I. Due Process
It has been clear since Wong Wing that non-citizens are entitled to due process. However, Wong Wing involved a criminal punishment for being unlawfully in the United States; in cases since, the Supreme Court has been careful to insist that deportation is not a criminal punishment. Thus, the protections discussed above for non-citizens in criminal proceedings do not necessarily apply in removal proceedings. For example, in INS v. Lopez-Mendoza, the Court held that the exclusionary rule does not apply to deportation proceedings.
Overall, the Court has been ambivalent about non-citizens' due process rights in removal proceedings, relying at times on the plenary power doctrine to abdicate any meaningful review. This is particularly the case for non-citizens who are considered to be seeking admission to the United States. The Immigration and Nationality Act has separate grounds of removal for persons in the United States who are “deportable” and for those outside, seeking admission, who are charged as “inadmissible.”
In the nineteenth century case Nishimura Ekiu v. United States, the Court said that for persons seeking admission, “the decisions of executive or administrative officers, acting within powers expressly conferred by congress, are due process of law.” Historically, this distinction has elevated form over substance, since persons who have been in the United States for years can still be considered applicants for admission, as long as they have not been formerly granted admission. During the Cold War, for example, the Court upheld the indefinite detention at Ellis Island of a twenty-five year resident of the United States who could not be deported back to his native Romania, and who had been excluded upon his attempted re-entry to the United States based on secret evidence, without having received a hearing.
In contrast, the Court has long held that persons admitted to the United States, at least, must receive due process before being deported. In Yamataya v. Fisher, the Court held that due process barred arbitrary deportations, and entitled non-citizens in deportation cases to an “opportunity to be heard upon the questions involving his right to be and remain in the United States.” Eventually, the Court held that lawful permanent residents of the United States must receive due process even when they are in exclusion proceedings.
At times, the Court has been willing to engage in a searching review of the level of due process in removal proceedings. It has held that the Government bears the burden to establish alienage and deportability by “clear, unequivocal, and convincing evidence.” Moreover, the Court has made clear that even persons ordered deported are entitled to due process. In Zadvydas v. Davis, the Court held that immigrants cannot be held indefinitely if they cannot be deported. Under Zadvydas, immigrant detainees must receive some process to regularly evaluate the likelihood of their removal, and if they cannot be removed in the reasonably foreseeable future, they must be released.
Zadvydas stands out as one of the Court's two most significant decisions in favor of immigrants' constitutional rights since the Burger Court, the other being Padilla v. Kentucky. The two decisions indicate that the Court is still willing to enforce immigrants' basic rights of personhood in the context of criminal procedure and the quasi-criminal arena of detention.