Immigrants ask Fifth Circuit to axe mandatory detention policy

They argue a Trump administration policy denying bond hearings for all immigrants who entered the country unlawfully, regardless of how long they've lived in the U.S., violates due process.(CN) — Three men who have been in the U.S. for over a decade asked the full Fifth Circuit on Thursday to rule they have a constitutional right to challenge their detention through a bond hearing while they go through deportation proceedings.The immigrants say a Trump administration policy denying bond hearings for all noncitizens in removal proceedings who were not legally admitted into the country violates due process. In July, a three-judge Fifth Circuit panel agreed, with the majority ruling that even if they entered the country illegally, immigrants who have lived in the U.S. for a substantial period of time have a constitutional right to a bond hearing within 90 days of being detained where they can challenge their detention by showing they are not a flight risk or a danger to the community.The full appeals court then voted to rehear the case and stayed rulings by several federal judges preventing the government from detaining the three men without bond hearings.Previously, a divided Fifth Circuit panel ruled that regardless of how long they’ve been in the country, immigrants who entered without authorization are “applicants for admission” who can be held without bond hearings under federal immigration law, a statutory interpretation that conflicts with rulings from nineothercircuits.Deputy Assistant Attorney General Drew Ensign told the Fifth Circuit Thursday that the statutory issue decides the case, as Congress made the decision to mandate detention for all applicants for admission without regard to whether they are dangerous or a flight risk.“A hearing on flight risk or dangerousness in this context would thus be a bootless exercise that procedural due process cannot compel,” Ensign said. “It would be the equivalent of a 14-year-old plaintiff demanding a hearing on whether or not they’re a safe driver to get a driver’s license, something that could only be accomplished by overcoming the substantive policy choice of the legislature to restrict driver’s licenses to those 16 and above.”But Rebecca Cassler, an attorney with the American Immigration Council representing the three immigrants, argued that regardless of what the statute says, the Constitution requires the government to show it has a sufficient reason to detain someone.“The interest here is the right to physical liberty, and the question is, when is an individual’s right to physical liberty outweighed by sufficiently compelling government interest, what is that interest, and then under what circumstances will it be sufficient to show that that interest is served by the person’s detention?” Cassler said.But some of the judges appeared skeptical of this argument.“How can there possibly be in the abstract an enumerated right to be free in the country that you’re seeking admission to?” Chief U.S. Circuit Judge Jennifer Walker Elrod, a George W. Bush appointee, asked.Several of the judges wanted to know if immigrants could voluntarily leave the country to avoid detention while still continuing to challenge their removal in immigration court, but both Cassler and Ensign said they knew of no way for an immigrant to continue challenging their removal after voluntarily departing.U.S. Circuit Judge Cory Wilson, a Donald Trump appointee, questioned how courts could determine whether an immigrant has sufficient ties to the U.S. to have a constitutional interest in being free from detention. Cassler suggested factors like the length of time a person has been in the U.S., whether they have family members who are U.S. citizens and their involvement in the community. But Wilson dismissed such factors as “cotton candy,” saying they are not a “measurable yardstick” for determining an immigrant’s constitutional interest.“It’s utterly going to be in the eye of the beholder, whoever the district court judge is, or whoever the court is, isn’t it?” Wilson asked. “Because everything you’re saying has no measurable yardstick whatsoever, as opposed to the statutory framework, which does.”Last year, the Trump administration announced that going forward all immigrants who entered the country without being legally admitted would be treated as “applicants for admission” and subject to mandatory detention without bond hearings. This was a major policy change, as for the past 30 years the government had treated only people detained at the border as applicants for admission, while those detained within the country were held under a separate provision of immigration law that provided for discretionary detention that allowed them to seek release through bond hearings.This change resulted in a tidal wave of habeas petitions in federal courts by immigrants challenging the mandatory detention policy. More than 460 federal judges have ruled the policy illegal in around 20,000 cases, according to an analysis by Politico, with judges finding either that the policy doesn’t comport with federal immigration law or that it violates due process. The government has faced a similarly lopsided outcome in the federal appeals courts: other than the Fifth Circuit, only the Eighth Circuit has ruled immigrants living in the U.S. can be treated as applicants for admission. The other nine circuits have sided against the Trump administration.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads