ICE’s mass detention has been routed in court. The Supreme Court could reverse the tide.

Por Kyle Cheney — POLITICO – TOP Stories

Federal judges across the country have overwhelmingly rejected the Trump administration’s efforts to detain tens of thousands of immigrants while they await the outcome of deportation proceedings. But there are signs ICE’s footing is improving as the issue marches toward the Supreme Court.

More than 460 federal district judges have ruled about 20,000 times against ICE’s effort to mass detain people without the opportunity for release on bond. And the Trump administration met a similarly lopsided fate at federal appeals courts, losing in nine of 11 regional circuits. The result: one of the most litigated — and rejected — government policies in history.

But while district court judges overwhelmingly rejected ICE’s position in ways that cut across ideological lines, a clearer dividing line emerged in appeals courts: All but four Republican-appointed judges sided with the administration and Democratic appointees unanimously opposed it. And court-watchers say that trend bodes well for ICE at the Supreme Court.

“There’s definitely a split, but I think if you look at the judges who are the closest proxy of a Justice Barrett or a Justice Kavanaugh, they have overwhelmingly sided with the administration on this issue,” said Eric Wessan, the top litigator for the state of Iowa, which has urged the Supreme Court to back ICE’s legal position.

Wessan pointed to dissents written by Trump-appointed appeals court judgesEric Murphy and Barbara Lagoa, whom he predicted would represent “the median Supreme Court” vote. Jennifer Mascott, a second-term Trump appointee who sided with ICE in the 3rd CircuitCourt of Appeals, once clerked for Kavanaugh.

Georgetown University law professor Steve Vladeck said the one-sided results in the lower courts are unlikely to sway the Supreme Court justices, who have shown a penchant for being unaffected by their brethren.

“I wish I were more confident that there’s a majority of justices to follow the overwhelming majority of their lower-court colleagues, but we’re coming off of a term in which every close question of statutory interpretation in an immigration case — and, in my view, some not so close ones — was resolved in the Trump administration’s favor,” Vladeck said.

At issue is the interpretation of a 1996 immigration lawthat required the detention of people who are “seeking admission” to the U.S.. Every administration since 1996, including Trump’s first, applied this requirement exclusively to people who recently crossed the southern border. Those who entered the country and remained for years could still be detained under a different section of the law, but had to be afforded a bond hearing to make the case that they could live safely in their communities while their immigration proceedings were underway.

Last year, the Trump administration abruptly changed course, concluding that anyone residing in the U.S. without permission could still be labeled as “seeking admission” to the country and therefore subject to mandatory detention. Courts have found that this would expand ICE’s mandatory detention policy to more than 6 million people who would previously have been afforded bond hearings.

District court judges overwhelmingly concluded that this novel interpretation was an implausible distortion of the law. Congress never explicitly intended to authorize the largest mass detention policy in history, they concluded — one that overwhelmingly targeted people without criminal histories and with roots in their communities, including spouses and children who are U.S. citizens. In most judges’ view, a person who has been living in the U.S. for years cannot be “seeking admission” to the country.

The administration’s outnumbered backers, however, say Congress could not have intended to reward people who might have evaded detection at the border while punishing those who presented themselves to authorities upon arrival. The Trump administration’s decision to deploy its maximum authority isn’t illegal just because no prior administration chose to do so, they say.

Amit Jain, a Supreme Court and appellate counsel at the MacArthur Justice Center, said the overwhelming rejection of this position by the lower courts should have some bearing on the Supreme Court’s decision. ICE’s policy would render large sections of immigration law — including Trump’s signature Laken Riley Act — superfluous, he noted, and the extraordinary due process concerns raised by mass detention without bond militates against the administration’s position.

“The 9-2 split is further proof of how novel the government’s extraordinary policy is,” he said. “The lopsided split should carry more weight than it would under other circumstances.”

Jain said the small number of Republican appointed appellate judges who ruled against ICE is still a notable cross-ideological rejection of the policy. The much steeper rejection in the district courts, he said, is probably because those judges “are more attuned to the human impact on the ground than appellate judges.”

Fonte: POLITICO – TOP Stories