutory ineligibility decisions and when those
decisions must be made.  On January 25, 1985, the court of appeals
modified its earlier order to order explicitly (App. A, infra, 2-3;
footnotes omitted):

      that the government take no action to return to Cuba any of
      those class members identified in the stipulations who claim
      eligibility for asylum on the ground that they have a
      well-founded fear of persecution because of membership in a
      social group, and who are not returnable under subsection 2 of 8
      U.S.C. Section 1253(h) (which sets forth the ineligibility
      criteria), until such time as the issues on this appeal are
      resolved or until further order of this court.  This order shall
      not preclude the government's return of any excludable alien who
      comes within the provisions of 8 U.S.C. Section 1253(h)(2).

The present application to vacate the partial stay pending appeal
entered by the court of appeals was filed on January 28, 1985.

                               ARGUMENT

   The power to vacate a stay entered by a court of appeals pending
its own consideration of the merits "should be exercised with the
greatest of caution and should be reserved for exceptional
circumstances." Holtzman v. Schlesinger, 414 U.S. 1304, 1308 (1973)
(Marshall, Circuit Justice).  "A Court of Appeals' decision to enter a
stay is entitled to great deference," O'Connor v. Board of Education,
449 U.S. 1301, 1304 (1980) (Stevens, Circuit Justice), and
interference with that decision is warranted only by the "weightiest
considerations," Bonura v. CBS, Inc., 459 U.S. 1313 (White, Circuit
Justice);  New York v. Kleppe, 429 U.S. 1307, 1310 (1976) (Marshall,
Circuit Justice).  A stay may be dissolved only where it is reasonably
probable that, if the court of appeals reverses the district court on
the merits, four Members of the Court would ultimately vote to grant
certiorari;  there is a significant possibility that this Court or the
court of appeals would agree with the decision of the district court;
and the stay, if not vacated, would result in irreparable harm.  See
Certain Named and Unnamed Non-Citizen Children v. Texas, 448 U.S.
1327, 1330-1332 (1980) (Powell, Circuit Justice).  A Circuit Justice
must be extremely relectant to vacate an interim stay pending a court
of appeals' decision on the merits because such a ruling "invades the
normal responsibility of (the) court (of appeals) to provide for the
orderly disposition of cases on its docket" (id. at 1331).  In sum,

      a Circuit Justice has jurisdiction to vacate a stay where it
      appears that the rights of the parties to a case pending in the
      court of appeals, which case could and very likely would be
      reviewed (in the Supreme Court) upon final disposition in the
      court of appeals, may be seriously and irreparably injured by
      the stay, and the Circuit Justice is of the opinion that the
      court of appeals is demonstrably wrong in its application of
      accepted standards in deciding to issue the stay.

Coleman v. PACCAR Inc., 424 U.S. 1301, 1304 (1976) (Rehnquist, Circuit
Justice).

   The application to vacate the partial stay pending appeal should be
denied because it is not probable that plaintiffs will prevail on the
merits in the court of appeals or in this Court;  the partial stay
does not irreparably harm plaintiffs because only those aliens who
would be ineligible for relief even if the court of appeals affirms
the district court's order may be deported pending the appeal;  and
the partial stay is necessary to prevent irreparable harm to the
United States and to serve the public interest.

   1. Likelihood of success.  It is exceedingly unlikely that
plaintiffs will prevail in the court of appeals or in this Court.  In
order to prevail as a class, plaintiffs would have to demonstrate,
inter alia, (1) that a favorable resolution of the test cases requires
the reopening of the exclusion hearings of all class members, even
those who are criminals ineligible for asylum relief and those over
whom the district court lacked jurisdiction and (2) that the Board of
Immigration Appeals abused its discretion in determing that the aliens
had failed to establish a prima facie case of persecution.  Plaintiffs
cannot prevail on either point.

   First, many class members are not entitled to reopening no matter
what the outcome of the two test cases.  /3/ The class of detainees at
the Atlanta penitentiary is not a typical cross-section of aliens.  It
is composed largely of criminals whose release has been determined to
be detrimental to the public.  Persons who have committed serious
crimes may not be granted asylum or withholding of deportation.  /4/
Even if the test cases are remanded to the Board and the Board rules
favorably with respect to the social group and persecution issues,
these members of the class could not avoid deportation.  Moreover,
many members of the class still have not exhausted their
administrative remedies.  The district court therefore lacked
jurisdiction over their claims, as the court itself recognized earlier
(539 F. Supp. at 939).  Notwithstanding the stipulations (see note 3,
supra), the district court was without power to set aside the
exclusion orders pertaining to these aliens.  8 U.S.C. 1105a(c).

   Second, the Board of Immigration Appeals did not abuse its
discretion in denying the motions to reopen.  Much of the evidence
submitted by the aliens related to boatlift participants who had
attempted to return to Cuba without first obtaining the permission of
Cuban authorities.  Because plaintiffs had not presented evidence that
they would be returned in similar circumstances, the Board concluded
that the evidence was not sufficient to demonstrate a prima facie case
of a likelihood of persecution (App. G, H, infra, 6).  Contrary to
plaintiffs' claim (Applic. 39-40 n.18), whether the Cuban government
has consented to their return is obviously relevant to whether they
will be persecuted upon return to their homeland.

   It is likely that the court of appeals will reverse the district
court's order;  the fact that it granted a stay demonstrates as much.
The court of appeals has already twice determined that the district
court erred in its rulings in this case (734 F.2d 576;  671 F.2d 426).
 It is clear that the district court has again overstepped the bounds
of proper review of administrative determinations.  Its order (App. E,
infra) distorts the Board's opinion, misintrepets the Board's
evidentiary conclusions, and, as we have demonstrated, misreads the
stipulations and ignores the statutory limits on its own jurisdiction.
 Finally, it is quite unlikely that four Members of this Court would
vote to grant certiorari to review a decision of the court of appeals
reversing the district court's order, as only factual and settled
legal questions would be presented.

   2. Irreparable injury.  The partial stay granted by the court of
appeals will not irreparably injure plaintiffs.  Although the
government had asked that the district court's order be stayed in its
entirety, the court of appeals entered a stay only with respect to
those plaintiffs who come within the statutory and regulatory
exceptions to elegibility for asylum and withholding of deportation
(see App. A, C, infra;  pages 8-9 & n.4, supra).  /5/ These are
precisely the members of the class who cannot benefit even if the
court of appeals affirms the remand of the test cases to the Board.
Hence, their deportation during the pendency of the appeal does not
constitute the sort of harm relevant to whether a stay should be
granted.

   Significantly, every class member may pursue his own individual
remedies during the pendency of the appeal and, if successful, prevent
his deportation.  Thus, meritorious claims may be distinguished from
those without substance.  Those aliens barred from obtaining asylum
should not be able to receive automatic relief simply because some of
their fellow class members may possess the eligibility that they lack.
 Finally, the agreement with Cuba dispels any likelihood of
persecution upon the aliens' return (see page 5, supra).  The court of
appeals was well within its discretion in determining that plaintiffs
have not demonstrated irreparable injury sufficient to overcome the
other factors in favor of a stay.

   Plaintiffs make three responses.  First, they argue (Applic. 20-23)
that ineligibility determinations cannot be made without balancing the
seriousness of the alien's crime against the degree of persecution he
is likely to face should he be deported.  Nothing in the statute or
regulations, however, expressly requires such balancing.  Moreover,
even if balancing might otherwise be appropriate, the agency is well
within its discretion to refuse to undertake that balancing where, as
here, the degree of likely persecution is not great.  Cf. INS v. Wang,
450 U.S. 139 (1981) (Board may refuse to consider claim of "extreme
hardship" without a hearing where prima facie case has not been
established);  INS v. Bagamasbad, 429 U.S. 24 (1976) (motion to adjust
alien's status may be denied as a matter of descretion without
findings as to eligibility).  Plaintiffs' own expert testified that
the sort of persecution class members would most likely face, if
returned without Cuba's consent, included only "some elements of house
arrest, some element of compulsory work on what might have been
vacation time or weekends and the like" (Leon Admin. R. 615).  /6/
Finally, the balancing plaintiffs seek must of course be done on an
individualized basis.  Individual motions to reopen therefore must be
filed;  the classwide relief plaintiffs seek is inappropriate even on
their own theory.

   Second, plaintiffs argue (Applic. 23-30) that requiring individual
motions to reopen would present administrative difficulties.  /7/
While real, none of the problems to which they allude is
insurmountable.  When we filed our stay motion in the court of
appeals, we represented that no deportations would take place for 30
days.  It is now apparent that deportations cannot begin until at
least the middle of February.  While time is short, plaintiffs have
received adequate notice to make the necessary preparations,
especially given the relatively modest rate at which aliens will be
returned under the agreement with Cuba.

   Finally, plaintiffs urge (Applic. 25, 45) various modifications in
the court of appeals' partial stay order.  The court of appeals
rejected these proposals when it entered its last order (App. A,
infra), and there is no reason for this Court to interfere with the
details of the operation of the stay.  In any event, plaintiffs'
proposals are without merit.  Plaintiffs ask first that deportation be
stayed for any alien who files a motion to reopen.  This would be
tantamount to giving plaintiffs virtually all of the relief they seek.
 The statute and regulations provide ample opportunity to seek and
obtain a stay.  See 8 U.S.C. 1105a(a)(3), 1226(b);  8 C.F.R. 3.6,
3.8(a), 242.22.  Plaintiffs are not entitled to any special treatment
in this regard as compared with other aliens seeking to reopen their
hearings.

   The stay is not ambiguous with respect to who is to make the
initial eligibility determinations.  Officials of the Department of
Justice are the obvious persons to do so, and they are obligated to
make a good-faith effort to select for deportation only those aliens
who meet the ineligibility criteria.  In the unlikely event that they
err in a particular case, the individual may obtain relief through a
motion to reopen.  In fact, this aspect of the court of appeals' order
gives the plaintiffs more relief than they are entitled to.  Under the
statute and regulations, it is the alien who must demonstrate
eligibility for asylum.  Under the court's partial stay, however, the
government may deport only those aliens who it determines are
ineligible for relief;  the aliens need do nothing.  This works to
plaintiffs' benefit;  it provides no ground for awarding them even
more relief.  Finally, although names and addresses of class members
may be useful to plaintiffs' attorneys, there is no basis for this
Court to require such discovery from the government, especially where
plaintiffs' counsel do have a list of all present detainees, they know
that Cuba has agreed to the return of the vast majority of these
persons, and the rate of return cannot average more than 100 aliens
per month.

   3. Harm to the government and the public interest.  The injury to
the government caused by the district court's order weighs strongly in
favor of the stay entered by the court of appeals.  /8/ For four and
one-half years, the United States has been unable to return any
excludable Mariel participant to Cuba.  The Cuban government has
finally agreed to the return of its nationals in exchange for normal
immigrant visa processing by this country.  Pursuant to the agreement,
deportations could have commenced in mid-January, but will take
several years to complete even under the best of circumstances.  Any
significant delay at the outset will, at a minimum, substantially
prolong the entire process.  Cuba, on the other hand, enjoys its
benefit of the bargain from the very beginning.  Lengthening the
duration of the return process greatly increases the risk that the
United States will ultimately not reap its benefits, as changing world
conditions may alter the climate that enabled the countries to reach
the present agreement.  As Under Secretary of State Armacost stated
(App. J, infra, 5-6):

         (P)ast experience demonstrates * * * (that) extraneous events
      in the course of Cuban-United States relations could lead Cuba
      to act in disregard of its obligations under the agreement at
      some point in the future.  For this reason, it is critical to
      the successful implementation of the agreement that the United
      States be able to begin transporting excludable Mariel
      participants to Cuba as soon as the agreement permits.

         * * * In addition, there is a risk that sporadic and
      unpredictable implementation on the United States' part will
      disrupt the administrative arrangements made by Cuba, and make
      it more difficult for Cuba to receive and process expeditiously
      and properly a larger volume of returnees when the United States
      achieves full implementation.  Thus, any unnecessary delay in
      implementation (sic) of the returnees could have serious,
      adverse consequences for United States interests and could
      introduce complications into U.S. migration relations with Cuba.

         * * * (I)t is vital to United States foreign policy interests
      that the United States begin returning excludable Mariel Cubans
      immediately upon expiration of the 30-day period following
      signature of the agreement, and that it continue to do so at or
      near the rate envisioned by the agreement.

                              CONCLUSION

   It is therefore respectfully submitted that the application to
vacate the stay pending appeal should be denied.

   REX E. LEE

      Solicitor General Department of Justice Washington, D.C.  20530
      (202) 633-2217

   JANUARY 1985

   /1/ Aliens who have committed serious crimes or constitute a danger
to the United States are not eligible for asylum or the related remedy
of withholding of deportation.  See 8 U.S.C. 1253(h)(2);  8 C.F.R.
208.8(f)(1);  pages 8-9 & n.4, infra.

   /2/ The appeal has been consolidated with the government's appeal
from another order of the district court concerning the Attorney
General's authority to decline to release class members from the
penitentiary (App. B, infra).

   /3/ The stipulations plainly did not convert the two test cases
into classwide motions to reopen.  The court of appeals recognized
this when it stated that the district court was "clearly in error" in
characterizing its dissolution of all outstanding exclusion orders as
surplusage (App. C, infra, 2 n.1).  The stipulations allowed classwide
treatment of certain common issues presented by the aliens' claims,
particularly with respect to whether they could claim persecution on
the basis of membership in a social group by virtue of their
participation in the boatlift.  By their own terms the stipulations
did not purport to substitute for individual motions to reopen, for
they did not cover the exceptions to asylum eligibility and they
allowed aliens to pursue their own motions (see App. F, infra, 1-2).
The district court itself had recognized earlier (539 F. Supp. at 943)
that it lacked jurisdiction to remand for a classwide hearing;
nothing in the stipulations could or did grant it such jurisdiction.
Class treatment would in any event be improper for the ultimate
resolution of asylum claims because individual issues predominate over
common ones.  See Fed. R. Civ. P. 23(b)(3).  Finally, contrary to
plaintiffs' assertion (Applic. 38), nothing in the stipulations
mandates the order in which issues must be decided.

   /4/ 8 U.S.C. 1253 (h)(2) provides that withholding of deportation
is not available if

   (B) the alien, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community of
the United States;

   (C) there are serious reasons for considering that the alien has
committed a serious nonpolitical crime outside the United States prior
to the arrival of the alien in the United States;  or

   (D) there are reasonable grounds for regarding the alien as a
danger to the security of the United States.

   The same grounds disqualify an alien from eligibility for asylum.
8 C.F.R. 208.8(f)(1)(iv)-(vi).

   /5/ Plaintiffs repeatedly suggest (Applic. 21 & n.7, 30-31 n.14,
32) that class members not within the eligibility exceptions might be
deported during the pendency of the appeal.  This simply ignores the
court of appeals' express limitation on the stay that it entered.
Regardless of who is on the list of Cubans to be returned, only those
persons ineligible for asylum may be deported while the appeal is
pending (App. A, infra, 2-3).  And the 147 class members identified as
non-violent who are currently detained (see Applic. 9) plainly cannot
be deported pending appeal (App. B, infra).

   /6/ Even if the court of appeals were to affirm the district
court's remand of the test cases to the Board because it concluded
that persecution was sufficiently likely as to give rise to a prima
facie asylum claim, class members who had committed serious crimes
would not, on a balancing test, automatically overcome their statutory
disqualification.  To the contrary, plaintiffs' proposed balancing
test assumes that persecution is likely (otherwise, the aliens would
not in any event be eligible for asylum), and then asks if that
persecution is so severe, above and beyond what is required simply to
invoke the protection of the statute, that the alien, though a serious
criminal, deserves asylum.  Here, even if the probability of Cuban
persecution is established, it is only by the thinnest of margins.
Hence, it is unlikely that class members with serious criminal
backgrounds could obtain relief under their balancing test.

   /7/ Plaintiffs also argue (Applic. 24 n.9) that it would be futile
to seek administrative relief.  But the Board's decision in the two
test cases did not purport to decide individual eligibility issues,
and the possibility of persecution will now be addressed in light of
the changed circumstances arising out of this country's agreement with
Cuba.  Moreover, were the agency to err with respect to whether a
particular individaal has a criminal background making him ineligible
for asylum, the alien's own motion to reopen would be the logical
avenue for him to make his argument.

   /8/ In addition to the foreign policy concerns discussed in text,
it must be noted that the district court's order, if left unstayed,
would put the government in an untenable administrative position --
the orders of exclusion would be set aside, but the aliens themselves
would not be required to come forward to press their claims.  The
district court thus gave the class the practical benefit of asylum
relief without requiring the aliens acutally to advance their claims
so that they could be decided by the INS.