Appeals court greenlights Trump admin policy of detaining undocumented immigrants without opportunity to seek release

(CNN) — A divided federal appeals court on Friday ruled in favor of the Trump administration’s policy of detaining millions of undocumented immigrants, even those who have been living in the US for decades, without the opportunity to challenge their detention, handing President Donald Trump a major win as he seeks to carry out an aggressive deportation campaign.

The 2-1 ruling from the conservative 5th US Circuit Court of Appeals means that in several southern states, scores of immigrants who had been living in the US unlawfully, including those who were previously allowed to remain out on bond as their case made its way through the immigration system, can now be detained and denied the opportunity to seek their release through bond hearings before immigration judges.

In thousands of cases around the country, federal judges had consistently ruled that the policy Trump rolled out last year was unlawful, but Friday’s decision marks the first time an appeals court has backed it. The ruling only applies to immigrants in Texas, Louisiana and Mississippi.

“There’s a reason why, across more than three thousand cases in dozens of federal district courts, the Trump administration decided to have its first appeal of a loss on this issue go to the Fifth Circuit,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center, who has previously written about the legal dispute in these cases.

“The Fifth Circuit isn’t just the most right-leaning appeals court in the country; the government drew on this panel two of that right-leaning court’s most right-leaning judges. It’s hard to imagine they’re going to get the last word,” he said.

Though other appeals courts around the US are still examining the policy, the 5th Circuit’s ruling tees up a likely showdown over it at the Supreme Court.

Friday’s majority decision was authored by Judge Edith Jones, an appointee of former President Ronald Reagan, and joined by Judge Kyle Duncan, a Trump appointee.

The two Republican appointees said that while the Trump administration had reversed decades of executive branch policy of allowing immigrants to remain out on bond while their immigration cases proceeded, current officials were well within their authority to make the switch.

“That prior administrations decided to use less than their full enforcement authority … does not mean they lacked the authority to do more,” Jones wrote.

Under prior administrations, noncitizens who had entered the US illegally, were later apprehended away from the border and had no criminal history were able to be released on bond while their immigration cases unfolded. That longstanding policy contrasted with how immigrants who were detained at the border were treated. Those individuals could be placed in expedited removal proceedings without the ability to seek release on bond.

Judge Dana Douglas, an appointee of former President Joe Biden, warned in a dissenting opinion that the majority ruling could result in detention without bond for two million noncitizens in the US.

“The government today asserts the authority and mandate to detain millions of noncitizens in the interior, some of them present here for decades, on the same terms as if they were apprehended at the border,” she wrote. “No matter that this newly discovered mandate arrives without historical precedent, and in the teeth of one of the core distinctions of immigration law.”

She continued: “The majority seems to be unable to imagine what it might mean to be detained within the United States without the appropriate proof of admissibility, and, without a bond hearing, to require the services of a federal habeas corpus lawyer to show that one is entitled to release and deserves to see the outside of a detention center again.”

“This is not, or not just, a matter of human sympathy, but rather a matter of understanding one of the core distinctions in immigration law, and the very good reasons for it,” Douglas wrote.

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