Protecting the Substantive Due Process Rights of Immigrant Detainees: Using COVID-19 to Create a New Analogy

While the Supreme Court has defined certain constitutional protections for incarcerated individuals, the Court has never clearly defined the due process rights of immigrant detainees in the United States. Instead, the Supreme Court defers to the due process protections set by Congress when enacting U.S. immigration law. Increasingly, the federal courts defer to Congress and the Executive’s plenary power over immigration law and enforcement. This has resulted in little intervention in immigration matters by the federal courts, causing the difference between immigration detention and criminal incarceration to diminish in both organization and appearance. Immigration detention, however, is a form of civil detention and is legally distinct from criminal incarceration. This distinction is important because the federal courts traditionally approach civil detention with a scrutinizing eye. Civil detainees receive certain Fifth Amendment protections not available to the criminally convicted, namely that their detention cannot amount to punishment. The consequences of lacking a clear definition of immigrant detainees’ due process rights became far more apparent during the COVID‑19 pandemic. As COVID‑19 infections spread and detention and confinement conditions became more perilous, immigrant detainees relied on habeas corpus petitions to challenge the conditions of their confinement and seek release. However, several federal courts concluded that habeas was an inappropriate vehicle through which to challenge conditions of immigration detention, reflecting a long-standing circuit split within the criminal incarceration context. This Comment argues that courts that denied habeas petitions for release of immigrant detainees during the COVID‑19 pandemic incorrectly analogized immigration detention to post-conviction criminal incarceration. This Comment suggests that the COVID‑19 pandemic highlights the need for the federal courts to take a more principled approach to analyzing the substantive due process rights of immigrant detainees by drawing analogies to a different stage of the criminal adjudication process: pretrial detention