Deportability
Constitutional Limits on Deportability
Preliminary: Definition of Deportation (INA 237)
Only applies to those who’ve been admitted
Removal Proceedings: Exclusion and Deportation proceedings are all in one proceeding even though in two separate sections of the INA, so have same procedural protections
Consequences: if your case is adjudicated, and you are deported and removed, then:
Can’t come back for 10 years (if deported twice, then 20-yr bar)
Aggravated felons face lifetime bars, unless gov’t consents to readmission
If you attempt to reenter after you’ve been removed, subject to summary removal and criminal punishment
*Different from bars on removed inadmissible people. This is only the regime for people who were lawfully admitted and then removed.*
Vast majority of deportable people: don’t get apprehended and even those that do have many avenues of relief
Application of EP Clause
Generally applies to the states, not the fed. gov’t (saw this in Alienage Law)
Bill of Rights
To the extent that criminal punishments (like hard labor) were involved, S.Ct. has always held that noncitizens do get Bill of Rights protections (Wong Wing), but open Q whether BOR can ever apply to deportation grounds.
But we do know that (1) Congress has the power to deport. (Fong Yue Ting case said this is a logical power that Congress has in its power to exclude, which is a plenary power); and (2) Congress has unlimited authority to determine which classes of people are deportable.
Ex Post Facto Clause
Doesn’t limit grounds for deportation
Bugajewitz v. Adams: Deportation doesn’t amount to punishment and since it’s not criminal punishment, the Ex Post Fact Clause doesn’t limit Congress’ power (Holmes)
Galvan v. Press: reaffirms the holding Bugajewitz
Deported for conduct that wasn’t a ground when he committed it, but later became a ground for deportation
Frankfurter: long-standing rule that Ex Post Facto Clause protection doesn’t apply, but suggests that if there wasn’t precedent the Court had to follow, may find a substantive DP problem
First Amendment
Can something that is normally protected by the First Amend. be a ground for deportation?
Harisades v. Shaughnessy: Court doesn’t answer the question of whether the First Amend would limit Congress power b/c says that the ground for deportation would pass First Amend muster regardless of whether it limits Congress in this area of law (First Amend norms then were very weak)
Murphy, J.’s opinion: First Amend limits the authority of Congress to define the grounds for deportation
The plenary power doctrine is trumped by the Bill of Rights
Constitutional protection should apply across the board; permitting exceptions for something like the plenary power doctrine undermines those Con. Protections
Idea that deportation isn’t punishment is beside the point: doesn’t make sense that the gov’t isn’t permitted to imprison someone for exercising his 1st Amend right but then can deport him on that ground.
Makes fact that Bill of Rights protects non-citizens useless if can be deported for exercising their rights.
Counter to Murphy’s arguments
Non-citizens haven’t yet joined political community so can be excluded in ways that citizens cannot be
Way of distinguishing b/w citizens and non-citizens. If have all the same protections than lose incentives to naturalize and lose the ‘preciousness’ of citizenship
Nat’l sec. concerns: citizenship trumps these concerns and non-citizens don’t have citizenship so wouldn’t trump these concerns. Part of fed.’s foreign affairs power.
If the Court were to be aggressive in policing Congress’ ground of deportability, Congress might fight back by finding broader ways of excluding more people.
Scalia’s contractual argument: person violated the rules of the game. BUT, Congress is then forcing people into an agreement to waive their 1st Amend rights, can Congress do that?
Foreign subjects/non-citizens are protected by intern’l law so don’t need the protection of the Constitution (some high level truth to it, but just a way of glossing over the real issues at stake)
American-Arab Anti-Discrimination Committee case
Grounds for deportation: Terrorism. Claim: Selective Prosecution based on their views.
9th Cir. vacates D.Ct.’s holding that it doesn’t have jurisdiction to review a selective prosecution claim b/c:
The Bill of Rights applies to non-citizens
Aliens in particular are subject to harassment, so valid to interpret the 1st Amend so that their views are tolerated (using 1st Amend to further 14th Amend values)
S.Ct. reverses the 9th Cir. (Scalia)
Selective Prosecution cases are rare: courts limit them in criminal context b/c exec has discretion in deciding on who to charge, so no reason these claims should be made in the deportation context
Deportation isn’t punishment, so less compelling to have these claims here
Even more problematic to allow these claims into the deportation context b/c here the issue isn’t just postponing detention, but extending the violation of the law (staying in the US is illegal).
People drag out the deportation process as a way of stopping it (e.g., getting married to a US citizen in the meantime)
Nat’l Sec. concerns: executive shouldn’t be forced to disclose info. on threats non-citizens pose to explain why they are being deported
Ginsberg on the 1st Amend issue
If the gov’t has violated the Constitution than doesn’t matter if it’s a punishment or something less (deportation) – Redress for violation shouldn’t turn on how severe the consequence of that violation is.
And nevertheless, deportation is punishment
S. Ct. doesn’t rule on the 1st Amend issue so don’t know whether the Bill of Rights can limit grounds for deportation
5th Amendment
Procedural DP protections do apply to procedures used for deportation
But in a case in 2003, the Ct. seems to cast doubt on this std of protection (wrapped up w/ terrorism and post-9/11 thinking)
Statutory Grounds of Deportability (550-64, 567-70, 577-79, 581-82) INA § 237
Immigration Control (INA 237(a)(1))
Immigration Control ground of deportability: applies the inadmissibility grounds to certain aliens found in the US even though they passed through inspections
INA 237(a)(1)(A): inadmissible at the time of entry, then deportable (taking the inadmissibility provisions and putting them in the deportation grounds as well)
Purpose of this provision: Congress is covering their bases, so that people who slip through inspection can still be removed (e.g., anyone who come in through fraud is basically in the same position as anyone who came in here w/o passing through inspection – so is like ‘delayed exclusion’)
Difference b/w this and exclusion: waiver for removal is easier to establish here than in exclusion
Ordinarily an LPR who leaves and then comes back, under 101(a)(13)(C) is not considered to be seeking admission unless,
LPR has engaged in illegal activity such that when she comes back she’ll be treated as if she’s seeking admission and will be subject to grounds of admissibility
237(a)(1)(E): smuggling makes you deportable
237(a)(1)(A): pushes you over to the inadmissibility grounds
(In the case of A, Problem 1, p. 553: the one that applies to A is the provision that deems inadmissible people who have aided others in entering illegally – 212(a)(6)(E) – only if she knew what B was doing (coming in illegally) b/c the inadmissibility ground requires knowledge)
Difference b/w 237(a)(1)(E) and 212(a)(6)(E): the first refers to a period of time and the second just refers to anyone Example of where inadmissibility ground is harder to get around than deportation ground
Moral Turpitude (INA 237(a)(2)(i))
Any alien who is convicted of a crime of moral turpitude committed w/I 5 yrs after admission or 10 yrs if LPR and the sentence for the crime can be 1yr or longer is deportable
What constitutes moral turpitude depends on if there is evil intent.
Upheld in the face of a ‘void for vagueness’ challenge – Does it invite courts to legislate about decency?
Aggravated Felony (INA 237(a)(2)(iii))
Alien who is convicted of an aggravated felony at any time after admission is deportable
Def. of ‘aggravated felony’ at 101(a)(43)
Matter of KVD
BIA rule that you can’t be deported for a state felony that wouldn’t be federal
But fed. courts didn’t agree “Non-uniformity”
Problem 1, p. 553: A (LPR) goes to Canada, picks up B, returns. Later discovered B had fake green card. Removal.
B: § 237(a)(1)(A): any alien who at time of entry was inadmissible is deportable.
§ 237(a)(1)(H): Discretionary waiver for those w/immediate relatives.
A: § 101(a)(13)(C): LPR not seeking admission unless: illegal activity while gone; >180 days; abandoned status…
§237(a)(1)(E): Smuggling deportation ground. Applies if you do it w/in 5 yrs of any entry (including B’s??).
Must prove knowledge: if A didn’t know B was illegal, not guilty.
If she’s “entering” (doesn’t seem to be – see above), inadmissibility grounds (+237(a)(1)(A)) applies: