Court Blocks ICE Policy, Compares It to Mass Detention During WWII

A split U.S. appeals court panel on Sept. 10 ruled against an Immigration and Customs Enforcement (ICE) policy that allowed officials to detain many illegal immigrants without bond, saying it brought to mind the internment of Japanese people during World War II.

A majority of the U.S. Court of Appeals for the Fourth Circuit panel said that the policy wrongly led to the holding of two illegal immigrants who were detained inside the country. The court ruling cited federal law that states holding a noncitizen without bond only applies to an immigrant “who is an applicant for admission” if an immigration officer “determines that an alien seeking is not clearly and beyond a doubt entitled to be admitted.”

Government officials have said that the law still applies to immigrants detained inside the country if they have not been legally admitted, while lawyers for the detained say their clients must be provided bond.

Bond is required for “noncitizens who, like the Petitioners, have been present in the United States for years regardless of how they entered our country,” Circuit Judge Nicole Berner wrote for the majority.

If the court supported the government’s view, she said, then it would have to conclude that when passing a law on illegal immigration in 1996, “Congress intended to direct the single largest mass detention of human beings in our nation’s history,” she added.

Berner later said that the government’s position of detaining en masse people without due process brought to mind “some of the darkest moments in our country’s history,” including the mass expulsion of Chinese people in the 1800s, and the mass detention of Japanese people during World War II.

“Those shameful and abhorrent past detentions were limited in scope in comparison to the mandatory detention that the Government urges us today to find that Congress established thirty years ago in an ambiguously worded statutory provision. We decline to do so,” she wrote.

ICE referred a request for comment to its parent agency, the Department of Homeland Security, which did not immediately respond to an inquiry.

The ruling deepens a split among circuit courts on the matter. Nine have now ruled against the government, although two others have ruled in its favor. The Supreme Court typically ends up settling such circuit splits on consequential matters.

In a dissent, Circuit Judge Allison Jones Rushing said the law requires ICE to detain immigrants who are in the country without legal admission, such as the petitioners in the case, during removal proceedings.

She noted that previous versions of the law governing mandatory detention includes specifications such as applying to “arriving” immigrants or “at the port of arrival,” and that Congress removed those qualifiers from the 1996 law.

“If Congress had meant to keep the detention provision limited to arriving aliens, it could have used any of the prior statutory formulations,” she wrote. “Congress instead conspicuously diverged from ‘a century of settled drafting’ to craft a different mandatory detention provision that reaches ‘applicant[s] for admission,’ a group that includes aliens present in the country without having been lawfully admitted. Petitioners and the majority would give this amendment no effect. The detention provision’s statutory history strongly indicates that Petitioners’ construction is incorrect.”