Toward a Constitutionalized Theory of Immigration Detention

Abstract

The statutory framework governing the nation’s vast immigration detention system is based on a set of constitutional assumptions that have led the federal courts to restrict the level of judicial review available to immigration detainees. This student Note analyzes relevant Founding-era legal practices to show that the Constitution’s dual guarantees of due process and habeas review should apply to modern-day immigration detention, and that consequently immigration detainees should have more access to the courts than current doctrine permits. Read alongside this history, contemporary national practices surrounding judicial review of non-criminal detention suggest a robust set of procedural safeguards that should be applied in the immigration detention context.

Keywords: immigration, detention, due process, mandatory, Demore, Zadvydas