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.
According to the Supreme Court, aliens seeking initial entry into the United States have no constitutional rights regarding their applications for admission.1 The Court has reasoned that the government has the inherent, sovereign authority to admit or exclude aliens, and that aliens standing outside of the geographic boundaries of the United States have no vested right to be admitted into the country.2
Thus, in its 1953 decision in Shaughnessy v. United States ex rel. Mezei, the Court held that the government could deny entry to an alien without a hearing, notwithstanding the alien’s “temporary harborage” on Ellis Island pending the government’s attempts to remove him from the United States.3 More recently, in Department of Homeland Security v. Thuraissigiam, the Court in 2020 rejected an alien’s constitutional challenge to a federal statute that limits judicial review of an expedited order of removal, reasoning that the alien—who was apprehended shortly after entering the United States unlawfully—could be considered to be an applicant for admission at the border.4 In short, for aliens seeking admission into the United States, the decision to permit or deny entry by an executive or administrative officer, acting within powers expressly conferred by Congress, is due process of law.5
In certain cases, the exclusion of an alien has been seen to implicate the rights of U.S. citizens. In its 1972 decision in Kleindienst v. Mandel, for example the Supreme Court appeared to recognize that U.S. citizens’ First Amendment rights were affected by the denial of a nonimmigrant visa to a Marxist journalist who had been invited to speak in the United States by a group of university professors.6 In Mandel, however, the Court also recognized that because the “plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established,” the Court would uphold, in the face of a constitutional challenge, an alien’s exclusion as long as there is “a facially legitimate and bona fide reason” for the decision.7 Thus, even when reviewing constitutional challenges brought by U.S. citizens, the Court has limited the scope of judicial review and adopted a highly deferential standard for reviewing the decision to exclude an alien.8
U.S. citizens have also asserted that the exclusion of an alien has impinged upon their due process rights.9 In Kerry v. Din, five Justices in 2015 agreed that denying an immigrant visa to the husband of a U.S. citizen on the grounds that he was inadmissible under a provision of federal immigration law (pertaining to “terrorist activities” ) did not violate the due process rights of the U.S. citizen spouse.10 These Justices differed in their reasoning, though. A three-Justice plurality held that the U.S. citizen spouse had no protected liberty interest under the Due Process Clause in her husband’s ability to come to the United States, and did not decide whether the government had established a facially legitimate and bona fide reason for excluding her husband.11 A two-Justice concurrence did not reach the question of whether the U.S. citizen wife had asserted a protected liberty interest, but instead concluded that the consular officials’ citation of a particular statutory ground for inadmissibility as the basis for denying the visa application satisfied due process under Mandel, which requires only that the government state a “facially legitimate and bona fide reason” for the denial.12
In Trump v. Hawaii, the Supreme Court in 2018 reaffirmed that there is limited judicial review of executive decisions to exclude aliens seeking admission from abroad.13 The Court rejected an Establishment Clause challenge brought by U.S. citizens and other challengers to a presidential proclamation that provided for the exclusion of specified categories of nonresident aliens from mostly Muslim-majority countries.14 The Court recognized that decisions concerning the admission or exclusion of aliens generally lie beyond the scope of judicial review, and are subject only to a “highly constrained” judicial inquiry when an exclusion “allegedly burdens the constitutional rights of a U.S. citizen.” 15 The Court upheld the proclamation, ruling that it was rationally related to the stated government objective of protecting national security by excluding aliens from countries with deficient information-sharing practices.16
- See Dep’t of Homeland Sec. v. Thuraissigiam, No. 19-161, slip op. at 36 (U.S. June 25, 2020) (recognizing that an alien seeking initial entry into the United States “has only those rights regarding admission that Congress has provided by statute” ); Trump v. Hawaii, No. 17-965, slip op. at 30 (U.S. June 26, 2018) (noting that “foreign nationals seeking admission have no constitutional right to entry” into the United States); Kleindienst v. Mandel, 408 U.S. 753, 762 (1972) ( “It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise.” ) (citations omitted); Leng May Ma v. Barber, 357 U.S. 185, 187 (1958) ( “It is important to note at the outset that our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission, such as petitioner, and those who are within the United States after an entry, irrespective of its legality. In the latter instance the Court has recognized additional rights and privileges not extended to those in the former category who are merely ‘on the threshold of initial entry.’” ) (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)).
- See Landon v. Plasencia, 459 U.S. 21, 32 (1982) (noting that “the power to admit or exclude aliens is a sovereign prerogative” ); Mezei, 345 U.S. at 210 ( “Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” ); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) ( “Admission of aliens to the United States is a privilege granted by the sovereign United States Government.” ).
- Mezei, 345 U.S. at 210–12, 215. The Court reasoned that, although the alien was being detained inside the United States during the pendency of his exclusion proceedings, he had not effected an “entry” for purposes of immigration law, and could be “treated as if stopped at the border.” Id. at 212–15. See also Knauff, 338 U.S. at 542, 544 (upholding the exclusion of an alien without a hearing, and reasoning that the U.S. government had the “inherent executive power” to deny her admission and that “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned” ); Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 342–43 (1909) (holding that Congress’s broad power over the entry of aliens enabled it to pass legislation making it unlawful to bring into the United States any alien who had a contagious disease).
- Thuraissigiam, slip op. at 34–35.
- See id. at 36 ( “[A]n alien in respondent’s position [detained shortly after unlawful entry] has only those rights regarding admission that Congress has provided by statute.” ); United States v. Ju Toy, 198 U.S. 253, 263 (1905) (noting that “the almost necessary result of the power of Congress to pass exclusion laws” was that the decision to exclude an alien “may be intrusted to an executive officer, and that his decision is due process of law” ); see also Landon, 459 U.S. at 32; Knauff, 338 U.S. at 544; Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892). The Supreme Court, however, has held that Congress’s largely unencumbered power over the entry of aliens does not extend to lawful permanent residents returning from trips abroad, who retain the same constitutional rights they had before leaving the United States, including the right to due process. Landon, 459 U.S. at 33; Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963), superseded by statute, Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009–546; Kwong Hai Chew v. Colding, 344 U.S. 590, 600–02 (1953). See also Kwock Jan Fat v. White, 253 U.S. 454, 458 (1920) (stating that the exclusion of an alien returning to the United States who claimed to be a U.S. citizen could be made only after a hearing based on “adequate support in the evidence” ).
- See 408 U.S. 753, 762 (1972); see also Kerry v. Din, 576 U.S. 86 (2015) (plurality and concurring opinions, taken together, suggesting that at least a majority of the Court accepts that Mandel allows U.S. citizens to challenge visa denials that affect other rights beyond their First Amendment rights); cf. Trump v. Int’l Refugee Assistance Project, Nos. 16-1436, 16-1540, slip op. at 11(U.S. June 26, 2017) (per curiam) (noting that “foreign nationals abroad who have no connection to the United States at all” can be denied entry as such a denial does not “impose any legally relevant hardship” on the foreign nationals themselves).
- Mandel, 408 U.S. at 769–70. Applying this test, the Court upheld the alien’s exclusion based on the government’s explanation that the alien had abused visas in the past, and refused to “look behind” the government’s justification to determine whether it was supported by any evidence. Id.
- See also Fiallo v. Bell, 430 U.S. 787, 792–94, 798–800 (1977) (rejecting U.S. citizens’ and lawful permanent residents’ (LPR) equal protection challenge to a statute that granted special immigration preferences to the children and parents of U.S. citizens and LPRs, unless the parent-child relationship was that of a father and an illegitimate child, and recognizing “the limited scope of judicial inquiry into immigration legislation” and Congress’s “exceptionally broad power to determine which classes of aliens may lawfully enter the country” ).
- See, e.g., Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008).
- 576 U.S. 86 (2015).
- Id. at 100 (Scalia, J., joined by Roberts, C.J. & Thomas, J.) (plurality opinion). According to the plurality, the U.S. citizen spouse’s alleged interests had been variously formulated as a “liberty interest in her marriage” ; a “right of association with one’s spouse” ; a “liberty interest in being reunited with certain blood relatives” ; and the “liberty interest of a U.S. citizen under the Due Process Clause to be free from arbitrary restrictions on his right to live with his spouse.” Id. at 93. The plurality also expressly noted that no fundamental right to marriage, as such, had been infringed, because “the Federal Government has not attempted to forbid a marriage.” Id. at 94 (contrasting the case at hand with Loving v. Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374 (1978), and Turner v. Safley, 482 U.S. 78 (1987), superseded by statute, Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. § 2000bb)).
- Id. at 106 (Kennedy, J., concurring, joined by Alito, J.).
- No. 17-965, slip op. at 30 (U.S. June 26, 2018).
- Id. at 38–39. In Trump v. Hawaii, the Supreme Court had determined that a U.S. citizen’s “interest in being united with his relatives,” when those relatives were foreign nationals seeking to enter the United States, was “sufficiently concrete and particularized to form the basis of an Article III injury in fact” for purposes of establishing legal standing to challenge the presidential proclamation. Id. at 25.
- Id. at 30–32.
- Id. at 38–39.