Scrutinizing National Security: A Call for Clear and Convincing Evidence in § 1226(a) Prolonged Detention Cases

University of Chicago Legal Forum Volume 2024 Article 14 2025 Scrutinizing National Security: A Call for Clear and Convincing Evidence in § 1226(a) Prolonged Detention Cases Rosie Gruen Follow this and additional works at: https://chicagounbound.uchicago.edu/uclf Part of the Law Commons Recommended Citation Gruen, Rosie (2025) "Scrutinizing National Security: A Call for Clear and Convincing Evidence in § 1226(a) Prolonged Detention Cases," University of Chicago Legal Forum: Vol. 2024, Article 14. Available at: https://chicagounbound.uchicago.edu/uclf/vol2024/iss1/14 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized editor of Chicago Unbound. For more information, please contact . Scrutinizing National Security: A Call for Clear and Convincing Evidence in § 1226(a) Prolonged Detention Cases Rosie Gruen † ABSTRACT A noncitizen detained under 8 U.S.C. § 1226(a) may be detained indefinitely until her removal order is finalized. Detainees have challenged prolonged detention following a detainee’s bond hearing on Fourteenth Amendment Due Process grounds, leading to a circuit split. Courts generally apply the Mathews test when hearing these challenges, which requires balancing the individual’s liberty at stake against the government’s interest in limiting that liberty. The government’s asserted interests in these cases are frequently grounded in national security arguments, which courts rarely scrutinize. Instead, courts generally give great deference to the way the executive branch characterizes national security concerns, often casting aside the significant individual interests at stake. This Comment argues that a more complete evaluation of national security implications will more accurately capture the full scope of proffered government interests. Currently, courts often automatically defer to the executive branch’s national security determinations, rarely reaching the merits of those determinations as a result. This can be accomplished with a requirement that the government prove by clear and convincing evidence both the existence of the national security interest and a direct connection between the interest and the detention at issue. A more standardized approach will reduce the extreme deference given to the executive branch in its national security determinations. I. INTRODUCTION Enacted in 1996, 8 U.S.C. § 1226(a) vests the U.S. Attorney General with authority to detain noncitizens “pending a decision on whether the alien is to be removed.” 1 While the statute grants a † B.A., University of Wisconsin–Madison, 2021; J.D. Candidate, The University of Chicago Law School, 2025. I would like to give my deepest thanks to Professor Judith Miller for her excellent feedback throughout the Comment-writing process; Farooq Chaudhry, Caroline Kelly, and the rest of The University of Chicago Legal Forum staff for their diligent work; and my family for their continued support throughout my law school career. 1 8 U.S.C. § 1226(a). 453 454 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2024 detainee an initial bond hearing, if her request for bond is denied, she may be detained indefinitely until her removal order is finalized. 2 Individuals have challenged their prolonged detentions following their respective bond hearings on Fourteenth Amendment Due Process grounds, leading to a nuanced circuit split. 3 The Third, Fourth, and Ninth Circuits have found that § 1226(a) provides sufficient due process to detainees, 4 while the First and Second Circuits have held that more process is required. 5 When evaluating these Due Process challenges, courts have almost uniformly applied a test enumerated by the Court in Mathews v. Eldridge, 6 which requires balancing the individual’s private liberty at stake against the government’s interest in limiting that liberty. 7 Though the Mathews test was developed to assess Social Security benefits rights outside the immigration context, it has since been applied many times where noncitizens have challenged the immigration procedures they were afforded. 8 In these cases, the government’s proffered interests are frequently grounded in national security arguments, since the U.S. Supreme Court has acknowledged a broad connection between immigration enforcement and national security objectives. 9 However, courts rarely engage in detailed analysis of these national security arguments. 10 Instead, courts give great deference to the way the executive branch characterizes national security concerns, thereby clearing the way for their pretextual use to disguise other, perhaps illegitimate, ends. 11 This Comment therefore argues that courts should evaluate the nuances of national security implications when applying the Mathews test to more accurately capture the extent of private and governmental interests at play, rather than allowing the government to simply assert that national security concerns are implicated with no further scrutiny. 2 See Velasco Lopez v. Decker, 978 F.3d 842, 849 (2d Cir. 2020). See, e.g., Miranda v. Garland, 34 F.4th 338, 347–48 (4th Cir. 2022); Velasco Lopez, 978 F.3d at 846–48. 4 See Borbot v. Warden Hudson Cnty. Corr. Facility, 906 F.3d 274, 279 (3d Cir. 2018); Miranda, 34 F.4th at 365; Rodriguez Diaz v. Garland, 53 F.4th 1189, 1208–10 (9th Cir. 2022). 5 See Hernandez-Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021); Velasco Lopez, 978 F.3d at 855. 6 424 U.S. 319 (1976). 7 See id. at 335. 8 See, e.g., Landon v. Plasencia, 459 U.S. 21 (1982). 9 See Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952) (“[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.”). 10 See, e.g., Miranda v. Garland, 34 F.4th 338, 364 (4th Cir. 2022); Rodriguez Diaz v. Garland, 53 F.4th 1189, 1208 (9th Cir. 2022). 11 See Trump v. Hawaii, 585 U.S. 667, 728–29 (2018) (Sotomayor, J., dissenting). 3 453] A CLEAR AND CONVINCING STANDARD FOR § 1226(A) CASES 455 Imposition of a clear and convincing burden of proof—requiring the government to prove by clear and convincing evidence both the existence of the national security interest and a direct connection between the interest and the detention at issue—will ensure that courts adequately perform this analysis. The clear and convincing standard has been applied elsewhere in the context of immigration, which supports its application to prolonged detention cases. The government, when arguing that national security concerns justify continued detention under § 1226(a), must therefore prove that these concerns are both clearly present and implicated by the detention at issue. Because this is a stringent standard, courts should routinely reject the government’s argument that any given detention furthers national security ends. National secur (...truncated)