Ice’s Detention Policy Won At The 5th Circuit. Then Judges Found Another Way To Reject It.

When a federal appeals court in February endorsed ICE’s unprecedented policy to detain — without bond — thousands of immigrants with established roots in the U.S., the Trump administration celebrated it as a landmark win.

The Feb. 6 ruling by the 5th Circuit Court of Appeals cut against the overwhelming rejection of ICE’s new detention policy by federal district courts around the country. And because the 5th Circuit’s rulings are binding on judges in Texas, where a significant share of ICE detainees are held, the decision seemed poised to reverse the tide.

What has played out since tells a more complicated story.

Judges bound by the appeals court’s holding have overwhelmingly continued to reject ICE’s detention policy. Instead of labeling the policy a violation of the law — an interpretation taken off the table by the 5th Circuit decision — those judges have concluded that ICE has violated detainees’ constitutional due process rights, a distinct violation that the appeals court didn’t address.

As a result, judges in Texas and Louisiana have ordered bond hearings or release of ICE detainees more than 1,200 times on due process grounds since the appeals court’s ruling, according to a POLITICO analysis.

That’s nearly 60 percent of all immigration detention rulings in the 5th Circuit since the Feb. 6 decision. The 5th Circuit is now considering whether ICE detainees subject to ICE’s “mandatory detention” policy are owed the due process that these district court judges decisively say they are.

It’s an indication that the Trump administration’s aggressive departure from longstanding ICE detention practices is testing more than just the interpretation of complicated and sometimes contradictory federal immigration laws; some judges see it as testing the Constitution itself.

The administration has fared better in the 5th Circuit since the February ruling, winning about a third of detention rulings compared to less than 10 percent beforehand. A significant share of that improvement is attributable to a few judges who have rejected the “due process” alternative that their colleagues have relied upon.

They include U.S. District Judge Leon Schydlower, a Biden appointee, who has rejected petitions for release from detention more than 150 times since the 5th Circuit’s decision, and U.S. District Judge Fernando Rodriguez Jr., a Trump appointee who has similarly ruled more than 60 times since then.

But the strong majority of decisions — from judges appointed by every president since Ronald Reagan — are still cutting against the administration.

ICE detentions nationwide have skyrocketed since the Trump administration embraced a new immigration enforcement policy last July, arguing the government must detain virtually everyone ICE is seeking to deport. While prior administrations applied “mandatory detention” primarily to recent border-crossers, the Trump administration has expanded it to treat people encountered anywhere in the country as though they had just crossed the border — even if they have lived in the U.S. for decades.

That policy shift has flooded the courts with emergency lawsuits by ICE detainees who say the administration’s new approach is illegal. And judges — including a majority of Trump appointees — have agreed. POLITICO has tracked more than 15,100 rulings in those cases, more than 13,300 of which have determined ICE illegally detained people without bond.

The 5th Circuit, which spans Texas, Louisiana and Mississippi, is responsible for roughly one in five of all ICE detention rulings over the past 11 months, according to POLITICO’s tracking. After a 5th Circuit panel ruled 2-1 in favor of the administration, a panel of the 8th Circuit Court of Appeals, which oversees courts in the Midwest, including Minnesota, followed suit in March. But since then, three appeals courts, including those overseeing Florida, New York and Ohio, have rejected the administration’s approach, creating a split that has put the issue on a likely path to the Supreme Court.

The trend in the 5th Circuit is beginning to appear in the 8th Circuit too: After the appeals court blocked judges from rejecting ICE detentions on statutory grounds, some judges there have begun to switch to the same due process rationale as their colleagues in the South in a few dozen cases so far.

Asked about the due process rationale — and whether it had undercut the administration’s expectation of a momentum shift after the 5th circuit decision — the Justice Department renewed its attacks on the judges themselves.

“Despite the continued efforts of activist judges who want to stonewall the President’s agenda, DOJ remains committed to defending the immigration laws Congress enacted and working with our counterparts at DHS to deport illegal aliens to keep the American people safe,” said department spokesperson Natalie Baldassare.

The Texas-based judges who had previously ruled against the administration’s policy on statutory grounds acknowledged they were bound by the 5th Circuit’s ruling, but repeatedly emphasized that the decision “does not change this case’s outcome on procedural due process grounds.” In hundreds of cases, those judges underscored that the ruling “has no bearing” on whether a petitioner “is being detained in violation of his constitutional right to procedural due process.”

Even before the 5th Circuit ruled, the due process rationale had been endorsed by at least two Texas-based judges David Briones, a Clinton appointee, and Kathleen Cardone, a George W. Bush appointee. Within three weeks of the circuit’s ruling, eight more judges adopted the approach — and since then, rulings on that basis skyrocketed.

Nineteen of the 51 federal judges who have ruled on immigration detention cases in the Fifth Circuit have used the strategy, though just four of those judges in Texas’ Western District are responsible for more than half of these rulings: Clinton appointees Orlando Garcia and Fred Biery and George W. Bush appointees Xavier Rodriguez and Cardone.

Use the table below to explore the rulings yourself. Search for decisions within the 5th Circuit that determined a due process violation had taken place, which will show you all similar decisions before and after the 5th Circuit ruling. Or type the name of one of the judges mentioned above to see how their decisions have changed over time.

And check out POLITICO’s tracker of immigration detention rulings updated weekly.