In Aid of Removal: Due Process Limits on Immigration Detention

In this Article, I seek to demonstrate the radical consequences that taking due process seriously would have for immigration detention as currently practiced. Part I lays out the general principles that apply to civil preventive detention, which establish that substantive due process is violated without an individualized showing after a fair adversarial hearing that there is something to prevent, namely danger to the community or flight. Part II applies this general framework to immigration detention. It first demonstrates, by a review of Supreme Court decisions, that the Court has applied the same due process principles to immigration detention that it has to other forms of civil detention; in other words, this is not a subject on which immigration exceptionalism, or the plenary power doctrine, has played much of a role. Second, I apply these general principles to several immigration law developments since 1996, illustrating that significant aspects of the INS\u27s current detention policy and practice violate due process. Finally, I take up the issue of detention of entering aliens, and argue that cases holding that due process does not limit entering aliens\u27 detention are predicated on an erroneous conflation of the decision to exclude and the decision to detain