Second federal appeals court rejects Trump's no-bond immigration detentions, deepening circuit split

ATLANTA -- An Atlanta-based appeals court has rejected a no-bond policy implemented by the Trump administration for people in immigration proceedings, further deepening a divide among federal appeals courts about whether people can be kept in detention while their cases are pending.

A three-judge panel of the 11th U.S. Circuit Court of Appeals issued the 2-1 ruling Wednesday. The 2nd Circuit had already reached a similar conclusion in April, while the 8th and 5th circuit courts previously upheld the policy that has been in effect since July. Meanwhile, a 7th Circuit panel on Tuesday split three ways on the policy, with one judge rejecting the Trump administration policy, another agreeing with it and the third declining to weigh in on the matter.

With the circuit split deepening, the U.S. Supreme Court could be called upon to resolve the issue.

The appeal decided by the 11th Circuit stemmed from lower court rulings in the cases of two Mexican men who had been living in the United States without authorization since 2019 and 2015 and were arrested during traffic stops in Florida in September and placed in deportation proceedings.

The Department of Homeland Security policy has been denying bond hearings to people in immigration detention, including those who have been in the country for years without any criminal history. Previously, most noncitizens without a criminal record who were not arrested at the border were allowed to seek a bond hearing while their immigration cases were pending.

Bond was often granted if the person was not deemed a flight risk. Mandatory detention was generally reserved for people who had just entered the U.S.

The 11th Circuit ruling was written by Senior Circuit Judge Stanley Marcus, an appointee of former Democratic President Bill Clinton, and joined by Circuit Judge Robin Rosenbaum, who was appointed by former President Barack Obama, also a Democrat. Trump-appointed Circuit Judge Barbara Lagoa dissented.

The ruling says the majority was “unpersuaded by the Government's re-interpretation” of a section of federal law that it says limits detention without bond people who are “seeking admission” into the country.

“Simply put, the language that Congress has chosen to use does not grant to the Executive unfettered authority to detain, without the possibility of bond, every unadmitted alien present in the country,” the ruling says. Reading the words in the statute, “it appears to us that Congress has instead preserved the longstanding border-interior distinction for the purposes of detention, a posiition it has taken for over a hundred years.”

Lagoa disagreed with the majority opinion, finding, “There is no dispute that unlawfully present aliens are applicants for admission pursuant to the deeming provision.”

“The majority’s argument amounts to the claim that the provision fits arriving aliens better. Maybe so,” she wrote, but added that “a more comfortable fit does not allow us to read an exception” into the law.

Trump administration lawyers have argued that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 supports the mandatory detention policy. That law simplified the process for deporting new arrivals who lacked authorization to be in the country, but a different law allowed people already in the country to ask an immigration judge for bond.

But Todd Lyons, acting director of the U.S. Immigration and Customs Enforcement, said in July that all people in deportation proceedings would be treated the same as new arrivals.

Unable to ask an immigration judge for bond, detainees are using habeas corpus petitions in federal court to challenge their detention. That is creating a crushing workload for the federal courts, with more than 30,000 lawsuits filed by people detained without bond as the Trump administration pursues mass deportations.