A Constitutional Case for Extending the Due Process Clause to Asylum Seekers: Revisiting the Entry Fiction After Boumediene

September 30, 2018


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 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
avoidance arguments.

October 2018

No. 1