BETWEEN INSTITUTIONAL SURVIVAL AND HUMAN RIGHTS PROTECTION: ADJUDICATING LANDMARK CASES OF AFRICAN UNDOCUMENTED ENTRANTS IN ISRAEL IN A COMPARATIVE AND INTERNATIONAL CONTEXT

States compare asylum and immigration policies with one another. The Israeli immigration and asylum regime influenced American law, and was also directly influenced by it. This Article offers the most comprehensive analysis to date of the Israeli case law on the rights of undocumented entrants, at the core of which is a series of cases on immigration detention. Three times within a two year period, the Israeli Supreme Court invalidated immigration detention laws and the legislature complied with increasing frustration. Our argument is that although the Court courageously protected the undocumented entrants' rights, it also resorted to strategic ambiguity as a means of institutional survival in light of legislative threats to incorporate a general legislative override clause and executive attempts to "pack" the Court with conservative justices through appointments. This high-stakes dialogue is unprecedented in the Israeli context and uncommon in comparative law. We argue that courts must not only protect the constitutional and international human rights of undocumented entrants, but also bring the political branches to accountability. They should force states to conduct refugee status determinations in a timely manner rather than be satisfied with temporary protection regimes. They should further recognize that rights may accumulate as a result of a prolonged presence of an undocumented entrant in a country. The Article discusses the Israeli judicial techniques used to reduce the conflict with the representative branches, including the use of constitutional avoidance and comparative law, and juxtaposes them with the American approach evident in Zadvydas v. Davis and Jennings v. Rodriguez. The harsh implications of a policy that leaves people in an indeterminate state of mere protection from removal are manifest in the Israeli story and should serve as a warning to the U.S. courts as they formulate their reaction to the recent asylum ban.