There are so many twists and turns in the legal battles over immigration and detention that it’s sometimes hard to sort out which rulings are truly significant and which are minor skirmishes in the larger legal battle playing out across the length and breadth of federal courts.
On Friday, however, the stakes were clear. Two judges from the United States Court of Appeals for the Fifth Circuit issued a ruling that, if allowed to stand, could result in the indefinite detention of millions of immigrants in inhumane, overcrowded facilities scattered across the United States.
Even worse, these indefinite detentions are in civil proceedings, not criminal, meaning that the people under lock and key are not serving prison sentences for criminal offenses. It’s as if we’re throwing people into overcrowded jails for the legal equivalent of failing to pay a credit-card bill or losing a lawsuit — immigration detention as the new debtors’ prison.
Even worse still, we are subjecting human beings to extended confinement in detention facilities that — if human rights groups, detainees and whistle-blowers are to be believed — are often not up to the standards of America’s prisons or jails. They aren’t even up to the standards we set in my regiment for detaining suspected insurgents in Iraq.
Here is how this unfolded. Last year, the Trump administration changed roughly 30 years of bipartisan consensus about the interpretation and interaction of two sections of the 1996 amendment to the Immigration and Nationality Act. The effect of the change would sharply increase immigrant detentions in the United States.
The first section, 8 U.S.C. Section 1225, says, “In the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained.”
An “applicant for admission” under this section is quite broadly defined as “An alien present in the United States who has not been admitted or who arrives in the United States.” In other words, every undocumented alien in America is conceivably an “applicant for admission.”
Crucially, Section 1225 does not contain a provision for posting a bond. A bond is payment of money in exchange for a release from detention and a binding order to show up for future proceedings. In this context, a bond is very much like posting bail in a criminal case. With no bond available, that means you’re stuck in detention until your case is complete — however long that takes.
But the statute doesn’t require detention of every “applicant for admission.” Instead, it says that an “alien seeking admission” shall be detained. So, what is the difference between an “applicant for admission” and an “alien seeking admission”? Is there one?
The second section in question, 8 U.S.C. Section 1226, provides additional context. It says, “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” This statute, however, permits the attorney general to release the “alien” on a “bond of at least $1,500,” provided, generally, that they are not criminals or terrorists.
How do you harmonize the two statutes? When is an alien required to be detained and when is a bond acceptable?
For roughly 30 years, Republican and Democratic presidents have been in agreement, including during Trump’s first term. Section 1225 applies to people who have crossed the border and are seeking to enter the country. Section 1226 applies to the aliens who are already here. In other words, if you’re crossing the border, you’re not eligible for a bond. If you’re already here, then you are.
The reason for the different treatment is found in the phrase “alien seeking admission.” Dale Ho, a federal judge in the Southern District of New York, put it like this: “Someone who enters a movie theater without purchasing a ticket and then proceeds to sit through the first few minutes of a film would not ordinarily then be described as ‘seeking admission’ to the theater.” They’re not “seeking admission.” They are already in.
Or, as the Supreme Court described it in a 2018 case called Jennings v. Rodriguez, “U. S. immigration law authorizes the Government to detain certain aliens seeking admission into the country under §§1225(b)(1) and (b)(2). It also authorizes the government to detain certain aliens already in the country, pending the outcome of removal proceedings under §§1226(a) and (c).”
This distinction makes a great deal of sense. Aliens (the term used in the statute) who are entering the country can be subject to expedited removal, and it makes little sense to release an alien who is set to be deported in days.
But once you’re in the country, perhaps working at a job or supporting a family, the injustice of prolonged detention is obvious — especially since the removal proceeding itself isn’t criminal.
That’s why Republican and Democratic presidents alike have adopted this interpretation of the law — until President Trump’s second term.
The Trump administration now argues that the terms “applicant for admission” and “alien seeking admission” have the same meaning, and thus any applicant for admission must be detained until their legal proceedings are complete.
U.S. District Courts have rejected this argument en masse. As Politico’s Kyle Cheney reported last week, “At least 360 judges rejected the expanded detention strategy — in more than 3,000 cases — while just 27 backed it in about 130 cases.”
But now a divided Fifth Circuit panel has taken the minority view. Judges Edith Jones and Kyle Duncan adopted the administration’s reasoning and would deny access to bond even for otherwise law-abiding immigrants who’ve been living and working in the United States for years.
In this view, Section 1226 — the section that permits bond — becomes much more narrow, applying to a much smaller slice of the immigrant population. If their view is affirmed, then Americans should prepare for the indefinite, mass detention of immigrants on a scale that we can scarcely comprehend.
Judge Dana Douglas dissented. The Congress that passed the relevant portions of the statute, she wrote, “would be surprised to learn it had also required the detention without bond of two million people.”
That’s roughly the number of people who’d entered without inspection living in the United States in 1996, when the laws were passed. Now the number is much larger. The sheer size and scope of the potential detentions boggle the mind.
The administration, however, seems eager to detain as many people as it can. ICE is spending vast sums of money to purchase “mega warehouses” that it’s transforming into detention centers that could potentially hold thousands more people than the largest federal prisons in the United States.
Sadly, the conditions in these detention facilities can be grim. It’s hard to have a clear picture of the conditions, given the tightly controlled access to Trump’s detention facilities, but even so, there is overwhelming evidence that many immigrants are held in terrible, dangerous conditions.
I’d urge you to read my colleague Jamelle Bouie’s chilling Jan. 24 newsletter describing the extraordinary reports of abusive, unsanitary and dangerous conditions at ICE detention facilities.
To take just one example from Jamelle’s newsletter, the American Civil Liberties Union, along with other human rights groups, wrote that detained immigrants at a camp at Fort Bliss in El Paso, Texas, “are held for weeks at a time with no access to the outdoors in cramped, squalid soft-sided tents with 72 people per unit, where toilets and showers flood eating areas with raw sewage.”
In July, Americans for Immigrant Justice, Human Rights Watch and Sanctuary of the South, an immigrant rights group, released a report on conditions in three Florida detention facilities, which said that immigrants are subject to “conditions that flagrantly violate international human rights standards and the United States government’s own immigration detention standards.”
A viral video from an ICE detention facility in Baltimore showed extreme overcrowding, with detainees lying side-by-side, covered only by foil blankets. A whistle-blower who worked at the facility said he “saw people lying in feces. People throwing up, people lying in urine.”
On Monday, The Irish Times reported on the plight of an Irish man named Seamus Culleton, who has been living in the United States for more than 15 years, has a valid work permit and is applying for a Green Card. He was sent to a facility in El Paso, Texas. He said the place is “like a concentration camp, absolute hell.”
Culleton told The Irish Times that “he has been locked in the same large, cold and damp room for four and a half months with more than 70 men” and that “he has been allowed outside for air and exercise fewer than a dozen times in nearly five months.”
This is a small fraction of the reports of dreadful, abusive conditions at ICE facilities across the country. And the Trump administration wants to flood even more people into an already overcrowded and strained system — leaving them without hope of release until an overloaded legal system is finally able to adjudicate their case.
The Eighth Amendment to the Constitution is one sentence long: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This single sentence is a pillar of the American constitutional commitment to fundamental human rights.
Tragically, there is now considerable evidence that the administration is violating the Eighth Amendment at scale. We don’t deny bail to criminals who aren’t a flight risk, aren’t missing court dates, or who pose no serious danger to their communities. We let them out while they await trial.
Yet the Trump administration wants to take law-abiding, undocumented immigrants, including immigrant families with young children, and toss them into camps until their cases are complete.
Again, I cannot emphasize enough the fact that these detentions are not criminal. There are thousands upon thousands of immigrants facing brutal conditions who’ve been convicted of no crime and haven’t even been accused of a crime beyond their initial alleged illegal entry.
People who overstay their visas aren’t guilty of any crime at all, since their original entry is lawful. Even if immigrants entered illegally, that’s a misdemeanor for a first offense, and we do not imprison people indefinitely in miserable conditions for committing misdemeanors — or at least we didn’t.
But there is a method to the madness. Mass detention and brutal mistreatment send a message to the rest of the world — this is what happens if you’re in the United States without documentation. Even if you’re seeking asylum. Even if you’ve been here for years as a law-abiding, productive member of your community.
Critics of the administration should be clear, however, that disagreeing with its approach to immigration detention and enforcement does not mean endorsing open borders. It does not mean halting deportations of people unlawfully present in the United States.
Previous presidents, both Republican and Democratic, have deported millions of undocumented immigrants without systematically violating their rights. And in a different timeline, Trump could be riding high simply by securing the border and conducting regular deportation proceedings in a way that respects the human rights and dignity of each and every person within our borders — just as the Constitution requires.
But that is not what the administration is doing. It’s procuring a series of detention facilities that are concentration camps in all but name. And now, thanks to a decision by the Fifth Circuit, it possesses new legal support for a campaign of retribution and punishment that should shock the American conscience.
The Trump administration got the ruling it wanted from the Fifth Circuit. It may not fare so well at the Supreme Court. A series of recent Supreme Court decisions has narrowed the executive branch’s ability to reinterpret federal statutes and gives me some degree of hope.
But the court’s view of executive authority is in flux — for one thing, we are still waiting on the outcome of the tariff case — and we cannot confidently predict the outcome. Whatever happens, we cannot be complacent. Unless and until the Supreme Court takes up and decides the case (and overturns the ruling), thousands upon thousands of people will languish, unjustly, in the squalor and filth that is the product of MAGA’s negligence, incompetence and hate.
Some other things I did
On Sunday, I did something a bit different. I had just watched a magnificent movie called “The Testament of Ann Lee” — the leader of an obscure religious sect called the Shakers. Lee came to America for religious freedom but encountered brutal persecution. The movie was a beautiful portrayal of hope and faith, and it moved me to tears:
Hours after the movie, I finally realized why I had tears in my eyes. In the final scene, you see Lee’s plain wooden casket sitting alone under a painting of a beautiful tree.
In that moment, you could clearly see the gap between American hope and American reality. And I was reminded of one of George Washington’s favorite Bible verses, Micah 4:4 — “Everyone will sit under their own vine and under their own fig tree, and no one will make them afraid.” In his writings, Washington referred to it almost 50 times.
The verse is so prominent in Washington’s life that Lin-Manuel Miranda used it as part of the theme of his song “One Last Time,” in which Washington quotes that verse and declares that he wants everyone to be “safe in the nation we’ve made.”
Washington referred to that verse most famously when writing to the Hebrew Congregation of Newport, R.I. Assuring them of their liberty in this new nation, he wrote, “May the Children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.”
What a beautiful expression of American pluralism and religious tolerance. Our nation is not a place — it never will be a place — where we all agree with one another, much less look like one another, or even come from a common culture. But we can live together as neighbors as long as we recognize one another’s inherent dignity and worth.
On Monday, we published a round table discussion of the Super Bowl, with my colleagues Stephen Stromberg, Michelle Cottle and Carlos Lozada. We discussed the game, the halftime show, and anything else that was on our mind. As for that halftime show, here were my thoughts:
I loved the show. Heck, conservatives didn’t have to turn to Turning Point USA. Bad Bunny gave them a (real!) wedding, a tribute to hard work and patriotism. He ended with a declaration that the only thing more powerful than hate is love. I don’t know how often Elmo is quoted in The Times, but after the show the “Sesame Street” character said we might need to start referring to Benito as Good Bunny. I don’t know much about his music — Gen X-er here — but that was a delightful performance.
Finally, my Saturday round table with Jamelle and Michelle Cottle focused on the security of the midterm elections. I’m hopeful and concerned at the same time:
I think No. 1 — and this is hopeful — it is very difficult to hack an American election on a nationwide basis. It’s really, really hard, and that is because of the decentralization. So, when Trump says we need to centralize or nationalize, what he’s wanting to do is break through some of these firewalls if he possibly can.
But my concern is you have a cohort in the administration that is not backward-looking the way Trump is. It’s very forward-looking. So, I’m very concerned about the MAGA apparatus. I’m less concerned about Trump, the puppet master.
I think Jamelle’s 100 percent right — Trump’s obsessed still with 2020, he’s obsessed. But the Steve Bannons, the Stephen Millers, they have a generational project and I don’t think that they want to see their generational project go up in flames after two years, after 2024.
So, I think there will be every effort made that they can get away with to try on the front end to suppress the vote — and this is where ICE comes in.
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