The U.S. Sixth Circuit Court of Appeals ruled 2-1 last week that President Donald Trump's administration violated the due process rights of many immigrants who live in the U.S. by locking them up without a bond hearing.
The ruling means more noncitizens who are detained in Kentucky, Tennessee, Michigan and Ohio can get a bond hearing in front of an immigration judge, said Louisville immigration attorney Duffy Trager.
For many years, when ICE arrested someone who'd been living in the U.S. a while and wasn't stopped when entering the country by federal authorities at a national border, the person was allowed to ask a judge to let them pay a bond to get out of detention while they fight their deportation case.
But last summer, the Trump administration changed the policy and said immigrants arrested nowhere near a border and who've lived in the country for years also should be detained by default, without a bond hearing.
"And what that's caused is a massive population of noncitizens, oftentimes nonviolent noncitizens, being detained on immigration violations, which costs taxpayers millions of dollars a day," Trager said.
The Sixth Circuit appeals court's ruling is already getting cited by federal judges in Kentucky's Eastern and Western district courts, where immigrants have filed hundreds of habeas corpus petitions arguing they're unlawfully detained. For example, last week judges in both districts quickly issued orders that said the Sixth Circuit's decision made it clear the person in a habeas case before them should've gotten a bond hearing.
Even before this ruling, the Kentucky Center for Investigative Reporting found in February that judges in the Western District of Kentucky had granted about three-quarters of habeas cases filed by immigrants since Trump took office.
The appeals court's case concerned several immigrants ICE jailed in Michigan who've lived in the U.S. for years. Circuit Judge Eric Clay wrote in the ruling: "Some … own property or work for locally owned businesses. Others … have worked with law enforcement to facilitate criminal prosecutions. All appear to contribute to their neighborhoods and local communities. Many are the primary breadwinners or essential caregivers for their families, which include their children who were born here and are citizens of the United States."
The ruling said the federal government had a "previously unbroken 29-year streak" of granting bond hearings to noncitizens like them. It also said none of the Trump administration's arguments were persuasive.
The ruling said people in similar situations "should have a forum to explain that their backgrounds and connections to their communities justify release on bond."
Immigration attorneys with clients jailed by ICE in Kentucky have been waiting for the appeals court's decision. In recent weeks, several attorneys told KyCIR the fate of some of their clients' cases would hinge on the Sixth Circuit's ruling.
Had the Sixth Circuit ruled in favor of Trump, attorneys said they would've lost their habeas cases for people who've been locked up without a bond hearing even though they've lived in the U.S. for years.
Yet while the Sixth Circuit's ruling against Trump says longtime residents are entitled to a bond hearing, it doesn't ensure a judge will say yes.
Multiple attorneys told KyCIR it generally has become harder to get bond granted by immigration judges during Trump's second term.
Sarah Larcade, a Cincinnati-based immigration attorney, said it's frustrating to win a client's habeas case, only to have bond denied.
"You'll go to the bond hearing and no matter what the facts are, the judge is going to say, 'Oh, you're a flight risk,' or 'You're a danger,' and deny bond," she said.
Trager said the Sixth Circuit ruling provides some relief to people ICE detains in Kentucky, assuming they're able to get a lawyer. It "provides a lot of legal basis" for people with open habeas petitions to prevail, yet he expects there still will be debate in individual cases.
"I think there's still going to be a lot of interpretation, there's still going to be a lot of confusion on this issue," he said. "And there's just a ton of people who are sitting in custody right now who really aren't able to navigate the complexities of this legal situation on their own."
The Sixth Circuit probably won't be the final word on this issue.
Attorneys expect the U.S. Supreme Court to eventually weigh in because U.S. appeals courts are split on whether ICE can detain longtime residents with a bond hearing.
If the Supreme Court, which has a 6-3 majority of Republican-appointed judges, were to rule in Trump's favor, that would once again allow the widespread denial of bond hearings to immigrants held in Kentucky jails.
But attorneys told KyCIR they can make other arguments in habeas petitions for why someone's detention violates their due process rights.
National Immigrant Justice Center attorney Colleen Cowgill said her organization already has done that for clients in Texas, where an appeals court upheld Trump's mandatory detention policy.
"But there we've been able to continue to bring challenges on due process grounds, and many judges there are still granting release," she said. "We're not just going to stop, you know, trying to fight for our clients in this way, but it would likely mean changing our legal theory and our approach."
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