Amdt5. Deportation and Exclusion Proceedings

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Court has frequently said that Congress exercises sovereign or plenary power over the substance of immigration law, and this power is at its greatest when it comes to exclusion of aliens.1 To aliens who have never been naturalized or acquired any domicile or residence in the United States, the decision of an executive or administrative officer, acting within powers expressly conferred by Congress, with regard to whether or not they shall be permitted to enter the country, is due process of law.2 Because the status of a resident alien returning from abroad is equivalent to that of an entering alien, his exclusion by the Attorney General without a hearing, on the basis of secret, undisclosed information, also is deemed consistent with due process.3 The complete authority of Congress in the matter of admission of aliens justifies delegation of power to executive officers to enforce the exclusion of aliens afflicted with contagious diseases by imposing upon the owner of the vessel bringing any such alien into the country a money penalty, collectible before and as a condition of the grant of clearance.4 If the person seeking admission claims American citizenship, the decision of the Secretary of Labor may be made final, but it must be made after a fair hearing, however summary, and must find adequate support in the evidence. A decision based upon a record from which relevant and probative evidence has been omitted is not a fair hearing.5 Where the statute made the decision of an immigration inspector final unless an appeal was taken to the Secretary of the Treasury, a person who failed to take such an appeal did not, by an allegation of citizenship, acquire a right to a judicial hearing on habeas corpus.6

In certain cases, the exclusion of an alien has been seen to implicate the rights of U.S. citizens.7 These cases have often been decided by the lower courts and involve U.S. citizens’ First Amendment rights, which the Supreme Court appeared to recognize in its 1972 decision in Kleindienst v. Mandel.8 In Trump v. Hawaii, the Supreme Court held that a U.S. citizen’s interest in being reunited with his relatives, where those relatives were foreign nationals seeking to enter the U.S., was sufficiently concrete and particularized to form the basis of an Article III injury in fact.9

However, U.S. citizens have also asserted that the exclusion of an alien has impinged upon the citizen’s due process rights.10 In Kerry v. Din, five Justices agreed that denying an immigrant visa to the husband of a U.S. citizen on the grounds that he was inadmissible under a provision of federal immigration law (which pertains to terrorist activities), without further explanation, did not violate the due process rights of the U.S. citizen spouse.11 These Justices differed in their reasoning, though. A three-Justice plurality found that none of the various interests asserted by the U.S. citizen wife constituted a protected liberty interest for purposes of the Due Process Clause.12 For this reason, the plurality rejected the wife’s argument that, insofar as enforcement of the law affected her enjoyment of an implied fundamental liberty, the government must provide her a full battery of procedural-due-process protections, including stating the specific grounds on which her husband’s visa had been denied.13 A two-Justice concurrence did not reach the question of whether the U.S. citizen wife had asserted a protected liberty interest, but instead concluded that the consular officials’ citation of a particular statutory ground for inadmissibility as the basis for denying the visa application satisfied due process under Kleindienst, which requires only that the government state a facially legitimate and bona fide reason for the denial.14

Procedural due process rights are more in evidence when it comes to deportation or other proceedings brought against aliens already within the country.15 Deportation proceedings are not criminal prosecutions within the meaning of the Bill of Rights.16 The authority to deport is drawn from the power of Congress to regulate the entrance of aliens and impose conditions upon their continued liberty to reside within the United States. Findings of fact reached by executive officers after a fair, though summary, deportation hearing may be made conclusive.17 In Wong Yang Sung v. McGrath,18 however, the Court intimated that a hearing before a tribunal that did not meet the standards of impartiality embodied in the Administrative Procedure Act19 might not satisfy the requirements of due process of law. To avoid such constitutional doubts, the Court construed the law to disqualify immigration inspectors as presiding officers in deportation proceedings. Except in time of war, deportation without a fair hearing or on charges unsupported by any evidence is a denial of due process that may be corrected on habeas corpus.20 In contrast with the decision in United States v. Ju Toy21 that a person seeking entrance to the United States was not entitled to a judicial hearing on his claim of citizenship, a person arrested and held for deportation is entitled to his day in court if he denies that he is an alien.22 Because aliens within the United States are protected to some extent by due process, Congress must give clear indication of an intent to authorize indefinite detention of unlawfully present aliens, and probably must also cite special justification, as, for example, for suspected terrorists.23 In Demore v. Kim,24 however, the Court indicated that its holding in Zadvydas was quite limited. Upholding detention of permanent resident aliens without bond pending a determination of removability, the Court reaffirmed Congress’s broad powers over aliens. [W]hen the government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal.25 A closely divided Court earlier ruled that, in time of war, the deportation of an enemy alien may be ordered summarily by executive action; due process of law does not require the courts to determine the sufficiency of any hearing that is gratuitously afforded to the alien.26


  1.  Jump to essay-1See discussion under Art. I, § 8, cl. 4, The Power of Congress to Exclude Aliens.
  2.  Jump to essay-2See Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1982 (2020); see also Landon v. Plasencia, 459 U.S. 21, 32 (1982); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950); Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892).
  3.  Jump to essay-3Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953). The long continued detention on Ellis Island of a non-deportable alien does not change his status or give rise to any right of judicial review. In dissent, Justices Black and Douglas maintained that the protracted confinement on Ellis Island without a hearing could not be reconciled with due process. Also dissenting, Justices Frankfurter and Jackson contended that when indefinite commitment on Ellis Island becomes the means of enforcing exclusion, due process requires that a hearing precede such deprivation of liberty.

    Cf. Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953), in which the Court, after acknowledging that resident aliens held for deportation are entitled to procedural due process, ruled that as a matter of law the Attorney General must accord notice of the charges and a hearing to a resident alien seaman who is sought to be expelled upon his return from a voyage overseas. Knauff was distinguished on the ground that the seaman’s status was not that of an entrant, but rather that of a resident alien. See also Leng May Ma v. Barber, 357 U.S. 185 (1958).

  4.  Jump to essay-4Oceanic Navigation Co. v. Stranahan, 214 U.S. 320 (1909).
  5.  Jump to essay-5Kwock Jan Fat v. White, 253 U.S. 454, 457 (1920). See also Chin Yow v. United States, 208 U.S. 8 (1908).
  6.  Jump to essay-6United States v. Sing Tuck, 194 U.S. 161 (1904). See also Quon Quon Poy v. Johnson, 273 U.S. 352, 358 (1927).
  7.  Jump to essay-7See Kleindienst v. Mandel, 408 U.S. 753, 762 (1972) (apparently recognizing that citizens’ First Amendment rights were affected by the denial of a nonimmigrant visa to a Marxist journalist who had been invited to speak in the United States); See also Kerry v. Din, 135 S. Ct. 2128 (2015) (plurality and concurring opinions, taken together, suggesting that at least a majority of the Court accepts that Kleindienst allows U.S. citizens to challenge visa denials that affect other rights beyond their First Amendment rights); cf. Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017) (noting that foreign nationals abroad who have no connection to the United States at all can be denied entry as such a denial does not impose any legally relevant hardship on the foreign nationals themselves).
  8.  Jump to essay-8See, e.g., Am. Acad. of Religion v. Napolitano, 573 F.3d 115, 117 (2d Cir. 2009) (The Supreme Court has recognized a First Amendment right to ‘hear, speak, and debate with’ a visa applicant.); Adams v. Baker, 909 F.2d 643, 647 n.3 (1st Cir. 1990) ([I]t is important to recognize that the only issue which may be addressed by this court is the possibility of impairment of United States citizens' First Amendment rights through the exclusion of the alien.); Abourezk v. Reagan, 785 F.2d 1043, 1063 n.1 (D.C. Cir. 1986) (noting that the government defendants had concede[d] that the Supreme Court has already implicitly decided the issue of whether plaintiffs who wish to meet with excluded aliens have standing to raise a constitutional (first amendment) claim) (Bork, J., dissenting).
  9.  Jump to essay-9138 S. Ct. 2392, 2416 (2018).
  10.  Jump to essay-10See, e.g., Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008).
  11.  Jump to essay-11135 S. Ct. 2128 (2015).
  12.  Jump to essay-12Id. at 5–6 (Scalia, J., joined by Roberts, C.J. & Thomas, J.) (plurality opinion). According to the plurality, the U.S. citizen spouse’s alleged interests had been variously formulated as a liberty interest in her marriage; a right of association with one’s spouse; a liberty interest in being reunited with certain blood relatives; and the liberty interest of a U.S. citizen under the Due Process Clause to be free from arbitrary restrictions on his right to live with his spouse. Id. at 7. The plurality also expressly noted that no fundamental right to marriage, as such, had been infringed, because the Federal Government has not attempted to forbid a marriage. Id. (contrasting the case at hand with Loving v. Virginia, 388 U.S. 1 (1967)).
  13.  Jump to essay-13Id. at 6. The plurality took issue with the dissenting Justices’ view that procedural due process rights attach to liberty interests that are not created by nonconstitutional law, such as a statute, but are sufficiently important so as to flow ‘implicit[ly]’ from the design, object, and nature of the Due Process Clause. Id. at 11. According to the plurality, this view is a novel one that is inconsistent with the Court’s established methodology for identifying fundamental rights that are subject to protection under the Due Process Clause. Id. at 12.
  14.  Jump to essay-14Id. at 3 (Kennedy, J., concurring, joined by Alito, J.).
  15.  Jump to essay-15An alien arriving at a U.S. port of entry, whether at a land border or an international airport, is treated for due process purposes as if stopped at the border, despite being on U.S. soil. Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1982 (2020) (internal quotations omitted). That rule extends to those aliens who arrive at a port of entry and are later paroled in the country pending removal. Id.; see also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215 (1953). Accordingly, aliens who arrive at a port of entry and enter the country pending a decision concerning their removability are entitled to only those rights regarding admission that Congress has provided by statute. Thuraissigiam, 140 S. Ct. at 1983.
  16.  Jump to essay-16Harisiades v. Shaughnessy, 342 U.S. 580 (1952). But this fact does not mean that a person may be deported on the basis of judgment reached on the civil standard of proof, that is, by a preponderance of the evidence. Rather, the Court has held, a deportation order may only be entered if it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true. Woodby v. INS, 385 U.S. 276 (1966). Woodby, and similar rulings, were the result of statutory interpretation and were not constitutionally compelled. Vance v. Terrazas, 444 U.S. 252, 266–67 (1980).
  17.  Jump to essay-17Zakonaite v. Wolf, 226 U.S. 272 (1912). See Jay v. Boyd, 351 U.S. 345 (1956), in which the Court emphasized that suspension of deportation is not a matter of right, but of grace, like probation or parole, and, accordingly, an alien is not entitled to a hearing that contemplates full disclosure of the considerations (information of a confidential nature pertaining to national security) that induced administrative officers to deny suspension. In four dissenting opinions, Chief Justice Warren, together with Justices Black, Frankfurter, and Douglas, found irreconcilable with a fair hearing and due process the delegation by the Attorney General of his discretion to an inferior officer and the vesting of the latter with power to deny a suspension on the basis of undisclosed evidence that may constitute no more than uncorroborated hearsay.
  18.  Jump to essay-18339 U.S. 33 (1950). See also Kimm v. Rosenberg, 363 U.S. 405, 408, 410, 415 (1960), in which the Court ruled that when, at a hearing on his petition for suspension of a deportation order, an alien invoked the Fifth Amendment in response to questions as to Communist Party membership and contended that the burden of proving such affiliation was on the government, it was incumbent on the alien to supply the information, as the government had no statutory discretion to suspend deportation of a Communist. Justices Douglas, Black, Brennan, and Chief Justice Warren dissented on the ground that exercise of the privilege is a neutral act, supporting neither innocence nor guilt and may not be used as evidence of dubious character. Justice Brennan also thought the government was requiring the alien to prove non-membership when no one had intimated that he was a Communist.
  19.  Jump to essay-195 U.S.C. §§ 551 et seq.
  20.  Jump to essay-20Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 106 (1927). See also Mahler v. Eby, 264 U.S. 32, 41 (1924). Although, in Heikkila v. Barber, 345 U.S. 229 (1953), the Court held that a deportation order under the Immigration Act of 1917 might be challenged only by habeas corpus, in Shaughnessy v. Pedreiro, 349 U.S. 48 (1955), it established that, under the Immigration Act of 1952, 8 U.S.C. § 1101, the validity of a deportation order also may be contested in an action for declaratory judgment and injunctive relief. Also, a collateral challenge must be permitted to the use of a deportation proceeding as an element of a criminal offense where effective judicial review of the deportation order has been denied. United States v. Mendoza-Lopez, 481 U.S. 828 (1987).
  21.  Jump to essay-21198 U.S. 253 (1905).
  22.  Jump to essay-22Ng Fung Ho v. White, 259 U.S. 276, 281 (1922).
  23.  Jump to essay-23Zadvydas v. Davis, 533 U.S. 678, 690–91 (2001) (construing a statute so as to avoid a serious constitutional problem, id. at 699, and recognizing a presumptively reasonable detention period of six months for aliens subject to removal).
  24.  Jump to essay-24538 U.S. 510 (2003). The goal of detention in Zadvydas had been found to be no longer practically attainable, and detention therefore no longer [bore] a reasonable relation to the purpose for which the individual was committed. 538 U.S. at 527.
  25.  Jump to essay-25538 U.S. at 528. There was disagreement among the Justices as to whether existing procedures afforded the alien an opportunity for individualized determination of danger to society and risk of flight.
  26.  Jump to essay-26Ludecke v. Watkins, 335 U.S. 160 (1948). Three of the four dissenting Justices, Douglas, Murphy, and Rutledge, argued that even an enemy alien could not be deported without a fair hearing.