July 2 (Reuters) – U.S. Immigration and Customs Enforcement cannot detain people for more than 90 days under the Trump administration’s mass detention policy without providing them a chance to be released on bond, a divided U.S. appeals court ruled on Thursday.
The ruling by a 2-1 panel of the New Orleans-based 5th U.S. Circuit Court of Appeals could affect thousands of individuals who have been detained in states within its jurisdiction, including Texas and Louisiana as part of President Donald Trump’s immigration crackdown.
A different panel of the same court had been the first in the nation to endorse the Trump administration’s novel interpretation of a federal immigration statute as allowing mandatory detention of non-citizens living in the United States.
But the February ruling did not address whether the due process protections of the U.S. Constitution’s Fifth Amendment require those same migrants being given a chance to seek release by appearing before an immigration judge for a bond hearing.
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. (Reporting by Nate Raymond in Boston; Editing by Aurora Ellis)