Introduction  

        The Supreme Court has recognized and granted the federal government with “broad, undoubted power over the subject of immigration and the status of aliens.” This includes their admission, exclusion, and removal from the United States.  Under this doctrine, the detention of migrants during removal proceedings or “pending a decision on whether the alien is to be removed from the United States” is entirely the jurisdiction of the federal government [1]. However, the current administration has undergone a large expansion of migrant detention, especially in the cases of mandatory detention, where there is prolonged confinement in private detention centers. The federal government does have broad immigration power but has been held in check by the courts to some degree, with the Supreme Court repeatedly holding that the Fifth Amendment’s Due Process Clause protects migrants under the phrasing of “people”, rather than “citizens”, thus ensuring that migrants held in U.S. territory are entitled to basic constitutional rights [2]. 

Despite these constitutional safeguards, migrants have been exposed to a variety of severe conditions that raise various constitutional questions. Alina Das of the Harvard Law Review cites “poor conditions of confinement, including medical mistreatment and neglect, inadequate nutrition, unsanitary conditions, and overcrowding” as being present in U.S. migrant detention systems. This is cause for concern when deciding whether the system still abides by the constitutional protections migrants are entitled to under the Fifth Amendment [2]. 

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[1] Arizona v. United States, 567 U.S. 387 (2012). 

[2] U.S. Consti. Amend. V. 

 

Legal Precedents 

        Detention decisions are structured by the Immigration and Nationality Act (INA), among which two provisions are related to migrant detention. The first of these is section 1226(c), which requires detention of any migrant who fits a variety of criminal histories outlined by other sections of the INA [3]. Additionally, section 1231 calls for the federal government to detain any migrants after a removal order has been issued [4]. Under these statutes, the federal government is given broad authority over how to detain individuals during the immigration and removal process. However, this does not eliminate constitutional constraints, such as the Fifth Amendment. Courts have repeatedly held this position for the most part, emphasizing that the federal government must remain consistent with the Fifth Amendments Due Process Clause. In the case Zadvydas v. Davis (2001), the Supreme Court held that indefinite detention violates due process and established an implicit time limitation of 6 months for the detention of foreigners under section 1231 of the INA [5]. 

        The Supreme Court has shown a willingness to address and limit the immigration powers of the federal government when it comes to due process, even recently. In the case of A.A.R.P v. Trump (2025), the Court held that the “United States government failed to provide adequate notice to detainees facing deportation under the Alien Enemies Act.” The Court cited the potential for indefinite detention in the Terrorism Confinement Center in El Salvador and thus, detainees weren’t awarded the due process that they should be afforded [6].  

The Supreme Court has categorized immigration detention as a form of civil detention in the case Wong Wing v. United States, and therefore the government is subject to various limits as to what conditions those held may be subjected to [7].

        This comes from the case of Bell v. Wolfish, where the Supreme Court assessed the constitutionality of various conditions of confinement of inmates in short-term detention facilities [8]. The Court held that individuals who are detained for civil or nonpunitive purposes may not be subjected to conditions that amount to punishment, as this punishment would violate the due-process clause of the Fifth Amendment. Because civil detention must remain nonpunitive, poor conditions such as overcrowding, inadequate medical care, or indefinite detention may be considered punishment, and thus the exposure of migrants to these conditions violates the Fifth Amendment, making such detainment unconstitutional.  

Ultimately, the Constitution requires immigration detention to be classified as civil, not criminal. The purpose is to ensure that individuals appear for removal, asylum, or other immigration hearings. Any conditions that may transform detention into punishment through harsh conditions constitute a violation of the Due Process Clause of the Fifth Amendment.  

 

[3] 8 U.S.C. § 1226 (1952). 

[4] 8 U.S.C. § 1231 (1952). 

[5] Zadvydas v. Davis, 533 U.S. 678 (2001). 

[6] A.A.R.P v. Trump, 605 U.S. ___ (2025). 

[7] Wong Wing v. United States, 163 U.S. 228 (1896). 

[8] Bell v. Wolfish, 441 U.S. 520 (1979). 

 

Human Rights Law 

        The UN Refugee Agency (UNHCR) has developed various guidelines on the standards for detention of asylum seekers, and they provide a framework for evaluating immigration detention. Among these guidelines is that “Detention can only be resorted to when it is determined to be necessary, reasonable in all the circumstances and proportionate to a legitimate purpose.” Detention is meant to be used only as a last resort for asylum seekers [9]. These ideals are also articulated in the International Covenant on Civil and Political Rights (ICCPR), with both stressing that liberty should be the default condition and detention as a last resort and exemption [10]. Human rights violations are likely to be found in detention centers, especially when the management of the facilities is subcontracted to private companies.  

        Kimberly Hamilton of the UC Berkeley Latine Journal of Law & Policy argues that subcontracting detention operations to private companies can potentially lead to abuse due to a lack of oversight and monitoring [11]. Private companies operate under an incentive to cut costs and prioritize maintaining a profit. This creates an incentive for the companies in charge of these facilities to reduce staffing, limit medical services, or just cut back on what migrants should be afforded during detention. These issues are only compounded with the problem of indefinite detention. Migrants are often subject to confinement of much longer than the presumed 6-month limit established by Zadvydas v. Davis (2001), due to delays in immigration proceedings, even further exacerbated by difficulties in obtaining legal representation [5]. Additionally, the lack of oversight caused by understaffing or distance from the eye of the federal government can lead to the violation of human rights and inhumane conditions that would fall under punishment. Therefore, these issues could be brought up in U.S. courts as a violation of the Fifth Amendment. 

        The United States also falls short of human rights norms in terms of access to legal representation for those in migrant detention facilities. For migrants, the consequences of detention and removal seriously impact their lives. Additionally, under U.S.C. Section 1362, noncitizens do have the privilege to be represented; however, it is under the caveat that it be at no expense to the government [11]. The federal government will not provide an appointed council for migrants as they would in criminal cases. Representation for migrants depends solely on the availability of private attorneys or pro bono services. Even considering the difficulties in acquiring legal representation under normal circumstances, migrants in detention facilities have it much worse, with detention severely restricting an individual’s ability to locate or contact an attorney. This ultimately leads to migrants in detention facilities having a very low level of legal representation, with U.S. statutes actively impeding a migrant's ability to defend themselves legally in removal proceedings. 

        International human rights treaties tend to take on a more supportive role than the U.S. statute when it comes to legal representation. Article 14 of the ICCPR requires that individuals facing proceedings that could determine their rights have access to adequate legal assistance. Additionally, Article 13 requires that noncitizens be allowed to have their case reviewed. The U.S. did in fact ratify the ICCPR; however, it did so with various reservations and declarations, stating that all articles of the treaty are not self-executing, and therefore they cannot be directly enforced in the U.S without implementing domestic legislation [12]. 

        Many features of the U.S. detention system cause friction with and violate established human rights covenants and norms. Detention centers impose a variety of obstacles on migrants that impede their human rights, especially with inhumane conditions and little to no access to legal representation [13]. A failure to meet the standards set by both human rights covenants and the U.S. Constitution suggests that immigration reform is an important step for the federal government to take to investigate immigration violations in a way that recognizes their human and civil rights. 

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[9] UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, 2012. 

[10] International Covenant on Civil and Political Rights, Oct. 5, 1977, 999 U.N.T.S. 171. 

[11] 8 U.S.C. § 1362 (2024). 

[12] ICCPR art. 13 & 14, Oct. 5, 1977, 999 U.N.T.S. 171. 

[13] UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, 2012.