Steve Vladeck: The Fifth Circuit Jumps the Immigration Detention Shark

[Nevilledog]

https://www.stevevladeck.com/p/208-the-fifth-circuit-jumps-the-immigration


I’ve written before about the deeply contested (and contestable) reinterpretation of federal immigration law that the Trump administration adopted last summer, under which any non-citizen who was never lawfully admitted to the United States is subject not just to arrest, but to mandatory detention with no opportunity for release on bond for the duration of their removal proceedings.

This argument, which applies even to those who have lived in the United States (lawfully)1 for decades; even to those who at one point had “Temporary Protected Status”; even to those who have an asylum application pending, is based on the analytically and linguistically flawed claim that such individuals are “arriving aliens” who are “seeking admission” to the United States. (As one district judge put it last August, “someone who enters a movie theater without purchasing a ticket and then proceeds to sit through the first few minutes of a film would not ordinarily then be described as ‘seeking admission’ to the theater.”)

As I explained back in December, the Trump administration’s novel interpretation of a 29-year-old statute that five previous presidents (including Trump) had interpreted differently is not just the putative basis for so much of the controversial behavior in which ICE, CBP, and other federal agencies have been engaged over the last six months; it has been overwhelmingly rejected by federal district judges from across the geographic and ideological spectrum. According to Politico’s Kyle Cheney (who’s done truly exceptional work tracking these cases) reports, “at least 360 judges [have] rejected the expanded detention strategy—in more than 3,000 cases—while just 27 backed it in about 130 cases.” (Yes, this is the same issue that has caused the backlog and mess in the federal district court in Minneapolis in which Chief Judge Schiltz recently accused ICE of violating nearly 100 court orders—all of which ordered the release of individuals the government was purporting to hold under this interpretation—and that led a government lawyer to have a widely noted public breakdown in court last week.)

Well, late Friday night, in a ruling handed down just two days after oral argument, a divided panel of the U.S. Court of Appeals for the Fifth Circuit adopted the extreme minority view—holding that, yes, the government can indefinitely detain without bond millions of non-citizens who have been here for generations; who have never committed a crime; and who pose neither a risk of flight nor any threat to public safety. The Fifth Circuit’s opinion was written by Judge Edith Jones and joined in full by Judge Kyle Duncan—two of the most reactionary, right-wing federal appellate judges in the country (newsletter readers may recall my November 2024 run-in with Judge Jones; perhaps she’ll add this issue of the newsletter to her folder of my work).

*snip*