Dem
47
GOP
53
Earlier this week, the Ohio-based 6th U.S. Circuit Court of Appeals joined two other circuits and hundreds of lower court judges in striking down the Trump administration's mandatory detention policy for non-citizens. The Court affirmed the district court's grant of several habeas corpus petitions and held that the 30-year old immigration law, which applies to "applicants for admission," refers only to those arriving at the border and not those living in the country's interior. Non-citizens living in the U.S., most of whom have lived here for decades and have jobs and families, can't be detained without bond. According to the Court, the practice violates the Constitution's right to due process.
Two weeks ago, the 2nd U.S. Circuit Court of Appeals in New York also held that the Trump administration cannot detain non-citizens without giving them the right to seek release on bond. The Trump administration instituted a new mass detention order last July, which requires immigration judges to deny bond hearings to anyone caught up in the sweeps wherever they are found and regardless of their status, the length of time they've been in the U.S., or lack of criminal history. Like the 6th Circuit and the Atlanta-based 11th Circuit, the Court found that the law only allows mandatory detentions of those who are newly arriving and detained at the border.
This decision is a split from the 5th and 8th Circuits, which upheld Trump's new interpretation. Naturally, this likely sets up review by the Supreme Court. Another appeals court, the 9th Circuit, has yet to rule on a class-action suit that also challenged mandatory detentions. We previously wrote about U.S. District Judge Sunshine Sykes' decision striking down the policy and requiring bond hearings for members of the class, in line with the majority of federal courts.
As we've noted before, the mass detentions have strained the courts' and the Department of Justice's resources because, without the availability of a bond hearing from an immigration judge (who is part of DHS), detainees have to file habeas corpus petitions in federal court to have any chance of being released. DoJ attorneys are being reassigned to immigration cases to handle the thousands of filings, with one lawyer famously asking the judge to hold her in contempt so she can get some sleep.
And again, most of the non-citizens caught up in the dragnet have no criminal record, have lived in the U.S. for decades, and have been granted work authorization, usually due to already having an open case seeking asylum or other lawful basis to remain. The case before the 2nd Circuit involved a Brazilian man with no criminal history who has lived in the U.S. since 2005 and has a wife and two U.S. citizen children. He applied for asylum and was granted a work authorization while his case was pending. During that time, he started his own construction business.
It's unlikely that any of these cases will reach the Supreme Court before the midterms, but they are a reminder that while ICE activity may have been somewhat pared back, the mandatory detention policy is still in place and innocent people are being swept up and thrown in prison camps with few options to get out. Trump may not have to explain these unpopular and cruel policies, but Republican candidates for the House and Senate surely will have to do so. (L)