A divided federal appeals court on Thursday rejected the Trump administration’s policy of holding certain immigrants without access to bond hearings, with the majority invoking Japanese internment during World War II as a warning against mass detention.
The 2-1 decision by the U.S. Court of Appeals for the 4th Circuit deepened a split among appeals courts over Immigration and Customs Enforcement’s interpretation of immigration law, setting the stage for a possible Supreme Court showdown.
“Mass detention of marginalized individuals without due process harkens back to some of the darkest moments in our country’s history,” Judge Nicole Berner wrote in an opinion joined by Judge Barbara Keenan. “[T]he government ordered the mass detention of all individuals of Japanese descent present in the United States during World War II. Nearly 120,000 people were sent to internment camps within our borders.”
Berner described the wartime detentions as a “historical stain” and said the government’s current interpretation of immigration law would authorize detention on an even greater scale through an ambiguously worded provision enacted three decades ago.
At issue is whether illegal immigrants must remain in custody during their deportation proceedings or whether they can seek release through a bond hearing.
For decades, administrations of both parties, including President Donald Trump’s first administration, generally applied the mandatory detention provision to people arriving in the country. Immigrants arrested in the interior generally could seek bond under a separate provision, subject to statutory exceptions.
In July last year, ICE changed its interpretation. Under the new approach, people who entered the country illegally could be treated as applicants for admission even after living in the United States for years, making them subject to detention without bond while their cases proceeded.
The 4th Circuit became the ninth federal appeals court to reject that interpretation. The 5th and 8th circuits have upheld it.
The administration’s position rests on Section 235(b) of the Immigration and Nationality Act, which governs the detention of applicants for admission. Opponents argue that Section 236 generally governs people already living in the country and allows eligible detainees to seek bond hearings.
In dissent, Judge Allison Rushing, an appointee of Trump, argued that earlier administrations’ decisions not to exercise the full extent of their authority did not make the current administration’s approach unlawful.
“The majority clearly has strong views about what it considers the ‘moral implications’ of denying individuals bond during their removal proceedings,” Rushing wrote, arguing that the court’s interpretation must remain grounded in the Constitution.
Berner was appointed by former President Joe Biden, and the other judge who sided with her majority opinion, Keenan, is an appointee of former President Barack Obama.
The policy has prompted a wave of emergency legal challenges. More than 460 federal judges have rejected the administration’s interpretation, while just over 50 have accepted it. Judges appointed by presidents of both parties have ruled against the policy.
Courts rejecting the interpretation have argued that Congress would have spoken clearly if it intended to authorize such a broad detention requirement.
The Trump administration has argued that illegal immigrants who evade detection at the border should not receive greater due process protections than those who present themselves to authorities upon arrival.
The 5th and 8th circuits agreed, concluding that people first encountered by the Department of Homeland Security in the interior can still be treated as applicants for admission and held without bond under the mandatory-detention provision.
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The matter is likely headed next for a Supreme Court petition by the Trump administration now that several appeals courts have weighed in.
The Washington Examiner contacted DHS and the Justice Department for a response.