A ruling by a federal appeals court in the Eighth Circuit allowing the federal government to mandatorily detain arrested immigrants without a bond hearing opens the door for the indefinite detention of immigrants in Minnesota and other Midwest states.
In a 2 to 1 decision on March 25, the United States Court of Appeals for the Eighth Circuit upheld the government’s interpretation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Judges Bobby Shepherd, a George W. Bush appointee, and L. Steven Grasz, a Trump appointee, voted to uphold the government’s position. Trump appointee Ralph Erickson dissented.
The federal government had appealed the decision of an immigration judge in Minnesota who granted a bond asylum to Joaquin Herrera Avila, a Mexican national.
The decision mirrors a ruling in the Fifth Circuit last month that allowed for the indefinite detention of immigrants held in Texas, which holds the vast majority of detained immigrants in the country. With the Eighth Circuit now adopting the same interpretation of the law, advocates worry it could incentivize new immigration detention centers in Minnesota and the six other Midwest states within its jurisdiction.
The decision is likely to go to the Supreme Court in the near future.
New legal challenges
The recent federal appeals court decisions are the latest in a series of legal changes expanding the federal government’s ability to hold arrested immigrants in detention.
Several Board of Immigration Appeals decisions last year restricted detainees’ access to bond hearings across the country. These restrictions caused immigration attorneys to pivot to other avenues of relief, with petitions for writs of habeas corpus — a legal action challenging the legality of immigrants’ detention — becoming a crucial tool during the height of Operation Metro Surge.
“The surge that we saw in Minnesota happened against the backdrop of that litigation,” said Julia Decker, director of public policy and public affairs at the Immigrant Law Center of Minnesota. “[We saw] the habeas filings being one of the ways where it was like, okay, bond may be more difficult, so federal court may be one of the alternative ways that we start trying to get people out of detention.”
At the height of immigration enforcement operations, immigration enforcement authorities frequently rushed detained immigrants out of state in as little as 12 hours, usually to detention centers in Texas. At the peak of Operation Metro Surge, hundreds of habeas petitions were being filed per month to grant the release of detainees held in Texas.
Last month’s ruling in the Fifth Circuit Court of Appeals dealt a crippling blow to those efforts however, allowing for immigrants to be held indefinitely and without bond hearings.
Now, last week’s decision in the Eighth Circuit establishes the same legal conditions in Minnesota.
“It will likely make it much more difficult for people to be released from detention here in Minnesota and across the Eighth circuit,” Decker said.
At the heart of the legal argument playing out in district and federal appeals courts across the country is a section in the IIRIRA pertaining to the mandatory detention of immigrants arriving to the U.S. at the country’s border. In the act, they are referred to as immigrants “seeking admission.”
The federal government argues that this term applies to any undocumented immigrant in the U.S., even those who have been residing in the country for decades.
That interpretation has been struck down extensively in U.S. district courts across the country. At least 400 judges have rejected it compared to only 41 who have upheld it, according to reporting from Politico. The decisions made in the Fifth and Eighth Circuit federal appeals courts now greenlight this interpretation in all 10 states within their jurisdiction, including Minnesota in the Eighth.
Law professor at the University of Minnesota Linus Chan said the potential application of this policy nationwide could have dramatic consequences.
“Right now, the highest number of immigration detention in one day is something like 80,000,” Chan said. “The number of people that this potentially could cover could easily be several million.”
Chan emphasized that in the IIRIRA’s nearly 30 years of existence, no previous presidential administration had interpreted the law this way, including the first Trump administration.
In an email to Sahan Journal, attorney David Wilson, who represents Avila, said his firm plans to challenge the ruling.
“It is difficult to reconcile the Eighth Circuit’s split ruling against the exhaustive decisions of almost every district court judge,” Wilson said. “This issue is percolating in almost every circuit court, and it more likely than not will end up before the Supreme Court before the end of the year.”
Supreme Court considerations
The Fifth and Eighth Circuits are not the only jurisdictions in the country looking at the issue. As district courts across the country have heard cases around the government’s largely rejected interpretation of the IIRIRA, appeals to federal courts have likewise followed.
That the first two appeals courts to hear the case both ruled in favor of the government is not a coincidence, Chan said, because the government has been strategic about where to appeal.
“The government deliberately delayed cases in circuits that they were unsure about and asked for expedited briefing and decisions in circuits that they were more confident about,” Chan said. “So there were circuits that also had this issue that were also up for this determination, but the government either asked for more time or did not ask for expedited consideration.”
The Fifth and Eighth Circuits are widely regarded as two of the most conservative in the country, he added.
As a likely appeal to the Supreme Court looms ahead, the decision of when to make that appeal could matter. As more cases are decided by less conservative circuits across the country, additional legal opinions could become available rejecting the government’s position. Waiting for these decisions to come out could delay the process, however, leading to prolonged detentions for those impacted in the Fifth and Eighth Cricuts.
Chan said he was skeptical of the benefit of waiting.
“Is it helpful to get good decisions from other circuits that might be able to be even more critical than the descents in these cases? Possibly, but the dissents [in the Fifth and Eighth Circuit cases] are pretty good,” Chan said. “If you wanted to get an understanding about why these cases are not great decisions, the dissents lay it out pretty clearly.”
Chan said he believes the larger issue is the politicization of immigration in the U.S., decades of which, he said, could impact judges’ opinions before even hearing the case.
“How many of the justices, without reading a single brief, have figured out what they want?”
Expanded detentions in Minnesota
In light of last week’s decision in the Eighth Circuit, attorneys and legal advocates are trying to make sense of the implications, including what it means for potentially increased detentions in Minnesota.
Legally, the government’s ability to indefinitely detain immigrants in Minnesota has expanded dramatically. Capacity to hold detainees remains limited, however, meaning immigrants detained within the Eighth circuit may still be sent to Texas and other states with greater capacity.
Both Decker and Chan said that with the legal path now more favorable, however, the decision may incentivize new detention center development in the Eighth Circuit.
“Now, the question is, will they still try to transfer people out very quickly?” Chan said. “And I think the answer is, it depends on how much capacity they’re able to build locally.”
Decker pointed to Prairie Correctional Facility in Appleton as a potential target for new detention capacity in Minnesota. In August, the Washington Post reported it was on a list of potential sites for President Donald Trump’s plan to increase the number of ICE detention facilities.
Regardless, for those currently in detention in the Fifth and Eighth Circuits, the avenues for potential release have now narrowed significantly. Decker said that the abysmal conditions in detention facilities are also putting pressure on detainees to seek relief.
“Asking people to sit in those conditions for a long time, while these wheels of litigation, which often turn very slowly, play out, that can be a very tough thing to ask people in those conditions to continue to endure,” Decker said. “[It] will increase pressure on people who are in detention, who are not eligible for release, to simply accept a removal order or voluntary departure.”
Decker said it’s still unclear exactly what the practical implications of the Eighth Circuit’s decision will mean for Minnesota, calling the possibilities “mind boggling.” Still, she said the decision is the latest of many actions from the government attempting to detain as many immigrants as possible, a policy it will continue to pursue.
“There have always been ways that people ended up in detention, even if they were not technically subject to the mandatory detention statute,” she said. “This is one more barrier that is being placed via the legal system, but there of course were many, many other ways that people were already being placed into this sort of mass detention system.”
