U.S. Supreme Court Landon v. Plasencia, 459 U.S.
21 (1982) Landon v. Plasencia No. 81-129 Argued October 5,
1982 Decided November 15,
1982 459 U.S.
21 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. 459 U. S.
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 Page 459 U. S. 22 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. 459 U. S.
28 -32.

															3. Although, under the circumstances, respondent is entitled to
due process in her exclusion hearing, the case will be remanded 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. 459 U. S.
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. 459 U. S.
37 .

															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. Page 459 U. S. 23 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. [ Footnote 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, Page 459 U. S. 24 and gave notice that it would hold an exclusion hearing at 11
a.m. on June 30, 1975. [ Footnote
2 ]"

															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).
[ Footnote 3 ] Page 459 U. S. 25 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 , 357 U. S. 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 Page 459 U. S. 26 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
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 U.S.C. § 1254(e) (1976 ed., Supp. V),
avoiding both the stigma of deportation, § 242(b), 8 U.S.C. §
1252(b) (1976 ed. and Supp. V), and the limitations on his
selection of destination, § 243(a), 8 U.S.C. § 1253(a) (1976 ed.
and Supp. V); [ Footnote 4 ] or
he Page 459 U. S. 27 can seek suspension of deportation, § 242(e), 8 U.S.C. § 1252(e)
(1976 ed., Supp. V).

															The respondent contends that she was entitled to have the
question of her admissibility litigated in a deportation hearing,
where she would be the beneficiary of the procedural protections
and the substantive rights outlined above. Our analysis of whether
she is entitled to a deportation, rather than an exclusion, hearing
begins with the language of the Act. Section 235(a) of the Act, 8
U.S.C. § 1225(a), permits the INS to examine " [a]ll aliens" who seek "admission or readmission to" the United
States, and empowers immigration officers to take evidence
concerning the privilege of any person suspected of being an alien
"to enter, reenter, pass through, or reside" in the United
States. (Emphasis added.) Moreover, "every alien" who does not
appear "to be clearly and beyond a doubt entitled to land shall be
detained" for further inquiry. § 235(b). If an alien is so
detained, the Act directs the special inquiry officer to determine
whether the arriving alien "shall be allowed to enter or shall be
excluded and deported." § 236(a), 8 U.S.C. § 1226(a). The
proceeding before that officer, the exclusion hearing, is by
statute "the sole and exclusive procedure for determining
admissibility of a person to the United States. . . ." Ibid. The Act's legislative history also emphasizes the singular role
of exclusion hearings in determining whether an alien should be
admitted. The Reports of both the House and Senate state:

															"The special inquiry officer is empowered to determine whether
an alien detained for further inquiry shall be excluded and
deported or shall be allowed to enter after he has given the alien
a hearing. The procedure established in the bill is made the sole
and exclusive procedure for determining the admissibility of a
person to the Page 459 U. S. 28 United States."

															S.Rep. No. 1137, 82d Cong., 2d Sess., 29 (1952); H.R.Rep. No.
1365, 82d Cong., 2d Sess., 56 (1952).

															The language and history of the Act thus 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 statutory language or the legislative
history suggests that the 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.
Under the terms of the Act, the INS properly proceeded in an
exclusion hearing to determine whether respondent was attempting to
"enter" the United States [ Footnote
5 ] and whether she was excludable. III To avoid the impact of the statute, the respondent contends, and
the Court of Appeals agreed, that unless she was "entering," she
was not subject to exclusion proceedings, and that prior decisions
of this Court indicate that she is entitled to have the question of
"entry" decided in deportation proceedings.

															The parties agree that only "entering" aliens are subject to
exclusion. See Brief for Petitioner 19. That view accords
with the language of the statute, which describes the exclusion
hearing as one to determine whether the applicant "shall be allowed
to enter or shall be excluded and deported." § 236(a), 8
U.S.C. § 1226(a) (emphasis added). But the respondent's contention
that the question of entry can be determined only in deportation
proceedings reflects a misconception of our decisions.

															In Rosenberg v. Fleuti, 374 U.
S. 449 (1963), we faced the question whether a resident
alien's return from an afternoon Page 459 U. S. 29 trip across the border was an "entry" for immigration law
purposes. The definition of that term was the same then as it is
now: it means

															"any coming of an alien into the United States . . . except that
an alien having a lawful permanent residence in the United States
shall not be regarded as making an entry into the United States for
the purposes of the immigration laws if the alien proves to the
satisfaction of the Attorney General that his departure to a
foreign port or place or to an outlying possession was not intended
or reasonably to be expected by him. . . ."

															§ 101(a)(13), 8 U.S.C. § 1101(a)(13). We held in Fleuti that the "intent exception" refers to an intent to depart in a
"manner which can be regarded as meaningfully interruptive of the
alien's permanent residence." 374 U.S. at 374 U. S. 462 .
Thus, 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. Ibid. If,
however,

															"the purpose of leaving the country is to accomplish some object
which is itself contrary to some policy reflected in our
immigration laws, it would appear that the interruption of
residence thereby occurring would properly be regarded as
meaningful." Ibid. That distinction both protects resident aliens
from "unsuspected risks and unintended consequences of . . . a
wholly innocent action," ibid., and gives effect to the
language of § 101(a)(13). [ Footnote
6 ] Page 459 U. S. 30 The Government has argued in this case that Plasencia violated
the immigration laws by attempting to smuggle aliens for gain.
Therefore, her departure was "meaningfully interruptive" of her
residence, she was attempting an "entry," and she was subject to
exclusion proceedings. And, the Government urges, under §
212(a)(31), 8 U.S.C. § 1182(a)(31), she was excludable because she
had attempted to smuggle aliens for gain. Plasencia, on the other
hand, argues that it would "violat[e] both the scope and spirit,"
Brief for Respondent 15, of Fleuti to permit the INS to
litigate questions of "entry" in exclusion proceedings.

															The Court of Appeals viewed Fleuti as a deportation
case, rather than an exclusion case, 637 F.2d at 1288, and
therefore not relevant in deciding whether the question of "entry"
could be determined in exclusion proceedings. For guidance on that
decision, the Court of Appeals turned to Kwong Hai Chew v.
Colding. 344 U. S. 590 (1953), which it read to hold that a resident alien returning from
a brief trip "could not be Page 459 U. S. 31 excluded without the procedural due process to which he would
have been entitled had he never left the country" -- i.e., in this case, a deportation proceeding. 637 F.2d at 1288. The court
concluded that Plasencia was entitled to litigate her admissibility
in deportation proceedings. It would be "circular" and "unfair,"
thought the court, to allow the INS to litigate the question of
"entry" in exclusion proceedings when that question also went to
the merits of the respondent's admissibility. Id. at 1288
1289.

															We disagree. The reasoning of Chew was only that a
resident alien returning from a brief trip has a right to due
process just as would a continuously present resident alien. It
does not create a right to identical treatment for these two
differently situated groups of aliens. [ Footnote 7 ] As the Ninth Circuit seemed to recognize, if
the respondent here was making an "entry," she would be subject to
exclusion proceedings. It is no more "circular" to allow the
immigration judge in the exclusion proceeding to determine whether
the alien is making an entry than it is for any court to decide
that it has jurisdiction when the facts relevant to the
determination of jurisdiction are also relevant to the merits.
Thus, in United States v. Sing Tuck, 194 U.
S. 161 (1904), this Court held that an immigration
inspector could make a determination whether an applicant for
admission was an alien or a citizen, although only aliens were
subject to exclusion. Cf. Land v. Dollar, 330 U.
S. 731 , 330 U. S. 739 (1947) (district court has jurisdiction to determine its
jurisdiction by proceeding to a decision on the merits). Nor is it
in any way "unfair" to decide the question of entry in exclusion
proceedings as long as those proceedings themselves are fair.
Finally, the use of exclusion proceedings Page 459 U. S. 32 violates neither the "scope" nor the "spirit" of Fleuti. As the Court of Appeals held, that case only
defined "entry," and did not designate the forum for deciding
questions of entry. The statutory scheme is clear: Congress
intended that the determinations of both "entry" and the existence
of grounds for exclusion could be made at an exclusion hearing. IV Our determination that the respondent is not entitled to a
deportation proceeding does not, however, resolve this case. In
challenging her exclusion in the District Court, Plasencia argued
not only that she was entitled to a deportation proceeding, but
also that she was denied due process in her exclusion hearing. See App. 5, 119; Record 19, 20, 23. We agree with
Plasencia that, under the circumstances of this case, she can
invoke the Due Process Clause on returning to this country,
although we do not decide the contours of the process that is due
or whether the process accorded Plasencia was insufficient.

															This Court has long held that an alien seeking initial admission
to the United States requests a privilege, and has no
constitutional rights regarding his application, for the power to
admit or exclude aliens is a sovereign prerogative. See, e.g.,
United States ex rel. Knauff v. Shaughnessy, 338 U.
S. 537 , 338 U. S. 542 (1950); Nishimura Ekiu v. United States, 142 U.
S. 651 , 142 U. S.
659 -660 (1892). Our recent decisions confirm that view. See, e.g., Fiallo v. Bell, 430 U.
S. 787 , 430 U. S. 792 (1977); Kleindienst v. Mandel, 408 U.
S. 753 (1972). As we explained in Johnson v
Eisentrager, 339 U. S. 763 , 339 U. S. 770 (1950), however, once an alien gains admission to our country and
begins to develop the ties that go with permanent residence, his
constitutional status changes accordingly. Our cases have
frequently suggested that a continuously present resident alien is
entitled to a fair hearing when threatened with deportation, see, e.g., United State ex rel. Tisi v. Tod, 264 U.
S. 131 , 264 U. S. 133 , 264 U. S. 134 (1924); Low Wah Suey v.
Backus , 225 U. S. 460 , Page 459 U. S. 33 225 U. S. 468 (1912) (hearing may be conclusive "when fairly conducted"); see
also Kwong Hai Chew, 344 U.S. at 344 U. S. 598 ,
n. 8, and, although we have only rarely held that the procedures
provided by the executive were inadequate, we developed the rule
that a continuously present permanent resident alien has a right to
due process in such a situation. See, e.g., United States ex
rel. Vajtauer v. Commissioner of Immigration, 273 U.
S. 103 , 273 U. S. 106 (1927); The Japanese Immigrant Case, 189 U. S.
86 , 189 U. S.
100 -101 (1903); see also Wong Yang Sung v.
McGrath, 339 U. S. 33 , 339 U. S. 49 -50
(1950); Bridges v. Wixon, 326 U.
S. 135 , 326 U. S.
153 -154 (1945).

															The question of the procedures due a returning resident alien
arose in Kwong Hai Chew v. Colding, supra. There, the
regulations permitted the exclusion of an arriving alien without a
hearing. We interpreted those regulations not to apply to Chew, a
permanent resident alien who was returning from a 5-month voyage
abroad as a crewman on an American merchant ship. We reasoned
that,

															"[f]or purposes of his constitutional right to due process, we
assimilate petitioner's status to that of an alien continuously
residing and physically present in the United States."

															344 U.S. at 344 U. S. 596 .
Then, to avoid constitutional problems, we construed the regulation
as inapplicable. Although the holding was one of regulatory
interpretation, the rationale was one of constitutional law. Any
doubts that Chew recognized constitutional rights in the
resident alien returning from a brief trip abroad were dispelled by Rosenberg v. Fleuti, where we described Chew as
holding "that the returning resident alien is entitled as a matter
of due process to a hearing on the charges underlying any attempt
to exclude him." 374 U.S. at 374 U. S.
460 .

															If the permanent resident alien's absence is extended, of
course, he may lose his entitlement to "assimilat[ion of his]
status," Kwong Hai Chew v. Colding, supra, at 344 U. S. 596 ,
to that of an alien continuously residing and physically present in
the United States. In Shaughnessy v. United States ex rel.
Mezei, 345 U. S. 206 (1953), this Court rejected the argument Page 459 U. S. 34 of an alien who had left the country for some 20 months that he
was entitled to due process in assessing his right to admission on
his return. We did not suggest that no returning resident alien has
a right to due process, for we explicitly reaffirmed Chew. We need not now decide the scope of Mezei; it does not
govern this case, for Plasencia was absent from the country only a
few days, and the United States has conceded that she has a right
to due process, see Tr. of Oral Arg. 6, 9, 14; Brief for
Petitioner 9-10, 20-21.

															The constitutional sufficiency of procedures provided in any
situation, of course, varies with the circumstances. See, e.g.,
Lassiter v. Department of Social Services, 452 U. S.
18 , 452 U. S. 24 -25
(1981); Greenholtz v. Nebraska Penal Inmates, 442 U. S.
1 , 442 U. S. 12 (1979); Morrissey v. Brewer, 408 U.
S. 471 , 408 U. S. 481 (1972). In evaluating the procedures in any case, the courts must
consider the interest at stake for the individual, the risk of an
erroneous deprivation of the interest through the procedures used
as well as the probable value of additional or different procedural
safeguards, and the interest of the government in using the current
procedures, rather than additional or different procedures. Mathews v. Eldridge, 424 U. S. 319 , 424 U. S.
334 -335 (1976). Plasencia's interest here is, without
question, a weighty one. She stands to lose the right "to stay and
live and work in this land of freedom," Bridges v. Wixon,
supra, at 326 U. S. 154 .
Further, she may lose the right to rejoin her immediate family, a
right that ranks high among the interests of the individual. See, e.g., Moore v. City of East Cleveland, 431 U.
S. 494 , 431 U. S. 499 , 431 U. S.
503 -504 (1977) (plurality opinion); Stanley v.
Illinois, 405 U. S. 645 , 405 U. S. 651 (1972). The Government's interest in efficient administration of
the immigration laws at the border also is weighty. Further, it
must weigh heavily in the balance that control over matters of
immigration is a sovereign prerogative, largely within the control
of the Executive and the Legislature. See, e.g., Fiallo,
supra, at 430 U. S.
792 -793; Knauff, supra, at 338 U. S.
542 -543; The Japanese Immigrant Case, supra, at 189 U. S. 97 .
The role of the judiciary Page 459 U. S. 35 is limited to determining whether the procedures meet the
essential standard of fairness under the Due Process Clause, and
does not extend to imposing procedures that merely displace
congressional choices of policy. Our previous discussion has shown
that Congress did not intend to require the use of deportation
procedures in cases such as this one. Thus, it would be improper
simply to impose deportation procedures here because the reviewing
court may find them preferable. Instead, the courts must evaluate
the particular circumstances and determine what procedures would
satisfy the minimum requirements of due process on the reentry of a
permanent resident alien.

															Plasencia questions three aspects of the procedures that the
Government employed in depriving her of these interests. First, she
contends that the Immigration Law Judge placed the burden of proof
upon her. In a later proceeding in Chew, the Court of
Appeals for the District of Columbia Circuit held, without mention
of the Due Process Clause, that, under the law of the case, Chew
was entitled to a hearing at which the INS was the moving party and
bore the burden of proof. Kwong Hai Chew v. Rogers, 103
U.S.App.D.C. 228, 257 F.2d 606 (1958). The BIA has accepted that
decision, and although the Act provides that the burden of proof is
on the alien in an exclusion proceeding, § 291, 8 U.S.C. § 1361
(1976 ed., Supp. V), the BIA has followed the practice of placing
the burden on the Government when the alien is a permanent resident
alien. See, e.g., In re Salazar, 17 I. & N.Dec. at
169; In re Kane, 15 I. & N.Dec. 258, 264 (BIA 1975); In re Becerra-Miranda, 12 I. & N.Dec. 358, 363-364,
366 (BIA 1967). There is no explicit statement of the placement of
the burden of proof in the Attorney General's regulations or in the
Immigration Law Judge's opinion in this case, and no finding on the
issue below.

															Second, Plasencia contends that the notice provided her was
inadequate. She apparently had less than 11 hours' notice of the
charges and the hearing. The regulations do not Page 459 U. S. 36 require any advance notice of the charges against the alien in
an exclusion hearing, and the BIA has held that it is sufficient
that the alien have notice of the charges at the hearing, In re
Salazar, supra, at 169. The United States has argued to us
that Plasencia could have sought a continuance. It concedes,
however, that there is no explicit statutory or regulatory
authorization for a continuance.

															Finally, Plasencia contends that she was allowed to waive her
right to representation, § 292, 8 U.S.C. § 1362, [ Footnote 8 ] without a full understanding of
the right or of the consequences of waiving it. Through an
interpreter, the Immigration Law Judge informed her at the outset
of the hearing, as required by the regulations, of her right to be
represented. He did not tell her of the availability of free legal
counsel, but, at the time of the hearing, there was no
administrative requirement that he do so. 8 CFR § 236.2(a) (1975).
The Attorney General has since revised the regulations to require
that, when qualified free legal services are available, the
immigration law judge must inform the alien of their existence and
ask whether representation is desired. 44 Fed.Reg. 4654 (1979)
(codified at 8 CFR § 236.2(a) (1982)). As the United States
concedes, the hearing would not comply with the current
regulations. See Tr. of Oral Arg. 11.

															If the exclusion hearing is to ensure fairness, it must provide
Plasencia an opportunity to present her case effectively, though at
the same time it cannot impose an undue burden on the Government.
It would not, however, be appropriate for us to decide now whether
the new regulation on the right to notice of free legal services is
of constitutional magnitude, or whether the remaining procedures
provided comport with the Due Process Clause. Before this Court,
the parties have devoted their attention to the entitlement to a
deportation hearing, rather than to the sufficiency of the
procedures in the Page 459 U. S. 37 exclusion hearing. [ Footnote
9 ] Whether the several hours' notice gave Plasencia a realistic
opportunity to prepare her case for effective presentation in the
circumstances of an exclusion hearing without counsel is a question
we are not now in a position to answer. Nor has the Government
explained the burdens that it might face in providing more
elaborate procedures. Thus, although we recognize the gravity of
Plasencia's interest, the other factors relevant to due process
analysis -- the risk of erroneous deprivation, the efficacy of
additional procedural safeguards, and the Government's interest in
providing no further procedures -- have not been adequately
presented to permit us to assess the sufficiency of the hearing. We
remand to the Court of Appeals to allow the parties to explore
whether Plasencia was accorded due process under all of the
circumstances.

															Accordingly, the judgment of the Court of Appeals is reversed,
and the case is remanded for further proceedings consistent with
this opinion. It is so ordered. [ Footnote 1 ]

															Section 235, as set forth in 8 U.S.C. § 1225, provides in
part:

															"(a) 'The inspection . . . of aliens (including alien crewmen)
seeking admission or readmission to . . . the United States shall
be conducted by immigration officers, except as otherwise provided
in regard to special inquiry officers. All aliens arriving at ports
of the United States shall be examined by one or more immigration
officers at the discretion of the Attorney General and under such
regulations as he may prescribe. . . .'"

															"(b) 'Every alien . . . who may not appear to the examining
immigration officer at the port of arrival to be clearly and beyond
a doubt entitled to land shall be detained for further inquiry to
be conducted by a special inquiry officer.'"

															[ Footnote 2 ]

															The hearing was authorized by § 236(a), which, as set forth in 8
U.S.C. § 1226(a), provides:

															"A special inquiry officer shall conduct proceedings under this
section, administer oaths, present and receive evidence, and
interrogate, examine, and cross-examine the alien or witnesses. He
shall have authority in any case to determine whether an arriving
alien who has been detained for further inquiry under section 1225
of this title shall be allowed to enter or shall be excluded and
deported. The determination of such special inquiry officer shall
be based only on the evidence produced at the inquiry. . . .
Proceedings before a special inquiry officer under this section
shall be conducted in accordance with this section, the applicable
provisions of sections 1225 and 1375(b) of this title, and such
regulations as the Attorney General shall prescribe, and shall be
the sole and exclusive procedure for determining admissibility of a
person to the United States under the provisions of this section. .
. . A complete record of the proceedings and of all testimony and
evidence produced at such inquiry shall be kept."

															[ Footnote 3 ]

															Section 101(a)(13), 8 U.S.C. 1101(a)(13), defines "entry" as

															"any coming of an alien into the United States, from a foreign
port or place or from an outlying possession, whether voluntarily
or otherwise, except that an alien having a lawful permanent
residence in the United States shall not be regarded as making an
entry into the United States for the purposes of the immigration
laws if the alien proves to the satisfaction of the Attorney
General that his departure to a foreign port or place or to an
outlying possession was not intended or reasonably to be expected
by him or his presence in a foreign port or place or in an outlying
possession was not voluntary: Provided, That no person
whose departure from the United States was occasioned by
deportation proceedings, extradition, or other legal process shall
be held to be entitled to such exception."

															[ Footnote 4 ]

															Voluntary departure for an alien who would otherwise be deported
also means that he will not be subject to § 212(a)(17), 8 U.S.C. §
1182(a)(17), which, at the time of Plasencia's hearing, required
aliens who had once been deported to seek prior approval of the
Attorney General before reentering. There was no comparable
requirement of prior approval for aliens who had been excluded and
sought again to enter more than one year later. § 212(a)(16), 8
U.S.C. § 1182(a)(16). The requirement of prior approval for
deported aliens now applies only within five years of deportation.
95 Stat. 1612, § 212(a)(17), 8 U.S.C. § 1182(a)(17) (1976 ed.,
Supp. V).

															[ Footnote 5 ]

															Apparently the practice of the INS is to determine this question
in exclusion proceedings. See In re Leal, 15 I. &
N.Dec. 477, 478-479 (BIA 1975); In re Becerra-Miranda, 12
I. & N.Dec. 358, 362-363 (BIA 1967).

															[ Footnote 6 ]

															Section 101(a)(13), 8 U.S.C. § 1101(a)(13), which defines
"entry," was enacted in 1952 in response to the harsh results
visited upon resident aliens by earlier restrictive interpretations
of the term. Both the House and Senate Reports contained identical
explanatory language:

															"Normally an entry occurs when the alien crosses the borders of
the United States and makes a physical entry, and the question of
whether an entry has been made is susceptible of a precise
determination. However, for the purposes of determining the effect
of a subsequent entry upon the status of an alien who has
previously entered the United States and resided therein, the
preciseness of the term 'entry' has not been found to be as
apparent. Earlier judicial constructions of the term in the
immigration laws, as set forth in Volpe v.
Smith ( 289 U.S.
422 (1933)), generally held that the term 'entry' included any
coming of an alien from a foreign country to the United States,
whether such coming be the first or a subsequent one. More
recently, the courts have departed from the rigidity of that rule,
and have recognized that an alien does not make an entry upon his
return to the United States from a foreign country where he had no
intent to leave the United States ( Di Pasquale v. Karnuth, 158 F.2d 878 (C.C.A.2d 1947)), or did not leave the country
voluntarily ( Deladillo v. Carmichael, 332 U. S.
388 (1947)). The bill defines the term 'entry' as
precisely as practicable, giving due recognition to the judicial
precedents. Thus, any coming of an alien from a foreign port or
place or an outlying possession into the United States is to be
considered an entry, whether voluntary or otherwise, unless the
Attorney General is satisfied that the departure of the alien,
other than a deportee, from this country was unintentional or was
not voluntary."

															S.Rep. No. 1137, 82d Cong., 2d Sess., 4 (1962); H.R.Rep. No.
1365, 82d Cong., 2d Sess., 32 (1962).

															In Di Pasquale, the court refused to allow a
deportation that depended upon an "entry" that occurred after an
overnight train on which an alien was a passenger passed through
Canada on its way from Buffalo to Detroit. In Delgadillo, the Court refused to define as an "entry" the return of an alien
taken to Cuba to recuperate after the merchant ship on which he
ailed was torpedoed in the Caribbean during World War II.

															[ Footnote 7 ]

															Indeed, we expressly declined to reach the question whether Chew
himself was entitled to a deportation proceeding. We stated:

															"From a constitutional point of view, he is entitled to due
process without regard to whether or not, for immigration purposes,
he is to be treated as an entrant alien, and we do not now reach
the question whether he is to be so treated."

															344 U.S. at 344 U. S.
600 .

															[ Footnote 8 ]

															The statute provides a right to representation without expense
to the Government. § 292, 8 U.S.C. § 1362. Plasencia has not
suggested that she is entitled to free counsel.

															[ Footnote 9 ]

															Thus, the question of Plasencia's entitlement to due process has
been briefed and argued, is properly before us, and is sufficiently
developed that we are prepared to decide it. Precisely what
procedures are due, on the other hand, has not been adequately
developed by the briefs or argument. The dissent undertakes to
decide these questions, but, to do so, must rely heavily on an
argument not raised by Plasencia: to-wit, that she was not informed
at the hearing that the alleged agreement to receive compensation
and the meaningfulness of her departure were critical issues. Also,
the dissent fails to discuss the interests that the Government may
have in employing the procedures that it did. The omission of
arguments raised by the parties is quite understandable, for
neither Plasencia nor the Government has yet discussed what
procedures are due. Unlike the dissent, we would allow the parties
to explore their respective interests and arguments in the Court of
Appeals.

															JUSTICE MARSHALL, concurring in part and dissenting in part.

															I agree that the Immigration and Nationality Act permitted the
INS to proceed against respondent in an exclusion Page 459 U. S. 38 proceeding. The question then remains whether the exclusion
proceeding held in this case satisfied the minimum requirements of
the Due Process Clause. While I agree that the Court need not
decide the precise contours of the process that would be
constitutionally sufficient, I would not hesitate to decide that
the process accorded Plasencia was insufficient. [ Footnote 2/1 ]

															The Court has already set out the standards to be applied in
resolving the question. Therefore, rather than just remand, I would
first hold that respondent was denied due process because she was
not given adequate and timely notice of the charges against her and
of her right to retain counsel and to present a defense. [ Footnote 2/2 ]

															While the type of hearing required by due process depends upon a
balancing of the competing interests at stake, due process
requires, "at a minimum . . . , that deprivation of life, liberty
or property by adjudication be preceded by notice and opportunity
for hearing." Mullane v. Central Hanover Bank & Trust
Co., 339 U. S. 306 , 339 U. S. 313 (1950). See, e.g., Bell v. Burson, 402 U.
S. 535 , 402 U. S. 542 (1971). Permanent resident aliens who are detained upon reentry
into this country clearly are entitled to adequate notice in
advance of an exclusion proceeding. Page 459 U. S. 39 To satisfy due process, notice must "clarify what the charges
are" in a manner adequate to apprise the individual of the basis
for the government's proposed action. Wolff v. McDonnell, 418 U. S. 539 , 418 U. S. 564 (1974). Notice must be provided sufficiently in advance of the
hearing to "give the charged party a chance to marshal the facts in
his defense." Id. at 418 U. S. 563 , 418 U. S. 564 (prisoners charged with disciplinary violations must be given
"advance written notice of the claimed violation"). See, e.g.,
Goldberg v. Kelly, 397 U. S. 254 , 397 U. S.
267 -268 (1970) (welfare recipients must be given "timely
and adequate notice detailing the reasons for a proposed
termination"); In re Gault, 387 U. S.
1 , 387 U. S. 33 (1967) (juvenile must be given notice of "the specific charge or
factual allegations" to be considered at delinquency hearing "at
the earliest practicable time, and in any event sufficiently in
advance of the hearing to permit preparation").

															Respondent was not given notice sufficient to afford her a
reasonable opportunity to demonstrate that she was not excludable.
The Immigration Judge's decision to exclude respondent was handed
down less than 24 hours after she was detained at the border on the
night of June 29, 1975. By notice in English dated June 30, 1975,
she was informed that a hearing would be conducted at 11 o'clock on
the morning of that same day, and that the Government would seek to
exclude her on the ground that she had "wilfully and knowingly
aided and abetted the entry of illegal aliens into the United
States in violation of the law and for gain." [ Footnote 2/3 ] It was not until the commencement of
the hearing that she was given notice in her native language of the
charges against her and of her right to retain counsel and to
present evidence.

															The charges against Plasencia were also inadequately explained
at the hearing itself. [ Footnote
2/4 ] The Immigration Judge did not explain to her that she
would be entitled to remain in the Page 459 U. S. 40 country if she could demonstrate that she had not agreed to
receive compensation from the aliens whom she had driven across the
border. [ Footnote 2/5 ] Nor did the
judge inform respondent that the meaningfulness of her departure
was an issue at the hearing.

															These procedures deprived Plasencia of a fair opportunity to
show that she was not excludable under the standards set forth in
the Immigration and Nationality Act. Because Plasencia was not
given adequate notice of the standards for exclusion or of her
right to retain counsel and present a defense, she had neither time
nor opportunity to prepare a response to Page 459 U. S. 41 the Government's case. The procedures employed here virtually
assured that the Government attorney would present his case without
factual or legal opposition.

															When a permanent resident alien's substantial interest in
remaining in this country is at stake, the Due Process Clause
forbids the Government to stack the deck in this fashion. Only a
compelling need for truly summary action could justify this
one-sided proceeding. In fact, the Government's haste in proceeding
against Plasencia could be explained only by its desire to avoid
the minimal administrative and financial burden of providing her
adequate notice and an opportunity to prepare for the hearing.
Although the various other Government interests identified by the
Court may be served by the exclusion of those who fail to meet the
eligibility requirements set out in the Immigration and Nationality
Act, they are not served by procedures that deny a permanent
resident alien a fair opportunity to demonstrate that she meets
those eligibility requirements.

															I would therefore hold that respondent was denied due
process.

															[ Footnote 2/1 ]

															Because the due process question was squarely addressed in the
briefs and at oral argument, there is no doubt that the Court may
now decide the issue. See Vance v. Terrazas, 444 U.
S. 252 , 444 U. S.
258 -259, n. 5 (1980), and cases cited therein. In fact,
the Court has reached the threshold of deciding the constitutional
question. It has identified the deficiencies in the exclusion
hearing afforded Plasencia, and it has set forth the standards that
it would apply to determine whether the procedures, as described,
denied Plasencia due process. I do not see any interest to be
served in declining to take the final step of applying these due
process standards to the record before us, as the Court of Appeals
would otherwise be required to do on remand.

															[ Footnote 2/2 ]

															Because Plasencia did not receive constitutionally sufficient
notice, I find it unnecessary to address the other constitutional
deficiencies she asserts.

															[ Footnote 2/3 ]

															It is unclear from the record whether respondent received the
notice prior to the commencement of the hearing.

															[ Footnote 2/4 ]

															The exclusion hearing was conducted with the aid of an
interpreter.

															[ Footnote 2/5 ]

															The principal issue of fact at the hearing was whether Plasencia
had transported the six aliens "for gain." Plasencia, who was
called as the Government's first witness, denied repeatedly that
any of the aliens had agreed to pay her for driving them into this
country. The Government's trial attorney then called three of the
six aliens as witnesses. One witness, Jose Alfredo Santillana,
stated unequivocally that he was picked up by the Plasencias while
hitchhiking and that, without making any mention of money, they
agreed to drive him to Los Angeles. A second witness, Luis
Polio-Medina, testified that there had not been any talk with
Plasencia at any time about payment for transportation to Los
Angeles, though there "was kind of an understanding" that "some
people in Los Angeles" whom he "was going to look for" would pay
her a "normal amount" on his behalf. Only the third witness,
Eugenia Linares-Moreno, testified that she had an agreement to pay
Plasencia for transportation into the country.

															Given the weakness of the Government's evidence, Plasencia may
well have been prejudiced by her inability to prepare for the
hearing and to obtain counsel. The three aliens who did not testify
at the hearing might have supported Plasencia's claim that she did
not expect to receive financial compensation. The Immigration
Judge's finding that Plasencia transported the aliens for gain must
have depended on his acceptance of the testimony given by
Linares-Moreno and Polio-Medina. The motives of these Government
witnesses in testifying against Plasencia were open to question,
since they were subject to criminal prosecution in this country.
The credibility of Linares-Moreno, the Government's key witness,
might also have been challenged on the grounds that she had
contradicted herself on at least one key question during the course
of her examination, and that she had concededly lied to an INS
officer by giving a false name. Vigorous cross-examination by a
competent attorney might well have led the Immigration Judge to
resolve the disputed issue of fact in Plasencia's favor.