Fifth Circuit Rules Detained Immigrants Have No Constitutional Right to a Bond Hearing

The full U.S. Court of Appeals for the Fifth Circuit has ruled that detained immigrants classified as applicants for admission have no constitutional right to a bond hearing, in a 10–7 decision by the court sitting en banc, the Texas Tribune reported.

The decision reverses three lower-court orders that had gone the other way, and it also reverses the Fifth Circuit’s own three-judge panel, which ruled in July that the men at the center of the case were entitled to a bond hearing within 90 days. The full court has now withdrawn that requirement.

The case began with three men in Texas. Each has been in the United States for at least 14 years, each has U.S.-citizen children, and each was detained after a traffic stop, according to the Texas Tribune’s account of the case. Their challenge asked whether the Fifth Amendment’s guarantee of due process entitles people in their position to appear before a judge and ask for release on bond while their immigration cases proceed.

Writing for the majority, Judge Cory Wilson held that it does not. Because the men are classified as applicants for admission, the majority reasoned, their detention does not carry a constitutional right to a bond hearing. Wilson also wrote that the men could end their confinement “at any moment by agreeing to leave the country.”

Judge Dana Douglas dissented. The dissent warned against what it described as “unchecked, executive authority to arrest and detain, indefinitely,” language that, in the dissent’s words, “echoes fearfully from history.” Seven judges joined or sided with the dissenting position; ten formed the majority.

An en banc decision is issued by the full court rather than by a three-judge panel, and it is the circuit’s controlling word on the question unless the Supreme Court intervenes. The ruling is binding in the three states of the Fifth Circuit: Texas, Louisiana and Mississippi. For detained people in those states who are classified as applicants for admission, the decision means the Constitution, as the Fifth Circuit reads it, does not require the government to give them a bond hearing.

The classification at the center of the case matters to its reach. Under the classification described in the reporting, people who are treated by the government as seeking admission to the United States fall on the “applicant for admission” side of the line drawn by the majority — a category the three Texas men fell into despite having lived in the country for at least 14 years each.

Accounts of the decision differ on its date. Most reports date the ruling to Friday, October 23. One account described it as handed down on Thursday, October 22. The vote, the authorship of the majority and dissent, and the effect of the ruling are the same in the accounts.

The constitutional question the Fifth Circuit decided is not the only version of the bond-hearing issue in the courts. This month, the Supreme Court separately agreed to hear the statutory version of the question — whether federal immigration law itself, apart from the Constitution, requires bond hearings for detained immigrants. That case remains ahead of the justices.

Sources: Texas Tribune; the opinion of the U.S. Court of Appeals for the Fifth Circuit.