dissenting.
Petitioner Mario Rosales-Garda (“Rosales”), a citizen of Cuba, is an excludable alien who came to the United States as part of the Mariel boatlift. Since his arrival, Rosales twice has been granted immigration parole by the Immigration and Naturalization Service (“INS”).1 On each occasion, the INS revoked his parole after his conviction on various criminal charges. He is now being detained by the INS, pending an agency determination either (1) that he is eligible for immigration parole once again or (2) that Cuba will accept his return. The majority frames 'the issue before the court as “whether the executive branch of the government has the authority under the United States Constitution to detain a person indefinitely without charging him with a crime or affording him a trial.” With respect to Rosales, the majority answers this question in the negative, concluding that his indefinite detention “cannot be justified by reference to the government’s plenary power over immigration matters and that it violates [his] substantive due process rights under the Due Process Clause of the Fifth Amendment to the Constitution.”
In reaching the foregoing conclusion, the majority does not dispute three key points. First, the executive and legislative branches of the government have almost complete control over matters involving immigration and the exclusion of aliens, with virtually no interference from the judiciary. See, e.g., Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 97 L.Ed. 956 (1953). Second, the government has the right to designate Rosales an excludable alien and to attempt to remove him. Rosales has no constitutional right to enter this country, and any attempt to do so is a request for a privilege. This privilege must be exercised in accordance with procedures established by Congress and implemented by the executive branch. See, e.g., United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542-544, 70 S.Ct. 309, 94 L.Ed. 317 (1950). Third, the *728“entry fiction” applies to this case. The entry fiction treats an excludable alien “as one standing on the threshold of entry, and therefore not entitled to the constitutional protections provided to those within the territorial jurisdiction of the United States.” Ma v. Reno, 208 F.3d 815, 823 (9th Cir.), cert. granted, — U.S. -, 121 S.Ct. 297, 148 L.Ed.2d 239 (2000). The majority acknowledges that, under the entry fiction, individuals such as Rosales are “treated as detained or ‘excluded’ at the border despite [their] physical presence in the United States.” Indeed, the majority notes that such individuals “have no rights with regard to their entry or exclusion from this country and they are treated differently from those who have ‘passed through our gates.’ ”
After recognizing the foregoing principles, the majority examines the “constitutional authority to detain indefinitely.”2 In so doing, the court properly notes that even excludable aliens are not completely without constitutional protection. Given that aliens have been extended certain Fifth, Sixth and Fourteenth Amendment rights, the majority concludes that excludable aliens such as Rosales possess a Fifth Amendment liberty interest in freedom from indefinite detention by the INS. After also recognizing that Congress may not authorize immigration officials to treat ex-cludable aliens with “complete impunity” by executing or torturing them, the majority reasons:
.... We therefore find ourselves asked to draw a line of constitutional dimension between the act of torturing an excludable alien and the act of imprisoning such an alien indefinitely. We do not believe that the Constitution authorizes us to draw such a line. While it is true that aliens are not entitled to enjoy all the advantages of citizenship, see Diaz, 426 U.S. at 78, 96 S.Ct. 1883, we emphasize that aliens — even excludable aliens — are “persons” entitled to the Constitution’s most basic protections and strictures. We conclude that if Rosales is indeed being detained indefinitely, [as] discussed infra, his Fifth Amendment interest in liberty is necessarily implicated.
After finding that excludable aliens possess a liberty interest in freedom from indefinite bodily restraint, the majority concludes that Rosales’s continued detention violates substantive due process. In reaching this conclusion, the majority relies upon the analytical framework set forth in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). In Salerno, the Supreme Court explained that whether a restriction on liberty (in the form of pretrial detention) violates substantive due process turns upon whether the detention is punishment without a trial or whether it is regulatory in nature. Id. at 746-747, 107 S.Ct. 2095. Absent evidence that Congress intended to punish excludable aliens by detaining them indefinitely,3 the punitive/regulatory distinction itself turns on (1) whether the detention is rationally related to some alternative (ie., non-punitive) purpose, and (2) whether the detention appears excessive in relation to the alternative purpose that Congress sought to achieve. Id. at 747, 107 S.Ct. 2095.
Applying the foregoing test, the majority notes that the United States has identi*729fied as its “alternative purpose” in detaining Rosales “the need to protect society from a person who poses a danger to the safety of other persons or to property....” The court then recognizes that Rosales’s detention is “rationally related” to the government’s “alternative” purpose of public safety. Nevertheless, the majority concludes that his indefinite detention is “excessive” in relation to the government’s alternative (ie., non-punitive) purpose, given (1) the probability that he never will return to Cuba and (2) the fact that he “can never be certain of receiving [immigration] parole, no matter how well he behaves himself in detention.” As a result, the court concludes that his “detention has crossed the line from permissive regulatory confinement to impermissible punishment without trial.... ” Consequently, the majority orders his immediate release.
Having reviewed the majority’s analysis, I disagree with it in two primary respects. First, I do not believe that the indefinite detention of an excludable alien such as Rosales implicates any protected liberty interest in freedom from bodily restraint. Second, even assuming, arguendo, that a Fifth Amendment liberty interest is implicated, I do not believe that Rosales’s detention, which includes annual review for parole eligibility, is excessive in relation to the government’s non-punitive purpose. Consequently, under Salerno, his detention is regulatory in nature rather than punitive, and it does not violate substantive due process, even if a protected liberty interest is at stake.
Concerning the first issue, the existence of a liberty interest, I do not dispute that excludable aliens possess some Fifth Amendment rights. It is true that neither the Attorney General nor the INS may shoot or torture Rosales without running afoul of his substantive due process rights. See, e.g., Gisbert v. U.S. Attorney General, 988 F.2d 1437, 1442 (5th Cir.1993), amended 997 F.2d 1122 (5th Cir.1993) (recognizing that excludable aliens have a substantive due process right to be free from “gross physical abuse”). The majority’s ruling turns upon its inability to “draw a line of constitutional dimension between the act of torturing an excludable alien and the act of imprisoning such an alien indefinitely.” The court concludes that the Constitution does not authorize the judiciary “to draw such a line.”
Upon review, however, I cannot agree that drawing a line between torturing an excludable alien and indefinitely detaining him to ensure exclusion from this country violates the Constitution. The government’s indefinite detention of an excluda-ble alien simply is not equivalent, for Fifth Amendment purposes, to torturing him or to killing him. It has been generally accepted that “[e]xcluded aliens may be able to challenge, under a constitutional theory, governmental action outside of the immigration context.”4 Fernandez-Roque v. Smith, 734 F.2d 576, 582 n. 8 (11th Cir.1984) (emphasis added) (citing United States v. Henry, 604 F.2d 908, 914 (5th Cir.1979)); see also Zadvydas v. Underdown, 185 F.3d 279, 295 (5th Cir.1999), cert. granted, — U.S. -, 121 S.Ct. 297, 148 L.Ed.2d 239 (2000) (recognizing that excludable aliens may have substantive due process rights, but only with respect to matters that are unrelated to the government’s plenary power over immigration). However, this principle does not “limit the government’s conduct in the immigration field where it possesses plenary authority.” Fernandez-Roque, 734 F.2d at 582 n. 8 (citing Jean v. Nelson, 727 F.2d 957 (11th Cir.1984) (en banc), aff'd 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985)). In Lynch v. Cannatella, 810 F.2d *7301363, 1373 (5th Cir.1987), the court articulated a clear rationale for drawing “a line of constitutional dimension” between torturing an excludable alien and detaining him indefinitely:
The basis for limiting the constitutional protection afforded excludable aliens has been the overriding concern that the United States, as a sovereign, maintain[s] its right to self-determination. “As the history of its immigration policy makes clear, this nation has long maintained as a fundamental aspect of its right to self-determination the prerogative to determine whether, and in what numbers, outsiders without any cognizable connection to this society shall be permitted to join it.” Courts ordinarily should abstain from placing limits on government discretion in these circumstances because the sovereign interest in self-determination weighs so much more heavily in this scheme than does the alien’s interest in entering the country. That interest, however, plays virtually no role in determining whether the Constitution affords any protection to ex-cludable aliens while they are being detained by state officials and awaiting deportation. Counsel has not suggested and we cannot conceive of any national interests that would justify the malicious infliction of cruel treatment on a person in United States territory simply because that person is an excludable alien. We therefore hold that, whatever due process rights excludable aliens may be denied by virtue of their status, they 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.
Id. at 1373-74 (footnotes omitted); see also Gisbert, 988 F.2d at 1442 {“Lynch plainly recognizes that excludable aliens may legally be denied other due process rights, including the right to be free of detention.”).5
In the present case, the government is not endeavoring to deprive Rosales of life or property, nor is it seeking to deprive him of liberty, except to the extent necessary to exclude him from this country, which the majority concedes the INS has an absolute right to do. It is in this context that Rosales has no liberty interest protected by the Fifth Amendment.6 See Fernandez-Roque, 734 F.2d at 582 (footnote omitted) (“[W]e are compelled to conclude that [immigration] parole is part of the admissions process. As such, its denial or revocation does not rise to the level of a constitutional infringement. Because the Cubans lack a constitutional liberty interest, we need not reach the question of whether the Attorney General’s plan satisfies due process.”); Ma, 208 F.3d at 824 (quoting Barrera-Echavarria v. Rison, 44 F.3d 1441, 1450 (9th Cir.1995)) (citations omitted) (“Noncitizens who are outside United States territories enjoy very limit*731ed protections under the United States Constitution. Because excludable aliens are deemed under the entry doctrine not to be present on United States territory, a holding that they have no substantive right to be free from immigration detention reasonably follows.”).
While it would indeed shock the conscience to permit the INS to shoot or to torture a person seeking entry into the United States, it is not conscience shocking to allow the INS to enforce its immigration policies by indefinitely detaining such a person at the border when he will not or cannot go elsewhere.7 The Supreme 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.” Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). “In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” Mathews, 426 U.S. at 79-80, 96 S.Ct. 1883. Indeed, “[cjourts have long recognized that the governmental power to exclude or expel aliens may restrict aliens’ constitutional rights when the two come into direct conflict.” Zadvydas, 185 F.3d at 289.
Consistent with the foregoing principles, the federal circuit courts routinely have rejected constitutional arguments that are similar, if not identical, to the one advanced by Rosales in the present ease. Most recently, the Seventh Circuit rejected a substantive due process challenge to indefinite confinement in Carrera-Valdez v. Perryman, 211 F.3d 1046 (7th Cir.2000),8 reasoning as follows:
Almost fifty years ago, the Supreme Court held that an excludable alien may be detained indefinitely when his country of origin will not accept his return. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953). Several Justices in more recent years have expressed unease with that decision, but it is conclusive in the courts of appeals. It is therefore not surprising that at least five appellate courts have rejected constitutional challenges, similar to Carr-era’s, brought by others who arrived on the Mariel boatlift. See Guzman v. Tippy, 130 F.3d 64 (2d Cir.1997); Palma v. Verdeyen, 676 F.2d 100 (4th Cir.1982); Gisbert v. U.S. Attorney General, 988 F.2d 1437, amended, 997 F.2d 1122 (5th Cir.1993); Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir.1995) (en banc ); Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir.1986). See also Chi Thon Ngo v. INS, 192 F.3d 390 (3d Cir.1999). The only arguably contrary decision, Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir.1981), has not garnered adherents and is of doubtful vitali*732ty in its own circuit. Duy Dac Ho v. Greene, 204 F.3d 1045 (10th Cir.2000). Given Shaughnessy there is little point in elaborate discussion by an inferior court. Carrera is not constitutionally entitled to release.
Id. at 1048.9
In finding that excludable aliens have no constitutional right to be free from indefinite immigration detention, the federal courts have relied largely upon Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953), in which the Supreme Court held that an excludable alien may be detained indefinitely, without violating the Constitution, when his country of origin will not accept his return.10 In Mezei, the Court reasoned as follows:
... Aliens seeking entry from contiguous lands obviously can be turned back at the border without more. While the Government might keep entrants by sea aboard the vessel pending determination of their admissibility, resulting hardships to the alien and inconvenience to the carrier persuaded Congress to adopt a more generous course. By statute, it authorized, in cases such as this, aliens’ temporary removal from ship to shore. But such temporary harborage, an act of legislative grace, bestows no additional rights.... And this Court has long considered such temporary arrangements as not affecting an alien’s status; he is treated as if stopped at the border.
Thus we do not think that respondent’s continued exclusion deprives him of any statutory or constitutional right....
Id. at 215 (citations and footnotes omitted).
The majority reasons that Mezei is distinguishable because it was decided in the midst of the Korean War and it involved an individual whom the executive branch had classified as a national security threat. The majority suggests that the Mezei Court found no constitutional violation flowing from the alien’s indefinite detention precisely because of the national security concerns at issue. Given that such “incomparable exigencies” do not exist in the present case, the majority reasons that Mezei is distinguishable.
Having reviewed Mezei, I cannot agree with the majority’s reading of the opinion. In Mezei, the Supreme Court cited the Korean War and national security concerns as the impetus behind the Attorney General’s decision to exclude an alien, pursuant to the Passport Act of 1918, which permitted the executive branch “to shut out aliens whose ‘entry would be prejudicial to the interests of the United States.’ ” Mezei, 345 U.S. at 210, 73 S.Ct. 625; see also id. at 216, 73 S.Ct. 625 (characterizing the alien’s continued detention as “[a]n exclusion proceeding grounded on danger to the national security”). “[T]imes being what they [were],” the Court also recognized that Congress had declined to authorize the release of excludable aliens such as Mezei. Id. at 216, 73 S.Ct. 625. The Mezei Court then noted that it lacked the authority to substitute its judgment for that of Congress with respect to the legislative determination that individuals such as Mezei were to be excluded and not released. Id. (“Whatever our individual estimate of [the policy mandating Mezei’s *733exclusion and indefinite detention] and the fears on which it rests, respondent’s right to enter the United States depends on the congressional will, and courts cannot substitute their judgment for the legislative mandate.”).
Although national security concerns may have prompted the Attorney General to exclude and to detain Mezei under legislation passed by Congress, the Supreme Court did not rely on national security concerns to support its determination that he lacked a substantive due process right to be free from indefinite detention.11 Rather, the Supreme Court’s constitutional analysis turned on the more fundamental fact that Mezei, an excludable alien, had no constitutional rights at all. Id. at 215, 73 S.Ct. 625 (reasoning that Mezei’s continued exclusion on Ellis Island did not deprive him of any constitutional rights because he was “treated as if stopped at the border[,]” despite his physical presence in the United States). While Congress had provided for resident aliens to be released on bond pending deportation, the Mezei Court noted that no similar statutory authority existed for the release of excluda-ble aliens. The Supreme Court also recognized that Congress’s failure to provide for the release of individuals such as Mezei likely stemmed from fears associated with the Korean War. Id. at 216, 73 S.Ct. 625. Although it questioned that congressional policy “and the fears on which it rest[ed],” the Supreme Court upheld Mezei’s indefinite detention because, as an excludable alien, he had no constitutional rights and his right to enter the United States depended solely “on the congressional will[.]” Id. at 215-216, 73 S.Ct. 625.
Contrary to the majority’s assertion herein, the Mezei Court did not cite the Korean War and national security concerns as the impetus behind its determination that Mezei’s confinement violated no constitutionally protected right. In other words, the Court did not suggest that Mezei would have had a constitutionally protected liberty interest in freedom from bodily restraint but for the conflict in Korea. To the contrary, the Court found no due process violation because Mezei, an alien seeking initial entry, had no constitutional right to enter the United States at all. Id. at 215, 73 S.Ct. 625 (“While the Government might keep entrants by sea aboard the vessel pending determination of their admissibility, resulting hardships ... persuaded Congress to adopt a more generous course.... But such temporary har-borage, an act of legislative grace, bestows no additional rights.... Thus, we do not think that respondent’s continued exclusion deprives him of any statutory or constitutional right.”). Absent a constitutional right to enter this country, Mezei simply had no liberty interest in being free from indefinite detention to effect his exclusion. The “exigencies” associated with the Korean War were not crucial to the Court’s resolution of this constitutional issue.12 *734Rather, those national security concerns merely explained why the Attorney General had exercised his statutory authority to exclude and to detain Mezei. Notably, a number of other circuit courts have also read Mezei as standing for the proposition that an excludable alien has no liberty interest in freedom from indefinite immigration detention. See, e.g., Carrera-Valdez, 211 F.3d at 1048 (“Almost fifty years ago, the Supreme Court held that an ex-cludable alien may be detained indefinitely when his country of origin will not accept his return.... Given [Mezei] there is little point in elaborate discussion by an inferior court. Carrera is not constitutionally entitled to release.”); Ma, 208 F.3d at 823 (“While the Court held that Mezei could be detained indefinitely on Ellis Island, because no country would take him back, it rested its holding on the fact that Mezei’s exclusion did not violate the immigration statute, and that as an alien who had not yet entered the country he had no other rights.”); Fernandez-Roque, 734 F.2d at 582.
The majority also asserts that the government’s reading of Mezei is contrary to “a long line of Supreme Court decisions extending to aliens basic Fifth, Sixth, and Fourteenth Amendment protections.... ” Most of the decisions upon which the majority relies, however, involved aliens who had entered the United States, either legally or otherwise. See, e.g., Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140 (1896); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).
When considering the constitutional protection to which an alien is entitled, the Supreme Court has long distinguished between aliens who have entered the United States, even if their presence here is illegal, and aliens who have not yet entered this country. See, e.g., Yick Wo, 118 U.S. at 369, 6 S.Ct. 1064 (recognizing that the protections of the Fourteenth Amendment extend “to all persons within the territorial jurisdiction” of a state); Johnson v. Eisentrager, 339 U.S. 763, 770-771, 70 S.Ct. 936, 94 L.Ed. 1255 (1950) (noting that “presence” in the United States gives an alien certain rights, and acknowledging that the Supreme Court has “extended to the person and property of resident aliens important constitutional guaranties”); Plyler, 457 U.S. at 212, 102 S.Ct. 2382 (recognizing that the Fifth, Sixth and Fourteenth Amendments have a “territorial theme,” as the protections provided by those Amendments apply “ ‘to all persons within the territory of the United States,’ including aliens unlawfully present”); United States v. Verdugo-Urquidez, 494 U.S. 259, 270-271, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (recognizing that various constitutional protections have been afforded to aliens who are present in the United States, whereas aliens who are not voluntarily within this nation’s borders have not been granted the same protections).13
*735Without question, aliens who are present in the United States do enjoy significant constitutional protections. In Rosales’s case, however, the entry fiction treats him as if he remains detained at the border and not present in the United States. See, e.g., Ma, 208 F.3d at 824 (quoting Barrera-Echavarria, 44 F.3d at 1450) (recognizing that “ ‘excludable aliens are deemed under the entry doctrine not to be present on United States territory’ ”). The majority does not dispute the applicability of the entry fiction herein. Consequently, the “long line” of Supreme Court precedent cited by the majority does not controvert the government’s reading of Mezei, which involved an excludable alien who, under the entry fiction, remained detained at this nation’s border and, like Rosales, was not present in the United States.14
In short, Rosales’s substantive due process claim is a victim of the entry fiction. As noted above, that doctrine treats an excludable alien “as one standing on the threshold of entry, and therefore not entitled to the constitutional protections provided to those within the territorial jurisdiction of the United States.” Ma, 208 F.3d at 823. Although Rosales may have a Fifth Amendment liberty interest in not being shot or tortured, he simply has no protected liberty interest in freedom from being detained indefinitely at this country’s border.15 This is so because he has *736no constitutional right to enter the United States,16 and the Attorney General has an absolute right to effect his exclusion.17 “[A] constitutionally protected [liberty] interest cannot arise from relief that the executive exercises unfettered discretion to award.” Tefel v. Reno, 180 F.3d 1286, 1300 (11th Cir.1999). Adopting the majority’s reasoning would mean that “[a] foreign leader could eventually compel us to grant physical admission via parole to any aliens he wished by the simple expedient of sending them here and then refusing to take them back.” Jean, 727 F.2d at 975. As a practical matter, such a rule would bestow upon foreign leaders the power to dictate U.S. immigration policy. Cf. Gisbert, 988 F.2d at 1447 (“Accepting petitioners’ arguments here would allow one country to export its unwanted nationals and force them upon another country by the simple tactic of refusing to accept their return.... The United States cannot be forced to violate its national sovereignty in order to parole these aliens within its borders merely because Cuba is dragging its feet in repatriating them.”); Barrera-Echavarria, 44 F.3d at 1448 (“A judicial decision requiring that excludable aliens be released into American society when neither their countries of origin nor any third country will admit them might encourage the sort of intransigence Cuba has exhibited in the negotiations over the Mariel refugees.”).
Even assuming, arguendo, that a Fifth Amendment liberty interest is implicated, Rosales’s detention, which includes annual review for parole eligibility, is not excessive in relation to the government’s concern about protecting society from a criminal alien who previously has committed felony offenses while on immigration parole. In Alvarez-Mendez v. Stock, 941 F.2d 956 (9th Cir.1991), the court reached a similar conclusion with respect to a detained Mariel Cuban, applying the balancing-of-interests approach set forth in Salerno, 481 U.S. at 747, 107 S.Ct. 2095, and adopted by the majority herein. In relevant part, the Alvarez-Mendez court reasoned as follows:
A detainee may not be punished prior to an adjudication of guilt in accordance with due process of law. White v. Roper, 901 F.2d 1501, 1504 (9th Cir.1990). Not all detention, however, is punishment. Bell v. Wolfish, 441 U.S. 520, 539 n. 20, 99 S.Ct. 1861, 1874 n. 20, 60 L.Ed.2d 447 (1979). In the absence of express intent to punish, the most significant factors in identifying punishment are “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].” United States v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987) (quotations omitted).
In denying Alvarez-Mendez reparole, the Associate Commissioner cited Alvarez-Mendez’s criminal arrests and convictions, and concluded on the basis of these crimes that it was unlikely that *737Alvarez Mendez would “remain non-violent or honor the conditions of parole if released.” Protecting society from a potentially dangerous alien is a rational, non-punitive purpose for Alvarez Mendez’s detention. Because such protection requires separating Alvarez Mendez from society, and because immediate removal from the country is not possible, detention is not an excessive means of accomplishing such protection.
Id. at 962.
The Fifth Circuit subsequently cited Alvarez-Mendez with approval in Gisbert, 988 F.2d at 1442, concluding that the continued detention of Mariel Cubans “is not punishment” and is not excessive in relation to the government’s rational purpose of protecting society from potentially dangerous aliens. This is particularly true in the present case, given that Rosales continues to receive annual consideration for immigration parole, despite the fact that he has twice committed serious offenses while on such parole. Cf. Barrera-Echavarria, 44 F.3d at 1450 (“When viewed in this light, as a series of one-year periods of detention followed by an opportunity to plead his case anew, we have no difficulty concluding that Barrera’s detention is constitutional under Mezei.”); Chi Than Ngo v. I.N.S., 192 F.3d 390, 398 (3rd Cir.1999) (“We therefore hold that excludable aliens with criminal records as specified in the Immigration Act may be detained for lengthy periods when removal is beyond the control of the INS, provided that appropriate provisions for parole are available.”); Id. at 399 (“So long as petitioner will receive searching periodic reviews, the prospect of indefinite detention without hope for parole will be eliminated. In these circumstances, due process will be satisfied.”); Zadvydas, 185 F.3d at 297 n. 19 (noting that “the detention of certain classes of persons to protect society at large is not wholly alien to our constitutional order and has been allowed in special situations when, as here, there are procedures to insure that detention must be periodically reviewed”).
In opposition to the foregoing conclusion, the majority reasons that “the strength of the government’s interest in protecting the community and enforcing its immigration laws must be considered in relation to the possibility that the government may actually achieve its goal to effect Rosales’s deportation.” Given that Rosales is unlikely ever to be returned to Cuba, the court concludes that the strength of the government’s interest diminishes to the point that it is outweighed by Rosales’s liberty interest in freedom from bodily restraint. Specifically, the majority states that “Rosales’s confinement can only be considered excessive in relation to the purpose of protecting the community from danger and enforcing an immigration order that is, at present, unenforceable.”
By detaining Rosales, however, the government is enforcing immigration law and the order excluding Rosales from this country. Under the entry fiction, the applicability of which the majority does not dispute, Rosales is being detained at the border because he has no legal right to enter this country. He continues to have no legal right to enter this country, regardless of how long he remains waiting at the border. Therefore, by refusing to release Rosales into the United States, the Attorney General is unquestionably enforcing immigration policy, which includes not only deporting him but also excluding him. The fact that Cuba will not accept his return does not alter the fact that the government is enforcing both its immigration law and Rosales’s order of exclusion simply by ensuring his exclusion from U.S. territory. Indeed, the only way that U.S. immigration policy and the order of exclusion will be rendered “unenforceable” is if this court orders an excludable alien such as Rosales to be released into the general population. Finally, the fact that Cuba will not accept Rosales’s return does not alter the fact that the government is en*738suring public safety by detaining Rosales, a person who has committed felony offenses in the United States, subject to annual review for purposes of determining his eligibility for immigration parole.18
Based on the reasoning and citation of authority set forth above, I conclude that Rosales lacks a liberty interest in freedom from continued detention by the INS. Even assuming, arguendo, that he does possess such an interest, I find that it is outweighed by the government’s regulatory interest in enforcing immigration laws and providing for public safety. Consequently, Rosales’s indefinite confinement does not violate substantive due process.
In conclusion, I pause briefly to note my agreement with the district court’s determination that Rosales’s procedural due process rights have not been violated. Although the majority fails to reach this issue, given its finding of a substantive due process violation, the Supreme Court has recognized that “[wjhatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Knauff, 338 U.S. at 544, 70 S.Ct. 309; see also Mezei, 345 U.S. at 212, 73 S.Ct. 625. Consequently, the district court properly examined the Attorney General’s Cuban Review Plan, found at 8 C.F.R. § 212.12, to identify the procedural rights at issue. See, e.g., Garcia-Arena v. Luttrell, 238 F.3d 420, 2000 WL 1827855 at *2 (6th Cir. Dec.8, 2000) (unpublished) (recognizing that excludable aliens are entitled to only the procedural rights provided by 8 C.F.R. § 212.12).
The crux of Rosales’s argument on appeal does not appear to be that the INS violated the procedure set forth in 8 C.F.R. § 212.12 when it declined to grant him immigration parole. Rather, Rosales appears to argue that the INS violated procedural due process rights emanating from the Constitution.19 Stated differently, Rosales suggests that the immigration parole procedure contained in 8 C.F.R. § 212.12 is itself deficient because it does not afford him certain due process rights guaranteed by the Constitution.20 Howev*739er, in Betancourt v. Chandler, 230 F.3d 1357, 2000 WL 1359634 at *2 (6th Cir. Sept.14, 2000) (unpublished), a panel of this court recently recognized that excludable aliens are entitled to only those procedural rights provided by 8 C.F.R. § 212.12, not the Constitution. Absent a violation of § 212.12, which Rosales has not demonstrated, he has no procedural due process claim.
For the reasons set forth above, I respectfully dissent.
. Before examining the constitutional issue, the majority resolves several other issues. First, the majority concludes that the district court possessed jurisdiction to hear Rosales's claim and that this court has jurisdiction to hear his appeal. Second, the majority finds that Rosales's appeal has not been rendered moot by virtue of the INS issuing a Notice of Releasability. Third, the majority concludes that the Attorney General and the INS do possess the statutory authority to detain Rosales indefinitely. I agree with each of these conclusions for the reasons set forth by the majority.
. The majority finds no evidence that Congress intended to punish Rosales and other excludable aliens by detaining them indefinitely. I agree with this aspect of the majority’s reasoning.
. But see Ma, 208 F.3d at 824 (stating that "it is 'not settled’ that excludable aliens have any constitutional rights at all”); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n. 5, 73 S.Ct. 472, 97 L.Ed. 576 (1953) (quoting Bridges v. Wixon, 326 U.S. 135, 161, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945) (Murphy, J., concurring) (" 'The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores.’ ")).
. In Gisbert, the Fifth Circuit expressly rejected the position taken by the majority herein that the indefinite detention of Mariel Cubans constitutes punishment without a trial in violation of their substantive due process rights. Gisbert, 988 F.2d at 1441-42.
. When engaging in a substantive due process analysis, a court must begin with “a careful description of the asserted right.” Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). In the present case, Rosales does not dispute the Attorney General's power to exclude him or to detain him for a reasonable time to effect his return to Cuba. Rather, he claims that, because Cuba refuses to accept him, his detention is indefinite, and possibly permanent, thus constituting punishment without a trial. Rosales contends, and the majority agrees, that he has a liberty interest in being free from this type of detention. If his habeas petition is granted, however, he will be awarded the very right that the government lawfully denied to him as a result of his exclusion, namely the right to be at large in the United States. Although Rosales characterizes his request as one to be released from incarceration, the relief that he seeks is indistinguishable from a request to be admitted into this country until his return to Cuba can be arranged. As set forth more fully, supra, Rosales has no constitutional right to be released into this country, and the government has an absolute right to ensure his exclusion.
. As noted, supra, the majority does not question the applicability of the "entry fiction,” which treats Rosales as if he is being detained at the border, despite his physical presence in the United States. Although the entry fiction may appear to be draconian in operation, it has a humanitarian purpose. The entry fiction is a compassionate response to the hardships that surely would have befallen Rosales if INS representatives had prevented him and other Mariel Cubans from bringing their boats ashore, as the government unquestionably had the right to do. In other words, the United States lawfully could have forced Rosales and the other Mariel Cubans to remain at sea, where they almost certainly would have died from drowning, dehydration or starvation. Instead, the government allowed Rosales and the others to come ashore, under the entry fiction, which treats the Mariel Cubans as if they are still at sea, and outside of U.S. territory, for immigration purposes.
. The facts of Carrera-Valdez are similar to those of the present case. The petitioner in Carrera-Valdez was a Mariel Cuban who was declared excludable following his arrival in this country. Like Rosales, the petitioner in Carrera-Valdez was released several times on immigration parole only to be taken into custody after committing crimes here. He sought a writ of habeas corpus ordering his release until he could be returned to Cuba. Carrera-Valdez, 211 F.3d at 1047.
. The majority cites Carrera-Valdez and Gisbert for the proposition that the Attorney General has the statutory authority to detain an excludable alien indefinitely, while failing to acknowledge that those cases also stand for the proposition that an excludable alien has no constitutional right to be free from indefinite detention.
. Although the alien in Mezei had lived in the United States for approximately 25 years, he left this country in 1948, without authorization or reentry papers, and resided in Hungary for 19 months. Mezei, 345 U.S. at 208, 214, 73 S.Ct. 625. In light of those facts, the Supreme Court had "no difficulty in holding respondent an entrant alien or ‘assimilated to [that] status’ for constitutional purposes.” Id. at 214, 73 S.Ct. 625 (quoting Rwong Hai Chew v. Colding, 344 U.S. 590, 599, 73 S.Ct. 472, 97 L.Ed. 576 (1953)).
. In fact, as noted above, the Supreme Court appeared to question whether Mezei was even a true national security risk. Mezei, 345 U.S. at 216, 73 S.Ct. 625 ("Whatever our individual estimate of [the policy mandating Mezei’s exclusion and indefinite detention] and the fears on which it rests, respondent’s right to enter the United States depends on the congressional will, and courts cannot substitute their judgment for the legislative mandate.”).
. It is noteworthy that the Supreme Court did not even require the Attorney General to divulge the evidence upon which he based his determination that Mezei constituted a threat to national security. Mezei, 345 U.S. at 212, 73 S.Ct. 625. The Court's refusal to "retry the determination of the Attorney General” by requiring such evidence to be revealed would be peculiar if the absence of a substantive due process right turned upon exigencies attributable to the Korean War. In other words, if the Supreme Court believed lhat Mezei lacked a substantive due process right to be free from indefinite detention only because of exigencies created by the Korean War, it seems likely that the Court would have required the Attorney General to present some evidence showing that those exigencies actually existed. The Court did not do so, however, for at least two reasons. First, Mezei's confinement was an act of exclusion, and the decision of the Attorney General to exclude. an alien is "final and conclusive[.]” Id. Second, Mezei’s continued exclusion on Ellis Island did not *734deprive him of any constitutional right, not because of national security concerns and the Korean War, but because he was treated as if detained outside of U.S. territory and, therefore, he had no substantive due process rights. Id. at 215, 73 S.Ct. 625; see also Ethan A. Klingsberg, Note, Penetrating the Entry Doctrine: Excludable Aliens’ Constitutional Rights in Immigration Processes, 98 Yale L.J. 639, 643-644 (1989) (recognizing that Mezei rests upon the "principle that an alien arrives at the border without an interest in the right to enter” and, as a result, lacks a liberty interest in freedom from immigration detention). Consequently, the Attorney General’s national security concerns were not critical to the Mez-ei Court’s substantive due process analysis, despite the majority’s assertion to the contrary.
. In Verdugo-Urquidez, the Supreme Court reviewed several of the cases cited by the majority herein. According to the Verdugo-Urquidez Court, those cases stand for the proposition that aliens enjoy constitutional protections once they enter the United States;
Verdugo-Urquidez also relies on a series of cases in which we have held that aliens enjoy *735certain constitutional rights. See, e.g., Plyler v. Doe, 457 U.S. 202, 211-212, 102 S.Ct. 2382, 2391-92, 72 L.Ed.2d 786 (1982) (illegal aliens protected by Equal Protection Clause); Kwong Hai Chew v. Colding, 344 U.S. 590, 596, 73 S.Ct. 472, 477, 97 L.Ed. 576 (1953) (resident alien is a "person” within the meaning of the Fifth Amendment); Bridges v. Wixon, 326 U.S. 135, 148, 65 S.Ct. 1443, 1449, 89 L.Ed. 2103 (1945) (resident aliens have First Amendment rights); Russian Volunteer Fleet v. United States, 282 U.S. 481, 51 S.Ct. 229, 75 L.Ed. 473 (1931) (Just Compensation Clause of Fifth Amendment); Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 981, 41 L.Ed. 140 (1896) (resident aliens entitled to Fifth and Sixth Amendment rights); Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886) (Fourteenth Amendment protects resident aliens). These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country. See, e.g., Plyler, supra, 457 U.S., at 212, 102 S.Ct., at 2392 (The provisions of the Fourteenth Amendment " 'are universal in their application, to all persons within the territorial jurisdiction ...' ”) (quoting Yick Wo, supra, 118 U.S., at 369, 6 S.Ct., at 1070); Kwong Hai Chew, supra, 344 U.S., at 596, n. 5, 73 S.Ct., at 477, n. 5 (“The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders”) (quoting Bridges, supra, 326 U.S., at 161, 65 S.Ct., at 1455 (concurring opinion) (emphasis added)). Respondent is an alien who has had no previous significant voluntary connection with the United States, so these cases avail him not. Verdugo-Urquidez, 494 U.S. at 270-71.
. Despite the fact that the Fifth, Sixth and Fourteenth Amendments have a "territorial theme” and, therefore, apply " ‘to all persons within the territory of the United States,' ” Plyler, 457 U.S. at 212, 102 S.Ct. 2382, some courts have held that excludable aliens may rely upon the Constitution to challenge "governmental action outside of the immigration context.” Fernandez-Roque v. Smith, 734 F.2d 576, 582 n. 8 (11th Cir.1984); see also Gisbert, 988 F.2d at 1442 (recognizing that excludable aliens have a substantive due process right to be free from "gross physical abuse”); but see Ma, 208 F.3d at 824 ("[I]l is not settled that excludable aliens have any constitutional rights at all[.]”). Even if ex-cludable aliens may challenge governmental conduct outside of the immigration context, however, the act of detaining an alien to effect his exclusion from the United States constitutes governmental action within the immigration context. As a result, excludable aliens such as Rosales have no substantive due process right to be free from immigration detention. See, e.g., Ma, 208 F.3d at 824; Carrera-Valdez, 211 F.3d at 1048.
. Preventing the INS from killing or torturing Rosales does not infringe upon the government's plenaiy power to exclude aliens at our borders. Consequently, as noted, supra, some courts have recognized that excludable aliens have a protected liberty interest in not being physically abused. Preventing the INS from indefinitely detaining Rosales in order to ensure his exclusion, however, would interfere with the government's fundamental sovereign authority to control its borders.
. "It is beyond dispute that aliens have no constitutional right to be admitted into this county.” Fernandez-Rogue, 734 F.2d at 581 (quoting Landon, 459 U.S. at 32, 103 S.Ct. 321); see also Jean, 727 F.2d at 972 ("[E]x-cludable aliens cannot challenge either admission or parole decisions under a claim of constitutional right.”). Immigration "[p]a-role is an act of extraordinary sovereign generosity, since it grants temporary admission into our society to an alien who would probably be turned away at the border if he sought to enter by land, rather than coming by sea or air.” Id.
. This is not to say that the Attorney General could detain Rosales indefinitely if some other country were willing to accept him. Under those circumstances, which do not exist here, his continued detention likely would violate the Constitution. In other words, the United States lawfully may detain Rosales in order to regulate its border and prevent him from entering, but it cannot constitutionally prevent him from vacating the border and going elsewhere. Notably, however, Rosales’s habeas petition does not suggest that he or his relatives, who are living in Florida, have arranged for him to leave the United States. Instead, he wants to be released into this country.
. The majority appears to find a substantive due process violation in part because Rosales cannot be "certain” of receiving immigration parole, regardless of how well he behaves while he is detained. Given that Rosales has no right to enter this country at all, however, the fact that he cannot be "certain” of being paroled into the United States does not give rise to a substantive due process violation.
. As the majority properly notes, Rosales alleged in his habeas petition that he was deprived of his Fifth and Fourteenth Amendment rights (1) to be represented by counsel at the parole hearing, (2) to review the information used against him at that proceeding, and (3) to confront and cross-examine witnesses. Rosales also alleged that the INS had miscalculated his parole candidacy score. In particular, he alleged that the INS had improperly enhanced his score to account for prior criminal offenses, not in violation of 8 C.F.R. § 212.12, but rather in violation of the Federal Rules of Evidence, Title 28 of the United States Code and the United States Sentencing Guidelines. J.A. at 6-7. Rosales did allege in his habeas petition, however, that the INS had violated 8 C.F.R. § 212.12 by relying upon impermissible reasons to support its denial of immigration parole. J.A. at 7. Although Rosales does not appear to pursue this claim on appeal, it lacks merit in any event. The INS denied Rosales immigration parole largely because it was unable to conclude that he would not pose a threat to the community, as evidenced by his recidivist criminal behavior. J.A. at 133. This explanation plainly constitutes a proper basis to deny immigration parole. See 8 C.F.R. § 212.12(d).
.Insofar as Rosales's appellate brief might be read to assert a violation of 8 C.F.R. § 212.12, any such claim is belied by the record. Among other things, he has been afforded periodic parole review, the services of a translator during his parole interview, decisions translated into Spanish, and notice of his right to have the assistance of a representative during his parole interview. J.A. at 130-139. Although Rosales stresses that he was not represented by counsel during the parole review process, § 212.12 does not guarantee such a right. Furthermore, this court has recognized that an excludable alien has "no constitutional right to counsel at his parole review hearings." Fernandez-Santana v. Chandler, 202 F.3d 268, 1999 WL 1281781 at *2 (6th Cir. December 27, 1999) (unpublished). Rosales also contends that, as a result of a language barrier, he was unable "to *739understand or communicate in lay or legal terms with his keepers.” As noted above, however, Rosales was informed of his right to have a representative assist with his parole interview. J.A. at 131.