Judges May Have Found A Way To Bypass 5th Circuit Ruling Upholding Trump’s Mass Detention Policy

Federal judges may have found a workaround to reject the Trump administration’s mass detention policy after an appeals court backed the approach.

A three-judge panel of the 5th Circuit Court of Appeals on Friday blessed the administration’s interpretation of the government’s power to systematically detain people targeted for deportation — even if they have no criminal records and have lived in the country for decades.

But two federal district court judges in Texas, who are bound by the New Orleans-based 5th Circuit’s ruling, said the 2-1 decision left an opening for them to continue granting immigrants’ release on other grounds, primarily constitutional arguments against detaining people who have established roots in the U.S. without due process. Those roots amount, in legal parlance, to a “liberty interest” that the Constitution says cannot be taken away without at least a hearing before a neutral judge.

“This conclusion is not changed by the Fifth Circuit’s recent decision,” Judge Kathleen Cardone, an El Paso based appointee of George W. Bush, ruled late Monday in at least five cases, concluding that the circuit’s decision “has no bearing on this Court’s determination of whether [the petitioner] is being detained in violation of his constitutional right to procedural due process.”

Judge David Briones, an El Paso-based Clinton appointee, reached a similar conclusion.

“The Court reiterates its original holding that noncitizens who have ‘established connections’ in the United States by virtue of living in the country for a substantial period acquire a liberty interest in being free from government detention without due process of law,” Briones wrote.

The decisions from the Texas-based judges are notable in part because the administration has often rushed detainees there after their arrests in other states such as Minnesota.

Spokespeople for the Department of Justice and Department of Homeland Security did not immediately respond to requests for comment.

The 5th Circuit’s ruling has yet to percolate through federal courts across Texas and Louisiana, where detained immigrants have been filing so-called “habeas” petitions in extraordinary numbers to seek freedom from what they say is illegal detention without the opportunity for bond. The losing parties in Friday’s ruling may still appeal the decision to the full bench of the 5th Circuit or the Supreme Court.

But the reaction from judges in Texas dealing with large numbers of habeas cases may inform their calculus. Other judges are maintaining a cautious approach. Judge Fernando Rodriguez Jr., a Brownsville-based Trump appointee, has peppered attorneys in a long series of cases to update him on their view of the 5th Circuit’s ruling — and whether the petitions in his court must be dismissed.

Outside the 5th Circuit, judges who have been largely rejecting the Trump administration’s mass detention policy were less restrained.

Judge Charlotte Sweeney, a Biden appointee in Colorado, delivered a detailed rejection of the 5th Circuit ruling, saying the panel’s two-judge majority “paid lip service” to crucial legal principles and attempted to mask “infirmity” with clunky analogies.

Judge Evelyn Padin, a Biden appointee in New Jersey, similarly said she was “unpersuaded” by the 5th Circuit’s opinion, which she said would render other aspects of immigration law meaningless.

Both judges pointed out that the 5th Circuit is not binding on their courts and that other circuits may soon rule on the key legal questions at the heart of the mass detention policy.