The U.S. Immigration and Customs Enforcement agency may not detain individuals for longer than 90 days under the Trump administration’s mass detention policy without providing them an opportunity to seek release on bond, a divided panel of the U.S. Court of Appeals for the Fifth Circuit ruled on Thursday.
The decision, handed down by a 2-1 panel based in New Orleans, could reach thousands of people who have been detained in states that fall under the 5th Circuit’s jurisdiction, including Texas and Louisiana, as part of the administration’s immigration enforcement actions.
The panel’s majority opinion focused on whether the due process protections of the Fifth Amendment apply to migrants detained under the administration’s reinterpretation of a federal immigration statute. A different panel of the same court earlier in February had been the first in the nation to adopt the administration’s novel reading of that statute, finding that it permitted mandatory detention of certain non-citizens living in the United States. That February decision, however, did not resolve whether those detained under the new reading must also be afforded a chance to appear before an immigration judge for a bond hearing under the Constitution’s due process clause.
Writing for the majority in Thursday’s opinion, U.S. Circuit Judge Leslie Southwick said the U.S. Supreme Court made clear in 2001 that the protections of the due process clause extend to everyone, including the three migrants at issue in the cases before the 5th Circuit - two Mexican citizens and one Honduran.
"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,"
Judge Southwick, who was appointed by Republican President George W. Bush, framed the issue as one of fundamental constitutional protection for persons detained by the government.
U.S. Circuit Judge Cory Wilson issued a dissenting opinion. A Trump appointee, Judge Wilson said in his dissent that "the majority marginalizes the Constitution’s express grant of plenary authority over immigration matters to Congress."
Advocates for the migrants welcomed the ruling. Rebecca Cassler, a lawyer representing the detained individuals at the American Immigration Council, said in a statement that 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."
The Department of Homeland Security, which oversees ICE, did not respond to a request for comment.
Under existing federal immigration statutes, the category "applicants for admission" to the United States are subject to mandatory detention while their cases proceed in immigration courts and are not eligible for bond hearings. Departing from a long-standing interpretation of that provision, the Department of Homeland Security last year took the position that non-citizens already residing in the United States - not only those arriving at the border - can qualify as "applicants for admission" and therefore be subject to mandatory detention.
The Board of Immigration Appeals, which is part of the Justice Department, issued a decision in September that adopted DHS’s revised interpretation. Following that decision, immigration judges employed by the department around the country began ordering mandatory detention pursuant to the new reading of the statute.
Federal appeals courts remain divided on whether the administration’s interpretation of the law is correct. That split in the federal appellate courts prompted the administration last week to ask the U.S. Supreme Court to resolve the underlying legal question.
Legal context and immediate effect
The Fifth Circuit’s ruling squarely addresses whether the Constitution requires bond hearings for migrants detained beyond 90 days under the mass detention policy. The ruling follows earlier judicial developments that shaped how immigration judges and the Board of Immigration Appeals applied the contested statutory classification of "applicants for admission." Because federal appellate courts are not in agreement, the case raises unresolved legal uncertainty pending possible Supreme Court review.