Straddling the civil-criminal divide: A bifurcated approach to understanding the nature of immigration removal proceedings

Harvard Civil Rights-Civil Liberties Law Review

Volumn 43, Issue 2, 2008, Pages 289-351

  Markowitz, Peter L ^a  

^a YESHIVA UNIVERSITY   (United States)

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EID: 47049120535     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (580)

1. Chae Chan Ping v. United States, 130 U.S. 581 (1889).
2. Immigration removal proceedings, colloquially referred to as "deportation proceedings," are the primary mechanism by which the government expels noncitizens from the United States or prevents their admission under the Immigration and Naturalization Act ("INA"). Prior to 1996, there were two different types of such proceedings: "deportation proceedings" for noncitizens who had entered the United States and "exclusion proceedings" for noncitizens seeking admission. There is now a single type of proceeding-"removal proceedings"-which encompasses both situations. For the sake of clarity, I will use "removal proceedings" as a blanket term to describe all proceedings whereby the United States government seeks to expel a noncitizen from within its borders or to exclude a noncitizen from entering, regardless of the point in history when those proceedings occurred.
3. Chae Chan Ping, 130 U.S. at 606. The infamy of this case comes not from its conclusion that removal proceedings are civil but rather from the caustic anti-Asian sentiments laced throughout the opinion.
4. See infra notes 46-57 and accompanying text.
5. 149 U.S. 698 (1893).
6. Id. at 730;
7. see also infra notes 66-80 and accompanying text.
8. See infra note 227 and accompanying text.
9. See infra notes 36-37 and accompanying text.
10. See, e.g., INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) ("Consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing."); Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952) ("Deportation, however severe its consequences, has been consistently classified as a civil rather than a criminal procedure,"); Carlson v. Landon, 342 U.S. 524, 537 (1952) ("Deportation is not a criminal proceeding and has never been held to be punishment."); Mahler v. Eby, 264 U.S. 32, 38-39 (1924) (rejecting the argument that "the same constitutional restrictions apply to an alien deportation act as to a law punishing crime" because "[i]t is well settled that deportation, while it may be burdensome and severe for the alien, is not a punishment"); United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155 (1923) (refusing to apply Fifth Amendment protection against self-incrimination "[s]ince the proceeding was not a criminal one"); Bugajewitz v. Adams, 228 U.S. 585, 591 (1913) (noting that deportation "is not a conviction of crime, nor is the deportation a punishment; it is simply a refusal by the Government to harbor persons whom it does not want").
11. Permanent residency is the most favored immigration status in the United States short of citizenship. Lawful permanent residents ("LPRs" or "permanent residents") are allowed to live and work in the United States indefinitely. But see INA § 237, 8 U.S.C. § 1227 (2000) (detailing the various grounds upon which a permanent resident can be deported).
12. The level of due process protection applicable in exclusion proceedings would vary based upon the political and physical circumstances of the noncitizen respondent. See Zadvydas v. Davis, 533 U.S. 678, 721 (2001) (Kennedy, J., dissenting) (noting that "both removable and inadmissible aliens are entitled to be free from detention that is arbitrary or capricious"); Landon v. Plasencia, 459 U.S. 21, 32-34 (1982) (applying due process rights to returning permanent residents); Plyler v. Doe, 457 U.S. 202, 210 (1982) (stating that the Fifth and Fourteenth Amendments protect aliens, including those in the country illegally); Galvan v. Press, 347 U.S. 522, 530 (1954) (noting that aliens have the same due process protections that citizens have); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) ("[A]liens 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 .... But an alien on the threshold of initial entry stands on a different footing: 'Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.'") (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950)); Yamataya v. Fisher, 189 U.S. 86, 98 (1903) (holding that noncitizens get procedural due process protection in deportation proceedings but stating that, with respect to noncitizens seeking initial entry, "the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law").
13. INA § 237, 8 U.S.C. § 1227.
14. This category includes people who have come temporarily as tourists or students, for example, in addition to people who have been permanently admitted as residents.
15. INA § 212, 8 U.S.C. § 1182.
16. See 8 U.S.C. § 1252b (repealed 1996). The 1996 law combined the two proceedings into a single proceeding known as a "removal proceeding."
17. See 8 U.S.C. § 1229a (Supp. 1998);
18. see also Zadvydas, 533 U.S. at 693 (relying on entry as critical dividing line for due process analysis).
19. This includes noncitizens in a wide array of different situations. As I have defined it, noncitizens abroad making an initial application to enter the United States are subject to exclusion as are noncitizens who entered the United States lawfully and have lived here for many years so long as they have not been admitted as permanent residents.
20. The Supreme Court has, at least once, recognized my distinction between expulsion and exclusion as the critical dividing line in assessing the constitutional rights of noncitizens. See Kwong Hai Chew v. Colding, 344 U.S. 590, 596, 600-01 (1953) (holding that the old statutory division between deportation and exclusion was not the critical constitutional dividing line and instead holding that permanent residents maintain their favored constitutional status even when seeking entry).
21. See discussion infra Part III.B.
22. See discussion infra Part III.C.
23. As Sir William Blackstone described, "[a] denizen is an alien born, but who has obtained [] by gift of the king letters patent [to make him an English subject] .... A denizen is in a kind of middle state, between an alien and a natural born subject, and partakes of both of them." 1 WILLIAM BLACKSTONE, COMMENTARIES 632;
24. see also William McKay Bennett, Reentering The Golden Door: Waiving Goodbye To Exclusion Grounds For Permanent Resident Aliens, 69 WASH. L. REV. 1073, 1095 (1994) (analogizing permanent residents to denizens).
25. See Landon v. Plasencia, 459 U.S. 21, 32-34 (1982) (applying due process rights to permanent residents returning from abroad although no such rights are applicable to other noncitizens); Mathews v. Diaz, 426 U.S. 67, 82-83 (1976) (conferring greater rights upon noncitizens who had become lawful permanent residents); Johnson v. Eisentrager, 339 U.S. 763, 770 (1950) (explaining that noncitizens acquire an "ascending scale of rights as [they] increase [their] identity with our society"); Fong Yue Ting v. United States, 149 U.S. 698, 736-37 (1893) (Brewer, J., dissenting) (arguing that expulsion of permanent residents is a criminal punishment because of their superior right to other noncitizens); see also T. ALEXANDER ALEINIKOFF, SEMBLANCES OF SOVEREIGNTY: THE CONSTITUTION, THE STATE, AND AMERICAN CITIZENSHIP 147-48 (2002);
26. HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES 8-9 (2006);
27. GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION: IMMIGRANTS, BORDERS, AND FUNDAMENTAL LAW 131-33 (1996).
28. Permanent residents have duties and obligations to their communities, including but not limited to, paying taxes and compulsory military service. See Ambach v. Norwick, 441 U.S. 68, 81 n.14 (1979) ("[R]esident aliens pay taxes, serve in the Armed Forces, and have made significant contributions to our country in private and public endeavors.");
29. see also Kevin R. Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 BYU L. REV. 1139, 1219 (1993);
30. Charles E. Roh, Jr. & Frank K. Upham, Comment, The Status of Aliens Under United States Draft Laws, 13 HARV. INT'L L.J. 501, 508-09 (1972) (discussing application of military draft to LPRs). As of December 2004 there were 69,299 foreign-born individuals serving in the military, roughly fifty-seven percent of whom were naturalized citizens, while the remaining forty-three percent were not U.S. citizens.
31. Margaret D. Stock, Essential to the Fight: Immigrants in the Military, Five Years after 9/11, 5 IMMIGR. POL'Y IN FOCUS, Nov. 2006, at 1, available at http://www.immigrationpolicy.org/images/ file/infocus/Immigrants_in_the_military_stock_PDF.pdf.
32. Of course, not all permanent residents have greater connections to the United States than all non-LPRs. Many undocumented immigrants who have lived in the United States for many years have connections that run much deeper than, for example, a permanent resident who only recently arrived. However, as discussed infra notes 238-239 and accompanying text, a civil or criminal classification cannot be reassessed in every individual case. We must predetermine at the out-set which categories of proceedings are civil and which are criminal. Thus, we must consider how permanent residents as a class compare to other noncitizens.
33. See Harisiades v. Shaughnessy, 342 U.S. 580, 587 (1952) (locating power to deport as a part of war powers).
34. See MOTOMURA, supra note 21 at 8-9 (explaining the concept of permanent residents as intending citizens).
35. In Kwong Hai Chew v. Colding, the Court explained that limiting the government's removal power over permanent residents "does not leave an unprotected spot in the Nation's armor. Before petitioner's admission to permanent residence, he was required to satisfy the Attorney General and Congress of his suitability for that status." 344 U.S. 590, 602 (1953).
36. Zadvydas v. Davis, 533 U.S. 678, 695-96 (2001) (recognizing that treatment of noncitizens within the United States does not implicate the need to "control entry into the United States" and, therefore, limits on governmental power over noncitizens within the nation "leave no 'unprotected spot in the Nation's armor'" (quoting Kwong Hai Chew, 344 U.S. at 602)).
37. INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) ("Consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing."); see, e.g., Harisiades, 342 U.S. at 594 (holding that the Ex Post Facto Clause does not apply to removal proceedings); Zakonaite v. Wolf, 226 U.S. 272, 275 (1912) (holding that proceedings to enforce immigration regulations do not involve Sixth Amendment protections); Johannessen v. United States, 225 U.S. 227, 242 (1912) (holding revocation of fraudulently obtained citizenship does not require ex post facto protection); Fong Yue Ting v. United States, 149 U.S. 698, 730 (holding that the right to a jury trial and the prohibitions against unreasonable searches and seizures, and cruel and unusual punishments have no application in deportation cases); Orehhova v. Gonzales, 417 F.3d 48 (1st Cir. 2005) (holding there is no Sixth Amendment right to counsel in removal proceedings); United States v. Perez, 330 F.3d 97, 101 (2d Cir. 2003) ("As deportation proceedings are civil in nature, aliens in such proceedings are not protected by the Sixth Amendment right to counsel."); Briseno v. INS. 192 F.3d 1320, 1323 (9th Cir. 1999) (holding that Eighth Amendment protection against cruel and unusual punishment is inapplicable in removal proceedings because they are civil); Jolfa v. INS, 76 F.3d 386 (9th Cir. 1996) (holding that prohibition against double jeopardy does not apply to removal proceedings because deportation is not punishment); Bustos-Torres v. INS, 898 F.2d 1053. 1056-57 (5th Cir. 1990) (holding that Miranda warnings are not required in deportation proceedings); Rubio De Cachu v. INS, 568 F.2d 625, 627-28 (9th Cir. 1977) (noting that since deportation is a civil rather than a criminal proceeding, a deportation provision cannot be characterized as a "bill of attainder"); Chavez-Raya v. INS, 519 F.2d 397. 402 (7th Cir. 1975) (holding that failure to give Miranda warnings during custodial interrogation does not render statement inadmissible in civil removal proceedings).
38. See generally Developments in the Law - Immigration Policy and the Rights of Aliens. 96 HARV. L. REV. 1370. 1385 (1983) (enumerating the various ways in which "the government affords fewer procedural rights to aliens facing deportation than to criminal defendants"). But cf. Yamataya v. Fisher, 189 U.S. 86. 100 (1903) (holding that noncitizens do get procedural due process protection in deportation proceedings).
39. See Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of 8, 15, 18, 22, 28, 40, 42, 50 U.S.C.); IIRIRA, Pub. L. No. 104-208, Div. C, 1996 U.S.C.C.A.N. (110 Stat.) 3009-546 (codified in scattered sections of 8 U.S.C.); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004) (holding that the retroactive application of the IIRIRA did not violate the Ex Post Facto Clause because removal was a civil action); Perez v. Elwood, 294 F.3d 552, 557 (3d Cir. 2002) (holding that the Ex Post Facto Clause does not apply to deportation statutes and that the IIRIRA applies retroactively); Aragon-Ayon v. INS, 206 F.3d 847 (9th Cir. 2000) (holding expansion of the definition of "aggravated felony" under the IIRIRA could be applied retroactively so as to render deportable an alien who pled guilty to an offense that was not an "aggravated felony" at the time of the plea). But cf. INS v. St. Cyr, 533 U.S. 289, 315-16 (2001) (noting that a law may not be applied retroactively absent a clear indication by Congress that it intended such result).
40. See generally Nancy Morawetz, Rethinking Retroactive Deportation Laws and the Due Process Clause, 73 N.Y.U. L. REV. 97 (1998).
41. Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003).
42. See, e.g., N.Y. PENAL LAW § 221.10 (2000) (classifying criminal possession of marijuana in the fifth degree as a B misdemeanor); N.Y. PENAL LAW § 70.15(2) (authorizing a sentence of up to three months for B misdemeanors). Notwithstanding the statutory maximum, people convicted of misdemeanor possession of marijuana usually serve no more than a few days, if they are incarcerated at all.
43. See INA § 236(c)(1)(B), 8 U.S.C. § 1226(c)(1)(B) (2000);
44. INA § 241(a)(2), 8 U.S.C. § 1231(a)(2) (2000).
45. Bridges v. Wixon, 326 U.S. 135, 147 (1945) (internal quotation marks omitted); Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).
46. Kong Yue Ting v. United States, 149 U.S. 698, 740 (1893) (Brewer, J., dissenting).
47. See, e.g., Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 497 (1999) (Ginsburg, J., concurring) (asserting that it "cannot be doubted" that "deportation is a penalty - at times a most serious one")
48. (quoting Bridges, 326 U.S. at 154); Jordan v. De George, 341 U.S. 223, 243 (1951) (Jackson, J., dissenting) (arguing that while deportation proceedings "technically are not criminal," deportation is a "savage penalty" and functionally "a life sentence of exile");
49. Fong Yue Ting, 149 U.S. at 744-61 (Field, J., dissenting) (arguing emphatically that deportation is punishment); Scheidemann v. INS, 83 F.3d 1517, 1526-31 (3d Cir. 1996) (Sarokin, J., concurring) (characterizing the Supreme Court's longstanding precedent that deportation is civil as " unrealistic" and arguing that the Supreme Court should "wipe the slate clean and admit to the long evident reality that deportation is punishment").
50. See, e.g., Galvan v. Press, 347 U.S. 522, 531 (1954) (recognizing that "since the intrinsic consequences of deportation are so close to punishment for crime, it might fairly be said also that the ex post facto Clause, even though applicable only to punitive legislation, should be applied to deportation" but ultimately adhering to precedent and upholding the removal order); Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952) (calling the conclusion that deportation is a civil matter "debatable" but refusing to reconsider the settled law); Yepes-Prado v. INS, 10 F.3d 1363, 1369 n.11 (9th Cir. 1993) (characterizing deportation as punishment but noting that the court is bound by Supreme Court precedent declaring deportation to be civil): Cabral-Avila v. INS, 589 F.2d 957, 959 (9th Cir. 1978) (noting that "[t]he deportation proceeding, despite the severe consequences, has consistently been classified as civil, rather than a criminal matter"); United States ex rel. Klonis v. Davis, 13 F.2d 630, 630 (2d Cir. 1926) (L. Hand, J.) (noting that "deportation is to [Klonis] exile, a dreadful punishment, abandoned by the common consent of all civilized peoples"); .
51. see also Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 564-76 (1990) (giving a thorough explanation of how courts' discomfort with their inability to apply standard constitutional scrutiny to removal cases has led them to use "phantom" constitutional norms to render purportedly subconstitutional decisions in favor of respondents); cf. Trop v. Dulles, 356 U.S. 86, 98 (1958) (characterizing the rule that deportation is not penal as "highly fictional").
52. But see United States v. Soueiti, 154 F.3d 1018. 1019 (9th Cir. 1998) (holding that deportation is a criminal punishment when it is ordered, pursuant to 8 U.S.C. § 1228(c)(1), by a federal judge sentencing a defendant for a criminal conviction).
53. See, e.g., Javier Bleichmar, Deportation As Punishment: A Historical Analysis of the British Practice of Banishment and Its Impact on Modern Constitutional Law. 14 GEO. IMMIGR. L.J. 115, 116 (1999):
54. Austin T. Fragomen, The "Uncivil" Nature of Deportation: Fourth and Fifth Amendment Rights and the Exclusionary Rule, 45 BROOK. L. REV. 29, 34-35 (1978);
55. Daniel Kanstroom, Deportation, Social Control, and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 HARV. L. REV. 1889, 1893-94 (2000);
56. Robert Pauw, A New Look at Deportation as Punishment: Why at Least Some of the Constitution's Criminal Procedure Protections Must Apply, 52 ADMIN. L. REV. 305, 313 (2000);
57. Michelle Rae Pinzon, Was the Supreme Court Right? A Closer Look at the True Nature of Removal Proceedings in the 21st Century, 16 N.Y. INT'L L. REV. 29, 32 (2003);
58. Lupe S. Salinas, Deportations, Removals and the 1996 Immigration Acts: A Modern Look at the Ex Post Facto Clause. 22 B.U. INT'L L.J. 245, 261-73 (2004);
59. Ethan Venner Torrey, "The Dignity of Crimes": Judicial Removal of Aliens and the Civil-Criminal Distinction, 32 COLUM. J.L. & SOC. PROBS. 187, 188, 206 (1999);
60. Developments in the Law-Immigration Policy and the Rights of Aliens. 96 HARV. L. REV. 1370, 1386 (1983).
61. E.g., Bleichmar, supra note 37, at 118;
62. Kanstroom, supra note 37, at 1891. 1893;
63. Lisa Mendel, The Court's Failure to Recognize Deportation as Punishment: A Critical Analysis of Judicial Deference, 5 SUFFOLK J. TRIAL & APP. ADVOC. 205 (2000);
64. Pauw, supra note 37;
65. Gregory L. Ryan, Distinguishing
66. Fong Yue Ting: Why the Inclusion of Perjury as an Aggravated Felony Subjecting Legal Aliens to Deportation Under the Antiterrorism and Effective Death Penalty Act Violates the Eighth Amendment, 28 ST. MARY'S L.J. 989, 1010-12 (1997).
67. E.g., Pinzon, supra note 37, at 62.
68. E.g., Bleichmar, supra note 37, at 129, 134.
69. E.g., Kanstroom, supra note 37, at 1894;
70. Salinas, supra note 37, at 269-71.
71. One other author has suggested a need to move beyond the Court's monolithic approach but not by distinguishing between exclusion and expulsion. Rather, Daniel Kanstroom, in his essay Deportation, Social Control, and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, supra note 37, argues that "social control" removal laws must be analyzed separately from "border control" removal laws. In this thoughtful work, Kanstroom concludes that removal proceedings sanctioning post-entry misbehavior are social control laws analogous to criminal law, and therefore, such proceedings should receive some protections analogous to criminal proceedings.
72. Id. at 1897, 1907, 1935;
73. see also Daniel Kanstroom, Deportation and Justice: A Constitutional Dialogue, 41 B.C. L. REV. 771, 787 (2000).
74. Kanstroom's work is notable because it does not treat all removal proceedings as a single entity for the purpose of assessing their criminal or civil nature. While Kanstroom's distinction between social control and border control laws has significant appeal, I conclude the distinction is ultimately not supported by doctrine and history. Instead, the distinction between exclusion and expulsion is the critical dividing line. Moreover, I conclude, unlike Kanstroom, that expulsion proceedings are pure criminal proceedings - not simply analogous to criminal proceedings and therefore deserving of quasi-criminal treatment. I also endeavor herein to examine the practical implications of redesignating expulsion proceedings as criminal. In his article, Kanstroom sought to "reinvigorate the discussion of how best to understand the constitutional doctrine of deportation law." Kanstroom, supra note 37, at 1897. I hope in this article to answer that call.
75. See discussion infra Part II.
76. See discussion infra Part III.
77. See discussion infra Part IV.
78. Prior immigration cases arose as challenges to state attempts to regulate immigration and, in those cases, the Court located the federal power over immigration as derived principally from the Foreign Commerce Clause. See, e.g., Edye v. Robertson, I 12 U.S. 580 (1884); Henderson v. Mayor of New York. 92 U.S. 259 (1875): Chy Lung v. Freeman, 92 U.S. 75 (1875); Smith v. Turner. 48 U.S. 283 (1849). Chae Chan Ping was "the first case in which the Supreme Court identified a free-standing federal immigration power.
79. See generally Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens. Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs. 81 TEX. L. REV 1. 106-12, 123-34 (2002).
80. 130 U.S. 581 (1889);
81. see also discussion infra note 49.
82. In 2006. eighteen percent (11,911 out of 66,618) of appeals initiated in the United Stales Courts of Appeals were immigration removal cases. JUDICIAL BUSINESS OF THE UNITED STATES COURTS, 2006 ANNUAL REPORT OI THE DIRECTOR, TABLE B-3. U.S. COURTS OF APPEALS-SOURCES OF APPEALS AND ORIGINAL PROCEEDINGS COMMENCED, BY CIRCUIT, DURING THE 12-MONTH PERIODS ENDING SEPTEMBER 30, 2002 THROUGH 2006, available at http://www.uscourts.gov/judbus2006/appendices/b3.pdf (last visited Mar. 13. 2008). In the Second Circuit the number was thirty-eight percent (2640 out of 7029), and in the Ninth Circuit, a full forty percent (5862 out of 14,636) of new appeals were immigration removal cases. Id.
83. There were earlier cases that began to develop a notion of the federal government's immigration powers. These cases pertained primarily to the balance of power between the federal and state governments over the regulation of immigration. In New York v. Miln, a New York statute requiring that ships entering New York make a report of the passengers on board was upheld as being part of a state's police power and not a regulation of foreign commerce. 36 U.S. 102, 161 (1837). In The Passenger Cases, New York's and Massachusetts' taxes on incoming passengers were struck down as infringing upon the federal government's exclusive authority over immigration. 48 U.S. 283 (1849);
84. see also Edye, 112 U.S. at 580;
85. Henderson, 92 U.S. at 259; Chy Lung, 92 U.S. at 75. The Court had also previously issued some decisions pertaining to federal immigration matters, but those decisions failed to delve into the central issue of the nature of the government's immigration powers and the limits, if any, on Congressional power.
86. See, e.g., Chew Heong v. United States, 112 U.S. 536, 560 (1884) (interpreting statute requiring reentry permits for Chinese laborers not to apply retroactively to Chinese national who departed before such permits were in existence); United States v. Jung Ah Lung, 124 U.S. 621, 635 (1888) (holding that statute which stated that a reentry permit was the only competent proof of a Chinese national's right to reenter did not apply retroactively to Chinese laborer who left with such permit but lost it to pirates).
87. Prior to the passage of the Scott Act, which tightened restrictions on Chinese immigration by barring the return of all Chinese laborers, anti-Chinese sentiment was strong throughout the Western United States. MOTOMURA, supra note 21, at 15-16. When the transcontinental railroad was completed, some ten thousand Chinese workers were left unemployed, which depressed wages throughout the western states.
88. Id. at 17. Chinese laborers who had been critical to the completion of the railroad were now viewed as unwelcome economic competition.
89. Id. After a recession from 1873 to 1878, many in California and throughout the West blamed Chinese laborers for American joblessness.
90. Id. The rising tide of anti-Chinese sentiment pervaded local politics in die West and seeped into national politics as well.
91. Id.;
92. see also Thomas E. Cavanagh, Political Representation and Stratified Pluralism, in IMMIGRATION AND RACE: NEW CHALLENGES FOR AMERICAN DEMOCRACY 163, 186 (Gerald D. Jaynes ed., 2000) (noting that the presence of Chinese contract laborers during the 1860s stirred up tremendous resentment from white laborers, prompting the passage of discriminatory laws by the California government beginning in 1872).
93. See Supplemental Act of Oct. 1, 1888, ch. 1064, 25 Stat. 504 (1888).
94. Chae Chan Ping, 130 U.S. at 589.
95. See Fong Yue Ting v. United States, 149 U.S. 698, 722 (1893) (explaining petitioner's arguments in Chae Chan Ping).
96. See generally Cleveland, supra note 46, at 123-34.
97. Chae Chan Ping, 130 U.S. at 594-96.
98. Prior to his appointment to the Court, Justice Field had himself participated in xenophobic efforts to restrict Chinese immigration. Kanstroom, supra note 37, at 1905; .
99. see also Fong Yue Ting, 149 U.S. at 743 (Brewer, J., dissenting) (referring to "obnoxious Chinese").
100. Chae Chan Ping, 130 U.S. at 606.
101. Calder v. Bull, 3 U.S. (3 Dall.) 386 (1789) (establishing that the Ex Post Facto Clause applies to retroactive changes in criminal punishment).
102. The plenary powers doctrine is the principle that restricts the judiciary from applying constitutional scrutiny to the substantive provisions of immigration law. See infra note 118 and accompanying text. There is considerable debate about whether the plenary powers doctrine is properly understood as a doctrine of deference to the political branches based on a theory of institutional competence (akin to the political question doctrine) or whether it is a more radical tenet that the political branches are unconstrained by the Constitution in their substantive immigration decisions.
103. See generally ALEINIKOFF, supra note 21, at 154-74. For the purposes of this Article, it is not necessary to enter this debate.
104. Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892) (emphasis added).
105. Id.
106. Id. at 659 (emphasis added).
107. Id. (emphasis added). The Court also identified aspects of this power in the naturalization clause,
108. id., which pertains explicitly to the decision of who to allow to enter the national community, and the war powers provisions,
109. id., presumably insofar as they relate to the power to protect against the "aggression and encroachment" of foreign invaders.
110. See also Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889). These provisions similarly appear to be related to the power to prevent or invite entry into this country, not the power to expel people from within.
111. Lau Ow Bew v. United States, 144 U.S. 47 (1892).
112. Id. The Court referred to the petitioner in this case as a person "domiciled" in the United States, but the treaty under which the petitioner was admitted specifically permitted the entrance of Chinese nationals to the United States as "permanent residents."
113. Id. at 49 (citing Burlingame Treaty, U.S.-China, July 28, 1868, 16 St. 739). Thus, while no individualized determination was previously made by the United States to admit the petitioner as a permanent resident, the affirmative decision was made as to a class of persons including the petitioner. In later cases the Court explicitly referred to persons in the petitioner's situation as "resident aliens." Fong Yue Ting v. United States, 149 U.S. 698, 734 (1893) (Brewer, J., dissenting).
114. Wan Shing v. United States, 140 U.S. 424, 426 (1891) (emphasis added).
115. This discomfort was expressed by reference to the "general [principle of] international law, [that] foreigners who have become domiciled in a country other than their own acquire rights and must discharge duties in many respects the same as possessed by and imposed upon the citizens of that country." Lau Ow Bew, 144 U.S. at 61-62. But cf. Chae Chan Ping, 130 U.S. at 609 (applying explicit retroactive exclusion law to Chinese laborer who had lived in the United States for twelve years and was abroad for sixteen months).
116. 149 U.S. at 698.
117. Chinese Deportation Act of May 6, 1892, ch. 60, 27 Stat. 25.
118. Id.
119. Id. § 6. Interestingly, the statute explicitly provided that the unlawful presence of non-permanent residents was a crime and that deportation in those instances would be enacted as punishment for criminal conviction.
120. See id. §§ 2, 4;
121. see also Wong Wing v. United States, 163 U.S. 228 (1896). Thus, counterintuitively, non-permanent residents facing deportation under the statute received the enhanced protections inherent in criminal law, but the long-term permanent residents, whom the government affirmatively invited into the United States, did not.
122. Fong Yue Ting, 149 U.S. at 730.
123. Id. at 707-09.
124. Id. at 756-57 (Field, J., dissenting);
125. see also infra notes 75-80 and accompanying text.
126. Fong Yue Ting v. United States. 149 U.S. 698, 707 (1893) ("The right of a nation to expel or deport foreigners, who have not been naturalized or taken any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country.").
127. Id. at 730 ("The order of deportation is not a punishment for crime.").
128. Id. at 740 (Brewer, J., dissenting) ("Deportation is punishment.");
129. id. at 758-59 (Field, J., dissenting) ("His deportation is thus imposed for neglect to obtain a certificate of residence, from which he can only escape by showing his inability to secure it from one of the causes named. That is the punishment for his neglect, and that . . . can only be imposed after indictment, trial, and conviction.");
130. id. at 763 (Fuller, C.J., dissenting) ("As to them, registration for the purpose of identification is required, and the deportation denounced for failure to do so is by way of punishment to coerce compliance with that requisition. No euphuism can disguise the character of the act in this regard.").
131. Fong Yue Ting v. United States, 149 U.S. 698, 709, 713 (1893) (majority opinion).
132. The third dissent was by Chief Justice Fuller, who argued that the Act: directs the performance of a judicial function in a particular way, and inflicts punishment without a judicial trial. ... It is, in effect, a legislative sentence of banishment, and, as such, absolutely void. Moreover, it contains within it the germs of the assertion of an unlimited and arbitrary power, in general, incompatible with the immutable principles of justice, inconsistent with the nature of our government, and in conflict with the written Constitution by which that government was created and those principles secured.
133. Id. at 763 (Fuller, C.J., dissenting).
134. Id. at 736 (Brewer, J., dissenting).
135. Id. at 736-41.
136. Id. at 750 (Field, J., dissenting);
137. see also infra notes 225-228 and accompanying text.
138. See, e.g., Johannessen v. United States, 225 U.S. 227, 242 (1912) (relying in part on civil label to permit the retroactive application of a law providing for the cancellation of fraud-ulently obtained naturalization certificates);
139. see also Lem Moon Sing v. United States, 158 U.S. 538, 546-47 (1895) (relying in part on civil label to uphold jurisdiction-stripping provisions that insulated executive action in the immigration arena from judicial review).
140. Mahler v. Eby, 264 U.S. 32, 39 (1924); Bugajewitz v. Adams, 228 U.S. 585, 591 (1913).
141. See Ng Fung Ho v. White, 259 U.S. 276, 284-85 (1922) (deporting persons with non-frivolous claim to United States citizenship requires a judicial, not merely administrative, determination);
142. see also Wong Wing v. United States, 163 U.S. 228, 237 (1896).
143. 163 U.S. 228 (1896).
144. Kaoru Yamataya v. Fisher, 189 U.S. 86 (1903).
145. See also Motomura, supra note 36 at 549 (explaining the Court's use of sometimes strained statutory interpretation of immigration statutes to fill the void of minimal constitutional oversight created by the plenary powers doctrine).
146. Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948).
147. Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947).
148. Bridges v. Wixon, 326 U.S. 135, 154 (1945).
149. See Kwong Hai Chew v. Colding, 344 U.S. 590, 598-99 (1953) (interpreting the statutory term "excludable" in a regulation as having no application to legal permanent residents, since such a reading would have been questionable given "a resident alien's constitutional right to due process");
150. Fong Haw Tan, 333 U.S. at 6 (reversing permanent resident's deportation order by interpreting "sentenced more than once" to mean two separate prosecutions);
151. Delgadillo, 332 U.S. at 388 (reversing long-time noncitizen resident's order of deportation by interpreting "entry" not to include return from foreign soil after being rescued to that land from a ship that was torpedoed);
152. Bridges, 326 U.S. at 135 (overturning deportation order based on agency's incorrect interpretation of law providing for deportation of aliens "affiliated" with Communist Party).
153. Jordan v. De George, 341 U.S. 223, 231 (1951).
154. Galvan v. Press, 347 U.S. 522, 530-31 (1954).
155. See, e.g.. United States v. Spector, 343 U.S. 169, 178 (1952) (Jackson, J., dissenting). Justice Jackson stated:
156. Administrative determinations of liability to deportation have been sustained as constitutional only by considering them to be exclusively civil in nature, with no criminal consequences or connotations. That doctrine, early adopted against sharp dissent has been adhered to with increasing logical difficulty as new causes for deportation, based not on illegal entry but on conduct after admittance, have been added, and the period within which deportation proceedings may be instituted has been extended.
157. Id.; De George, 341 U.S. at 232 (Jackson, J., dissenting) (referring to deportation based on a criminal conviction as an additional "punish[ment] with a life sentence of banishment").
158. Notably, during this period the cases that troubled the Court most consistently involved the expulsion of noncitizen residents. See, e.g., Landon v. Plasencia, 459 U.S. 21, 32 (1982) ("[O]nce an alien gains admission to our country and begins to develop ties that go with permanent residence, his constitutional status changes accordingly."); Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963) (noting an "innocent, casual, and brief excursion" by a noncitizen resident outside this country's borders does not subject him to the consequences of an "entry" upon his return); Delgadillo, 332 U.S. at 388 (holding noncitizen resident not subject to deportation when he did not voluntarily leave and reenter the United States). In contrast, during this same period the Court permitted the summary exclusion of other noncitizens without a hearing, holding that the "exclusion of aliens is a fundamental act of sovereignty" and that "[w]hatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien." Knauff v. Shaughnessy, 338 U.S. 537, 542-53 (1950).
159. 342 U.S. 580 (1952).
160. Id. at 584, 593.
161. The petitioners also argued that the law violated the First Amendment. Id. at 591-92.
162. Id. at 585.
163. Id. at 587-88.
164. Id.
165. Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952).
166. Id. at 594.
167. W. at 594-95.
168. But see id. at 598, 600 (Douglas, J., dissenting) (calling deportation a punishment through banishment and a deprivation of "all that makes life worth while" and arguing that Fong Yue Ting should be overruled).
169. Compare Hampton v. Mow Sun Wong, 426 U.S. 88, 101 (1976) ("We do not agree . . . that the federal power over aliens is so plenary that any agent of the National Government may arbitrarily subject all resident aliens to different substantive rules from those applied to citizens."), and Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953) (construing immigration regulation permitting exclusion of aliens based on secret evidence inapplicable to a returning permanent resident alien because of the substantial constitutional concerns that such an application would present), with Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (upholding denial of temporary visa to non-permanent resident and sustaining 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)), and Boutilier, 387 U.S. at 123 (upholding law excluding homosexuals based on Congress's plenary power over admission and exclusion of aliens).
170. See also supra note 94 and accompanying text;
171. Morawetz, supra note 29, at 125 n.122 (discussing in general that the terminology of "plenary power" has rarely arisen in cases involving long term permanent residents).
172. See supra notes 94, 103 and accompanying text.
173. See, e.g., Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999) (explaining that deportation is not punishment because the noncitizen is "merely being held to the terms under which he was admitted"); INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (holding that deportation is a "purely civil action" and refusing to apply the exclusionary rule to such proceedings).
174. See, e.g., Demore v. Kim, 538 U.S. 510, 522 (2003) ('"[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.'") (quoting Mathews v. Diaz, 426 U.S. 67, 81 n.17 (1976)); Toll v. Moreno, 458 U.S. 1, 10 (1982) (locating the immigration power in, inter alia, the naturalization clause and the foreign commerce clause as well as the "broad authority over foreign affairs").
175. Fong Yue Ting v. United States, 149 U.S. 698, 709, 713 (1893).
176. See id. at 713.
177. See Bleichmar, supra note 37. Bleichmar presents a useful analysis of the historical use of transportation as a criminal punishment and its influence on the Framers' conception of the criminal or civil nature of removal. He argues that all removal orders are criminal in nature because they are analogous to the eighteenth century, widespread practice of transportation.
178. Id. at 116. Building upon Bleichmar's analysis, I argue below that expulsion, but not exclusion, is the modern day equivalent of the criminal punishment of transportation.
179. The Court in Fong Yue Ting recognized the relevance of a historical inquiry but asked the wrong historical question. 149 U.S. at 707. The Court focused on whether or not nations have historically had the power to expel or deport noncitizens.
180. Id. at 707-11. No one was arguing that the United States lacked the power to expel or exclude. The real issue, which the Court sidestepped, was whether the powers of exclusion and/or expulsion had historically been criminal or civil.
181. See discussion infra Part III.B.
182. See supra notes 46-48
183. and infra notes 224-227 and accompanying text.
184. See Cleveland, supra note 46, at 81, 106-12. Cleveland provides an excellent and comprehensive historical examination of the origins of the doctrine of inherent powers over foreign affairs and the Supreme Court's ultimate ratification of that doctrine in its late nineteenth-century decisions.
185. Chae Chan Ping v. United States, 130 U.S. 581, 603 (1889) (emphasis added).
186. Fong Yue Ting v. United States, 149 U.S. 698, 711 (1893) (emphasis added).
187. NEUMAN, supra note 21, at 122. Notwithstanding this common understanding of the inherent powers theory, the decision in Fong Yue Ting itself does not present a consistent picture of the relationship between the immigration powers and the Constitution.
188. See, e.g., Fong Yue Ting, 149 U.S. at 712 (referring to the immigration powers as "committed by the constitution" to the political branches of government);
189. id. at 730 (referring to the immigration powers as "constitutional authority").
190. Fong Yue Ting, 149 U.S. at 712-13.
191. This logical leap is certainly ripe for scrutiny. See discussion infra Part III.A.1.
192. While the Supreme Court has demonstrated increasing discomfort with the theory of extra-constitutional powers over the last century, see discussion infra Part III.A.3, it has never directly overruled the inherent powers holding of Fong Yue Ting. To the contrary, in the first half of the twentieth century the Supreme Court reaffirmed the concept of inherent powers several times.
193. See, e.g., Carlson v. Landon, 342 U.S. 524, 534 (1952) (referring to the "sovereign right to determine what noncitizens shall be permitted to remain within our borders" and explaining that the "lack of a clause in the Constitution specifically empowering such action has never been held to render Congress impotent to deal as a sovereign with resident aliens"); Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) ("The exclusion of aliens is a fundamental act of sovereignly. 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."); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936) (asserting the federal authority over foreign relations is inherent in the United States' existence as an independent nation and exists independently from any constitutional delegation).
194. Before launching into this inquiry, it is worth pausing for a moment to address its relevance to the proverbial elephant in the room: the plenary powers doctrine. The birth of the plenary powers doctrine - the principle that restricts the judiciary from applying constitutional scrutiny to the substantive provisions of immigration law - can be traced, like the civil designation, to the Supreme Court's decisions in Chae Chan Ping, 130 U.S. 581 (1889), and Fong Yue Ting, 149 U.S. 698 (1893). More specifically, the plenary powers doctrine can be understood as an outgrowth of the inherent powers theory. Insofar as the power to regulate immigration is derived from the inalienable nature of sovereignty and is thus extra-constitutional in origin, substantive constitutional limits have no place - or so the theory goes. Thus, to the extent that my inquiry draws into question the inherent powers theory, it also has some implications for the viability of the plenary powers doctrine. Nonetheless, even if we were to discredit the inherent powers theory altogether, the plenary powers doctrine does not necessarily fall, as the doctrine has alternative possible justifications.
195. See supra note 57 and accompanying text.
196. Moreover, the viability of the plenary powers doctrine is not necessarily determinative of the civil or criminal nature of removal proceedings. If the plenary powers doctrine were to fall and constitutional scrutiny were to be applied to immigration policy, the question of whether to apply criminal or civil constitutional protections would remain. In the alternative, if, as I propose, we were to redesignate expulsion as a criminal proceeding, this would not necessarily eviscerate the plenary powers doctrine. Plenary powers could in theory survive with regard to exclusion decisions or could even apply to criminal expulsion proceedings since the relevant constitutional protections are procedural, and by definition are not covered by the substantive plenary powers doctrine. See Motomura, supra note 36, at 550-60 (giving historical account of the plenary powers doctrine). Assessing the merits of the plenary powers doctrine is the subject of an extremely rich and voluminous body of scholarship and is beyond the scope of this piece.
197. See, e.g., ALEINIKOFF, supra note 21;
198. NEUMAN, supra note 21;
199. Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 SUP. CT. REV. 255, 256;
200. Motomura, supra note 36, at 606;
201. Peter J. Spiro, Explaining the End of Plenary Power, 16 GEO. IMMIGR. L.J. 339, 339 (2002). Accordingly, I cabin my analysis to the civil or criminal nature of removal proceedings and leave the issue of plenary powers to the renowned scholars who have spoken volumes on the issue.
202. The Supreme Court also relied to a lesser degree on English history, which it claimed demonstrated the existence of the power to expel. See Fong Yue Ting, 149 U.S. at 709-10. I do not, however, contest that both England and the United States possessed the power to expel noncitizens. Again, the issue is whether that power was criminal or civil in nature. None of the English history cited by the Supreme Court indicates that expulsion was exercised as a civil power.
203. See id. at 709;
204. see also W.F. Craies, The Right of Aliens to Enter British Territory, 6 L. Q. REV. 27, 34 (1890). To the contrary, a review of English history demonstrates that the power to expel was exercised as a criminal punishment.
205. See Craies, supra, at 34;
206. see also discussion infra Part III.B.1.
207. 149 us. at 707 (internal quotation marks omitted) (quoting Chae Chan Ping v. United States, 130 U.S. 581, 607 (1889)).
208. EMER DE VATTEL, 1 THE LAW OF NATIONS (1853);
209. see Fong Yue Ting, 149 U.S. at 707-08.
210. SIR ROBERT PHILLIMORE, COMMENTARIES UPON INTERNATIONAL LAW (3d. ed., Butterworths 1879);
211. see Fong Yue Ting, 149 U.S. at 708.
212. ORTOLAN, DIPLOMATIE DE LA MER, (4th ed.);
213. see Fong Yue Ting, 149 U.S. at 70.
214. L. BAR, INTERNATIONAL LAW: PRIVATE AND CRIMINAL (G.R. Gillespie trans., Edinburgh, Lorimer and Gillies 1883));
215. see Fong Yue Ting, 149 U.S. at 708-09.
216. 1 VATTEL, supra note 121, §§ 230-31;
217. ORTOLAN, supra note 123, at 297;
218. see Fong Yue Ting, 149 U.S. at 707-08.
219. BAR, supra note 124, at 708 n.2, 711;
220. PHILLIMORE, supra note 122, at 347;
221. see Fong Yue Ting, 149 U.S. at 708-09.
222. See, e.g., 1 VATTEL, supra note 121, § 100 ("[T]he lord of the territory may forbid [foreigners] entrance into it, whenever he thinks proper, forbid its being entered [by foreigners].").
223. See WILLIAM EVAN DAVIES. THE ENGLISH LAW RELATED TO ALIENS 110-12 (1931) (discussing international law scholars' disputes about power to expel);
224. see also Cleveland, supra note 46, at 83-87 (same);
225. see also EDWARD S. CREASY, FIRST PLATFORM OF INTERNATIONAL LAW 201, at 196 (London, Taylor and Francis 1876) (same).
226. Compare PHILLIMORE, supra note 122, at ch. XXI, § 363 (espousing an absolutist view of the power to expel),
227. and ORTOLAN, supra note 123 at 297 (same),
228. with 1 VATTEL, supra note 121, §§ 213, 228 (explaining the limits on the power of a state to expel some noncitizens),
229. and THEODORE D. WOOLSEY, INTRODUCTION TO THE STUDY OF INTERNATIONAL LAW § 62, at 98-99 (3d ed. 1872).
230. ORTOLAN, supra note 123 at 297;
231. PHILLIMORE, supra note 122, at ch. XXI, § 363:
232. Cleveland, supra note 46, at 87;
233. see also NEUMAN, supra note 21, at 13 (discussing Vattel on exclusion).
234. 1 VATTEL, supra note 121, §§ 213, 228. As Professor Neuman has explained, "Emer de Vattel's Law of Nations, requires particular notice because of its great prestige in post-Revolutionary America, also reflected in these debates."
235. NEUMAN, supra note 21, at 9, 12.
236. WOOLSEY, supra note 127, at § 59, at 93.
237. See generally Cleveland, supra note 46, at 85.
238. 1 VATTEL, supra note 121, § 99.
239. Id. at bk. I, ch. XIX, § 213;
240. see also PHILLIMORE, supra note 122, at ch. XVIII, § 321 (characterizing domiciled noncitizens as "defacto though not de jure citizens of the country of their domicile").
241. See, e.g., 1 VATTEL, supra note 121, §§ 213, 228 (distinguishing the banishment of permanent residents from aliens who "had had no settlement" in the nation);
242. WOOLSEY, supra note 127, § 62, at 98-99;
243. see also CREASY, supra note 127, at 201;
244. Cleveland, supra note 46, at 86. James Madison concurred with this theory of a limited power to expel. "Even if the admission of friendly aliens was a matter of discretion under international law. . . once admitted to the country, the grant could not be rescinded. . . . [T]he original bestowal may have been discretionary, but could not be revoked without good reason."
245. Cleveland, supra note 46, at 94-95 (explaining Madison's position).
246. A closer look at one of these passages provides a clear example of the Court's misapprehension of the position of the international law theorists. The Court claimed that Vattel's pronouncement that "[e]very nation has the right to refuse to admit a foreigner into the country, . . . [t]hus, also, it has a right to send them elsewhere," supported the absolute right. Fong Yue Ting v. United States, 149 U.S. 698, 707-08 (1893)
247. (quoting 1 VATTEL, supra note 120, §§ 230, 231) (emphasis added). What the Court failed to consider was to whom "them" referred. Read in context, "them" clearly did not refer to permanent residents. First, Vattel clearly distinguished between "foreigners" and "permanent residents."
248. Compare 1 VATTEL, supra note 121, § 99,
249. with id. §§ 213, 228. Moreover, the sections from which the quote is drawn are entitled "Nature of this right,"
250. id. § 230 (emphasis added) and "Duty of nations towards them,"
251. id. § 231 (emphasis added). In order to understand what "this right" was and to whom "them" referred we must look back one section before the quoted text. Section 229 is entitled "The exile and [the] banished man have a right to live somewhere."
252. Id. § 229. Thus, "this right" referred to the right of displaced persons not to be rendered stateless and the corollary right of states to limit the entrance of displaced persons. "Them" referred to displaced persons attempting to make an initial entry into a nation, not permanent residents previously granted admission to the national community.
253. See also Fong Yue Ting v. United States 149 U.S. 698, 756 (1893) (Field, J., dissenting) (explaining that the passage of Vattel quoted by the court also pertained only to exclusion).
254. ROBERT PHILLIMORE, THE LAW OF DOMICIL 25 (1847).
255. 1 VATTEL, supra note 121, § 228.
256. Fong Yue Ting, 149 U.S. at 711.
257. Cleveland, supra note 46, at 253;
258. see also NEUMAN, supra note 21, at 121.
259. Fong Yue Ting, 149 U.S. at 708
260. (quoting ORTOLAN, supra note 123, at 297).
261. 79 U.S. 457 (1870).
262. See id. at 491-92.
263. LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 19-20 (1996) (explaining that the notion that "the new United States government was to have major powers outside the Constitution is not intimated in the Constitution itself, in the records of the Convention, in the Federalist Papers, or in contemporary debates.");
264. HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR 94 (1990) (summarizing the "withering criticism" of the inherent powers theory);
265. NEUMAN, supra note 21, at 121 ("Thus, the external sovereignty argument for unlimited power over immigration was flawed to begin with and carries even less persuasive force today.");
266. PETER H. SCHUCK, CITIZENS, STRANGERS, AND IN-BETWEENS 21 (1998) (noting of the pervasive critique of the extra-constitutional theory of immigration law that "[m]any have commented upon its persistence and almost all have vigorously condemned it");
267. Cleveland, supra note 46, at 253 ("But the Court's doctrinal justifications for the holdings ultimately are unsatisfying as an explanation for the resort to inherent powers. . . . International law simply had nothing to say about the extent to which domestic law might constrain governmental power.");
268. see also ALEINIKOFF, supra note 21, at 152;
269. Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 HARV. L. REV. 853, 862 (1987);
270. Legomsky, supra note 118;
271. Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 COLUM. L. REV. 1625, 1631 (1992);
272. Motomura, supra note 36.
273. See, e.g., NEUMAN, supra note 21, at 121;
274. Cleveland, supra note 43, at 268.
275. E.g., U.S. CONST, amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.");
276. see also Cleveland, supra note 46, at 274-75.
277. See, e.g., ALEINIKOFF, supra note 21, at 159-65.
278. See NEUMAN, supra note 21, at 121, 123.
279. See Cleveland, supra note 46, at 256.
280. See, e.g., ALEINIKOFF, supra note 21, at 147-48, 167-74;
281. Linda S. Bosniak, Membership, Equality, and the Difference That Alienage Makes, 69 N.Y.U. L. REV. 1047, 1058 (1994).
282. Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889).
283. ALEINIKOFF, supra note 21, at 156;
284. NEUMAN, supra note 21, at 131-34;
285. Bennett, supra note 20, at 1095 (analogizing LPRs to denizens).
286. 299 U.S. 304 (1936).
287. Id at 312.
288. Id. at 314.
289. Id. at 318-20.
290. Id. at 315.
291. Id. at 315-16.
292. Curtiss-Wright, 299 U.S. at 316 (emphasis in original) (citation omitted).
293. But see Charles A. Lofgren, United States v. Curtiss-Wright Export Corporation: An Historical Reassessment, 83 YALE L.J. 1, 17 (1973) (critiquing Court's historical account in Curtiss-Wright).
294. Curtiss-Wright, 299 U.S. at 316-18 (1936);
295. see also Harisiades v. Shaughnessy, 342 U.S. 580, 587-88 (1952) (characterizing the power to expel as "a weapon of defense and reprisal confirmed by international law as a power inherent in every sovereign state.").
296. But cf. Curtiss-Wright, 299 U.S. at 320 (Justice Sutherland's caveat that external powers, "like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution"). Justice Sutherland's claim has been challenged as historically inaccurate.
297. See Lofgren, supra note 158, at 18.
298. Curtiss-Wright, 299 U.S. at 318.
299. But cf. Velasquez v. Frapwell, 160 F.3d 389, 393 (7th Cir. 1998) (questioning Justice Sutherland's rationale in Curtiss-Wright as "quite possibly incorrectf ]"), vacated in part on other grounds, 165 F.3d 593 (7th Cir. 1999).
300. See Toll v. Moreno, 458 U.S. 1, 10 (1982); Reid v. Covert, 354 U.S. 1, 5-6 (1957) (plurality opinion);
301. id. at 66 (Harlan, J., concurring).
302. 354 U.S. 1 (1957).
303. Id. at 5-6 (plurality opinion) (emphasis added) (citation omitted).
304. Id. at 66 (Harlan, J., concurring).
305. See also United States v. Verdugo-Urquidez, 494 U.S. 259, 277 (1990) (Kennedy, J., concurring) ("I take it to be correct, as the plurality opinion in Reid v. Covert sets forth, that the Government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic") (citation omitted). As Professor Neuman has explained:
306. Since Reid v. Covert, it has generally been recognized that the Constitution as such "applies" wherever the government of the United States may act, and provides the source of the federal government's authority to act there - the disputable question is whether a particular constitutional limitation on the government's authority to act should be regarded as including within its prohibitions unusual categories of places or persons.
307. NEUMAN, supra note 21, at 5.
308. Afroyim v. Rusk, 387 U.S. 253, 268 (1967) (overruling Perez v. Brownell, 356 U.S. 44 (1958)).
309. Id.
310. Id. at 257.
311. A Westlaw Keycitc search of Supreme Court cases citing Curtiss-Wright for these two holdings results in only two cases: (1) Perez-the case overruled by Afroyim; and (2) Perpich v. Department of Defense. 496 U.S. 334 (1990). Upon reading Perpich, however, it becomes clear that the Supreme Court was nol affirmatively agreeing with either of these two holdings from Curtiss-Wright. Perpich involved a challenge by the Governor of Minnesota to the peacetime deployment of state National Guard troops abroad under the Militia Clauses of the Constitution.
312. Id. at 336-38. The Court's citation in Perpich was in footnote dicta, in support of its musing that. "[w]ere it not for the Militia Clauses, it might be possible to argue on like grounds that the constitutional allocation of powers precluded the formation of organized state militia."
313. Id. at 353-54.
314. United States v. Curtiss-Wright Export Corp., 299 U.S. 304. 315-16 (1936).
315. Id. at 318.
316. See, e.g.. Pasquantino v. United States, 544 U.S. 349, 369 (2005) ("In our system of government, the Executive is 'the sole organ of the federal government in the field of international relations'. . . ." (quoting Curtiss-Wright, 299 U.S. at 320)); Haig v. Agee, 453 U.S. 280. 291 (1981)
317. (quoting Curtiss-Wright, 299 U.S. at 319); Zemel v. Rusk, 381 U.S. 1, 17 (1965) ("Congress - in giving the Executive authority over matters of foreign affairs-must of necessity paint with a brush broader than that it customarily wields in domestic areas.") (citation omitted).
318. See United States v. Verdugo-Urquidez, 494 U.S. 259, 277 (1990) (Kennedy, J., concurring) ("[T]he Government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic."); see also Reid v. Covert, 354 U.S. 1, 5-6 (1957);
319. NEUMAN, supra note 21, at 5, 123. In the immigration realm we sometimes still see references to the powers inherent in sovereignty, but they are almost always accompanied by references to the constitutional sources of immigration powers.
320. See, e.g., Toll v. Moreno, 458 U.S. 1, 10 (1982) (locating the immigration power in, inter alia, the naturalization clause and the foreign commerce clause as well as the "broad authority over foreign relations"). But cf. Fiallo v. Bell, 430 U.S. 787, 792 (1977) ("Our cases '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.'") (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953)).
321. Moreover, even if we were to view Curtiss-Wright's holding that external powers are extra-constitutional as good law, there is reason to question the designation of expulsion as an external power. Unlike the issue in Curtiss-Wright, expulsion of a long-term permanent resident can hardly be characterized as "entirely external." Curtiss-Wright, 299 U.S. at 315. In rare, isolated cases, an individual's expulsion can have profound international implications.
322. See, e.g., Abby Goodnough & Marc Lacey, Legal Victory by Militant Cuban Exile in U.S. Brings Both Glee and Rage, N.Y. TIMES, May 10, 2007, at A20 (detailing the plight of a Cuban national facing deportation who was wanted by both Cuban and Venezuelan governments for alleged involvement in a terrorist bombing). However, the vast majority of expulsion cases have more significant domestic effects. When permanent residents are deported, they are separated from their homes and property in the United States; their families-often United States citizens-are eimer abandoned in the United States or uprooted; their employers are left looking for replacements, and the government, both local and federal, is deprived of the tax revenue they generate. The collective effects of expulsion on our internal domestic affairs are profound and one can make a good case that expulsion is more properly characterized as an internal power.
323. Cf. Gerald Rosberg, The Protection of Aliens from Discriminatory Treatment by the National Government, 1977 SUP. CT. REV. 275, 325 ("It is in the area of admission and exclusion of aliens that the government's need for flexibility is greatest.").
324. Rejecting the inherent powers theory as the source of the exclusion and expulsion powers necessarily raises the question: From what constitutional source then are these powers derived? This inquiry is beyond the scope of this article and has been the subject of much scholarly work. See, e.g., Christopher G. Blood, The 'True' Source of the Immigration Power and its Proper Consideration in the Elian Gonzalez Matter, 18 B.U. INT'L L.J. 215 (2000). Consistent with the bifurcated approach I propose, I believe that attempting to locate a singular source of constitutional power to justify both exclusion and expulsion is futile. The decision to admit or exclude someone is closely related to the naturalization power, U.S. CONST. art. 1, § 8 cl. 4 - the power to include someone in our national community-and the war power, U.S. CONST, art. 1, § 8 cl. 11 - the power to defend against outside invasion. But these powers do not fit the expulsion context as well. The confusion regarding the source of the government's power to expel, I propose, arises because of a United States constitutional peculiarity - the lack of a federal police power. Historically, expulsion has been an exercise of police powers.
325. See discussion infra Part III.B. The absence of that freestanding power in the federal government and the obvious problems with locating expulsion power within the states' police powers has created significant confusion. There are several possible resolutions to this riddle. Ultimately, though, the riddle is not unique to the expulsion context, but rather is the issue about which volumes have been written: what constitutional power supplies the authority to create and enforce federal crimes?
326. While I do not consider myself an originalist, I do think that the Framers' original understanding of the Constitution is one important factor to consider. Insofar as I am claiming that the Framers understood broader application of constitutional protections than our system currently recognizes, their understanding is critical.
327. See DAVIES, supra note 128, at 110.
328. Id. at 112.
329. BLACKSTONE, supra note 20, at *259.
330. Id. But see Craies, supra note 119, at 36-37 ("It may be [ ] true that in international law independent states are entitled . . . to exclude or expel alien friends . . . subject to [ ] treaties .... But this determines nothing as to the existence of any constitutional power in a perfectly independent state to exclude or expel strangers.").
331. BLACKSTONE, supra note 20, at *374.
332. Id.
333. Id. at 373.
334. See 7 THE WORKS OF FRANCIS BACON 648-49 (James Spedding et al. eds., Garrett Press 1968) (1868).
335. See Fong Yue Ting v. United States, 149 U.S. 698, 736-38 (1893) (Brewer, J., dissenting).
336. See, e.g., BLACKSTONE, supra note 20, at *259-60 ("[Foreigners] are under the king's protection; though liable to be sent home whenever the king sees occasion."). Though Blackstone's words have been interpreted to mean he saw the Crown as empowered to expel noncitizens, I do not believe Blackstone intended these words to apply to denizens, or their modern corollary - permanent residents - since he conceived of denizens as being "in a kind of middle state, between an alien and a natural-born subject, and partakes of both of them."
337. Id. at 373.
338. See, e.g., Alien Law of England, 42 EDINBURGH REV. 99, 99 (1825) (arguing that "expulsion" is a "punishment on conviction in a court of justice, for certain offenses, where as a natural born subject might be left to work out his penalty at home" and that the "punishment" must be subject to the "several odious necessities of criminal law");
339. Craies, supra note 119, at 34-35 ("England was a complete asylum to foreigners who did not offend against English law."). Notably, the text of the Magna Carta itself provides some support for this view insofar as it guarantees that "No Freeman shall be . . . exiled . . . but by lawful Judgment of his Peers, or by Law of the Land." Magna Carta, Article 39 (1215).
340. See, e.g., Alien Law of England, supra note 188, at 99;
341. Craies, supra note 119, at 35;
342. see also Fong Yue Ting, 149 U.S. 698, 709 (1892) (recognizing the debate over whether the Crown or Parliament had the power to expel).
343. In Fong Yue Ting, the Supreme Court relied, in part, on English assertions of the power to expel. 149 U.S. at 709-10. The English history cited by the Court is not relevant to our analysis here because (1) all of the history cited post-dated the drafting of the Constitution and, therefore, does not reflect the intent of the Framers; and (2) the history was cited merely in support of the Court's assertion that the federal government possessed the power to expel and not in regard to its conclusion that the nature of the power was civil.
344. Craies, supra note 119, at 33-34 (explaining that the examples from sixteenth century England of the exclusion or expulsion of aliens are virtually non-existent). The expulsion of Jews from England in 1290 is not properly understood as an early example of the expulsion of noncitizens because most of the people expelled were native born and their expulsion was justified not by their immigration status but rather because they were considered serfs rather than freemen.
345. Id. at 30. The rights of Jews in England did "not depend on common law, but upon the will of their lord the king," as Jews were considered chattels of the king.
346. Id. at 31.
347. William Garth Snider, Banishment: The History of Its Use and a Proposal for Its Abolition Under the First Amendment, 24 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 455, 459-61 (1998) (citing examples of banishment as a criminal punishment in various societies dating back to 2285 B.C.).
348. W.F. Craies, The Compulsion of Subjects to Leave the Realm, 6 L. Q. REV. 390, 393-96 (1890); .
349. see also Snider, supra note 192, at 461 (explaining the widespread use of abjuration in England between the thirteenth and sixteenth centuries).
350. Craies, supra note 119, at 34.
351. Id.
352. Id.
353. Id.
354. As subjects, denizens were already bound to obey the laws of England. BLACKSTONE, supra note 20, at *374.
355. Insofar as the commission's work is an example of the civil power to expel noncitizens who have not been admitted to the national community, this comports with my assertion that expulsion from the national community is criminal whereas physical removal of noncitizens who have not been admitted to the national community is properly understood to be a civil decision not to admit a noncitizen to the national community. Other commentators have also expressed the opinion that the Crown may possess a power to expel only those noncitizens who have not been invited into the national community as denizens. Alien Law of England, supra note 188, at 132 (quoting an opinion of Sir Ed Nothey that the Queen may compel "aliens, not made denizens, or naturalized . . . to depart").
356. Bleichmar, supra note 37, at 121.
357. For an excellent review of the historical phenomenon of criminal transportation, see Bleichmar, supra note 37, at 120-30.
358. Craies, supra note 193, at 396.
359. Bleichmar, supra note 37, at 123-24.
360. In Fong Yue Ting v. United States, the Supreme Court implicitly acknowledged that transportation was a punishment imposed on both citizens and noncitizens.
361. See 149 U.S. 698, 709 (1893);
362. see also Kanstroom, supra note 37, at 1901.
363. Transportation Act of 1718, 4 Geo. I, c. 11;
364. see also Bleichmar, supra note 36, at 124.
365. Bleichmar, supra note 37, at 125-26.
366. Some scholars estimate that as many as seventy percent of felons were sentenced to transportation during the height of its use in the eighteenth century. Id. at 126.
367. Id. at 121.
368. Id. at 129.
369. Id. at 127.
370. Id. at 128-29. A "vigorous protest went up from the colonists" in response to the transportation system. EMBERSON EDWARD PROPER, COLONIAL IMMIGRATION LAWS: A STUDY OF THE REGULATION OF IMMIGRATION BY THE ENGLISH COLONIES IN AMERICA 20 (W.S. Hein 2003) (1900). Benjamin Franklin famously suggested that the colonists send King George HI rattlesnakes in return for the transported criminals.
371. Id. The colonists attempted to enact laws barring transportation but all were overridden by the English authorities.
372. Id.;
373. see also MALDWYN ALLEN JONES, AMERICAN IMMIGRATION 43, 61, 65 (1960).
374. Bleichmar, supra note 37, at 128.
375. See Fong Yue Ting v. United States, 149 U.S. 698, 756 (1893) (Field, J., dissenting) (noting that "deportation from the realm has not been exercised in England since Magna Charta, except in punishment for crime, or as a measure in view of existing or anticipated hostilities");
376. Craies, supra note 119, at 34-35;
377. see also PROPER, supra note 210, at 19 (referring to transportation as a "system of deportation of criminals").
378. EDWARD P. HUTCHINSON, LEGISLATIVE HISTORY OF AMERICAN IMMIGRATION POLICY 389 (1981);
379. PROPER, supra note 210, at 13-16.
380. HUTCHINSON, supra note 212, at 389;
381. PROPER, supra note 210, at 13-16.
382. PROPER, supra note 210, at 17.
383. Id. at 17-72.
384. Id.;
385. HUTCHINSON, supra note 213, at 388-96;
386. JONES, supra note 210, at 43;
387. NEUMAN, supra note 21, at 21-22.
388. PROPER, supra note 210, at 89.
389. Id. at 16.
390. Id. at 20, 61;
391. see also supra notes 198, 208 and accompanying text.
392. See JONES, supra note 210, at 43;
393. NEUMAN, supra note 21, at 22;
394. PROPER, supra note 210, at 25, 26;
395. Kanstroom, supra note 37, at 1908 ("Colonial and state laws, which often focused on the exclusion of convicted criminals, seem never to have focused on the deportation of noncitizens for post-entry criminal conduct.").
396. See NEUMAN, supra note 21, at 22-23 ("To the best of my knowledge, no state statutes singled out aliens for expulsion from the state or the United States as punishment for serious crime, but aliens were subject to these generally applicable sanctions.");
397. PROPER, supra note 210, at 25-26, 33, 37.
398. See Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833 (1993) (reviewing the state immigration laws during this period);
399. see also HUTCHINSON, supra note 213, at 396-404.
400. See Neuman, supra note 223, at 1841, 1844.
401. For an excellent and detailed history of the Alien Act, see Cleveland, supra note 3, at 87-98.
402. In 1832, then-Vice President John C. Calhoun "asserted that the unconstitutionality of the Alien and Sedition laws was 'settled.' " Cleveland, supra note 46, at 98
403. (quoting Letter of Aug. 28, 1832 from Vice President Calhoun to Governor Hamilton). But cf. id. at 98 n.664 (noting some disagreement with Calhoun). Some opponents of the Act specifically argued that, at the time of its passage, the expulsion of alien friends must proceed through the same criminal process applicable to citizens.
404. See 8 Annals of Cong. 2005, 2012 (1798) Edward Livingston stated: It is an acknowledged principle . . . that alien friends, . . . residing among us, are entitled to the protection of our laws, and that during their residence, they owe a temporary allegiance to our Government. If they are accused of violating this allegiance, the same laws which interpose in the case of a citizen must determine the truth of the accusation, and if found guilty they are liable to the same punishment.
405. Id.;
406. see also Cleveland, supra note 46, at 97 n.662.
407. James Madison argued:
408. Alien friends, except in the single case of public ministers, are under the municipal law, and must be tried and punished according to that law only. . . . This argument also, by referring the alien-act to the power of Congress to define and punish offences against the law of nations, yields the point that the act is of a penal, not merely of a preventive operation. . . . And if it be a penal act, the punishment it inflicts, must be justified by some offence that deserves it. . . . [A]nd the punishment must be conducted according to the municipal law, not according to the law of nations.
409. James Madison, Report of 1799 to the Virginia House of Delegates, http://www.constitution. org/rf/vr_ 1799.htm (last visited Mar. 13, 2008). Thomas Jefferson argued: 'An Act concerning aliens' is contrary to the Constitution, one amendment to which has provided that 'no person shalt be deprived of liberty without due progress of law'; and that another having provided that 'in all criminal prosecutions the accused shall enjoy the right to public trial by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense;' the same act, undertaking to authorize the President to remove a person out of the United States, who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without heating [sic] witnesses in his favor, without defense, without counsel, is contrary to the provision also of the Constitution, is therefore not law, but utterly void, and of no force.
410. Thomas Jefferson, The Kentucky Resolutions of 1798, http://www.constitution.org/cons/kent 1798.htm (last visited Mar. 13, 2008).
411. Cleveland, supra note 46, at 93
412. (quoting Report of the select committee of the House of Representatives, made to the House of Representatives on Feb. 21, 1799, 9 Annals of Cong. 2986, 2987 (1799)) (citations omitted).
413. Conditional pardons were granted to people facing criminal prosecution who agreed to be expelled from the nation. See Bleichmar, supra note 37, at 125.
414. Abjuration of the realm was the precursor of banishment in medieval England. See WILLIAM HOLDSWORTH, 3 A HISTORY OF ENGLISH LAW 303 (1923). After committing a crime, the person could flee for refuge or sanctuary to the church; if she confessed to the crime and pledged to leave the kingdom and not return without the permission of the Crown, she would receive safe passage to a port from which they could depart from the kingdom.
415. See Bleichmar, supra note 37, at 120-21;
416. Wayne A. Logan, Criminal Law Sanctuaries, 38 HARV. C.R.-C.L. L. REV. 321, 327-28 (2003).
417. See BLACKSTONE, supra note 20, at *1489.
418. Proceedings to enforce civil environmental regulations and tax regulations are but two examples.
419. 372 U.S. 144 (1963).
420. 448 U.S. 242 (1980).
421. For a brief period between 1989 and 1997, the Supreme Court employed an alternative test to determine the civil or criminal nature of proceedings in certain circumstances. See Austin v. United States, 509 U.S. 602, 621-22 (1993) (applying alternative test in analyzing claim under the Excessive Fines Clause of the Eighth Amendment); United States v. Halper, 490 U.S. 435, 449 (1989) (applying alternative test in analyzing double jeopardy claim). Under the alternative test, the inquiry centered on whether the sanction was punitive, not whether it was criminal. Halper, 490 U.S. at 448.
422. Thus, the relevant constitutional protections would apply to any sanction that could not "fairly be said solely to serve a remedial purpose, but rather [could] only be explained as also serving either retributive or deterrent purposes." Id. This alternative test was abandoned in 1997 when the Supreme Court explicitly overruled Halper.
423. See Hudson v. United States, 522 U.S. 93, 101-02 (1997).
424. Ward, 448 U.S. at 248.
425. Id. at 248-49.
426. Mendoza-Martinez, 372 U.S. at 168-69 (footnotes omitted).
427. Seling v. Young, 531 U.S. 250, 262 (2001).
428. Id. at 263.
429. See, e.g., Gregory Y. Porter, Uncivil Punishment: The Supreme Court's Ongoing Struggle with Constitutional Limits on Punitive Civil Sanctions, 70S. CAL. L. REV. 517, 523 (1997);
430. Carol S. Steiker, Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide, 85 GEO. L.J. 775, 781-82 (1997);
431. see also Smith v. Doe, 538 U.S. 84, 113 (2003) (Stevens, J., dissenting) ("No matter how often the Court may repeat and manipulate multifactor tests that have been applied in wholly dissimilar cases involving only one or two of these three aspects of these statutory sanctions, it will never persuade me . . . .").
432. While courts have yet to apply the modern test to the immigration context, scholars have engaged in such analysis. See, e.g., Bleichmar, supra note 37, at 148-60;
433. Pinzon, supra note 37. Thus, the value of applying the current civil-criminal divide jurisprudence to the immigration context has been recognized by others and is not novel. The analysis in this section owes a debt to these scholars. The bifurcated approach to this analysis is what I seek to contribute to the existing literature.
434. While the congressional record contains significant evidence that Congress was motivated, at least in part, by a punitive purpose such as retribution, see infra note 285 and accompanying text, that inquiry is irrelevant to the first step of the analysis. The first question in the Mendoza-Martinez/Ward test is whether Congress intended to create a criminal scheme with all the rights attaching thereto. The plain language of the INA makes clear that Congress did not intend to create a criminal scheme.
435. See, e.g.. INA § 240(b)(4)(A), 8 U.S.C. § 1229a(b)(4)(A) (Supp. 1998) (prohibiting the appointment of counsel at government expense); INA § 240(c)(2), 8 U.S.C. § 1229a(c)(2) (Supp. 1998) (placing the burden of proof on the noncitizen to prove admissibility); INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A) (Supp. 1998) (establishing the burden of proof on a charge of deportability to be "by clear and convincing evidence," not beyond a reasonable doubt).
436. See generally United States v. Ursery, 518 U.S. 267, 288-89 (1996) (same); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 363-64 (1984) (relying on the procedural mechanisms Congress established as evidence of intent to apply the civil label).
437. See, e.g., INA § 274, 8 U.S.C. § 1324 (2000) (criminal penalties for transporting and harboring unauthorized entrants); INA § 274A(f), 8 U.S.C. § 1324a(f) (2000) (criminal penalties for engaging in a pattern or practice of hiring unauthorized workers); INA § 274C(e), 8 U.S.C. § 1324c(e) (2000) (criminal penalties for failure to disclose role in preparing fraudulent applications).
438. See generally INA § 212, 8 U.S.C. § 1182; INA § 237, 8 U.S.C. § 1227 (2000).
439. While every word included in a statute is presumed to have been included for a purpose, "it is also the case that every word excluded from a statute must be presumed to have been excluded for a purpose." NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 46:6 (6th ed. 2000);
440. see, e.g., Monell v. Dep't of Soc. Servs., 436 U.S. 658, 665 (1978).
441. United States v. Ward, 448 U.S. 242, 248-49 (1980).
442. "Approximately 700,000 aliens apply for visas abroad each year." Guido S. Weber, Unresolved Issues on Controlling the Tuberculosis Epidemic Among the Foreign-Born in the United States, 22 AM. J.L. & MED. 503, 515 n.114 (1996)
443. (citing National Action Plan to Combat Multidrug-Resistant Tuberculosis, 41 MORBIDITY & MORTALITY WKLY. REP. NO. RR11, at 18 (1992)).
444. That is double the amount of people placed in removal proceedings in 2006, which includes people subject to both exclusion and expulsion. See U.S. DEP'T OF JUSTICE, EXECUTIVE OFFICE OF IMMIGRATION REVIEW, 2006 STATISTICAL YEARBOOK B2 (2006);
445. see also supra notes 14-16 and accompanying text.
446. C.f. State v. C.M., 746 So. 2d 410, 415-20 (Ala. Crim. App. 1999) (recognizing displacement from one's home as an affirmative disability).
447. INA § 236, 8 U.S.C. § 1226 (2000).
448. See Smith v. Doe, 538 U.S. 84, 100 (2003) (commenting that "the punishment of imprisonment... is the paradigmatic affirmative disability or restraint"); Kansas v. Hendricks, 521 U.S. 346, 363 (1997) (recognizing that civil commitment of persons with mental disorders was an affirmative restraint but holding that such commitment was civil because this factor was outweighed by others).
449. See infra note 285 and accompanying text.
450. See, e.g., Hudson v. United States, 522 U.S. 93, 104 (1997) (relying in part on the fact that disbarment is not an affirmative disability to hold that such sanction is civil); Flemming v. Nestor, 363 U.S. 603, 617 (1960) (holding that a statute disentitling persons who are deported from receiving social security benefits is not punitive because it is not an "affirmative disability or restraint").
451. See Smith, 538 U.S. at 97-99;
452. Hudson, 522 U.S. at 104; United States v. Ursery, 518 U.S. 267, 291 (1996); Austin v. United States, 509 U.S. 602 (1993).
453. See discussion supra Part III.B.1.
454. See discussion supra Part III.B.
455. See, e.g., Does v. City of Indianapolis, No. 06-865, 2006 WL 2927598, *8-9 (S.D. Ind. Oct. 5, 2006) (holding that an ordinance restricting child sex offenders from traveling within 1000 feet of public playgrounds, recreation centers, swimming and wading pools, sports fields, and facilities violates the Ex Post Facto Clause); Johnson v. City of Cincinnati, 119 F. Supp. 2d 735, 747-49 (S.D. Ohio 2000) (holding that an ordinance banning convicted drug users from traveling through "drug exclusion zones" violates Double Jeopardy Clause), aff'd on other grounds, 310 F.3d 484 (6th Cir. 2002) (not reaching the criminal vs. civil issue); cf. Smith, 538 U.S. 84, 98 (recognizing expulsion from community as traditional punishment).
456. See discussion supra Part III.B.1, 2, notes 182-187, 217-221 and accompanying text.
457. INA § 237(a) sets forth the classes of "deportability" which are applicable to any noncitizen "in and admitted to the United States." 8 U.S.C. § 1227(a) (2000). This includes all permanent residents in the United States and various other noncitizens admitted in nonimmigrant statuses, including visitors, students, etc. Noncitizens attempting to enter the United States or who entered the country illegally are subject to the grounds of inadmissibility set forth in INA § 212(a), 8 U.S.C. § 1182(a) (2000).
458. A 2006 Congressional Research Service report detailed the percentage breakdown of the various reasons for removals. Immigration Enforcement Within the United States, CRS Report (Apr. 6, 2006), available at http://www.fas.org/sgp/crs/misc/RL33351.pdf. Excluding the reasons that would be inapplicable to the expulsion of a permanent resident ("Not In Status", "Attempted Entry", and "Previously Removed"), 92.5% of removals were based on criminal charges in fiscal year 2004 - the most recent year reported.
459. Id. at CRS-17. That percentage is likely to be skewed toward minimizing the number of expulsions based on criminal charges since the remaining 7.5% includes both permanent residents and non-permanent residents who are significantly more likely to be charged with the miscellaneous less common grounds of removal, such as document fraud, see INA § 237(a)(3), 8 U.S.C. § 1227(a)(3) (2006).
460. See INA § 237(a)(1)(E), 8 U.S.C. § 1227(a)(1)(E) (2000) (deportability ground); 8 U.S.C. § 1324(a)(1)(A) (2000) (criminal charge).
461. See INA § 237(a)(1)(G), 8 U.S.C. § 1227(a)(1)(G) (deportability ground); 8 U.S.C. § 1325(c) (2000) (criminal charge).
462. See INA § 237(a)(3)(C), 8 U.S.C. § 1227(a)(3)(C) (deportability ground); 18 U.S.C. § 371 (criminal charge).
463. See INA § 237(a)(4)(A), (B), 8 U.S.C. § 1227(a)(4)(A), (B) (deportability grounds); 18 U.S.C. §§ 2331 - 2339D (2000) (criminal charges).
464. See INA § 237(a)(2)(B)(ii), 8 U.S.C. § 1227(a)(2)(B)(ii) (deportability ground); 21 U.S.C. § 844 (2000) (criminal charge).
465. See INA § 237(a)(3)(D), 8 U.S.C. § 1227(a)(3)(D) (deportability ground); 18 U.S.C. § 911 (2000) (criminal charge).
466. See INA § 237(a)(3)(A), 8 U.S.C. § 1227(a)(3)(A) (deportability charge); INA § 266(b) (criminal charge).
467. See INA § 237(a)(2)(E)(ii), 8 U.S.C § 1227(a)(2)(E)(ii) (2000) (deportability ground): see. e.g.. N.Y. PENAL LAW § 215.50(3) (criminal charge).
468. See INA § 237(a)(6). 8 U.S.C. § 1227(a)(6) (deportability ground); 18 U.S.C. § 611 (2000) (criminal charge).
469. A few other deportability charges have no criminal corollary, but none of these are applicable to permanent residents and thus they are not relevant to the expulsion analysis as I have defined it. See INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B) (unlawful presence); INA § 237(a)(1)(C), 8 U.S.C. § 1227(a)(1)(C) (violation of nonimmigrant status); INA S 237(a)(1)(D), 8 U.S.C. § 1227(a)(1)(D) (termination of conditional residence).
470. See INA § 237(a)(5), 8 U.S.C. § 1227(a)(5).
471. See INA § 237(a)(4)(C), 8 U.S.C. § 1227(a)(4)(C).
472. See INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A).
473. A Westlaw search of the Board of Immigration Appeals database and the database containing all federal cases revealed not a single case in which the government charged a noncitizen under the foreign policy deportation ground, INA § 237(a)(4)(C), 8 U.S.C. § 1227(a)(4)(C) (2006), and only one case where a noncitizen was charged under the public charge deportation ground. INA § 237(a)(5), 8 U.S.C. § 1227(a)(5) (2006). Moreover, data obtained by the author from the Executive Office of Immigration Review through the Freedom of Information Act reveals that of the 417,986 cases received by the federal immigration courts over fiscal years 2002-2007, which charged a ground of deportability, only thirty-four cases (or 0.000081%) involved a charge under § 237(a)(5) (becoming a public charge) and only three cases (0.000007%) involved a charge under § 237(a)(4)(C) (foreign policy deportation ground). (FOIA data is on file with the author).
474. See Id.
475. Fiallo v. Bell, 430 U.S. 787, 792 (1977) ("This Court has repeatedly emphasized that 'over no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens." (quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909))); United States v. Shaughnessy, 338 U.S. 537, 544 (1950) (commenting that the decision whether to admit a noncitizen into the United States has been committed by Congress to the discretion of the Attorney General). See generally Gerald L. Neuman, Discretionary Deportation, 20 GEO. IMMIGR. L.J. 611 (2006) (discussing the structure of rules and discretion in immigration policy).
476. See INA § 212(a), 8 U.S.C. § 1182(a) (2000).
477. See, e.g., INA § 212(a)(2), 8 U.S.C. § 1182(a)(2) (enumerating criminal grounds of inadmissibility); INA § 212(a)(3)(B), 8 U.S.C § 1182(a)(3)(B) (terrorism ground of inadmissibility).
478. See, e.g., INA § 212(a)(1), 8 U.S.C. § 1182(a)(1) (health related grounds); INA § 212(a)(4), 8 U.S.C. § 1182(a)(4) (public charge grounds); INA § 212(a)(5), 8 U.S.C. § 1182(a)(5) (labor certification grounds).
479. See INA § 212(a)(4) (public charge ground); INA § 212(a)(1) (health related grounds).
480. See INA § 212, 8 U.S.C. § 1182 (2004); INA § 201(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i)(2000).
481. United States v. Ward, 448 U.S. 242, 250 (1980).
482. Smith v. Doe, 538 U.S. 84, 113 (2003) (Stevens, J., dissenting).
483. See, e.g., Desimone v. State, 116 Nev. 195, 204-05 (2000) (holding that a tax, which "hinges on the commission of a crime and realistically, will normally be exacted only after the taxpayer is apprehended and subject to arrest for the same conduct giving rise to the tax obligation," is a criminal sanction for double jeopardy purposes); Comm'r v. Mullins, 428 Mass. 406, 409-16 (1998) (holding that a controlled substance tax conditioned on the commission of a crime is a criminal punishment for double jeopardy purposes).
484. It is difficult to offer a principled defense of the Court's focus on these two aims of punishment to the exclusion of other traditional aims of punishment such as incapacitation and rehabilitation. Nonetheless, since the utility of applying the modern civil-criminal divide test to the removal context is to promote consistency and coherence within our legal doctrine, I do not here seek to critique the doctrine. Rather, I am merely applying the doctrine as is.
485. Smith, 538 U.S. at 102.
486. H.R. REP. No. 104-383, at 37 (1995) (statement of Rep. Henry J. Hyde, Chairman, House Judiciary Comm.).
487. 141 CONG. REC. S7803-01 (1995) (statement of Sen. Kennedy).
488. 142 CONG. REC. E646 (daily ed. Apr. 25, 1996) (statement of Rep. Mink).
489. 146 CONG. REC. S9381-05, *S9388 (Sept. 27, 2000) (statement of Sen. Graham);
490. see also Ryan, supra note 38, at 1012 (collecting legislative history quotes demonstrating retributive intent);
491. Bleichmar, supra note 37, at 150 n.204 ("Members of Congress viewed a criminally convicted alien as abusing the invitation extended to aliens by the United States to enter and to reside within its territory.").
492. See Bryan Lonegan, Forced to Go Home Again, N.Y. TIMES, Feb. 27, 2005, § 14, at 11.
493. Smith, 538 U.S. at 97 (2003) (emphasis added).
494. See, e.g., id. at 87 (concluding that the "Act has a rational connection to a legitimate nonpunitive purpose, public safety, which is advanced by alerting the public to the risk of sex offenders in their community"); State v. Walls, 558 S.E.2d 524, 526 (S.C. 2002) (concluding that in creating a sex offender registry, the Assembly intended "to create a nonpunitive act," as it "did not intend to punish sex offenders, but instead intended to protect the public from those sex offenders who may reoffend and to aid law enforcement in solving sex crimes").
495. INA § 101(a)(48)(A). 8 U.S.C. § 1101(a)(48)(A) (Supp. II 1996); In re Roldan-Santoyo, 22 I. & N. Dec. 512, 521 (BIA 1999), vacated sub nom, Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).
496. See N.Y. PENAL LAW § 165.15 (2000) (theft of services);
497. see also INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii) (2000) (authorizing deportation for noncitizens convicted of two crimes involving moral turpitude); Ancheta v. Gonzales, 216 Fed.App'x. 667 (9th Cir. 2007) (upholding removal order based on finding that theft of service is a crime involving moral turpitude): Salgado v. Gonzales, 169 Fed.App'x. 373 (5th Cir. 2006) (same); Yesil v. Reno, 973 F. Supp. 372, 376 n.2 (S.D.N.Y. 1997) (noting that theft of service in New York is a crime involving moral turpitude).
498. Bridges v. Wixon, 326 U.S. 135, 147 (1945) (internal quotation marks omitted); Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).
499. Smith v. Doe, 538 U.S. 84, 103-04 (2003).
500. Id.
501. Id. at 104.
502. Id. at 103-04 (internal quotations omitted). Compare Kansas v. Hendricks, 521 U.S. 346, 369 (1997) (requiring individualized assessment of dangerousness for grave sanction of civil commitment), and De Veau v. Braisted, 363 U.S. 144, 160 (1960) (permitting blanket application of relatively minor sanction of prohibition on felons serving as officers or agents of a union), with Hawker v. New York, 170 U.S. 189, 197 (1898) (permitting blanket application of relatively minor sanction of prohibition on felons practicing medicine), and Does v. City of Indianapolis, No. 06-865, 2006 WL 2927598, *8-9 (S.D. Ind. Oct 5, 2006) (striking down sanctions involving restriction on the freedom of movement, significantly less harsh than expulsion, as being excessive because they were broader than necessary to protect the public).
503. But see Smith, 538 U.S. at 116-17 (Ginsburg, J., dissenting) (contesting the characterization of sex offender registration as minor).
504. Smith, 538 U.S. at 104 (citing Kansas v. Hendricks, 521 U.S. 346 (1977)).
505. See INA § 236(c), 8 U.S.C. § 1226(c) (2000);
506. see also Demore v. Kim, 538 U.S. 510, 528 (2003) (holding that mandatory detention provisions of INA do not violate the Due Process Clause, but not considering whether such sanction is criminal or civil). Section 236(c) applies to most criminal grounds of deportability, which, as discussed supra note 260, comprise the vast majority of expulsion cases.
507. In fact, recent studies demonstrate that non-citizens have significantly lower rates of incarceration than the general population. See Kristin Butcher and Anne Morrison Piehl, Crime, Correction and California: What Does Immigration Have to Do With It?, 9 CALIFORNIA COUNTS, Num. 3 (Feb. 2008) (relying upon data from California);
508. cf. Michael Kiefer, Migrant Rate of Crime Even with Numbers, THE ARIZONA REPUBLIC, (Feb. 25, 2008) (reporting that a review of criminal justice statistics in Maricopa County, which includes Phoenix, suggested that undocumented immigrants are charged with criminal activity at the same rate as the general population). When focusing on men ages eighteen to forty, the population that is disproportionately likely to be engaged in criminal activity, U.S. born men have incarceration rates ten times higher than those of foreign-born men.
509. Butcher & Piel, supra note 303, at 2, 10. Moreover, immigrants in this age group with characteristics that are positively correlated with criminal activity, such as the lack of a high school diploma, have lower rates of incarceration than U.S. born men.
510. Id. at 19 (finding that U.S. born men with these characteristics are incarcerated at a rate of 13.4% compared to only 0.5% for similarly situated foreign born men). While these studies do not focus specifically on the issue of recidivism for non-citizens who have violated immigration laws, a related study has recently demonstrated that there is no difference in the rearrest rates for non-citizens with immigration violations as compared with the general non-citizen population.
511. Laura Hickman and Marika J. Suttorp. Are Deportable Aliens A Unique Threat to Public Safety? Comparing the Recidivism of Deportable and Nondeportable Alien, 7 CRIMINOLOGY AND PUBLIC POLICY, Num. 1 (2008) (relying upon data from Los Angeles County). Taken together, these various recent studies demonstrate that immigrants in removal proceedings are not at any greater risk of recidivism than the general population.
512. Cf. Bell v. Wolfish, 441 U.S. 520, 536-37 (1979) (upholding pretrial detention as non-punitive, relying upon the fact that pretrial detainees have a bail hearing to evaluate their risk of flight and future dangerousness).
513. See INA §101(a)(43), 8 U.S.C. § 1101(a)(43) (2000) (defining aggravated felony); INA § 240A(a), 8 U.S.C. § 1229b(a) (2000) (making permanent residents convicted of aggravated felonies ineligible for cancellation of removal).
514. See INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) (2000) (stating that any theft crime with a sentence of a year or more is an aggravated felony); INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B) (2000) ("Any reference to a term of imprisonment or a sentence . . . is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.").
515. Smith, 538 U.S. at 109 (Souter, J., concurring).
516. United States v. Ward, 448 U.S. 242, 248-49 (1980).
517. Id.
518. See supra note 36 and accompanying text.
519. See discussion supra Part III.
520. Wong Wing v. United States, 163 U.S. 228, 238 (1896) (holding that noncitizens in criminal proceedings get full constitutional protections).
521. See Margaret H. Taylor & Ronald F. Wright, The Sentencing Judge as Immigration Judge, 51 EMORY L.J. 1131, 1175-84 (2002) (offering a thoughtful alternative structure to incorporate removal proceedings into criminal proceedings but not treating removal as a criminal punishment).
522. See INA § 238(c), 8 U.S.C. § 1228(c).
523. INA § 238(c)(1), (2)(A), 8 U.S.C. § 1228(c)(1), (2)(A).
524. United States v. Soueiti, 154 F.3d 1018, 1019 (9th Cir.), amended on other grounds, 162 F.3d 1035 (9th Cir. 1998) ("The procedure for sentencing a criminal defendant is criminal, regardless of whether some portions of the judgment, such as deportation or restitution, might also be imposed in a civil proceeding.").
525. Being a noncitizen is already an element of several federal and state crimes. See, e.g., N.Y. PENAL LAW § 265.01 ("A person is guilty of criminal possession of a weapon in the fourth degree when . . . [h]e possesses any dangerous or deadly weapon and is not a citizen of the United States.") (emphasis added);
526. see also INA § 275(a), 8 U.S.C. §1325(a) (2000) (illegal entry).
527. See generally Pratheepan Gulasekaram, Aliens with Guns: Equal Protection, Federal Power, and the Second Amendment, 92 IOWA L. REV. 891 (2007) (detailing various firearms laws that target noncitizens).
528. As to the very small percentage of expulsion cases that are not triggered by criminal activity, see discussion supra Part III.C.2.C, the government would have to initiate a freestanding § 237 prosecution.
529. 21 U.S.C. § 841 (2000).
530. Such a defendant could also be charged with violating INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), pertaining to aggravated felonies. See INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (2000) (classifying illicit trafficking in a controlled substance as an aggravated felony).
531. See United States v. Booker, 543 U.S. 220, 221 (2005) (affirming the holding in Blakely that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant") (quoting Blakely v. Washington, 542 U.S. 296, 303 (2004)); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.").
532. See, e.g., INA § 240A(a), 8 U.S.C. § 1229b(a) (2000) (granting discretion to Attorney General to cancel the removal of certain lawful permanent residents).
533. See Taylor, supra note 313 (discussing the efficiencies of a closer integration of criminal and immigration adjudications).
534. The Double Jeopardy Clause would not be any obstacle to this second prosecution because the dual sovereignty exception to the double jeopardy analysis permits prosecution by a state and by the federal government for the same misdeed. See Heath v. Alabama, 474 U.S. 82, 88 (1985); United States v. Lanza, 260 U.S. 377, 382 (1922).
535. Capturing the efficiency of combining a state criminal prosecution with a removal proceeding would be impossible because states cannot order expulsion. The federal government has prevented state action by occupying the entire field of expulsion law. De Canas v. Bica, 424 U.S. 351, 354 (1976) (holding that
536. See generally Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. PA. J. CONST. L. 1084 (2004).
537. But cf. Taylor, supra note 313 (recognizing policy problems with state enforcement but arguing in favor of a limited role for states in removal proceedings).
538. See discussion supra Part III.C.2.b.
539. See Apprendi, 530 U.S. at 490 ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.") (emphasis added).
540. INA § 276(a), 8 U.S.C. § 1326(a) (2000).
541. Id.
542. I exclude the Eighth Amendment from this list because the Supreme Court's most recent pronouncements on the proportionality analysis lead me to believe that such analysis is likely to have very little impact in the expulsion context. See, e.g., Riggs v. California, 525 U.S. 1114, 1114 (1999) (denying writ of certiorari in case challenging "three strikes" law on proportionality grounds); Harmelin v. Michigan, 501 U.S. 957, 1001-09 (1991) (holding that mandatory sentence of life without parole for drug possession did not violate Eighth Amendment).
543. I also exclude the Double Jeopardy Clause for the reasons set forth supra note 324 and accompanying text.
544. 440 U.S. 367 (1979).
545. Id. at 372-73 (quoting Argersinger v. Hamlin, 407 U.S. 25, 33 (1972)).
546. Id. at 373.
547. Bridges v. Wixon, 326 U.S. 135, 147 (1945) (internal quotation marks omitted); see also Woodby v. INS, 385 U.S. 276, 285 (1966) (characterizing expulsion as "drastic deprivations"); Galvan v. Press, 347 U.S. 522, 530 (1954) ("[D]eportation is a drastic measure and at times the equivalent of banishment or exile.") (internal quotation marks omitted); Harisiades v. Shaughnessy, 342 U.S. 580, 587 (1952) ("That aliens remain vulnerable to expulsion after long residence is a practice that bristles with severities."); Jordan v. De George, 341 U.S. 223, 232 (1951) (Jackson, J., dissenting) (characterizing expulsion as "a life sentence of banishment").
548. Scott, 440 U.S. at 373.
549. See generally Calder v. Bull, 3 U.S. (3 Dall.) 386, 390-91 (1789).
550. See INS v. St. Cyr, 533 U.S. 289 (2001) (holding that Congress may retroactively change removal grounds so long as it clearly expresses its desire to do so).
551. See Morawetz, supra note 29, at 154-56.
552. Galvan, 347 U.S. at 530.
553. See generally Morawetz, supra note 29.
554. INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984).
555. See Matter of D-, 20 I. & N. Dec. 827, 831 (BIA 1994).
556. 8 C.F.R. § 1240.1(c);
557. see also Matter of D-, 20 I. & N. Dec. at 830 ("[A]n immigration judge may receive in evidence any oral or written statement which is material and relevant. . . ." (quoting 8 C.F.R. § 242.14(c) (1994)) (internal quotation marks omitted).
558. See Matter of Grijalva, 19 I. & N. Dec. 713, 722 (BIA 1988).
559. Or the elements of a separate count in the indictment. See discussion supra notes 317-321 and accompanying text.
560. FED. R. EVID. 803(8) (public records exception to hearsay). For example, to establish a prior conviction, the government need only offer a certified record of conviction and in order to establish noncitizen status, the government need only offer the defendant's birth certificate or other documents from the defendant's "alien file."
561. FED. R. EVID. 801(d)(2). For example, in order to establish the defendant's noncitizen status the government need only submit a copy of the defendant's application for permanent resident status from defendant's "alien file," in which the defendant will necessarily admit to being born abroad.
562. U.S.S.G. § 6Al.3(a) (1998). As the Supreme Court explained in United States v. Watts; "We begin our analysis with 18 U.S.C. § 3661 (2000), which codifies the longstanding principle that sentencing courts have broad discretion to consider various kinds of information. The statute states: 'No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.'
563. U.S. 148, 151 (1997) (internal citations omitted); see also 18 U.S.C. § 3661 (2000); United States v. Johnson, 489 F.3d 794, 96-97 (7th Cir. 2007).
564. Moreover, the criminal label would not dramatically alter the burden of proof in expulsion cases. Currently, the government must prove deportability by clear and convincing evidence. INA § 240(c)(3)(A), 8 U.S.C. § 1229b(c)(3)(A) (2000); see also Woodby v. INS, 385 U.S. 276, 277 (1966) ("We have concluded that it is incumbent upon the Government in such proceedings to establish the facts supporting deportability by clear, unequivocal, and convincing evidence."). The criminal label would require the higher proof beyond a reasonable doubt, In re Winship, 397 U.S. 358, 361 (1970),
565. but as discussed at supra notes 346-347 and accompanying text, establishing the required elements of a criminal expulsion case would not be overly burdensome. In regard to waivers of deportation, respondents currently must carry the burden of proof and that would remain true in criminal exclusion cases. Compare United States v. Joaquin, 326 F.3d 1287, 1293 (D.C Cir. 2003) (recognizing that defendant bears burden of proof to justify a downward departure), and United States v. Chavez-Chavez, 213 F.3d 420, 422 (7th Cir. 2000) ("When seeking a downward departure the defendant bears the burden."), with In re S-H-, 23 I. & N. Dec. 462 (BIA 2002) (recognizing that respondent bears burden of proof to justify waiver of deportation), and In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 59 (BIA 2001) (same).
566. FED. R. CRIM. P. 18;
567. see also United States v. Smith, 452 F.3d 323, 334 (4th Cir. 2006) ("Our Constitution sets forth the basic parameters for venue in a criminal case . . . [which] protect criminal defendants from the inconvenience and prejudice of prosecution in a far-flung district bearing no connection to their offenses."); United States v. Bagnell, 679 F.2d 826, 830 (11th Cir. 1982) ("The right of criminal defendants to be tried in the state and judicial district in which the alleged crime occurred is guaranteed by article III of and the sixth amendment to the United States Constitution.").
568. 8 C.F.R. § 1003.14 (granting government discretion to initiate removal proceedings in any immigration court); 8 C.F.R. § 1003.20(a) (stating that venue is proper in the immigration court where the proceeding was commenced); 8 C.F.R. § 1003.20(b) (stating that venue may only be changed upon a showing of good cause); Matter of Seren, 15 I. & N. Dec. 590, 591 (BIA 1976) (holding that the Service may decide in the first instance where a removal hearing should be held).
569. See Angeles v. District Dir., 729 F. Supp. 479, 484-85 (D. Md. 1990) (holding no denial of due process when Immigration Judge denied motion to change venue for resident alien in exclusion proceedings who was "wrongfully detained" by the INS in Seattle and sought to have the hearing moved to Maryland, where she resided); In re Rahman, 20 I. & N. Dec. 480 (BIA 1992) (holding a grant of change of venue on the grounds that detained alien had retained counsel at a new location was an abuse of the immigration judge's discretion when "there [was] no evidence of any long-standing attorney-client relationship");
570. see also Nancy Morawetz, Detention Decisions and Access to Habeas Corpus for Immigrants Facing Deportation, 25 B.C. THIRD WORLD L.J. 13, 16 n.16 (2005);
571. Margaret H. Taylor, Promoting Legal Representation for Detained Aliens: Litigation and Administrative Reform, 29 CONN. L. REV. 1647, 1674 n.97 (1997) ("[Allegations that a detained alien's counsel of choice and witnesses would be available in another location, standing alone, do not establish 'good cause' sufficient to overcome the Service's opposition to a requested venue change.")
572. (citing In re Rahman, 20 I. & N. Dec. 480 (BIA 1992));
573. Peters v. Ashcroft, 383 F.3d 302, 306 (5th Cir. 2004); see also 8 U.S.C. § 1252(b)(2) (2000) (requiring that a petition for review of removal proceedings "shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings").
574. For example, under Ninth Circuit law, a person sentenced for a drug offense under a first offender treatment program is not considered convicted for immigration purposes. LujanArmendariz v. INS, 222 F.3d 728, 735 (9th Cir. 2000). However, outside the Ninth Circuit, the Board of Immigration Appeals decision in In re Roldan, 22 I. & N. Dec. 512, 521 (BIA 1999), controls. That decision holds that a person sentenced for a drug offense under a first offender treatment program is convicted for immigration purposes. Accordingly, if a permanent resident is arrested in California on drug possession and is offered a first offender treatment if he pleads guilty, his attorney may correctly advise him that the plea will not be a conviction for immigration purposes under the controlling Ninth Circuit law and, therefore, he will not be deportable.
575. See INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (2000) (requiring a formal conviction to deport someone for a controlled substance offense). However, if the federal immigration autfiorities initiate removal proceedings against him outside the Ninth Circuit, In re Roldan will control and be will be deportable and could even be subject to mandatory deportation. There is simply no way to give correct, definitive advice to a client when an attorney cannot predict which law will be applied.
576. See Nora v. Demleitner, Immigration Threats and Rewards: Effective Law Enforcement Tools in the "War" On Terrorism?, 51 EMORY L.J. 1059, 1059-61, 1073, 1093 (2002);
577. Teresa A. Miller, Blurring the Boundaries Between Immigration and Crime Control After September 11th, 25 B.C. THIRD WORLD L.J. 81, 82-84 (2005);
578. Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 AM. U. L. REV. 367, 376 (2006);
579. But cf. Taylor, supra note 313 (arguing for the closer integration of criminal and immigration adjudications).
580. See, e.g., THE BRONX DEFENDERS, CIVIL ACTION PROJECT, THE CONSEQUENCES OF CRLMINAL PROCEEDINGS IN NEW YORK STATE (2007), available at http://www.reentry.net/public2/ library/attachment. 108661.