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1. Sources of federal immigration power.
a. Sources of the power: it’s not enumerated so where does it come from?
i. Inherent power? independence, incident of sovereignty (maybe about self-if), security (protect from
influx and spies), int’l law (either confers authority or provides maxims to interpret const)
ii. Delegated power? commerce, treaty power (this isn’t a treaty), war power, naturalization (but doesn’t
explain why can’t regulate people who won’t become citizens), migration & importation clause,
republican guarantee clause, foreign affairs power
1. if power turns on one of these, could be limited. E.g. naturalization power.
i. Depends on where power comes from
ii. Exclusive to the fed gov, not states.
c. Strength of power
i. Ct doesn’t seem to look behind substantive exclusion policy.
ii. Not clear if b/c Congress has no restraints or b/c ct won’t enforce them b/c political question.
1. Chinese excl case precursor of political Q doctrine, under which ct won’t step in if const
clearly delegates to other branch or no judicially manageable standards to adjudicate
d. Domain of the power
i. Depends on territory: power at its strongest in early cases when person outside territory.
ii. Chinese Exclusion Case; he’s at the border but entry fiction says not really here.
iii. Yick Wo (statute requires stone houses for laundries, applies only to Chinese, ct strikes down on EP
1. rights here b/c w/in the territory and not an immigration matter.
e. Substantive power to exclude: Chinese Exclusion Case: Ping had certificate of reentry pursuant to treaty but
statute makes it no good. Barred at reentry. Ct holds gov has plenary power over immigration and ct won’t
i. Cases treat this case as about initial grant of authority and also restrictions on it. Not clear.
f. Substantive power to deport:
i. Fong Yue Ting (couldn’t find white witness so deported): power to deport is also plenary to the same
extent power to exclude is. It’s a decision about immigration policy. Greater includes lesser idea in
1. case does seem to say need some proc safeguards, but have subst latitude.
2. still unclear which view of plenary power prevails. Brings up political Q: ct won’t intervene to
second-guess Congress’s decision in the area.
a. But obj: maybe ct not qualified to evaluate nat sec reason, but yes for something like
3. No DP or other const protections b/c deportation isn’t punishment.
Subst power Why limits Why unconst?
Field Ambiguous (strange b/c he Territory (lawful; with Lists amendments, due
authored Chinese Exclusion consent) process. Parade of process
All think deportation is
punishment (Sup Ct has
since roundly rejected that
idea; said deportation is not
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Could have used different
idea: deprivation of interest,
th4 require process.
Brewer Ambiguous Territory; lawful presence. Same
distinction; if have a family
and participate in
community, then limits
Fuller Yes Vested rights. Same
Excludables EWIs (Entrant w/out Deportables (Lawful
inspection; illegal undoc) Permanent Residents) who
deportation. committed deportable act.
New name Inadmissible Inadmissible deportable
Not entered, not admitted Entered, not admitted Entered.
(Qs about) Substantive No ? (prob no rights) No (Fong Yue Ting maj)
(Qs about) Procedural No ? (prob no rights No (Fong Yue Ting maj)
2. Categories of aliens
a. Congress changed law in 1996 (IIRIRA): one proceeding (removal) for everyone (Excl, dep, EWI).
i. Also gets rid of excl/EWI categories.
ii. Excludables and EWIS inadmissibles.
iii. Categories are inadmissibles and deportables.
iv. Q is whether you’ve been admitted. If no, inadmissibles, if yes deportables.
v. Q whether statutory redefinition can alter the underlying Constitutional scheme.
vi. Possibilities are treat all the same, or give more or less protection to EWIs than to excludable aliens.
vii. Why give greater protection to undocumented immigrants than excludables?
1. Maybe it’s about entrance. Once you’re in, have rights. Could have local families, lies, etc.
Biz interest (bizs can rely on it)
a. might want to protect them for themselves; moral obligation. The stake they have
developed deserves protection
b. need to protect those around her; family, etc.
c. something more generally; protecting the community or the economy. Many EWIs
have lived in US for decades and still subj to removal.
viii. Why treat them the same as excludables?
1. Don’t incentivize people to avoid the inspection and sneak over the border.
2. Territoriality: maybe depends on lawfulness.
3. Stake: what if leave country and then return; are they excludables seeking admission, or
deportable who just left. If person seeking admission, they have stake too.
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ix. Why treat them worse?
1. Integrity of judicial system, fairness, incentives. Not reward breaking the law.
2. Familial connections of someone here leads to more unlawful immigration.
a. other example: war brides from WWII.
x. Q what criteria (fairness, stake/connection, territory) should we use to classify people.
c. Other categories
xi. Parolees: get allowed to enter while admission pending. E.g. Cubans released to sponsors in US while
xii. Visa overstays
1. People who have been ordered removed, but haven’t yet been removed.
d. Could have other models of plenary power
xiii. E.g. due process model: const always operates; procedural protection for all of these.
xiv. Maybe stake model: look at political community
2. Ethical/moral questions
a. Carens and Walzer agree that meaning and value come from community.
b. Walzer thinks distinctiveness good (clubs) and need formal closure and controlled immigration for it to
c. Carens thinks can keep distinctiveness with open borders (e.g. cities). Fundamental tradition of liberlism.
d. Neither of these squares w/ the power in early cases: their analysis consistent w/ some limits on the power.
3. Admissions and Admissibility
a. Admin structure
i. DHS has most of enforcement now.
ii. DOJ retains IJs and BIA. AG has final word.
iii. Courts also involved through habeas and admin review
i. Immigrants and non-immigrants distinction
ii. Immigrants become LawfulPermanentResidents (LPRs)
iii. Non-immigrants are persons permitted to enter country temporarily.
1. 1924 first numerical restrictions codified in National Quota system. Big Europe quota, based
on number of people from that country already in US. Attempts to preserve ethnic
composition of the US. And didn’t allow immigration from countries like Japan; laws said
can’t come if not eligible to become citizens. Law only allowed “free white persons”
2. 1965: Congress begins to unwind the distinctions, abolish distinctions btw hemisphere.
a. immediate relatives always exempt from the preferences
a. limits set annually
5. preference categories are backlogged. Family category: have to have filed 23 years ago to
bring sister into country from Philippines.
c. Modern power to exclude: Fiallo v. Bell
1. INA grants special immigration preference to children and parents of citizens and LPR.
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2. “children” defined: if you’re illegit child seeking preference based on relationship w/ father,
not eligible; but w/ mother yes. Also fathers of illegitimate children can’t seek the preference
while mothers can.
3. Appellants are 3 pairs of fathers and sons.
ii. Standard of review
1. although ct says won’t second-guess decisions of Congress in immigration area, it does engage
in some review.
2. New tier below rational basis. Seems to require facially legitimate and bona fide reason
(supplied by ct here—paternity pf issues, less close ties). No fit testing.
a. Overtly racist or arbitrary reason wouldn’t work.
iii. Marshall dissent wants more review b/c rights of citizens involved. Under this reading, old cases
about standing (aliens can’t challenge gov’s exercise of plenary power on const grounds) but different
when citizens involved.
1. we said: “distinction related to immigration” can’t be the standard b/c could build wall on Mex
border and take land w/out compensation from US citizens then.
iv. Application of Fiallo in lower cts: Jean v. Nelson (11th Cir)
1. Haitian detainees challenge decision not to parole on EP grounds.
2. Ct seems to say no proc or substantive rights, using entry fiction to say they aren’t really here.
3. remands on admin law Q of how the executive applied the power that was delegated.
4. SCt affirms on nonconstitutional grounds.
5. Marshall dissents, doesn’t question plenary power but says procedural constraints operate.
Challenge here is to selective detention procedural.
a. Cites Wong Wing, Russian Fleet, Yick Wo line.
6. power is plenary on immigration law: Q remains what is immigration law. Is the process by
which it is carried out included?
a. This is an open Q about scope of plenary power.
d. Family reunification: marriage
i. Principal way of becoming admissible is family connection. INA § 201(b) makes spouses of LPRs
admissible and exempts them from numerical limitations
1. Q who counts as spouse.
ii. Definition of marriage
1. Adams v. Howerton (9th Cir): homosexuals marry in Colorado to get immigration status.
2. Ct uses 2-part test:
a. Whether marriage valid under state law
b. Whether spouse w/in meaning of immigration statute.
3. Here answer to 1st Q not clear.
a. Using state law in the immigration context is strange.
b. But fed gov can’t develop own substantive family law.
c. Can lead to immigration benefits varying depending on state where application filed.
4. 2 part: ct looks at Websters. Q whether Lawrence changes things.
a. Ct grants Chevron deference to INS’s construction of the statute.
b. Maybe b/c delegated to them or institutional competency issue. Agencies have refined
process, notice-and-comment rulemaking.
c. 2nd part might fall under plenary power, get very deferential Fiallo review.
iii. Sham marriages
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1. Bark (Korean marries sweetheart but separated later; Q is intent at the time not whether
separated later); Dabaghian (applies for adjustment based on marriage which was “dead in
fact” when adjustment granted)
2. Ct says what counts is validity of the marriage at the time of the marriage
a. Factors include intending to live together, etc, all at the time
3. Ct bases this on Roe privacy cases line.
4. Q why Const rights suddenly important here when exclusion involve. Why not just invoke
5. maybe cases about procedure, just how to prove the marriage, not substance.
i. IIRIRA redrew the line (see chart).
ii. Inadmissibility grounds generally broader than deportability grounds (health related).
1. 212a grounds: crimes, health related.
2. but interplay b/c 1 deportability ground is inadmissible at time of entry (237a1a)
3. not clear why need this? What if was for being Communist and that’s no longer ground and
wasn’t told at the time? Seems like the provision is anti-fraud, but there are other provisions
that are anti-fraud so why need this one?
4. if admissible, often barred from entry for 10 ys.
a. Some things alien can do. Get the vaccine, wait 10 ys.
1. if inadmissible, can still get a waiver
2. 212h and i: all discretionary
a. 212i waives 212a6C fraudulent misrepresentation finding. Requires extreme hardship
to citizen or LPR/citizen spouse or parent.
b. 212h: can waive drug grounds for single marijuana possession w/ no other serious
3. includes extreme hardship, usually to others.
4. Cervantes-Gonzales: ct weighs factors to determine hardship
a. Family separation, financial hardship (maybe), language barriers and contacts w/
country spouse is going to.
b. For majority, timing of marriage (during procedings) matters. Q if parties’
expectations should control.
c. Today only marriages b4 proceedings initiated count.
4. Deportation (and relief)
a. Constraints on power to deport
i. Bottom line: doesn’t seem like there are any more than on power to exclude.
ii. Bugajewitz (deported for prostitution):
1. case says deportation not punishment so normal crim law things don’t apply.
2. Also says ex post facto clause won’t apply in immigration context. Retroactive application not
voided by ex post facto clause in immigration context.
a. Retroactivity in general: presumption against retroactivity in statutes. That applies to
immigration context as well; when doesn’t say anything, presume not retroactive.
3. But holdings limited.
a. Don’t say no proc protection in immigration context; just that not normal ones. We
know no jury trial right, confrontation rights.
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b. Doesn’t mean retroactivity not an issue. There are nonconstitutional presumptions in
many domestic law contexts: presume statute not retroactive.
c. Q does this presumption apply in immigration, or because of plenary power n/a?
iii. Harisiades: rejects 1st Am claim but doesn’t say 1st Am doesn’t apply; ambiguous.
iv. Reno v. AADC (LA8): originally try to deport 8 for membership in gp advocating communism
(PFLP). Eventually only 2 non-LPRs. They file selective prosecution claim.
1. Dist Ct and 9th Cir hold 1st Am rights apply since civil proceeding. Seems like territorial
conception, also community based.
a. Punishment issue not relevant to 1st Am Qs. Would be to other rights. Like Marshall
2. Sup Ct reverses.
a. Rejects appeal on jurisd grounds. Says no 1st Am issue.
i. Unlawful presence b/c visa violation
ii. Concern w/ disclosing nat sec reasons. Maybe fear of surreptitious foreign
policy making or institutional competence issue.
iii. Deportation not punishment
v. In the end looks like Fiallo review but no clear answer on whether law based on impermissible motive
would be ok.
b. 237: deportability grounds
1. immigration control
2. criminal offense
3. documentation violation
4. public charge, vote unlawfully
5. national security grounds
ii. most prominent: immigration enforcement and crime-related.
iii. Apply to whom? Only people who have already been admitted. Not for someone arriving at border or
in the country unlawfully.
1. Q: some deportation grounds broader than inadmissibility (e.g. aggravated felony not bar to
admission but it is grounds for deportation).
2. Does this lead to illegals treated more favorably? Escape the deportation ground b/c not
3. BUT automatically deportable b/c inadmissible at time of entry.
iv. Waiver 237a1H: some people inadmissible when entered don’t become deportable. Easier to prove
than waiver of inadmissibility for person arriving at the border.
1. Doesn’t this encourage people to enter unlawfully to get better treatment? Idea they have ties
to community now.
v. Crime-related grounds
1. Moral turpitude statute 237(2)(A)(i)
a. 1st Q what is moral turpitude in general?
i. Common understandings and pratices; social mores define it.
ii. This was enough to survive vagueness challenge.
b. 2nd: how decide if particular crime qualifies? Ct makes categorical determination.
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i. Why categorical approach? Would need mini-trial o/w. But problems w/
disparities in state statutes. Rape is crime of moral turpitude but statutes define
in different ways.
ii. Maybe instead, could create huge list of crimes that qualify or defer to agency
c. Statute requires max possible sentence for the crime > 1yr.
i. But lesser offenses in same statute that get much smaller sentence get covered,
whereas other state might have 2 statutes.
d. Goldeshtein: convicted of structuring domestic financial transactions to avoid currency
i. Ct says not crime of moral turpitude, in part b/c no fraud or scienter required.
2. drug-related convictions
a. Flores-Arrellano: held deportable for single conviction of being under the influence of
methamphetamine. Argues use shouldn’t be covered; doesn’t work
b. deportable under 237(a)(2)(B)(1): any alien convicted of violation (consp, attempt) any
law… relating to a controlled substance. Exception for mj possession.
c. Here there is small evidentiary hearing in front of IJ.
d. Clear in this case Congress didn’t think covering use when modified statute. Not clear
which way to draw the inference.
e. More deference to Congress here.
3. Aggravated felony
a. probably the most important one today.
b. Guerrero-Perez convicted of sexual abuse of a minor misdemeanor. Q if it qualifies as
c. Aggravated felony 237(a)(2)(3). Def’n of agg felony p 237. 101a43a: murder, rape or
sexual abuse of a minor.
d. Q how how define felony. It’s crime carrying max prison term (even if not actually
imposed) > 1 yr. Q if that includes misdemeanors
i. Ejusdem generis arg (murder rape and sexual assault)? But that can go other
way since murder, rape are never misdemeanors.
ii. Arg for excluding misd: uniformity (shouldn’t depend on where you live), rule
of lenity, language (term of art), etc
4. ban on reentry
a. if deported for crime, ban on reentry, for life for aggravated felony.
b. If you return, prison sentence. Often 2ys, but up to 20 if had committed aggravated
c. This is true after served your full sentence and after were deported.
d. Waivers for inadmissibility: 212(h), 208:
i. (for deportability (240A))
ii. if committed aggravated felony, ineligible for waiver or for asylum.
iii. also deprived of judicial review.
c. Relief from removal: cancellation
i. INA 240A governs waiver.
1. (a): permanent residents: admitted for > 5 ys, resided > 7, no aggravated felony (no
requirement of hardship)
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2. (b): nonpermanent residents: require 10 ys of physical presence, good moral character, not big
conviction, extreme unusual hardship to US citizen or LPR.
ii. Gonzalez-Recinas: mother fell under (b). Deemed eligible b/c had extreme and unusual hardship. 6
children, some of whom didn’t speak Spanish, no support network in Mexico.
iii. Hernandez hypo p 599 (see notes)
5. Admissions procedures, removal procedures, immigration enforcement (procedural aspect of PP)
a. Constitutional foundations: entry
i. Knauff: war bride detained at Ellis Island, excluded by AG on grounds of national security (235A
1. She claims PDP applies, entitles her to hearing and notice of charges. Choice says no. 3
a. Plenary power (conception Const doesn’t apply)
b. Maybe doesn’t apply b/c not member of the Constitutional community?
i. maybe territory is the issue. Entry fiction: she’s not in US
c. then ct says PDP applies; it’s just whatever Congress says it is.
i. ct doesn’t find constitutionally protected liberty or property interest interest.
ii. claim might have been property interest based on marriage.
d. Not clear holding. Says admission privileged, relies on PP, hints deportation might be
ii. Kwong Hai Chew
1. LPR w/ pending citizenship app travels on ship then excluded.
2. Cts assimilates his status to LPRs and holds he gets PDP hearing and notice
3. Constitutional avoidance involved; reads statute not to include him.
4. Time on ship counts towards naturalization. Also reliance on gov factor.
1. US LPR for 25 ys; tries to go to Roumania but stranded in Hungary 19 months; can’t get back
in for nat sec reasons.
2. What’s the difference w/ Chew? Maybe time, legal fiction (he actually departed),
territory/community (but he had big ties)
3. He is indefinitely detained at Ellis Isl b/c no country will take him. Doesn’t seem to make
4. Jackson dissent: liberty interest at stake. PDP applies like on/off switch (all protections or
Case Type Ground Proc Due Process? Interests/ties
Yamataya Deportation Pauper/public Yes 4 days
Knauff Exclusion Security No Am citizen husband
Chew Returning LPR Security Yes 4-5 ys; house, coast
(gone 4 months) guard…
Mezei Returning LPR Security No 25 ys
(gone 19 months)
Plasencia Returning LPR Alien smuggling Yes
(gone 2 days)
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1. Japanese landed at Seattle. Inspector decided she was deportable 4 days later after
investigation b/c excludable at entry b/c pauper and likely to become public charge. Had
hearing but she said she didn’t understand English, didn’t realize deportability at issue, no
counsel and no opportunity to show not deportable.
2. Ct holds PDP applies in deportation context
3. Ways to read case
a. Whatever they give is due process. Prob bad reading
b. Due process required but this hearing was ok. Commonly read this way but strange.
c. About procedural default. Pbm that she didn’t exhaust admin remedies. Didn’t request
fuller hearing. Q if she would have been competent to.
4. Consistent w/ Fong Yue Ting which said no process required? Could say that was dicta b/c
there was a hearing in that case.
v. Landon v. Plascencia
1. LPR leaves for MX for 5 days, caught w/ illegals in trunk. Got hearing but no notice in
Spanish or notification of free counsel availability; burden of pf on her.
2. O’Connor says she is entitled to PDP, remands for determination whether process was
a. Modern PDP framework
i. Is there a constitutionally protected liberty or property interest?
1. Relevant factors in immigration context:
b. ties — factual connections to country and legal status (LPR etc)
c. departure: reason, length, where, reliance on gov saying ok to
d. reasons for exclusion
ii. If yes, balance
1. interest of individual
a. here, right to work, rejoin immediate family
2. Gov interest
a. PP. Maybe thumb on scale for the gov
3. risk of erroneous deprivation of value of add’l procedures vs benefits of
iii. was process afforded adquate?
1. O’C punts and remands.
2. Q whether PP mandates thumb on scale for gov.
a. it was an on-off switch earlier, not so much here
b. length of time she left key; seems to distinguish Mezei.
c. Q whether moving statutory borders around changes const protections
i. Statute authorizes 4 categories for detention
1. detention upon arrival and inspection.
a. 235B2 authorizes mandatory detention for people who arrive while determine
b. But provides for possibility of parole.
c. 235B1: expedited removal process.
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2. detention pending removal proceedings.
a. 236: discretionary detention for most. 236C: mandatory detention for criminal aliens,
people removable on terrorist grounds, etc.
3. detention after removal order entered but b4 person removed.
a. 241 requires that removal occur w/in 90 days. Makes mandatory detention in that
period, and mandatory if doesn’t happen in the 90 day period.
b. 241a6 at issue in Zadvydas.
4. Terrorism-specific detention
a. Patriot Act added 236A. Covers the 3 categories above. Mandatory detention for
anyone who is a suspected terrorist.
b. Does provide have to initiate proceedings against you w/in 7 days if suspected terrorist.
But allegation that doesn’t happen.
1. 241A6 authorizes indefinite detention of aliens deemed deportable (can become indefinite
when host countries won’t take them back).
2. Ct uses constitutional avoidance, reads a limitation into the statute of 6 months if no
“significant likelihood of removal” (Q what that means)
a. Gov argued compelling interests were protecting community/recidivism and flight
b. Ct says not good enough; need something extra like mental illness.
3. PDP applies and gov interest doesn’t override despite plenary power.
4. Q how square this w/ Mezei and that line of cases
a. Maybe those just for nat sec reasons; that’s the distinction
b. Maybe all about territory; maybe Z establishes people really here have rights.
c. Cites to Wong Wing, which involved hard labor=punishment. Detention is punishment
too, unlike deportation
a. recent case Clark v. Martinez says no indefinite detention even for inadmissibles.
b. Patriot Act 236A: mandatory detention for suspected terrorists.
6. applies DP to people in territory despite plenary power; says PP subj to imp const
iii. Places where detention can happen
1. Before charged
a. Q how long that can last. We haven’t read case yet. New terrorist provision 236A
provides for 7 days.
b. indications in post 9/11 period some people were detained and not charged for 3-4
2. During administrative proceedings
3. After ordered deported during appeal
a. administrative final order of removal and stripped of LPR status; can still appeal.
4. After all the proceedings are done.
a. Zadvydas answers, at least for 241A6.
b. Clark v. Martinez says statute will read same way for excludables.
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1. enters country at 6, convicted in teens, detained during deportation proceedings. Dispute
whether he’s conceded deportability: maj think he has by not requesting hearing, dissents think
he hasn’t b/c intends to contest.
2. Ct holds he can be detained, even though DP applies.
a. Cites gov purpose of ensuring presence at hearing and protecting community from
recidivism; Congress looked at stats about number who don’t show up if released.
b. Distinguishes Zadvydas based on length of detention
c. Maybe means SDP but Congress made findings about flight risk in this category so ok.
d. Gov’s standard is can be detained unless substantially unlikely he will be deportable.
i. Kennedy says if can’t satisfy that bond proceeding where can prove not a
flight risk or danger.
e. Congress does seem to apply some form of heightened review, despite PP
f. One rationale is fear that foreign govs can force release of people into community
i. But US can negotiate. Did w/ Cambodia (Ma) after release.
c. Jurisdiction and judicial review
i. History of jud review
1. For a long time, most review of immigration decisions by executive branch come from habeas
2. In 50s, SCt interprets APA and immigration act to create cause of action for people to seek
review through admin procedures.
3. In 61, Congress creates formal system of review
a. deportation: most review comes through Hobbs Act, which provides for review from
admin actions in fed cts of appeals.
i. Habeas review also available in district cts for those in detention.
b. exclusion: only have habeas review.
4. 1996: Congress rewrites judicial review statute.
a. consolidates all review for deportation and exclusion 1 kind of proceeding, which is
the Hobbs Act procedure.
i. goes w/ § 240 which merges deportation and exclusion proceedings into
removal proceedings in 1996.
b. set up petition for review in ct of appeals as basic avenue for review.
c. repealed old provision in immigration statute that had specifically provided for habeas
relief for those in detention.
ii. St Cyr
a. LPR, convicted of controlled substance offense in CT, pleads guilty. At time he pleads
guilty, conviction makes him deportable but eligible for discretionary relief.
b. But Congress rewrites statute in interim, making him no longer eligible for
discretionary relief b/c of the nature of his crime.
c. Fight about retroactivity: he loses that in immigration ct and files habeas.
d. He files under 28 USC 1441. Used to be INA provision for habeas, but deleted.
e. Jurisdiction-stripping provisions: can usually file if final order of deportation but not if
committed listed crime (he has)
2. Const avoidance holding: need explicit language to get rid of habeas jurisd and doing so would
give const DP issues here b/c no review so read habeas still available.
a. In DP and EP, plenary power makes it look different.
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b. But not cited here, maybe b/c habeas around way b4 immigration law.
3. Writ can only test eligibility for discretion not its exercise
4. today in this situation often have to file petition for review for ct to determine if you’re in
jurisdiction stripping provision b/c committed listed offense, at which point can file habeas.
a. 1-2 ys, in detention the whole time.
5. 2 litigation paths for review.
a. INA § 242: basic structure for seeking review. Some barred from seeking review.
b. Habeas remain available to review detention in immigration context, at least in some
6. might be different here (than DP/EP review) b/c of history of habeas (detention w/o appeal)
problematic and fact states don’t afford any relief unlike normal crim system.
1. Apprehension and initiation: law enforcement process
a. Who does it?
i. sometimes fed border patrol agents. In OH case, state patrol agents.
b. Limits on kinds of conduct of these agents when engaged in immigration enforcement?
i. 4th Am stuff different in immigration world?
2. Removal process b4 you get to ct.
a. Basic removal proceeding 240. IJ and BIA review.
i. No 6th Am right to counsel b/c not criminal proceeding.
ii. Intermediate app cts have held DP doesn’t require gov-provided counsel. Right
to have lawyer present if you pay for it.
iii. Formal rules of evidence don’t apply w/ IJ.
b. Expedited removal.
c. Reinstatement of removal
d. Voluntary departure.
i. you give up, and get to leave w/out having final order issued against you.
ii. avoid bars on reentry and other collateral consequences.
iii. if think borders are porous and can just reenter, good idea.
3. Massive underenforcement of immigration law on police side and processing side.
a. Maybe people have final orders of removal but still here and INS taking no action to
b. Many here unlawfully but never had proceedings initiated against them.
c. as general matter, special provisions can permit state/local law enf to engage in immig
i. Agreement w/ DHS by which they get deputized. INA 287(?). Only parts of
Fla, Ala and LA county.
ii. Other provisions specifically authorize state/local authorities to make arrests for
some immigration related violations:
1. arrests of illegal reentrants who committed crime when previously in
US; only after federal confirmation of status and can only hold until fed
2. alien smugglers
d. localities might not want to do this since can taint other effort like welfare services or
having witnesses to crimes come forward.
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ii. 4th Amendment
1. doesn’t apply to border stops
2. lax standard for checkpoints w/in certain distance of border
3. Montero-Camargo (9th Cir): race used as a factor in checkpoing u-turn stop. Ct says
a. Unclear if concern is w/ absolute number of people of a race, percentage or normative
concern about using race, or combination.
b. SCt said in Brignoni-Ponce that race can count but case distinguishes saying it was
dictum and statistics have changed.
4. pretext doesn’t matter to 4th Am context (as long as bona fide reason for arrest, doesn’t matter
if used race) but gives EP claim. Probably race used much more than litigated in stops.
iii. EP angle
1. Farm Labor Organizing Committee: OH state troopers make stop and rely on race to confiscate
green card. Stop for broken headlight.
2. Ct says can’t rely on race/ethnic appearance when deciding to subject someone to questioning
on immigration status.
3. Ok to rely on language though. Q how to tell btw the 2. Officers not trained for this work.
6. Rights of noncitizens outside immigration contexts
a. Public benefits
i. Area where ct has thought the most about how can constrain rights of noncitizens
ii. Graham v. Richardson: ct strikes down state laws conditioning welfare on citizenship or residency.
1. standard EP analysis: aliens are classic discrete and insular minority and state interest in
saving costs no good.
2. Ct says “person” includes LPRs. Not clear if EWIs included.
3. Alternate rationale for holding that PP doesn’t apply to states; they can’t claim immigration
4. if really about PP though, even strict scrutiny shouldn’t apply; states shouldn’t be able to do it.
iii. Matthews v. Diaz: fed medicare law conditioned on residency and LPR. Ct says ok.
1. ct invokes PP. But hard to see how this is immigration law.
2. Q if it’s about PP or EP?
a. Here it looks like the ct engages in more than normal immigration-level review:
rational basis scrutiny.
iv. Hampton v. Mow Sung Wong
1. civil service comm’n (US agency) excludes noncitizens from employment. LPR gp
challenges. Ct strikes down; holds regulations deprive LPRs of liberty w/out DP. Hybrid
2. ct gives higher review b/c it’s an agency. Says this agency doesn’t wield PP. Would be
different if the president made the decision.
a. A little strange b/c usually agencies get deference
b. Supports PP preemption reading of Graham.
3. After the case, Ford issued the executive order and that was ok.
b. Undocumented immigrants
i. IRCA in 80s was attempt to legalize all here and crack down on employers after that. But failed; both
provisions watered down.
ii. Today crack down mostly on those that have committed crimes. More aggressive border enforcement
in 90s led to change in migration patterns and higher mortality rates.
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iii. Plyler v. Doe
1. TX denies money for education of children of EWIs. Ct strikes down.
2. Not FR or suspect class, but heightened review anyway.
3. Treats the children as members of community b/c assumes won’t be deported. Maybe high
point in ct’s thinking about community membership.
4. gov interest criticized on fit idea. Gov claimed cost of ed and fact they may move.
iv. How far does holding extend.
1. Brennan purports to limit to education.
2. Maybe emergency med assistance would be similar.
Public Benefit Const Right
Aliens in country Alienage discrimination (EP?) Yick Wo, Wong Wing EP
Graham, Diaz, Plyler
Out of the country Probably no (but think what happens Verdugo 4th Am.
if move abroad) Guantanamo cases.
Constitutional Protections? Citizens Aliens
In Yes EWIs—Verdugo ct doesn’t decide
Out Lower cts have said yes. Verdugo—no 4th Am
Rehnquist not so clear in Insular cases.
c. Fourth Amendment
i. Verdugo-Urquidez: search in MX while he is in US under arrest.
ii. Ct holds 4th Am does not apply beyond US borders.
1. territory: entry-fiction like doctrine says he isn’t really here b/c didn’t come voluntarily
a. location of prop also important: new variable
2. status: Reid case had said some const protections apply to citizens abroad but ct not so clear
this is still the case, suggests const itself operates differently.
a. Cassell (lower ct) held based on this person ordered deportable but still in US has no
3. “the people:” term of art in 4th Am
iii. But Kennedy, who joins maj, suggests maybe 4th does apply just unreasonable to apply warrant
requirement to this fact pattern.
iv. Brennan dissent wants mutuality principle, and apply protections abroad. Principle of reciprocity;
protections attach to the gov itself; EP-like Q (citizens/aliens)
Constitutional Protections? Citizens Aliens
In Yes EWIs—Verdugo ct doesn’t decide
Wong Wing, Zadvydas, Mezei were
Wong Wing: get all DP protections if
crim detained in country.
Zadvydas: if already admitted and in
dep proceedings; once detention not in
furtherance of dep, need justifications
like domestic context.
Page 15 of 25
Out Lower cts have said yes. Verdugo—no 4th Am
Rehnquist not so clear; Insular cases. Guantanamo cases: habeas and other
i. Rasul v. Bush:
ii. Statutory habeas statute 28 USC 2241 creates habeas jurisdiction for petitioners in these
1. just about jurisdiction to bring claim
2. consistent w/ Mezei b/c only about jurisdiction
3. consistent Eisentrager? Couldn’t file for writ there.
a. But not like Guantanamo; maybe there were tribunals available there
iii. Why extends to these?
1. They’re noncitizens but no statutory distinction.
2. They’re not in US but can reach the custodian.
3. and they’re in Guantanamo which is special
a. citizens of states we’re not at war with
iv. Broadest reading: jurisd as long as process over custodian.
1. but how about Bagram? Maybe difference in being citizens at states we’re at war w/; Gitmo
ones aren’t normal POWs.
2. logistical issues in extending writ to all POWs.
3. how about extraordinary rendition: hand them over to Egypt?
vi. Sec Def established Combatant Status Review Tribunals (CSRT).
1. Leon (Dist Ct) held Rasul just give jurisdiction but no actual right to relief on the merits.
a. Like PP early cases: can file but no rights.
2. Green held the CSRTs unconstitutional after Rasul.
a. don’t provide sufficient notice b/c only unclassified info.
b. personal representative inadequate b/c no confidential relationship and maybe b/c not a
c. allegations that for some of these, info forming basis for detention obtained through
torture. If true, needs to be excluded and there’s no mechanism for excluding it.
7. Immigration law and national security
a. Constitutional foundations
1. 1940 alien registration act makes deportable any alien who has been member of subversive gp
(advocate violent overthrow of US gov) at any time after entering US, even if membership
terminated b4 the act was passed.
2. 3 aliens challenge:
i. Ct treats them as privileged minority, instead of discrete&insular.
ii. Ct thinks home countries can intervene for them or they could have naturalized
b. 1st Am
i. Ct engages in 1st Am analysis of the time and concludes claim no good but
there is 1st am review (loose means/ends testing).
ii. Unclear what would happen today
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3. case ambiguous. Deference b/c PP? nat sec?
1. Mandel inadmissible b/c advocates World Communism. Still provisions today say
inadmissible if have been member of communist or totalitarian party.
2. Admitted twice by waiver; 3d time AG refuses waiver.
3. Ct upholds his exclusion: standard is facially legitimate and bona fide reason (some review)
4. based on citizens’ rights though (right to hear him); but why isn’t Marshall right: if citizen’s
rights, then PP doesn’t apply?
a. 1 view of PP is applies in arena of immigration law, not just to certain people.
5. Lower cts application of the case: if gov asserts a reason that clearly violates f of speech, then
no good. O/w basically no review. (split, but many said this)
6. Types of problems:
a. Neutral policy but only applied selectively. AADC
b. Discretionary decisions (Kleindienst)
i. Process set up to allow for waiver of initial finding of inadmissibility; Q how
gov can exercise discretion and what if it exercises discretion on basis of
c. Blanket discriminatory: Congress passes law saying no Marxist can enter country.
7. Gov interest:
a. Gov could be worried about:
c. Recruiting. Maybe worried about
i. Violence abroad
ii. Spread of ideology abroad
d. People who might commit terrorist acts in US.
e. Signaling to certain organizations they’re approved of or not.
i. Maybe if allow a candidate in other country’s election where we have foreign
policy stake to enter US, that sends message that we accept the person.
f. Violence against US interests abroad.
i. E.g. Iranian hostage crisis sparked when we allowed Shah into US for medical
b. Terrorism grounds of inadmissibility
i. Statute recently added terrorism ground for deportability and inadmissibility
1. Recently added excludability ground making inadmissible any alien who used position of
prominence to endorse terrorist activity.
a. close to an ideological exclusion.
b. person who just stated that political beliefs include terrorist activity.
2. def’n of terrorism includes using firearm w/ intent to endanger 1+person. Very broad.
ii. Designation process
1. Many consequences
a. assets frozen and seized
b. members of the org can be punished/deported
c. anyone providing material support to the org can be criminally punished or deported.
2. 3 designation processes being used
a. § 219: elaborate procedure at issue in case for today.
i. Makes people deportable but also criminally liable.
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ii. Criminal provisions p 516, 517 (supp).
b. § 212(a)(3)(b)(6) — more streamlined procedure.
i. Applies only to immigration law.
c. 50 USC § 1701 (not in casebook). International Economic Emergencies Act Provision.
President can designate orgs, seize assets if he declares a nat’l emergency. Used to
prosecute War on Terror.
iii. People’s Mujahedeen (PMOI)—§219 case.
1. Mechanics of a designation
i. foreign organization
1. PMOI: straightforward
ii. engages in terrorism
1. statute says ok to use secret evidence. PMOI ct says that’s fine, ex parte
and in camera ok.
iii. threatens nat’l sec of US
1. PMOI ct says this is nonjusticiable
b. Publish in the Federal Register
i. Goes into effect immediately after published.
c. Judicial review: w/in 30 days, org can challenge in the DC Circuit.
d. No collateral attack in later proceeding (e.g. prosecution for material support) on
2. They get DP (notice, opportunity to be heard) but classified info ok.
a. Maybe consistent w/ Matthews v. Eldridge b/c ct says unclassified info justifies finding
b. Also just a property interest
3. Problem arises when person prosecuted on basis of organization.
a. Now it’s a liberty interest and finding can’t be attacked collaterally.
b. 9th cir said this is ok. Element of crim is just that organization is listed.
c. Material support
i. Singh-Kaur: provided tents and food to militants in India. Gov argues he isn’t eligible for adjustment
of status b/c provided material support.
1. Gov mischaraterized the org as designated org. But statute includes providing material
support to any individual who actor knows or reasonably should know has committed or plans
to commit a terrorist activity. 212a3b(iv)(VI)(bb)
2. ct holds statute applies to him based on plain meaning. Dissent argues this reads “material”
ii. 3 big questions
1. mechanics of statute; how will it apply. What constitutes material support?
2. What happens when there’s an intermediary; charity in the middle.
3. 1st amendment implications of the statute.
1. can give to designated org.
2. Can give to org not designated but that gov alleges engages in terrorist activity (Singh-Kaur)
3. or to charity in the middle: gov alleges it’s a front and that you’re basically giving to the
iv. Under statute looks like material support to org that gives material support isn’t enough
1. Infinite regress potential cut off by statute.
Page 18 of 25
a. Can unly fall under dd p 115, which encompass only III p 116 gps, ie conventional
b. 212(a)(3)(b)(iv)(VI)(dd) 212a3b(vi)III 212a3b(iv)I-III.
c. Excludes 212a3b(iv)(VI) which is material support provision
2. Sensenbrenner proposed amendment would change that.
3. BUT exception under dd: unless actor can demonstrate that he did not know, and should not
reasonably have known, that the act would further the organization’s terrorist activity.
4. 212 material support provisions are incorporated in 237 so they can result in inadmissibility
v. Cases raises Q what kind of connection should be required between the activity and the goals of the
1. fungibility argument: everything helps them.
a. Government has advanced “goodwill” theory with Hamas and others
2. problem that makes the statute limitless
3. if require a connection, should it be a categorical or case by case determination?
4. issues w/ battlefield clearing NGOs, or those that work in areas controlled by terrorist groups
(Tamil Tigers) where you need their authorization to do anything.
vi. Do detainees have first Amendment rights in these situations?
1. Harisiades, AAADC, Kleindienst confusing
2. if rights attach, what are they?
a. In domestic context, bare association not enough. Need specific intent to further the
b. But not clear if that applies in immigration context.
d. Other enforcement mechanisms
i. 2 big ones
1. absconder initiative: prioritize dep effort for crim aliens against person from listed set of
a. selective enforcement of dep laws on basis of nationality.
b. predominantly Arab or Muslim countries (& North Korea)
2. Special registration provisions.
a. man over 16, nonimmigrant visa, from designate country report to immgration svces
to be photographed, fingerprinted, questioned.
1. during Iran hostage crises, constitutional EP challenge to statute requiring registration for
Iranian students in the US.
2. Ct applies rational basis. Cites Matthews v. Diaz (but that was benefits case, not immigration
law), Fiallo v. Bell (ct appears to think Fiallo applied rational basis).
3. Ct upholds the statute under rational basis b/c gov may want to use the students as pawns in
int’l relations game.
a. Big themes (go through and say which cases consistent w/ which)
i. Narenji raised foundational PP questions.
1. does PP apply at all / Are there const rights?
a. Competing conceptions so many ways to think about whether it will apply.
i. Can think PP covers field called immigration law.
Page 19 of 25
1. Q becomes if the statute is related to immigration.
2. but Matthews v. Diaz talks about PP (can make laws for aliens that
would be unacceptable for citizens). Maybe b/c allows them to be
pawns. But then extends past “immigration”
ii. Can think of PP from aliens’ rights perspective (objection to this?)
1. don’t ask if it’s like immigration law
2. ask should noncitizen in this case be able to challenge the
constitutionality of the gov conduct
3. 2 big variables
a. status variables
i. sometimes cts seem to think it’s legal status
ii. if so Congress has control over const treatment of
iii. Sometimes seems more like community connections,
becoming de facto members of political community
(Rehnquist in Verdugo)
b. territoriality variables
i. often important but not decisive role
ii. Q where alien located is often not strictly factual b/c of
fictions, etc. e.g. Mezei, Rasul.
2. How does PP influence judicial review / how does a ct enforce those Const rights
a. In early cases seemed like on/off switch; if PP attached, no rights and cts wouldn’t
review actions of exec officials.
b. 100 ys later, don’t technically know the answer but sense that at least sometimes PP
doesn’t operate as on/off switch.
i. Some force.
ii. Changes ways cts think about ordinar const doctrine
iii. Not a doctrine of nonjusticiability today.
c. So context-specific questions
i. Limited review?
1. e.g. Fiallo
ii. more in other cases that might be outside immigration law. E.g. Matthews v.
1. invoked PP in Diaz but applied rational basis review.
iii. Q if these review levels are meaningfully different.
iv. Sometimes normal review. StCyr doesn’t even mention PP, does ordinary
v. see if we can connect the dots, looking at status and territory, differences of
kinds of claims brought,
d. big theme: interaction btw fed govs and state govs
i. family law cases, crim deportation grounds, cases about states denying public
benefits to aliens.
a. Cases that grant rights but one would think would just apply PP
i. Sustantive rights?
1. Yick Wo, Wong Wing, Russian volunteer fleet
Page 20 of 25
a. Ordiniary const rights apply in non-immigration context
2. Bark, Dabaghian marriage cases.
a. Ct focuses on Roe privacy line.
b. maybe they’re about procedure (how to prove the marriage) not substance
4. Landon v. Plascencia: PP gives thumb on scale for gov in DP balancing but not an on-off
5. Zadvydas: they have final deportation orders but get PDP and PP doesn’t override. Says PP
subject to important const constraints.
a. Clark v. Martinez: same for excludables (answer to Jean v. Nelson?)
6. StCyr: talks about habeas const right as if PP weren’t around
a. Maybe b/c habeas is way around immigration law.
7. Matthews v. Diaz: rational basis review, but it’s not immigration law.
8. Harisiades: ct engages in 1st Am review of the time but unclear.
9. Kleindienst: based on citizens’ rights, but that would imply no PP and instead low level review
(facially legit and bona fide)
ii. No rights (modern cases)
a. No subst; PDP is whatever Congress says
2. Mezei. Time here ignored.
3. Kim? No subst right to avoid detention during the trial.
a. BUT maybe ok b/c Congress made findings about light risk in this category.
b. Fear of foreign policy implications
c. Detention limited here, unlike Zadvydas.
iii. Procedural rights
1. Kwong Hai Chew; but assimilated to LPR in US who never left.
2. Yamataya holds PDP applies in deportation but gets very little.
b. Entry fictions
i. Kwong Hai Chew
iv. Jean v. Nelson
a. review (242, habeas)
b. jurisdiction (process over custodian?)
c. substantive rights (exclusion/deportation)
d. procedural rights (exclusion/deportation)
i. detention issues
Page 21 of 25
a. 201 (b)(c) p 54-56: admission of immediate relatives and others not subject to specific caps. General cap
b. 203 (a) p 62-63: preferences for family-sponsored (children unmarried/married, spouses of LPRs, siblings):
c. 212: exclusion
i. 212a: exclusion grounds
1. (1) p 107-108 health related (communicable disease, no vaccine, physical/mental disorder,
drug abuser or addict); can get waiver
2. (2) p 109-112: criminal (but 212h waiver)
a. i(I): moral turpitude; i(II): controlled substance; exceptions. B: multiple convictions;
C: drug traffickers; D: prostitution; H: traffickers in persons…
3. (3) p 112-116: security related
a. p 112-113: terrorist, rep, position of prominence. Escape clause,
b. p 113-14: terrorism defined (firearm), engaging in terrorist act
c. p 114-116: material support. Escape clause. Infinite regress cut off
d. p 116: foreign policy. P 117: totalitarian party except past membership
4. (4) p 118 public charge
5. (6) p 122-123: illegal entrants. (C): misrepresentation
6. (9) p 125-126: if previously ordered removed, can’t reenter for 5 ys (more if crim) even for
ii. 212h p 136-137: waiver for moral turp, controlled, subst, multiple offenses, etc.
1. A: discretion if over 15 ys ago
2. B: extreme hardship for family.
iii. 212i: misrepresentation/fraud waiver: family member, extreme hardship.
1. 212h and I denials not reviewable (242(a)(2)(B) p 301). StCyr: judicial review
only4eligibility4discretion, not exercise
d. 235(b) p 245: expedited removal at border (no hearing or review) unless intend to apply for asylum or fear
persecution. 242e2: limited habeas review.
i. 235b2 p 248: authorizes mandatory detention for people who arrive while determine admissibility.
1. But provides for possibility of parole.
e. 236 p 252: AG may detain pending removal decision or release on bond or conditional parole
i. INA 236(c) p 252-253: AG shall take into custody any alien inadmissible or deportable for designated
reasons, including aggravated felony.
f. 241: detention and removal
i. p 289: detained during removal period. Removal = 90 day period, then supervision.
g. 236A (Patriot Act) p 254-256: detention of terrorists even if elibigle for relief, add’l periods of 6 months
when removal inlikely in foreseeable future if nat sec threat.
i. Habeas is only route available.
h. 237: deportation
i. (a) grounds. (1) p 256-259 inadmissible at time of entry or adjustment of status or status viol’n
(smuggling, G: marriage fraud, H waiver if family + o/w admissible w/out the grounds; easier to
prove than waiver of inadmissibility at border)
ii. (2) criminal offenses p 259-261. moral turpitude, crime for which sentence of 1yr+, aggravated
felony, controlled substances, domestic violence, document fraud
1. 101a(43) p 36 defines aggravated felony. Retroactive def’n.
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iii. (4) p 263: security, terrorism, foreign policy. (5) public charge
i. 240 removal proceedings
i. b4 p 273: aliens’ rights (counsel but no free counsel, reasonable opportunity to examine evidence, etc.
except classified info.
ii. Failure to appear can be removed in absentia
iii. 239 p 270: initiation of removal proceedings: right to info, counsel (rights at initiation)
j. 240A: cancellation of removal
i. (a) p 279: LPR status 5 ys, continuous residence 7 ys, no aggravated felony
ii. (b): nonLPRs: physical presence > 10 ys, good moral character, no crimes, exceptional + extremely
unusual hardship to spouse parent child citizen or LPR.
iii. Exceptions for domestic abuse
iv. 240Ad p 283: breaks in presence. 90 day periods exempt, aggregate of 180 days.
v. (e) p 284: annual limitation.
k. 242: judicial review.
i. P 301-302: expedited removal no judicial review. Denials of 212h, 212i relief no review
ii. 242a2C p 302: criminal offense reason for exclusion no jurisdiction to review
iii. 242b9 p 305: zipper clause: this section spells out all judicial review. But StCyr: habeas still available.
1. § requires final order.
iv. 242e2 p 306: for 235B, habeas corpus available but limited scope (unless lawfully in US, ok)
l. 276 p 394: crim penalties for entry of deported aliens. 2 ys. 10 if drugs or non felony, 20 if felony.
m. Designating foreign terrorist organizations
i. § 219 p 228-30 (PMOI): foreign, terrorist, threatens security. Fed Reg, freeze assets, can use
classified info, judicial review limited in DC Cir (30 days), classified info (ex parte, in camero)
ii. 212a3b(vi): adds o/w designated org or gp of 2+ people who commits, incites, plans, gathers info.
i. 101(a)(13)(C): LPR absent > 180 days treat as seeking admission
ii. 204(c): sham marriages (determined by AG 2havebeen entered into for purpose of evading
iii. 238: expedited removal if aggravated felony
iv. APA 5 USC § 702 p 512-514: review (right, scope)
v. P 515-520 18 USC §§ 2331 et seq: crim def’n of terrorism, material support
vi. 287 deputizes some state officials to do immigration duty (Fla, Ala, LA county)
Page 23 of 25
a. Chinese Exclusion Case (entry fiction; PP at fullest)
b. Yick Wo (stone laundries)
c. Russian Volunteer Fleet (foreign co has 5th Am takings claim based on prop in US)
d. Wong Wing (no hard labor)
e. Fong Yue Ting: white witness deportation statute ok. Political Q, says no DP b/c deportation not punishment
f. Fiallo v. Bell (maybe b/c citizens involved?)
g. Jean v. Nelson: Haitians challenge denial of parole on EP grounds. Entry fiction; no rights. (stake?)
h. Adams v. Howerton: marriage test (1) valid under state law (2) spouse w/in meaning of INA.
i. Bark (fact they separated later not enough; Q is intent at the time)
j. Dabaghian v. Civiletti (inquiry into conduct after marriage would trench into Const values)
k. Bugajewitz: retroactivity issues; ct says no normal const protections.
l. Reno v. AADC (LA8): no selective dep; maybe extraordinary 1st Am case ok, no jurisd
m. Goldeshtein (moral turpitude): categorical. Ct says no fraud here
n. Flores-Arrellano (drug-related deportable): possession/use included
o. Guerrero-Perez (aggravated felony): misdemeanor can be agg felony.
p. Gonzalez-Recinas (240A; Hernandez hypo): 6 children, some didn’t speak Spanish, no support in MX.
q. Knauff: Ellis Isl; entry fiction. No PDP (PP, no stake), then ct says PDP but whatever Congress says. Under
nat sec statute.
r. Kwong Hai Chew: assimilation to LPR; PDP and notice. Under nat sec statute
s. Mezei: ignores 25ys here; entry fiction; indefinite detention seems ok. Under Nat sec statute
t. Yamataya: gets PDP in deportation hearing, but what she got ok (admin exhaustion)
u. Landon v. Plascencia: full PDP (PP = thumb on scale); length of time.
i. Factors list for PP PDP.
v. Zadvydas: gets PDP, despite PP, gov interest doesn’t override. This is after final removal order (really here?)
w. Demore v. Kim: detention during deportation proceeding ok. Short limited detention. Congressional
x. St Cyr: habeas available despite zipper clause (const doubt); DP. PP not mentioned.
y. Montero-Camargo: U-turn, race no good. PP?
z. Farm Labor Organizing Committee: race/ethnic appearance no good. Language ok.
aa. Graham v. Richardson: state can’t draw distinctions in benefits based on immigration. Standard EP analysis.
But alternate rationale PP n/a.
bb. Matthews v. Diaz: fed medicare law conditioned on residency ok. PP but rational basis.
cc. Hampton v. Mow Sung Wong: civil service comm’n can’t make the distinction but president could (and did)
dd. Plyler v. Doe: heightened review, but no IFR or suspect class. Treats as members of community, can’t
assume will be deported. Gov interest criticized on fit.
ee. Verdugo-Urquidez: 4th Am n/a to search in MX of prop in MX, he in US. Entry fiction, status. Brennan
ff. Rasul v. Bush: jurisdiction to hear habeas Gitmo appeal. In Eisentrager had said no. Process over custodian,
Gitmo special. Split in lower cts on whether actual rights.
gg. Harisiades: subversive gp membership dep 1st Am challenged (SDP fails): ct engages in 1st Am analysis of
time. Unclear influence of PP, nat sec.
hh. Kleindienst v. Mandel: facially legit and bona fide but b/c citizens’ rights? Upholds exclusion, recognizes
right to hear him. Maybe view PP applies in immigration law area.
ii. People’s Mujahedeen of Iran (PMOI— 219 designation): prop interest allows challenge. DP but classified
ok. No collateral attack.
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jj. Singh-Kaur (material support): broad/narrow reading; “material;” 1st Am?
kk. Narenji (registration requirement ok under EP; Fiallo = rational basis)
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