Fifth Circuit Has New Legal Idea, It Is That Any Non-Citizen Can Be Locked Up Forever
Been in America for 30 years? That's nice, enjoy the detention camp.
Has anyone in America ever loved anything as much as today’s wingnuts love locking immigrants up in detention camps? And we ask this knowing full well that Americans love lots of terrible things. Guns. Racism. TV shows created by Dick Wolf.
The latest step on the nation’s road to ignoring whatever lessons were available to us after the internment of Japanese-Americans during World War II came about on Friday night. That was when a three-judge panel of the Fifth Circuit Court of Appeals released a ruling stating that everyone had been interpreting a particular aspect of federal immigration law incorrectly since 1996. And when we say everyone, we mean five presidents (including Donald Trump in his first term), immigration attorneys, the entire immigration apparatus of the federal government, and the vast, vast number of federal judges who have looked at the issue over the last year. Including Trump appointees!
But this new interpretation gives the Trump administration something it desperately wants: the legal seal of approval to lock up every immigrant its stormtroopers can get their hands on, no matter their age, health, legal status, or length of time they have been in this country. God, the sex Stephen and Katie Miller probably had after hearing this news must have been mind-blowing.
We thought it, we said it, and we apologize for nothing.
The clearest explanation we have found for this came from Chris Geidner at his excellent Law Dork newsletter. The issue can be found in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Under this law, people who are present in America without ever having been legally admitted “are subject to a section of law that allows release and requires bond hearings (absent exceptions in the law) if the government seeks to deport them.” Easy enough to understand.
Now, under a different section of the IIRIRA, anyone classified as an “arriving alien” — say, someone who shows up at the Mexican border and asks for asylum — gets “mandatory detention.” But the Trump team has come up with a novel interpretation: This second section of the law should also apply to people in that first group. All of a sudden, literally millions of people who have gone decades building their lives while their deportation cases work their way through the system are being told they should have been locked up instead. And as we have seen from actions in Minneapolis and a bunch of other places, immigration authorities under Trump are doing their darndest to make that happen.
This is how you keep hearing insane stories about people who have been part of their communities for decades, who have American spouses and children and businesses and lives, getting scooped up and deposited in camps under horrific conditions. Like this immigrant from Ireland, who was arrested last September after 20 years in the States and has been languishing in custody ever since:
He said he has been locked in the same large, cold and damp room for 4½ months with more than 70 men. He said detainees are constantly hungry because meals served at tables in the centre of the room offer only child-sized portions. Fights often break out over food, “even over those little child-sized juice containers”. Toilet areas are “filthy”.
The man, Seamus Culleton, also said there is nothing for him to do but mostly lie in bed all day, and that he has been allowed outside for exercise and fresh air fewer than a dozen times in five months.
This new interpretation of the law is also how you have such an insane backlog of habeas petitions being filed in federal courts that a government lawyer all but broke down in front of a judge last week over her insane workload. Combine that, all the extra millions of people who are suddenly eligible for mandatory detention, and immigration authorities refusing to follow court orders as a matter of course, and you go a large way towards explaining the current nightmare.
If this new legal position sounds ridiculous, that’s because it is. And vast numbers of judges have seen it that way — 160 judges in about 50 courts across the US, according to a count compiled by a district court judge for a decision in November. That judge also found that “[o]nly in a dozen of 362 cases identified did the district court judges side with the Trump administration.”
By another compilation, this one from Politico, “at least 360 judges rejected the expanded detention strategy — in more than 3,000 cases — while just 27 backed it in about 130 cases.”
Even Trump appointees have rejected the government’s argument over and over. Yet somehow, two wingnuts on the Fifth Circuit (it was a 2-1 decision) have discovered that they are right and everyone else is wrong, neener neener.
The decision was written by Edith Jones and Kyle Duncan, two hard-right nutters who love to fuck up what should be easy decisions under precedent and black-letter law if it helps usher in the right-wing vision of turning America into a racially pure Gilead.
If there is a silver lining here, it is that this decision only applies for now to Texas, Louisiana, and Mississippi. However, since habeas applicants have to appeal to the court in whose jurisdiction they are currently located, you can expect ICE and Border Patrol to redouble their efforts to send detainees to Texas, where the government has built a dilly of a detention center called, well, the Dilley Detention Center.
The plaintiff in this case will probably appeal either to the full Fifth Circuit or the Supreme Court, so there will be plenty of opportunities in the near future for this whole mishegas to enrage us further.
[Law Dork / Steve Vladeck / Irish Times / Politico]
Wonkette can only fantasize about the Millers’ sex lives thanks to your generous support.
Bugs, too, was a bad bunny.
“As a nation, we began by declaring that 'all men are created equal.' We now practically read it 'all men are created equal, except negroes.' When the Know-Nothings get control, it will read 'all men are created equal, except negroes, and foreigners, and Catholics.' When it comes to this I should prefer emigrating to some country where they make no pretense of loving liberty – to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy.”
― Abraham Lincoln, 1855