The Supreme Court held that the continued exclusion of an entrant noncitizen without hearing does not amount to unlawful detention, because a noncitizen seeking entry does not possess constitutional rights. The Court also held that courts may not temporarily admit a such a noncitizen into the United States pending arrangements for his departure abroad. (Read the opinion here.)
The respondent noncitizen, a resident of the United States for 25 years, travelled to Hungary and stayed there for 19 months. Upon his return, the Attorney General, acting pursuant to immigration regulations, ordered him permanently excluded from the United States on national security grounds without a hearing. The order was made on the “basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest”. Because other nations refused to accept him, respondent’s exclusion on Ellis Island lasted 21 months.
Justice Clark delivered the opinion of the Court. The decision was grounded in Congress’ plenary power to regulate immigration, which recognises that the “the power to expel or exclude aliens is a fundamental sovereign attribute exercised by the government’s political departments” and therefore is “largely immune from judicial control.”
The Court held that a noncitizen’s Fifth Amendment right to procedural due process differs according to his or her circumstances. Lawful resident noncitizens possess a constitutional right to procedural due process that is not easily removed. In limited circumstances, if a lawful resident noncitizen is temporarily absent from the United States, the right to due process may still exist. Any noncitizen within the United States also has a constitutional right to traditional standards of fairness, regardless of whether they entered the country lawfully or unlawfully.
However, the constitutional position of noncitizens seeking entry to the United States is different. Citing Knauff v. Shaughnessy, the Court held that “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” In other words, noncitizens seeking entry have no protections under the Constitution and may be excluded without a hearing.
The Court held that the respondent was an “entrant” under the immigration regulations. His previous residence in the United States did not change his status as an entrant. A noncitizen seeking re-entry to the United States after having left for purposes of his own, and apparently without authorization and re-entry papers, has the status of an entrant alien or is “assimilated to [that] status” for constitutional purposes. Nor was his harborage at Ellis Island considered a “landing” in the United States. Since the respondent was an entrant without the constitutional right to due process, his exclusion without hearing did not amount to unlawful detention nor violate his statutory or constitutional rights.
Although a noncitizen who is denied entry does not possess the right to procedural due process, the Court affirmed the availability of habeas corpus to challenge the validity of his or her exclusion. However, although habeas review is available, the Court emphasised its reluctance to intervene in any decision of the legislature or executive in respect of immigration matters, particularly exclusion cases based on public interest or national security grounds. This is because courts do not have jurisdiction to review decisions of the political branch of government, unless expressly authorized by statute. Since Congress has declared in legislation that executive decisions to exclude noncitizens whose “entry would be prejudicial to the interests of the United States” are “final and conclusive,” courts could not review the Attorney General’s exclusion order, nor could the Attorney General be compelled to disclose any evidence underlying his determinations in an exclusion case.
The dissenting opinions argued that the noncitizen’s continued exclusion on Ellis Island and the refusal of other nations to accept him amounted to a deprivation of his liberty and that his continued imprisonment without hearing violated due process. Justices Black and Douglas expressed concern with the noncitizen’s liberty depending on the unreviewable discretion of the Attorney General, particularly in light of the emphasis on individual freedom in the Bill of Rights.
Justices Jackson and Frankfurter, in a separate opinion, appeared to give weight to the respondent’s long-term residence in the United States in finding that he possessed the right to due process. The judges discussed two forms of due process: ‘substantive’ due process and ‘procedural’ due process. The content of substantive due process is flexible, and the courts will generally defer to the legislative and executive view as to what constitutes reasonable policy in particular circumstances. As such, the judges found that the detention of a noncitizen would not violate substantive due process as long as he or she is accorded procedural due process. The content of procedural due process is less flexible than substantive due process, and courts defer much less to the legislature and executive. The judges opined that where involuntary confinement has become the means of enforcing exclusion, procedural due process requires that the noncitizen is informed of the grounds of his detention and have the right to a fair hearing. Therefore, the dissenting judges would have found that the respondent’s detention violated his right to procedural due process.
Authored by: Crista Khong, Cornell Law School