Due Process Requirements

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Due Process Requirements


Alien is excludable by AG

Alien seeking to get in is seeking a privilege, not a right

Whatever AG decides is not w/I the province of the courts to review; no delegation problem b/c is a power of the executive (Fong Yue Ting) – extreme stmt of exec power

AG’s basis for decision can remain undisclosed for nat’l security reasons w/ no hearing on the decision

Whatever procedure authorized by Congress for executive to use is due process for un-admitted aliens.


Pulling back from Knauff: Chew was entitled to hearings and DP protections (but still not saying Chew was entitled to come in)

Distinguishes Knauff:

Renders Chew LPR subject to deportation hearings instead of exclusion (diff’t rights and standards)

Court does this b/c he had preexisting presence in the US w/ his family here; he was on an American ship w/ American clearance so even though he left he was constructively ‘continuously’ present


Goes back to the severity of Knauff Chew was an exception

Alien on entry isn’t entitled to same DP standards as in deportation.

Since Mezei has nowhere to go and AG won’t let him in, permissible to hold him indefinitely on Ellis Island

Court aligns this case w/ Knauff even though much more similarly situated w/ Chew:

Shows Ct’s Communist fear (Chew was on American vessel, Mezei was behind the Iron Curtain for 19 mos.)

Jackson’s Dissent

Draws distinction b/w Mezei’s substantive and procedural DP rights: His substantive DP rights can be taken away by Congress (something for the political branches to decide), but judicial branch decides whether that substantive DP right was deprived w/I procedural DP.

Argument that the Knauff-Mezei Doctrine is correct

As long as the political branches are on top of deciding what circumstances people can be admitted under, what does the judicial branch need to decide?

Knauff and Mezei were eventually released b/c of public outcry, so wasn’t the Court right that this was a decision to be determined by the political branch?


Plascencia does have ability to invoke the DP clause upon returning home: has some protections b/c she lived here – has some interest, so minimal protections should apply

But we don’t know what the protections are, so remands to the lower court b/c the kind of process that is required is a case by case fit

How this case fits in w/ preceding cases:

Probably has no impact on Knauff b/c the person there was entering for the very first time, so didn’t have ties to the U.S. like in this case

May have superseded Mezei in the constitutional position of returning LPRs: entitled to some sort of minimal procedures

But leaves open the possibility that if she left for a longer period of time like Mezei, may have affected her constitutional status

Gives Chew case more life b/c it’s holding isn’t limited to those who were away on an American vessel.

Doesn’t deal w/ the question of indefinite detention that’s at issue in Mezei

Congress has broad power in Admissions

Due Process

Aliens at the border get basically no due process – “Whatever the procedure authorized by Congress is, it is due process as far as an alien is concerned.” U.S. ex rel. Knauff v. Shaughnessy (1950) (wife of citizen excluded) More rights upon entry.

But maybe a LPR has 5th Amendment due process protections that entitle him to a fair hearing.  Kwong Hai Chew v. Colding (1953) (LPR Marine not allowed to re-enter, detained at Ellis Island)

Or not – court still has power to exclude anyone and even detain indefinitely an alien who can’t return to his country. Shaughnessy v. U.S. ex rel. Mezei (1953) (long-time resident left, returned, held at Ellis Island for years). More rights upon entry.

This seems like a big mess – if you make it into the country (“aliens who have once passed through our gates, even illegally”) you get lots of due process, but if  you’re at the border you might get nothing.

EWIs may not necessarily get more process since, after the 1996 Act, they’ve switched from being deportable to inadmissible (were never admitted), so maybe they get Knauff-Mezei.

Now returning permanent residents who travel are entitled to full due process protections in exclusion, because they have strong ties. Landon v. Plasencia (1982).

Plascencia says we should use the Mathews v. Eldridge rest to see how much process is due.

Was especially if the absence was really short (Fleuti), but that’s changed, see below.

See Inadmissibility for when LPRs are considered to be seeking admission

The basic state of affairs: Aliens seeking admission are entitled to NO due process. Permanent residents are not considered to be seeking admission in certain circumstances (statutory criteria) and would thus be entitled to deportation due process. However, permanent residents with strong ties to the US are entitled to due process even in exclusionary proceedings. (Does this also apply to non-permanent residents with strong ties to the US?)

Review of Consular Decisions – there basically is none, except maybe if the consul acted under a constitutional statute.


DHS Secretary has discretion to parole aliens into the U.S. for humanitarian reasons or for the public benefit.

Allows inadmissible alien to travel inside the U.S., but you’re never officially admitted and always subject to exclusion/inadmissibility proceedings. You remain constructively at the border.

No judicial review for denial of parole.

Adjustment of Status

Allows person to gain immigrant status while in the country in nonimmigrant status, without having to leave the country and apply for a visa to reenter. Rights to appeal denial (while consular process lacks that right).

A person already in the U.S. adjusting must still be “admissible.”

Under § 245(a) – Must have been inspected, admitted, or paroled – no EWI.

245 (c) – the exceptions for 245 (a) adjustment:  alien crewmen, anyone who has accepted unauthorized employment or who is out of status, transit aliens, visa waiver aliens, those barred by deportability grounds, etc.

Exceptions to the exceptions – It’s OK if you had unauthorized work, went out of status, or were a visa waiver IF you are an immediate relative (so you can marry a citizen). You can still use 245(a)

Under § 245(i) – If a person is barred by the disqualifications in § 245 (c) or because they are EWI, but is still eligible and don’t fall within inadmissibility grounds, she can adjust by paying a penalty fee.

Does not waive (d)-(f) disqualifications about fraudulent marriage or investor.

§ 245 (i) is the only affirmative LPR route for EWIs and overstays, because if they leave they trigger the three or ten year bar and can’t go straight to consular processing anyway

Recission – Adjustment can be revoked within 5 years upon a showing that you were not eligible for adjustment at the time of approval.

Review – there is no administrative appeal, but you can renew your application before the IJ doing your removal proceeding

Admissions Procedures and Expedited Removal INA §§ 245; 235(b)(1)

No recourse if a consular office denies your visa

APA generally makes agency action presumptively reviewable unless Congress provides otherwise

But even though Congress hasn’t said that consular decisions are unreviewable, in practice they are

Adjustment of Status (INA 245)

If you’re here on a nonimmigrant visa and you are seeking to become an LPR, don’t have to leave the country to get admission, can just get an adjustment of status, but has more procedural steps

Applicant must have been inspected and actually admitted into the US

Complicated circumstances under which adjustment is not available:

If you worked in the US w/o work authorization

People who violated the terms of the nonimmigrant visa or their nonimmigrant visa expired by the time they file for Adjustment of Status

Parolees or others not allowed to be present in the US

When Congress enacted the new grounds for inadmissibility (1996), 245i became more than convenience, became a windfall to those people who would otherwise be barred from reentry

People who were here illegally didn’t have to leave the US to get an Adjustment of Status so they didn’t risk a bar to reentry

Debate over whether to keep the 245i

Bad – seems like an authorization of illegal immigration, rewarding bad behavior

Good – regularizes the status of illegal immigrants who otherwise have family and immigrant ties ( at least this is what it looked like pre-9/11)

Expedited Removal (235(b)(1))

Created by 1996 statute: People who were inadmissible b/c of fraudulent documents, had no documents or some misrepresentation in admission proceedings some other time, would be put in expedited removal


Not entitled to hearings by immigration judges, unless the alien expresses an intent to apply for asylum

Makes a noncitizen inadmissible for 5 years, subject to a waiver; however, immig. officials can let arriving aliens w/draw their app. for admission

Initial screening at the airport. If the person there suspects something wrong about your docs, will send you to a secondary inspection.

If make an asylum claim at secondary inspection, asylum officer inspects for credible fear. If that credible fear interview succeeds, gets a hearing and will be paroled. If not, can go before an immigration judge to review that question.

Issues for Asylum seekers in the Expedited Removal

Process of asylum inspection for credible fear is a bewildering process for the asylum applicant

Is done by a low-level official.

Info. that the person gets when they reach secondary inspection mentions some things about human rights but never signals to the person they can apply for asylum

Language interpretation problems are biggest threat to legitimate asylum claims and when you expedite the process, compounds the problems of interpretation

Can have a lawyer but has to be at your own expense and there are barriers to reaching your lawyer anyway

Congress decided to expand the expedited removal process

Applies now also to people found w/I the US (not only at ports of entry): capture people who have just arrived and are w/I 100mi of the border

5,000 illegal immigrants have been removed in this process in the last few mos.: simple for them to get caught and get sent back very quickly

However, even if you have a high rate of capture, people are going to persistently try to come back and most make it by their 4th try