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
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. Deportation proceedings are not criminal prosecutions within the meaning of the Bill of Rights. 15 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. 16 In Wong Yang Sung v. McGrath, 17 however, the Court intimated that a hearing before a tribunal that did not meet the standards of impartiality embodied in the Administrative Procedure Act 18 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. 19 In contrast with the decision in United States v. Ju Toy 20 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. 21 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. 22 In Demore v. Kim, 23 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. 24 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. 25