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Amdt5.6.2.1 Exclusion and Removal of Non-U.S. Nationals

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Supreme Court has long recognized that Congress has “plenary” power over immigration, giving the legislature almost complete authority to decide whether foreign nationals ( “aliens,” under governing statutes and case law) may enter or remain in the United States.1 The Court has predicated this broad power on the government’s inherent sovereign authority to control its borders and its relations with foreign nations.2 In exercising its power over immigration, Congress can make laws concerning aliens that would be unconstitutional if applied to citizens.3 The Court has interpreted this power to apply with most force to the admission and exclusion of aliens seeking to enter the United States.4 Accordingly, the Court has held, aliens seeking initial entry into the United States have no due process protections regarding their applications for admission.5 With regard to aliens physically present in the United States, however, the Court has recognized that due process protections may constrain the government’s exercise of its immigration power.6

Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) ( “The Court without exception has sustained Congress’s ‘plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.’” ) (quoting Boutilier v. INS, 387 U.S. 118, 123 (1967)); Ocean Steam Navigation Co. v. Stranahan, 214 U.S. 320, 343 (1909) (noting the “plenary power of Congress as to the admission of aliens” and the “complete and absolute power of Congress over the subject” of immigration)); see also Galvan v. Press, 347 U.S. 522, 531 (1954) ( “Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government . . . . But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.” ). For additional discussion about Congress’s plenary power over immigration, see ArtI.S8.C18.8.1 Overview of Congress’s Immigration Powers. back
See Landon v. Plasencia, 459 U.S. 21, 32 (1982) ( “[T]he power to admit or exclude aliens is a sovereign prerogative.” ); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) ( “The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” ). back
Demore v. Kim, 538 U.S. 510, 522 (2003) ( “[T]his Court has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.” ). back
See Zadvydas v. Davis, 533 U.S. 678, 693, 695–96 (2001) (noting that the “distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law” and equating “the political branches’ authority to control entry” with “the Nation’s armor” ); Fiallo v. Bell, 430 U.S. 787, 792 (1977); Jean v. Nelson, 472 U.S. 846, 875 (1985) (Marshall, J., dissenting) (declaring that it is “in the narrow area of entry decisions” that “the Government’s interest in protecting our sovereignty is at its strongest and that individual claims to constitutional entitlement are the least compelling” ). back
See Landon, 459 U.S. at 32 ( “This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” ). back
See Zadvydas, 533 U.S. at 693 ( “It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” ); Mathews v. Diaz, 426 U.S. 67, 77 (1976) ( “Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.” ). back