For the second time, a federal appeals court has backed the Trump administration’s practice of arresting undocumented immigrants inside the United States and then holding them without bond, an aggressive interpretation of immigration law that has filled homeland security detention centers and flooded prosecutors and courtrooms with petitions from detainees.
With federal judges now lining up on both sides of the new policy, the question of its legality may ultimately be decided by the Supreme Court.
In an 11-page split ruling filed on Wednesday, a two-judge majority from the U.S. Court of Appeals for the Eighth Circuit said an undocumented immigrant detained anywhere in the country could still be considered to be “seeking admission” to the United States. For that reason, the immigrant could therefore be detained without bond, as has long been true for those detained at the border. The judges held that the administration could hold a migrant without bond even if he was arrested in Minnesota and had been living in the United States for 20 years.
“Being ‘admitted’ does not merely mean being present in the United States,” they wrote. “Under immigration law, it signifies having made a lawful entry into the country.”
Attorney General Pam Bondi praised the ruling on social media, calling it a “massive court victory” against “Democrats and activist judges.”
The American Immigration Council, one of the groups representing the detainee who brought the case, did not immediately respond to a request for comment.
For months, the Trump administration has been detaining thousands of undocumented immigrants who have been living inside the United States for years, and then holding them in detention centers while they await deportation. That practice differs from previous presidential administrations, which released many detainees on bond so long as the court found they would show up for future hearings and were not a risk to public safety.
The change has prompted harsh criticism from judges across the country. Many have ordered that detainees be released. When the government has failed to do so speedily, some judges have accused the government of violating their orders.
Should the policy continue to win support at the appellate level, it would have major implications for millions of people in the United States who crossed the border illegally years ago. Its legality hangs on whether they can be considered an “applicant for admission” under a law that authorizes detention without bond at the border.
In the District of Minnesota, which is within the Eighth Circuit, judges are dealing with hundreds of petitions from immigrants challenging the basis for their detention.
Wednesday’s opinion was written by Judge Bobby E. Shepherd, an appointee of President George W. Bush, and joined by Leonard Steven Grasz, an appointee of President Trump.
In a dissent, Judge Ralph R. Erickson, another Trump appointee, called the policy “a novel interpretation” of federal law, one that “eluded the courts and five previous presidential administrations.” He noted that with the exception of one D.U.I. conviction, Joaquin Herrera Avila, the petitioner who brought the case, had been living “a law-abiding life” in the United States. The distinction between undocumented immigrants inside the United States and those trying to cross the border had previously been recognized by “five presidential administrations, including the first Trump administration,” he added.
The majority’s reasoning had echoes of an earlier ruling from three judges for the U.S. Court of Appeals for the Fifth Circuit, which also found the policy to be legal. On Monday, lawyers representing the detainee in that case asked the court to rehear it with a larger panel.
But not every appeals court to consider the policy has signed off on it. A preliminary ruling in December from the U.S. Court of Appeals for the Seventh Circuit found that the longstanding practice of treating undocumented immigrants and migrants at the border differently was likely to be the correct one under the law.
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