A divided panel of the U.S. Court of Appeals for the Fifth Circuit on Friday sided with the Trump administration’s interpretation of immigration law, allowing the government to detain noncitizens without the opportunity to seek bond while they contest deportation.
Writing for the majority, U.S. Circuit Judge Edith H. Jones concluded that a provision of Section 1225 of the Immigration and Nationality Act authorizes the government to deny bond to noncitizens who have been living in the U.S. — often for decades and frequently without criminal records — as they fight removal proceedings. For nearly 30 years, prior administrations had treated such individuals as subject to Section 1226, which permits release on bond.
“In contrast to past administrations, the current Administration has chosen to exercise a greater portion of its authority by treating applicants for admission under the provision designed to apply to them,” Judge Jones wrote.
Judge Jones, an appointee of President Ronald Reagan, was joined by Judge Stuart Kyle Duncan, a President Trump appointee.
Judge Dana M. Douglas, a President Joe Biden appointee, issued a dissent.
“In sum, the government’s proposed reading of the statute would mean that, for purposes of immigration detention, the border is now everywhere,” Douglas wrote. “That is not the law Congress passed, and if it had, it would have spoken much more clearly.”
The opinion comes as federal district courts across the country confront a surge of lawsuits challenging the administration’s approach. Since the government adopted its new interpretation last year, more than a thousand habeas corpus petitions have been filed. Most judges — across the political spectrum — have found that the government’s reading of the statute is incorrect or likely incorrect, ordering bond hearings for detainees and, in some cases, their outright release.
Arguments were heard Tuesday in both the Fifth and Seventh Circuits. Other federal appellate courts are expected to take up the question in March, and legal experts widely anticipate that the matter will reach the U.S. Supreme Court.
In her dissent, Judge Douglas noted the government’s request that the Fifth Circuit expedite both briefing and its decision, including issuing an order resolving the appeal before releasing the opinion. She noted that the government did not seek similar expedited treatment in the less conservative Seventh Circuit.
Section 1225 applies to “arriving” noncitizens deemed “applicants for admission” who are “seeking admission” to the U.S. For decades, immigration agencies and courts have interpreted the provision to apply to individuals apprehended at or near the border as they enter the country. Detention under Section 1225 is generally mandatory, with limited exceptions, and provides little opportunity for release while removal or asylum proceedings are pending.
By contrast, Section 1226 permits — but does not require — immigration authorities to detain noncitizens who are not treated as applicants for admission and who are already present in the U.S. This provision has long governed the detention of undocumented immigrants who have lived in the country for years, including many who were paroled into the U.S. after encounters with immigration officials at the border. Many have established substantial ties to the U.S., including American citizen spouses or children, employment authorization and pending applications for asylum or other forms of lawful status.
Under long-standing regulations, people detained under 1226 may seek bond hearings in immigration court, an administrative court system housed within the executive branch. Immigration judges, who are executive branch employees, determine whether individuals pose dangers to the public and what conditions are necessary to ensure their appearance at future proceedings. Where those concerns are not present, judges set a bond. Last year, however, the government departed from its longstanding practice and began classifying virtually all deportation targets as “applicants for admission,” therefore eliminating their opportunity to seek bond.
The Fifth Circuit considered consolidated cases involving two Mexican natives — Victor Buenrostro-Mendez, who entered the U.S. in 2009, and Jose Padron Covarrubias, who entered the country in 2001. The men filed lawsuits in the Southern District of Texas after being denied bond hearings in immigration court. The judges assigned to their cases — Judge Lee H. Rosenthal and Judge John A. Kazan, respectively — ordered that bond hearings be held, and both men were ultimately released.
“The core issue is whether the phrase ‘an alien seeking admission’ in § 1225(b)(2)(A) limits the sweep of persons subject to mandatory detention under the statute, or whether it merely restates the category of ‘applicant for admission’ defined by § 1225(a)(1) and reproduced in § 1225(b)(2)(A)’s first phrase,” Judge Jones wrote.
To illustrate her reasoning, Judge Jones offered an analogy to a college admissions process.
“It would make no sense to say that as soon as the applicant clicks ‘submit’ on her application, she is no longer seeking admission, merely because she does not take any further affirmative steps to gain admittance,” Judge Jones wrote. “Instead, she would ordinarily be understood to be seeking admission as long as her application is pending. The same is true here. The petitioners are deemed, by statute, to be applicants for admission pending the resolution of removal proceedings. While they remain applicants, they are presently seeking admission.”
Judge Douglass rejected that interpretation, reasoning that Congress never intended for the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to require detention without bond and that the government’s interpretation departs from nearly 30 years of established precedent.
“Nonetheless, the government today asserts the authority and mandate to detain millions of noncitizens in the interior, some of them present here for decades, on the same terms as if they were apprehended at the border,” Judge Douglas wrote.
The Fifth Circuit opinion is expected to have immediate consequences. At least one Texas judge — Leon Schydlower of the Western District — alerted attorneys last week that the opinion could affect hundreds of pending cases.
“The Court anticipates that once the Fifth Circuit issues its opinion, the undersigned may have between 200 to 250 pending cases regarding this issue,” Judge Schydlower wrote. “To ensure prompt resolution of the cases and to avoid the need to await individualized written opinions and rulings, the Court may conduct live hearings in these cases during which the undersigned may rule from the bench on the record, especially if the Fifth Circuit’s resolution of the issue mandates bond hearings in the immigration courts and/or the petitioners’ release.”
Related coverage
— As federal district courts across the country grapple with a surge of lawsuits challenging the Trump administration’s approach to detaining noncitizens without bond, the U.S. Court of Appeals for the Fifth Circuit appears poised to side with the government. A three-judge panel heard arguments Tuesday in consolidated Texas cases, and questions from Judges Edith H. Jones and Stuart Kyle Duncan suggested support for the government’s interpretation of immigration law. Judge Dana M. Douglas’ questions, by contrast, appeared to be at odds with her colleagues.
— Federal district court judges in Texas — from across the political spectrum — are rejecting the Trump administration’s reinterpretation of immigration law in order to detain immigrants without the opportunity to seek bond while they contest the government’s attempts to deport them, even if they’ve lived in the U.S. for decades and have no criminal record.
— Charles Gearing felt an itch last summer to get more involved in pro bono work. The healthcare litigation lawyer at Weaver Johnston Nelson in Dallas found a project that advertised a limited scope — helping detained noncitizens apply for bond — that seemed like work that required less lawyering than sleuthing and logistical hustle, or so Gearing thought.