Appeals Court Backs Trump’s Mass Detention Policy

A federal appeals court Friday night backed the Trump administration’s policy to lock up the vast majority of people it is seeking to deport without offering a chance for bond, even if they have no criminal records and have resided in the country for decades.

A divided three-judge panel of the 5th Circuit Court of Appeals concluded that the administration’s view — a reversal of every administration’s position for the last 30 years — is the correct interpretation of the federal government’s power to detain people targeted for deportation.

“That prior Administrations decided to use less than their full enforcement authority … does not mean they lacked the authority to do more,” Judge Edith Jones, a Reagan appointee, wrote for the 2-1 majority.

The matter could soon be headed for Supreme Court consideration.

Immigration and Customs Enforcement adopted a new view of the law in July, prompting an explosion of arrests and detentions — and a flood of lawsuits from detainees who argued that they were illegally locked up without due process.

The vast majority of judges across the country have rejected the administration’s approach. A POLITICO review of thousands of ICE detention cases found that at least 360 judges rejected the expanded detention strategy — in more than 3,000 cases — while just 27 backed it in about 130 cases.

Jones was joined in the decision by Judge Kyle Duncan, a Trump appointee. Judge Dana Douglas, a Biden appointee, said in a dissent that the panel’s view would require the detention of as many as 2 million immigrants residing in the United States without bond — “some of them the spouses, mothers, fathers, and grandparents of American citizens.”

“Straining at a gnat, the majority swallows a camel,” Douglas wrote. “The government’s proposed reading of the statute would mean that, for purposes of immigration detention, the border is now everywhere. That is not the law Congress passed, and if it had, it would have spoken much more clearly.”

The circuit’s ruling is unlikely to be the last word. Challenges to the administration’s policy have been crowding court dockets across the country and are pending in nearly every appellate circuit. The 7th Circuit Court of Appeals signaled it opposed the administration’s view of the policy in a ruling that was primarily focused on other issues.

At the heart of the issue is a 30-year-old immigration statute that requires the detention — without bond — of all “applicants for admission” to the United States while they are “seeking admission” to the country. For decades, administrations of both parties applied this to people who had newly arrived in the country, perhaps by crossing the southern border.

Those residing in the country’s interior, often for years, were categorized under a different statute that allowed them to seek a bond hearing before an immigration judge before ICE could lock them up.

But in July, ICE Director Todd Lyons adopted a new interpretation of the law, declaring that anyone targeted for deportation by ICE would be treated as an “applicant for admission,” subjecting them to mandatory detention. That decision was backed up in October by the Board of Immigration Appeals, a panel of immigration judges who set national policy for executive branch-run immigration courts that handle deportation proceedings.

The overwhelming majority of the 360-plus district courts that have rejected the administration’s view include judges appointed by every president since Ronald Reagan — including more than 40 appointed by Trump himself. Nineteen of the 27 district court judges siding with the administration’s view were appointed by Trump.