The Volokh Conspiracy
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May Aliens Be Denied Lawful Permanent Resident Status Based on Their Speech?
Third Circuit Judge Paul Matey argues yes, dissenting in Qatanani v. Attorney General. (The two judges in the panel majority seem to disagree, stating that "the [Board of Immigration Appeals] penalized Qatanani for quintessential First Amendment activity," but declines to discuss the matter in detail because it concludes Qatanani should prevail on statutory and procedural grounds.) Here's an excerpt:
Qatanani entered the United States in 1996 on a H-1B nonimmigrant visa with authorization to serve as an imam at The Islamic Center of Passaic Country (ICPC) until April 1, 1999. Rather than leave, he applied to adjust his status to lawful permanent residence (LPR). After almost two decades of administrative proceedings, an Immigration Judge (IJ) found Qatanani eligible for a status adjustment and deserving one as a matter of discretion. But the Board of Immigration Appeals (BIA) disagreed [in April 2024], noting Qatanani's lack of candor, admitted association with Hamas supporters, public call for a "new intifada," and failure to demonstrate yearly tax filings. As I explain below, I would not disturb the BIA's decision…. [Statutory and procedural details omitted. -EV]
Finally, I explain why the BIA's review of Qatanani's Times Square speech and admitted associations with Hamas supporters does not violate the First Amendment. Of course, an alien's speech can offer important insight into his character that informs the Executive's determination about whether the alien's presence will add to the common good. None disagree with that observation, nor does the First Amendment because Qatanani is not part of "the people" the First Amendment protects, nor is the denial of LPR status a punitive action….
[A]n alien "does not become one of the people to whom" the First Amendment applies "by an attempt to enter, forbidden by law." U.S. ex rel. Turner v. Williams (1904). That is because "[t]o appeal to the Constitution is to concede that this is a land governed by that supreme law, and as under it the power to exclude has been determined to exist, those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise." So there is no debate that excluded aliens cannot invoke the First Amendment.
Whether the First Amendment restrains government action against all aliens within our Nation's borders is less explored. Begin with Bridges v. California (1941), involving state contempt charges against a group including a resident alien lawfully within the country for at least two decades. With little analysis, the Court concluded the contempt charge was impermissible under the First Amendment. But the Court did not mention, let alone analyze, Bridges's alien status.
A few years later, the Court considered whether Bridges, still a lawful resident alien, was removable under 8 U.S.C. § 137(f) for affiliation with the Communist Party. Bridges v. Wixon (1945). The majority saw insufficient evidence of his alleged membership but, in dicta, wrote that "[f]reedom of speech and press is accorded aliens residing in this country," citing only the earlier decision in Bridges v. California. Concurring, Justice Murphy wrote that the statute was unconstitutional and that all aliens lawfully within our borders receive "the immutable freedoms guaranteed by the Bill of Rights," including freedom of speech. But Chief Justice Stone and Justices Roberts and Frankfurter found no fault with the statute based on Congress's "plenary power over the deportation of aliens." So Wixon does not resolve whether the First Amendment applies to all resident aliens, much less unauthorized aliens. At most, its dicta suggests that lawful resident aliens, what we today could call LPRs, can potentially invoke the First Amendment in some criminal prosecutions.
{Little has been clarified since Wixon. The Court has continued to acknowledge lawful resident aliens receive First Amendment protections, but it has never held the First Amendment restrains government action against aliens with less protective status. See, e.g., United States v. Verdugo-Urquidez (1990). Some decisions correctly understand Wixon to address no more than LPRs. See, e.g., OPAWL - Bldg. AAPI Feminist Leadership v. Yost (6th Cir. 2024); Nat'l Council of Resistance of Iran v. Dep't of State (D.C. Cir. 2001). But others read Wixon with less nuance and assume any alien within the country holds First Amendment guarantees, regardless of whether the alien is an LPR, only has temporary authorization to be in the country, or is here illegally. See, e.g., Kim Ho Ma v. Ashcroft (9th Cir. 2001); Underwager v. Channel 9 Austl (9th Cir. 1995); Am.-Arab Anti-Discrimination Comm. v. Reno (9th Cir. 1995).}
Our Nation's longstanding practice also yields few insights, as there is no unbroken chain of understanding or "regular course of practice" that might "liquidate & settle the meaning" of the First Amendment's applicability to aliens. Nor is there any evidence of "a governmental practice [that] has been open, widespread, and unchallenged since the early days of the Republic," that might "guide our interpretation." All to say, there is no long standing post-enactment practice—custom, we might properly call it—recognizing all aliens within our borders possess First Amendment rights….
But lack of precedent and practice does not mean an absence of answer derived from "the natural principles that support our legal tradition," which are the "certain 'primary truths, or first principles, upon which all subsequent reasoning must depend.'"
We know that many aliens within our borders do not enjoy constitutional protections against state action. Much like the Preamble and the Second, Fourth, Ninth, and Tenth Amendments, the First Amendment uses the term "the people," referring "to a class of persons who are part of a national community or who have otherwise developed sufficient connections with this country to be considered part of that community." Only as an alien "increases his identity with our society" do the "generous and ascending scale of rights" spring into action, some of which include the "constitutional provisions [that] extend beyond the citizenry." But neither "lawful but involuntary" entry, nor mere physical entry without "significant voluntary connection[s]," suffice for an alien to become part of "the people."
This distinction makes sense, as it has long been accepted that a sovereign's laws, including restrictions and privileges, extend only to "persons and things within its own territory according to its own sovereign will and public policy." This understanding was viewed as "inherent in nature, for it was derived from an underlying assumption about the essential purpose of government, protection, which in turn was derived from ideas about the equal freedom of human beings in the state of nature." Thus, "an individual ha[s] a right to the protection of government and its laws only by virtue of his allegiance."
Eighteenth-century thinkers recognized this principle as following the nature of things, making protectionism "a truism of the common law." "[F]ounded in reason and the nature of government," "[a]llegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject." Blackstone, Commentaries. But an alien falls into an "obvious division," because he owes only a "[l]ocal allegiance" to the Sovereign, a temporary affinity "for so long time as he continues within the king's dominion and protection … and it ceases the instant such stranger transfers himself from this kingdom to another." …
The Founders followed this understanding of the reciprocal relationship between allegiance and protection. Though they sometimes split over whether the principle of protection entitled aliens to the benefit of all constitutional rights, as contested during the debates over the Alien and Sedition Acts, all acknowledged that some relationship between the Sovereign and the alien was essential. Leading the Democratic-Republicans, James Madison contended "[a]liens are not more parties to the laws than they are parties to the Constitution; yet it will not be disputed that, as they owe, on the one hand, a temporary obedience, they are entitled, in return, to their protection and advantage." And even the Federalists—who reasoned that because aliens were not part of the people for whom the Constitution was created and thus have no rights thereunder—still recognized the protection principle. Thus, despite disagreement about what laws aliens were entitled to the protection of, the principle of protection was universally accepted. And early American law adhered to this understanding.
This history, and the tradition it follows, reveals three insights. First, the protection principle confers only a temporary license to aliens—a discretionary privilege to be within the land—so it cannot guarantee a right to indefinitely remain. That is because "[n]atural allegiance is therefore perpetual, and local temporary only."
Second, the relationship between the alien and the Sovereign can be terminated by "the express will of the sovereign power to order him away." Although "a vested right is to be taken from no individual without a solemn trial, … the right of remaining in our country is vested in no alien; he enters and remains by the courtesy of the sovereign power, and that courtesy may at pleasure be withdrawn." So "even as to alien friends, one who is ordered away or is present without permission would be outside the public protection."
Third, a temporary license does not confer aliens access to all rights enjoyed by citizens. "[T]he sovereign is supposed to allow [an alien] access only upon this tacit condition, that he be subject to the laws" limited to "the general laws made to maintain good order, and which have no relation to the title of citizen or of subject of the state." So "submitting to the laws of any country, living quietly, and enjoying privileges and protection under them, makes not a man a member of that society." Which explains why aliens had "circumscribed" rights such as a prohibition on political engagement and property ownership. The same thinking animated the Federalists' position that aliens cannot claim the Constitution's protection because, although the protection principle applies, the alien is not party to the Constitution.
All told, the protection principle establishes that the Sovereign does not owe all aliens within its borders the same obligation it does its citizens. Thus, Congress may make rules for aliens that would be unacceptable if applied to citizens.
{Arguments to the contrary violate not only precedent but the political branches' plenary power over immigration. The Court has upheld removals based on determinations that an alien's speech or association demonstrated undesirability sufficient to terminate the privilege of presence. See Harisiades v. Shaugnessy (1952) (rejecting the argument that the First Amendment barred removal of three based on their associations with the Communist Party); Kleindienst v. Mandel (1972) (upholding an alien's exclusion based on his speech the Sovereign deemed undesirable, regardless of citizens' First Amendment rights to hear that alien's speech); Reno v. Arab-Am. Anti-Disc. Comm. (1999) ("When an alien's continuing presence in this country is in violation of the immigration laws, the Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity."). And proper respect for the political branches' plenary power over immigration has repeatedly moved the courts against second guessing their judgment. See, e.g., Reno (declining to enjoin deportation proceedings based on the aliens' claim that they were selectively targeted for deportation because of their affiliations); Galvan v. Press (1954) (upholding constitutionality of deporting an alien based on his associations with the Communist Party despite First Amendment concerns); Kleindienst (courts may neither "look behind" the "facially legitimate and bona fide" denial of immigration waiver, nor weigh it against asserted "First Amendment interests"); United States v. Aguilar (9th Cir. 1989) (rejecting an alien's claims under the First Amendment in light of "the government's overriding interest in policing its borders").
Under the best understanding of the First Amendment, Qatanani is not part of "the people" whom the First Amendment restricts government action against, and he cannot claim its protection. At the time of the BIA's decision, Qatanani was not subject to the protection principle. He entered the country with permission via a non-immigrant H1-B visa to work for a limited time. During those three years, Qatanani was within the country with the express permission of the Sovereign and owed temporary allegiance in exchange for a temporary license. But once the visa expired, so did the protection principle. If not then, surely when USCIS denied his initial status adjustment application or when DHS initiated removal proceedings against him. No matter what date, the Executive had removed authorization for Qatanani to remain many years before he publicly called for a new intifada….
Even if Qatanani were afforded First Amendment protection as an unauthorized alien (or even an LPR), denial (or recission) of an immigration privilege, to which he has no right or entitlement, is not a punitive or adverse action that could trigger First Amendment restrictions on government action. Through the Constitution, "[t]he people of the United States … limit[ed] the power of their government over themselves; but la[id] no restraint on the power of their government over aliens." So until an alien "become[s] [a] citizen[ ], they are in the power of the ordinary legislature," which "may receive them, and admit them to become citizens; or may reject them, or remove them, before they become citizens." Thus, when aliens "come here, they know, that they come at the discretion of the ordinary legislature … and have no reason to complain, if this legislature remove them, before they become citizens." Put simply, an alien within our Nation as a matter of administrative grace has no right to remain.
That is why "[d]eportation is not a criminal proceeding and has never been held to be punishment." Rather, "[a] deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering or remaining unlawfully in this country is itself a crime." So "[w]hile the consequences of deportation may assuredly be grave, they are imposed not as a punishment" but "to bring to an end an ongoing violation of United States law."
The same is true for Executive determinations denying status adjustments because the legislature has not created a statutory entitlement to an adjustment of status under section 1255. To the contrary, Congress explicitly stated that the privilege of a status adjustment is purely discretionary and should be determined by the Executive. Immigration benefits differ from other benefits the Executive offers. True, neither Congress nor the Executive may condition the receipt of a government benefit in a manner that infringes constitutional rights. This principle has been applied to benefits such as "tax exemptions," "unemployment benefits," "welfare payments," and "denials of public employment." But legal status to enter or remain in our Nation is not an administrative benefit held out to all aliens who meet a strict set of qualifications. No. It is the highest privilege the political branches may grant to those individuals deemed, in their discretion, deserving of the opportunity to work towards the common good of our republic.
By design then, immigration determinations, without more, cannot serve as adverse actions against an alien, making appeals to First Amendment limitations inapposite.
UPDATE: My apologies; due to an editing error on my part, I originally wrote that Judge Matey answered the question "no," though of course as to the question that ended up being the title of the post, he answered the question "yes." I've corrected this; very sorry for the error.
