Deportation

Deportation

Unlike the exclusion proceedings,1 deportation proceedings afford the alien a number of constitutional rights: a right against selfincrimination, 2 protection against unreasonable searches and seizures, 3 guarantees against ex post facto laws, bills of attainder, and cruel and unusual punishment,4 a right to bail,5 a right to procedural due process,6 a right to counsel,7 a right to notice of charges and hearing,8 and a right to cross-examine.9

More about Deportation

Notwithstanding these guarantees, the Supreme Court has upheld a number of statutory deportation measures as not unconstitutional. The Internal Security Act of 1950, in authorizing the Attorney General to hold in custody, without bail, aliens who are members of the Communist Party of the United States, pending determination as to their deportability, is not unconstitutional.10 Nor was it unconstitutional to deport under the Alien Registration Act of 1940 11 a legally resident alien because of membership in the Communist Party, although such membership ended before the enactment of the Act. Such application of the Act did not make it ex post facto, being but an exercise of the power of the United States to terminate its hospitality ad libitum.12 And a statutory provision 13 making it a felony for an alien against whom a specified order of deportation is outstanding “to willfully fail or refuse to make timely application for travel or other documents necessary to his departure” was not on its face void for “vagueness.” 14 An alien unlawfully in the country “has no constitutional right to assert selective enforcement as a defense against his deportation.” 15

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References

This text about Deportation is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

[Footnote 1] See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950), where the Court noted that “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”

[Footnote 2] Kimm v. Rosenberg, 363 U.S. 405 (1960).

[Footnote 3] Abel v. United States, 362 U.S. 217, 229 (1960).

[Footnote 4] Marcello v. Bonds, 349 U.S. 302 (1955).

[Footnote 5] Carlson v. Landon, 342 U.S. 524, 540 (1952).

[Footnote 6] Wong Yang Sung v. McGrath, 339 U.S. 33, 49 (1950). See discussion of aliens' due process rights under the Fifth Amendment, Aliens: Entry and Deportation.

[Footnote 7] 8 U.S.C. § 1252(b)(2).

[Footnote 8] 8 U.S.C. § 1252(b)(1).

[Footnote 9] 8 U.S.C. § 1252(b)(3).

[Footnote 10] Carlson v. Landon, 342 U.S. 524 (1952). In Reno v. Flores, 507 U.S. 292 (1993), the Court upheld an INS regulation providing for the ongoing detention of juveniles apprehended on suspicion of being deportable, unless parents, close relatives, or legal guardians were available to accept release, as against a substantive due process attack.

[Footnote 11] 54 Stat. 670. For existing statutory provisions as to deportation, see 8 U.S.C. §§ 1251 et seq.

[Footnote 12] Carlson v. Landon, 342 U.S. 524 (1952).

[Footnote 13] 8 U.S.C. § 1252(e).

[Footnote 14] United States v. Spector, 343 U.S. 169 (1952).

[Footnote 15] Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 488 (1999).

Tables of Contents

• Deportation and other Topics in the Contents – Article 1 of the U.S. Constitution
• U.S. Constitutional Law Category
• List of amendments to the U.S. Constitution
• Deportation and other Topics in the Constitution Contents
• Interpretation of the U.S. Constitution (Table of Contents)
• Clauses of the Constitution (Table of Contents)