459 U.S. 21 (1982), 81-129, Landon v. Plasencia

Docket Nº:No. 81-129
Citation:459 U.S. 21, 103 S.Ct. 321, 74 L.Ed.2d 21
Party Name:Landon v. Plasencia
Case Date:November 15, 1982
Court:United States Supreme Court
 
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459 U.S. 21 (1982)

103 S.Ct. 321, 74 L.Ed.2d 21

Landon

v.

Plasencia

No. 81-129

United States Supreme Court

Nov. 15, 1982

Argued October 5, 1982

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Syllabus

Section 235 of the Immigration and Nationality Act of 1952 (Act) permits the Immigration and Naturalization Service (INS) to examine "all aliens" who seek "admission or readmission to" the United States and empowers immigration officers to take evidence concerning the privilege of any persons suspected of being an alien "to enter, reenter, pass through, or reside" in the United States, and to detain for further inquiry "every alien" who does not appear "to be clearly and beyond a doubt entitled to" enter. Under § 236(a), if an alien is so detained, the officer is directed to determine whether the alien "shall be allowed to enter or shall be excluded and deported." Following an exclusion hearing, the INS denied respondent, a permanent resident alien, admission to the United States when she returned from a brief visit to Mexico that involved an attempt to smuggle aliens across the border. Subsequently, respondent filed a petition for a writ of habeas corpus in Federal District Court, seeking release from the exclusion order and contending that she was entitled to have the question of her admissibility litigated in a deportation proceeding where she would be entitled to procedural protections and substantive rights not available in exclusion proceedings. The District Court vacated the INS's decision, instructing it to proceed against respondent, if at all, only in deportation proceedings. The Court of Appeals affirmed.

Held:

1. The INS had statutory authority to proceed in an exclusion hearing to determine whether respondent was attempting to "enter" the United States and whether she was excludable. The language and history of the Act both clearly reflect a congressional intent that, whether or not the alien is a permanent resident, admissibility shall be determined in an exclusion hearing. Nothing in the language or history suggests that respondent's status as a permanent resident entitles her to a suspension of the exclusion hearing or requires the INS to proceed only through a deportation hearing. Pp. 25-28.

2. Contrary to the view of the Court of Appeals, it was not "circular" and "unfair" to allow the INS to litigate the question of "entry" in exclusion

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proceedings simply because that question also went to the merits of respondent's admissibility. Nor did the use of exclusion proceedings violate either the "scope" or "spirit" of Rosenberg v. Fleuti, 374 U.S. 449, where the Court held that an "innocent, casual, and brief excursion" by a resident alien outside this country's borders would not subject him to the consequences of an "entry" on his return. Pp. 28-32.

3. Although, under the circumstances, respondent is entitled to due process in her exclusion hearing, the case will be remanded [103 S.Ct. 324] to the Court of Appeals to consider whether she was accorded due process, because the factors relevant to due process analysis have not been adequately presented here to permit an assessment of the sufficiency of the hearing. Pp. 32-37.

637 F.2d 1286, reversed and remanded.

O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. MARSHALL, J., filed an opinion concurring in part and dissenting in part,post, p. 37.

O'CONNOR, J., lead opinion

JUSTICE O'CONNOR delivered the opinion of the Court.

Following an exclusion hearing, the Immigration and Naturalization Service (INS) denied the respondent, a permanent resident alien, admission to the United States when she attempted to return from a brief visit abroad. Reviewing the respondent's subsequent petition for a writ of habeas corpus, the Court of Appeals vacated the decision, holding that the question whether the respondent was attempting to "enter" the United States could be litigated only in a deportation hearing, and not in an exclusion hearing. Because we conclude that the INS has statutory authority to proceed in an exclusion hearing, we reverse the judgment below. We remand to allow the Court of Appeals to consider whether the respondent, a permanent resident alien, was accorded due process at the exclusion hearing.

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I

Respondent Maria Antonieta Plasencia, a citizen of El Salvador, entered the United States as a permanent resident alien in March, 1970. She established a home in Los Angeles with her husband, a United States citizen, and their minor children. On June 27, 1975, she and her husband traveled to Tijuana, Mexico. During their brief stay in Mexico, they met with several Mexican and Salvadoran nationals and made arrangements to assist their illegal entry into the United States. She agreed to transport the aliens to Los Angeles and furnished some of the aliens with alien registration receipt cards that belonged to her children. When she and her husband attempted to cross the international border at 9:27 on the evening of June 29, 1975, an INS officer at the port of entry found six nonresident aliens in the Plasencias' car. The INS detained the respondent for further inquiry pursuant to § 235(b) of the Immigration and Nationality Act of 1952 (Act), 66 Stat. 182, as amended, 8 U.S.C. § 1101 et seq.1 In a notice dated June 30, 1975, the INS charged her under § 212(a)(31) of the Act, 8 U.S.C. § 1182(a)(31), which provides for the exclusion of any alien seeking admission

who at any time shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law,

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and gave notice that it would hold an exclusion hearing at 11 a.m. on June 30, 1975.2

[103 S.Ct. 325] An Immigration Law Judge conducted the scheduled exclusion hearing. After hearing testimony from the respondent, her husband, and three of the aliens found in the Plasencias' car, the judge found "clear, convincing and unequivocal" evidence that the respondent did "knowingly and for gain encourage, induce, assist, abet, or aid nonresident aliens" to enter or try to enter the United States in violation of law. He also found that the respondent's trip to Mexico was a "meaningful departure" from the United States, and that her return to this country was therefore an "entry" within the meaning of § 101(a)(13), 8 U.S.C. § 1101(a)(13).3

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On the basis of these findings, he ordered her "excluded and deported."

After the Board of Immigration Appeals (BIA) dismissed her administrative appeal and denied her motion to reopen the proceeding, the respondent filed a petition for a writ of habeas corpus in the United States District Court, seeking release from the exclusion and deportation order. The Magistrate initially proposed a finding that, on the basis of evidence adduced at the exclusion hearing, "a meaningful departure did not occur . . . , and that therefore [the respondent] is entitled to a deportation hearing." After considering the Government's objections, the Magistrate declared that the Government could relitigate the question of "entry" at the deportation hearing. The District Court adopted the Magistrate's final report and recommendation and vacated the decision of the BIA, instructing the INS to proceed against respondent, if at all, only in deportation proceedings.

The Court of Appeals for the Ninth Circuit affirmed. Plasencia v. Sureck, 637 F.2d 1286 (1980).

II

The immigration laws create two types of proceedings in which aliens can be denied the hospitality of the United States: deportation hearings and exclusion hearings. See generally Leng May Ma v. Barber, 357 U.S. 185, 187 (1958). The deportation hearing is the usual means of proceeding against an alien already physically in the United States, and the exclusion hearing is the usual means of proceeding against an alien outside the United States seeking admission. The two types of proceedings differ in a number of ways. See generally Maldonado-Sandoval v. INS, 518 F.2d 278, 280, n. 3 (CA9 1975). An exclusion proceeding is usually held at the port of entry, while a deportation hearing is usually held near the residence of the alien within the United

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States, see 1A C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.6c (rev. ed.1981). The regulations of the Attorney General, issued under the authority of § 242(b), 8 U.S.C. § 1252(b), require in most deportation proceedings that the alien be given seven days' notice of the charges against him, 8 CFR § 242.1(b) (1982), while there is no [103 S.Ct. 326] requirement of advance notice of the charges for an alien subject to exclusion proceedings. Indeed, the BIA has held that,

as long as the applicant is informed of the issues confronting him at some point in the hearing, and he is given a reasonable opportunity to meet them,

no further notice is necessary. In re Salazar, 17 I. & N.Dec. 167, 169 (1979). Also, if the INS prevails in a deportation proceeding, the alien may appeal directly to the court of appeals, § 106(a), 75 Stat. 651, as amended, 8 U.S.C. § 1105a(a) (1976 ed. and Supp. V), while the alien can challenge an exclusion order only by a petition for a writ of habeas corpus, § 106(b), 75 Stat. 653, 8 U.S.C. § 1105a(b). Finally, the alien who loses his right to reside in the United States in a deportation hearing has a number of substantive rights not available to the alien who is denied admission in an exclusion proceeding: he can, within certain limits, designate the country of deportation, § 243(a), 8 U.S.C. § 1253(a) (1976 ed. and Supp. V); he may be able to depart voluntarily, § 244(e), 8...

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