A Constitutional Case for Extending the Due Process Clause to Asylum Seekers: Revisiting the Entry Fiction After \u3ci\u3eBoumediene\u3c/i\u3e

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