The Constitution does not guarantee undocumented immigrants a bond hearing when they are detained, a federal appeals court with jurisdiction over some of the largest federal immigration detention centers ruled on Friday.
The ruling closes the main legal avenue that judges in three Southern states have used to free migrants who have filed petitions challenging the legality of their detentions.
The U.S. Court of Appeals for the Fifth Circuit, which hears cases originating in Texas, Louisiana and Mississippi, was among the courts that had backed the Trump administration’s claim that federal law allowed it to indefinitely detain undocumented immigrants, even those who had lived and worked in the United States for years.
That policy is a departure from the practices of previous administrations, when such migrants generally had the opportunity to persuade a judge to release them if they were not a flight risk or a danger to the public.
But until earlier this year, some migrants had success arguing that their detentions violated the Fifth Amendment, which requires due process.
District court judges across the country have freed hundreds of migrants, citing the Constitution. The Fifth Circuit in July temporarily blocked the constitutional basis for granting migrant petitions, after agreeing to reconsider the cases of the three men for which it issued a final ruling on Friday.
The Supreme Court has already agreed to consider whether the Trump administration’s indefinite detention policy is permissible under federal law, a question that has divided appellate courts. Friday’s ruling makes it more likely that the Supreme Court addresses whether detained undocumented immigrants have a constitutional right to a bond hearing.
In an opinion from a 10-member majority of the 17 active judges of the Fifth Circuit, Judge Cory T. Wilson, a Trump appointee, wrote that because the three petitioners in the case were still “seeking admission to the United States,” they were not entitled to hearings on due process grounds.
The migrants’ argument that their detention violated the Fifth Amendment’s guarantee to “liberty” was framed at “too high a level of abstraction” and was “doubtful,” because Congress holds the exclusive power to make the rules that govern the border, Judge Wilson added. If the petitioners in the case wanted “to be free from physical restraint in the most abstract sense,” he wrote, “they can do so at any time by agreeing to leave the country.”
The three detainees had come to the United States from Mexico and Honduras, according to legal filings. All have children who are U.S. citizens. They were each detained by ICE following traffic stops. One, Ignacio Sosnava Rodriguez, had been living in the United States for more than 22 years, according to the filings.
One dissent, written by Judge Leslie H. Southwick, a George W. Bush appointee, and joined by five other judges, argued that the majority had “constructed an impenetrable wall between the Constitution and these long-term residents, a wall not designed, recognized or even suggested by the Supreme Court.” Judge Southwick wrote that there was a significant difference between those arriving at the border and longtime residents, and that “the tradition for aliens living in the interior has been release on bond unless the government shows danger or flight risk.”
The intensity of the court’s disagreement spilled over into typography. In a second dissent joined by four other judges, Judge Dana M. Douglas, a Biden appointee, put the words “I respectfully dissent” in boldface. A third dissent, signed by Judge Stephen A. Higginson, an Obama appointee, and joined by five other judges, concludes with the word “dissent” in all capital letters.
James Percival, the top lawyer at the Department of Homeland Security, hailed the ruling on social media as a “big win.”
Brian R. Frazelle, the deputy chief counsel of the Constitutional Accountability Center, which filed friend-of-the-court briefs arguing the petitioners’ side, said in a statement that the ruling was “a sadly predictable result.”
“Fortunately, the Fifth Circuit’s decision won’t be the last word on this subject,” he added.
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