Ever since Trump’s return to office, almost every federal law enforcement agency has been ordered to treat illegal immigration as their first priority. This is why the administration is gutting FEMA to direct more dollars to detention and removal efforts. And that’s why ICE is now the administration’s largest law enforcement budget line item.
To keep up with moving (and ever-increasing) deportation targets, the government has done everything from dismissing pending immigration hearings to stripping temporary protected status from thousands of vulnerable people to the very thing that has been rejected by hundreds of federal judges in thousands of cases.
The administration claims the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA or IRA, depending on which titles judges choose to use) gives it the power to treat any migrant — no matter how long they’ve been in the country — as someone who has been accosted while attempting to cross the border. Migrants who are slated for removal are generally given due process rights if they’re not arrested while attempting border crossings. Trump’s DOJ and DHS have constantly pushed the theory that due process rights do not apply to undocumented immigrants, no matter where they’re arrested or how long they’ve lived in the United States.
As the law stands — at least in terms of how it has been interpreted for the past 30 years — arrested migrants are supposed to receive a bond hearing and be released if they pose no threat of flight or to public safety. The administration goes hard in the other direction, pretending constitutional rights don’t apply to migrants. But it has repeatedly demonstrated it doesn’t even believe its own bullshit. That’s why arrested migrants are swiftly moved from where they’re arrested and shuffled from detention center to detention center to prevent them from filing habeas motions, which must be filed in the jurisdiction in which they were initially arrested.
So far, eight of eleven appellate circuits have ruled in favor of due process rights and against the administration’s desire to pretend the Constitution no longer exists simply because it has expressed a very novel interpretation of the 1996 law.
This loss in the Fourth Circuit brings the total to nine of eleven circuits. And this means the Supreme Court is going to be asked to sort this out, which isn’t exactly heartening. But here are some details on the latest, rather large loss by the Trump administration, as summarized by Politico’s Kyle Cheney:
A federal appeals court on Thursday rejected ICE’s effort to detain millions of people without bond, comparing it to the “historical stain” of Japanese internment during World War II.
“Mass detention of marginalized individuals without due process harkens back to some of the darkest moments in our country’s history,” 4th Circuit Court of Appeals Judge Nicole Berner, a Biden appointee, wrote in a 2-1 majority opinion joined by Judge Barbara Keenan, an Obama appointee.
There it is. The same people who excuse past racism as being a product of a “different time” are doing everything they can to revive this “different time” in the present and make it the “new normal” going forward.
The decision [PDF] notes that this legal action has been brought by two migrants who cannot truly be considered “recent” crossers of the border who were caught in the act of illegal entry. One of the plaintiffs has been here since the law the administration is now deliberately misquoting was first enacted (1996). The other plaintiff is far from a US rookie, having lived here peacefully and productively since 2005.
The government could not be more wrong. And this court isn’t willing to bless a self-serving interpretation that seeks to Make America 1942 Again.
Putting all of our tools of statutory construction to work, we hold that Section 1226, not Section 1225, applies to noncitizens who, like the Petitioners, have been present in the United States for years regardless of how they entered our country. Our holding accords with the text, structure, context, and purpose of the INA [1952’s Immigration and Nationality Act] as well as its universally accepted application for the past three decades. Though the Government’s construction finds some support in the text, it suffers several fatal defects. It renders entire portions of the INA meaningless, calls into question amendments to the statute in the intervening decades, including the recent passage of the Laken Riley Act, and raises significant constitutional concerns.
If we were to agree with the Government’s construction, we would need to conclude that, in passing IIRIRA thirty years ago, Congress intended to direct the single largest mass detention of human beings in our nation’s history. Section 1225 simply “cannot bear the weight of the millions of noncitizens it would potentially subject to detention without bond.”
This administration unabashedly does want courts to agree with its interpretation of the law and it definitely wants to engage in the “single largest mass detention of human beings in our nation’s history.” It doesn’t see this as problematic. Instead, it considers the courts’ nearly-100% rejection of its theories to be the real problem here. In response, it has chosen to directly insult and threaten judges, rather than craft any better arguments in support of its openly racist actions.
While this does put almost every circuit in opposition of the president and his efforts, it does make it clear a showdown in the Supreme Court is all but inevitable. Unfortunately, this iteration of the Supreme Court has repeatedly demonstrated that it believes the president should be able to unilaterally declare how laws should be interpreted, if not able to override them completely by simply issuing an executive order. The conservative majority of the court will undoubtedly do everything it can to prop up decisions delivered by the appellate exceptions to the rule.