Monday, July 13, 2020


Article Index

H. Criminal Procedural Rights

In Wong Wing v. United States, the Supreme Court held that a Chinese national could not be summarily sentenced to one year of hard labor as a punishment for being in the United States unlawfully. The Court affirmed that non-citizens are entitled to due process, which prevented imposition of an “infamous punishment” without indictment and trial by jury. Since then, courts have assumed that “regardless of alienage, those who stand charged with crimes within the United States are protected by the Fourth, Fifth, and Sixth Amendments in proceedings overseen by Article III judges and adjudicated by grand juries and jury trials.” Indeed, the Court's most discussed immigrant rights decision in the last few years is in the area of criminal procedure: in Padilla v. Kentucky, the Court held that the failure of a defense attorney to advise his client of the immigration consequences of a guilty plea could constitute ineffective assistance, in violation of the Sixth Amendment right to counsel.

Non-citizens' enjoyment of core criminal procedural protections does not mean that they are on equal footing with citizens in criminal cases. Rather, at the ground level, the intersection of the immigration and criminal enforcement regimes operates in a variety of ways to disadvantage non-citizens. Moreover, one of the most basic criminal procedural rights--the Fourth Amendment protection against unreasonable searches and seizures--is qualified for non-citizens. For many years, the Court assumed that non-citizens were covered to the same extent as citizens. However, in Verdugo-Urquidez v. INS the Court held that the Fourth Amendment did not apply to a search by American authorities of the Mexican residence of a Mexican citizen. Verdugo-Urquidez's Mexican home had been raided by American authorities after he was transported by Mexican police to the United States for prosecution. Confronted with the fact that the Fourth Amendment applies, on its face, to “the People,” the Court engaged in some gymnastics to find Mr. Verdugo-Urquidez outside its protection:

“‘[T] he people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

For the first time, the Court seemed to be saying that the Fourth Amendment, long considered a basic right of personhood, was a membership right, restricted to persons with “sufficient connection” to the United States. This wasn't the first time the Court had held that “the people” is a term of art. In the now infamous Dred Scott case, Justice Taney found that the words “people of the United States” and “citizens” were synonymous terms: “They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives.” Since African Americans were not originally part of this “people,” they “had no rights which the white man is bound to respect.” Verdugo-Urquidez and Dred Scott both use communitarian logic to limit the rights of putative outsiders.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law