Is Mandatory Detention of Unlawful Entrants Seeking Asylum Constitutional? [Updated January 27, 2021] [open pdf - 696KB]
From the Document: "Non-U.S. nationals (aliens) apprehended by immigration authorities when attempting to unlawfully enter the United States are generally subject to a streamlined, expedited removal process, but may be placed in 'formal' removal proceedings and pursue asylum claims if found to have a credible fear of persecution. In 2019, Attorney General (AG) William Barr, who had power to review adjudicatory decisions of the Board of Immigration Appeals (BIA), the highest administrative body responsible for interpreting immigration laws, concluded in 'Matter of M-S-' that federal law requires the continued detention of aliens screened for expedited removal who are transferred to formal removal proceedings pending adjudication of their asylum claims. (Additional discussion of the AG's decision can be found here.) Later that year, a federal district court held in 'Padilla v. ICE [U.S. Immigration and Customs Enforcement]' that this mandatory detention scheme 'violates the U.S. Constitution' because it denies aliens who have entered the United States the opportunity to seek their release on bond. This ruling was largely affirmed by the U.S. Court of Appeals for the Ninth Circuit in March 2020, but the reasoning of these decisions--at least when applied to aliens apprehended shortly after arriving in the United States--may be in tension with the Supreme Court's ruling in 'DHS v. Thuraissigiam', decided a few months later. In 'Thuraissigiam', the Court recognized that aliens seeking initial entry to the United States, including those apprehended just within the border, have limited constitutional protections. Ultimately, in the 'Padilla' case, the Supreme Court vacated the Ninth Circuit's decision and remanded the case for further consideration in light of 'Thuraissigiam'. As a result, immigration authorities may, for the time being, detain unlawful entrants transferred to formal removal proceedings for consideration of their asylum applications without a bond hearing."
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