A federal appeals court has delivered a significant blow to the Trump administration’s immigration policies, ruling that U.S. Immigration and Customs Enforcement (ICE) cannot detain individuals for more than 90 days without providing them an opportunity for release on bond.
This decision, issued by a divided 2-1 panel of the New Orleans-based 5th U.S. Circuit Court of Appeals, could impact thousands of people held in states like Texas and Louisiana, which fall under its jurisdiction and have been central to President Donald Trump’s immigration crackdown.
The ruling marks a shift from a previous decision by a different panel of the same court, which had initially endorsed the Trump administration’s interpretation of a federal immigration statute allowing for mandatory detention of non-citizens.
However, that earlier February ruling did not address whether the Fifth Amendment’s due process protections require these migrants to be given a chance to seek release through a bond hearing before an immigration judge.
U.S. Circuit Judge Leslie Southwick, writing for the majority in Thursday’s opinion, said the U.S. Supreme Court made clear in 2001 that the due process clause protects everyone, including the two Mexican citizens and one Honduran whose cases were before the 5th Circuit.
“It is part of the historic majesty of this long-ago founding charter that it makes no exceptions in providing basic rights to those within our boundaries, including a right to be heard when personal liberty is taken,” wrote Southwick, who was appointed by Republican President George W. Bush.
U.S. Circuit Judge Cory Wilson, a Trump appointee, dissented, saying “the majority marginalizes the Constitution’s express grant of plenary authority over immigration matters to Congress.”
Rebecca Cassler, a lawyer for the migrants at the American Immigration Council, in a statement said they “are delighted that the panel recognized the core constitutional principle that the due process clause does not allow the government to lock them away indefinitely.”
The U.S. Department of Homeland Security, which oversees ICE, did not respond to a request for comment.
Under federal immigration law, “applicants for admission” to the United States are subject to mandatory detention while their cases proceed in immigration courts and are ineligible for bond hearings.
Bucking a long-standing interpretation of immigration law, the U.S. Department of Homeland Security last year took the position that non-citizens already residing in the United States, and not just people arriving at the border, qualify as “applicants for admission” subject to mandatory detention.
The Board of Immigration Appeals, which is part of the Justice Department, issued a decision in September that adopted that interpretation. As a result, immigration judges, who are employed by the department, across the country began ordering mandatory detention.
The federal appeals courts are divided on whether that interpretation of the law is correct, leading the Trump administration last week to ask the Supreme Court to resolve the issue.
