704
Scalia, J., dissenting
sense: with regard to the question of what procedures are necessary to prevent entry, as opposed to what procedures are necessary to eject a person already in the United States. See, e. g., Landon v. Plasencia, 459 U. S. 21, 32 (1982) ("Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation" (emphasis added)). The Court's citation of Wong Wing v. United States, 163 U. S. 228 (1896), for the proposition that we have "held that the Due Process Clause protects an alien subject to a final order of deportation," ante, at 693-694, is arguably relevant. That case at least involved aliens under final order of deportation.* But all it held is that they could not be subjected to the punishment of hard labor without a judicial trial. I am sure they cannot be tortured, as well—but neither prohibition has anything to do with their right to be released into the United States. Nor does Wong Wing show that the rights of detained aliens subject to final order of deportation are different from the rights of aliens arrested and detained at the border—unless the Court believes that the detained alien in Mezei could have been set to hard labor.
Mezei thus stands unexplained and undistinguished by the Court's opinion. We are offered no justification why an alien under a valid and final order of removal—which has totally extinguished whatever right to presence in this country he possessed—has any greater due process right to be released into the country than an alien at the border seeking entry.
*The Court also cites Landon v. Plasencia, 459 U. S. 21 (1982), as oblique support for the claim that the due process protection afforded aliens under final order of removal "may vary depending upon status and circumstance." Ante, at 694. But that case is entirely inapt because it did not involve an alien subject to a final order of deportation. The Court also cites Johnson v. Eisentrager, 339 U. S. 763, 770 (1950), ante, at 694, but that case is doubly irrelevant: because it dealt not with deportation but with the military's detention of enemy aliens outside the territorial jurisdiction of the United States, and because it rejected habeas corpus jurisdiction anyway.
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