Immigration & National Security Supreme Court Cases

Rules for foreign nationals coming to the United States are strict and labyrinthine. The federal government regulates immigration through the Immigration and Nationality Act, which provides grounds for admitting, excluding, and removing foreign nationals. In the late 19th century, the Supreme Court developed the “plenary power” doctrine. This mandates judicial deference to immigration policies devised by the legislative and executive branches.

Since deportation is a civil penalty, fewer protections apply to foreign nationals in removal proceedings than to defendants in criminal trials. Removal proceedings still must comply with due process, though. In other contexts, the Supreme Court has found that foreign nationals may be entitled to certain constitutional safeguards, such as equal protection.

The political branches also receive great deference in situations involving national security, especially in wartime. During World War II, for example, the Supreme Court upheld the Japanese-American internment policy in one of its most infamous decisions. However, a group of cases during the war on terror suggested some limits to this deference.

Below is a selection of Supreme Court cases involving immigration and national security, arranged from newest to oldest.

Johnson v. Arteaga-Martinez (2022)

The government is not required to provide foreign nationals detained for six months with bond hearings in which the government bears the burden of proving, by clear and convincing evidence, that a foreign national poses a flight risk or a danger to the community.

Pereida v. Wilkinson (2021)

A non-permanent resident seeking to cancel a lawful removal order has not met the burden of showing that they have not been convicted of a disqualifying offense when the record shows that they have been convicted under a statute listing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of the conviction.

DHS v. Regents of the University of California (2020)

The DHS decision to rescind the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious under the Administrative Procedure Act.

Trump v. Hawaii (2018)

The President has broad discretion to suspend the entry of foreign nationals into the U.S. By entrusting to the President the decisions of whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions, Congress has vested the President with ample power to impose entry restrictions in addition to those elsewhere enumerated in the INA.

Jennings v. Rodriguez (2018)

Detained foreign nationals do not have a right to periodic bond hearings during the course of their detention.

Ziglar v. Abbasi (2017)

There is a balance to be struck between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the nation in times of great peril. The proper balance is for Congress to undertake.

Luna Torres v. Lynch (2016)

A state offense is an aggravated felony for immigration purposes when it has every element of a listed federal crime, except an element requiring a connection to interstate or foreign commerce.

Clapper v. Amnesty Int’l USA (2013)

The Court has often found a lack of standing in cases in which the judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.

Arizona v. U.S. (2012)

Certain provisions of an Arizona law affecting undocumented immigrants were preempted by federal law.

Vartelas v. Holder (2012)

The impact of travel abroad on the permanent resident status of a foreign national with a criminal conviction is determined by the legal regime in force at the time of the conviction.

Chamber of Commerce v. Whiting (2011)

An Arizona law was not preempted when it instructed courts to suspend or revoke the business licenses of in-state employers that employ unauthorized aliens.

Holder v. Humanitarian Law Project (2010)

When it comes to collecting evidence and drawing factual inferences in the area of national security, the lack of competence on the part of the courts is marked, and respect for the government’s conclusions is appropriate.

Padilla v. Kentucky (2010)

A criminal defense attorney must inform a non-citizen client whether their plea carries a risk of deportation.

Boumediene v. Bush (2008)

In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches. However, security also subsists in fidelity to freedom’s first principles, such as freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.

Lopez v. Gonzales (2006)

Conduct that is a felony under state law but a misdemeanor under the federal Controlled Substances Act is not a felony punishable under the Controlled Substances Act for INA purposes.

Hamdan v. Rumsfeld (2006)

Even if a detainee at Guantanamo Bay is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment.

Rasul v. Bush (2004)

U.S. courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.

Hamdi v. Rumsfeld (2004)

Due process demands that a citizen held in the U.S. as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

Demore v. Kim (2003)

Although the Fifth Amendment entitles foreign nationals to due process in deportation proceedings, detention during these proceedings is a constitutionally valid aspect of the process, even when detention is challenged on the basis that there has been no finding that a foreign national is unlikely to appear for their deportation proceedings.

Zadvydas v. Davis (2001)

The post-removal period detention statute implicitly limits the detention of a foreign national to a period reasonably necessary to bring about their removal from the U.S. and does not permit indefinite detention. After a presumptively reasonable six-month period, once a foreign national provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the government must provide evidence sufficient to rebut that showing.

INS v. St. Cyr (2001)

The Suspension Clause of the Constitution, which protects the privilege of the habeas corpus writ, requires some judicial intervention in deportation cases. Habeas courts have answered questions of law in challenges to executive interpretations of immigration law and questions of law arising in the discretionary relief context.

Reno v. AADC (1999)

When a foreign national’s continuing presence in the U.S. violates immigration laws, the government does not offend the Constitution by deporting the foreign national for the additional reason that they are believed to be a member of an organization that supports terrorist activity. More generally, when deportation is sought because of an act committed by the foreign national, they are not being punished for that act but are merely being held to the terms under which they were admitted.

INS v. Elias-Zacarias (1992)

A guerrilla organization’s attempt to coerce a person into performing military service does not necessarily constitute persecution on account of political opinion under Section 101(a)(42) of the INA.

U.S. v. Verdugo-Urquidez (1990)

The Fourth Amendment does not apply to the search and seizure by U.S. agents of property owned by a non-resident foreign national that is located in a foreign country.

INS v. Cardoza-Fonseca (1987)

The “clear probability” standard of proof for withholding of removal does not govern asylum applications.

INS v. Lopez-Mendoza (1984)

Consistent with the civil nature of a deportation proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing. (This case involved the Fourth Amendment and the exclusionary rule.)

INS v. Delgado (1984)

Individual questioning of employees by INS agents concerning their citizenship did not amount to a detention or seizure under the Fourth Amendment.

Landon v. Plasencia (1982)

The role of the judiciary is limited to determining whether the procedures used in excluding a returning lawful permanent resident meet the essential standard of fairness under the Due Process Clause. A court must not impose procedures that merely displace congressional choices of policy.

Plyler v. Doe (1982)

A state law violated the Equal Protection Clause when it withheld from local school districts any state funds for the education of children who were not legally admitted into the U.S. and authorized local school districts to deny enrollment to these children.

Fedorenko v. U.S. (1981)

There must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship. Failure to comply with any of these conditions renders the certificate of citizenship illegally procured, and naturalization that is unlawfully procured can be set aside.

Vance v. Terrazas (1980)

In establishing loss of citizenship, the government must prove an intent to surrender U.S. citizenship, rather than just the voluntary commission of an expatriating act, such as swearing allegiance to a foreign nation.

Fiallo v. Bell (1977)

Provisions of the Immigration and Nationality Act are not unconstitutional for excluding the relationship between an illegitimate child and their natural father (as opposed to their natural mother) from the special preference status accorded by the INA to the child or parent of a U.S. citizen or lawful permanent resident.

Mathews v. Diaz (1976)

The fact that a federal law treats foreign nationals differently from citizens does not by itself imply that such disparate treatment is invidious. Congress has broad power over immigration and naturalization and regularly makes rules regarding foreign nationals that would be unacceptable if applied to citizens.

Kleindienst v. Mandel (1972)

When the Attorney General decides for a legitimate and bona fide reason not to waive the statutory exclusion of a foreign national under Section 212(a)(28) of the INA, courts will not look behind this decision or weigh it against the First Amendment interests of those who would personally communicate with the foreign national.

Graham v. Richardson (1971)

State statutes that deny welfare benefits to resident foreign nationals, or to foreign nationals who have not resided in the U.S. for a specified number of years, violate the Equal Protection Clause and encroach on the exclusive federal power over the entrance and residence of foreign nationals.

Afroyim v. Rusk (1967)

Congress has no power under the Constitution to divest a person of their U.S. citizenship, absent their voluntary renunciation of it. (This decision overruled Perez.)

Trop v. Dulles (1958)

Citizenship is not subject to the general powers of the national government, and therefore it cannot be divested in the exercise of those powers.

Perez v. Brownell (1958)

Congress had the authority under its power to regulate foreign relations to provide that anyone who votes in a foreign political election shall lose their U.S. citizenship.

Shaughnessy v. U.S. ex rel. Mezei (1953)

Whatever the procedure authorized by Congress is, it is due process as far as a foreign national denied entry is concerned when they are on the threshold of initial entry.

U.S. v. Reynolds (1953)

Even the most compelling necessity cannot overcome a claim of the military secrets privilege if the court is ultimately satisfied that military secrets are at stake.

Kwong Hai Chew v. Colding (1953)

While it may be that a resident foreign national’s ultimate right to remain in the U.S. is subject to alteration by statute or authorized regulation because of a voyage undertaken by them to foreign ports, it does not follow that they are thereby deprived of their constitutional right to procedural due process. (In other words, a returning resident foreign national is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude them.)

Youngstown Sheet and Tube Co. v. Sawyer (1952)

The President did not have the authority to issue an executive order directing the Secretary of Commerce to seize and operate steel mills to avert a nationwide strike of steel workers that would allegedly jeopardize national defense.

Harisiades v. Shaughnessy (1952)

Congress could authorize the deportation of a legally resident foreign national because of membership in the Communist Party, even though their membership terminated before the enactment of the law. Immigration policy is so exclusively entrusted to the political branches of the government that it is largely immune from judicial inquiry or interference.

U.S. ex rel. Knauff v. Shaughnessy (1950)

Admission of foreign nationals to the U.S. is a privilege granted by the sovereign U.S. government and must be exercised in accordance with the procedure that the U.S. provides. It is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the government to exclude a foreign national.

Girouard v. U.S. (1946)

A foreign national who is willing to take the oath of allegiance and to serve in the army as a non-combatant but who, due to religious scruples, is unwilling to bear arms in defense of the U.S. may be admitted to citizenship.

Cramer v. U.S. (1945)

When an indictment charges treason by giving aid and comfort to enemies of the U.S., this requires proof of an overt act by the accused that is sufficient in its setting to sustain a finding that they actually gave aid and comfort to the enemy. Simply meeting and talking with the enemy is not enough.

Korematsu v. U.S. (1944)

All legal restrictions that curtail the civil rights of a single racial group are immediately suspect and must be subjected to the most rigid scrutiny. However, pressing public necessity may sometimes justify the existence of such restrictions.

Ex parte Quirin (1942)

The Fifth and Sixth Amendments do not abolish trials by military tribunals or impose on these tribunals the necessity of proceeding against unlawful enemy belligerents only on presentment and trial by jury.

U.S. v. Curtiss-Wright Export Corp. (1936)

Congressional legislation that is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction that would not be admissible were domestic affairs alone involved.

Selective Draft Law Cases (1918)

The grant to Congress of the power to raise and support armies includes the power to compel military service.

Bugajewitz v. Adams (1913)

Deportation is not a punishment but instead a refusal by the government to harbor persons whom it does not want. The constitutional prohibition on ex post facto laws has no application to deportation.

Yamataya v. Fisher (1903)

When a foreign national had notice, although not formal, of the investigation instituted for the purpose of ascertaining whether they were illegally in the country, the courts cannot interfere with the executive officers conducting it.

U.S. v. Wong Kim Ark (1898)

The Fourteenth Amendment affirms the rule of citizenship by birth within the territory, in the allegiance, and under the protection of the U.S., including most children born here to resident foreign nationals.

Wong Wing v. U.S. (1896)

All persons within the territory of the U.S. are entitled to the protections of the Fifth and Sixth Amendments. Foreign nationals cannot be deprived of life, liberty, or property without due process of law, nor may they be held to answer for a “capital or other infamous crime” unless on a presentment or indictment of a grand jury.

Fong Yue Ting v. U.S. (1893)

An order of deportation is not a punishment for a crime, and this does not deprive a foreign national of life, liberty, or property without due process of law. Deciding whether foreign nationals may be permitted to stay in the U.S. falls within the authority of the political departments of the government, and courts cannot express opinions on the wisdom, policy, or justice of measures enacted by Congress in this area.

Nishimura Ekiu v. U.S. (1892)

It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the U.S., nor even been admitted into the U.S. pursuant to law, shall be permitted to enter in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government.

Chae Chan Ping v. U.S. (1889)

The power of Congress to exclude foreign nationals from the U.S. is an incident of sovereignty that cannot be surrendered by the treaty-making power.

Yick Wo v. Hopkins (1886)

The Fourteenth Amendment extends to all persons within the territorial jurisdiction of the U.S. Thus, foreign nationals who have the right to temporarily or permanently reside in the U.S. are entitled to equal protection.

Elk v. Wilkins (1884)

There are only two sources of citizenship: birth and naturalization. People not subject to the jurisdiction of the U.S. at the time of birth cannot become so afterwards except by being naturalized.