Judges nix Trump’s mandatory immigrant detention policy, teeing up Supreme Court fight

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• Two appellate courts ruled this week against the Trump administration, overturning the policy of ‘mandatory detention’ for immigrants.
• The courts ruled that immigrants who are picked up away from the border are entitled to a bond hearing to decide whether they should be freed or remain in detention.
• Appellate courts across the country have been divided on the issue, setting the stage for the Supreme Court to weigh in.

The U.S. 9th Circuit Court of Appeals dealt another blow to the Trump administration’s mass deportation project Thursday, ruling alongside the 7th Circuit that most immigrants cannot be held without bond while fighting to remain in the U.S.

The rulings will apply to jurisdictions that stretch across much of the southern border, affecting states where large numbers of immigrant detainees are held in federal custody. Unless immigrants are caught while crossing the border or soon after, they will now be entitled to a bond hearing, where a judge will decide whether there is enough evidence to justify their indefinite detention.

The twin decisions come little more than a year after the Department of Homeland Security ordered “mandatory detention” for all immigrants picked up by its agents — a policy that had previously only applied to those caught at the border.

The policy shift sowed chaos in federal courts, as thousands of immigrants began suing for bond hearings that had long been automatic. California’s district judges were overrun with emergency petitions for writs of habeas corpus, a legal maneuver rarely used outside death row appeals.

“Versions of this case have played out in federal courts across the country,” Judge Daniel A. Bress wrote for the 9th Circuit on Thursday. “The vast majority of the district courts to confront the issue have concluded that [mandatory detention] is limited to the border.”

Those district court battles have grown increasingly heated as caseloads have swelled.

This spring, Eastern District of California Chief Judge Troy Nunley took the rare step of sanctioning a government lawyer over failing to tell the court if and when a man he’d ordered released had actually gone free.

A legal maneuver once reserved for death row inmates and suspected terrorists has become the only recourse for immigrant detainees, who have flooded federal courts in California with thousands of petitions for freedom.

The attorney told Nunley he was drowning in nearly identical cases and had fallen behind with the paperwork. In an interview, Nunley said he and other judges were “up all night” ruling on emergency petitions and ensuring those orders were followed.

The sanction was later transferred from the lawyer to the U.S. attorney’s office, though Nunley warned that he would issue more if he didn’t see proof immigrants had been set free as ordered.

“A pattern of unchecked and unaddressed mistakes in complying with court orders will be viewed as a deliberate and strategic choice,” he wrote in his order.

The majority of appellate courts have now also sided against the administration. As of Thursday, two circuits have affirmed the government’s position and six opposed it, teeing up what experts call an inevitable Supreme Court challenge.

Both of Thursday’s decisions invoked the high court’s future stake in the case. The 9th Circuit wagered that only two justices were likely to side with the administration, while the 7th merely implored the high court to weigh in.

“At this point, only the Supreme Court can bring uniformity and settle this question once and for all. I anticipate that it will do so soon,” Judge Diane S. Sykes wrote in her dissent.

“We share the dissent’s hope that the Supreme Court will settle this matter,” Judge Joshua P. Kolar wrote for the majority.