Arriving Aliens, Custody, and Interagency Determinations Post Jennings

Abstract

Currently, federal statutes and regulations give the Department of Homeland Security vast authority to detain noncitizens in a variety of categories. Immigration authorities have applied that detention authority to persons with a credible claim to U.S. citizenship, a practice that poses grave tensions to the U.S. rule of law because U.S. citizens are guaranteed constitutional and statutory protection from deportation, removal, and immigration detention. This essay argues briefly that the statutory mandatory detention provisions for arriving aliens do not apply to persons with a credible claim to U.S. citizenship. Further, this essay argues that regulations prohibiting or eliminating administrative judicial review of Department of Homeland Security detention decisions of arriving aliens who have a credible claim to U.S. citizenship are inconsistent with the reorganization of immigration functions in 2003 and must be revised to allow for administrative review of the decision whether to detain during the administrative process.