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Findings and Recommendations Finding 6.1: The INS has failed to update its 1967 handbook, Authority of Immigration and Naturalization Service to Make Arrests (INS Manual M-69), which contains guidelines for interrogations and arrests of aliens by INS officers. Since its publication in 1967, several Supreme Court decisions interpreting the fourth amendment have restricted the conditions under which law enforcement officers are authorized to conduct searches and seizures. Although the INS has stated that a complete revision of that handbook is underway, no revised edition has been published. The failure of INS to issue a revised edition has resulted in criticism from the courts. Recommendation 6.1: The INS should complete the revision of the handbook on INS arrest and interrogation authority and make it available to Service officers immediately in order to clarify for those officers the legal authority under which they may interrogate and arrest persons suspected of violations of the immigration laws. Finding 6.2: INS area control operations have built into them procedures that can and do in some instances result in persons, including United States citizens and residents, being subjected to unconstitutional searches and seizures.

INS officers apparently select interrogatees during area control operations in one of three ways: (1) all persons within the target area; (2) on the basis of ethnic appearance; and (3) on the basis of a mere suspicion of alienage. INS area control operations are "unreasonable" seizures because each of the three standards currently used to determine which persons shall be interrogated during area control operations is constitutionally defective:

The interrogation of all persons within a target area implies the absence of any interrogation selection criteria, violating the fourth amendment requirement of a reasonable suspicion based on specific articulable facts that each person interrogated has violated the law;

The selection of interrogatees on the basis of ethnic appearance is constitutionally impermissible without the presence of other factors giving rise to a reasonable suspicion; and

The selection on a mere suspicion of alienage, even where based on articulable facts, is insufficient to justify interrog. tions of individuals during

area control operations, because such surveys can be considered “seizures” under the fourth amendment and therefore require a suspicion of unlawful presence to detain persons. Recommendation 6.2: INS should immediately cease its area control operations, as currently conducted, to prevent the continued violation of the constitutional and civil rights of individuals. INS interrogations of persons should be based only upon specific articulable facts which create a reasonable suspicion that the individual is unlawfully present in the United States in violation of the immigration laws. Finding 6.3: Search warrants used by the INS to conduct area control operations are legally impermissible unless they conform to fourth amendment standards.

Criminal search warrants (see rule 41 of the Federal Rules of Criminal Procedure) and civil search warrants (see Blackie's House of Beef, Inc. v. Castillo, 480 F. Supp. 1078 (D.D.C. 1979)) must be based on probable cause and must name and describe with sufficient particularity the person or persons who are the subject of the search.

Civil warrants based on an administrative inspection theory may not properly be used by INS to search for persons suspected of immigration violations in business establishments where such businesses are not regulated and licensed and where the persons sought are not specifically named. Recommendation 6.3:

Future INS searches should be based upon warrants that are supported by probable cause and that name and describe specifically the person or persons who are the subject of the search. b. INS should discontinue its attempts to obtain warrants under an administrative inspection theory, since the courts have held that only regulated businesses are subject to such searches. Finding 6.4: Local police involvement in enforcing the immigration laws has resulted in violations of the constitutional rights of American citizens and legal residents.

Although the Immigration and Nationality Act expressly authorizes local police involvement in the enforcement of Federal immigration laws in only one instance, 116 local police departments have not confined their enforcement of those laws to that portion of the statute. This expanded local police involvement has continued, notwithstanding admo

a.

116 8 U.S.C. $1324(c) 1976).

Chapter 7

Rights of Detainees After Detention or
Apprehension

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.

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At several points in this nation's history, its treatment of noncitizens within its borders has been inhospitable, often disgraceful.Although treatment of aliens and attitudes toward them have improved in many respects, it nevertheless remains true that

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

· 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 MojadosThe Werback 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

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 Histori-
cal 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 circum-
stances, 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).

sis will provide the historic background for the later discussion of specific constitutional guarantees with respect to the right to counsel, the right to bail, the right to an impartial hearing, and the use of administrative arrest warrants by INS.

Deportation as a Civil
Proceeding

It has been generally accepted that the power to prevent aliens from entering this country is derived from the Nation's sovereign power and is not dependent on any provision in the Constitution explicitly authorizing exclusion. The assumption has been made through the years that the power to prevent persons from entering this country also gives rise to the power to expel persons after their entry into the United States:

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 analy

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The power to exclude aliens and the power to expel them rest upon one foundation, are derived from one source, are supported by the same reasons and are in truth but parts of one and the same power.

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Because the sovereign power was viewed as unassailable by the judiciary, the courts held that the legislative and executive branches of government are free to determine who will be excluded or expelled. 10

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

This 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

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).

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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

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:

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149 U.S. at 739-40.
16 Id. at 713, 731.
19 Id. at 730.

20 Id.

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).
" 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.

21 163 U.S. 228 (1895).
22 228 U.S. 585 (1913).
23 Id. at 591.
34 259 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), affd 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.

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