Another federal appeals court could hand President Donald Trump a victory in his legal war over mandatory detention for illegal immigration, as a panel on the U.S. Court of Appeals for the 8th Circuit appeared friendly to the administration’s stance during arguments on Thursday.
The Trump administration won a key legal victory in the U.S. Court of Appeals for the 5th Circuit earlier this month, when the appeals court upheld the Trump administration’s illegal immigrant mandatory detention policy, rejecting claims by opponents of the administration that bond hearings are required for illegal immigrants. The ruling was the first time an appeals court had upheld the policy, after the administration faced hundreds of losses in federal district courts, as the problem inches closer to the Supreme Court.
On Thursday, a three-judge panel on the 8th Circuit, which comprises mostly Republican-appointed judges, appeared skeptical of the arguments from Michael Tan, a lawyer representing an illegal immigrant detained by Immigration and Customs Enforcement, that federal immigration law requires a bond hearing for illegal immigrants detained in the interior of the country. Tan and DOJ lawyer Drew Ensign offered differing opinions on what the Illegal Immigration Reform and Immigrant Responsibility Act, a 1996 law outlining immigration detention procedures, states about Trump’s mandatory detention policy.
Ensign argued the 1996 law removed the right to a bond hearing for people detained in the interior of the country, placing illegal immigrants detained at a port of entry and those detained in the interior under the same standard of mandatory detention.
“Congress specifically sought to eliminate this preferential treatment for illegal actions in IIRIRA, and I think that’s a policy choice that should be respected here,” Ensign argued.
Tan argued that while the IIRIRA enacted mandatory detention for illegal immigrants who committed crimes, it did not expand that mandatory detention to illegal immigrants detained in the interior of the country. He cast doubt on the DOJ’s view by arguing the Trump administration is attempting to claim an authority that “somehow escaped everyone’s notice for the last 30 years.”
“What the executive is doing is abandoning the choice Congress made in order to advance its own policy goals, and it’s doing that despite more than 370 federal judges rejecting government overreach,” Tan told the appeals court panel.
Tan’s position was met with significant skepticism by the panel, with one of the judges questioning if his position would be asking the court to affirm how immigration detention law functioned prior to IIRIRA.
“Doesn’t your position return us to the pre-IIRIRA framework, where those who enter the country without permission gain a procedural advantage over those who seek to enter lawfully?” one judge asked Tan.
Another judge said he had “a little trouble understanding” Tan’s argument regarding who would not be subject to mandatory detention, when it appears the law would broadly include illegal immigrants detained throughout the country.
The panel of judges who heard the case Thursday included two appointed by Trump, judges Ralph Erickson and L. Steven Grasz, and one appointed by former President George W. Bush, Judge Bobby Shepherd. The judges did not indicate when they will issue a ruling, but Ensign told the panel if they are “able to issue an opinion quickly, that would be extraordinarily well received by the government.”
The ruling by the 8th Circuit panel will have a significant impact on the fate of hundreds of mandatory detention challenges in Minnesota, where the administration has faced an avalanche of lawsuits over illegal immigrant detention during increased federal immigration enforcement operations in recent months. The 8th Circuit’s ruling, either in favor or against the administration’s mandatory detention policy, will be the position that federal district courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota will have to follow on the matter.
If the 8th Circuit rules against the administration on mandatory detention, counter to the 5th Circuit’s ruling, it would create a circuit split between the appeals courts and make the issue more likely to be taken up by the Supreme Court.
LOWER COURTS UNDERMINE TRUMP’S APPEALS COURT WIN ON IMMIGRATION DETENTION
Even if the 8th Circuit does not create a split on the issue, the matter is making its way through other appeals courts, and a split between the circuits appears inevitable.
“This is one of those things the Supreme Court needs to resolve sooner rather than later, because this is sapping the vital energy out of the district courts and out of DOJ because there are just so many of these cases,” Andrew Arthur, the Center for Immigration’s resident fellow in law and policy, previously told the Washington Examiner.
