A January 5 Politico article is headlined “Hundreds of judges reject Trump’s mandatory detention policy, with no end in sight”. It’s unclear whether it’s reporting or opinion, but in any event, the D.C. tipsheet “buries the lede” — i.e., hides the important parts “within other distracting information” — in highlighting the “308 judges” who “have ruled against the administration’s mass detention policy — ordering release or bond hearings in more than 1,600 cases”. Those are district court judges, whose individual opinions have little to no precedential value, but you must read down 13 paragraphs to get to the key point: “the numbers are likely to continue surging until federal appeals courts — or perhaps the Supreme Court — settle the matter conclusively”.
“Trump’s Mandatory Detention Policy”
Describing it as “Trump’s Mandatory Detention Policy” is a bit of a misnomer when discussing a statutory interpretation change that I have analyzed at least twice in the recent past, so here’s some background Politico summarizes rather tersely.
Under section 235(a)(1) of the Immigration and Nationality Act (INA), any alien “present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port ...)” is deemed an “applicant for admission”.
In other words, if an alien crosses the border illegally, evades Border Patrol agents, and proceeds into the interior, the alien is, de jure, an applicant for admission.
And aliens who do so remain applicants for admission until, pursuant to section 235(a)(3) of the INA, they are “inspected” by a DHS “immigration officer”, which in the interior context generally would mean someone from ICE.
Key to this “detention policy” is section 235(b)(2)(A) of the INA, which reads, in pertinent part:
in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal] proceeding under section [240 of the INA].
The foregoing language was added to INA in 1996, and for more than 28 years, various administrations ignored it, concluding “applicants for admission” who evaded encounter for an unspecified period and made it an unspecified distance into the interior weren’t subject to detention under section 235(b)(2)(A) of the INA, but instead could seek release under a different provision.
That “different provision” is section 236(a), which allows immigration officers to arrest aliens on warrant and then detain or release them.
There is, admittedly, some tension between sections 235(b)(2)(A) and 236 of the INA. Specifically, section 236(c) of the act mandates the detention of certain aliens who otherwise could have been released under subsection (a), specifically inadmissible criminals and national-security risks who would also be considered “applicants for admission”.
“Why”, the argument goes, “would Congress specifically mandate the detention of a certain subset of applicants for admission in section 236(c) if their detention was already mandated under section 235(b)(2)(A)?”
My response is that this isn’t the only instance in which Congress “doubles down” on detention of aliens who pose a risk to the community to the national security. Going all the way back to the Clinton (or Carter) administration, the bigger concern for Congress was immigration officials who released aliens they should be detaining, not holding ones who should be released.
Trump II Scours the INA
From Day 1, Trump II has been scouring the INA to find authorities it can use to encourage compliance with the immigration laws. Look no further than Trump’s January 20 Executive Order 14159, in which the president directed DHS to ensure aliens here (legally and otherwise) register under section 262 of the INA, a largely ignored provision that dates to the eve of World War II in 1940.
Consequently, it was little surprise (to me) when the Washington Post reported in July that: “The Trump administration has declared that immigrants who arrived in the United States illegally are no longer eligible for a bond hearing as they fight deportation proceedings in court”.
At the time, I posited that the administration was relying on section 235(b)(2)(A), and in September I was proven correct when the Board of Immigration Appeals (BIA), the administrative tribunal that reviews immigration court decisions, concluded the plain language of that provision deprives immigration judges of jurisdiction to grant bond to illegal entrants.
“Courts Overwhelmingly Reject the Policy”
Which brings me to Politico’s January 5 article, which begins: “Federal judges are increasingly exasperated by the Trump administration’s effort to lock up nearly everyone facing deportation proceedings — a draconian expansion of decades-old policies that hundreds of courts have rejected as illegal or unconstitutional.”
Count the loaded words in that sentence: “exasperated”; “lock up”; “unconstitutional”; and most tellingly “draconian”, which Mariam-Webster defines as “of, relating to, or characteristic of Draco or the severe code of laws held to have been framed by him”.
Notably, Draco — a 7th century BC Athenian lawgiver — imposed the death penalty for cabbage theft (among other offenses), so perhaps the allusion is a little extreme, but maybe that’s Politico’s point.
Here’s the thing Politico doesn’t expressly state: the “308 judges” who “have ruled against” the Trump II policy are U.S. district court judges who occupy the lowest rung of the federal judiciary, and as any first semester law student learns, their opinions have little to no “precedential value”, meaning they rarely if ever bind other judges, even ones in the same district.
Moreover, having held the job I can assure you judges are allowed to be many things, but “exasperated” isn’t one of them. Jurists are encouraged to emulate Solon, Draco’s successor (in the 6th century B.C.), who repealed nearly all those “draconian” laws, and set the standard for dispassionate adjudications.
If any of my decisions as an immigration judge had reflected the slightest hint of exasperation, the BIA would have quickly acted to put me in my place and failing that the circuit court would have been all-too willing to drop the hammer.
District court judges should be held to the same standard, not out of fairness to me or anyone else, but out of respect for our system of justice and the office they hold.
That’s especially true given the INA largely cuts them out of most immigration issues and the last thing they should want is to hand Congress a reason to cut further.
In fact, section 236(e) of the INA, captioned “judicial review”, expressly cuts all judges out of immigration detention reviews, stating in toto:
The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention of any alien or the revocation or denial of bond or parole.
I am not sure why that jurisdiction-stripping provision doesn’t preclude all these decisions, but unless I’m missing something, DOJ should take a page out of my post-dinner regime and “scour harder”.
More to the point, because they are district court decisions, these orders only apply in specific cases involving specific aliens.
Consequently, the legality, let alone constitutionality, of Trump II’s interpretation of the detention mandate in section 235(b)(2)(A) really rests in their hands, and (should it go that far) ultimately in the Supreme Court’s.
Which is why it’s curious that Politico waited until paragraph 13 to state that the number of district-court challenges to mandatory detention orders:
are likely to continue surging until federal appeals courts — or perhaps the Supreme Court — settle the matter conclusively, at least in large swathes of the country. The administration has appealed dozens of its defeats, but appellate courts are unlikely to resolve the matter for months, even on expedited timelines.
Nothing New, and Nothing Unexpected
In the interest of full disclosure, the subject of this article isn’t “news” to me. Various reporters have reached out to me over the past couple months about the trend of district court judges who have issued release orders in mandatory detention cases involving aliens who entered illegally years in the past.
And frankly it’s no surprise to me that immigration lawyers are filing habeas applications with the district courts to get their clients released. It’s what I’d do if I were them, and until the circuit courts get off the schneid and start reviewing those district court orders, that trend will continue and probably accelerate.
In addition, supporters of Trump’s immigration agenda have expressed their pique with this situation, but litigation should be expected with any novel interpretation of an established statute.
It’s like complaining about days getting shorter beginning in late June or objectively Trump-unfriendly outlets throwing a kitchen sink of pathos at his immigration policies. Align your expectations with reality and you’ll never be disappointed.
This Interpretation Didn’t Start with Trump II, and Won’t End in the District Courts
Lastly (and burying the lede myself), application of the section 235(b)(2)(A) detention mandate to all illegal entrant “applicants for admission” didn’t even begin with Trump II.
Immigration judges in the Tacoma (Wash.) immigration court reached the same conclusion under the Biden administration in 2022, which is why the bond grant rate in that court was just 3 percent in FY 2023, “the lowest among immigration courts in the nation”.
Judge Tiffany Cartwright of the U.S. District Court for the Western District of Washington rejected that interpretation as illegal in a September 30 order — likely one of the 1,600 decisions Politico referenced, and an important one it probably should have discussed.
* * *
Using a provision of law that requires detention of alien “applicants for admission” to deny bond to all illegal entrants, regardless of how long they’ve been here, didn’t start with Trump II and won’t end with any district court judge — no matter how “exasperated” they are or how many orders they issue. In law and sports, it’d not how you start, it’s how you finish.