Patriotic or Unconstitutional? the Mandatory Detention of Aliens under the USA Patriot Act

By Sinnar, Shirin | Stanford Law Review, April 2003 | Go to article overview

Patriotic or Unconstitutional? the Mandatory Detention of Aliens under the USA Patriot Act


Sinnar, Shirin, Stanford Law Review


INTRODUCTION
I. STATUTORY ANALYSIS: THE USA PATRIOT ACT IMMIGRATION
PROVISIONS
  A. Section 412: Mandatory Detention of "Certified" Aliens
  B. The Effect of Section 412
II. THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT
III. PROCEDURAL DUE PROCESS
  A. Is There a Protected Liberty Interest?
  B. What Process Is Due?
    1. The procedures of USA Patriot Act section 412
    2. Supreme Court precedent
    3. Applying the Mathews test
IV. SUBSTANTIVE DUE PROCESS
  A. Level of Scrutiny
  B. Mandatory Detention of Criminal Aliens
  C. A "Special Justification "for Detention?
    1. The case of terrorism
    2. The excessiveness of section 412
CONCLUSION

INTRODUCTION

The USA Patriot Act, enacted seven weeks after the September 11 attacks, granted the federal government sweeping new powers to expand surveillance, curtail financing, and deport aliens in connection with terrorist activity. (1) The first major piece of legislation to respond to apparent weaknesses in U.S. national security, the statute expanded the range of aliens who could be excluded or deported from the United States on terrorism-related grounds, while reducing the procedural protections available to them. Under the new law, immigrants "certified" as threats to national security must be held in government custody without bond pending deportation proceedings and removal from the country. Detention could become indefinite for those aliens found to be deportable but whom other countries decline to accept.

As the USA Patriot Act went into effect, several hundred immigrants remained in government detention under a separate emergency order (2) allowing them to be held without charge for an extended period. The lengthy detention of so many aliens, few of whom were suspected of involvement in the terrorist attacks, generated concern that efforts to protect national security in the wake of September 11 had infringed on the constitutional rights of noncitizens. (3) In 2002, civil liberties organizations mounted several legal challenges on behalf of individuals detained after September 11, including a class action lawsuit asking a federal district court to declare the detention of a group of Muslim men unconstitutional. (4)

Numerous legal scholars have addressed the tension between national security and civil liberties posed by new government policies since September 11. In immigration scholarship, law review articles have addressed the mass detention of noncitizens, (5) the use of racial profiling in immigration enforcement, (6) and expanded secrecy in immigration proceedings. (7) Yet no article published to date has closely analyzed the mandatory detention provisions of the USA Patriot Act or subjected them to detailed constitutional scrutiny.

This Note argues that the USA Patriot Act's provisions for certification and mandatory detention contravene the Fifth Amendment's guarantee of due process of law. By denying noncitizens the opportunity for meaningful review of the certification decision, and by authorizing the detention of aliens on substantively inadequate grounds, the USA Patriot Act raises serious constitutional concerns under both the procedural and substantive prongs of the Due Process Clause. Part I of this Note describes the changes to immigration law presented by sections 411 and 412 of the USA Patriot Act, focusing on the establishment of a new "certification" process that triggers mandatory detention for noncitizens. Part II explains that the Due Process Clause of the Fifth Amendment, applicable to citizens and aliens alike, provides a constitutional basis for challenging section 412. Part III presents the procedural due process claim. The Note argues that mandatory detention of certified aliens implicates a protected liberty interest under the Due Process Clause, and that the procedures of section 412 most likely do not pass constitutional muster. Moving to the substantive due process claim, Part IV argues that section 412 wrongfully authorizes the detention of aliens who pose neither a danger to the community nor a risk of flight. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Patriotic or Unconstitutional? the Mandatory Detention of Aliens under the USA Patriot Act
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.