ICE appeal over bond hearings for asylum seekers confounds Ninth Circuit

(CN) — A panel of the Ninth Circuit Court of Appeals struggled to get their heads around an appeal by U.S. Immigration and Customs Enforcement relating to whether asylum seekers are entitled to a bond hearing while they are detained pending the outcome of their immigration proceedings.

The three appellate judges repeatedly expressed bewilderment about what the government was asking them to do at a 90-minute hearing Wednesday in San Francisco, as the discussion went back and forth between ICE asking for a ruling on the merits of the case and arguing the claims don’t belong in the circuit at all.

“I’m so confused,” U.S. Circuit Judge Michelle Friedland, a Barack Obama appointee, exclaimed at one point in response to the arguments by David Kim, an attorney for the government. “I thought you said any kind of case that challenges any kind of due process issue, or anything challenging this whole implementation or anything, has to go to D.C. — it can’t be in this court. If that’s true, we can’t say you win or lose.”

The unusually long hearing even prompted Friedland to offer trail mix to the hungry attorneys for another case who had been waiting all morning and early afternoon while the panel heard the immigration case, an earlier and equally lengthy Apple antitrust case, and answered questions from high school students who attended the hearings on a school tour.

ICE filed a so-called interlocutory appeal in a long-running immigration class action in Seattle that dates back to the first Trump administration’s ill-fated separation of children from their families after they were apprehended crossing the border unlawfully.

A different Ninth Circuit panel, in a 2000 split decision, had affirmed a nationwide injunction invalidating a provision of the expedited removal statute and required, as a matter of due process, bond hearings for noncitizens who entered the country unlawfully, were placed in expedited removal, and were found to have a credible fear of persecution.

The U.S. Supreme Court, however, vacated that ruling the following year and sent the case back to be reconsidered in light of its decision upholding federal limits on the jurisdiction of trial courts in reviewing asylum claims.

The trial judge in Seattle nevertheless denied ICE’s motion to dismiss the latest reiteration of the asylum seekers’ lawsuit, which emphasizes their demand to get a bond hearing within seven days after they have asked for one, prompting this latest trip to the Ninth Circuit.

On appeal, ICE argues that the plaintiffs’ claims have “eroded” since they filed their initial complaint in 2018, because intervening legal developments have eliminated any claim to a statutory entitlement to bond hearings for noncitizens. Moreover, the Supreme Court’s 2020 decision in Department of Homeland Security v. Thuraissigiam , ICE claims, has made clear that the plaintiffs aren’t entitled to more due process than what statute affords.

And finally, ICE points out, a 2019 decision by the U.S. attorney general specified that asylum seekers who have established the credible fear requirement that entitles them to full rather than expedited proceedings should be detained pending the outcome of those proceedings unless they are paroled under special circumstances.

This, according to the government, means that federal trial courts lack jurisdiction to weigh in on the question of whether the asylum seekers have a due process right to a bond hearing. Any judicial review of their detention in this context, ICE claims, belong in the federal court in Washington, D.C.

At Wednesday’s hearing, the appellate panel expressed profound reservations about ICE’s position that constitutional due process rights don’t apply to individuals who are in the U.S. while seeking asylum.

For one, U.S. Circuit Judge Salvador Mendoza Jr., a Joe Biden appointee observed, a Supreme Court decision has found that noncitizens who have connections within the U.S. have due process rights in their deportation proceedings.

“In this case, the Supreme Court is telling us that, if you have someone who has been in this country for a significant period of time, they have established some connections and they do have these additional due process rights,” Mendoza Jr. said.

The panel also struggled with the government’s interpretation of the sometimes convoluted language of the statute pertaining to judicial review of orders of removal in terms to what extent it barred the district courts from hearing detention claims.

Senior U.S. Circuit Judge Marsha Berzon, a Bill Clinton appointee, noted that there were several different Supreme Court cases construing the different jurisdictional provisions at issue, typically in a very precise way, and that it was hard to see how the question of detention fitted in.

The panel left open the possibility that it would have to send the case, in whole or in part, to Washington.

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