Freedom from Detention: The Constitutionality of Mandatory Detention for Criminal Aliens Seeking to Challenge Grounds for Removal

Authors

• Darlene C. Goring, Louisiana State University

Abstract

This article will examine the narrow question left unresolved by the Court’s decision in Demore regarding “whether mandatory detention under §1226(c) is consistent with due process when a detainee makes a colorable claim that he is not in fact deportable.” This article will examine the Seventh Circuit’s application of that language to provide heightened due process protections to aliens facing mandatory detention. It will also examine the application of section 1226(c) to aliens in removal proceedings and discuss the due process implications arising from mandatory detention of aliens in removal proceedings.

This article will argue that the current statutory and jurisprudential framework governing mandatory detention without bond for criminal aliens who do not concede removability violates the due process protections afforded by the Fifth Amendment. Finally, it will propose a modification to the current mandatory detention framework that will offer heightened protection of the fundamental liberty interests held by criminal aliens.

Recommended Citation

Darlene C. Goring, Freedom from Detention: The Constitutionality of Mandatory Detention for Criminal Aliens Seeking to Challenge Grounds for Removal, 69 Ark. L. Rev. 911 (2017).
https://doi.org/10.54119/alr.uymb1758
Available at: https://scholarworks.uark.edu/alr/vol69/iss4/2