                     Immigration Laws and Iranian Students

T h e P resid en t has a u th o rity u n d er th e Im m ig ratio n and N atio n ality A c t (IN A ) to lim it or
   h alt e n try o f Iran ian n ationals in to th e U nited S tates. H e also has av ailab le to him
   u n d er th at sta tu te a n u m b er o f o p tio n s by w h ic h he m ay re g u la te th e c o n d itio n s u n d er
   w h ich Iran ian n atio n als a lre a d y p resen t in th e c o u n tr y rem ain h e re o r d ep art.

W h ile th e m a tte r is n o t free from d o u b t, a reaso n ab le read in g o f § 241(a)(7) o f th e IN A
  w o u ld allo w th e A tto rn e y G e n e ra l to tak e in to a c c o u n t ad v e rse foreign p o licy c o n s e ­
  q u en ces in d e te rm in in g w h e th e r an alien ’s c o n tin u e d p resen c e in th e U n ited S tates is
  p reju d icial to th e p u b lic in terest, so as to re n d e r him o r h e r d e p o rta b le . H o w e v e r, it
  w o u ld be c o n stitu tio n a lly in a p p ro p ria te to identify m em bers o f th e class o f d e p o rta b le
  p erso n s in term s o f th eir exercise o f F irst A m en d m en t rights.

B oth th e IN A an d th e C o n stitu tio n re q u ire th a t all p erso n s be g iv e n a h e arin g an d an
  o p p o rtu n ity fo r ju d ic ia l rev iew b e fo re being d e p o rte d ; h o w e v e r, n e ith e r th e IN A no r
  th e C o n stitu tio n w o u ld p re c lu d e th e A tto rn e y G e n e ra l o r C o n g re ss from tak in g actio n
  d ire c te d so lely at Iran ian nationals, p a rtic u la rly in lig h t o f th e serio u s national se cu rity
  an d foreign p o licy in terests at sta k e in th e p resen t crisis.


                                                                                       N ovem ber 11, 1979

 M EM O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L

   This memorandum has been prepared by this Office and the Immi­
gration and Naturalization Service (IN S) G eneral C ounsel’s office. It
addresses the statutory provisions regarding entry and deportation o f
aliens as they pertain to Iranian nationals in the United States. It also
examines the constitutional authority o f Congress to enact legislation
affecting Iranians residing in, or attem pting to enter, this country. W e
conclude: (1) that the President presently possesses the authority to halt
entry o f Iranians into the United States; (2) that, w hile the m atter is
largely unprecedented and would raise nonfrivolous constitutional ques­
tions, the A ttorney G eneral may be able to prom ulgate standards w hich
w hich w ould render deportable aliens whose presence in this country is
prejudicial to the public interest and threatens the conduct o f foreign
affairs; (3) that the immigration laws and the Constitution require that
all persons receive a hearing and judicial review before being deported;
(4) that it is therefore unlikely that deportations could be effected with
sufficient immediacy to have an impact on the present crisis in Tehran;
(5) that the A ttorney G eneral could require all Iranian nonim migrant
students to dem onstrate to the IN S that they are “ in status” (i.e., not
deportable); (6) that regulations and statutes directed solely at Iranian

                                                        133
nationals would not violate the Constitution; and (7) that Congress has
the authority to bar from entering and to deport Iranians.

                                     I. Population of Iranians

    Iranian nationals in the United States may fall into four categories:
 (1) lawful perm anent residents; (2) nonimmigrants; (3) parolees; and (4)
aliens in the United States in violation o f law.
    Law ful perm anent residents as defined in § 101(a)(20) of the Im m igra­
 tion and Nationality A ct (IN A o r A ct), 8 U.S.C. § 1101(a)(20), are
aliens w ho have entered legally with im migrant visas or who have
adjusted status while in the United States. A lawful perm anent resident
may remain in the United States indefinitely unless he commits miscon­
duct covered by the deportation grounds set forth in § 241(a) o f the
Act, 8 U.S.C. § 1251(a).
    Nonim m igrants are aliens within one o f the tw elve categories speci­
fied in § 101(a)(15) o f the A ct, 8 U.S.C. § 1101(a)(15). Generally,
nonim m igrants are adm itted for a particular purpose for a period of
time, and under such conditions as the A ttorney G eneral may specify.
§ 214(a) o f the IN A , 8 U.S.C. § 1184(a). As o f August 30, 1979 there
w ere approxim ately 130,000 nonim m igrants from Iran in the United
States. O f these, approxim ately 50,000 w ere nonim migrant students as
defined in § 101(a)(15) o f the A ct, 8 U.S.C. § 1101(a)(15).
    A few Iranians may be in the United States as parolees who were
allowed to enter tem porarily for em ergency reasons or for reasons
deemed strictly in the public interest in accordance with the authority
o f the A ttorney G eneral under § 212(d)(5) o f the A ct, 8 U.S.C.
§ 1182(d)(5). Parolees are not considered to have been “adm itted” to
the United States and may be ordered to depart in an exclusion pro­
ceeding rather than a deportation proceeding.
    Iranians w ho entered the country illegally o r w ho have failed to
maintain nonim migrant status would be considered to be here in viola­
tion o f law and w ould be prim a facie deportable.

                            II. Present Policy Toward Iranians

  As a result o f discussions between the State D epartm ent and the
Justice D epartm ent following the fall o f the Shah, IN S has instituted a
practice o f granting “extended voluntary departure” to Iranians in the
United States w ho may be out o f status but w ho have expressed an
unwillingness to return to Ira n .1 An alien granted extended voluntary
departure is effectively perm itted to stay in this country for an undeter­
mined period o f time. In addition, INS has deferred inspection of
potentially excludable Iranians w ho claim political asylum. On the basis

   'Ira n ia n s w ho have been co n v icted o f crim es w ithin the U nited States are not included in this
policy.


                                                   134
of representations made by the State D epartm ent, the foregoing policies
have been extended until June 1, 1980. Therefore, no Iranians are
currently being deported from the United States against their will.
Iranians who have been allowed to remain under these policies may be
granted work authorization by the INS. A t present, approxim ately
4,400 Iranians have been granted extended voluntary departure under
the INS policy.
   T he original rationale for the policy o f not enforcing departure was
that the State D epartm ent was unsure about conditions in Iran follow ­
ing the fall o f the Shah’s governm ent. By not taking a position with
respect to involuntary return o f Iranians, the State D epartm ent believed
that it would have an opportunity to allow the situation in Iran to
stabilize. In addition, claims for asylum w ere not determ ined because it
was believed that statem ents regarding the likelihood o f persecution in
Iran may have had an adverse im pact on the establishment o f diplo­
matic relations w ith the new Iranian governm ent.
   It should also be noted that since January 1, 1979, all nonimmigrant
students, including Iranians, have been eligible for “duration o f status”
under INS regulations. 8 C .F.R . § 214.2(0(2) (1979). A student adm itted
for “duration o f status” has no date specified for the expiration o f his
stay, but may remain for so long as he continues to be a full-time
student in good standing at his school.

             III. Statutory Entry and Deportation Procedures

   T he IN A provides elaborate procedures regarding entry and expul­
sion o f aliens. As discussed below, several o f the procedures are consti­
tutionally required.

A. Entry

   Immigrants may be adm itted into the United States if they possess a
valid visa and are not otherw ise excludable under §212 o f the IN A , 8
U.S.C. §1182. Section 212 lists 33 grounds for exclusion including
insanity, drug addiction, pauperism, conviction o f a crim e involving
moral turpitude, prostitution, false procurem ent o f docum entation or
fraud, advocacy o f anarchism and communism, or engaging in subver­
sive activities. Nonim m igrants (e.g., students, visitors, consular officials,
foreign press) are adm itted upon conditions and for such time as estab­
lished by regulations by the A ttorney General. § 214 o f the IN A , 8
U.S.C. § 1184.
   Aliens seeking entry are inspected by immigration officers w ho may
detain for further inquiry aliens “ w ho may not appear . . . to be clearly
and beyond a doubt entitled” to enter. § 235(b) o f the IN A , 8 U.S.C.
§ 1225(b). Such further inquiry occurs before a special inquiry officer
(immigration judge), w ho is authorized to administer oaths, present and
receive evidence, examine and cross-examine the alien or witnesses.

                                     135
T he alien is entitled to representation by counsel, and a com plete
record o f the proceedings must be kept. §§ 235, 236, 292 o f the IN A , 8
U.S.C. §§ 1225, 1226, 1362. A decision excluding an alien may be
appealed to the Board o f Imm igration Appeals, an independent quasi­
judicial appellate body created by the A ttorney G eneral within the
D epartm ent o f Justice. 8 C .F.R . §3.1. Board decisions in exclusion
cases are reviewable in federal district court by habeas corpus.
   T he IN A gives the President authority to “suspend the entry o f all
aliens or any class o f aliens as immigrant o r nonimmigrants, o r impose
on the entry o f aliens any restrictions he may deem to be appropriate”
upon a finding that entry “w ould be detrim ental to the interests o f the
United States.” § 2 12(0 o f the IN A , 8 U.S.C. §1182(0- See also
§ 215(a)(1) o f the IN A , 8 U.S.C. § 1185(a)(1), as am ended by Pub. L.
No. 95-426, § 707, 92 Stat. 992 (1978).

B. Deportation

   T he IN A specifies 19 grounds for deportation o f aliens. These in­
clude excludability at time o f entry, conviction o f a crim e involving
m oral turpitude, advocacy o f anarchism o r communism, involvem ent in
narcotic use or sale, and failure to maintain status o r to com ply with
any condition o f status. A deportable alien may be arrested upon a
w arrant o f the A ttorney G eneral and held in custody o r released on
bond. M ost deportation cases are initiated by the issuance o f an order
to show cause w ithout the issuance o f a w arrant o f arrest. A t the
ensuing deportation proceeding, conducted by a special inquiry officer,
the alien is entitled to notice o f the charges against him and o f the time
and place o f the proceedings, to counsel, and to an opportunity to
examine the evidence against him, present evidence in his ow n behalf
and cross examine governm ent witnesses. § 242 of the IN A , 8 U.S.C.
§ 1252. T h e G overnm ent has the burden o f proving deportability by
clear, convincing, and unequivocal evidence. Woodby v. INS, 385 U.S.
276 (1966). T he decision o f the special inquiry officer is appealable to
the Board o f Im m igration Appeals (BIA). Thereafter, judicial review is
available in the court o f appeals. § 106(a) o f the A ct, 8 U.S.C.
§ 1105 (a). A ny alien held in custody under an order o f deportation
may also obtain judicial review through habeas corpus proceedings.
   M ost o f the statutory provisions establishing hearing rights are consti­
tutionally required. Since at least 1903, it has been recognized that the
D ue Process Clause o f the Constitution applies to deportation proceed­
ings. T h e Japanese Im m igrant Case, 189 U.S. 86, 100-02 (1903). Wong
Yang Sung v. M cGrath, 339 U.S. 33, 49-51 (1950); Kwong H ai Chew v.
Colding, 344 U.S. 590, 596-98 (1953). W hile C ongress may have plenary
authority to determ ine w hat classes o f aliens must leave the United
States, see below, deportable aliens may not be expelled w ithout a

                                    136
hearing. H ow ever, the provision o f a right o f appeal to the BIA and
then to a federal court o f appeals is not constitutionally required.

 C. Claim s fo r Asylum

  An alien in either exclusion or deportation proceedings may apply
for asylum under INS regulation if he claims that he would be perse­
cuted in his home country on the basis o f race, religion, nationality,
political opinions, o r membership in a particular social group. 8 C.F.R.
§ 105 (1979). See also § 243(h) o f the A ct, 8 U.S.C. § 1253(h).

       IV. Grounds for Deportation and Exclusion Under Current Law

A. Deportation

 1. Lawful permanent resident aliens

   Potential grounds for deportation o f Iranian nationals presently in the
 United States are contained in tw o subsections of the IN A . § 241(a)(4)
and (7) o f the IN A , 8 U.S.C. § 1251(a)(4), (7). Section 241(a)(4) pro­
vides for the deportation o f an alien w ho within 5 years after entry into
the United States is convicted o f a crim e involving moral turpitude and
is sentenced to a year or m ore in prison, o r who is convicted o f tw o
crimes involving moral turpitude at any time after entry. This section
would become operative, for example, if an Iranian national is con­
victed o f com m itting a crim e o f violence in this country.
   Section 241(a)(7), 8 U.S.C. § 1251(a)(7), provides for the deportation
of an alien w ho has engaged in, or has the purpose o f engaging in,
activities described in §212(a)(27) of the IN A , 8 U.S.C. § 1182(a)(27).
Section 212(a)(27) renders excludable any alien w ho the A ttorney G en­
eral has reason to believe seeks to enter the United States to engage in
activities “which would be prejudicial to the public interest, o r endan­
ger the welfare, safety, or security o f the United States.” T he BIA has
indicated, in dicta, that § 212(a)(27) “is broad enough to apply to others
than subversives.” M atter o f M cD onald and Brewster, 15 I&N Dec. 203,
205 (BIA 1975) (refusing to bar entry o f persons carrying six marijuana
cigarettes).2 In that decision, the Board interpreted §212(a)(27) to bar
entry o f persons w ho seek to engage in activities “inimicable to the
internal security o f the United States.” Id. This Office has opined that
this section would authorize the exclusion o f six Rhodesian officials
seeking to enter the United States to attend an agricultural convention;
such entry was arguably deemed prejudicial to this nation’s conduct o f
foreign affairs.

   'S e e In the M atter o f M., 5 I&N D ec. 248 (BIA 1953) (refusing to bar entry o f pacifist under
§ (a)(27)).


                                                137
    T he scope o f § 241(a)(7) is unclear. T he leading treatise states that
 the section’s “expansive and undefined pow er has not yet been invoked
 in any actual case.” 1A G ordon & Rosenfield, Im m igration Law and
 P rocedure § 4 .10c, at p. 4-93 (1979). A reasonable reading of the
section, supported by its legislative history, w ould allow the A ttorney
G eneral to take into account serious adverse foreign policy conse­
quences in determ ining w hether an alien’s stay here is prejudicial to the
public interest. A rguably, the A ttorney G eneral, perhaps upon advice
from the Secretary o f State, could determ ine that the presence of
particular Iranian nationals severely injures the ability o f this country to
conduct foreign policy and threatens the m aintenance o f public order.
T he question is not free from doubt, how ever. A lthough this Office has
opined heretofore that a broad reading o f this statute is w arranted, a
substantial argum ent can be made that the “public interest” ground for
deporting aliens was intended by C ongress to give the A ttorney G en­
eral the pow er to deport only w here the conduct o f the alien is inimical
to the public interest, rather than w here his presence is thought prejudi­
cial to the United States. If that reading o f the statute is co rrec t,3 then
the operation o f this provision w ould require a determ ination of the
type o f activity that is cause for deportation. We have serious doubt
w hether the identification o f the class o f deportable persons could be
made to turn on their exercise o f First A m endm ent rights. Thus it
w ould probably not be constitutionally appropriate to identify for de­
portation all those aliens w ho have participated in m arches or dem on­
strations advocating the death o r extradition o f the Shah. Cf. Harisiades
v. Shaughnessy, 342 U.S. 580, 592 (1952); Dennis v. United States, .341
U.S. 494, 502 (1951); In the M atter o f M., supra, 5 I&N Dec. at 252. In
short, while this section appears to give the A ttorney General wide
discretion in determ ining w ho may remain in the United States, it may
be difficult to establish appropriate guidelines for its implementation.

2. Nonim m igrants

   A nonim migrant is subject to the same grounds o f deportation under
§ 241(a)(4) and (7) as discussed above. In addition, a nonim m igrant who
has remained beyond the length o f his authorized stay may be deported
as an overstay under § 241(a)(2) o f the Act. H ow ever, as noted above,
since January 1, 1979, all nonim m igrant students, including Iranians,
have been adm itted w ithout a specified departure date and may remain
as long as they continue to be students in good standing with their
schools.
   Exam ples o f violations o f status are w orking w ithout authorization or
perform ing other activities w hich are inherently inconsistent with the

  3 T h e Suprem e C o u rt has held th at dep o rtatio n provisions should be strictly construed. Fong Haw
Tan v. Phelan. 333 U.S. 6, 10 (1948).


                                                  138
purpose for admission. H ow ever, the Board of Im m igration Appeals
has held that the test for students under § 2 4 1(a)(9) is w hether the
student’s actions have meaningfully interrupted his studies. M atter o f
M urat-Kahn 14 I&N Dec. 465 (BIA 1973). This view has been endorsed
by at least one appellate court. M ashi v. INS, 585 F.2d 1309 (5th Cir.
1978). Therefore, under current law the mere fact of arrest, even when
followed by incarceration, does not autom atically term inate a student’s
status.
3. Illegal entrants

  An Iranian w ho entered the United States with an im proper visa or
without inspection would be deportable under §§ 241(a)(1) or (2).

B. Exclusion

  Assuming that an Iranian seeking to enter the United States as an
immigrant o r a nonim migrant had a proper visa, the relevant exclusion
grounds would be §§ 212(a)(27) and (29), 8 U.S.C. § 1182(a)(27), (29).
Section 212(a)(27) relates to aliens seeking to enter the United States
solely, principally, or incidentally to engage in activities which would
be prejudicial to the public interest, or endanger the welfare, safety, or
security o f the United States. This statutory language may have broad
applicability as discussed above. Section 212(a)(29)(A) covers certain
subversive activities and would be narrow er in scope than §212(a)(27).

      V. Executive Branch Options Under Present Statutory Authority

A. Procedural Options

1. D eportation

   Nonim m igrants w ho are out o f status are deportable. H ow ever, expe­
ditious deportation o f these persons may not presently be possible
because of practical problems in identifying and locating them. Even if
out-of-status persons are found, deportation proceedings, and subse­
quent BIA and judicial review, take on the average 1 year.4 Since a
deportation hearing is constitutionally required, and judicial review is
provided by statute, it will be difficult to expedite proceedings. The
BIA, which is created by regulation, could be eliminated, although
such action could sacrifice uniformity of and control over deportation
proceedings. The A ttorney General could order increased investigation
o f the status o f Iranian nonimmigrants and order the IN S and B IA to
assign priority to deportation proceedings against such aliens. It should

  4 T he IN S estim ates that this involves tw o m onths at the IN S district office, four m onths at the
BIA, and six m onths in the court o f appeals.




                                                139
be recognized, how ever, that the Constitution and the IN A prevent any
sum m ary deportation o f Iranian nationals.

2. E ntry

   T he IN A gives the President broad authority to prescribe regulations
conditioning or limiting entry o f aliens, o r any class o f aliens. §§ 212(f),
215 o f the IN A , 8 U.S.C. §§ 1182(f), 1185. In addition to substantive
limits on entry, discussed below, these provisions could authorize the
President to establish special screening procedures for Iranian nationals
to probe their reasons for entry and activities they plan to undertake in
the United States. Such regulations must meet the test o f “reasonable­
ness” ; presumably they could be justified if the President has inform a­
tion that Iranian terrorists o r other persons intending to undertake
violent action in this country are seeking entry.

B. Substantive Options

1. Entering aliens

   a. Change conditions o f stay. U nder the authority o f § 214(a), the INS
published proposed regulations in August, 1979, w hich would make
conviction for commission o f a violent crim e for w hich a sentence of
one year o r m ore could be imposed a violation o f nonim m igrant status.
In addition, the proposed regulations w ould make the provision of
truthful inform ation to the IN S a condition o f a nonim m igrant’s stay in
the United States. These regulations could be put into effect by some
time in Decem ber, 1979. T he IN S expects that student groups will
challenge these regulations on the ground that they add deportation
grounds not provided by Congress.

   b. Presidential order under §§ 212(f) and 215(a). U nder §§212(0 and
215(a) o f the A ct, the President could declare that the admission of
Iranians o r certain classes o f Iranians w ould be detrim ental to the
interests o f the United States. Such a restriction would have to meet
the test o f reasonableness. G iven the present uncertainty o f the situation
in Iran, the possible internal problem s and violence w hich could be
caused by Iranians dem onstrating in the United States, and the diffi­
culty in providing security for Iranians in the United States, such an
order w ould probably be sustainable.

2. Aliens in the U nited States

  U nder §214 o f the A ct, the A ttorney G eneral could prom ulgate a
regulation requiring all nonim m igrant students to appear at INS offices

                                     140
and dem onstrate they have maintained status.5 T he justification for such
a regulation could be the necessity o f securing an accurate count of
nonimmigrant students in the United States and reexamining their
period o f stay in light o f recent events. It may be difficult to justify the
inclusion o f nonim migrant students other than Iranians. It should be
noted that such action would be likely to overburden INS offices since
there are several hundred thousand nonim migrant students in the
United States. Furtherm ore, locating and prosecuting persons w ho do
not appear would be difficult and resource-consuming.
   A m ore limited option would be to require only Iranian nonim mi­
grant students to appear at IN S offices. Such a regulation could be
justified upon information that substantial numbers o f Iranian students
are out o f status. H ow ever, it would produce the same practical prob­
lems as the broader regulation (there are 50,000 nonim m igrant Iranian
students).

3. Restrictions on departure
   U nder §215 the President could restrict the departure o f Iranians
from the United States. H ow ever, this would seem to serve no useful
purpose under the present circumstances.

C. Equal Protection and Iranians

   Several o f the options outlined above single out Iranian nationals for
special treatm ent— i.e., a bar on entry o f Iranians, special screening
procedures, requirem ents that Iranian nonim migrants report to IN S
district offices. A rguably, new requirem ents based on national origin
raise equal protection concerns.
   It is not likely that a court would invalidate any o f the proposed
actions on the ground that they violated the Fifth A m endm ent.6 While
the States may not discriminate on the basis o f alienage w ithout dem on­
strating a compelling State interest, see Graham v. Richardson, 403 U.S.
365 (1971), and aliens in the United States are protected by the due
process guarantee o f the Fifth Am endm ent, Wong Yang Sung v.
McGrath, 339 U.S. 33, 48-51 (1950), the federal governm ent has plenary
pow er to legislate on immigration matters. T he Suprem e C ourt has
recognized that Congress may deny entry to, or require deportation of,
aliens on grounds w hich w ould be impermissible if applied to A m erican
citizens. See The Chinese Exclusion Case, 130 U.S. 581 (1889); Galvan v.
Press, 347 U.S. 522 (1954); Oliver v. IN S, 517 F.2d 426, 428 (2d Cir.

   5 T h e "g o o d cause” exception to the A dm inistrative P rocedure A ct w ould have to be invoked to
permit prom ulgation o f the regulation w ithout notice and com m ent. 5 U.S.C. § SS3.
   6 Federal regulation o f im m igration is tested by the Fifth A m endm ent, w hich essentially inco rp o ­
rates the F o u rteen th A m endm ent’s guarantee o f equal protection. See H am pton v. Mow Sun Wong. 426
U.S. 88, 99-101 (1976); Bolling v. Sharpe, 347 U.S. 497 (1954).


                                                    141
 1975) (per curiam), cert, denied, 423 U.S. 1056 (1976). C ongress’ plenary
 pow er is based on the fact that entry and deportation classifications are
 “vitally and intricately interw oven w ith contem poraneous policies in
 regard to the conduct o f foreign relations, the w ar pow er, and the
 m aintenance of a republican form o f governm ent. Such m atters are so
exclusively entrusted to the political branches o f governm ent as to be
 largely immune from judicial inquiry or interference.” Harisiades v.
Shaughnessy, 342 U.S. at 588-89. See Fong Yue Ting v. United States,
 149 U.S. 698 (1893); H itai v. INS, 343 F.2d 466 (2d Cir.), cert, denied,
 382 U.S. 816 (1965).
    Some cases suggest in dicta that judicial review may be available to
overturn classifications for w hich no rational basis can be found— e.g.,
deportation on the grounds o f religion. Fiallo v. Bell, 430 U.S. 787, 793,
n.5 (1977); Oliver v. INS, supra, 517 F.2d at 428. But such review
would clearly be limited to w hether the lines draw n by Congress or the
E xecutive branch are rational and not w holly arbitrary. See Francis v.
INS, 532 F.2d 268 (2d Cir. 1976); N oel v. Chapman, 508 F.2d 1023,
 1028 (2d Cir.), cert, denied, 423 U.S. 824 (1975).
   U nder this standard, we believe that the options outlined above
w ould be constitutional. G iven the present crisis, the activities o f many
Iranian nonim m igrant students, and the serious national security and
foreign policy interests at stake, it is unlikely that a court would set
aside otherw ise legitim ate policies directed solely at Iranian nationals.
   N or do we believe that any new regulations w ould be set aside if
challenged as an instance o f unconstitutional “selective enforcem ent.”
First, we assume that usual processing o f aliens for entry and deporta­
tion w ould continue. Second, courts have traditionally recognized
broad prosecutorial discretion in the enforcem ent o f the law. While
some cases have stated in dicta that a policy o f prosecutions based on
an unjustifiable and arbitrary standard such as race or religion may be
unconstitutional, e.g., Oyler v. Boles, 368 U.S. 448, 456 (1962), we
believe that heightened enforcem ent efforts aimed at out-of-status Ira­
nian nonim migrants would not be so arbitrary as to deny such persons
due process. W e believe that the President could make appropriate
statem ents justifying such policies based on the international crisis, and
upon a finding that many Iranian students (w ho constitute the largest
foreign student group in the United States) may be out o f status. See
United States v. Sacco, 438 F.2d 264, 271 (9th Cir.), cert, denied, 400
U.S. 903 (1970).7



   ’ W hile w e know o f no case on point, w e believe that any prosecutions undertaken to stifle the
exercise o f First A m endm ent rights by Iranian students might face a serious constitutional challenge.
Cf. Lennon v. fN S . 527 F.2d 187, 195 (2d Cir. 1975).


                                                  142
                       VI. The Power of Congress

   The preceding sections have discussed the authority o f the President
and the A ttorney G eneral under existing statutes. This section addresses
the constitutional limitations on congressional authority to regulate
entry and deportation o f aliens.
   It is well-established that “over no conceivable subject is the legisla­
tive pow er of Congress more com plete than it is o v er” the regulation
of immigration. Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (quoting
Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). The
Supreme C ourt has consistently upheld the plenary pow er of Congress
to make rules for the admission and deportation of aliens as inherent in
the concept o f national sovereignty. The Chinese Exclusion Cases, supra;
the Japanese Im m igrant Case, supra; Ekiu v. United States, 142 U.S. 651,
659 (1892). In recent years the Supreme C ourt has steadfastly refused to
reconsider its earlier cases or to develop substantive limits on C ongress’
pow er to exclude and deport. See Fiallo v. Bell, 430 U.S. at 792-93;
Kleindienst v. Mandel, 408 U.S. at 766; Galvan v. Press, 347 U.S. at 531 —
32 (“ [T]hat the formulation o f . . . policies [regarding entry and depor­
tation] is entrusted exclusively to Congress has become about as firmly
imbedded in the legislative and judicial tissues of our body politic as
any aspect o f our governm ent.”)
   T he Supreme C ourt has also made clear that C ongress may deport
persons for prior conduct w hich did not render them deportable at the
time they so acted. T he retroactivity o f such legislation does not violate
the Due Process Clause or constitute an ex post facto law. Lehmann v.
Carson, 353 U.S. 685 (1957); Galvan v. Press, supra; N g Fung Ho v.
White, 259 U.S. 276, 280 (1922). As stated most broadly by the Court:
          T he basis for the deportation o f presently undesirable
      aliens resident in the United States is not questioned and
      requires no reexamination. W hen legally adm itted, they
      have com e at the N ation’s invitation, as visitors or perm a­
      nent residents, to share with us the opportunities and
      satisfactions o f our land. As such visitors and foreign
      nationals they are entitled in their persons and effects to
      the protection o f our laws. So long, how ever, as aliens fail
      to obtain and maintain citizenship by naturalization, they
      remain subject to the plenary pow er o f C ongress to expel
      them under the sovereign right to determ ine what
      noncitizens shall be perm itted to remain within our
      borders.
          Changes in w orld politics and in our internal econom y
      bring legislative adjustm ents affecting the rights o f various
      classes o f aliens to admission and deportation . . . . Since
      “ [i]t is thoroughly established that Congress has pow er to

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          o rd er the deportation o f aliens whose presence in the
          country it deems hurtful,” the fact that petitioners, and
          respondent . . . , w ere made deportable after entry is
          immaterial. T hey are deported for w hat they are now, not
          for w hat they were. O therw ise, when an alien once le­
          gally becam e a denizen o f this country he could not be
          deported for any reason o f w hich he had not been fore­
          w arned at the time o f entry. M ankind is not vouchsafed
          sufficient foresight to justify requiring a country to permit
          its continuous occupation in peace or w ar by legally ad­
          m itted aliens, even though they never violate the laws in
          effect at their entry. T he protection o f citizenship is open
          to those w ho qualify for its privileges. T he lack of a
          clause in the C onstitution specifically em pow ering such
          action has never been held to render Congress impotent
          to deal as a sovereign w ith resident aliens.
Carlson v. London, 342 U.S. 534-37 (1952) (footnotes om itted) (quoting
Bugajewitz v. Adams, 228 U.S. 585, 591 (1913)).
   Thus, Congress possesses alm ost unlimited pow er in establishing sub­
stantive regulations defining categories o f aliens w ho may enter and
w ho must leave the United States. C ongress clearly has the pow er to
bar all Iranians from entering the United States and could order all
Iranian nationals out o f the country. O f course, such legislation raises
serious policy issues: many Iranian nationals in this country may be
loyal to the United States or the Shah and may be well-integrated
members o f A m erican society w ith jobs and families. Furtherm ore,
some Iranians may face persecution in Iran and thus w ould apply for
asylum here.
   N or do w e believe, as discussed above, that legislation directed solely
at Iranians would offend the Fifth Am endm ent, as long as there was a
rational basis for such legislation.8
   A ccordingly, C ongress could constitutionally adopt, for example,
legislation:
          (1) barring entry o f Iranians; an d /o r
          (2) deporting all Iranian nonim m igrant students.

          8[W ]hether im m igration law s h ave been cru d e and cruel, w hether they may have
        reflected xenophobia in general o r anti-Semitism o r anti-C atholicism , the responsibility
        belongs to Congress. C o u rts d o en fo rce the requirem ents imposed by C ongress upon
        officials in adm inistering im m igration laws, e.g., Kwock Jan Fat v. White, 253 U.S. 454,
        and the requirem ent o f D ue Process may entail certain procedural observances. E.g.,
        N g Fung H o v. White, 259 U.S. 276. But the underlying policies o f w hat classes o f
        aliens shall be allow ed to en ter and w hat classes o f aliens shall be allow ed to stay, are
        for C ongress exclusively to determ ine even though such determ ination may be deem ed
        to offend A m erican traditions and may, as has been the case, jeopardize peace.
Harisiades v. Shaughnessy, 342 U.S. at 597 (F ran k fu rter, J., concurring).


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   It must be noted, how ever, that while Congress has broad substantive
pow er to define categories o f admissible and deportable persons, its
pow er to eliminate procedural protections is substantially limited by the
D ue Process Clause o f the Constitution. As discussed above, the Su­
preme C ourt held consistently since the turn of the century that aliens
may not be deported w ithout a prior hearing. R ecent decisions enlarg­
ing due process rights probably guarantee an alien (1) adequate notice
o f the hearing, (2) the right to present evidence and cross-examine
witnesses, (3) representation by counsel, and (4) an unbiased
decisionmaker. And while Congress may eliminate or limit the scope o f
review of deportation proceedings in the courts o f appeals, it is unlikely
that it could deprive aliens o f the right to file habeas corpus petitions
asserting deprivations o f due process and other constitutional rights.
U.S. Const, art. I, § 9, cl. 2. See 2 G ordon and Rosenfield, supra, § 8.6a
(1979). Thus, while Congress could order that all Iranian
nonimmigration students leave the United States, it could not deprive
such aliens of a hearing to dem onstrate that they do not come within
the proscribed category. Japanese Immigration Case, supra.
   Congress may be able to expedite expulsion o f deportable aliens, such
as out-of-status students, by providing for additional im migration offi­
cers and judges w ho could help locate and process such persons.
H ow ever, the requirem ent o f a hearing and the availability o f habeas
corpus review w ould prohibit any summary proceedings and render
unlikely, as a practical matter, any immediate gain in the speed of
enforcement o f the existing law.

                             VII. Conclusion

   T here exists a rather broad range o f actions that could be taken both
by the Executive Branch and by the Congress in this area. Necessarily,
however, any action would have to be carefully scrutinized based upon
the facts in existence at the time o f any proposed action and the
strength of the national security and foreign affairs interests. Because of
the sensitive and im portant First Am endm ent, equal protection and due
process considerations likely to be im plicated by any action taken by
the governm ent, and given the high- likelihood o f litigation, w e urge
that any proposal be given careful and thorough consideration.

                                         Jo   hn   M.   H   arm on

                                     Assistant Attorney General
                                      Office o f L egal Counsel




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