Toward a Constitutionalized Theory of Immigration Detention

Abstract

On March 19, 2008, federal immigration authorities arrested and jailed Cheikh Diop, a Senegalese national, after serving him with a Notice to Appear in immigration court. The government subsequently incarcerated Diop for two years and eleven months while it sought to remove him from the United States. Diop's Kafkaesque journey through the immigration system ultimately led to "1072 days of detention, four rulings by an immigration judge, three rulings by the [Board of Immigration Appeals], a state court ruling on [a prior drug] conviction and a subsequent pending appeal to the intermediate state court, a ruling by a federal district court judge on his habeas petition, and an appeal to [the Third Circuit]," all of which occurred while he was behind bars. Eventually, the government conceded that Diop had a statutory right to remain in the United States and released him from custody.