dissenting:
I respectfully dissent.
The majority holds that the interdiction by United States officials in international waters of individuals seeking illegally to enter the United States; the status of a leased United States naval base at Guantá-namo Bay, Cuba; and the initial determination by INS officials that Haitians at Guan-tánamo Bay may possess credible asylum claims combine to endow such Haitians with Fifth Amendment due process protection, or. at least to present serious questions in that regard.1 I disagree, and accordingly would vacate the preliminary injunction ordered by the district court in its entirety.
The Supreme Court “has long held that an alien seeking initial admission into 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.” Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982); see also Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n. 5, 73 S.Ct. 472, 477 n. 5, 97 L.Ed. 576 (1953) (“The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores.”). “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” United States ex rel. *1348Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 S.Ct. 309, 313, 94 L.Ed. 317 (1950).
Furthermore, the determination of procedures concerning the admissibility of aliens is not a power of Congress alone, but is also inherent in the authority of the executive branch to conduct foreign affairs. Shaughnessy, 338 U.S. at 543, 70 S.Ct. at 312. Congress has vested the Attorney General with almost complete discretion, within numerical limits, to permit immigration of refugees from outside the country’s borders. See 8 U.S.C. § 157(c) (1988 & Supp. II 1990). Thus, there is generally no right to judicial review for aliens seeking entry to this country. See Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986) (Congress has power to exclude aliens from entry or prescribe conditions for entry and have executive branch enforce policy without judicial interference); Petition of Cahill, 447 F.2d 1343, 1344 (2d Cir.1971) (per curiam) (“ ‘it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.’ ”) (quoting Shaughnessy, 338 U.S. at 543, 70 S.Ct. at 312).
Although the majority opinion acknowledges these principles and concedes that the IN A does not apply to Haitians at Guantanamo Bay, the majority nonetheless concludes that there are serious questions as to whether the plaintiffs are entitled to the protections of the Fifth Amendment’s Due Process Clause. First, the majority opines that the unique nature of Guantanamo Bay — that it is subject to the exclusive control of the United States and that United States criminal laws are applied there— supports the conclusion that these protections might be available to the detained aliens.
The Supreme Court has “rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.” United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 1063, 108 L.Ed.2d 222 (1990) (emphasis added) (citing Johnson v. Eisen-trager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950)). The naval base at Guantanamo Bay is not sovereign territory of the United States. The lease agreement between the United States and Cuba for the naval base expressly states that “the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the [naval base].” Agreement for the Lease to the United States of Lands in Cuba for Coaling and Naval Stations, Feb. 23, 1903, U.S. — Cuba, art. Ill, T.S. No. 418. Accordingly, even though the United States exercises control over the naval base, the base is not sovereign territory of the United States where the plaintiff aliens are entitled to constitutional protections. Rather, they are accorded such protections only “when they have come within the territory of the United States and developed substantial connections with this country.” Verdugo-Urquidez, 110 S.Ct. at 1064.
Second, the majority suggests that the application of our criminal laws to the military base means that “by implication, the due process clause of the fifth amendment applies” to the Haitians there. Preliminarily, the fact that United States citizens are subject to United States laws does not add any support to the Haitians’ claims. Cf. id. at' 1063 (distinguishing between application of United States laws to citizens and non-citizens abroad). Further, it seems clear that due process protections are available to aliens outside this nation’s sovereign territory only in a more limited way that does not impact upon the issues presented for disposition in this case.
Specifically, any party subjected to criminal prosecution under United States laws may well be entitled to constitutional protections at trial. Cf. id. at 1060 (Fifth Amendment privilege against self-incrimination “is a fundamental trial right of criminal defendants”) (citing Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Janvier v. United States, 793 F.2d 449, 455 (2d Cir.1986) (sentencing recommendation formerly authorized by 8 U.S.C. § 1251(b) is part of criminal, not deportation, proceeding, so Sixth Amendment right to counsel applies). Thus, if an alien located at Guantanamo Bay were to be prosecuted under United States law, he might *1349well be entitled to some constitutional protections at trial. Any such entitlement, however, is clearly a separate question from the issues presented here. Cf Ver-dugo-Urquidez, 110 S.Ct. at 1060 (distinguishing between trial and nontrial constitutional protections in context of extraterritorial application); id. at 1067-68 (Kennedy, J., concurring) (same).
Similarly, I find unpersuasive the majority’s view that because “the due process clause applies to both the statutory asylum procedure employed by the INS, see Augustin v. Sava, 735 F.2d 32, 37 (2d Cir.1984), and the treatment of excludable aliens detained within the United States,” invoking Lynch v. Cannatella, 810 F.2d 1363, 1374 (5th Cir.1987), and Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1387 (10th Cir.1981), there is a serious question whether the alien plaintiffs have a due process right to consult with counsel at Guantanamo Bay. Augustin v. Sava involved an asylum proceeding conducted within the United States. Lynch v. Can-natella held that “excludable aliens ... are entitled under the due process clauses of the fifth and fourteenth amendments to be free of gross physical abuse at the hands of state or federal officials.” 810 F.2d at 1374; see also Correa v. Thornburgh, 901 F.2d 1166, 1171 n. 5 (2d Cir.1990) (“Other than the protection against gross physical abuse, the alien seeking initial entry appears to have little or no constitutional due process protection.”). Rodriguez-Fernandez v. Wilkinson ruled that “an excluded alien in physical custody within the United States may not be ‘punished’ [in that case, imprisoned indefinitely] without being accorded the substantive and procedural due process guarantees of the Fifth Amendment.” 654 F.2d at 1387. I see little assistance in any of these cases for the resolution of the due process issues presented on this appeal.2
Finally, it is the majority’s view that once Haitians at Guantánamo Bay have been “screened in,” i.e., found to possess a credible fear of returning to Haiti, they should be deemed “de facto asylees” who “have established a reasonable expectation ... in not being wrongly repatriated ... [that is] protected by the due process clause.” It is clear, however, that the “screening in” of a Haitian alien does not determine whether the alien is a “refugee” or is entitled to admission, to the United States, and that the determination of refugee or asylee status rests solely with the appropriate INS officials, and not with this court.
In this case, the initial screening interview is simply one step in the process for an alien interdicted at sea to gain admission into this country. Congress has explicitly authorized the executive to exclude an alien seeking admission who is determined to have a communicable disease. 8 U.S.C. § 1182(a)(l)(A)(i) (Supp. II 1990). It accordingly seems curious that a second screening interview of an individual located outside this country, designed to gather information that might aid the Attorney General in reaching a determination whether to exercise his discretion and waive the exclusion, see 8 U.S.C. § 1157(a)(3) (1988), would run afoul of the Constitution. Nor is a serious constitutional question presented, as I see it, because the INS initially conducted a single-interview process with respect to the “screening in” of the Haitians at Guantánamo Bay, but subsequently determined to conduct a second interview of those determined to have a communicable disease.
For all the foregoing reasons, plaintiffs-appellees have not established, in my view, either a likelihood of success on the merits or the existence of serious questions going to the merits with respect to their Fifth Amendment due process claims. I would accordingly vacate the preliminary injunction in its entirety.
. Because of the majority’s determination as to serious questions going to plaintiffs’ Fifth Amendment claim, its opinion does not address the First Amendment claim of the Haitian Service Organizations. If I had occasion to address that issue, I would conclude that there is no right to relief on that claim, in accordance with Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498, 1511-15 (11th Cir.) (per curiam), cert. denied, — U.S. -, 112 S.Ct. 1245, 117 L.Ed.2d 477 (1992).
. I note in this connection the district court's finding that ‘‘[n]o detainee in custody is free to go to any country other than Haiti even at their [sic] own expense.” The government has represented that the detainees are free to go to any country that will accept them, but that acceptances have not been forthcoming. I am unaware of any reason to disbelieve that representation.