American Fiction: Overturning the Doctrine of Immigration Entry Fiction as Established in Shaughnessy v. Mezei

In 1886, the Supreme Court decided a case called Yick Wo v. Hopkins, which held that any person physically within the United States’ territory would enjoy the protections of the Fourteenth Amendment, regardless of their immigration or citizenship status. In a racist and nationalistic reaction, this decision gave rise to the continued usage of a legal concept called “entry fiction,” where people who may remain physically within the country may still be detained as though they have not entered, and as such are not entitled to constitutional protection. Entry fiction applies to many people who are detained in immigration detention centers that are located well within the confines of American borders.

Circuits are currently split over the adoption of “entry fiction” as it applies to constitutional prohibitions against unreasonable searches and seizures, as well as the attachment of constitutional due process rights to non-citizens who have physically crossed the country’s borders. This Essay will propose that the Supreme Court should resolve the split and move away from the doctrine of entry fiction by overturning Shaughnessy v. Mezei, such that any physical intrusion into the country is sufficient to bestow constitutional rights, even if a person is an un-admitted, unprocessed non-citizen. Such a decision would enable immigration legal organizations to render greater protections to the people that they serve and would put an end to a humanitarian crisis that is currently unfolding by the mass unconstitutional and extrajudicial detainment of people in immigration detention centers.