Deportation

Unlike the exclusion proceedings,1406 deportation proceedings afford the alien a number of constitutional rights: a right against self-incrimination,1407 protection against unreasonable searches and seizures,1408 guarantees against ex post facto laws, bills of attainder, and cruel and unusual punishment,1409 a right to bail,1410 a right to procedural due process,1411 a right to counsel,1412 a right to notice of charges and hearing,1413 and a right to cross-examine.1414

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.1415 Nor was it unconstitutional to deport under the Alien Registration Act of 19401416 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.1417 And a statutory provision1418 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.”1419 An alien unlawfully in the country “has no constitutional right to assert selective enforcement as a defense against his deportation.”1420

Footnotes

1406
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.” [Back to text]
1407
Kimm v. Rosenberg, 363 U.S. 405 (1960). [Back to text]
1408
Abel v. United States, 362 U.S. 217, 229 (1960). [Back to text]
1409
Marcello v. Bonds, 349 U.S. 302 (1955). [Back to text]
1410
Carlson v. Landon, 342 U.S. 524, 540 (1952). [Back to text]
1411
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. [Back to text]
1412
8 U.S.C. § 1252(b)(2). [Back to text]
1413
8 U.S.C. § 1252(b)(1). [Back to text]
1414
8 U.S.C. § 1252(b)(3). [Back to text]
1415
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. [Back to text]
1416
54 Stat. 670. For existing statutory provisions as to deportation, see 8 U.S.C. §§ 1251et seq. [Back to text]
1417
Carlson v. Landon, 342 U.S. 524 (1952). [Back to text]
1418
8 U.S.C. § 1252(e). [Back to text]
1419
United States v. Spector, 343 U.S. 169 (1952). [Back to text]
1420
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 488 (1999). [Back to text]