Trump Administration Mandatory Detention Policy Splits Appeals Courts

The Trump administration's policy of keeping immigrants in detention during their deportation proceedings has led to hundreds of lawsuits and differing interpretations by federal appeals courts. The U.S. Court of Appeals for the 11th Circuit ruled 2-1 against the administration on Wednesday, finding that the policy of detaining immigrants in the interior of the country rather than releasing them on bond was unlawful.

The 11th Circuit, which covers Alabama, Florida and Georgia, joined the 2nd Circuit in rejecting the policy. The 5th Circuit and 8th Circuit have upheld the administration's position. The 7th Circuit issued an evenly split decision.

The law shifted the standard for determining eligibility for speedy removal and mandatory detention from whether an individual was apprehended at the border or in the interior to whether the person had been "admitted" to the United States. Andrew Arthur of the Center for Immigration Studies told the Washington Examiner that the 1996 law specified that officials should determine whether a noncitizen had been admitted.

Individuals who entered illegally are considered not admitted and subject to inadmissibility grounds. Those who have been admitted, even if unlawfully present, go through different deportation proceedings and are not subject to mandatory detention. Courts have disagreed over whether immigrants apprehended in the interior of the country are considered to be seeking admission or whether they should be treated as already admitted.

The 11th Circuit panel found that the administration's interpretation defining immigrants in the interior as seeking admission was unlawful. The majority opinion stated that no-bond detention generally applies to arriving aliens seeking lawful entry and not to aliens simply present in the country.

U.S. Circuit Judge Stanley Marcus, joined by U.S. Circuit Judge Robin Rosenbaum, authored the majority opinion. U.S. Circuit Judge Barbara Lagoa dissented. The 2nd Circuit issued a similar ruling against the policy on April 28. The 5th Circuit upheld the policy in February and the 8th Circuit followed in March.

The 7th Circuit's even split came earlier this week. The 1st Circuit and 4th Circuit heard arguments this week on related appeals. During 1st Circuit arguments, U.S. Circuit Judge Sandra Lynch stated that the Supreme Court is going to have to decide the issue.

The Supreme Court completed its final scheduled oral arguments for the current term last week. The earliest the court could hear the case would be the term beginning in early October. No party has yet appealed any of the circuit court decisions to the Supreme Court, though such petitions are expected in the coming months.

The policy remains in effect in some circuits while litigation continues. Arthur noted that the justices would likely have to live with the circuit split in the interim before hearing full arguments.