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Why Cost/Benefit Balancing Tests Don't Exist: How To Dispel A Delusion That Delays Justice For Immigrants, Joshua J. Schroeder

West Virginia Law Review

In 2022, the U.S. Supreme Court nullified its earlier presumption that indefinite immigrant detention without bond hearings is unconstitutional under Zadvydas v. Davis. If Zadvydas is a nullity, those who raise due process balancing tests during the post-removal-period in immigrant habeas review may need to find new grounds for review. However, since Boumediene v. Bush was decided in 2008, there are several reasons not to despair Zadvydas’s demise

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For one, Zadvydas spoke to an extremely narrow subset of cases. It granted a concession under the Due Process Clause to immigrants detained beyond the statutory 90-day removal period. It …