Donald Trump just lost another round in his fight to make mandatory detention a central weapon of his mass-deportation campaign.
On Friday, the U.S. Court of Appeals for the Third Circuit rejected the administration’s argument that certain noncitizens arrested inside the United States must be detained without getting a chance to ask an immigration judge for release on bond.
It was the eighth federal appeals court to reject the administration’s legal theory, Bloomberg reports.
Judge Patty Shwartz, an Obama appointee, wrote for the majority that the administration’s interpretation of federal immigration law is simply wrong.
It’s well established that noncitizens who’ve lived in the country and created ties to the community are protected by the Fifth Amendment, wrote Shwartz. She also said that denying longtime residents an opportunity to seek release violates their constitutional right to due process.
Judge Theodore McKee, a Clinton appointee, joined Shwartz’s opinion.
Trump-appointed Judge Jennifer Mascott dissented from Friday’s decision. She argued that it makes little sense to provide bond hearings to people who enter the country without being detected while denying them to people who present themselves at ports of entry.
The case involves two noncitizens who have lived in the United States for years and challenged their detention after lower courts granted their habeas corpus petitions.
The Trump administration appealed. And lost. Again.
Last year, the administration began arguing that even noncitizens who have lived in the United States for years and developed substantial ties to their communities can be subject to mandatory detention after being arrested in the interior of the country.
Under that interpretation, they would not be entitled to a bond hearing in immigration court.
The administration says the law supports that position.
The Third Circuit majority disagreed.
Shwartz wrote that noncitizens who have lived in the country and established ties to their communities are protected by the Fifth Amendment’s due-process guarantee.
That principle isn’t exactly new. The administration’s interpretation, however, would represent a major departure from decades of immigration practice.
And there’s a reason the administration is fighting so hard for it. Mandatory detention makes it substantially harder for immigrants to fight their cases from outside detention. Someone sitting in a detention facility for weeks or months may be far more likely to give up, accept removal and leave the country rather than continue a lengthy legal battle.
In other words, detention isn’t merely about where someone waits for their case to be resolved. It can affect whether they have the ability, or willingness, to fight the case at all.
And the Third Circuit court isn’t an outlier. Nearly every federal appeals court to consider the administration’s legal theory has rejected it.
So far, only the Fifth and Eighth Circuits have sided with the administration’s interpretation.
That has created an increasingly obvious split among the federal appellate courts — exactly the kind of conflict that tends to get the Supreme Court’s attention.
Both the Trump administration and immigrant advocates have separately asked the Supreme Court to take up the issue.
The high court is widely expected to do so.
Until then, the administration’s effort to establish mandatory detention as a broader tool of its deportation strategy continues to run into the same problem: Federal judges keep saying no.
Friday’s ruling marks the eighth appellate defeat for the administration on the issue.
And if the Supreme Court ultimately takes the case, this fight could determine just how far the administration can go in using detention to accelerate its mass-deportation agenda.
