A divided federal appellate panel ruled Friday in favor of the Trump administration’s policy of locking up most undocumented immigrants without bond, a decision that legal experts called a serious blow to due process.
A three-judge panel of the right-wing 5th US Circuit Court of Appeals in New Orleans ruled 2-1 that President Donald Trump’s reversal of three decades of practice by previous administrations is legally sound under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The ruling reverses two lower court orders.
“The text [of the IIRIRA] says what it says, regardless of the decisions of prior administrations,” Judge Edith Jones—an appointee of former President Ronald Reagan—wrote for the majority. “That prior administrations decided to use less than their full enforcement authority… does not mean they lacked the authority to do more.”
Writing in dissent, Judge Dana M. Douglas, who was appointed by former President Joe Biden, asserted that “the Congress that passed IIRIRA would be surprised to learn it had also required the detention without bond of two million people. For almost 30 years there was no sign anyone thought it had done so, and nothing in the congressional record or the history of the statute’s enforcement suggests that it did.”
“Nonetheless, the government today asserts the authority and mandate to detain millions of noncitizens in the interior, some of them present here for decades, on the same terms as if they were apprehended at the border,” Douglas added. “No matter that this newly discovered mandate arrives without historical precedent, and in the teeth of one of the core distinctions of immigration law. The overwhelming majority elsewhere have recognized that the government’s position is totally unsupported.”
Past administration generally allowed unauthorized immigrants who had lived in the United States for years to attend bond hearings, at which they had a chance to argue before immigration judges that they posed no flight risk and should be permitted to contest their deportation without detention.
Mandatory detention by US Immigration and Customs Enforcement (ICE) was generally reserved for convicted criminals or people who recently entered the country illegally.
However, the Trump administration contends that anyone who entered the United States without authorization at any time can be detained pending deportation, with limited discretionary exceptions for humanitarian or public interest cases. As a result, immigrants who have lived in the US for years or even decades are being detained indefinitely, even if they have no criminal records.
According to a POLITICO analysis, more than 360 judges across the country—including dozens of Trump appointees—have rejected the administration’s interpretation of ICE’s detention power, while just 26 sided with the administration.
While US Attorney General Pam Bondi hailed Friday’s ruling as a “significant blow against activist judges who have been undermining our efforts to make America safe again at every turn,” some legal experts said the decision erodes constitutional rights.
“AWFUL news for due process,” American Immigration Council senior fellow Aaron Reichlin-Melnick said on social media in response to Friday’s ruling. “This decision will wipe out the availability of release through bond for tens of thousands of people detained in or transported to Texas, Louisiana, and Mississippi by ICE.”
While Friday’s ruling only applies to those three states, which fall under the 5th Circuit Court’s jurisdiction, there are numerous legal challenges to the administration’s detention policy in courts across the country.
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