Constitution Annotated

Fifth Amendment — Procedural Due Process and Federal Government

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.

Essays on this page (7)

Amdt5.6 Procedural Due Process and Federal Government

Amdt5.6.1 Overview of Due Process Procedural Requirements

If the federal government seeks to deprive a person of a protected life, liberty, or property interest, the Fifth Amendment’s Due Process Clause requires that the government first provide certain procedural protections.1 The Supreme Court has construed the Fourteenth Amendment’s Due Process Clause to impose the same procedural due process limitations on the states as the Fifth Amendment does on the Federal Government.2 Fourteenth Amendment due process case law is therefore relevant to the interpretation of the Fifth Amendment.3

The Court first addressed due process in the 1855 Fifth Amendment case Murray’s Lessee v. Hoboken Land and Improvement Co.4 In Murray’s Lessee, the Court held that it would determine (independently from Congress) whether the government had provided due process by evaluating whether the statutory process conflicted with the Constitution and, if not, whether it comported with “those settled usages and modes of proceedings existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.”5

In the 1884 Fourteenth Amendment case Hurtado v. California, the Court held that a process could be judged based on whether it had attained “the sanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law.”6 To hold that only historical, traditional procedures can constitute due process, the Court said, would render the law “incapable of progress or improvement.”7

Due process often requires the government to provide a person with notice and an opportunity for a hearing before depriving the person of a protected interest.8 However, there are some circumstances in which the Court has held those precedural protections are not required. For instance, persons adversely affected by a law cannot challenge the law’s validity on the ground that the legislative body that enacted it gave no notice of proposed legislation, held no hearings at which the person could have presented his arguments, and gave no consideration to particular points of view.9 Similarly, when an administrative agency engages in a legislative function, for example by drafting regulations of general application, it need not hold a hearing prior to promulgation.10 On the other hand, if a regulation would affect an identifiable class of persons, the Court employs a multi-factor analysis to determine whether notice and hearing is required and, if so, whether it must precede such action.11

The Supreme Court articulated the modern test for what process is required before the government may invade a protected interest in a civil proceeding in the 1976 case Mathews v. Eldridge.12 Because most of the cases applying Mathews have arisen under the Fourteenth Amendment, the Constitution Annotated discusses Mathews and subsequent cases applying the Mathews test in essays on Fourteenth Amendment procedural due process requirements.13 Other Fourteenth Amendment essays discuss Supreme Court cases involving key components of procedural due process, including notice, the opportunity for a hearing, and other procedural requirements.14

Because the Court has decided relatively few due process cases applying the Fifth Amendment in cases involving criminal procedure, the Fourteenth Amendment essays address the narrower due process inquiry that the Court has often applied in this context.15 In civil contexts, the Court has applied a broad balancing test that evaluates the government’s chosen procedure with respect to the private interest affected, the risk of erroneous deprivation of that interest under the chosen procedure, and the government interest at stake.16 By contrast, the Court has held that the “appropriate framework” for due process analysis of criminal procedures is a narrow inquiry into whether a procedure is offensive to the concept of fundamental fairness.17

Notes
  1. See Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (citing Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961)). ↩
  2. Cf. Arnett v. Kennedy, 416 U.S. 134 (1974). ↩
  3. See Amdt14.S1.3 Due Process Generally. ↩
  4. Murray’s Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272, 276–77, 280 (1856). The Court took a similar approach in Fourteenth Amendment due process interpretation in Davidson v. City of New Orleans, 96 U.S. 97 (1878), and Munn v. Illinois, 94 U.S. 113 (1877). ↩
  5. Murray’s Lessee, 59 U.S. (18 How.) at 276–77, 280. ↩
  6. Hurtado v. California, 110 U.S. 516, 528–29 (1884). ↩
  7. 110 U.S. at 529, 532–37. The Court has followed this flexible approach. E.g., Twining v. New Jersey, 211 U.S. 78 (1908); Powell v. Alabama, 287 U.S. 45 (1932); Palko v. Connecticut, 302 U.S. 319 (1937); Snyder v. Massachusetts, 291 U.S. 97 (1934). ↩
  8. Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S. 261, 265 (1912). ↩
  9. Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 445–46 (1915). See also Bragg v. Weaver, 251 U.S. 57, 58 (1919). Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 432–33 (1982). ↩
  10. United States v. Florida East Coast Ry., 410 U.S. 224 (1973). ↩
  11. 410 U.S. at 245 (distinguishing between rule-making, in which legislative facts are at issue, and adjudication, in which adjudicative facts are at issue, and requiring a hearing in the latter proceedings but not in the former). See Londoner v. City of Denver, 210 U.S. 373 (1908). ↩
  12. 424 U.S. 319, 333 (1976). ↩
  13. See Amdt14.S1.5.4.2 Due Process Test in Mathews v. Eldridge. ↩
  14. See, e.g., Amdt14.S1.5.4.3 Notice of Charge and Due Process and Amdt14.S1.5.4.4 Opportunity for Meaningful Hearing. ↩
  15. Amdt14.S1.5.5.1 Overview of Procedural Due Process in Criminal Cases. ↩
  16. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). In Nelson v. Colorado, the Supreme Court held that the Mathews test controls when evaluating state procedures governing the continuing deprivation of property after a criminal conviction has been reversed or vacated, with no prospect of reprosecution. See No. 15-1256, slip op. at 1, 5 (April 19, 2017). ↩
  17. See Medina v. California, 505 U.S. 437, 443 (1992). ↩

Amdt5.6.2 Deportation and Exclusion Proceedings

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

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

Notes
  1. 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. ↩
  2. 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.”). ↩
  3. 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.”). ↩
  4. 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”). ↩
  5. 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.”). ↩
  6. 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.”). ↩

Amdt5.6.2.2 Exclusion of Aliens Seeking Entry into the United States

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

Notes
  1. 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)). ↩
  2. 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.”). ↩
  3. 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). ↩
  4. Thuraissigiam, slip op. at 34–35. ↩
  5. 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”). ↩
  6. 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). ↩
  7. 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. ↩
  8. 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”). ↩
  9. See, e.g., Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008). ↩
  10. 576 U.S. 86 (2015). ↩
  11. 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)). ↩
  12. Id. at 106 (Kennedy, J., concurring, joined by Alito, J.). ↩
  13. No. 17-965, slip op. at 30 (U.S. June 26, 2018). ↩
  14. 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. ↩
  15. Id. at 30–32. ↩
  16. Id. at 38–39. ↩

Amdt5.6.2.3 Removal of Aliens Who Have Entered the United States

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 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 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 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.

Notes
  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. ↩

Amdt5.6.3 Military Proceedings and Procedural Due Process

The Supreme Court has considered the extent to which the courts should review proceedings before military tribunals for the purpose of determining compliance with the Due Process Clause. In In re Yamashita,1 the majority denied a petition for certiorari and petitions for writs of habeas corpus to review the conviction of a Japanese war criminal by a military commission sitting in the Philippine Islands. The Court held that, because the military commission, in admitting evidence to which objection had been made, had not violated any act of Congress, a treaty, or a military command defining its authority, its rulings on evidence and on the mode of conducting the proceedings were not reviewable by the courts. Furthermore, in Johnson v. Eisentrager,2 the Court overruled a lower court decision that, in reliance upon the dissenting opinion in Yamashita, had held that the Due Process Clause required that the legality of the conviction of enemy alien belligerents by military tribunals should be tested by the writ of habeas corpus.

The Executive Branch’s failure to provide any type of proceeding for prisoners alleged to be “enemy combatants,” whether in a military tribunal or a federal court, was at issue in Hamdi v. Rumsfeld.3 During a military action in Afghanistan,4 a United States citizen, Yaser Hamdi, was taken prisoner. The Executive Branch argued that it had the authority to hold such an “enemy combatant” while providing him with limited recourse to the federal courts. The Court agreed that the President was authorized to detain a United States citizen seized in Afghanistan.5 However, the Court ruled that the government could not detain the petitioner indefinitely for purposes of interrogation, but must give him the opportunity to offer evidence that he is not an enemy combatant. At a minimum, the petitioner must be given notice of the asserted factual basis for holding him, must be given a fair chance to rebut that evidence before a neutral decision-maker, and must be allowed to consult an attorney.6

Without dissent, in Hiatt v. Brown,7 the Court reversed the judgment of a lower court that had discharged a prisoner serving a sentence imposed by a court-martial because of errors that had deprived the prisoner of due process of law. The Court held that the court below had erred in extending its review, for the purpose of determining compliance with the Due Process Clause, to such matters as the propositions of law set forth in the staff judge advocate’s report, the sufficiency of the evidence to sustain a conviction, the adequacy of the pre-trial investigation, and the competence of the law member and defense counsel. In summary, Justice Tom Clark wrote: “In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision.”8 Similarly, in Burns v. Wilson,9 the Court denied a petition for the writ to review a conviction by a military tribunal on the Island of Guam in which the petitioners asserted that their imprisonment resulted from proceedings that violated their constitutional rights. Four Justices, with whom Justice Sherman Minton concurred, maintained that judicial review is limited to determining whether the military tribunal, or court-martial, had given fair consideration to each of petitioners’ allegations, and does not embrace an opportunity “to prove de novo” what petitioners had “failed to prove in the military courts.” According to Justice Minton, however, if the military court had jurisdiction, its action is not reviewable.

Notes
  1. 327 U.S. 1 (1946). ↩
  2. 339 U.S. 763 (1950). ↩
  3. 542 U.S. 507 (2004). ↩
  4. In response to the September 11, 2001 terrorist attacks on New York City’s World Trade Center and the Pentagon in Washington, D.C., Congress passed the “Authorization for Use of Military Force,” Pub. L. No. 107-40, which served as the basis for military action against the Taliban government of Afghanistan and the al Qaeda forces that were harbored there. ↩
  5. There was no opinion of the Court in Hamdi. Rather, a plurality opinion, authored by Justice Sandra Day O’Connor (joined by Chief Justice William Rehnquist, Justice Anthony Kennedy, and Justice Stephen Breyer) relied on the “Authorization for Use of Military Force” passed by Congress to support the detention. Justice Clarence Thomas also found that the Executive Branch had the power to detain the petitioner, but he based his conclusion on Article II of the Constitution. ↩
  6. 542 U.S. at 533, 539 (2004). Although only a plurality of the Court voted for both continued detention of the petitioner and for providing these due process rights, four other Justices would have extended due process at least this far. Justice David Souter, joined by Justice Ruth Bader Ginsburg, while rejecting the argument that Congress had authorized such detention, agreed with the plurality as to the requirement of providing minimal due process. Id. at 553 (concurring in part, dissenting in part, and concurring in judgment). Justice Antonin Scalia, joined by Justice John Paul Stevens, denied that such congressional authorization was possible without a suspension of the writ of habeas corpus, and thus would have required a criminal prosecution of the petitioner. Id. at 554 (dissenting). ↩
  7. 339 U.S. 103 (1950). ↩
  8. 339 U.S. at 111. ↩
  9. 346 U.S. 137 (1953). ↩