A Constitutional Case for Extending the Due Process Clause to Asylum Seekers: Revisiting the Entry Fiction After Boumediene
A Constitutional Case for Extending the Due Process Clause to Asylum Seekers: Revisiting the Entr y Fiction After Boumediene
Zainab A. Cheema 0
0 Fordham University School of Law
In the last two decades, the U.S. Supreme Court has actively grappled with
balancing the interests of immigrant detainees and the federal government
in the context of prolonged immigration detention by reconciling the
statutory framework with constitutional guarantees of due process. The
Court has focused on how prolonged detention without an opportunity for an
individualized custody determination poses a serious constitutional threat to
an alien’s liberty interest. The Court’s jurisprudence has focused, however,
on aliens who have effected an entry into the United States. The
constitutional entitlements of nonresidents who are detained upon presenting
themselves at the border have so far been excluded from this new
immigration narrative and continue to be governed by a more than
halfcentury-old precedent establishing the “entry fiction” and acceding to the
plenary power of the Executive.
This Note focuses on a discrete category of aliens, namely nonresident
arriving aliens seeking asylum who are detained pursuant to section 235 of
the Immigration and Nationality Act (INA). These aliens stand on a different
legal footing than other categories of aliens detained under the INA because
they are subject to the entry fiction doctrine, which has manifest
ramifications for not only their legal status but also the degree of
constitutional protections they are entitled to. This Note discusses how
developments in the extraterritorial application of the Constitution inform
the entry fiction doctrine in the context of extending procedural protections
to asylum seekers detained upon entry into the United States.
This Note shows how the functional approach to extraterritoriality
articulated in Boumediene v. Bush alters the legal landscape and affords an
opportunity to extend due process protections to nonresident arriving aliens.
Cognizant of the limitations imposed by the plenary power doctrine, this Note
* J.D. Candidate, 2019, Fordham University School of Law. I would like to thank Professor
Joseph Landau for his guidance and the editors and staff of the Fordham Law Review for their
assistance and support in preparing this Note. I would also like to thank my family for their
constant love, support, and encouragement, without which none of this would have been
does not argue for extending the complete panoply of procedural protections
to section 1225(b) detainees; instead it focuses on how a discrete remedy—
bond hearings—would help alleviate the procedural deficiencies in the
statutorily prescribed procedure. In so doing, this Note departs from the
approach that has currently been adopted by lower courts by positing that
recent Supreme Court precedent provides a very strong constitutional basis
for extending procedural protections to section 1225(b) detainees, and it
would be remiss to rely solely on Clark v. Martinez-inspired constitutional
I. IMMIGRATION DETENTION AND THE CONSTITUTION.................... 294
2. 8 U.S.C. § 1226.......................................................... 299
II. THE CONTINUING VITALITY OF THE ENTRY FICTION IN IMMIGRATION JURISPRUDENCE.............................................. 306
III. TERRITORIALITY AND THE CONSTITUTION: FROM STRICT FORMALISM TO PRAGMATIC FUNCTIONALISM ...................... 312 A. Eisentrager and Verdugo-Urquidez: A Lesson in
IV. BOUMEDIENE AND THE FUTURE OF THE ENTRY FICTION........... 316
A. Functionalism and the Demise of the Entry Fiction......... 317
1. Citizenship and Status of the Detainee and Adequacy
of the Determination Process .................................... 317
B. Ascertaining the Content of Due Process ......................... 320
Eighteen-year-old asylum seeker Lilian Uriba fled her home in El Salvador
to come to the United States after a drug trafficker killed her father, raped
her, forced her to transport narcotics, and threatened to kill her six siblings if
she defected.1 After presenting herself at the border to the authorities, she
passed the first phase of her asylum case—credible-fear screening —but, as
of this writing, she remains in indefinite detention at T. Don Hutto
Residential Center, a 512-bed immigrant detention facility in rural Texas,
after Immigration and Customs Enforcement (ICE) denied her release.2
Uriba, like many others in her position, is experiencing the effects of a new
On January 25, 2017, President Trump issued an executive order entitled
“Border Security and Immigration Enforcement Improvement,” which
requires immigration personnel to “ensure the detention of aliens
apprehended for violations of immigration law” and grant parole “only on a
case-by-case basis.”3 A Department of Homeland Security (DHS)
memorandum implementing the executive order gives immigration officials
wide latitude to target removable aliens.4 Although the memo authorizes
U.S. Customs and Border Protection (CBP) and ICE personnel to release an
alien found to have a credible fear of persecution or torture under certain
limited circumstances,5 ICE has “virtually stopped granting . . . bond or
1. Meredith Hoffman, Trump Era Ushers in New Unofficial Policy on Asylum-Seekers,
ROLLING STONE (Apr. 4, 2017, 4:37 PM), http://www.rollingstone.com/politics/features/
2. Id.; see also Kate Morrissey, Even Before Trump, Asylum Seeker Already Caught Up
in Clogged System, SAN DIEGO UNION-TRIB. (Jan. 20, 2017),
http://www.sandiegouniontribune.com/news/immigration/sd-me-asylum-detention20170120-story.html [https://perma.cc/YSD4-ZGJL] (discussing an asylum seeker who fled
from a terrorist organization in Somalia and who was detained in the U.S. for over a year
despite passing his credible-fear screening).
3. Exec. Order No. 13,767, 3 C.F.R. 263, 265–66 (
4. See generally Memorandum from John Kelly, Sec’y, Dep’t of Homeland Sec., to
Kevin McAleenan et al. (Feb. 20, 2017) [hereinafter DHS Memo], https://www.dhs.gov/sites/
default/files/publications/17_0220_S1_Implementing-the-Presidents-Border-SecurityImmigration-Enforcement-Improvement-Policies.pdf [https://perma.cc/2MYS-AX29]; see
also Jonathan Blitzer, What Will Trump Do with Half a Million Backlogged Immigration
Cases, NEW YORKER (June 20, 2017),
[https://perma.cc/NV5E54EG] (“So far this year, federal immigration authorities have made forty per cent more arrests
than they did at an equivalent point in 2016, and the [DHS] has eliminated all the guidelines
for how [ICE] is supposed to prioritize the people it targets for arrest.”).
5. See DHS Memo, supra note 4, at 3 (providing that parole may be granted if said alien
“affirmatively establishes to the satisfaction of an ICE immigration officer his or her identity,
that he or she presents neither a security risk nor a risk of absconding, and provided that he or
she agrees to comply with any additional conditions of release imposed by ICE to ensure
public safety and appearance at any removal hearings”).
parole” to eligible detainees.6 Immigrants like Uriba are legally ineligible to
appeal ICE’s decision to detain them to an immigration judge.7 Hence, if
they are denied parole and found to have no right to a bond hearing after a
reasonable period of time has elapsed, ICE’s new practice of withholding
parole effectively results in detention for the entire duration of asylum
proceedings, however long they may last.8 Exacerbating the situation is the
fact that detention often bears no relation to the merits of a detainee’s
application or the need for detention.9
The statutory framework regarding the conditions and procedures of
immigration detention is set out in the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA).10 Whether detention is
mandatory or discretionary, and whether the Executive has authority to grant
parole, is carefully circumscribed and depends in large part on the status of
the alien.11 Asylum seekers like Uriba languish in indefinite civil detention
with no recourse to procedural protections, such as bond hearings, because
they are classified as nonresident arriving aliens under IIRIRA.12 Despite
being detained in civil detention centers in the United States, these asylum
seekers are treated as if they never effected an entry into U.S. territory, that
is, they are subject to the “entry fiction” doctrine.13
The U.S. Supreme Court has not ruled on what constitutional protections,
if any, nonresident arriving aliens like Uriba are entitled to with respect to
the conditions of their detention and release. However, since 2000, the Court
has, on three separate occasions, ruled on the Executive’s authority to detain
aliens during various stages of removal proceedings.14 These decisions
address the potential due process violations emanating from prolonged
detention without recourse to procedural protections—individual custody
6. See Hoffman, supra note 1. The DHS Memo worsens already bleak prospects for
asylum seekers. Compared to fiscal year 2010, when 15,683 asylum seekers (45 percent of
all asylum seekers in removal proceedings) were detained, 44,228 asylum seekers
(representing 77 percent of all asylum seekers in court proceedings) were detained in fiscal
year 2014. See OLGA BYRNE, ELEANOR ACER & ROBYN BARNARD, HUMAN RIGHTS FIRST,
LIFELINE ON LOCKDOWN: INCREASED U.S. DETENTION OF ASYLUM SEEKERS 2 (
[https://perma.cc/FN3B-Z83E]. Even in the limited situations where parole is granted, ICE
often sets the bond amount at levels that arriving asylum seekers are unable to pay. See id. at
7. See discussion infra Part I.B.3; see also infra note 114.
8. See Asylum in the United States, AM. IMMIGR. COUNCIL 4–5 (Aug. 22, 2016),
9. See BYRNE, ACER & BARNARD, supra note 6, at 13. In many cases, ICE officials fail
to follow the procedures governing parole decisions and withhold parole even when aliens
have satisfied the requisite criteria. See id. at 13–19.
10. Pub. L. No. 104-208, 110 Stat. 3009-546 (codified as amended in scattered sections
of 8, 18, 20, 22, 28, 32, 42, 48 and 50 U.S.C.).
11. See discussion infra Part I.B.
12. See infra notes 93–94 and accompanying text.
13. See discussion infra Part I.C.
14. See discussion infra Part I.B; see also infra note 138 and accompanying text.
determinations in particular.15 Although the Court explicitly reserved
judgment on the constitutionality of indefinitely detaining applicants for
admission,16 it has hinted at the Executive’s plenary power over the matter.17
This suggestion, coupled with the territorial application of the Constitution,
effectively places applicants for admission beyond the reach of procedural
protections afforded by the Constitution.18
Lower court decisions dealing with procedural protections for nonresident
arriving aliens, like Uriba, have focused on whether these aliens are entitled
to receive bond hearings after a presumptively reasonable period of time.19
However, following the Supreme Court’s lead, courts that have engaged with
the question have relied solely on statutory interpretation to reach a decision,
leaving the entry fiction doctrine intact and the question of constitutional
entitlements of these nonresident arriving aliens unresolved.20
While the entry fiction doctrine is deemed to be largely dispositive of what,
if any, constitutional protections applicants for admission are entitled to,
developments in Supreme Court jurisprudence regarding the extraterritorial
application of the Constitution cast doubt on its continuing validity.21 In
Boumediene v. Bush,22 the Supreme Court rejected a rigid adherence to
notions of territoriality and citizenship in favor of a functional approach and
held that the Suspension Clause was in “full effect at Guantanamo Bay.”23
Using the due process framework outlined in Mathews v. Eldridge,24 the
Court evaluated the sufficiency of review procedures available to
Guantanamo detainees to determine if they were an adequate substitute to
habeas relief.25 Although Boumediene was rendered in the context of alien
detention at Guantanamo and focused on the reach of the Suspension Clause,
the case’s exposition of the “impracticable and anomalous test” provides the
building blocks for ascertaining the extraterritorial reach of the Constitution
in other contexts.26
This Note adopts Boumediene’s functional approach to show how the Due
Process Clause may be extended to nonresident arriving aliens.27
Recognizing that due process is an amorphous standard, this Note uses the
balancing approach set forth in Eldridge to argue that congressionally
prescribed procedures for the detention of asylum seekers like Uriba are
constitutionally insufficient and that the shortfalls may be counteracted by
15. See discussion infra Part I.B.
16. See infra note 166 and accompanying text.
17. See infra note 167 and accompanying text.
18. See infra note 136 and accompanying text.
19. See discussion infra Part II.A.
20. See infra notes 151–52, 157–58 and accompanying text.
21. See discussion infra Part IV.A.
22. 553 U.S. 723 (2008).
23. Id. at 771; see infra notes 192–96 and accompanying text.
24. 424 U.S. 319 (1976).
25. See infra note 190 and accompanying text.
26. See infra notes 202–15 and accompanying text.
27. See discussion infra Part IV.A.
simple remedies like bond hearings without running up against the
Executive’s plenary power.28
Part I of this Note serves as a brief primer on the history and purposes of
IIRIRA, how different sections apply to different categories of aliens, and the
interaction between the statutory scheme and the Constitution. It outlines
how the Court has responded to due process concerns arising from prolonged
detention of aliens subject to removal orders and aliens in detention pending
removal proceedings. Part I goes on to discuss the development of the entry
fiction doctrine, the Executive’s plenary power over immigration matters,
and how these doctrines affect nonresident arriving aliens. Part II highlights
how the entry fiction doctrine has dominated courts’ resolution of the
problem of extending procedural protections to nonresident arriving aliens.
Part III posits that the continuing vitality of the entry fiction ought to be
questioned in light of recent developments in the Supreme Court’s
jurisprudence regarding extraterritorial application of the Constitution.
Finally, Part IV shows how Boumediene, the most recent iteration of the
Court’s jurisprudence on territoriality, may be applied to extend procedural
protections to nonresident arriving aliens in Uriba’s position, without running
into plenary power concerns.
I. IMMIGRATION DETENTION AND THE CONSTITUTION
Immigration detention has long been employed by the U.S. government to
enforce immigration policies.29 Unlike criminal detention, immigration
detention is civil in nature.30 Hence, even though the conditions of
immigration detention may closely resemble those of criminal detention—or
may be even worse31—and the private interests at stake may be as substantial,
immigration detainees only have access to the procedural protections which
have been prescribed by Congress and not the protections typically afforded
to criminal defendants.32
28. See discussion infra Part IV.B.
29. Kevin Johnson, Trump’s Immigration Detention Plan Faces a Long-Established
Uphill Battle, BUS. INSIDER (Feb. 7, 2017, 5:41 PM),
(noting that immigration detention “goes as far back as the detention of Chinese immigrants
on Angel Island in San Francisco Bay, which began processing immigrants in the late 1800s”).
30. See MICHAEL A. SCAPERLANDA, IMMIGRATION LAW: A PRIMER 33 (2009) (noting that
the decision to remove an alien from the United States has long been considered a civil matter).
31. See Immigration Detention Conditions, ACLU, https://www.aclu.org/issues/
[https://perma.cc/6RXP-5JXM] (last visited Aug. 24, 2018); see also CARL TAKEI, MICHAEL
TAN & JOANNE LIN, ACLU, SHUTTING DOWN THE PROFITEERS: WHY AND HOW THE
DEPARTMENT OF HOMELAND SECURITY SHOULD STOP USING PRIVATE PRISONS 1–2 (
32. See SCAPERLANDA, supra note 30, at 31–33. In most instances, it is hard, if not
impossible, for aliens to benefit from the limited protections afforded to them because of the
conditions of their detention. For example, section 292 of the Immigration and Nationality
Act provides that aliens in removal proceedings “shall have the privilege of being represented”
by counsel provided that the government is not required to pay for it. 8 U.S.C. § 1362 (2012).
The following discussion focuses on the statutory framework governing
the treatment and detention of aliens, how the Court has sought to reconcile
the statutory scheme with constitutional guarantees of due process, and the
development of the entry fiction doctrine as it pertains to select categories of
A. The Illegal Immigration Reform and Immigrant Responsibility Act
In 1996, Congress enacted IIRIRA, which created a new framework for
the classification and detention of aliens.33 Different sections of IIRIRA deal
with different categories of aliens and prescribe the procedures that executive
officials must follow with respect to their admission, detention, and
removal.34 Under the Immigration and Nationality Act (INA), aliens are
classified as either immigrants or nonimmigrants.35 Lawfully admitted aliens
who have permission to remain permanently in the United States and who
may eventually seek citizenship are categorized as immigrants and are more
popularly known as Lawful Permanent Residents (LPRs).36 Aliens who only
have permission to temporarily stay in the United States, usually for a
specified purpose, are classified as nonimmigrants.37
With respect to aliens who do not have permission to reside in the United
States, either temporarily or permanently, the INA distinguished between
aliens who have already effected entry into U.S. territory and aliens
attempting to effect an entry.38 While this distinction is still important,
IIRIRA replaced the concept of “entry” with the broader concept of
“admission,” which is defined as “the lawful entry of [an] alien into the
United States after inspection and authorization by an immigration officer.”39
Hence, under IIRIRA, aliens entering without authorization and those denied
entry at the border are presumptively on the same legal footing, as opposed
However, in practice it is very hard for immigrant detainees to find lawyers willing and able
to take on their cases. See Importance of Counsel for Asylum Seekers and Immigrants in
Detention Stressed by Faith, Civil Rights, Legal and Other Leaders, HUM. RTS. FIRST (Apr.
33. Pub. L. No. 104-208, 110 Stat. 3009-546 (1996) (codified as amended in scattered
sections of 8, 18, 20, 22, 28, 32, 42, 48 and 50 U.S.C.) (amending various sections of the
Immigration and Nationality Act); see also SCAPERLANDA, supra note 30, at 4 (noting
IIRIRA’s major impact on immigrants by “expanding the categories of inadmissible and
deportable aliens, restricting relief from deportation, stream-lining removal and other
immigration procedures, providing for increased detention of removable aliens, and
attempting to strip courts of jurisdiction to review numerous immigration matters”).
34. See discussion infra Part I.B.
35. 8 U.S.C. § 1101(a)(
) (2012); see also id. § 1101(a)(
) (noting that an alien is any
person who is not a citizen or national of the United States).
36. Karen Nelson Moore, Aliens and the Constitution, 88 N.Y.U. L. REV. 801, 809 (2013).
37. See id.
38. Xi v. INS, 298 F.3d 832, 838 (9th Cir. 2002) (noting that “Section 1101(a)(13) . . .
formerly defined ‘entry’ as ‘any coming of an alien into the United States, from a foreign port
39. 8 U.S.C. § 1101(a)(13)(A).
to the old regime, which gave preferential treatment to aliens who had
effected an entry without authorization or inspection.40
Under the pre-IIRIRA framework, aliens could be denied the “hospitality
of the United States” either through an exclusion hearing or a deportation
hearing, depending on whether the alien had effected an entry.41 Aliens
subject to deportation hearings were entitled to certain procedural
protections—such as advance notice and the right to appeal directly to a
federal circuit court—not available to aliens in exclusion proceedings.42
Under IIRIRA, however, deportation and exclusion hearings were
consolidated into a single “removal” proceeding,43 which is conducted by an
immigration judge who determines whether the alien is “removable.”44 In
the case of an alien not admitted to the United States, removability requires
a showing of inadmissibility, while in the case of an alien admitted to the
United States removability means that the alien is deportable.45 The
conditions for inadmissibility and deportability are set forth in sections 212
and 241 of IIRIRA, respectively.46 Grounds for inadmissibility include
health-related concerns, security concerns, criminal convictions, illegal entry
and immigration violations, and failure to have proper documentation,47
while grounds for deportability include immigration status violations,
criminal offenses, and security concerns.48 Further, certain categories of
inadmissible aliens are subject to expedited removal without a removal
The initiation of removal proceedings or expedited removal proceedings
is closely tied to immigration detention because aliens subject to either may
be subject to discretionary or mandatory detention.50 The next section of this
Note delineates the statutory framework that authorizes immigration
detention and the constitutional limitations imposed on prolonged detention
of select categories of aliens. It further explores how constitutional
40. See Moore, supra note 36, at 855. But see infra note 137 and accompanying text.
41. Landon v. Plasencia, 459 U.S. 21, 25 (1982) (noting that an alien already present in
the United States is subject to a deportation hearing, while “the exclusion hearing is the usual
means of proceeding against an alien outside the United States seeking admission”).
42. See id. at 26–27.
43. See 8 U.S.C. § 1229a(a)(
) (2012) (“An alien placed in proceedings under this section
may be charged with any applicable ground of inadmissibility under section 1182(a) of this
title or any applicable ground of deportability under section 1227(a) of this title.”); see also
8 U.S.C. § 1229 (2012) (setting forth procedural requirements for initiating removal
44. See 8 U.S.C. § 1229a(a)(
45. Id. § 1229a(e)(
46. See 8 U.S.C. §§ 1182, 1227 (2012).
47. Id. § 1182.
48. 8 U.S.C. § 1227.
49. 8 U.S.C. § 1225(b)(
)(A)(i) (2012) (“If an immigration officer determines that an
alien . . . is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer
shall order the alien removed from the United States without further hearing or review unless
the alien indicates either an intention to apply for asylum . . . or a fear of persecution.”); see
infra notes 95–99 and accompanying text.
50. See Moore, supra note 36, at 856–57.
entitlements of inadmissible arriving aliens—especially nonresident arriving
aliens—continue to be closely tied to presence within U.S. territories.51
B. Interpreting the Statutory Framework in Light of
Sections 241, 236, and 235 of the INA (as amended by IIRIRA), codified
at 8 U.S.C. §§ 1231, 1226, and 1225, respectively, each address different
categories of aliens in different stages of removal proceedings. Each of these
sections authorize or mandate detention but do not expressly limit the length
of detention. This statutory ambiguity precipitated concerns about whether
prolonged detention, in the absence of an opportunity to challenge the factual
basis of detention, was constitutionally permissible.
1. 8 U.S.C. § 1231
Section 1231 focuses on the detention and removal of aliens who are
subject to a removal order.52 Once an alien has been ordered removed, the
Attorney General of the United States is required to remove him from the
country within ninety days.53 This is referred to as the “removal period.”54
During the removal period, the alien is subject to mandatory detention.55 In
a limited set of circumstances, the Attorney General has the authority to
detain an alien beyond the removal period;56 however, the statutory text does
not limit the length of time the alien may be detained beyond the removal
In Zadvydas v. Davis,57 the Supreme Court addressed the due process
concerns arising from the prospect of aliens being detained indefinitely
pursuant to § 1231(a)(6). The Court considered the constitutionality of
detaining resident aliens, subject to orders of removal, past the removal
period on account of the government’s inability to remove them.58 In
determining whether the Attorney General had the authority to detain these
aliens indefinitely, the Court found that “[a] statute permitting indefinite
detention of an alien would raise a serious constitutional problem”59 because
51. See Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“[O]nce an alien gains admission to
our country and begins to develop the ties that go with permanent residence, his constitutional
status changes accordingly.”).
52. 8 U.S.C. § 1231 (2012).
53. Id. § 1231(a)(
55. Id. § 1231(a)(
) (“During the removal period, the Attorney General shall detain the
alien. Under no circumstance during the removal period shall the Attorney General release an
alien who has been found inadmissible . . . .”).
56. See id. § 1231(a)(6) (“An alien ordered removed who is inadmissible under section
1182 of this title, removable [on grounds of violating immigration status, criminal convictions,
or security concerns] or who has been determined by the Attorney General to be a risk to the
community or unlikely to comply with the order of removal, may be detained beyond the
removal period . . . .”).
57. 533 U.S. 678 (2001).
58. See id. at 682.
59. Id. at 690.
the Fifth Amendment’s Due Process Clause forbids the government from
depriving any person of liberty without due process of law.60 Highlighting
the nonpunitive nature of civil detention and the need for detention to bear a
reasonable relation to its purpose, the Court found that the government’s
proffered justifications for indefinite detention—ensuring the appearance of
aliens at future immigration proceedings and preventing danger to the
community—to be lacking.61 In light of the perceived ambiguity of the
statute and the “serious constitutional threat” posed by indefinite detention
of aliens who had been admitted to the country,62 the Court interpreted the
statute to only permit detention that is related to the statute’s “basic purpose
[of] effectuating an alien’s removal.”63 The Court held that “once removal
is no longer reasonably foreseeable, continued detention is no longer
authorized by statute.”64 Additionally, the Court decided that detention is
“presumptively reasonable” for a period of six months following the final
removal order, after which the alien ought to be provided the opportunity to
challenge the basis of his detention.65 In so doing, the Court drew a
distinction between unauthorized detention and the right to “liv[e] at large”:
even though aliens subject to a removal order have no right to remain in the
United States unencumbered and unmonitored, they still have a right to be
free from unreasonable detention.66
Following Zadvydas, courts were split over whether the procedural
protections extended in Zadvydas ought to be extended to aliens who had
never been legally admitted to the United States (i.e., inadmissible aliens
present in the United States who were subject to removal orders).67 In Clark
v. Martinez,68 the Court explicitly extended its holding in Zadvydas to
prohibit indefinite detention of inadmissible aliens—without opportunity for
60. See id. at 689–90. Drawing upon case law from the civil commitment context, the
Court emphasized that government detention violates the Due Process Clause unless ordered
in a criminal proceeding with adequate procedural protections or in certain limited
circumstances where a special justification, such as harm-threatening mental illness,
outweighs the individual’s constitutionally protected interest in avoiding physical restraint. Id.
61. See id. at 690–92 (noting that the government’s interest in preventing flight is
nonexistent where “removal seems a remote possibility” and the alien’s removable status itself
bears no relation to dangerousness).
62. Id. at 699.
63. Id. at 697.
64. Id. at 699.
65. Id. at 701.
66. Id. at 696.
67. Compare Xi v. INS, 298 F.3d 832, 835 (9th Cir. 2002) (noting that § 1231(a)(6) does
not draw a “distinction between individuals who are removable on grounds of inadmissibility
and those removable on grounds of deportability” nor did the Zadvydas Court limit its holding
to deportable aliens), with Benitez v. Wallis, 337 F.3d 1289, 1299 (11th Cir. 2003) (holding
that indefinite detention of inadmissible aliens does not raise serious constitutional concerns
and interpreting “Zadvydas as limiting the detention period of only those aliens whose
continued confinement raises serious constitutional doubt, i.e., resident aliens who have
effected entry”), rev’d sub nom. Clark v. Martinez, 543 U.S. 371 (2005).
68. 543 U.S. 371 (2005) (involving aliens who had arrived in the United States as part of
the Mariel boatlift).
a bond hearing after six months—under § 1231(a)(6).69 Relying solely on
statutory interpretation, the Court held that a statute’s ambiguous language
could be given a “limiting construction” based on one of its applications
“even though other . . . applications, standing alone, would not support the
same limitation.”70 That is, having decided that constitutional concerns
arising from the indefinite detention of resident aliens precluded interpreting
§ 1231(a)(6) from authorizing such detention,71 statutory interpretation
compelled the same result for inadmissible aliens, even though the statute as
applied to inadmissible aliens did not give rise to the same constitutional
concerns.72 Hence, even if the constitutional concerns that had influenced
the Court’s statutory construction in Zadvydas were absent in the context of
inadmissible aliens, the same detention provision could not be given a
different meaning based on the category of aliens it was being applied to.73
Taken together, § 1231(a)(6), Zadvydas, and Clark v. Martinez afford both
deportable and inadmissible aliens subject to a removal order and detained
beyond the removal period the opportunity to review the basis of their
detention after a presumptively reasonable period of six months.
2. 8 U.S.C. § 1226
Section 1226 sets forth the procedures and guidelines governing the
detention and release of aliens in removal proceedings.74 Under § 1226(a)
the Attorney General has the authority to detain an arrested alien or release
her on bond pending a decision on whether the alien is to be removed.75
Section 1226(c) carves out an exception to § 1226(a)’s general immigration
detention and provides for the mandatory detention of a narrow category of
criminal noncitizens during the pendency of removal proceedings.76 An
alien detained pursuant to § 1226(c) may be released on parole only if she is
a government witness or is assisting in a major criminal investigation, and if
the Attorney General is satisfied that she “will not pose a danger to the safety
of other persons or of property and is likely to appear for any scheduled
69. Id. at 378.
70. Id. at 380 (“The lowest common denominator, as it were, must govern.”).
71. See supra notes 60–65 and accompanying text.
72. See Martinez, 543 U.S. at 380.
73. See id. at 380–81.
74. 8 U.S.C. § 1226 (2012).
75. See id. § 1226(a) (“On a warrant issued by the Attorney General, an alien may be
arrested and detained pending a decision on whether the alien is to be removed . . . .”).
76. See id. § 1226(c). Section 1226(c) applies to any alien who is inadmissible or
deportable by reason of having committed a qualifying offense. The DHS is allowed to take
these noncitizen offenders into custody at any time after they are released from criminal
custody. See Gerard Savaresse, Note, When Is When?: 8 U.S.C. § 1226(c) and the
Requirements of Mandatory Detention, 82 FORDHAM L. REV. 285, 289 (2013).
77. 8 U.S.C. § 1226(c)(
In Demore v. Kim,78 the Supreme Court addressed a split among the
circuits regarding whether mandatory detention of a resident alien, in the
absence of an individualized determination of the detainee’s dangerousness
or flight risk, was a violation of due process.79 The Court upheld the
constitutionality of § 1226(c) against a facial challenge, holding that
mandatory detention of certain criminal aliens pending removal proceedings
does not, by itself, offend due process.80 However, the Court based its ruling
on its understanding that detention prior to removal is for a short, fixed, and
finite term.81 In his concurrence, Justice Anthony Kennedy underscored the
need for individualized hearings when detention becomes unreasonable.82
According to Justice Kennedy, an LPR detained under § 1226(c) could be
entitled to an “individualized determination as to his risk of flight and
dangerousness if the continued detention became unreasonable or
The Court chiefly distinguished Zadvydas on two grounds. First, the Court
noted that the aliens challenging their detention in Zadvydas were ones for
whom removal was “no longer practically attainable” because detention was
no longer reasonably related to its purpose of preventing flight.84 However,
detention of criminal aliens in removal proceedings was found to serve the
purpose of preventing deportable criminal aliens from fleeing, which
increased the chances of successful removal upon issuance of a removal
order.85 Secondly, the Court explained that while the period of detention at
issue in Zadvydas was “indefinite” and “potentially permanent,” detention
under § 1226(c) is “of a much shorter duration” and “has an obvious
78. 538 U.S. 510 (2003). The case involved an LPR, charged with deportability after
being convicted of first-degree burglary and petty theft with priors, who was being detained
by the Immigration and Naturalization Service pending his removal hearing. See id. at 513.
79. Compare Kim v. Ziglar, 276 F.3d 523, 535 (9th Cir. 2002) (holding that § 1226(c)
was unconstitutional as applied to LPRs on account of the government’s failure to provide a
“special justification” for no-bail civil detention that would be “sufficient to overcome a lawful
permanent resident alien’s liberty interest”), rev’d sub nom. Demore v. Kim, 538 U.S. 510
(2003), with Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999) (holding that the
government’s interest in detention outweighed the petitioner’s liberty interest when he had
conceded removability and was no longer entitled to remain in the United States).
80. See Demore v. Kim, 538 U.S. at 531 (Kennedy, J., concurring).
81. See id.
82. See id. at 531–33.
83. Id. at 532.
84. See id. at 527 (majority opinion).
85. See id. at 528. The Court also noted that the petitioner had conceded that he was
deportable and had thereby willingly foregone “a hearing at which he would have been entitled
to raise any nonfrivolous argument available to demonstrate that he was not properly included
in a mandatory detention category.” See id. at 514. But see id. at 541–42 (Souter, J., concurring
in part and dissenting in part) (stating that the Court’s suggestion that the petitioner had
conceded deportability was mistaken).
86. See id. at 528–29 (majority opinion). Relying on statistics provided by the Executive
Office for Immigration Review, the Court noted that “the detention at stake under § 1226(c)
lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about
five months in the minority of cases in which the alien chooses to appeal.” See id. at 529–30.
In the years since Demore v. Kim, however, several circuits have construed
the detention authorized by § 1226(c) to contain an “implicit temporal
limitation”87 to avoid the serious constitutional concerns that would arise
from authorizing prolonged detention. For instance, the Second Circuit in
Lora v. Shanahan88 established a bright-line rule that “mandatory detention
for longer than six months without a bond hearing affronts due process” and
concluded that “an immigrant detained pursuant to section 1226(c) must be
afforded a bail hearing before an immigration judge within six months of his
or her detention.”89 The Second Circuit stressed that prolonged detention of
noncitizens would raise serious constitutional concerns because “freedom
from imprisonment” lies at the heart of the liberty that the Due Process
Clause protects.90 The court noted that mandatory detention under § 1226(c)
is permissible, but there must be some procedural safeguard in place for
immigrants detained for months without a hearing.91
3. 8 U.S.C. § 1225
Section 1225 prescribes the immigration procedures for “applicants for
admission.”92 An applicant for admission is an alien who arrives in the
United States or an alien who is present in the United States but has not been
admitted.93 As a practical matter, this category largely includes aliens who
arrive at the border without valid documentation, such as nonresident
arriving aliens, and LPRs who are not “clearly and beyond a doubt entitled
to be admitted.”94
Two classes of applicants for admission are subject to screening for
expedited removal: “arriving aliens” and “certain other aliens.”95 An
arriving alien is “an applicant for admission coming or attempting to come
into the United States at a port-of-entry.”96 “Certain other aliens” are those
arriving aliens who have not been admitted or paroled into the United States
and have not been continuously present in the country for the last two years.97
If an immigration officer determines that an arriving alien or certain other
alien is inadmissible (e.g., does not possess valid entry documents, has
presented fraudulent documents, or has made a false claim of U.S.
citizenship),98 “the officer shall order the alien removed from the United
States without further hearing or review.”99 A removal order entered in
accordance with § 1225(b)(
)(A)(i) is generally not subject to administrative
appeal, that is, the decision cannot be appealed to an immigration judge.100
Judicial review of expedited removal orders is available in habeas corpus
proceedings, but is limited to determinations of whether the petitioner is an
alien, whether she was ordered removed pursuant to the authority conferred
by § 1225(b)(
), and whether she can prove by a preponderance of evidence
that she is entitled to be admitted to the United States.101 Unless granted
parole upon a showing of exigent circumstances, an alien subject to expedited
removal is detained until removed.102
However, if an alien subject to expedited removal indicates an intention to
apply for asylum or a fear of persecution, the immigration officer is to refer
the alien for an interview with an asylum officer.103 The interview is to be
conducted either at the port of entry or at any other place designated by the
Attorney General.104 If the asylum officer determines that an alien has a
credible fear of persecution,105 the alien “shall be detained for further
consideration of the application for asylum.”106 Similarly, an LPR returning
from a trip abroad who is classified as an applicant for admission and is
unable to show that he is “clearly and beyond a doubt entitled to be admitted”
shall be detained for a removal proceeding.107 In each of these instances, the
decision of the immigration officer—if favorable to the alien—can be
challenged before an immigration judge in a removal proceeding.108
Section 1225(b) neither explicitly limits the length of detention for LPRs
seeking admission or arriving aliens with a credible fear of persecution, nor
discusses the availability of bail or an individualized bail hearing; however,
discretionary parole is available in certain limited circumstances.109 For
aliens detained under § 1225(b), parole may be granted if the alien is “neither
a security risk nor a risk of absconding” and (
) has a serious medical
) is pregnant; (
) falls within certain categories of juveniles;
(4) will be a witness; or (5) if continued detention is otherwise “not in the
For nonresident arriving aliens detained under § 1225(b)(
policy requires a parole hearing to be provided as soon as practicable
following a credible-fear determination; each alien’s eligibility for parole is
to be considered and analyzed on its own merits and based on facts of the
individual alien’s case.111 If an arriving alien found to have a credible fear
establishes her identity to the satisfaction of the Detention and Removal
Office (DRO) and is able to show that she neither presents a flight risk nor a
danger to the community, ICE policy allows the DRO officer to—absent
additional factors—parole the alien because her continued detention is not in
the public interest.112 If parole is denied, an alien may request
104. 8 U.S.C. § 1225(b)(
105. Id. § 1225(b)(
)(B)(ii); see also id. § 1225(b)(
)(B)(v) (defining credible fear of
persecution as there being a significant possibility that the alien could establish eligibility for
106. Id. § 1225(b)(
)(B)(ii). If, however, an alien is found not to have a credible fear of
persecution, the alien is ordered removed without further hearing or review.
Id. § 1225(b)(
)(B)(iii)(I). Upon the alien’s request, the immigration officer’s determination
of credible fear may be reviewed by an immigration judge within seven days of the initial
determination. Id. § 1225(b)(
107. Id. § 1225(b)(
108. Id. § 1225(b)(
109. 8 U.S.C. § 1182(d)(5)(A) (2012); 8 C.F.R. § 235.3(c) (
) (“[A]ny arriving alien
who appears to the inspecting officer to be inadmissible, and who is placed in removal
proceedings . . . shall be detained . . . . Parole of such alien shall only be considered in
accordance with Section 212.5(b) . . . .”).
110. 8 C.F.R. § 212.5(b) (
111. U.S. IMMIGRATION & CUSTOMS ENF’T, DIRECTIVE NO. 11002.1, PAROLE OF ARRIVING
ALIENS FOUND TO HAVE A CREDIBLE FEAR OF PERSECUTION OR TORTURE §§ 6.1–6.2 (2009),
112. Id. § 6.2. The decision to grant or deny parole is prepared by the DRO officer and
must pass through at least one level of supervisory review before being approved by the field
office. Id. § 6.7.
redetermination of this decision based upon changed circumstances or
additional evidence relevant to her “identity, security risk, or risk of
absconding.”113 However, immigration judges are precluded from holding
bond hearings for “[a]rriving aliens in removal proceedings.”114
C. The Entry Fiction, Plenary Power, and Procedural Protections
This Part focuses on the interaction between immigration law and the
Constitution with reference to the constitutional protections available to
aliens based on their presence within the United States. Like other
noncitizens, inadmissible arriving aliens are entitled to certain substantive
due process protections.115 The real problem arises in the context of what
procedural protections, if any, they are entitled to. This difference is
attributable in part to the plenary power of the Executive over immigration
matters and the entry fiction doctrine.
As early as 1889, the Supreme Court affirmed the plenary power of the
Executive to exclude foreigners, holding that the “power of exclusion of
foreigners” was an incident of sovereignty and executive determinations of
exclusion and admission were “conclusive upon the judiciary.”116 Hence, it
was deemed to be beyond the province of the judiciary to oppose immigration
decisions made by the legislative and executive branches regarding
foreigners who had neither been naturalized in, domiciled in, resided in, nor
gained lawful admission into the United States; notably, the Court held that
“[a]s to such persons, the decisions of executive or administrative officers,
acting within powers expressly conferred by Congress, are due process of
113. Id. § 6.5.
114. 8 C.F.R. § 1003.19(h)(
)(i)(B) (2017); see Rodriguez v. Robbins, 804 F.3d 1060,
1081 (9th Cir. 2015) (“Because parole decisions under § 1182 are purely discretionary, they
cannot be appealed to [immigration judges] or courts. This lack of review has proven
especially problematic when immigration officers have denied parole based on blatant
errors.”), rev’d sub nom. Jennings v. Rodriguez, 138 S. Ct. 830 (
115. See Wong Wing v. United States, 163 U.S. 228, 237 (1896) (holding unconstitutional
a statute that imposed a year of hard labor upon aliens subject to a final deportation order and
noting that “to declare unlawful residence within the country to be an infamous crime,
punishable by deprivation of liberty and property, would be to pass out of the sphere of
constitutional legislation, unless provision were made that the fact of guilt should first be
established by a judicial trial”); Kwai Fun Wong v. United States, 373 F.3d 952, 974 (9th Cir.
2004) (holding that the entry fiction does not necessarily preclude a nonadmitted alien from
“coming within the ambit of the equal protection component of the Due Process Clause”);
Ngo v. INS, 192 F.3d 390, 396 (3d Cir. 1999) (“Even an excludable alien is a ‘person’ for
purposes of the Fifth Amendment and is thus entitled to substantive due process.”); see also
Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for
Substantive Constitutional Rights, 92 COLUM. L. REV. 1625, 1626 (1992) (noting the contrast
between the stunted growth of constitutional immigration law and the “flowering of
constitutional protections for aliens” in other areas).
116. Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 606–
09 (1889) (involving the exclusion of a Chinese laborer held on a ship in the San Francisco
117. Ekiu v. United States, 142 U.S. 651, 660 (1892). The reach of the Executive’s plenary
power was eventually extended beyond orders of exclusion to deportation orders entered
However, in Yamataya v. Fisher118 the Court announced an important
limitation to the Executive’s plenary power, holding that aliens inside the
United States were entitled to greater constitutional safeguards than aliens
seeking admission, and the procedures used to make immigration decisions
were subject to the Due Process Clause and, hence, independent evaluation
by the courts.119 In the latter half of the twentieth century, the Court built
upon the territorial distinction introduced in Yamataya to limit the grant of
procedural due process protections to deportable aliens, that is, aliens who
were already physically present in the United States.120 However, excludable
aliens—including nonresident arriving aliens—remained beyond the reach
of these constitutional protections because admission into the United States
was a privilege granted by the sovereign, which could only be exercised in
accordance with the procedures prescribed by the government.121
Judicial deference to the Executive’s power over immigration matters and
adherence to the territorial underpinning of constitutional entitlements of
immigrant detainees reached its apex in Shaughnessy v. United States ex rel.
Mezei.122 Mezei was an LPR who traveled behind the Iron Curtain at the
height of the Cold War and was ordered permanently excluded upon
return.123 The decision to exclude was made by the Attorney General on the
basis of national security concerns, and Mezei was afforded no opportunity
for a hearing before a neutral decision maker.124 Following the government’s
successive failures to affect Mezei’s departure from Ellis Island, Mezei
sought relief from his allegedly unlawful confinement through habeas
proceedings.125 However, the Supreme Court held that, unlike “aliens who
have once passed through our gates, even illegally, [and] may be expelled
only after proceedings conforming to traditional standards of fairness
encompassed in due process of law,” aliens like Mezei who stand on the
threshold of entry are only entitled to the procedural protections granted by
Congress.126 The Court clarified that Mezei’s harborage at Ellis Island was
an act of legislative grace and neither constituted an entry nor affected his
legal rights for purposes of immigration law.127 In sum, the Court not only
upheld the indefinite detention of an excludable alien but also withheld any
constitutional entitlement to due process protections for excludable aliens.128
In the years since, Mezei has come to be seen as establishing the entry fiction:
aliens seeking admission into the United States may physically be allowed
within its borders pending a determination of admissibility, but they are
legally considered to be detained at the border and hence enjoy limited
protections under the Constitution.129
With the passage of IIRIRA and consolidation of exclusion within the
broader concept of admission, the entry fiction has manifest ramifications for
the constitutional entitlements of nonresident arriving aliens. The next Part
explores how presence within the United States has become the hallmark of
due process within the immigration framework and how the entry fiction has
precluded courts from considering the procedural protections available to
nonresident arriving aliens.
II. THE CONTINUING VITALITY OF THE ENTRY FICTION
IN IMMIGRATION JURISPRUDENCE
Despite the passage of IIRIRA, which sought to place inadmissible aliens
within and without the United States on the same legal footing, the entry
fiction doctrine continues to occupy an increasingly significant role in
immigration law jurisprudence. Even though Mezei’s impact on the
constitutional entitlement of LPRs who may be treated as applicants for
admission was circumscribed,130 it continues to hold unabated force as far as
nonresident arriving aliens are concerned.
In Landon v. Plasencia,131 the Supreme Court held that an LPR who is
only briefly absent from the United States is entitled to the same due process
protections as a continuously present resident alien.132 However, the Court
held that the precise contours of the due process the petitioner was entitled to
was a question of balancing the competing private and government interests
at stake.133 In so doing, the Court adopted the test it outlined in Mathews v.
Eldridge,134 which balances three factors in determining the level of
protection due: (
) the private interest at stake; (
) the risk of erroneous
deprivation of said interest and the value of additional safeguards; and (
In contrast, as recently as its 2001 holding in Zadvydas, the Supreme Court
reiterated that the “distinction between an alien who has effected an entry
into the United States and one who has never entered runs throughout
immigration law,” such that “certain constitutional protections available to
persons inside the United States are unavailable to aliens outside of our
geographic borders.”136 Hence, even though IIRIRA intended to place aliens
having effected an illegal entry into the United States on the same legal
footing as aliens seeking admission at the border, it remains unclear whether
that is actually the case.137 Given the unique position nonresident arriving
aliens occupy in the constitutional landscape, the next section of this Note
looks at how courts have approached the question of whether nonresident
arriving aliens are entitled to any procedural protections with respect to their
132. See id. at 32–34. In distinguishing Mezei, the Court drew a distinction between an
LPR only briefly absent from the United States who can assert due process rights and an LPR
who may lose his constitutional entitlements because of extended absence from the U.S. Id. at
133. Id. at 34.
134. 424 U.S. 319, 349 (1976) (holding that, in order to comport with due process, the
procedures at issue should be tailored to “‘the capacities and circumstances of those who are
to be heard’ to insure that they are given a meaningful opportunity to present their case”
(citation omitted) (quoting Goldberg v. Kelly, 397 U.S. 254, 268–69 (1970))).
135. Id. at 334–35.
136. Zadvydas v. Davis, 533 U.S. 678, 693 (2001). The majority affirmatively concluded
that rejection of Mezei’s procedural challenge had rested upon a “basic territorial distinction.”
See id. at 694.
137. See Rusu v. INS, 296 F.3d 316, 321 n.8 (4th Cir. 2002) (“[I]t is well established that
even one whose presence in this country is unlawful, involuntary, or transitory is entitled to
the constitutional protection of the Fifth Amendment’s Due Process Clause.”); see also Moore,
supra note 36, at 855–56. In In re X-K-, 23 I. & N. Dec. 731 (B.I.A. 2005), the Board of
Immigration Appeals held that an alien who is initially screened for expedited removal under
8 U.S.C. § 1225(b)(
)(A), but is subsequently placed in removal proceedings following a
positive credible-fear determination, is eligible for a custody redetermination hearing before
an immigration judge. Aliens found eligible for a custody redetermination before an
immigration judge in In re X-K- and arriving aliens detained under § 1225(b)(
differ in one respect: the former enter the United States without inspection, while the latter
present themselves at the border. See Martin, supra note 119, at 97–99.
A. Treatment by Lower Courts
Before the Supreme Court’s decision in Jennings v. Rodriguez,138 lower
courts were split over whether § 1225(b) detainees are entitled to the
procedural protection of bond hearings. The split was most pronounced in
the Southern District of New York.139 Of the courts to have addressed the
issue, none have addressed the question of whether nonresident arriving
aliens have any constitutional entitlement to procedural protections, such that
subjecting them to prolonged detention would raise serious constitutional
problems. Instead, as delineated below, the courts have chosen to rely on a
statutory interpretation approach inspired by Clark v. Martinez.
1. The Southern District of New York:
Arias v. Aviles and Saleem v. Shanahan
In Arias v. Aviles,140 the court had to decide what constitutional protections
are available to LPRs designated as applicants for admission.141 Arias, an
LPR who had briefly left the United States, was taken into custody upon his
return at John F. Kennedy Airport when federal law enforcement officials
found cocaine in his luggage.142 Arias pled guilty to criminal possession of
a controlled substance and was sentenced to imprisonment for one year.143
After completing his sentence, he was transferred back to DHS custody and
detained pursuant to 8 U.S.C. § 1225(b).144
Arias argued that as an LPR he was entitled to due process protections and
that “the Lora court’s constitutional avoidance analysis applies equally to the
mandatory detention provision in § 1225(b) as it did to § 1226(c).”145 The
government argued that Arias, as an arriving alien, did “not have the same
due process protections as aliens who have been admitted” and the court
should defer to Congress’s statutory scheme that “lessens any possible due
process concerns.”146 Relying on Plasencia, the court held that “LPRs
like . . . Arias possess the same rights at the border as they do inside it, in
spite of their brief absence from the United States.”147 Having determined
that Arias was entitled to the protections of the Due Process Clause, the court
saw no basis to distinguish the constitutional protections claimed by Arias
and those afforded to the petitioner in Lora, and it read § 1225(b) to include
a reasonable limit on the length of detention before a bond hearing was
needed to avoid serious constitutional concerns.148 The import of the Arias
decision lies in how the constitutional protections afforded to LPRs detained
under § 1225(b) were subsequently extended to nonresident arriving aliens.
In Saleem v. Shanahan,149 the court had to decide whether the petitioner,
a nonresident arriving alien seeking asylum, was entitled to a bond
hearing.150 The court relied on Clark v. Martinez to hold that, having
construed § 1225(b) to avoid infringing upon the due process rights of certain
LPRs in Arias, it must interpret the provision consistently for all aliens
detained pursuant to § 1225(b) “irrespective of whether or not those
constitutional problems pertain to the particular litigant before the Court.”151
Significantly, the court refused to engage in delineating the constitutional
entitlement of petitioner to due process protection with respect to his status
but noted that “the extent of his due process rights remains unclear in light
of his nonresident alien status.”152
2. The Ninth Circuit: Rodriguez v. Robbins
Among the circuit courts, the Ninth Circuit is the only one that has
addressed the issue of whether “the prolonged detention of ‘applicants for
admission’ under Section 1225(b) raises the same ‘serious constitutional
concerns’ that are implicated by prolonged detention of other detained
aliens.”153 The case involved a certified class of noncitizens (the § 1226(c)
subclass and the § 1225(b) subclass) who challenged their prolonged
detention on account of not having been given an individualized custody
determination to justify continued detention.154 The § 1225(b) subclass was
147. Id. at *8.
148. Id. at *8–10 (noting that a decision allowing indefinite detention of LPRs under
§ 1225(b) “could result in affording more protections to nonresident aliens detained under
§ 1226(c), and for whom removal is authorized by law, than to LPRs detained pursuant to
§ 1225(b) [who are] merely accused of wrongdoing”).
149. No. 16-CV-808, 2016 WL 4435246 (S.D.N.Y Aug. 22, 2016), appeal filed, No.
163587 (2d Cir. Oct. 21, 2016).
150. Id. at *1.
151. Id. at *4.
153. Rodriguez v. Robbins, 715 F.3d 1127, 1139–40 (9th Cir. 2013); see also Rodriguez v.
Robbins, 804 F.3d 1060 (9th Cir. 2015), rev’d sub nom. Jennings v. Rodriguez, 138 S. Ct. 830
154. Rodriguez, 715 F.3d at 1130–31.
comprised of LPRs returning from abroad as well as nonresident arriving
aliens (i.e., applicants for admission subject to the entry fiction doctrine).155
The Ninth Circuit noted that even though most of the members of the
§ 1225(b) subclass fell into the category of aliens described in Mezei as
entitled to limited due process protections, applying § 1225(b) to authorize
prolonged detention of LPRs within the same class would raise serious
constitutional concerns.156 Since the § 1225(b) subclass included “at least
some aliens who [were] not subject to the entry fiction doctrine,” the court
relied on Clark v. Martinez to construe the statute with these aliens in mind
and extended the right to an individual bond hearing at the six-month mark
to the entire subclass.157 Significantly, the court’s analysis of the
constitutional entitlements of nonresident arriving aliens as a group unto
themselves was limited to the recognition that its earlier decisions holding
that excludable aliens—who were subject to the entry fiction—had no
substantive right to be free from immigration detention were still good
B. Procedural Protections and a Constitutional Theory of Immigration
The jurisprudence of immigration detention is heavily reliant on statutory
interpretation, be it the courts’ adherence to the canon of constitutional
avoidance or the innovation of the least-common-denominator approach.159
Acknowledging Congress’s plenary power over matters of immigration
policy, courts have been reluctant to grant aliens constitutional procedural
protections.160 However, this is not to say that this plenary power is not
subject to constitutional limitations. Courts have frequently addressed
possible constitutional difficulties that may arise from prolonged detention
of aliens without recourse to procedural protections.161
This Note does not purport to address the merits of a constitutionalized
theory of immigration detention as opposed to a statutory theory; rather, it
seeks to show how the gap within immigration jurisprudence resulting from
judicial recalcitrance to address the constitutional entitlement of nonresident
arriving aliens to certain procedural protections may be filled by recent
Supreme Court jurisprudence related to extraterritorial application of the
Constitution.162 Given the Court’s decision in Jennings, the time is ripe for
lower courts to consider the constitutionality of prolonged immigration
Although courts have increasingly emphasized the distinction between an
alien who has effected an entry into the United States and one who has never
entered, the implications of this distinction have largely been dealt with either
in a cursory way or not at all.164 This treatment, or lack thereof, is
problematic on two counts. First, even though statutory ambiguity may yield
temporary protection for nonresident arriving aliens, they are increasingly
vulnerable to changes in executive or legislative policy.165 The Clark v.
Martinez Court explicitly avoided extending constitutional protections to
inadmissible aliens, relying solely on statutory interpretation.166
Furthermore, the Court hinted that it was within Congress’s power to revise
the statute to allow indefinite detention of inadmissible aliens.167 This
vulnerability becomes even more pronounced when a decision like Clark v.
Martinez, which dealt with inadmissible aliens, is compared with Zadvydas,
which dealt with aliens present within the United States. Unlike Clark v.
Martinez, which has been interpreted as setting down a rule of statutory
interpretation, Zadvydas—although decided on grounds of constitutional
avoidance—has come to be seen as establishing the constitutional
requirements with respect to aliens detained pursuant to § 1231.168
Constitutional due process has developed as a dialogue between courts and
the other branches of government, such that courts have persuaded
legislatures to add important procedural protections to protect liberty
interests to keep up with evolving notions of fundamental fairness.169 So,
when courts declare that they have no role to play in the process—as in the
case of nonresident arriving aliens—this dialogue is seriously
Second, and more importantly, relying solely on Clark v. Martinez’s
lowest-common-denominator approach promulgates the notion that standing
as a class unto themselves, nonresident arriving aliens are bereft of
procedural protections. This Note primarily seeks to show how
developments in Supreme Court jurisprudence regarding the extraterritorial
application of the Constitution undermine the latter proposition and provide
an arguably stronger foundation to ground procedural protections for
nonresident arriving aliens.
III. TERRITORIALITY AND THE CONSTITUTION: FROM STRICT FORMALISM
TO PRAGMATIC FUNCTIONALISM
The geographic scope of the Constitution has been hotly contested since
the late eighteenth century.171 At its core, territoriality posits that
government action outside the borders of the nation is not constrained by
constitutional limitations.172 This Part explores how the Supreme Court has
approached the question of extraterritorial application of the Constitution by
focusing on three seminal cases, which involve questions of citizenship as
well as extraterritoriality. It goes on to discuss how the most recent iteration
of extraterritoriality could fill the gap in immigration law jurisprudence
created by the entry fiction doctrine and bring nonresident arriving aliens
within the fold of the Constitution’s protection.
A. Eisentrager and Verdugo-Urquidez: A Lesson in Formalism
In Johnson v. Eisentrager,173 a group of twenty-one German nationals
convicted of war crimes and imprisoned in occupied Germany sought review
of their detention via habeas corpus. The Supreme Court denied the
requested relief and explained that it is an “alien’s presence within [U.S.]
territorial jurisdiction” that creates constitutional protection and that there is
“no authority whatever for holding that the Fifth Amendment confers rights
upon all persons, whatever their nationality, wherever they are located and
whatever their offenses.”174 The Court held that it would be paradoxical to
grant constitutional rights to these detainees because they were enemy aliens,
had never been in or resided in the United States, and had been captured
outside the United States.175
In United States v. Verdugo-Urquidez,176 the Court held that the Fourth
Amendment did not apply to searches and seizures that occurred in Mexico,
even though the searches would have violated the Fourth Amendment if
committed within the United States.177 The Court noted that even if a
constitutional violation had occurred, it had occurred outside the United
States and thus the plaintiff could not claim the protections of the
Constitution.178 The Court’s holding was premised on complementary
considerations of territoriality and citizenship.179 The majority interpreted
Eisentrager’s holding to “emphatic[ally]” reject the “claim that aliens are
entitled to Fifth Amendment rights outside the sovereign territory of the
United States.”180 The Court noted that even though aliens enjoy limited
constitutional protections, these protections are dependent on the aliens’
presence within U.S. territory and substantial connections with the
Justice Kennedy’s concurrence, however, while acknowledging that the
Constitution does not apply to “some undefined, limitless class of
noncitizens . . . beyond [U.S.] territory,”182 articulated a different test for the
extraterritorial application of the Constitution.183 According to Justice
Kennedy, the citizenship of the person claiming the constitutional protection
and his presence or absence within the U.S. at the time of the alleged
violation were relevant considerations, but not dispositive of the inquiry; he
opined that the focus of the inquiry ought to be whether adherence to
constitutional guarantees would be impracticable and anomalous under the
B. Boumediene and the Emergence of the “Impracticable and Anomalous” Test
In Boumediene v. Bush,185 the Supreme Court was asked to settle whether
protections of habeas corpus could be extended to alien detainees at
Guantanamo Bay.186 The Court held that the Suspension Clause of the
Constitution187 “has full effect at Guantanamo Bay.”188 The Court
concluded that foreign nationals detained at Guantanamo had a constitutional
right to challenge the factual basis for their detention.189 The Court ruled
that provisions of the Detainee Treatment Act, which provides individuals
with a military hearing before a Combatant Status Review Tribunal (CSRT)
178. See Verdugo-Urquidez, 494 U.S. at 264–68.
179. See Moore, supra note 36, at 835–36.
180. Verdugo-Urquidez, 494 U.S. at 269.
181. See id. at 271. Justice William Rehnquist drew a distinction between the text of the
Fourth Amendment, which refers to “the people,” and the Fifth Amendment, which refers to
any “person,” and suggested that “the people” was used as a term of art to refer to “a class of
persons who are part of a national community or who have otherwise developed sufficient
connection with this country to be considered part of that community.” Id. at 264–66.
182. See id. at 275 (Kennedy, J., concurring).
183. See Neuman, supra note 171, at 965–70.
184. Verdugo-Urquidez, 494 U.S. at 277–78 (Kennedy, J., concurring); see also Neuman,
supra note 171, at 974.
185. 553 U.S. 723 (2008).
186. See id. at 739.
187. U.S. CONST. art. I, § 9, cl. 2 (“The privilege of the writ of habeas corpus shall not be
suspended, unless when in cases of rebellion or invasion the public safety may require it.”).
188. Boumediene, 553 U.S. at 771.
189. See id. at 783–84.
and limited judicial review in the D.C. Circuit, did not provide the prisoners
with an adequate opportunity to challenge the lawfulness of their detention
and was an inadequate substitute for the writ of habeas corpus.190
The Court held that the writ of habeas extends despite detainees’
noncitizen status and their presence outside domestic borders.191 In so doing,
the Court rejected a strict non-extraterritorial test and articulated a functional
approach to determine the Constitution’s geographical reach: “whether a
constitutional provision has extraterritorial effect depends upon the
‘particular circumstances, the practical necessities, and the possible
alternatives which Congress had before it’ and . . . whether judicial
enforcement of the provision would be ‘impracticable and anomalous.’”192
In line with his concurrence in Verdugo-Urquidez, Justice Kennedy—now
writing for the majority—noted that practical considerations bearing on the
reach of the Constitution relate not only to citizenship, but also to the place
of confinement and the sufficiency of process provided.193
Even though the Guantanamo detainees were not American citizens, their
status as enemy combatants was contested and the alien detainees’ only
recourse to challenging their status was through CSRTs.194 The Court found
the lack of procedural protections afforded in CSRT hearings—lack of
counsel and limited ability to rebut government evidence—particularly
troubling.195 Moreover, unlike the alien prisoners in Eisentrager, who were
detained in foreign territory, these aliens were detained at Guantanamo,
which was “within the constant jurisdiction of the United States.”196
In delineating the reach of the Constitution, the Court clarified that
“[n]othing in Eisentrager says that de jure sovereignty is or has ever been the
only relevant consideration in determining the geographic reach of the
Constitution” and emphasized that “questions of extraterritoriality turn on
objective factors and practical concerns, not formalism.”197 The Court
explained that Eisentrager was influenced as much by practical
considerations as it was by notions of de jure sovereignty: the costs of
producing alien prisoners being detained at Landsberg Prison in Germany
would have presented significant difficulties for the government, damaged
the prestige of the military at a sensitive time, and interfered with military
efforts to contain enemy elements in postwar Germany.198
In contrast, the Guantanamo detainees were being kept at a “secure prison
facility located on an isolated and heavily fortified military base,”199 and
190. See id. at 783–90.
191. See id. at 766–69.
192. Id. at 759 (quoting Reid v. Covert, 354 U.S. 1, 74–75 (1957) (Harlan, J., concurring)).
193. See id. at 760; see also Richard Nicholson, Note, Functionalism’s Military Necessity
Problem: Extraterritorial Habeas Corpus, Justice Kennedy, Boumediene v. Bush, and Al
Maqaleh v. Gates, 81 FORDHAM L. REV. 1393, 1425 (2012).
194. See Boumediene, 553 U.S. at 766.
195. See id. at 767.
196. See id. at 768–69.
197. Id. at 764.
198. See id. at 762.
199. Id. at 770.
there was no indication that adjudicating a habeas petition would cause
friction with an international government or compromise the military mission
at Guantanamo.200 Although extending the reach of the Suspension Clause
would inevitably require expenditure of funds by the government, the Court
did not find these costs to be dispositive as “[c]ompliance with any judicial
process requires some incremental expenditure of resources.”201
Hence, even though it did not overrule any of the Court’s previous cases,
Boumediene signified a shift in the Court’s jurisprudence from strict
formalism to pragmatism with respect to extraterritorial application of the
Constitution.202 Casting Eisentrager in the mold of pragmatism, as the
Boumediene Court did, paves the way for ascertaining whether the Due
Process Clause can be extended to aliens beyond the territory of the United
States.203 As a matter of doctrine, Boumediene was decided on Suspension
Clause grounds204 and does not address whether the Constitution’s other
provisions—due process in particular—extend beyond the territorial
jurisdiction of the United States. This issue has fallen largely to the D.C.
Circuit to resolve; while several opinions have intimated that alien detainees
lack any constitutional rights beyond the Suspension Clause, no such rule has
been conclusively adopted.
In Kiyemba v. Obama (Kiyemba I),205 the D.C. Circuit had to decide
whether Uighur detainees being held at Guantanamo, whose enemy
combatant status had been removed, could seek federal habeas relief in the
form of entry and release inside the United States.206 Although the thrust of
the holding came from Congress’s plenary power over decisions of
admission, the court noted that the Due Process Clause would offer scant
protection to petitioners.207 Since Kiyemba III,208 the D.C. Circuit has yet to
resolve whether its initial pronouncement in Kiyemba I—that alien detainees
had no constitutional rights—remains good law.209
There is a wealth of scholarship on the various interpretations of the
Boumediene decision and its implications for an extraterritorial
Constitution;210 it is beyond the scope of this Note to delve into a thorough
exposition of each of these theories. This Note adopts Boumediene’s
functional approach outlined above to determine how, and to what extent, the
Due Process Clause may be applied extraterritorially to nonresident arriving
IV. BOUMEDIENE AND THE FUTURE OF THE ENTRY FICTION
The hurdle to extending due process protection to arriving aliens who are
treated as never having effected entry into the United States is the idea that
legal circumstances change once an alien enters the country. “[F]or the Due
Process Clause applies to all ‘persons’ within the United States, including
aliens, whether their presence here is lawful, unlawful, temporary, or
permanent.”211 Given that the entry fiction doctrine places aliens who were
never formally admitted outside the territory of the United States and hence
beyond the reach of the Due Process Clause,212 the functional approach can
be applied to “extend” constitutional protections to unadmitted aliens
detained within the United States.
Although the Guantanamo detainees are on a different legal footing than
nonadmitted aliens,213 their legal similarities—citizenship and location—are
significant. Moreover, the differences among them support extending the
Due Process Clause to inadmissible aliens. If the Court was willing to extend
due process protections—in the guise of the Suspension Clause—to potential
enemy combatants held at Guantanamo Bay, it is difficult to see why similar
protections should not be afforded to aliens whose only infraction is a lack
of proper entry documents and who have major private interests at stake.214
Significantly, it would not be “impracticable or anomalous” to extend
210. See generally, e.g., Joshua Alexander Geltzer, Of Suspension, Due Process, and
Guantanamo: The Reach of the Fifth Amendment After Boumediene and the Relationship
between Habeas Corpus and Due Process, 14 U. PA. J. CONST. L. 719 (2012). Professor
Geltzer offers five conceptions of how the Suspension Clause and Due Process Clause relate
to each other, and he then draws on these to offer five understandings of Boumediene, ranging
from those pointing most strongly against finding that the Due Process Clause applies to
Guantanamo detainees to those pointing most strongly in favor of such a finding. See id. at
720–21, 754–78. According to Professor Geltzer, if the Suspension Clause’s application to
Guantanamo was neither impractical nor anomalous, then the Due Process Clause would be
similarly situated. See id. at 776.
211. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (emphasis added).
212. See supra notes 126–29 and accompanying text.
213. Arguably, Guantanamo detainees deserve more process because they have never been
charged with a crime by the U.S. government and may have no idea why they are being
detained. Moreover, these detainees are initially captured in foreign countries and held at
Guantanamo with no access to the resources needed to prove their innocence. See Faiza W.
Sayed, Note, Challenging Detention: Why Immigrant Detainees Receive Less Process Than
Enemy Combatants and Why They Deserve More, 111 COLUM. L. REV. 1833, 1864 (2011).
214. See supra notes 94–99 and accompanying text; cf. Sayed, supra note 213, at 1863–73
(comparing the procedural protections available to enemy combatants held at Guantanamo
and LPRs detained pursuant to § 1226, and arguing that LPRs deserve greater due process
protections than they are currently afforded).
procedural protections to nonresident arriving aliens. “Practical
considerations” shaping the reach of the Constitution weigh heavily in favor
of extending procedural due process protections: the inspection stations for
U.S. ports of entry are clearly on U.S. territory, the ongoing detention of
arriving aliens occurs at U.S. jails or prisons within the interior, and
producing them for bond hearings neither damages the prestige of
immigration authorities nor imposes a heavy burden on government
resources.215 The following discussion focuses on how the practical
considerations central to the Boumediene Court’s disposition counsel in favor
of extending the reach of the Due Process Clause to asylum seekers.216
A. Functionalism and the Demise of the Entry Fiction
Boumediene’s focus on practical factors in determining the reach of the
Constitution is arguably a death knell for the entry fiction. If the reach of the
Due Process Clause is shaped by practical considerations, as discussed
below, then the entry fiction’s archaic emphasis on physical presence loses
its value. The following discussion explores how the Boumediene functional
approach bolsters the extension of the Due Process Clause to nonresident
1. Citizenship and Status of the Detainee and Adequacy
of the Determination Process
Asylum seekers, like the Guantanamo detainees in Boumediene, are not
citizens of the United States.217 The designation of asylum seekers as
nonresident arriving aliens is statutorily prescribed, but status determinations
of whether a nonresident arriving alien seeking asylum has demonstrated a
credible fear of persecution and whether she is to be granted parole are made
by executive officials.218 Even though a DRO’s decision to grant or deny
parole is subject to at least one level of supervisory review, the review is also
conducted by executive officials.219 Requests for redetermination are heard
by executive officials and the field office has the discretion to either
reinterview the alien or consider the request solely based on documentary
material already provided.220 Detention authorized by executive officials
without the possibility of review before a neutral decision maker hardly
qualifies as adequate process.221
Moreover, the ability of these alien detainees to gather evidence and
present their case for parole is severely constrained on account of their
215. See Ellison, supra note 202, at 46–49.
216. See Boumediene v. Bush, 553 U.S. 723, 765 (2008); supra notes 192–93 and
217. See supra notes 93, 103 and accompanying text.
218. See supra notes 111–12 and accompanying text.
219. See supra note 112.
220. See supra note 113 and accompanying text.
221. Cf. Hamdi v. Rumsfeld, 542 U.S 507, 509 (2004).
detention and lack of access to counsel.222 Despite having a statutorily
granted privilege of access to counsel, less than 14 percent of all aliens in
detention manage to secure legal representation.223 Given the fact that these
asylum seekers have little or no familiarity with the U.S. legal system and
are often still suffering from the effects of trauma and persecution, their
ability to gather evidence and effectively represent themselves in the
redetermination process is severely impeded.224 Hence, not only is the parole
determination process completely shielded from review by a neutral decision
maker, it also places severe constraints on an asylum seeker’s ability to have
a meaningful opportunity for a hearing.225 The similarity between the parole
process for asylum seekers and the procedurally deficient CSRT hearings in
Boumediene226 counsels in favor of extending the reach of the Due Process
Clause to detained asylum seekers.
2. Nature of Sites Where Apprehension and Detention Took Place
Comparably to the Guantanamo detainees, the asylum seekers who are the
focus of this Note are apprehended at the border—outside the United
States.227 However, unlike the Guantanamo detainees in Boumediene who
were held in an area over which the United States exerts only de facto
sovereignty and control,228 asylum seekers are detained at detention facilities
in U.S. territory,229 over which the United States inarguably exerts de facto
and de jure sovereignty and control. This favors using the functional
approach to apply the Due Process Clause to these aliens. The mere fact of
being detained on U.S. soil does not entitle asylum seekers to constitutional
protections.230 However, the location of detention does favor extending the
reach of the Due Process Clause, as doing so is unlikely to raise practical
anomalies, such as those encountered in Eisentrager, where aliens seeking
procedural protections were being detained in another country.231
3. Inherent Practical Obstacles
Boumediene was animated by concerns about costs and international
comity that would attach upon extending the Suspension Clause to reach
Guantanamo detainees.232 With respect to asylum seekers, there is no
222. See supra note 32.
223. See BYRNE, ACER & BARNARD, supra note 6, at 32–33.
224. Cf. Johan Fatemi, A Constitutional Case for Appointed Counsel in Immigration
Proceedings: Revisiting Franco-Gonzalez, 90 ST. JOHN’S L. REV. 915, 934 (
) (noting that
asylum seekers without legal representation are 12.5 times less likely to be granted asylum
than those with legal representation).
225. See supra note 114 and accompanying text.
226. See supra note 195 and accompanying text.
227. See supra notes 95–96, 103–04 and accompanying text.
228. See Boumediene v. Bush, 553 U.S. 723, 755 (2008).
229. See, e.g., supra note 2 and accompanying text.
230. See discussion supra Part I.A; cf. supra note 127 and accompanying text.
231. See supra note 196 and accompanying text.
232. See supra notes 199–201 and accompanying text.
concern that extending due process would invoke friction with other nations;
in fact, quite to the contrary, denial of procedural protections stands in stark
contrast to the United States’s obligations under international conventions
for the protection of asylum seekers and refugees.233
Although extending the Due Process Clause to asylum seekers might
require government expenditure, Boumediene is instructive.234 Reasonable
costs incurred in complying with requirements of judicial process should not
be used as a sword to ward off executive responsibility.235 Moreover, the
exact magnitude of costs incurred would depend on the degree and measure
of procedural protections extended under the Due Process Clause.236
Thus, on balance, practical considerations tip the scale in favor of
extending the Due Process Clause to applicants for admission. The
discussion above, although dealing with asylum seekers, could arguably be
applied to applicants for admission subject to expedited removal. If this were
the case, it would hamper the enforcement of immigration policies by
interposing the judiciary in the Executive’s way at every step.237 However,
that is not the case. Recognizing that the Due Process Clause applies to
asylum seekers—or applicants for admission—is only the first step. The
content of due process protections would inevitably depend on balancing the
purpose and government interest in detention against the private interests at
stake,238 which would not only delimit the protections available to asylum
seekers in a manner reconcilable with the plenary power doctrine, but also
exclude applicants for admission subject to expedited removal from the
purview of enhanced procedural protections. As in Plasencia, the question
of whether an alien is entitled to invoke the protection of the Due Process
Clause is different from what specific process she is entitled to and whether
the procedure prescribed by Congress is sufficient in the context.239
Having posited that Boumediene entirely circumvents the entry fiction
doctrine and provides a constitutional basis for extending due process
protections to asylum seekers, the following discussion focuses on how the
constitutional guarantees of due process can be extended without
undermining the Executive’s plenary power over immigration matters. By
balancing the government and private interests at stake and evaluating the
fairness and reliability of existing procedures, the next section of this Note
addresses whether the prolonged detention of nonresident arriving aliens—
233. Cf. supra note 200 and accompanying text. For a discussion of the United States’s
obligations towards asylum seekers under international human rights law, see Lara
Domínguez, Adrienne Lee & Elizabeth Leiserson, U.S. Detention and Removal of Asylum
Seekers: An International Human Rights Law Analysis (June 20, 2016) (unpublished paper,
Yale Law School, Allard K. Lowenstein International Human Rights Clinic),
234. See supra note 201 and accompanying text.
235. See supra note 201 and accompanying text.
236. See discussion infra Part IV.B.
237. Cf. supra notes 117–21 and accompanying text.
238. See supra note 133 and accompanying text.
239. See supra notes 131–35 and accompanying text.
both asylum seekers and applicants for admission subject to expedited
removal—raises serious constitutional threats and how they may be
B. Ascertaining the Content of Due Process
Whether the prolonged detention of nonresident arriving aliens raises
constitutional concerns and warrants judicial interference with
congressionally prescribed procedures depends on whether the procedures
governing detention comport with due process.240 Since the notion of due
process is inherently flexible, the nature of procedural protections required
varies with the demands of a particular situation and is determined by
balancing the interests at stake.241
As a preliminary matter, the procedures prescribed for examination and
detention of nonresident arriving aliens subject to an order of expedited
removal are constitutionally sufficient because balancing the interests
involved yields a result analogous to Demore v. Kim.242 The determination
of whether an arriving alien possesses valid and requisite documentation is
made by executive officers at the ports of entry in accordance with
established guidelines and regulations.243 The availability of judicial review
via habeas proceedings to challenge these threshold determinations, as
prescribed by Congress, makes it unlikely that any additional procedures
would yield much value.244 At the examination stage, the private interest at
stake is the right to enter the United States. However, no alien has a right of
admission into the United States as it is a privilege and not an entitlement.245
Moreover, the public interest in expediting the examination of applicants for
admission who fall under the purview of § 1225(b)(
) is significant given the
need to protect the nation’s borders.246
Detention of aliens subject to an order of expedited removal certainly
implicates their liberty interest,247 which on its face seems particularly
significant. However, when reviewed in the context of the purpose of
detention it becomes significantly diminished. The government has a
compelling interest in minimizing the risk of flight for aliens not entitled to
admission into the United States so that removal may be carried out.248
Hence, detention bears a reasonable relation to its purpose as the risk of flight
for aliens who have failed the credible-fear screening is considerably greater
compared to aliens who have passed the credible-fear screening and have
240. See discussion supra Part I.B.
241. See supra notes 134–35 and accompanying text.
242. See supra notes 81, 85 and accompanying text.
243. See 8 C.F.R § 235.1(f) (
); see also 8 C.F.R § 211.1 (
); supra note 99 and
244. See supra note 101 and accompanying text.
245. See discussion supra Part I.C.
246. Cf. supra note 29 and accompanying text.
247. See supra notes 60, 89–90 and accompanying text.
248. See supra note 85 and accompanying text.
strong defenses against removal.249 Moreover, the provision of discretionary
parole accounts for extenuating circumstances where detention may be
unreasonable, and it renders superfluous the need for additional procedural
protections for arriving aliens subject to expedited removal.250 As the
procedures prescribed by Congress with respect to the detention of aliens
subject to expedited removal are constitutionally sufficient, they do not raise
any serious constitutional concerns that would warrant the need for judicial
With respect to nonresident arriving aliens seeking asylum, however, the
calculus changes significantly as the interests implicated are qualitatively
different. As a procedural matter, because aliens in this category would have
already passed the credible-fear screening,251 the following discussion
focuses on their detention during the pendency of removal proceedings and
whether the procedural protections afforded in detention are constitutionally
sufficient. This Note posits that the statutorily prescribed procedure is
insufficient in light of the interests at stake and emphasizes how adopting a
discrete remedy—bond hearings after a reasonable period of detention—
could yield a constitutionally sufficient process.252
By virtue of their status, asylum seekers lack sufficient connections with
the United States to be considered a part of the national community. But as
Chief Justice William Rehnquist intimated in Verdugo-Urquidez, protections
of the Fifth Amendment—and concomitantly the Due Process Clause—do
not turn on whether or not an individual is part of the national community.253
Moreover, although asylum seekers have only a tenuous relationship to the
national polity, their personal interest at stake—not being returned to a
country where they might face torture, imprisonment, or death—is of the
“highest possible” magnitude.254 Given that they have already cleared the
initial credible-fear screening, their private interests are more than a mere
frivolity.255 Unarguably, the government has a strong interest in ensuring
that these asylum seekers appear at their scheduled removal proceedings.256
However, this interest is tempered by the fact that these asylum seekers have
already passed the credible-fear screening and hence have little incentive to
flee and abandon a substantial defense to removal.257
249. Cf. supra notes 61–66, 83–85 and accompanying text.
250. See supra note 102.
251. See discussion supra Part I.B.3.
252. If the provision of bond hearings for asylum seekers is to have its desired impact, it
must also be accompanied by improved access to counsel for these alien detainees. Assistance
of counsel is essential if an alien is to meet the high burden to rebut the government’s case
and affirmatively show that continued detention is no longer warranted. For a discussion of
how Eldridge can be used to extend a right to counsel to immigrants in removal proceedings,
see generally Fatemi, supra note 224.
253. See supra note 181.
254. See Aleinikoff, supra note 169, at 247–48.
255. See supra notes 103–06 and accompanying text.
256. See supra notes 61, 85 and accompanying text.
257. See supra Part I.B.3.
Furthermore, although detention in this instance has an obvious
termination point—the conclusion of removal proceedings—the length of
this period is uncertain and often runs into months or even years, unlike the
five-month detention the Demore v. Kim Court found to be reasonable.258
Since balancing the interests at stake with respect to the detention of asylum
seekers yields a result sufficiently analogous to Zadvydas, due process
requires that procedural protections be afforded to ensure that detention
continues to bear a reasonable relation to its purpose.259
Providing an opportunity for individual custody determinations before an
immigration judge after a presumptively reasonable period of time has
elapsed would alleviate the concerns outlined above without undermining the
Executive’s plenary power. Affording the opportunity for a bond hearing
would not entitle aliens to be admitted into the United States.260 Requiring
the government to produce the asylum seekers before an immigration judge
and to articulate the precise basis for their continuing detention would merely
ensure that detention continues to bear a reasonable relation to its purpose.
The standards and requirements for admitting aliens into the United States
would continue to be governed by Congress and the Executive, preserving
their plenary power over immigration matters.261 Moreover, continued
detention would remain justified and proper if the government can show that
a particular alien poses a danger to the community or a high risk of flight.262
However, if the alien can show that neither justification is warranted, he
or she should be released subject to appropriate conditions and restrictions.
Moreover, the opportunity for review before an impartial decision maker is
likely to improve the accuracy of the parole process by not only curing any
erroneous deprivations of liberty but also encouraging executive officials to
be more conscientious in rendering their initial determinations.263
Hence, the constitutional threats raised by the prolonged detention of
asylum seekers can be alleviated by affording the detained asylum seekers
the opportunity to challenge the basis of their detention, after a reasonable
period of detention, without undermining the Executive’s plenary power.
Although the Executive possesses plenary power over the substantive
criteria governing admission of aliens into the United States, the procedures
employed to enforce these decisions must remain subject to judicial scrutiny.
Given the inherent vulnerabilities plaguing asylum seekers detained pursuant
to § 1225(b), it is crucial that courts reevaluate the utility of the entry fiction
doctrine. Judicial recalcitrance to address the constitutional entitlements of
nonresident arriving aliens seeking asylum and strict adherence to old and
258. See supra notes 8, 81, 86 and accompanying text.
259. See supra notes 57–66 and accompanying text.
260. See supra note 66 and accompanying text.
261. See discussion supra Part I.C.
262. See supra Part I.B.1–2.
263. Cf. supra notes 134–35 and accompanying text.
Responsibility Act ........................................................... 295
Constitutional Concerns ................................................. 297
1. 8 U.S.C. § 1231 .......................................................... 297
3. 8 U.S.C. § 1225 .......................................................... 301
A. Treatment by Lower Courts.............................................. 308 1 . The Southern District of New York: Arias v. Aviles
and Saleem v. Shanahan............................................ 308 2 . The Ninth Circuit: Rodriguez v. Robbins.................. 309
Immigration .................................................................... 310
and Anomalous” Test ..................................................... 313
2. Nature of Sites Where Apprehension and Detention
Took Place................................................................. 318
3. Inherent Practical Obstacles....................................... 318
87. See Lora v. Shanahan , 804 F.3d 601 , 614 ( 2d Cir . 2015 ) (involving the detention of
an LPR convicted of drug-related offenses), vacated sub nom . Shanahan v. Lora , 138 S. Ct .
1260 ( 2018 ); Rodriguez v . Robbins , 715 F.3d 1127 , 1135 - 36 ( 9th Cir . 2013 ) (noting that
subclass members detained under § 1226(c) are entitled to a bond hearing after a
presumptively reasonable period of six months); Diop v . ICE/Homeland Sec., 656 F.3d 221 ,
232 ( 3d Cir . 2011 ) (construing Demore v. Kim as recognizing that the constitutionality of
have construed § 1226(c) to contain an implicit temporal limitation, they have differed over
Compare Lora , 804 F.3d at 614 -17 (bright line rule), with Diop , 656 F. 3d at 235 (case-by-
case approach) . See generally Rodriguez v. Robbins , 804 F.3d 1060 ( 9th Cir . 2015 ), rev'd
sub nom . Jennings v. Rodriguez , 138 S. Ct . 830 ( 2018 ). 88 . 804 F.3d 601 . 89 . Id. at 606 , 616 . 90. Id. at 606 . 91. Id. at 614 . 92. 8 U.S.C. § 1225 ( 2012 ). 93 . Id . § 1225 ( a)(1 ). 94. Id . § 1225 ( b)(2)(A); see also 8 U.S.C. § 1101(a)(13)(c) ( 2012 ) (requiring that an LPR
be treated as an applicant for admission if she (1) “has abandoned or relinquished [LPR]
status,” (2) “has been absent from the United States for a continuous period in excess of 180
days,” (3) “has engaged in illegal activity after having departed the United States,” (4) “has
departed from the United States while under legal process seeking removal,” (5) “has
committed an offense identified in section 1182(a)(2) of this title,” or (6) “is attempting to
admitted to the United States after inspection and authorization by an immigration officer” ). 95 . See 8 U.S.C. § 1225 ( b)(1)(A)(i), (iii); 8 C.F .R. § 1235 . 3(b)(1)(i)-(ii) ( 2017 ). 96 . 8 C.F.R. § 1001 .1( q ) ( 2017 ). 97 . See 8 U.S.C. § 1225 ( b)(1)(A)(iii)(II); see also Designating Aliens for Expedited
Removal , 69 Fed. Reg. 48 , 877 , 48 ,880 (Aug. 11, 2004 ) (authorizing DHS to place in expedited
“within 100 air miles of any U.S. international land border,” and who cannot establish that
days) . 98 . See 8 U.S.C. § 1182(a)(6)(C), (a)(7) ( 2012 ). 99 . 8 U.S.C. § 1225 ( b)(1)(A)(i). 100 . Id . § 1225 ( b)(1)(C); see also SCAPERLANDA, supra note 30, at 69 (discussing the
limited jurisdiction of courts to review matters related to expedited removal) . 101 . 8 U.S.C. § 1252 (e)( 2 ) ( 2012 ) ; see also id. § 1252(e)(3) (conferring jurisdiction on the
§ 1225(b)(1)); Am. Immigration Lawyers Ass'n v . Reno , 18 F. Supp . 2d 38 , 58 -60 (D.D .C.
1998 ) (upholding expedited removal provisions against a due process challenge ). 102 . See 8 U.S.C. § 1182(d)(5)(A) (“The Attorney General may . . . in his discretion parole
for admission to the United States .”); see also 8 C.F.R. §§ 235 . 3(b)(2)(iii ), 1235 .3 (b)(2)(iii)
( 2017 ). 103 . 8 U.S.C. § 1225 ( b)(1)(A)(ii); see also id . § 1225 ( b)(1)(E) (defining asylum officer as
experience adjudicating asylum applications) ; 8 C.F.R. § § 208.9 , 208 .30 ( 2017 ).
against resident aliens already in the United States. See Fong Yue Ting v . United States , 149
U.S. 698 , 731 ( 1892 ) (rejecting a due process challenge brought by Chinese immigrants
Plenary Power: Phantom Constitutional Norms and Statutory Interpretation , 100 YALE L.J.
545 , 550 - 53 ( 1990 ). 118 . 189 U.S. 86 ( 1903 ). 119 . See id. at 100-01; David A. Martin, Graduated Application of Constitutional
Protection for Aliens: The Real Meaning of Zadvydas v . Davis , 2001 SUP. CT. REV . 47 , 53 -
54; Motomura, supra note 117, at 553-55 ( noting that the harshest aspects of the plenary
proceedings); The Supreme Court-Leading Cases , 117 HARV. L. REV. 226 , 287 - 88 ( 2003 )
admission and expulsion) . 120 . See United States ex rel . Knauff v. Shaughnessy , 338 U.S. 537 , 545 - 47 ( 1950 )
exclude her without a hearing); see also Martin , supra note 119, at 54-56 . 121 . Knauff , 338 U.S. at 542 . 122. 345 U.S. 206 ( 1953 ). 123 . Id. at 208. Even though Mezei was an LPR, the Court held that his protracted absence
entrant alien . See id. at 214 . However, the Court acknowledged that under some circumstances
due process . See id. at 213. 124. Id. at 212-13. 125. Id. at 208-09 . 126 . Id. at 212; see also T. Alexander Aleinikoff, Citizens, Aliens, Membership and the
Constitution , 7 CONST. COMMENT. 9 , 10 ( 1990 ) (noting that Congress acts essentially free from
any constitutional limits when it establishes admission and detention procedures at the border ). 127. Mezei , 345 U.S. at 213 . 128. Professor Motomura notes that during the 1950s the Supreme Court expressed a
for an alien's benefit in the context of immigration detention . See Motomura, supra note 115 ,
at 1643-44 . 129 . Barrera-Echavarria v . Rison , 44 F.3d 1441 , 1450 ( 9th Cir . 1995 ), superseded by
statute , Illegal Immigration Reform and Immigrant Responsibility Act of 1996 , Pub. L. No.
104- 208 , 110 Stat. 3009 - 546 , as recognized in Xi v . INS , 298 F.3d 832 , 837 - 38 ( 9th Cir .
2002 ) ; see also 8 U.S.C. § 1182(d)(5)(A) ( 2012 ) (noting that the discretionary parole of an
alien shall not be regarded as admission ). 130 . See Rodriguez v. Robbins , 715 F.3d 1127 , 1143 ( 9th Cir . 2013 ) (noting that the
impetus for providing bail hearings to LPRs detained under § 1225(b) is greater than that for
affording bail hearings to aliens detained under § 1226(c )). 131 . 459 U.S. 21 ( 1982 ). 138 . 138 S. Ct . 830 , 842 - 48 , 851 ( 2018 ) (holding that aliens detained under sections
1225(b) , 1226 ( a ), and 1226(c) have no statutory right to periodic bond hearings during the
constitutional arguments on their merits”) . 139 . Compare Ricketts v. Simonse, No. 16 Civ. 6662 , 2016 WL 7335675, at *4 (S.D.N .Y.
Dec. 16 , 2016 ) (holding that, “post-Lora, detention pursuant to § 1225(b) must be construed
to contain a reasonableness limitation of six months”), Saleem v . Shanahan, No. 16 -CV- 808 ,
2016 WL 4435246 , at *5 ( S.D.N.Y Aug . 22 , 2016 ) (declining “to interpret 8 U .S.C.
§ 1225(b)(2)(A) differently depending on which litigant is before it, the Court construe[d] the
alien's] detention”), appeal filed , No. 16 - 3587 (2d Cir. Oct. 21 , 2016 ), and Arias v. Aviles,
No. 15-CV-9249 , 2016 WL 3906738, at *4 ( S.D.N.Y. July 14 , 2016 ) (finding that § 1225(b )
Lora is the appropriate limiting principle in this circuit”), with Perez v . Aviles , 188 F. Supp .
3d 328 , 332 (S.D.N .Y. 2016 ) (holding that detention under § 1225(b) is neither “implicitly
time limited [n]or requires a bond hearing”), and Cardona v . Nalls-Castillo , 177 F. Supp . 3d
815 , 816 (S.D.N .Y. 2016 ) (declining to extend Lora to § 1225(b )). 140 . No. 15 -CV-9249, 2016 WL 3906738 (S.D.N .Y. July 14 , 2016 ). 141 . Id. at * 1 . 142 . Id . 143 . Id . 144 . See id. at *2. 145. Id. at *4. 155. Id. at 1140-42. 156. Id. 157. Id. at 1142-44; see also supra notes 68-72 and accompanying text. 158. See Rodriguez , 715 F.3d at 1141; cf. supra note 138. 159. See discussion supra Part I.B.1. 160. See discussion supra Part II.A. 161. See discussion supra Part I.B.1. 162. See discussion infra Parts III.B., IV. 163 . See Kevin Johnson, Opinion Analysis: Court Tees Up Issue of the Constitutionality
of Indefinite Immigration Detention for the 9th Circuit , SCOTUSBLOG (Feb. 27 , 2018 , 8 : 44
PM) , http://www.scotusblog.com/ 2018 /02/opinion -analysis-court-tees-issue-constitutionality
- indefinite - immigration-detention - 9th-circuit/ [https://perma.cc/55G3-4RBT] (noting that by
Immigration Sins of the Past, and the Forced Separation of Families, TAKE CARE (June 6,
2018 ), https://takecareblog.com/blog/jennings-v -rodriguez-immigration-sins-of-the-past-
and-the-forced-separation-of-families [https://perma .cc/B5T4-EA7X] (“The Court did not . . .
hearings, are consistent with the due process clause . ”) . 164 . See discussion supra Parts I.C. , II .A. 165 . See José Javier Rodríguez, Clark v. Martinez: Limited Statutory Construction
from Indefinite Detention , 40 HARV. C.R.-C.L.L. REV . 505 , 506 ( 2005 ). 166 . See id. 167 . See id.; see also Clark v. Martinez , 543 U.S. 371 , 386 ( 2005 ). 168 . See Martin, supra note 119 , at 79 . 169. See T. Alexander Aleinikoff , Aliens, Due Process and “Community Ties”: A
Response to Martin, 44 U. PITT. L. REV . 237 , 258 ( 1983 ). 170 . See id. at 258-59 . 171 . See Gerald L. Neuman , Whose Constitution?, 100 YALE L.J. 909 , 910 - 12 ( 1991 ). 172 . See id. at 915 . 173. 339 U.S. 763 ( 1950 ). 174 . See id. at 771 , 783 . 175. See id. at 777-78 , 784 . 176 . 494 U.S. 259 ( 1990 ). 177 . The Court reversed the Ninth Circuit, which had affirmed the district court's holding
See United States v . Verdugo-Urquidez , 856 F.2d 1214 ( 9th Cir . 1988 ), rev'd , 494 U.S. 259
( 1990 ). However, the dissenting judge on the panel, relying on United States v . Curtiss-Wright
Export Corp ., 299 U.S. 304 ( 1936 ), argued that “[n]either the Constitution nor the laws passed
Verdugo-Urquidez , 856 F. 2d at 1230 (Wallace , J., dissenting) . 200. See id. at 770-71. 201. Id. at 769 . 202. See Charles Ellison, Extending Due Process Protections to Unadmitted Aliens Within
the U.S. Through the Functional Approach of Boumediene, 3 CRIT 1 , 5 ( 2010 ). 203. See supra notes 197-98 and accompanying text. 204. See supra notes 185-90 and accompanying text . 205 . 555 F. 3d 1022 (D.C. Cir . 2009 ), vacated, 559 U.S. 131 ( 2010 ). 206 . See id. at 1023 . 207. See id. at 1026 (“[T] he due process clause does not apply to aliens without property
(Kiyemba III ), 605 F.3d 1046 , 1048 (D.C. Cir . 2010 ) (reinstating Kiyemba I's opinion “as
Immigration Law : An Extraterritorial Constitution in a Plenary Power World, 2 U.C . IRVINE
L. REV . 193 , 204 - 05 ( 2012 ) (discussing how plenary power assumptions provide a fallback
set of norms to exclude noncitizens from constitutional protections ). 208. 605 F.3d at 1046 . 209. See Aamer v. Obama , 742 F.3d 1023 , 1039 (D.C. Cir . 2014 ) (“[W]e shall . . . assume
extends to nonresident aliens detained at Guantanamo . . . .”); Al-Madhwani v . Obama , 642
F. 3d 1071 , 1077 (D.C. Cir . 2011 ) (restating the language of Kiyemba I, but concluding that