The split February appellate decision blessed the Trump administration's relatively new argument that it can detain unauthorized immigrants without bond on statutory grounds, running counter to many district court judges' decisions that the government was applying the wrong section of federal immigration law to unauthorized immigrants already in the country.
Now that the Fifth Circuit has sided with the Trump administration on that statutory dispute, some federal judges, particularly in Texas, have shifted to ordering habeas relief on due process grounds instead, leaving the panel's ruling with little practical effect even in its own backyard.
The lower court judges' new reasoning provides a solid foundation for forbidding the detention of unauthorized immigrants without bond, immigration attorneys said.
"I don't know how you could find this is not a due process violation without making some kind of sweeping decision that due process rights don't apply to everyone," Kristin Etter, director of policy and legal services at the Texas Immigration Law Council, told Law360 Pulse.
"I can't imagine what kind of opinion could be written and on what basis other than just stripping constitutional protections from giant segments of our population," Etter said.
Now, a more recent Eighth Circuit ruling also endorsing the administration's reading of immigration law, along with appeals pending in the Ninth and — again — Fifth circuits, could force the question of whether unauthorized immigrants can be detained indefinitely without bond before the U.S. Supreme Court.
Little Change in Texas
The Fifth Circuit's split February decision in Buenrostro-Mendez v. Bondi
endorsed the Trump administration's new interpretation of federal immigration law, which the government says makes all unauthorized immigrants ineligible for bond hearings under Section 1225 of the Immigration and Nationality Act, no matter how long they've been in the U.S.That new guidance from U.S. Immigration and Customs Enforcement codified a Board of Immigration Appeals' September ruling in, In the Matter of Yajure-Hurtado
. Before that opinion, immigrants detained after already being in the country's interior were instead considered eligible for bond under Section 1226 of the INA.The Fifth Circuit backed the BIA's reading of the dispute over the two sections, ruling the federal government has the authority to detain certain noncitizens without bond.
But that hasn't stopped district court judges in that circuit and others from ordering detained immigrants to be granted bond hearings or released, say immigration attorneys.
Just three days after the Fifth Circuit opinion, U.S. District Judges Kathleen Cardone and David Briones, both of the Western District of Texas, each ordered that detaines be released or given bond hearings.
The day after that, U.S. District Judge Damon R. Leichty of the Northern District of Indiana ordered a detained migrant released or granted a bond hearing. A few weeks later, U.S. District Judge Jason Pulliam of Texas' Western District issued a similar order. U.S. District Judge Xavier Rodriguez, also of Texas' Western District, did the same April 6 when ordering two detained immigrants released.
Detention without bond runs afoul of those noncitizens' due process rights since they have a protected "liberty interest" in their freedom after having established lives in the U.S., even if without authorization, according to the judges.
The Fifth Circuit's ruling only bars the judges from ordering those immigrants released or granted bond by finding that their detention is governed by Section 1226 of the INA and not by finding that their due process rights have been violated, they've said.
"Buenrostro-Mendez is a binding precedent for the statutory interpretation and interrelationship of [Section] 1225 and [Section] 1226 as set out in the decision. This court is bound by that interpretation," Judge Pulliam said in one order. "But Buenrostro-Mendez has not eliminated habeas jurisdiction, displaced constitutional limits on immigration detention authority, or insulated unlawful custody from judicial review."
Judges who had been ordering immigrants be released or granted bond hearings are now largely continuing to do so, based on due process arguments rather than statutory ones, Texas Immigration Law Council's Etter said.
"We really have seen no change since the Buenrostro decision came out," Etter said. "Even before Buenrostro, we made the statutory argument, but we've also always made the due process violation argument. So we barely even had to change our template."
Some judges, like Judge Cardone, had been citing due process concerns when granting habeas relief even before the Fifth Circuit decision, Etter pointed out.
National Immigration Law Center senior staff attorney Cassandra Charles said the Buenrostro-Mendez decision has "absolutely" had an impact on the outcomes of habeas cases in Texas. She noted that many of the habeas decisions issued before that ruling didn't reach the due process argument but only the statutory one.
The U.S. Justice and Homeland Security departments and an attorney representing Victor Buenrostro Mendez did not respond to interview requests.
Either way, the orders granting habeas relief have been "very district-specific," largely coming from judges in Texas' Western District, according to Jacklyn K. Garcia of Casa de León PLLC.
She and other immigration attorneys told Law360 Pulse that they've each won several habeas cases in that district since the Buenrostro-Mendez ruling. Dan Gividen of Gividen Law PLLC said he expects to start getting similar orders from judges in the Southern District of Texas soon.
But as far as he knows, no judge in the Northern District of Texas has ordered habeas relief for a detained migrant post-Buenrostro-Mendez.
In one Northern District of Texas case, for example, U.S. District Judge James W. Hendrix said in a March order, "Congress determined that aliens like [the petitioner] are not entitled to bond, but they are permitted to remain in U.S. custody and fight to remain here."
"That is more than sufficient process so far as the due process clause is concerned," Judge Hendrix added.
Another Circuit, Arrest Power and Retroactivity
It's still too early to know if judges in the Eighth Circuit will follow Judge Cardone's path or Judge Hendrix's after that appellate court's March ruling in Avila v. Bondi
, which also found that the Trump administration can detain unauthorized immigrants already in the country without bond, according to immigration attorneys.At least one district court judge in that circuit — District of Nebraska Judge Robert F. Rossiter Jr. — ruled the Avila decision "foreclosed" a grant of habeas relief to a petitioner, even though his petition made a due process argument and a statutory one.
But immigration attorneys say they're optimistic that most courts in the Eighth Circuit will start ordering habeas relief based on due process rather than statutory grounds.
"If district courts in the Fifth Circuit can justify granting habeas relief on constitutional grounds, courts in the Eighth Circuit should as well," Garcia said.
An attorney for Joaquin Herrera Avila declined to comment.
Aside from the fact that the Fifth and Eighth circuits' rulings only address the statutory issue and not due process concerns, some immigration attorneys also see other avenues by which lower court judges could continue ordering habeas relief for detained immigrants.
For starters, the government's authority to arrest people already in the country's interior stems from Section 1226, which states "an alien may be arrested," and not Section 1225, which does not contain the word "arrest," said Xavier V. Chávez of the Xavier Law Firm, who has also won habeas relief for several clients since the Buenrostro-Mendez ruling.
So even if Section 1225 does govern those already in the country, as the Fifth and Eighth circuits have found, it can only be applied to those who present themselves for inspection, for instance, at a government checkpoint or while in jail, Chávez explained.
"The government cannot just go out and arrest people just because. They need to have power to do that, and some sort of statutory provision needs to provide that authority. The only place that ICE can obtain that authority from is Section 1226. That's the only provision that allows them to go out and arrest people," Chávez said. "Section 1225 just flat-out does not."
Gividen, meanwhile, argues the retroactivity doctrine bars the government from applying the change in interpretation of immigration law announced in the BIA's Yajure-Hurtado ruling to unauthorized immigrants already in the country.
Even if the government is right about Section 1225 governing all unauthorized immigrants, including those who've been in the country for years, it can't apply that new interpretation to those immigrants precisely because they've already been in the country for years, according to Gividen.
"Basically, what the retroactivity doctrine says is that if an agency issues a decision such as Yajure-Hurtado, then if that decision represents a massive, giant, no-question-about-it change in the way the law is being interpreted and carried out, it cannot be retroactively applied to past conduct," Gividen said.
Supreme Court Concerns
Whether federal judges continue citing due process rights or begin turning to other legal theories — or stop granting habeas relief at all — following the Fifth and Eighth circuit rulings, other cases currently pending in the appellate courts likely mean that these questions may have to be decided by the U.S. Supreme Court, according to immigration attorneys.
The Ninth Circuit heard arguments on March 4 about whether immigrants already in the country can be detained without bond hearings under Section 1225. And on March 31, it stayed a ruling in a different case that vacated the BIA decision in Yajure-Hurtado.
Meanwhile, the government has already started appealing some rulings granting habeas relief on constitutional grounds in the Fifth Circuit, according to Garcia and Gividen, though while those appeal notices were filed after the Fifth Circuit's Buenrostro-Mendez decision, they appeal orders issued before that ruling.
Conflicting outcomes in those appeals could force the issue before the justices, according to immigration attorneys, who call that possibility concerning, given the high court's conservative supermajority.
"I worry about the Supreme Court's handling of this issue, especially after Vasquez Perdomo v. Noem
empowered ICE to engage in racial profiling during raids," Garcia said, referring to a September Supreme Court decision lifting a temporary injunction against indiscriminate immigration stops in Los Angeles.Gividen, though, is optimistic that arguments like his about the retroactivity doctrine could make most of these cases moot before they arrive on the justices' docket.
If the Fifth Circuit agrees with him that the Yajure-Hurtado ruling can't be applied retroactively to those already in the country, the government could only apply Section 1225 to immigrants who came into the country after that ruling, he said.
"At that point, it becomes kind of academic since there's not going to be anyone to apply Yajure-Hurtado to," Gividen said, pointing out that very few people have crossed into the U.S. without documentation since the BIA's shift. "People aren't coming here. They're running the other way."
"So I have outside hope that it will eventually be settled without the Supreme Court," Gividen added, "because honestly, that possibility concerns a lot of people."
--Editing by Alex Hubbard and Lakshna Mehta.
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