Immigration Outline:
I. Foundations
1) Concept of Citizenship
a) Under American law, citizenship means the right to reside w/in the territory of the Nation
State; thus, Immigration law centers on those denied the right of citizenship
b) 14th Amendment, Sec. 1 = “All Persons born or Naturalized in the US, and subject to the
jurisdiction thereof, are citizens of the US and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges or immunities of citizens
of the US; nor shall any State deprive any person of life, liberty, or property, w/out due
process or law; nor deny any person w/in its jurisd the equal protection of the laws”
c) Citizenship by Ascription
i) Each State ascribes its citizenship to certain persons at birth (which is based on a
presumption of membership)
(1) Traditional Immigration countries (US; Canada; Latin America countries)
generally ascribe citizenship to all persons born in their territory
(a) But others (Germany; Switzerland) make no special provision for conferring
citizenship on 2nd or even 3rd generation immigrants
ii) A child born in the U.S. to parents, who are Chinese Nationals but legal US residents,
is a citizen; and should not be denied re-entry into the U.S.
(1) US v. Wong Kim Ark (US 1897)- Wong Kim was born in CA to Chinese
National parents, legal residents of the US. After leaving for a temp visit to China
at age 21 he was denied entry into the US on the grounds that he wasn’t a citizen.
(a) Held: P was a citizen b/c the 14th Amend affirms the rule of citizenship by
birth w/in the territory, in the allegiance, and under the protection of the U.S.
(i) Every citizen or subject of another country while domiciled in the US is
w/in the allegiance, protection, and subject to the jurisd of the U.S.
d) Naturalization
i) Acquiring citizenship later in life (not ascribed at birth); purely discretionary decision
of the State which doesn’t have to be justified and cannot be appealed
(1) Cox: …
2) Sources of Federal Immigration Power
a) Sources: Fed Immigration power isn’t enumerated so where does it come from?
i) Delegated Power?
(1) Commerce Power= Art. I, Sec. 8, cl. 3 authorizes Congress to reg commerce
w/foreign nations and among States;
(a) Commerce clause and Fed regs have been used to extinguish State power to
control Immig directly
(i) See Edwards v. CA (1941)- Ct struck down CA statute that made it a crime
to bring an indigent person into the State b/c Statute interfered
w/Congress’ power to regulate interstate commerce
1. Ct asserted the transportation of persons is commerce
(2) Foreign Affairs Power= not expressly granted by the Constitution;
(a) See Ping- J. Field associates power to reg Immig w/power to conduct foreign
affairs
(3) War Power= Art. I, Sec. 8, cl. 11 provides that Congress has power to declare war
(4) Naturalization Power= Art. I, Sec. 8, cl. 4 gives Congress authority to est. an
uniform Rule of Naturalization so to avoid confusion among separate State laws
(5) Migration & Importation Clause= Art. I, Sec. 9, cl.1 provides that Migration and
Importation of persons admitted by the States shall not be prohibited by Congress
prior to 1808 (attempt to prohibit Congress from stopping the slave trade)
(6) Republican Guarantee Clause= Art. IV, sec. 4 provides the Constitution’s
guarantee of a Republican form of Govt
(7) Treaty Power= Constitution grants Congress treaty-making power under XXX
ii) Inherent Power?
(1) Independence; Incident of Sovereignty; Security; Int’l Law; Self-ID
(a) Ping case (J. Field)- Even if the Govt doesn’t have the power via the
Constitution it has inherent powers that arise from being an indep soverign
(i) J. Field states the power to exclude foreigners is an incident of sovereignty
belonging to the US Govt
1. Ct claims reg of Immig is necessary for Self-preservation
a. Cox: on the one hand this is the Ct endorsing the racist rhetoric of
its time; however, a Nation may find Immig reg necessary for
economic or cultural preservation
(b) US v. Curtiss-Wright (1936)- Ct asserted that the Fed Govt foreign affairs
power is NOT derived from the Constitution, rather it derives from the mere
fact of independence
(2) Power to reg Immig = Inherent in the concept of Sovereignty***
b) Limits:
i) Exclusive power of the Fed Govt, NOT the States
(1) Also, this depends on where the power comes from—
c) Strength & Domain of the Power:
i) Ct tends to not look behind substantive exclusion policy; could be b/c Congress has no
restraints or b/c Ct won’t enforce them due to political question doctrine
(1) Note: Chinese Exclusion case was a precursor to the Political question doctrine,
whereby the Ct won’t step in if the Constitution clearly delegates to other branch
ii) Domain- notion that where the person is influences the strength of the power
(1) In early cases, power strongest re: persons outside the territory seeking (port) entry
(2) In Ping he was at the border but Entry Fiction doctrine says you’re not really here
(3) In Yick Wo the Ct struck down the discriminatory statute (v. Chinese launderers)
on EPC grounds b/c aliens have rights b/c they are w/in the territory
d) Power to Exclude:
i) Chinese Exclusion Case (Ping): First case to est. the Immigration Plenary Power
(1) Historical Background(a) 1848 = CA Gold rush and Railroad development sparked a high demand for
laborers and spurred large Chinese immigration into the US
(b) 1868= Congress est. the Burlingame Treaty of 1868 w/China which
recognized the inherent and inalienable right of man to change is home and est.
free migration of American & Chinese citizens
(c) 1880= Chinese-US Treaty authorized US to regulate, limit, or suspend Chinese
immigration of laborers if their entry would threaten the country’s interests
(i) But Chinese already w/in the US were reserved the right to come and go
(d) 1882-1892= Congress enacted the Chinese Exclusion laws
(i) The Panic of 1873 and Drought & Depression of 1877 fostered extreme
anti-alien sentiment in the West; citizens pressured Govt to force out all
the Chinese laborers who had settled in the West
(ii) 1882= First Chinese Exclusion law suspended immigration of Chinese
laborers for 10 yrs and est. a procedure for issuing Certificates of ID which
entitled the Chinese to re-enter the US after trips abroad
(iii) 1888= Congress passed Act prohibiting the return of all Chinese laborers
who left the US even if they had been residents
(2) Power to exclude foreigners is a sovereign power of the US Govt that cannot be
restrained—thus Congress can exclude Chinese laborers who had been LPRs.
(a) Chae Chan Ping v. US (1889)- Ping was a Chinese laborer who entered the
US in 1875 and lived in San Francisco until 1887; he received a Cert of ID
prior to leaving for China; he returned after passage of the 1888 Act which
denied him re-admission into the US despite his certificate.
(i) Held: Ct found the 1888 Act wasn’t invalid despite its contravention of the
Burlingame Treaty of 1868 b/c Congress has exclusive power to exclude
1. Treaty-Statute Conflict- Ct suggests that if a Treaty and Statute
conflictlast in time governs
a. This could be product of fact that Art. VI Supremacy Clause
doesn’t est. a hierarchical order for Fed law, treatises, and regs
thus Ct fashions a last in time rule
2. Fed Immigration Power- Ct addresses where Congress derives its Fed
Immigration power
a. Constitution?= Foreign Affairs clause; Naturalization Rule; War
Power; Republican Guarantee Clause Treaty Power
b. Inherent Power?= Immig reg is an inherent incident of sovereignty
i. Immig Reg is necessary for Self Preservation
ii. Ct NEVER pins down the exact source of Immig Power*
3. Retroactivity Issue- Ct allows weird retro app of the Statute…
e) Power to Deport:
i) 1892 Act provided for the deportation of aliens residing in the US and extended the
1882 suspension on the Immig of Chinese laborers for another 10 years
(1) Note: 1996 IIRIRA reformed the distinction btwn Exclusion & Deportation
(a) IIRIRA focuses on admissibility and now 2 classes of aliens are subject to
inadmissibility: aliens arriving in the US and those present but not formally
admitted
(2) The right of a Nation to Expel or Deport foreigners who haven’t naturalized is as
absolute and unqualified as the Nation’s right to exclude.
(a) Fong Yue Ting v. US (1893)- In April 1893, P/Chinese laborer applied for a
Cert of residence but was denied b/c his witnesses were Chinese and not
“credible witnesses” (P didn’t have any witnesses that weren’t Chinese that
could verify he was legally in the US). P was arrested but couldn’t produce a
cert of residence for the judge or a white witness, and the 1892 Act required at
least one credible white witness); Judge ordered P be deported as required by
the Act. (J. Gray).
(i) Held: Ct Aff’d Dismissal of the Chinese Laborer’s habeas petition
1. Congress was w/in its legislative authority when it put the burden on
the alien to rebut the presumption arising from not having a Certificate
a. The Judiciary cannot judge such a Congressional policy judgment
i. The source of Congress’s power to deport is the same as
the power to exclude
ii. Deportation is NOT a punishment
2. Central Theme in Fong is a Contractual issue—
a. Ct suggest that Fong violated a condition of his continued
residence (his contract to reside) & deported for a K violation
b. Cox: But when is it ok to contract away Constitutional rights?
(ii) Dissents= Deportation is a punishment; focus on Rights Holding
1. J. Brewer- the Act affects person who are lawful residents protected by
Constitutional guarantees, thus it deprives persons who were lawfully
residing in the US of liberty and imposes punishment w/out due
process (status)
2. J. Field- there is a distinct diff btwn power to exclude v. deport b/c
deportation due to failure to obtain a cert is a punishment that can be
imposed only after fair trial
3. J. Fuller- agrees w/Field and draws distinction btwn power to exclude
v. Indiv rights holding
a. Aliens have rights b/c they’re w/in the territory (rights arise from
being w/in the jurisdiction) (territory)
b. One’s legal status affords them vested rights (cannot be stripped)
i. Cox: Not clear where legal status is derived from here? (time;
assimilation; integration; ties, etc.)
(b) Note: Supreme Ct later holds that Naturalized citizens are on equal grounds as
native-born citizens (cannot strip a Naturalized person of citizenship)
ii) Is Deportation a punishment?
(1) A Fed Statute that issues imprisonment at hard labor prior to deportation is
Unconstitutional b/c no judicial trial was provided prior to imprisonment.
(a) Wong Wing v. US (1896)- Ct struck down a provision of the Fed 1892 Immig
Act which provided that Chinese citizens judged to be in the US illegally shall
be imprisoned at hard labor for no more than one year and then deported.
(i) Held: Cannot punish by deportation w/out applying the protections of the
5th & 6th Amendments (right to jury trial; right to speedy public trial)
1. Ct attacks the Constitutionality of the Statute by framing it as outside
the Immig arena (b/c Ping est. that the Ct won’t adjudicate the
Constitutionality of Immig law)
(ii) Key: this is the 1st time the Ct strikes down Fed Immig law & suggests
restrictions on the Fed Govt in Immigration regulation!
1. C.f. the Fong Ct held that deportation was NOT a criminal punishment
thus the Constitutional provisions re: right to trial didn’t apply; BUT
here the Ct disagrees;
(2) Trend-watch: Does deport = punishment?
(a) NO =
(i) Fong Ting (1893)
1. C.f. Dissent rights-holding basis; finds deport is punishment
(ii) Bugajewitz v. Adams (1913)
1. And Ex post facto clause doesn’t apply to deportation
(iii) Harisiades (1952)
1. Deport is a civil, not criminal procedure
(iv) AADC Supreme Ct holding
(v)
(b) YES =
(i) Wong Wing (1896)
1. 5th & 6th Amend apply; right to jury trial
f) Immigration Plenary Power:
i) Note that it isn’t until Chinese Ex. Case in 1889 that we see the first Immigration case
(1) At the founding of our country there was only one piece of legislation re: Immig
law (Deportation Act of 1778 allowed Fed Govt to deport persons)
ii) 3 Questions = 1) Source?; 2) Who holds the Power?; 3) What extent?
(1) Source?
(a) Not a clear Delegated power, thus Cts assert an Inherent power [see above]
(2) Who holds the Plenary Power? 2 dimensions apply =
(a) Separations of Powers- cases don’t tell us a lot here
(b) Federalism- series of cases strike down State attempts to reg Immig,
suggesting it is an exclusive Fed Power
(3) What extent?
(a) Absence of clear Constitutional constraints,
(b) Plenary Power can be viewed under Two models =
(i) Immigration Exceptionalism =
1. When the Govt acts in the Immig arena, Cts won’t intervene (i.e. more
about judicial deference or political question doctrine)
(ii) Immigrant/Alien Exceptionalism =
1. Ct may be motivated not by fact that it was in the Immig arena, rather
we are regulating persons who may lack Constitutional status to
challenge their treatment
2. This conception leads us to right-holding theories (i.e. stakes, legal
status, territory, etc.) & development of “Membership Models” =
a. Territorial Model
b. Stakes & Legal Status
c. Global Due Process
d. Mutuality
g) Ethical & Moral Constraints on Immigration Power:
i) Carens and Walzer agree that meaning and value come from communities
(1) Walzer- believes distinctiveness is good and we need formal closure (i.e. clubs)
and controlled immigration
(a) “Primary good we distribute to one another is membership in some human
community”
(b) Admission and exclusion are at the core of communal independence
(2) Carens- believes we can keep distinctiveness w/open borders (i.e. cities)
(a) Carens asserts that in the private sphere freedom of association prevails and in
the public sphere equal treatment does;
(b) General case for open borders is deeply rooted in the fundamental values of
our tradition
(c) “Current restrictions on immigration are not justifiable b/c they protect unjust
privilege”
h) Note the Foundational questions =
(1) What kinds of rights at entry/admission apply? What Constitutional constraints?
(a) Ping Case (Congress has power to exclude LPRs)
(2) Rights re: exit? What constraints?
(a) Fong Case (Congress has “same” power to deport, which isn’t punishment)
(3) What rights apply while people are “present” & not being kept/kicked out?
(a) Wong Wing (punishment by deportation must adhere to 5th & 6th Amend)
(b) Yick Wo (non-citizens are entitled to 14th Amend equal protection)
(c) Graham; Diaz (public benefit cases re: alienage laws, not race-based laws)
3) Alienage Law: Constitutional Protection of Aliens after Admission
a) While in Fong and Ping the Ct suggests that aliens lack constitutional rights/protections,
but then in Yick Wo and Wong Wing the Ct suggests aliens are entitled to such protections
i) Theories = Why can Immigrants assert Constitutional rights?
(1) Territorial Theory
(2) Stake/Affiliation Theory
(3) Legal Status/Vested Rights Theory
ii) Note: Immigration law (shielded by Plenary power) v. Alienage law
(1) Re: Alienage law, aliens granted many of the same rights as citizens w/clear limits
b) The 14th Amendment is NOT confined to citizens; Aliens are entitled to Equal Protection
i) Yick Wo v. Hopkins (1896)- San Francisco Ordinance forced the closing of Chineseowned laundries but allowed others to remain open.
(1) Held: Ct struck down the ordinance b/c non-citizen aliens are entitled to equal
protection and the ordinance is a clear violation of the EPC.
(a) The 14th amend language says “any person”
(b) Why can aliens bring Constitutional claims? Cts 3 rationales =
(i) 1) Immigrant Exceptionalism
1. Territoriality theory= one w/in the territory can bring such claims
2. Stake/Affiliation theory = one w/connections to the US and its people
can bring constitutional claims
3. Legal Status/Vested interest= one w/legal status (citizen or LPR) can
bring claims
(ii) 2) Immigration Exceptionalism
1. Aliens cannot challenge Immigration regulations, but Yick Wo
involves a domestic regulation which aliens can challenge
(iii) 3) Federalism
1. Yick Wo addressed a local Ordinance, thus problem is that San
Francisco doesn’t have power to reg Immig under Fed authority
(c) Reconciling Yick Wo (14th Amend protections) v. Chae Chan Ping
(i) Immig Exceptionalism
1. Yick = laundry regulation (domestic)
2. Ping = Immig exclusion policy
(ii) Fed v. State Regulation
1. Yick = State reg
2. Ping = Fed Gov reg
(iii) Territory
1. Yick = Inside US territory
2. Ping = Outside territory
(iv) Status
1. Yick = legal aliens
2. Ping = ??? [prior LPR but left the US]
c) Public Benefits: A State Statute that denies Welfare benefits to aliens and LPRs who
haven’t resided in the US for a specified number of years violates Equal Protection Clause
i) Graham v. Richardson (1971)- Case re: AZ and PA State Welfare Statutes that favor
US citizens over aliens in their distribution of Fed welfare benefits. AZ Statute holds
that one is not entitled to Govt assistance if they aren’t a US citizen or have resided in
the US for 15 yrs. PA Welfare Codes provides that those eligible for assistance shall be
needy persons who qualify under the fed categorical assistance programs and “other
needy citizens of the US.
(1) Held: A State has a valid interest in preserving fiscal integrity of its programs
BUT cannot do that thru invidious distinctions btwn classes of citizens and aliens
(a) Ct challenges the validity of the Special Public Interest Doctrine (which has
been the basis for validating State restrictions on the rights of non-citizens)
(b) Federal-State Relations reqmts that deny welfare benefits to non-citizens
or condition them on longtime residency encroach upon exclusive Fed powers
(c) J. Blackmun- Aliens as a class are a “discrete and insular minority”
deserving of judicial protection
(i) This leads the Ct to apply a Strict Scrutiny Std of Review
(d) Ct suggests that one’s fundamental right to travel is driving the Ct’s decision
(i) B/c States cannot enact regs that disable residents’ interstate right to travel
d) Congress may discriminate in favor of citizens and v. classes of aliens (those w/out longterm residency) in providing Welfare benefits; discriminatory statutes were Constitutional
i) Matthews v. Diaz (1976)- P’s filed suit to challenge their denial of the Medicare Part
B supplemental insurance program est. under the Social Security Act of 1935. P’s
attacked the constitutionality of § 1395(2B) which grants eligibility to resident citizens
who are age 65 or older but dies eligibility to comparable aliens unless they have been
admitted for permanent residence and also have resided in the US for at least 5 yrs.
P/Diaz and Clara meet neither reqmt and P/Espinosa meets only the first reqmt.
(1) Issue: Whether the Statutory discrimination w/in the class of aliens is permissible?
(a) Held: Sec. 1395(2B) does NOT deprive aliens of liberty w/out due process of
law b/c an Act of Congress that treats aliens differently doesn’t imply that such
treatment is invidious.
(i) Ct is reluctant to question Congress’s policy judgment in drawing the
eligibility line
1. Ct asserts that Graham (invoked by the P here) actually supports this
holding b/c it suggests that it’s solely the power of the Fed Govt, not
the Judiciary or State, to regulate entry & residence of aliens
2. But how to distinguish domestic regulations of non-citizens from
Immigration rules?
(2) Cox: Diaz can be viewed as asserting that Ping case does NOT mean no judicial
review of Congressional Acts in the Immig arena, rather some Ct scrutiny applies
(a) Tension btwn Graham & Diaz both cases about federalism and equal
protection, but Graham Ct strikes down the State Welfare Reg as
discriminatory while Diaz Ct upheld a discriminatory Fed Welfare statute as
constitutional; how do you reconcile the two cases?
(i) Underlying factor is Cts desire to achieve uniformity among State law; &
(ii) Preference for Fed reg as to what constitutes “membership”
1. And these public benefit statutes serve as determinations as to what
membership status is and entails (but this is in tension w/the EPC)
2. Thus, the Ct is torn btwn a membership v. equal protection model
(iii) EPC could be slightly different as applied to Fed Govt v. States b/c the 5th
Amend language v. 14th Amend (which refers to “the States”)
(b) Reconciling Graham v. Diaz
(i) Plenary Power?
1. Graham = strict scrutiny so probably not a PP case
2. Diaz = not even a rational basis review
(ii) Equal Protection?
1. Under EPC model Diaz should have more scrutiny
(iii) Membership? Federalism?
1. Preference given to Fed Govt to reg membership status; Federalism
concerns
II. Grounds for Admission, Exclusion, & Deportation
1) Agency Structure & The Courts
a) INSERT
2) Constitutional Constraints on Admission & Removal
a) Restraints on Admission Policies:
i) Immigration Law began restricting via the Chinese Exclusion laws, but there were no
numerical restriction until 1921 when anti-European migrant sentiments arose
(1)
(2)
(3)
(4)
1882 = Enactment of Chinese Exclusion Acts
1907 = Govt est. the 1st Deportation provision based on conduct after admission
1920’s = US Nat’l Quota laws arose to restrict the “type” of people that could enter
1924 = Immig Quota System est. quota for each country
(a) Until 1960’s, the Western Hemisphere was exempt for the US quota system
(b) Quota system est. quota for each country based on the # of persons from that
country already in the US in 1920; so to maintain the ethnic composition in US
(i) Quota Criteria- to enter, immigrant got preference if est. they have a
qualified family member in the states (Citizen or LPR) or est. employment;
(ii) Thus, preference granted for employment and family based migration
(c) Exception to Numerical Quota = INA est. an exception for the quota system,
whereby family members in parent-child relationships get preferential status;
(i) BUT if you are an illegitimate child, your relation to your mother counts
but your relation to your father does not (See Fiallo)
(d) Family Reunification: Why is this the organizing principle of Immig Law?
(i) System heavily favors family-based immigrants, why?
1. 1st Order commitment = moral commitment to family relationships
2. 2nd Order commitments = economic advantages; integration; maintain
ethnic composition
a. Notion that those w/family in the US will better assimilate &
integrate thru their relatives est. networks in the US
b. But family reunification system didn’t preserve ethnic comp in the
US actually led to increased migration from Asia & Latin Amer.
ii) Preferences: INA § 101(b)(1D) and (b2) are not unconstitutional by virtue of their
exclusion of child relations w/natural fathers from the preferences status.
(1) Fiallo v. Bell(1977)- Dispute re: a Constitutional challenge to the def’n of “child”
in INA § 101(b)(1)(D) prior to a 1986 amendment, which recognized only the
relationship btwn illegitimate children and their natural mothers but excluded
relations w/natural fathers; the Act grants special preferential Immig status to
aliens who qualify as the children or parents of US citizens or LPRS.
(a) Issue: Whether the Statute can discriminate and grant preference to childmother relation but not to natural fathers? [Yes]
(i) Held: INA exclusion of natural father relations for preferential status
is Constitutional.
1. Statute involves a line-drawing issue that is determined by Congress,
which has legislative power to determine which children qualify for
preferential status;
a. Clear policy issue for the Govt’s Political branches
b. Ct cannot substitute its judgment for Congress’s policy judgments
2. A US citizen is allowed entry of his parent or child w/out regard to
either a numerical quota or Labor Cert reqmt; BUT a LPR alien is
allowed entry of his parent or child subject to numerical limitations
(ii) Dissent (Marshall) = Citizen’s rights argument; when Congress grants
benefits to some citizens but not others, it is the Cts duty to insure the
decision comports w/the 5th Amend DPC and EPC;
(iii) Std of Review- not clear here; could be rational basis scrutiny; at the time
of this case, Gender is a quasi-suspect classification requiring an
intermediate level of scrutiny (relaxed scrutiny);
1. Strict Scrutiny = applied to Race and National origin classifications;
requires a necessary means and compelling Govt interest
2. Low Scrutiny = merely requires a legitimate Govt interest
(iv) Tension btwn Majority v. Dissent = hinges on whether Immig is about
Constitutional Exceptionalism—
1. The Cts Immigration Exceptionalism view holds it doesn’t matter that
citizens’ rights are at stake; push aside constitutional issues in Immig
2. But w/an Immigrant Exceptionalism view, the Ct wouldn’t ignore
Constitutional issues just b/c its in the Immig arena (rights considered)
(2) Note: In 1986, Congress amended the § 101(b)(1)(D) def’n of child to = “an
illegitimate child…on whose behalf a status, privilege or benefit is sought by
virtue of the relationship of the child to its natural mother or to its natural father if
the father has or had a bona fide parent-child relation w/the person.
b) Deportation: Supreme Ct has est. NO limits on Congress’s authority to define classes of
deportable non-citizens;
i) But on procedural matters the Ct has drawn a line btwn due process guarantees at the
border and interior;
(1) Issues arise as to whether Deportation is a punishment?
(a) Fong case v. Wong Wing case
(i) Fong Ct upheld deportation of Chinese National who couldn’t produce a
white witness; deportation not punishment; BUT
(ii) Wong Wing Ct struck down the provision of the same Statute that provided
for imprisonment w/out a judicial trial; deport is punishment
ii) Deportation Constraints: Congress has the power to order the deportation of aliens
whose presence in the US it deems harmful (i.e. prostitutes).
(1) Bugajewitz v. Adams (1913)- Petitioner/alien filed a writ of habeas corpus after
entering the US in Jan. 1905, was arrested in Aug. 1910; an order est. that she
was deportable under the INA b/c she was a prostitute and inmate of a house of
prostitution and entered the US for that purpose; and under the Fed Act any alien
woman who engaged in prostitution w/in 3 yrs after she entered the US was to be
deported. P claims the statute is unconstitutional.
(a) Held: Deportation is not a punishment here, rather it’s a refusal by the Govt to
harbor persons it doesn’t want;
(i) J. Holmes- Ex Post Facto clause doesn’t apply to deportation Statutes
(applies only to penal Statutes);
(ii) Note: in 1910, Congress got rid oft he 3 yr limitation;
(b) Today: we see a growing reluctance by the Supreme Ct v. retroactivity
(2) Removal & Ex Post facto clause- notion that Constitution’s ex post facto clause
doesn’t apply to deportation Statutes is asserted in Bugajewitz;
(a) Galvan v. Press (1954)- Ct ordered Galvan deported for his involvement
w/the Communist party; Ct rejected his constitutional claims and Ct found ex
post facto clause doesn’t apply to deportation statutes b/c “the formulation
of these policies is entrusted exclusively to Congress…”
(i) 2 concerns re: retroactive app to deportation statutes = 1) unfair to
impose harsh sanctions upon one whose conduct was lawful when
undertaken; 2) the justness of deporting one who made a mistake a long
time ago but has since lived a peaceful and productive life in the US
iii) Do Constitutional Constraints apply to Deportation?
(1) Supreme Ct has est. that non-citizens in the US are protected by the Bill of Rights
in cases NOT re: direct challenge to deportability grounds [Yamataya; Wong Wing]
iv) 1st Amend rights are accorded to aliens in the US, thus Constitutionally protected acts
the Govt cannot punish via Criminal statute are also beyond its reach in Deportation
(1) AADC v. Reno (9th. Cir. 1995)- Fed Govt attempted to deport 8 non-citizens
allegedly associated w/the Popular Front for the Liberation of Palestine. Govt
invoked old INA provisions, and claimed the non-citizens were deportable b/c
they’re members of a communist group; claim was dropped against 6 of them and
replaced w/invalid visa claims, but then retained the claim v. 2 of them.
(a) Issue: Whether resident aliens are protected by 1st Amend- free speech?
(i) Held: Ct rejected the Govt claim that aliens aren’t entitled to 1st Amend
protections b/c the Ct accords resident aliens protections under the Bill of
Rights; 1st Amend protects aliens v. selective enforcement of Immig laws
1. 1st Amend applies to both Criminal and non-criminal proceedings
2. Textual Argument- the 1st Amend doesn’t say “citizen”, but not clear
it extends to those that aren’t members of the “political community”
3. Immig Law must be consistent w/ the Constitution
(ii) Thus, Congress cannot ignore aliens’ constitutional rights when exercising
its Plenary power of deportation***
1. Key: 9th Cir. seems to suggest aliens have stronger constitutional
claim in deportation than in exclusion proceedings & that the Plenary
Power is subject to Constitutional constraints*
(2) Reno v. AADC (1999)- Supreme Ct held for the Govt and Scalia asserted that
when an alien’s presence in the US violates Immig laws, the Govt doesn’t offend
the Constitution by deporting him under the belief he’s a member of a terrorist org.
(a) When deportation is enforced b/c of an act committed by the alien, deport isn’t
a punishment, alien’s just being held to the terms under which he was admitted
(b) Cox: don’t read this as the Supreme Ct asserting there are NO Constitutional
protections in deportation, rather the Ct cuts back on those asserted by 9th Cir.
v) Why does one have Constitutional Status in Deportation Proceedings? Theories=
(1) Legal Status theory- idea that once you enter you have engaged in a bargaining
process and acquire legal status (but at exclusion no bargaining has occurred so
alien lacks legal status)
(i) Exclusion  Entrance  Deportation
(2) Territorial theory- notion that when w/in the US, you acquire the status just by
being w/in the jurisdiction (but the entry fiction doctrine blurs this theory)
(i) Entry fiction = those at ports of entry are deemed not w/in US territory
(3) Ties/Affiliation theory- status based on one’s ties/networks est. while in the US
vi) But why treat non-citizens differently when in deportation proceedings?
(1) Deterrence theory
(2) Incentives (Govt may want to encourage some people to migrate)
(3) Fairness theory
3) Admission Rules
a) Admissions: Qualifying Categories & Grounds of Inadmissibility
i) To be admitted, a non-citizen must prove that none of the inadmissibility grounds in
INA 212(a) renders him ineligible to receive a visa;
(1) INA 212(a) = contains all inadmissibility grounds…
ii) An alien already in the US who seeks to become a LPR must be deemed admissible
under INA 245a
(1) BIA has since ruled that returning LPRs are presumed NOT to be applicants for
admission
(2) INA 237a(1A)= turns all inadmissibility grounds into deportability grounds IF the
alien’s inadmissibility was NOT checked at the port of entry;
(3) The balance of INA 212 contains waiver provisions which cut back on the
inadmissibility grounds; all waivers are discretionary
(4) INA 242a(2B)= bars judicial review of decisions to grant/deny waivers via 212h-i
iii) Categories: Since 1921 US Immig Law has imposed annual numerical limitations on
most immigrant categories
(1) System provides for 4 Categories of Immigrants =
(a) Family sponsored immigration; 2) employment-based; 3) Diversity
immigrants; 4) Refugees;
iv) 1990 Act: reflected Congressional decision to increase immigration levels substantially
(1) Diversity Admission Provision reflected a Nat’l self-image of a pluralistic America
open to all; est. a lottery to choose each year from those who meet the reqmts
v) 1996 IIRIRA changed the exclusion-deportation (territory) line to focus on
admissibility
(1) Under IIRIRA, now have 2 classes of aliens subject to inadmissibility grounds = 1)
aliens arriving the in US; and 2) aliens present in US but haven’t been admitted
(2) Congress wanted to put inspection at admission & deportation under the same std
(a) See Cox Chart re: Admissibility; See also INA 210-203
(3) Key change = clandestine entrants no longer have an advantage over the alien who
presents himself for inspection at the border [was a big problem under the pre1996 exclusion-deportation grounds]; now
(a) INA 212(a)(6)(Ai) est. an inadmissibility grounds for aliens present in the US
w/out being properly admitted by the Attorney General
vi) 2 Types of Admissibility Screening =
(1) Upon Entrance even if you otherwise qualify upon admissions screening, not
admissible b/c you fall into one of the inadmissibility categories;
(2) Once you’re admitted one can be deemed deportable after admission b/c they
violated an admissibility qualification
(a) INA 101a(13) = “admission” means the lawful entry of an alien into the US
after inspection and authorization by an Immig officer
b) Admissions Preference Categories:
i) In 1965 the US est. its current modern preference system
ii) Principle way of becoming admissible is thru a family connection or employment
(1) Family members file visa w/BCIS; employers filed w/Dept of Labor (to get cert)
iii) Family-Sponsored Immigration- preferential status given “immediate relatives” of
US Citizens (not subject to numerical limits, INA 201b)
(1) INA § 201(b)(2)(A)(i) = Aliens not subject to direct numerical limits =
“immediate relatives” = immediate relatives means the children (under age 21),
spouses, and parents (over age 21) of a citizen of the US
(a) But this leads to the question, who qualifies as a spouse?
(2) Def’n of Spouse/Marriage: Congress has the power to determine spousal status &
didn’t intend to enlarge the “ordinary meaning” to include homosexual spouses
(a) Adams v. Howerton (9th Cir. 1982)- Adams/US Citizen obtained marriage
license w/his partner Sullivan who had an expired visa; Adams was refused his
petition to adjust Sullivan’s status to “immediate relative.”
(i) Issue: Whether a homosexual spouse gets preferential status under §201b?
1. 2-step analysis to determine if a marriage is recognized under Immig
law: 1) Is the marriage valid under State law; 2) Does the State
approved marriage qualify under the INA?
2. Held: B/c Colo. law isn’t clear on this issue, Ct looks to the common
meaning of marriage which contemplates only a relationship btwn man
and woman; Ct offers 3 rationales =
a. 1) Intra-Textual Rationale = in the same year this provision was
enacted, a provision was est. that made people inadmissible by
virtue of their sexual deviation (homosexuals = excludable)
b. 2) Canon of Construction
c. 3) Chevron Deference= 2-step analysis =
i. 1) if Statute has plain meaning Ct applies that meaning; but
ii. 2) with Ambiguous Statutes Cts must defer to a reasonable
construction of that provision that is adopted by the Agency
responsible for implementing it***
3. Note: Ct asserts a very deferential “Fiallo-type” std of review; this
may be a result of Plenary Power
(ii) INA § 101(a)(35)= “spouse” does not include a wife or husband est. via a
marriage ceremony where the contracting parties thereto are not physically
in the presence of each other unless the marriage shall have been
consummated
1. = Contract marriage that hasn’t been consummated aren’t recognized
under the INA
(b) 1990’s: Marriage classification becomes clearer; Congress repeals provision
under which homosexuals were deemed excludable;
(i) 1996 Defense of Marriage Act = marriage refers to people of opposite sex
(3) Sham Marriages: A Marriage is a sham if the bride and groom didn’t intend to
est. a life together
(a) Bark v. INS (9th Cir. 1975) - Petitioner was denied adjustment of status from
Student visitor to LPR under INA 245; Govt concedes denial was based solely
on the IJs conclusion (Aff’d by the BIA) that P was ineligible b/c the marriage
he applied under was a sham; P’s wife (while they were dating) immigrated to
the US from Korea and became a LPR, then P came in Aug 1968, they married
in May 1969. P’s wife petitioned for P to get status as the spouse of a LPR
under INA 203(a2), 204; P & his wife testified that they married for love.
(b) Issue: Whether Ct erred in focusing the sham marriage determination on the
couple’s separation rather than their intent to est. a life together? [Yes]
(i) Held: Ct Rev’d the IJ determination that the marriage was a sham b/c Ct
erred in focusing on separation length rather than intent at time of marriage
(c) Post-Bark: INA was amended to better prevent sham marriages
(i) INA 216 amendments provide that if an alien gets LPR status via
marriage, their LPR status is conditional (for 2 yr period) and at the end of
2 yrs you go thru a process to remove your conditional status, which
depends on whether the marriage still exists
1. Problems w/this 2 yr conditional status rule?
a. Ensure the marriage is legit (at least at the 2 yr point); but
b. Enforcement Problems- harder to test/enforce post-entry conduct;
more difficult b/c people have ways to get around the system
(4) Cox: you can view the Immig admissibility rules 2 way =
(a) 1) View the rules as direct definitions of our first order preferences and goals
(i.e. marriage needs to stay in tact for 2 yrs; reflecting that we’re trying to
select those w/successful marriages);
(i) Rules become reflections of our overarching rules re: admission
(b) 2) Rules are set as screening devices or proxies in contexts when its hard to
determine or efforts needed to prevent circumvention of the rule
(i) i.e. a rule is adopted to curb marriage fraud not to select those who are
successful at marriage
(ii) Have to ask what is the intent of the State (what is its ambition)? What are
the ultimate consequences?
c) Employment-Based Immigration:
i) Most employment-based visas are given to skilled workers (members of a profession);
ii) 1952 Act relaxed the strict worker restrictions and est. the 1st Labor Cert provision
iii) 1965= Congress reversed the Labor Cert process and the law now presupposes that
foreign workers aren’t needed [See INA 212(a5)]
(1) INA 212(a5Ai) = Labor Certification Process = employers seeking services of
immigrant workers entering thru employment-based categories must est. that NO
domestic workers are available and that their entry will NOT adversely affect
wages and work conditions for US workers;
iv) Labor Cert process required time consuming efforts by employer had to file Form
ETA 750 and comply w/a 30 day recruitment process through the SWA, etc.
(1) Note: This put employers in position to decide which potential labor migrants will
be best suited to enter; BUT this could lead to conflicts of interest b/c what’s best?
(a) Employers want to select labor that best suit their profit-maximizing goals,
BUT this doesn’t ensure the migrants are best suit for social/polity goals*
(2) Today, the process has been manipulated by Immig lawyers who tailor the job
description to meet a qualified category of workers and describe only their client
d) Reform Proposals:
i) See notes pp 39
4) Inadmissibility & Grounds of Deportability
a) INA § 237(a) = lists all the deportability grounds…
b) Crime-Related Deportability Grounds:
i) INA § 212(a)(2) =
ii) INA § 237(a)(2) =
iii) INA § 101(a)(43) =
c) Crime Related Deportability Grounds
i) Congress has put a growing emphasis on swift deportation of non-citizens who commit
crimes; to that end, Congress expanded the Def’n of aggravated felony several times;
ii) Note: Criminal offending in immigrant communities is much lower than general
offending rates in the US; 1st generation immigrants offend at lower rates and so do
2nd generation; but 3rd generation have matching offending rates to Americans
iii) Crimes of Moral Turpitude(1) INA 237(a)(2)(A)(i) = defines all who are inadmissible and provides that an alien
who is convicted of committing a crime of “moral turpitude” (or an attempt or
conspiracy to) w/in 5 yrs of entry is inadmissible and deportable
(a) BUT a “crime of moral turpitude” is hard to define
(2) Intent: even if intent to defraud is absent from the statutory Def’n, a crime may
still involve moral turpitude if such intent is implicit in the nature of the crime
(a) Goldeshtein v. INS (9th Cir. 1993)- Goldeshtein, an Isreali citizen, entered
the US in 1984, married a US citizen in 1985 and became a LPR. He pleaded
guilty in March ’89 to one count of conspiracy to violate Fed currency laws
and 2 counts of structuring fin transactions w/domestic fin institutions to avoid
currency reports; was sentenced to and served 40 month prison terms on each
count; then the INS instituted deportation proceedings v. NG, and in 1991 the
IJ held NG deportable.
(i) Issue- Whether structuring financial trans w/domestic fin institutions to
avoid currency reports, in violation of 31 USC Sec. 5324(a3) and 5322(b)
is a crime involving moral turpitude w/in the INA?
1. Held: Judgment Rev’d—b/c the Statutory Def’n of the crime does not
involve evil intent to defraud, it is NOT a crime of moral turpitude.
a. To involve moral turpitude, evil intent (i.e. intent to defraud) must
be an essential element of the Statutory Def’s of the crime*
b. Rather than look at P’s actual acts, the Ct takes a Categorical
approach and compares the ground of deportability w/the text of
the Statute P was convicted under
i. Conviction = Aggravated Felony = only if the conduct under
the criminal provision is a subset of the conduct covered by
the Aggravated Felony Def’n
(3) Cox: Under the Categorical approach a lot turns on the formality of the State’s
approach and how they define their criminal conduct in the Statute
(a) If a State has a broad, general drug Statute, then an immigrant that is deemed
deportable under it may not be deportable under another State’s statutory
Def’n of the same criminal conduct
(i) Leads to great deal of countervailing costs & benefits and dis-uniformity
(4) Cox: the 1914 prostitute deportation statute was the 1st deportation statute with
time limits; why have we since gotten rid of most “conditional” time limits?
(a) Possible that our conception of membership has changed (could be that we
used to see members as immediate/vested members and had an obligation not
to remove them, but today we don’t see even LPRs as vested members)
(b) Possible that we want to incentive immigrants to undertake the process of
naturalization and thus we won’t protect you (by setting time limits as to when
you are deportable) unless you do so
(5) Posner: Aggravated Fleeing from officer is a CMT (but he disregards Chevron).
(a) Wei Cong Mei v. Ashcroft (7th Cir. 2004)- Petitioner/Wei Cong Mei
petitioned for review of 2 orders by the BIA, one ordering his removal. In
1998, Mei (a LPR) was convicted of unlawful possession of a stolen vehicle—
3 yrs later he was convicted of aggravated fleeing from a police officer and
was sentenced to 1 yr in prison. Mei petitions for review b/c he claims the BIA
based his removal only on his aggravated fleeing charge, which he claims is
not a crime of moral turpitude. Petition for review of removal order is denied.
(i) Issue- Whether aggravated fleeing from an officer is a crime involving
moral turpitude? [Yes]
1. Held: Aggravated fleeing is a crime of moral turpitude; Posner
acknowledges that he should defer to the Board’s interpretation under
Chevron, but takes his own approach (unusual, contrary to Chevron!)
a. Posner states “it seems a person fleeing has deliberately engaged
in seriously wrongful behavior and seriously flouted (and
endangered) an officer” (Posner exercises his own judgment here!)
(ii) Mei case highlights fact that in many cases the Ct should defer to the BIA
under Chevron but fail to do so
iv) Aggravated Felony: Unless a State offense is punishable as a Fed felony, it does not
count as aggravated felony under the INA.
(1) Lopez v. Gonzales (US 2006)- In 1990, Lopez became a LPR, then in 1997 he
was arrested on State charges in SD and pleaded guilty to aiding & abetting
another person’s possession of cocaine and was sentenced to 5 yrs (but released
after 15 mos). After his release the INS began removal proceeding v. Lopez on 2
grounds: 1) his State conviction was a controlled substance violation and an
aggravated felony. Lopez contested the aggravated felony determination.
(a) Issue- Whether conduct made a felony under State law but a misdemeanor
under the Controlled Substances Act is a felony punishable under the Act?
(i) Held: Judgment Rev’d; a State offense constitutes a felony punishable
under the CSA ONLY if re: conduct punishable as felony under Fed Law.
1. Ct rationale = 1) the common meaning of “trafficking” is a type of
commercial dealing; 2) upholding the Govt’s claim would turn simple
possession into “trafficking”; 3) the INA Def’n of “illicit trafficking”
expressly refers to a felony punishable under CSA; 4) don’t want to
render alien removal law and illegal entry sentencing law dependent
on varying State criminal classifications
(ii) Dissent: J. Thomas thinks the majority is overly concerned w/State
variation and the need for uniformity.
5) Relief from Removal:
a) Forms of Relief =
i) 1) Restoration of LPR status;
ii) 2) Govt decision to end/ suspend proceedings;
(1) often times a non-citizen concedes deportability at the outset of the hearing and
then request forms of relief;
iii) 2 common elements of forms of relief =
(1) Statutory eligibility (must meet min reqmts); and
(2) Exercise of Governmental discretion (i.e. can still be denied even if meet reqmts)
(a) 1996- Congress tightened eligibility for relief & restricted judicial review
b) Cancellation of Removal under INA 240A
i) INA § 240A= est. cancellation of removal
(1) 240A(a) relief requires that the non-citizens have resided in the US for 7
continuous yrs after having been admitted under any status;
(2) 240A(b) relief requires an alien not lawfully admitted to est. continuous physical
presence in the US, no less than 10 yrs
(a) See Hypo (CB pp 600), notes pp 49
(b) Thus, a LPR has to remain for no less than 5 yrs [240A(a)] but non-lawfully
admitted aliens must remain no less than 10 yrs [240A(b)]
(c) Why have different forms of relief for different classes of non-citizens?
likely b/c of the notion that LPRs have stronger claim to challenge deportation
(3) 240A(b)(1B) restricts cancellation to those who have been of “good moral
character” for 10 yrs immediately after their date of app (no criminal offenses)
(a) INA 101(f) est. those people that are NOT of good moral character but doesn’t
define what good moral character is
(b) 240A(b) requires a non-citizen must est. that removal would result in
exceptional & extremely unusual hardship to the alien’s spouse, parent, or
child who is a US citizen or alien admitted for LPR (no such reqmt under (a))
(4) 240A(d) = Termination of continuous period & certain breaks in presence
(a) (d1) = continuous residence or physical presence in the US shall be deemed to
end …or when (B) the alien has committed an offense referred to in Sec.
212(a2) that renders the alien inadmissible to the US under 212(a2) or
removable from the US under Sec. 237(a2), whichever is earliest
(b) (d2) = an alien has failed to maintain continuous physical presence in the US if
the alien has departed from the US for any period in excess of 90 days or for
any periods in the aggregate exceeding 180 days;
c) Voluntary Departure (as a form of relief):
i) INA § 240B
ii) Serves as a benefit in the form of a plea bargain and saves Govt resources b/c the
arrested alien agrees to waive a full removal hearing and in return escapes the entry of
a formal removal order;
(1) VD can be can be advantageous b/c if deported, one is prohibited re-entry under a
10 yr bar (if deported due to an aggravated felony then you’re banned for life)
(a) VD allows aliens to avoid re-entry bars & other deportation punishment*
(2) 1996 Act made Voluntary departure terms less discretionary and more strict—INA
240B limits the departure period to no longer than 120 days total;
(3) VD requires 2 determinations = statutory eligibility & an exercise of discretion
d) Relief/Cancellation of Removal Process: Raises 3 questions =
(1) What are we trying to accomplish thru relief of removal?
(a) Statute hints that the relief provision is there to provide a potential member the
opp to prove their value as a member
(b) For those that aren’t already a LPR, they have to prove also that they would
face an usual hardship if deported
(2) Why should we treat people with diff legal statuses differently?
(3) Role of discretion?
(a) Relief requires proving eligibility & grant of discretion from Immig officer;
but there are NO legal standards for guiding that exercise of discretion
III. Immigration Procedure
1) Constitutional Constrains on Immigration Procedures:
a) INA 235(a) = Inspection = (1) an alien who hasn’t’ been admitted or arrives in the US
after having been interdicted shall be deemed for purposes of this Act an applicant to
admission; (2)…
b) INA 235(c) = Removal of aliens inadmissible on security related grounds = (1) if an
Immig officer or IJ suspects an arriving alien may be inadmissible under sub A, B, or C of
Sec. 212(a3) they shall order the alien removed subject to review under paragraph 2… (2)
Review of the Order-the Atty Gen shall review orders and if the AG concludes disclosure
of the info would be prejudicial to the public safety, then the AG may order the alien
removed w/out further inquiry or hearing by an IJ;
c) Due Process Framework:
i) Matthews v. Eldridge (1976)- Ct est. three factors to balance in DPC analysis=
(1) Interests at stake for the Indiv;
(2) Interest of the Govt in using the existing procedures;
(3) The gain to accurate decision-making that can be expected from added procedural
protections;
(a) See Modern applications of this test in: Plasencia; Morales; People’s
Mojahedin Org of Iran :
d) Deportation: Deportation procedures at least for lawfully admitted non-citizens, must
conform to the due process clause; under DPC, alien is entitled an opportunity to be heard
i) Yamataya v. Fisher (Japanese Immigrant Case) (1903)- P/Yamataya (Japanese
citizen) entered US in 1901 but 4 days later was deemed deportable by Immig
inspector she’d been excludable at the time of entry as a pauper, & likely to become a
public charge; P/claimed her removal was Unconstitutional b/c: the investigation was
inadequate b/c she didn’t know English and didn’t know it was re: her deportability,
she wasn’t assisted by Counsel & had no opp to prove she wasn’t deportable.
(1) Issue- Whether an alien who enters clandestinely can invoke DPC protections?
(a) Held: Judgment v. P b/c she was NOT denied due process of law
(i) No person can be deprived of liberty w/out an opp to be heard at some pt1. Ct finds that P wasn’t denied an opp to be heard b/c she had notice
(although not formal) of investigations
(ii) C.f. Fong, where the Ct rejected a procedural due process right for aliens
b/c Ct said the procedures that Congress establishes is due process*
(b) Constitutional Avoidance Cannon = Ct avoids reaching the merits of the
Constitutional claim by avoiding interpreting the statute to avoid conflicts w/it
(i) Can also view this cannon as a means for the Ct to avoid interpreting
statutes so to avoid reaching the Constitutional issue
(c) Key = Ct is ambiguous as to P’s Constitutional status; Ct suggests she’s
entitled to due process but upholds Constitutional avoidance at the same time
(i) NOT clear here what the sufficient procedures are under the DPC
e) Admission Procedures: Whatever the procedure authorized by Congress is, it is due
process (as re: an alien denied entry).
i) US ex rel. Knauff v. Shaughnessy (1950)- P (born in Germany) worked w/the War
Dept of the US in Germany; In 1948 she married Knauff, a naturalized US citizen
who’s a US Army Veteran; P sought entry into the US to be naturalized, but an Immig
Officer it was determined by the Immig Asst. Commissioner that she should be
excluded w/out a hearing on Nat’l Security Grounds (.
(1) Sec. 235(c) authorizes AG to exclude aliens on secret evidence w/out a hearing
(2) 1945 War Brides Act= est. preferential Immig status for WWII Vets’ spouses/kids
(3) Issue- Whether the Govt may exclude alien wife of US citizen/Vet w/out a
hearing, solely b/c AG decided admission would be prejudicial to US interests?
(a) Held: AG is authorized to order alien exclusion under the 1941 Act; no
inappropriate delegation of legislative power occurred b/c exclusion is a
Sovereign power,
(i) Congress may authorize the Exec branch to use the power to exclude
aliens for the best interests of the country during a Nat’l emergency*
1. An alien seeking admission cannot do so under any claim of right;
admission to the US is a privilege granted by the sovereign US Govt
2. Deference- it is not the w/in the province of the Ct to review the
decision of the political branch of the Govt to exclude a given alien
(b) Dissent (J. Jackson)= Congress has power to exclude BUT is not authorized
to make abrupt/brutal exclusions of a US citizen’s wife w/out a hearing
ii) Reconciling Yamataya and Knauff? Why treat Yamataya differently?
(1) Reasons for Govt action = could be a factor of the basis of their exclusions and in
which the Govt has as greater public interests (i.e. a potential public charge)
(2) Territory = Yamataya had entered and was in deport proceedings, thus entitled to
greater protection under DPC than Knauff who never was inspected
(a) Ct focuses on territory rationale; distinguishes the cases by the fact that
Yamataya was in deportation while Knauff involved an exclusion proceeding
(3) Means of Admission
(4) Ties
(a) Citizens rights = could argue Knauff should receive greater Constitutional
protection thru her husband’s rights as a citizen
iii) When is a non-citizen actually “entering” and subject to exclusion proceedings?
(1) INA 101(a)(13) = a returning permanent resident is not seeking admission unless
certain facts are present: a continuous absence in excess of 180 days or
commission of a crime that would make a non-citizen inadmissible…
iv) Procedural Due Process: What does it entail? Who does it apply to?
(1) The Ct distinguishes btwn Deportation v. Exclusion alien gets greater procedural
protections at deportation (See Yamataya) than at exclusion (See Knauff)
(a) BUT, Mezei complicates the rule
(2) A returning LPR who is not an “entering alien” is entitled to 5th Amend due
process and cannot be excluded w/out an opp to be heard.
(a) Kwong Hai Chew v. Colding (1953)- Kwong was admitted to US in 1945,
married an American, est. good moral character for 5 yrs (suspended his
deport) and became a LPR in 1949. He served as a US Marine and worked on
a merchant vessel that traveled abroad; upon return, an Immig inspector
ordered him temp excluded (as an alien whose entry was deemed prejudicial to
the public interest)—was denied entry, then the AG ordered him permanently
excluded w/out a hearing and was detained at Ellis Island.
(i) Issue- Whether P’s Detention w/out notice of any charge v. him and w/out
opportunity to be heard was valid and Constitutional?
1. Held: P cannot be excluded w/out due process, he wasn’t an
“entering alien” and the vessel voyage didn’t terminate his
constitutional status
a. Knauff not applicable b/c that case involved an alien entrant
2. Constitutional Avoidance: the Ct doesn’t strike down the Statutes as
Unconstitutional; rather the Ct avoids deciding if the non-citizen has
Constitutional rights
a. Ct suggests that the substantive protection of non-citizens is very
different than the procedural protections under DPC
(3) For aliens on the threshold of initial entry, “whatever procedure is proscribed by
Congress is due process for an alien who is denied entry.”
(a) Shaughnessy v. US ex rel. Mezei (1953)- P/Mezei was a LPR who entered
lawfully and resided in US for 25 yrs. He left w/out authorization and was then
excluded on Nat’l Security grounds, but was stranded at Ellis Island b/c other
countries wouldn’t receive him; AG ordered P excluded w/out a hearing under
“confidential info of which disclosure would be v. public interest.”
(i) Issue- Whether the AG order for continued exclusion w/out a hearing amts
to unlawful detention (whereby Ct would temp admit him)?
1. Held: P’s exclusion upheld b/c the AG order is final and the Ct cannot
reopen the AG’s final determination;
a. Congress determines P’s right to entry AND Ct cannot substitute
their judgment over a legislative mandate;
2. Dissent (J. Jackson)= P/LPR is indefinitely detained despite no proof
he’s a security threat, thus is deprived of liberty; distinguishes btwn:
a. Substantive Due process = great deference to Congress; DPC
doesn’t accord aliens a right to enter the US; thus detention of an
alien wouldn’t violate substantive due process; BUT
b. Procedural Due process = less flexible, less deference; substantive
laws must be applied w/fairness; due process is necessary here
(ii) Distinguishing Mezei v. Kwong:
1. Permission- both are long-term LPRs but:
a. Mezei = left w/out permission
b. Kwong = was given permission to leave aboard a US vessel
2. Inspectiona. Mezei = entered legally (but denied rights)
b. Kwong = entered w/out inspection (yet has stronger claim/rights)
c. Post-Mezei = created perverse incentive to enter w/out inspection
d. Traditional DPC = hinged on exclusion v. deportation
3. Border Controla. Mezei = Ct focuses on protecting US border (US does not have to
open its doors to immigrants excluded by other countries)
(4) If an alien enters, est. ties in the US, & becomes a LPR her constitutional status
changes and the continuously present LPR is entitled to due process at deportation.
(a) Landon v. Plasencia (1982)- Plasencia (El Salvador citizen) entered US as
permanent resident in 1970 (est. a family and home)—in 1975 she traveled to
Mexico and upon returning 2 days later she assisted Mexican Nationals’
illegal entry into the US; upon entry the INS officer found the nonresident
aliens in her car. She was ordered excluded under INA 212(a)(31) which
excludes aliens seeking admission who knowingly encouraged, assisted,
abetted, or aided any other alien to enter the US in violation of the law.
(i) P claims she should face deportation proceedings not exclusion b/c she
was a returning LPR and thus was denied due process.
(ii) P challenged the Govt procedures on 3 grounds = 1) IJ put burden of proof
on her; 2) inadequate notice only gave her 11 hrs notice of hearings; 3)
allowed her to waiver her right to Counsel w/out explaining what that is;
(iii) Issue- What procedural due process is a returning LPR entitled to?
1. Held: Case remanded to Ct App re: Due Process;
a. J. O’Connor- P was absent only few days, she had a lot at stake in
the US (exclusion separates her from her family)
i. Ct suggests her prior Constitutional Status is key here
ii. Cites Kwong and Fleuti to confirm that a returning LPR is
entitled under DPC to a hearing and an opp to be heard
iii. Cts role is limited to est. if procedures meet the essential std of
fairness under the DPC;
b. J. Marshall Concurs & Dissents = processes were insuffice b/c
of inadequate notice re: her charges & right counsel; denied her
fair opp to be heard
(iv) Cox on Plasencia: the Statute placed P in exclusion proceedings but under
INA 101(a13) one is seeking admission if engaged in illegal act after entry
1. BUT Ct finds that P’s illegal act didn’t break her Constitutional status
a. Ct is clearly shifting away from the territoriality theory and
focusing more on stakes and legal status***
2. Cox: It could be that original understanding was that non-citizens’
Constitutional status depended on their legal status
3. O’Connor est. Modern Procedural Due Process Test (Matthews) =
a. 1) Is there a Constitutionally Protected liberty or property interest?
b. 2) If yes conduct Matthews 3 part Balancing Test =
i. 1) Weigh the private indiv interests; 2) the Govt interests; 3)
the risk of error and how current or additional procedures can
reduce that risk
c. 3) Was the process afforded adequate?
(b) Post-Plasencia = nearly all returning LPRs are entitled to full due process
(even at admission); LPR loses protected status only after “extended absence”
(i) Plasencia est. Modern DPC Framework
1. Ct looks to all individuals interests; looks at Govt interests; and
balances those w/the concern for risk of error and the alternative that
additional procedures would reduce the risk of error***
v) Procedural Due Process Summary:
(1) Ct distinguishes btwn Deportation v. Exclusion
(a) Alien gets greater procedural protections at deportation (Yamataya- alien
entitled to due process/opp to be heard; Kwong- returning LPR not “alien
entrant,” gets due process)
(b) Less protection at exclusion (Knauff- Congress est. what due process is)
(i) BUT Mezei complicates the rule; Ct reemphasizes territoriality and
suggests its irrelevant that Mezei had been a LPR for 25 yrs!!
(2) Deportation v. Exclusion Distinction is not clear  but need to understand the
trilogy of cases which lay out that distinction = Kwong; Knauff; & Mezei
(a) Today there is a Circuit Split as to the role of Mezei in current Immig Law
Case
Type
Ground
Yamataya
Deportation
Knauff
Exclusion
Pauper/public
charge
Security
Chew
Returning LPR
(gone 4
months)
Returning LPR
(gone 19
months)
Returning LPR
(gone 2 days)
Mezei
Plasencia
Proc Due
Process? (PDP)
Yes
Interests/ties
No
Am citizen
husband
4-5 ys; house,
coast guard…
Security
Yes
Security
No
Alien
smuggling
Yes
4 days
25 ys
2) Removal Mechanisms & Procedures:
a) INA 235b= Inspection of applicants for admission = 1) Inspection of aliens arriving in
the US and aliens who haven’t been admitted or paroled- if an Immig officer est. that an
alien who is arriving in the US …is inadmissible under sec. 212a(6C) or 212a(7) the
officer shall order the alien removed from the US w/out further hearing or review unless
the alien indicates either an intention to apply for asylum under Sec. 208 or fear of
persecution; ii) Claims for asylum- ; iii) Removal w/out further review if no credible
fear of persecution- ;…
b) INA 238 = Expedited Removal of Aliens convicted of committing aggravated felonies
= a) Removal of criminal aliens- ; b) Removal of aliens who aren’t permanent residents- a
non-permanent resident alien who is ordered removed will eb issued a removal order
pursuant to INA 240
c) INA 240= Removal proceedings = a) Proceeding- ; b) Conduct of proceeding; c)
i) Est. the std removal proceedings, but today have expanded use of special (summary)
removal proceedings
d) INA 241(a5) = Detention & Removal of Aliens ordered Removed = (5) Reinstatement
of Removal orders v. Aliens illegally re-entering = if the AG finds the alien has reentered
the US illegally after having been removed or having departed voluntarily, under an order
of removal, the prior order of removal is reinstated from its original date and is not subject
to being reopened or reviewed, the alien is not eligible and may not apply for any relief
under this Act, and the alien shall be removed under the prior order at any time.
e) Expedited Removal & Other Modern forms of Removal
i) INA 240 governs general removal mechanisms re: one’s admissibility
ii) 1996 IIRIRA altered removal proceedings to streamline it thru Expedited Removal
(1) INA 235(b) = Expedited Removal = allows for removal w/out a hearing before an
IJ; ER originally applied to those at ports of entry; NOW applies to those w/in 100
miles of border who entered in past 14 days (inland and in coastal waters)
(2) ER makes an alien inadmissible for 5 yrs subject to waiver; BUT Immig officers
have discretion to allow aliens to w/draw their apps for admission
(3) If an arriving alien indicates intent to apply for asylum he is detained and referred
to an asylum officer who determines if he has a credible fear of persecution
(a) Constitutionality of ERthere is no clear std or guidelines for ER
determinations; leads to profiling, too much discretion, & due process issues
iii) INA 241(a5) = Reinstatement of Removal Order = a prior removal order will be
enforced w/out a new opp for a hearing on the removal order
(a) Today Voluntary departure is used less even though its less costly (b/c under
deportation the US Govt pays to fly people back to their exiting country)
iv) Initial alien entrants have no due process rights, Organizational P’s lack standing.
(1) AILA v. Reno (DC Cir. 2000)- P’s include several Org P’s advocating for noncitizens and 2 indiv plaintiffs; Indiv P/Perez, a 70 yr old Dominican citizen was
summarily removed from US in 1997; Perez and his wife were denied admission.
Indiv P’s claim INS failed to follow its own regs and that ER shouldn’t be applied
to arriving aliens w/facially valid visas.
(a) Held: Ct rejected indiv P’s DPC and EPC claims (under 5th Amend) AND the
Org P’s 1st Amend claim (Ct held the Org P’s lacked standing).
(i) Initial entrants have no due process rights at admission, thus cannot avail
themselves of 5th Amend protections to seek certain admission procedures
(2) Reconciling AILA with Yamataya IS there a Distinction?!?!
(a) Stake = Yamataya was in the US for 4 days but AILA P’s had family in US
(b) Legality = Yamataya entered thru inspection; AILA could’ve lied to get visas
(c) Legal Status = Yamataya denied b/c she was a pauper; AILA b/c of fake visas
v) Key distinctions btwn Modern Removal (ER) v. General removal (INA 240)
(1) INA 235b = Modern Expedited removal procedures = more limited; NO Immig
Judge involved; low-level Immig officers make the admission determinations
(2) INA 240 = Govt issues Notice to Appear v. the alien, alien has a hearing before the
IJ w/an opp to counsel, to produce evidence alien can challenge the IJ decision
for review under the BIA then still can seek review from Fed Ct
(a) Under old system, inadmissible aliens received lots of procedural protections
at the Secondary Inspection level but IIRIRA changed all that in 1996*
f) Reinstatement:
i) If the AG finds an alien entered illegally after being removed prior removal order
gets Reinstated w/out a hearing and cannot be reopened or reviewed
ii) INA 241(a5) provides for reinstatement of removal orders v. non-citizens who illegally
reenter the US after having been removed or having departed voluntarily under a
removal order—this is a useful enforcement mechanism b/c the prior/original order is
NOT subject to being reopened or reviewed and alien is ineligible for discretionary
relief under INA;
(1) No review by an IJ unless the alien expresses fear of persecution asylum issue
(2) Cts generally reject DPC challenges to reinstatement of prior removal orders
(a) Rationale is that the alien can be denied a 2nd hearing IF already had a full/fair
hearing (precluding a “2nd bite at the apple” doesn’t offend due process)
iii) AG issued Fed Reg vesting authority in Immig Officers to order Reinstatement w/out a
hearing under INA 241(a5); BUT INA 240(a) provides an IJ shall conduct all
inadmissibility & deport hearings for aliens—thus the Reg is clearly ultra vires § 240a
(1) Morales-Izquierdo v. Ashcroft (9th Cir. 2004)- P/Mexican citizen illegally
entered US in 1990, was arrested 4 yrs later BUT didn’t attend his hearing; he was
removed under ER, then he & his wife were apprehended upon reentry in US (after
his original illegal entry); Morales was subject to a reinstatement order on his prior
removal order which is not subject to review or reopen under INA 241(a5).
(a) Issue- Whether AG is authorized under INA 241(a5) to issue Reg allowing
Immig officer to make Reinstatement determination despite the fact that an IJ
is to conduct all hearings (INA 240a)?
(i) Held: Petition for Review granted b/c the INA clearly provides that all
such proceedings are to be conducted by an IJ
1. Dispute re: INA 240 v. 241(a5) [which describes a more summary
removal BUT does NOT define proper procedures]
2. Ct rejects Govt claim that Reinstatement is a diff type of admissibility
determination thus permitted a diff procedure by regulation
a. Ct reads this Statutory Case as a Constitutional Case [c.f. Kwong]
i. ? for Cox- how or why is this significant? Is it common?
(ii) Chevron Deference Ct concludes that whether the alien’s prior deport
order should be reinstated is an admissibility determination...
1. Thus the plain language of the statute seems to settle the question and
to the extent that INA 241(a5) removes the IJ’s express authority, the
reg is ultra vires to INA 240(a)
2. Cox: this contradicts w/ZavydasCt which didn’t say they would auto
defer to the agency, rather they 1st assessed for Constitutional Conflict
(b) Recent Morales-Izquierdo v. Ashcroft En Banc Holding = J. Kazinski does
NOT suggest P has NO due process rightsbut Ct finds no DPC violation
under the Matthews v. Eldridge balancing test b/c there was “plenty of process
and no risk of error”
3) Detention
a) Multiple purposesi) Used to ensure alien will appear for removal hearings and leave the US upon removal
orders; results in clear restraint on personal liberty
ii) Detention Facilities(1) INS has est. uniform stds, BUT no formal enforcement mechanisms for those stds
iii) Juvenile Detention(1) 1998- INS proposed a rule that codified the Flores settlement; provided the INS
had to detain juveniles in the least restrictive manner re: the juvenile’s age & circs
iv) Arriving Aliens(1) INA 235(b2) provides that arriving aliens not in ER shall be detained but may
be released on parole if: has serious medical condition; pregnant women, certain
juveniles, witnesses in Govt proceedings in the US, and aliens whose detention is
not in the public interest;
(a) Different rules apply to non-arriving aliens (INA 236a)
v) Mandatory Detention(1) Under INA 236(c) aliens must be detained and may not be released of the
following criminal grounds: multiple crimes of moral turpitude, aggravated
felonies, controlled substance offense, firearms offenses
vi) Rules after removal order is issued(1) Diff rules govern after the removal order is final;
(2) INA 241 provides that removal must take place w/in 90 days of the final order
(AG cannot release inadmissible aliens under criminal and Nat’l security grounds)
(a) AG allowed to detain alien during the 90 day removal period; BUT
(i) 241(a6) allows AG to detain past that 90 day period if alien is a risk to the
community or likely to not comply w/removal orders
b) INA 236 = Apprehension & Detention of Aliens = a) Arrest, detention, & release- on a
warrant issued by an Attorney General, an alien may be arrested and detained pending a
decision on whether the alien is to be removed from the US, the AG may continue to
detain the alien, may release the alien on bond or conditional parole, but may not provide
the alien w/work authorization unless the alien is lawfully admitted for permanent
residence
i) b) AG may revoke a bond or parole authorized under sub (a) or rearrest or detain the
alien; c) Detention of Criminal aliens- the AG shall take into custody any alien who
is inadmissible for committing an offense under 212(a2) or is deportable for
committing an offense under 237a(2A)…; Release- the AG may release an alien only if
the AG decides release is necessary to provide protection to a witness…; d)
Identification of Criminal aliens- the AG shall devise a system to guide authorities on
how to determine if the arrested indiv is an alien; e) Judicial review- the Attorney
General’s discretionary judgment re: this section shall not be subject to judicial review
ii) INA 236 Summary = the AG is authorized to detain an alien and has control of his
bond & release; and no judicial review of AG discretion
c) INA 241(a) = a) Detention, release & removal of aliens ordered removed- (1)
Removal- when an alien is ordered removed, the AG shall remove the alien from the US
w/in 90 days; removal period begins on the latest of the following: date the order is final,
the date of the Cts final order if the order was judicially reviewed and subject to a stay,
date the alien is released from detention; (2) Detention- the AG shall detain the alien
during the removal period and shall not release the alien if found inadmissible under
212(a2); (3) if the alien isn’t removed w/in the 90 day period, he is subject to supervision
under regs prescribed by the AG…; (4) the AG may not order removed an alien who is
imprisoned until the alien is released from imprisonment; …(241a5) Reinstatement of
Removal orders- if the AG finds the alien has reentered the US illegally after having been
removed, the prior removal order is reinstated form its original date and is NOT subject to
being reopened or reviewed…; (241a6) Inadmissible or criminal aliens- an alien ordered
removed whose inadmissible under Sec. 212, removable under 237 (a1C, a2, a4), or whose
been deemd a risk to the community or unlikely to comply w/the removal order, may be
detained beyond the removal period and if released is subject to supervision terms in sub 3.
i) INA 241a Summary = est. a 90 day removal period; AG can detain the alien during
removal period; AG can Reinstate a prior removal order post illegal re-entry
(1) 241a5- See Morales; 241a6- See Zadvydas
d) Indefinite Detention?
i) INA 241(a6) instructs the AG to deport those deemed deportable under Sec. 212 in 90
days, but the alien may be detained beyond that if found to be a risk to the community
or unlikely to comply w/the removal order
(1) Issue arises as to does “may be detained” authorize indefinite detention?
ii) Indefinite detention of aliens raises serious constitutional concerns; Ct construes INA
241a to contain an implicit “reasonable time” limitation
(1) Zadvydas v. Davis (2001)- 2 Detentions= P/Zaddvydas (German citizen) was
LPR, lived in the US since age 8; has a long criminal history and was taken into
INS custody in 1994 and ordered deported to Germany, but Germany wouldn’t
accept him. He remained in custody after his removal period expired so he filed
habeas petition re: his continued detention Petition granted by Fed Dist Ct, P
released in 1997; P/Ma (Cambodian) was a LPR who served 2 yrs for gang
crime—ordered removed for his aggravated felony, but remained detained post
removal period, so filed habeas petition in 1999.
(2) Issue- Whether the post-removal period statute authorizes the AG to detain a
removable alien indefinitely beyond the removal period? (re: once admitted aliens)
(a) Held: Judgments Vacated  Freedom from Govt custody/detention is at the
core of the liberty protected by the 5th Amend DPC (J. Breyer)
(i) NO “sufficiently strong justification here for indefinite civil detention
(ii) NO Statutory history supports AG authorization to indefinitely detain
(iii) Govt cites Mezei to support assertion that alien status justifies detention
1. Ct distinguishes Mezei b/c Mezei was again an alien entrant (b/c of
extended departure); but an admitted alien is entitled due process
regardless if their presence is lawful or not
a. Thus Ct uses territoriality to distinguish Mezei; Why?
i. Could be these P’s have stronger procedural claims as LPRs
ii. See Fong & Landon= alien given greater due process b/c LPR
(b) Scalia Dissent=
(c) Kennedy Dissent (Part I)=
(d) Ct Concludes= Non-citizen detention during removal period ok (+ 3 month)
BUT thereafter detention has to reasonably relate to the removal and removal
must be reasonably foreseeable, otherwise they must be released***
(i) BUT gives incentives to delay proceedings so to get released; Kennedy
was concerned w/”Strategic behavior” by Foreign Govts & alien entrants
(e) Note: Zadvydas est. a presumption that detention is reasonable for 6 months
after final removal order;
(f) Reconciling Zadvydas v. Mezei
(i) Entry Fiction = Zadvydas was really here; Mezei was “entering” after 19
month absence
(ii) Territory = Z was w/in the US; Mezei was considered “alien entrant”
(iii) Protectable Liberty Interest? =
(iv) National Security = Zadvydas not a Nat’l Security concern; but Mezei was
e) Detention Pending Removal: INA 236c requires detention for certain aliens in removal
proceedings (includes LPRs) w/no indiv bond hearing—is this Constitutional?
i) Congress may require aliens be detained for the brief period necessary for removal
proceedings; Congress can est. rules for aliens that are unaccepted if applied to citizens
(1) Demore v. Kim (2003)- Respondent was a citizen of South Korea but became a
LPR in the US in 1986; was convicted in 1996 (burglary) and 1997 (petty theft)
and was charged deportable by the INS and detained pending his removal hearing.
(a) Issue- Whether INA 236c is Constitutional when used to detain a LPR during
removal proceedings?
(i) Held: Rev’d b/c detention during deportation proceedings is a
constitutionally valid aspect of the deportation process;
1. DPC does NOT require the Govt to employ the least burdensome
means to accomplish its goal;
(ii) CJ Rehnquist found Congress had sufficient evidence that key reason
INA failed to remove deportable aliens was their failure to detain them;
1. Detention justified by concern that a large # of criminal aliens will
continue to do criminal acts and not appear for removal hearings
(iii) J. Souter Concur in part, Dissent in Part = lengthy mandatory detention
not justified here (i.e. No Nat’l Emergency or security risk)
1. Souter DPC/Detention Test = the 5th Amend permits detention only
where heightened substantive due process finds a sufficiently
compelling Govt need/interest; and the class of persons affected must
be narrow and the duration of detention must be no longer than
what is reasonably necessary for the merits to be resolved; and an
individual determination must be made prior to detention;
(2) Reconciling Zadvydas and Kim
(a) Kim Ct focuses on the statistics suggesting most removable aliens don’t show
up for their hearings and cannot be removed
(b) Zavydas & Kim leave us w/the issue re: whether one gets an individualized
proceeding or categorical determination re: if they fall into a 236c detainable
group?
(i) Cox: this is a false dichotomy b/c Judge is going to have to rely on some
sort of proxies; the distinction hinges on kinds of info & detail available
(3) Why does the Ct suggest Kim has less of a DPC claim than Zavydas?
(i) Length of Detention = Kim’s detention was shorter
(ii) Proceeding = Zadvydas was in post-removal proceedings and Kim was in
Removal proceeding
a. Thus Z’s claim stronger b/c no final removal determination est. yet
(iii) Liberty Interest/Stake =
(iv) Categorical v. Indiv determination= Kim Ct approach appears categorical?
(v) Whether detention is Immigration related? (Kim- yes; Z- not clear)
(4) Categorical Approach v. Individualized Determination
(a) Categorical = individuals engaging in same conduct may be subject to diff
Immig results depending on how their State defines/criminalizes their conduct
(b) Individualized = individuals engaging in same conduct across states will face
the same Immig implications
f) Guest Speaker: Ahilan Arulanantham (9th Cir. Immig Attorney)
i) Number of non-citizens detained has increased exponentially in recent years b/c of
expansion of provision 236(C) (expanded categories fo those who can be detained) and
Govt began seeking out asylum seekers and detaining them during asylum proceedings
ii) Why so many detainees?
(1) Lengthy appeal process= median time to appeal from BIA to Ct App is 9 months
(2) BIA Streamlining
(a) Series of one-line opinions caused the reversal rate to increase greatly and
thereafter when cases were appealed to Ct App the case would be remanded
back to the BIA and this perpetuated a circular and lengthy cycle, causing all
detainees to be detained for that much longer b/c of increased cycles
iii) Entry to Removal Timeline =
(1) EntryIJ (Kim)  BIA (AG)  Ct of Appeals  Zadvydas Detainees
(a) Nadarajah Case (9th Cir. 2006)
(i) Issue = whether the Govt can detain Nadarajah indefinitely despite 2
favorable grants of asylum?
(ii) Held = Detention statutes don’t authorize the AG to issue indefinite
detention of non-citizens;
1. Cites Zavydas = Ct reads a “reasonableness” limit into the statutes (6months); allowed detention only when removal remained foreseeable
2. Judgment Rev’d and Ct granted his immediate release motion
(b) Diof Case (CA Dist Ct 2007)
(i) Issue: P cited the Tijani case where immigrant was detained for 10
months, convicted of a financial crime and lost before IJ and BIA b/c he
committed an aggravated felony, then appealed to Ct App (took 30
months, and he was detained under 236c w/no hearing b/c of aggravated
felony charge) Govt relied on Kim to claim that the detention was lawful
w/out an hearing BUT Ct held that Kim Ct assumed the detention
would be short while here Petitioner has been detained for 30 months
(ii) Held: Ct reads 236c to apply only to short detentions; Ordered his
release and a hearing before an IJ to determine if he poses a security threat
g) Detention Summary:
i) 3 Potential stages where one can be detained =
(1) Before Proceedings/on arrival
(a) INA 235 = 235(b2) authorizes mandatory detention for those at arrival (not
under ER) while est. admissibility; 235(b1) governs ER
(2) During Proceedings
(a) INA 236 = 326a discretionary detention for most, but 236(c) est. mandatory
detention for criminal aliens, aliens removable on terrorist grounds;
(b) Kim case = can detain a LPR during removal proceedings (236c constitutional)
(i) C.f. Diof- Ct read Kim & 236c as applying to short detentions only
(3) After Proceedings
(a) INA 241 = requires removal w/in 90 days and detention allowed during that
period; 241(a6) allows detention past 90 days if risk to community,
(b) Zavydas = indefinite detention not permissible, 241a has reasonable time limit;
ii) Foundational question remains re: why the Govt chooses to detain these non-citizens,
especially since it’s extremely costly?
(a) May assume some are detained b/c of the “risk of flight”; but alternative
mechanisms exist and once they are released the Govt often doesn’t place any
restrictions on them or est. a system to monitor and track them post-release
4) Judicial Review:
a) Pre-REAL ID Act:
i) Traditionally almost all review was thru habeas corpus petitions
ii) Since 1961, Statutory provisions have been est. specifically for review of Immigration
proceedings which provided for access to review in Federal Cts
(1) Fed statutes have long held that orders of the Exec branch in deportation and
exclusion cases are “final orders”
iii) 1996 IIRIRA Changes =
(1) Consolidated proceedings and we now have one removal process
(a) IJ  BIA  (INA 242)  (Petition for Review)  Ct App
iv) New INA 242 (post 1996) = eliminates separate systems of review for exclusion and
deportation; est. single scheme for removal orders (Hobbs Act- review in Fed Dist Cts)
(1) Under 242b review in the Ct App is achieved by filing petition for review in Ct of
Appeals Circuit which the removal proceedings were completed (also sets out rules
for service and a 30 day filing deadline)
(2) Under 242(b3) removal orders NO longer auto stayed; alien must apply for
discretionary stay
(3) Goal of jurisd-stripping provision is to “achieve a change in the substantive law by
a procedural device”
b) INA 242 = Judicial Review of orders of Removal = 242a1) Judicial review of final
orders of removal is governed only by Chp. 158 of title 28; a2) Matters not subject to
review: A) notwithstanding any other provision of law…no Ct shall have jurisd to review:
except as provided in sub e…; B) Denials of discretionary relief- notwithstanding any other
provision of law…no Ct shall have jurisdiction to review: (ii) any decision or action of the
Attorney General of Secretary of DHS the authority for which is specified under this title
to be in the discretion of the AG or Secretary (other than granting relief under Sec. 208a…
(242a2C) Orders v. Criminal aliens- …no Ct has jurisd to review any final removal
order v. an alien who is removable by reason of having committed an offense in sec.
212(a2) or 237(a2Aiii)(B-D) or any offense covered by 237(a2Aii) for which predicate
offenses are covered by sec. 237(a2Ai)
ii) (242b) Requirements for Review of orders of removal- petition for review must be
filed no later than 30 days after date of final order of removal; must be filed w/Ct of
App for the Circuit in which the IJ completed the proceedings; alien must then serve
and file a brief w/in 40 days from when the admin record is available;
(1) INA 242 Summary = No judicial review of authorized AG discretion or final
removal orders of Criminal aliens (under 212, 237)
c) Habeas Review: AEDPA & IIRIRA do NOT strip all habeas review
i) INS v. St Cyr (US 2001)- Cyr/LPR was admitted in 1986; then convicted of a drug
offense in 1996 and deemed deportable but was entitled to a waiver of deport at the
AG’s discretion PRIOR to enactment of AEDPA & IIRIRA; BUT after their enactment
the AG no longer has such discretion. IJ and BIA disagreed w/P’s claim that IIRIRA
shouldn’t apply retroactively (to strip discretionary relief for those convicted of
controlled substance offenses)—P filed habeas
(1) Issue- Does the Dist Ct retain habeas jurisd (under 28 USC 2241) to entertain St.
Cyr’s challenge? Or does (new) § 242(a2C) apply retroactively and strip habeas?
(a) Held: Ct finds that construing the amendments at issue as if they entirely
precluded review would present problems w/the Suspension clause (Art. I,
Sec. 9, cl. 2 = “the privilege of habeas writ shall not be suspended unless…”)
(i) Thus SOME judicial intervention in the deportation cases is clearly
required by the Constitution
(ii) Constitutional Avoidance Ct avoids constitutional issue; held that if
Congress is going to strip habeas it has to do so explicitly***
(iii) Habeas Cts have generally answered questions of law arising in the
context of discretionary relief*
(b) Ct rejected the INS claim that AEDPA § 401e est. an express bar to habeas
petitions b/c while the title suggests that, the actual language does not support
it (401e doesn’t mention § 2241 at all)
(c) And rejected INS claim that 3 IIRIRA provisions bar habeas review b/c those
provisions refer to Judicial review & the Ct has long distinguished habeas
review from judicial review (scope of habeas inquiry is much narrower)
1. Cox: but in 242 habeas & judicial review treated as meaning the same
(d) And rejected INS claim under § 242(b9) b/c it doesn’t apply to habeas
(e) Scalia Dissent = IIRIRA expressly repeals application of §2241 (habeas
statute) by stating “no Ct shall have jurisdiction to review”; and
(i) AEDPA § 401(e) is titled “Elimination of Custody Review by Habeas”
(ii) AEDPA also eliminated the specific habeas granting provision, the
“zipper clause” =
1. 242(b9) = provides that judicial review of all questions of law and
fact…shall be available only in judicial review of a final order…
(iii) Scalia = 242(a2C), AEDPA 401(e), and 242(b9) are clear statutory
evidence that Congress intended to remove habeas review as well
ii) Cox: Why does the St Cyr Ct “butcher” the Statute (draw a line btwn habeas and
judicial review)? What Constitutional concerns exist?
(1) Equal Protection Concerns = one deemed deportable b/c of a criminal offense
under 242 is treated diff (denied review) than one is deportable on diff grounds
(2) Suspension clause = the habeas writ shall not be suspended (Art I, sec. 9)
i)
(3) Due Process Clause = concern that in some cases the non-citizen is entitled to a
hearing before an Art III Ct
(4) Art III = may be implicated b/c Congress has wrongfully taken away the Cts power
to hear these cases;
(a) Cox: note the relation of those concerns— Art III is structural; DPC is
procedural re: indiv rights; Suspension clause is hybrid (structural but
concerned w/indiv’s rights)
(5) St Cyr NOT good law, BUT still key b/c shows the Supreme Ct is reluctant to
allow Congress to prohibit all Fed Cts from deportation proceedings challenges
(6) Note: the Ct makes no mention of the Plenary Power!
iii) Congressional Response to St Cyr 
(1) Amends the Statute to reverse St Cyr holding (which allowed habeas review); now
one can only get review of final removal orders thru INA 242 procedures
(a) REAL ID Act adds new provision which opens some avenues of judicial
review via petition;
(i) Under REAL ID St Cyr would have access to Fed Ct, but only to challenge
the legal question re: was his denial appropriate given retroactive app
d) Post-REAL ID Act:
i) REAL ID Act of 2005 = the Act significantly reworked the Cts system of review of
Immig decisions and created the current INA 242 provisions;
(1) New INA 242(a2D) provides for Judicial Review (only) of Constitutional claims
OR questions of law raised upon petition;
ii) REAL ID strips Dist Ct jurisd and Final order challenge has to go thru Ct App BUT
that doesn’t mean no habeas
(1) Habeas petition is allowed if P isn’t challenging their final order—the habeas cases
we saw were challenging their detention
(2) INA 242(a2d) = provides that nothing in the Act shall be construed to as
precluding review of constitutional claims or questions of law raised upon a
petition for review filed w/the appropriate Ct of Appeals
(a) BUT it’s difficult to determine if an issue is a question of law v. fact?!?!?!
(b) In response to REAL ID we should expect to see a lot more procedural DPC
claims where aliens challenge the procedural aspects of their proceedings and
rather than bring claim re: error on the facts
(3) Papageorgiou & Enwonwu address the expansion of review available via petitions
for review in Cts of App & concerns re: the provisions that curtail habeas jurisd
iii) Judicial review of questions of law and Constitutional issues is permitted under INA
242(a2D) of the REAL ID Act.
(1) Papageorgiou v. Gonzales (3d Cir. 2005)- P entered the US in 1978 and became
a LPR, then was convicted of aggravated felony and drug offenses in 1998 and was
deemed removable under INA 237(a2Aiii) and (BI). PP- P sought relief under Art.
III of CAT but the IJ held v. P—BIA Summarily Aff’d—Petitioner sought
review—Govt claims the Ct lacks jurisd b/c INA 242(a2C) divests Cts App of
jurisd to review removal orders of aliens ordered removed on the basis of criminal
offenses.
(a) Issues = 1) Whether the Ct has jurisdiction under the REAL ID Act to hear P’s
petition for review? [Yes]; 2) Whether the Act is to apply retroactively and
applies to Petitioner’s petition which was filed prior to its enactment?; 3)
Whether P was denied due process when the BIA summarily Aff’d IJ? [No]
(i) Held: Ct concluded it has jurisd b/c under the INA 242(a2D) of REAL ID
1. INA 242(a2D) = nothing in the Act shall be construed to as precluding
review of constitutional claims or questions of law raised upon a
petition for review filed w/the appropriate Ct of Appeals
2. Congress intended for the Act to apply retroactively, so it applies here
3. P’s petition denied on merits—Petition for review of the BIA
Summary affirmance of the IJ’s removal order denied b/c such DPC
challenges to summary BIA affirmances are est. as lacking merit
iv) REAL ID Act prohibits judicial review in Fed Dist Cts (including pending cases).
(1) Enwonwu v. Chertoff (Mass. Dist Ct 2005)- Enwonwu filed a habeas petition
challenging the BIA order which Rev’d a grant of deferral of removal under the
CAT and denied P’s motion to reopen.
(a) Held: Dist Ct was forced to transfer Petitioner’s case to the Ct App
(i) Ct had begun a detailed analysis of the case’s evidentiary record BUT on
May 11, 2005 Congress stripped the Dist Ct of jurisd to act in this pending
case thru REAL ID
(ii) Dist Ct addresses the many problems w/Sec. 106 of REAL ID Act and
how the jurisd-stripping provision actually acts as a “rights-stripping”
provision and is costly for the Govt
(2) Cox: the Petition process est. under REAL ID makes it harder than the prior
process under habeas review
(a) Problems/Concerns arising under REAL ID?
(i) Std of review is diff
(ii) Not clear that REAL ID solves prior review problems or if it creates more
[See Enwonwu case]
IV. Non-citizens and National Security
1) National Security: Constitutional Foundations
a) Constitutional Constraints
i) It is not the Cts role to qualify Congress’s determinations re: deportability; Congress
has est. that one can be deported for prior membership in the Communist Party.
(1) Harisiades v. Shaughnessy (1952)- P/Harisiades came to US in 1916 and has a
family; he joined the Communist party BUT his membership ended in 1939;
thereafter the Govt ordered P deportable b/c of his prior membership w/an org that
advocates violent overthrow of Govt. P/aliens claim they shouldn’t be deported
b/c: as LPRs they have a vested right to remain in the US; the judiciary must est.
that deport is reasonable; & the 1940 Alien Registration Act bears no reasonable
relation to the protection of a legitimate Govt interest.
(2) Issue- Whether the US constitutionally may deport a LPR for prior membership in
the Communist party which ended before the Alien Registration Act, 1940?
(a) Held: For the Govt; the Act isn’t invalid under the DPC or 1st Amend, thus
the Aliens are not entitled to judicial relief [J. Jackson]
(i) DPC claim It is NOT the Cts role to qualify the Govt’s power to deport
(that should be left for Govt branches w/control of Int’l Relations and
treaty-making powers
a. Majority resorts to Congress’s Plenary Power in Immig; and
b. Aliens chose their own fate by not Naturalizing (& had the opp to)
(ii) 1st Amend Claim No 1st Amend violation b/c free speech includes
freedom to promote Communism thru valid elections NOT thru violence
(b) J. Douglas Dissent = a LPR is a “person” entitled to protection under 1st (free
speech), 5th, 6th (fair trials), & 14th Amendments; the power to deport is an
implied power that shouldn’t be given priority over an express right to life,
liberty, and property;
(i) Asserts a “stake theory” = a LPR est. stakes in this country and they
shouldn’t be removed unless necessary to protect a Nat’l interest
ii) Cox: Harisiades doesn’t stand for Modern 1st Amend Interpretation (b/c the Ct
cited Dennis, which has been displaced by Bradenburg)
(1) Post-Bradenburg the Govt must show that they intended more than just that one’s
speech was likely to promote violent activity—there has to be an imminent
connection that their speech will lead to violence;
(a) Harisiades Ct cited Dennis v. US (holding that 1st Amend doesn’t protect
speech if re: a present danger which Congress has the right to protect)
(b) But later Courts have dismissed Dennis and uphold Bradenburg v. Ohio
(1969) Ct struck down the 1940 Act; was less deferential to Congress
(2) Harisiades has 2 Modern interpretations =
(a) 1) Govt cites it to assert that non-citizens lack 1st Amend rights and can be
deported for constitutionally protected speech (i.e. a strong reading of AADC
v. Reno, Fiallo, Bujagewitz = no constitutional restraints on deportation);
(b) 2) ACLU & Other orgs cite it to assert that non-citizens cannot be removed or
deported on a suspect basis that would violate Constitutional protections
b) 1st Amend & Citizen Standing:
i) INA 212(a28) = …renders an alien excludable for advocating or teaching opposition to
all organized Govt and excludes all members of any branch of the Communist party;
ii) Issue arises re: whether a US citizen can claim a Constitutional violation based on the
exclusion of a non-citizen?
iii) Congress has exclusive Plenary Power in Immig Law to est. alien exclusion &
admissibility rules; Congress can delegate discretionary authority to AG/Executive (the
waiver procedure) and Cts won’t interfere if Exec shows a legitimate/bona fide reason.
(1) Kleindienst v. Mandel (1972)- Mandel, a Belgian author and Marxist, was deemd
excludable under INA 212(a28) b/c of his work/activities; he failed twice to get a
visa, then applied in 1969 for a nonimmigrant visa to attend conferences in the US;
he was deemed excludable and not granted a waiver by the AG. P/Mandel and the
US citizens who invited him filed suit v. Govt based on 1st Amend violations.
(2) Key Facts = P was NOT a resident alien; dispute is re: exclusion at the border*
(a) Held: Ct rejects P’s (Mandel + citizens) Constitutional challenges
(i) Mandel had NO Constitutional right of entry as a non-resident alien*
(ii) No 1st Amend violations
1. All that was restricted was P’s action of coming into the US; he has
other means to communicate w/the US citizens (books, articles, etc.);
(b) J. Marshall Dissent= merely “legitimate Govt interests” cannot override
constitutional rights held by P/citizens; Ct gave too much deference to the
Executive/AG, advocates a higher std of scrutiny & less deference
(i) Govt can exclude aliens if necessary to protect a compelling Govt interest
(3) Cox: Dispute here is the same as in Fiallo (where J. Marshall also Dissented)
(a) Problem arises when Govt asserts an exclusion ground that directly conflicts
w/an est. Constitutional protection (i.e. free speech);
(i) Can read this case as an affirmance of Ping & extension of Fiallo  Ct
cannot restrict Congress’s ability to deem who is excludable
(ii) BUT does the Ct suggest any constraints on Congress?
1. Maybe when rights of citizens are at stake; or
2. IF Govt cannot provide facially legitimate Govt interest/justification
c) 4th Amendment:
i)
Purpose of the 4th Amend is to protect US citizens v. arbitrary Govt action; 4th Amend
applies to domestic matters, was never intended to restrain Fed Govt Action abroad
(1) US v. sugo-Urquidez (1990)- Verdugo is a Mexican resident/citizen that the US
DEA believes is a leader in drug smuggling; Mexican Govt agreed to apprehend
him and transport him to the US border, where he was arrested and remains
incarcerated. After his arrest, DEA agents searched his Mexican residence.
(a) Issue- Does the 4th Amend apply to US agent searches/seizures in Mexico?
(i) Held: 4th Amend does NOT protect Govt searches in Mexico
1. CJ Rehnquist Membership Model
a. P lacked any attachment to US; didn’t enter US voluntarily
b. Notes that the Ct has held that aliens are NOT entitled to 5th
Amend protections outside the US sovereign territory;
2. J. Stevens Territorialist Model
a. 4th Amend applies to searches in Mexico if the person whose prop
was searched was lawfully present in the US
3. Kennedy Global Due Process Model
a. It is NOT that non-citizens have NO Constitutional protections;
rather the DPC dictates & Ct should assess what process is due
under those circumstances
i. Gives Ct broad discretion to est. what due process is***
4. Brennan Dissent Mutuality & Fairness Model
a. We want Foreign countries to treat our citizens w/fairness thus we
should treat foreigners fairly (i.e. reciprocity re: fairness)
b. Verdugo became “one of the governed” thus if he is expected to
adhere to US laws, he should receive the same protections
c. Constitutional Structure if the Govt exercises an enumerated
power, all of the Constitution applies and the restrictions therein
Constitutional
Citizens
Aliens
Protections?
IN Country
Y
Yick Wo
EWI- Verdugo ct doesn’t decide
LPR-sufficient status
Wong Wing, Zadvydas, Mezei were detention
cases.
Wong Wing: get all DP protections if crim
detained in country.
Zadvydas: if already admitted and in dep
proceedings; once detention not in furtherance of
dep, need justifications like domestic context.
OUT Country
5A, 6A Reid: : US citizens stationed
Verdugo: no 4th A
th
th
abroad can invoke 5 and 6 A
Guantanamo cases: habeas and other Const
protection
protections
2) Terrorism:
a) INA 212 = 4 Key Statutory Grounds for Exclusion = Nat’l Security; Terrorism; Foreign
Policy; Totalitarian Grounds
b) INA 212(a3) = Excludable Aliens = (3) Security and related grounds- A) an alien which
the Consular office or AG believes seeks to enter the US solely, principally or incidentally
to engage in espionage or sabotage OR any other unlawful act or to control/overthrow the
Govt is inadmissible; (B) Terrorist activities- an alien who engages in terrorist activity or
is believed to be involved after entry or has indicated an intention to cause death via
terrorist acts or is a rep of a terrorist org or social group that espouses terrorism…is
inadmissible (an alien that is a rep, officer, or spokesman of the Palestine Liberation Org is
considered to be engaged in terrorist activity) [Exception = the subclause VII doesn’t apply
a spouse or child who didn’t know or shouldn’t reasonably have known of the acts]; C)
Foreign Policy- an alien whose entry is eblieved to have serious adverse foreign policy
consequences for the US is inadmissible (exception for foreign Govt officials)…; D)
Immigrant membership in totalitarian party- any immigrant who is or has been a
member of the Communist party or affiliated w/any other totalitarian party is inadmissible
(exception for involuntary and past membership)…; E) Participants in Nazi presecution…; F) Association w/terrorist orgc) INA 327(a4) = Deportable Aliens = (4) Security and related grounds = A) any alien
who is engaged in or was engaged in at any time post-admission in any act that violates US
law re: esponiage or sabotage, or any other criminal act…is deportable; B) Terrorist
activities- C) Foreign policy-; D) Nazi participation-; E) Military type training
i) 18 USC 2339A = Providing Material Support for terrorists =
ii) 18 USC 2339B(a) = Providing material support or resources to designated FTO
d) Modern battles: Designated Terrorist Org Cases- immigrants facing Deport have
claimed that 212(a3B) imposes “guilt by assoc.” & the wide discretion violates 1st Amend;
i) 1st Amend Doctrine = 1st Amend restricts the Govt from imposing liability on an
indiv solely b/c of his association w/another (strict scrutiny as to the intent of the
member- did he intend to associate w/a group specifically to accomplish the aims of
the org by resort to violence);
(1) Healy v. James- non criminal case, Ct held that guilt by association is not an
appropriate ground for denying 1st Amend rights
e) Exclusion on Terrorism Grounds
i) INA 219 = Provides provisions for designating a Foreign Terrorist Org (FTO) which
has implications in Immig law (INA 212, 237) & Criminal law (§2339A, B)  OR an
org can be designated under INA 212 (by AG), this one ONLY affects Immig Law***
(1) Key: Terrorist designation under INA 219 has Criminal implications, 212 doesn’t!
ii) Procedural Holding case
(1) Nat’l Council of Resistance of Iran (NCOR) v. Dept of State (DC Cir. 2001)Ct est. the procedural reqmts re: a FTO designation;
(a) Due Process reqmts = Secretary must afford the entities w/notice that the
designation is impending; notice must include the action sought but need not
disclose the classified info
iii) People’s Mojahedin Org of Iran v. Dept of State (DC Cir. 2003)- The PMOI org
sought review of the 1999 and 2001 decisions of the Secretary of State which
designated them as a foreign terrorist organization; AEDPA empowers the Secretary to
designate an entity as a FTO and INA 212(a3B) imposes criminal penalties on anyone
who knowingly provides material support to a FTO.
(1) Issue: Whether the Secretary of State’s designation of their org as an FTO violates
the P’s due process and statutory rights? [NO]
(a) Held: Ct denied P’s petitions for review b/c there were NO statutory or due
process errors in the Secretary’s designation of P as a FTO.
(i) The determination as to whether an act is a terrorist activity that threatens
the US is a foreign policy decision left to the Exec Brach;
(ii) FTO Designation Test = Secretary must make 3 findings = 1) the Org is a
foreign org; 2) the Org engages in terrorist acts; and 3) the terrorist activity
threatens the security of the US or US Nationals;
1. The Org P was involved in was clearly a Foreign org but whether the
terrorist activity of the org threatens US security, is a non-justiciable
question (is a Policy judgment the Judiciary cannot make)
f) Material Support of Terrorism:
i) There is no constitutional right to facilitate terrorism; regulation of material support
warrants only intermediate scrutiny under the US v. O’Brien test
(1) Humanitarian Law Project v. Reno (9th Cir. 2000), (2001)- P’s were indivs and
orgs that wished to donate to 2 orgs designated under INA 219 as terrorist orgs
(Kurdistan Workers Party and Liberation Tigers of Tamil Eelam). P’s claimed the
ban on supporting the groups was a violation of their associational rights under the
1st Amend and that the Sec. 219 designation of authority to the Secretary of State
violates the 1st and 5th Amend.
(a) Issue: Whether Congress, consistently w/1st Amend, enact criminal penalties
for contributing material support to designated FTO orgs under INA 219?
(b) Held: Ct rejects P’s claims; AEDPA prohibits giving material support;
(i) Intermediate scrutiny = involves 4 questions =
1. Is the reg w/in the power of the Govt?
2. Does is promote an important or substantial Govt interest?
3. Is that interest unrelated to the suppressing of free expression?
4. Is the incidental restriction on 1st Amend no greater than necessary?
a. Ct found all 4 Questions answered affirmatively here; thus the
regulation passes intermediate scrutiny
ii) Providing food and tents to a Terrorist Org constitutes material support.
(1) Singh-Kaur v. Ascroft (3d Cir. 2004)- Singh-Kaur (P) petitions to 3rd Circuit to
review his deportation order from BIA under INA §212(a)(3)(B)(iv)(VI). P
provided food and tents to militants in India. Gov argues he is not eligible for
adjustment of status because provided material support.
(a) Issue: Whether giving food & tents to people engaged in terrorist acts amts to
affording “material support” w/in the meaning of INA 212(a3Biv)? [yes]
(b) Held: P’s petition for review Denied; P giving food/tents constitutes material
support Ct assessed the type of support given and the “terrorist” recipient
(i) Statute enumerates examples of what constitutes “material support” (re:
transport, financing,, etc) BUT the listing is NOT exclusive
(ii) Gov mischaracterized the org as a designated org (cc); BUT the Statute
also prohibits material support to any individual who actor knows or
reasonably should know has committed or plans to commit a terrorist
activity. 212(a)(3)(B)(iv)(VI)(bb)
1. No evidence that anyone at these meetings had committed terrorist
activity but majority says the organization has committed terrorist
activity thus P served a terrorist org b/c they were members.
2. Court holds statute applies to him based on plain meaning. Dissent
argues this reads “material” out.
(c) Terrorist Org. Statutory Issue:
(i) §212(a)(3)(B)(iv)(VI)(cc): To a terrorist organization why didn’t Court
charge him under this clause?
1. Babbar Khalsa was NOT designated a FTO until well after his
deportation proceedings commenced
2. Important ambiguity: Does it apply retroactively?
(ii) §212(a)(3)(B)(iv)(VI)(dd): To a non-designated terrorist org in clause
(vi)(iii)
(iii) What constitutes “Terrorist Activity”?
1. 212(a3B)(iii) defines “terrorist activity” as highkacking or sabotage of
any conveyance…seizing/detaining and threatening to kill, injure or
continue to detain an indiv in order to compel a 3rd person to act…
(d) Puzzle: Court changed burden to know or should have known to clear and
convincing evidencehow you can prove by clear/convincing evidence that
you did not know;
iii) Material Support Analysis addresses 3 Key Questions=
(1) Status of the Recipient?
(a) 212(a3B)(iv)(VI)(aa-dd) est. classes of persons you cannot support
(i) = aa) “for the commission of terrorist activity”; bb) to an indiv you know
or plans to engage in terrorism; cc) a designated org; dd) undesignated org
(2) What kind of giving constitutes material support?
(a) Thus what types of goods/services/advice counts? What is auto forbidden?
(i) Singh = it’s not clear that giving food/tents is actually forbidden; but the
listing under 212(a3B)(iv)(VI) of forbidden support is not exclusive
1. (VI) = forbids “a safe house, transport, communications”
2. It appears “Material Support” covers Pure speech acts as well
(b) What level of giving counts as “material”?
(i) Dissent asserts that there must be a “Proximate cause” link btwn the
support and the terrorist activity/org
(ii) Majority disagrees b/c anything could have potential proximate cause link
1. Possibilities =
a. Causal Connection (causation)
b. Fungibility
c. Knowledge/Significance
(3) What is the required mental state of the actor/support giver?
(a) Multiple mental states =
(i) As to #2, you have to know the support was material
(ii) As to #1, you have to know the recipient is related to a terrorist act—but
the Statute flips the knowledge burden depending on the recipient
1. Burden of Proof changes = (cc) doesn’t require you know the org is a
designated terrorist org; BUT in (dd) you have to prove you didn’t
know or should know (clear/convincing evidence) it was a terrorist org
(b) One can be guilty of supporting a terrorist activity through a long chain  i.e.
you cannot support one who supports another, who supports the Terrorist Org.
(i) This chain of support arises b/c of the text of the statute-
1. 212(a3B)(v) = defines terrorist organization = (III) = “a group of 2 or
more whether organized or not, which engages in OR has a subgroup
which engages in terrorist acts”
3) Detention of Noncitizens:
a) INA 236A= Mandatory Detention of Suspected Terrorists; Habeas & Judicial Review
i) a) Detention of Terrorist Aliens  1) AG shall take into custody any alien certified
under this section paragraph (3); 2) the AG shall maintain custody until the alien is
removed from the US; 3) Certification- the AG may certify an alien who he has
reasonable grounds to believe is described under 212(a3), 237(a4B)….; 5) AG must
place the detainee in removal proceedings (OR charge alien of criminal offense) no
later than 7 days after detention began; 6) Limit on Detention- alien detained solely
under paragraph (1) whose removal is unlikely in reasonably foreseeable future, may
be detained for additionally 6 month periods only if release of alien will be a threat to
national security = 236(a6 ) = est. the 6 month renewable extension periods for
detaining aliens seen as Nat’l threat*
ii) b) Habeas Corpus & Judicial Review  1) judicial review of any action re:
detention under this Sec., is available exclusively thru habeas proceedings; 2) habeas
proceedings may be initiated only by an application filed w/Supreme Ct or DC Cir. or
any Circuit Judge or Sup Ct Justice; 3) Appeals- the final order shall be subject to
review ONLY on appeal to the DC Cir.
b) Military Commission Act 2006 strips all jurisd of non-citizen detainee cases, including
pending habeas petitions from Guantanamo Bay detainees.
i) Boumediene v. Bush and Odah v. US (DC Cir. 2007)- The dispute in this case
hinges on Congress’s response to Hamdan v. Rumsfeld (2006), where Ct held the
Detainee Treatment Act 2005 (DTA) didn’t strip Fed Cts of jurisd over detainee habeas
cases pending at the time of DTA enactment. Hamdan prompted Congress to pass the
Military Commissions Act of 2006.
(a) Held: NO Ct has jurisd b/c MCA 2006 applies to the Guantanamo Bay
Detainee’s habeas petitions;
(i) MCA clearly strips all jurisd b/c sec (7a) est. that no Ct had jurisd over
non-citizen detainee cases, including GB habeas petitions; & sec. (7b) est.
that the Amend applied to all cases w/out exception pending on or after the
date of enactment***
1. Johnson v. Eisentrager (1950) validates the assertion that no Ct has
jurisd over an alien detainee habeas petition
(ii) Ct takes a Territorial Approach
1. Majority = US Territory is based on legal status as est. by the Govt
2. Dissent= Territory is based on the areas which the Govt asserts control
(iii) Key Issue- Is the Suspension clause about conferring indiv rights?
1. Dissent = agrees Congress intended to w/draw Fed jurisd but finds
MCA is not consistent w/the Suspension clause which does NOT
confer an indiv right, rather it’s limit on Congressional powers;
a. Distinguishes the Suspension clause from 4th, 5th, & 6th Amend
b/c the clause doesn’t refer to individuals as the amendments do;
V. Undocumented Migrants
1) History of Unauthorized Migration:
a) Unauthorized migrant = person residing in US but is not a US citizen, has not been
admitted for permanent residence, and is not in a set of authorized temp statuses permitting
longer-term work and residence
i) Comprised of: those who enter w/out valid docs/visas and those who enter w/valid
visas but overstay their expiration
b) Estimates project 11.5-12 million unauthorized migrants in the US today
i) They accounted for 4.9% of the civilian labor force in March 2005
2) Public Benefits & Constitutional Rights:
a) TX State law cannot deny public education to undocumented children; States have NO
authority re: the classification of aliens; even unlawful aliens are guaranteed due process.
i) Plyler v. Doe (1982)- In 1975, TX revised its Edu law to w/hold any state funds from
local school districts for the edu of undocumented children (not lawfully admitted), and
authorized the schools to deny enrollment to those students; claim the undocumented
aliens aren’t “persons w/in the TX jurisd” thus have no right to equal protection of law.
(1) Issue: Does the TX edu law which denies public edu to undocumented children
violate 14th Amend, EPC?
(a) Held: TX edu law is Unconstitutional (Brennan)
(i) Ct applies Heightened Review for 3 Reasons =
1. Classification based on undocumented status
a. Suspect Classifications subject to increased scrutiny
b. Political Powerlessness (P class have no power; BUT we structure
the law so they don’t have such power?)
2. Class involves children
a. Kids cannot control their own status or their Parents conduct
b. Likely didn’t come on their own volition
3. Discrimination of Education
a. Notion that edu is a Fundamental Privilege/Good
b. Edu enables one to have opp to become “full member”
c. State Interests [could lead to more costs on society thru
unemployment, crime, etc.]
(ii) CJ Burger Dissent = edu shouldn’t be deprived but the Ct here has
overstepped its authority by assuming policy-making role
1. illegal aliens not a suspect class; edu not a fundamental right
(iii) Brennan Opinion articulates a strong “Stake Theory”
1. Membership determined by stake, not legal status and one’s stake can
compel the Govt to treat them as a member*
a. Dissent finds legal status dispositive = Diff Membership models:
i. Brennan = Constitution applies regardless of status
ii. Dissent = b/c aliens aren’t Constitutional members, not
entitled to Govt services
2. Brennan strikes down the State’s claimed interests =
a. Ltd edu resources; undocumented kids burden the State’s ability to
provide quality edu; the kids are less likely to remain in TX and
put their edu to productive social/political use w/in the State
3. Brennan rational very similar to Graham rationale States cannot (but
Fed Govt can) est. membership classifications
a. C.f. Graham (Discriminatory State Welfare law Unconstitutional)
& Diaz (Discriminatory Fed Welfare Reg Constitutional)
(iv) Why does Yick Wo (Chinese launder case) NOT apply?
1. Yick Wo Ct read the statute as discriminatory (here no race-based
discrimination)
2. Ct doesn’t assert that undocumented aliens have NO Constitutional
protections or rights; Issue re: is the classification Constitutional?
(2) Cox: Plyler is the only modern case to address rights of undocumented aliens; is
an anomaly in Constitutional Immig law: no body of Fed Dist Cts citing it
(a) Membership Model Debate Plyler Majority finds the kids do have
membership, Dissent says they are not b/c they lack legal status under the law
(i) Problems re: limitations w/each side =
1. Majority = how to est. what benefits the Govt doesn’t have to prove to
persons here w/out authorization?
2. Dissent = how to est. a limiting principle of what Govt benefits the
Govt is obliged to provide? (i.e. edu, emergency medical care, etc.)
ii) State Role in Immigration Law: What is it?
(1) Maybe State has inherent power to enforce Immig Law concurrent with Fed Govt
(2) Maybe Immig Law is Exclusive for Fed Govt (BUT maybe feds can delegate)
(3) Maybe States can’t do Immig Policy at all (and NO delegating)
iii) Is unauthorized migration good for the US and our labor force?
(1) Provides cheap labor; but also takes up job opps for citizens
(2) Could deter citizens from searching for jobs or domestic workers
(a) Exiting economic commentary reveals the actual effect is NOT clear
(3) No clear evidence that undocumented immigration hinders labor force …spotty
evidence of negative wage, unemployment effects…but there is also spotty
evidence of positive wage/employment effects
Aliens in country
Out of the country
Public Benefit
Alienage discrimination (EP?)
Graham, Diaz, Plyler
Probably no (but think what
happens if move abroad)
Const Right
Yick Wo, Wong Wing  EP
Verdugo  4th Am.
Guantanamo cases.
3) Enforcement Issues:
a) Border Enforcement
i) Several Strategies to achieve Enforcement
(1) Interior enforcement v. Border/Exterior enforcement
(2) Enforcement v. the illegal immigrants OR v. other, associated parties
(a) i.e. Employer sanctions = deter those who assist unauthorized migration
(3) Direct v. Indirect strategies(a) Directly impact the immigrant themselves; OR
(b) Indirectly attempt to influence the illegal immigrant (i.e. give more foreign aid
to Mexico to strengthen the country & give less incentive to illegally migrate)
ii) Note: Increased border enforcement in 1990’s had mixed results=
(1) Changed the methods use; focused enforcement efforts
(2) Made smuggling more expensive; developed smuggling “business”
(3) Made apprehension more difficult—the likelihood of apprehension was lower b/c
aliens were entering from broader range of areas
(4) Led to less crossings over the border, thus resulting in illegal immigrants
remaining in the US longer
b) Employer Sanctions
i) 1989 IRCA – est. Employer Sanctions; 3 major components=
(1) prohibits employer from hiring a non-citizen not authorized to work in US
(2) Employer must verify the ID of all its employees, even US citizens
(3) Prohibits employers from intentionally discriminating in the hiring or firing on the
basis of national origin or citizenship
ii) Recent changes shift employer sanctions from mere Admin fines to Criminal charges
c) State & Local Enforcement
i) Do State & Local Police have authority to arrest persons for violations of Federal
Immigration Laws?
(1) If so, is the authority purely a delegated Fed power or an authorized State power?
ii) Federal Law doesn’t preclude Local Police enforcement of Criminal INA provisions.
(1) Raul Gonzales v. The City of Peoria (9th Cir. 1983)- 11 Mexican nationals filed
claim v. City of Peoria, AZ and certain police officers claiming the police engaged
in a practice of arresting persons from Mexico w/out reasonable suspicion or
probable cause and based on race/appearance only. Each P’s claimed to have been
unlawfully stopped. Official City Policy authorizes “State law enforcement officers
have authority to make arrests for Fed violations.”
(a) Issue: Do Local Police have authority under State & Fed law to arrest for
violations of Immig law?
(i) Held: nothing in Fed law precludes City police from enforcing the
criminal provisions of the INA;
1. AZ law authorizes such arrests
2. BUT enforcement procedures must distinguish btwn illegal entry and
illegal presence; and
3. Must comply w/arrest reqmts imposed by the Constitution.
(b) Cox: But what all does the Immig arena/power entail?
(i) Ct here finds the Criminal field is separate from the Immig field
(ii) Key = it is NOT clear what all constitutes the Immig Field*
iii) Inherent State Sovereign Power: States’ Power to make such arrests is inherent in
the ability of one sovereign to accommodate the interests of another sovereign.
(1) OLC Memo [Nat’l Council of La Raza v. Dept of Justice (2005)]
(a) Issue 1 = Whether States have an inherent power (subject to Fed preemption)
to make arrests for violation of Fed law?
(i) Can State police arrest under state law authority ONLY?
(ii) OR do they only have authority under delegated Fed Executive power?
(b) Held= States are Sovereign entities and the authority of State police to make
arrests for violation of Fed law is inherent in States’ status as sovereign entities
(i) States’ power not merely authorized under a delegated Fed power
1. Power to make such arrests is inherent in the ability of one sovereign
to accommodate the interests of another sovereign
(c) Issue 2 = Whether Sec. 1252c preempts State arrest authority?
(i) Held = Sec. 1252e does not preempt State authority to make arrests for
violations of Fed Immig law
iv) Lozano v. City of Hazleton Complaint (M.D. Penn 2007)- City of Hazleton passed
the Illegal Immig Relief Act Ordinance in July 2006—Complaint was filed challenging
the Act on constitutional grounds; Ordinance = prevents employment of unlawful
workers; est. employment sanctions, etc.
(1) P’s 1st COA = Violation of the Supremacy Clause (Art VI. Sec. 2) = Fed law
trumps state law; Immig is an exclusive Fed power; the Ordinance is preempted by
the INA;
(2) 3rd COA = Violation of EPC = enforcement is initiated by any “valid
complaint”; a complaint isn’t valid if based solely on race, BUT is valid if only
based in part on race; use of race & Nat’l origin classes violates 14th Amend EPC
v) Federalism: Do States have authority to enforce Immigration law?
(1) Analytical Structure to analyze these cases:
(a) Is Immig enforcement an exclusive Fed authority (i.e. what is the
Constitutional distribution of Immig regulatory authority)?
(i) Hints in case law that Immig law is an exclusive Fed authority and
thus States are unable to act in this arena
1. See OLC Memo = memo provides that States have an inherent power
as Indep Sovereigns to make arrests for Fed Immig law violations;
2. See Gonzales = Local police have authority to make arrests but for
criminal violations only of Fed Immig laws (not civil violations)
(b) IF it isn’t an exclusive Fed authority, are the State prohibited by Preemption?
(i) Field Preemption =has congress acted so extensively that there is no room
for the States to operate
1. Thus, view Immig as a field that is completely occupied by Fed reg
2. Distinction btwn Enforcement v. Policymaking (the role of Congress)
a. OLC relies on this distinction to find NO preemption b/c there is a
diff btwn enforcement and policymaking
(ii) Conflict preemption = the State reg in Immig is seen as interfering w/Fed
reg; causing tension
(c) Are States authorized under a Delegation of Fed power?
(i) Even if Immig is an exclusive Fed power, States may still be able to act if
the Fed Govt authorizes OR obligates them through delegation of power
1. Problematic for Fed Govt to obligate States BUT thru express
memorandums of understanding Congress can delegate to the States
a. See Print case = Con law case, Ct held the Fed Govt cannot
commandeer States and Executive actors
(ii) Are some aspects of Immig power Non-delegable?
(2) Policy Issues:
(a) Potential commitments to uniformity v. efficiency/access
(b) Concern about democracy (i.e. accountability)
(c) Which polity do we think should be making decisions w/respect to
Immigration? Fed? State?
(i) And how does this depend on what kinds of decisions are being made?
1. Should States be empowered differently in admission v. deport context
(d) Standard Federalism claims in favor of State Authority =
(i) Need variation to respond to diff local conditions; “lab/experiment”
rationale; we already have delegation in some areas (criminal categories)
(e) Claims against State Authority =
(i) Evidence that the level of enforcement tends to track the labor demand
(high demand = low enforcement);
(ii) Local Govts tend to be more responsive to “Majoritarian pressures,” thus
fear that they will enact more harsh measures
(iii) But some local Govts let non-citizens vote, thus they may allow more
consideration of non-citizen rights;
1. Political pressures clearly operate differently on the State v. Fed level*
(3) Cox: you can view grant of authority to local enforcement of Immig law as
evidence of the Fed Govt pushing to permit lots of local enforcement—
(a) OR you can view it merely as the Fed Govt has defined a very specific context
under which States can act
(i) See Hazelton Case- a lot turns on what we think the correct presumption
is—should the presumption for preemption in Immig differ for the
presumption governing in domestic matters?
4) Guest-worker Programs & Legalization:
a) Guest Worker Policies
i) 4 Rationales for importing workers =
(1) Alleviate labor shortages;
(2) Better manage inevitable (and illegal) migration;
(3) Provide work-and-learn opps for foreigners, esp. foreign youth, so that the country
of immigration gains access to another country’s workers and can claim to be
accelerating development in the workers’ native countries;
(4) Promote socio-economic integration (as in the EU);
ii) Guest Worker Status =
(1) Once in the US the workers’ status is either:
(a) “Non immigrants” (constant rights regardless of their behavior); or
(b) “Probationary immigrants” (they acquire more rights if they are still needed
and perform satisfactory)
iii) Costs & Benefits of Guest Worker Programs =
(1) Can increase output and profits, fill labor demands w/out having to increase wages
(2) BUT can dull employers’ incentives to invest in and search for productivityincreasing technologies;
iv) Note: Guest worker policies have been used extensively in European countries
(especially w/in the EU and in Germany)
b) Bracero Program
i) Wartime Program initiated in 1942 to import contract-labor from Mexico under agmt
w/the Mexican Govt;
(1) From 1948-1964, the program imported around 200,000 braceros each year;
ii) Migrant Labor Agmt = governed the program till its end in 1964
(1) The Agmt est. that Mexican contract worker couldn’t be used to replace domestic
workers or depress domestic farm wages;
(2) Stipulated that braceros were guaranteed transport, housing, food, and min wage
and that they wouldn’t be subject to discrimination;
(3) The US Govt was the “employer” on each Indiv employment contract for the
braceros (Govt assumed the role of labor contractor)
(4) Program failed to meet the stipulated terms of the Migrant Labor Agmt—
(a) domestic farm-workers were displaced; Mexican workers weren’t given the
prevailing wage rates; housing violations were common (poor quality);
(5) Program was supposed to be a solution to illegal Immig, but led to a large
increase in Illegal Immig & led to “wetback wages” and a spike in undocumented
labor & growing border towns
c) Immigration Reform Legislation:
i) Title IV = Non-immigrant & Immigrant Visa Reform
(1) 3 yr renewable status; 2 paths to LPR status (= Employer petition; Self petitionbut worker has to wait before able to petition)
(2) English + civic learning reqmts
(3) 60 day unemployment  leave
(4) Can Change jobs—but thru H-2L employers only
ii) Title V = Backlog Reduction
(1) Increase in highly skilled caps (waives some caps)
(2) De facto increase in family-based immigrant caps
iii) Title VI = Work Authorization & Legalization of Undocumented aliens
(1) 5 yr undocumented immigrant presence = employed 3 out of the 5 yrs and 6 yrs
after enactment; not inadmissible; English + civic learning reqmts; applicants for
legalization have to wait until backlog clears
(2) 2 yr presence = continuously employed; admit unlawful presence; wave challenge
and judicial review; 3 yr work authorization
iv) Cox: Issues to consider re: this Reform legislation—
(1) Why do they address all 3 areas under one reform effort?
(2) Why are low skilled and high-skilled workers treated differently?
(3) Who will bear the costs, burdens of the reform enforcement, States v. Fed Govt?
5) Exam Review:
a) Case Comparison Questions—
i) What aspect of Immig regulation/enforcement are the cases addressing?
ii) What are the Courts saying about Plenary Power? How is PP construed?
(1) What does Ct say about Congress’s ability to delegate that power to Exec?
iii) What are the Courts asserting re: Constitutional rights of non-citizens?
iv) What about the debate btwn the justices (majority v. dissent)?
v) What is the Govt claiming? What are the Plaintiffs claiming?
vi) Is the case addressing an issue at the core of Immig policy (i.e. exclusion or deport) or
issues indirectly related to Immig (i.e. b/c of membership/Immig incentives—i.e. Yick
Wo (discrimination) and Diaz & Graham (Public benefits)?
(1) Note: the “indirect” cases tend to deal with Govt regs/laws that influence
membership
(2) Federalism concerns? Uniformity concerns?
(3) Does the case have 2 modern day interpretations (like Harisiades)?
b) 1st Amend Analysis—
i) AADC v. Reno (9th Cir.)- 1st Amend rights are accorded to aliens in the US
ii) AILA v. Reno- Ct rejects the Org P’s 1st Amend claim b/c Org P’s lack standing
iii) Harisiades- No 1st Amend violation under 1940 Act b/c free speech includes freedom
to promote Communism thru valid elections NOT thru violence
(1) NOT Modern day 1st Amend analysis b/c Ct relied on Dennis which has since
been displaced by Bradenburg
iv) Kleindienst- No 1st Amend violations all that was restricted was P’s action of
entering the US; he has other means to communicate w/the US citizens (books,
articles, etc.);