In Seattle, 9th Circuit judges consider Trump policy of mandatory immigrant detentions

The Ninth U.S. Circuit Court of Appeals heard oral arguments Wednesday in Seattle on the legality of the Trump administration’s expanded mandatory detention for immigrants who in the past have been able to seek release while awaiting the outcomes of their cases.

The class-action lawsuit led by the Northwest Immigrant Rights Project, Rodriguez Vazquez v. Bostock et al., is one of a number of challenges to the detention policy making their way through federal courts across the country.

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Plaintiffs say the Trump administration’s reading of the law means more people are being detained during their removal proceedings, despite having U.S. citizen family members and other community ties, and no criminal record.

Attorneys on both sides asked the Ninth Circuit's three-judge panel to issue a decision as quickly as possible.

Seattle’s First Assistant U.S. Attorney Neil Floyd, a former immigration judge, is helping defend the government’s approach. Following Wednesday’s hearing, Floyd told KUOW the case is about fairness between people who enter the U.S. at a port of entry versus those who enter illegally.

“If you come to a port of entry and you knock on the door and say, ‘Can I come to the United States?’ it has been the law of the land forever that you are subject to mandatory detention,” he said.

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In comparison he said plaintiffs argue that “once you make it in and you’re here for a certain amount of time — nobody knows what that time is — that the rules shouldn’t apply to you anymore, and you shouldn’t be subject to mandatory detention.”

Floyd called the current legal landscape “very confused” and said conflicting rulings on this question are playing out across the U.S.

“Hopefully at some point we’ll be able to get this up to the Supreme Court so it will have some nationwide impact,” he said. “Next steps right now are to wait for the decision on today’s case and then whatever the decision obviously we’ll follow that here in the district.”

During oral arguments Wednesday, Judge M. Margaret McKeown asked DOJ attorney Benjamin Hayes whether it’s significant that the government has recently “jettisoned” the approach of the last 30 years, in which immigration judges could release immigrants already living in the U.S. on bond for the duration of their cases. Hayes said that’s not the law.

“The statute mandates detention, without bond, for any alien who cannot show that they are entitled to be admitted, and that is true regardless of how long they are in the country unlawfully,” he said.

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The Ninth Circuit hearing also delved into the apparent question over jurisdiction in the case. Judge McKeown asked the DOJ attorney whether the lower court's ruling against the government “has no effect.” Hayes responded that immigration judges are bound by the administration’s Board of Immigration Appeals instead.

U.S. District Judge Tiffany Cartwright in Tacoma issued a declaratory judgment last fall finding the immigration court’s denial of bond hearings unlawful. In January, Cartwright issued a second order stating that, “Defendants have refused to comply with the Court’s ruling.”

“As a result of Defendants’ noncompliance, the only way for class members to obtain relief under a judgment they have already won is to file individual petitions for habeas corpus in this Court,” the order states.

She required the Northwest ICE Processing Center in Tacoma to give detainees information on how to seek release through a habeas petition, in which they argue that they are being held in violation of the law.

“We are filing weekly group habeas petitions on behalf of class members and are able to help many of them but that doesn’t catch them all,” said Matt Adams, legal director for the Northwest Immigrant Rights Project.

He said many people are told in immigration court that “they don’t qualify for bond and simply give up on their cases.”

Adams told the appeals court panel that the government’s claim that immigration judges are not bound to follow the district court’s judgment “makes no sense.”

“We’ve gone before district court ad nauseam with repeated habeas petitions because the government has refused to acknowledge evidently that they’re a party to the declaratory judgment,” he said.

Meanwhile, the DOJ’s Hayes said of the plaintiff’s argument that people already in the U.S. should not be subject to mandatory detention.

“The entire incentive structure it creates is to encourage aliens to violate immigration laws,” he said.

It's not clear when the court could issue a decision in the case.