Immigration Article of the Day: Immigration Law’s Due Process Deficit and the Persistence of Plenary Power by Carrie Rosenbaum

Immigration Law’s Due Process Deficit and the Persistence of Plenary Power by Carrie Rosenbaum, 28 Berkeley La Raza Law Journal (2018)

The first section of this article will set forth doctrinal principles concerning detention of asylum seekers arriving at a U.S. port of entry. The second section will explore the Court’s substantive due process jurisprudence pertaining to immigration detention, including discussion of the Jennings litigation. The third section will continue the examination of preventive civil immigration detention, with a focus on one district court’s articulation of a potential limit on such detentions. The fourth section will broaden the discussion to non-immigration civil and criminal preventive 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. 

KJ