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Kiyemba, Guantanamo, and Immigration Law: An Extraterritorial Constitution in a Plenary Power World

54 Pages Posted: 20 Apr 2012 Last revised: 18 May 2012

Ernesto Hernandez Lopez

Chapman University, The Dale E. Fowler School of Law

Date Written: March 14, 2011

Abstract

Immigration law is central to justifications for why five men remain detained indefinitely at Guantanamo, despite having writs of habeas approved in 2008. Since then, the Court of Appeals in Kiyemba v. Obama I, II, and III has used plenary powers reasoning to justify detentions under immigration law. The detainees are all non-combatants and Uighurs, Turkic Muslims from China. The Supreme Court may review these cases. Kiyemba I and III concern their judicial release into the U.S., while Kiyemba II regards barring their transfer because they may be tortured overseas. These cases raise significant constitutional habeas issues, but they also justify detentions with plenary powers. This reasoning defers immigration issues to the political branches and denies rights because of a detainee’s alien status or presence overseas. This Essay argues that immigration law, i.e. plenary powers, provides a “fall back” legal justification for Guantánamo detentions. This is especially important after the Supreme Court’s finding in Boumediene v. Bush that aliens on the base enjoy constitutional habeas rights. A critical non-legal context produces the Kiyemba detention quagmire. A transnational analysis of this context points to the normative influence of assumptions on diplomacy, culture, geopolitics, individual rights, and the War on Terror.

Keywords: Kiyemba, Habeas, Guantanamo, Immigration, War on Terror, Executive Detention, Uighur

Suggested Citation

Hernandez Lopez, Ernesto, Kiyemba, Guantanamo, and Immigration Law: An Extraterritorial Constitution in a Plenary Power World (March 14, 2011). 2 UC Irvine Law Rev 194-245 (2012). Available at SSRN: https://ssrn.com/abstract=1785532

Ernesto Hernandez Lopez (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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