The U.S. Court of Appeals for the Fifth Circuit has pulled back from its earlier position on immigration detention, ruling that the federal government must give certain detained migrants bond hearings after 90 days.
The decision, posted on DocumentCloud, concerns detention under Section 1225(b)(2)(A), a provision of immigration law covering some noncitizens who entered the United States without authorization. The court said the executive branch may hold those detainees without a bond hearing for three months, but not longer.
That is a limit, but a strange one. The Fifth Circuit said the government had not shown a categorical reason to detain this group without bond. Then it gave the government 90 days of no-bond detention anyway. Constitutional rights, apparently, now come with a quarterly vesting schedule.
The court acknowledges the constitutional problem
The panel said its ruling responds to pressure created by its own recent immigration detention precedent. In February, the Fifth Circuit’s decision in Buenrostro-Mendez interpreted detention as mandatory for people who entered the country without authorization, according to the new opinion.
The court wrote that the February interpretation had created “enormous difficulties in district courts,” with thousands of immigration detainees filing habeas corpus petitions in federal court. The new ruling shifts that burden to the executive branch by requiring bond hearings through immigration procedures.
“Nonetheless, the answer to those difficulties cannot include ignoring the Constitution,” the court wrote.
The opinion frames the issue under the Fifth Amendment. Techdirt reported that the February decision had effectively denied migrants access to Fourteenth Amendment due process arguments by treating them as if they were apprehended at the moment of unlawful entry, even when they had already spent time in the United States.
Ninety days without bond
The operative holding is blunt. The Fifth Circuit said that, unlike earlier Supreme Court cases involving people already found removable or convicted of crimes, the government had no categorical justification for detention here.
“Given the absence of any categorical justification for detention,” the court wrote, “there is no reason to lengthen the period of time during which the validity of detention can be presumed.” It then concluded that the government may detain people under Section 1225(b)(2)(A) “for ninety days but no longer without a bond hearing.”
In practice, that means migrants covered by the ruling do not get an immediate bond hearing. After 90 days, the government must provide one. The court did not say detention ends automatically at that point, only that continued detention requires access to a bond process.
The ruling also leaves the Fifth Circuit out of step with the account Techdirt gives of other federal courts, where judges have repeatedly rejected the Trump administration’s treatment of migrants’ constitutional claims. The Fifth Circuit covers Texas, Louisiana and Mississippi, states that include immigration detention facilities used by the federal government.
The decision is still a retreat from the court’s February posture. It recognizes that migrants detained by the government can invoke constitutional process. It also tells the government it can wait 90 days before honoring that process. For detainees, that distinction is not academic. It is three months in custody before the machinery even has to start.
This story draws on original reporting from Techdirt.
