Due Process in Immigration

‘‘Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned’’ (United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544, 1950). On the other hand, all ‘‘persons within the United States,’’ citizens and noncitizens alike, are entitled to the procedural protections of the Due Process Clauses of the Constitution (Zadvydas v. Davis, 533 U.S. 678, 693, 2001). To determine the due process rights of noncitizens, it is therefore critical to determine who is ‘‘within the United States.’’ To understand the due process rights of noncitizens more completely, it is also important to distinguish briefly between the substantive constitutional rights of aliens (or the lack thereof) and their procedural rights.

Procedural versus Substantive Rights

From the earliest days of federal regulation of immigration beginning in the latter half of the nineteenth century, the Supreme Court has deferred to Congress’s substantive policy choices. Pursuant to the Court created ‘‘plenary power’’ doctrine, Congress can fashion substantive immigration law and policy virtually free from what we might call domestic constitutional norms. For instance, Congress has used race and ideology as criteria for who can enter and remain in the United States (for example, Chae Chan Ping v. United States [The Chinese Exclusion Case], 130 U.S. 581, 1889; Kleindienst v. Mandel, 408 U.S. 753, 1972).

In contrast, the Court has been less deferential to the political branches’ procedural treatment of noncitizens in the United States. Neither the federal nor the state governments can criminally punish a noncitizen without affording the noncitizen the same trial rights due a citizen (Wong Wing v. United States, 162 U.S. 228, 1896). Noncitizens are also entitled to due process protections before they can be deported. In Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 101 (1903), the Court established that a noncitizen was entitled ‘‘all opportunity to be heard upon questions involving his right to be and remain in the United States. No such arbitrary power can exist where the principles involved in due process of law are recognized.’’ Noncitizens considered not within the United States, however, receive no constitutional due process protection.

Who Is ‘‘Within the United States’’?

Only noncitizens who are within the United States are entitled to the Constitution’s guarantee of due process. This presents no problems for the hundreds of millions of persons with no connection or desire to interact with the United States. But, the lack of procedural guarantees can create a myriad of problems for those wishing to come to the United States and those physically within the borders but not considered ‘‘within the United States.’’

Noncitizens who apply for visas and/or who present themselves at the border seeking entry are entitled only to those procedural protections provided by Congress or the executive branch. For those whose ties to the United States are attenuated, the lack of due process guarantees results, at most, in inconvenience. As the ties grow stronger, the lack of protection can be devastating. For example, United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), involved a ‘‘war bride’’ attempting to come to the United States to live with her U.S. citizen husband. She was excluded from the United States as an alleged threat to national security. The Supreme Court upheld the decision not to give her a hearing, deferring to the attorney general’s conclusion that giving her a hearing would compromise national security.

Significant ties to the United States and inability to travel to another country can exacerbate the harshness of the rule that only noncitizens ‘‘within’’ the United States are entitled to the Constitution’s due-process protections. The plight of Ignatz Mezei amply illustrates the stakes. Mezei had lived a life of ‘‘unrelieved insignificance’’ with his family in Buffalo, New York, for a quarter of a century when he left on an extended journey to visit his ailing mother behind what was then emerging as the Iron Curtain. Upon his attempted return to the United States, he was excluded in the interest of national security and, like Ellen Knauff, he was denied a hearing and a chance to confront his accusers. Since no other country would take him, he was confined indefinitely on Ellis Island. Since he had not been admitted into the United States, he was entitled to none of the Constitution’s procedural protections (see Shaugnessy v. United States ex rel. Mezei, 345 U.S., 206, 1953).

Noncitizens, like Mezei, who are at the border (including those arriving to interior airports), although physically present on U.S. soil, have not passed through an immigration checkpoint and therefore have not been admitted to the United States and are not entitled to due process. For humanitarian reasons, the United States may allow an otherwise excludable alien to visit the United States. Instead of admitting the alien into the country, the United States grants the alien ‘‘parole,’’ which allows the government to maintain the legal fiction that the noncitizen is not within the United States and therefore is not entitled to due-process protections.

To ameliorate the harshness of a strict territorial demarcation, the Court, in Landon v. Plasencia, 459 U.S. 21 (1982), concluded that a permanent resident alien returning to the United States after a brief sojourn abroad had not cut her ties to the United States so severely as to be entitled to no due-process protection.

The Process Due

For those noncitizens entitled to the Constitution’s due-process protection, the further question is what process is due. To determine whether the government’s action comports with constitutional minima, the Court balances the individual’s interest at stake against the interest of the government in using its current procedures. The risk that the government’s current procedures could wrongfully deprive the individual of that interest coupled with the anticipated value of different or additional procedures provides the fulcrum upon which these competing interests are balanced (Mathews v. Eldridge, 424 U.S. 219, 334-335, 1976).

MICHAEL A. SCAPERLANDA

References and Further Reading

• Aleinikoff, Alex, Due Process and ‘‘Community Ties’’: A Response to Martin, University of Pittsburgh Law Review 44 (1983): 237–260.
• Chin, Gabriel, Victor Romero, and Michael Scaperlanda, eds. Immigration and the Constitution, vol. 3, Shark Infested Waters: Procedural Due Process in Constitutional Immigration Law. New York: Garland, 2000.
• Cole, David, In Aid of Removal: Due Process Limits on Immigration Detention, Emory Law Journal 51 (2002): 1003–1039.
• Martin, David, Due Process and Membership in the National Political Community: Political Refugees-and-the-convention-against-torture.html>Asylum and Beyond, University of Pittsburgh Law Review 44 (1983): 165–235.
• Motomura, Hiroshi, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, Columbia Law Review 92 (1992): 1625–1704.
• Nafziger, Review of Visa Denials by Consular Officials, Washington University Law Review 66 (1991): 1–105.
• Saito, Natsu, The Enduring Effect of the Chinese Exclusion Cases: The ‘‘Plenary Power’’ Justification for On-Going Abuses of Human Rights, Asian Law Journal 10 (2003): 13–36.
• Scaperlanda, Michael, Polishing the Tarnished Golden Door, Wisconsin Law Review 1993 (1993): 965–1032.
• ———, Are We That Far Gone? Due Process and Secret Deportation Proceedings, Stanford Law and Policy Review 7 (1996): 23–30.
• ———, Partial Membership: Aliens and the Constitutional Community, Iowa Law Review 81 (1996): 707–773.
• Weisselberg, Charles, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezei, University of Pennsylvania Law Review 143 (1995): 933–1034.

Cases and Statutes Cited

• Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889)
• Demore v. Kim, 123 S.Ct. 1708 (2003)
• Kleindienst v. Mandel, 408 U.S. 753 (1972)
• Landon v. Plasencia, 459 U.S. 21 (1982)
• Mathews v. Eldridge, 424 U.S. 219 (1976)
• Shaugnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)
• United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)
• Wong Wing v. United States, 162 U.S. 228 (1896)
• Yamataya v. Fisher (The Japanese Immigrant Case), 189 U. S. 86 (1903)
• Zadvydas v. Davis, 533 U.S. 678 (2001)

See also Bill of Rights: Structure; Chae Chan Ping v. U.S., 130 U.S. 581 (1889)

and Chinese Exclusion Act; Citizenship; Aliens, Civil Liberties of; Criminal Law/ Civil Liberties and Noncitizens in the United States; Due Process; Due Process of Law (V and XIV); Indefinite Detention; Kleindienst v. Mandel, 408 U.S. 753 (1972); 9/11 and the War on Terrorism; Noncitizens, Civil Liberties; Plenary Power Doctrine