The Fifth Circuit migrant detention appeal ended Thursday with a 2-1 ruling that U.S. Immigration and Customs Enforcement cannot hold immigrants for more than 90 days without a chance to seek bond while deportation proceedings continue. The decision could affect thousands of people detained in Texas and Louisiana, and it reaches a detention practice already under pressure in other courts.
Judge Leslie Southwick wrote for the majority. He said the due process clause protects everyone within U.S. boundaries and wrote: "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".
Southwick and Wilson
Judge Cory Wilson dissented. He said the majority "marginalizes the Constitution's express grant of plenary authority over immigration matters to Congress." The split leaves ICE with a detention rule that the court said cannot run past 90 days without giving a detainee a bond opportunity during the pending case.
That ruling comes after a different panel of the same court in February was the first in the country to side with the administration's interpretation of a federal immigration statute allowing mandatory detention of non-citizens living in the United States. The February ruling did not answer whether the Fifth Amendment requires a bond hearing before an immigration judge.
Rebecca Cassler on detention
Rebecca Cassler, a lawyer for the migrants at the American Immigration Council, said the panel was "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 Department of Homeland Security said it disagrees with the ruling and is confident in its legal position regarding mandatory detention.
Last week, the administration asked the U.S. Supreme Court to review a similar ruling by a different appeals court. Federal immigration law says applicants for admission to the country are subject to mandatory detention while their cases proceed in immigration courts, which makes the Fifth Circuit's bond requirement the practical limit for this detention practice inside Texas and Louisiana.
Texas and Louisiana detention
The opinion does not say how many migrants are currently being held under the practice in the Fifth Circuit's jurisdiction. For people held past 90 days in the court's territory, the ruling now gives them a path to ask for release on bond while their deportation cases move forward.
