Immigration Laws and Iranian Students
T h e P resid en t has a u th o rity u n d er th e Im m ig ratio n and N atio n ality A c t (IN A ) to lim it or h alt e n try o f Iran ian n ationals in to th e U nited S tates. H e also has av ailab le to him u n d er th at sta tu te a n u m b er o f o p tio n s by w h ic h he m ay re g u la te th e c o n d itio n s u n d er w h ich Iran ian n atio n als a lre a d y p resen t in th e c o u n tr y rem ain h e re o r d ep art.
W h ile th e m a tte r is n o t free from d o u b t, a reaso n ab le read in g o f § 241(a)(7) o f th e IN A w o u ld allo w th e A tto rn e y G e n e ra l to tak e in to a c c o u n t ad v e rse foreign p o licy c o n s e q u en ces in d e te rm in in g w h e th e r an alien ’s c o n tin u e d p resen c e in th e U n ited S tates is p reju d icial to th e p u b lic in terest, so as to re n d e r him o r h e r d e p o rta b le . H o w e v e r, it w o u ld be c o n stitu tio n a lly in a p p ro p ria te to identify m em bers o f th e class o f d e p o rta b le p erso n s in term s o f th eir exercise o f F irst A m en d m en t rights.
B oth th e IN A an d th e C o n stitu tio n re q u ire th a t all p erso n s be g iv e n a h e arin g an d an o p p o rtu n ity fo r ju d ic ia l rev iew b e fo re being d e p o rte d ; h o w e v e r, n e ith e r th e IN A no r th e C o n stitu tio n w o u ld p re c lu d e th e A tto rn e y G e n e ra l o r C o n g re ss from tak in g actio n d ire c te d so lely at Iran ian nationals, p a rtic u la rly in lig h t o f th e serio u s national se cu rity an d foreign p o licy in terests at sta k e in th e p resen t crisis.
N ovem ber 11, 1979
M EM O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L
This memorandum has been prepared by this Office and the Immi gration and Naturalization Service (IN S) G eneral C ounsel’s office. It addresses the statutory provisions regarding entry and deportation o f aliens as they pertain to Iranian nationals in the United States. It also examines the constitutional authority o f Congress to enact legislation affecting Iranians residing in, or attem pting to enter, this country. W e conclude: (1) that the President presently possesses the authority to halt entry o f Iranians into the United States; (2) that, w hile the m atter is largely unprecedented and would raise nonfrivolous constitutional ques tions, the A ttorney G eneral may be able to prom ulgate standards w hich w hich w ould render deportable aliens whose presence in this country is prejudicial to the public interest and threatens the conduct o f foreign affairs; (3) that the immigration laws and the Constitution require that all persons receive a hearing and judicial review before being deported; (4) that it is therefore unlikely that deportations could be effected with sufficient immediacy to have an impact on the present crisis in Tehran; (5) that the A ttorney G eneral could require all Iranian nonim migrant students to dem onstrate to the IN S that they are “ in status” (i.e., not deportable); (6) that regulations and statutes directed solely at Iranian
133 nationals would not violate the Constitution; and (7) that Congress has the authority to bar from entering and to deport Iranians.
I. Population of Iranians
Iranian nationals in the United States may fall into four categories: (1) lawful perm anent residents; (2) nonimmigrants; (3) parolees; and (4) aliens in the United States in violation o f law. Law ful perm anent residents as defined in § 101(a)(20) of the Im m igra tion and Nationality A ct (IN A o r A ct), 8 U.S.C. § 1101(a)(20), are aliens w ho have entered legally with im migrant visas or who have adjusted status while in the United States. A lawful perm anent resident may remain in the United States indefinitely unless he commits miscon duct covered by the deportation grounds set forth in § 241(a) o f the Act, 8 U.S.C. § 1251(a). Nonim m igrants are aliens within one o f the tw elve categories speci fied in § 101(a)(15) o f the A ct, 8 U.S.C. § 1101(a)(15). Generally, nonim m igrants are adm itted for a particular purpose for a period of time, and under such conditions as the A ttorney G eneral may specify. § 214(a) o f the IN A , 8 U.S.C. § 1184(a). As o f August 30, 1979 there w ere approxim ately 130,000 nonim m igrants from Iran in the United States. O f these, approxim ately 50,000 w ere nonim migrant students as defined in § 101(a)(15) o f the A ct, 8 U.S.C. § 1101(a)(15). A few Iranians may be in the United States as parolees who were allowed to enter tem porarily for em ergency reasons or for reasons deemed strictly in the public interest in accordance with the authority o f the A ttorney G eneral under § 212(d)(5) o f the A ct, 8 U.S.C. § 1182(d)(5). Parolees are not considered to have been “adm itted” to the United States and may be ordered to depart in an exclusion pro ceeding rather than a deportation proceeding. Iranians w ho entered the country illegally o r w ho have failed to maintain nonim migrant status would be considered to be here in viola tion o f law and w ould be prim a facie deportable.
II. Present Policy Toward Iranians
As a result o f discussions between the State D epartm ent and the Justice D epartm ent following the fall o f the Shah, IN S has instituted a practice o f granting “extended voluntary departure” to Iranians in the United States w ho may be out o f status but w ho have expressed an unwillingness to return to Ira n .1 An alien granted extended voluntary departure is effectively perm itted to stay in this country for an undeter mined period o f time. In addition, INS has deferred inspection of potentially excludable Iranians w ho claim political asylum. On the basis
'Ira n ia n s w ho have been co n v icted o f crim es w ithin the U nited States are not included in this policy.
134 of representations made by the State D epartm ent, the foregoing policies have been extended until June 1, 1980. Therefore, no Iranians are currently being deported from the United States against their will. Iranians who have been allowed to remain under these policies may be granted work authorization by the INS. A t present, approxim ately 4,400 Iranians have been granted extended voluntary departure under the INS policy. T he original rationale for the policy o f not enforcing departure was that the State D epartm ent was unsure about conditions in Iran follow ing the fall o f the Shah’s governm ent. By not taking a position with respect to involuntary return o f Iranians, the State D epartm ent believed that it would have an opportunity to allow the situation in Iran to stabilize. In addition, claims for asylum w ere not determ ined because it was believed that statem ents regarding the likelihood o f persecution in Iran may have had an adverse im pact on the establishment o f diplo matic relations w ith the new Iranian governm ent. It should also be noted that since January 1, 1979, all nonimmigrant students, including Iranians, have been eligible for “duration o f status” under INS regulations. 8 C .F.R . § 214.2(0(2) (1979). A student adm itted for “duration o f status” has no date specified for the expiration o f his stay, but may remain for so long as he continues to be a full-time student in good standing at his school.
III. Statutory Entry and Deportation Procedures
T he IN A provides elaborate procedures regarding entry and expul sion o f aliens. As discussed below, several o f the procedures are consti tutionally required.
A. Entry
Immigrants may be adm itted into the United States if they possess a valid visa and are not otherw ise excludable under §212 o f the IN A , 8 U.S.C. §1182. Section 212 lists 33 grounds for exclusion including insanity, drug addiction, pauperism, conviction o f a crim e involving moral turpitude, prostitution, false procurem ent o f docum entation or fraud, advocacy o f anarchism and communism, or engaging in subver sive activities. Nonim m igrants (e.g., students, visitors, consular officials, foreign press) are adm itted upon conditions and for such time as estab lished by regulations by the A ttorney General. § 214 o f the IN A , 8 U.S.C. § 1184. Aliens seeking entry are inspected by immigration officers w ho may detain for further inquiry aliens “ w ho may not appear . . . to be clearly and beyond a doubt entitled” to enter. § 235(b) o f the IN A , 8 U.S.C. § 1225(b). Such further inquiry occurs before a special inquiry officer (immigration judge), w ho is authorized to administer oaths, present and receive evidence, examine and cross-examine the alien or witnesses.
135 T he alien is entitled to representation by counsel, and a com plete record o f the proceedings must be kept. §§ 235, 236, 292 o f the IN A , 8 U.S.C. §§ 1225, 1226, 1362. A decision excluding an alien may be appealed to the Board o f Imm igration Appeals, an independent quasi judicial appellate body created by the A ttorney G eneral within the D epartm ent o f Justice. 8 C .F.R . §3.1. Board decisions in exclusion cases are reviewable in federal district court by habeas corpus. T he IN A gives the President authority to “suspend the entry o f all aliens or any class o f aliens as immigrant o r nonimmigrants, o r impose on the entry o f aliens any restrictions he may deem to be appropriate” upon a finding that entry “w ould be detrim ental to the interests o f the United States.” § 2 12(0 o f the IN A , 8 U.S.C. §1182(0- See also § 215(a)(1) o f the IN A , 8 U.S.C. § 1185(a)(1), as am ended by Pub. L. No. 95-426, § 707, 92 Stat. 992 (1978).
B. Deportation
T he IN A specifies 19 grounds for deportation o f aliens. These in clude excludability at time o f entry, conviction o f a crim e involving m oral turpitude, advocacy o f anarchism o r communism, involvem ent in narcotic use or sale, and failure to maintain status o r to com ply with any condition o f status. A deportable alien may be arrested upon a w arrant o f the A ttorney G eneral and held in custody o r released on bond. M ost deportation cases are initiated by the issuance o f an order to show cause w ithout the issuance o f a w arrant o f arrest. A t the ensuing deportation proceeding, conducted by a special inquiry officer, the alien is entitled to notice o f the charges against him and o f the time and place o f the proceedings, to counsel, and to an opportunity to examine the evidence against him, present evidence in his ow n behalf and cross examine governm ent witnesses. § 242 of the IN A , 8 U.S.C. § 1252. T h e G overnm ent has the burden o f proving deportability by clear, convincing, and unequivocal evidence. Woodby v. INS, 385 U.S. 276 (1966). T he decision o f the special inquiry officer is appealable to the Board o f Im m igration Appeals (BIA). Thereafter, judicial review is available in the court o f appeals. § 106(a) o f the A ct, 8 U.S.C. § 1105 (a). A ny alien held in custody under an order o f deportation may also obtain judicial review through habeas corpus proceedings. M ost o f the statutory provisions establishing hearing rights are consti tutionally required. Since at least 1903, it has been recognized that the D ue Process Clause o f the Constitution applies to deportation proceed ings. T h e Japanese Im m igrant Case, 189 U.S. 86, 100-02 (1903). Wong Yang Sung v. M cGrath, 339 U.S. 33, 49-51 (1950); Kwong H ai Chew v. Colding, 344 U.S. 590, 596-98 (1953). W hile C ongress may have plenary authority to determ ine w hat classes o f aliens must leave the United States, see below, deportable aliens may not be expelled w ithout a
136 hearing. H ow ever, the provision o f a right o f appeal to the BIA and then to a federal court o f appeals is not constitutionally required.
C. Claim s fo r Asylum
An alien in either exclusion or deportation proceedings may apply for asylum under INS regulation if he claims that he would be perse cuted in his home country on the basis o f race, religion, nationality, political opinions, o r membership in a particular social group. 8 C.F.R. § 105 (1979). See also § 243(h) o f the A ct, 8 U.S.C. § 1253(h).
IV. Grounds for Deportation and Exclusion Under Current Law
A. Deportation
1. Lawful permanent resident aliens
Potential grounds for deportation o f Iranian nationals presently in the United States are contained in tw o subsections of the IN A . § 241(a)(4) and (7) o f the IN A , 8 U.S.C. § 1251(a)(4), (7). Section 241(a)(4) pro vides for the deportation o f an alien w ho within 5 years after entry into the United States is convicted o f a crim e involving moral turpitude and is sentenced to a year or m ore in prison, o r who is convicted o f tw o crimes involving moral turpitude at any time after entry. This section would become operative, for example, if an Iranian national is con victed o f com m itting a crim e o f violence in this country. Section 241(a)(7), 8 U.S.C. § 1251(a)(7), provides for the deportation of an alien w ho has engaged in, or has the purpose o f engaging in, activities described in §212(a)(27) of the IN A , 8 U.S.C. § 1182(a)(27). Section 212(a)(27) renders excludable any alien w ho the A ttorney G en eral has reason to believe seeks to enter the United States to engage in activities “which would be prejudicial to the public interest, o r endan ger the welfare, safety, or security o f the United States.” T he BIA has indicated, in dicta, that § 212(a)(27) “is broad enough to apply to others than subversives.” M atter o f M cD onald and Brewster, 15 I&N Dec. 203, 205 (BIA 1975) (refusing to bar entry o f persons carrying six marijuana cigarettes).2 In that decision, the Board interpreted §212(a)(27) to bar entry o f persons w ho seek to engage in activities “inimicable to the internal security o f the United States.” Id. This Office has opined that this section would authorize the exclusion o f six Rhodesian officials seeking to enter the United States to attend an agricultural convention; such entry was arguably deemed prejudicial to this nation’s conduct o f foreign affairs.
'S e e In the M atter o f M., 5 I&N D ec. 248 (BIA 1953) (refusing to bar entry o f pacifist under § (a)(27)).
137 T he scope o f § 241(a)(7) is unclear. T he leading treatise states that the section’s “expansive and undefined pow er has not yet been invoked in any actual case.” 1A G ordon & Rosenfield, Im m igration Law and P rocedure § 4 .10c, at p. 4-93 (1979). A reasonable reading of the section, supported by its legislative history, w ould allow the A ttorney G eneral to take into account serious adverse foreign policy conse quences in determ ining w hether an alien’s stay here is prejudicial to the public interest. A rguably, the A ttorney G eneral, perhaps upon advice from the Secretary o f State, could determ ine that the presence of particular Iranian nationals severely injures the ability o f this country to conduct foreign policy and threatens the m aintenance o f public order. T he question is not free from doubt, how ever. A lthough this Office has opined heretofore that a broad reading o f this statute is w arranted, a substantial argum ent can be made that the “public interest” ground for deporting aliens was intended by C ongress to give the A ttorney G en eral the pow er to deport only w here the conduct o f the alien is inimical to the public interest, rather than w here his presence is thought prejudi cial to the United States. If that reading o f the statute is co rrec t,3 then the operation o f this provision w ould require a determ ination of the type o f activity that is cause for deportation. We have serious doubt w hether the identification o f the class o f deportable persons could be made to turn on their exercise o f First A m endm ent rights. Thus it w ould probably not be constitutionally appropriate to identify for de portation all those aliens w ho have participated in m arches or dem on strations advocating the death o r extradition o f the Shah. Cf. Harisiades v. Shaughnessy, 342 U.S. 580, 592 (1952); Dennis v. United States, .341 U.S. 494, 502 (1951); In the M atter o f M., supra, 5 I&N Dec. at 252. In short, while this section appears to give the A ttorney General wide discretion in determ ining w ho may remain in the United States, it may be difficult to establish appropriate guidelines for its implementation.
2. Nonim m igrants
A nonim migrant is subject to the same grounds o f deportation under § 241(a)(4) and (7) as discussed above. In addition, a nonim m igrant who has remained beyond the length o f his authorized stay may be deported as an overstay under § 241(a)(2) o f the Act. H ow ever, as noted above, since January 1, 1979, all nonim m igrant students, including Iranians, have been adm itted w ithout a specified departure date and may remain as long as they continue to be students in good standing with their schools. Exam ples o f violations o f status are w orking w ithout authorization or perform ing other activities w hich are inherently inconsistent with the
3 T h e Suprem e C o u rt has held th at dep o rtatio n provisions should be strictly construed. Fong Haw Tan v. Phelan. 333 U.S. 6, 10 (1948).
138 purpose for admission. H ow ever, the Board of Im m igration Appeals has held that the test for students under § 2 4 1(a)(9) is w hether the student’s actions have meaningfully interrupted his studies. M atter o f M urat-Kahn 14 I&N Dec. 465 (BIA 1973). This view has been endorsed by at least one appellate court. M ashi v. INS, 585 F.2d 1309 (5th Cir. 1978). Therefore, under current law the mere fact of arrest, even when followed by incarceration, does not autom atically term inate a student’s status. 3. Illegal entrants
An Iranian w ho entered the United States with an im proper visa or without inspection would be deportable under §§ 241(a)(1) or (2).
B. Exclusion
Assuming that an Iranian seeking to enter the United States as an immigrant o r a nonim migrant had a proper visa, the relevant exclusion grounds would be §§ 212(a)(27) and (29), 8 U.S.C. § 1182(a)(27), (29). Section 212(a)(27) relates to aliens seeking to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security o f the United States. This statutory language may have broad applicability as discussed above. Section 212(a)(29)(A) covers certain subversive activities and would be narrow er in scope than §212(a)(27).
V. Executive Branch Options Under Present Statutory Authority
A. Procedural Options
1. D eportation
Nonim m igrants w ho are out o f status are deportable. H ow ever, expe ditious deportation o f these persons may not presently be possible because of practical problems in identifying and locating them. Even if out-of-status persons are found, deportation proceedings, and subse quent BIA and judicial review, take on the average 1 year.4 Since a deportation hearing is constitutionally required, and judicial review is provided by statute, it will be difficult to expedite proceedings. The BIA, which is created by regulation, could be eliminated, although such action could sacrifice uniformity of and control over deportation proceedings. The A ttorney General could order increased investigation o f the status o f Iranian nonimmigrants and order the IN S and B IA to assign priority to deportation proceedings against such aliens. It should
4 T he IN S estim ates that this involves tw o m onths at the IN S district office, four m onths at the BIA, and six m onths in the court o f appeals.
139 be recognized, how ever, that the Constitution and the IN A prevent any sum m ary deportation o f Iranian nationals.
2. E ntry
T he IN A gives the President broad authority to prescribe regulations conditioning or limiting entry o f aliens, o r any class o f aliens. §§ 212(f), 215 o f the IN A , 8 U.S.C. §§ 1182(f), 1185. In addition to substantive limits on entry, discussed below, these provisions could authorize the President to establish special screening procedures for Iranian nationals to probe their reasons for entry and activities they plan to undertake in the United States. Such regulations must meet the test o f “reasonable ness” ; presumably they could be justified if the President has inform a tion that Iranian terrorists o r other persons intending to undertake violent action in this country are seeking entry.
B. Substantive Options
1. Entering aliens
a. Change conditions o f stay. U nder the authority o f § 214(a), the INS published proposed regulations in August, 1979, w hich would make conviction for commission o f a violent crim e for w hich a sentence of one year o r m ore could be imposed a violation o f nonim m igrant status. In addition, the proposed regulations w ould make the provision of truthful inform ation to the IN S a condition o f a nonim m igrant’s stay in the United States. These regulations could be put into effect by some time in Decem ber, 1979. T he IN S expects that student groups will challenge these regulations on the ground that they add deportation grounds not provided by Congress.
b. Presidential order under §§ 212(f) and 215(a). U nder §§212(0 and 215(a) o f the A ct, the President could declare that the admission of Iranians o r certain classes o f Iranians w ould be detrim ental to the interests o f the United States. Such a restriction would have to meet the test o f reasonableness. G iven the present uncertainty o f the situation in Iran, the possible internal problem s and violence w hich could be caused by Iranians dem onstrating in the United States, and the diffi culty in providing security for Iranians in the United States, such an order w ould probably be sustainable.
2. Aliens in the U nited States
U nder §214 o f the A ct, the A ttorney G eneral could prom ulgate a regulation requiring all nonim m igrant students to appear at INS offices
140 and dem onstrate they have maintained status.5 T he justification for such a regulation could be the necessity o f securing an accurate count of nonimmigrant students in the United States and reexamining their period o f stay in light o f recent events. It may be difficult to justify the inclusion o f nonim migrant students other than Iranians. It should be noted that such action would be likely to overburden INS offices since there are several hundred thousand nonim migrant students in the United States. Furtherm ore, locating and prosecuting persons w ho do not appear would be difficult and resource-consuming. A m ore limited option would be to require only Iranian nonim mi grant students to appear at IN S offices. Such a regulation could be justified upon information that substantial numbers o f Iranian students are out o f status. H ow ever, it would produce the same practical prob lems as the broader regulation (there are 50,000 nonim m igrant Iranian students).
3. Restrictions on departure U nder §215 the President could restrict the departure o f Iranians from the United States. H ow ever, this would seem to serve no useful purpose under the present circumstances.
C. Equal Protection and Iranians
Several o f the options outlined above single out Iranian nationals for special treatm ent— i.e., a bar on entry o f Iranians, special screening procedures, requirem ents that Iranian nonim migrants report to IN S district offices. A rguably, new requirem ents based on national origin raise equal protection concerns. It is not likely that a court would invalidate any o f the proposed actions on the ground that they violated the Fifth A m endm ent.6 While the States may not discriminate on the basis o f alienage w ithout dem on strating a compelling State interest, see Graham v. Richardson, 403 U.S. 365 (1971), and aliens in the United States are protected by the due process guarantee o f the Fifth Am endm ent, Wong Yang Sung v. McGrath, 339 U.S. 33, 48-51 (1950), the federal governm ent has plenary pow er to legislate on immigration matters. T he Suprem e C ourt has recognized that Congress may deny entry to, or require deportation of, aliens on grounds w hich w ould be impermissible if applied to A m erican citizens. See The Chinese Exclusion Case, 130 U.S. 581 (1889); Galvan v. Press, 347 U.S. 522 (1954); Oliver v. IN S, 517 F.2d 426, 428 (2d Cir.
5 T h e "g o o d cause” exception to the A dm inistrative P rocedure A ct w ould have to be invoked to permit prom ulgation o f the regulation w ithout notice and com m ent. 5 U.S.C. § SS3. 6 Federal regulation o f im m igration is tested by the Fifth A m endm ent, w hich essentially inco rp o rates the F o u rteen th A m endm ent’s guarantee o f equal protection. See H am pton v. Mow Sun Wong. 426 U.S. 88, 99-101 (1976); Bolling v. Sharpe, 347 U.S. 497 (1954).
141 1975) (per curiam), cert, denied, 423 U.S. 1056 (1976). C ongress’ plenary pow er is based on the fact that entry and deportation classifications are “vitally and intricately interw oven w ith contem poraneous policies in regard to the conduct o f foreign relations, the w ar pow er, and the m aintenance of a republican form o f governm ent. Such m atters are so exclusively entrusted to the political branches o f governm ent as to be largely immune from judicial inquiry or interference.” Harisiades v. Shaughnessy, 342 U.S. at 588-89. See Fong Yue Ting v. United States, 149 U.S. 698 (1893); H itai v. INS, 343 F.2d 466 (2d Cir.), cert, denied, 382 U.S. 816 (1965). Some cases suggest in dicta that judicial review may be available to overturn classifications for w hich no rational basis can be found— e.g., deportation on the grounds o f religion. Fiallo v. Bell, 430 U.S. 787, 793, n.5 (1977); Oliver v. INS, supra, 517 F.2d at 428. But such review would clearly be limited to w hether the lines draw n by Congress or the E xecutive branch are rational and not w holly arbitrary. See Francis v. INS, 532 F.2d 268 (2d Cir. 1976); N oel v. Chapman, 508 F.2d 1023, 1028 (2d Cir.), cert, denied, 423 U.S. 824 (1975). U nder this standard, we believe that the options outlined above w ould be constitutional. G iven the present crisis, the activities o f many Iranian nonim m igrant students, and the serious national security and foreign policy interests at stake, it is unlikely that a court would set aside otherw ise legitim ate policies directed solely at Iranian nationals. N or do we believe that any new regulations w ould be set aside if challenged as an instance o f unconstitutional “selective enforcem ent.” First, we assume that usual processing o f aliens for entry and deporta tion w ould continue. Second, courts have traditionally recognized broad prosecutorial discretion in the enforcem ent o f the law. While some cases have stated in dicta that a policy o f prosecutions based on an unjustifiable and arbitrary standard such as race or religion may be unconstitutional, e.g., Oyler v. Boles, 368 U.S. 448, 456 (1962), we believe that heightened enforcem ent efforts aimed at out-of-status Ira nian nonim migrants would not be so arbitrary as to deny such persons due process. W e believe that the President could make appropriate statem ents justifying such policies based on the international crisis, and upon a finding that many Iranian students (w ho constitute the largest foreign student group in the United States) may be out o f status. See United States v. Sacco, 438 F.2d 264, 271 (9th Cir.), cert, denied, 400 U.S. 903 (1970).7
’ W hile w e know o f no case on point, w e believe that any prosecutions undertaken to stifle the exercise o f First A m endm ent rights by Iranian students might face a serious constitutional challenge. Cf. Lennon v. fN S . 527 F.2d 187, 195 (2d Cir. 1975).
142 VI. The Power of Congress
The preceding sections have discussed the authority o f the President and the A ttorney G eneral under existing statutes. This section addresses the constitutional limitations on congressional authority to regulate entry and deportation o f aliens. It is well-established that “over no conceivable subject is the legisla tive pow er of Congress more com plete than it is o v er” the regulation of immigration. Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). The Supreme C ourt has consistently upheld the plenary pow er of Congress to make rules for the admission and deportation of aliens as inherent in the concept o f national sovereignty. The Chinese Exclusion Cases, supra; the Japanese Im m igrant Case, supra; Ekiu v. United States, 142 U.S. 651, 659 (1892). In recent years the Supreme C ourt has steadfastly refused to reconsider its earlier cases or to develop substantive limits on C ongress’ pow er to exclude and deport. See Fiallo v. Bell, 430 U.S. at 792-93; Kleindienst v. Mandel, 408 U.S. at 766; Galvan v. Press, 347 U.S. at 531 — 32 (“ [T]hat the formulation o f . . . policies [regarding entry and depor tation] is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect o f our governm ent.”) T he Supreme C ourt has also made clear that C ongress may deport persons for prior conduct w hich did not render them deportable at the time they so acted. T he retroactivity o f such legislation does not violate the Due Process Clause or constitute an ex post facto law. Lehmann v. Carson, 353 U.S. 685 (1957); Galvan v. Press, supra; N g Fung Ho v. White, 259 U.S. 276, 280 (1922). As stated most broadly by the Court: T he basis for the deportation o f presently undesirable aliens resident in the United States is not questioned and requires no reexamination. W hen legally adm itted, they have com e at the N ation’s invitation, as visitors or perm a nent residents, to share with us the opportunities and satisfactions o f our land. As such visitors and foreign nationals they are entitled in their persons and effects to the protection o f our laws. So long, how ever, as aliens fail to obtain and maintain citizenship by naturalization, they remain subject to the plenary pow er o f C ongress to expel them under the sovereign right to determ ine what noncitizens shall be perm itted to remain within our borders. Changes in w orld politics and in our internal econom y bring legislative adjustm ents affecting the rights o f various classes o f aliens to admission and deportation . . . . Since “ [i]t is thoroughly established that Congress has pow er to
143 o rd er the deportation o f aliens whose presence in the country it deems hurtful,” the fact that petitioners, and respondent . . . , w ere made deportable after entry is immaterial. T hey are deported for w hat they are now, not for w hat they were. O therw ise, when an alien once le gally becam e a denizen o f this country he could not be deported for any reason o f w hich he had not been fore w arned at the time o f entry. M ankind is not vouchsafed sufficient foresight to justify requiring a country to permit its continuous occupation in peace or w ar by legally ad m itted aliens, even though they never violate the laws in effect at their entry. T he protection o f citizenship is open to those w ho qualify for its privileges. T he lack of a clause in the C onstitution specifically em pow ering such action has never been held to render Congress impotent to deal as a sovereign w ith resident aliens. Carlson v. London, 342 U.S. 534-37 (1952) (footnotes om itted) (quoting Bugajewitz v. Adams, 228 U.S. 585, 591 (1913)). Thus, Congress possesses alm ost unlimited pow er in establishing sub stantive regulations defining categories o f aliens w ho may enter and w ho must leave the United States. C ongress clearly has the pow er to bar all Iranians from entering the United States and could order all Iranian nationals out o f the country. O f course, such legislation raises serious policy issues: many Iranian nationals in this country may be loyal to the United States or the Shah and may be well-integrated members o f A m erican society w ith jobs and families. Furtherm ore, some Iranians may face persecution in Iran and thus w ould apply for asylum here. N or do w e believe, as discussed above, that legislation directed solely at Iranians would offend the Fifth Am endm ent, as long as there was a rational basis for such legislation.8 A ccordingly, C ongress could constitutionally adopt, for example, legislation: (1) barring entry o f Iranians; an d /o r (2) deporting all Iranian nonim m igrant students.
8[W ]hether im m igration law s h ave been cru d e and cruel, w hether they may have reflected xenophobia in general o r anti-Semitism o r anti-C atholicism , the responsibility belongs to Congress. C o u rts d o en fo rce the requirem ents imposed by C ongress upon officials in adm inistering im m igration laws, e.g., Kwock Jan Fat v. White, 253 U.S. 454, and the requirem ent o f D ue Process may entail certain procedural observances. E.g., N g Fung H o v. White, 259 U.S. 276. But the underlying policies o f w hat classes o f aliens shall be allow ed to en ter and w hat classes o f aliens shall be allow ed to stay, are for C ongress exclusively to determ ine even though such determ ination may be deem ed to offend A m erican traditions and may, as has been the case, jeopardize peace. Harisiades v. Shaughnessy, 342 U.S. at 597 (F ran k fu rter, J., concurring).
144 It must be noted, how ever, that while Congress has broad substantive pow er to define categories o f admissible and deportable persons, its pow er to eliminate procedural protections is substantially limited by the D ue Process Clause o f the Constitution. As discussed above, the Su preme C ourt held consistently since the turn of the century that aliens may not be deported w ithout a prior hearing. R ecent decisions enlarg ing due process rights probably guarantee an alien (1) adequate notice o f the hearing, (2) the right to present evidence and cross-examine witnesses, (3) representation by counsel, and (4) an unbiased decisionmaker. And while Congress may eliminate or limit the scope o f review of deportation proceedings in the courts o f appeals, it is unlikely that it could deprive aliens o f the right to file habeas corpus petitions asserting deprivations o f due process and other constitutional rights. U.S. Const, art. I, § 9, cl. 2. See 2 G ordon and Rosenfield, supra, § 8.6a (1979). Thus, while Congress could order that all Iranian nonimmigration students leave the United States, it could not deprive such aliens of a hearing to dem onstrate that they do not come within the proscribed category. Japanese Immigration Case, supra. Congress may be able to expedite expulsion o f deportable aliens, such as out-of-status students, by providing for additional im migration offi cers and judges w ho could help locate and process such persons. H ow ever, the requirem ent o f a hearing and the availability o f habeas corpus review w ould prohibit any summary proceedings and render unlikely, as a practical matter, any immediate gain in the speed of enforcement o f the existing law.
VII. Conclusion
T here exists a rather broad range o f actions that could be taken both by the Executive Branch and by the Congress in this area. Necessarily, however, any action would have to be carefully scrutinized based upon the facts in existence at the time o f any proposed action and the strength of the national security and foreign affairs interests. Because of the sensitive and im portant First Am endm ent, equal protection and due process considerations likely to be im plicated by any action taken by the governm ent, and given the high- likelihood o f litigation, w e urge that any proposal be given careful and thorough consideration.
Jo hn M. H arm on
Assistant Attorney General Office o f L egal Counsel