The 5th U.S. Circuit Court of Appeals ruled on Thursday that U.S. Immigration and Customs Enforcement cannot detain people for more than 90 days under the Trump administration’s mass detention policy without providing them a chance to be released on bond. The 2-1 decision by the New Orleans-based court could affect thousands of individuals detained in states within its jurisdiction, including Texas and Louisiana, as part of President Donald Trump’s immigration crackdown.
Background of the Ruling
A different panel of the same court had earlier endorsed the Trump administration’s interpretation of a federal immigration statute allowing mandatory detention of non-citizens living in the United States. However, that February ruling did not address whether the due process protections of the Fifth Amendment require those migrants to be given a bond hearing before an immigration judge.
U.S. Circuit Judge Leslie Southwick, appointed by Republican President George W. Bush, wrote for the majority. He cited the 2001 U.S. Supreme Court decision that the due process clause protects everyone, including the two Mexican citizens and one Honduran whose cases were before the 5th Circuit. “It is part of the historic majesty of this long-ago founding charter that it makes no exceptions in providing basic rights to those within our boundaries, including a right to be heard when personal liberty is taken,” Southwick wrote.
Dissenting Opinion
U.S. Circuit Judge Cory Wilson, a Trump appointee, dissented, stating that “the majority marginalizes the Constitution’s express grant of plenary authority over immigration matters to Congress.”
Reactions and Implications
Rebecca Cassler, a lawyer for the migrants at the American Immigration Council, said in a statement that they “are delighted that the panel recognized the core constitutional principle that the due process clause does not allow the government to lock them away indefinitely.” The U.S. Department of Homeland Security, which oversees ICE, did not respond to a request for comment.
Under federal immigration law, “applicants for admission” to the United States are subject to mandatory detention while their cases proceed in immigration courts and are ineligible for bond hearings. The Department of Homeland Security last year took the position that non-citizens already residing in the United States, not just people arriving at the border, qualify as “applicants for admission.” The Board of Immigration Appeals adopted this interpretation in September, leading immigration judges nationwide to order mandatory detention.
The federal appeals courts are divided on the correctness of this interpretation, prompting the Trump administration last week to ask the Supreme Court to resolve the issue.
