Abstract
Less than two months before American voters cast their ballots in the 2024 presidential election, a circuit split emerged regarding whether the Due Process Clause allows noncitizens with certain criminal convictions to be held indefinitely throughout their deportation proceedings without the right to a bond hearing. Specifically, the First, Second, and Third Circuits disagree with the Eighth Circuit over whether noncitizens may be detained for the duration of their deportation proceedings under Section 236(c) of the Immigration and Nationality Act (INA) without the right to a bond hearing. In January 2025, Congress subjected additional classes of noncitizens, including those who are accused of shoplifting or theft, to Section 236(c) when it passed the Laken Riley Act. This Comment urges the Supreme Court and lower federal courts to side with the First, Second, and Third Circuits in finding that noncitizens have a constitutional right to a prompt bond hearing once their mandatory detention under Section 236(c) has become unreasonable under the Due Process Clause. It also encourages the adoption of the Third Circuit’s non-exhaustive four-factor test from German Santos v. Warden Pike Correctional Facility to determine when the Due Process Clause entitles a noncitizen who is detained under Section 236(c) to a bond hearing. In addition, this Comment argues that the Supreme Court and lower federal courts should clarify that the German Santos test applies to both lawfully present and undocumented noncitizens. This Comment likewise encourages federal courts to require on constitutional grounds that (1) the government satisfy a clear and convincing evidentiary standard at noncitizens’ bond hearings, and (2) immigration judges consider noncitizens’ ability to pay bond. Furthermore, this Comment urges Congress to exempt undocumented youth and DACA recipients from the Laken Riley Act’s provisions, and / or to spare minors from Section 236(c) entirely.
Recommended Citation
Jacob E. Maguire,
Extended Detention Without Due Process: Resolving a Circuit Split in Favor of Detained Noncitizen Migrants’ Due Process Rights,
130
Dick. L. Rev.
317
(2025).
Available at:
https://insight.dickinsonlaw.psu.edu/dlr/vol130/iss1/9