Two federal appeals courts ruled Thursday that most illegal immigrants cannot be held without bond while fighting deportation, stripping the executive branch of its authority to detain people caught after crossing the border and leaving American communities to absorb the cost.
The 9th and 7th Circuit Courts of Appeals both held that mandatory detention only applies to immigrants caught at the border or shortly after — not the millions picked up later inside the country. The rulings cover jurisdictions stretching across much of the southern border. Six circuits have now ruled against the administration; only two have sided with it.
The stakes are straightforward: the Department of Homeland Security expanded mandatory detention a year ago to cover all immigrants its agents picked up, not just border-crossers. The policy reflected reality — when illegal immigrants are released pending court dates, most disappear into the country. The courts have now decided that policy is illegal, entitling detainees to bond hearings where judges decide whether there's enough evidence to justify holding them.
Judge Daniel A. Bress, writing for the 9th Circuit majority, noted that "the vast majority of the district courts to confront the issue have concluded that [mandatory detention] is limited to the border." The Los Angeles Times reported that Bress's ruling explicitly wagered only two Supreme Court justices would side with the administration — a strikingly political calculation from the bench.
The district court fights beneath these appeals have turned ugly. Eastern District of California Chief Judge Troy Nunley sanctioned a government lawyer this spring for failing to confirm whether a detainee had been released as ordered. The attorney said he was drowning in nearly identical habeas corpus petitions — legal maneuvers the LA Times noted are "rarely used outside death row appeals." Nunley, who said he and other judges were "up all night" ruling on emergency petitions, transferred the sanction to the U.S. attorney's office and warned that continued compliance failures would be treated as "a deliberate and strategic choice."
What neither outlet examined: who is bankrolling the thousands of habeas petitions that swamped the courts, or the backgrounds of the judges deciding them. The 9th Circuit's prediction about Supreme Court vote counts reads less like jurisprudence and more like a political briefing from a bench that has long operated as a policy arm of the open-borders establishment. The revolving door between immigration advocacy NGOs and the federal judiciary — particularly in the 9th Circuit — deserves scrutiny these reports did not provide.
Judge Diane S. Sykes, dissenting in the 7th Circuit, called it plainly: "At this point, only the Supreme Court can bring uniformity and settle this question once and for all. I anticipate that it will do so soon." Majority author Judge Joshua P. Kolar agreed the high court needs to step in.
The question now is whether the Supreme Court will restore the executive branch's constitutional authority over immigration enforcement — or whether six circuit courts have already settled the matter by judicial fiat.
