Trump administration cannot hold migrants without bond hearings past 90 days, court rules
By Nate Raymond
July 2 (Reuters) – U.S. Immigration and Customs Enforcement cannot detain people for more than 90 days without being given a chance for bail under the Trump administration’s mass detention policy, a divided U.S. appeals court ruled on Thursday.
The decision by a 2-1 panel of the New Orleans-based 5th U.S. Circuit Court of Appeals could affect thousands of people detained in states within its jurisdiction, including Texas and Louisiana, as part of President Donald Trump’s crackdown on immigrants.
A different panel of the same court had become the first to adopt the Trump administration’s new interpretation of federal immigration law to allow mandatory detention of noncitizens living in the United States.
But the February ruling did not address whether due process protections in the Fifth Amendment to the U.S. Constitution require those same immigrants be given the chance to seek release by appearing before an immigration judge for a bail hearing.
U.S. Circuit Judge Leslie Southwick, writing for the majority in Thursday’s opinion, said the U.S. Supreme Court made clear in 2001 that the due process clause protects everyone, including two Mexican nationals and a Honduran whose cases are before the 5th Circuit.
“It is part of the historic majesty of this long-standing charter that it makes no exceptions in providing basic rights to people within our borders, including the right to be heard when civil liberties are taken,” Southwick, who was appointed by Republican President George W. Bush, wrote.
U.S. Circuit Judge Cory Wilson, a Trump appointee, dissented, saying the “majority marginalizes the Constitution’s grant of express plenary authority to Congress on immigration matters.”
Rebecca Cassler, an attorney for immigrants at the American Immigration Council, said in a statement that they were “pleased that the panel recognized the basic constitutional principle that the due process clause does not allow the government to indefinitely imprison them.”
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.
Challenging its long-standing interpretation of immigration law, the U.S. Department of Homeland Security last year took the position that noncitizens already residing in the U.S., not just those arriving at the border, qualify as “admission applicants” subject to mandatory detention.
The Justice Department’s Board of Immigration Appeals issued a decision adopting this interpretation in September. As a result, immigration judges employed by the department across the country began issuing mandatory detention orders.
Federal appeals courts are divided on whether this interpretation of the law is correct, leading the Trump administration to ask the Supreme Court last week to resolve the issue.
(Reporting by Nate Raymond in Boston; Editing by Aurora Ellis)
