Delivers 8th straight blow

Appeals court delivers 8th straight blow to ICE’s mandatory detention policy

The 3rd Circuit said the Trump administration misinterpreted federal law.

By Kyle Cheney

ICE’s losing streak continued Friday as an eighth straight federal appeals court rejected the agency’s massive expansion of detention for immigrants with long-term roots in the U.S.

A divided panel of the Philadelphia-based 3rd Circuit Court of Appeals concluded that ICE’s novel interpretation of mandatory detention laws distorted a 30-year-old statute that was generally meant to require detention for people who recently crossed the border.

The panel also concluded that ICE detainees with extensive ties to the U.S. have a constitutional due process right to a bond hearing.

The issue is almost certainly destined for Supreme Court resolution. Though eight appeals courts have rejected ICE’s position, two have endorsed the administration’s approach. The Justice Department and ACLU have asked the justices to take up the matter in its next term, which begins in October.

Under ICE’s new view of the law, people who have lived inside the U.S. for years could still be treated as “seeking admission” to the country and therefore subject to mandatory detention without bond. That shift in ICE’s approach threatened millions of people — many of whom have U.S. citizen spouses and children — with abrupt arrest and detention, even though the vast majority have no criminal records.

And it has led to an extraordinary flood of emergency lawsuits from people detained by ICE under the new policy. A POLITICO analysis indicates that judges have rejected ICE’s new position more than 90 percent of the time, in more than 13,000 cases challenging the new policy. In the meantime, the policy has wreaked havoc on tens of thousands of lives and subjected people to months of detention that courts later determined was illegal.

Like the other circuits that rejected ICE’s policy, the 3rd Circuit majority — Obama appointee Patty Shwartz and Clinton appointee Theodore McKee — said that Congress’ immigration reforms in 1996 did not contemplate mandatory detention for millions of people, and in fact no prior administration believed such a mandate existed.

Trump appointee Jennifer Mascott dissented from the ruling, contending that the majority’s interpretation would create a perverse result: Those who presented themselves for inspection at the border would be subject to mandatory detention while those who evaded detection and remained in the U.S. illegally would be afforded bond hearings.

But the overwhelming majority of courts to consider the question have rejected that assessment, suggesting Congress may have intended to ensure that those with deep ties to the country — who had planted roots and become members of their community — were not abruptly shunted into detention facilities without at least a chance to secure bond.

The best evidence, they say, is that no previous administration, even Trump’s first, had claimed such a sweeping mandatory detention existed. And even the Supreme Court had previously suggested that bond hearings were the norm for people residing in the interior of the country.

Only one appeals court — the Richmond-based 4th Circuit — has yet to weigh in on the policy.