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.
Daniel H. Weiss, a former immigration judge who listened to the 45-minute hearing, said he expects a 2-1 decision in the government’s favor.
“Today’s argument made clear this isn’t just statutory parsing. It’s about whether the government can treat people living in the interior like they’re still standing at the border. The panel appeared to lean strongly in that direction,” said Weiss, who is now an adjunct professor at SMU Dedman School of Law and a senior counsel with Roy Petty & Associates in Dallas.
At issue is the government’s reinterpretation of mandatory and discretionary detention provisions in the Immigration and Nationality Act, specifically 8 U.S.C Sections 1225 and 1226.
Section 1225 applies to “arriving” noncitizens who are deemed “applicants for admission” and are “seeking admission” to the country. Immigration agencies and courts have long interpreted this provision to cover individuals apprehended at or near the border as they enter the country. Detention under this statute is generally mandatory, with only narrow exceptions, and individuals held pursuant to it have little opportunity to seek release while deportation or asylum proceedings are pending.
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 been applied to 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 subject to detention 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.
But last year, the government deviated from its longstanding interpretation and began classifying virtually all deportation targets as “applicants for admission,” therefore eliminating their opportunity to seek bond. Immigrants are turning to the federal courts by filing habeas corpus cases against the wardens and members of the Trump administration.
Hundreds, if not thousands, of cases are pending across the country, U.S. Department of Justice Senior Counsel Benjamin Hayes told the Fifth Circuit panel on Tuesday.
“There’s a significant number of them to be sure, and at this point in January that number has increased substantially,” Hayes said
Hayes told the panel that the Seventh Circuit was also hearing the issue Tuesday, with other circuits scheduled to consider it in March.
“If the United States Court of Appeals for the Fifth Circuit goes one way and the United States Court of Appeals for the Seventh Circuit goes another, with other courts already grappling with the same question, the Supreme Court of the United States is almost certainly going to have to step in to define the limits of the government’s mandatory detention power,” Weiss told The Texas Lawbook.
The judges began delivering questions from the bench shortly into Hayes’ presentation. He contended that the petitioners’ reading of the statute contradicts its text and would revive what Congress has sought to eliminate.
“The petitioners’ argument, their contrary reading, is not only at war with the statute’s text, but it would reimpose the exact same perverse regime that existed before, in which aliens who were present in the United States, contrary to the immigration laws, were given greater protections, including bond hearings, as compared to those who presented at a port of entry in compliance with law,” Hayes said. “This Court should not adopt that backwards result and should reverse.”
Hayes argued that petitioners improperly rely on the phrase “seeking admission” to limit Section 1225’s reach, prompting an exchange with Judge Douglas.
“But you do acknowledge that that’s how it’s been read historically?” she questioned. “That’s how it’s been used historically.”
“So in terms of the interpretation, I actually don’t know that anyone put any interpretation on that language,” Hayes responded. “But if your point is the statute has not been imposed historically to mandate detention of the full scope that it is now, that’s certainly true.”
Judge Douglas pointed to the Supreme Court’s decision in Jennings v. Rodriguez, noting language distinguishing Section 1225 as applying to those seeking admission and Section 1226 to those already in the country.
“What do we do with that language?” Judge Douglas asked.
The Supreme Court case did not address the scope of the provisions, Hayes argued.
The justices ruled in Jennings that the Ninth Circuit misapplied the canon of constitutional avoidance when it interpreted Sections 1225 and 1226 to require periodic bond hearings for detained noncitizens.
“All Jennings did was say 1225 and 1226 cannot be fairly read to allow for bond hearings and that is all Jennings decided,” Hayes said.
Judge Douglas asked Hayes whether the language was dicta — to which he responded, “Absolutely” — and, if so, whether the Fifth Circuit was bound by dicta from the Supreme Court.
“I don’t think you are bound by dicta by the Supreme Court. I think courts of appeals pay attention to persuasive dicta. I don’t think this is even that,” Hayes said. “That language appears just in the background. The court is saying, here’s the text statutory framework that we’re addressing. And so it lays out, generally speaking, what the statute does. And then it answers the questions actually presented, which has nothing whatsoever — .”
At that point, Judge Jones interrupted to ask whether any Supreme Court case squarely supported mandatory detention under the provisions. The judge said she believed there was but did not name a case.
“I am not aware of a Supreme Court case that has addressed this issue,” Hayes said, which he argued weakened the petitioners’ reliance on other precedent.
Judge Douglas said Hayes’ reading of “seeking admission” doesn’t seem to align with the statute that defines it as lawful entry into the country.
Hayes argued the law defines lawful entry as occurring after inspection and authorization by an immigration officer. “I don’t see any conflict between the definition and the provision,” Hayes said.
Judge Jones appeared to reinforce that point.
“You cannot exclude these petitioners from 1225(a), right?” she asked.
“No,” Hayes said.
“They’re clearly within 1225(a), so it must mean something as to that, right? They’re applicants for admission by being deemed that, which means that whenever they encounter someone related to immigration, the immigration person has a duty to inspect them,” Judge Jones continued.
“That’s correct,” Hayes said.
Michael Tan, deputy director of the ACLU Immigrants’ Rights Project, argued on behalf of the petitioners. He contended that Congress did not intend Section 1225 to mandate detention for millions of noncitizens living in the interior.
“This case is about whether Congress in 1996 said that noncitizens who enter without inspection have to be detained,” Tan began. “And we know that Congress created in 1996 a limited detention mandate at 8 U.S.C. 1226(c) for aliens with crimes … and that that Congress was so concerned about that rule’s impact that it delayed its implementation for two years. But on the government’s view, the same Congress also created a detention mandate that’s larger by several orders of magnitude that covers millions of people, and that somehow escaped everyone’s notice for the past 30 years. That’s not what Congress did in 1996 or any time since. Instead, for the past three decades, everyone has understood 1226 to maintain the executive’s discretion over whether to detain people present in the country without admission, and that follows from the text and structure of 1226 as well as the agency’s contemporaneous regulations and three decades of consistent –”
Judge Jones pressed Tan on whether his clients were deemed applicants for admission under Section 1225.
“So they are deemed applicants for admission under 1225,” Tan said.
“Right,” Judge Jones responded.
Tan continued, “They’re clearly not seeking admission because they’ve been present in the country for years. And so the question before the court is that when Congress deemed our clients applicants for admission as a kind of legal fiction, it meant them to be treated as if they were still at the border for purposes of the detention statute? Our position is that it didn’t require that. Instead, it detained them under 1226, which is the statute that applies to people apprehended inside the country. And we know that from 1226(c) and the Laken Riley Act. As Judge Douglas pointed out, there’s simply no way to make sense of those statutes unless you understand 1226 to apply to our clients in the first place.”
Judge Jones challenged that interpretation.
“Let me ask you a question,” Judge Jones said. “1225 says an alien present in the U.S. who has not been admitted or who arrives in the U.S. shall be deemed an applicant for admission. Doesn’t your interpretation of your clients’ rights remove the first half of that sentence?”
Judge Jones continued, “Because then you go further to say your client’s not even seeking admission, which means they didn’t even have to be inspected.”
“So with respect, your honor, we disagree. We agree that Congress deemed them applicants for admission, but that that was serving other purposes,” Tan said.
“What purposes does that serve?” Judge Jones asked.
“By deeming our clients applicants for admission, Congress changed how they be treated in their removal cases. It made them inadmissible. It put the burden of proof on them,” Tan said.
“It also denied them bond,” Judge Jones countered.
The exchange turned on the meaning of “seeking admission.”
“We think, as a matter of plain reading, people who are already in the country, in our clients’ cases for many years, simply aren’t seeking admission,” Tan said.
Judge Jones asked what they are seeking and, seeming to answer her own question, she said they are seeking cancellation of removal.
“Right,” Tan said, referring to the Supreme Court’s recent decision in Sanchez v. Mayorkas. That case dealt with the ability for immigrants legally residing under temporary protected status to apply for permanent resident status through a green card.
“In our view, our clients are seeking relief, seeking lawful status, but they aren’t seeking admission,” Tan said.
Judge Douglas questioned why Section 1226 and the Laken Riley Act, passed last year, would be necessary if Section 1225 mandated detention for everyone. Judge Duncan, meanwhile, asked why Congress would allow bond hearings for noncitizens apprehended in the interior but deny them to those who present at ports of entry.
Tan said legislative history offers little guidance but suggested Congress sought to avoid overwhelming the detention system.
The practical consequences are already being felt in Texas district courts. In a Feb. 2 notice to lawyers, U.S. District Judge Leon Schydlower in El Paso reported that his court had 134 pending cases as of Jan. 29 and was receiving up to 25 new cases per week, including six in a single day. He warned attorneys to expect short notice of dispositive rulings once the Fifth Circuit issues its decision.
Meanwhile, other district judges across Texas have continued ordering bond hearings or outright releases.