The Mandatory Detention of Unlawful Entrants Seeking Asylum in the United States and the Due Process Protection

• Publication year: 2023

The Mandatory Detention of Unlawful Entrants Seeking Asylum in the United States and the Due Process Protection

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Jim Nzonguma Mayua ^*

Abstract: The current immigration detention policy authorizes the detention of asylum seekers, even after establishing a credible fear of persecution during a screening mechanism in expedited removal proceedings. For instance, in Jennings v. Rodriguez, the Supreme Court ruled that unlawful entrants seeking asylum are not entitled to the protection of the due process clause. The Supreme Court ruled that an individual seeking initial admission to the United States requests a privilege and has no constitutional rights regarding their application. However, in its previous rulings, the Supreme Court ruled that asylum seekers are entitled to the due process clause. For instance, in Zadvydas v. Davis, the Supreme Court ruled that a statute permitting indefinite detention of a noncitizen would raise a serious constitutional problem under the due process clause. In Clark v. Martinez, the Supreme Court ruled that the Zadvydas decision must be applied liberally to both documented and undocumented persons. The Supreme Court's recent rulings denying asylum seekers the right to invoke due process protection create legal uncertainty, and to establish that the Court's traditional approach is preferable because it complies with the plain language of the Bill of Rights. None of the current methods for challenging the detention of asylum seekers in the United States will be successful unless the issue of whether asylum seekers are entitled to the due process clause is settled.

Introduction

The due process clause requires the government to follow procedures before it deprives an individual of life, liberty, or property. ¹ As the Bill of Rights uses neutral terms, due process is guaranteed by the U.S. Constitution to all individuals regardless of whether they are in the United States with or without authorization. However, when asylum seekers cross U.S. borders illegally to seek refuge, the detention statute authorizes the Department of Homeland Security (DHS) to place them in custody. ² In addition, this statute states that these detained asylum seekers "shall" remain in immigration custody pending their credible fear interviews and final adjudication of their claims before the immigration judge. ³

The enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) ⁴ brought a significant change to the rights of

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asylum seekers. ⁵ The IIRIRA imposed "mandatory detention" on certain broad categories of persons, including "arriving" asylum seekers, who became subject to "expedited removal" processing. The IIRIRA has imposed significant barriers to the rights of asylum seekers. The hurdles include a filing deadline on asylum applications, which as a general rule prevents genuine refugees from receiving asylum if they cannot prove they have filed the application within one year of arriving in the United States. ⁶ The IIRIRA also established summary deportation procedures, including "expedited removal" and "reinstatement of removal," which block asylum seekers from even applying for asylum or accessing an immigration court removal hearing unless they first pass through a screening process. ⁷

More recently, the Trump administration signed a series of "travel bans" targeting Muslim countries. ⁸ During the 2016 presidential campaign, Donald Trump promised his supporters he would suspend immigration from "terror-prone regions." ⁹ He claimed that "terrorists are using the U.S refugee resettlement program to enter the country." ¹⁰ In addition, the Trump administration established a "zero tolerance" policy that authorized the Justice Department to prosecute every adult who had illegally crossed the border. ¹¹ As a result, thousands of children were separated from their families, as children could not be detained with their parents. ¹² For instance, the first full fiscal year of the Trump administration saw large increases in the number of people arrested and criminally prosecuted for immigration offenses. ¹³ Particularly, the federal government forcibly prosecuted migrants either for entering the United States without permission or for reentering the country without permission after a prior deportation or removal order. ¹⁴ These prosecutions are possible because of U.S. laws that criminalize "illegal entry" ¹⁵ and "illegal re-entry;" ¹⁶ which are collectively referred to as "entry-related offenses." Tens of thousands of migrants and asylum seekers are prosecuted for these offenses every year. ¹⁷

Furthermore, the Supreme Court ruled that people seeking admission to the United States, including those seeking asylum, cannot invoke the due process clause. For instance, in Jennings v. Rodriguez, the Supreme Court ruled that unlawful entrants seeking asylum are not entitled to the protections of the due process clause. ¹⁸ The Supreme Court reiterated its decision in DHS v. Thuraissigiam, where it quoted its earlier statement that "an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application." ¹⁹ The Court explained that "as to foreigners who have never been naturalized . . . nor even been admitted into the country pursuant to law . . . the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law." ²⁰ As a result, the U.S. courts have determined that asylum seekers are not covered by domestic constitutional protections.

However, in Zadvydas v. Davis, the Supreme Court ruled that "a statute permitting indefinite detention of an alien would raise a serious constitutional problem" under the due process clause. ²¹ The Court's holding in Zadvydas dealt with a lawful permanent resident (LPR), so there was a controversy over

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whether to apply this holding to non-LPRs, such as asylum seekers. In Clark v. Martinez, the Supreme Court resolved the issues, ruling that the Zadvydas decision must be applied liberally to both documented and undocumented persons. ²²

Why should asylum seekers have the right to be released from detention during their proceedings? Research has demonstrated that detention tends to discourage bona fide asylum seekers from asserting and proving claims. ²³ Detention negatively affects the mental health of asylum seekers, and their poor psychological health deteriorates further the longer they remain in detention. ²⁴ Detention likewise subverts the capacity of refugees to get asylum by making it more challenging for them to get legal representation and restricting their capacity to assemble information to support their shelter claims. ²⁵ Detention impedes asylum seekers from effectively and fairly presenting their requests for protection. ²⁶ Detention may narrow asylum seekers' rights to access to justice. For instance, detention limits asylum seekers' access to legal representation and translation assistance to complete often complex and technical asylum applications in English. ²⁷ Further, detention prevents asylum seekers from meeting their court deadlines. Immigration court judges have routinely given detained asylum seekers—particularly those without attorneys—accelerated deadlines that they cannot meet, resulting in removal orders. ²⁸

This article argues that if asylum seekers are detained, they have a right to seek release. Unfortunately, the current rule in the United States has denied asylum seekers domestic protections under due process. This article claims that none of the current methods to challenge the detention of asylum seekers in the United States will be successful unless the issue of whether asylum seekers are entitled to the due process clause is settled. The next section briefly lays out existing legal frameworks impacting asylum seekers' rights in the United States, specifically focusing on the effects of IIRIRA and the current Supreme Court rulings with respect to asylum seekers. The third section examines the impact of credible fear interviews on unlawful entrants seeking asylum. Then the fourth section deals with the protection of due process for asylum seekers. It analyzes both the constitution as well as previous Supreme Court cases related to foreign nationals' right to invoke due process. The fifth section concludes that the denial of asylum seekers' right to invoke due process constitutes a serious legal barrier. The U.S. Constitution does not discriminate against unlawful entrants seeking asylum, so courts should not deny them domestic protection.

Overview of the Detention Statute

Statutes

The introduction of this section notes that 8 U.S.C. § 1225 (section 235 of the Immigration and Nationality Act (INA)) authorizes DHS officials to

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detain non-U.S. citizens who are subject to removal from the United States. This detention program has different dimensions, with rules that turn on several factors, such as whether the noncitizen is seeking admission (8 U.S.C. § 1225), ²⁹ whether the noncitizen has engaged in certain criminal conduct (8 U.S.C. § 1226), ³⁰ and whether the noncitizen has been issued a final order of removal (8 U.S.C. § 1231). ³¹

Applicants for Admission Subject to Expedited Removal

The provisions of 8 U.S.C. § 1225 deal with the mandatory detention of persons who are seeking initial entry into the United States or who have entered the United States without inspection, and who are believed to be subject to removal. Under 8 U.S.C. § 1225 an "applicant for admission" is defined to include both a foreign national arriving at a designated port of entry and a foreign national present in the United States who has not been admitted. ³² The applicant is generally detained pending a determination on whether they should be admitted into the United States. ³³ The statute covers foreign nationals arriving at U.S. borders, as well as foreign nationals who...