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Legally Elsewhere: The Unpredictable Due Process Protections Accorded to Arriving Immigrants at America’s Border

At any moment, tens of thousands of arriving immigrants are imprisoned within the United States without constitutional due process protection. Though held in immigration detention centers deep in the United States interior, these individuals—who arrive at America’s border seeking asylum from violence and persecution in their homelands—are viewed as legally outside of the United States for the purposes of due process protection because of a legal doctrine described by scholars as the “entry fiction.”

Lilian Uriba is one such arriving immigrant. In March of 2017, she came to Texas fleeing cartels in El Salvador that had murdered her father, raped her, forced her to transport narcotics, and threatened to kill her six siblings. At the US border, she applied for asylum and passed its first stage: credible fear screening. However, Immigration and Customs Enforcement (ICE) denied Uriba parole—without a hearing—and detained her in a 512-bed immigrant detention facility in rural Texas. As an arriving immigrant at America’s border, she has no right to appeal ICE’s parole refusal; she will be detained for however long her immigration proceedings last.

The Fifth Amendment requires procedural due process protection before any person can be deprived of liberty. When an individual is arrested for a crime, they are given a bail hearing to determine the necessity of confinement. Even immigrants living in America who have lost the right to stay (and are subsequently deported) receive a bail hearing before they are confined. However, because of the entry fiction, the tens of thousands of arriving immigrants stopped at the border are regularly detained in over 200 detention centers throughout the US without a hearing.

This systematic deprivation of physical liberty did not happen overnight. It can be traced to a series of 19th-century cases in which the Supreme Court first defined the contours of federal immigration authority. In 1889, a Chinese immigrant named Chae Chan Ping was excluded from the United States under the Chinese Exclusion Act, a law intended to halt an influx of Chinese immigrants on the West Coast. In Chae Chan Ping v. United States, the Supreme Court ruled that federal immigration policy was “conclusive upon the Judiciary,” meaning the Court was powerless to question how the political branches treated immigrants at its border. Similarly, in Wong Wing v. United States, the Supreme Court found that federal immigration power included the authority to detain immigrants in the United States if doing so was necessary to ensure the immigrant would ultimately be removed from the country.

As immigration to the United States increased dramatically at the turn of the 20th century, the government realized it had become impossible to keep all arriving immigrants aboard ships or otherwise outside the country while it determined their admissibility. As a result, Congress authorized their temporary removal from ship to shore. The vast majority of arriving immigrants were transferred to Christian mission homes that would generously feed, clothe, and care for them. However, the national legislature meticulously specified that such shelter ashore would not be considered an entry. To the government, the reason for this fiction of entry was obvious: to consider someone excluded from the United States as within the United States would nullify the very purpose of the exclusion proceedings.

The entry fiction has proved to be crucial when determining whether arriving immigrants possess due process rights under the Fifth Amendment. For years, the Supreme Court has held that only persons in America’s borders receive the full panoply of constitutional rights. In agreement with Congress, the Supreme Court has stressed that temporary shelter in the United States, an act of legislative grace, grants no additional rights to arriving immigrants. In the 1950 case Knauff v. Shaughnessy, the Court found, “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” The Supreme Court ruled that because Congress determined arriving immigrants are legally outside the United States, they are also outside the scope of constitutional protection.

Seventy years later, the United States now operates the largest immigration detention system in the world. It spends billions of dollars to confine nearly half a million immigrants, many of whom are family units fleeing to America in search of a better life. While only 3 percent of arriving immigrants have been criminally convicted in the United States, nearly all these individuals are housed in prisons or prison-like facilities that are a far cry from the Christian mission homes that existed at the time of the entry fiction’s inception.

However, while the current US immigration system is immeasurably different from the US immigration system of the 19th century, the legal regime based on the entry fiction has remained the same. In Jennings v. Rodriguez, the Supreme Court ruled that contemporary immigration law could not be interrupted to grant a bail hearing to immigrants after six months. In two other cases, Zadvydas v. Davis and Clark v. Martinez, the Court found that prolonged detention raised “a serious constitutional problem,” but it declined to find a constitutional right for procedural due process protections for arriving immigrants detained in the US.

Under current law, whether arriving immigrants receive a hearing before detention is entirely up to immigration officials in the executive branch. This frequently produces unpredictable and troubling results. In 2018, for example, an immigrant mother was denied parole and separated from her 5-year-old daughter for five months. Two years before that, an El Salvadorian man seeking asylum from violence and persecution was detained without a hearing. He found the conditions of confinement in immigration facilities so bad he decided to return home.

There is a better way. Arriving immigrants physically detained in the United States should receive a bail hearing to determine the necessity of their confinement. Such a hearing would resemble the one granted to immigrants already living in the United States. Before an immigration judge, arriving immigrants would be required to prove that they are not a national security threat, public danger, or flight risk. If the immigrants fail to prove that detention is not necessary to ensure their removal, they may still be detained. This hearing would not require the political branches to relinquish any authority over the immigration policy. Rather, it would trade fiction for reality and ensure that all persons within the geographic borders of our country are protected by the full force of our nation’s laws.