2004 © David Weissbrodt and Laura Danielson

The broad power of the federal government to regulate the admission, removal, and naturalization of non-citizens has its roots in the early history of the United States. Modern statutes, Supreme Court decisions, and federal agency regulations attest to the plenary nature of this power. This chapter examines the source of the power over immigration, the limits such federal power impose on state attempts to regulate non-citizens, and the allocation of this power among the three branches of the federal government-Congress, the courts, and executive agencies.


Throughout the history of the United States the Supreme Court has upheld all manner of federal statutes regulating immigration. By contrast, Supreme Court decisions preclude states from passing legislation that directly impinges on this area of federal dominion. The Supreme Court’s basis for action is clear when the area regulated is naturalization. Article 1, § 8, clause 4, of the United States Constitution specifically grants Congress the power to establish a "uniform Rule of Naturalization." By expressly allocating this power to Congress, the Constitution prevents the confusion that would result if individual states could bestow citizenship. The Constitution does not, however, explicitly provide that the power to deny admission or remove non-citizens rests with the federal government as opposed to state governments. Hence, in the early immigration cases the Supreme Court faced the problem of identifying the source of the federal government's exclusive and plenary power over immigration. Later cases found the plenary power to be an inherent sovereign power.

§ 2-1.1 The Commerce Clause

In the earliest cases, the Court looked to the federal power over foreign commerce. The Commerce Clause in Article I, § 8, clause 3, of the United States Constitution provides Congress with the power "to regulate Commerce with foreign Nations, and among the several States." The Supreme Court in the Passenger Cases (Sup.Ct.1849) invoked the Commerce Clause to ban the levy of fees upon foreigners wishing to disembark at state ports. The Court invalidated state immigration fees even though Congress had yet to implement any relevant federal regulations. The Court reasoned that Congress exclusively controlled foreign affairs and foreign commerce even when the power had not been exercised. In the Head Money Cases (Sup.Ct.1884), the Court upheld a federally imposed tax on foreign immigrants, again with direct citation to the commerce power. As congressional action began to reach beyond taxation to other forms of regulation, however, the Court sought a broader ground for decision.

§ 2-1.2 Other Constitutional Provisions

Early cases also cite other specific constitutional provisions to support the inference that the federal government possesses complete power over international relations, arguably including immigration matters. In addition to citing the foreign commerce power, the Supreme Court in Nishimura Ekiu v. United States (Sup.Ct.1892) cites the power to establish a uniform rule of naturalization; the power to declare war, and to provide and maintain armies and navies; and the power to make all laws necessary and proper. The Fong Yue Ting v. United States (Sup.Ct.1893) case adds the power to define and punish piracies, felonies committed on the high seas, and offenses against the law of nations; as well as the presidential power to make treaties, to appoint ambassadors, and to select other public ministers and consuls.

The Migration and Importation Clause in Article I, § 9, clause 1, of the Constitution has also been considered a potential grant of power to Congress. This clause provides: "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight....” The specific limit on congressional power before 1808 could be construed to imply that after 1808, Congress would have power over migration and importation. The prevailing interpretation, however, is that this clause was simply intended to bar any attempts by Congress to stop the slave trade before 1808.

The War Power, found in Article I, § 8, clause 11, could be cited as a potential source of federal control over immigration. The War Power gives Congress the authority to "declare war." The War Power authorized the exclusion and expulsion of enemy aliens. In the Alien and Sedition Acts, for example, Congress granted this power to the President. The Supreme Court upheld the constitutionality of such provisions in Ludecke v. Watkins (Sup.Ct.1948), but it is difficult to stretch this rationale to cover the myriad of immigration provisions not apparently related to national security.

The Naturalization Clause in Article I, § 8, clause 4, has served as an argument for federal control over immigration. The dissent in the Passenger Cases rejected this argument. Passenger Cases (Sup.Ct.1849). As mentioned earlier, the Naturalization Clause's granting of power to "establish an uniform Rule of Naturalization" concerns decisions about citizenship rather than immigration generally.

Another way of looking at the possible constitutional provisions that provide specific federal power is to view them as indicative of an original intent to give the federal government power over all immigration. Under this view, the Commerce, War, and Naturalization Clauses together imply a federal right to regulate non-citizens. Later cases clarified, however, that such constitutional provisions are not the source of an implied right of the federal government to regulate non-citizens, but only show that the federal government is the national government and therefore the keeper of the inherent sovereign power to regulate international affairs.

§ 2-1.3 National Sovereignty

The Court eventually found the source of the federal power to regulate immigration in a combination of international and constitutional legal principles. The Chinese Exclusion Case (Sup.Ct.1889) was the first case to hold that the federal power to exclude non-citizens is an incident of national sovereignty. The Court reasoned that every national government has the inherent authority to protect the national public interest. Immigration is a matter of vital national concern. Furthermore, it is the role of the federal government to oversee matters of national concern, while it is the province of the states to govern local matters. Therefore, the Court found that the inherent sovereign power to regulate immigration clearly resides in the federal government. Subsequent cases reinforced national sovereignty as the source of federal power to control immigration and consistently reasserted the plenary and unqualified scope of this power. Fong Yue Ting v. United States (Sup.Ct.1893) explicitly held that the power to expel or deport (now "remove") non-citizens rests upon the same ground as the exclusion power and is equally "absolute and unqualified."

§ 2-1.4 Delegated Versus Inherent Power

In United States v. CurtissBWright Export Corp. (Sup.Ct.1936), the Court clearly distinguished between powers delegated to the federal government in the Constitution and inherent sovereign powers. Delegated powers over internal affairs were carved from the general mass of legislative powers previously governed by the states. States never possessed international powers, however, and the inherent sovereign powers were transferred from Great Britain to the union of states when the U.S. declared its independence. These powers were thus vested in the national government before the Constitution was written and exist without regard to any constitutional grant. It has been suggested that the apparently limitless scope of federal authority over immigration results from this undefined and indefinable source. The Supreme Court has upheld every exercise of this power and has consistently termed it "plenary and unqualified."

Other theorists suggest sources of federal immigration power that lie somewhere between the explicitly delegated powers of the Constitution and the inherent powers. The "Rule of Necessity," for instance, suggests that because federal power over immigration is necessary to the successful operation of the Constitution, this power may be interpolated into the Constitution.

Structural arguments have also been used to justify the exclusive federal immigration power. These arguments draw an inference of power from the structure of the Constitution as a whole, rather than from individual clauses. The Constitution's primary goal is to create a system of government for the nation, and a process through which its citizens establish the rules governing people within the territory. Under this premise, two structural arguments emerge.

First, the power to regulate immigration is essential to a nation's self?preservation. To be a sovereign nation, a people must have control over its territory. Without such control, a nation would be unable to govern itself and its borders effectively, and as a result, would be subject to the sovereignty of other nations. The power to regulate immigration is therefore inherent in the Constitution's creation of a sovereign nation.

Second, the power to regulate immigration is essential to the process of national "self?definition." Through the governmental process, a nation's citizens determine the values espoused by the nation, and hence, formulate the nation's identity. By determining who will comprise the nation and participate in creating the nation's identity, immigration laws constitute the process of self?definition itself. Decisions about who may enter a country say much about a nation. Although the process of national self?definition may be characterized as racist, discriminatory against outsiders, and otherwise unjust, it is an essential characteristic of a sovereign nation. These theories of self?preservation and self?definition mandate broad federal powers over immigration.

In addition, scholars have cited the constitutionally "implied" power of the executive over foreign affairs to authorize federal control over immigration. In The Chinese Exclusion Case (Sup.Ct.1889) (see § 2-1.3, supra.), Justice Field stated that the Foreign Affairs Power is the foundation for all federal control over immigration. Moreover, this power has been cited as a basis for invalidating state statutes that attempt to regulate immigration. See, e.g., Chy Lung v. Freeman (Sup.Ct.1875).

Today the source of the federal government's power to control international affairs generally, and immigration in particular, is accepted without question. For example, during the Iranian hostage ordeal of 1979B81, the U.S. Court of Appeals for the D.C. Circuit upheld the Attorney General's authority to order all Iranian students in the United States to report to INS offices and demonstrate the lawfulness of their presence in the country. Narenji v. Civiletti (D.C.Cir.1979). Similarly, in 2001, Congress authorized the President to “use all necessary and appropriate force . . . in preventing future acts of international terrorism against the United States.” 50 U.S.C.A. § 1541. Many cases refer to these powers as constitutional when, in fact, the powers are drawn from a more ancient foundation. The practically unlimited scope of the federal power over non-citizens may possibly be traced back to the undefined nature of its source.


§ 2-2.1 Plenary Congressional Power

To date there have been no successful challenges to federal legislation that refuses admission to classes of non-citizens or removes resident aliens. Federal immigration power thus appears limitless. Indeed, the Supreme Court has stated: "[O]ver no conceivable subject is the legislative power of Congress more complete." Fiallo v. Bell (Sup.Ct.1977), Kleindienst v. Mandel, (Sup.Ct.1972), and Oceanic Steam Nav. Co. v. Stranahan (Sup.Ct.1909). Extreme judicial deference bears witness to the truth of this statement.

Both the Constitution and the U.N. Charter have been dismissed as grounds for opposing federal immigration power. The federal courts and immigration authorities have without much consideration rejected an assertion in Hitai v. INS (2d Cir.1965), Vlissidis v. Anadell (7th Cir.1959), and Matter of Laurenzano (BIA 1970) that the immigration quota system is inconsistent with the U.N. Charter. The Supreme Court has upheld the constitutionality of federal statutes that detain non-citizens for the brief period necessary for their removal proceedings (Demore v. Kim (Sup.Ct.2003)) and that exclude non-citizens on the basis of race (Chinese Exclusion Case (1889)) and political belief (Kleindienst v. Mandel (Sup.Ct.1972)). Moreover, excluded non-citizens have no constitutional right to a hearing. Shaughnessy v. Mezei (Sup.Ct.1953). Mezei also determined that excludable non-citizens can be indefinitely detained if their country of origin refuses to accept them. For a discussion on the constitutionality of indefinite detention of resident aliens and excludable (now “inadmissible”) non-citizens, see § 9-5, infra.

Even where the First Amendment and Equal Protection rights of U.S. citizens were jeopardized, in Mandel, the Supreme Court refused to look behind the Executive's negative exercise of discretion on the basis of a "facially legitimate and bona fide reason" in refusing entry to a Belgian Communist. First Amendment rights of U.S. citizens were arguably jeopardized again in 2001, when the Attorney General closed “special interest” deportation hearings to the public and press. In Detroit Free Press v. Ashcroft (6th Cir.2002), the court held that non-substantive immigration laws do not require special deference to the government and that closure violated the First Amendment right of access. The Third Circuit disagreed and in North Jersey Media Group, Inc. v. Ashcroft (3d Cir.2002), the court deferred to the Attorney General’s judgment and held that no First Amendment right of access to deportation hearings existed — allowing the hearings to remain closed. In 2003, the Supreme Court denied certiorari to North Jersey Media Group, Inc. One district court found non-citizens have First Amendment rights not to be deported (now "removed") for political activity. The U.S. Court of Appeals reversed for lack of standing and ripeness in AmericanBArab AntiBDiscrimination Committee v. Thornburgh (9th Cir.1991), but later affirmed an injunction against deportation of the non-citizens. AmericanBArab AntiBDiscrimination Committee v. Reno (9th Cir.1997). In 1999, the Supreme Court vacated the judgment of the Ninth Circuit, holding that INA § 242(g) deprives the federal courts of jurisdiction over claims of selective enforcement of immigration laws by the Attorney General. See § 13B4.5, infra.

Federal courts have sustained the detention of non-citizens convicted of aggravated felonies without the opportunity for a pre-detention hearing under the Fifth and Eighth Amendments. Courts have also rejected other Fifth Amendment Due Process and Equal Protection claims. The Fifth Circuit, in response to an Equal Protection challenge to the Nicaraguan Adjustment and Central American Relief Act, held that “[d]ue process does not require Congress to grant aliens from all nations the same chances for admission to or remaining within the United States.” Rodriguez-Silva v. INS (5th Cir.2001). The Supreme Court also rejected a Fifth Amendment claim by refusing to reach the issue of whether the Equal Protection principles inherent in the Due Process Clause of the Fifth Amendment protected a class of undocumented Haitians detained without parole. Instead, the Court ruled that the non-citizens§ claims were to be judged under nondiscriminatory federal statutes and regulations. Jean v. Nelson (Sup.Ct.1985). In FernandezBRoque v. Smith (11th Cir.1984), the U.S. Court of Appeals for the Eleventh Circuit held that Cuban nationals found excludable had no constitutionally?based liberty interest in challenging denial or revocation of parole. In GarciaBMir v. Meese (11th Cir.1986), the same court further held that unadmitted Mariel Cuban parolees did not have any other Due Process liberty interest entitling them to parole revocation hearings, nor were they entitled to such hearings on the basis of international law. See 8 C.F.R. § 212.12 for parole determinations and revocations respecting Mariel Cubans. Similarly, deportation (now "removal") orders are consistently upheld despite a myriad of conceivable constitutional challenges. Courts inclined to limit Due Process restrictions have cited Mathews v. Diaz (Sup.Ct.1976) (“In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.”)

In McNary v. Haitian Refugee Center (Sup.Ct.1991), the Supreme Court held that challenges to the constitutionality of the practices, procedures, and policies of the INS were proper subjects for judicial review. In that case Congress had required non-citizens to seek judicial review of individual denials of special agricultural worker (SAW) status only in the context of exclusion or deportation. Since the Haitian Refugee Center was not challenging an individual determination but the entire process, because of the presumption in favor of review of administrative actions, and because constitutional issues were at stake, the court found jurisdiction. In 1992, the U.S. Court of Appeals held in Haitian Refugee Center v. Baker (11th Cir.1991) that non-citizens, who were detained on the high seas and, therefore, had never presented themselves at a U.S. border, had no right to judicial review of INS decisions under the Administrative Procedure Act. Moreover, the court held that these non-citizens had no individual right of action, unless they qualified for refugee status. Further, the court held that the refugee center and their attorneys had no First Amendment claim for gaining access to those detained non-citizens. The Supreme Court denied certiorari over the objections of Justice Blackmun, who complained that this challenge to the U.S. procedures for determining whether a group faces political persecution should not go unheard by the Court. In Sale v. Haitian Center Council, Inc. (Sup.Ct.1993), the Court upheld summary return of Haitians intercepted on the high seas without considering their asylum claims. The interdiction agreement ceased to exist in 1994, when Haitian President Aristide withdrew his government's consent. See § 9-1.1(a)(2), infra.

Courts continue to review the practices, procedures, and policies of immigration authorities even though Congress has attempted to restrict judicial review. For example, INA § 242(g) provides that no court shall have jurisdiction to hear a claim “arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders ....” The Supreme Court followed this directive in Reno v. American-Arab Anti-Discrimination Committee (Sup.Ct.1999), but in 2001, the Court warned that a “strong presumption in favor of judicial review of administrative action” exists and the INS must overcome “the longstanding rule requiring a clear and unambiguous statement of congressional intent to repeal habeas jurisdiction.” INS v. St. Cyr (Sup.Ct.2001). See § § 2-3.2, 9-4.3 infra.

Federal legislative decisions removing or refusing admission to non-citizens are subject to a very limited scope of judicial scrutiny. Cases sustaining the broad authority of Congress over immigration have relied upon Fiallo v. Bell (Sup.Ct.1977). Thus far, the courts have largely resisted prodding by scholars and litigants to encourage the courts to scrutinize federal power over this subject matter.

Some scholars have argued that the plenary power Congress enjoys is susceptible to abuse, often at the expense of fundamental human rights. These critics argue that Congress§ current plenary power over immigration is an outdated manifestation of repression arising from racism, past wars, and cold war tensions.

§ 2-2.2 Permissible and Impermissible State Regulations

States may not usurp the federal power over immigration. State attempts to regulate concurrently in a field already occupied by a federal statute have been struck down under the doctrine of preemption. In Hines v. Davidowitz (1941), for example, the Court held that the Federal Alien Registration Act preempted Pennsylvania alien registration provisions. Under the preemption doctrine, federal law in a specific area may even preclude consistent state regulations.

The courts will also invalidate state statutes that conflict with federal policy. This ground has been coupled with the Equal Protection Clause to invalidate state discrimination against non-citizens. In the nineteenth and early twentieth centuries, the Supreme Court allowed states to pass laws discriminating against non-citizens. In 1915, however, the case of Truax v. Raich (Sup.Ct.1915) reversed this trend. Truax rested on the dual ground of equal protection and exclusive federal control over immigration. The Court overturned an Arizona statute restricting non-citizen employment. Besides being a denial of equal protection, the statute ran contrary to the implied intent of Congress that non-citizens allowed into the country under federal immigration laws would be free to pursue a livelihood. Similarly, the Court rejected state laws restricting fishing rights of non-citizens denied naturalization in Takahashi v. Fish and Game Comm'n (Sup.Ct.1948), and length of residency requirements for non-citizens seeking welfare in Graham v. Richardson (Sup.Ct.1971). In each of these cases, the Court perceived a conflict between the burdensome state regulation and the decision by federal authorities to grant residency privileges to the affected non-citizens. This approach forced the Court to strike down the state laws because “[t]o permit state legislatures to adopt divergent laws on the subject of citizenship requirements would appear to contravene this explicit constitutional requirement [Art. I, § 8, cl. 4] of uniformity.” Graham v. Richardson (Sup.Ct.1971).

In a somewhat different vein, the Court in Nyquist v. Mauclet (Sup.Ct.1977) invalidated a New York law that made commencing naturalization procedures a prerequisite to receiving financial assistance for higher education. Although the Mauclet case relied heavily on the Equal Protection Clause for its outcome, the Court noted that encouraging naturalization is an illegitimate purpose for discrimination in light of federal dominion over that field. It seems then that even where state statutes do not directly conflict with federal policy covering the same subject, the state statute may still be struck down if it meddles in immigration policy.

The mere existence of the federal immigration power does not, however, automatically preclude state regulations affecting non-citizens. The Supreme Court so held in De Canas v. Bica (Sup.Ct.1976). In De Canas the Court upheld a California statute prohibiting an employer from knowingly employing a non-citizen who is not entitled to lawful residence in the U.S. if such employment would have an adverse effect on lawful resident workers. Writing for the majority, Justice Blackmun stated, "the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional immigration power, whether latent or exercised."

In finding that the Immigration and Nationality Act (INA) did not preempt the California statute, the Court noted that the nature of the subject matter does not compel a conclusion of exclusive federal control. Furthermore, the INA does not show a congressional intent to occupy the field totally. The Court distinguished previous preemption cases in the immigration field on four grounds. First, the California statute did not cover ground specifically addressed by the INA. (Such a federal statute, however, was adopted in 1986.) Second, Congress seemed at that time to authorize concurrent state legislation in the area regulated by the state law. Third, the federal interest is not as predominant in a "situation in which state law is fashioned to remedy local problems, and operates only on local employers and only with respect to individuals whom the federal government has already declared cannot work in this country." Fourth, the previous cases overturned statutes that "imposed burdens on aliens lawfully within the country that created conflicts with various federal laws." De Canas indicates that states may fill gaps in the federal regulatory scheme governing non-citizens so long as the state regulations do not run afoul of federal policy. For example, Georgia’s law restricting issuance of driver’s licenses to “illegal aliens” was upheld because it “mirrored federal objectives and furthered a legitimate state goal.” John Doe No. 1 v. Georgia Dep’t of Pub. Safety (N.D.Ga.2001) (quoting Plyler v. Doe (Sup.Ct.1982)).

Lower courts have also upheld state and local regulation in certain areas such as enforcement of the criminal provisions of federal immigration law. Gonzales v. City of Peoria (9th Cir.1983), overruled on other grounds (standing) by Hodgers-Durgin v. De La Vina (9th Cir.1999). In 1996, Congress passed several provisions allowing state and local agencies to assist in enforcing immigration laws. See § 9-1.1 (d) (3), infra. In United States v. Vasquez-Alvarez (1999), the Tenth Circuit held that 8 U.S.C. § 1252c, authorizing state and local officers to arrest illegal aliens, did not preempt existing state law empowering state and local officers to arrest non-citizens for violations of federal immigration law. Despite these areas of “protected” state law, the Immigration Reform and Control Act of 1986, as well as the Immigration Act of 1990, indicate federal preemption of a far broader range of immigration?related activity, including state laws regulating the employment of non-citizens.

In a related area, the Supreme Court has also upheld state probate laws that incidentally and indirectly affect foreign nationals. Clark v. Allen (Sup.Ct.1947) called into question a state statute that conditioned a nonresident alien's right to inherit property upon the existence of a reciprocal right of U.S. citizens to inherit property in the non-citizen's nation. The statute's opponents claimed it was an incursion into an area of exclusive federal control. The Court labeled that claim "far fetched" and held that such laws are valid unless they conflict with a federal law or statute.

Of course, if states use their probate laws to implement foreign policy, they enter a forbidden field. Hence, in Zschernig v. Miller (Sup.Ct.1968) the Court struck down an Oregon statute requiring non-citizens entitled to inherit property to show that their government would allow the receipt of such property without confiscation. The provision necessarily mandated judicial inquiry into the current status of political rights in foreign countries. Such inquiries are the exclusive responsibility of the federal government. A state may not cross the line between incidental and direct effects on either immigration or foreign policy. See, e.g., Crosby v. Nat’l Foreign Trade Council (Sup.Ct.2000) (holding that federal sanctions and a Burma Executive Order preempted a Massachusetts’ law that limited the purchase goods or services from companies that did business with Burma).

California has similarly attempted to cross the line into immigration and foreign policy. For example, the U.S. District Court for California's Central District held in League of United Latin American Citizens v. Wilson (C.D.Cal.1995) that California's Proposition 187 inappropriately usurped federal authority in purporting to deny primary/secondary education and federally funded benefits to undocumented non-citizens. The court said that federal law preempts Proposition 187's requirement that state agents discover, report, and initiate the removal of non-citizens who are unlawfully present according to state-created criteria. The District Court, however, found that California could limit post-secondary education, state-funded benefits, and even some cooperative state-federal benefits to lawful U.S. residents. Congress eliminated these areas of state regulation left open by the court when it enacted the Personal Responsibility and Work Opportunity Reconciliation Act. The three areas that California could limit were now either preempted or invalid. League of United Latin American Citizens v. Wilson (C.D.Cal.1997).

It is clear that the scope of federal immigration power is not so broad as to preclude all state statutes touching the field. While state statutes may be preempted, the De Canas case holds that the unexercised federal power over immigration is not by itself a bar to state regulations which single out non-citizens. State statutes that do not discriminate against foreign residents should be analyzed under the preemption doctrine to determine if they conflict with congressional intent or govern an area already exclusively covered by federal law.

Somewhat related issues of federalism were raised by Arizona and California in seeking federal reimbursement for state expenditures incurred by reason of the federal government's failure to control immigration. The U.S. Court of Appeals in Arizona v. U.S. (9th Cir.1997) and California v. U.S. (9th Cir.1997) held that the states' claims presented non-justiciable political questions and should be dismissed. The U.S. Supreme Court denied review. The federalism issue also arose in City of New York v. United States (2d Cir.1999) when the City challenged two federal statutes that preempted an executive order prohibiting City officials from voluntarily providing the immigration status of non-citizens to federal authorities. The court held that the federal statutes forbidding the restriction of information to the authorities did not violate the Tenth Amendment because they did not “compel states and local governments to enact or administer any federal regulatory program.”


§ 2-3.1 The Legislature

The plenary and unqualified power of the federal government to regulate immigration, naturalization, and related foreign policy belongs to Congress. The possible international consequences of decisions in this area have made the federal judiciary extremely reluctant to substitute its judgment for the legislature's. Justice Jackson articulated the Court's position in Harisiades v. Shaughnessy (Sup.Ct.1952): "[A]ny policy towards aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." Subsequent decisions echo this sentiment. Since the judiciary poses no obstacle, Congress has been historically free to "exclude aliens altogether or prescribe the terms and conditions upon which they may enter and stay in this country." Lapina v. Williams (Sup.Ct.1914). For example, Congress exercised its plenary authority in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) that facilitated the removal of non-citizens. IIRIRA appears to show that the legislative branch wields the full measure of the federal plenary power over immigration. In light of two 2001 Supreme Court decisions, some scholars have questioned whether the plenary power may have its limits, but in each case the Court recognized the potential for legislative plenary power.

In Nguyen v. INS (Sup.Ct.2001), the Court upheld INA § 309(a)’s distinction between illegitimate children of U.S. citizen fathers and mothers, but rather than a weak rational basis review, the Court applied the same intermediate scrutiny standard it would apply for ordinary gender-based classifications. This appears to be a step toward limiting the plenary power, but the Court noted that it did not need to address the “wide deference accorded to Congress in the exercise of its immigration and naturalization power” because it held that no equal protection violation had occurred. Similarly in Zadvydas v. Davis (Sup.Ct.2001), the Court held that a reasonable time limitation on post-removal detention must be inferred because “a statute permitting indefinite detention would raise a serious constitutional problem.” In reaching this holding, the Court described the legislature’s plenary power as being “subject to important constitutional limitations.” Despite these constitutional problems, the Court stated that had it found clear Congressional intent to grant the Attorney General the power to indefinitely detain non-citizens ordered removed, it would have had to uphold such detention.

§ 2-3.2 The Judiciary

Historically, the Supreme Court has taken a virtual “hands off” approach to immigration law, but it has stopped short of abdicating all responsibility. The Court has reserved a narrow ground for review that is worth examining for hints of a possible future trend of limitation on Congress’s plenary power.

a. Decisions Relating to Exclusion (now "Inadmissibility")

Non-citizens who are outside the national boundaries of the United States have no constitutional rights and as a practical matter have absolutely no basis for challenging their exclusion (now "inadmissibility") from this country. Although the Supreme Court has not quite deemed exclusion cases non?justiciable under the political question doctrine, the extreme degree of deference the Court has given to legislative determinations on this issue makes the ground of review so narrow as to be practically nonexistent. Indeed, earlier cases show a complete "hands off" attitude by the courts. Later cases refer to a narrow ground of review.

Fiallo v. Bell (Sup.Ct.1977) illustrates the Court's ginger approach to exclusion (now "inadmissibility") cases. A federal statute governing immigration preferences made it more difficult for illegitimate children and fathers to be reunited in this country than illegitimate children and mothers. See § 5C2.1, infra. U.S. citizens and resident aliens disadvantaged by the statute challenged it on equal protection grounds. In a footnote, Justice Blackmun, for the majority, explicitly rejected the government's contention that admission of non-citizens is not an appropriate subject for review, "our cases reflect acceptance of limited judicial responsibility under the Constitution even with respect to the power of Congress to regulate the admission and exclusion of aliens...." Having once established the reviewability of this type of case, however, Blackmun applied a standard of review that is, as dissenter Justice Marshall noted, "toothless." The Court acknowledged that the statute discriminates on the basis of sex and that the fathers have no opportunity to prove a close relationship in order to overcome the statutory presumption. Blackmun flatly stated, "[T]he decision nonetheless remains one solely for the responsibility of the Congress and wholly outside the power of this Court to control." After the Court's decision, Congress did resolve the problem raised in this case by providing that illegitimate children can obtain the same immigration benefits from the natural father as from the natural mother "if the father has or had a bona fide parent?child relationship." INA § 101(b)(1)(D).

Federal courts have since reserved a narrow ground of review in a few exclusion (now “inadmissibility”) cases: Hill v. INS (9th Cir.1983) (although the power of Congress is plenary, exclusion of homosexuals is improper without a medical certificate of psychopathic personality, sexual deviation, or mental defect); Allende v. Shultz (1st Cir.1988) (government impermissibly denied visa to widow of former Chilean president invited to speak in U.S. on the basis of general harm to foreign policy created by her presence); Abourezk v. Reagan (D.C.Cir.1986) (when non-citizen is a member of Communist or anarchist organization, government may exclude non-citizen based on projected engagement in activities prejudicial to public interest, only if reason for threat to public interest is independent of membership in proscribed organization); and Harvard Law School Forum v. Shultz (D.Mass. vacated without opinion 1st Cir.1986) (Law School forum entitled to preliminary injunction prohibiting Secretary of State from refusing travel permission to a Palestine Liberation Organization member without a "facially legitimate and bona fide reason" for the INS decision). These court decisions presaged legislative actions in 1990 that removed restrictions on the immigration of homosexuals and eased issuance of nonimmigrant visas to members of the Communist Party and other controversial visitors.

b. Resident Alien Cases

Resident aliens possess recognized constitutional rights. When pitted against the federal power to regulate immigration, however, these rights provide little protection. Deportation proceedings (now "removal proceedings") must observe procedural Due Process. Japanese Immigrant Case (Sup.Ct.1903). The Court does not, however, examine the adequacy of the fair hearing Congress prescribes. Id. Although in early deportation cases the Court refused to recognize substantive Due Process guarantees, recent cases indicate this practice may change. In Galvan v. Press (Sup.Ct.1954) the Court at least looked at the congressional classification making Communists deportable and found "it was not so baseless as to be violative of due process and therefore beyond the power of Congress." Similarly, in Mathews v. Diaz (Sup.Ct.1976) the Court implicitly applied equal protection analysis to a federal statute that discriminated between two classes of non-citizens. The Court upheld the classification as rational. Instead of declaring a harsh provision unconstitutional, the U.S. Court of Appeals for the Second Circuit in Francis v. INS (2d Cir.1976) construed INA § 212(c) very broadly to give relief to non-citizens who had lived in the United States for at least seven years. Despite Congress enacting IIRIRA (the Illegal Immigration Reform and Immigrant Responsibility Act) and repealing the statute that provided this discretionary relief, the case still shows the court’s willingness to recognize non-citizens’ rights. The Supreme Court followed suit in INS v. St. Cyr (Sup.Ct.2001) by declaring that INA § 212(c) relief remains available for non-citizens who entered plea agreements at a time when the relief would have been available. See § 9-3.1(c), infra.

On the heels of St. Cyr, the Supreme Court decided Zadvydas v. Davis (Sup.Ct.2001) and once again hinted at a willingness to recognize substantive Due Process guarantees. The INS ordered Zadvydas deported, but Germany refused to accept him in 1994, the Dominican Republic in 1996, and Lithuania in 1998. Zadvydas challenged his continued detention. By reading the INA in light of the Constitution’s demands, the Court held that the statute implicitly limits post-removal detention to a reasonable length of time and thus avoided constitutional concerns about indefinite detention. The Court narrowed this holding in Demore v. Kim (Sup.Ct.2003). Based on the fact that Zadvydas faced “potentially permanent” detention, while Kim’s detention had a “definite termination point,” the Court rejected a Due Process challenge to the mandatory detention provision and held that Congress may detain Kim and non-citizens such as him “for the brief period necessary for their removal proceedings.” Demore v. Kim (Sup.Ct.2003). Despite this narrowing holding, the Court did not revert back to its “hands off” approach. Congress explicitly stated in INA § 236(e) that the Attorney General’s discretionary judgment “shall not be subject to judicial review,” but the Court cited INS v. St. Cyr (Sup.Ct.2001) and held that this language did not show a “particularly clear” statement that Congress intended to preclude habeas review. For a discussion on judicial review of removal orders, see § 9-4.3, infra. Although these cases provide no direct precedent for questioning the plenary authority of Congress over immigration matters, they do suggest that congressional power in this area may some day fail to support an arbitrary act or classification.

In fact, the Supreme Court has more than once expressed in dicta regret in not being able to afford some measure of protection to resident aliens. For example, in Galvan v. Press (Sup.Ct.1954), Justice Frankfurter remarked:

"[C]onsidering what it means to deport an alien who legally became a part of the American community, and the extent to which, since he is a 'person§ an alien has the same protection for his life, liberty and property under the Due Process Clause as is afforded to a citizen, deportation without permitting the alien to prove that he was unaware of the Communist Party's advocacy of violence strikes one with a sense of harsh incongruity. If due process bars Congress from enactments which shock the sense of fair playCwhich is the essence of due processCone is entitled to ask whether it is not beyond the power of Congress to deport an alien who was duped into joining the Communist Party, particularly when his conduct antedated the enactment of the legislation under which his deportation is sought. And this is because deportation may ... deprive a man 'of all that makes life worth living.§ "

The weight of authority backing the government's plenary power to deport was too great to push aside with the mere invocation of "fair play," however, and the Court held Due Process was satisfied in this case. These judicial rumblings may yet produce results.

Deportation (now "removal") is not a criminal penalty. Therefore, deportation orders cannot be challenged as a violation of the ex post facto clause when past conduct that was not illegal when committed, is the basis for a deportation order (Mahler v. Eby (Sup.Ct.1924); Harisiades v. Shaughnessy (Sup.Ct.1952)). For the same reason denial of bail (Carlson v. Landon (Sup.Ct.1952)), double jeopardy (United States v. RamirezBAguilar (9th Cir.1972)), speedy trial (Argiz v. INS (7th Cir.1983)), and cruel and unusual punishment (Fong Yue Ting v. United States (Sup.Ct.1893)) challenges are of no use. Similarly, IIRIRA’s repeal of § 212(c) discretionary waivers of deportation does not have an impermissible retroactive effect on non-citizens convicted at trial of aggravated felonies prior to the repeal. Rankine v. Reno (2d Cir.2003). The Supreme Court held that the repeal does not apply retroactively for those non-citizens who pleaded guilty since plea agreements involve a quid pro quo between a criminal defendant and the government. INS v. St. Cyr (Sup.Ct.2001). See § 9-3.1(c), infra.

c. Naturalization Cases

The Fourteenth Amendment “contemplates two sources of citizenship, and two only, birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law.” United States v. Wong Kim Ark (Sup.Ct.1898). As with exclusion and deportation (now "inadmissibility" and "removal"), the Supreme Court has accorded great deference to the naturalization guidelines set by Congress. In United States v. Ginsberg (1917) the Court stated, "An alien who seeks political rights as a member of this nation can rightfully obtain them only upon the terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will...." In cases involving classifications in the naturalization process, the Court has given a near absolute presumption of validity to distinctions drawn by Congress. For example, the Supreme Court has twice upheld INA § 309(a) despite the fact that the acquisition of citizen provision “imposes a set of requirements on the children of citizen fathers born abroad and out of wedlock to a non-citizen mother that are not imposed under like circumstances when the citizen parent is the mother.” Nguyen v. INS (Sup.Ct.2001). See also Miller v. Albright (Sup.Ct.1998). These cases applied an intermediate level of scrutiny, but would have “assessed the implications...of wide deference accorded to Congress...[i]f INA § 309(a) did not withstand conventional equal protection scrutiny.” Nguyen v. INS (Sup.Ct.2001).

As discussed above, the legislative branch guides all phases of immigration, including the regulation of foreign residents and naturalization. In most cases the judiciary has refused to second-guess federal legislation, although the courts retain the power of review. See chapter 4, infra.

d. Asylum Cases

The Supreme Court has also deferred to Congress on issues involving asylum. The problem has been reconciling the nation's commitments under the Protocol relating to the Status of Refugees with Congress§ expressions of substantive and procedural rights under the Refugee Act of 1980. In INS v. CardozaBFonseca (Sup.Ct.1987) the Supreme Court used its power of review to determine the standard to be applied in granting asylum. Specifically, the Court held that refugees seeking asylum pursuant to § 208(a) (now § 208(b)) of the INA must show only a "well?founded fear of persecution" in their country of origin, and not a "clear probability" of persecution, as was required for withholding of deportation under § 243(h)(now § 241(b)(3)) of the INA. See § 10-2.3, infra. The Court had earlier decided in INS v. Stevic (Sup.Ct.1984) that the "well?founded fear" standard did not govern § 243(h) (now § 241(b)(3)) applications for withholding of deportation.

In rejecting the "clear probability" test, Justice Stevens made it clear that the Court was within its boundaries. He wrote,

"... courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program.... But our task today is much narrower, and is well within the province of the judiciary. We do not attempt to set forth a detailed description of how the well?founded fear test should be applied. Instead, we merely hold that the Immigration Judge and the BIA were incorrect in holding that the two standards are identical."

Therefore, while generally deferring to Congress, the Court will take an indirect role in shaping immigration policy by ruling on issues of statutory interpretation, including whether INS regulations are consistent with the intent of legislation.

Critics have also charged that persons seeking asylum are victims of discrimination on the basis of their nationality. In particular, persons from El Salvador and Guatemala have alleged that they have not been given fair adjudications of their asylum claims. In a significant settlement, the Department of Justice agreed to re?adjudicate up to 150,000 asylum claims; further, all Salvadorans who had arrived to this country by September 19, 1990, and Guatemalans who had arrived by October 1, 1990, were for a period of time protected from deportation (now "removal") and received work authorization. American Baptist Churches v. Thornburgh (N.D.Cal.1991). It is estimated that as many as half a million people might have been affected by the settlement. Congress extended the protection from removal for certain Salvadorans and Guatemalans in the Nicaraguan Adjustment and Central American Relief Act by allowing them to apply for cancellation or suspension of removal. Similarly, Congress passed the “Haitian Refugee Immigration Fairness Act of 1998,” which prevents the deportation of some 48,000 Haitians who fled persecution in Haiti in the early 1990s.


§ 2-3.3 The Executive

As in other areas of the law, the function of executive agencies in the field of immigration is to enforce the legislation passed by Congress. The structure of the federal executive agencies that administer and enforce the immigration laws is discussed in chapter 3. Once Congress determines which classes of non-citizens will be denied admission or removed, the executive decides who fits within each class. Since the executive has no inherent power over immigration, it must stay within the grant of authority defined by the statute. Any unauthorized executive decisions are illegal and the courts may overturn them. Mahler v. Eby (Sup.Ct.1924).

Congress need not give the agencies detailed direction. The courts have not hesitated to uphold broad delegations of power to the enforcement agency. Jay v. Boyd (Sup.Ct.1956). In general, Congress need only delineate basic policy. Agencies then have relatively free rein in creating procedures to implement, administer, and enforce the immigration laws. Congress may also make the executive decisions final, thereby precluding review by the courts of agency factual findings. IIRIRA, for example, stripped the courts of jurisdiction to review any individual determination which arose from or is related to summary removal under INA § 235(b)(1). INA § 242(a)(2)(A)(i). The courts are also precluded from reviewing any decision by the Attorney General to invoke the summary removal provisions. INA § 242(a)(2)(A)(ii). The application of summary removal to individual non-citizens, including the determination of a non-citizen's credible fear, is also not subject to judicial review. INA § 242(a)(2)(A)(iii). In addition, IIRIRA bars judicial review of procedures and policies adopted by the Attorney General to implement the summary removal provisions of INA § 235(b)(1). INA § 242(a)(2)(A)(iv). Courts have interpreted these limitations on judicial review narrowly. See § 9-4.3, infra.

In 1983, an issue surfaced concerning the division of power between the executive and legislative branches that pertained to deportation procedures. Congress had reserved the power of one house of Congress to veto any individual decision by the INS to suspend deportation (now "cancel removal"). See § 9-3, infra for a discussion of cancellation of removal. The House of Representatives exercised this veto in the case of an East Indian from Kenya who was thus to be deported, and challenged the congressional action as a violation of constitutional separation of powers. The Supreme Court held in the landmark decision of INS v. Chadha (Sup.Ct.1983) that such legislative veto provisions violated the constitutional requirement that, before becoming law, all bills must pass both the House and the Senate, and be presented to and signed by the President.

Finally, Congress may not give the executive the power to impose punishment for crimes. The courts alone may exercise this power and the procedures must comply with the constitutional requirements for all criminal prosecutions. Deportation (now "removal") is not considered criminal punishment, however, even when triggered by illegal acts.