Court says yes on immigrants’ bond hearings

Undocumented immigrants challenging their deportation orders are entitled to a hearing for possible release on bond after six months in custody, a federal appeals court ruled Tuesday, with an appointee of President Trump casting the deciding vote.

The 21 ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco applies to immigrants who have been arrested or turned themselves in after entering the United States and claim they would face persecution or torture in their homeland. Lawyers said the case applies to hundreds, or perhaps thousands, of migrants held in prolonged custody by U.S. Immigration and Customs Enforcement in the circuit’s nine Western states.

The appeals court issued a similar ruling in 2013 requiring sixmonth bond hearings for a larger group of unauthorized immigrants, those locked up while awaiting deportation hearings or rulings on whether they could legally enter the U.S. The Supreme Court overturned that decision in 2018, ruling 54 that federal immigration law allowed those migrants to be detained indefinitely until their cases were decided. The justices told lower courts to consider whether the immigrants had a constitutional right to a bond hearing, an issue that remains unresolved.

Tuesday’s case involved a different immigration law. The appeals court said another panel of the court had interpreted that law in 2011 to require a bond hearing before an immigration judge “if release or removal is not imminent.” Bond is required unless the government proves that the migrant is dangerous or likely to flee.

The Supreme Court’s 2018 ruling did not affect the 2011 decision, which remains binding, Judge Milan Smith said in the majority opinion. Smith, appointed by President George W. Bush, was joined by Judge Eric Miller, a former corporate attorney and Justice Department lawyer appointed by President Trump in 2018.

In dissent, Judge Ferdinand Fernandez, appointed by President George H.W. Bush, said the court’s conclusion was “irreconcilable” with the Supreme Court decision.

The lead plaintiffs in the classaction suit are two Mexican men who entered the U.S. separately in 2017 and were held in detention despite findings by federal asylum officers that both had a reasonable fear of persecution or torture if deported.

Both men spent more than eight months in detention before being released in 2018, after a federal judge ruled that they were entitled to bond hearings. Both live in the East Bay with their families, and one man has won the right to remain in the country legally, their lawyers said.

The ruling may not take effect any time soon, as the Trump administration is likely to seek Supreme Court review. But Martin Kaufman, an American Civil Liberties Union attorney who argued the case, said it was still a timely decision while people in custody “could be at grave risk because of COVID19.”

San Francisco attorney Marc Van Der Hout, who also represents the plaintiffs, called the ruling “a tremendous victory for immigrants and all those fighting for the rights of immigrants.”

In a separate case, another panel of the appeals court ruled March 28 that immigrants who present a credible case for U.S. asylum are entitled to a prompt bond hearing.