Fifth Circuit: Mandatory Immigrant Detention Bond Hearings Argued

• Three immigrants, who have lived in the U.S. for over a decade, are challenging a Trump administration policy that denies bond hearings to noncitizens in removal proceedings who were not legally admitted.
• They argue that this mandatory detention policy, which applies regardless of their time in the U.S., violates their constitutional due process rights.
• The full Fifth Circuit Court of Appeals recently heard arguments in the en banc review of the case, after a prior three-judge panel had ruled that long-term residents have a constitutional right to a bond hearing within 90 days of detention.
• The government contends that Congress mandated detention for "applicants for admission," making bond hearings on flight risk or dangerousness irrelevant.
• This case highlights a conflict with rulings from nine other federal appeals circuits regarding the mandatory detention of unauthorized entrants.

The interest here is the right to physical liberty, and the question is, when is an individual’s right to physical liberty outweighed by sufficiently compelling government interest, what is that interest, and then under what circumstances will it be sufficient to show that that interest is served by the person’s detention?

The full Fifth Circuit Court of Appeals recently heard arguments to consider whether certain noncitizens facing deportation proceedings possess a constitutional right to a bond hearing. This pivotal review stems from a challenge brought by three individuals who have resided in the United States for more than ten years. They are contesting a Trump administration policy that mandates the detention of all immigrants who entered the country unlawfully, without offering them the opportunity for a bond hearing, irrespective of their duration of stay in the U.S.

These immigrants contend that the policy, which denies bond hearings to noncitizens in removal proceedings who were not legally admitted, constitutes a violation of their due process rights. The en banc hearing, for which arguments were recently heard, follows a July decision by a three-judge Fifth Circuit panel, which had sided with the immigrants. That panel's majority ruled that even those who entered the country without authorization, but have lived in the U.S. for a substantial period, are entitled to a constitutional bond hearing within 90 days of their detention. Such a hearing would allow them to challenge their detention by demonstrating they pose neither a flight risk nor a danger to the community. Subsequently, the full appeals court voted to rehear the case and issued a stay on rulings by several federal judges that had prevented the government from detaining the three men without bond hearings.

During the recent proceedings, Deputy Assistant Attorney General Drew Ensign argued that the statutory interpretation of federal immigration law should be determinative. Ensign asserted that Congress explicitly decided to mandate detention for all individuals classified as "applicants for admission," regardless of whether they are deemed dangerous or a flight risk. He characterized any hearing on flight risk or dangerousness in this context as a "bootless exercise" that procedural due process cannot compel, likening it to a 14-year-old demanding a hearing to obtain a driver's license, thereby attempting to circumvent a legislative policy restricting licenses to those 16 and older.

Conversely, Rebecca Cassler, an attorney with the American Immigration Council representing the three immigrants, maintained that the Constitution mandates the government to provide a sufficient justification for detaining an individual, irrespective of statutory language. Cassler emphasized that the core interest at stake is the right to physical liberty. She posed the fundamental question of when an individual's right to physical liberty can be outweighed by a sufficiently compelling government interest, what that interest entails, and under what specific circumstances detention adequately serves that interest. However, some judges on the panel expressed skepticism regarding this argument. Chief U.S. Circuit Judge Jennifer Walker Elrod, a George W. Bush appointee, questioned the existence of an abstract, enumerated right to freedom within a country one is seeking admission to. Additionally, U.S. Circuit Judge Cory Wilson, a Donald Trump appointee, raised questions about how courts could ascertain whether an immigrant possesses sufficient ties to the U.S. to establish a constitutional right.

A point of inquiry from several judges during the hearing concerned whether immigrants could voluntarily depart the country to avoid detention while simultaneously continuing to challenge their removal in immigration court. Both Cassler and Ensign, however, stated they were unaware of any mechanism allowing an immigrant to pursue a challenge to their removal proceedings after voluntarily leaving the United States.

This aspect underscores the difficult choices faced by individuals in detention and the potential finality of certain actions within the immigration system. The inability to continue legal challenges from outside the country could significantly impact strategic decisions for those subject to mandatory detention policies, further highlighting the importance of the court's eventual ruling on the right to a bond hearing.

The current en banc review by the Fifth Circuit is particularly significant given the existing legal landscape. A previous, divided Fifth Circuit panel had ruled that immigrants who entered the country without authorization are to be considered "applicants for admission," regardless of their length of stay. Under federal immigration law, this classification allows for their detention without bond hearings. This interpretation directly conflicts with rulings from nine other federal appeals circuits, creating a notable circuit split on a crucial aspect of immigration law.

This disagreement among federal appellate courts highlights the divergent legal approaches to mandatory detention for unauthorized entrants. The outcome of the Fifth Circuit's en banc review will not only determine the rights of noncitizens within its jurisdiction but could also influence future challenges and potentially contribute to a Supreme Court review to resolve the conflicting interpretations across the country. The decision will profoundly impact due process arguments and the ability of immigrants in the Fifth Circuit to challenge their detention.

Lawyers practicing immigration law in the Fifth Circuit should closely monitor this en banc review, as the ruling will determine whether certain non-citizens in removal proceedings have a constitutional right to a bond hearing, significantly impacting detention challenges and due process arguments for their clients.

Source: Original reporting via Court News Service