26 Pages Posted: 21 Feb 2005
This article examines the legal underpinnings of the executive branch's claimed authority to detain without bond in immigration proceedings. Detention without bond was a centerpiece of the controversial detention of Arab and Muslim noncitizens in the aftermath of September 11. For all of the criticism surrounding post-9/11 detention, however, the statutory framework underlying this effort has received surprisingly little examination.
Many observers assume that the PATRIOT Act governs the detention of noncitizens who are suspected of having terrorist ties and are placed in removal proceedings. After all, the PATRIOT Act was passed in the midst of growing concern about the post-9/11 detention sweeps, and it specifically provides for mandatory detention without bond of noncitizens who are suspected terrorists. Yet this provision was not used in the post-9/11 detention effort. Instead, the INS relied on the detention authority in the existing immigration statute, which gives far more leeway to the executive branch. And to the extent that leeway was not available - to the extent that legal authority was not in place to justify post-9/11 detention policies - the executive branch has since been busy creating it behind the scenes.
This article delineates the statutes, regulations, and ad hoc executive branch policies surrounding post-9/11 detention - details that are usually subsumed by an analysis of important constitutional issues. These details provide fresh insight into what went wrong with INS detention in the aftermath of September 11. An analysis of these subconstitutional issues also reveals that, rather than addressing some of the very real injustices of the post-9/11 detention sweep, the executive branch is instead staking claim to even broader authority to detain noncitizens based on categorical determinations of dangerousness - without individual justification, administrative hearings, or constitutional review.
Keywords: Immigration Law, Administrative Law, Terrorism
JEL Classification: K42
Suggested Citation: Suggested Citation
Taylor, Margaret H., Dangerous by Decree: Detention Without Bond in Immigration Proceedings. Loyola Law Review, New Orleans, Vol. 50, p. 149, 2004. Available at SSRN: https://ssrn.com/abstract=670405