Safe Havens

 

A noncitizen is deportable whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States.[1443]  NOTE: No conviction is required to establish this ground of deportation. 

 

Exception:  A noncitizen who is an official of a foreign government or electoral candidate for such office during the period immediately preceding the election shall not be deported solely because his or her past, current, or expected beliefs, statements, or associations if they would be lawful within the United States.[1444]

 

Exception:  A noncitizen, not described in clause (ii), shall not be deportable because of his or her past, current, or expected beliefs, statements, or associations if they would be lawful within the United States, unless the Secretary of State personally determines that the person’s deportation would compromise a compelling United States foreign policy interest.[1445]

 

            One court found INA § 237(a)(4)(C), 8 U.S.C. § 1227(a)(4)(C) unconstitutional on three grounds: (1) void for vagueness, (2) in violation of the Due Process clause of the Fifth Amendment, and (3) an unconstitutional delegation of legislative power.[1446]   The court wrote a well-reasoned opinion, but it was reversed on appeal on procedural grounds (failure to exhaust administrative remedies), rather than on the merits. [1447]  On remand, the BIA held that a letter from the Secretary of State conveying his determination that the noncitizen’s presence would have potentially serious adverse foreign policy consequences was presumptively sufficient evidence that the he was deportable under this ground of deportation.[1448]  The government need not grant voluntary departure to a noncitizen deportable under this ground of deportation prior to the initiation of deportation proceedings where his presence results from his voluntary decision to seek admission to this country. [1449]  The BIA limited due process rights at the deportation hearing, stating “there is no prejudice to the respondent if he is not allowed to cross-examine the Secretary regarding the contents of the letter” submitted by the Secretary.[1450]

 

            The House Conference Report accompanying the Immigration Act of 1990 that included this legislation, noted that:

 

            It is the intent of the conference committee that this authority would be used sparingly and not merely because there is a likelihood that an alien will make certain remarks about the United States or its policies.

            Furthermore, the conferees intend that the ‘compelling foreign policy inter­est’ standard be interpreted as a significantly higher standard than the gen­eral ‘potentially serious adverse foreign policy consequences’ standard. . . .  The fact that the Secretary of State personally must inform the relevant Congres­sional committees when a determination of excludability is made under this provision is further indication that the conferees intend that this provision be used only in usual circumstances.[1451]

[1443] INA § 237(a)(4)(C)(i), 8 U.S.C. § 1227(a)(4)(C)(i). 

[1444] INA § 237(a)(4)(C)(ii), 8 U.S.C. § 1227(a)(4)(C)(ii), referring to INA § 212(a)(3)(C)(ii), 8 U.S.C. § 1182(a)(3)(C)(ii). 

[1445] INA § 237(a)(4)(C)(ii), 8 U.S.C. § 1227(a)(4)(C)(ii), referring to INA § 212(a)(3)(C)(iii), 8 U.S.C. § 1182(a)(3)(C)(iii).

[1446] Massieu v. Reno, 915 F. Supp. 681 (D.N.J. 1996), rev’d on other grounds, 91 F.3d 416 (3d Cir. 1996). Cf. Matter of Khalifah, 21 I. & N. Dec. 107, (BIA 1995) (noncitizen in deportation proceedings under former INA § 241(a)(4)(C) who is also subject to criminal proceedings for alleged terrorist activities in the country to which INS seeks to deport him was appropriately detained without bond as a poor bail risk).

[1447] Massieu v. Reno, 915 F. Supp. 681 (D.N.J. 1996), rev’d on other grounds, 91 F.3d 416 (3d Cir. 1996).

[1448] Matter of Ruiz-Massieu, 22 I. & N. Dec. 833 (BIA 1999).

[1449] Ibid.

[1450] Id. at 850 n.13.

[1451] H.R. Conf. Rep. No. 955, 101st Cong., 2d Sess. 129 (1990).