Publication Date



19 p. ; This student paper has been awarded the Raymond W. Schowers Prize.


The first section examines the terminology of the Immigration and Naturalization Act ("INA") as it is used to classify the status and rights of aliens in deportation proceedings. This section explains the changes brought about by the Illegal Immigration and Immigrant Responsibility Act of 1996 ("IIRIRA"), which amended the INA by abandoning the old concept "entry," and replacing it with the terms "admission" and "admitted." This section also elaborates the current "double standard" of due process rights that exists between legal permanent residents and "unadmitted" aliens, as well as its historical analogue involving "deportable" and "excludable" aliens. The second section addresses Justice Marshall\'s argument, from his dissent in Jean, that asylum seekers enjoy due process rights under the Fifth Amendment. The third section examines a dissonance between two lines of Supreme Court cases on the due process rights of aliens. The fourth and final section applies the learning of the previous three sections to analyze the due process issue before the Court in Benitez v. Wallis: whether the Due Process Clause of the Fifth Amendment applies to unadmitted aliem. This section also involves a discussion of Zadvydas v. Davis. This discussion is important to understanding the due process issue of Benitez because, in Zadvydas, the Court held that the Due Process Clause of the Fifth Amendment applies to admitted aliens and places a reasonable time limitation on their detention after removal proceedings. The fourth section concludes by considering Benitez as an opportunity for the Court to abandon the entry fiction doctrine and to elevate to law Justice Marshall\'s reasoning in Jean that the Constitution applies to all individuals within the reach of the sovereignty of the United States.


University of New Mexico School of Law

Document Type

Student Paper



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