A Trump administration policy of holding people in immigration detention while their cases are decided was declared unconstitutional by a panel of judges in a midwestern appeals court on Monday, paving the way for undocumented people in Michigan and three other states to request bond.
“This ruling means that many individuals who are in detention will have an opportunity for a bond hearing that was previously denied to them, or required substantial investment and time to be able to get,” Ruby Robinson, senior managing attorney for the Michigan Immigrant Rights Clinic (MIRC) told Stateside.
The ruling brought about a rare sense of excitement for people in a detention facility that he visited soon after it came out.
“It is difficult to find hope for many folks at this time,” he said. “[T]his is a window for certain people to be able to ideally be released, or to be reunited with their family members, quicker than or potentially even with less legal cost than they might otherwise have needed.”
Robinson urged those who believe they might be eligible for bond to request a bond hearing before an immigration judge to make their case for release with the promise to appear at future hearings — though whether or not bond is issued is determined by immigration judges.
“This is a window,” Robinson said. “The window may stay open. The window may close.”
A chance at bond
People detained by immigration officers had to file a petition of habeas corpus in federal court to get a bond hearing after the Trump administration implemented its “mandatory detention” policy last summer. Under previous administrations, including President Trump’s first term, immigration detention was primarily reserved for undocumented people who had been charged with crimes.
With the start of his second term, Trump launched an extensive immigration enforcement operation and detained people who largely did not have permanent legal status pending the resolution of their immigration cases. Now, about 60,000 people are being held in immigration detention centers according to data from early April, and the vast majority of them – about 70%– have no criminal histories, despite Trump's and administration officials’ frequent claims of locking up the “worst of the worst.”
Those who, like the plaintiffs in this case, have lived in the U.S. without incident should be able to request bond, according to the 2-1 ruling from a panel of judges on the 6th Circuit Court of Appeals. The court found the Trump administration’s “mandatory detention” policy to be an unconstitutional denial of due process rights.
The plaintiffs in the case “contribute to their neighborhoods and local communities,” wrote Judge Eric L. Clay in the court’s majority opinion. “Many are the primary breadwinners or essential caregivers for their families, which include their children who were born here and are citizens of the United States.”
People in immigration detention, he continued, “should have a forum to explain that their backgrounds and connections to their communities justify release on bond while they undergo their removal proceedings.”
In a statement emailed to Michigan Public, a spokesperson for the Department of Homeland Security (DHS) said that the agency “strongly disagrees” with the ruling from the 6th Circuit and said that it remains “confident in its legal position regarding mandatory detention” which has been upheld by two of the five appeals courts which have taken up the issue.
“President Trump and [DHS] Secretary Mullin are now enforcing the law as it was actually written to keep America safe,” the spokesperson added.
Supreme Court likely to take up the issue
The majority opinion from the 6th Circuit takes a similar stance as that made by two previous appeals courts. Two other appeals courts have affirmed the Trump administration’s stance, arguing that immigration law allows for the detention of people seeking admission at the border and those who are in the country, even for lengthy periods of time.
This week’s ruling ensures the right to bond hearings for many people in immigration detention across the 6th Circuit which includes Michigan, Ohio, Kentucky, and Tennessee – but that doesn’t hold in states like Texas and Louisiana where judges have ruled against the policy.
That’s a “concern” for MIRC attorney Robinson. He urged those who believe they might be eligible for bond in those states to request a bond hearing before an immigration judge now.
“If they're moved out of state and they haven't pursued bond they may not have an opportunity to pursue a bond once they're in one of those jurisdictions,” Robinson said.
The sharp divides on the issue across the country makes it likely that the ultimate arbiter on the matter will be the Supreme Court, said Michigan State University law professor David Thronson.
He said the case has other hallmarks of an issue that would draw interest from the nation’s highest court. “It’s an important issue. It’s timely. It involves high stakes for people in terms of their lives. It involves lots of money in terms of how much we spend on detention."
But Thronson said it would be hard to predict whether the Supreme Court would back established precedent regarding bond for people in immigration detention or stand by the Trump administration's new detention policy.
