A federal appeals court ruled Friday that illegal immigrants who snuck across the border without detection can be detained pending the outcome of their deportation cases, effectively blessing President Trump’s approach.
The 5th U.S. Circuit Court of Appeals, acting in full, said even illegal immigrants have some constitutional due process rights — but those who evaded authorities to sneak into the country, and have never been granted even a temporary admission, enjoy less rights.
And Congress has said they can be detained, the appeals court said in its ruling. Ten justices were in the majority, with seven dissenting.
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“Petitioners have received the process due to unadmitted aliens,” wrote Judge Cory Wilson in the main opinion.
Judge James Ho, in a concurring opinion, cast the case as a fundamental question of the country’s ability to maintain its borders. He said the Constitution grants Congress extraordinarily strong powers to decide who enters the country, and who can be blocked, and who can be removed.
“And most relevant here, the power to remove aliens from our country necessarily includes the power to detain them pending their removal,” he said.
Judge Ho said to conclude otherwise would eviscerate the concept of border control.
“Petitioners aren’t claiming a right to liberty. They’re claiming a right to unlawful entry. Because the government isn’t trying to incarcerate Petitioners. It’s trying to remove them from our country,” he wrote.
He said migrants have the keys to their own cells — they can escape detention at any time, as long as they accept deportation to a country outside the U.S.
The dissenters, though, said longtime illegal immigrants in the country’s interior have earned constitutional rights that don’t exist at the border itself.
Judge Leslie Southwick, leading the chief dissenting opinion, said the court’s majority “has constructed an impenetrable wall between the Constitution and these long-term residents.”
He said the Supreme Court has already said that illegal immigrants cannot be detained indefinitely.
From that follows that there must be legal standards for them to challenge their detention.
Judge Southwick rejected the idea that a longtime illegal immigrant must face the choice of remaining in detention or else giving up and going home.
“The Constitution does not permit the government to hold an alien for as long as that decision takes, with no obligation ever to justify continuing confinement,” he wrote.
The case goes to the heart of detention.
Immigration experts have long maintained that when migrants are detained, they can be quickly deported if they lose their cases.
Those who are not detained, however, can wait years for hearings and even if they are ordered removed can evade deportation. More than a million migrants with final deportation orders were inside the U.S. at the start of the current Trump administration.
The law says a migrant who is an “applicant for admission” can be detained.
The Department of Homeland Security last year took a new approach, saying that any illegal immigrant who snuck by border authorities and was never formally admitted is still an applicant, no matter how far back the illegal entry was.
Judge Southwick said that was a striking break.
“Whatever the tradition for aliens arriving at the border, the tradition for aliens living in the interior has been release on bond unless the Government shows danger or flight risk — the very showing Petitioners ask to have made,” Judge Southwick wrote.
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