This Petition was filed in the District Courts in Washington D.C., Miami, Florida, San Francisco, California, Los Angeles, Caliifornia, Hartford , Connecticut, Chicago illinois, Manhattan New York, and New Jersey in 2009. The ICe ageAgency decided to release the person rather than litigate the issue.
UNITED STATES DISTRICT COURTS
IN AND FOR THE DISTRICT OF WESTERN WASHINGTON
|
Petitioner,
V
Eric H. Holder, Jr. Attorney General of the United
|
)
)
)
)
)
)
)
|
Case No
PETITION FOR HABEAS CORPUS
“GIVE ME LIBERTY OR GIVE ME DEATH”
|
As a first matter, the Petitioner urges that he is indigent and would require either donations from the public to gain a counsel to help him in this matter, or the help of some Legal Agency that will help him in this matter. Petitioner is aware that these documents are accessed by Legal Firms and by the public and would ask that help be given.
These are the words from the Statue of Liberty, which provides that even if the Petitioner were an alien, he would or should be entitled to more than he has received from the process set forth by Congress:
“Not like the brazen giant of Greek fame,
with conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand a mighty woman with a torch,
whose flame is the imprisoned lightning,
and her name Mother of Exiles.
From her beacon-hand Glows world-wide welcome;
her mild eyes command The air-bridged harbor that twin cities frame,
"Keep, ancient lands, your storied pomp!" cries she with silent lips.
"Give me your tired, your poor, Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore,
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!" Emma Lazarus.”
Not only has the United States failed to live up to that promise, it has gotten so that the laws regarding immigration is a hodgepodge of discriminatory, prejudicial and predatory special interest legislation that serves many communities but does a disservice to families and to the Country at large; laws that, as a whole, are so confusing that only a trained legal mind can accurately navigate them.
This is a system where the Supreme Court previously has held that the removal of a man would may tear an alien from his home and family and may deprive him of "all that makes life worth living." Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S. Ct. 492, 66 L. Ed. 938 (1922).
Petitioner is housed in a facility operated by Geo Group Inc., the same Corporation that operates the Guantanamo Bay Facility in Cuba. Petitioner is not a terrorist, has never been convicted of any violent or serious crime. He has been held in what is a Level IV Prison setting by Geo Group Inc., for Immigration and Custom Enforcement Agency because the Petitioner refuses to relinquish his American Citizenship, or state to the contrary of that citizenship.
Because he is held in custody, with no definite date upon which he will be released, and because he is a citizen of the United States being held illegally by ICE, the Petitioner believes that he has rights that supersede the rights of the Agency to hold him, not because he is a citizen, but because he is being held only for punishment purposes and this punishment is such that it leads the Petitioner to seek relief in the form of this Petition. Petitioner has been punished since his arrival at the Northwest Detention Center in Tacoma by a private corporation and such punishment has risen to the quality of mental torture.
The Petitioner believes the court take his situation into consideration and make a determination of whether the Petitioner, in fact, under the Constitution of the United States, has the right to die rather than be continued in confinement. In sum, the request here is that the Court make a determination on whether the Petitioner has a right to ask that he be put to death by the State, rather than be continued in indefinite detention.
The Petitioner hereby petitions the Court to order that he be allowed to opt for death rather than this confinement of torture.
Petitioner has been in custody for almost four years and there is no end in sight. Thus, the Petitioner has a right to live free or die brave and he opts to have the Court determine his right to die rather than remain incarcerated like an animal, treated like a prisoner when he is not being punished for commission of a crime, and being injured in ways that result in mental torture. It is the Petitioner’s assertion that he has a right to live and a right to die. Moreover, he has a right to live in dignity where that dignity is not violated by the State.
Freedom is the cornerstone of America's foundation. The colonial revolutionaries sacrificed life and limb for the sake of freedom. No one said it more eloquently than Patrick Henry when he stated,
“Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me: Give me liberty, or give me death! “Patrick Henry, Liberty or Death, Richmond, ?Va., (Mar. 23, 1775).
I hereby demand that I be given liberty or be given death, an immediate and swift though painless death. There is a dignity in death that is not allowed a person who lives a life in captivity.
In this missive, I shall discuss the reasons for my choice. I first make the Declaration that I am fit and able as a human being and that I am in current control of all my senses. My call for execution is made not out of desperation, ignorance, arrogance, or feelings of futility. It is called for because I wish to restore the dignity I am, as a human, endowed with by my creator. Such dignity has become usurped by the Agency that holds me, and has allowed me to be tortured by a private company, Geo Group Inc., a torture I can no longer endure. It is a torture made ever so real by the actions of Tom Giles, the Head of the Northwest Detention Center in Tacoma where he has taken actions directly against me and my ability to reach the Courts, to reach the representatives of my fine country, to associate with fellow detainees to present petitions to the Court and to develop defenses and arguments against my confinement.
I am currently held by forces that discriminate against me because I am an Alternative Lifestyle and because I am Black.
From the time of my arrival at the Northwest Detention Center in Tacoma, I have been discriminated against because I am Gay and, on occasion, I have been discriminated against because I am Black.
My “Homosexuality is as deeply ingrained as heterosexuality. . . . Exclusive homosexuality probably is so deeply ingrained that one should not attempt or expect to change it. Rather, it would probably make far more sense simply to recognize it as a basic component of a person's core identity. “Gay Rights Coalition of Georgetown Univ. Law Ctr., 536 A.2d at 34-35 (quoting A. Bell, M. Weinberg & S. Hammersmith, Sexual Preference - Its Development in Men and Women 190, 211 (1981)). Thus, the Petitioner has a legitimate right to dignity to be afforded by the State, the Federal Government, or Agencies that the Federal Government holds and the Contractors that those Agencies do business with.
Just as poignant to the Petitioner’s Gayness is his Blackness. In his Blackness, he has a right to dignity. He has a right to freedom absent the commission of crime. He has a right to be treated with similarity to those of other ethnic descents and he has a right to due process by the law and under the law, all rights which he has been denied by ICE’s Tom Giles and Geo. It must be pointed out that for the past four years the Petitioner had been content to remain in this custody and fight his way through the Courts to gain his freedom, but he is unable to do so anymore since Tom Giles has ordered a severe reduction in library access to the Petitioner where the Petitioner receives only about four and a half hours of library time each week in comparison to thirty or more hours a week to others who do not even have deadlines as the Petitioner has. Tom Giles has made the Petitioner’s life a living hell and he has sought to force the Petitioner to accept an alien citizenship by stating, “You can get what you need by going toTrinidad.” This is not acceptable and the Petitioner would rather cede his life than to continue this illegal confinement where he is tortured by Tom Giles.
He has a right to dignity. Petitioner has been denied that dignity. He has been tortured by the forces that hold him.
THESE ARE THE REASONS THE PETITIONER BRINGS HIS PETITION
As a first matter, the Court cannot reach the citizenship of the Petitioner because the Circuit Courts, under INA 1252 (b) (5) has sole jurisdiction over the Petitioner’s citizenship. Nonetheless, the statements made are made because it is necessary for a full understanding of the facts of this case. The Petitioner does not seek that the Court find his citizenship in this case. Only whether the court has the jurisdiction to allow the choice of the Petitioner.
The Petitioner is in the precarious position of having completely exhausted the District Courts wherein he has been active in filing petitions. The Supreme Court has issued an order that it will hear no matter that the fees is not paid for. Petitioner is indigent, has no money, no resources, no family who would extend resources, and so cannot pay the Court fees.
The District Court has issued an order that the Petitioner shall not bring any civil actions unless he is threatened with death or imminent harm and danger. The State Courts ofCalifornia has issued an order that the Petitioner must pay for the filing of any matter brought.
This means that the Petitioner does not have the usual outlets for the consideration of his citizenship. The Ninth Circuit issued an order refusing to hold a hearing on the citizenship of the Petitioner despite the fact that the Petitioner has sent ten or more petitions to that Court. Each one is returned with the statement, “Because the issues are so insubstantial, the petition shall not be allowed to continue.” The Petitioner wonders when is a person’s citizenship insubstantial?
The District Courts have issued orders that they are not permitted to rule on the citizenship of the Petitioner because 8 USC 1252 (b) (5) states that the Circuit Courts alone has the jurisdiction to hear citizenship matters. Even in setting those orders, the District Courts, without a hearing on the citizenship of the Petitioner, have adopted the nonsense spewed by the Government Attorneys where the Government Attorneys state that the Petitioner is a citizen and native of Trinidad who illegally reentered the country after removal. This is a complete fabrication without evidence to support it, yet the District Courts have adopted that statement in their non-binding orders on the citizenship of the Petitioner. For instance, the District Court has stated that the fingerprint of the petitioner, taken as he is sent to Trinidad in 1993 is supportive of the fact that the Petitioner is a citizen of Trinidad. However, there is no evidence that the print taken in 1993 matches any print taken prior to that event. There are no fingerprints taken of Rudder when he arrived in 1974 to the United States and the Agency has no evidence whatsoever of the fingerprints of Rudder. There is even evidence in he record of where the Petitioner is in a California Prison while Rudder is in custody with the INS for a short while. Therefore, there is evidence of two distinct persons, one of whom is Rudder and one of whom is not. To remove a person the evidence must be “Clear and Convincing”, this evidence is unclear and is unconvincing.
In a perfect world, with usual cases, the Agency would approach the Embassy of the Country from which they believe the person was born, and gain a travel document for the person to be sent to that country. What has happened in this case is the fact that the Petitioner was sent to Trinidad in 1993 by the Agency, and returned to the United States by the Government of Trinidad and by the United States Embassy in Trinidad both of whom conducted investigations and determined that the Petitioner was not Wayne Rudder, but was instead a citizen of the United States who had used the Rudder identity at one time.
In 2005 the Immigration and Custom Enforcement Agency came into contact with the Petitioner and decided to attempt to remove the Petitioner. The Petitioner underwent an administrative process where he was given a hearing by the Immigration Judge. This hearing took into consideration the fact that there was a previous hearing in 1993, and that the order had been to deport the Petitioner to Trinidad. The Government’s evidence was that the Petitioner’s fingerprint was taken when he was sent to Trinidad and that means that the Petitioner is Wayne Rudder. Petitioner’s evidence was that a fingerprint taken when the Petitioner is being sent to Trinidad is insufficient as evidence to establish identity. To establish identity, there must a fingerprint taken of Wayne Rudder when Wayne Rudder entered theUnited States in 1974 to compare with the print taken in 1993.
Petitioner put on evidence from experts of the California Forensic Laboratory of the California Department of Justice and their testimony was that the fingerprint taken in 1993 could not form the basis of identity without having a print from 1974 to compare it with. In fact, the Petitioner issued a subpoena to a person named Darryl Yates in California. This person appeared under the subpoena and testified that his name was Vincent Daniel Hooper. He maintained that his father’s name was also Hooper until he was corrected by the government attorney. Hooper is the name that the Petitioner used to gain welfare benefits in 1974 and Yates could not have known that the Petitioner’s name, a name which Yates has continued using, is actually Hopper, not Hooper.
The Immigration Judge ordered removal of the Petitioner. On Appeal to the BIA the Petitioner asserted that his Constitutional rights were violated in that he, as a citizen of theUnited States, is entitled to counsel whenever his rights are at stake. He claimed that the statutory ban on government sponsored counsel to persons undergoing immigration hearings to be unconstitutional. In essence, the Petitioner stated that when a person held as an alien claims to be a citizen, counsel is automatically warranted and should be appointed by the Court, or the matter should be transferred to the District Court where a constitutional hearing would be held.
Petitioner also complained about various actions and inactions by the ICE Agency and by the United States Citizen and Immigrant Services Agency. Petitioner protested that he is a citizen and he also provided a certified copy of his birth certificate showing that he was born in the United States, in California.
Because the Petitioner had been filing numerous matters to the Ninth Circuit, the Ninth Circuit entered a pre-filing order that no civil matter would continue without the payment of fees, and that there would be a review of any petition brought prior to allowing the matter to continue. Thus, the Ninth Circuit failed to hold a hearing on the citizenship of the Petitioner, even though such has been requested over ten times, and is actually mandated by law, 8 USC 1252 (b) (5).
As stated, the District Courts cannot entertain such a hearing either because jurisdiction is solely with the Ninth Circuit.
Nonetheless, ICE then had six months from the date of the Ninth Circuit’s ruling on June 25, 2007 to effectuate the removal of the Petitioner to Trinidad. ICE has failed to gain the documents that are necessary to allow for such a removal.
When the Petitioner moved to the District Court to seek that the Court order his release, ICE countered by stating that the Petitioner had interfered with ICE’s ability to remove him by failing to acknowledge the citizenship from Trinidad, and by threatening to sue the Trinidad Government if they provided a travel document to ICE.
The District Court accepted the perjured statements of the ICE Officials, Tom Giles and A. Neil Clark and denied the petition. Another petition is pending in that court currently. However, the Petitioner feels that it is all irrelevant because he is being tortured and he must gain some relief from this torture. Petitioner acknowledges the fact that there are laws in place and those laws must be followed, whether the law is ultimately fair or not. He understands that the Court has the jurisdiction to issue the orders it did and given the information from ICE the Court acted as it was necessary. Where the Petitioner believes that his rights are violated is that ICE has deliberately lied to the Court on numerous occasions and those lies deny due process and contribute to an environment of mental torture, And this torture comes at the hands of unconstitutional actions by Congress where Congress has enacted laws that are unconstitutional in that Congress does not have the authority under the Constitution to enact those laws.
CONGRESS HAS ABUSED ITS AUTHORITY IN PASSING THESE LAWS RELATING TO DEPORTATION AND REMOVAL OF PERSONS BECAUSE CONGRESS DOES NOT HAVE THAT POWER IN THE CONSTITUTION
The U.S. Constitution fails to contain any direct recognition of the power to deport or remove an alien. But in evaluating a comparable silence in relation to the power to prohibit entries, the courts declared that this was a power inherent in sovereignty, essential for the national safety and identified with the conduct of foreign affairs. A similar pronouncement long ago characterized the power to deport as likewise inherent in national sovereignty and resting on an identical constitutional base as the power to bar entry. Mahler v. Eby, 264 U.S. 32, 39 (1924) (``The right to expel aliens is a sovereign power, necessary to the safety of the country, and only limited by treaty obligations in respect thereto entered into with other governments'') (citation omitted); Fong Yue Ting v. United States, 149 U.S. 698 (1893) ; Hernandez v. Cremer, 913 F.2d 230, 236, 8 Immigr. Rep. A2-259 (5th Cir. 1990) (plenary authority to make rules for admission and exclusion of aliens ``inherent concomitant of national sovereignty'').
Some commentators have suggested that there should be a distinction between ejecting aliens who have entered improperly and those who have been permitted to enter and have established deep roots here during long periods of residence. (see President's Comm'n on Immigration and Naturalization, Whom We Shall Welcome 194 (1953); Louis Boudin, The Settler Within Our Gates, 26 N.Y.U. L. Rev. 266 (1951) ; Siegfried Hesse, The Constitutional Status of the Lawfully Admitted Permanent Resident Alien, 68 Yale L.J. 1578, 69 Yale L.J. 261 (1959); Will Maslow, Recasting Our Deportation Law, 56 Colum. L. Rev. 309, 323 (1956) ; Note, Resident Aliens and Due Process, 8 Villanova L. Rev. 566 (1963) ; Note, Immigration and Nationality, 66 Harv. L. Rev. 643, 681 (1953) . But neither the courts nor Congress have recognized such a distinction. Indeed, repeated reexaminations of the question by the Supreme Court have resulted in reaffirmations of the power of Congress to legislate in this area. The Court has described the authority of Congress to prescribe grounds for expelling resident aliens as ``plenary,'' (Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) ; Scales v. United States, 367 U.S. 203, 222 (1961) ; Flemming v. Nestor, 363 U.S. 603 (1960) ; Carlson v. Landon,342 U.S. 524 (1952) ; McJunkin v. INS, 579 F.2d 533, 536 (9th Cir. 1978) (in affirming the BIA's dismissal of alien's appeal and upholding deportation order on grounds of alien's drug addiction under former INA 241(a)(11), the court stated that ``Congress possesses plenary power over immigration and may impose conditions upon the privilege of remaining in this country which could not be imposed upon citizens'') (citation omitted). .and has asserted that the resident alien's stay in this country ``is a matter of permission and tolerance. The Government's power to terminate its hospitality has been asserted by this Court since the question first arose.'' Harisiades v. Shaughnessy, 342 U.S. 580,586-87 (1952) ; MacKay v. Turner, 283 F.2d 728 (9th Cir. 1960) (rejecting argument that Congress lacks power to deport resident aliens); Petition of Yin, 167 F. Supp. 828 (S.D.N.Y. 1958) .
Controlling aliens is a function of the federal government. Indeed, federal concern in this area often is so vital that it regularly excludes any action by the states. For example, the Supreme Court proscribed as unconstitutional a Pennsylvania statute that sought to require registration of aliens at a time when a general federal alien registration statute existed. (Hines v. Davidowitz, 312 U.S. 52 (1941) .See also Zschernig v. Miller, 389 U.S. 429 (1968) (state could not deny inheritance to aliens on basis of reciprocal treatment of Americans); Kolovrat v. Oregon, 366 U.S. 187 (1961) (state could not preclude right of inheritance to aliens guaranteed by treaty); Yuen v. INS, 406 F.2d 499, 501 (9th Cir. 1969) , citing the Treatise (governor's pardon of narcotics offender ineffectual to prevent deportation, since federal statute declined to accept such pardon as expunging deportability); Hudson v. Esperdy, 290 F.2d 879 (2d Cir. 1961) ( 10th Amendment's reservation of power to states inapplicable); Rojas v. State of Md., 450 A.2d 490 (Md. 1982) (invalidated, as impermissible intrusion into federal domain, state criminal sentence conditioned upon the alien defendant's surrender of residence status, departure from United States, and agreement not to oppose deportation proceedings and that he will never return to the United States). ) The Court has also struck down, as an intrusion in an area of exclusive federal concern, state statutes restricting the eligibility of aliens for welfare benefits, (Graham v. Richardson, 403 U.S. 365 (1971)prohibiting children of undocumented aliens from free public education, ( Plyler v. Doe, 457 U.S. 202 (1982) . and banning fishing licenses to any person not eligible for citizenship. ( Takahashi v. Fish and Game Comm'n, 334 U.S. 410 (1948) . )
Similarly, one court invalidated a statute of the Virgin Islands restricting employment of aliens admitted as H-2 nonimmigrants, holding that it impaired employment authorized by federal law. (Rogers v. Larson, 563 F.2d 617 (3d Cir. 1977) (distinguishing De Canas v. Bica, 424 U.S. 351, 96 S. Ct. 933, 47 L. Ed. 2d 43 (1976)) . ) And the Supreme Court struck down a Maryland statute charging out-of-state tuition to the children of G-4 international organization nonimmigrants, finding that statute a discriminatory impairment of rights granted by Congress in the exercise of its preeminent authority over aliens in theUnited States. . Toll v. Moreno, 458 U.S. 1 (1982) .
On the other hand, and somewhat paradoxically, the Supreme Court found no constitutional infirmity in a state statute penalizing those who knowingly employed illegal aliens. ( De Canas v. Bica, 424 U.S. 351 (1976) . Cf. NLRB v. Apollo Tire Co., 604 F.2d 1180 (9th Cir. 1979) For a general discussion of preemption, see Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 111 S. Ct. 2476, 115 L. Ed. 2d 532 (1991) . ) That decision may have stemmed in part from the fact that no federal employer sanctions for employing unauthorized aliens existed at the time.
Recent legislation has granted some immigration authority to states. For example, a 1996 welfare reform law gives states the option to bar certain immigrants from receiving benefits that are partially or wholly funded at the state or local level. (Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 412(a), 110 Stat. 2105, 2269. See generallyEvangeline G. Abriel,Rethinking Preemption for Purposes of Aliens and Public Benefits, 42 UCLA L. Rev. 1597 (1995) ; Stephen H. Legomsky, Immigration, Federalism and the Welfare States, 42 UCLA L. Rev. 1450, 1460 (1995) . )
Similarly, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) permits states to prohibit alien eligibility for state-funded general cash assistance programs..( Enacted as Division C of Pub. L. No. 104-208, 553, 110 Stat. 3009. Another provision of the IIRAIRA allows state officials to carry out immigration functions, if agreed to by the Attorney General. ). IIRAIRA 133.
[2]Delegation of Legislative Authority
In some respects the grounds of deportability speak in the most generalized terms. Consequently, there have been some efforts to denounce them as improperly delegating legislative authority. But such efforts have been fruitless and the courts have found that the legislative command was articulated with sufficient clarity and definiteness. Thus, the courts have endorsed deportation for ``crimes involving moral turpitude,'' (Jordan v. De George, 341 U.S. 223 (1951) . ) denial of bail ``in the discretion of the Attorney General,'' (Carlson v. Landon, 342 U.S. 524 (1952) . )withholding of deportation when, ``in the opinion of the Attorney General,'' physical persecution would result, (Obrenovic v. Pilliod, 282 F.2d 874 (7th Cir. 1960) . ) and deportation of certain aliens found to be ``undesirable residents of the United States.'' (Mahler v. Eby, 264 U.S. 32 (1924) . See also United States ex rel .Knauff v. Shaughnessy, 338 U.S.537 (1950) ; Hirabayashi v. United States, 320 U.S. 81 (1943) . Cf. Massieu v. Reno, 915 F. Supp. 681,16 Immigr. Rep. A3-31 (D.N.J. 1996) (holding former INA 241(a)(4)(c)(i), which allows the Secretary of State to deport any alien because that person's mere presence may adversely impact U.S. foreign policy, unconstitutional as void for vagueness), rev'd on other grounds, 91 F.3d 416 (3d Cir. 1996) ; on remand, Matter of Ruiz-Massieu, 22 I. & N. Dec. 833, 20 Immigr. Rep. B1-177 (BIA 1999) (letter from Secretary of State conveying determination that the alien's presence would have potentially serious adverse foreign policy consequences is presumptive and sufficient evidence that alien is deportable underINA 241(a)(4)(C)(i)). ) And the award of suspension of deportation to aliens who met prescribed qualifications was deemed properly within the ``unfettered discretion'' of the Attorney General. (Jay v. Boyd, 351 U.S. 345 (1956) .) Importantly, there just is no support in the Constitution for any of the decisions by the Courts granting such a power to Congress. These Court decisions have tended to cement the idea that Congress actually has this power, which it does not as the Argument that follows clearly shows.
[3]Limits of Legislative Power
[a]In General
Repeated judicial endorsements have erased any doubts that Congress has the power to legislate the expulsion of resident aliens. The most searching challenges have evolved, however, in probing the limits of this power.
From the earliest cases, the courts always have described in the most expansive terms the power of Congress to prescribe grounds for deportation. When the occasion arose the courts have characterized this power as absolute and unqualified ( Fong Yue Ting v. United States, 149 U.S. 698, 707 (1893) .) and plenary. ( Carlson v. Landon, 342 U.S. 524, 534, 72 S. Ct. 525, 96 L. Ed. 547 (1952) ; McJunkin v. INS, 579 F.2d 533, 536 (9th Cir. 1978) . Cf. INS v. Chadha, 462 U.S. 919, 941, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983) (invalidating legislative veto of suspension of deportation; ``The plenary power of Congress over aliens ... is not open to question, but what is challenged here is whether Congress has chosen a constitutionally permissible means of implementing that power.''); Cabasug v. INS, 837 F.2d 880, 886, 10Immigr. Rep. A2-304 (9th Cir. 1988) (deportation for possession of sawed-off shotgun; Congress has ``almost plenary'' authority); Adams v. Howerton, 673 F.2d 1036, 1041 (9th Cir. 1982) (in upholding statute construed to deny immigration benefits to homosexual marriages, the court described Congress' immigration power as ``almost plenary'').)
The courts have declared that the determinations of Congress in this area are political in nature and not generally subject to judicial scrutiny. ( Fong Yue Ting v. United States; Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952) . See Haig v. Agee, 453 U.S. 280, 292 (1981) (revocation of passport; ``Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.''). )
Therefore all attempts to question the validity of legislative edicts have been repulsed by the Courts who gain their very own powers from the Congress. Indeed, in one early case the Supreme Court exclaimed, ``over no conceivable subject is the legislative power of Congress more complete.'' ( Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 320, 339 (1909) . See also Sale v. Haitian Centers Council, 509U.S. 155, 207 ; Adams v. Baker, 909 F.2d 643, 11 Immigr. Rep. A2-291 (1st Cir. 1990) (affirming district court grant of summary judgment in favor of government denying Republic of Ireland citizen and IRA member entry into the United States to conduct a speaking tour. In reaching its decision, the appeals court recognized that ``[n]owhere is the scope of judicial inquiry more limited than in the area of immigration legislation.''); Azizi v. Thornburgh, 908 F.2d 1130, 8 Immigr. Rep. A2-1 (2d Cir. 1990) (the court recognized Congress' ``plenary authority'' and courts' ``limited'' review of immigration legislation in holding that two-year residency requirement, imposed by Section 5 of Marriage Fraud Amendments of 1986 on an alien spouse who marries a U.S. citizen during the pendency of a deportation or exclusion proceeding, did not violate alien's equal protection or due process rights). )
Under the authorities to date it could be and has been asserted that there are no limits to the power of Congress to fashion causes for expelling resident aliens. Certainly no decision of the Supreme Court can be cited as directly supporting any limitations. But the importance of the interests involved has generated persistent efforts to question the assumption that Congressional pronouncements in this area are unassailable. Although every attack thus far has failed, the tenor of Supreme Court expressions has revealed a marked reluctance to endorse a doctrine of limitless power. ( E.g., Rowoldt v. Perfetto, 355 U.S. 115 (1957) ; Galvan v. Press, 347 U.S. 522 (1954) ; Harisiades v. Shaughnessy, Cf. Fiallo v. Bell,430 U.S. 787 (1977) , (while Congress has ``exceptionally broad power'' to define classes of admissible aliens, the exercise of such power may be subject to ``limited judicial review'' in extreme case, at the behest of appropriate party); Hampton v. Wong, 426 U.S. 88 (1976) (exclusion of aliens from federal civil service; despite ``paramount federal power over immigration and naturalization,'' broad discrimination justifies ``some judicial scrutiny of the deprivation'' even though due process applicability is limited);Mathews v. Diaz, 426 U.S. 67 (1976) (limitation of welfare benefits to aliens with five years lawful residence; decisions of political branch of government ``dictate a narrow standard of review of decisions made by Congress or the President in the area of immigration and naturalization''); Kleindienst v. Mandel,408 U.S. 753 (1972) (citing and apparently endorsing the early cases, without distinguishing between exclusion and expulsion); Newton v. INS, 736 F.2d 336, 339, 1 Immigr. Rep. A2-151 (6th Cir. 1984)(``Congressional power to draw lines with respect to what classes of aliens will be admitted to the United States, and the conditions of such admissions, is subject only to limited judicial review. Moreover, the exercise of such power, if predicated on a rational basis, may distinguish between classes of aliens, and confer benefits on one or more classes not available to others.'') (citing Fialloand Diaz); Adams v. Howerton, 673 F.2d 1036, 1043 (9th Cir. 1981) (after reviewing recent decisions, court described power of Congress as ``almost plenary'' and ``subject to only limited judicial review,'' but found it unnecessary ``to delineate the exact outer boundaries of this limited judicial review''; court upheld validity of statute denying immigration benefits to homosexual marriage). )
Many commentators have disputed the assumptions underlying the traditional concept of absolute power. ( Henry Hart, The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1389-96 (1953) ; Siegfried Hesse, The Constitutional Status of the Lawfully Admitted Permanent Resident Alien, 68 Yale L.J. 1578, 69 Yale L.J. 261 (1959) (a comprehensive analysis and criticism of Supreme Court decisions); Stephen Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255 ; Will Maslow,Recasting Our Deportation Law, 59 Colum. L. Rev. 309 (1956) ; Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (Dec. 1990) ; Peter Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1 (1984) ; CompareGabriel J. Chin, Is There a Plenary Power Doctrine? A Tentative Apology and Prediction for Our Strange but Unexceptional Constitutional Immigration Law, 14 Geo. Immigr. L.J. 257, 257 (2000) (critiquing the plenary power doctrine by suggesting that the Court's treatment of substantive immigration classifications does not differ from its treatment of the same classifications domestically).)
And the soul-searching doubts displayed by the Supreme Court have encouraged continued jousts by litigants questioning weak points in the protective armor of precedent. Consequently, it is not difficult to envision possible situations in which the courts might find that a legislative mandate conflicts with some safeguard of the Constitution. Although some lower courts have declared various deportation provisions unconstitutional, the decisions generally have been reversed,(. E.g., Massieu v. Reno, 915 F. Supp. 681,699-700, 16 Immigr. Rep. A3-31 (D.N.J. 1996) (holding former INA 241(a)(4)(c)(i), allowing the deportation of any alien whom the Secretary of State deems to have ``potentially serious adverse foreign policy consequences,'' unconstitutional as void for vagueness), rev'd on other grounds, 91 F.3d 416 (3d Cir. 1996) (failure to exhaust administrative remedies); American-Arab Anti-Discrimination Committee v. Meese, 714 F. Supp. 1060, 11 Immigr. Rep. A3-101 (C.D. Cal 1989) (holding unconstitutional parts of former INA 241(a), 8 U.S.C. 1251(a) , that imposed mandatory deportation for various types of ``subversive speech''), rev'd, 970 F.2d 501 (9th Cir. 1992) (unripe for review), on remand, American-Arab Anti-Discrimination Committee v. Reno, 883 F. Supp. 1365, 14 Immigr. Rep. A3-119 (C.D. Cal. 1995) (unripe). For the one constitutional challenge that has not been reversed, see Rafeedie v. INS, 795 F. Supp. 13, 27, 11 Immigr. Rep. A3-269 (D.D.C. 1992) (permanent resident alien is ``entitled to the same First Amendment protections as United States citizens, including the limitations imposed by the overbreadth and the vagueness doctrines'').)and the Supreme Court thus far has not delineated any situation in which Congress has exceeded its authority in enacting a deportation statute.
Meanwhile, assaults on the constitutionality of various phases of the deportation statute have continued. (.Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir. 1962) , aff'd on other grounds, 374 U.S. 449 (1963) (exclusion of sexual deviates for psychopathic personality); Massieu v. Reno, 915 F. Supp. 681, 16 Immigr. Rep. A3-31 (D.N.J. 1996), rev'd on other grounds, 91 F.3d 416 (3d Cir. 1996) )
Two courts have held a ground of deportability to violate the First Amendment . ( See American-Arab Anti-Discrimination Committee v. Meeseand Rafeedie v. INS, See also American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1063-64, 15 Immigr. Rep. A2-355 (9th Cir. 1995)(aliens in the United States enjoy full First Amendment rights).
One court found a provision of an exclusion statute, as applied to a returning resident, to be unconstitutionally vague. ( Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir. 1962) , aff'd on other grounds,374 U.S. 449 (1963) ) Two other courts have announced opposing positions on whether a substantial constitutional question was presented by a challenge to a statute authorizing deportation to any country that would accept the deportee. ( Cf. Wolf v. Boyd, 287 F.2d 520 (9th Cir. 1961) (holding constitutional question substantial, requiring three-judge court), with Marcello v. Kennedy, 194 F. Supp. 748 (D.D.C. 1961) , aff'd on other grounds, 312 F.2d 874 (D.C. Cir. 1962))
It is clear that neither the United Nations Charter (Hitai v. INS, 343 F.2d 466 (6th Cir. 1962) ; Vlissides v. Anadell, 262 F.2d 398 (7th Cir. 1959)) nor the United Nations Declaration of Human Rights (.Matter of Laurenzano, 13 I. & N. Dec. 636 (BIA 1970) ) limits the power of Congress to impose grounds of deportability. Neither of these documents is self-executing, and neither has superseded the deportation provisions.
It is important to note that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) ( Pub. L. No. 104-208, 110 Stat. 3009.) changed the concept of deportation and now uses the term removal. The IIRAIRA purported to eliminate the distinction between deportation and exclusion and the disparate rights granted to someone who has ``entered'' the United States versus the rights granted to one who has not. Nonetheless, aliens who have been admitted do have more rights in removal hearings than those who have not been admitted. This outcome is similar to the distinction between deportation and exclusion that the IIRAIRA tried to eliminate. Thus, despite the recent changes made by the IIRAIRA, the following discussion about deportation still generally applies to aliens who have been admitted to the United States.
[b]Due Process
The most cogent constitutional challenges to deportation have emerged from the due process clause Notwithstanding the continued decisions of the Supreme Court describing the deportation power as unqualified, the Court has hastened to declare that expulsion procedures had to include adequate provision for a fair hearing. The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86, 23 S. Ct.611, 47 L. Ed. 721 (1903) . Stated differently, this means that the expulsion process must observe procedural due process. (The distinction between substantive and procedural due process is discussed in Shaughnessy v. United States ex rel.Mezei, 345 U.S. 206 (1953) (Jackson, J. dissenting).)
An alien's entitlement to procedural due process in a deportation hearing is clear. ( See Reno v. Flores, 507 U.S. 292, 306, 11 Immigr. Rep. A1-1 (1993) (``It is well established that the Fifth Amendment entitles aliens to due process of law in deportation hearings''); Bustos-Torres v. INS, 898 F.2d 1053, 1054, 8 Immigr. Rep. A2-194 (5th Cir. 1990) (``due process standards ... extend to the conduct of deportation proceedings.''). See also Burgos-Abril v. INS, 58 F.3d 475, 14 Immigr. Rep. A2-505 (9th Cir. 1995)(holding that although aliens have a Fifth Amendment right to due process, that right is not violated by holding deportation hearings inside a federal corrections facility); Cuadras v. U.S. INS, 910 F.2d 567, 573, 8 Immigr. Rep. A2-170 (9th Cir. 1990) (in affirming BIA decision upholding alien's deportation to El Salvador as a result of entry without inspection, the court recognized alien's entitlement ``to the fifth amendment guaranty of due process, which is satisfied only by a full and fair hearing''); Molaire v. Smith,743 F. Supp. 839, 843, 11 Immigr. Rep. A3-141 (S.D. Fla. 1990) (reversal of immigration court's order of exclusion and deportation, where Haitian alien, placed in exclusion proceedings for seeking entry by fraud and not possessing valid visa, was deprived of procedural due process rights. The immigration judge failed to apprise alien of nature and purpose of hearing, alien did not knowingly waive his right to representation by counsel, and the alien was prevented from submitting evidence in his behalf. The court stated that an ``alien's right to a full and fair deportation hearing is of constitutional dimension because such a hearing involves issues basic to human liberty and happiness'') (citation omitted).
In Mathews v. Eldridge,. 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) . the Supreme Court set forth the factors to be considered in determining the constitutional adequacy of procedures:
The private interest affected by the action;
The risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and the government's interest, which includes the function involved and the fiscal and administrative burdens that additional or substitute procedures would entail. (. Id. at 335 . See Landon v. Plasencia, 459 U.S. 21, 103 S. Ct. 321, 74 L. Ed. 2d 21(1982) (discussing procedural due process and Mathews factors).)
But litigants have continued to seek greater protections. For example, an alien resident may have acquired family ties and property interests. These arguably result in a vested right of residence, entitled to protection against arbitrary action by Congress. This plea depends on an asserted right to substantive due process.
However, the courts thus far have rejected these attacks and have stated that a resident alien has no vested interest that can be pitted against the paramount power of Congress to determine which aliens shall be permitted to remain in the United States. ( Flemming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960) (statute withdrawing social security benefits from an alien deported on subversive grounds was found not to be an unconstitutional infringement of any vested right); Galvan v. Press, 347 U.S. 522, 74 S. Ct. 737, 98 L. Ed. 911 (1954) ; Harisiades v. Shaughnessy, 342 U.S. 580, 72 S. Ct. 512,96 L. Ed. 586 (1952) ; Rodriguez-Romero v. INS, 434 F.2d 1022 (9th Cir. 1970) ; MacKay v. Turner, 283 F.2d 728 (9th Cir. 1960) ; MacKay v. McAlexander, 268 F.2d 35 (9th Cir. 1959) . )
Courts have also rejected contentions that deportation would unconstitutionally deprive the alien'sU.S. family of a right to continuation of the family unit in the United States. (.Robles v. INS, 485 F.2d 100 (10th Cir. 1973) (incidental impact on family does not raise constitutional problems); Silverman v. Rogers, 437 F.2d 102 (1st Cir. 1970) ; Rodriguez-Romero v. INS, 434 F.2d 1022 (9th Cir. 1970) ; Perdido v. INS, 420 F.2d 1179 (5th Cir. 1969) (argument consistently rejected); MacKay v. Turner, 283 F.2d 728 (9th Cir. 1960) ; MacKay v. McAlexander, 268 F.2d 35 (9th Cir. 1959) ; Keh Tong Chen v. Att'y Gen., 546 F. Supp. 1060 (D.D.C. 1982) .
Moreover, the alien's U.S. wife or child similarly has been deemed to lack any substantive right sufficient to justify a challenge to the power of Congress. (Gallanosa v. United States, 785 F.2d 116, 120, 11 Immigr. Rep. A2-446 (4th Cir. 1986) (``The courts of appeals have uniformly held that deportation of the alien parents does not violate any constitutional rights of the citizen children.''); Newton v. INS, 736 F.2d 336, 342, 1 Immigr. Rep. A2-151 (6th Cir. 1984) (courts have uniformly rejected contention that deportation of parents would effect de facto deportation of their citizen children; court points out that children would retain right to remain (with relatives) or return to United States in the future); Bassett v. INS, 581 F.2d 1385 (10th Cir. 1978) ; Acosta v. Gaffney, 558 F.2d 1153, 1157-58 (3d Cir. 1977) citing the Treatise (rejects claim that deportation of alien parents of citizen child would be de facto deportation of child, depriving him of constitutional right to choose his place of residence; ``Indeed a contrary holding would open up a loophole in the immigration laws for the benefit of those deportable aliens who have had a child born while they were here.''); Martinez de Mendoza v. INS, 567 F.2d 1222, 1225 (3d Cir. 1977), (Acosta, supra ,does not preclude constitutional challenge on ground that deportation of parent would subject citizen child to physical danger); Davidson v. INS, 558 F.2d 1361, 1363 (9th Cir. 1977) (``We have consistently held that an alien illegally in the United States cannot gain a favored status merely by the birth of his citizen child.''); Enciso-Cardozo v. INS, 504 F.2d 1252 (2d Cir. 1974) (U.S. citizen child not prejudiced by refusal to permit child's intervention in mother's deportation case); Mendez v. Major, 340 F.2d 128 (8th Cir. 1965) (hardship to citizen child). See also Ubiera v. Bell, 463 F. Supp. 181,185 (S.D.N.Y. 1978), citing the Treatise (resident alien has no constitutional right to bring his wife and child to United States).)
The Supreme Court has asserted that the alien has been permitted to remain in this country on sufferance, and thus his or her continued stay ``is a matter of permission and tolerance.'' ( Harisiades v. Shaughnessy, 342 U.S. 580, 586, 72 S. Ct. 512, 96 L. Ed. 586 (1952) . )
As an original proposition this concept is disputable, and its validity has been questioned. (.SeeLouis Boudin, The Settler Within Our Gates, 26 N.Y.U. L. Rev. 266, 451, 634 (1951) ; Stimson Bullitt, Deportation as a Denial of Substantive Due Process, 28 Wash. L. Rev. 205 (1953) ; Siegfried Hesse, The Constitutional Status of the Lawfully Admitted Permanent Resident Alien, 68 Yale L.J. 1578, 69 Yale L.J. 261 (1959) (a comprehensive analysis and criticism of Supreme Court decisions); Michael Scaperlanda, Partial Membership: Alien Rights and the Constitutional Community, 81 Iowa L. Rev. 707 (1996) ; Note, Resident Aliens and Due Process, 8 Villanova L. Rev. 566 (1963) .)
Moreover, it is difficult to find a sound justification for applying the due process clause to procedures but ignoring it as a protection for substantive rights (. See Brian K. Bates & Bruce A. Hake,A Tale of Two Cites: Due Process and the Plenary Power Doctrine, 92-4 Immigration Briefings (Apr. 1992); Kenneth Davis, The Requirement of a Trial-Type Hearing, 70 Harv. L. Rev. 193, 252 (1956) ; Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992) ; Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L. J. 545 (1990) )
The alien resident enjoys numerous constitutional protections, ( See Harisiades v. Shaughnessy,342 U.S. at 586 ; Mathews v. Diaz, 426 U.S. 67, 77 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976) (aliens are protected by the due process clause of the Fifth Amendment even if they are illegally in the United States); Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982) (in invalidating Texas statute denying educational benefits to alien children of illegal aliens, the Supreme Court declared that illegal aliens are ``persons'' protected by the equal protection clause of the Fourteenth Amendment ).) and many have urged that he or she has sufficient status to justify protection against arbitrary exercises of the deportation power.
These pleas have produced sympathetic responses from the Supreme Court. In its recent opinions, the Court has accepted without enthusiasm the conclusion that substantive due process cannot be invoked in expulsion cases, and has relied to some extent on a reluctance to depart from principles expounded in earlier decisions. (Kleindienst v. Mandel, 408 U.S. 753, 92 S. Ct. 2576, 33 L. Ed. 2d 683 (1972) ; Galvan v. Press, 347 U.S. 522, 530-32, 74 S. Ct. 737, 98 L. Ed. 911 (1954) (``Much could be said for the view that were we writing on a clean slate, the Due Process Clause qualifies the scope of political discretion heretofore recognized as belonging to Congress in regulating the entry and deportation of aliens ... But the slate is not clean.''); Harisiades v. Shaughnessy, 342 U.S. at 591 , 597; Oliver v. U.S. Dep't of Justice, 517 F.2d 426 (2d Cir. 1975) (no due process violation by drastic sanctions against narcotics violators); Tsimbidy-Rochu v. INS, 414 F.2d 797 (9th Cir. 1969) . See also dissenting opinion of Justice Harlan in Rowoldt v. Perfetto, 355 U.S. 115, 78 S. Ct. 180, 2 L. Ed. 2d 140 (1957) (reserving the right to speak when the occasion arose); dissenting opinions of Justices Black and Douglas in Harisiades v. Shaughnessy and Galvan v. Press, supra ; concurring opinion of Justice Murphy in Bridges v. Wixon,326 U.S. 135, 65 S. Ct. 1443, 89 L. Ed. 2103 (1945) )
Moreover, in several instances the Court assumed that some substantive due process requirements might apply, but found the statute not offensive to such requirements. In one case the Court found a deportation statute aimed against former members of the Communist Party was found not ``so baseless as to be violative of due process and therefore beyond the power of Congress.'' (Galvan v. Press, 347 U.S. 522, 529, 74 S. Ct. 737, 98 L. Ed. 911 (1954))
In another case the Court found that the phrase ``crime involving moral turpitude'' was sufficiently definite and therefore did not offend due process requirements. (Jordan v. De George, 341 U.S. 223,71 S. Ct. 703, 95 L. Ed. 886 (1951) . See also Artukovic v. INS, 693 F.2d 894, 897 (9th Cir. 1982) (term ``persecution`` n statutory provisions relating to refugees); Yuen v. INS, 406 F.2d 499, 501 (9th Cir. 1969), Hudson v. Esperdy, 290 F.2d 879 (2d Cir. 1961) (lewd behavior, soliciting men to commit crime against nature); Wyngaard v. Kennedy, 295 F.2d 184 (D.C. Cir. 1961) (same); Massieu v. Reno, 915 F. Supp. 681, 16 Immigr. Rep. A3-31 (D.N.J. 1996), rev'd on other grounds, 91 F.3d 416 (3d Cir. 1996) .However, another decision struck down as unconstitutionally vague, as applied to a returning resident, a statutory provisions directing the exclusion of sexual deviates as persons with psychopathic personality.Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir. 1962) . In affirming this decision on another ground, the Supreme Court found it unnecessary to rule on the constitutional issue. Rosenberg v. Fleuti, 374 U.S. 449,83 S. Ct. 1804, 10 L. Ed. 2d 1000 (1963) . However, in a later case not involving a returning resident, the Supreme Court rejected a contention that the provision was subject to challenge as unconstitutionally vague. Boutilier v. INS, 387 U.S. 118, 87 S. Ct. 1563, 18 L. Ed. 2d 661 (1967) . Other attempts to reopen the vagueness issue, in addressing moral turpitude involving fraud, were repulsed in Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971) (statutory rape); Ramirez v. INS, 413 F.2d 405 (D.C. Cir.1969) (moral turpitude, fraud). Cf. Cole v. Richardson, 405 U.S. 676, 92 S. Ct. 1332, 31 L. Ed. 2d 593 (1972) (loyalty oath constitutional); Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967) (N.Y. teacher loyalty law unconstitutional). )
In these cases, however, the Court assumed that the due process injunction might apply in an appropriate case. ( Galvan v. Press, 347 U.S. 522, 531, 74 S. Ct. 737, 98 L. Ed. 911 (1954) ; Jordan v. De George, 341 U.S. 223, 226, 71 S. Ct. 703, 95 L. Ed. 886 (1951) . See also Mathews v. Diaz, 426 U.S. 67, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976) (upholding constitutionality of federal statutory limitation of welfare benefits to certain permanent resident aliens; Court held that although there is paramount federal power over immigration and naturalization, some judicial scrutiny is warranted, even though standard of review is narrow and impact of due process is limited); Hampton v. Wong, 426 U.S. 88, 96 S. Ct. 1895,48 L. Ed. 2d 495 (1976) (same, denial of federal civil service jobs to aliens); Buchowiecki-Kortkiewicz v. USINS, 455 F.2d 972 (9th Cir. 1972) (conviction for possession of marijuana; rational basis not absent in prescribing deportable offense).)
And in a later case that emphasized the ``special judicial deference to congressional policy choices in the immigration context,'' the Supreme Court repulsed a challenge to the denial of immigration benefits based on the relationship of a child born out of wedlock to his father. (Fiallo v. Bell, 430 U.S. 787,97 S. Ct. 1473, 52 L. Ed. 2d 50 (1977) . For a discussion of children born out of wedlock (previously referred to as ``illegitimate'' children))
The Court acknowledged the possibility of ``limited judicial scrutiny'' in assessing such legislation, but rejected a suggestion that ``more searching judicial scrutiny'' was warranted simply because the due process rights of citizens and lawful resident aliens were implicated. ( Fiallo, 430 U.S. at 792-94))
A few circuit and district courts have recognized aliens' substantive due process rights in cases relating to deportation, notwithstanding the plenary power doctrine. ( See, e.g., Flores by Galvez-Maldonado v. Meese, 934 F.2d 991, 8 Immigr. Rep. A2-53 (9th Cir. 1990), The circuit court held that the INS regulation governing the release of detained alien minors does not violate substantive due process. Stating that substantive due process ``prevents the government from engaging in conduct that shocks the conscience,'' the panel found that the due process clause 's ``substantive component'' extended to deportable aliens. Id.at 1003 . Rejecting earlier cases holding that deportable aliens had no substantive due process rights, the court indicated that substantive due process ``does operate in some limited constraint on congressional power, though the scope of judicial review on this basis is extremely narrow.''Id.at 1006 . Having determined that substantive due process applied, the court found, however, that the right at stake--the right to be released to an unrelated adult--was not a ``fundamental right,'' and applying the ``rational basis'' standard, rejected the alien's due process challenge of the regulation. The panel's decision in Floreswas vacated on rehearing en banc, 942 F.2d 1352, 11 Immigr. Rep. A2-323 (9th Cir. 1991), but that decision was reversed by the Supreme Court sub nom. Reno v. Flores, 507 U.S. 292, 113S. Ct. 1439, 123 L. Ed. 2d 1, 11 Immigr. Rep. A1-1 (1993). ))
[c]Equal Protection
Efforts to invoke equal protection benefits on the ground that some categories of deportees have been dealt with more harshly than other aliens or citizens in like situations generally have been unsuccessful. (.E.g., Ablang v. Reno, 52 F.3d 801, 14 Immigr. Rep. A2-390 (9th Cir. 1995) (rational basis exists for disparate treatment of children born out of wedlock to U.S. citizen father compared to children born out of wedlock to U.S. citizen mother); Tok v. INS, 538 F.2d 36, 38 (2d Cir. 1976)(deportation of minor narcotics offenders ``not without rational justification''; distinction between narcotics offenders and other violators has a ``reasonable basis''); Alvarez v. District Director, 539 F.2d 1220 (9th Cir. 1976) (limitation of commuter status to natives of contiguous countries has a rational basis).See Correa v. Thornburgh, 901 F.2d 1166, 10 Immigr. Rep. A2-327 (2d Cir. 1990), (``Indeed it may well be that Congress can ban aliens from entering the United States for discriminatory and arbitrary reasons, and that the usual constraints of rationality imposed by the equal protection clause do not limit the federal government's power to regulate immigration'') (citation omitted); Azizi v. Thornburgh, 908 F.2d 1130, 8 Immigr. Rep. A2-1 (2d Cir. 1990) (court rejected alien's contention that 5 of the Immigration Marriage Fraud Amendments of 1986 violated equal protection, holding that Congress had a ``rational basis'' for prescribing a two-year foreign residency prerequisite to alien/citizen marriages that occur after commencement of a deportation or exclusion proceeding. The court spoke of the ``plenary authority'' of Congress, and refused to apply a strict level of scrutiny, notwithstanding the ``fundamental nature of the right to marry.'') Cf. Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982) (state denial of educational benefits to undocumented children enjoined as violation of equal protection); Mathews v. Diaz, 426 U.S. 67, 83, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976) (equal protection limitations applicable to states do not inhibit federal government from treating aliens differently from citizens or in giving different benefits to different classes of aliens, provided differentiations are not ``wholly irrational''; Congress can draw a reasonable line, even though ``any line must produce some harsh and apparently arbitrary consequences''; limitation of welfare benefits to aliens with five years lawful residence upheld); Hampton v. Wong, 426 U.S. 88, 100, 96 S. Ct. 1895, 48 L. Ed. 2d 495 (1976) (upholding exclusion of aliens from federal civil service; overriding national interests may justify selective legislation; ``paramount federal power over immigration and naturalization forecloses a simple extension'' of equal protection concepts applicable to states).)
However, while rejecting the specific constitutional challenge presented to it, one court has recognized the right of a U.S. citizen to challenge invidious discriminations affecting him, on the ground that they ``are wholly devoid of any conceivable rational purpose, or are fundamentally aimed at achieving a goal unrelated to the regulation of immigration,'' and are thus ``unconstitutional encroachments on the right to equal protection of the laws.'' (Fiallo v. Levi, 406 F. Supp. 162, 166 (E.D.N.Y. 1975) (upholding denial of immigration benefits to fathers of illegitimate U.S. citizen children). )
In affirming the dismissal of this suit, the Supreme Court acknowledged that immigration statutes might be subject to ``limited judicial review'' (presumably for the considerations suggested by the lower court), but rejected a suggestion that ``more searching judicial inquiry'' was warranted simply because the rights of citizens and lawful resident aliens were implicated (Fiallo v. Bell, 430 U.S. 787, 97 S. Ct. 1473,52 L. Ed. 2d 50 (1977))
At least two courts have upheld an equal protection challenge to provisions granting discretionary relief from deportation to one class of resident aliens and withholding them from another. (Yueng v. INS, 61 F.3d 833, 14 Immigr. Rep. A2-605 (11th Cir. 1995) (INA 212(h) waiver of inadmissibility for certain crimes), as modified, 76 F.3d. 337, 15 Immigr. Rep. A2-444 (11th Cir. 1996) (en banc) (per curiam);Francis v. INS, 532 F.2d 268 (2d Cir. 1976) (former INA 212(c) waiver of inadmissibility for returning residents).
However, another court found no denial of equal protection in the absence of a statute of limitations for deporting aliens who entered with immigrant visas, even though a five-year period of limitation is prescribed for rescinding adjustment of status. (Ubiera v. Bell, 463 F. Supp. 181,186 (S.D.N.Y. 1978) Another court found it unnecessary to confront an equal protection challenge in such situations by holding that the five-year limitation for rescission of adjustment of status does not preclude deportation proceedings, without time limit, for improper procurement of such adjustments. ( Oloteo v. INS, 643 F.2d 679 (9th Cir. 1981)
Another case unsuccessfully argued an equal protection violation existed because immediate relative spouses were entitled to benefits in adjustment of status unequal to those accorded to fiancées(Menezes v. INS, 601 F.2d 1028, 1034 (9th Cir. 1979) (``[T]hese practices do not violate equal protection unless they do not rationally help to further legitimate governmental goals. We find that the disparate treatment of fiancées and spouses stems from the different ends which Congress sought to further with respect to each group.'') )
One court rejected a contention that equal protection requirements were violated by a refusal to accord immigration benefits on the basis of a supposed marriage between persons of the same sex.(.Adams v. Howerton, 673 F.2d 1036, 1041-43 (9th Cir. 1982))
Another court, acknowledging that this standard had never been explicitly adopted by the Supreme Court, has ruled that deportation statutes are amenable to an equal protection challenge on a rational basis test, but found adequate basis for denying voluntary departure to a deportee who lacked adequate means to pay his own way home. ( United States v. Barajas-Guillen, 632 F.2d 749, 759 (9th Cir. 1980) )
Courts have also used the rational basis test to uphold immigration restrictions imposed against Iranians during the hostage crisis in 1979-1981. (Sadegh-Nobari v. INS, 676 F.2d 1348, 1351 (10th Cir. 1982) (``Considering the grave international crisis faced by the United States at that time, a response to limit the voluntary departure time for Iranian nationals determined to be deportable was justified and rational.''); Nademi v. INS, 679 F.2d 811, 814-15 (10th Cir. 1982) ; Malek-Marzban v. INS, 653 F.2d 113,116 (4th Cir. 1981) (restriction of voluntary departure for Iranians was ``perfectly rational response'' to serious unfriendly acts of Iranian government); Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1980)(distinctions based on nationality must be sustained as long as they are not wholly irrational; special measures against Iranian students upheld). Cf. Ghajar v. INS, 652 F.2d 1347, 1349 (9th Cir. 1981) (``we need not decide whether a government policy of treating aliens of one nationality differently than aliens of other nationalities violates equal protection... an alien would have to overcome a heavy burden in order to succeed with an equal protection argument in this context.'').)
Developing case law, noted above, apparently recognizes a distinction between substantive grounds for admission, exclusion and expulsion and provisions for discretionary relief. (See Azizi v. Thornburgh, 908 F.2d 1130, 1133, 8 Immigr. Rep. A2-1 (2d Cir. 1990) (``Congressional authority in this area extends to the establishment of alien classifications as a basis for determining immigration eligibility ... .Such classifications will be upheld ).
. The courts have entertained equal protection challenges to provisions for discretionary benefits using a rational basis test. (See Guinto v. INS, 774 F.2d 991, 992, 3 Immigr. Rep. A2-91 (9th Cir. 1985) (alleged denial of equal protection by denial of suspension of deportation to alien crewman ``is easily disposed of. Classifications among aliens in immigration statutes are evaluated under the mere rationality test ... . Thus the rational basis for denying seamen discretionary relief is to deter them from jumping ship.''); Newton v. INS, 736 F.2d 336, 339-41, 1 Immigr. Rep. A2-151 (6th Cir. 1984) (upholds denial of suspension of deportation for alien doctors; court ``does not dispute the result in Francis, but finds that the exclusion of exchange visitors in general (and particularly those admitted for graduate medical education and training) from eligibility for suspension of deportation does not rest on irrelevant and fortuitous factors''); Paointhara v. INS, 708 F.2d 472, 473 (9th Cir. 1983) (rational basis upheld). )
[d]Ex Post Facto
Increasingly, Congress has decreed that an alien may be removed for conduct that occurred in the past. Such legislative edicts sometimes have reached activities that violated no law when they occurred, and the affected aliens have charged a violation of the ex post facto clause in the Constitution. (U.S.Const. art. I, 9 .
However, these challenges invariably have been vanquished. The reasoning has been that the ex post facto inhibition applies only to criminal statutes, and thus does not apply to expulsion laws, since they are civil and not criminal in nature (Galvan v. Press, 347 U.S. 522, 74 S. Ct. 737, 98 L. Ed. 911 (1954) ; Harisiades v. Shaughnessy, 342 U.S. 580, 72 S. Ct. 512, 96 L. Ed. 586 (1952) ; Kulle v. INS, 825 F.2d 1188, 11 Immigr. Rep. A2-484 (7th Cir. 1987) (Nazi war criminal); statute not punitive, but designed to deny haven for undesirables). See Flemming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960) . See generally Note, Ex Post Facto Limitations on Legislative Power, 73 Mich. L. Rev. 1491 (1975) )
In this instance there has been vigorous assault on the logical underpinnings of the constitutional doctrine. It has been contended that although deportation is not punishment for crime, it is penal in nature and should be deemed comparable to criminal punishment for the purposes of the ex post facto clause. (See Comment, The Alien and the Constitution, 20 U. Chi. L. Rev. 547, 556 (1953) (``However, when the severity of deportation is considered, the distinction seems artificial.''). See also Siegfried Hesse, The Constitutional Status of the Lawfully Admitted Permanent Resident Alien, 68 Yale L.J. 1578, 69 Yale L.J. 261 (1959); Note, Resident Aliens and Due Process, 8 Villanova L. Rev. 566, 587 (1963) But despite some misgivings (See Harisiades v. Shaughnessy and Galvan v. Press) the courts have refused to retreat.
Recent changes made by the IIRAIRA, which (1) forces a higher standard of proof on certain aliens than the government bears in criminal cases, (2) inflicts automatic removal for various convictions, and (3) allows for indefinite detention, strengthens the contention that removal is more aptly characterized as a criminal proceeding. ( Niukkanen v. McAlexander, 362 U.S. 390, 80 S. Ct. 799, 4 L. Ed. 2d 816 (1960) (ex post facto challenge not mentioned in either majority--upholding expulsion order--or minority opinions); Flemming v. Nestor, 363 U.S. 603, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960) (deportee's deprivation of social security benefits not unconstitutional); Lehmann v. Carson, 353 U.S. 685, 77 S. Ct. 1022, 1 L. Ed. 2d 1122 (1957) ; Mulcahy v. Catalanotte, 353 U.S. 692, 77 S. Ct. 1025, 1 L. Ed. 2d 1127 (1957) ; Marcello v. Bonds, 349 U.S. 302, 75 S. Ct. 757, 99 L. Ed. 1107 (1955) ; United States v. Yacoubian, 24 F.3d 1, 4, 13 Immigr. Rep. A2-128 (9th Cir. 1994) (``It is well settled that deportation, while it may be burdensome and severe for the alien, is not a [criminal] punishment.'') (quoting United States v. Koziel, 954 F.2d 831, 835, 9 Immigr. Rep. A2-163 (2d Cir. 1992)); United States v. Bodre, 948 F.2d 28, 12 Immigr. Rep. A2-139 (1st Cir. 1991) (1990 repeal of provision for judicial recommendation against deportation of criminal defendant, while application for this relief was pending but before action by the court, was not invalid as ex post facto law); Rassano v. INS, 377 F.2d 971, 974 (7th Cir. 1967)(probationary sentence for crime became ground for deportation after 1952 Act); Gardos v. INS, 324 F.2d 179 (2d Cir. 1963) (narcotics conviction in Canada became ground for deportation by amendment of statute after entry)) No court has addressed the impact of these recent changes, however.
[e]Freedom of Speech and Religion
The argument that deportation provisions infringe freedom of speech has been raised in cases involving alien Communists and other politically objectionable groups. This attack has been generally unsuccessful. (Harisiades v. Shaughnessy, 342 U.S. 580, 72 S. Ct. 512, 96 L. Ed. 586 (1952) . See also Turner v. Williams, 194 U.S. 279, 24 S. Ct. 719, 48 L. Ed. 979 (1904) . See generally Comment,Immigration and the First Amendment , 73 Cal. L. Rev. 1889 (1985))
The reasoning here apparently is that the expulsion statute is not a denial of free speech, but is rather a removal from the country of aliens deemed obnoxious. In one case the Supreme Court found that a legislative proscription against former members of the Communist Party, upon a finding that this organization was devoted to violent overthrow of the Government, was valid since the Constitution does not protect incitement to violence. ( Harisiades v. Shaughnessy,; MacKay v. Turner, 283 F.2d 728 (9th Cir. 1960) ; MacKay v. McAlexander, 268 F.2d 35 (9th Cir. 1959) . Cf. Keyishian v. Board of Regents,385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967) (N.Y. teacher loyalty law unconstitutional); United States v. Robel, 389 U.S. 258, 88 S. Ct. 419, 19 L. Ed. 2d 508 (1967) (barring Communists from employment in defense plants abridges freedom of association). )
However, the rights of free speech and association were urged more successfully in litigation challenging the administrative refusal of entry of aliens whom U.S. citizens and organizations have invited for lectures and conferences. The Supreme Court has upheld the right of the citizens and aliens to bring such lawsuits, ( Kleindienst v. Mandel, 408 U.S. 753,770, 92 S. Ct. 2576, 33 L. Ed. 2d 683 (1972) (administrative rejection was based on ``facially legitimate and bona fide'' reasons).) and similar litigation has been entertained by the lower courts. (Abourezk v. Reagan, 785 F.2d 1043, 11 Immigr. Rep. A2-646 (D.C. Cir. 1986), aff'd by equally divided Court, 484 U.S. 1, 108 S. Ct. 252, 98 L. Ed. 2d 1 (1987) ;Adams v. Baker, 909 F.2d 643, 11 Immigr. Rep. A2-291 (1st Cir. 1990) (U.S. citizen and several U.S.organizations sued, seeking to have Republic of Ireland alien's visa denial set aside. Alien, seeking entry to conduct a speaking tour, was president of an organization connected with the IRA. While the court recognized the ``possibility of impairment of United States citizens' First Amendment rights, ``the court upheld the visa denial because it was based on a ``facially legitimate and bona fide reason.''); HarvardLaw School Forum v. Schultz, 633 F. Supp. 525, 529-30, 3 Immigr. Rep. A3-69 (D. Mass. 1986); Allende v. Shultz, 605 F. Supp. 1220, 2 Immigr. Rep. A3-106 (D. Mass. 1985). For a subsequent ruling in theAbourezk litigation, see City of New York v. Baker, 878 F.2d 507, 7 Immigr. Rep. A2-53 (D.C. Cir. 1989). See Comment, Immigration and the First Amendment , 73 California L. Rev. 1889 (1985) )
Moreover, in 1989 a U.S. district court, distinguishing prior Supreme Court decisions, ruled that aliens in the United States, and an organization representing such aliens, had the same First Amendment protections as U.S. citizens, notwithstanding the government's plenary immigration power. ( American-Arab Anti-Discrimination Committee v. Meese, 714 F. Supp. 1060, 11 Immigr. Rep. A3-101 (C.D. Cal. 1989) (holding unconstitutional parts of former INA 241(a), 8 U.S.C. 1251(a) that imposed mandatory deportation for various types of ``subversive speech''), rev'd, 970 F.2d 501 (9th Cir. 1992) (unripe for review), on remand, American-Arab Anti-Discrimination Committee v. Reno, 883 F. Supp. 1365, 14 Immigr. Rep. A3-119 (C.D. Cal. 1995) (unripe). See also Rafeedie v. INS, 795 F. Supp. 13, 27, 11 Immigr. Rep. A3-269 (D.D.C. 1992) (permanent resident alien is ``entitled to the same First Amendment protections as United States citizens, including the limitations imposed by the overbreadth and the vagueness doctrines''). Cf. Price v. INS, 962 F.2d 836, 9 Immigr. Rep. A2-227 (9th Cir. 1992)(unsuccessful First Amendment freedom of association challenge to denied petition for naturalization based on alien's refusal to identify all organizations in which he was involved); Adams v. Baker, 909 F.2d 643, 11 Immigr. Rep. A2-291 (1st Cir. 1990) (court recognized the right of U.S. citizens and U.S.associations to challenge exclusion of alien on First Amendment grounds; the challenge, however, was unsuccessful) )
The district court struck down a deportation provision that mandated removal for specific categories of ``subversive speech.'' The question was reversed on appeal because it was deemed not ripe for review. ( American-Arab Anti-Discrimination Committee v. Nelson, 970 F.2d 501 (9th Cir. 1992) . Note, however, a later opinion in the same case, which held that aliens in the United States have full First Amendment rights. American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1063-64, 15 Immigr. Rep. A2-355 (9th Cir. 1995). That opinion, however, did not explicitly strike down the challenged ground of deportability, because of the posture of the case at that point. )
The assertion of First Amendment protection for the free exercise of religion by individuals and organizations providing sanctuary to refugees has met inconclusive responses. ( United States v. Aguilar,883 F.2d 662, 11 Immigr. Rep. A2-244 (9th Cir. 1989) (criminal conviction affirmed); American Baptist Churches v. Meese, 666 F. Supp. 1358, 11 Immigr. Rep. A3-57 (N.D. Cal. 1987) (motion to dismiss injunction suit denied), 712 F. Supp. 756 (9th Cir. 1989) (subsequent motion to dismiss granted in part, but denied in other important respects); United States v. Merkt, 794 F.2d 950, 4 Immigr. Rep. A2-1 (5th Cir. 1986) (claim rejected). See also American Friends Service Committee Corp. v. Thornburgh, 961 F.2d 1405, 718 , FS, 820 A3-133 (9th Cir. 1991) (rejects claim that constitutional bar to interference with ``free exercise'' precludes enforcement of employer sanctions involving employees of religious organizations). )
[f]Bill of Attainder
The U.S. Constitution prohibits bills of attainder. (U.S. Const. art. I, 9 . )
A bill of attainder is the ``legislated punishment of specified persons'' or groups in such a way as to impose punishment without a judicial trial. (Laurence H. Tribe, American Constitutional Law 10-4, at 643 (2d ed. 1988). )
In some cases aliens have argued that a statute requiring deportation because of their membership in a named organization--the Communist Party--is an unconstitutional bill of attainder. (he Immigration Act of 1990, Pub. L. No. 101-649, 602(a), 104 Stat. 4978, 5081, eliminated membership or affiliation in the Communist party or other totalitarian organizations as a ground of deportability. The 1990 Act did, however, retain membership in a totalitarian party as a ground of inadmissibility for immigrants.Moreover, an alien can still be deportable on security or related grounds (INA 237(a)(4)(A), 8 U.S.C. 1227(a)(4)(A) ), or for engaging in terrorist activities (INA 237(a)(4)(B), 8 U.S.C. 1227(a)(4)(B) ). And an alien who is inadmissible at the time of entry as a past or present member of the Communist or other totalitarian party is deportable under INA 237(a)(1)(A), 8 U.S.C. 1227(a)(1)(A) . In Galvan v. Press, 347U.S. 522, 74 S. Ct. 737, 98 L. Ed. 911 (1954) , both parties' briefs discussed this issue, but the Court's opinion did not mention this issue, presumably because it was not properly raised. See Brief for Respondent at 61, 63, Galvan(No. 407). In Niukkanen v. McAlexander, 362 U.S. 390, )
Although the issue never has been directly decided by the Supreme Court, ( the lower courts have repudiated the claim that deportation based on membership in a named organization is an unconstitutional bill of attainder. (.MacKay v. McAlexander, 268 F.2d 35 (9th Cir. 1959) ; Ocon v. Del Guercio, 237 F.2d 177 (9th Cir. 1956) ; Crain v. Boyd, 237 F.2d 927 (9th Cir. 1956) ; Quattrone v. Nicolls, 210 F.2d 513 (1st Cir. 1954) ).
The basis for this view is that the deportation statute is not regarded as punitive and that the legislative interdiction of the Communist Party is based on adequate grounds. It has been suggested, however, that a legislative mandate for the deportation of a specific individual would conflict with the constitutional ban against bills of attainder. (See Bridges v. Wixon, 326 U.S. 135, 158, 65 S. Ct. 1443, 89 L. Ed. 2103 (1945) ; Note, Immigration and Nationality, 66 Harv. L. Rev. 643, 681 (1953) )
. Other efforts to invoke the bill of attainder clause in challenging deportation statutes have been unsuccessful. (See Bridges v. Wixon, 326 U.S. 135, 158, 65 S. Ct. 1443, 89 L. Ed. 2103 (1945) ; Note,Immigration and Nationality, 66 Harv. L. Rev. 643, 681 (1953) (Kulle v. INS, 825 F.2d 1188, 11 Immigr. Rep. A2-484 (7th Cir. 1987); Linnas v. INS, 790 F.2d 1024, 1030, 3 Immigr. Rep. A2-277 (2d Cir. 1986); Artukovic v. INS, 693 F.2d 894 (9th Cir. 1982) (court rejected alien's contention that 1978 amendment of former INA 243(h), which precluded withholding of deportation relief for members of Nazi governments of Europe who had ``ordered, incited ... or otherwise participated in the persecution of any person'' was, inter alia, a bill of attainder. The court reasoned that ``[d]eportation ... is not a punishment ... it is simply a refusal by the government to harbor persons whom it does not wish to harbor.'' The court, however, vacated the revocation of alien's stay of deportation on procedural grounds); Schellong v. U.S.INS, 805 F.2d 655 (7th Cir. 1980) . See also Rubio de Cachu v. INS, 568 F.2d 625, 627 (9th Cir. 1977)(deportation of parents of minor citizen child).)
[g]Double Jeopardy
Since deportation is not regarded as criminal punishment, the double jeopardy prohibition does not preclude a criminal prosecution of one subjected to deportation proceedings on the same ground. ( United States v. Yacoubian, 24 F.3d 1, 10, 13 Immigr. Rep. A2-128 (9th Cir. 1994) (``Because deportation proceedings are civil and not criminal in nature, they cannot form the basis for a double jeopardy claim'');United States v. Ramirez-Aguilar, 455 F.2d 486 (9th Cir. 1972) (reentry following deportation )
Conversely, of course, there is no bar to bringing removal proceedings against a person subjected to criminal prosecution for the same offense. (Le Tourneur v. INS, 538 F.2d 1368 (9th Cir. 1976)(convicted of two crimes involving moral turpitude (Oliver v. U.S. Dep't of Justice, 517 F.2d 426 (2d Cir. 1975) .)
And it is equally obvious that a prior deportation does not preclude new removal proceedings for a subsequent violation. (United States v. Yacoubian, 24 F.3d 1, 13 Immigr. Rep. A2-128 (9th Cir. 1994); Sint v. INS, 500 F.2d 120 (1st Cir. 1974) ).
[h]Denial of Bail
The Attorney General's denial of bail to active Communists pending a determination of their deportability has been assailed as a violation of the Eighth Amendment . However, the Supreme Court has reiterated its view that deportation cases are not criminal proceedings and has found the Eighth Amendment inapplicable to such civil processes. (Carlson v. Landon, 342 U.S. 524, 72 S. Ct. 525, 96 L. Ed. 547 (1952) ; Spinella v. Esperdy, 188 F. Supp. 535 (S.D.N.Y. 1960)) .
. The marked reduction in detentions in recent years . has diminished the urgency of this contention.
[i]Cruel and Unusual Punishment
Efforts also have been made to invoke the Eighth Amendment's ban against cruel and unusual punishment. However, since deportation is not regarded as punishment in this sense, . these challenges have been unsuccessful. Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S. Ct. 1016 (1893) ; Ortega v. Rowe, 796 F.2d 765, 767 (5th Cir. 1986) (aliens detained for immigration violations; ``Because the detainees' imprisonment did not result from their conviction for any crimes, the eighth amendment's prohibition of cruel and unusual punishment is inapplicable''); McJunkin v. INS, 579 F.2d 533, 536 (9th Cir. 1978) (narcotics addict; court distinguishes Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1967) , since ``individual's freedom from criminal sanctions and an alien's privilege to enter or remain in this country are unrelated concepts under our Constitution and subject to different limitations'');Bassett v. INS, 581 F.2d 1385 (10th Cir. 1978) (reluctantly rejects constitutional challenge to deportation of alien given suspended sentence and $100 fine upon conviction for marijuana possession, citing changing laws and public attitudes); Le Tourneur v. INS, 538 F.2d 1368, 1370 (9th Cir. 1976) (long-time resident convicted for two convictions constitutional challenge ``presents an emotional but not a legal argument'');Oliver v. INS, 517 F.2d 426 (2d Cir. 1975) (court upheld deportation of Canadian citizen admitted to permanent residence in United States in 1955 on basis of heroin possession conviction. In rejecting alien's ``cruel and unusual punishment'' argument, the court cited Harisiades v. Shaughnessy, 342 U.S. 580, 72 S. Ct. 512, 96 L. Ed. 586 (1952) , in classifying deportation as civil rather than a criminal procedure);MacKay v. Turner, 283 F.2d 728 (9th Cir. 1960) ; Crain v. Boyd, 237 F.2d 927 (9th Cir. 1956) .See Santelises v. INS, 491 F.2d 1254 (2d Cir. 1974) (conviction for visa fraud); Rodriguez-Romero v. INS, 434 F.2d 1022 (9th Cir. 1970) ; Burr v. INS, 350 F.2d 87, 90 (9th Cir. 1965) (deportation for criminal violation not punishment). Cf.Armstrong, Banishment: Cruel and Unusual Punishment, 111 U. Pa. L. Rev. 758 (1963) ; Note, Resident Aliens and Due Process, 8 Villanova L. Rev. 566, 576 (1963) (But one case ( Wolf v. Boyd, 287 F.2d 520 (9th Cir. 1961) (born in Canada, being deported to England). )found that a substantial constitutional issue, requiring a three-judge court, was posed by a contention that this constitutional edict is violated by the statutory provision authorizing deportation of a long-time resident to any country that is willing to accept the deportee. However, another court held that a virtually identical contention did not present a substantial constitutional question. ( Marcello v. Kennedy, 194 F. Supp. 748 (D.D.C. 1961) , aff'd on other grounds, 312 F.2d 874 (D.C. Cir. 1962))
A district court decision, responding to ``compelling circumstances ... and recent developments, ``found that deportation of a long-time resident because of conviction for sale of a few marijuana cigarettes was cruel and unusual punishment. (Lieggi v. USINS, 389 F. Supp. 12 (N.D. Ill.1975). However, on appeal, that decision was reversed without a published opinion. (. Lieggi v. INS,529 F.2d 530 (7th Cir. 1976) (table case). )
j]Other Constitutional Provisions
The Ninth Amendment , reserving to the people rights not granted to the federal government, has been unsuccessfully invoked in resisting a deportation order. (Cervantes v. INS, 510 F.2d 89 (10th Cir. 1975) (on behalf of citizen child).)
One court has suggested, but has found it unnecessary to address, a possible constitutional requirement for uniformity of immigration laws, similar to the express mandate for uniform naturalization laws. (Kim v. INS, 514 F.2d 179, 180 (D.C. Cir. 1975) ).
Another court has rejected a contention that deporting the alien parents of an infant citizen child deprives the child of the constitutional right to choose its place of residence. (Acosta v. Gaffney, 558 F.2d 1153, 1157 (3d Cir. 1977), (``In the case of an infant below the age of discretion the right is purely theoretical, however, since the infant is incapable of exercising it.'').)
The Supreme Court decided that a Maryland state policy charging out-of-state tuition to children of G-4 international organization aliens violated the Supremacy Clause , as a discriminatory impairment of rights granted by Congress. ( Toll v. Moreno, 458 U.S. 1, 102 S. Ct. 2977, 73 L. Ed. 2d 563 (1982))
Also rejected was a contention that the Sixth Amendment's requirement of a speedy trial in criminal prosecutions applied to deportation proceedings. (Argiz v. United States Immigration, 704 F.2d 384, 387 (7th Cir. 1983) )
The Board of Immigration Appeals (BIA) has found the Sixth Amendment right of counsel inapplicable to deportation proceedings and declared that an impairment of this privilege was merely a procedural omission that does not offend due process unless it appears that the omission is prejudicial. ( Matter of Santos, 19 I. & N. Dec. 105, 1 Immigr. Rep. B1-99 (BIA 1984). See also Aguilera-Enriquez v. INS, 516 F.2d. 565, 568 (6th Cir. 1975) (test for whether due process requires appointing counsel for an indigent alien is whether, in a given case, the assistance of counsel would be necessary to provide ``fundamental fairness''). For a general discussion of the right to counsel in immigration proceedings )
However, while agreeing that the Sixth Amendment does not apply, (See Michelson v. INS, 897 F.2d 465, 10 Immigr. Rep. A2-321 (10th Cir. 1990) (court upheld deportation on ground of improperly remaining in United States longer than ``one-week visitor.'' In rejecting alien's claim that he should have been represented by appointed counsel before the INS and on appeal, the court held that while petitioner ``had the right to be represented by counsel'' at his own expense, there is no `` sixth amendment right to counsel'' in a deportation proceeding).) an appellate court has questioned the Board's view, suggesting that since the right to counsel is such an inherent aspect of a fair hearing, impairing this right necessarily offends due process requirements. ( Rios-Berrios v. INS, 776 F.2d 859, 863, 11 Immigr. Rep. A2-636 (9th Cir. 1985). )
The Supreme Court declared unconstitutional a statutory provision authorizing a legislative veto of the Attorney General's grant of suspension of deportation, holding that it violated the constitutional formula for legislative action. ( INS v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983) .)
In another case, an appeals court held that seizing the automobile license of an admitted illegal alien did not violate the Tenth Amendment's reservation of power to the states. ( Lopez v. USINS, 758 F.2d 1390, 1393, 2 Immigr. Rep. A2-15 (10th Cir. 1985) (court suggested that there might be due process problems if the seizure had occurred before admission or determination that the alien was illegally in theUnited States). See generally Robert Pauw & Gregg Boos, Conveyance and Forfeitures: Constitutional Limits on Agency Decision-Making, 96-4 Immigration Briefings (Apr. 1996). )
[4]Source and Scope of Executive Power
In dealing with aliens, the federal government exercises vast power. Essentially, this is a legislative power, for Congress determines the classes of aliens who may be expelled. Congress traditionally has entrusted the enforcement of its deportation policies to executive officers. The courts have ratified this arrangement. But executive officers have no inherent power to order deportation or to take other coercive action against aliens. Any authority they exercise must derive from an explicit statute. If they act without statutory authority, or exceed the limits of the statute, they are acting illegally and are subject to corrective action in the courts. (Mahler v. Eby, 264 U.S. 32, 44 S. Ct. 283, 68 L. Ed. 549 (1924) ; Martinez-Angosto v. Mason, 344 F.2d 673 (2d Cir. 1965) . However, note should be taken of additional executive authority under treaties, such as those relating to extradition (Treaties, 4 Hackworth, Digest 462); Matter of Perez-Jiminez, 10 I. & N. Dec. 309 (BIA 1963) , or the return of deserting military or naval personnel (see Medina v. Hartman, 260 F.2d 569 (9th Cir. 1958)) . See also Perez-Varella v. Esperdy, 285 F.2d 723 (2d Cir. 1960) . As to the latter, however, cf. supra Martinez-Angosto.)
The Immigration and Nationality Act specifically provides that except as to the ``powers, functions, and duties'' conferred upon the President, Secretary of State, Department of State or diplomatic or consular officers, ``the Attorney General shall be charged with the administration and enforcement'' of the Act. ( INA 103(a), 8 U.S.C. 1103(a) . See Hernandez v. Cremer, 913 F.2d 230, 233, 8 Immigr. Rep. A2-259 (5th Cir. 1990) (The Immigration and Nationality Act of 1952 ``transferred extensive authority over immigration from Congress to the Executive Branch. Section 1103(a) charges the Attorney General with the administration and enforcement of all laws relating to the immigration and naturalization of aliens, except insofar as power is specifically delegated to other actors''). )
An apparent departure from this concept occurred during the Iranian hostage crisis, when a court suggested that even in the absence of statutory authorization the President had power, under his foreign affairs function, to impose discriminatory measures, not wholly irrational, against Iranian nationals in the United States. (.Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1980) . Cf. Shahla v. INS, 749 F.2d 561, 1 Immigr. Rep. A2-405 (9th Cir. 1984) (mootness precluded challenge to Iranian regulations; otherwise court could consider whether ``the political branches had used a foreign policy crisis as an excuse for treating aliens arbitrarily''); Shoaee v. INS, 704 F.2d 1079, 1083 (9th Cir. 1983) (``while a President's action in conducting foreign policy may be unconstitutional unless there is express or implied congressional authorization for those actions,'' the INA ``provides a statutory base for the I.N.S. regulations concerning Iranians in the United States''). )
Thereafter, another court, upholding an Executive Order barring aliens from federal employment, found that the President's constitutional responsibility for foreign affairs and treaties, in combination with specified statutory provisions, provided adequate authority for the Executive Order.( Wong v. Campbell,626 F.2d 739, 743 (9th Cir. 1980) (``We do not necessarily find any one of the foregoing to be sufficient in and of itself''). See also Yassini v. Crosland, 618 F.2d 1356 (9th Cir. 1980) (President's foreign affairs power justified directive revoking, without advance notice, deferred departure for Iranians). )
. Another case, while acknowledging that foreign affairs considerations are relevant in executing a statutory mandate, observed that ``the executive cannot act as a lawmaker without a delegation of authority or mandate from Congress.'' (Olegario v. United States, 629 F.2d 204, 224, 226-28 (2d Cir.1980) (procedure for naturalization of Filipinos during World War II).)
This does not mean that Congress must spell out every detail of administrative action. Executive officers necessarily must have wide latitude in devising procedures. Congress need only formulate the basic policies; it can leave the details of administration to executive officers. And it can give such officers wide discretion in making determinations under policies proclaimed by Congress. ( Jay v. Boyd, 351 U.S. 345, 76 S. Ct. 919, 100 L. Ed. 1242 (1956) ; Carlson v. Landon, 342 U.S. 524, 72 S. Ct. 525, 96 L. Ed. 547 (1952) ; Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1980) (``The statute need not specifically authorize each and every action taken by the Attorney General, so long as his action is reasonably related to the duties imposed upon him.'').) One reservation should be noted. Executive officers cannot be given power to impose punishment for crime. Such criminal punishment can be imposed only by the courts, under procedures complying with constitutional procedural safeguards relating to criminal prosecutions.
To Whom Congressionally Approved Removal Applies
[1]Aliens
The deportation laws are aimed at aliens, and the establishment of alienage is thus an essential prerequisite to a removal order. ( Bilokumsky v. Tod, 263 9 (1923) ; Ng Fung Ho v. White, 259 U.S. 276 (1922)) An alien cannot resist deportation because of long residence in this country and family ties established here. ( Carreon-Hernandez v. Levi, 409 F. Supp. 1208 (D. Minn. 1976) .)
Nor is the government estopped from removing an alien because he or she originally was granted permanent resident status. (De Hernandez v. INS, 498 F.2d 919 (9th Cir. 1974) (no showing of affirmative misconduct). ) If it appears that he or she is now an alien, he or she may be subject to the deportation laws. The statute defines an alien as ``any person not a citizen or national of the United States.'' (INA 101(a)(3), 8 U.S.C. 1101(a)(3) While this negative definition is not too informative, it may be stated that the law generally applies to persons born in a foreign country who have not become U.S. citizens. ( It is not necessary to ascertain whether the person in question is a national of any foreign country. If he or she is not a national or citizen of the United States the person is an alien, even though he or she may be stateless, and if an alien violates the statute an order of deportation may be entered against him or her.
[2]Citizens
It is not important to determine whether Congress has power to order the banishment of U.S.citizens, for Congress never has attempted to do so explicitly but the effect of the Congress’ actions has been the exile of numerous persons who are citizens. Under their own terms the deportation laws never have applied to citizens of the United States. Therefore, there is no jurisdiction to order deportation when a respondent establishes in a removal proceeding, or in a court review of a removal order, that he or she is actually a citizen of the United States. ( Ng Fung Ho v. White, 259 U.S. 276 (1922) .)
For our purposes, the manner of acquisition of such citizenship is unimportant. A person is equally a U.S. citizen whether he or she became a citizen at birth in the United States, at birth abroad to U.S.parent or parents, through naturalization or derivation from a parent's naturalization, through collective grant by Congress, or in any other way. (Various methods of acquiring U.S. citizenship are described inINA 301 et seq., 8 U.S.C. 1401 et seq.
Being a U.S. citizen he or she is not amenable to deportation, regardless of the type of misconduct with which he or she is chargeable. Of course, if a U.S. citizen loses his or her citizenship through expatriation or denaturalization, he or she becomes an alien and may be subject to removal.
//
ARGUMENT
As a first matter, it is important to note that there is no decisions the Petitioner has found that allows that the Court can grant his wish. Nonetheless, the envelope must be pushed and the demand must be made.
As shown above, the Congress of the United States has been enabled by the Courts of the United States in its actions regarding immigration and naturalization. This causes the factor where the Petitioner states that Congress may not place into statute any law that it is specifically prohibited from enacting by the Constitution of the United States and this renders all of the INA, with the exception of the naturalization statutes, to be void and unconstitutional because Congress did not have the constitutional authority to enact those statutes when they were enacted.
It is the belief of the Petitioner that Congress may, under the Naturalization Clause, set forth the terms wherein a person can come into the country to seek citizenship. There may be conditions in that set of rules where the person may be removed if he does not live up to the criteria set by Congress, but there is absolutely no support for a regimen of removal set forth by Congress in the Constitution. The Courts have been wrong. In decisions made by the District Courts in the State of Washington the Court has responded to attacks on the Congress’ power by stating that the “Courts have long recognized that Congress has plenary power over aliens.” But that does not negate the fact that there is no support in the Constitution for the premise. The Supreme Court has cited that Congress may make laws impacting aliens where such laws would be offensive and inapplicable to citizens. The Supreme Court has called the power of Congress “broad.” "In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens." Mathews v. Diaz, 426U.S. 67, 79-80, 48 L. Ed. 2d 478, 96 S. Ct. 1883 (1976). In , Zadvydas v. Davis, 533 U.S., at 718, 150 L Ed 2d 653, 121 S Ct 2491 (Kennedy, J., dissenting) ("The liberty rights of the aliens before us here are subject to limitations and conditions not applicable to citizens"); Reno v. Flores, 507 U.S. 292, 305-306,123 L. Ed. 2d 1, 113 S. Ct. 1439 (1993) ("Thus, 'in the exercise of its broad power over immigration and naturalization, 'Congress regularly makes rules that would be unacceptable if applied to citizens'" (quotingFiallo v. Bell, 430 U.S. 787, 792, 52 L. Ed. 2d 50, 97 S. Ct. 1473 (1977) (quoting Mathews, supra, at 79-80, 48 L Ed 2d 478, 96 S Ct 1883)); United States v. Verdugo-Urquidez, 494 U.S. 259, 273, 108 L. Ed. 2d 222, 110 S. Ct. 1056 (1990.. These findings are inconsistent with the Constitution of the United States.
The Tenth Amendment provides that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X. This language "confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States." New York v.United States, 505 U.S. 144, 157, 120 L. Ed. 2d 120, 112 S. Ct. 2408 (1992). Thus, for example, Congress may not command states to administer federal regulatory programs, conscript state officers directly, or otherwise treat state governments as federal hand-maidens. See New York v. United States,179 F.3d 29, 33-34 (2d Cir. 1999), cert. denied, 120 S. Ct. 932 (2000). What we deal with here is the powers of Congress as cited by the Constitution. "The Constitution authorizes Congress to 'establish auniform Rule of Naturalization' (Art. I, 8, cl. 4)," and naturalization remains "a privilege to be given or withheld on such conditions as Congress sees fit." Schneiderman v. United States, 320 U.S. 118, 131, 63S. Ct. 1333, 87 L. Ed. 1796 (1943). There is nothing wrong with that exercise of power. As stated previously, Congress can enter into compacts with individual aliens to come into the country and follow some regimen that would ultimately lead to citizenship or removal if the person fails to comply with the requirements of the regimen, but Congress cannot, when it finds someone in the United States, who has not come in as a part of that compact, remove that person from the United States by creating an agency to do so and by legislating that such be done. The power of the Congress to “establish an uniform Rule of Naturalization” cannot be extended into a “National Rule of Deportation.” In exercising this authority, the National Legislature can provide for the "revocation" of "illegally procured" certificates of naturalization as in 8 U.S.C. 1451 . "[A] naturalized citizen's failure to comply with the statutory prerequisites for naturalization renders his certificate of citizenship revocable as 'illegally procured' under 8 U.S.C. 1451(a)." Fedorenko, 449 U.S. at 514. But, congress may not, as it has done here, order the removal of a person found in the United States, be he a citizen or not. That power is specifically reserved in the Constitution to the People. The limitation placed upon Congress by the Tenth Amendment is binding upon Congress and the Courts have been wrong to circumvent that limitation.
This limitation on federal authority is potent here. The Supreme Court declared almost a half-century ago, the proposition "that the formulation of . . . policies [pertaining to the entry of aliens and their right to remain here] is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government." Galvan v. Press, 347U.S. 522, 531, 98 L. Ed. 911, 74 S. Ct. 737 (1954). But the Supreme Court was wrong to have awarded this power to Congress because it does not exist in the Constitution. The Federalist Papers do not contain any hint of such a power. In fact, the First Assembly wrestled with the idea and decided not to entrust such a power to Congress while entrusting the power to form a policy of naturalization. Since then, the Court repeatedly has reiterated that Congress's legislative power in enacting immigration-related laws is at least as pervasive and encompassing as in any conceivable field. See, e.g., Reno v. Flores, 507 U.S.292, 305, 123 L. Ed. 2d 1, 113 S. Ct. 1439 (1993); Fiallo v. Bell, 430 U.S. 787, 792, 52 L. Ed. 2d 50, 97S. Ct. 1473 (1977); see also Amanullah v. Nelson, 811 F.2d 1, 4 (1st Cir. 1987) (collecting cases). In short, immigration is uniquely a matter of federal, not local, concern. See U.S. Const. art. I, 9, cl. 1. it is the belief of the Petitioner that such findings by the Courts, including the Supreme Court has been wrong in that the Supreme Court cannot grant to Congress a power that the Constitution does not specifically provide. Absent a Constitutional Amendment granting the power to Congress, Congress cannot exhibit that power and all the laws regarding immigration, insofar as they do not relate to naturalization must be enjoined. Simply put, Congress may not make any law that the Constitution of the United States does not specifically allow it to do. The Tenth Amendment specifically states that any power not granted to Congress in the Constitution is prohibited from Congress. Unlike the State provisions, the prohibition against Congress is absolute.
The cases above are presented to show the depth of which Congress has acted on this issue without authority. They have violated the freedoms of the Amendments of the Constitution by enacting laws that are clearly unconstitutional as they have been enacted absent any authority.
For this reason, the Petitioner calls upon this Court to make a declaration that Congress may not enact legislation dealing with removal of immigrants, removal of persons found in the United States who are not immigrants, removal of persons who are citizens, without constitutional authority for such enactment. Further, the Court is called upon to issue an injunction that says, in principle, that the actions of Congress throughout the period from 1875 to the present has been illegal in that the laws enacted by Congress has been in violation of the Tenth Amendment which prohibits Congress from such actions. In particular, the Court must find that the power given Congress in the Constitution is solely the power to “form a uniform rule of naturalization” and that does not include a “uniform rule of deportation and removal, unless such is incidental to compacts that Congress makes with persons it permits to come into the Country to seek naturalization based upon conditions.
The actions of Congress in this regard violates the rights of the persons it affects under the following grounds:
First Amendment Right To Freedom Of Speech, Religion, Assembly.
Second Amendment Right To Bear Arms.
Fourth Amendment Right To Be Secure In One’s Own Person.
Fifth Amendment Right To Due Process.
Sixth Amendment Right To Counsel, Fair Hearing.
Eight Amendment Right To Reasonable Bail And To Be Free From Cruel And Unusual Punishment.
Fourteenth Amendment Right To Due Process.
It is the position of the Petitioner that the forefathers anticipated that not everyone would be citizens or even legal residents and the distinction between the two is a degree of rights accorded such person. Petitioner believes that it is perfectly legal to have in the United States a permanent underclass who can move out of the underclass by applying for citizenship. They may be ejected from one state to its borders, but they may not be ejected from the United States. In the years from 1600 through 1875 there were no deportations from the United States and the Constitution does not allow for such. This does not mean that Congress cannot prevent persons from coming in, but once they are found here, they cannot be removed by Congress. This is directly in line with the Statute of Liberty’s incantation:
Not like the brazen giant of Greek fame,
with conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand a mighty woman with a torch,
whose flame is the imprisoned lightning,
and her name Mother of Exiles.
From her beacon-hand Glows world-wide welcome;
her mild eyes command The air-bridged harbor that twin cities frame,
"Keep, ancient lands, your storied pomp!" cries she with silent lips.
"Give me your tired, your poor, Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore,
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!" Emma Lazarus.
Transla
Official Website of the Department of Homeland Security
Get Email Updates
Share This Page 
Print
