Immigration Law's Due Process Deficit and the Persistence of Plenary Power

Abstract

In recent years, the judicial branch has given less deference to Congress when constitutional rights and protections are in question, moving towards the potential constitutional mainstreaming of immigration law. However, the Jennings v. Rodriquez Court failed to seize this opportunity, at a pertinent time. The Court could have continued the move away from the plenary power doctrine and acted as a check on the political and executive branches by further bringing constitutional norms into immigration law. Particularly because of the history of systemic ethnic and racial bias in immigration law, the Jennings v. Rodriguez Court’s validation of the constitutional due process question would have had indirect ramifications beyond the immediate due process issue. Racialized noncitizens of color, particularly Mexican and Central American refugees, are incarcerated for attempting to migrate, increasingly, and with deterrent and punitive intent, since the initial drafting of this article. The first section of this article will set forth the doctrinal context concerning detention of asylum seekers arriving at a United States port of entry. The second section will explore the Court’s substantive due process jurisprudence pertaining to immigration detention, including discussion of the Jennings v. Rodriguez litigation. The third section will continue the examination of preventative civil immigration detention, with a focus on one district court case suggesting a limit on such detentions. The fourth section will broaden the discussion to non-immigration civil and criminal preventative detention to present due process limitations in those contexts to highlight the potential due process analysis if civil immigration detention due process questions were brought within the constitutional mainstream. The fifth section will transition to the historical mistreatment in immigration law, of Central American and Mexican immigrants to contextualize their modern-day extra-constitutional incarceration as asylum seekers. The fifth section will also touch on the role of the plenary power doctrine in continuing to enable implicit racial and ethnic bias in immigration law to better understand the role the doctrine continues to play in adversely racializing particular groups of immigrants. Finally, the last section proposes a combined methodology of disaggregation and application of rule of law principles to provide a path to move immigration law towards the constitutional mainstream.