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.

Despite the government’s broad power over immigration, the Supreme Court has recognized that aliens who have physically entered the United States generally come under the protective scope of the Due Process Clause, which applies “to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” 1

, 110 Stat. 3009–546. Consequently, there are greater due process protections in formal removal proceedings brought against aliens already present within the United States.2 These due process protections generally include the right to a hearing and a meaningful opportunity to be heard before deprivation of a liberty interest.3

The Supreme Court, however, has suggested that the extent of due process for aliens present in the United States “may vary depending upon [the alien’s] status and circumstance.” 4 For instance, at times the Court has indicated that at least some of the constitutional protections to which an alien is entitled may turn upon whether the alien has been admitted into the United States or developed substantial ties to this country.5

(U.S. June 25, 2020) (holding that, while “aliens who have established connections in this country have due process rights in deportation proceedings,” an alien “at the threshold of initial entry,” including a person who is detained shortly after unlawful entry, has only those protections regarding admission that Congress provided by statute); United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) ( “These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” ); Landon v. Plasencia, 459 U.S. 21, 32 (1982) ( “[O]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly.” ); Johnson v. Eisentrager, 339 U.S. 763, 770 (1950) ( “The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society.” ). Thus, there is some uncertainty regarding the extent to which due process considerations constrain Congress’s exercise of its immigration power with respect to aliens within the United States.

The Supreme Court has considered due process challenges raised by aliens within the United States who are detained and subject to removal. In Zadvydas v. Davis the Supreme Court in 2001 construed a statute authorizing the detention of aliens with final orders of removal as having implicit temporal limitations.6 According to the Court, construing the statute in a manner that would allow the indefinite detention of lawfully admitted aliens who had been ordered removed would raise “serious constitutional concerns.” 7 In the Court’s view, because aliens within the United States are protected by due process, Congress must give “clear indication” of an intent to authorize the indefinite detention of removable aliens, and the Court indicated there must be some “special justification” for that detention (e.g., to protect the community from “suspected terrorists” ).8

In Demore v. Kim, however, the Supreme Court in 2003 held that the mandatory detention during the pendency of formal removal proceedings of certain aliens who had committed specified crimes was constitutionally permissible.9 The Court observed that “Congress may make rules as to aliens that would be unacceptable if applied to citizens,” while also citing its “longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings . . . .” 10 While recognizing that, under Zadvydas, “serious constitutional concerns” were raised by the indefinite detention of lawfully admitted aliens who have been ordered removed, the Demore Court reasoned that mandatory detention during the pendency of formal removal proceedings was distinguishable because it served the purpose of preventing criminal aliens from absconding during those proceedings and generally lasted for relatively short periods of time.11

Some lower courts construed Demore's holding as applying only to relatively “brief periods” of detention, rather than cases where the alien’s detention lasts for extended periods of time.12 To avoid constitutional concerns, some courts read federal statutes governing the detention of unlawfully present aliens during the pendency of their removal proceedings as containing implicit time limitations and requiring periodic bond hearings.13 In 2018, the Supreme Court in Jennings v. Rodriguez rejected that interpretation, holding that the statutes were textually clear in mandating or authorizing the detention of certain aliens during their removal proceedings, and that nothing in those provisions limited the length of detention or required periodic bond hearings.14 The Court held that the government has the statutory authority to detain aliens potentially indefinitely during their removal proceedings, but left open the question of whether such indefinite detention is unconstitutional.15

Additionally, in Department of Homeland Security v. Thuraissigiam, the Supreme Court in 2020 held that an alien detained shortly after entering the United States could not constitutionally challenge a federal statute limiting judicial review of his “expedited removal” proceedings (a streamlined removal process applicable to aliens apprehended at or near the border).16 Although the alien had physically entered the United States, the Court determined that he could be “'treated’ for due process purposes ‘as if stopped at the border’” because he was encountered only twenty-five yards inside the United States and essentially remained “on the threshold” of entry.17

, 110 Stat. 3009–546). According to the Court, the “century-old rule” that aliens seeking initial entry into the United States lack due process rights “would be meaningless if it became inoperative as soon as an arriving alien set foot on U.S. soil.” 18 The Court observed, moreover, that only aliens “who have established connections in this country” have due process protections in their removal proceedings.19

The Supreme Court’s jurisprudence indicates that, although aliens present within the United States generally have due process protections, the extent of those constitutional protections may depend on certain factors, including whether the alien has been lawfully admitted or developed ties to the United States, and whether the alien has engaged in specified criminal activity. Therefore, even with regard to aliens present within the United States, the Court has sometimes deferred to Congress’s policy judgments that limit the ability of some classes of aliens to contest their detention or removal.

Footnotes

1

Zadvydas v. Davis, 533 U.S. 678, 693 (2001); see also 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.” ); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) ( “It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.” ) (citations omitted), superseded by statute, Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No.

104-208

, 110 Stat. 3009–546.

2

Removal proceedings are civil in nature and are not criminal prosecutions. Harisiades v. Shaughnessy, 342 U.S. 580, 594–95 (1952); Zakonaite v. Wolf, 226 U.S. 272, 275 (1912). This fact, however, does not mean that a person may be removed from the United States on the basis of a judgment reached under the civil standard of proof, that is, by a preponderance of the evidence. Rather, the Supreme Court has held, an order of removal may be entered only if the government presents clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true. Woodby v. INS, 385 U.S. 276, 286 (1966). However, an alien in formal removal proceedings has the burden of proving his or her eligibility for discretionary relief from removal. Kimm v. Rosenberg, 363 U.S. 405, 408 (1960); see also Jay v. Boyd, 351 U.S. 345, 359 (1956) (holding that a special inquiry officer could rely upon undisclosed, confidential information in deciding to deny an alien’s application for suspension of deportation as a matter of discretion).

3

Mathews v. Eldridge, 424 U.S. 319, 333 (1976); see also Shaughnessy v. Pedreiro, 349 U.S. 48, 52 (1955) (holding that an alien had the right to full judicial review of his deportation order and that such review was not limited to habeas corpus proceedings), superseded by statute, 8 U.S.C. § 1105a; Wong Yang Sung v. McGrath, 339 U.S. 33, 50–51 (1950) (holding that deportation proceedings were subject to certain procedural requirements under the Administrative Procedure Act, including the right to a hearing), superseded by statute, Immigration and Nationality Act, ch. 477, § 242, 66 Stat. 163, 208–12 (1952) (codified at 8 U.S.C. § 1252); United States ex rel. Vajtauer v. Comm’r of Immigr., 273 U.S. 103, 106 (1927) ( “Deportation without a fair hearing or on charges unsupported by any evidence is a denial of due process which may be corrected on habeas corpus.” ); Mahler v. Eby, 264 U.S. 32, 43 (1924) ( “There is no authority given to the Secretary [of Labor] to deport, except upon his finding after a hearing that the petitioners were undesirable residents.” ); Zakonaite, 226 U.S. at 275 (observing that executive officials may decide whether to deport an alien “after a fair though summary hearing” ); cf. United States v. Mendoza-Lopez, 481 U.S. 828, 838–39 (1987) (ruling that an alien who is criminally prosecuted for unlawful reentry after removal may collaterally challenge the underlying removal order during the criminal proceedings if the alien had no prior opportunity to seek judicial review of that order), superseded by statute, 8 U.S.C. § 1326(d). Under provisions of the Immigration and Nationality Act, aliens apprehended within the interior of the United States are generally subject to formal removal proceedings, and have a number of procedural protections in those proceedings, including the right to seek counsel at no expense to the government, the right to present evidence at a hearing, the ability to apply for any available relief from removal, the right to administratively appeal an adverse decision, and (to the extent permitted by statute) the right to petition for judicial review of a final order of removal. 8 U.S.C. §§ 1229a(a)(1), (b)(1), (b)(4), (c)(1)(A), (c)(4)(A), (c)(5); 1252(a)(1), (b).

4

Zadvydas, 533 U.S. at 694.

5

See Dep’t of Homeland Sec. v. Thuraissigiam, No.

19-161, slip op. at 2, 34–36

(U.S. June 25, 2020) (holding that, while “aliens who have established connections in this country have due process rights in deportation proceedings,” an alien “at the threshold of initial entry,” including a person who is detained shortly after unlawful entry, has only those protections regarding admission that Congress provided by statute); United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) ( “These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” ); Landon v. Plasencia, 459 U.S. 21, 32 (1982) ( “[O]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly.” ); Johnson v. Eisentrager, 339 U.S. 763, 770 (1950) ( “The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society.” ).

6

Zadvydas, 533 U.S. at 701.

7

Id. at 682 ( “We deal here with aliens who were admitted to the United States but subsequently ordered removed. Aliens who have not yet gained initial admission to this country would present a very different question. Based on our conclusion that indefinite detention of aliens in the former category would raise serious constitutional concerns, we construe the statute to contain an implicit ‘reasonable time’ limitation, the application of which is subject to federal-court review.” ). But see Clark v. Martinez, 543 U.S. 371, 378–79 (2005) (construing the presumptive time limitation established in Zadvydas as also applying to unadmitted aliens who were being detained after their removal orders became final because the statute authorizing post-order of removal detention made no distinction between admitted and nonadmitted aliens, and should have the same meaning for both categories).

8

Zadvydas, 533 U.S. at 690–92, 697, 701 (construing a statute so as to avoid a “serious constitutional problem,” and recognizing a “presumptively reasonable” detention period of six months for aliens subject to final orders of removal).

9

538 U.S. 510, 513, 531 (2003).

10

Id. at 522, 526. See also id. at 528 ( “[W]hen the Government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal.” ). A closely divided Court had earlier ruled that, in time of war, the deportation of an enemy alien may be ordered summarily by executive action, and that due process of law did not require the courts to determine the sufficiency of any hearing that was provided. Ludecke v. Watkins, 335 U.S. 160, 173 (1948). Conversely, three of the four dissenting Justices argued that even an enemy alien could not be deported without a fair hearing. Id. at 186–87 (Douglas, J., dissenting).

11

Demore, 538 U.S. at 527–29. Although the Supreme Court in Demore ruled that mandatory detention during the pendency of formal removal proceedings is not unconstitutional per se, the Court did not address whether there are any constitutional limits to the duration of such detention. See Tijani v. Willis, 430 F.3d 1241, 1252 (9th Cir. 2005) (Callahan, J., dissenting) ( “The constitutional limit, if any, to the duration of an alien’s detention under § 1226, however, was left open by the Supreme Court in Demore.” ).

12

See, e.g., Rodriguez v. Robbins, 804 F.3d 1060, 1079, 1088 (9th Cir. 2015), rev’d sub nom. Jennings v. Rodriguez, No. 15-1204 (U.S. Feb. 27, 2018).

13

Id. at 1074.

14

Jennings, slip op. at 12–23. See also Johnson v. Chavez, No. 19-897, slip op. at 1–2 (U.S. June 29, 2021) (construing federal statutes as plainly authorizing the detention without bond hearings of aliens whose prior removal orders were reinstated following their unlawful reentry into the United States, and who were placed in proceedings to determine whether they would be subject to persecution in their countries of removal).

15

Although the Supreme Court has not yet addressed the constitutionality of indefinite detention during the pendency of removal proceedings, the Court has previously suggested in Demore v. Kim that aliens may be “detained for the brief period necessary for their removal proceedings.” 538 U.S. at 513; see also id. at 526 (noting the “longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings” ). Additionally, in a concurring opinion in Demore, Justice Anthony Kennedy declared that a detained alien “could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” Id. at 532 (Kennedy, J., concurring) (citing Zadvydas v. Davis, 533 U.S. 678, 684–86 (2001)).

16

No. 19-161, slip op. at 1 (U.S. June 25, 2020) (Thomas, J., concurring).

17

Id. at 35–36 (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 215 (1953), superseded by statute, Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No.

104-208

, 110 Stat. 3009–546).

18

Id. at 35

19

Id. at 2.