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Chapter 7

Rights of Detainees After
After Detention


If the banishment of an alien from a country. . .where he enjoys, under the laws, a greater share of the blessings of personal security and personal liberty than he can elsewhere hope for. . .be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied.

At several points in this nation's history, its treatment of noncitizens within its borders has been inhospitable, often disgraceful.2 Although treatment of aliens and attitudes toward them have improved in many respects, it nevertheless remains true that 'Fong Yue Ting v. United States, 149 U.S. 698, 740-41 (1893) (Brewer, J., dissenting) (quoting President James Madison, 4 Elliot's Debates 555). * During periods of anti-alien hysteria in this country, citizens and resident aliens identifiable with major immigrant groups have often suffered harassment and contemptuous treatment from law enforcement officials. The sinophobia of the late 19th century that resulted in a national drive to exclude Chinese from American boundaries led to localized expulsion efforts such as the one that occurred “[i]n 1903 [when] the Chinese ghetto in Boston was cordoned off and surrounded by police and 234 Chinese were arrested solely in order to find 40 persons sentenced to deportation." S. Lyman, The Chinese Americans (1974), p. 69. Years later these local tactics were to be replaced by nationally coordinated expulsion drives. In early 1920 President Wilson's Attorney General, A. Mitchell Palmer, conducted a series of raids on homes, seeking out radicals, communists, and aliens. On a single night in January 1920, more than 4,000 alleged communists in 33 different cities were arrested; of 5,000 arrest warrants sworn out for aliens, only a few more than 600 aliens were actually deported. S. Morison, The Oxford History of the American People (1965), pp. 883-84.

In 1954 the INS instigated "Operation Wetback," an unprecedented campaign to locate and remove undocumented Mexican aliens from the United States. "Assisted by Federal, state, county, and municipal authorities-including railroad police officers, custom officials, the FBI, and the Army and Navy-and supported by aircraft, watercraft, automobiles, radio units, special task forces, and perhaps most important of all, public sentiment, including that of growers, the Border Patrol launched the greatest maximum peacetime offensive against a highly exploited, unorganized and unstructured 'invading force' of Mexican migrants." J. Samora, Los Mojados-The Wetback Story (1971), p. 52. “With military proficiency, a total of 1,075,168 illegal Mexican aliens were apprehended." "Among other things, Operation Wetback demonstrated the precarious status of Mexicans in the United States and exhibited their vulnerability to regulation and control, but more specifically their vulnerability to a single government agency. A sizable, indeterminate proportion of the Mexican


aliens today are often relegated to second-class status, notably in the meager due process protection provided in administrative proceedings to expel them from the country. The effect of the deportation laws is particularly acute for those people who population residing in the United States in the 1950s was removed by the INS and returned to Mexico. Perhaps as much as one-sixth of the total Mexican-origin population living in this country was deported." G. Cardenas, "United States Immigration Policy Towards Mexico: A Historical Perspective," Chicano Law Review, vol. 2 (1975), pp. 66, 81 (footnotes omitted).

"In commenting on this report, the INS stated:

This chapter, concerning the deportation of aliens, makes repeated references to the "meager" due process protections afforded aliens in deportation hearings. The Service disagrees with this characterization of an alien's rights. Section 242(a) of the I&N Act, 8 U.S.C. 1252(a), provides that the following procedures are required at deportation proceedings:

(1) the alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be held;

(2) the alien 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;

(3) the alien shall have a reasonable opportunity to examine the
evidence against him, to present evidence in his own behalf, and to
cross-examine witnesses presented by the Government; and
(4) no decision of deportability shall be valid unless it is based upon
reasonable, substantial, and probative evidence.

In addition, the Service requires that all immigration judges (Special
Inquiry Officers) be attorneys. Only quasi-judicial functions are
performed by immigration judges thereby avoiding a possible conflict
of interest. Moreover, the Attorney General has created a Board of
Immigration Appeals, which is entirely separate from the INS, to hear
appeals from decisions of immigration judges. Board decisions may be
reviewed in Federal Court.

Leonel Castillo, Commissioner, Immigration and Naturalization Service, letter to Louis Nunez, Staff Director, U.S. Commission on Civil Rights, Sept. 28, 1979 (hereafter cited as Castillo Letter).

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are precluded or hindered in legal admission into the United States because of immigration admissions policies that favor some nationalities over others.* This discrimination in the immigration admissions policy is further compounded by a deportation process that can result in the expulsion of aliens in circumstances where they might have been granted relief from deportation if they were members of a different nationality. In many instances, an American family suffers the gravest consequences of this discrimination, for the result is either denial of an opportunity for the reunification of the family or the disruption of the family unit.


Although aliens in the United States, regardless of status, are acknowledged to be "persons" within the meaning of the 14th amendment, and thus entitled to due process protection, early Supreme Court cases involving the deportation of aliens limited the requirements of due process in deportation cases.? The Supreme Court in these early cases classified deportation as a civil proceeding. Since certain constitutional rights, such as the right to counsel, the right against self-incrimination, and the prohibition against ex post facto laws, have been considered to be available only in criminal proceedings, the designation of deportation as a civil proceeding has operated to deprive aliens of any real measure of due process. Today, this classification remains a major obstacle to the extension of full due process protections warranted by the often extreme consequences of deportation.

Because the rights of detainees after detention or apprehension hinge on this judicial distinction, an analysis of the evolution of the "civil" classification of deportation proceedings is necessary. The analyThis chapter of the report refers to the "meager due process protection provided in administrative proceedings." Administrative proceedings, as used here, includes not only deportation hearings but also any other administrative device to remove a person from the country, such as voluntary departure without a deportation hearing. Many arrested persons elect voluntary departure without an opportunity to consult with counsel. Those who elect such 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. Because of the severity of the punishment of deportation, it is the position of this Commission that the right to counsel should be provided at that critical administrative stage of the deportation process.

The Commission does not dispute the availability of certain due process protections during deportation hearings. But we note that those protections are only available at deportation hearings. Only a small percentage of persons arrested for immigration law violations receive such a hearing. See testimony of Chief Immigration Judge Herman Bookford, before the U.S. Commission on Civil Rights, hearing, Washington, D.C., Nov. 14-15, 1978, p. 275 (hereafter cited as Washington Hearing Transcript).

⚫ See chapter 2.

• For example, relief from deportation under 8 U.S.C. §1255 (1976) is not available to deportable aliens from every country. Aliens who were

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Deportation is conceded by many to be a serious action, yet because it is said to arise from the sovereign power, the courts have been unwilling to curtail or limit the power to deport. The designation of deportation as a civil proceeding, which removed the expulsion process from strict constitutional scrutiny, stems from the Supreme Court's refusal to

admitted under nonimmigrant visas but who are deportable for overstaying their visas would be eligible to adjust their status to that of persons admitted for permanent residence if they met three requirements under that section of the Immigration and Nationality Act: (1) they apply for adjustment of status; (2) they qualify for an immigrant visa under the preference system; and (3) an immigrant visa under that preference category is available. Because of the smaller number of immigrant visas available to Hong Kong (600 per year) than to England (20,000 per year), immigrant visas are rarely immediately available to aliens from Hong Kong. Thus, an alien from Hong Kong who applied for adjustment of status and who qualified for a sixth preference immigrant visa could not obtain relief from deportation under 8 U.S.C. §1255 (1976), while an alien from England would be able to do so (as of February 1979).

• Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

'Fong Yue Ting v. U.S., 149 U.S. 698, 730 (1893); The Japanese Immigrant Case, 189 U.S. 86, 97 (1903); Zakonaite v. Wolf, 226 U.S. 272, 275 (1912).

• Mahler v. Eby, 264 U.S. 32 (1924); Bugajewitz v. Adams, 228 U.S. 585, 586 (1913); Galvan v. Press, 347 U.S. 522 (1953).

• Fong Yue Ting v. U.S., 149 U.S. at 713.

10 Id.; Harrisades v. Shaughnessy, 342 U.S. 580 (1951).

consider deportation to be a form of punishment, though the consequences of deportation have been frequently assailed by individual members of the Court as being too severe.


Beginning with the Chinese Exclusion Act of 1882,11 which precluded the immigration of Chinese laborers, immigration legislation has sought to determine who can enter the country, as well as on what terms. Immigration restriction laws in the decade following the passage of the Chinese Exclusion Act created certificate requirements for Chinese who desired to enter, reenter, or remain in the United States. 12 Under the 1892 act, Chinese already residing in this country were required to obtain and carry identification papers, known as "certificates of residence."13 Those not possessing such certificates were subject to deportation.

These acts did not go unchallenged. In Fong Yue Ting v. United States, 14 the petitioners contended that the 1892 act was unconstitutional and denied them due process of law without a judicial hearing. Although a strong dissent15 argued against deportation because it amounted to banishment16 and a deprivation without due process of law," the majority opinion rejected those contentions. Instead, it held that the Nation's sovereign power allowed the Federal Government to set the conditions and procedures under which persons could enter, remain, or be expelled from this country;18 that deportation was not punishment;19 and thus, that deportation was not a deprivation "of life, liberty or property, without due process of law."20

In Wong Wing v. United States, 21 the petitioner argued that deportation was in the nature of punishment and could not be imposed without a trial. The Court rejected the argument, citing Fong Yue Ting, and reaffirmed the power of the Federal Government to deport aliens. Nevertheless, the Court began to limit the Federal Government's power over aliens

11 Ch. 126, 22 Stat. 58 (1882).

12 Ch. 220, 23 Stat. 115 (1884); ch. 1015, 25 Stat. 476 (1888); ch. 1064, 25 Stat. 504 (1888); ch. 60, 27 Stat. 25 (1892).

13 Ch. 60, 27 Stat. 25 (1892).

14 Fong Yue Ting v. U.S., 149 U.S. 698 (1893).

15 Id. at 732 (Brewer, J. dissenting); id. at 741 (Field, J., dissenting); id. at 761 (Fuller, C.J., dissenting).

16 Banishment has been recognized as punishment when applied to citizens. See State v. Doughie, 237 N.C. 368, 74 S.E. 2d 922 (1953).

17 In his dissenting opinion in Fong Yue Ting, Justice Brewer stated: Section 6 [of the 1892 act] deprives of "life, liberty, and property without due process of law." It imposes punishment without a trial, and punishment cruel and severe. It places the liberty of one individual subject to the unrestrained control of another. . . .Deportation is a punishment. It involves first an arrest, a deprivation of liberty; and, a second, a removal from home, from family, from business, from property.

in other respects by ruling that administrative procedures could not be used to detain and sentence aliens under a law that made failure to have certificates of residency a criminal offense. If it wished to impose a criminal sentence, the Court said, the Federal Government would have to institute criminal proceedings. This case was the first in a long line of cases that extended some constitutional protections to aliens, but, at the same time, upheld the absolute power of the Government to deport.

In Bugajewitz v. Adams, 22 the petitioner was being deported under a Federal immigration statute as a prostitute, although she could have also been tried in criminal proceedings for a violation of local law. The Court held that this decision did not make deportation a punishment for a crime, but was "simply a refusal by the government to harbor persons whom it doesn't want.'


In Ng Fung Ho v. White, 24 the Court reiterated the Federal Government's power to deport and its power to do so by executive proceedings. However, the Court required that a judicial determination must be made of the petitioner's claim to United States citizenship, since Executive orders for deportation are only valid as to aliens. Justice Louis Brandeis wrote that such a judicial proceeding was necessary because the person was facing deportation, which:

may result also in loss of both property and life; or of all that makes life worth living. Against the danger of such deprivation without the sanction afforded by judicial proceedings, the Fifth Amendment affords protection in its guarantee of due process of law.25

Despite the acknowledged harsh consequences of deportation, the Court was still reluctant to equate deportation with punishment."

With the failure of direct attacks on the power to deport, efforts turned to invoking individual consti

149 U.S. at 739-40.

18 Id. at 713, 731. 19 Id. at 730.

20 Id.

21 163 U.S. 228 (1895).

22 228 U.S. 585 (1913).

23 Id. at 591.

24 259 U.S. 276 (1922). 25 Id. at 284-85.

26 Quite naturally, the pronouncements of the Supreme Court were followed in the lower Federal courts. In Constanzo v. Tillinghast, 56 F.2d 566 (1st Cir. 1932), aff'd on other grounds, 287 U.S. 341 (1932), for example, the court rejected the contention that deportation constituted cruel and inhuman punishment under the eighth amendment, notwithstanding that Constanzo had entered the United States as an infant, had lived in this country for over 25 years, and had established a family here.

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

27 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 membership 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

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

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.

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34 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).

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."


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.

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.

41548 F.2d 37 (2d Cir. 1977).

42 8 U.S.C. §1182(c) (1976) provides:

Aliens lawfully admitted for permanent residence who temporarily

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

One final example of statutory construction by the courts to avoid the dire consequences of deportation is Lok v. INS. 41 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. 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

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.

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