Amicus Curiae Brief — Benitez v. Rozos, Field Office Director, Miami, Immigration and Customs Enforcement

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A

No. 03-7434 | » 2094

In The

Supreme Court of the Gnited States

e

DANIEL BENITEZ,

Petitioner,

V.

JOHN MATA,

Respondent.

°

On Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

e

BRIEF OF LAW PROFESSORS AS AMICI CURIAE

IN SUPPORT OF THE PETITIONER

{Law Professors Listed On Inside Cover]

.

MELFORD O. CLEVELAND JONATHAN J. ROSS

2222 U.S. Highway 25 So. Counsel of Record

Wilton, AL 35187 SUSMAN GODFREY L.L.P.

(205) 665-2641 1000 Louisiana Street

Suite 5100

Houston, TX 77002

(713) 653-7813

SARAH H. CLEVELAND

727 E. Dean Keeton Street

Austin, TX 78705

(512) 232-1720

COCKLE LAW BRIEF PRINTING CO (800) 22

OR CALL COLLECT (402) 342-2431

AMICI LAW PROFESSORS'

The law professors who have signed on to this brief as

amici curiae are:

T. Alexander Aleinikoff Professor of Law, Georgetown

University Law Center

Barbara Aronstein Black George Welwood Murray

Professor of Legal History,

Columbia Law School

Linda S. Bosniak Professor of Law, Rutgers

School of Law

Richard A. Boswell Professor of Law and Director,

Center for International

Justice and Human Rights,

Hastings College of Law

Evan H. Caminker Dean and Professor of Law,

University of Michigan Law

School

Michael J. Churgin Centennial Professor in Law,

University of Texas School of

Law

Sarah H. Cleveland Marrs McLean Professor in

Law, University of Texas

School of Law

Lori Fisler Damrosch Henry L. Moses Professor

of Law and International

Organization, Columbia

Law School

' The professors’ law school affiliations are listed for identification

purposes only

Lawrence G. Sager

Peter J. Spiro

Margaret H. Taylor

Charles D. Weisselberg

Michael J. Wishnie

Alice Jane Drysdale Sheffield

Regents Chair in Law,

University of Texas

School of Law

Professor of Law, Hofstra

University Law School

Professor of Law, Wake Forest

University School of Law

Professor of Law, Director,

Center for Clinical Education,

School of Law, University of

California, Berkeley

Professor of Clinical Law,

New York University

School of Law

George P. Fletcher

William E. Forbath

Thomas M. Franck

Robert W. Gordon

Louis Henkin

Daniel Kanstroom

Harold Hongju Koh

Stephen H. Legomsky

Sanford V. Levinson

Hiroshi Motomura

Gerald L. Neuman

Cardozo Professor of Juris-

prudence, Columbia Law

School

Lloyd M. Bentsen Endowed

Chair in Law, University of

Texas School of Law

Murray and Ida Becker

Professor of Law Emeritus,

New York University School

of Law

Chancellor Kent Professor

of Law and Legal History,

Yale Law School

University Professor Emeritus,

Columbia University

Clinical Professor and Direc-

tor of Human Rights Program,

Boston College School of Law

Gerald C. and Bernice Latrobe

Smith Professor of Interna-

tional Law, Yale Law School

Charles F. Nagel Professor of

International and Compara-

tive Law, Washington Univer-

sity in St. Louis School of Law

W. St. John Garwood and

W. St. John Garwood, Jr.

Centennial Chair in Law,

University of Texas

School of Law

Dan K. Moore Distinguished

Professor of Law, University of

North Carolina School of Law

Herbert Wechsler Professor

of Federal Jurisprudence,

Columbia Law School

TABLE OF CONTENTS

TAME OF AUT EGU EMD vccccrccsccvcessevcssccsscessonsseeses

INTEREST OF THE AMICI CURIAE..................:00068

SUMMARY OF ARGUMENT ..................cccceeseseeeeeees

ET sitviidciinnininndinericspinieindniseesipiniamieiuanints

I.

II.

MEZEI IMPROPERLY APPLIED THE

ENTRY FICTION TO HOLD THAT AN

ALIEN WITH SIGNIFICANT CONTACTS

IN THE UNITED STATES POSSESSED NO

I PRI ISIE ES cc csccsccccsesessccccessencees

SS

I eet a eet ree) Se ee Ae

MEZEI’S APPLICATION OF THE ENTRY

FICTION HAS CREATED AN INTOLER-

ABLE INCOHERENCE IN THIS COURT'S

DUE PROCESS JURISPRUDENCE .............

A. Mezei Ignored Prior Jurisprudence Rec-

ognizing Due Process Protections for

BD Be Fa Fei osscenescccassenensaveccennssuns

B. The Mezei Holding That Aliens at the

Threshold of Entry Are Unprotected by

Due Process Has Been Further Under-

mined by the Subsequent Decisions of

Ey Sissi cciciinatuscmuchianedecMneanddidinnnieias

i. Due Process Developments.................

ii. Understandings of the Constitution’s

Territorial Scope have Expanded Since

SONNET i:ssstbinchsdieisigcetstesigenbiniaiaadeictncd atladesiaiaanoint

10

11

15

16

il

TABLE OF CONTENTS - Continued

Page

. iii. This Court has Cabined the Plenary

Power Doctrine Since Mezei............... 20

C. Application of the Entry Fiction to Pa-

rolees Present in the United States with

Substantial Connections to the Commu-

nity Creates an Intolerable Constitu-

i oc cedeulaoonncaneans 22

Ill. THE COURT SHOULD REMEDY THE

CONSTITUTIONAL INCOHERENCE CRE-

ATED BY MEZEI AND SUBJECT IMMI-

GRATION DETENTION DECISIONS TO

ORDINARY MATHEWS V. ELDRIDGE

TEE inickssudansmndeaiinsinninninnesnicdeiscepeniinisonn 25

EN cvissinsniachpveniiauniianceuievsddntadaienmaiinlonden 30

iil

TABLE OF AUTHORITIES

‘ Page

CASES:

Asahi Metal Industry Co., Ltd. v. Superior Court of

EE is __, amen SUDO PTET 20

Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir.

SUITTIID sicanencalibiiienieenideapiiansiadeniadiniieiientniniemmadinanaiinieds 23

Chae Chan Ping v. United States, 130 U.S. 581

CEI csiiasiaicecesheassetanesabenusitaaendiaadaanadiaiaiedadenpiasmniaanéiite 13

Chin Yow v. United States, 208 U.S. 8 (1908)..............0.... 14

Chy Lung v. Freeman, 92 U.S. 275 (1875) .......:cccceeeeeeeeees 12

Disconto Gesellschaft v. Umbreit, 208 U.S. 570

Ee ai:ccsstuichsnisdindpcidbssicionsocaialibespandamnaannedsancdunsaonedivesanedininaneits 19

Downes v. Bidwell, 182 U.S. 244 (1901)... ee. 19

Fiallo v. Bell, 430 U.S. 787 (1977)............::c0ssssssseseseees 18, 21

Fok Yung Yo v. United States, 185 U.S. 296 (1902)........... 13

Fong Yue Ting v. United States, 149 U.S. 698 (1893)....... 13

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ..............0. 19, 24

Gegiow v. Uhl, 239 U.S. 3 (1915) .................csccccccssesssseceees 14

Gilbert v. Homar, 520 U.S. 924 (1997).......cccsseeeeneee nae

Goldberg v. Kelly, 397 U.S. 254 (1970)...........cceeeeeeeeees 16

Graham v. Richardson, 403 U.S. 365 (1971)........ 16, 18, 24

Tm re Grigfithe, 413 UB. TAT (1DTS)...00cccccccscccesscesesessseccssees 18

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976).............. 18

INS v. Chadha, 462 U.S. 919 (1983)...................csceeseseeeees 21

Jean v. Nelson, 472 U.S. 846 (1985)............ cece eeee 9, 23

Kaplan v. Tod, 267 U.S. 228 (1925)................ccceceeeeeees 12, 24

lv

TABLE OF AUTHORITIES -— Continued

Page

Korematsu v. United States, 323 U.S. 214 (1944)............... 3

Kwock Jan Fat v. White, 253 U.S. 454 (1920)................... 14

Kwong Hai Chew v. Colding, 344 U.S. 590 (1953)...... 17, 29

Landon v. Plasencia, 459 U.S. 21 (1982) .............. 18, 21, 29

Mathews v. Diaz, 426 U.S. 67 (1976) 0.0... ccc e cece cents 29

Mathews v. Eldridge, 424 U.S. 319 (1976)................ passim

Morrissey v. Brewer, 408 U.S. 471 (1972)....... 16, 19, 24, 25

Nishimura Ekiu v. United States, 142 U.S. 651

SUED scccecicslebdsiducsdinne cesta eteitahdalcluharaisiisielidisaahsalasadliveaidiuaaiianea 13

Peer OTe, GT UE. Te CE osesesccnsncensesecsscesessescscesens 18

Rafeedie v. I.N.S., 880 F.2d 506 (D.C. Cir. 1989).............. 28

Reid v. Covert, 354 U.S. 1 (196 7).....cccecsccccsosssesessossevessesoses 20

Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382

NE: MI acidic sda idestibeietaiceldelhidicasiadeinbind i saeeidalaningiis 10, 23

Rosenberg v. Fleuti, 374 U.S. 449 (1963) ........ ee 17

Bt ke 1 | en eee ee ee 11

Russian Volunteer Fleet v. United States, 282 U.S.

I eihceiihellsiscachdinhanmeiiiileeirain als iacataeceta ila dleidactabicasah 19

Shaughnessy v. United States ex rel. Mezei, 345

ey a IT iscihesinitsicincniinsanietecannibniedieindihinnenitiannatdeiieia passim

Sugarman v. Dougall, 413 U.S. 634 (1973) ......... ee. 18

Tang Tun v. Edsell, 223 U.S. 673 (1912)... eee 14

Tod v. Waldman, 266 U.S. 113 (1924) ...... eee 14

Trop v. Dulles, a, TR i eile iS)

Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001) ........cccccceee- 21

TABLE OF AUTHORITIES — Continued

Page

United States ex rel. Knauff v. Shaughnessy, 338

TT CITT ieliinibsiieaiccieidhiciilaibiiuiinidatinibaataigseatinanitaia passim

United States ex rel. Mezei v. Shaughnessy, 195

TEI I iced liachteteniataciilpcietal 6

United States ex rel. Paktorovics v. Murff, 260 F.2d

I a a 23, 26

United States v. Jung Ah Lung, 124 U.S. 621 (1888)....... 13

United States v. Salerno, 481 U.S. 739 (1987).................. 28

United States v. Verdugo-Urquidez, 494 U.S. 259

SSIreITIITT dsticichciestbdlakcacdeeaiaeaeattllindpinaiadiadadiedilaaiesledeiiiicasiaedieltbtad 20

Vitek v. Jones, 445 U.S. 480 (1980) ..0.... 0. eeeee 19

Warren v. United States, 58 F. 559 (1st Cir. 1893)............ 11

Washington v. Harper, 494 U.S. 210 (1990)..............000000. 19

Wolff v. McDonnell, 418 U.S. 539 (1974)... cccecceeeeeeeees 19

Yamataya v. Fisher, 189 U.S. 86 (1903)...........0..0.0000 13, 14

Yick Wo v. Hopkins, 118 U.S. 356 (1886).........0000000..... 12, 23

Zadvydas v. Davis, 533 U.S. 678 (2001) ................... passim

FEDERAL STATUTES AND CONGRESSIONAL BILLs:

Act of Feb. 5, 1917, ch. 29, § 15, 39 Stat. 874, 885........... 11

Act of Feb. 20, 1907, ch. 1134, § 16, 34 Stat. 898,

RRS Teer Natal ow sane eens Re a RE NA LR 11

Act of Mar. 3, 1891, ch. 551, § 8, 26 Stat. 1084,

| ARIE ERENT Seas ta ae Re OE De Ae OED 11

TABLE OF AUTHORITIES — Continued

Page

es Sis Ce GI, Ci ccnsctncinencncccesccncintnamncosscnsnentnicass 7

Immigration and Nationality Act of 1952, ch. 477,

§ 212(d)(5), 66 Stat.163, 188 (1952) ................ ceeeeeeeeeees 12

MISCELLANEOUS:

T. Alexander Aleinikoff, Aliens, Due Process and

“Community Ties”: A Response to Martin, 44 U.

i i ne cla imeieneganendacenauins 9

T. Alexander Aleinikoff, Detaining Plenary Power:

The Meaning and Impact of Zadvydas v. Davis,

16 Geo. Immigr. L. J. 365 (2002)......... eee ees 9, 26, 28

Clement L. Bouvé, A Treatise on the Law Governing

the Exclusion and Deportation of Aliens in the

AN I a scctcneeciseeniseneniclisesannntetonsuistendaliiabiniiiigdadiins 14

Sarah H. Cleveland, Powers Inherent in Sover-

eignty: Indians, Aliens, Territories, and the Nine-

teenth Century Origins of Plenary Power over

Foreign Affairs, 81 Tex. L. Rev. 1 (2002)..............4. 12, 21

Kenneth C. Davis, Administrative Law § 237 (1951)....... 14

John P. Frank, Fred Vinson and the Chief Justice-

ship, 21 U. Chi. L. Rev. 212 (1954)................:.ssssscscccrseees 8

Henry M. Hart, Jr., The Power of Congress to Limit

the Jurisdiction of Federal Courts: An Exercise in

Dialectic, 66 Harv. L. Rev. 1362 (1953)............... 8, 15, 22

Louis Henkin, The Constitution as Compact and as

Conscience: Individual Rights Abroad and at Our

Gates, 27 Wm. & Mary L. Rev. 11 (1985) ......... ee 9

vil

TABLE OF AUTHORITIES — Continued

Page

Stephen H. Legomsky, Immigration and the Judi-

ciary: Law and Politics in Britain and America

Sar discasceinedlchepiteniantesdidethabinaedhcgdlmch cidinseiahinetaieidiaibiala 9, 20

Stephen H. Legomsky, Immigration Law and the

Principle of Plenary Power, 1984 Sup. Ct. Rev.

STII sseicuchesicalaassdaeiniiavepeatainaapaaieciteepeiidedianiedeisiibaaiiniassideeiideapiididapinipinnians 21

David A. Martin, Due Process and Membership in

the National Community: Political Asylum and

Beyond, 44 U. Pitt. L. Rev. 165 (1983) .........0.0.. 9,16

David A. Martin, Graduated Application of Constitu-

tional Protections for Aliens: The Real Meaning of

Zadvydas v. Davis, 2001 Sup. Ct. Rev. 47....... 22, 26, 28, 29

Hiroshi Motomura, The Curious Evolution of

Immigration Law: Procedural Surrogates for

Substantive Constitutional Rights, 92 Colum. L.

Ee Seat a ccd teiininbinncaininiitcnpisiadibbsinibigiipisienbenanesigianiids 9.14

Gerald L. Neuman, Habeas Corpus, Executive

Detention, and the Removal of Aliens, 98 Colum.

i a 9

Gerald L. Neuman, Strangers to the Constitution

RRS ae NC cea RE OLE Weer aT Hes MEER ANN Sen niet 9, 11, 20

Note, Developments in the Law - Immigration and

Nationality, 66 Harv. L. Rev. 643 (1953)..................0004. 14

Note, The Supreme Court, 1952 Term, 67 Harv. L.

a ial 8

Ronald D. Rotunda & John E. Nowak, 2 Treatise on

Constitutional Law § 17.4 (2d ed.1986) ..............cccceeeeeees 9

Peter H. Schuck, Developments in the Law-

Immigration Policy and the Rights of Aliens, 96

SRE itis SENOS UII sreeceernnccerispiiseticnsinsssntanisiigpnicedonsbiiaian 9

vill

TABLE OF AUTHORITIES - Continued

Peter H. Schuck, The Transformation of Immigra-

tion Law, 84 Colum. L. Rev. 1 (1984) ..............c cece eeeeee eee )

Charles Weisselberg, The Exclusion and Detention

of Aliens: Lessons from the Lives of Ellen Knauff

and Ignatz Mezei, 143 U. Pa. L. Rev. 933 (1995) ....5, 7, 8

INTEREST OF THE AMICI CURIAE’

This case addresses the due process rights of aliens in

the United States who have been detained indefinitely

pending final removal, because the United States is

unable to deport them. Amici curiae are 24 professors of

constitutional law, immigration law, foreign relations law,

American legal history and federal courts at law schools in

the United States. Amici have expertise in the constitu-

tional law of the United States relating to foreign rela-

tions, immigration, and due process, and many have

written about the due process principles raised by this

case. The professional interest of amici is in ensuring that

the Court is fully and accurately informed of the ~ am-

stances giving rise to the “entry fiction” that aliens in the

United States are unprotected by the Due Process Clause

in some narrow contexts, and the extent to which that

doctrine has become fundamentally irreconcilable with

this Court’s constitutional jurisprudence. Specifically,

amici urge the Court not to reaffirm the decision in

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206

(1953), and urge the Court to hold that the removal power

of the government, particularly when that power results in

' Pursuant to Supreme Court Rule 37.6, amici, who are listed on

the inside front cover, state that no counsel for any party authored this

brief in whole or in part. The brief was written by counsel for amici,

with the assistance of Marc Ellenbogen, Joanne Savage, Rebecca

Smullin and Stephen Vladeck, students at the University of Texas

School of Law and Yale Law School. No one other than counsel for

amici curiae has made a monetary contribution to the preparation or

submission of the brief. Both Petitioner and Respondent have consented

to the filing of this brief. Letters of consent are being filed with the

brief.

* Counsel for amici Melford O. Cleveland served as : law clerk to

Associate Justice Hugo L. Black during the 1952-53 Supreme Court

term, when Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206

(1953), was decided.

the indefinite detention of aliens with lengthy contacts

with the United States, is meaningfully limited by the

requirements of due process.

.

SUMMARY OF ARGUMENT

As in Zadvydas, the question before this Court is

whether aliens who were paroled into the United States

many years ago, who cannot be removed, and who have

significantly greater affiliations with the national commu-

nity than most deportees, “are to be condemned to an

indefinite term of imprisonment within the United

States.” Zadvydas v. Davis, 533 U.S. 678, 695 (2001).

Relying on Shaughnessy v. United States ex rel. Mezei, 345

U.S. 206 (1953), the government maintains that because

parolees are subject to the “entry fiction” that they have

never entered the United States, they are entitled to no

due process protection against indefinite and prolonged

detention, notwithstanding Zadvydas. Appellee’s Br. to

11th Cir. at 19-20; id. at 22.

In Mezei, this Court held that aliens “on the threshold

of initial entry” stand “on a different footing” from aliens

“who have once passed through our gates.” Mezei, 345 U.S.

at 212. Indeed, the Court concluded bluntly, “‘[w]hatever

the procedure authorized by Congress is, it is due process

as far as an alien denied entry is -oncerned.’” Jd. (quoting

United States ex rel. Knauff v. Shaug inessy, 338 U.S. 537,

544 (1950)). The Court accordingly ruled, during the

height of the Cold War, that Mezei could be excluded from

the United States and detained indefinitely on Ellis

Island, based on secret national security grounds and

without any opportunity for a hearing, because no other

country was willing to take him.

Mezei was an atrocity in its day and should not be

reaffirmed by this Court. The Mezei Court erred pro-

foundly in three important ways. First, the Court refused

to credit Mezei’s very real and longstanding ties to the

United States community as a legal resident of 25 years,

and instead “assimilated” him to the status of a first time

applicant at the border. Mezei, 345 U.S. at 214. Second, in

holding that due process for the alien seeking admission is

whatever Congress says it is, the Court ignored the pre-

ceding half century of constitutional jurisprudence

recognizing increasing due process protections in the

exclusion context. And third, the Court concluded that

Mezei’s de facto detention as a result of the government’s

inability to deport him did not constitute » deprivatiyxn of

liberty, but was simply an unfortunate byproduct of

Mezei’s excludability.’

Mezei was severely criticized in its day for all these

failings, and its disharmony with U.S. constitutional

principles has only increased as the subsequent decisions

of this Court have further undermined the holding. This

Court has never reaffirmed the government’s ability to

indefinitely detain inadmissible aliens who cannot be

removed. The decision stands, like Korematsu v. United

States, 323 U.S. 214 (1944), as an unwanted relic of its

era.

Amici Law Professors write to submit that this Court

should not repeat and compound the errors of Mezei by

reaffirming that ruling to uphold the indefinite detention

of the Mariel Cuban detainees, who have lived, worked,

paid taxes, and built friendships, families, and communi-

ties in our nation for over twenty years. Amici instead

* Amici Law Professors write to urge the Court not to repeat the

first two errors of Mezei in this case. As set forth more fully in the Brief

of the American Bar Association Amicus Curiae in Support of Peti-

tioner, the Zadvydas decision corrected the third error of Mezei by

recognizing that an unremovable alien’s continued detention could not

escape due process scrutiny merely because the alien was no longer

entitled to remain in the United States. Zadvydas, 533 U.S. at 695-96.

urge the Court to continue the important project it began

with Zadvydas of remedying the longstanding incoherence

in our constitutional due process jurisprudence that is

created by the fiction that parolees physically present in

the U.S. with the consent of the government, often for

many years, acquire no liberty interests or due process

rights whatsoever as a result of their lawful contact with

our national community. The bright line distinction drawn

in Mezei between aliens deemed to be at the border, who

do not have due process protection, and those within the

United States, who do, should be replaced with the nu-

anced balancing approach that this Court has applied to

due process in other contexts. See Mathews v. Eldridge,

424 U.S. 319 (1976). Under the Mathews test, the due

process rights of aliens would be determined by weighing

the alien’s legal status and the extent and nature of her

ties to the national community. Aliens truly on the thresh-

old of initial entry ordinarily would be entitled to the

lowest due process protections, and the government could

have a legitimate interest in detaining an alien for lengthy

periods where specific, articulable national security con-

cerns were involved or the alien otherwise posed a signifi-

cant danger to the community. But rigorous procedural

protections would have to be afforded in such circum-

stances, and no alien subject to U.S. authority would exist

in a fictitious limbo outside the law.

}

¢

——_— —

ol

ARGUMENT

I. MEZEI IMPROPERLY APPLIED THE ENTRY

FICTION TO HOLD THAT AN ALIEN WITH

SIGNIFICANT CONTACTS IN THE UNITED

STATES POSSESSED NO DUE PROCESS

RIGHTS

A. The Mezei Decision

The national security immigration cases decided in

the early 1950's at the height of both the Korean War and

the McCarthy era represent the “modern zenith” of the

entry fiction and judicial deference to congressional

decisions regarding immigration. Charles Weisselberg,

The Exclusion and Detention of Aliens: Lessons from the

Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev.

933, 954 (1995). In United States ex rel. Knauff v. Shaugh-

nessy, 338 U.S. 537 (1950), the Court affirmed the exclu-

sion, based on secret national security grounds and

without a hearing, of the non-citizen wife of a U.S. soldier,

holding that regardless of the rule applicable to persons

“who have gained entry into the United States,” the

government’s decision to exclude an alien presenting at

the border was “final and conclusive.” Jd. at 543."

Mezei was the most extreme example of the Court’s

McCarthy Era jurisprudence of withholding judicial

scrutiny of even the most egregious violations of basic

rights. Ignatz Mezei was a long-term lawful resident alien

* Knauff prompted substantial outcry in Congress and elsewhere.

After numerous congressional hearings and condemnatory newspaper

reports, the Attorney General reopened Ms. Knauff’s case and she

ultimately was ordered admitted to the United States. See Weisselberg,

supra, at 958-64; see also Mezei, 345 U.S. at 225 (Jackson, J., dissent-

ing) (describing Knau/ff as “a near miss, saved by further administrative

and congressional hearings from perpetrating an injustice”) (citation

omitted).

6

who had come to the United States in 1923 and married

an American citizen. During World War II, he had served

in the U.S. Coast Guard, worked as an air raid warden,

and sold war bonds. Brief for Respondent at 2, Mezei (No.

139). In 1948, Mezei attempted to travel to Romania to

visit his dying mother and, after being denied permission to

enter Romania, spent 19 months in Hungary attempting to

return home to the U.S. Mezei, 345 U.S. at 208. He finally

secured a visa and returned to the United States in 1950,

where he was permanently excluded from re-entering for

unspecified “security reasons.” Jd. The Government

unsuccessfully attempted to deport Mezei to Hungary.

France and Britain both denied him entry, as did many Latin

American countries. Jd. at 208-09.

Mezei petitioned for habeas corpus, and the district

court granted the petition, finding that his then 21-month

detention on Ellis Island was “excessive and justifiable

only by affirmative proof of [Mezei’s] danger to the public

safety.” Id. at 209 (citation omitted). The Second Circuit

affirmed. United States ex rel. Mezei v. Shaughnessy, 195

F.2d 964 (2d Cir. 1952).

The Supreme Court upheld Mezei’s indefinite deten-

tion without a hearing. Justice Clark found for the Court

that “neither [Mezei’s] harborage on Ellis Island nor his prior

residence here transforms this into something other than an

exclusion proceeding.” 345 U.S. at 213. Justice Clark aggres-

sively applied the entry fiction to hold that Mezei was “an

entrant alien or ‘assimilated to [that] status’ for constitu-

tional purposes.” Jd. at 214 (alteration in original) (citation

omitted). He had no right to enter, and the government’s

refusal to parole him into the United States, even though it

resulted in his de facto indefinite detention, deprived him of

no constitutional right. Jd. at 215.

Justices Black, Frankfurter, Jackson, and Douglas all

dissented. Justice Black’s dissent with Douglas condemned

the Court for leaving Mezei’s liberty “completely at the

percy of the unreviewable discretion of the Attorney

General.” 345 U.S. at 217 (Black, J., dissenting). Justice

Jackson’s opinion, which Justice Frankfurter joined,

bitterly protested the majority’s application of Knauff in

this context. “Because the respondent has no right of

entry,” Jackson wrote, “does it follow that he has no rights

at all? Does the power to exclude mean that exclusion may

be continued or effectuated by any means which happen to

seem appropriate to the authorities?” Jd. at 226 (Jackson,

J., dissenting). Just as “eject[ing] him bodily into the sea”

would constitute a deprivation of life, Mezei’s detention,

“occurring within the United States or its territorial

waters,” constituted a deprivation of liberty which “may be

done only by proceedings which meet the test of due

process of law.” Jd. at 226-27. The majority’s contention

that Mezei was not detained in violation of his liberty

“overwork/ed] legal fiction.” Jd. at 220.

B. The Mezei Decision Was Severely Criticized

Like the Knauff case before it, the Mezei decision

provoked considerable public outcry. Editorials condemn-

ing the decision appeared in the New York Times and the

Washington Post, and other newspapers around the

country “excoriated the opinion.” Two private bills were

introduced in Congress on Mezei’s behalf.’ Attorney

General Brownell eventually agreed to grant Mezei a

* Weisselberg, supra, at 970 n.201 (collecting newspaper reports).

See also Opening the Door, N.Y. Times, Apr. 24, 1953, at 22 (describing

the decision as “cruel, intolerant and downright un-American”);

Deprived of Liberty, Wash. Post, Mar. 18, 1953, at 12 (“the indefensible

consequences of the decision demand further attention”).

* Senator Langer introduced a private bill for the relief of Ignatz

Mezei on March 23, 1953. See S. 1414, 83d Cong. (1953). Representative

Celler introduced a private bill on April 24, 1953. See H.R. 4858, 83d

Cong. (1953).

8

hearing, and Mezei ultimately was paroled into the U.S.’

In short, the process Mezei was finally afforded helped

avert an egregious injustice.

The Mezei decision (and the Knauff case on which it

relied) was heavily criticized in its day, both for failing to

comport with the Court’s existing due process jurispru-

dence, which recognized due process protections in exclu-

sion proceedings, and for the Court’s application of the

fiction that an alien with lengthy ties to the United States

possessed no greater due process protections than an

initial entrant. In his famous dialogue on federal court

jurisdiction, Professor Henry Hart criticized as “patently

preposterous” the proposition that due process for aliens

denied entry was whatever Congress had provided. See

Henry M. Hart, Jr., The Power of Congress to Limit the

Jurisdiction of Federal Courts: An Exercise in Dialectic, 66

Harv. L. Rev. 1362, 1392 (1953); see also id. at 1395 (The

decision “trivialize[d] the great guarantees of due process”

to reach “brutal conclusions”) (footnote omitted)." The

” Weisselberg, supra, at 972. At the exclusion hearing, the govern-

ment established that Mezei had pleaded guilty in 1935 for possessing a

bag of stolen flour, for which Mezei had been fined $10, id. at 976 &

n.232, and that he had played a minor role in the Communist Party

twenty years earlier. Jd. at 985.

* See also Hart, supra, at 1394 (condemning the Knauff decision for

relying indiscriminately upon eariy harsh decisions denying due

process to aliens in both admission and deportation cases, “without

noticing that the principle which had compelled repudiation of the

deportation precedents required repudiation also of the others”), Note,

The Supreme Court, 1952 Term, 67 Harv. L. Rev. 96, 100 (1953)

(criticizing Knauff for “resurrectling]” a doctrine seemingly “inconsis-

tent with the extensions of the Due Process Clause to limit the plenary

congressional power over aliens”); John P. Frank, Fred Vinson and the

Chief Justiceship, 21 U. Chi. L. Rev. 212, 231-32 (1954) (“(Mezei]

conveys the most brutal shock to the moral sense of any of the opinions

in this tragedy-laden area. ...”). For other contemporary critiques, see

Weisselberg, supra, at 985 n.267 (collecting sources).

ee -_— -=—

~~ —>—_—-—

9

scholarly’ and judicial” criticism of the decision has con-

tinued unabated.

—

* See T. Alexander Aleinikoff, Detaining Plenary Power: The

Meaning and Impact of Zadvydas v. Davis, 16 Geo. Immigr. L. J. 365,

374 (2002) (“The rule affirmed in Mezei ... is wildly out of step with

modern constitutional law.”); T. Alexander Aleinikoff, Aliens, Due

Process and “Community Ties”: A Response to Martin, 44 U. Pitt. L. Rev.

237 (1983); Louis Henkin, The Constitution as Compact and as Con-

science: Individual Rights Abroad and at Our Gates, 27 Wm. & Mary L.

Rev. 11, 27-34 (1985); Stephen H. Legomsky, Immigration and the

Judiciary: Law and Politics in Britain and America 200-01 (1987);

David A. Martin, Due Process and Membership in the National Com-

munity: Political Asylum and Beyond, 44 U. Pitt. L. Rev. 165, 173, 176

(1983) (The Court “misread| ] the cases it invoked and igneried] many

others” yielding a doctrine that was “scandalous ... deserving to be

distinguished, limited, or ignored.”); Hiroshi Motomura, The Curious

Evolution of Immigration Law: Procedural Surrogates for Substantive

Constitutional Rights, 92 Colum. L. Rev. 1625, 1642 (1992) (The Court’s

developing due process jurisprudence for excludable aliens “turned

colder” with the Knauff and Mezei decisions “at the height of McCarthy-

ism and the nation’s preoccupation with the perceived Communist

threat.”); Gerald L. Neuman, Strangers to the Constitution, 253 n.2

(1996); Gerald L. Neuman, Habeas Corpus, Executive Detention, and the

Removal of Aliens, 98 Colum. L. Rev. 961, 1052 (1998) (“The legal fiction

that exclusion merely withholds a benefit was ... stretched beyond

decency in Mezet.”); Peter H. Schuck, The Transformation of Immigra-

tion Law, 84 Colum. L. Rev. 1, 20 (1984) (“[T]hese decisions |Knauff and

Mezei| are easy to denounce and their reasoning is not difficult to

demolish.”); Peter H. Schuck, Developments in the Law - Immigration

Policy and the Rights of Aliens, 96 Harv. L. Rev. 1286, 1322-24 (1983)

(“In advancing this language of absolute exclusion power, the Court

deviated sharply from fifty years of doctrinal development”). See also

Ronald D. Rotunda & John E. Nowak, 2 Treatise on Constitutional Law

§ 17.4 n.62 (2d ed.1986) (“The ability to detain unadmitted aliens for an

indefinite period of time, and without procedural safeguards .. . seems

difficult to rationalize in terms of modern conceptions of the fundamen-

tal fairness principle that lies at the heart of due process.”).

’ The decision has been excoriated in the courts. E.g., Trop uv.

Dulles, 356 U.S. 86, 102 n.36 (1958) (Warren, C.J.) (plurality opinion)

(Mezei’s extended confinement without judicial review was “intoler-

able”); Jean v. Nelson, 472 U.S. 846, 868-69 (1985) (Marshall, J.,

(Continued on following page)

10

Il. MEZEI’S APPLICATION OF THE ENTRY

FICTION HAS CREATED AN INTOLERABLE

INCOHERENCE IN THIS COURT’S DUE

PROCESS JURISPRUDENCE

By applying the entry fiction to create a bright line rule

between the constitutional rights of aliens at the border and

those who have entered the United States, Mezei ignored

the preceding fifty years of this Court’s jurisprudence,

which recognized due process protections for aliens at the

border, and which had not distinguished sharply between

the rights of aliens in exclusion and deportation proceed-

ings. It was Mezei that created a significant disharmony in

the rights of these two groups, with the result that aliens

who entered the United States (whether lawfully or clan-

destinely) and later were found to be removable were

entitled to due process protection, while aliens presenting

lawfully at the border and found to be inadmissible were

not. This dissonance has only increased since Mezei, as the

Court has upheld broader due process protections for aliens

who have “entered” the United States and in other contexts.

The Court’s application of the Constitution abroad in some

circumstances, and its recognition that Congress’ “plenary”

power over immigration is limited by the Constitution, have

exacerbated the incongruence between the Mezei entry

fiction and contemporary constitutional jurisprudence. The

constitutional incoherence becomes particularly intolerable

dissenting) (The “broad dicta [of Mezei] can withstand neither the

weight of logic nor that of principle, and has never been incorporated

into the fabric of our constitutional jurisprudence.”); Rodriguez-

Fernandez v. Wilkinson, 654 F.2d 1382, 1387, 1388 (10th Cir. 1981)

(rejecting “euphemistic fiction” that detention of excludable aliens is

merely a “continuation of the exclusion” without Fifth Amendment

implications and describing Mezei as “the nadir of the law with which

the opinion dealt”).

ll .

when the entry fiction is applied to aliens paroled into the

United States, who may live and work in the United

States for years while nevertheless being deemed “nonper-

sons” for purposes of due process.

A. Mezei Ignored Prior Jurisprudence Recogniz-

ing Due Process Protections for Aliens at the

Border

Before Knauff and Mezei the entry fiction did not have

significant implications for the Constitution’s application

to aliens. Although the Mezei Court’s assertion that aliens

at the border are unprotected by due process appeared to

be driven by late-nineteenth century theories that the

Constitution was limited to U.S. territory,” the distinction

between aliens who had landed, or “entered,” the U.S. and

those at the border originally was intended to protect

shipping carriers from liability for allowing aliens to

disembark unlawfully, see Warren v. United States, 58 F.

559 (1st Cir. 1893) (discussing carrier sanctions), and to

establish that mere physical presence in the U.S. did not

confer a right to remain under the immigration statutes.”

" E.g., In re Ross, 140 U.S. 453, 464 (1891) (“The Constitution can

have no operation in another country.”); Gerald L. Neuman, Strangers

to the Constitution 7-8 (1996) (discussing now-abandoned “strict

territoriality” approaches to the Constitution).

" The entry fiction arose in the late nineteenth century, when it

became impossible to conduct all immigration inspections before

passengers disembarked from arriving vessels. Congress therefore

authorized the “temporary removal” of aliens from vessels for purposes

of inspection, but provided that such a transfer would not be deemed “a

landing.” See Act of Feb. 5, 1917, ch. 29, § 15, 39 Stat. 874, 885; Act of

Feb. 20, 1907, ch. 1134, § 16, 34 Stat. 898, 903; Act of Mar. 3, 1891, ch.

551, § 8, 26 Stat. 1084, 1085-86 (each containing the same language

regarding “removals” and “landings.”). The Court later extended this

(Continued on following page)

12

Indeed, early cases had recognized that the Constitu-

tion applied to aliens at the threshold of entry. In Chy

Lung v. Freeman, 92 U.S. 275 (1875), for example, the

Court reversed the exclusion of an alien on a boat in San

Francisco harbor on constitutional grounds. Although the

Court ultimately relied on the Commerce Clause, id. at

280-81, the plaintiff also raised Fourteenth Amendment

equal protection claims, Brief for Plaintiff in Error at 5-6,

Chy Lung, 92 U.S. 275 (1875) (No. 478), and much of the

Court’s analysis credited her claim. Chy Lung, 92 US. at

278 (holding that it was “hardly possible to conceive a

statute more skillfully framed, to place in the hands of a

single man” an arbitrary power). See Sarah H. Cleveland,

Powers Inherent in Sovereignty: Indians, Aliens, Territo-

ries, and the Nineteenth Century Origins of Plenary Power

over Foreign Affairs, 81 Tex. L. Rev. 1, 108-109 (2002).

Moreover, Yick Wo v. Hopkins, 118 U.S. 356 (1886), estab-

lished that the Fourteenth Amendment’s protections

applied universally “to all persons within the territorial

jurisdiction,” id. at 369, without elaborating on this

territorial limitation, and the Court cited the Chy Lung

ruling regarding an alien in harbor in support of its equal

protection analysis. Jd. at 374. At any rate, both aliens on

ships docked in U.S. harbors and those on U.S. soil were

clearly within U.S. territory for the purposes of territorial

jurisdiction.

entry fiction to include parolees — aliens who are allowed to enter and

~ remain in the United States with the government’s permission, but who

are denied admission and remain “in theory of law at the boundary line

and [gain] no foothold in the United States.” Kaplan v. Tod, 267 US.

228, 230 (1925) (citation omitted). In 1952, Congress formally applied

the entry fiction to nonimmigrant parolees by providing that parole

“shall not be regarded as an admission” into the United States. See

Immigration and Nationality Act of 1952, ch. 477, § 212(dX5), 66 Stat.163,

188 (1952) (codified as amended at 8 U.S.C. § 1182(dX5) (2000)).

a

13

Subsequent cases also did not sharply distinguish

between the procedural protections afforded aliens on

either side of the “entry” line. The Court’s late-nineteenth

century decisions recognized broad congressional authority

over both entry and deportation (or “expulsion”). See, e.g.,

Chae Chan Ping v. United States, 130 U.S. 581 (1889)

(upholding exclusion of alien at the border as a sovereign

power); Fong Yue Ting v. United States, 149 U.S. 698, 713

(1893) (upholding deportation on the grounds that the

powers to exclude or expel were “but parts of one and the

same power”). But the Court recognized that even the

exclusion power was limited by the Constitution, Chae

Chan Ping, 130 U.S. at 604 (congressional authority is

limited “by the constitution itself”), and scrutinized both

exclusions and deportations for statutory compliance.

Nishimura Ekiu v. United States, 142 U.S. 651, 660, 663

(1892) (reviewing to determine whether exclusion is “in

conformity with” law); Fong Yue Ting, 149 U.S. at 729-730

(reviewing legality of deportation decision on the merits).”

The Court gradually moved away from the plenary

power decisions of the late 1800’s to recognize greater

procedural protections for both entry and deportation. In

Yamataya v. Fisher, 189 U.S. 86 (1903), the Court held

that the removal of an unadmitted alien who had landed

four days earlier was governed by “the fundamental

principles that inhere in ‘due process of law,’” including

the right to a hearing regarding deprivations of liberty. Id.

at 100-01. The Court observed that in construing “acts of

* A number of decisions also rejected executive exclusion decisions

for failure to comport with statutory requirements, e.g., United States v.

Jung Ah Lung, 124 U.S. 621, 628-32 (1888) (implying authority from

congressional statute to determine whether alien was properly ex-

cluded); Fok Yung Yo v. United States, 185 U.S. 296, 302 (1902) (courts

will review decision to exclude non-citizen where “required by the

Constitution . . . to intervene”).

14

Congress, such interpretation ought to be adopted as...

will bring them into harmony with the Constitution.” Jd.

at 101.

The Court soon began expressly construing exclusion

statutes to comport with basic due process. Chin Yow v.

United States, 208 U.S. 8 (1908), upheld the finality of an

exclusion decision “on the presupposition that the decision

was after a hearing in good faith,” id. at 12, and was

understood as opening the door to “expanding judicial

review” of exclusion hearings. See Kenneth C. Davis,

Administrative Law § 237, at 828 (1951). Read together,

Yamataya and Chin Yow led to greater due process protec-

tions in both the exclusion and deportation contexts. In

numerous other cases, the Court treated deportation and

exclusion interchangeably. Hiroshi Motomura, The Curi-

ous Evolution of Immigration Law: Procedural Surrogates

for Substantive Constitutional Rights, 92 Colum. L. Rev.

1625, 1641 & n.76 (1992) (collecting cases).

It was Knauff and Mezei which purported to establish

a bright line rule between aliens entitled to due process

protection and those who were not. In stating that due

process for aliens at the border was whatever Congress

said it was and applying the entry fiction to a long term

* See Clement L. Bouvé, A Treatise on the Law Governing the

Exclusion and Deportation of Aliens in the United States 138-41 (1912).

See also Gegiow v. Uhl, 239 U.S. 3, 9 (1915) (executive’s exclusion

determination failed to comply with act of Congress and denied right to

fair hearing); Kwock Jan Fat v. White, 253 U.S. 454, 459 (1920)

(granting relief because procedures cannot be “unfair and inconsistent

with the fundamental principles of justice embraced within the

conception of due process of law”); Tang Tun v. Edsell, 223 U.S. 673,

681-82 (1912) (review of executive determination to ensure its authority

was “fairly exercised”); Tod v. Waldman, 266 U.S. 113 (1924) (aliens

detained pending entry hearing entitled .o be released if hearing not

held within definite period of time); Note, Developments in the Law -

Immigration and Nationality, 66 Harv. L. Kev. 643, 671 (1953).

—“

15

legal resident, the Mezei Court reversed the jurispruden-

tial developments of the prior fifty years with respect to

aliens seeking entry, while leaving those decisions in place

for aliens “inside” the country.” As a result, even at the

time, the decision established an unwarranted disharmony

between the due process rights of aliens on one side or the

other of the entry fiction line.

B. The Mezei Holding That Aliens at the

Threshold of Entry Are Unprotected by

Due Process Has Been Further Under-

mined by the Subsequent Decisions of this

Court

This Court’s jurisprudence in the half century since

Mezei has exacerbated the decision’s anomalous status in our

constitutional system and has rendered untenable the

proposition that aliens at the border have no due process

rights. The post-Mezei Court has replaced the right/privilege

distinction for determining constitutional rights and adopted

the Mathews v. Eldridge, 424 USS. 319, 334-35 (1976),

balancing test under the Due Process Clause. The Court

has recognized greater due process rights for aliens in the

immigration context and elsewhere, and has significantly

expanded the concept of liberty in other areas. The Court’s

retreat from its strictly territorial construction of the Consti-

tution’s scope has rendered an anachronism the fiction that

aliens on U.S. soil who have not “entered” are unprotected by

the Constitution. And the Court’s recognition that Congress’

* See Hart, The Power of Congress to Limit the Jurisdiction of

Federal Courts, 66 Harv. L. Rev. at 1392, 1394. Hart criticized Mezei

and Knauff for “ignor[ing] the painful forward steps of a whole half

century of adjudication.” Jd. at 1396; see also id. at 1391 (“There arose

up new justices in Washington which knew not Joseph. Citing only the

harsh precepts of the very earliest decisions, they began to decide cases

accordingly, as if nothing had happened in the years in between.”).

16

power over immigration is subject to ordinary constitu-

tional constraint has reined in the plenary power doctrine

over immigration. All of these developments have rendered

Mezei irreconcilable with contemporary constitutional

jurisprudence.

i. Due Process Developments

The right/privilege distinction which governed the

determination of constitutional rights when Mezei was

decided has since been rejected by this Court in decisions

applying due process protections to interests traditionally

considered “privileges.” Compare Knauff, 338 U.S. 537,

542 (1950) (“[AJn alien who seeks admission to this coun-

try” claims not a “right,” but a “privilege,” which is

granted “only upon such terms as the United States shall

prescribe.”); with Graham uv. Richardson, 403 U.S. 365,

374 (1971) (“T]his Court now has rejected the concept that

constitutional rights turn upon whether a governmental

benefit is characterized as a ‘right’ or as a ‘privilege.’ ws

Goldberg v. Kelly, 397 U.S. 254, 262 (1970); Morrissey v.

Brewer, 408 U.S. 471, 481 (1972) (rejecting the right/

privilege distinction for determining liberty interests impli-

cated by revocation of criminal parole). See also Motomura,

supra, at 1650-56 (discussing impact of abandoning

right/privilege distinction on the Mezei doctrine). The

Supreme Court has also adopted the flexible Mathews v.

Eldridge, 424 U.S. 319, 334-35 (1976), balancing test for

determining what process is due in a given context, as

discussed further in Part III, below. Thus, although Mezei

was viewed by the 1950s Court as seeking only the “privi-

lege” of entry, his interests would be viewed and weighed

through a very different lens under modern due process

jurisprudence. See David A. Martin, Due Process and

Membership in the National Community: Political Asylum

and Beyond, 44 U. Pitt. L. Rev. 165, 167 (1983) (“The

Supreme Court’s approach to due process has undergone a

virtual revolution since [Knauff and Mezei).”).

ee

17

The Court has also eroded the entry fiction by recog-

nizing due process protections for returning aliens like

Mezei in some contexts. The tension began with the

Court’s decision in Kwong Hai Chew v. Colding, 344 U.S.

590 (1953), which was decided only a month prior to Mezei.

The alien in that case was a legal resident who had left

the United States for four months as a seaman, and like

Mezei, was excluded at Ellis Island without a hearing. Jd.

at 592-95. While the Court “assimilated” Mezei to the

status of a first time applicant lacking due process rights,

however, Kwong Hai Chew’s status was “assimilate[d] .. .

to that of an alien continuously residing and physically

present in the United States.” Jd. at 596. In short, the

legal resident at the border in Mezei was deemed never to

have entered the United States, while the legal resident in

Chew was deemed never to have left. Even the Chew Court

recognized that the constitutional rights of resident aliens

should not turn on such fictions:

While it may be that a resident alien’s ultimate

right to remain in the United States is subject to

alteration by statute or authorized regulation be-

cause of a voyage undertaken by him to foreign

ports, it does not follow that he is thereby de-

prived of his constitutional right to procedural

due process. His status as a person within the

meaning and protection of the Fifth Amendment

cannot be capriciously taken from him.

Id., at 601 (emphasis added). The Court accordingly

construed the exclusion laws that it had applied in Knauff

and Mezei as inapplicable to Chew.

In Rosenberg v. Fleuti, 374 U.S. 449 (1963), the Court

held that a resident alien who had gone to Mexico for

“about a couple hours,” id. at 450, could not be subjected to

exclusion proceedings at all. The Court read Chew as

recognizing that returning resident aliens continued to be

protected by the Fifth Amendment, id. at 460, and con-

cluded that where a resident alien’s trip abroad was

18

“innocent, casual, and brief,” he would not be deemed to

have made an “entry” upon his return. Jd. at 461-62. In

Landon v. Plasencia, 459 U.S. 21 (1982), the Court again

held that while a lawful permanent resident who had

departed the U.S. for two days could be placed in exclusion

proceedings upon her return, she remained entitled to the

full panoply of constitutional due process protection that

she would have possessed if she had never left. The recog-

nition by the Zadvydas dissenters that “both removable

and inadmissible aliens are entitled to be free from deten-

tion that is arbitrary or capricious,” Zadvydas, 533 U.S.

678, 721 (2001) (Kennedy, J., dissenting), confirms this

Court’s recognition of due process rights for aliens at the

border and the infirmity of the Mezei holding.

The Supreme Court also has expanded the constitu-

tional protections owed aliens apart from the right to enter

or stay in this country. See, e.g., Plyler v. Doe, 457 U.S. 202

(1982) (Fourteenth Amendment protects undocumented

alien children from discrimination in public education);

Fiallo v. Bell, 430 U.S. 787, 792 (1977) (congressional

decisions regarding the classes of aliens that were eligible

for admission were subject to constitutional scrutiny);

Hampton v. Mow Sun Wong, 426 U.S. 88, 102-03 (1976)

(Due Process Clause protects aliens from discrimination in

federal civil service employment); Sugarman v. Dougall,

413 U.S. 634 (1973) (Fourteenth Amendment protects

aliens from discrimination in state civil service employ-

ment), In re Griffiths, 413 U.S. 717 (1973) (Fourteenth

Amendment prohibits state from barring aliens from the

practice of law); Graham v. Richardson, 403 U.S. 365, 376

(1971) (Fourteenth Amendment protects resident aliens

against discrimination in state welfare benefits).

Finally, the Court has significantly expanded the

protections afforded by the Due Process Clause outside the

immigration context. For example, due process now limits

the power of the government to impose incarceration or to

worsen significantly the nature of the punishment imposed.

19

See, e.g., Vitek v. Jones, 445 U.S. 480, 488 (1980) (transfer

to mental institution); Wolff v. McDonnell, 418 U.S. 539,

556-57 (1974) (loss of prison good-time credits); Gagnon v.

Scarpelli, 411 U.S. 778, 781-82 (1973) (revocation of

probation); Morrissey v. Brewer, 408 U.S. 471, 482 (1972)

(revocation of parole); see also Washington v. Harper, 494

U.S. 210, 221-22 (1990) (forced administration of psycho-

tropic drugs). All of these developments render anachro-

nistic the holding that an alien in Mezei’s shoes lacks due

process protection.

ii. Understandings of the Constitution’s

Territorial Scope have Expanded Since

Mezei

To the extent that Mezei relied upon the theory that

the Constitution is limited to U.S. territory to deny due

process protection to aliens “deemed” at the border, that

doctrine also has since been abandoned, as the Court has

adopted a flexible approach to the Constitution’s applica-

tion abroad. Even by 1953, the strict territoriality ration-

ale had been significantly eroded. In the 1901 Insular

Cases, the Supreme Court held that fundamental constitu-

tional rights applied beyond U.S. shores to unincorporated

U.S. possessions. E.g., Downes v. Bidwell, 182 U.S. 244,

287, 298 (1901) (White, J., concurring). In Russian Volun-

teer Fleet v. United States, 282 U.S. 481, 491-92 (1931), the

Court recognized a Russian corporation located entirely

abroad as an “alien friend{] embraced within the terms of

the Fifth Amendment” for purposes of challenging a taking

of property by the federal government. See also Disconto

Gesellschaft v. Umbreit, 208 U.S. 570 (1908) (foreign

corporation may sue under the Fourteenth Amendment to

recover property stolen from abroad and brought to U.S.).

Foreign corporations located entirely outside the United

States are likewise entitled to due process protection, even

where their only significant connection to the U.S. is being

20

sued in our courts. Asahi Metal Industry Co., Ltd. v.

Superior Court of California, 480 U.S. 102 (1987).

Only four years after Mezei, the Court in Reid v.

Covert, 354 U.S. 1 (1957), recognized that the constitu-

tional right to jury trial encompassed U:S. citizens abroad,

and expressly overturned the theory that constitutional

protections stopped at the water’s edge. See Neuman,

Strangers to the Constitution at 93-94. Even the decision

in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990),

held only that the Fourth Amendment did not apply to the

seizure of an alien’s property occurring entirely in another

country, and Justice Kennedy’s crucial fifth vote argued

that the Constitution’s reach abroad turned on whether

such application in any given case was “impracticable and

anomalous.” Jd. at 278 (Kennedy, J., concurring). All of

these holdings directly contradict the proposition that the

Constitution as a territorial matter is somehow inapplica-

ble to parolees living in the United States, or even to

aliens on U.S. soil at the border.

iii. This Court has Cabined the Plenary

Power Doctrine Since Mezei.

In the past fifty years, the Court has also reined in the

plenary power doctrine in immigration which reached its

zenith in Mezei, by holding that Congress’ immigration

power “is subject to important constitutional limitations.”

Zadvyadas, 533 U.S. at 695 (citation omitted).

The late-nineteenth century doctrine that immigra-

tion was largely immune from judicial oversight, see cases

discussed supra, at 13, originally derived from a misread-

ing of decisions which stood only for the proposition that

immigration was a national, rather than state, power in

our federal system. See Stephen H. Legomsky, Immigra-

tion and the Judiciary: Law and Politics in Britain and

America 179-95 (1987). This misreading reflected the

21

nationalist and racist impulses of a peculiarly unattractive

era. See Cleveland, supra, at 263-65 & n.1767.

Mezei and the other Cold War immigration decisions

represented the apex of the Court’s application of this

doctrine. Since Mezei, however, the Court has progressively

recognized that the immigration power is substantially

subject to constitutional constraints. The Court has

applied ordinary due process analysis in the immigration

context, e.g., Landon v. Plasencia, 459 U.S. 21, 34 (apply-

ing the Mathews v. Eldridge balancing test). The decision

in INS v. Chadha, 462 U.S. 919 (1983), importantly

invalidated a legislative veto over an immigration statute

holding that Congress’ authority over immigration must be

implemented through “a constitutionally permissible

means.” Jd. at 941-942. In Fiallo v. Bell, 430 U.S. 787, 793

n.5 ( 1977), the Court acknowledged that there was come

“limited judicial responsibility under the Constitution

even with respect to the power of Congress to regulate the

admission and exclusion of aliens.” And in Tuan Anh

Nguyen v. INS, 533 U.S. 53 (2001), the Court applied

“conventional equal protection scrutiny” to a citi

citizenshi

statute. Jd. at 72-73." ,

All of the Court's holdings expanding due process

protections, affirming the Constitution’s application to

aliens at the border and abroad, and restricting the

plenary power doctrine have exacerbated the Mezei doc-

trine's incoherence in our constitutional system.

| 7 See also Stephen H. Legomsky, Immigration Law and the

Principle of Plenary Power, 1984 Sup. Ct. Rev. 255, 261-77 (examining

and refuting rationales for the plenary power doctrine). For further |

— of the plenary power doctrine, see sources collected supra, at

note 8. ,

22

C. Application of the Entry Fiction to Parolees

Present in the United States with Substantial

Connections to the Community Creates an In-

tolerable Constitutional Incoherence

The application of the.entry fiction to deny due proc-

ess protections to parolees who have substantial lawful

connections to this country has stretched the entry fiction

to the breaking point. The error began with the Mezei

Court’s refusal to recognize that any liberty interests arose

from Mezei’s lengthy U.S. residence. As Professor Hart

observed, after Mezei

a Mexican .. . who sneaks successfully across the

Rio Grande is entitled to the full panoply of due

process in his deportation. But ... a duly admit-

ted immigrant of twenty-five years’ standing who

has married an American wife and sired Ameri-

can children, who goes abroad as the law allows

to visit a dying parent, and who then returns

with passport and visa duly issued by an Ameri-

can consul, is entitled to nothing — and, indeed,

may be detained on an island in New York harbor

for the rest of his life if no other country can be

found to take him.

Hart, supra, at 1395 (footnote omitted).

Parolees such as Benitez” have been released into the

United States with the government’s consent, but remain

aliens on the threshold of entry in the eyes of the law for

some limited purposes. See David A. Martin, Graduated

Application of Constitutional Protections for Aliens: The

Real Meaning of Zadvydas v. Davis, 2001 Sup. Ct. Rev. 47,

" Because Benitez proceeded pro se in the district court, the

factual record regarding his circumstances is limited. Benitez was

welcomed by the United States in 1980, has a U.S. citizen brother and

sister-in-law in Florida, and has spent over thirteen years living and

working freely in the U.S.

23

99-100. This practice has continued the rank fiction that,

despite Yick Wo’s promise that the Constitution protects

all persons within the territorial jurisdiction, 118 U.S. at

369, parolees who have lived and moved within the United

States with few restrictions remain “nonpersons” for

purposes of the Due Process Clause. See Jean v. Nelson,

472 U.S. 846, 872 (1985) (Marshall, J., dissenting) (“The

broad and ominous nature of the (Mezei] dicta .. . becomes

clear when one realizes that they apply ... to [paroled]

aliens ... who literally live within our midst, [but] ...

have no more rights than those in detention.”)."

The absurdity of deeming parolees “outside” the

United States for due process purposes was starkly illus-

trated in United States ex rel. Paktorovics v. Murff, 260

F.2d 610 (2d Cir. 1958). That case addressed some of the

30,000 Hungarian refugees who had been paroled into the

United States following the failed 1956 Hungarian revolu-

tion. The court refused to apply the entry fiction to hold that

refugees who had come to the U.S. to flee Communism could

be excluded, and their families divided, based on arbitrary

or capricious grounds. Jd. at 613-14. Tue Court accordingly

required a hearing prior to the revocation of parole in

order to avoid constitutional doubt. Jd. at 614-15.

Moreover, the situation of immigrant parolees stands

in stark contrast to parole in the criminal context, where

* Indeed, the entry fiction has been applied to allow the detention

of paroled Mariel Cubans with hardened criminals in maximum

security federal penitentiaries for 10 years or more, even though the

aliens are not serving any criminal sentence. E.g., Barrera-Echavarria

v. Rison, 44 F.3d 1441, 1443-(9th Cir 1995) (en banc) (upholding

indefinite detention of Mariel Cuban detained in maximum security

federal penitentiaries a‘ Lompoc and Leavenworth); but see Rodriguez-

Fernandez v. Wilkinson, 654 F.2d 1382, 1388 (10th Cir. 1981) (declining

to apply Mezei to determine due process rights of parolees detained in

maximum security facilities).

24

this Court has rejected the theory that parole is a matter

of legislative grace that creates no liberty interests.” In

Morrissey v. Brewer, 408 U.S. 471 (1972), the Court recog-

nized that the traditional application of the right/privilege

distinction, which had viewed parole as a privilege rather

than a vested right, was no longer dispositive. Jd. at 481

(citing Graham v. Richardson, 403 U.S. 365 (1971)). Even

if incarcerated persons did not have a substantial interest

in being granted parole, 408 U.S. at 482 n.8, the “condi-

tional liberty” they enjoyed once released on parole, id. at

480 and the accompanying community ties their freedom

fostered, established interests sufficient to trigger due

process protection. Jd. at 482. See also Gagnon v. Scarpelli,

411 U.S. 778, 782 & n.4 (1973) (rejecting the principle that

“probation is an ‘act of grace’” and holding that revocation

of probation implicates liberty interests requiring the

protection of due process). It is untenable to hold that a

convicted criminal released on parole acquires some

liberty interests implicating due process, but that a

_ paroled refugee does not.

Accordingly, the Government’s effort to treat the

Mariel Cubans as “entrant alien[s] or ‘assimilated to [that]

status’ for constitutional purposes,” Mezei, 345 U.S. at 214

(alteration in the original) (citation omitted), is intolerable

in light of both their treatment by the United States and

the developments in due process and other constitutional

* Criminal parole, like parole in the immigration context, tradi-

tionally has been considered “a correctional device authorizing service

of sentence outside the penitentiary,” in which the parolee is still “in

custody” as a legal matter. Morrissey, 408 U.S. at 474-75 (citation

omitted). See also Kaplan v. Tod, 267 U.S. 228, 230 (1925) (immigrant

parolees’ status has not changed simply because their “prison bounds

were enlarged”); Zadvydas, 533 U.S. at 696 (choice for aliens who

cannot be returned is not between imprisonment and release, but

between “imprisonment and supervision under release conditions that

may not be violated”).

25

jurisprudence since Mezei. Even if this Court were to

conclude that application of the entry fiction might be

appropriate for initial applicants under some circumstances,

Mezei should not be read to withhold due process protection

from the Petitioner here, who is both a quasi-refugee, as in

the Murff case, and a long time U.S. resident.

Ill. THE COURT SHOULD REMEDY THE CON-

STITUTIONAL INCOHERENCE CREATED BY

MEZEI AND SUBJECT IMMIGRATION DETEN-

TION DECISIONS TO ORDINARY MATHEWS V.

ELDRIDGE SCRUTINY

Amici Law Professors urge that the Court take a step

toward redressing the entry fiction’s anomalous and

discordant relationship to modern due process jurispru-

dence by adopting a graduated approach to the due proc-

ess rights of aliens in removal proceedings under the

Mathews v. Eldridge balancing test. 424 U.S. 319, 334-35

(1976). Such a test would recognize that due process

applies across the board to aliens in the immigration

context, as elsewhere, and that the appropriate question is

not whether due process applies, but what process is due

under any given circumstance. Mathews, 424 U.S. at 334

(quoting Morrissey v. Brewer, 408 U.S. at 481 (“[D]ue

process is flexible and calls for such procedural protections

as the particular situation demands.”)) (alteration in

original).

Mathews, of course, requires the Court to balance the

private interest affected by governmental action, the risk

of an erroneous deprivation of such interest through the

procedures used and the probable value, if any, of addi-

tional or substitute procedural safeguards; and the gov-

ernment’s interest, including the function involved and the

fiscal and administrative burdens that the additional or

substitute procedural requirement would entail. Jd. at

335.

26

In the immigration removal context, the Mathews test

would determine what process was due by weighing both

the alien’s legal status and the nature and scope of her

affiliations with the national community, against the

government’s legitimate interests. See Martin, Graduated

Application of Constitutional Protections for Aliens, 2001

Sup. Ct. Rev. at 92-101. For example, with respect to legal

status, aliens who had been lawfully admitted into the

United States and maintained their lawful resident status

would be recognized as having greater interests at stake in

the balancing test than unadmitted aliens who were

physically in the country, parolees, or aliens presenting at

the border for the first time. With respect to community

affiliation, aliens such as Mezei or parolees like Benitez

with lengthy ties to the United States - who had worked,

lived, and raised families in our community — would be

recognized as having more substantial interests at stake

than aliens who truly presented at the border for the first

time. See United States ex rel. Paktorovics v. Murff, 260

F.2d at 613-14. But even aliens seeking initial entry would

have some due process protection. T. Alexander Aleinikoff,

Detaining Plenary Power: The Meaning and Impact of

Zadvydas v. Davis, 16 Geo. Immigr. L. J. 365, 375 (2002)

(urging Court to reorient its constitutional an»lysis to hold

that “due process applied in general to immigration

proceedings (including to initial entrants at the border)

and that the process that was due would depend on

location, status, and other factors”).

This approach would remedy the Mezei Court’s errors.

It woud relieve the Court from drawing a fictitious and

anachronistic line between whether the Constitution

applies or does not apply to aliens in a given context. It

would allow for accurate recognition of aliens’ meaningful

ties to the national community, through a flexible test for

determining what process is due. Doing away with the

fictitious divide between those who possess any constitu-

tional rights and those who possess none also would be

27

consistent with the fact that physical abuse, torture, and

civil detention of aliens by the government implicates

liberty interests under the Due Process Clause, as the

dissenters recognized in Zadvydas. See 533 U.S. at 721

(Kennedy, J., dissenting) (“both removable and inadmissible

aliens are entitled to be free from detention that is arbitrary

or capricious”); id. at 704 (Scalia, J., dissenting). The rele-

vant question no longer would be whether treatment of an

alien at the border implicates any constitutional rights, but

what process is due in any particular circumstance.

To say that aliens are entitled to due process protec-

tion under the Mathews test, moreover, does not deny the

weighty governmental interests at stake. The Mathews test

traditionally has given deference to the government’s unique

interest in avoiding burdensome procedures. Gilbert v.

Homar, 520 U.S. 924, 932-33 (1997); Mathews, 424 U.S. at

333-34. The government’s interests in controlling this—

country’s borders, enforcing our immigration laws, pre-

serving the safety of the community, and other important

governmental concerns likewise would be entitled to

substantial weight. Thus, for aliens truly presenting at the

border for the first time, the government’s interests in

controlling entry into the United States and in efficient

administration, and the alien’s less substantial interest in

entering, would typically weigh in favor of limited proce-

dural protections.

On the other hand, the interests of a paroled quasi-

refugee such as Benitez, with lengthy ties to the national

community, who was facing indefinite detention because

he could not be removed, would weigh heavily and pre-

clude detention in most circumstances, since the govern-

ment’s interest in effectuating its removal policy under

these circumstances is “weak or nonexistent.” Zadvydas,

533 U.S. at 690. In addition to the liberty interests impli-

cated by the alien’s lengthy affiliation with the United

States, the alien’s detention would trench on the most

fundamental of liberty interests. See id. (“Freedom from

28

imprisonment ... lies at the heart of the liberty that [the

Due Process Clause] protects.”); Martin, Graduated

Application of Constitutional Protections for Aliens, 2001

Sup. Ct. Rev. at 124.

This is not to say, however, that lengthy detention in

the removal context would never be available. Specific,

articulable national security concerns or a high threat of

dangerousness to the community would constitute signifi-

cant governmental interests that could warrant substan-

tial deprivations of liberty. See Zadvydas, 533 U.S. at 696

(“Neither do we consider terrorism or other special cir-

cumstances where special arguments might be made for

forms of preventive detention.”). The balancing test would

have to be weighed heavily against preventative detention,

however, and afford rigorous procedural protections. See

Zadvydas, 533 U.S. at 691 (discussing strict procedural

safeguards required for pretrial and preventive detention),

United States v. Salerno, 481 U.S. 739, 750-52 (1987)

(pretrial detention); see also Aleinikoff, Detaining Plenary

Power, 16 Geo. Immigr. L. J. at 388 (arguing that lengthy

detention of an alien subject to a final removal order must

be based on specific and stringent protections for the

detainee, with a high burden on the government for

proving dangerousness (such as “clear and convincing”

evidence), and a full opportunity to confront witnesses and

have counsel, an independent adjudicator and judicial

review). Since Mezei, the courts have developed procedural

mechanisms for considering national security concerns of

the type posed in that case. See Rafeedie v. I.N.S., 880 F.2d

506, 523 (D.C. Cir. 1989) (applying Mathews test to depor-

tation of returning resident alien denied entry on national

security grounds). See also Brief of the American Bar

Association Amicus Curiae in Support of Petitioner, Part

III (discussing national security issues in Mezei). No

specific articulable national security concerns, however,

have been remotely implicated here.

TS Oe

——

29

In short, application of the ordinary due process

balancing test to immigrant detainees would not deny the

government power to control entry, or “to remove aliens, to

subject them to supervision with conditions when released

from detention, or to incarcerate them where appropriate

for violations of those conditions.” Zadvydas, 533 U.S. at

695. It would leave no “‘unprotected spot in the Nation’s

armor.’” Id. at 695-96 (quoting Kwong Hai Chew v. Cold-

ing, 344 U.S. at 602).

Application of the Mathews balancing test is consis-

tent with the progression of this Court’s due process

jurisprudence regarding aliens for many years. See

Landon v. Plasencia, 459 U.S. at 34 (applying Mathews

balancing test to determine due process rights of returning

resident alien in exclusion proceedings, and weighing

alien’s interests at stake, including former presence in the

United States, family ties and connections to the commu-

nity, as well as government’s interest in efficient proce-

dures); Mathews v. Diaz, 426 U.S. 67, 78 (1976) (due

process protection for aliens does not require “that all

aliens must be placed in a single homogeneous legal

classification”). As this Court noted in Zadvydas, “the Due

Process Clause protects an alien subject to a final order of

deportation, though the nature of that protection may vary

depending upon status and circumstance.” 533 U.S. at 693-

94 (citations omitted) (emphasis added). Benitez offers the

Court the opportunity to continue its forward steps in

these cases by adopting a sensible framework yielding

graduated constitutional protections for different catego-

ries of aliens, which considers “how the incidents of their

status, coupled with the social reality they have experi-

enced and the community ties they enjoy, affect the consti-

tutional calculus.” Martin, Graduated Application of

Constitutional Protections for Aliens, 2001 Sup. Ct. Rev. at

137.

¢

30

CONCLUSION

For the foregoing reasons, this Court should grant

relief to petitioner.

Respectfully submitted,

MELFORD O. CLEVELAND JONATHAN J. ROSS

2222 U.S. Highway 25 So. Counsel of Record

Wilton, AL 35187 SUSMAN GODFREY L.L.P.

(205) 665-2641 1000 Louisiana Street

SARAH H. CLEVELAND Suite 5100

Houston, TX 77002

727 E. Dean Keeton Street

Austin, TX 78705

(512) 232-1720

Dated: February 24, 2004

(713) 653-7813