Headline caveat: Just because something is too dumb to check does not mean it did not happen.
Last week, the Fifth Circuit dealt a serious blow to immigration-enforcement opponents by ruling that illegal immigrants had no right to bond from ICE or Border Patrol custody. Plaintiffs in the case argued that the longstanding policy adopted by previous administrations to allow for bond while detained for immigration violations set up a reliance issue that requires the policy to be treated as statutory law. Not only did the Fifth Circuit reject that argument, but the panel also noted that the statute adopted by Congress controlling this question specifically directed no-bond policies as a rational way to address previously contradictory outcomes.
At the moment, this ruling only has precedential weight within the Fifth Circuit – Texas, Louisiana, and Mississippi. With this ruling in hand, though, one can expect the Department of Homeland Security to transfer detainees to these three states when practical, allowing them to process these detainees through to deportation without having to find them again while out on bond – as Congress intended.
With that in mind, Politico reports that at least two federal district court judges in Texas claim to have discovered a work-around to the Fifth Circuit's ruling and precedent. They are suggesting that detainees deserve credit for squatting in the US for any significant length of time and that they are owed enhanced "due process":
But two federal district court judges in Texas, who are bound by the New Orleans-based 5th Circuit’s ruling, said the 2-1 decision left an opening for them to continue granting immigrants’ release on other grounds, primarily constitutional arguments against detaining people who have established roots in the U.S. without due process. Those roots amount, in legal parlance, to a “liberty interest” that the Constitution says cannot be taken away without at least a hearing before a neutral judge.
“This conclusion is not changed by the Fifth Circuit’s recent decision,” Judge Kathleen Cardone, an El Paso based appointee of George W. Bush, ruled late Monday in at least five cases, concluding that the circuit’s decision “has no bearing on this Court’s determination of whether [the petitioner] is being detained in violation of his constitutional right to procedural due process.”
Judge David Briones, an El Paso-based Clinton appointee, reached a similar conclusion.
“The Court reiterates its original holding that noncitizens who have ‘established connections’ in the United States by virtue of living in the country for a substantial period acquire a liberty interest in being free from government detention without due process of law,” Briones wrote.
First off, these two judges are being entirely dishonest about the ruling in Buenrostro-Mendez v Bondi et al/Covarrubias v Vergara et al. The 2-1 decision acknowledged that the plaintiffs/detainees had stayed in the US illegally for "many years," and did not find any "liberty interests" created by what amounts to an ongoing crime in progress. Notably, this idea doesn't even come up in the dissent from Judge Dana Douglas' opposition relied on technical applications, overlap, and gaps between two different parts of the statute under which the Trump administration enforced in these two consolidated cases.
Why didn't Douglas make that argument? Because it's sheer nonsense. Entering the US illegally is a crime, and remaining in the US illegally is also a crime (misdemeanors in the first instance, felonies in subsequent instances). To argue that people committing ongoing illegal acts are entitled to enhanced due process protections based on the length of those acts is not just bizarre, but amounts to something close to backdoor amnesty. It creates a kind of "squatter's rights" argument in immigration law that simply doesn't fit.
Bill Glahn made this argument yesterday at the Center of the American Experiment, which I linked briefly in last night's Final Word:
I’m otherwise a big fan of “liberty,” but these judges have manufactured a squatter’s right to remain in America without permission. Keep in mind that detainees have already received all of the process to which they are due, that is, they have been ordered removed by an Immigration Court.
One district judge wrote,
The Court reiterates its original holding that noncitizens who have ‘established connections’ in the United States by virtue of living in the country for a substantial period acquire a liberty interest in being free from government detention without due process of law.
And how does he decide when a connection has been established that overrides federal law? Is it de facto citizenship? Common law citizenship? Can these noncitizens now vote?
The claim that the situation lacks due process is entirely specious itself. Our friend Shipwreckedcrew pointed out this fallacy today on X/Twitter, citing the statute itself as Congress' grant of due process for illegal aliens:
They don't ask the appropriate first question -- "What process is due?" As has long been settled law, "due process" can arrive in the form of legislative action.
"The procedural component of the Due Process Clause does not "impose a constitutional limitation on the power of Congress to make substantive changes in the law...." Atkins v. Parker, 1985
Congress said for this entire class of illegal aliens -- "Mandatory Detention."
Exactly. Congress wrote this 1996 statute precisely with this outcome in mind in order to address an irrational outcome from previous immigration-enforcement statutes. The Fifth Circuit explicitly notes this in its ruling:
Finally, we observe that the government’s interpretation better honors predominant goal in the enactment of IIRIRA. By eliminating the exclusion/deportation dichotomy, IIRIRA put aliens seeking admission lawfully on equal footing with those who entered without inspection. It seems strange to suggest that Congress would have preserved bond hearings exclusively for unlawful entrants. See H.R. Rep. No. 104-469, pt. 1, at 225; Torres, 976 F.3d at 928 (noting that IIRIRA “did away with th[e] ‘entry doctrine . . . anomaly” under which “immigrants who were attempting to lawfully enter the United States were in a worse position than persons who had crossed the border unlawfully”).15 Preserving this distinction is especially odd where the Department of Justice Inspector General found in 1997 that “when aliens are released from custody, nearly 90 percent abscond and are not removed from the United States.” 62 Fed. Reg. at 10323. That situation exists today on a much larger scale. The petitioners’ fears about potential abuse of detention pending removal proceedings under Section 1225b2A are wholly speculative. In any event, Zadvydas v Davis, 533 U.S. 678, 678, 121 S. Ct. 2491, 2492, (2001), has no direct application to aliens who are detained and being given due process during removal proceedings. Ultimately, because Congress’s purpose matters far less than what it wrote, this argument merely confirms what the statutory text already makes clear.
And, perhaps anticipating what some lower-court judges might try, the panel preceded this paragraph with a warning about judges legislating from the bench, emphasis mine:
This court declines to speculate about why Congress may or may not have deferred implementation of § 1225(b)(2)(A). “[I]t is never [the court’s] job to rewrite . . . statutory text under the banner of speculation about what Congress might have done.” Garland v. Cargill, 602 U.S. 406, 428, 144 S. Ct. 1613, 1626 (2024) (quoting Henson v. Santander Consumer USA Inc., 582 U.S. 79, 89, 137 S. Ct. 1718, 1725 (2017)). Congress could have declined to delay implementation of § 1225(b)(2)(A) for any number of reasons, and reading into a Congressional omission provides little insight, if any, into the meaning of clear text.
What these two judges have tried is worse. They want to amend the statute itself to insert "liberty interests" in a law that Congress created to ensure expeditious resolution of deportations. These two judges may well disagree with that policy, and they can certainly express those feelings. They have no authority, however, to just create laws they prefer in contradiction of actual statutes, and in this case, also a clear intent by Congress to deny all illegal aliens of this class any chance at bond, no matter how long they have been in the US.
This new "policy" has zero chance of success on appeal. And this administration has proven itself very aggressive when it comes to appealing rogue jurists on the federal district-court level who confuse themselves with the legislature on one day and with the executive branch on the next. The Fifth Circuit ruling on this absurd attempt at judicial activism will almost certainly be delightful to read.
