December 18, 1978

Immigration and Nationality Act (8 U.S.C. § 1182(d)(5))—Cuban Parole Program

This responds to your request that we address the following questions:

1. Can a parole visa be revoked once the parolee has entered the 

United States? If so, under what conditions?1

2. Does the law allow any Cuban who holds dual U.S.-Cuban 

citizenship to immigrate to the United States with his or her 

entire family?

I. Parole Revocation

Parole of aliens into the United States is governed by § 212(d)(5) of the 

Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(d)(5). That 

provision reads as follows:

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 and 

when the purposes of such parole shall, in the opinion of the Attorney 

General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his 

case shall continue to be dealt with in the same manner as that of any 

other applicant for admission to the United States.

Thus, when the Attorney General determines that the purposes of parole have 

been served, parole is revoked and the parolee faces exclusion proceedings as 

described in §§ 235 and 236 of the Act, 8 U.S.C. §§ 1225, 1226, as would any 

alien initially applying for admission into the United States. Section 212.5(b) of

78-67 MEMORANDUM OPINION FOR THE SPECIAL ASSISTANT TO THE ATTORNEY GENERAL

'A n alien who is paroled into the United States does not receive a visa. A visa is a document 

issued by a consular officer to immigrants and nonimmigrants coming to the United States. 

M oreover, a parolee does not ‘‘enter" the United States in a legal sense. See 8 U .S.C . 

§ 1182(d)(5).

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Title 8 of the Code of Federal Regulations provides that parole shall be 

terminated and pre-parole status restored upon an alien’s receiving written notice 

of the following: expiration of his parole period; that the purpose for which the 

parole was authorized has been accomplished; or when the District Director of 

the Immigration and Naturalization Service (INS) in charge of the area where 

the alien is located determines that neither emergency reasons nor public 

interest warrants his continued presence in the United States. In parole 

revocation proceedings, parolees are not entitled to the full panoply of 

procedural rights accorded aliens in deportation proceedings.2 See, Leng May

Ma v. Barber, 357 U.S. 185 (1958); Rogers v. Quart, 357 U.S. 193 (1958); Siu

Fung Luk v. Rosenberg, 409 F. (2d) 555 (9th Cir. 1969), cert, dismissed, 396 

U.S. 801 (1969). Moreover, as stated above, the discretion to terminate parole 

resides in the Attorney General or his delegates and none of the statutory 

grounds for deportation under § 241 of the Act, 8 U.S.C. § 1251, need be 

alleged.

However, in one case, United States v. Murjf, 260 F. (2d) 610 (2d Cir. 

1958), the court held that the parole of certain refugees may be revoked only if 

they are accorded the same rights as those given aliens in deportation cases. 

The court after acknowledging that parolees may, in the normal case, have their 

parole summarily revoked, held that under the particular facts involved 

additional procedural protections were required before parole could be revoked. 

It noted that the circumstances under which the Hungarian refugees there 

involved were paroled into the United States made the case sui generis. In 

concluding that the refugees were “ invited” to this country, the court stressed 

that the President had directed the Attorney General to exercise his § 212(d)(5) 

parole power to admit a certain number of Hungarian refugees in excess of the 

visas authorized under the Refugee Relief Act. Id., at 613. It also stressed the 

fact that Congress had passed legislation endorsing the President’s action.

The M urff case seems to stand alone; other courts have consistently 

distinguished Murjf. See, Ahrens v. Rojas, 292 F. (2d) 406 (5th Cir. 1961) 

(case involving Cuban refugees); Siu Fung Luk v. Rosenberg, 409 F. (2d) 555 

(9th Cir. 1969), cert, dismissed, 396 U.S. 801 (1969). But see the dictum of the 

Board of Immigration Appeals in Matter o f O, Interim Decision 2614 (1977), 

suggesting that M urff might have some applicability to parole revocations of 

certain aliens paroled into the United States as part of the Vietnam evacuation. 

However, it would seem that even if the M urff rationale were invoked, a court 

would not necessarily require the full range of procedural protections required 

in deportation proceedings. See the comments of the Board of Immigration 

Appeals in Matter o f O, supra.

Once parole is revoked, the alien becomes subject to an exclusion proceeding, in which he may seek asylum in the United States as a political refugee. 

Previously the law was unsettled. See, Sannon v. United States, 421 F. Supp. 

1270 (S. D. Fla. 1977) (asylum claims must be heard in exclusion proceed2The procedural rights due aliens subject to deportation proceedings are set forth in § 242 of the 

Act, 8 U .S.C . § 125;.

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ings), and Pierre v. United Stales, 547 F. (2d) 1281 (5th Cir. 1977) (asylum 

claims are not required to be considered in exclusion proceedings).3 However, 

the issue has been mooted since the Solicitor General represented to the 

Supreme Court that the Government would grant a hearing on asylum 

applications in exclusion proceedings. See Memorandum Suggesting Mootness, 

in Pierre v. United States, O. T. 1977, No. 77-53. The Court granted 

certiorari, vacated the judgment, and remanded the case to the Court of Appeals 

to determine the mootness question. Pierre v. United States, 434 U.S. 962 

(1977). In the meantime, INS has proposed a regulation to grant hearings on 

asylum claims in exclusion proceedings. 43 F.R. 48629. Thus, asylum claims 

must now be heard in an exclusion proceeding.

II. Dual United States and Cuban Citizenship

A U.S. citizen possessing dual citizenship may leave and reenter the United 

States without regard to any restrictions applicable to aliens. Cuban residents 

related to U.S. citizens and who are themselves U.S. citizens at birth by virtue 

of section 301(a) of the Act, 8 U.S.C. § 1401(a), may also enter the United 

States without regard to such restrictions.

Alien “ immediate relatives” of U.S. citizens may be admitted to this country 

without regard to quota limitations pursuant to § 201(a) of the Act, 8 U.S.C. 

§ 1151(a). That term includes a U.S. citizen’s children, spouse, and where the 

U.S. citizen is at least 21 years old, his parents. § 201(b), 8 U.S.C. § 1151(b). 

Also, it is permissible first to parole these persons into the United States and 

permit them thereafter to seek adjustment of their status to that of persons 

admitted for permanent residence. § 245, 8 U.S.C. § 1255. Other members of 

the U.S. citizen’s family may be paroled into the United States although they 

may not enjoy the status of immediate relatives of a U.S. citizen.

J o h n M . H a r m o n

Assistant Attorney General

Office o f Legal Counsel

3The issue in these cases centered on the interpretation of the United Nations Convention and 

Protocol Relating to the Status of Refugees, 19 U .S.T. 6223, TIAS 6557, to which the United 

States became a signatory on November 1, 1968.

Article I of that docum ent incorporates by reference the 19 5 1 Geneva Convention Relating to the 

Status of Refugees. Article 1, as modified by the Protocol, defines a refugee as one who—

. . . owing to well-founded fear of being prosecuted for reasons of race, religion, 

nationality, m em bership 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 him self 

of the protection of that country, or who. not having a nationality and being outside the 

country of his former habitual residence, is unable or, owing to such fear, is unwilling to 

return to it.

Article 33 of the Protocol provides in pertinent part that ''[n ]o Contracting State shall expel or 

return ("refo u ler") a refugee in any m anner 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.”

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