Migrant Bond Hearings Denied in Major Court Ruling

A federal appeals court ruled on Friday, October 23, that detained immigrants have no constitutional right to ask a judge for release on bond, closing one of the last legal doors for migrant bond hearings in three states. In a 10-7 decision, the New Orleans-based Fifth Circuit Court of Appeals held that the Fifth Amendment's due process protections do not require migrant bond hearings for people detained while their deportation cases move through the system, a process that routinely stretches for months.

Judge Cory Wilson, an appointee of President Donald Trump, wrote the majority opinion. "To the extent petitioners seek to vindicate a liberty interest to be free from physical restraint in the most abstract sense, they can do so at any moment by agreeing to leave the country," Wilson wrote. The ruling lands hardest in Texas and Louisiana, which hold the largest numbers of immigration detainees of any federal circuit, because it removes the main way people held there could ask a court for migrant bond hearings. The court also ordered its mandate to issue forthwith, sending the case back to the district courts immediately, which makes the ruling binding precedent across Texas, Louisiana and Mississippi.

What the ruling changes

The case reversed course twice before landing here. In February, a smaller panel of the same court sided with the administration, reading federal immigration law as requiring mandatory detention for people facing deportation. Five months later, a different panel ruled 2-1 the other way, finding that Immigration and Customs Enforcement could not constitutionally hold people more than 90 days without offering them migrant bond hearings. That decision grew out of lawsuits filed by a pair of Mexican citizens and a Honduran national. The full court agreed to rehear the case and, on Friday, sided with the government.

Two of the men behind the earlier challenge, Victor Buenrostro-Mendez and Jose Padron Covarrubias, are Mexican nationals who entered the country without authorization in 2009 and 2001 and were detained last year under the administration's policy. Both men are trying to fight their deportations in court; federal law gives some long-term residents a way to challenge removal when a qualifying family member would face serious hardship. At an earlier stage of the case, both men had convinced lower-court judges they were wrongly denied migrant bond hearings.

What happens next

The constitutional question the Fifth Circuit answered is only half the fight. The Supreme Court agreed this month to take up the related statutory question: whether federal immigration law itself requires migrant bond hearings, regardless of what the Constitution demands. Most federal appeals courts that reviewed the administration's detention policy have ruled against it, including the Second and Sixth Circuits, which prompted the administration's appeal. The justices will weigh only whether the hearings are required by statute, not whether the Constitution requires them, which leaves Friday's constitutional answer standing unless Congress changes the law. The Supreme Court, which has a six-to-three conservative majority, has allowed a number of the administration's hardline immigration policies to take effect while related litigation continues.

Reaction split along predictable lines. Ellie Norton, a lawyer for the detained immigrants at the National Immigration Project, said the ruling "opens the door to more people being locked up for no reason, with devastating consequences for them, their loved ones and their community." Homeland Security's general counsel, James Percival, celebrated the outcome on social media as a "big win" on mandatory detention. Judge Dana Douglas, dissenting, warned that "unchecked, executive authority to arrest and detain, indefinitely, echoes fearfully from history."

According to Reuters, a February analysis found that judges around the country had ruled more than 4,400 times that the administration detained immigrants unlawfully, and detention lawsuits have only multiplied since. With the Fifth Circuit now holding that the Constitution requires no hearing at all, and the Supreme Court set to decide only the statutory question, detained immigrants in the circuit's states could spend months behind bars with no judge reviewing whether migrant bond hearings should have been an option. More detail on the decision is available in this breakdown of the ruling.