The federal government’s authority to detain aliens pending removal is among the oldest and most settled exercises of sovereignty in the American constitutional order. The Framers placed the naturalization power — and with it, by necessary implication, the authority to regulate the admission and removal of foreigners — in the hands of the national government because the new Union could not survive thirteen state-level immigration regimes or thirteen answers to the question of who stood under its protection. This Court has affirmed the breadth of that authority in terms that admit of little qualification. “The United States, as incident to its sovereignty,” Justice Reed wrote for the Court in a 1950 decision upholding the Attorney General’s wartime detention of an enemy alien’s wife, “has the power to exclude aliens altogether.” The plenary power doctrine, affirmed in Knauff v. Shaughnessy and reaffirmed in Harisiades v. Shaughnessy two years later, has been a cornerstone of federal immigration jurisdiction for three-quarters of a century.
The statutory architecture is precise. Under § 235(b) of the Immigration and Nationality Act, the Department of Homeland Security is required to detain certain categories of arriving aliens. Under § 236(c), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the Secretary must detain criminal aliens during their removal proceedings. Under § 241(a), the government may detain aliens subject to a final removal order for the period necessary to effect removal. The framework is mandatory, not discretionary; the magistrate does not choose whether to house the alien, but only how.
The present administration has determined that the present volume of removals requires additional capacity. The Department of Homeland Security has spent approximately one billion dollars in recent months acquiring warehouses for conversion into detention centers, with plans to hold up to ten thousand persons at a single site. In Social Circle, Georgia — a small town of nineteenth-century storefronts and surrounding cattle and horse farms in Walton County, a county that voted approximately seventy-five percent for the present administration — the federal government purchased a warehouse in early February for one hundred twenty-eight million dollars, nearly five times its assessed value of twenty-nine million dollars the prior year. The plans would have tripled the town’s population, putting its drinking water and sewer systems beyond their design capacity. The city manager shut off water service to the warehouse in February as the controversy took hold. The town filed suit, becoming the first small municipality to challenge a detention facility under a novel legal theory. In early June the Department of Homeland Security, under its new director Markwayne Mullin, cancelled the Social Circle plans. The cancellation was one of seven such reversals around the country, part of a broader pullback from the warehouse-acquisition program.
The order has its procedural protections. The detained alien is entitled to a hearing before an immigration judge under § 240 of the Act, with the right to counsel, the right to present evidence, and the right to appeal. Removal orders are the product of an adversarial process with documentary review. The lawful authority of the federal government to acquire property and to contract for detention services is not in question. The question in Social Circle was whether the town would permit the exercise of that authority within its borders, and the town has answered that it would not.
While the federal magistrate houses the alien, the house in Dallas adds another line to its ledger.
Mohommad Nazeer Paktyawal was forty-one years old. He was the father of six children. For ten years he had served alongside American special forces in Afghanistan — a decade of joint patrols in the mountains, joint risk of roadside bombs and ambushes, and a trust placed in him by the uniformed men of the United States that his life was owed to their mission. He came under the custody of the United States government through United States Immigration and Customs Enforcement at a detention facility in Dallas. Within twenty-four hours, he was dead.
During a medical intake examination conducted by ICE personnel, Mr. Paktyawal developed shortness of breath and chest pain. His tongue swelled. The airway that the examining officer needed to keep open was closing under the pressure of the edema. ICE staff performed cardiopulmonary resuscitation. The chest was compressed, again and again. Air was forced into the lungs. The cycle was repeated. At 9:10 a.m. Central Time, the attending officer pronounced him dead. The Dallas County Medical Examiner’s office has not yet released a cause of death.
After his death, the agency that held him described him in its press materials as a “criminal.” He had no convictions. Shawn VanDiver, the founder of #AfghanEvac, the organization that worked to evacuate Afghan allies after the 2021 American withdrawal, called the characterization “damage control.” Mr. Paktyawal had stood beside American soldiers in a decade of war. The United States government took him into its custody in a room in Dallas. His tongue swelled. The staff pumped his chest. The medical examiner was called. At 9:10 in the morning, the officer recorded that Mohommad Nazeer Paktyawal was no longer among the living.
The ledger is not closed with him. From October 1 of the prior year through January 6 of the present year, Immigration and Customs Enforcement reported fourteen deaths in custody — a pace sufficient, if continued over the full immigration year, to exceed the prior twelve-month total of twenty-four deaths. In fiscal year 2024 the agency reported twelve deaths in custody. In the three years before that, the agency reported twelve deaths in custody, combined. The death rate inside the magistrate’s house has more than tripled in two years.
A broader investigation by the Associated Press counted at least ten suicides of ICE detainees between January 2025 and the time of reporting. In the years before, the rate was approximately one suicide per year, and in some years zero. Nine of the ten suicides were by Hispanic men. Their average age was thirty-two. Most died within a month of entering detention. They hanged themselves in their cells. They hanged themselves with bedsheets twisted into nooses and tied to the bunks or the bars or the plumbing fixtures of the rooms in which the magistrate’s house had placed them. Most of those who die by their own hand die within that month. The agency reports the deaths in its press releases. The press release calls the dead man a criminal, or calls him a danger to the community, or calls him an enforcement priority. The next intake arrives. The medical examination begins again.
The magistrate houses the alien. The alien dies in the house. The house adds another line to its ledger. The line moves down the page, and the next line is written above it, and the housing goes on.
The covenant has always distinguished between those within and those without. The book of Ezra read the foreign wives out of the returned community and called the act faithfulness to the Lord. The book of Nehemiah read the foreigner out of the assembly of God and called it obedience to the law. The apostle, standing in the Areopagus, declared that God “hath made of one blood all nations of men for to dwell on all the face of the earth, and hath determined the times before appointed, and the bounds of their habitation” — that the nations were assigned their places, and the places were not to be confused, and the line between within and without was not to be redrawn by men.
The American constitutional order inherits this distinction under another name. The Framers did not invent the magistrate’s authority over the alien; they recognized it as an incident of national sovereignty, the same sovereignty under which any nation determines who shall cross its border and who shall be sent back across it. The detainee in the magistrate’s house is not within the covenant of American citizenship. He is not within the protection of the Constitution’s full membership. He stands, in the language of the plenary power cases, under the political branch’s authority to admit or to remove, and the authority is not bound by the standards that govern the magistrate’s conduct toward those within the household.
Mohommad Nazeer Paktyawal served alongside American soldiers for a decade. The service does not enter him into the covenant. A decade of joint patrols in the mountains of Afghanistan does not transfer a man into the membership of the American people. The magistrate’s house does not convert the alien by the length of his service to our arms. His tongue swelled. The chest failed. The medical examiner was summoned. The agency that held him wrote his name as a criminal in its press release, because the case before it was the case of an alien in custody, and the alien in custody was, by the order of the covenant, not one of ours.
The Afghan who stood beside our troops is not, on that account, within the covenant. The Mexican who crossed the river is not, on that account, within the covenant. The Salvadoran who fled the gang is not, on that account, within the covenant. The Cuban who came on the raft is not, on that account, within the covenant. The house holds each in turn. The house records each death, when it comes, in its press release. The bounds of their habitation close around them, and the line between within and without holds.
The order does not record the dead man’s service. The order records the dead man’s custody. The order will process the next case. The order will hold the next alien. The order will write the next press release when the next death comes, and the press release will name the dead man as the order names all who die in its keeping, and the line between within and without will not move.
Judas I Mather is a fictional antagonist in Main Street Independent’s editorial architecture — a religious-legalist heteronym voiced from inside the machinery that fuses Scripture, constitutional doctrine, and hierarchy. The positions this column expresses are NOT the publication’s positions; they are rendered sincerely and accurately as satire so the reader can see the betrayal at work. Nothing here is an endorsement.