Trump administration cannot hold migrants without bond hearings past 90 days, court rules

By Nate Raymond

July 2 (Reuters) – A divided U.S. appeals court on Thursday restricted the Trump administration’s ability to subject thousands of immigrants to mandatory detention while their deportation proceedings are pending, saying they cannot be held past 90 days unless they are granted a hearing to seek release on bond.

The ruling by a 2-1 panel of the New Orleans-based 5th U.S. Circuit Court of Appeals could affect thousands of individuals who have been detained by U.S. Immigration and Customs Enforcement in states within the court’s jurisdiction, including Texas and Louisiana, as part of President Donald Trump’s immigration crackdown.

A different panel of the same court had been the first in the nation to endorse the Trump administration’s novel interpretation of a federal immigration statute as allowing mandatory detention of non-citizens living in the United States.

But the February ruling did not address whether the due process protections of the U.S. Constitution’s Fifth Amendment require those same migrants being given a chance to seek release by appearing before an immigration judge for a bond hearing.

U.S. Circuit Judge Leslie Southwick, writing for the majority in Thursday’s opinion, said the U.S. Supreme Court made clear in 2001 that the due process clause protects everyone, including the two Mexican citizens and one Honduran whose cases were before the 5th Circuit.

“It is part of the historic majesty of this long-ago founding charter that it makes no exceptions in providing basic rights to those within our boundaries, including a right to be heard when personal liberty is taken,” wrote Southwick, who was appointed by Republican President George W. Bush.

U.S. Circuit Judge Cory Wilson, a Trump appointee, dissented, saying “the majority marginalizes the Constitution’s express grant of plenary authority over immigration matters to Congress.”

Rebecca Cassler, a lawyer for the migrants at the American Immigration Council, said in a statement they “are delighted that the panel recognized the core constitutional principle that the due process clause does not allow the government to lock them away indefinitely.”

A spokesperson for the U.S. Department of Homeland Security, which oversees ICE, said in a statement it disagrees with the ruling “and is confident in its legal position regarding mandatory detention.” The spokesperson noted that the administration had just last week asked the Supreme Court to review a similar decision by another appeals court.

Under federal immigration law, “applicants for admission” ​to the United States are ​subject to mandatory detention ⁠while their cases proceed in immigration courts and are ineligible for bond hearings.

Bucking a long-standing interpretation of immigration law, the U.S. Department of Homeland Security last year took the position that non-citizens already residing in the United States, and not just people arriving at the border, qualify as “applicants ​for admission” subject to mandatory detention.

The Board of Immigration Appeals, which is part of the Justice Department, issued a decision in September ​that adopted that interpretation. As a result, immigration judges, who are employed by the ​department, across the ⁠country began ordering mandatory detention.

The federal appeals courts are divided on whether that interpretation of the law is correct, leading the Trump administration last week to ask the Supreme Court to resolve the issue.

(Reporting by Nate Raymond in Boston; Editing by Aurora Ellis and Stephen Coates)