Abstract

This Article examines for the first time in scholarly literature whether and to what extent extraterritorial constitutional jurisprudence applies to immigration law. In particular, it explores whether non-detained immigrants and refugees outside the territorial boundaries of the United States can claim constitutional protection to challenge immigration policies and orders. The Supreme Court’s recent willingness to reconsider the limits of the political branches’ “plenary power” over immigration law and policy, coupled with the Court’s recent extension of the Constitution to certain classes of extraterritorial non-citizens, suggests that a future role may exist for extraterritorial jurisprudence to inform constitutional immigration law. Using the Trump Administration’s inchoate doctrine of “extreme vetting” as a case study, this Article explores how and in what circumstances the Court might make available avenues for constitutional challenge to immigrants residing abroad. It concludes by proposing a unified theory for extraterritorial constitutional immigration jurisprudence.

KJ