Trump administration cannot hold migrants without bond hearings past 90 days, court rules

U.S. Immigration and Customs Enforcementcannotdetain people for more than90daysunder theTrumpadministration’s mass detention policywithoutproviding them a chance to be released onbond, a divided U.S. appealscourtruled on Thursday.

The rulingby a 2-1 panel of the New Orleans-based 5th U.S. CircuitCourtof Appeals could affect thousands of individuals who have been detained in states within its jurisdiction, including Texas and Louisiana, as part of President DonaldTrump’s immigration crackdown.

A different panel of the samecourthad been the first in the nationto endorse theTrumpadministration’s novel interpretation of a federal immigration statute as allowing mandatory detention of non-citizens living in the United States.

But the February ruling did not address whether the due process protections of the U.S. Constitution’s Fifth Amendment require those samemigrantsbeing given a chance to seek release by appearing before an immigration judge for abondhearing.

U.S. Circuit Judge Leslie Southwick, writing for the majority in Thursday’s opinion, said the U.S. SupremeCourtmade clear in 2001 that the due process clause protects everyone, including the two Mexican citizens and one Honduran whose cases were before the 5th Circuit.

“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,” wrote Southwick, who was appointed by Republican President George W. Bush.

U.S. Circuit Judge Cory Wilson, aTrumpappointee, dissented, saying “the majority marginalizes the Constitution’s express grant of plenary authority over immigration matters to Congress.”

Rebecca Cassler, a lawyer for themigrantsat the American Immigration Council, in a statement said they “are 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 U.S. Department of Homeland Security, which oversees ICE, did not respond to a request for comment.

Under federal immigration law, “applicants for admission” ​to the United States are ​subject to mandatory detention ⁠while their cases proceed in immigrationcourts and are ineligible forbondhearings.

Bucking a long-standing interpretation of immigration law, the U.S. Department of Homeland Security last year took the position that non-citizens already residing in the United States, and not just people arriving at the border, qualify as “applicants ​for admission” subject to mandatory detention.

The Board of Immigration Appeals, which is part of the Justice Department, issued a decision in September ​that adopted that interpretation. As a result, immigration judges, who are employed by the ​department, across the ⁠country began ordering mandatory detention.

The federal appealscourts are divided on whether that interpretation of the law is correct, leading theTrumpadministrationlast week to ask the Supreme Courtto resolve the issue.