On Deportations, the Fifth Circuit Turns to the Law

Critics bemoaning the immigration detention ruling by a panel of riders on the Fifth Circuit would appear to be better off directing their ire not to the judges or the president, but to Congress. The panel hews to federal statute to back President Trump’s policy of detaining without bond illegal immigrants, even if they have lived here for years. The illegals are being apprehended per Mr. Trump’s push to take care that the immigration laws are faithfully executed.The dispute before the Fifth Circuit, Buenrostro Mendez v. Bondi, centers on Mr. Trump’s effort to deport two aliens “entered illegally many years ago,” as Judge Edith Jones writes for the majority of the panel. The two illegals demanded to be freed on bond while their removal proceedings play out in court, while the president seeks to hold them until the matter is settled. With the president aiming to deport millions of illegals living here, the stakes in the case are high.The ruling by Judge Jones, a Reagan appointee, joined by Judge Kyle Duncan, nominated by Trump, is facing criticism on the left. Legal sage Steven Vladeck calls the jurists “the most reactionary, right-wing federal appellate judges in the country.” Mr. Vladeck avers that in this ruling, the Fifth Circuit “jumps the immigration detention shark.” That view is echoed by a dissenter on the Fifth Circuit panel, Judge Dana Douglas, a nominee of President Biden.Judge Douglas asserts that Congress, when it passed a law that bears on Buenrostro Mendez, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, “would be surprised to learn it had also required the detention without bond of two million people.” Yet as a matter of statutory interpretation it’s hard to find fault with the logic of the ruling by Judges Jones and Duncan. “After reviewing carefully the relevant provisions and structure of the Immigration and Naturalization Act,” Judges Jones and Duncan write, along with “the statutory history, and Congressional intent, we conclude that the government’s position is correct.” The law Congress passed in 1996, they add, sought to fix an “incongruity” in federal law relating to “procedural and substantive rights” of illegal immigrants detained by authorities. Before 1996, the judges explain, aliens apprehended near the border “were subject to mandatory detention” and “could not request release on bond.” Yet illegals “who evaded inspection and were apprehended months or years later could seek release on bond pending deportation proceedings.” The legislation in 1996 made it clear that an illegal immigrant located in the interior of America “shall be deemed” under federal law “an applicant for admission.”This effort by Congress to establish a consistent legal standard appears to be in line with a core power granted in the Constitution to the legislature. Article I, Section 8 gives Congress authority “to establish “an uniform Rule” of Naturalization. It’s hard to see why different legal treatment for illegals is warranted based on whether they are captured at the border or, say, Iowa. That said, a split among circuits makes this issue likely to reach the Supreme Court.There, the Nine have in the past marked a distinction between the due process rights of illegal immigrants found at the border as opposed to the interior. In 2020, in Department of Homeland Security v. Thuraissigiam, the majority held that for illegals at the border, the deportation “decisions of executive or administrative officers,” who are “acting within powers expressly conferred by Congress,” amount to “due process of law.”Writing for the majority, Justice Samuel Alito based this finding on the 1996 law cited by Judges Jones and Duncan. Yet Justice Alito added that “aliens who have established connections in this country have due process rights in deportation proceedings.” Whether these rights include the privilege to be freed on bail during deportation proceedings, the question brought to the fore by the Fifth Circuit’s ruling, appears unlikely, but could prove fit for high court review.

On Deportations, the Fifth Circuit Turns to the Law

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