The proceeding . . . is in no proper sense a trial and sentence for a crime or offence. It is simply the ascertainment, by appropriate and lawful means, of the fact whether the conditions exist upon which Congress has enacted that an alien of this class may remain within the country. The order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend.
149 U.S. 698, 730 (1893). Despite efforts to abrogate this archaic principle, courts have continued to uphold it. See, e.g., United States v. Yacoubian, 24 F.3d 1, 10 (9th Cir. 1994) (denying ex post facto challenge to deportation because the provision applies only to criminal laws); Urbina-Mauricio v. INS, 989 F.2d 1085, 1089 n.7 (9th Cir. 1993) (dismissing the double jeopardy argument against deportation because the double jeopardy clause applies only to criminal proceedings); LeTourneur v. INS, 538 F.2d 1368, 1370 (9th Cir. 1976) (ruling that double jeopardy argument was without merit because deportation is not criminal punishment); Chabolla-Delgado v. INS, 384 F.2d 360, 360 (9th Cir. 1967) (finding the Eighth Amendment inapplicable to a deportation proceeding because it is not a criminal proceeding).
It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. . . . If the government . . . considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects.
Id. at 606. However, the Court also opined that Congress was restricted in their exercise only by the constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations, a profound suggestion that Congress plenary power was to be bound by the customs which govern all nations. Id. at 604 (emphasis added).
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the aliens liberty to be imposed. . . . Any reference to a term of imprisonment or a sentence . . . is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence.