Detained Aliens Challenging Conditions of Confinement and the Porous Border of the Plenary Power Doctrine

Serious problems are endemic to the conditions at INS detention facilities. Some detainees are crowded into understaffed INS detention centers. Others are shuttled off to local jails or private facilities, where the INS seldom inquires about their treatment and they are sometimes subjected to inhumane conditions. Attempts of detained aliens to challenge these conditions under the Due Process Clause generally have been thwarted.

This article documents the unconscious evolution of a standard requiring detained aliens to allege "malicious infliction of cruel treatment" or "gross physical abuse" in stating a viable due process claim. This standard provides an incomplete measure of constitutional protection, demonstrating that the plenary power doctrine is not confined to immigration law, but rather seeps out to infect claims normally governed by the aliens' rights tradition.