Shortly after President Donald Trump took office for the second time, his administration began detain illegal immigrants without giving them a bond hearing or other method of avoiding detention while an immigration judge decides whether they are in the country legally.
A large number of federal judges have rejected this illegal practice. As Politico’s Kyle Cheney reported in February, “at least 360 Justices rejected the extended detention strategy – in more than 3,000 cases – while only 27 supported in 130 cases.
Unfortunately for immigrants caught up in Trump’s dilemma, the few judges who support the government’s mass detention policy appear to be overrepresented in federal courts, powerful bodies that can determine how federal law works in many states. On Wednesday, a divided panel of the US Court of Appeals for the Eighth Circuit, whose jurisdiction includes Minnesota, embraced the minority position and he called for mandatory detention.
That means that, unless the Eighth Circuit’s decision is overturned on appeal, immigrants was arrested while Trump was occupying Minneapolis they have lost the best legal tool they could have used to challenge their detention. As long as the Eighth Circuit’s decision remains in effect, many of these immigrants will have no way to avoid detention while their cases continue to be heard in immigration court.
Federal immigration law contains two provisions that outline how noncitizens should be treated when immigration officials and courts decide whether they can remain in the country legally. One article states that immigrants who are “looking for an entrance” to the United States must be detained if there is uncertainty about whether they should be admitted. But once an immigrant enters the United States, different the article allows them to be released on bail or parole if they are arrested for allegedly being in the country illegally.
A majority of judges have ruled that immigrants apprehended inside the United States are not subject to mandatory detention. This is also the case every presidential administration before the second Trump administration — including the first Trump administration — read federal immigration law after relevant provisions were enacted in 1996. Again, federal law only calls for mandatory detention when an immigrant is “seeking admission” to the United States. (I explained Trump’s different interpretation of the law, and why it’s wrong, here.)
Why do appellate courts uphold an interpretation of the MAGA statute that almost every trial court has rejected?
While only a handful of federal judges have upheld Trump’s interpretation of federal immigration law, they include four who serve on powerful appeals courts. In February, two members of a three-judge panel on the Fifth Circuit he called for the mandatory detention of immigrants arrested inside the United States. Two members of the Eighth Circuit agreed with their fellow Republicans on the Fifth on Wednesday, in a case known as Herrera Avila vs. Bondi.
Third Court of Appeals, Seventh Circuit, passed the majority view of the federal immigration law in December.
There are two explanations why two of the three appellate courts to consider this question have reached conclusions that are inconsistent with other courts. One is that appellate judges, who often make broad legal decisions that govern many states, typically go through a more impartial review process than their trial court counterparts. District court appointments are still sometimes made based on merit, or based on judicial candidacy relationship with the home state senatorbut appellate judges are usually vetted very closely by the White House or the Justice Department to ensure that they share the same ideological views of the president and his party.
Because of this, court decisions often become biased as cases progress through the appeals process. And the Fifth and Eighth Circuits, the two courts that called for mandatory detention, are both Republican strongholds. The Fifth Circuit is ruled by MAGA judges who often make decisions that restrict the rights of immigrants. And, while Eighth Circuit judges tend to be less enthusiastic about conservatism than their Fifth Circuit counterparts, 10 of the 11 active judges of the Eighth Circuit they were appointed by Republicans.
And that brings us to the second reason why appellate courts, so far, tend to see more incarceration than federal trial judges. The Department of Justice has a considerable amount of time control of cases involving the United States. It can immediately appeal some of the cases it lost in the court below, while waiting until the last minute to appeal in others. It can also search quick check in some casesand not to others.
In a recent immigration case from New Jersey, a federal judge noted that the Trump administration wanted an expedited review of the mandatory detention question in the Fifth Circuit, but it did not in the more ideologically balanced Third Circuit. Trump’s lawyers, in other words, appear to be deliberately changing court schedules to ensure that the majority of Trump-leaning circuits decide the question of mass detention first.
In any case, the Supreme Court usually takes cases that divide the federal appeals courts. So the fact that the Seventh Circuit already disagrees with the Fifth and Eighth Circuits means that Supreme Court review of this question is probably inevitable. By fiddling with circuit court calendars, however, Trump could give justices the false impression that the outside view held by a minority of justices is, in fact, dominant.
