Deporation: Procedural Rights of Reentering Permanent Resident Aliens Subjected to Exclusion Hearings
![handle is hein.journals/flr51 and id is 1357 raw text is: DEPORTATION: PROCEDURAL RIGHTS OF
REENTERING PERMANENT RESIDENT ALIENS
SUBJECTED TO EXCLUSION HEARINGS
INTRODUCTION
Aliens admitted for permanent residence' in the United States enjoy
substantial constitutional protections.2 Despite the extent of these pro-
tections, permanent residents are subject to deportation by the Immi-
gration and Naturalization Service (INS) in certain circumstances.
The deportation procedures3 of the INS raise the issue whether these
constitutional protections accompany and return with a permanent
resident who temporarily leaves the country.
Deportability4 is determined at either an exclusion hearing, if the
alien is apprehended at the border, or at an expulsion hearing, if the
1. The term permanent resident as used in this Note designates a lawful
permanent resident alien, defined by statute as one who maintains the status of
having been lawfully accorded the privilege of residing permanently in the United
States as an immigrant in accordance with the immigration laws, such status not
having changed. 8 U.S.C. § 1101(20) (1976); see 8 C.F.R. §§ 101.1-.3 (1982). An
alien may apply for a visa for permanent residence, which is issued at United States
consulates or embassies after the applicant has fulfilled the requirements of the visa
procedure. H. Kapner & I. Field, Not For Illegal Aliens Only 2 (1978). A nonimmi-
grant, such as a visitor, may also become a permanent resident by having his status
adjusted within the United States. See 8 C.F.R. § 245.1 (1982).
2. See infra pt. III. Permanent resident aliens, by virtue of their acquired
status, enjoy significant constitutional protection in other contexts. See Hampton v.
Mow Sun Wong, 426 U.S. 88, 116-17 (1976) (barring'permanent residents from civil
service jobs violates due process); Yick Wo v. Hopkins, 118 U.S. 356, 368-69 (1886)
(recognizing that Chinese permanent residents are entitled to equal protection).
Despite judicial and statutory declarations, however, these aliens are still not coequal
in some respects. 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure
§ 1.31 (1982).
3. This Note relates only to aliens who allegedly violate provisions of the Immi-
gration and Nationality Act, 8 U.S.C. §§ 1101-1557 (1976 & Supp. V 1981), and
would therefore be subject to expulsion or exclusion procedures.
4. One may be deported from the United States after having been found
excludable or expellable. Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.4 (1953).
'[E]xclusion' means preventing someone from entering the United States who is
actually outside the United States or is treated as being so. 'Expulsion' means forcing
someone out of the United States who is actually within the United States or is treated
as being so. Id. While various sources use the term deportation synonymously
with expulsion, see Rosenberg v. Fleuti, 374 U.S. 449, 450-51 (1963) (deporta-
tion proceeding used to denote expulsion proceeding); 8 U.S.C. § 1251 (1976 &
Supp. V 1981) (same); Note, Exclusion and Deportation of Resident Aliens: The Re-
Entry Doctrine and the Need for Reform, 13 San Diego L. Rev. 192, 192 (1975)
(same), this Note utilizes the term only in its generic sense. Thus, the term expulsion
hearing refers solely to proceedings within the United States, and the term exclu-
sion hearing refers solely to proceedings at the border.
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Deporation: Procedural Rights of Reentering Permanent Resident Aliens Subjected to Exclusion Hearings
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