How the Applicant for Admission’s Label Acts as a Tool to Erode Undocumented Immigrant Protections

Immigration and Customs Enforcement’s (ICE) presence in the U.S. has increased, most recently with officers being deployed to airports in major cities to support airport security operations. With ICE officers in the headlines as a result of this heightened presence, there has been increasing attention on immigration detention centers and the constitutionality of their policies and treatment of non-citizens. 

In immigration detention centers across the United States, noncitizens who have lived in the country for years can be held for months without receiving a bond hearing, which is the process by which a determination is made on whether continued detention is necessary. Currently, detention is authorized indefinitely and may continue through the duration of removal proceedings, which tend to be complex and lengthy. According to Jennings v. Rodriguez, the Immigration and Nationality Act permits detention without requiring a periodic bond hearing, even when confinement becomes extended. [1] 

Immigration detention is classified as a civil process instead of a criminal one, meaning it is justified not as punishment but as a regulatory measure serving specific governmental purposes, primarily ensuring that noncitizens appear for their removal proceedings alongside protecting the community from potential danger. [2] The Supreme Court has emphasized that detention must remain reasonably related to these purposes and cannot extend beyond what is necessary to achieve them. In Zadvydas v. Davis, the Court recognized that noncitizens within the United States are “persons” entitled to due process protections and held that civil detention is constitutionally questionable if detention is excessively prolonged. [3] The Supreme Court did not define “excessive” detention as a fixed cutoff, but instead established a presumptive six-month limit. After six months of post-removal order detention, if there is no significant likelihood of removal in the reasonably foreseeable future, continued detention is no longer justified and raises serious constitutional concerns. [4] Recent appellate decisions highlight the continuing tension between statutory detention schemes and constitutional limits. For example, a federal appeals court in Orlando upheld a policy permitting prolonged immigration detention without bond hearings, reinforcing the government’s authority to detain noncitizens for extended periods under existing statutes. [5]

A mechanism that allows for such extended detention is the immigration law that permits the government to classify certain individuals as “applicants for admission,” which is a statutory designation that treats them as if they are seeking entry into the U.S. despite being physically present within the U.S. This classification allows the government to treat individuals as if they remain at the border for legal purposes. Yet, as the Supreme Court clarified in Zadvydas v. Davis' physical presence within the U.S. carries its own constitutional significance, as noncitizens inside the country are considered “persons” entitled to due process protections. [6] Based on constitutional analysis, it becomes clear that the Fifth Amendment’s Due Process Clause requires meaningful individualized review when immigration detention becomes prolonged, and the government cannot constitutionally evade this requirement by reclassifying long-term residents as “applicants for admission” or by expanding mandatory detention schemes that deny such review. 

This article first examines the temporal due process problem created by prolonged detention, arguing that precedents such as Demore v. Kim are limited by the factual assumption that detention would be brief. Second, it analyzes the classificatory problem, showing how the “applicant for admission” designation, when applied to individuals with meaningful presence, undermines constitutionally required procedural protections. Finally, it argues that courts must look beyond statutory labels to enforce constitutional limits, ensuring that prolonged detention is accompanied by meaningful individualized review. 

The Temporal Due Process Problem

Prolonged detention without individualized bond hearings raises serious due process concerns because civil confinement becomes constitutionally impermissible when procedural safeguards are absent, and detention exceeds its regulatory justification. Once due process protections attach, the question becomes what those protections require in the context of immigration detention. In Jennings v. Rodriguez, which addressed whether immigration statutes require periodic bond hearings for detained noncitizens, the Supreme Court held that the Immigration and Nationality Act does not require periodic bond hearings for certain detainees, rejecting a statutory basis for such review. [7] Crucially, however, the Court declined to resolve the underlying constitutional question: whether prolonged immigration detention without individualized bond hearings violates the Fifth Amendment’s Due Process Clause, and instead remanded the case for further consideration. This distinction is important: it leaves open the possibility that detention permissible under the statute may nonetheless be unconstitutional in duration or effect. Lower courts confronting this unresolved issue, such as the United States District Court for the Western District of Washington in Padilla v. ICE, have been evaluating whether extended confinement without a bond hearing transforms civil detention into an arbitrary deprivation of liberty. [8] As Garcia Hernandez, a professor of law at Ohio State University, explains, the constitutionality of civil detention depends in part on its duration, as confinement extending beyond a reasonable regulatory purpose begins to resemble punishment rather than administrative custody. [9] In Demore v. Kim, which considered the constitutionality of mandatory detention for certain noncitizens during removal proceedings, the Court upheld detention without individualized hearings, relying on the assumption that such detention would be brief. Demore v. Kim may appear to support the government’s authority to impose mandatory detention without individualized hearings during removal proceedings. [10] However, the Supreme Court’s constitutional approval in Demore rested explicitly on an empirical premise: that detention would be brief. The Supreme Court relied on statistics indicating that most detentions lasted only a short period – a finding that the Court treated as mitigating due process concerns at the time. Now, this premise no longer reflects the realities of modern immigration detention, where proceedings frequently extend for months or even years. When a constitutional holding rests on a specific empirical premise, subsequent courts are not mechanically bound to extend that holding where the underlying factual conditions have materially changed. Constitutional precedents justified by practical realities carry only as much force as those realities remain accurate. Because the Court’s approval in Demore rests on the assumption that detention is brief, its reasoning does not automatically govern a system in which detention now routinely lasts months or years. As such, Demore’s precedential force is narrowed by the erosion of its empirical foundation. As detention extends beyond the brief period contemplated in Demore v. Kim, the constitutional justification for dispensing with individualized review correspondingly weakens. Prolonged detention, therefore, raises a distinct temporal due process problem: once confinement exceeds the duration that originally justified its constitutionality, it begins to legally resemble punitive detention rather than regulatory custody. At that point, the key constitutional problem is no longer mandatory detention alone, but the collapse of the factual premise that originally justified it. Once detention is no longer brief, Demore provides a weaker basis for denying individualized review. 

The Classificatory Problem: “Applicant for Admission” and Entry Fiction

The “applicant for admission” classification functions as a doctrinal loophole, enabling the government to detain individuals without individualized review by treating them as if they are outside the U.S. despite their physical presence within it. Under the Immigration and Nationality Act, an “applicant for admission” is a noncitizen seeking entry into the country, a designation that carries fewer procedural protections than those afforded to individuals who have effected entry. This classification operates through “entry fiction,” which allows the government to treat certain noncitizens as though they remain at the border for constitutional purposes even when they are inside the U.S. This classification defies the Supreme Court precedent that physical presence carries constitutional significance. In Landon v. Plasencia, where a lawful permanent resident seeking reentry after a brief trip abroad, the Court held that noncitizens physically present in the U.S, including lawful permanent residents returning from brief travel, are entitled to due process protections. [11] Landon v. Plasencia demonstrates that the “applicant for admission” label does not eliminate due process where an individual has a meaningful presence in the U.S. – measured in that case by the individual’s family ties, employment, and length of residence. This reflects the principle that constitutional safeguards are grounded in presence rather than formal admission status. [12] The concept of “meaningful presence” captures the idea that individuals who have lived in the U.S. for extended periods are not similarly situated to those seeking entry at the border. However, the “applicant for admission” classification collapses this distinction, allowing the government to treat individuals with substantial connections to the U.S. as if they have none. The government defends this approach by invoking Congress’s plenary power over immigration, an authority recognized by the Supreme Court, in cases under which it may define admission categories and limit procedural rights for those seeking entry. However, whether this authority extends so far as to eliminate due process for individuals physically present in the United States remains contested, particularly because courts have increasingly treated detention itself as the event that triggers constitutional scrutiny, rather than the government’s chosen classification justifying detention alone. As a result, the central constitutional issue is not simply detention length, but whether the government can rely on a legal classification to deny protections that would otherwise follow from physical presence and substantial ties to the United States. 

Judicial Enforcement and Constitutional Limits

The constitutional concerns become more severe with the combination of legal classifications used to deny protections and the long detention. The use of the “applicant for admission” classification in the context of prolonged detention and meaningful presence reveals a deeper gap between constitutional entitlement and procedural enforcement. This designation allows the government to treat individuals physically present in the United States as though they remain at the border, thereby limiting the procedural protections that would otherwise attach. The doctrine underlying this approach, entry fiction, has deep roots in immigration law. A foundational case is Shaughnessy v. United States ex rel. Mezei (1953), in which the Supreme Court held that a noncitizen detained on Ellis Island had not “entered” the United States and therefore lacked full procedural due process protections, even though his detention was effectively indefinite. [13] From its inception, however, the entry fiction has been in tension with the constitutional significance of physical presence. As established in Landon v. Plasencia, noncitizens physically present in the U.S. are entitled to due process protections. This reflects a broader constitutional principle: that due process protections attach to persons and their liberty interests, not merely to formal legal classifications. More broadly, statutory detention schemes and limits on available judicial remedies can allow contested detention practices to persist even where serious constitutional concerns remain unresolved. This dynamic underscores the risk that legal classifications may be used to sustain deprivations of liberty that would otherwise require meaningful review. As Shalini Ray, professor of law at the University of Alabama, argues in “The Contested Bright Line of Territorial Presence”, territorial presence has historically functioned as a central boundary for the application of constitutional protections. [14] Allowing the government to rely on legal fictions to override that boundary risks transforming due process from a constitutional guarantee into a contingent benefit dependent on classification. In this way, the “applicant for admission” designation does more than regulate entry; it enables the government to erode the distinction between individuals with meaningful presence and those at the border, effectively permitting prolonged detention without individualized review. This issue is not simply about the length of detention but about the integrity of constitutional limits on executive power. If statutory labels can be used to deny procedural safeguards to individuals physically present within the U.S., then the scope of due process becomes subject to administrative definition rather than constitutional constraint. When prolonged detention and loose classification work together, they compound the due process problem: duration magnifies the deprivation of liberty, while the classification obscures the constitutional protections that would otherwise constrain it. The Fifth Amendment requires the courts to look beyond formal classifications and ensure that prolonged detention is accompanied by meaningful individualized review, regardless of how the government chooses to categorize the individual. 

Edited by Xiu Lim

Sources

[1] Jennings v. Rodriguez, 583 U.S. 281 (2018).

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

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

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

[5] Matt Dixon, Federal Appeals Court Upholds Immigration Detention Policy, NBC News.

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

[7] Jennings v. Rodriguez, 583 U.S. 281 (2018).

[8] Padilla v. ICE, (W.D. Wash. 2026).

[9] César Cuauhtémoc García Hernández, Due Process and Temporal Limits on Immigration Detention.

[10] Demore v. Kim, 538 U.S. 510 (2003).

[11] Landon v. Plasencia, 459 U.S. 21 (1982).

[12] Landon v. Plasencia, 459 U.S. 21 (1982).

[13] Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953).

[14] Shalini Bhargava Ray, The Contested “Bright Line” of Territorial Presence.