Asylum Seekers Must Get Bond Hearings, Ninth Circuit Rules

SAN FRANCISCO (CN) – The Ninth Circuit on Friday upheld a court order blocking a Trump administration policy that denies bond hearings to asylum seekers, but it also ordered a lower court to reconsider the nationwide scope of the injunction and timeframe for hearings.

U.S. District Judge Marsha Pechman in Seattle granted a preliminary injunction in April 2019, requiring the release of asylum seekers from detention unless they are given bond hearings within seven days of requesting one.

In a 2-1 split, a Ninth Circuit panel affirmed Pechman’s ruling, finding the U.S. Constitution guarantees detained immigrants a right to due process.

“The Supreme Court has held repeatedly that non-punitive detention violates the Constitution unless it is strictly limited,” Chief U.S. Circuit Judge Sidney Thomas wrote for the panel.

The panel’s majority also rejected the government’s claim that asylum seekers can use other avenues to pursue release from detention, such as seeking parole or filing a habeas corpus petition.

Thomas and Senior U.S. Circuit Judge Michael Hawkins, both Bill Clinton appointees, found the administration could not transfer the work of holding initial bond hearings from immigration courts to federal courts.

“Judicial economy would not be well served by such a system,” Thomas wrote.

The majority also disagreed with the administration’s suggestion that non-citizens lack the same rights as citizens under the Due Process Clause.

Thomas wrote that cases cited by the Trump administration to support that position were merely carved-out exceptions that “confirm the general rule that once a person is standing on U.S. soil — regardless of the legality of his or her entry — he or she is entitled to due process.”

However, the majority also ordered the lower court to reconsider its requirement that detainees be given hearings within seven days. They found Judge Pechman failed to consider how that mandate might burden immigration courts, especially since the number of immigrants in expedited removal proceedings has spiked dramatically since the injunction was issued almost a year ago.

The panel’s majority also ordered Pechman to revisit the nationwide scope of the injunction to ensure it is not “more burdensome than necessary.”

U.S. Circuit Judge Bridget Bade, a Donald Trump appointee, strongly disagreed with the majority’s decision in a 16-page dissent. According to Bade, the text of the statute on expedited removal proceedings deprives federal courts of authority to issue class-wide injunctions. To support her interpretation, she cited the Supreme Court’s 2018 ruling in Jennings v. Rodriguez, which held that detained immigrants have no right to periodic bond hearings.

“Despite Congress unequivocally barring lower courts from issuing class-wide injunctions against the operation of certain immigration statutes, the majority opinion gives a green light for the district courts in this circuit (as well as this court) to issue (and uphold) such relief,” Bade wrote.

Notwithstanding Bade’s blistering dissent, immigrant advocates on Friday hailed the majority’s opinion as an important victory for immigrants’ rights and a major blow to one of several Trump administration policies aimed at making it harder for asylum seekers to enter and stay in the United States.

“The courts again found that this policy unconstitutionally strips people of their right to a hearing,” said Michael Tan, deputy director of the ACLU’s Immigrants’ Rights Project. “The Trump administration cannot bypass the Constitution by arbitrarily locking people up.”

Matt Adams, legal director of the Northwest Immigrant Rights Project, said this opinion upholds a fundamental constitutional right that protects people from arbitrary detention.

“In this case we are talking about people who are entitled to apply for asylum, who would otherwise be locked up for generally six months or longer when they do not present a flight risk or danger to the community,” Adams said.

The U.S. Department of Homeland Security did not immediately respond to a request for comment.

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