A three-judge panel of the 11th U.S. Circuit Court of Appeals ruled Wednesday that the Trump administration cannot continue denying bond hearings to people in immigration proceedings regardless of how long they have lived in the United States, according to the Associated Press. The 2-1 decision, written by Senior Circuit Judge Stanley Marcus and joined by Circuit Judge Robin Rosenbaum, rejected the Department of Homeland Security’s mandatory detention policy, deepening a divide among federal appeals courts.
The 11th Circuit ruling aligns with an April decision from the 2nd Circuit, which also found the policy unlawful. In contrast, the 5th and 8th Circuits previously upheld the administration’s approach. A 7th Circuit panel on Tuesday split three ways, with one judge rejecting the policy, another supporting it and a third declining to rule on the matter. The growing patchwork makes it increasingly likely that the U.S. Supreme Court will be asked to resolve the conflict.
The appeal before the 11th Circuit arose from lower-court rulings in the cases of two Mexican men who had been living in the U.S. without authorization since 2015 and 2019. They were arrested during traffic stops in Florida in September and placed in deportation proceedings. Under the administration’s policy, both were denied bond hearings, though neither had a criminal record.
Since July, when ICE acting director Todd Lyons announced that all people in deportation proceedings would be treated the same as new arrivals, the Department of Homeland Security has denied bond hearings even to immigrants who have lived in the country for years without criminal history. Previously, most noncitizens without a criminal record who were not apprehended at the border could ask an immigration judge for bond, and it was often granted unless the person was deemed a flight risk. Mandatory detention was generally reserved for people who had just entered the U.S.
Writing for the majority, Judge Marcus said the court was “unpersuaded by the Government’s re-interpretation” of a section of federal law that the administration argued limits detention without bond to people “seeking admission” into the country. The majority opinion stated, “Simply put, the language that Congress has chosen to use does not grant to the Executive unfettered authority to detain, without the possibility of bond, every unadmitted alien present in the country.” The judges found that Congress had preserved a long-standing distinction between interior and border detention for more than a century.
Trump appointee Circuit Judge Barbara Lagoa dissented, writing that “there is no dispute that unlawfully present aliens are applicants for admission.” She argued that while the statutory provision might fit arriving aliens better, a “more comfortable fit does not allow us to read an exception” into the law.
The Department of Homeland Security “strongly disagrees with the Eleventh Circuit panel and is confident in its legal position regarding mandatory detention,” a spokesperson said in a statement. The agency pointed to opinions from the Board of Immigration Appeals, the two courts of appeals that sided with it, and Judge Lagoa’s dissent. “President Trump and Secretary Mullin are now enforcing the law as it was actually written to keep America safe,” the statement added.
The practical effect of the policy is that detainees who cannot ask an immigration judge for bond are instead filing habeas corpus petitions in federal court to challenge their detention. That has produced a flood of litigation: the Associated Press reported that more than 30,000 such lawsuits have been filed by people detained without bond as the administration pursues mass deportations, creating a “crushing workload for the federal courts.”