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tutional rights in deportation cases. The continuing classification of deportation as a civil proceeding has severely limited the relief to be obtained from the courts. However, the courts, although they felt compelled to follow earlier decisions that Congress has unfettered discretion to regulate immigration, have attempted to mitigate the harsh effects of deportation by strictly and narrowly construing any law that was the basis for deportation.

The Court's differing interpretations of a deportation statute explain the different results in Galvan v. Press 27 and Rowoldt v. Perfetto. 28 Those cases centered on the Internal Security Act of 1950,29 as amended,30 which provided for the deportation of members of the Communist Party. In Galvan, the earliest case, the Court reasoned that Congress had found the Communist Party, then a legal political organization in California, to be dedicated to the violent overthrow of the Government and accordingly made membership alone sufficient grounds for deportation. But in Rowoldt, the Court held that the law required the membership to be "meaningful” in order to be grounds for deportation. The Court relied on its holding in Rowoldt to grant relief from deportation to another petitioner.31 In that case, the majority opinion stated that: "deportation is a drastic sanction, one which can destroy lives and disrupt families and that a holding of deportability must

therefore be premised upon evidence of meaningful association."32 From these three cases it can be seen that the Court moved from a broad construction of congressional language to a more narrow construction in order to avoid the harshness of deportation.

The courts have also been able to offer a measure of relief by a narrow definition of the word "entry.” Certain events, such as receiving public welfare or convictions for crimes of moral turpitude, are grounds for deportation if they occur within a certain time period after entry into the United States. Delgadillo v. Carmichael 33 involved a legal resident crewman whose ship, because it was surrounded by the enemy, was forced to dock at a foreign port before completing its journey from Los Angeles to New York. The Court held that his return from that foreign port to the United States did not constitute an entry, for "entry” meant more than just the physical act of entering the United States; it had to involve coming voluntarily from a foreign port.34 In reaching its decision, the Court stated, “Deportation can be the equivalent of banishment or exile. The stakes are indeed high and momentous for the alien who has acquired his residence here."35

37 Galvan v. Press, 347 U.S. 522 (1953). In that case, the Court found
nothing unconstitutional about the retroactive nature (i.e., ex post facto
effect) of the Internal Security Act of 1950, which made being or having
been at any time in the past a member of a communist organization grounds
for deportation. Galvan, who had entered the United States in 1918, had
joined the Communist Party in 1944 when it was a legal political
organization with candidates appearing on California election ballots but
had terminated his membership in 1946. Under the 1940 Alien Registration
Act, ch. 439, 54 Stat. 670, in effect at the time of his membership, a showing
that Galvan actually did advocate the violent overthrow of the Federal
Government was required before he could be deported. But the majority
opinion in Galvan held that the 1950 act "dispensed with the need for such
proof” and made mere membership in the Communist Party a sufficient
ground for deportation. The majority further held that Galvan's member-
ship was not so “nominal" as to provide him with relief from deportation
under a 1951 amendment to the Internal Security Act. Id. at 526–29.
The Court, however, did recognize the similarity between deportation and
punishment and seemed to lament the earlier decisions:

much could be said for the view, were we writing on a clean slate, that
the Due Process Clause qualifies the scope of political discretion
heretofore recognized as belonging to Congress in requlating the entry
and deportation of aliens. And since the intrinsic consequences of
deportation are so close to punishment for crime, it might fairly be said
also that the ex post facto Clause, even though applicable only to punitive

legislation, should be applied to deportation. (emphasis added) Id. at 530-31. Nevertheless, the Court believed the question as to whether deportation was a civil proceeding and whether the ban on ex post facto laws ever applied to civil proceedings had long been settled, and it rejected the appeal. The dissent looked at the disastrous consequences to the petitioner and argued against the deportation of one who had lived in the United States for 36 years:

Now in 1954, however, petitioner is to be deported from this country

solely because of his past lawful membership in that party. . . .For joining a lawful political group years ago-an act for which he had no possible reason to believe would subject him to the slightest penaltypetitioner now loses his job, his friends, his home, and maybe even his children, who must choose between their father and their native

country. Id. at 532-33. 28 Rowoldt v. Perfetto, 355 U.S. 115 (1957). In that case, the Court found the evidence to be insufficient to support an order for deportation. Rowoldt had entered the country in 1914 and became a dues-paying member of the Community Party in 1935. Under the Internal Security Act, as interpreted in Galvan, such membership was an immediate ground for deportation. However, the 1951 amendment to that act exempted persons from deportation based on Communist Party membership where that affiliation was involuntary. The Court, in granting Rowoldt relief from deportation, declared that the 1951 amendment required the membership to be "meaningful." Id. at 120. The dissent pointed out the inconsistency of not deporting this petitioner when Galvan was found to be deportable under very similar circumstances. 29 Ch. 1024, 64 Stat. 987 (1950). 30 Ch. 23, 65 Stat. 28 (1951). 31 Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963). 32 Id. at 479. 33 332 U.S. 388 (1947). ** In a similar case that year, a Federal appeals court reached the same conclusion. In Di Pasquale v. Karenuth, 158 F.2d 878 (2d Cir. 1947), the petitioner, on a trip from Buffalo, New York, to Detroit, Michigan, had taken a train whose route passed through Canada at one point. The question before the court was whether that trip constituted an entry for the purpose of measuring whether a criminal conviction had occurred within 5 years after the alien's entry, thus making petitioner deportable. The court answered that an entry must be voluntary, not simply an accident. 35 332 U.S. at 391 (footnotes omitted).

sanctions should not be imposed where moral culpability is lacking. 40

The phrase "sentenced more than once of crimes involving moral turpitude” was the subject of Fong Haw Tan v. Phelan, 36 In this case, the petitioner had been convicted on two different counts of a single indictment. The circuit courts differed as to whether this phrase meant any conviction beyond the first sentence or whether it required conviction for crimes involving two different incidents. The Court decided that the Immigration Act intended to deport those who commit a crime and are sentenced and then commit another and are sentenced again. Therefore, Fong Haw Tan was not deportable. The Court cited Delgadillo v. Carmichael for the proposition that deportation can amount to banishment and a deportation statute thus requires strict construction. Deportation, the Court said, "is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty."'37

Another ground on which long-time residents may be deported is a conviction for possession or use of drugs or narcotics. Federal courts have strictly construed the term “conviction” in some cases to mitigate the harshness of deportation. In Rehman v. INS, 38 the court read "conviction" very narrowly. It found that under Federal law in an analogous case the simple possession of hashish with which petitioner was charged could be expunged from the record and there would then be no “conviction” for the purpose of deportation. Also, since the petitioner was given probation, the court found no real "conviction" existed.

In Lennon v. INS, 39 the musician was an excludable alien at the time of entry because of a prior British conviction for possession of hashish. British law, unlike American, did not require proof that an individual knowingly possessed the drug for conviction. Because of this difference, the court found that the musician's conviction in Britain could not be used to exclude or deport him.

One final example of statutory construction by the courts to avoid the dire consequences of deportation is Lok v. INS. “ In that case, petitioner Lok asserted that he was eligible for discretionary waiver under the law.42 To be eligible for that type of discretionary relief under the statute, an individual must have been a domiciliary of the United States for 7 consecutive years. The issue before the court was whether or not this 7-year period must be a "lawful unrelinquished domicile" or must accrue after that individual was "lawfully admitted for permanent residence.” The Court noted the severity of deportation, citing Lennon v. INS, and thus stated that it is "settled doctrine, that deportation statutes, if ambiguous, must be construed in favor of the alien."43 Because of the ambiguity of that statutory provision, the Court held that such discretionary relief is available to those who meet the 7-year “lawful unrelinquished domicile” requirement.

An ever-increasing awareness of the severity and penal character of deportation has resulted in courts going to great lengths in interpreting statutory language to avoid the dire consequences of deportation wherever possible. The courts, however, have considered themselves to be hamstrung by the early decisions stating that deportation is not punishment and must therefore be considered a civil proceeding.

a Viewed from the standpoint of the person deported deportation must be considered to be a form of punishment.

The preceding cases illustrate that, at least for resident aliens or long-time residents of the United States, deportation is a very severe punishment. Yet, the alien is effectively deprived of full constitutional protections simply by the courts' denial that deportation is punishment and is thus a "mere civil proceeding."

Recent judicial decisions suggest that, in certain areas of due process, the courts are willing to ignore the civil-criminal characterization question and look at the nature of the penalty inflicted. For example, decisions of the Supreme Court have extended the

Deportation is not, of course, a penal sanction. But in severity it passes all but the most Draconian criminal penalties. We therefore cannot deem wholly irrelevant the long unbroken tradition of the criminal law that harsh

36 333 U.S. 6 (1947).
37 Id. at 10.
38 544 F.2d 71 (2d Cir. 1976).
39 527 F.2d 187 (2d Cir. 1975).
40 Id. at 193.
" 548 F.2d 37 (2d Cir. 1977).
42 8 U.S.C. 81182(c) (1976) provides:

Aliens lawfully admitted for permanent residence who temporarily

proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraphs (1) to (25), (30), and (31) of subsection (a) of this section. Nothing contained in this subsection shall limit the authority of the Attorney General to exercise

the discretion vested in him under section 1181(b) of this title. 43 548 F.2d at 39.

right to counsel beyond the narrow definition of criminal proceedings and have made it clear that the question of whether assistance of counsel is required cannot be answered by the characterization of a proceeding as civil or criminal. In deportation, too, the label attached to the proceedings should not obscure the drastic consequences of deportation for individuals and for their families, who must remain behind or abandon their own country, or deny that the real issue is whether an alien who is deported is being punished, in the common meaning of the word, for violating a provision of the immigration laws.

against the alien, an alien arrested without warrant shall be advised of the reason of his arrest and of his right to be represented by counsel of his own choice, at no expense to the Government. Such alien is also provided, at this time, with a list of the available free legal services programs qualified under Part 292a of 8 CFR located in the district where his deportation hearing will be held. Both of these provisions go beyond what is required by the statute and the Constitution.46

Right to Counsel

Courts have repeatedly recognized the importance of counsel as a shield against an individual's loss of personal, constitutional, and statutory rights. Yet, for the thousands who are ejected from this country every year, this protection is substantially absent.

The Immigration and Nationality Act provides:

In any exclusion or deportation proceedings before a special inquiry officer and in any appeal proceedings before the Attorney General from any such exclusion or deportation proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose. [emphasis added]"5

The Immigration and Nationality Act provides that persons have the privilege of legal representation only when they are placed under formal deportation (as well as exclusion) proceedings. 47 The advisement of the availability of free legal services programs to provide counsel to arrested persons is also limited to the situation where persons are placed under formal proceedings. 48 Only a small number of arrested persons actually receive a deportation hearing. As noted in the report, many arrested persons elect voluntary departure without an opportunity to consult with counsel. Testimony received by the Commission, but denied by INS, alleged that in some instances arrested persons were told that voluntary departure would not be available to them if they chose to proceed with a deportation hearing.49 Those who elect voluntary departure are potentially waiving their eligibility under the immigration laws for relief from deportation that would entitle them to remain in this country lawfully. Although deportation is among the most severe punishments that can be imposed, 50 persons subject to the deportation process receive the right to counsel only after the institution of formal deportation proceedings. On the other hand, defendants in criminal cases have the right to counsel at all critical stages of the proceedings.

In the criminal justice system, the right to counsel is deemed fundamental.51 Thus, the Supreme Court has held, on numerous occasions, that effective assistance of counsel must be available at all critical stages of the proceedings. 52

In Miranda v. Arizona, 53 the Supreme Court recognized the crucial potential for coercion and

However, the statement in the basic statute that the right to counsel exists in exclusion or deportation proceedings has been read very narrowly by the INS, with resulting confusion about representation during the period surrounding apprehension and "processing" of an alien.

The INS, in commenting on this chapter, stated:

The report also speaks of a denial of right to counsel by Service practices, and confusion as to when such rights attaches. As noted in the report, 8 CFR 287.3 as amended makes clear that after the examining officer has determined that formal proceedings will be instituted


" In re Gault, 387 U.S. 1 (1966) (civil commitment of a juvenile); Gagnon v. Scarpelli, 411 U.S. 778 (1973) (revocation of probation). 45 8 U.S.C. 1362 (1976). ** Castillo Letter. In light of the severe consequences of the penalty of deportation, it is the view of this Commission that the right to counsel should be available at all critical stages of the deportation process rather than solely at formal deportation proceedings. *7 8 U.S.C. $1362 (1976). 4 44 Fed. Reg. 4651 (1979) (to be codified in 8 C.F.R.).

“ See “Right to Impartial Hearing" section of this chapter of the report. so See "Deportation as a Civil Proceeding" section of this chapter of the report.

See Gideon v. Wainwright, 372 U.S. 335 (1963); Powell v. Alabama, 287 U.S. 45 (1932).

See Powell v. Alabama, 287 U.S. 45 (1932); Hamilton v. Alabama, 368 U.S. 52 (1961); Miranda v. Arizona, 384 U.S. 436 (1966); U.S. v. Wade, 388 U.S. 218 (1967); Coleman v. Alabama, 399 U.S. 1 (1970). 53 384 U.S. 436 (1966).


intimidation that was present in the interrogation of a person in custody:

Commission has received allegations of INS excesses during factory raids pertaining to the right to counsel. One witness stressed how INS interrogations during raids were designed to eliminate any outside assistance to the alien, even from attorneys.

We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of a crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.54

The Court, while requiring that suspects be advised of their rights before interrogation, also declared the right of suspects to have counsel present at the interrogation.

[T]his is all done in an extreme custodial situation, without the person being apprised of their rights or without the person having any understanding of what the implications are, without an opportunity to see and consult a lawyer, a friend, family. [S]o the situation is one inherently set up so that persons, whether or not they have papers or are not going to talk to INS, are going ultimately to answer the sorts of questions which will result in their deportation. (emphasis added 57

Another witness pointed out the need to clarify the point at which a person in custody is entitled to have counsel:

The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. . . .A once-stated warning,

. delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by interrogators is not alone sufficient to accomplish that end.55

[blocks in formation]

Effective assistance of counsel is similarly important for a person facing deportation, for the time between the initial encounter with an immigration agent and the deportation hearing is often precisely the time when the accused is most helpless and vulnerable to improper pressures. During field investigations and preliminary investigations at INS facilities, conditions are ripe for overzealousness. 56

Many people are convinced that the denial of right to counsel remains a serious problem, and the

It is unclear at what point they are advised that anything they say may be used against them in subsequent hearings, and thirdly, it is unclear at what point they can in fact be given access to counsel-namely, at what point, if there is an attorney out there who is waiting to see the person, and let us say the person is now down in the detention center of INS, it is unclear at what point they are entitled to see that lawyer, and I think that presents some real problems and somehow needs to be addressed.58

* Id. at 467.
55 Id. at 469-70.
56 For example in Navia-Duran v. INS, 568 F.2d 803 (1st Cir. 1977), after 4
hours of interrogation, late in the night, petitioner signed a statement in
Spanish admitting her illegal presence in this country. The facts surround-
ing the incident supported her contention that the statement was the
product of psychological coercion, intimidation, and misrepresentation of
facts by the INS interrogators.
Petitioner was approached from behind at approximately 10 p.m., as she
was about to enter her apartment. Without addressing her by name, a man
identified himself as an INS agent. The agent requested identification,
which she said was inside her apartment. Extremely frightened by this late-
night approach and convinced that she had no choice but to cooperate, she
opened her door and was followed in by two INS agents. She was
questioned for approximately 1-1/2 hours and then taken to the INS office,
where she was questioned further until 2 a.m. One agent told her that she
must leave the country in 2 weeks. When she protested that she needed
more time, the agent reiterated that she must leave in 2 weeks; he
characterized the offer as a fair deal for her. Throughout this interrogation
session, the agent insisted that she had no other choices but to accept the 2-
week departure deadline. Fearing that she would not be permitted to go

home until she cooperated, she signed the statement, which admitted that
she was illegally in this country. Although the printed form that she signed
said that her statement must be freely and voluntarily given, could be used
against her in subsequent proceedings, and listed other rights afforded her,
she claimed that this was never read or explained to her, including her right
to a deportation hearing. She was led to believe that the best deal available
to her was the agent's offer to delay her departure by 2 weeks. Id. at 805.
In Bong Youn Choy v. Barber, 279 F.2d 642 (9th Cir., 1960), the petitioner
was interrogated for 7 hours, ending in the early hours of the morning,
where he was told that if he did not make a statement that was in
conformity with accusations against him, he would be prosecuted for
perjury or deported within 3 weeks. After the interrogation, petitioner
could not sleep and early the next morning complied with the interrogator's
wishes. Petitioner challenged the admissibility of the statement, and the
court concluded that the involuntary statement could not be used because it
violated an essential element of due process.
57 Mark Rosenbaum, attorney, ACLU, testimony before the California
Advisory Committee to the U.S. Commission on Civil Rights, open
meeting, Los Angeles, June 15-16, 1978, p. 337 (hereafter cited as Los
Angeles Open Meeting Transcript).

on the Form I-213 (record of deportable alien). (emphasis added]61

In the Los Angeles district of the INS, agents are instructed to complete a form 1-213, “Record of Deportable Alien," before allowing an alien to contact his or her attorney.

It should also be noted that the elements of time, place, and manner of entry are the precise elements required to convict an alien of the criminal offense of illegal entry. 62

That many legal rights were endangered by the processing stage of immigration law enforcement was recognized in 1931 by the Wickersham Commission:

In any case where the alien desires an attorney the Form I-213 will be completed as set forth in the above paragraph. No additional questions relating to deportability or criminal activity will be directed to him without the attorney's consent or presence. The alien will be allowed to contact his attorney upon completion of the Form I213. (emphasis in original]59

The directive given in the Los Angeles district may also be policy in other areas, as illustrated by the testimony of a Texas attorney:

They took 213s (record of deportable alien] from them and ironically they told them they had a right to an attorney. And when they said, “Our attorneys are right outside the door; we can see them through the little small holes in the door there. We want to talk to him," they said, “No, we'll let them talk to you after we take your statement."60

One of the most striking features of the entire procedure is the lack of counsel for the suspects. No attorneys are allowed in the preliminary examinations, and even at the warrant hearings the persons with whom the processes of deportation laws are apt to come into contact generally have no funds with which to procure lawyers. In the great majority of cases, suspects have no one at any stage of the proceedings to protect their rights. . . .In the first part of this report examples have been given of the many cases in which, when attorneys were present, they were able to establish additional facts or the proper construction and application of the laws and thereby prevent deportation which would otherwise have been effected. In all probability a great many unrepresented persons have been deported whom lawyers could have saved.63

Assistance that counsel may be able to provide after a person has been "processed,” however, may be only illusory where that processing extracts sufficient information to make a deportation hearing a mere formality. The damaging effect that the processing may have for the person interrogated is made clear by instructions given by the Los Angeles district director:

One measure recommended by the Wickersham Commission to help alleviate the problems it saw was to have suspects informed of the availability of free legal services provided by charitable organizations. Nearly 50 years later, this recommendation was implemented by the INS. A new regulation now provides that:

In the field, if the person admits alienage and facts establishing unlawful presence in the United States, the interrogating officer should if at all possible, execute Form SW-424 on the spot. . . . The Form SW-424 properly completed will establish deportability. Consequently, if the alien states he wants an attorney and/or declines to answer questions upon being given the Miranda warning, the information from the Form SW-424 will be utilized to record data as to alienage and time, place and manner of entry

aliens under exclusion and deportation proceedings must be advised of the availability of free legal services programs, and organizations recognized pursuant to 8 C.F.R. 292.2. . . . These final rules are necessary and intended to establish procedures for informing aliens of the availability of free legal services programs in order to afford them full opportunity to obtain legal representation when involved in deporta


58 Peter Schey, attorney, Legal Services Alien Rights Programs, testimo

Los Angeles Open Meeting Transcript, pp. 344-45.
58 Los Angeles District Director, INS, memorandum to Investigations
Unit, Feb. 10, 1978.
60 Laurier McDonald, testimony before the Texas Advisory Committee to
the U.S. Commission on Civil Rights, open meeting, San Antonio, Sept. 12-
14, 1978, p. 30 (hereafter cited as Texas Open Meeting Transcript).

61 Los Angeles District Director, INS, memorandum, to Investigation
Unit, Feb. 10, 1978.
62 8 U.S.C. $1325 (1976).
63 National Commission on Law Observance and Enforcement (Wickers-
ham Commission), Report on the Enforcement of the Deportation Laws in the
United States (1931), pp. 143-44.

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