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legitimate law enforcement technique, even in the absence of any individualized suspicion based on articulable facts. The decision reversed a holding of the Ninth Circuit Court of Appeals, 514 F.2d 308 (1975), that the practice was a violation of the Fourth Amendment.

In an opinion by Mr. Justice Powell, the Court conceded that checkpoint stops are seizures within the meaning of the Fourth Amendment, but ruled that in view of the difficulty of keeping aliens from entering the country illegally, the need for such measures was great and the consequent intrusion on the Fourth Amendment was slight. Further, the Court held that no warrant was required, stating:

The degree of intrusion upon privacy that may be occasioned by a search of a house hardly can be compared with the minor interference with privacy resulting from the mere stopping for questioning as to residence.

A dissent by Mr. Justice Brennan in which Mr. Justice Marshall joined, called checkpoint stops “a convenient cover for condoning arbitrary official conduct” and said the Court had failed to distinguish checkpoint stops from roving patrol stops. In United States v. Brignoni-Ponce, 422 U.S. 873 (1975), the Supreme Court had held that roving patrols could stop vehicles if the officer could reasonably suspect the presence of illegal aliens by reason of specific articulable facts.

Deportation Constitutional Safeguards

In an unpublished order, dated January 27, 1976 (7th Cir. No. 751393), the U.S. Court of Appeals for the Seventh Circuit reversed the ruling of the U.S. District Court for the Northern District of Illinois in Lieggi v. U.Ş. Immigration and Naturalization Service, 389 F. Supp. 12 (1975) (see the 1975 Digest, p. 144), which had held that deportation in this case would constitute cruel and unusual punishment within the meaning of the Eighth Amendment to the Constitution.

Lieggi, a native and citizen of Italy, came to the United States at the age of 15 to join his father. Over a 10-year period he was involved with the law only once, when he was convicted on his own guilty plea of selling marijuana. He was ordered deported under 8 U.S.C. 1251(a)(11), which provides for deportation of an alien if he has been convicted under “any law or regulation relating to the illicit possession of or trafficking in narcotic drugs or marijuana. ..." On petition for habeas corpus, the U.S. District Court, after finding jurisdiction, held that Lieggi's deportation would constitute cruel


and unusual punishment within the meaning of the Eighth Amendment.

The appellate court found the district court's jurisdiction to be dubious in view of the statutory provision for exclusive review of final deportation orders in the appropriate court of appeals rather than in the district court. It questioned as well habeas corpus jurisdiction in the matter in view of Lieggi's never having been in custody with respect to his deportation.

Aside from the jurisdictional issue, the Court of Appeals found that the district court improperly granted the petition for a writ of habeas corpus in view of the clear language of 8 U.S.C. 1251(a) (11), citing, inter alia, Brice v. Pickett, 515 F.2d 133 (1975) (see the 1975 Digest, p. 149). The Court characterized as well established the principle that deportation is not cruel and unusual punishment within the meaning of the Eighth Amendment. Fong Yue Ting v. U.S. Immigration and Naturalization Service, 517 F.2d 426 (1975); De Lucia v. U.S. Immigration and Naturalization Service, 370 F.2d 305 (1966), cert. denied, 386 U.S. 912 (1967). However, the appellate court agreed with the district court that this represented a hardship case and, accordingly, urged the government to afford the petitioner any administrative remedy still available to him.

U.S. Attorneys Bulletin, Vol. 24, No. 9, Apr. 30, 1976.

In Francis v. Immigration and Naturalization Service, 532 F.2d 268 (1976), an alien brought action for review of a final order of deportation entered by the Board of Immigration Appeals which held that discretionary review by the Attorney General was not available to the alien. The Court of Appeals for the Second Circuit, in an opinion delivered on March 9, 1976, held that the Board's interpretation of the statute providing for discretionary review as applying only to permanent resident aliens who had temporarily proceeded abroad was unconstitutional.

The Board's final order of deportation was based on petitioner's conviction for a marijuana offense. Under Board interpretations, a lawfully admitted alien convicted of a narcotics offense, who departs from and returns to the United States to an unrelinquished domicile of seven years may be permitted to remain in the United States in the Attorney General's discretion; but the Attorney General was without discretion to allow a lawfully admitted alien convicted of a narcotics offense to remain in the United States despite an unrelinquished domicile of seven years solely because he had never made a temporary departure from the country since his conviction.

The Court held that the distinction between the two classes of aliens lacked any basis rationally related to a legitimate governmental

interest, and therefore deprived petitioner of the equal protection of the law. The opinion stated:

The government has failed to suggest any reason why this petitioner's failure to travel abroad following his conviction should be a crucial factor in determining whether he may be permitted to remain in this country. Reason and fairness would suggest that an alien whose ties with this country are so strong that he has never departed after his initial entry should receive at least as much consideration as an individual who may leave and return from time to time.

Fundamental fairness dictates that permanent resident aliens who are in like circumstances, but for irrelevant and fortuitous factors, be treated in a like manner. We do not dispute the power of the Congress to create different standards of admission and deportation for different groups of aliens. However, once those choices are made, individuals within a particular group may not be subjected to disparate treatment on criteria wholly unrelated to any legitimate governmental interest. We find that the Board's interpretation of section 212(c) [of the Immigration and Nationality Act] is unconstitutional as applied to this petitioner.

Surrender for Deportation

On September 7, 1976, the Immigration and Naturalization Service (INS) announced the amendment of title 8, Code of Federal Regulations, § 243.3, effective October 13, 1976, regarding advance notice to aliens of the time and place of surrender for deportation. The INS stated that the purpose was to set forth conditions under which an alien, not in the physical custody of the Service, may be taken into custody prior to the expiration of the 72-hour advance notice period given an alien between the time he is notified to surrender for deportation and his actual surrender. It was intended to prevent aliens from absconding after being given advance notice.

See Fed. Reg., Vol. 41, No. 178, Sept. 13, 1976, pp. 38758-38759.

De Facto Deportation

In Acosta v. Gaffney, 413 F. Supp. 827 (1976), decided on May 12, 1976, the U.S. District Court for the District of New Jersey held that where the simultaneous deportation of both alien parents would result in de facto deportation of their five-month-old citizen child, such result was precluded by the citizenship provision of the Fourteenth Amendment. The Court reversed an order of the Immigration and Naturalization Service denying the stay of depor

tation of the Colombian parents, Carlos and Beatriz Acosta, who had remained illegally in the United States beyond the time permitted them as nonimmigrant visitors. It issued a declaratory judgment determining that the deportation of the parent plaintiffs constituted an unconstitutional deportation of the infant plaintiff, Lina Acosta, a citizen by birth in the United States. The Court's opinion stated, in part:

Because Lina Acosta is a citizen, Congress may not authorize, the Executive may not effect and the courts will not permit her direct deportation. Deportation may be imposed only upon aliens. Title 8 United States Code, s 1251. ...

The government contends, however, that Lina is not to be deported; only her parents are. . . . at least one Court of Appeals has recognized that deportation of the alien parents of a citizen minor child results in the de facto deportation of that citizen child. Aalund v. Marshall, 461 F.2d 710, 714 (5th Cir. 1972); GonzalezCuevas v.INS, 515 F.2d 1222, 1224 (5th Cir. 1975). Where, as here, the citizen in question is a five-month-old infant, there is and could be no doubt that the simultaneous deportation of both parents will result in the deportation of this young citizen of the United States.

This result is repugnant to the Constitution. The Fourteenth Amendment creates only one class of citizens, and until that constitutional provision is changed, no act of any branch of government may deny to any citizen the full scope of privileges and immunities inherent in United States citizenship. Central to all of those rights, of course, is the right to remain.

Stay of Deportation

The U.S. Court of Appeals for the Second Circuit held on April 29, 1976, in Zamora v. Immigration and Naturalization Service, 534 F.2d 1055 (1976), that in a hearing for stay of deportation because of fear of persecution there is no bar to admissibility of the views of the Department of State as to the extent to which the nation of prospective deportation engages in persecution on account of race, religion, or political opinion. However, the Court stipulated that, absent specific information regarding the alien and his consent, no attempt may be made to apply such broad opinions to the particular alien.

Petitioners were Filipino and Haitian citizens who were concededly deportable aliens. They filed petitions to review orders of the Board of Immigration Appeals, dismissing appeals from denial of requests for stay of deportation because of fear of persecution. In their complaint they objected to the admissibility, in deportation proceedings under section 243(h)of the Immigration and Nationality Act (8 U.S.C. 1253(h) ), of Department of State letters to the Immigration and Naturalization Service (INS) giving the Department's views concerning petitioners'applications for political asylum. Those views, as expressed by the Department's Office of Refugee and Migration Affairs (ORM), were that petitioners had not made valid cases for political asylum. The Court stated, in part:

We . . . see no bar to the admissibility of statements of the Department of State or its officials abroad which inform the IJ [immigration judges) and the Board of Immigration Appeals of the extent to which the nation of prospective deportation engages in "persecution on account of race, religion, or political opinion” of the class of persons to whom an applicant under $ 243 h) claims to belong, and reveal, so far as feasible, the basis for the views expressed, but do not attempt to apply this knowledge to the particular case, as the ORM does in making recommendations with respect to requests for political asylum.

The difficulty with introducing ORM letters into hearings under 8243(h) is that they do both too little and too much. The ones in these cases and in others that we have seen give little or nothing in the way of useful information about conditions in the foreign country. What they do is to recommend how the district director should decide the particular petitioner's request for asylum. When these letters are introduced into the $ 243(h) inquiry, they present ORM's conclusion as to an adjudicative fact, based, in the present examples, solely on the alien's own statements and phrased in the very language of the § 243(h) standard. Adjudication in the withholding process is, however, the task of the IJ and the Board of Immigration Appeals. Particularly in light of the difficulties confronting the alien in proving his case, there is a risk that such communications will carry a weight they do not deserve. It should not be difficult for the INS and the Department of State to conform their practices in the future to the views here expressed.

On the other hand we are unwilling to announce a rule that would call for reversal of all denials of $ 243(h) applications where an ORM recommendation has been received at the hearing. Before we would reverse because of the receipt of ORM recommendations, a petitioner must show some likelihood that it influenced the result ..

The Court concluded that, in the case at hand, other evidence supplied ample grounds for rejecting the petitions and, in any event, no reliance had been placed on the ORM's letters. It added by way of footnote:

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