Six federal appeals judges rebuked colleagues appointed by President Donald Trump who backed his administration’s push to detain immigrants without bond, calling one colleague’s argument “incorrect and extreme.”
The rebuke came Friday in an opinion backing the full U.S. Court of Appeals for the Second Circuit’s decision not to rehear the case of an immigrant who was detained by Immigration and Customs Enforcement without a bond hearing, court records show.
Judges Joseph F. Bianco, a Trump appointee, and Alison J. Nathan wrote the opinion, joined by Judges Eunice C. Lee, Beth Robinson, Myrna Pérez and Sarah A. L. Merriam.
The case involves Ricardo Aparecido Barbosa da Cunha, who entered the United States unlawfully more than two decades ago and has lived here ever since, Bianco and Nathan wrote. The Trump administration argued that he must be detained without a bond hearing.
Friday’s action leaves in place a ruling from a three-judge panel that included Bianco, Nathan, and Senior Judge José A. Cabranes, who rejected that argument in April, according to the opinion, which called the government’s position a “fanciful contention.”
“[F]ifteen Congresses stood silently by as five presidents ignored the plain text of the statute,” Cabranes wrote in the April ruling, a passage Bianco and Nathan quoted Friday. “Immigration officials also failed to grasp that Congress had told them to round up people by the millions.”
Judge Steven J. Menashi, a Trump appointee, argued in a dissent that the law requires detaining immigrants like Barbosa da Cunha without bond. Judge Michael H. Park, another Trump appointee, joined parts of the dissent.
Menashi also argued that the lower court had no power to order a bond hearing through habeas corpus, the legal process people use to challenge their detention, because Barbosa da Cunha sought a hearing rather than release. Park did not join that section of the dissent.
“One would not know from reading Judge Menashi’s dissent that this statutory question was the sole question presented by the appeal,” Bianco and Nathan wrote, referring to whether the law required his detention.
“Setting aside that this argument was not raised or briefed—which is reason enough to deny en banc review—the dissent’s argument is incorrect and extreme,” the judges continued, addressing the habeas claim.
“That is a drastic view that not even the government has advanced in this case,” Bianco and Nathan wrote of Menashi’s position that nine appeals courts and hundreds of lower courts had no authority to grant such relief.
The judges also applied language from the April ruling to the dissent, writing that its “attempt to muddy these textually clear waters defies the statute’s context, structure, history, and purpose.”
Judge Matthew A. Schwartz, a Trump appointee whom the Senate confirmed in July, took the unusual step of advising how his Attorney General, Todd Blanche, could implement the no-bond policy in a separate dissent. Judge Richard J. Sullivan, also a Trump appointee, joined him.
Schwartz was representing Trump in the appeal of his New York hush money conviction when Trump nominated him in April, Bloomberg Law reported.
“We do not address the novel and unrelated contentions raised by Judge Schwartz in his concurrence in the denial of rehearing en banc,” Bianco and Nathan wrote in a footnote. “It is not the role of judges to advise the government as to its ‘options to reduce prejudice to its position.’”
The Second Circuit is one of nine federal appeals courts to rule against the policy, including the Fourth Circuit on Sept. 10, according to the American Civil Liberties Union, whose lawyers represent Barbosa da Cunha, according to court records. The Fifth and Eighth circuits have sided with the government, Menashi wrote.
“The courts have resoundingly rejected the administration’s cruel policy and its blatant disrespect for the rule of law,” My Khanh Ngo, a senior staff attorney with the ACLU’s Immigrants’ Rights Project, said after the Fourth Circuit ruling.
“The Court has it right: ‘Mass detention of marginalized individuals without due process harkens back to some of the darkest moments in our country’s history… Those shameful and abhorrent past detentions were limited in scope in comparison to’ what the Government asked for in this case. We are thrilled that the Court declined to expand mandatory detention to millions of people,” said Sarah Pitney, a lawyer for Oscar Lopez Garcia in the Fourth Circuit case.
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