Amelia Wilson
The jurisprudence on challenges to immigration confinement has oscillated wildly over the past four decades. Immigration detention has no true custodial analog in purpose, duration, or justification. It is civil in name but manifestly criminal in form and function. Federal courts have traditionally understood that the Fifth Amendment’s Due Process Clause protects immigrant detainees but have recently applied an elevated Eighth Amendment standard to these challenges.
Recent circuit decisions place this quagmire on display. During COVID-19, courts decided for—then against—medically vulnerable immigrants seeking release on disability and health grounds. Across these cases, courts migrated away from civil constitutional principles and toward the penological end of the doctrinal spectrum.
To correct this drift, this Article advocates for broadening the constitutional framework governing immigration confinement. If the Eighth Amendment is the constitutional law for the guilty, and the Fifth Amendment is the constitutional law for the accused, immigration detention belongs under the Fourth Amendment’s constitutional law for the seized. Removal proceedings never result in a guilty adjudication, making comparisons to criminal pretrial custody inappropriate. And immigration arrests lack independent probable cause determinations, placing them on doubtful constitutional ground.
Aligning immigration detention under the Fourth Amendment would check the growing tolerance of detention’s severity, resolve inconsistent Fifth Amendment application across circuits, and require courts to assess whether custody is reasonable and as unrestrictive as possible. In an era of radical detention expansion, the Fourth Amendment can reaffirm the Constitution’s commitment to liberty while opening more varied pathways to challenge immigration confinement.
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