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University of Chicago Legal Forum

Abstract

A noncitizen detained under 8 U.S.C. § 1226(a) may be detained indefinitely until her removal order is finalized. Detainees have challenged prolonged detention following a detainee’s bond hearing on Fourteenth Amendment Due Process grounds, leading to a circuit split. Courts generally apply the Mathews test when hearing these challenges, which requires balancing the individual’s liberty at stake against the government’s interest in limiting that liberty. The government’s asserted interests in these cases are frequently grounded in national security arguments, which courts rarely scrutinize. Instead, courts generally give great deference to the way the executive branch characterizes national security concerns, often casting aside the significant individual interests at stake.

This Comment argues that a more complete evaluation of national security implications will more accurately capture the full scope of proffered government interests. Currently, courts often automatically defer to the executive branch’s national security determinations, rarely reaching the merits of those determinations as a result. This can be accomplished with a requirement that the government prove by clear and convincing evidence both the existence of the national security interest and a direct connection between the interest and the detention at issue. A more standardized approach will reduce the extreme deference given to the executive branch in its national security determinations.

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