The United States immigration detention regime that was reborn in the 1980s is not only unprecedented in scale, but also in rationale. Whereas immigration detention had historically been justified primarily as a means of ensuring immigration compliance, with a secondary purpose of protecting national security, today’s system increasingly functions in collaboration with criminal law enforcement systems to incapacitate allegedly dangerous individuals for the purpose of preventing potential domestic crime. Regardless of the validity of judicial deference when immigration detention truly serves to aid in the removal process, this Note argues that such deference cannot legitimately be extended to the newly ascendant crime control function of immigration detention. At minimum, Due Process requires immigration detention procedural safeguards that are parallel to those in other preventive detention contexts, in which the government bears the burden of individually demonstrating a need for confinement.
LawReview
