Fifth Circuit Says the Constitution Requires No Bond Hearings for Detained Migrants

Fifth Circuit Says the Constitution Requires No Bond Hearings for Detained Migrants

A 10-7 en banc ruling upholds mandatory detention

The U.S. Court of Appeals for the Fifth Circuit ruled 10-7 on Friday that detained immigrants have no constitutional right to a bond hearing, holding that the Fifth Amendment's due process protections do not require immigration courts to offer release proceedings beyond what Congress provided by statute. The New Orleans-based court's conservative majority sided with the Trump administration's mandatory detention policy.

The ruling governs Texas, Louisiana and Mississippi

The decision is binding across Texas, Louisiana and Mississippi, home to some of the largest federal immigration detention centers. It closes the main legal avenue judges in those three states have used to free detained migrants who filed habeas petitions challenging the legality of their detention.

July's 90-day rule is reversed

The full court reheard the case after a divided three-judge panel ruled 2-1 in July that immigration authorities could not constitutionally detain people for more than 90 days without a hearing to argue for release on bond. Friday's opinion reverses that panel decision. Earlier, in February, the Fifth Circuit had already adopted the administration's reading of immigration law as requiring mandatory detention. The majority opinion was written by Circuit Judge Cory Wilson.

Section 1225(b) and the admitted-versus-unadmitted line

The majority rested on the long-standing Section 1225(b) of the Immigration and Nationality Act, which says certain immigrants "shall be detained for a proceeding." Historically that provision applied to people stopped at the border; the administration extended it to unauthorized immigrants living in the interior. The majority held that Congress has broad constitutional authority over immigration, that detention is mandatory for applicants for admission not clearly entitled to enter or remain, and that years of physical presence inside the United States do not create a due process entitlement to an individualized bond hearing.

Dissenters warn of indefinite detention without review

Circuit Judge Dana Douglas wrote that "unchecked, executive authority to arrest and detain, indefinitely, echoes fearfully from history." Circuit Judge Southwick dissented separately, saying detention can be a valid part of removal proceedings but there is no support for locking up noncitizens for as long as their cases remain pending, "however delayed," with no option for possible release. Southwick was joined by Douglas and Judges Carl Stewart, James Graves Jr., Stephen Higginson and Irma Carillo Ramirez. Judge Southwick added that people living in the interior have traditionally been released on bond unless the government shows danger or flight risk.

Three consolidated Texas cases, and lawyers condemn the outcome

The case, Rodriguez v. Ortega, No. 26-50183, consolidates three cases brought by three men detained in Texas, represented by the National Immigration Project, the American Immigration Council and Garza & Narvaez PLLC. "This ruling opens the door to more people being locked up for no reason, with devastating consequences for them, their loved ones and their community," said lawyer Ellie Norton of the National Immigration Project. Attorney Gracie Willis called the decision "an affront to due process" that seeks to criminalize immigrants and create an environment of fear.

The Supreme Court will decide the statutory question next

On October 1 the Supreme Court agreed to review the statutory side of the dispute: whether the administration's reading of the detention statute is correct, which could move many detainees into the bond-permitting framework of Section 1226(a). According to reporting, more than 500 federal judges have rejected the government's interpretation in roughly 20,000 cases over the past year, a federal judge issued a class-wide order in Maldonado Bautista forcing the government to resume bond hearings, and nine of the eleven appeals courts to rule have sided with the immigrants, with only the Fifth and Eighth Circuits backing the government. If the justices uphold the administration's reading, detainees in the Fifth Circuit's three states will have no constitutional entitlement to bond hearings while their removal cases proceed.