“Resisting violence and abuse by the state is especially difficult when those in power exercise their ability to legally define an institution such as immigration detention in ways that shield it from legal challenge.”

– Carl Lindskoog

Nativism, xenophobia, and “law and order” politics have worked in tandem to systematically deny undocumented immigrants—particularly immigrants of color—their constitutional rights to due process before being subjected to detention and removal. The Supreme Court has perpetuated this inequality by creating an exception to constitutional protections known as “entry fiction.” The Court has repeatedly used entry fiction as a mechanism to strip itself of jurisdiction to review immigration decisions and give complete judicial deference where it should not. Since its judicially created inception, the entry fiction doctrine has been weaponized against undocumented immigrants and refugees by all three branches of the United States government. The Court has failed to uphold the Constitution by categorically treating undocumented immigrants as less-than and turning a blind eye to the abrogation of basic constitutional protections.

This article analyzes the use of entry jurisprudence and discusses the future of entry fiction and immigration exceptionalism in light of the Court’s recent opinion, Department of Homeland Security v. Thuraissigiam.