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Hastings Law Journal

Abstract

Since 1996, the Immigration and Nationality Act has required the government to take into custody individuals in removal proceedings who have past convictions for any of a wide range of criminal offenses. This provision has led to more than a five-fold increase in the number of people detained each day, with harsh consequences for these individuals, their families, and communities across the country.Such a sweeping, categorical detention is not easily reconciled with the Supreme Court’s 2001 decision in Zadvydas v. Davis, which extended to immigration detention the due process limits that the Court has recognized on other forms of civil detention. In Demore v. Kim, decided just two years later, the Court rejected an as-applied due process challenge to the mandatory immigration detention statute. Throughout the past decade, lower courts have sought to reconcile Demore with Zadvydas. As of this writing, three circuit courts have avoided a constitutional problem with the mandatory detention statute by construing its ambiguous language to impose temporal limits on mandatory detention. However, they have not reached consensus on how to define these limits. One circuit has adopted a bright-line rule that detention beyond six months requires a bond hearing, while two others have adopted a reasonableness standard for determining when a hearing is required.This Article argues that the mandatory detention statute should be construed to govern detention for no longer than six months, after which time a bond hearing should be required. It reaches this conclusion by analyzing Supreme Court due process doctrine, surveying decisions that have implemented the rule and standard discussed above, and considering key institutional features of the administrative removal system, including the dearth of legal representation for people in detention.

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