The sneaky way Trump’s lawyers are supercharging ICE

Shortly after President Donald Trump took office for the second time, his administration started illegally detaining immigrants without giving them a bond hearing or other method of avoiding incarceration while an immigration judge determines if they are in the country legally. 

The overwhelming majority of federal judges have rejected this illegal practice. As Politico’s Kyle Cheney reported in February, “at least 360 judges rejected the expanded detention strategy — in more than 3,000 cases — while just 27 backed it in about 130 cases.”

Unfortunately for the immigrants caught up in Trump’s dragnet, the minority of judges who support the administration’s mass detentions policy appear to be overrepresented on federal appeals courts, powerful bodies which can determine how federal law functions in multiple states. On Wednesday, a divided panel of the the US Court of Appeals for the Eighth Circuit, whose jurisdiction includes Minnesota, embraced the minority position and called for mandatory detention.

That means that, unless the Eighth Circuit’s decision is reversed on appeal, immigrants arrested during Trump’s occupation of Minneapolis just lost the most effective legal tool they could use to challenge their detentions. So long as the Eighth Circuit’s decision remains in effect, most of these immigrants will likely have no way to escape detention while their cases remain pending in immigration court.

Federal immigration law contains two provisions laying out how noncitizens should be treated while immigration officials and courts are determining whether they may legally remain in the country. One provision says that immigrants who are “seeking admission” to the United States must be detained if there is uncertainty about whether they should be admitted. But once an immigrant enters the United States, a different provision allows them to be released on bond or parole if they are arrested for allegedly being in the country unlawfully.

The overwhelming majority of judges have ruled that immigrants arrested within the interior of the United States are not subject to mandatory detention. This is also how every presidential administration prior to the second Trump administration — including Trump’s first administration — read federal immigration law after the relevant provisions were enacted in 1996. Again, federal law only calls for mandatory detention when an immigrant is “seeking admission” to the US. (I explained Trump’s contrary interpretation of the law, and why it is incorrect, here.)

Why are appellate courts backing a MAGA interpretation of the law that nearly every trial court has rejected?

While only a small handful of federal judges have backed Trump’s interpretation of federal immigration law, they include four who serve on powerful appeals courts. In February, two members of a three-judge panel on the Fifth Circuit called for mandatory detention of immigrants arrested within the United States. Two members of the Eighth Circuit agreed with their fellow Republicans on the Fifth on Wednesday, in a case known as Herrera Avila v. Bondi.

A third appeals court, the Seventh Circuit, adopted the majority view of federal immigration law in December.

There are two explanations for why two of the three appeals courts to consider this question have reached a conclusion that is out of step with the rest of the judiciary. One is that appellate judges, who often issue broad legal rulings that govern multiple states, typically go through a more partisan vetting process than their counterparts on trial courts. District court nominations are still sometimes doled out based on merit, or based on a judicial candidate’s connection to a home-state senator, but appellate judges are typically vetted very closely by the White House or the Justice Department to ensure that they hold similar ideological views to the president and his party.

For this reason, judicial decision making often becomes more partisan as cases move up through the appellate process. And the Fifth and Eighth Circuits, the two courts which called for mandatory detention, are both Republican Party strongholds. The Fifth Circuit is dominated by MAGA judges who frequently hand down decisions limiting the rights of immigrants. And, while the Eighth Circuit’s judges tend to be less flamboyant in their conservatism than their counterparts on the Fifth, 10 of the Eighth Circuit’s 11 active judges were appointed by a Republican.

And that brings us to the second reason why appeals courts have, thus far, tended to view mass detention differently than federal trial judges. The Justice Department has a fair amount of control over the timing of lawsuits involving the United States. It can immediately appeal some cases that it lost in the court below, while waiting until the last minute to appeal in others. It can also seek expedited review in some cases, and not in others.

In a recent immigration case out of New Jersey, a federal judge noted that the Trump administration sought expedited review of the mandatory detention question in the Fifth Circuit, but did not do so in the more ideologically balanced Third Circuit. Trump’s lawyers, in other words, appear to be intentionally manipulating court schedules to ensure that the most Trump-aligned circuits decide the mass detention question first.

In any event, the Supreme Court typically takes up cases that divide federal appeals courts. So the fact that the Seventh Circuit has already disagreed with the Fifth and the Eighth means that Supreme Court review of this question is probably inevitable. By manipulating the circuit courts’ calendars, however, Trump may give the justices the mistaken impression that an outlier view held by only a small minority of judges is, in fact, the dominant one.