Last week's announcement that six more countries—including genocidal Myanmar—will be added to the "travel ban" list of countries whose citizens are barred from immigrating to the United States is just the most recent effort by the Trump Administration to demonize immigrants and close our borders to those fleeing repression and violence. And with the presidential election campaign now officially underway following this week's Iowa caucus, we can expect ever more draconian attacks on immigrants as Trump gears up for the November election.

Starting with the original travel ban Trump put into place shortly after his January 2017 inauguration, his broad assault on immigration and refugees has spawned a wide array of legal challenges that have presented the courts with fundamental questions about the power of the President, the contours of the vast and complicated Congressional statutory scheme regulating immigration, the role of the judiciary in adjudicating disputes over immigration policy, and the constitutional rights of noncitizens either present in the United States or at the border seeking refuge here.

One of the most important issues now confronting the courts is the extent to which the government can detain immigrants for long periods of time, even indefinitely, without affording them an opportunity for release. Two years ago the Supreme Court refused to decide this issue, leaving it to the lower courts, and Trump's Justice Department since has aggressively argued that immigrant detainees have few if any due process rights to seek release from detention. With the number of detained immigrants having exploded to nearly half a million last year and with this core constitutional issue inevitably headed back to the Supreme Court (and perhaps presented by a case to be argued in March), now is a good time to examine the due process limits on immigration detention.

Constitutional Basics of Detention

Any discussion of the constitutional protections bearing on prolonged immigration detention must start with recognition of this country's long and conflicted immigration heritage. On the one hand, the United States of course is a country born of and sustained by immigration. On the other hand, immigrants have been the victims of extraordinary discrimination and repression, with the internment of Japanese-Americans during World War II being just one example.

Given this history, it's no surprise that the jurisprudence surrounding the constitutional rights of noncitizens is hotly contested. Nonetheless, debates about immigration detention take place against the backdrop of well-established law recognizing that involuntary government confinement implicates core constitutional concerns. The Supreme Court recognized this in its most recent case, Zadvydas v. Davis, 533 U.S. 678 (2001), in which it squarely confronted the issue of prolonged detention of noncitizens:

A statute permitting indefinite detention of an alien would raise a serious constitutional problem. The Fifth Amendment's Due Process Clause forbids the Government to "depriv[e]" any "person … of … liberty … without due process of law." Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects. And this Court has said that government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and "narrow" nonpunitive "circumstances," where a special justification, such as harm-threatening mental illness, outweighs the "individual's constitutionally protected interest in avoiding physical restraint."

In light of these core protections, criminal arrestees are entitled to prompt bail hearings—typically within 48 hours of arrest—and citizens subject to civil detention (for instance, those committed for mental-health reasons) are entitled to prompt and recurring judicial determinations about the propriety of their confinement. In sharp contrast to this regime, however, the Trump Administration contends the Due Process Clause provides little or no opportunity for noncitizens in immigration custody to seek release from prolonged or even indefinite confinement. That position implicates Supreme Court cases dating back to the 1950s.

Immigration Detention and Due Process

Due process disputes about the detention of noncitizens arise in a wide range of circumstances, from those involving persons who never have been inside the United States (for instance, Haitian refugees held at Guantanamo Bay in the early 1990s) to those involving legal permanent residents who have lived in the country for decades and have been ordered deported but have no country that will accept them. The issue of prolonged immigration detention was before the Supreme Court two years ago in Jennings v. Rodriguez, 138 S.Ct. 830 (2018), a case that challenged mandatory detention of various categories of noncitizens until completion of their deportation proceedings. Finding the relevant statute ambiguous about whether detention was mandatory, the Ninth Circuit had held, in light of the due process implications of prolonged detention, that the statute should be interpreted to require bond hearings after six months of detention. The Supreme Court, however, ruled the statute unambiguously mandated detention. But it declined to decide whether such detention nonetheless violated the Due Process Clause and instead remanded that issue to the lower courts.

As this dodge suggests, the contours of the due process limits on the duration of immigration detention remain unresolved. The most extreme government position is that certain categories of immigrants have no due process protections at all, even though they are physically inside the United States. In taking that position, the government typically relies on Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953).

At issue in Mezei was the ongoing detention of a man who "seemingly was born in Gibraltar of Hungarian or Rumanian parents," who had lived in the United States from 1923 until 1948 without becoming an American citizen, and then had left the country for 19 months "behind the Iron Curtain" to visit his dying mother. Upon return he was barred from re-entering the country as a national-security risk but, after efforts to deport him to another country failed, he was confined at Ellis Island. Once Mezei's detention reached 21 months, the district court granted his habeas corpus petition, finding due process required a hearing to determine whether he should be released on bond (akin to bail in the criminal context).

The Supreme Court reversed. As an initial matter, the court discussed the legal distinction between those at the border and those inside the country:

It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. But an alien on the threshold of initial entry stands on a different footing: Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.

As for the undisputed fact Mezei was being held inside the United States, the court held that did not alter the analysis:

Aliens seeking entry from contiguous lands obviously can be turned back at the border without more. By statute [Congress] authorized, in cases such as this, aliens' temporary removal from ship to shore. But such temporary harborage, an act of legislative grace, bestows no additional rights. [T]his Court has long considered such temporary arrangements as not affecting an alien's status; he is treated as if stopped at the border.

Though Mezei dealt with extremely narrow circumstances, what is commonly known as the "entry fiction" in immigration law still looms large. For instance, the government relies on it to argue that asylum-seekers who voluntarily present themselves at the border and are allowed into the country following a government interview at which they demonstrate a basis for asylum eligibility nonetheless have no due process protections against prolonged detention. And in a case now before the Supreme Court, the government contends the fiction also applies to persons who cross the border unlawfully and are shortly thereafter apprehended.

Since Mezei, the Supreme Court has decided two major cases involving mandatory immigration detention. The first was Zadvydas v. Davis, which involved noncitizens who had been in this country for long periods of time, had been ordered deported following full immigration proceedings, and faced indefinite detention because the United States had been unable to deport them. As a threshold matter, the government invoked Mezei to argue "alien status itself can justify indefinite detention." The court squarely rejected that: "[O]nce an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."

Turning to the due process protections and after identifying the core constitutional protections that apply to government criminal and civil detention (as discussed above in this column), the court concluded that the indefinite detention of immigrants with final deportation orders but no reasonable prospect of actual removal to another country would raise "a serious constitutional threat." Viewing the detention statute as ambiguous about whether detention was actually mandatory and given its long-standing approach of interpreting ambiguous statutes to avoid constitutional problems, the court held the statute should be interpreted to require release of a deportee after six months of detention following a final deportation order unless the government could demonstrate it was reasonably foreseeable the person could be deported.

The Supreme Court's most recent decision squarely addressing mandatory immigration detention is Demore v. Kim, 538 U.S. 510 (2003). At issue there was statutorily-mandated detention during the pendency of immigration proceedings of noncitizens who had certain criminal histories. Invoking Zadvydas, Demore argued that any mandatory immigration detention triggered the due process right to a hearing to assess whether the person could be released from custody during the immigration case. Though Demore's challenge was not based on the duration of his detention but instead on the mere fact of it, the Supreme Court rejected his reliance on Zadvdas for two reasons related to duration. First, it noted that the detention in Zadvydas did not have any necessary end point while the detention in Demore was bounded by the completion of the underlying immigration case. Second, the court relied on government statistics to establish that the duration of detention for this group of detainees was relatively short: "In sum, the detention at stake … lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal." Given this and given a legislative history indicating that noncitizens with criminal histories were more likely not to appear for immigration cases if released, the court upheld what it characterized as this "brief" mandatory detention.

The notion of brief immigration detention underlying Demore was eviscerated 13 years later when, shortly after the Supreme Court agreed to decide Jennings (the recent case where the court declined to address the due process implications of prolonged immigration detention), the government disclosed in a letter to the court that the statistics it had presented in Demore were deeply flawed. Most strikingly, in contrast to the "about five months" the court understood to be the duration of detention in cases where the noncitizen had appealed, the government disclosed that such detention in fact lasted an average of over a year (382 days).

Looking Forward

The Trump Administration's crusade against immigration and immigrants and the ballooning population of incarcerated noncitizens have created an urgent need to confront the constitutional implications of prolonged and indefinite immigration detention. While the Supreme Court in Zadvydas squarely and rightly rejected the government argument that "alien status itself can justify indefinite detention," still to be resolved is the essential issue of the extent to which due process limits how long noncitizens can be held without an opportunity to seek release. It would be a grievous departure from our constitutional history for the courts to conclude that immigrants, including those who have come here seeking refuge, are invisible to the Constitution and can be detained indefinitely.

Christopher Dunn is the legal director of the New York Civil Liberties Union. He can be reached at [email protected].