Immigration Judge’s Guidance Sets Up Race to Avoid Fifth Circuit

New guidance issued by the Trump administration’s top immigration judge this week could result in continued denial of bond hearings for detainees in Fifth Circuit states—Texas, Mississippi, and Louisiana—as judges in other jurisdictions may choose to grant the hearings, immigration attorneys and law professors say.

Chief Immigration Judge Teresa Riley, in response to a scathing ruling Feb. 18 from Judge Sunshine Sykes of the US District Court for the Central District of California, emailed immigration judges Thursday reminding them of the Fifth Circuit’s recent decision upholding the Trump administration’s stance on mandatory detention.

Sykes’ decision vacated the Board of Immigration Appeals decision in Yajure Hurtado—the precedent on which Riley’s prior guidance for denying the bond hearings relied.

But Riley’s new email to immigration judges, reviewed by Bloomberg Law, noted that Sykes’ findings didn’t supersede the Fifth Circuit’s interpretation of the detention statute, which backed the Trump administration’s mandatory detention theory using similar legal reasoning to Yajure Hurtado.

“For cases arising in the 5th Circuit, the court did not overrule or vacate the recent 5th Circuit precedential decision,” Riley wrote. “Nor did the court overrule or vacate well-established precedent requiring administrative agencies to apply binding circuit court precedent to cases arising within that circuit.”

The guidance puts increased pressure on attorneys to seek intervention from federal courts before federal authorities move detainees to Fifth Circuit detention centers.

With immigration judges repeatedly declining to conduct bond hearings before Sykes’ nullification of Hurtado, detainees who are able to get attorneys have turned to the judicial branch, filing an avalanche of habeas corpus petitions in federal district courts around the country.

Jennifer Koh, a professor at Pepperdine Caruso School of Law, said she expects a “race to the courthouse” for detainees’ lawyers to file petitions before their clients are swept to the Fifth Circuit from other jurisdictions following Sykes’ order.

The US Department of Justice and the Executive Office for Immigration Review, which operates immigration courts, declined to comment.

Patchwork of Rulings

The mandatory detention question is pending in multiple appellate circuits around the country and is expected to ultimately land at the US Supreme Court, immigration law professors and immigration lawyers say. For now, a patchwork of conflicting rulings is emerging from various district courts and circuits, with district judges overwhelmingly rejecting the policy. Sykes’ Wednesday ruling has significant heft because it applies to detainees nationwide based on the class she certified.

And Niels Frenzen of the USC Gould School of Law Immigration Clinic, who was involved in litigating the underlying nationwide class case over which Sykes is presiding, said his team isn’t conceding that noncitizens detained in the Fifth Circuit lack protections from Sykes’ ruling. The treatment of class members in those states may be the subject of legal fights to come, he said.

Appeals courts across the country are considering the issue. Seventh Circuit judges were extremely skeptical of the mandatory detention policy in an interim decision, and heard further arguments in the matter earlier this month. The US Court of Appeals for the Eighth Circuit, in oral arguments Thursday, appeared amenable to Trump’s position. The Ninth and Sixth circuits are expected to hear arguments next month.

The dispute has emerged due to the Trump administration’s novel reinterpretation of longstanding immigration law. For decades, authorities interpreted the act such that noncitizens apprehended in the interior of the country were generally entitled to go before an immigration judge and argue for their release.

But last year, the Trump administration determined that such detainees aren’t entitled to a bond hearing.

Sykes threw out the administration’s mandatory detention policy as unlawful. In December, she issued a final declaratory judgment that a nationwide class of noncitizens is eligible for bond hearings.

Some immigration judges began holding the hearings, but largely stopped after Riley wrote in a January email that they weren’t bound by Sykes’ declaratory judgment and should continue following Yajure Hurtado.

Sykes in sharp words Feb. 18 criticized the administration’s position.

“It is not the executive department’s province and duty to say what the law is,” she wrote. “The role of the judiciary is to continue to demand compliance with the law even in the face of outright defiance by the executive.”

‘Not a Feature of a Functional Legal System’

Still, immigration attorney Rachael Savage said she’s unsure Sykes’ order will lead to more releases on bond for noncitizens.

Immigration attorneys have raised alarms that when bond hearings are granted, their clients more often than ever have been denied release. The Trump administration has fired immigration judges en masse and sent military lawyers to fill gaps.

Sykes last week, prior to the hearing where she considered vacating Yajure Hurtado, ordered the speedy release of multiple detained noncitizens for whom she’d ordered bond hearings during habeas proceedings. She found immigration courts had improperly placed the burden on detainees to argue why they should be released.

“For people who have been here 30 years, have kids, have businesses, property, no criminal record, it does appear that when we are actually getting the bond hearings coming off of a habeas grant, that doesn’t necessarily—or almost ever—mean that the individual will actually be granted bond, or that the immigration judge will actually conduct the individualized bond hearing that’s required under board precedent,” Savage said.

In the meantime, “there will be more chaos, and more unnecessary human suffering,” said Koh of Pepperdine. “To be completely honest, it is not a feature of a functional legal system to have lawyers needing to race to file habeas petitions, and for courts then to have to make decisions over whether they can hear a case based on literally the minute at which a lawyer was able to file something.”