This Note grapples with the question of how to protect immigrants’ rights in detention given the Eighth Amendment’s inapplicability to this “civil” context. As an avenue for incorporating Eighth Amendment standards to immigration detention, and thus securing heightened protections for detained immigrants, this Note looks to the Detainee Treatment Act of 2005 (DTA). Through a close analysis of the statute’s text, this Note argue that the DTA, which tracks Eighth Amendment language and affords the same protections as those recognized by the Eighth Amendment, applies to immigrants in detention. As a case study for and application of this proposition, this Note also argues that, under the DTA, subjecting asylum seekers in immigration detention to solitary confinement breaches Eighth Amendment standards and is thus prohibited by the DTA. This Note thus provides two distinct—albeit interrelated—and novel contributions to legal scholarship. First, it engages in the first extensive statutory interpretation of the DTA within the context of immigration detention. Second, it brings together Eighth Amendment scholarship and immigrants’ rights by proposing that the protections afforded by the prohibition against “wanton and unnecessary infliction of pain” can be invoked in the context of immigration detention.
