Promptly Proving the Need to Detain for Post-Entry Social Control Deportation

Abstract

When a person suspected of a crime is arrested without a warrant, the Fourth Amendment guarantees that freedom may not be taken away except upon a neutral magistrate judge’s prompt confirmation that probable cause exists that this person in fact committed the crime. In contrast, in the deportation process, a person is often detained for weeks before a judge determines that the noncitizen is actually deportable, thus justifying detention. Even the separate procedures available to review custody do not suffice because the mandatory detention statute renders many detainees ineligible for review by a judge. If they are entitled to a bond hearing, the presumption is detention, and the detainee must bear the burden of proving he is not a danger or a flight risk. In this Article, I make a modest proposal: for post-entry social control acts of deportation, immigration detainees must be brought promptly before a neutral judge to determine whether probable cause exists to hold them. I limit the reach of this proposal to the post-entry social control acts of deportation (as opposed to extended border control cases) because those are the deportation cases that most resemble punishment for a crime. Also, for strategic reasons, those who have been admitted to the United States are better served by a quick probable cause hearing before an immigration judge, whereas entrants without inspection could benefit from more time to consult with a lawyer before any such hearing. I also foresee that this proposal will lead the government to more carefully justify its decision to detain lawful permanent residents (LPRs), and thus LPRs, who have the strongest claims to procedural protections, will benefit the most from this additional procedure.