By Liam Comer-Weaver

Today, the immigration policies of Argentina and the United States could not be more different. Argentina’s human-rights-centered immigration policy is touted as being among the most progressive in the world.[1] Meanwhile, the United Nations has condemned the punitive nature of the U.S. asylum system due to its excessive use of asylee detention and solitary confinement.[2] Differing immigrant-induced burdens do not explain this divergence, as the nations have had similar migrant flows throughout history.[4] Rather, the more restrictive U.S. policy is derived from a strange legal doctrine known as “entry fiction,” which paved the way for excessive detention of asylum seekers.

This article begins by tracing the historical creation and legal underpinnings of the entry fiction doctrine. I then introduce Argentina as a nation of comparison, with immigration policies that are regarded as some of the most humane and cost effective in the world. Lastly, I propose a step that the U.S. Congress could take to bring the U.S. asylum system back into compliance with international human rights obligations while, at the same time, greatly reducing border enforcement costs.

The History of Detention and Entry Fiction in the United States

Detention has become an increasingly integral part of the U.S. border control strategy since the 1996 Illegal Immigration Reform and Responsibility Act (IIRIRA), which greatly expanded the practice of migrant and asylee detention.[5] The average number of people that U.S. immigration enforcement agencies hold in detention on a given day has grown from 7,500 in 1995 to 50,000 in 2019.[6] Migrants and asylees are housed in around 200 prisons, jails, and prison-like facilities that are scattered throughout the United States.[7] Many of these detainees are individuals who presented themselves at the border to make an asylum claim only to be immediately placed into deportation proceedings.

Detention upon entry, however, has not always been the policy of the United States, having only become a standard part of U.S. immigration procedures in the late nineteenth century, when the federal government demanded that ships keep passengers on board until immigration officials approved them. During this process, officials determined that migrants were not either women being imported for “immoral purposes” (i.e., prostitution), a person who had committed a “crime of moral turpitude,” or a person barred under the Chinese Exclusion Act of 1882.[8]

Admissibility assessments were generally made before the immigrant set foot on U.S. soil, in part because of the pivotal 1886 Supreme Court decision in Yick Wo v. Hopkins. In that case, the Supreme Court held that “equal protection under the law,” established by the Fourteenth Amendment, was extended to all persons within the country’s territory.[9] As a result, those physically within the country were entitled to due process protections, while those who had not yet entered were not. Ergo, due process protections, such as the ability to appeal an adverse admissibility determination, were theoretically available to anyone within the country’s borders but were not necessarily available to those still on the boat.

Lengthy onboard admissibility determinations posed a problem for steamship companies that wanted to quickly offload passengers and return to the sea, and so they negotiated an alternative arrangement with U.S. authorities. The companies would provide onshore shelter for their passengers while their admissibility was assessed.[10] This practice became commonplace, while at the same time, Congress passed laws to limit the due process rights of these entering persons, in apparent conflict with the Yick Wo v. Hopkins decision.

The Supreme Court had to balance two strong opposing interests. On the one hand, it consistently ruled that Congress had broad “plenary” powers to determine who was and was not allowed into the country. On the other hand, the Yick Wo v. Hopkins decision determined that the Fourteenth Amendment guarantee of equal protection under the law applied to all those physically present within the country, regardless of their immigration status.

Bound by the principle of constitutional avoidance, the Court, through various decisions, concluded that depriving entering migrants of due process rights did not violate the equal protections clause of the Fourteenth Amendment.[11] These determinations rested on the belief that those “entering” the country, despite being within the country’s physical space, were not in the United States in a legal sense.[12] This distinction between physical and legal presence (not to be confused with legal status) became known as “entry fiction.”

The Modern Application of Entry Fiction

Modern immigrant detention facilities operate in this liminal state of entry fiction; in 2019 alone, tens of thousands of entering migrants and asylum seekers were physically detained within U.S. borders without having “entered” the country.[13] The doctrine is used to justify the denial of asylum seekers’ and undocumented migrants’ right to request review and release from indefinite detention.[14] Further, as a result of entry fiction, undocumented migrants are unprotected from unreasonable search and seizure, so long as said Fourth Amendment violations are not “egregious.”[15] Lastly, entry fiction undermines the United States’ adherence to its international obligations to hear people’s asylum claims and grant them asylum if they have a well-founded fear of persecution. The country’s asylum system often jails asylum seekers and deports them before a hearing is granted.

As Justice Robert Jackson colorfully wrote in his dissenting opinion in the 1953 case Shaughnessy v. Mezei, “Does the power to exclude mean that exclusion may be continued or effectuated by any means which happen to seem appropriate to authorities? It would effectuate his exclusion to eject him bodily into the sea or to set him adrift on a rowboat.”[16] In other words, entry fiction strips migrants and asylum seekers of even the most basic legal protections, allowing the government to be limitlessly cruel to those who do not yet have legal status. This fact, a century after the entry fiction doctrine was established, now comes into conflict with newfound international obligations to not put asylum-seekers in harm’s way, derived from the United States’ signing of the 1967 Protocol Relating to the UN Convention on the Status of Refugees and the 1984 Convention against Torture.[17]

Migrant and Asylum Seeker Detention by the Numbers

The constitutionality surrounding the pre-hearing detention of migrants and asylum seekers was addressed by the Supreme Court in the 2003 case Demore v. Kim.[18] The Court found that this type of detention did not violate the due process rights of deportable aliens, citing that “Congress had before it evidence suggesting that permitting discretionary release of aliens pending their removal hearings would lead to large numbers of deportable criminal aliens skipping their hearings.”[19]

But the assumption that asylum seekers would not attend their hearings unless detained is clearly refuted by current immigration court statistics. A 2021 study by the American Immigration Council found that 83 percent of non-detained migrants attended all of their hearings between 2008 and 2018.[20] Much of that remaining 17 percent can be explained by the fact that many migrants in deportation hearings do not have counsel. Of non-detained migrants with attorneys, 96 percent of them showed up to all of their hearings, indicating that many migrants who miss their deportation hearings do so because they lack an attorney that can translate their charging documents.[21]

This flawed assumption of skipped hearings has led to the detention of tens of thousands of migrants and asylum seekers at a significant cost to the country’s taxpayers and to the nation’s international standing. In fact, the U.S. immigration system detains up to 50,000 people at a time, with estimates for the costs of detention ranging from $144 to $200 per detainee per day.[22] Assuming the quantity of detainees returns to its pre-pandemic level, spending on detaining migrants will return to between $7.2 million and $10 million per day, or $2.6 to $3.7 billion dollars per year.

Cheaper alternatives to detention are available and, in fact, are currently used by the U.S. Immigration and Customs Enforcement (ICE), which begs the question for some scholars of whether or not the legal rationale of Demore v. Kim, permitting pre-hearing detention as a necessary component for enforcement, still stands up to scrutiny.[23] Alternatives to detention, such as supervised release into the country, come at a much lower cost of $4 to $38 per person per day.[24] If the entire maximum detained population were to be switched to supervised release, monitoring costs would total $200,000 to $1,900,000 per day or $73,000,000 to $693,500,000 per year. As such, supervised release would save U.S. taxpayers between $2 to $3 billion dollars per year. The current costs of detainment are therefore unnecessary both in terms of dollars and of migrants’ rights, as the case of Argentina demonstrates.

Argentina as a Historical Case Study

Argentina may not seem like an obvious point of comparison to the United States. Yet with immigration flows and policies, Argentina has historically been most similar to the United States.[25] When the United States welcomed large numbers of migrants from Europe in the nineteenth century, Argentina did as well. Argentina even subsidized their passage from 1888 to 1890.[26]

The countries’ decisions to limit migration also occurred in tandem. In 1902, Argentina enacted the Law of Residency, barring entry of suspected anarchists and others whose conduct could compromise national security and public order.[27] The United States introduced a similar exclusionary policy the following year.[28] With regard to both restrictive and open border policies, when one country trends in one direction, the other tends to follow almost immediately.[29]

This trend continued throughout the twentieth century. In 1981, under the military dictatorship of Rafael Videla, Law 22.439, (also known as La Ley Videla) was enacted. This law both affirmed that authorities had the power to expel foreigners without judicial redress and obliged public officials to report the presence of unauthorized migrants.[30] Despite the return of democracy just a couple of years later, the restrictive and punitive policies of the Ley Videla remained for another twenty years. During this period, the United States enacted similar procedures to remove suspected undocumented migrants “without further hearing or review.”[31] This process, known as “expedited removal,” was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and was intended to streamline the removal of aliens as they illegally entered the United States. But, in doing so, the process subjected many asylum seekers with legitimate claims to potential removal with little to no due process, as they were unprotected due to entry fiction.[32]

The 2004 Divergence: Argentina’s Human Rights Approach

In 2004, after over a century of moving in tandem, the countries’ policies diverged. In the United States, the IIRIRA and subsequent post-9/11 policies further limited migrants’ due process protections and filled beds in detention centers.[33] Meanwhile, the Argentinian government passed one of the most progressive immigration laws in history, Ley 25.871.[34] The law codifies migration as a human right, placing the “burden on the State to provide irregular migrants with public assistance to regularize their situation, and mandates the development of regularization programs.”[35] 

The landmark 2004 law, commonly referred to as the 2004 Law or the Ley de Migraciones, contained two components that entrenched a human rights approach into Argentina’s immigration policy. First, it clearly states that there are inalienable rights granted by the 1994 constitution that are shared between citizens and non-citizens.[36] Second, the law guarantees significant procedural due process for immigrants, including “multiple levels of appeal of adverse decisions, free legal assistance for immigrants in expulsion proceedings at the expense of the State, and a presumption against detention during those proceedings.”[37] These newfound guarantees were immediately affirmed in a case later in 2004, where three Chinese migrants that had been detained for crossing the border without authorization were released, guaranteed a state-provided lawyer, and given the opportunity to regularize their status.[38]

Incorporating Argentina’s Rights-Based Approach

The United States can learn from Argentina’s decision to link the rights of citizens and non-citizens. Historically, the countries have had similar patterns of migrant flows and have responded with parallel policies. But now, only the United States is burdened with ballooning costs associated with responding to inflows of asylum seekers because it detains them en masse. Meanwhile, Argentina still has yet to open even a single migrant detention facility due to the infrequency of the country’s use of migrant detention.[39] In part because of the lack of expenditure on detention, immigrants in Argentina likely have net positive fiscal contribution to the country’s treasury, according to the OECD.[40] As the financial costs of the two countries’ policies have diverged, so too have their reputations in the international community. Argentina’s human-rights affirming policies have been vaunted as a template for how to address immigrants and asylum seekers with dignity, while the extreme of U.S. detention of asylum seekers has been criticized on the international stage.

The United States Congress can reorient the country’s laws toward human rights and reduce the ballooning costs of immigration detention by ending entry fiction. Given Congress’ long-established plenary power to determine matters of immigration, the entry fiction doctrine would be erased overnight through the passage of legislation with clear language stating that those who have physically entered and are physically present in the United States are within the country in the legal sense.

This statement would have profound impacts on the human rights of immigrants and asylum seekers. It would end entry fiction by undercutting the doctrine’s distinction between those physically present and those legally present. Denying individuals equal protection under the law simply because they had recently entered the country would no longer be permissible due to the Yick Wo v. Hopkins precedent. In practice, ending entry fiction in the United States would have the equivalent effect of Argentina’s Ley de Migraciones, as it would result in a clear requirement to grant the same due process rights to citizens and non-citizens alike.

In a post-entry fiction world, the practice of detaining migrants and asylum seekers for extended periods of time with limited opportunities for appeal would need to end. Billions of dollars that are currently spent detaining individuals and families upon entry could be freed up to address the issue in more humane and cost-effective ways, such as supervised release. As a result, the United States would once again become a place that treats those fleeing persecution with dignity.

About the Author

Liam Comer-Weaver is a Fox Fellow for Yale’s Macmillan Center for International and Area Studies. His research focuses on the human rights impacts of migration policies and the economic and political drivers of migration flows. He is based in San Andrés University in Buenos Aires, Argentina.

Endnotes

1. David Baluarte, “The Right to Migrate: A Human Rights Response to Immigration Restrictionism in Argentina,” Washington University Global Studies Law Review 18, no. 2, 2019, pp. 293-350.

2. A 2019 review conducted by the International Consortium of Investigative Journalists found that between 2012 and 2017, roughly 8,488 detainees were sent to solitary confinement, often to punish detainees for consensual kissing and to break up hunger strikes. Over half of the stays lasted for more than fifteen days, which, according to UN Special Rapporteur on Torture Juan E. Méndez, amounts to torture. Over thirty of the stays in solitary confinement lasted for more than a year; Human Rights Council, “Report of the Working Group on Arbitrary Detention on its Visit to the United States of America,” United Nations General Assembly, September 2017; United Nations. “Solitary Confinement Should be Banned in Most Cases, UN Expert Says,” UN News, October 18, 2011, https://news.un.org/en/story/2011/10/392012-solitary-confinement-should-be-banned-most-cases-un-expert-says.

3. Spencer Woodman, Karrie Kehoe, Maryam Saleh, and Hannah Rappleye. “Thousands of Immigrants Suffer in US Solitary Confinement,” International Consortium of Investigative Journalists, May 2019, https://www.icij.org/investigations/solitary-voices/thousands-of-immigrants-suffer-in-us-solitary-confinement/; Karrie Kehoe, “How US Immigration Authorities Use Solitary Confinement,” International Consortium of Investigative Journalists, May 2019, https://www.icij.org/investigations/solitary-voices/how-us-immigration-authorities-use-solitary-confinement/.

4. Victoria Slater, “To Govern is to Populate: Argentina Immigration Law and What It Can Suggest for the United States,” Houston Journal of International Law 31, no. 3, 2009: 693-732.

5. United States Congress, “Division C ̶  Illegal Immigration Reform and Immigrant Responsibility Act of 1996” within “Making Omnibus Consolidated Appropriations for the Fiscal Year Ending September 30, 1997, and for Other Purposes,” HR 3610, 104 Congress, September 30, 1996, 547-745.

6. Randy Capps and Doris Meissner, “From Jailers to Case Managers: Redesigning the U.S. Immigration Detention System to Be Effective and Fair,” Migration Policy Institute, September 2021.

7. Heidi Altman, “Policy Brief: 5 Reasons to End Immigrant Detention,” National Immigrant Justice Center, September 2020, https://immigrantjustice.org/research-items/policy-brief-5-reasons-end-immigrant-detention.

8. Ashley Timmer and Jeffery Williamson, “Immigration Policy Prior to the 1930s: Labor Markets, Policy Interactions, and Globalization Backlash,” Population and Development Review 24, no. 4, December 1998: 739-771; García Hernández and César Cuauhtémoc, Migrating to Prison: America’s Obsession with Locking Up Immigrants, (New York: The New Press, 2019).

9. Yick Wo v Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.

10. García Hernández and César Cuauhtémoc, Migrating to Prison: America’s Obsession with Locking Up Immigrants, (New York: The New Press, 2019).

11. Three cases that were instrumental in the formation of the entry fiction doctrine are Yamataya v. Fisher, holding that there is a low minimum bar for due process of those in deportation proceedings, Knauff v. Shaughnessy, holding that an alien can be excluded solely based on the Attorney General’s finding that the aliens admission would harm the interests of the United States, and Shaughnessy v. United States ex rel. Mezei, holding that non-citizens seeking entry or reentry are not entitled to procedural due process. These cases, in tandem with others, establish that there are different due process guarantees offered to those who are determined to be within the United States in a legal sense and those that are deemed to be attempting to “enter” the country in a legal sense.

12. Eunice Lee, “The End of Entry Fiction,” North Carolina Law Review 99, no. 3, March 2021: pp. 565-642.

13. Ibid.

14. Alison Wexler, “The Murky Depths of the Entry Fiction Doctrine: The Plight of

Inadmissible Aliens Post-Zadvydas,” Cardozo Law Review 25, no. 5, April 2004:

2029-2078.

15. Almeida-Amaral v Gonzales, 461 F.3d 231 (2d Cir. 2006)

16. Alexander Aleinikoff, David A. Martin, Hiroshi Motomura, Maryellen Fullerton and Juliet P. Stumpf, Immigration and Citizenship Process and Policy (St. Paul, Minnesota: West Academic Publishing, 2016).

17. UNHCR, “The Convention and Protocol Relating to the Status of Refugees,” UNHCR Communications and Public Information Service, December 2010,  https://www.unhcr.org/3b66c2aa10; UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85

18. Demore v. Kim, 538 U.S. 510, 531 (2003).

19. Alexander Aleinikoff, David A. Martin, Hiroshi Motomura, Maryellen Fullerton and Juliet P. Stumpf, Immigration and Citizenship Process and Policy (St. Paul, Minnesota: West Academic Publishing, 2016).

20. Ingrid Eagly and Steven Shafer, “Measuring in Absentia Removal in Immigration Court,” University of Pennsylvania Law Review 168, no. 4, March 2020, pp. 817-876.

21. Ibid.

22. Randy Capps and Doris Meissner, “From Jailers to Case Managers: Redesigning the U.S. Immigration Detention System to Be Effective and Fair,” Migration Policy Institute, September 2021.

23. Eunice Lee, “The End of Entry Fiction,” North Carolina Law Review 99, no. 3, March 2021: pp. 565-642.

24. Randy Capps and Doris Meissner, “From Jailers to Case Managers: Redesigning the U.S. Immigration Detention System to Be Effective and Fair,” Migration Policy Institute, September 2021.

25. Slater, “To Govern is to Populate: Argentina Immigration Law and What It Can Suggest for the United States.”

26. Blanca Sánchez-Alonso, “Those Who Left and Those Who Stayed Behind: Explaining Emigration from the Regions of Spain, 1880-1914,” Journal of Economic History 60, no. 3, September 2000: 730-755.

27. Barbara Hines, “The Right to Migrate as a Human Right: The Current Argentine Immigration Law,” Cornell International Law Journal 43, no. 3, 2010: pp. 471-512.

28. Ashley Timmer and Jeffery Williamson, “Immigration Policy Prior to the 1930s: Labor Markets, Policy Interactions, and Globalization Backlash.”

29. Ibid.

30. Gastón Chillier and Ernesto Semán, “Argentina’s Migration Solution: A Revolutionary Answer for Immigration Reform Based on Open Dialogue and the Recognition of Migration as a Human Right,” Americas Quarterly, 2011, 102-106.

31. Congressional Research Service, “Expedited Removal of Aliens: An Introduction,” Congressional Research Service: In Focus, January 2021.

32. Traditionally, it has applied to those who have not been legally admitted or paroled into the United States at legal ports of entry, as they enter by sea, or to anyone who has entered the United States without authorization within the past fourteen days if they are within one hundred miles of the border. In 2019, DHS attempted to expand the eligibility for expedited removal to anyone who had entered without authorization during the past two years, present in any part of the United States.

33. Ibid.

34. Barbara Hines, “An Overview of U.S. Immigration Law and Policy Since 9/11,” Texas Hispanic Journal of Law & Policy 12, 2006: pp. 9-30.

35. Argentina, Senado y Cámara de Diputados, ¨Ley de Migraciones,” December 2003, http://servicios.infoleg.gob.ar/infolegInternet/anexos/90000-94999/92016/texact.htm

36. David Baluarte, “The Right to Migrate: A Human Rights Response to Immigration Restrictionism in Argentina.”

37. Ibid.

38. Ibid.

37. Ibid.; Shared rights outlined by the 2004 law include the right to migrate, equal protection under the law, freedom from discrimination, access to education and healthcare, access to information and means of integration, the right to family unity, political rights, labor rights, property rights, and rights guaranteed under international law.

38. Ibid.

39. Global Detention Project, “Country Report, Immigration Detention in Argentina: A Paradigm Shift?” Global Detention Project, 2020, https://www.globaldetentionproject.org/countries/americas/argentina.

40. OECD/ILO, “How Immigrants Contribute to Argentina’s Economy,” OECD Publishing, 2018, http://dx.doi.org/10.1787/9789264288980-en.