INS v. National Center for Immigrants' Rights, Inc., 502 U.S. 183, 13 (1991)

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Cite as: 502 U. S. 183 (1991)

Opinion of the Court

discretion is impossible in this context. We reached a similar conclusion with respect to the determination at issue in Carlson, noting that the findings of "evidence of membership plus personal activity in supporting and extending the [Communist] Party's philosophy concerning violence g[ave] adequate ground for detention." 342 U. S., at 541.

However, we believe that the no-work condition regulation, when properly construed and when viewed in the context of the complex regime of immigration law, provides the individualized determinations contemplated in the statute. As noted above, we accept the Attorney General's interpretation of the regulation as affecting only those aliens who may not lawfully accept employment in this country. In addition, the operating instructions issued to INS personnel in connection with this regulation expressly state that individuals maintaining a colorable claim of citizenship shall not be subject to the no-work condition, see n. 5, supra, and the INS has stated that "[a]liens who have applied for asylum will not be affected by these regulations." 48 Fed. Reg. 51143 (1983). These facts substantially narrow the reach of the regulation.

Moreover, the Solicitor General has advised us that, in enforcing the regulation, the INS will make "an initial, informal determination [as to] whether the alien holds some status that makes work 'authorized.' " Brief for Petitioners 35. The alien's burden in that proceeding is easily met,9 for aliens who are authorized to work generally possess documents establishing that status. Some persons so authorized carry so-called "green cards," see Saxbe v. Bustos, 419 U. S. 65,

9 The Solicitor General also notes that "in those rare cases where an alien claims work authorization by status but is unable readily to document such status[,] a preliminary showing of likely success on the merits . . . would be grounds for temporary relief." Brief for Petitioners 36, n. 26 (citing 8 CFR 274a.12(c)(13)(iii) (1991)).

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