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decided: November 15, 1982.



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. 37.

Author: O'connor

[ 459 U.S. Page 22]

 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.

[ 459 U.S. Page 23]


Respondent Maria Antoineta 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.*fn1 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,"

[ 459 U.S. Page 24]

     and gave notice that it would hold an exclusion hearing at 11 a. m. on June 30, 1975.*fn2

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).*fn3

[ 459 U.S. Page 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).


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, 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

[ 459 U.S. Page 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);*fn4 or he

[ 459 U.S. Page 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 "[all] 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, re-enter, 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 ...

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