Toward a Constitutionalized Theory of Immigration Detention

47 Pages Posted: 15 Apr 2013 Last revised: 17 Apr 2013

See all articles by Travis Silva

Travis Silva

Yale University - Law School

Date Written: December 31, 2012


The statutory framework governing the nation’s vast immigration detention system is based on a set of constitutional assumptions that have led the federal courts to restrict the level of judicial review available to immigration detainees. This student Note analyzes relevant Founding-era legal practices to show that the Constitution’s dual guarantees of due process and habeas review should apply to modern-day immigration detention, and that consequently immigration detainees should have more access to the courts than current doctrine permits. Read alongside this history, contemporary national practices surrounding judicial review of non-criminal detention suggest a robust set of procedural safeguards that should be applied in the immigration detention context.

Keywords: immigration, detention, due process, mandatory, Demore, Zadvydas

Suggested Citation

Silva, Travis, Toward a Constitutionalized Theory of Immigration Detention (December 31, 2012). Yale Law & Policy Review, Vol. 31, p. 227, 2012. Available at SSRN:

Travis Silva (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics