Trump’s Mass Detention Policy Shut Down By Two Appeals Courts On The Same Day

from the unforced-errors-and-deserved-losses dept

The Trump administration has been shut down more than 10,000 times by federal courts over its novel interpretation of the law — one it claims allows it to indefinitely detain migrants without giving them a bond hearing.

Some of those 10,000 adverse decisions have been significant, with implications that stretch far beyond single cases or even single states, as Kyle Cheney notes for Politico:

The rulings follows similar decisions in the Atlanta-based 11th Circuit, the New York-based 2nd Circuit, the Colorado-based 10th Circuit and the Cincinnati-based 6th Circuit. Two appeals courts, the 5th Circuit and the 8th Circuit, have sided with the Trump administration. Rulings are pending in three other circuits.

The score so far runs like this: 460 judges, 10,000 rulings against the administration versus 54 judges and 1,100 cases finding in Trump’s favor.

The Fifth Circuit’s decision isn’t an absolute win for the administration either. It says the government can violate migrants’ due process rights, but only for 90 days. The hitch here is that the Fifth Circuit has already agreed to review the case en banc. Whatever the outcome, it’s going to have repercussions that will alter how the government runs its mass deportation program. The circuit not only covers a large border state (Texas) but also several of the nation’s largest ICE detention facilities.

And given what we know about the Fifth Circuit, the judges petitioning for the rehearing aren’t hoping to deliver a decision respecting migrants’ 14th Amendment rights. The only reason they’re doing this is because they think migrants shouldn’t even have delayed access to their rights.

There’s a circuit split, but not much of one. Two more appeals courts have ruled against Trump’s detention policy.

In a pair of 2-1 decisions, the California-based 9th Circuit Court of Appeals and the Illinois-based 7th Circuit Court of Appeals found that the Trump administration had defied logic and misconstrued decades-old immigration laws to justify its expansive detention policy. Appeals courts have now split 6-2 against the administration as the issue hurtles toward the Supreme Court, while the overwhelming majority of lower-court judges have ruled against the administration as well.

This is going to hurt the administration, so we should probably expect the Supreme Court to get this on the shadow docket ASAP. The Ninth Circuit covers California, Trump’s favorite target for deportation surges.

Both circuits say the law doesn’t say what Trump wants it to say. While they come to the same conclusion, the appellate courts phrase it differently.

The Ninth Circuit’s ruling [PDF] makes a better — and clearer — point, so we’ll start there. The Immigration and Nationality Act was last amended in 1996. But nothing really changed. It was understood that migrants detained while trying to cross the border were not entitled to due process rights, like bond hearings. However, migrants already in the United States — especially those who had been here for a significant period of time — were afforded the same rights as US citizens.

Nothing changed for thirty years. Then Trump returned to office. And somehow everything changed. Not so fast, says the Ninth Circuit. Just because you want the law to say something it doesn’t, doesn’t make your argument any less ridiculous.

The government recently changed its longstanding approach. It now contends that unadmitted aliens present in the interior of the country are subject to mandatory detention without bond under § 1225(b)(2)(A), based on revisions to the statute that Congress made in 1996. […] The implication of the government’s position is that Congress in 1996 made a major change to the immigration laws by subjecting millions of unadmitted aliens present in the United States to mandatory detention, but that this change then went unnoticed and unheeded, with the Executive Branch for the next three decades violating Congress’s assertedly unambiguous mandatory detention directive by treating these aliens as subject to release on bond.

And while every law is written in legalese and is consequently somewhat open to interpretation, the Ninth Circuit says 30 years of history makes it clear what Trump is doing now is not what Congress intended when it amended the INA.

Whether these aliens should be subject to a broader mandatory detention regime is a policy question that lies outside the role of the judiciary. The question here is not about policy or Executive Branch discretion, but congressional authorization. We do not decide whether Congress could enact the detention regime as the government would now have it, but rather whether Congress did so in 1996. The better view is that it did not.

While this would seem to show Congress what it needs to do to make Trump happy and his mandatory detention scheme legal, it’s not that simple. Migrants still have access to constitutional rights, which means any legislative alteration would immediately be met by a constitutional challenge if passed. As it stands now, mandatory detention without a bond hearing is a no-go in the Ninth Circuit.

The Seventh Circuit’s ruling [PDF] focuses more on Congress circa 1996 than the Trump administration in 2026. But the end result is still the same.

DHS rests its new interpretation on changes Congress made to the Immigration and Nationality Act (“INA”) almost thirty years ago. Before those changes, aliens who unlawfully entered the country were given greater procedural rights than those who presented for inspection at the border. Congress ended that disparity by creating a legal fiction in removal proceedings that “deemed” all aliens not properly admitted “applicants for admission” to the United States, as if they had never crossed the border. But before last year, no administration had ever suggested this legal fiction extended beyond the INA’s removal procedures to its provisions governing detention pending removal.

It’s the same point made by the Ninth Circuit, even though the Seventh Circuit says it’s bad lawmaking that’s to blame, rather than an opportunistic, wholly disingenuous interpretation by the Trump administration.

But the administration isn’t completely off the hook. The appeals court says the administration can’t turn “legal fiction” into fact just because it only likes certain parts of the amended INA.

Section 1225(b)(2)(A) imposes mandatory detention on certain “applicants for admission,” but only those who are also “seeking admission.” And Cirrus Rojas is not seeking admission: the relief he now seeks, asylum and withholding of removal, is not admission as the statute and Supreme Court case law use that term. Cirrus Rojas has never applied for anything that counts as “admission” to the United States. Nor can he successfully “seek” admission, as his unlawful entry renders him inadmissible. The government simply argues that because Cirrus Rojas is “deemed” an “applicant for admission,” he must be “seeking admission.”

We hold that Cirrus Rojas is not “seeking admission”— and thus not covered by Section 1225(b)(2)(A)—because that is his real-world status. We join the majority of the circuits that have confronted this question in rejecting the government’s newfound statutory requirement for mandatory detention, which rests upon the illogical use of both legal fiction and ordinary meaning for the same term.

Then it shifts things back to Congress, much like the Ninth Circuit did:

One mixes fiction with fact at their peril. And the facts in this case are clear: Cirrus Rojas is not seeking admission to the United States. If Congress had meant to define individuals like Cirrus Rojas as “seeking admission,” it could have done so.

This may be a single appeal — one arising from tens of thousands of cases generated by this illegal mandatory detention policy — but it affects every migrant in the Seventh Circuit and forces the government to respect their due process rights.

Our holding is limited. We deal only with whether all aliens present without admission in the interior and facing removal proceedings are subject to mandatory detention. Under the INA’s plain text, context, and history, the answer is no.

This is going to hurt Trump, too. The Seventh Circuit covers Illinois, another target of Trump’s anti-migrant efforts solely because the state is governed by someone from the opposing political party.

Good news for migrants and constitutional rights. Bad news for an administration that has no respect for rights whatsoever and sees migrants as sub-human. We’ll see how long this lasts, but for now most of the country is covered by precedent that denies the administration access to its preferred method of inflicting misery on migrants.

Filed Under: 14th amendment, 7th circuit, 9th circuit, bigotry, dhs, ice, mass deportation, trump administration