Kwong Hai Chew v. Colding
1953 U.S. LEXIS 2554, 97 L. Ed. 2d 576, 344 U.S. 590 (1953)
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Rule of Law:
A lawful permanent resident alien who is temporarily absent from the United States on a voyage as a seaman on a U.S. registered vessel is entitled to procedural due process under the Fifth Amendment and cannot be permanently excluded by the Attorney General without notice of the charges and an opportunity to be heard.
Facts:
- Kwong Hai Chew, a Chinese seaman, was granted lawful permanent residence in the United States in 1949, retroactive to 1945.
- Chew married a U.S. citizen, purchased a home in New York, and had a petition for naturalization pending.
- During World War II, he served in the United States Merchant Marine.
- In November 1950, after passing a Coast Guard security screening, Chew signed on as chief steward for the S.S. Sir John Franklin, a U.S. registered vessel with its home port in New York.
- The vessel undertook a voyage that included calls at foreign ports in the Far East.
- Upon the ship's return to San Francisco in March 1951, an immigration inspector ordered Chew 'temporarily excluded' as an alien whose entry was deemed prejudicial to the public interest.
- When the ship arrived at its home port in New York, the exclusion order was continued, and the Attorney General ordered the exclusion be made permanent without a hearing, based on confidential information.
Procedural Posture:
- Kwong Hai Chew filed a petition for a writ of habeas corpus in the U.S. District Court for the Eastern District of New York, challenging his detention.
- The District Court dismissed the writ.
- Chew, as appellant, appealed the dismissal to the U.S. Court of Appeals for the Second Circuit.
- The Court of Appeals affirmed the District Court's decision.
- The U.S. Supreme Court granted Chew's petition for a writ of certiorari to review the judgment of the Court of Appeals.
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Issue:
Does the Attorney General have the authority under 8 CFR § 175.57(b) to order the permanent exclusion of a lawful permanent resident alien, without a hearing, when that alien is returning from a temporary voyage as a seaman on a vessel of American registry?
Opinions:
Majority - Mr. Justice Burton
No. The Attorney General does not have the authority to order the permanent exclusion of a lawful permanent resident alien under these circumstances without a hearing. For purposes of constitutional due process, a lawful permanent resident who takes a temporary voyage as a seaman on a U.S. vessel does not lose their status as a 'person' within the protection of the Fifth Amendment. The Court distinguished this case from Knauff v. Shaughnessy, which involved an alien entrant seeking initial admission, not a resident alien. The Court held that resident aliens, even if temporarily absent, are entitled to notice of charges and a fair hearing before they can be expelled. The regulation authorizing exclusion without a hearing (8 CFR § 175.57(b)) applies to 'excludable' aliens, a term the Court interpreted to mean entrants, not lawful permanent residents who are subject to 'expulsion' proceedings that require due process.
Dissenting - Mr. Justice Minton
This justice dissented from the majority opinion but did not provide a written explanation for their reasoning.
Analysis:
This case is significant for establishing that the constitutional due process rights of a lawful permanent resident are not extinguished by a temporary, innocent, and brief departure from the United States. By 'assimilating' Chew's status to that of a continuously present resident, the Court limited the government's power to use exclusion procedures, which afford fewer rights, against those who are already part of the national community. The decision employed the doctrine of constitutional avoidance by interpreting the applicable regulation narrowly to avoid declaring it unconstitutional. This ruling solidifies the principle that once an alien has been lawfully admitted, their right to remain cannot be revoked without notice and a fair hearing.
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