Full opinion text
ORDER SHOOB, District Judge. This litigation brought on behalf of Cuban detainees at the Atlanta Federal Penitentiary has reached a critical juncture. Presently before the Court for decision is a petition for writ of habeas corpus challenging the legality of the continued incarceration of Cubans who have been determined not to be releasable under the Attorney General’s Status Review Plan. Petitioners also include a significant number of Cubans who were previously paroled into the United States by the Attorney General pursuant to his authority under 8 U.S.C. § 1182(d)(5), but who are now incarcerated in Atlanta following revocation of their parole. Before addressing petitioners’ legal claims, the Court will briefly review the history of these consolidated cases to set the background for the legal discussion that follows. BACKGROUND On January 8, 1981, Moisés Garcia-Mir, a Cuban national who arrived on these shores as a member of the 1980 “Freedom Flotilla” from Mariel, Cuba, and who was then incarcerated at the federal penitentiary in Leavenworth, Kansas, filed a class action complaint for declaratory and injunctive relief in the United States District Court for the District of Kansas, seeking a declaration that his continued incarceration was arbitrary, an abuse of the Attorney General’s discretion, and a violation of his constitutional rights and fundamental human rights under international law. The complaint, brought on behalf of approximately 1,800 incarcerated Cubans, alleged that the continuing detention was illegal in the absence of a determination that, if released, an alien was likely to abscond, to pose a national security risk, or to pose an actual and serious threat to persons or property within the United States. Based on this alleged illegality, plaintiffs sought either immediate release or a procedurally adequate hearing to determine whether continued detention was warranted. Shortly after the filing of Garcia-Mir’s complaint, all Cubans incarcerated in various federal facilities were transferred to the United States Penitentiary in Atlanta, Georgia. Accordingly, on May 12,1981, the United States District Court for the District of Kansas transferred the Garcia-Mir case to this Court. On June 5, 1981, Rafael Fernandez-Roque, another member of the “Freedom Flotilla” who was incarcerated at the U.S. Penitentiary in Atlanta, filed a class action petition for habeas corpus relief challenging the refusal of the Attorney General to release on parole those Cubans who continued to be incarcerated solely on the ground that they were excludable for lack of proper entry documents pursuant to 8 U.S.C. § 1182(a)(20). Fernandez-Roque contended that such continued incarceration constituted an abuse of discretion, a violation of constitutional rights and a violation of fundamental human rights under international law. Because the class that Fernandez-Roque sought to represent would have been a subclass of the class that Garcia-Mir sought to represent, the Court consolidated the two actions by its order of July 14, 1981. The individual habeas petition filed by Orlando Chao-Estrada was consolidated with the two class actions on July 24, 1981. On August 7, 1981, the Court entered an order granting, inter alia, plaintiffs’ renewed motion for class certification and conditionally certified a class of all Cuban nationals incarcerated at the Atlanta Federal Penitentiary who had arrived in this country as part of the “Freedom Flotilla” of 1980. Fernandez-Roque v. Smith, 91 F.R.D. 117, 123, as modified, 91 F.R.D. 239, 240 n. 1 (1981). The Court also certified twelve subclasses and issued a series of show cause orders to the government. Id. at 124-26. The twelve subclasses were defined in terms of the government’s excludability determinations and were designed to separate detainees into categories according to release priorities. Subclasses one through four were comprised of Cubans who were charged or found excludable solely on the basis of lack of proper entry documents. This Court had already determined in an earlier case that incarceration for this reason alone was an abuse of the Attorney General’s discretion. Soroa-Gonzales v. Civiletti, 515 F.Supp. 1049 (N.D.Ga.1981). The higher-numbered subclasses consisted of Cubans who had been found excludable for increasingly serious crimes in Cuba, or those who had been accused or convicted of criminal activity in the United States. The subclasses were thus intended to facilitate the earliest release of those Cubans as to whom the government was the least likely to object. Shortly after the August 7, 1981, order was entered the government filed a motion for relief from the order, asking that the Court defer its show cause hearings until class members had exhausted their administrative remedies under a new, accelerated status review plan. Attached to the government’s motion was a copy of the Status Review Plan and Procedures approved by the Attorney General on July 24, 1981, under which the government proposed to review each detainee to determine whether continued detention was necessary. The Court proceeded on August 17 and 19,1981, to conduct the show cause hearings ordered with respect to subclasses one through four. Because the government failed to show cause why members of these subclasses should not be released, the Court ordered that they be released as soon as sponsors could be located, and in no case later than September 15, 1981. Fernandez-Roque, supra, 91 F.R.D. 239, 243, (Order of Aug. 20, 1981). The Court also ordered the release of 155 detainees as to whom the government announced in open court on August 17, 1981, that it had no further objections to release. Id. at 241. The government then moved to stay the August 20 order, and on August 21, 1981, the Court modified its order to permit the government to perform its own review under the Attorney General’s Status Review Plan of those ordered released. Since that time, releases have proceeded pursuant to the Attorney General’s plan, and this Court has entered no further orders of release. On October 20,1981, plaintiffs moved for entry of writs of habeas corpus as to those class members who had been approved for release under the Attorney General’s review plan since August 20, 1981, but who remained incarcerated. On November 12, 1981, at plaintiffs’ request, the Court deferred ruling on this motion. Subsequently, on January 21,1982, plaintiffs filed suggestions for further releasability proceedings, proposing that they be allowed to inspect Bureau of Prison (“BOP”) and Immigration and Naturalization Service (“INS”) files for each class member held under a final administrative order of detention. Plaintiffs stated that once the inspection was completed, class-wide and subclass-wide challenges would be made to the Cubans’ continued detention. Following the Court’s granting of plaintiffs’ motion to compel production of BOP and INS files on the detainees, plaintiffs commenced the necessary file review. Thereafter, on July 27, 1982, plaintiffs renewed their motion for habeas corpus relief for those detainees determined releasable but still incarcerated awaiting sponsors. The Court ordered that a show cause hearing be held on September 3, 1982, and at that hearing plaintiffs presented evidence of the especially deleterious psychological impact upon potential releasees of continued detention following approval for release. Plaintiffs also presented evidence of available sponsorship alternatives that could significantly reduce the release waiting time. Subsequently, in its order of November 23, 1982, the Court found that the Attorney General had abused his discretion by placing unreasonable restrictions on sponsorship placements and ordered that certain measures be taken to correct the abuses. Fernandez-Roque v. Smith, 557 F.Supp. 690 (N.D.Ga.1982). That order is presently on appeal by the government to the Court of Appeals for the Eleventh Circuit (Docket No. 83-8065). Meanwhile, having completed their file review, plaintiffs on November 15, 1982, filed their brief in support of their habeas corpus petition on behalf of all class members determined nonreleasable. The government was granted an extension of time to respond and filed its memorandum in opposition to the petition on January 26, 1983. Plaintiffs filed a supplemental brief in support of their petition on March 1, 1983, and on March 22, 1983, two amici curiae, the American Civil Liberties Union and the Lawyers Committee for International Human Rights, were permitted to file a brief in support of plaintiffs’ international law claims. The government filed a final reply memorandum on April 25, 1983. Because of the complexity and importance of the issues involved, the Court also heard oral arguments by both parties on May 2, 1983. The parties have now filed post-oral argument memoranda, and the habeas corpus petition is ripe for decision. DISCUSSION 1. Jurisdiction In Soroa-Gonzales v. Civiletti, 515 F.Supp. 1049, 1054-56 (N.D.Ga.1981), this Court held that it had jurisdiction to review the legality of Soroa-Gonzales’ continued confinement under the provisions of 8 U.S.C. § 1329, 28 U.S.C. § 1331, and 28 U.S.C. § 2241. For the same reasons as were stated there, the Court concludes that it has jurisdiction over the instant petition. In Soroa-Gonzales, supra, 515 F.Supp. at 1057-61, the Court reviewed the Attorney General’s decisions to revoke, and not to reinstate, petitioner’s parole under an abuse of discretion standard. In addition to reviewability for abuse of discretion, the scope of this Court’s review also extends to a determination of whether petitioners’ continued detention exceeds respondents’ statutory authority, or is contrary to constitutional right. 5 U.S.C. § 706; 28 U.S.C. § 2241(c)(3). Petitioners challenge their continued incarceration as being both beyond the Attorney General’s statutory authority and in violation of their constitutionally protected rights. They also challenge the Attorney General’s refusal to release various subclasses as an abuse of discretion. Each of these challenges is addressed in turn below. II. Statutory Authority Petitioners contend that there is no statutory authority for the continued indefinite administrative detention of any class member, regardless of the characteristics of the class member. The government, on the other hand, argues that it has the power to detain and incarcerate forever, if necessary, any class member who, in the discretionary opinion of the Attorney General, is not suitable for release on parole. Both parties agree that there is no express statutory authority for the indefinite detention of excludable aliens such as petitioners. Congress, evidently not foreseeing a situation where large numbers of excludable aliens arrive on our shores and then are denied reentry by their native country, enacted an exclusion procedure that envisions a swift decision regarding admission, rapid administrative and judicial review, and prompt execution of any final order of exclusion. Thus, upon the arrival of aliens at a United States port, “immigration officers may order a temporary removal of such aliens for examination and inspection... . ” 8 U.S.C. § 1223(a). If, after such inspection, an alien does not appear to the examining immigration officer “to be clearly and beyond a doubt entitled to land [the alien] shall be detained for further inquiry.... ” 8 U.S.C. § 1225(b). The aliens in the instant case were initially detained under the authority of this subsection. Following an alien’s initial detention under § 1225(b), “a special inquiry officer shall conduct proceedings ... to determine whether an arriving alien ... shall be allowed to enter or shall be excluded and deported.” 8 U.S.C. § 1226(a). Any alien who is excluded as a result of such proceedings “shall be immediately deported to the country whence he came, in accommodations of the same class in which he arrived, on the vessel or aircraft bringing him, unless the Attorney General, in an individual case, in his discretion, concludes that immediate deportation is not practicable or proper.” 8 U.S.C. § 1227(a). Petitioners argue that this statutory scheme contemplates only a temporary detention incident to and for purposes of accomplishing immediate deportation. To continue to incarcerate excludable aliens more than three years after their arrival in this country, and while there continues to be no realistic prospect of return to Cuba, is simply without statutory authority, petitioners contend. Petitioners rely primarily on the Supreme Court’s decision in Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140 (1896), and the Tenth Circuit’s recent decision in Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir.1981). In Wong Wing the Supreme Court held that although the government could detain an alien pending exclusion, it could not supplement the order of exclusion by inflicting summary punishment at hard labor: We think it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid. Proceedings to exclude or expel would be vain if those accused could not be held in custody pending the inquiry into their true character, and while arrangements were being made for their deportation. Detention is a usual feature in every case of arrest on a criminal charge, even when an innocent person is wrongfully accused; but it is not imprisonment in a legal sense. But when congress sees fit to further promote such a policy [of exclusion of certain classes of aliens] by subjecting the persons of such aliens to infamous punishment at hard labor, or by confiscating their property, we think such legislation, to be valid, must provide for a judicial trial to establish the guilt of the accused. Wong Wing, supra, 163 U.S. at 235, 237, 16 S.Ct. at 980, 981. In Rodriguez-Fernandez, supra, 654 F.2d at 1387, the Tenth Circuit held that the logic of Wong Wing also applied when an excludable Cuban alien who was being detained in a federal prison sought habeas corpus relief: Detention pending deportation seems properly analogized to incarceration pending trial or other disposition of a criminal charge, and is, thus, justifiable only as a necessary, temporary measure. Obviously detention pending trial assumes a different status if there is to be no trial. If, in this case, administrative officials ordered penitentiary confinement for life or a definite term because Cuba would not accept petitioner, it seems certain the Courts would apply Wong Wing and hold that such imprisonment is impermissible punishment rather than detention pending deportation. Logic compels the same result when imprisonment is for an indefinite period, continued beyond reasonable efforts to expel the alien. Thus, the court held that the statutory scheme did not authorize indefinite detention as an alternative to exclusion, but at the same time the court declined to read into the statute a specific time limit for detention. Rather, since the statute contemplates temporary detention, we hold that detention is permissible during proceedings to determine eligibility to enter, and, thereafter, during a reasonable period of negotiations for their return to the country of origin or to the transporter that brought them here. After such a time, upon application of the incarcerated alien willing to risk the possible alternatives to continued detention, the alien would be entitled to release. Id. at 1389-90. The government, in opposition to petitioners’ contentions, relies on the Fourth Circuit’s recent decision in Palma v. Ver deyen, 676 F.2d 100 (4th Cir.1982). In that case the Fourth Circuit reversed a district court’s grant of habeas relief to an incarcerated, excludable Cuban alien, holding that “the Attorney General has implicit authority to detain rather than parole an excluded alien who cannot be returned to his own country.” 676 F.2d at 104. The court found it significant that Congress had not expressly denied such authority with respect to excludable aliens, while, if an alien is subject to deportation as distinguished from exclusion, the Attorney General is required to deport him within six months or else release him. 8 U.S.C. § 1252(c). “The absence of a six month restriction on detention ... in the exclusion provision of § 1227(a) is indicative of congressional intent to authorize restrictions on the freedom of excluded aliens greater than those imposed on resident aliens.” 676 F.2d at 104. The court distinguished Rodriguez-Fernandez, supra, by the fact that that case had been decided before the Attorney General’s institution of the Status Review Plan. 676 F.2d at 105. From its own analysis of the statutory language and review of the cases relied on by both parties, this Court concludes that the government does possess an implied statutory authority to detain for an indefinite period excludable aliens who cannot be returned to their country of origin. First, the statutory scheme clearly contemplates, at the very least, the temporary detention of aliens in conjunction with the prompt determination of excludability and the expeditious removal of an inadmissible alien. The statute, however, also recognizes that expeditious removal may not always be possible. The Attorney General may conclude that “immediate deportation is not practicable or proper.” 8 U.S.C. § 1227(a). Second, the Court agrees with the Fourth Circuit that the failure of Congress to place any express limit on the detention of ex-cludable aliens, while imposing a specific six month limitation on detention of aliens apprehended in the United States and subject to expulsion proceedings, was not a mere oversight but reflects an intent to permit greater restrictions on excluded aliens than on resident aliens. The distinction between excludable and deportable aliens is not without some rational basis. A deportable alien, i.e., an alien who has already gained entry into this country either legally or illegally, will often have ties to the community in which he resides, in the form of family and/or property, that militate against the need for long term detention if immediate deportation is not possible. Aliens apprehended at the border, however, will perforce have no such ties. Congress could reasonably have concluded, therefore, that an absolute time limit on the detention of excludable aliens would be unwise. Finally, because the authority of Congress and the executive over immigration matters “is plenary and knows few bounds,” Jean v. Nelson, 711 F.2d 1455, 1465 (11th Cir.1983), this Court is extremely reluctant to imply a statutory limitation on the Attorney General’s detention authority where none is expressly provided. This reluctance is even more pronounced in light of the fact that imposition of such a limitation would require the government to release detainees without regard to their potential threat to public safety or their own ability to care for themselves. Petitioners point out that the release of the detainees would not in any way abridge the congressionally delegated power of the executive to deny admission to aliens, because release on parole would not amount to a formal “admission” of the alien under the immigration laws. This technical distinction, however, would provide scant comfort to citizens who have legitimate fears of being victimized by the criminal acts of paroled aliens with prior records of serious criminal behavior. This Court is convinced, therefore, that the Attorney General possesses statutory authority to detain excludable aliens for an indefinite period if immediate exclusion is impracticable. It remains to be considered, however, whether there exist any constitutional limits on the Attorney General’s detention power. III. Constitutional Restrictions The fifth amendment to the United States Constitution provides in part: “No person shall be ... deprived of life, liberty, or property, without due process of lawIt is well settled, however, that this provision affords no procedural guarantees to aliens seeking initial admission to the United States. Congress, exercising this nation’s inherent rights of sovereignty, has plenary authority over the admission of aliens to this country: “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953) (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 S.Ct. 309, 313, 94 L.Ed. 317 (1950)). Only this term the Supreme Court reaffirmed this view in Landon v. Plasencia, - U.S. -, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982): “This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” Petitioners in the instant case, however, do not seek formal admission to this country. They simply assert a right to be free from arbitrary detention despite the government’s determination that they are excludable. In this regard the relevant principle to be recognized is that the protections afforded by the fifth amendment, as the plain words of the amendment indicate, extend to “persons” and are not restricted merely to citizens or to admissible aliens. The words of the Supreme Court nearly a century ago, discussing the parallel provision of the fourteenth amendment, are equally applicable here: The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: ‘Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886). The only challenge that might be made to the applicability of the fifth amendment to petitioners in the instant case would be based on the legal fiction that excludable aliens are not within the “territorial jurisdiction” of the United States but remain “stopped at the border.” The Eleventh Circuit, however, has recently rejected the notion that a person’s status as an excludable alien places him beyond the ambit of the fifth amendment. “Though that fiction serves its purpose to limit the procedural rights of an excludable alien ‘regarding his application’ for admission, Landon v. Plasencia, supra, [103 S.Ct. at 329], it strains credulity to maintain that an alien within our territorial limits may claim none of the rights accorded our citizens.” Jean v. Nelson, supra, 711 F.2d at 1484. See also Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 2391, 72 L.Ed.2d 786 (1982) (whatever his status under the immigration laws, an alien is surely a “person” in any ordinary sense of that term under fifth and fourteenth amendments); United States v. Henry, 604 F.2d 908 (5th Cir.1979) (excludable alien entitled to fifth amendment rights once criminal proceedings against him have commenced); Rodriguez-Fernandez, supra, 654 F.2d at 1387 (excludable alien in physical custody within the United States may not be “punished” without being accorded the substantive and procedural due process guarantees of the fifth amendment). The government does not dispute the applicability of fifth amendment protections to excludable aliens under the circumstances found in the cases noted above. However, the government contends that in the instant case the fifth amendment due process clause is not implicated, because petitioners are not suffering an infringement of any interest protected under that clause: The Government is not endeavoring to deprive these aliens of life or property, nor is it seeking to deprive them of liberty except in aid of its exclusion of them from the midst of our society. It is in this context that these excludable aliens have no liberty interest protected by the constitution, and it is only this context that has any relevance to this case. Defendants’ Memorandum in Opposition to Habeas Corpus Petition at 52. And again: The power to detain arises from the facts that the plaintiffs are aliens and that they are excludable. These questions are resolved in exclusion proceedings before immigration judges. The aliens are given all the procedural protections authorized by Congress in those proceedings. After it is determined that they are excludable, they have no constitutionally protected liberty interest to assert. Defendants’ Reply Memorandum in Opposition to Habeas Corpus Petition at 8. Simply put, the government contends that ex-cludability a lone is a sufficient predicate for indefinite detention, and that the decision to release an excludable alien on parole is purely a matter of executive “grace” to which no procedural requirements attach. The government analogizes petitioners’ situation to that of the plaintiff inmates in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), who claimed that they were denied procedural due process by the Nebraska Board of Parole in its parole release determinations. In Greenholtz the Supreme Court reiterated “that to obtain a protectible right ... [a person] must ... ‘have a legitimate claim of entitlement to it,’ ” (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)), and concluded that no entitlement to due process was created merely because a state provides for the possibility of release on parole: There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right.... Decisions of the Executive Branch, however serious their impact, do not automatically invoke due process protection; there simply is no constitutional guarantee that all executive decisionmaking must comply with standards that assure error free determinations. [Citations omitted.] This is especially true with respect to the sensitive choices presented by the administrative decision to grant parole release. 442 U.S. at 7, 99 S.Ct. at 2104. The Court went on to hold, however, that the Nebraska statutory language itself created a protectible expectation of parole, because it provided that the Board of Parole “shall order” a prisoner’s release “unless” at least one of four designated reasons is found. Id. at 12, 99 S.Ct. at 2106. The government argues that the determination of excludability, like the conviction in Greenholtz, extinguishes any liberty right petitioners may have and forms the basis for their lawful confinement. Moreover, unlike the Nebraska statute, 8 U.S.C. § 1182(d)(5) provides that “[t]he Attorney General may in his discretion parole” aliens into the United States. (Emphasis added.) Hence, the government argues, the statutory language creates no legitimate expectation of parole and thus no protectible liberty interest. There is, however, a flaw in the government’s attempted analogy with the Greenholtz case. The inmates in that case were all incarcerated pursuant to valid convictions for criminal offenses. Petitioners in the instant case, on the other hand, have simply been found to be excludable aliens under the immigration laws, a determination that may be premised on any one of the thirty-two categories listed in 8 U.S.C. § 1182(a), including such conditions as mental retardation and chronic alcoholism. The government contends that this factual distinction does not affect the sufficiency of the exclusion decision as a predicate for indefinite detention. In this Court’s view, however, the essentially different nature of a criminal conviction, as compared to an administrative determination of excludability, is what lies at the very heart of this case. A criminal conviction is the result of a factual determination, reached by means of an adversary proceeding incorporating the full panoply of due process protections, that an accused has committed all the elements of a recognized crime, for which society has determined some fixed period of incarceration (or perhaps some lesser punishment) to be the maximum just desert. A determination of excludability, on the other hand, is based on an administrative decision that an alien is not admissible to this country for any of a variety of reasons, see 8 U.S.C. § 1182(a), none of which has been legislatively made the basis of incarceration or other punishment, and many of which could not constitutionally be made the basis for such criminal sanctions. See, e.g., Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (“status” of narcotic addiction may not constitutionally be made a criminal offense). Looking first at the procedural aspects of the exclusion hearing, the Court notes that the proceeding provided by statute, see 8 U.S.C. §§ 1221-1230, and regulation, see 8 C.F.R. § 236 (1982), is inquisitorial rather than adversarial. A special inquiry officer (also known as an immigration judge) conducts the proceedings and interrogates the alien and other witnesses. 8 U.S.C. § 1226(a). The regulations, however, do provide the alien certain procedural rights. The immigration judge is required to inform the applicant [for admission] of the nature and purpose of the hearing; advise him of the privilege of being represented by an attorney of his own choice at no expense to the Government, and of the availability of free legal services programs ...; advise him that he will have a reasonable opportunity to present evidence in his own behalf, to examine and object to evidence against him, and to cross-examine witnesses presented by the Government.... 8 C.F.R. § 236.2(a) (1982). Moreover, the statute provides that the special inquiry officer’s determination shall be based only on the evidence produced at the exclusion hearing. 8 U.S.C. § 1226(a). A decision may then be appealed, by either the alien or the district director, to the Board of Immigration Appeals. 8 U.S.C. § 1226(b); 8 C.F.R. § 236.7 (1982). Absent an appeal, the special inquiry officer’s determination is final. 8 U.S.C. § 1226(c); 8 C.F.R. § 236.6 (1982) . Despite the superficial adequacy of such exclusion hearings, one recent commentary has argued that the “procedural safeguards [are] largely illusory.” Developments in the Law — Immigration Policy and the Rights of Aliens, 96 Harv.L.Rev. 1286, 1364 (1983) . That study contends that the “Enforcement mentality and administrative supervision of judges [that] are inherent in the current system” result in “immigration judges [who] are frequently predisposed to discount aliens’ claims” and INS officials who “seek to influence the outcome of particular cases.” Id. at 1364-65 (footnotes omitted). The appeals process, according to this commentary, is equally ineffective because, even in the few cases where aliens can obtain attorneys to take appeals, “they are heard before enforcement officials or judges controlled by such officials. Thus, [because] the Board of Immigration Appeals is a creature of regulation and could be abolished by the Attorney General [see 8 C.F.R. § 3.1(a)(1) (1982)] ..., the implicit threat of abolition undermines the independence of the Board’s judgment.” 96 Harv.L.Rev. at 1365 (footnote omitted). Apart from the question of an éxclusion hearing’s procedural adequacy for establishing a sufficiently reliable predicate for long-term detention, there is the question of whether the substantive nature of the hearing is such as to allow its outcome to justify an indefinite period of incarceration. It is true that detention is authorized pending the immediate exclusion of an excludable alien, and, as this Court has concluded above, that even indefinite detention is permitted where immediate exclusion is impracticable. This, however, does not alter the fact that, unlike an accused’s conviction for a criminal offense and his subsequent imprisonment, there is no essential connection between an alien’s being determined excludable and the need or propriety of subsequent imprisonment, at least not after an initial period during which detention may reasonably be imposed as an aid to effecting exclusion. This initial period has long since passed in the instant case, and further detention must therefore be premised on something other than a prior excludability determination. Once an excludable alien’s detention can no longer be justified merely as a means to his exclusion, i.e., once detention is no longer justifiable simply on the basis of excludability, then a legitimate expectation arises that the detention will end unless some new justification for continuing the detention is established. The basis for this expectation is simply the fundamental principle inherent in our constitutional system that all persons are entitled to their liberty absent some legally sufficient reason for detaining them. An alien’s excludability provides such a reason so long as the detention reasonably serves as an aid to the alien’s exclusion. After this initial period of time, however, the individual’s basic entitlement to liberty once again comes to the fore. Thus, even though the government is authorized to detain excludable aliens indefinitely where immediate exclusion is impracticable, the excludability determination itself provides the essential predicate for the exercise of this authority only for an initial, temporary period of time. Thereafter, a liberty interest arises on behalf of the alien detainee requiring that the continued exercise of the detention power be justified on the basis of a procedurally adequate finding that the detainee, if released, is likely to abscond, to pose a risk to the national security, or to pose a serious and significant threat to persons or property within the United States. The Mezei case, supra, on which the government relies, does not require a contrary holding. In that case the Supreme Court held that the continued exclusion of an alien as a bad security risk, even without a hearing, did not deprive him of any statutory or constitutional right, despite the fact that exclusion resulted in the alien’s indefinite detention on Ellis Island because other countries refused to admit him. Id., 345 U.S. at 213-16, 73 S.Ct. at 629-31. In Mezei, however, the alien was obliged to seek formal admission to the United States, since at that time there was no provision for the parole of excludable aliens. Hence, “the primary focus of Mezei was upon the excluded alien’s right to a due process hearing concerning his right of reentry into this country.” Rodriguez-Fernandez, supra, 654 F.2d at 1388. Here, however, petitioners seek only temporary release on parole and not admission to the United States. This alone, in this Court’s view, is sufficient to distinguish Mezei from the instant case and to justify rejection of the government’s contention that no constitutional infirmities inhere in petitioners’ continued indefinite detention. Nevertheless, Mezei is also distinguishable on other grounds. Mezei was excluded pursuant to the Attorney General’s authority under the Passport Act, ch. 81, § 1, 40 Stat. 559 (1918), as amended by ch. 210, § 1, 55 Stat. 252, 22 U.S.C. § 223 (1941), repealed by ch. 477, Title IV, § 403(a)(15), (20), (43), 66 Stat. 279, 280 (1952). The original Act passed on May 22, 1918, granted the President power to impose restrictions on the entry and departure of individuals to and from the United States during wartime. The Act was amended on June 22, 1941, to allow the President to impose such restrictions not only when the United States was at war but also when a state of war existed among two or more other nations, or pursuant to the national emergency proclaimed by the President on May 27, 1941. The Act was repealed on June 27, 1952, and similar restrictions were adopted that are now found at 8 U.S.C. § 1185. These restrictions may be imposed when the United States is at war, during the existence of any national emergency proclaimed by the President, or, in the case of aliens, whenever a state of war exists between two or more nations. 8 U.S.C. § 1185(a). With respect to petitioners in the instant case, no national emergency has been declared by the President, nor has the President sought to impose the restrictions contained in 8 U.S.C. § 1185 on members of the “Freedom Flotilla.” Rather than turning to the powers conferred pursuant to 8 U.S.C. § 1185, the government has relied on normal immigration statutes to support petitioners’ continued detention. The Mezei decision, which upheld the alien’s permanent exclusion, was clearly predicated on the existence of a national emergency, see Mezei, supra, 345 U.S. at 210, 73 S.Ct. at 628. During such a time, the powers of the President are at their zenith and constitutional rights may be curtailed. See Dames & Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981). Mezei is therefore distinguishable from the instant case insofar as its decision allowing detention was premised upon a statute conferring wartime or national emergency powers. Accordingly, the Court concludes that petitioners have an interest in their freedom from administrative detention that is protected by the due process clause of the fifth amendment. The Court must next determine just what process is due under the unusual circumstances of this case, and whether the review procedures already instituted by the government are adequate to meet constitutional requirements. IV. What Process is Due The government contends that even assuming that the due process clause imposes procedural constraints on parole determinations, the Attorney General’s Status Review Plan fully meets any such constitutional requirements. A brief description of the Status Review Plan and Procedures, as modified and approved by the Attorney General for a two year extension on April 28, 1983, see Attachment to Status Report for May 1983, is set out below. A. The Status Review Plan The Attorney General’s Plan is designed to facilitate parole determinations made pursuant to 8 U.S.C. § 1182(d)(5) and applies to any Mariel Cuban detained by the INS in any BOP facility pending his exclusion hearing and/or his deportation to Cuba or to another country. Initial recommendations for or against release on parole are made by Review Panels, which ordinarily are comprised of two persons selected from the professional staffs of different components of the Department of Justice. A Panel first reviews a detainee’s file, which includes (1) INS documents relating to the exclusion process; (2) incident reports received by the detainee while in detention, and, where applicable, any information concerning arrests, prosecutions, and convictions for offenses committed in the United States; (3) progress reports prepared by the BOP’s institutional staff and the BOP’s recommendation on continued detention or release; (4) a psychiatrie/psychological report on the detainee prepared by the Public Health Service (“PHS”), if such a report has been requested or previously furnished; (5) any previous decisions concerning parole; and (6) any other information deemed relevant to the Panel’s review. If a Panel recommends a detainee’s release based solely upon this record review, then the recommendation is promptly forwarded to the INS Commissioner’s designated representative, who has been delegated the ultimate responsibility for deciding whether a detainee will be released on parole or continued in detention. If the Commissioner’s representative approves the Panel’s recommendation, then the detainee will be paroled as soon as a suitable sponsorship can be arranged. If, however, the Panel’s recommendation is not approved, or if the Panel initially is unable to recommend release based upon its review of the detainee’s file, then the Panel conducts a personal interview with the detainee. Detainees are notified shortly after their arrival at a BOP facility of the purpose and procedures of the Review Plan, and when a Panel interview is to be conducted, the detainee is given written notice of the time and place of his interview at least seven days in advance. The detainee has the right to be accompanied at the interview by a person of his choice, who may assist him in presenting his case or answering the Panel’s inquiries. The detainee and the person assisting him, if any, are given access to INS documents relating to the exclusion process; BOP incident reports, progress reports and release recommendation; information concerning arrests, prosecutions, and convictions for offenses committed in the United States; and the Commissioner’s previous decisions, if any, concerning parole. The detainee may submit to the Panel any information, either orally or in writing, which he believes demonstrates that it is in the public interest that he be released. The burden of proof is on the detainee to convince the Review Panel that (1) he is presently a non-violent person, (2) he is likely to remain non-violent, and (3) he is unlikely to commit any criminal offense following his release. In making its recommendation the Panel considers such factors as (1) the nature and number of disciplinary infractions or incident reports received while in custody; (2) the detainee’s history of criminal behavior; (3) psychiatric and psychological reports pertaining to the detainee’s mental health; (4) institutional progress relating to participation in work, educational and vocational programs; and (5) any other information which, in the Panel’s judgment, is probative of whether the detainee is likely to adjust to life in a community, whether he is likely to engage in future acts of violence, or whether he is likely to engage in future criminal activity. “Disturbing doubts are ... to be resolved against the detainee. ... [T]he ultimate concern under this Review Plan is the protection of American society from a dangerous detainee who is inadmissible under the immigration laws.” Status Review Plan and Procedures, Part III (C)(2)(e) n. *. Within ten days from the completion of the interview, the Panel forwards its recommendation to the Commissioner’s representative with a summary of the interview as well as a file review summary. The representative reviews this material and may request that a copy of the detainee’s file or specific information contained therein be forwarded or otherwise made available to him. He then reaches a final decision concerning release based on the same criteria as were applied by the Review Panel. If the decision is to release from custody, a further decision is made as to any conditions to be placed on the alien, such as parole to a special placement project supervised by the Community Relations Service of the Department of Justice (“CRS”). If the decision is for further detention, the Commissioner’s representative must state the basis for his decision. A copy of the decision, together with another copy in Spanish, is then provided to the detainee. Even after final approval for release, the Commissioner may withdraw the approval on the basis of the detainee’s behavior while he is awaiting suitable sponsorship or placement. A withdrawal decision is based on information supplied by BOP staff or the Review Panel and does not involve any further interview with the detainee or other opportunity to explain his behavior. Within one year after a final determination by the Commissioner not to release a detainee or to withdraw a prior approval for release, a further review is conducted applying the same criteria and procedures as the initial review. Annual status reviews continue so long as the alien remains in detention. B. The Mathews Factors “It is axiomatic that due process ‘is flexible and calls for such procedural protections as the particular situation demands.’ ” Greenholtz, supra, 442 U.S. at 12, 99 S.Ct. at 2106 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). In Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), the Supreme Court identified three factors to be considered in determining the dictates of due process in a particular situation: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. The government commends to this Court the Supreme Court’s application of the Mathews factors in Greenholtz, supra, 442 U.S. at 13-16, 99 S.Ct. at 2106-08, where the Court held that Nebraska’s parole determination procedures fulfilled constitutional requirements. The Nebraska procedures at issue in Greenholtz permitted denial of parole following an initial review hearing at which the Parole Board examined the inmate’s record, then interviewed the inmate and considered any letters or statements that he wished to present in support of his claim for release. It is true that these procedures are quite similar to those employed under the Attorney General’s Status Review Plan. Once again, however, the Court must note that the inmates in Greenholtz, unlike petitioners here, were seeking early release from fixed terms of imprisonment imposed as a result of criminal convictions. Contrary to the government’s contention that “this distinction is of little importance,” Defendants’ Memorandum in Opposition to Habeas Corpus Petition at 72, the Greenholtz Court recognized that prior criminal convictions, with their attendant due process protections, significantly affected the scope of the process due in a subsequent parole release proceeding. “Merely because a statutory expectation exists cannot mean that in addition to the full panoply of due process required to convict and confine there must also be repeated, adversary hearings in order to continue the confinement.” Greenholtz, supra, 442 U.S. at 14, 99 S.Ct. at 2107 (emphasis added). By implication, however, where, as in the instant case, the original confinement is based on an excludability determination subject, at best, only to limited procedural protections, then more elaborate procedures may be required in order to continue confinement after a protected liberty interest has arisen. This distinction is most easily understood in terms of the second Mathews factor, the risk of erroneous deprivation of the protected interest. The informal procedures approved in Greenholtz carry little risk of error since in that context the reliability of the principal facts underlying the parole decision has already been sufficiently guaranteed by the procedural protections governing the prior criminal proceedings. In contrast, the risk of error is substantially greater in the instant case, because the Review Panels may rely on unsubstantiated or untested information, such as evidence introduced at a detainee’s exclusion hearing of crimes committed in Cuba, incident reports placed in a detainee’s file by BOP staff, and allegations of criminal misconduct in the United States. While, as already noted, the exclusion hearing does accord the detainee some procedural rights, it does not approach the rigorous procedural protections afforded a defendant in a criminal trial. Moreover, the focus of the exclusion hearing is not an alien’s potential dangerousness, which is the concern of the Review Panel, but whether he is excludable under one or more of the provisions of 8 U.S.C. § 1182(a). As to information concerning an alien’s behavior while in detention, informal prison disciplinary procedures simply do not provide sufficient guarantees of trustworthiness to allow such information to serve even as a partial basis for indefinite, and possibly permanent, incarceration. Finally, aliens charged with criminal conduct in this country but never brought to trial by state or local authorities have never had any opportunity to rebut the allegations of wrongdoing that may supply the basis for a Review Panel’s decision to continue detention. Accordingly, while procedures such as those provided under the Attorney General’s Status Review Plan may be constitutionally sufficient in the context of parole release determinations for convicted criminals, the Court concludes that they are not adequate in the context of parole decisions regarding excludable aliens whose detention has continued beyond a reasonable period of time for effecting their exclusion. On the other hand, the Court rejects petitioners’ suggestion that the process that is due them is nothing short of a full blown criminal trial. While it is certain that “a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law,” Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979) (emphasis added); the Court is mindful of the “distinction between punitive measures that may not constitutionally be imposed prior to a determination of guilt and regulatory restraints that may be.” Id. at 537, 99 S.Ct. at 1873. In Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963), the Court described the tests traditionally applied to determine whether a governmental act is punitive in nature: Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions [footnotes omitted]. With these factors guiding its analysis, the Court “must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Bell v. Wolfish, supra, 441 U.S. at 538, 99 S.Ct. at 1873. Where, as here, the government has expressed no intent to punish, “that determination generally will turn on ‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].’ ” Id. (quoting Kennedy, supra). In the instant case, the government argues, the purpose of petitioners’ detention is not punishment for past acts but protection of the public from potential future acts of crime or violence. Under the present circumstances this is a legitimate governmental objective. Although such “preventive detention” has grave due process implications when applied to American citizens, see, eg., United States ex rel. Martin v. Strasburg, 689 F.2d 365 (2d Cir.), prob. juris, noted sub nom. Schall v. Martin, - U.S. -, 103 S.Ct. 1765, 76 L.Ed.2d 340 (1983), it appears settled that aliens may be detained for the purpose of preventing potential future harm to the state. Carlson v. Landon, 342 U.S. 524, 542, 72 S.Ct. 525, 535, 96 L.Ed. 547 (1952); see also Mezei, supra, 345 U.S. at 223, 73 S.Ct. at 634 (Jackson, J., dissenting) (“Nor do I doubt that due process of law will tolerate some impounding of an alien where it is deemed essential to the safety of the state”). Even though, after an initial period of time, detention gives rise to a liberty interest protected by the fifth amendment, the arising of this protected interest does not extinguish the government’s authority to detain but simply subjects the exercise of that authority to new procedural safeguards. Prevention of future criminal behavior is therefore a legitimate, alternative purpose to which petitioners’ incarceration may rationally be connected. Moreover, petitioners’ indefinite detention in a maximum security prison is not necessarily excessive in relation to this alternative purpose. Detainees deemed likely to commit future crimes or acts of violence may reasonably be thought to require a highly secure environment, and no maximum term of detention can reasonably be imposed where the government’s purpose is prevention of crime rather than punishment. Still, under the procedures which the Court determines below are constitutionally required before indefinite detention is permissible, only the most clearly dangerous detainees will be subject to continued detention. Furthermore, the Court expects that even many of those determined nonreleasable following their initial detention hearing will, following further review at a not much later date, be approved for release. If, then, petitioners are not entitled to full trial rights, but the Attorney General’s Status Review Plan also fails to comport with due process requirements, it remains for the Court, guided in its analysis by the factors set out in Mathews, supra, to determine the requisite procedural safeguards to which petitioners are entitled before they may constitutionally be deprived of their liberty. First of all, the private interest impaired by petitioners’ detention is their personal liberty, which is obviously of fundamental importance. The opposing governmental interest is the protection of the public from possible criminal acts. Apart from this admittedly legitimate interest, however, the government also has an interest in not detaining any Cuban based on erroneous information or an erroneous evaluation of the alien’s potential dangerousness. Cf. Morrissey, supra, 408 U.S. at 484, 92 S.Ct. at 2601. Society has at least an economic interest in avoiding the high costs of incarcerating aliens who pose no realistic threat of criminal behavior and who might otherwise play a productive role in the economy. Furthermore, our society has a fundamental interest in treating all persons with basic fairness, because to do otherwise is contrary to the most cherished principles on which this nation was founded — “that all men are created equal, that they are endowed by their Creator with certain inalienable rights, [and] that among these are Life, Liberty and the pursuit of Happiness.” The Declaration of Independence (1776). When these principles are ignored, those subjected to arbitrary treatment are not the only ones to suffer; we as a nation also are injured by the debasement of the fundamental values that protect our own freedom. Given the primary importance of the interests at stake on both sides of this controversy, and the concomitant need to avoid erroneous decisions, the Court’s analysis of the dictates of due process accords little weight to “the fiscal and administrative burdens that ... additional or substitute procedural requirement[s] would entail.” Mathews, supra, 424 U.S. at 335, 96 5. Ct. at 903. Rather, having already determined that the procedures now in use carry with them a significant risk of erroneous deprivation of petitioners’ liberty, the Court’s principal focus is on “the probable value, if any, of additional or substitute procedural safeguards.” Id. If such procedures will significantly enhance the reliability of the decision making process, then they are not to be rejected even if they entail substantial additional fiscal and administrative costs. C. The Morrissey Procedures Petitioners submit that as an initial minimum, they are entitled to the same procedures mandated by the Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), for revocation of parole. In that context the Court held that the minimum requirements of due process included: (á) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. Id., 408 U.S. at 489, 92 S.Ct. at 2604. For the reasons set out below, the Court agrees with petitioners that each of the foregoing procedures is an essential part of a constitutionally adequate detention hearing. 1. Written Notice and Disclosure of Evidence. Where proposed government action (in the instant case, continued detention) is challenged “as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases,” petitioners are entitled to “timely and adequate notice detailing the reasons for [the] proposed [action].” Goldberg v. Kelly, 397 U.S. 254, 267-68, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287 (1970). The government, however, contends that because “the decision involved here is essentially predictive, rather than factual,” the hearing should not be limited to “prespecified factual allegations.” Defendants’ Memorandum in Opposition to Habeas Corpus Petition at 73. The Court fully understands that a decision to detain is based on a prediction of potential dangerousness; however, the Court is at a loss as to how this prediction is to be divorced from specific factual findings. The difficulties of predicting human behavior are well known, and to the extent that such predictions are not firmly grounded on adequate factual premises, their reliability is all the more suspect. The Court recognizes that because of the predictive nature of the decision involved, not all relevant evidence will be of a strictly factual character. The detention hearing will therefore not be limited merely to “prespecified factual allegations.” There is certainly room, for example, for expert testimony as to a detainee’s propensity for violence. Still, in order to safeguard the fact-finding process that necessarily precedes any reasoned prediction of dangerousness, petitioners are entitled to prior written notice, in Spanish, of all factual allegations that the government contends support a decision to continue detention, together with a brief statement of the substance of any expert testimony that the government intends to introduce at the detention hearing. While there is some dispute as to precisely what information in government files is presently made available to detainees under the Status Review Plan, there is no need for the Court to resolve that dispute. Henceforth detainees must be provided all information on which the government intends to rely to support a detention decision. Moreover, in order to provide detainees sufficient time to prepare their case for hearing, this information, together with the written notice of factual allegations and summary of expert testimony, should be made available to the detainee at least fifteen (15) days prior to the hearing date. By thus defining the factual basis for the government’s prediction of dangerousness and giv