Fifth Circuit splits on Trump’s mandatory detention policy

(CN) — A three-judge panel of the Fifth Circuit appeared divided Tuesday on the legality of a Trump administration policy denying bond hearings for all noncitizens in deportation proceedings who entered the U.S. without being lawfully admitted.

The case centers around the interpretation of two federal statutes, 8 U.S. Code § 1225 and § 1226, that each contain separate requirements for detention during deportation proceedings. § 1225 applies to “applicants for admission,” which the statute defines as “an alien present in the United States who has not been admitted or who arrives in the United States.” That statute contains a provision, § 1225(b)(2)(A), that states “an alien seeking admission” who is “not clearly and beyond a doubt entitled to be admitted” must be detained and put through removal proceedings.

Meanwhile, § 1226 covers deportation proceedings more generally. § 1226(a) of that statute provides for discretionary detention, allowing the government to release detainees on bond. Federal regulations give noncitizens held under § 1226 the right to request a bond hearing before an immigration judge.

Previous administrations have held that noncitizens who present at a port of entry or who are detained shortly after crossing the border are subject to § 1225, while those who are detained within the country are subject to § 1226.

However, Immigration and Customs Enforcement issued a memo in July last year announcing a policy change. Henceforth, the memo said, all “applicants for admission” (meaning all noncitizens who haven’t been lawfully admitted) will be subject to mandatory detention, with bond hearings reserved for those who were admitted into the country but later lost their legal status.

In effect, the policy change means that all noncitizens who entered the country without permission are now subject to mandatory detention and will be held without bond, regardless of how long they’ve been in the U.S.

This has led to an avalanche of habeas petitions in federal courts. According to a recent analysis by Politico, over 300 federal judges have ruled that the Trump administration’s mandatory detention policy is illegal, although a few judges have sided with the administration.

The cases have become so numerous that some judges have taken to issuing brief rulings that largely point to previous rulings and declare the policy unlawful. That was the case for the two rulings that the Fifth Circuit panel was considering Tuesday in a consolidated appeal. Quoting a prior ruling, the judges in both cases held that “the statutory text, the statute’s history, Congressional intent, and § 1226(a)’s application for the past three decades” all indicate that the petitioners, both of whom had been in the country for over a decade, were subject to § 1226, not § 1225.

However, Justice Department attorney Benjamin Hayes disputed this holding, arguing before the panel that Congress enacted the detention provisions in the two statutes in 1996 in order to fix a “perverse regime” that existed previously where “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.”

He said this issue is “a straightforward question of statutory interpretation”: § 1225 defines noncitizens present in the U.S. without being admitted as applicants for admission, and § 1225(b)(2)(A) requires mandatory detention for such applicants.

“The statute is clear, and this court should enforce it as written,” Hayes said.

American Civil Liberties Union attorney Michael Tan, representing the two petitioners, acknowledged that his clients are “applicants for admission” under the statute’s definition, but he argued § 1225’s mandatory detention provision applies to those who are “seeking admission.” He said his clients are not “seeking admission” to the country but instead are seeking relief from removal.

U.S. Circuit Judge Edith Jones, a Ronald Reagan appointee, seemed to disagree with this argument. She pointed out the term “seeking admission” is also used in a separate provision in § 1225 stating that “an applicant for admission may be required to state under oath any information sought by an immigration officer regarding the purposes and intentions of the applicant in seeking admission to the United States.”

“In other words, it pretty much uses applicant as identical to one seeking admission,” Jones said.

Meanwhile, U.S. Circuit Judge Dana Douglas, a Joe Biden appointee, seemed to side with the petitioners. She pointed out that last year, as part of the Laken Riley Act, Congress added a provision to § 1226 requiring mandatory detention for noncitizens who weren’t lawfully admitted into the country and who have been arrested for, charged with or convicted of certain crimes. What would be the purpose of Congress adding this provision, Douglas asked, if noncitizens who weren’t lawfully admitted are already subject to mandatory detention under § 1225?

But Hayes argued Congress enacted that provision in response to the executive branch’s “long practice” of handling noncitizens who entered the country without authorization under § 1226.

“Congress was well aware that the executive was not enforcing the law,” Hayes said. The Laken Riley Act, he said, “was a very firm statement by Congress. They were very upset at the manner in which the executive was carrying out detention authority, and they were meaning to strictly confine it. So I don’t think that can possibly be understood as a ratification of prior practice.”

U.S. Circuit Judge Stuart Kyle Duncan, a Donald Trump appointee, joined Jones and Douglas on the panel.