b'Immigration Laws and Iranian Students\nT 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\nh 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\nu 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\nw 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.\nW 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 \xc2\xa7 241(a)(7) o f th e IN A\nw 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 \xc2\xad\nq u en ces in d e te rm in in g w h e th e r an alien \xe2\x80\x99s c o n tin u e d p resen c e in th e U n ited S tates is\np 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\nw 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\np erso n s in term s o f th eir exercise o f F irst A m en d m en t rights.\nB 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\no 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\nth 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\nd 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\nan d foreign p o licy in terests at sta k e in th e p resen t crisis.\n\nN ovem ber 11, 1979\nM 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\nThis memorandum has been prepared by this Office and the Immi\xc2\xad\ngration and Naturalization Service (IN S) G eneral C ounsel\xe2\x80\x99s office. It\naddresses the statutory provisions regarding entry and deportation o f\naliens as they pertain to Iranian nationals in the United States. It also\nexamines the constitutional authority o f Congress to enact legislation\naffecting Iranians residing in, or attem pting to enter, this country. W e\nconclude: (1) that the President presently possesses the authority to halt\nentry o f Iranians into the United States; (2) that, w hile the m atter is\nlargely unprecedented and would raise nonfrivolous constitutional ques\xc2\xad\ntions, the A ttorney G eneral may be able to prom ulgate standards w hich\nw hich w ould render deportable aliens whose presence in this country is\nprejudicial to the public interest and threatens the conduct o f foreign\naffairs; (3) that the immigration laws and the Constitution require that\nall persons receive a hearing and judicial review before being deported;\n(4) that it is therefore unlikely that deportations could be effected with\nsufficient immediacy to have an impact on the present crisis in Tehran;\n(5) that the A ttorney G eneral could require all Iranian nonim migrant\nstudents to dem onstrate to the IN S that they are \xe2\x80\x9c in status\xe2\x80\x9d (i.e., not\ndeportable); (6) that regulations and statutes directed solely at Iranian\n133\n\n\x0cnationals would not violate the Constitution; and (7) that Congress has\nthe authority to bar from entering and to deport Iranians.\nI. Population of Iranians\nIranian nationals in the United States may fall into four categories:\n(1) lawful perm anent residents; (2) nonimmigrants; (3) parolees; and (4)\naliens in the United States in violation o f law.\nLaw ful perm anent residents as defined in \xc2\xa7 101(a)(20) of the Im m igra\xc2\xad\ntion and Nationality A ct (IN A o r A ct), 8 U.S.C. \xc2\xa7 1101(a)(20), are\naliens w ho have entered legally with im migrant visas or who have\nadjusted status while in the United States. A lawful perm anent resident\nmay remain in the United States indefinitely unless he commits miscon\xc2\xad\nduct covered by the deportation grounds set forth in \xc2\xa7 241(a) o f the\nAct, 8 U.S.C. \xc2\xa7 1251(a).\nNonim m igrants are aliens within one o f the tw elve categories speci\xc2\xad\nfied in \xc2\xa7 101(a)(15) o f the A ct, 8 U.S.C. \xc2\xa7 1101(a)(15). Generally,\nnonim m igrants are adm itted for a particular purpose for a period of\ntime, and under such conditions as the A ttorney G eneral may specify.\n\xc2\xa7 214(a) o f the IN A , 8 U.S.C. \xc2\xa7 1184(a). As o f August 30, 1979 there\nw ere approxim ately 130,000 nonim m igrants from Iran in the United\nStates. O f these, approxim ately 50,000 w ere nonim migrant students as\ndefined in \xc2\xa7 101(a)(15) o f the A ct, 8 U.S.C. \xc2\xa7 1101(a)(15).\nA few Iranians may be in the United States as parolees who were\nallowed to enter tem porarily for em ergency reasons or for reasons\ndeemed strictly in the public interest in accordance with the authority\no f the A ttorney G eneral under \xc2\xa7 212(d)(5) o f the A ct, 8 U.S.C.\n\xc2\xa7 1182(d)(5). Parolees are not considered to have been \xe2\x80\x9cadm itted\xe2\x80\x9d to\nthe United States and may be ordered to depart in an exclusion pro\xc2\xad\nceeding rather than a deportation proceeding.\nIranians w ho entered the country illegally o r w ho have failed to\nmaintain nonim migrant status would be considered to be here in viola\xc2\xad\ntion o f law and w ould be prim a facie deportable.\nII. Present Policy Toward Iranians\nAs a result o f discussions between the State D epartm ent and the\nJustice D epartm ent following the fall o f the Shah, IN S has instituted a\npractice o f granting \xe2\x80\x9cextended voluntary departure\xe2\x80\x9d to Iranians in the\nUnited States w ho may be out o f status but w ho have expressed an\nunwillingness to return to Ira n .1 An alien granted extended voluntary\ndeparture is effectively perm itted to stay in this country for an undeter\xc2\xad\nmined period o f time. In addition, INS has deferred inspection of\npotentially excludable Iranians w ho claim political asylum. On the basis\n\'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\npolicy.\n\n134\n\n\x0cof representations made by the State D epartm ent, the foregoing policies\nhave been extended until June 1, 1980. Therefore, no Iranians are\ncurrently being deported from the United States against their will.\nIranians who have been allowed to remain under these policies may be\ngranted work authorization by the INS. A t present, approxim ately\n4,400 Iranians have been granted extended voluntary departure under\nthe INS policy.\nT he original rationale for the policy o f not enforcing departure was\nthat the State D epartm ent was unsure about conditions in Iran follow \xc2\xad\ning the fall o f the Shah\xe2\x80\x99s governm ent. By not taking a position with\nrespect to involuntary return o f Iranians, the State D epartm ent believed\nthat it would have an opportunity to allow the situation in Iran to\nstabilize. In addition, claims for asylum w ere not determ ined because it\nwas believed that statem ents regarding the likelihood o f persecution in\nIran may have had an adverse im pact on the establishment o f diplo\xc2\xad\nmatic relations w ith the new Iranian governm ent.\nIt should also be noted that since January 1, 1979, all nonimmigrant\nstudents, including Iranians, have been eligible for \xe2\x80\x9cduration o f status\xe2\x80\x9d\nunder INS regulations. 8 C .F.R . \xc2\xa7 214.2(0(2) (1979). A student adm itted\nfor \xe2\x80\x9cduration o f status\xe2\x80\x9d has no date specified for the expiration o f his\nstay, but may remain for so long as he continues to be a full-time\nstudent in good standing at his school.\nIII. Statutory Entry and Deportation Procedures\nT he IN A provides elaborate procedures regarding entry and expul\xc2\xad\nsion o f aliens. As discussed below, several o f the procedures are consti\xc2\xad\ntutionally required.\nA. Entry\n\nImmigrants may be adm itted into the United States if they possess a\nvalid visa and are not otherw ise excludable under \xc2\xa7212 o f the IN A , 8\nU.S.C. \xc2\xa71182. Section 212 lists 33 grounds for exclusion including\ninsanity, drug addiction, pauperism, conviction o f a crim e involving\nmoral turpitude, prostitution, false procurem ent o f docum entation or\nfraud, advocacy o f anarchism and communism, or engaging in subver\xc2\xad\nsive activities. Nonim m igrants (e.g., students, visitors, consular officials,\nforeign press) are adm itted upon conditions and for such time as estab\xc2\xad\nlished by regulations by the A ttorney General. \xc2\xa7 214 o f the IN A , 8\nU.S.C. \xc2\xa7 1184.\nAliens seeking entry are inspected by immigration officers w ho may\ndetain for further inquiry aliens \xe2\x80\x9c w ho may not appear . . . to be clearly\nand beyond a doubt entitled\xe2\x80\x9d to enter. \xc2\xa7 235(b) o f the IN A , 8 U.S.C.\n\xc2\xa7 1225(b). Such further inquiry occurs before a special inquiry officer\n(immigration judge), w ho is authorized to administer oaths, present and\nreceive evidence, examine and cross-examine the alien or witnesses.\n\n135\n\n\x0cT he alien is entitled to representation by counsel, and a com plete\nrecord o f the proceedings must be kept. \xc2\xa7\xc2\xa7 235, 236, 292 o f the IN A , 8\nU.S.C. \xc2\xa7\xc2\xa7 1225, 1226, 1362. A decision excluding an alien may be\nappealed to the Board o f Imm igration Appeals, an independent quasi\xc2\xad\njudicial appellate body created by the A ttorney G eneral within the\nD epartm ent o f Justice. 8 C .F.R . \xc2\xa73.1. Board decisions in exclusion\ncases are reviewable in federal district court by habeas corpus.\nT he IN A gives the President authority to \xe2\x80\x9csuspend the entry o f all\naliens or any class o f aliens as immigrant o r nonimmigrants, o r impose\non the entry o f aliens any restrictions he may deem to be appropriate\xe2\x80\x9d\nupon a finding that entry \xe2\x80\x9cw ould be detrim ental to the interests o f the\nUnited States.\xe2\x80\x9d \xc2\xa7 2 12(0 o f the IN A , 8 U.S.C. \xc2\xa71182(0- See also\n\xc2\xa7 215(a)(1) o f the IN A , 8 U.S.C. \xc2\xa7 1185(a)(1), as am ended by Pub. L.\nNo. 95-426, \xc2\xa7 707, 92 Stat. 992 (1978).\nB. Deportation\n\nT he IN A specifies 19 grounds for deportation o f aliens. These in\xc2\xad\nclude excludability at time o f entry, conviction o f a crim e involving\nm oral turpitude, advocacy o f anarchism o r communism, involvem ent in\nnarcotic use or sale, and failure to maintain status o r to com ply with\nany condition o f status. A deportable alien may be arrested upon a\nw arrant o f the A ttorney G eneral and held in custody o r released on\nbond. M ost deportation cases are initiated by the issuance o f an order\nto show cause w ithout the issuance o f a w arrant o f arrest. A t the\nensuing deportation proceeding, conducted by a special inquiry officer,\nthe alien is entitled to notice o f the charges against him and o f the time\nand place o f the proceedings, to counsel, and to an opportunity to\nexamine the evidence against him, present evidence in his ow n behalf\nand cross examine governm ent witnesses. \xc2\xa7 242 of the IN A , 8 U.S.C.\n\xc2\xa7 1252. T h e G overnm ent has the burden o f proving deportability by\nclear, convincing, and unequivocal evidence. Woodby v. INS, 385 U.S.\n276 (1966). T he decision o f the special inquiry officer is appealable to\nthe Board o f Im m igration Appeals (BIA). Thereafter, judicial review is\navailable in the court o f appeals. \xc2\xa7 106(a) o f the A ct, 8 U.S.C.\n\xc2\xa7 1105 (a). A ny alien held in custody under an order o f deportation\nmay also obtain judicial review through habeas corpus proceedings.\nM ost o f the statutory provisions establishing hearing rights are consti\xc2\xad\ntutionally required. Since at least 1903, it has been recognized that the\nD ue Process Clause o f the Constitution applies to deportation proceed\xc2\xad\nings. T h e Japanese Im m igrant Case, 189 U.S. 86, 100-02 (1903). Wong\nYang Sung v. M cGrath, 339 U.S. 33, 49-51 (1950); Kwong H ai Chew v.\nColding, 344 U.S. 590, 596-98 (1953). W hile C ongress may have plenary\nauthority to determ ine w hat classes o f aliens must leave the United\nStates, see below, deportable aliens may not be expelled w ithout a\n136\n\n\x0chearing. H ow ever, the provision o f a right o f appeal to the BIA and\nthen to a federal court o f appeals is not constitutionally required.\nC. Claim s fo r Asylum\n\nAn alien in either exclusion or deportation proceedings may apply\nfor asylum under INS regulation if he claims that he would be perse\xc2\xad\ncuted in his home country on the basis o f race, religion, nationality,\npolitical opinions, o r membership in a particular social group. 8 C.F.R.\n\xc2\xa7 105 (1979). See also \xc2\xa7 243(h) o f the A ct, 8 U.S.C. \xc2\xa7 1253(h).\nIV. Grounds for Deportation and Exclusion Under Current Law\nA. Deportation\n\n1. Lawful permanent resident aliens\nPotential grounds for deportation o f Iranian nationals presently in the\nUnited States are contained in tw o subsections of the IN A . \xc2\xa7 241(a)(4)\nand (7) o f the IN A , 8 U.S.C. \xc2\xa7 1251(a)(4), (7). Section 241(a)(4) pro\xc2\xad\nvides for the deportation o f an alien w ho within 5 years after entry into\nthe United States is convicted o f a crim e involving moral turpitude and\nis sentenced to a year or m ore in prison, o r who is convicted o f tw o\ncrimes involving moral turpitude at any time after entry. This section\nwould become operative, for example, if an Iranian national is con\xc2\xad\nvicted o f com m itting a crim e o f violence in this country.\nSection 241(a)(7), 8 U.S.C. \xc2\xa7 1251(a)(7), provides for the deportation\nof an alien w ho has engaged in, or has the purpose o f engaging in,\nactivities described in \xc2\xa7212(a)(27) of the IN A , 8 U.S.C. \xc2\xa7 1182(a)(27).\nSection 212(a)(27) renders excludable any alien w ho the A ttorney G en\xc2\xad\neral has reason to believe seeks to enter the United States to engage in\nactivities \xe2\x80\x9cwhich would be prejudicial to the public interest, o r endan\xc2\xad\nger the welfare, safety, or security o f the United States.\xe2\x80\x9d T he BIA has\nindicated, in dicta, that \xc2\xa7 212(a)(27) \xe2\x80\x9cis broad enough to apply to others\nthan subversives.\xe2\x80\x9d M atter o f M cD onald and Brewster, 15 I&N Dec. 203,\n205 (BIA 1975) (refusing to bar entry o f persons carrying six marijuana\ncigarettes).2 In that decision, the Board interpreted \xc2\xa7212(a)(27) to bar\nentry o f persons w ho seek to engage in activities \xe2\x80\x9cinimicable to the\ninternal security o f the United States.\xe2\x80\x9d Id. This Office has opined that\nthis section would authorize the exclusion o f six Rhodesian officials\nseeking to enter the United States to attend an agricultural convention;\nsuch entry was arguably deemed prejudicial to this nation\xe2\x80\x99s conduct o f\nforeign affairs.\n\'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\n\xc2\xa7 (a)(27)).\n\n137\n\n\x0cT he scope o f \xc2\xa7 241(a)(7) is unclear. T he leading treatise states that\nthe section\xe2\x80\x99s \xe2\x80\x9cexpansive and undefined pow er has not yet been invoked\nin any actual case.\xe2\x80\x9d 1A G ordon & Rosenfield, Im m igration Law and\nP rocedure \xc2\xa7 4 .10c, at p. 4-93 (1979). A reasonable reading of the\nsection, supported by its legislative history, w ould allow the A ttorney\nG eneral to take into account serious adverse foreign policy conse\xc2\xad\nquences in determ ining w hether an alien\xe2\x80\x99s stay here is prejudicial to the\npublic interest. A rguably, the A ttorney G eneral, perhaps upon advice\nfrom the Secretary o f State, could determ ine that the presence of\nparticular Iranian nationals severely injures the ability o f this country to\nconduct foreign policy and threatens the m aintenance o f public order.\nT he question is not free from doubt, how ever. A lthough this Office has\nopined heretofore that a broad reading o f this statute is w arranted, a\nsubstantial argum ent can be made that the \xe2\x80\x9cpublic interest\xe2\x80\x9d ground for\ndeporting aliens was intended by C ongress to give the A ttorney G en\xc2\xad\neral the pow er to deport only w here the conduct o f the alien is inimical\nto the public interest, rather than w here his presence is thought prejudi\xc2\xad\ncial to the United States. If that reading o f the statute is co rrec t,3 then\nthe operation o f this provision w ould require a determ ination of the\ntype o f activity that is cause for deportation. We have serious doubt\nw hether the identification o f the class o f deportable persons could be\nmade to turn on their exercise o f First A m endm ent rights. Thus it\nw ould probably not be constitutionally appropriate to identify for de\xc2\xad\nportation all those aliens w ho have participated in m arches or dem on\xc2\xad\nstrations advocating the death o r extradition o f the Shah. Cf. Harisiades\nv. Shaughnessy, 342 U.S. 580, 592 (1952); Dennis v. United States, .341\nU.S. 494, 502 (1951); In the M atter o f M., supra, 5 I&N Dec. at 252. In\nshort, while this section appears to give the A ttorney General wide\ndiscretion in determ ining w ho may remain in the United States, it may\nbe difficult to establish appropriate guidelines for its implementation.\n2. Nonim m igrants\nA nonim migrant is subject to the same grounds o f deportation under\n\xc2\xa7 241(a)(4) and (7) as discussed above. In addition, a nonim m igrant who\nhas remained beyond the length o f his authorized stay may be deported\nas an overstay under \xc2\xa7 241(a)(2) o f the Act. H ow ever, as noted above,\nsince January 1, 1979, all nonim m igrant students, including Iranians,\nhave been adm itted w ithout a specified departure date and may remain\nas long as they continue to be students in good standing with their\nschools.\nExam ples o f violations o f status are w orking w ithout authorization or\nperform ing other activities w hich are inherently inconsistent with the\n3 T h e Suprem e C o u rt has held th at dep o rtatio n provisions should be strictly construed. Fong Haw\nTan v. Phelan. 333 U.S. 6, 10 (1948).\n\n138\n\n\x0cpurpose for admission. H ow ever, the Board of Im m igration Appeals\nhas held that the test for students under \xc2\xa7 2 4 1(a)(9) is w hether the\nstudent\xe2\x80\x99s actions have meaningfully interrupted his studies. M atter o f\nM urat-Kahn 14 I&N Dec. 465 (BIA 1973). This view has been endorsed\nby at least one appellate court. M ashi v. INS, 585 F.2d 1309 (5th Cir.\n1978). Therefore, under current law the mere fact of arrest, even when\nfollowed by incarceration, does not autom atically term inate a student\xe2\x80\x99s\nstatus.\n3. Illegal entrants\nAn Iranian w ho entered the United States with an im proper visa or\nwithout inspection would be deportable under \xc2\xa7\xc2\xa7 241(a)(1) or (2).\nB. Exclusion\n\nAssuming that an Iranian seeking to enter the United States as an\nimmigrant o r a nonim migrant had a proper visa, the relevant exclusion\ngrounds would be \xc2\xa7\xc2\xa7 212(a)(27) and (29), 8 U.S.C. \xc2\xa7 1182(a)(27), (29).\nSection 212(a)(27) relates to aliens seeking to enter the United States\nsolely, principally, or incidentally to engage in activities which would\nbe prejudicial to the public interest, or endanger the welfare, safety, or\nsecurity o f the United States. This statutory language may have broad\napplicability as discussed above. Section 212(a)(29)(A) covers certain\nsubversive activities and would be narrow er in scope than \xc2\xa7212(a)(27).\nV. Executive Branch Options Under Present Statutory Authority\nA. Procedural Options\n\n1. D eportation\nNonim m igrants w ho are out o f status are deportable. H ow ever, expe\xc2\xad\nditious deportation o f these persons may not presently be possible\nbecause of practical problems in identifying and locating them. Even if\nout-of-status persons are found, deportation proceedings, and subse\xc2\xad\nquent BIA and judicial review, take on the average 1 year.4 Since a\ndeportation hearing is constitutionally required, and judicial review is\nprovided by statute, it will be difficult to expedite proceedings. The\nBIA, which is created by regulation, could be eliminated, although\nsuch action could sacrifice uniformity of and control over deportation\nproceedings. The A ttorney General could order increased investigation\no f the status o f Iranian nonimmigrants and order the IN S and B IA to\nassign priority to deportation proceedings against such aliens. It should\n4 T he IN S estim ates that this involves tw o m onths at the IN S district office, four m onths at the\nBIA, and six m onths in the court o f appeals.\n\n139\n\n\x0cbe recognized, how ever, that the Constitution and the IN A prevent any\nsum m ary deportation o f Iranian nationals.\n2. E ntry\nT he IN A gives the President broad authority to prescribe regulations\nconditioning or limiting entry o f aliens, o r any class o f aliens. \xc2\xa7\xc2\xa7 212(f),\n215 o f the IN A , 8 U.S.C. \xc2\xa7\xc2\xa7 1182(f), 1185. In addition to substantive\nlimits on entry, discussed below, these provisions could authorize the\nPresident to establish special screening procedures for Iranian nationals\nto probe their reasons for entry and activities they plan to undertake in\nthe United States. Such regulations must meet the test o f \xe2\x80\x9creasonable\xc2\xad\nness\xe2\x80\x9d ; presumably they could be justified if the President has inform a\xc2\xad\ntion that Iranian terrorists o r other persons intending to undertake\nviolent action in this country are seeking entry.\nB. Substantive Options\n\n1. Entering aliens\na. Change conditions o f stay. U nder the authority o f \xc2\xa7 214(a), the INS\npublished proposed regulations in August, 1979, w hich would make\nconviction for commission o f a violent crim e for w hich a sentence of\none year o r m ore could be imposed a violation o f nonim m igrant status.\nIn addition, the proposed regulations w ould make the provision of\ntruthful inform ation to the IN S a condition o f a nonim m igrant\xe2\x80\x99s stay in\nthe United States. These regulations could be put into effect by some\ntime in Decem ber, 1979. T he IN S expects that student groups will\nchallenge these regulations on the ground that they add deportation\ngrounds not provided by Congress.\nb. Presidential order under \xc2\xa7\xc2\xa7 212(f) and 215(a). U nder \xc2\xa7\xc2\xa7212(0 and\n215(a) o f the A ct, the President could declare that the admission of\nIranians o r certain classes o f Iranians w ould be detrim ental to the\ninterests o f the United States. Such a restriction would have to meet\nthe test o f reasonableness. G iven the present uncertainty o f the situation\nin Iran, the possible internal problem s and violence w hich could be\ncaused by Iranians dem onstrating in the United States, and the diffi\xc2\xad\nculty in providing security for Iranians in the United States, such an\norder w ould probably be sustainable.\n2. Aliens in the U nited States\nU nder \xc2\xa7214 o f the A ct, the A ttorney G eneral could prom ulgate a\nregulation requiring all nonim m igrant students to appear at INS offices\n140\n\n\x0cand dem onstrate they have maintained status.5 T he justification for such\na regulation could be the necessity o f securing an accurate count of\nnonimmigrant students in the United States and reexamining their\nperiod o f stay in light o f recent events. It may be difficult to justify the\ninclusion o f nonim migrant students other than Iranians. It should be\nnoted that such action would be likely to overburden INS offices since\nthere are several hundred thousand nonim migrant students in the\nUnited States. Furtherm ore, locating and prosecuting persons w ho do\nnot appear would be difficult and resource-consuming.\nA m ore limited option would be to require only Iranian nonim mi\xc2\xad\ngrant students to appear at IN S offices. Such a regulation could be\njustified upon information that substantial numbers o f Iranian students\nare out o f status. H ow ever, it would produce the same practical prob\xc2\xad\nlems as the broader regulation (there are 50,000 nonim m igrant Iranian\nstudents).\n3. Restrictions on departure\nU nder \xc2\xa7215 the President could restrict the departure o f Iranians\nfrom the United States. H ow ever, this would seem to serve no useful\npurpose under the present circumstances.\nC. Equal Protection and Iranians\n\nSeveral o f the options outlined above single out Iranian nationals for\nspecial treatm ent\xe2\x80\x94 i.e., a bar on entry o f Iranians, special screening\nprocedures, requirem ents that Iranian nonim migrants report to IN S\ndistrict offices. A rguably, new requirem ents based on national origin\nraise equal protection concerns.\nIt is not likely that a court would invalidate any o f the proposed\nactions on the ground that they violated the Fifth A m endm ent.6 While\nthe States may not discriminate on the basis o f alienage w ithout dem on\xc2\xad\nstrating a compelling State interest, see Graham v. Richardson, 403 U.S.\n365 (1971), and aliens in the United States are protected by the due\nprocess guarantee o f the Fifth Am endm ent, Wong Yang Sung v.\nMcGrath, 339 U.S. 33, 48-51 (1950), the federal governm ent has plenary\npow er to legislate on immigration matters. T he Suprem e C ourt has\nrecognized that Congress may deny entry to, or require deportation of,\naliens on grounds w hich w ould be impermissible if applied to A m erican\ncitizens. See The Chinese Exclusion Case, 130 U.S. 581 (1889); Galvan v.\nPress, 347 U.S. 522 (1954); Oliver v. IN S, 517 F.2d 426, 428 (2d Cir.\n5 T h e "g o o d cause\xe2\x80\x9d exception to the A dm inistrative P rocedure A ct w ould have to be invoked to\npermit prom ulgation o f the regulation w ithout notice and com m ent. 5 U.S.C. \xc2\xa7 SS3.\n6 Federal regulation o f im m igration is tested by the Fifth A m endm ent, w hich essentially inco rp o \xc2\xad\nrates the F o u rteen th A m endm ent\xe2\x80\x99s guarantee o f equal protection. See H am pton v. Mow Sun Wong. 426\nU.S. 88, 99-101 (1976); Bolling v. Sharpe, 347 U.S. 497 (1954).\n\n141\n\n\x0c1975) (per curiam), cert, denied, 423 U.S. 1056 (1976). C ongress\xe2\x80\x99 plenary\npow er is based on the fact that entry and deportation classifications are\n\xe2\x80\x9cvitally and intricately interw oven w ith contem poraneous policies in\nregard to the conduct o f foreign relations, the w ar pow er, and the\nm aintenance of a republican form o f governm ent. Such m atters are so\nexclusively entrusted to the political branches o f governm ent as to be\nlargely immune from judicial inquiry or interference.\xe2\x80\x9d Harisiades v.\nShaughnessy, 342 U.S. at 588-89. See Fong Yue Ting v. United States,\n149 U.S. 698 (1893); H itai v. INS, 343 F.2d 466 (2d Cir.), cert, denied,\n382 U.S. 816 (1965).\nSome cases suggest in dicta that judicial review may be available to\noverturn classifications for w hich no rational basis can be found\xe2\x80\x94 e.g.,\ndeportation on the grounds o f religion. Fiallo v. Bell, 430 U.S. 787, 793,\nn.5 (1977); Oliver v. INS, supra, 517 F.2d at 428. But such review\nwould clearly be limited to w hether the lines draw n by Congress or the\nE xecutive branch are rational and not w holly arbitrary. See Francis v.\nINS, 532 F.2d 268 (2d Cir. 1976); N oel v. Chapman, 508 F.2d 1023,\n1028 (2d Cir.), cert, denied, 423 U.S. 824 (1975).\nU nder this standard, we believe that the options outlined above\nw ould be constitutional. G iven the present crisis, the activities o f many\nIranian nonim m igrant students, and the serious national security and\nforeign policy interests at stake, it is unlikely that a court would set\naside otherw ise legitim ate policies directed solely at Iranian nationals.\nN or do we believe that any new regulations w ould be set aside if\nchallenged as an instance o f unconstitutional \xe2\x80\x9cselective enforcem ent.\xe2\x80\x9d\nFirst, we assume that usual processing o f aliens for entry and deporta\xc2\xad\ntion w ould continue. Second, courts have traditionally recognized\nbroad prosecutorial discretion in the enforcem ent o f the law. While\nsome cases have stated in dicta that a policy o f prosecutions based on\nan unjustifiable and arbitrary standard such as race or religion may be\nunconstitutional, e.g., Oyler v. Boles, 368 U.S. 448, 456 (1962), we\nbelieve that heightened enforcem ent efforts aimed at out-of-status Ira\xc2\xad\nnian nonim migrants would not be so arbitrary as to deny such persons\ndue process. W e believe that the President could make appropriate\nstatem ents justifying such policies based on the international crisis, and\nupon a finding that many Iranian students (w ho constitute the largest\nforeign student group in the United States) may be out o f status. See\nUnited States v. Sacco, 438 F.2d 264, 271 (9th Cir.), cert, denied, 400\nU.S. 903 (1970).7\n\n\xe2\x80\x99 W hile w e know o f no case on point, w e believe that any prosecutions undertaken to stifle the\nexercise o f First A m endm ent rights by Iranian students might face a serious constitutional challenge.\nCf. Lennon v. fN S . 527 F.2d 187, 195 (2d Cir. 1975).\n\n142\n\n\x0cVI. The Power of Congress\nThe preceding sections have discussed the authority o f the President\nand the A ttorney G eneral under existing statutes. This section addresses\nthe constitutional limitations on congressional authority to regulate\nentry and deportation o f aliens.\nIt is well-established that \xe2\x80\x9cover no conceivable subject is the legisla\xc2\xad\ntive pow er of Congress more com plete than it is o v er\xe2\x80\x9d the regulation\nof immigration. Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (quoting\nOceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). The\nSupreme C ourt has consistently upheld the plenary pow er of Congress\nto make rules for the admission and deportation of aliens as inherent in\nthe concept o f national sovereignty. The Chinese Exclusion Cases, supra;\nthe Japanese Im m igrant Case, supra; Ekiu v. United States, 142 U.S. 651,\n659 (1892). In recent years the Supreme C ourt has steadfastly refused to\nreconsider its earlier cases or to develop substantive limits on C ongress\xe2\x80\x99\npow er to exclude and deport. See Fiallo v. Bell, 430 U.S. at 792-93;\nKleindienst v. Mandel, 408 U.S. at 766; Galvan v. Press, 347 U.S. at 531 \xe2\x80\x94\n32 (\xe2\x80\x9c [T]hat the formulation o f . . . policies [regarding entry and depor\xc2\xad\ntation] is entrusted exclusively to Congress has become about as firmly\nimbedded in the legislative and judicial tissues of our body politic as\nany aspect o f our governm ent.\xe2\x80\x9d)\nT he Supreme C ourt has also made clear that C ongress may deport\npersons for prior conduct w hich did not render them deportable at the\ntime they so acted. T he retroactivity o f such legislation does not violate\nthe Due Process Clause or constitute an ex post facto law. Lehmann v.\nCarson, 353 U.S. 685 (1957); Galvan v. Press, supra; N g Fung Ho v.\nWhite, 259 U.S. 276, 280 (1922). As stated most broadly by the Court:\nT he basis for the deportation o f presently undesirable\naliens resident in the United States is not questioned and\nrequires no reexamination. W hen legally adm itted, they\nhave com e at the N ation\xe2\x80\x99s invitation, as visitors or perm a\xc2\xad\nnent residents, to share with us the opportunities and\nsatisfactions o f our land. As such visitors and foreign\nnationals they are entitled in their persons and effects to\nthe protection o f our laws. So long, how ever, as aliens fail\nto obtain and maintain citizenship by naturalization, they\nremain subject to the plenary pow er o f C ongress to expel\nthem under the sovereign right to determ ine what\nnoncitizens shall be perm itted to remain within our\nborders.\nChanges in w orld politics and in our internal econom y\nbring legislative adjustm ents affecting the rights o f various\nclasses o f aliens to admission and deportation . . . . Since\n\xe2\x80\x9c [i]t is thoroughly established that Congress has pow er to\n143\n\n\x0co rd er the deportation o f aliens whose presence in the\ncountry it deems hurtful,\xe2\x80\x9d the fact that petitioners, and\nrespondent . . . , w ere made deportable after entry is\nimmaterial. T hey are deported for w hat they are now, not\nfor w hat they were. O therw ise, when an alien once le\xc2\xad\ngally becam e a denizen o f this country he could not be\ndeported for any reason o f w hich he had not been fore\xc2\xad\nw arned at the time o f entry. M ankind is not vouchsafed\nsufficient foresight to justify requiring a country to permit\nits continuous occupation in peace or w ar by legally ad\xc2\xad\nm itted aliens, even though they never violate the laws in\neffect at their entry. T he protection o f citizenship is open\nto those w ho qualify for its privileges. T he lack of a\nclause in the C onstitution specifically em pow ering such\naction has never been held to render Congress impotent\nto deal as a sovereign w ith resident aliens.\nCarlson v. London, 342 U.S. 534-37 (1952) (footnotes om itted) (quoting\nBugajewitz v. Adams, 228 U.S. 585, 591 (1913)).\n\nThus, Congress possesses alm ost unlimited pow er in establishing sub\xc2\xad\nstantive regulations defining categories o f aliens w ho may enter and\nw ho must leave the United States. C ongress clearly has the pow er to\nbar all Iranians from entering the United States and could order all\nIranian nationals out o f the country. O f course, such legislation raises\nserious policy issues: many Iranian nationals in this country may be\nloyal to the United States or the Shah and may be well-integrated\nmembers o f A m erican society w ith jobs and families. Furtherm ore,\nsome Iranians may face persecution in Iran and thus w ould apply for\nasylum here.\nN or do w e believe, as discussed above, that legislation directed solely\nat Iranians would offend the Fifth Am endm ent, as long as there was a\nrational basis for such legislation.8\nA ccordingly, C ongress could constitutionally adopt, for example,\nlegislation:\n(1) barring entry o f Iranians; an d /o r\n(2) deporting all Iranian nonim m igrant students.\n8[W ]hether im m igration law s h ave been cru d e and cruel, w hether they may have\nreflected xenophobia in general o r anti-Semitism o r anti-C atholicism , the responsibility\nbelongs to Congress. C o u rts d o en fo rce the requirem ents imposed by C ongress upon\nofficials in adm inistering im m igration laws, e.g., Kwock Jan Fat v. White, 253 U.S. 454,\nand the requirem ent o f D ue Process may entail certain procedural observances. E.g.,\nN g Fung H o v. White, 259 U.S. 276. But the underlying policies o f w hat classes o f\naliens shall be allow ed to en ter and w hat classes o f aliens shall be allow ed to stay, are\nfor C ongress exclusively to determ ine even though such determ ination may be deem ed\nto offend A m erican traditions and may, as has been the case, jeopardize peace.\nHarisiades v. Shaughnessy, 342 U.S. at 597 (F ran k fu rter, J., concurring).\n\n144\n\n\x0cIt must be noted, how ever, that while Congress has broad substantive\npow er to define categories o f admissible and deportable persons, its\npow er to eliminate procedural protections is substantially limited by the\nD ue Process Clause o f the Constitution. As discussed above, the Su\xc2\xad\npreme C ourt held consistently since the turn of the century that aliens\nmay not be deported w ithout a prior hearing. R ecent decisions enlarg\xc2\xad\ning due process rights probably guarantee an alien (1) adequate notice\no f the hearing, (2) the right to present evidence and cross-examine\nwitnesses, (3) representation by counsel, and (4) an unbiased\ndecisionmaker. And while Congress may eliminate or limit the scope o f\nreview of deportation proceedings in the courts o f appeals, it is unlikely\nthat it could deprive aliens o f the right to file habeas corpus petitions\nasserting deprivations o f due process and other constitutional rights.\nU.S. Const, art. I, \xc2\xa7 9, cl. 2. See 2 G ordon and Rosenfield, supra, \xc2\xa7 8.6a\n(1979). Thus, while Congress could order that all Iranian\nnonimmigration students leave the United States, it could not deprive\nsuch aliens of a hearing to dem onstrate that they do not come within\nthe proscribed category. Japanese Immigration Case, supra.\nCongress may be able to expedite expulsion o f deportable aliens, such\nas out-of-status students, by providing for additional im migration offi\xc2\xad\ncers and judges w ho could help locate and process such persons.\nH ow ever, the requirem ent o f a hearing and the availability o f habeas\ncorpus review w ould prohibit any summary proceedings and render\nunlikely, as a practical matter, any immediate gain in the speed of\nenforcement o f the existing law.\nVII. Conclusion\nT here exists a rather broad range o f actions that could be taken both\nby the Executive Branch and by the Congress in this area. Necessarily,\nhowever, any action would have to be carefully scrutinized based upon\nthe facts in existence at the time o f any proposed action and the\nstrength of the national security and foreign affairs interests. Because of\nthe sensitive and im portant First Am endm ent, equal protection and due\nprocess considerations likely to be im plicated by any action taken by\nthe governm ent, and given the high- likelihood o f litigation, w e urge\nthat any proposal be given careful and thorough consideration.\nJo\n\nhn\n\nM.\n\nH\n\narm on\n\nAssistant Attorney General\nOffice o f L egal Counsel\n\n145\n\n\x0c'


b'Authority of the President to Restrict Munitions Imports Under\nthe Arms Export Control Act\nRestricting the import o f certain classes o f Russian firearms and ammunition that are deemed an unac\xc2\xad\nceptable risk to public safety is a legitimate use o f the President\xe2\x80\x99s authority under the Arms Export\nControl Act to restrict the import of munitions in furtherance of United States foreign policy.\n\nFebruary 9, 1996\nM e m o r a n d u m O p in io n\nand\n\nfo r th e\n\nL e g a l A d v is o r\n\nS p e c ia l A s s is t a n t\n\nto th e\n\nto th e\n\nP r e s id e n t\n\nN a t io n a l S e c u r it y C o u n c il\n\nThis letter addresses and explains the basis for the oral advice that we provided\nin early April 1995 regarding the President\xe2\x80\x99s authority under the Arms Export\nControl Act, 22 U.S.C. \xc2\xa7\xc2\xa72751-2799aa-2, (\xe2\x80\x9c AECA\xe2\x80\x9d ) to restrict the import of\ncertain munitions from the Russian Federation in furtherance of United States for\xc2\xad\neign policy. The question arises in connection with the Administration\xe2\x80\x99s plan, as\npart of a general program of eliminating Cold War restrictions on trade and eco\xc2\xad\nnomic cooperation with Russia, to take steps to remove Russia from the Inter\xc2\xad\nnational Traffic in Arms Regulations (\xe2\x80\x9c ITAR\xe2\x80\x9d ) list, which provides that it is\nthe policy of the United States to deny licenses for the import of defense articles\noriginating in certain countries, including Russia. 27 C.F.R. \xc2\xa747.52 (1995). Rus\xc2\xad\nsia\xe2\x80\x99s presence on the ITAR list means American businesses are not granted li\xc2\xad\ncenses necessary to import Russian munitions. Once Russia is off the ITAR list,\nthere would be no general prohibition on gun imports from Russia. We understand\nthat the issue concerns the negotiation of voluntary export restraints with Russia\nto ensure that, once Russia is removed from the ITAR list, munitions imports\nfrom Russia would not jeopardize public safety.1 The question has been raised\nwhether the President possesses authority under the AECA to limit the import\nof munitions from Russia. We have concluded that restricting the import of Rus\xc2\xad\nsian munitions to certain classes of firearms and ammunition is a legitimate use\nof the President\xe2\x80\x99s authority under the AECA to restrict the import of munitions\nin furtherance of United States foreign policy.\nSection 38 of the AECA authorizes the President to control the import and\nthe export of defense articles and defense services \xe2\x80\x9c [i]n furtherance of world\npeace and the security and foreign policy of the United States.\xe2\x80\x9d 22 U.S.C.\n\xc2\xa7 2778(a)(1). Section 38 further authorizes the President \xe2\x80\x9c to designate those items\nwhich shall be considered as defense articles and defense services for the purposes\nof this section and to promulgate regulations for the import and export of such\narticles and services.\xe2\x80\x9d Id. The Act generally requires a license as a condition\n1 W e understand th a t the issue m ay also have been raised w hether voluntary restrain t ag reem en ts restrictin g im ports\no f R u ssian m unitions vio late the G eneral A greem ent on T ariffs and T rade o r W orld T rad e O rg an iza tio n ru les. W e\nhave taken no position on that issue.\n\n49\n\n\x0cOpinions o f the A ttorney General in Volume 20\n\nof exporting or importing any defense articles so designated by the President.\n22 U.S.C. \xc2\xa72778(b)(l)(B)(2).\nBy Executive Order 11958, as amended, the President has delegated his author\xc2\xad\nity under section 38 to the Secretaries of State, Treasury, and Defense. Exec.\nOrder. No. 11958, 3 C.F.R. 79 (1978), reprinted as amended in 22 U.S.C. \xc2\xa72751\nnote (1996). The delegation grants the Secretary of the Treasury primary responsi\xc2\xad\nbility for issuing and administering permanent import controls of defense articles\nand services, and grants the Secretary of State primary responsibility for issuing\nand administering regulations relating to the rest of section 38, including export\nrestrictions. The Secretary of the Treasury\xe2\x80\x99s authority over imports is subject to\nthe qualification that the Secretary \xe2\x80\x9c shall be guided by the views of the Secretary\nof State on matters affecting world peace, and the external security and foreign\npolicy of the United States.\xe2\x80\x9d Id. \xc2\xa7 1(1)(2), 3 C.F.R. at 81, reprinted as amended\nin 22 U.S.C. \xc2\xa72751 note. We understand that, pursuant to this qualification, it\nhas been the consistent practice of the Secretary of the Treasury to defer to the\nSecretary of State\xe2\x80\x99s views on these matters.\nPursuant to the delegation of authority, the Departments of State and Treasury\nissued regulations to implement the Act. See International Traffic in Arms Regula\xc2\xad\ntions, 22 C.F.R. pts. 120-130 (1995) (State Department regulations); Importation\nof Arms, Ammunition and Implements of War, 27 C.F.R. pt. 47 (1995) (Treasury\nDepartment regulations). The designation of defense articles subject to import re\xc2\xad\nstrictions is set forth in the U.S. Munitions Import List at 27 C.F.R. \xc2\xa747.21 and\nincludes categories for firearms and ammunition.\nWe understand that one part of the Administration\xe2\x80\x99s trade negotiation with Rus\xc2\xad\nsia involves the possible importation into the United States from Russia of arms\nfor sporting and hunting purposes. The Administration intends to continue to pre\xc2\xad\nvent imports of certain classes of weapons that are deemed to pose an unaccept\xc2\xad\nable risk to public safety. In our view, the AECA would authorize imposition\nof controls on such imports.\nAs previously stated, section 38 authorizes the President to control the import\nof defense articles \xe2\x80\x9c [i]n furtherance of world peace and the security and foreign\npolicy of the United States.\xe2\x80\x9d 22 U.S.C. \xc2\xa72778(a)(l). The Federal Circuit recently\naffirmed the President\xe2\x80\x99s authority under the AECA to prohibit the import of arms\nin furtherance of foreign policy objectives. B -W est Imports, Inc. v. United States,\n75 F.3d 633 (Fed. Cir. 1996). We understand that the Administration\xe2\x80\x99s objective\nin removing Russia from the ITAR list is to improve American-Russian trade\nrelations, remove Cold War restrictions to economic cooperation, and expand eco\xc2\xad\nnomic opportunities for both countries. These objectives reflect significant United\nStates foreign policy goals. Thus, there can be no doubt that the bilateral trade\nreform contemplated by the Administration is designed to further the foreign pol\xc2\xad\nicy of the United States. Accordingly, the contemplated import controls fall\nsquarely within the statutory authorization of section 38.\n50\n\n\x0cAuthority o f the President to Restrict Munitions Imports Under the Arms Export Control A ct\n\nWe note that it could be argued that protecting public safety \xe2\x80\x94 the reason for\nlimiting the importation of munitions into the United States\xe2\x80\x94 is a domestic, not\na foreign policy concern. Even assuming that protecting public safety is viewed\nas exclusively a domestic issue, we do not believe this calls into question the\nPresident\xe2\x80\x99s authority under section 38 (as delegated to the Secretaries of Treasury\nand State) to control import of munitions. United States foreign policy usually\nincludes as one component the promotion of domestic goals or the avoidance of\na negative impact on domestic concerns in the process of pursuing a foreign policy\nobjective. Taking into account the domestic effects of foreign policy does not\nchange the fact that it is foreign policy that is being set. See, e.g., M issouri v.\nHolland, 252 U.S. 416 (1920) (President possesses authority to promote foreign\npolicy through treaty power even where object affected is a local concern). Indeed,\nit would be artificial as well as practically impossible to separate the two. So,\nfor example, in committing American troops to a peacekeeping action, the Presi\xc2\xad\ndent may consider domestic concerns in defining the purpose and length of time\nof American involvement. Similarly, in the present context, existing controls on\nimports \xe2\x80\x94 which were imposed in furtherance of foreign policy\xe2\x80\x94 are being re\xc2\xad\nlaxed\xe2\x80\x94 again in furtherance of foreign policy. The extent to which the United\nStates is willing to ease trade restrictions in pursuance of its foreign policy objec\xc2\xad\ntives is limited to ensure that it does not jeopardize public safety.\nCourts, in affirming the broad grant of authority to the President under the\nAECA to control the export and import of firearms on foreign policy grounds,\nhave advised that \xe2\x80\x9c statutes granting the President authority to act in matters touch\xc2\xad\ning on foreign affairs are to be broadly construed: \xe2\x80\x99\xe2\x80\x99\nIn the external sector of the national life, Congress does not ordi\xc2\xad\nnarily bind the President\xe2\x80\x99s hands so tightly that he cannot respond\npromptly to changing conditions or the fluctuating demands of for\xc2\xad\neign policy. Accordingly, when Congress uses far-reaching words\nin delegating authority to the President in the area of foreign rela\xc2\xad\ntions, courts must assume, unless there is a specific contrary show\xc2\xad\ning elsewhere in the statute or in the legislative history, that the\nlegislators contemplate that the President may and will make full\nuse of that power in any manner not inconsistent with the provi\xc2\xad\nsions or purposes of the Act. In a statute dealing with foreign af\xc2\xad\nfairs, a grant to the President which is expansive to the reader\xe2\x80\x99s\neye should not be hemmed in or \xe2\x80\x9c cabined, cribbed, confined\xe2\x80\x9d by\nanxious judicial blinders.\nB-W est Imports, Inc. v. United States, 75 F.3d at 636 (quoting South Puerto R ico\nSugar Co. Trading Corp. v. United States, 334 F.2d 622, 632 (Ct. Cl. 1964));\nsee also Samora v. United States, 406 F.2d 1095 (5th Cir. 1969). Finally, as the\n\n51\n\n\x0cOpinions o f the Attorney General in Volume 20\n\ncourt noted in South P uerto Rico Sugar Co. in sustaining the President\xe2\x80\x99s discretion\nto impose conditions on imports, Presidents acting under broad statutory grants\nof authority have \xe2\x80\x9c imposed and lifted embargoes, prohibited and allowed exports,\nsuspended and resumed commercial intercourse with foreign countries\xe2\x80\x9d thereby\nreflecting \xe2\x80\x9c the historical authority of the President in the fields of foreign com\xc2\xad\nmerce and of importation into the country.\xe2\x80\x9d 334 F.2d at 633, 634. The court\nspecifically cautioned that \xe2\x80\x9c [i]t would be difficult, and probably unwise, to sepa\xc2\xad\nrate an executive choice in [the area of international economic relations] from\nthe \xe2\x80\x98important, complicated, delicate and manifold problems\xe2\x80\x99 facing the President\nin the \xe2\x80\x98vast external realm.\xe2\x80\x99 \xe2\x80\x9d Id. at 630 (quoting United States v. Curtiss-Wright\nE xport C orp., 299 U.S. 304, 319 (1936)). In determining how far to open United\nStates markets to Russian arms manufacturers, the President is faced with just\nsuch a delicate confluence of factors that requires that United States foreign policy\nintegrate international commercial policy with domestic policy concerns.\nFor these reasons, we conclude that restricting the import of Russian munitions\nto certain classes of firearms and ammunition is a legitimate use of the President\xe2\x80\x99s\nauthority under the AECA as delegated to the Secretaries of Treasury and State.\nWALTER DELLINGER\nA ssistant Attorney General\nOffice o f Legal Counsel\n\n52\n\n\x0c'