Sentenced to Purgatory: The Indefinite Detention of Mariel Cubans

Indefinite detention of Cuban immigrants is unconstitutional. Immigrants detained in American jails are being treated the same as individuals serving criminal sentences or awaiting disposition of their cases. Congress should, therefore, create a mandatory and uniform system of procedural due process. The system should be modeled after the procedural due process system established by the Kansas Legislature in the Kansas Sexually Violent Predator Act of 1994.

Although the U.S. Supreme Court has yet to rule on the indefinite detention of the Mariel Cubans, lower courts have held that the indefinite detention of Mariel Cubans does not violate the Constitution. Nonetheless, indefinite detention has become a form of exclusion concerning immigrants who have been ordered deported but cannot be returned to their homelands. Immigrants are considered “persons” under the Constitution and fall into one of two groups, deportable aliens and excludable aliens. Courts recognize a sharp distinction between the legal status of excludable aliens and deportable aliens.

The U.S. Supreme Court has determined that deportable aliens have certain constitutional rights that are not bestowed on excludable aliens “on the threshold of initial entry.” Although the plenary power doctrine provides the executive branch with the exclusive control to exclude immigrants, this reasoning is fatally flawed. Therefore, it is imperative that Congress pass legislation similar to the Kansas Sexually Violent Predator Act of 1994. The legislation would simultaneously ensure public safety and provide due process safeguards for immigrants who have been deemed inadmissible and cannot be returned to their homelands.