A federal appeals court said Wednesday that the Trump administration is likely on solid legal ground with its new interpretation allowing mandatory detention of illegal immigrants as they await their deportation hearings.
The decision by the 8th U.S. Circuit Court of Appeals could be a major boost to Homeland Security and the Justice Department, which have been battling thousands of lawsuits from migrants who say the law gives them the right to post a bond and be set free while they await their day in immigration court.
Nearly all of those lower court cases that have reached decisions have gone against the administration. But the 2-1 decision by the circuit court could alter that equation.
Judge Bobby Shepherd, a George W. Bush pick, said the case turned on how the law was written and whether Congress wanted to allow expansive detention powers for the government in deportation cases, including the power to hold anyone who jumped the border without permission.
“In distinguishing an alien ’who has not been admitted’ from one ’who arrives,’ the text makes clear that it applies to aliens in the nation’s interior as well as at the border,” Judge Shepherd wrote, joined by Judge Steven Grasz, a Trump appointee.
Dissenting was Judge Ralph Erickson, another Trump pick, who said the government was breaking with decades of practice — including the first Trump administration — in reinterpreting the law to allow mandatory detention.
He said migrants who show up at the border are both an “applicant for admission” and “seeking admission,” so they can be detained without bond. Those who already sneaked past the border without getting caught are still applicants for admission but are not seeking admission, so they don’t fall under the mandatory detention part of the law and may not demand a bond hearing.
The issue has turned into a high-stakes battle at the heart of President Trump’s plans for mass deportation, with thousands of “habeas corpus” cases being filed each month in federal district courts challenging the new Trump interpretation.
Nearly all of the cases to reach a substantive ruling in the district courts had gone against Mr. Trump, but they’ve now won two appeals court rulings.
“This decision reinforces the importance of challenging and appealing activist judicial rulings in order to ensure the law is being followed as written,” a senior administration official told The Washington Times.
Detention has been central to Mr. Trump’s plans for mass deportations.
Homeland Security has long argued that if migrants can be detained, they can be deported. Their cases move faster through the immigration courts and authorities know where to locate them once the judges have ruled.
If released, however, their cases get shunted into a lengthy queue and can stretch for years, and even if they are ordered deported, DHS has to find them. Some 1.6 million migrants with deportation orders are already at large in the U.S.
As of the last public data in early February, before the current DHS shutdown, the department had about 68,000 migrants in detention. Its goal is to have 92,600 beds by Nov. 30.
The subject of Wednesday’s ruling is Joaquin Herrera Avila, a Mexican who sneaked into the U.S. in 2006 and again in 2016.
He was arrested by immigration officers in Minneapolis last summer and was put into deportation proceedings.
Judge Erickson said he had a limited criminal record, with one DUI over two decades.
Mr. Avila filed a habeas corpus petition challenging his detention, saying the administration’s decision stemmed from a new — and untested — legal opinion that illegal immigrants who sneaked into the country, no matter how long they’ve been here, were still considered “seeking admission” as if they were just caught at the border.
The lower court agreed and ordered that he be given a new bond hearing in immigration court. The immigration judge then said he could be released on a $7,500 bond.
In that, the district court judge was siding with hundreds of other decisions that ruled the same way.
Which makes Wednesday’s decision all the more stark — particularly coming from a circuit court.
The 8th Circuit now joins the 5th Circuit in ruling that mandatory detention can apply to migrants who sneaked across the border.
The 7th Circuit, ruling in a different case about warrantless immigration arrests, went the other direction.
Decisions are expected from the 6th and 9th Circuits, and four other circuits have oral arguments scheduled this spring.
The matter is likely to end up before the Supreme Court.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
Please read our comment policy before commenting.