A federal appeals court ruled Tuesday that Immigration and Customs Enforcement can’t indefinitely detain noncitizens awaiting immigration proceedings or removal without regard for their criminal history or date and point of entry.
The 2nd U.S. Circuit Court of Appeals’ decision contradicted two other appeals courts that have reviewed ICE’s policy, likely setting up the issue for scrutiny by the Supreme Court.
The case centers around Ricardo Aparecido Barbosa da Cunha, a noncitizen from Brazil who worked in construction and has lived in the United States since around 2005. He applied for asylum in 2016, was granted work authorization pending his application’s review and has never been convicted of a crime.
Immigration officers arrested him in September last year on his drive to work. Da Cunha asked to be released on bond to go home to his family in Massachusetts while awaiting proceedings, but he was denied based on ICE’s mandatory detention policy.
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The three-judge panel ruled unanimously against the Trump administration’s position that people in da Cunha’s circumstances — “by all accounts, millions of men, women, and children,” the court wrote — are subject to federal law allowing officers to hold noncitizens who are stopped near the border or who have criminal backgrounds.
“The government claims that mandatory detention must continue regardless of how long removal proceedings take — even if the noncitizen poses no danger to the community or risk of flight. That is not what the law says,” Trump-appointed Judge Joseph Bianco wrote. Bianco said the policy raises “serious constitutional questions” surrounding “what would be the broadest mass-detention-without-bond mandate in our Nation’s history for millions of noncitizens.”
The 2nd Circuit broke with the 5th and 8th circuits on similar decisions regarding detainment, likely putting ICE’s policy on track for review by the Supreme Court. The majority of federal judges in lower courts across the country have deemed the policy illegal.
Erum Salam is a breaking news reporter for MS NOW, with a focus on how global events and foreign policy shape U.S. politics. She previously was a breaking news reporter for The Guardian.