Deferential review v. No constitutional protection
Difference between granting deferential review and finding no constitutional protection
There is a difference between the Court granting deferential review and the Court finding no constitutional protection. In granting review, no matter how deferential, the Court at least recognizes that constitutional rights have been implicated and thus that its judiciary role has been invoked—the Court must determine whether these rights have been violated, balancing the interests of the individuals claiming those rights and the interests of the institution (that is, the Government) limiting them. When constitutional rights are implicated in immigration-related matters, the Court will typically use very deferential review, conceding to the authority and expertise of the political branches in matters “intricately interwoven with foreign relations matters” (Harisiades) as long as they meet some minimal standard like “reasonableness.”
Examples of deferential review
An example of such review was present in Yamataya, where the Court held that aliens who had entered the country, even illegally, were entitled to fundamental principles of due process. The Court, however, declined to specify exactly what due process, and held that as long as the alien has “all opportunity to be heard,” even if she did not know the language or understand the importance of the questions, she had received adequate due process.
Deferential review was also granted in Plasencia. The Court held that a returning LPR was entitled to some due process. However, the Court stated that its role was only to decide whether the procedures met the minimum requirements of due process, rather than impose certain procedures. The Court declined to determine whether the process Plasencia had received was adequate. (Marshall, in his dissent, was much more willing to scrutinize the due process accorded Plasencia.)
Deferential review can also be seen when the Court decides the case based on whether the statute at question was violated, avoiding a determination of whether the statute violates the Constitution. This was evident in Kwong Hai Chew.
Examples of no constitutional protection
This is different than finding no constitutional protections at all, which is what the Court does when it explicitly declines to review a decision of the political branches. The Court appeared to do this in Knauff when it declared, “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” If aliens seeking entry had due process rights, the Court would be required to give at least a cursory glance to the situation, or perform even a superficial balancing test of each side’s interests. (One could argue that the Court did do this to an extent when it declared that the government’s regulations were reasonable in time of war. However, the Court spent so much time completely bowing to the will of the political branches and insisting there exists no vested right of entry that such an argument is tenuous. Also, the Court relies on Fong Yue Ting to say “it is not within the province of any court…to review the determination of the political branch of the Government to exclude a given alien.”) When the Court says the government’s determinations are “conclusive on the judiciary,” as it did in Fong Yue Ting, it is implicitly saying that no constitutional rights are being implicated, because if they were, the Court would be obligated to ensure they were protected.
Deferential review
Less
Jacinto (9th Cir.)—willing to find that IJ has duty to fully and fairly develop the record, that 5th Am full and fair hearing requires an explanation of the hearing’s procedures in which the judge must determine whether the individual understands the procedures and explain what the individual must prove in order to prevail
Zadvydas—in order for detention provision to be constitutional, it must be construed to contain an implicit “reasonable time” limitation on the detention of inadmissible aliens (and also deportable aliens, re: Clark v. Martinez)
Some
Yamataya—there are fundamental principles of due process for an alien who has entered the country, even allegedly illegally, and removal procedures must protect them—as long as gov’t gives alien “all opportunity to be heard,” its actions are constitutional
Plasencia—LPR seeking re-entry has already developed ties in the U.S., and must get due process in accordance to her enhanced constitutional status—court refuses to decide what procedures are required, but uses a three-pronged test (dissent is willing to impose more procedural requirements)
Very, very much (arguably, if even can be considered review at all)
Knauff—says regulations are reasonable in time of war; doesn’t say if they’d be unreasonable in time of peace
No constitutional protection
Chae Chan Ping—Government has the right to exclude aliens from its territory—not a question for the judiciary
Fong Yue Ting—Decisions of the political branches re: immigration are conclusive on the judiciary
Knauff—No vested right of entry (for noncitizen at the border)—this is a matter of privilege; therefore, no rights are implicated
–also applies to deportation: no right of due process to deported aliens (at least, Court isn’t going to challenge political branches procedures)
Mezei—Aliens seeking entry are seeking a privilege, so they only get what due process Congress grants them (re: Knauff); even if that lack of due process gives rise to indefinite detention; power to expel, exclude aliens is fundamental sovereign attribute exercised by political branches and largely immune from judicial control
Refusal to consider
Kwong Hai Chew—Finds violation of deportation procedures of the federal regulation, thereby declining to decide whether const’l due process rights have been violated
Protections for certain categories
1. Noncitizens seeking admissibility (at port of entry and at adjustment)
Knauff—none (at port of entry)
Mezei—none (at port of entry)—not even protections against being indefinitely detained
Clark v. Martinez—some—see Zadvydas substantive and procedural due process
2. LPRs seeking admissibility (at port of entry)
Chae Chan Ping—none
3. Deportation of noncitizens
Knauff—none
Fong Yue Ting—none
Yamataya—fundamental principles of due process (prob. limited by Knauff)
How much—doesn’t have to get a specific judicial procedure, or know the language of the proceeding or understand the importance of the questions
Who gets it—all persons who have entered the country, even allegedly illegally
Jacinto (9th Cir.)—much more
How much—full and fair hearing requires explanation of the hearing’s procedures, including requirement that the judge determine whether the individual understands the procedures and explanation of what the individual must prove in order to prevail—statutory, regulatory safeguards also required a reasonable opportunity to present evidence on her half and a duty on the IJ to fully and fairly develop the record
Who gets it—all who are in the U.S. (?)
4. Deportation of LPRs
(at least as much as noncitizens)
Knauff—none
Fong Yue Ting—none
Kwong Hai Chew—some due process
How much—Regulation required notice of the charge and a hearing before a tribunal—any hearing given must be a fair hearing, before a tribunal which meets at least currently prevailing standards of impartiality—doesn’t decide whether regulation would be const’l if it denied all opportunity for hearing
Harisiades—not substantive due process that would take into account hardship of deportation, even for citizens remaining
Zadvydas—some—see substantive and procedural due process
5. Persons in the U.S.—nonimmigration matters
Yick Wo
Wong Wing
Plyler v. Doe
Specific constitutional claims
Due Process—Who gets it, and how much?
Persons who have entered (even if illegally)—Fundamental principles of due process, re: Yamataya, though prob. limited by Knauff
Persons returning—Depends on the circumstances, but must take into account—interest at stake for the individual, risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or different procedural safeguards, and the interest of the government in using the current procedures rather than additional or different proceedings (Plasencia Court using Mathews v. Eldridge three-pronged test)
Persons who have not entered—Only protection against being indefinitely detained
Equal Protection
Only rational basis in immigration related matters—Narenji v. Civiletti; Dunn v. INS; Hitai v. INS; sometimes Court won’t even recognize an Equal Protection claim—Fiallo v. Bell
But in nonimmigration matters, yes—Yick Wo
Rights of citizens
Due Process liberty rights—
Knauff (Jackson & Frankfurter dissents)—right granted by Congress to soldiers to have these wives as citizens—forcing them to choose between their family and their country
First Amendment rights—
Don’t outweigh government interest in excluding certain individuals—Kleindienst v. Mandel
Location v. Stake
More protections if in the U.S.
Chae Chan Ping was out of the U.S., maybe didn’t matter
Knauff—aliens seeking entry; might be different once in
Fong Yue Ting—Brewer dissent—constitution has no extraterritorial effect, but noncitizens lawfully residing in the U.S. get const’l protections such as due process
Kwong Hai Chew—Court “assimilated” his status to be considered w/in jurisdiction of the U.S., even though he was technically outside its borders—suggests significance of location
Mezei—alien seeking entry—explicitly denied to take into account his wife and home in the U.S., the fact that he had resided there for years
Zadvydas—persons in the U.S. have more const’l protections than aliens outside our borders
Consider noncitizen’s stake
Fong Yue Ting—Fuller dissent—due process necessary when involves “deprivation of that which has been lawfully acquired,” presumably regardless of alien’s present location (would overrule Chae Chan Ping; arguably Knauff?)
Mezei—Black dissent—wife and home in the U.S.
Plasencia—LPR—once an alien gains admission to the U.S. and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly
Questions left open by Knauff-Mezei doctrine
1. Does Knauff-Mezei extend to LPRs seeking re-entry?
The Court talks a lot about how the power to expel or exclude aliens is a fundamental sovereign attribute exercised by political branches and largely immune from judicial control, relying on such unbending cases as Chae Chan Ping and Fong Yue Ting. However, in Mezei, the Court distinguished the current case from Kwong Hai Chew, noting that Kwong Hai Chew was an LPR, who may not captiously be deprived of his constitutional rights to procedural due process. Thus, the Court seems to limit the doctrine only to “aliens on the threshold of initial entry.”
This is confirmed in further cases, such as…
2. Does Knauff-Mezei extend to deportation?
The Court talks a lot about how the power to expel or exclude aliens is a fundamental sovereign attribute exercised by political branches and largely immune from judicial control, relying on such unbending cases as Chae Chan Ping and Fong Yue Ting and implying that the power to deny entry and the power to deport are equal. However, the Court distinguishes Mezei from Yamataya and Kwong Hai Chew, which recognized that aliens who have entered, even illegally, may be expelled only after “proceedings conforming to traditional standards of fairness encompassed in due process of law.” Therefore, the Court seems to limit the severity of the doctrine to excludable aliens, “on the threshold of initial entry.”
This is confirmed in further cases, such as…
3. Does Knauff-Mezei extend past national security issues?
More recent cases have shown a tendency by the Court to grant greater judicial review when an alien is excluded for a reason other than national security.