A New Balance in Prolonged Mandatory Immigration Detention

By Mary Holper

Prolonged mandatory immigration detention has become the norm, not the exception. We have arrived at this moment because immigration detention is supposedly exceptional, subject to different constitutional norms than other civil detention. When the Supreme Court first examined a facial due process challenge to mandatory immigration detention in its 2003 decision in Demore v. Kim, immigration detention exceptionalism caused the Court to uphold mandatory detention. Absent from the Court's analysis was an entire body of due process jurisprudence, most of which developed in the 1970s, which questioned the government's purposes behind civil detention and required significant procedural protections in order for the government to deprive a person of liberty. In the wake of Demore, courts considering as-applied challenges to prolonged mandatory detention formulated multi-factor tests as a method of interpreting the statute to avoid unconstitutional detention. These tests provided an important counterweight to immigration detention exceptionalism and predictability for litigants, but most of the factors are irrelevant to a federal district court in deciding whether prolonged detention without a bond hearing violates a detainee's due process rights. Courts have been taking out the scales to engage in due process balancing, but putting the wrong weights on the scales.

Courts are beginning to discard these multi-factor tests and instead applying the Supreme Court's 1976 Mathews v. Eldridge procedural due process test to decide whether prolonged mandatory immigration detention is unconstitutional. The Mathews balancing test, which considers the private interests at stake, the risk of erroneous deprivation, and the government's interests, has been welcomed in immigration law because it encourages courts to first focus on an individual noncitizen's liberty interest. Mathews thus counteracts immigration detention exceptionalism, which focuses exclusively on the government's interest and finds that removable detainees have no liberty interest whatsoever. The Second Circuit Court of Appeals is the first circuit court to shift its test, transitioning to Mathews balancing in 2024 to decide whether mandatory detention was unreasonably prolonged. As a cautionary note, an attempt at transitioning the balancing test led the Eighth Circuit Court of Appeals, in 2024, to reject all forms of balancing, embrace immigration detention exceptionalism, and hold that any length of mandatory detention is acceptable during removal proceedings. This Article argues that courts can make prolonged mandatory immigration detention exceptional by continuing the work of the Second Circuit in applying the Mathews procedural due process balancing test instead of the existing multi-factor tests.

 Boston College Law School Legal Studies Research Paper No. 662