Tuesday, September 28, 2021
Although “entry fiction” emerged in immigration and constitutional law over a century ago, the doctrine has yet to account for present-day carceral and technological realities. Under entry fiction, “arriving” immigrants stopped at the border are deemed “unentered” and “not here” for constitutional due process purposes, even in detention centers deep within the United States. As a result, the Department of Homeland Security (“DHS”) uses its sole discretion to detain tens of thousands of arriving asylum seekers in its facilities without a bond hearing. Despite significant modern changes in immigration statutes and due process jurisprudence, the Supreme Court recently suggested, but did not decide, that individuals subject to entry fiction may continue to lack constitutional due process protections against detention. Both courts and the government have invoked sovereign power as the doctrine’s justification, asserting that detention is necessary to effect exclusion (removal) of individuals and that entry fiction appropriately protects the government’s power to detain.
While many scholars over the decades have offered trenchant critiques of the doctrine, no recent treatment evaluates entry fiction as legal fiction. This Article fills that gap, tracing entry fiction’s origins in law and jurisprudence to consider its operation in the present-day context. I engage in a close rereading of Chinese Exclusion- and McCarthy-era cases to uncover functionalist and humanitarian underpinnings of entry fiction, including an intention to minimize hardship to immigrants. I then reevaluate entry fiction in the present day. In particular, this Article explores DHS’s indiscriminate use of immigration detention and its breathtaking expansion of surveillance technology. Today, DHS both operates a mass detention regime and engages in ever-increasing surveillance, including real-time tracking of immigrants that allows deportation without physical detention. These current realities decouple entry fiction from sovereign purpose—rendering detention unnecessary for the sovereign power of exclusion—and engender decidedly antihumanitarian practices. I conclude that courts must put entry fiction to rest as a vestige of the past and recognize the constitutional due process rights of all persons who are present and here in U.S. immigration detention centers.