5th Circuit Says Due Process Rights For Immigrants No Longer Exist In Its Jurisdiction

Legal Issues

from the supreme-court-jr dept

Trump and his supporters clearly believe migrants have no constitutional rights. But that’s simply not true. They have the same rights as citizens for one truly obvious reason: a government could choose to declare certain people non-citizens in order to strip them of their rights. That would be highly problematic in a nation that’s almost entirely the result of immigration, which is why courts have routinely held that non-citizens have the same rights as citizens while on US soil.

That’s still the case, for the most part. The Fifth Circuit — fulfilling its role as the preferred US Supreme Court understudy — has chosen to ignore literally hundreds of rulings in favor of due process rights for immigrants to decide those no longer exist in the states most migrants detained by the government get sent to before being removed from the country.

Last November, the Trump administration’s efforts to eliminate due process rights had been rejected by more than 100 judges in more than 200 cases. A few months later — and with a full-press surge happening in Minneapolis, Minnesota — the number of rejections has spiked:

A POLITICO review of thousands of ICE detention cases found that at least 360 judges rejected the expanded detention strategy — in more than 3,000 cases — while just 27 backed it in about 130 cases.

While most of the mass deportation action is currently happening far north of the Fifth Circuit (which covers Louisiana, Mississippi, and Texas), arrested immigrants are often sent almost immediately to detention facilities closer to the southern US border. Texas is, by far, the most popular destination for ICE detainee flights.

The Fifth Circuit waited around until late Friday night to release this decision [PDF], presumably in hopes of seeing the backlash subside a bit before the judges were due back at the office. Steve Vladeck covers all the angles in his post on this abhorrent ruling, starting with how this is an insane conclusion to reach given that 3,000 cases around the country have upheld the same rights the Fifth Circuit has chosen to deny to any migrant with the misfortune of finding themselves in its jurisdiction.

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…

The obvious upshot of this decision is that ICE et al will be rushing detainees to Texas ASAFP to take advantage of this ruling.

As Aaron Reichlin-Melnick from the American Immigration Council noted last night, the Fifth Circuit’s decision will “fuel ICE’s push to transfer people to Texas immediately,” and it will put “even more pressure on plaintiffs and district courts outside the 5th Circuit. Unless the habeas is filed before a person is transferred to the 5th Circuit, a person may remain locked in appalling conditions, never even allowed to ask for bond.” All of that can be traced to another procedural technicality—the principle that a district court gains jurisdiction over a habeas petition if, but only if, it is filed while the petitioner is physically in that court’s jurisdiction. In other words, to avoid being subject to the Fifth Circuit’s decision (while it remains on the books), detainees arrested elsewhere would have to have someone file on their behalf before they’re physically transferred into the Fifth Circuit.

There’s still a chance that people arrested in, say, Minneapolis, Minnesota might be able to avoid the Fifth Circuit’s refusal to recognize their due process rights. But the denial of due process rights begins immediately in most cases, with ICE officers refusing to allow detainees to contact family members, much less seek legal representation. If ICE can get them on a plane headed south before anything is filed in local courts, the Fifth Circuit’s ruling will override whatever rights migrants might have still had access to in the states they were removed from.

An appeal of this decision is already in process. And while it’s concerning that this particular iteration of the Supreme Court will be handling it, it’s not a foregone conclusion that it will convert the Fifth’s ruling into nationwide precedent. Even at its worst, the Supreme Court has rejected a handful of Fifth Circuit rulings that cross the line into an open embrace of violent fascism. On the other hand, this version of the Supreme Court is far more prone to deliver wordless rubber stamps of appellate decisions it likes, so some caution is warranted.

This decision requires the most MAGA-coded judges in the Fifth to buy everything the Trump administration is selling. And what it’s selling is a brand new interpretation of the phrase “seeking admission.” Rather than limiting it to people crossing the border illegally, it applies this definition to any migrant who doesn’t have the proper paperwork, even if they arrived in this country decades ago.

The dissent, written by Judge Dana Douglas, makes it clear that this administration will do anything and everything that serves its racist desire to eject non-whites from the United States.

The Congress that passed IIRIRA (Illegal Immigration Reform and Immigrant Responsibility Act [1996]) would be surprised to learn it had also required the detention without bond of two million people. For almost thirty years there was no sign anyone thought it had done so, and nothing in the congressional record or the history of the statute’s enforcement suggests that it did. Nonetheless, the government today asserts the authority and mandate to detain millions of noncitizens in the interior, some of them present here for decades, on the same terms as if they were apprehended at the border.

Do you want to be this shitty, Judge Douglas asks the judges who pretended this sort of thing is OK as long as it’s Trump doing it.

The majority stakes the largest detention initiative in American history on the possibility that “seeking admission” is like being an “applicant for admission,” in a statute that has never been applied in this way, based on little more than an apparent conviction that Congress must have wanted these noncitizens detained—some of them the spouses, mothers, fathers, and grandparents of American citizens. Straining at a gnat, the majority swallows a camel. I dissent.

Hopefully this ruling will be reset by the Supreme Court or an en banc rehearing. But for now, the law of the land in three states that are willing to house ICE detainees says due process rights are only available in the 47 states the Fifth Circuit doesn’t control.

Filed Under: 14th amendment, 5th circuit, alien enemies act, due process, mass deportation, trump administration