Alegal battle over Trump II’s application of a 1996 mandatory detention requirement for all aliens who entered illegally — even those who have resided here for years — entered a new stage on Friday, when a divided Fifth Circuit panel concluded that under section 235(b) of the Immigration and Nationality Act (INA), DHS can hold such aliens pending removal proceedings without releasing them on bond. Ignore the countless district court habeas corpus decisions saying the opposite: This question is headed to the one tribunal that matters — the Supreme Court.
The “Entry Doctrine”, Section 235(b) of the INA, and IIRIRA
As I have explained in the past, prior to 1996 aliens facing civil immigration action were sorted into two groups, those stopped immediately at the ports of entry and in the process of crossing the border illegally and everybody else, under a judicially crafted principle called the “entry doctrine”.
The former group were subject to “exclusion” proceedings, at which they were accorded only those due process rights Congress provided them, while the latter aliens went into “deportation” proceedings and received a full panoply of constitutional rights.
At the borders and ports, the difference between which aliens went into which proceedings was largely dependent upon whether the alien had entered “free from official constraint”, i.e., without being immediately nabbed or having a government official watching the illicit entry, or not.
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