Extending Due Process Protections to Unadmitted Aliens within the U.S. Through the Functional Approach of Boumediene

Abstract

Although noncitizens seeking entry possess some statutory protection under the Immigration and Nationality Act (INA), they have generally been unable to challenge the validity of the INA. Further, such unadmitted noncitizens have few avenues for redress if their rights are violated under the INA. Without a means to check legislative mandates or executive enforcement, these noncitizens are subject to the mercy of Congress and the President, with minimal oversight by the judiciary. Even if physically present within the U.S., such unadmitted noncitizens are deemed to be outside of the nation’s border as a matter of law. Because the scope of the protections of the Constitution’s due process clause has been traditionally limited to those within the border, these unadmitted noncitizens have been treated as though beyond its reach. During the last several decades, however, the landscape of constitutional rights of unadmitted noncitizens has begun to shift in a piecemeal fashion. Some courts have made limited extensions of constitutional protection to such inadmissible noncitizens. Yet, until recently, there had been no consistent framework from which one could reconcile the cases extending constitutional protection to arriving noncitizens seeking entry and the nonextraterritorial rule of constitutional application. In the Supreme Court’s decision in Boumediene v. Bush, Justice Kennedy articulated a functional approach to extraterritorial constitutional application. It conclusively dispelled the bright-line rule that the protections contained within the Constitution never extend beyond the border of the United States. This functional approach cohesively explains the landmark cases that extend due process protections to certain unadmitted noncitizens and provides a rule by which noncitizens may argue their entitlement to other constitutional protections. In this article, I apply the functional approach and argue for extending to arriving noncitizens within the U.S. several Fifth Amendment due process clause protections.