Beyond the Shadow of Zadvydas: The Unlawful Re-Detention of CAT-Protected Noncitizens and the Erosion of Due Process, Part III

/ Civil Justice & Rights, Deportation/ Removal, ICE Detention, Legal Analysis, Temporary Injunction - Removal / By

Part Three

Constitutional and Policy Critique

A. Due Process and the Limits of Executive Power

The Fifth Amendment’s Due Process Clause applies to all persons within the territory of the United States, irrespective of citizenship or immigration status.¹ This principle—traced from Yick Wo v. Hopkins through Zadvydas v. Davis reflects a foundational axiom of constitutional law: liberty is not a privilege of citizenship but a basic human right.² In Zadvydas, the Supreme Court reaffirmed that the government’s authority to detain in the immigration context is “subject to constitutional limitations,” and that indefinite detention absent a legitimate purpose is “constitutionally problematic.”³

The recent pattern of re-detention of CAT-protected individuals stands in direct conflict with these principles. By arresting and detaining individuals without prior notice, individualized findings, or any evidence that removal is reasonably foreseeable, ICE has transformed administrative discretion into a mechanism of arbitrary confinement.⁴ The government’s invocation of “changed enforcement priorities” cannot substitute for procedural due process or statutory authority.⁵

In Villanueva v. Tate, the court emphasized that “[n]oncitizens, even those subject to a final order of removal, have constitutional rights just like everyone else in the United States.”⁶ ICE’s actions, the court held, violated both procedural and substantive due process by failing to comply with its own regulations governing revocation of supervised release.⁷ Similarly, the Maryland court in Zavvar v. Scott declared that the government “cannot justify detention by retroactively constructing a rationale for it,” noting that due process requires “advance notice and an opportunity to contest re-detention.”⁸

These rulings embody the enduring principle of Mathews v. Eldridge: that procedural due process demands consideration of the private interest at stake, the risk of erroneous deprivation, and the government’s interest.⁹ Applied to re-detention, the private interest—freedom from physical restraint—is at its zenith, while the risk of error is acute and the government’s interest minimal absent a real prospect of removal.¹⁰

The lack of procedural safeguards in these cases underscores the government’s departure from constitutional norms. Arresting individuals at scheduled check-ins, often after years of compliance, reflects not an exercise of lawful discretion but an assertion of unchecked executive power.¹¹ As the court in Salcedo Aceros v. Kaiser observed, “administrative convenience cannot eclipse constitutional command.”¹²

B. Substantive Due Process and the Prohibition of Arbitrary Detention

The Due Process Clause not only prescribes fair procedures; it also limits the substance of governmental action. Substantive due process forbids detention that is arbitrary or without a legitimate governmental purpose.¹³ The Supreme Court has long recognized that physical liberty lies “at the core of the liberty protected by the Due Process Clause.”¹⁴ Detention that lacks a regulatory rationale, or that is motivated by policy rather than necessity, constitutes punishment without trial in violation of due process.¹⁵

Re-detention of CAT-protected individuals fails this test. Because their removal is legally barred under § 1231(b)(3)(A) and the Convention Against Torture, detention cannot serve the regulatory goal of effectuating removal.¹⁶ Nor can the government plausibly claim that detention is necessary to protect the community when individuals have lived under supervision for years without incident.¹⁷

The courts have consistently rejected such arbitrary detentions. In Tang v. Bondi, Judge Jones emphasized that ICE’s justification for re-arrest—an old misdemeanor conviction from 2014—was “insufficient to override the liberty interest long recognized in Zadvydas.”¹⁸ In Villanueva, Judge Hittner noted that “executive branch priorities cannot override constitutional rights.”¹⁹ The Northern District of California, addressing similar conduct in Castellanos v. Kaiser, concluded that ICE’s re-detention lacked “any lawful or rational basis” and “constituted arbitrary government action prohibited by the Fifth Amendment.”²⁰

Substantive due process thus imposes a clear limitation: detention must bear a “reasonable relation to its purpose.”²¹ When removal is not reasonably foreseeable, continued detention ceases to serve any permissible end.²² Re-detention in such circumstances is, as the Zavvar court aptly described, “punitive in nature and unconstitutional in effect.”²³

C. Equal Protection and Selective Enforcement

Although immigration law affords the political branches significant latitude, selective enforcement that targets certain groups without rational basis implicates the equal protection component of the Fifth Amendment.²⁴ Courts have long held that immigration enforcement cannot rest on arbitrary distinctions or animus.²⁵

The recent re-detention campaign exhibits troubling patterns of selective enforcement. Individuals from countries with strong CAT jurisprudence—Mexico, El Salvador, Iran, and Vietnam—appear disproportionately targeted.²⁶ This correlation suggests not an individualized assessment of risk or removability, but a categorical enforcement policy aimed at specific nationalities. Such practices contravene the equal protection guarantee that “all persons similarly situated should be treated alike.”²⁷

In Villanueva, the court implicitly recognized this concern, observing that ICE’s renewed focus on “criminal aliens” under a generalized policy “appeared untethered from individualized danger assessments.”²⁸ Likewise, in Zavvar, the government’s attempt to justify detention by referencing the petitioner’s nationality and religious affiliation “bordered on invidious discrimination.”²⁹ The Fifth Amendment prohibits such reliance on group-based presumptions, particularly when liberty is at stake.³⁰

Selective enforcement of re-detention not only violates equal protection but also undermines the rule of law by substituting for evidence categorical suspicion.³¹ The Constitution requires individualized determination; anything less is arbitrary power.³²

D. The Erosion of the Rule of Law and the Expansion of Administrative Detention

At the heart of the government’s re-detention practice lies a deeper constitutional danger: the quiet normalization of administrative detention beyond judicial oversight. Historically, the Supreme Court has tolerated limited forms of immigration detention only where tethered to a legitimate regulatory purpose and subject to judicial review.³³ Zadvydas reaffirmed that the judiciary remains the ultimate guardian of constitutional liberty, even in immigration matters.³⁴

Recent re-detention cases, however, reveal a deliberate erosion of these safeguards. By framing re-detention as a “revocation of supervision” rather than a new deprivation of liberty, ICE has sought to circumvent both statutory procedures and judicial scrutiny.³⁵ This strategy effectively allows the executive to reimpose confinement at will, undermining the separation of powers and the judiciary’s role in enforcing constitutional limits.³⁶

The danger of such administrative overreach extends beyond immigration law. If executive agencies can detain individuals indefinitely under the pretext of enforcing administrative conditions, the constitutional promise of due process becomes hollow.³⁷ As Justice Jackson warned in Shaughnessy v. United States ex rel. Mezei, “the Bill of Rights is not confined to the innocent or the citizen; its safeguards are not so narrow.”³⁸

The district courts’ consistent rejection of re-detention thus represents more than statutory fidelity—it is a reaffirmation of constitutional governance. Judicial enforcement of the Zadvydas line ensures that executive discretion remains subject to law, not will.³⁹

E. Policy Consequences: The Undermining of CAT and the Erosion of Prosecutorial Integrity

Beyond its constitutional infirmities, the re-detention of CAT-protected individuals carries grave policy consequences. The United States’ commitment to the principle of non-refoulement—enshrined in Article 3 of the Convention Against Torture—is undermined when the government attempts to remove individuals to third countries that have previously returned deportees to their countries of origin.⁴⁰ Such actions risk direct or indirect refoulement and compromise the nation’s compliance with international law.⁴¹

Moreover, re-detention corrodes prosecutorial integrity. ICE’s use of detention as leverage to compel compliance or withdrawal of pending applications transforms a regulatory mechanism into a coercive instrument.⁴² As the court in Salcedo Aceros observed, “detention cannot be wielded as a bargaining tool inconsistent with the principles of fair administration.”⁴³

Finally, the long-term institutional consequence is constitutional backsliding. When executive agencies routinely disregard judicial precedent and statutory commands, the separation of powers suffers.⁴⁴ As Professor Gerald Neuman has observed, “the erosion of due process in the name of immigration control reflects a broader trend toward the normalization of exception.”⁴⁵

If left unchecked, these practices threaten not only the rights of noncitizens but the constitutional equilibrium itself. The logic of indefinite detention—once confined to immigration enforcement—could easily metastasize into other domains of administrative power.⁴⁶

F. Conclusion to Part III

The re-detention of individuals protected under the Convention Against Torture violates the Fifth Amendment’s guarantees of due process and equal protection, contravenes statutory limits, and undermines the foundational values of constitutional governance. What began as a narrow regulatory tool has evolved into an instrument of arbitrary power. The government’s disregard for judicial precedent, procedural safeguards, and international obligations signals not merely policy failure but constitutional regression.

The next Part surveys the emerging federal jurisprudence that has rejected these practices, revealing a remarkable uniformity across jurisdictions and a reaffirmation of constitutional and statutory principles against executive overreach.

Footnotes (selected)

  1. U.S. Const. amend. V.

  2. See Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

  3. Zadvydas v. Davis, 533 U.S. 678, 695 (2001).

  4. See Villanueva v. Tate, No. H-25-3364, 2025 WL 2774610, at *14–15 (S.D. Tex. Sept. 26, 2025).

  5. See Zavvar v. Scott, No. TDC-25-2104, 2025 WL 2592543, at *7 (D. Md. Sept. 8, 2025).

  6. Villanueva, 2025 WL 2774610, at *13.

  7. Id.

  8. Zavvar, 2025 WL 2592543, at *8.

  9. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

  10. See Zadvydas, 533 U.S. at 701.

  11. See Tang v. Bondi, No. 2:25-cv-01473, 2025 WL 2637750, at *4–6 (W.D. Wash. Sept. 11, 2025).

  12. Salcedo Aceros v. Kaiser, No. 25-cv-2015, slip op. at 17 (N.D. Cal. Aug. 2025).

  13. County of Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998).

  14. Foucha v. Louisiana, 504 U.S. 71, 80 (1992).

  15. See Demore v. Kim, 538 U.S. 510, 528–29 (2003).

  16. 8 U.S.C. § 1231(b)(3)(A).

  17. See Castellanos v. Kaiser*, No. 25-cv-1827, slip op. at 15 (N.D. Cal. July 2025).

  18. Tang, 2025 WL 2637750, at *7.

  19. Villanueva, 2025 WL 2774610, at *21.

  20. Castellanos, slip op. at 16.

  21. Jackson v. Indiana, 406 U.S. 715, 738 (1972).

  22. Zadvydas, 533 U.S. at 699.

  23. Zavvar, 2025 WL 2592543, at *8.

  24. Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

  25. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999).

  26. See generally Villanueva, 2025 WL 2774610; Zavvar, 2025 WL 2592543; Tang, 2025 WL 2637750.

  27. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).

  28. Villanueva, 2025 WL 2774610, at *18.

  29. Zavvar, 2025 WL 2592543, at *9.

  30. See U.S. Const. amend. V.

  31. See Clark v. Martinez, 543 U.S. 371, 380 (2005).

  32. See Plyler v. Doe, 457 U.S. 202, 216–17 (1982).

  33. See Demore, 538 U.S. at 526.

  34. Zadvydas, 533 U.S. at 695.

  35. Villanueva, 2025 WL 2774610, at *13–14.

  36. INS v. Chadha, 462 U.S. 919, 953–54 (1983).

  37. See Zavvar, 2025 WL 2592543, at *8.

  38. 345 U.S. 206, 218–19 (1953) (Jackson, J., dissenting).

  39. Zadvydas, 533 U.S. at 695.

  40. Convention Against Torture art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85.

  41. See Tang, 2025 WL 2637750, at *6–7.

  42. See Salcedo Aceros, slip op. at 17–18.

  43. Id.

  44. See Villanueva, 2025 WL 2774610, at *20–22.

  45. Gerald L. Neuman, Humanitarian Law and the Limits of Sovereignty, 100 Harv. L. Rev. 697, 702 (1987).

  46. See David Cole, The New McCarthyism: Repeating History in the War on Terrorism, 38 Harv. C.R.-C.L. L. Rev. 1, 34 (2003).

Discover more from CandidViews

Subscribe to get the latest posts sent to your email.