The power to expel or exclude aliens as a fundamental sovereign attribute exercised by the government's political departments is largely immune from judicial control.
Sections 101(b)(1)(D) and 101(b)(2) of the Immigration and Nationality Act grant preferential immigration status to qualified parents or children of United States citizens and permanent resident aliens. However, because of the definition of “children” and “parents,” preferential status is not granted to an illegitimate child seeking preference through his father, or a father seeking preference through his illegitimate child. Fiallo (Plaintiff) and the other plaintiffs in the case were three sets of fathers and illegitimate children seeking preferential immigration treatment for either the father or the child based on their relationship with the other. The plaintiffs challenged the constitutionality of the relevant Sections of the act in federal district court. They district court upheld the sections as constitutional, and the Supreme Court granted certiorari on the appeal.
Can Congress enact legislation that grants preferential immigration treatment to certain family relationships but not others?
The trial court’s ruling is affirmed. The determination of who receives preferential immigration status is a political question for Congress that should receive little, if any, judicial scrutiny. The Court has repeatedly stressed that Congress has extremely broad powers in determining the immigration process. It is mainly a political question that should receive only the narrowest of judicial review. Preferential immigration status is a right afforded to non-resident aliens, not to resident aliens or citizens. As such, Congress’ power is not so limited. In addition, the Court refused to apply stricter scrutiny in Kleindienst v. Mandel, 408 U.S. 753 (1972), a case which challenged the denial of a visa on First Amendment grounds. As this case does not deal with a similar fundamental constitutional right, it certainly does not warrant stricter scrutiny. Nor does it matter that this case does not involve excluding aliens based on a threat to the security or welfare of the country. Nothing in prior immigration cases suggest that limited judicial scrutiny is applied only because of deference in those areas. While Congress has drawn many distinctions in determining immigration preferences to the detriment of some seeking entrance into the country, it is not the position of the judiciary to question such political decisions. Sections 101(b)(1)(D) and 101(b)(2) of the Immigration and Nationality Act of 1952 are therefore not unconstitutional due to their exclusion of certain familial relationships from the preferences granted by the act.