Two federal appeals courts issued rulings on Thursday against the Trump administration’s policy of detaining immigrants who crossed the border illegally years ago and then holding them indefinitely, without a bond hearing.
The legality of the policy depends on treating undocumented immigrants as still “seeking admission” no matter when they came to the country. The policy has also been challenged on constitutional grounds as potentially violating the Fifth Amendment’s guarantee to due process.
The U.S. Courts of Appeal for the Ninth Circuit and Seventh Circuit ruled against the administration’s interpretation of the law. The Ninth Circuit hears appeals from California and other Western states; the Seventh Circuit covers Illinois, Indiana and Wisconsin.
The new rulings deepen a divide between the appellate courts and make it even more likely that the Supreme Court will take up the issue in its coming term. In a dissent to the Seventh Circuit’s ruling, all three judges — two from the majority and one dissenting — urged the Supreme Court to do exactly that. “Only the Supreme Court can bring uniformity and settle this question once and for all,” wrote Judge Diane S. Sykes, an appointee of President George W. Bush. “I anticipate that it will do so soon.”
Both of Thursday’s rulings were split. In the Ninth Circuit, Judges M. Margaret McKeown and Daniel A. Bress were in the majority, while Judge Carlos T. Bea dissented, coming down in favor of the policy’s legality. In the Seventh Circuit, Judges Candace Jackson-Akiwumi and Joshua P. Kolar were in the majority, while Judge Sykes dissented.
The courts of appeal for the Second, Sixth, 10th and 11th circuits have also ruled against the administration’s policy of indefinite detention, while the Fifth and Eighth circuits have ruled in its favor. The Seventh Circuit had previously issued a narrower ruling without a majority reaching a conclusion on the question of the policy’s legality.
Three separate petitions are now pending at the Supreme Court, asking the justices to review the rulings from the Fifth, Second and Sixth circuits. Two of those petitions are from the administration; one is from the A.C.L.U. Coming after the court’s rulings on birthright citizenship and Temporary Protected Status, such a case would be another test of whether the policies behind the administration’s aggressive deportation efforts are legal.
