Late Friday, two of the nation's most right-wing circuit judges adopted an odious legal claim that district court judges from across the country (and ideological spectrum) have overwhelmingly rejected
"And in J.G.G., a 5-4 majority rejected an attempt by individuals who the Trump administration was seeking to remove under the Alien Enemies Act to challenge their detention and removal through a nationwide class action under the Administrative Procedure Act—holding that they had to proceed through habeas petitions filed in the district(s) in which they were confined. (As Justice Sotomayor pointed out in her dissent, which was joined in these respects not just by Justices Kagan and Jackson, but also by Justice Barrett), this reading was “dubious,” all the more so given the Supreme Court’s 2020 conclusion that challenges to removal orders are not within the historical “core” of habeas corpus protected by the Constitution’s Suspension Clause.)"
First of all, I am impressed that you pulled off this cogent analysis off as many of us were drifting off to sleep last night.
Secondly, the two cases you mention, particularly the recent one alluded to above, seem to go some ways towards explaining why our courts are under such extreme stress right now (I believe one of our local judges in the Philly area compared their role vis a vis the administration to Hercules battling Hydra). It's really a disturbing phenomenon.
It sounds like we can't be confident that the Supreme Court will overrule this Fifth Circuit panel.
At the end of the day, why should they? If we rely on the courts to determine the rights that non-citizens, especially those here illegally, enjoy - rights which differ from the rights the constitution recognizes in respect of citizens - then, should the courts determine that these illegal aliens do not have certain rights, why should we think otherwise?
Thank you for continuing to address the historic departure of the once great Fifth Circuit Court of Appeals from the core principles of basic statutory interpretation, common sense and constitutional decency and order. Judge Edith Jones persistent references to “aliens” is deep projection from her alienation and career trajectory of transferring the Court from the rule of law to the rule of the lawless few. Judge Douglas’ dissent destroys the facade of warped and dishonest statutory interpretation wrapped in Jones’ MAGA cultism.
How does use of the term "alien" - a legally recognized term, used to describe those who are not citizens of a nation - constitute a "trajectory of transferring the Court from the rule of law to the rule of the lawless few"?
Thanks again for your timely and trenchant analysis; you are providing a valuable public service.
May I suggest a topic for a future piece? Given the govt’s headlong rush to build and acquire space to “warehouse” the people it’s snatching, it will become increasingly important for Americans to know how—in our names—those detained are being treated. At least one court has ordered the govt to allow Congress members to inspect facilities, but those orders appear to be ignored. What is the status of that legal battle?
In order to avoid the question of ill treatment, perhaps we should just then advocate for speedy removal? The faster the throughput, the less the inventory, the fewer the facilities required. Win-win?
I agree that the response to immigration by the Trump administration is wrecking our country, and I agree that the Trump admin response is extreme. I cannot help but see as well that the issue of immigration has been boiling for long time because our legislators have not done the due diligence of follow up, building the infrastructure necessary to manage, and mindfully evolving with over time. Unfortunately, the pot boiled over when this administration came into power (they clearly turned up the burner). Our next leaders shooting for a November win have to be clear and serious about comprehensive immigration reform with clear rules, proper management, and humane actions.
America, like many other countries, has not been investing nearly enough in fixing it's immigration infrastructure and processes. But, immigrants should be celebrated, not vilified, and the rhetoric from Trump about immigrants being "murderers and rapists", "poisoning our country", and "eating dogs and cats" not only should have been more strongly-condemned, but should have, by itself, disqualified him from ever holding any public office, let alone the office of the President.
I risked my life in combat to preserve this nation. I believe in the basic goodness that existed before Trump undermined the Constitution and laws. That ain't clutching pears baby.
It isn't a crisis about immigration, it's a crisis about illegal aliens (I will not deign to call them immigrants).
It wasn't manufactured by the Trump administration, it was fomented by the Biden administration, which abandoned its responsibility to secure the southern border.
It isn't enforcing the laws that is "wrecking the country in so many ways", it's refusing to enforce the laws, and obstructing law enforcement when they attempt to enforce the laws.
https://www.cato.org/blog/biden-didnt-cause-border-crisis-part-1-summary. It is not, and has never been, a "crisis". Undocumented immigrants are much less prone to commit crimes than "legal" citizens, pay more in taxes than they received in benefits, and have a higher labor force participation rate (65.7%) compared to native-born individuals (62.3%).
The suggestion that undocumented immigrants must commit some other crime before their presence is a problem is asinine. Because they are here illegally, none of the rest of that is relevant, and it is so dishonest of anyone to suggest otherwise.
And yes, Biden caused the crisis. Only a fool would refuse to recognize (1) the massive increase in illegal immigration, masquerading as asylum (which, when fleeing Honduras and other points south of Mexico, could have been obtained IN Mexico) during his administration; (2) his insistence that, absent new legislation, nothing could be done to staunch the flow; and (3) the decline, to almost zero, during the Trump administration, WITHOUT any new legislation.
Yeah, only a fool would refuse to acknowledge facts when staring them in the face. And only a fool would try and obfuscate, pointing out the immaterial and the irrelevant in defense of the indefensible.
We don't call people names in the comments here. But also, the post to which you are putatively responding explained (in footnote 1) why you're wrong about the "illegality" of being out of immigration status.
The coming Supreme Court case will determine whether Congress’s bond hearing framework survives or gets swallowed by an interpretation that converts nearly every undocumented immigrant into a permanently detainable “applicant for admission.”
The Statutory Interpretation dilemma : The government’s textualist reading faces three fatal problems. First, it nullifies § 236(a)—Congress’s general provision authorizing bond hearings for warrant-based arrests—by making it applicable to almost no one. Second, it produces absurd results: someone who entered 30 years ago, raised U.S. citizen children, and was arrested in Chicago is treated identically to someone apprehended at the border yesterday. Third, it collapses the border-interior distinction—treating interior enforcement as if it were border processing, despite Congress creating separate statutory frameworks for each.
The 1997 INS Got It Right: Facing the same statutory text, the INS made the sensible choice: § 235(b) applies to arriving aliens at or near the border; § 236(a) applies to interior arrests on warrants, regardless of original entry. This interpretation gave effect to both provisions, avoided absurdity, and preserved the statutory structure. It held for 28 years until the Trump administration abandoned it.
Constitutional Avoidance Demands Reversal: Zadvydas established that indefinite detention without individualized review raises “serious constitutional concerns,” requiring courts to read implicit limits even into mandatory language. The government’s interpretation authorizes exactly what Zadvydas forbade—indefinite imprisonment without any assessment of flight risk or dangerousness.
The Overwhelming Consensus: Over 3,000 district court rulings—from judges “across the ideological spectrum, including plenty of dyed-in-the-wool conservative stalwarts”—have rejected this interpretation. That’s not activism; it’s recognition that the government’s reading produces statutory incoherence, nullifies § 236(a), creates absurd results, and raises constitutional problems Congress didn’t intend.
Given Zadvydas, the § 236(a) nullification problem, the absurdity of treating decades-old entry as permanent “arriving” status, the INS’s 28-year interpretation, and 3,000+ judicial rejections, the Supreme Court should reverse. The votes will be close—likely 5-4 with Barrett as the swing—but the legal principles are clear: textualism means reading statutes as a whole, not nullifying provisions; statutory interpretation means avoiding absurd results; and constitutional avoidance means preserving judicial review, not blessing indefinite detention without hearings.
The question isn’t whether immigration enforcement matters—it’s whether Congress eliminated bond hearings for millions based solely on decades-old entry, regardless of ties, criminal history, or individualized assessment. The INS said no in 1997. Three thousand district judges said no since 2025. The Supreme Court should say no in 2026.
Someone who crossed the border about 30 years ago, usually came because of lack of opportunities in his home country. Migrants who arrived more recently are often fleeing oppression, hunger, violence.
Motivations have changed—decades ago many came for opportunity; today many flee violence. But that’s not the core legal question.
Our law draws a statutory line between being stopped at entry (§ 1225) and being arrested inside the U.S. after entry (§ 1226). Congress built two different frameworks because these are two different situations. Someone caught at the border yesterday and someone picked up after 30 years here are not in the same posture.
The real debate is what to do with that difference. One view says recognizing long residence and family ties “rewards” unlawful status. The other says it isn’t a reward at all—it’s an acknowledgment of what a person has built here: decades of work, U.S. citizen kids, taxes paid, clean record, community roots.
Matter of Marin isn’t about bond; it’s about discretionary relief. But it gives the core template: you balance adverse factors (the violation, any crimes) against favorable equities (length of residence, family, employment, community ties, hardship). The more serious the negatives, the stronger the positives must be. That’s judgment, not legalization/amnesty.
What the current approach does is try to wipe out that balancing test entirely. No real weighing of countervailing equities, no serious look at dangerousness, contribution, or roots—just a categorical rule that anyone who entered without inspection gets treated the same. That swaps a nuanced, decades‑old framework for a one‑factor test based only on how someone first crossed the border.
If you care about public safety and fairness, that’s backwards. The more rational proxy for who deserves discretion isn’t how they entered; it’s whether they’re dangerous and what they’ve contributed.
Yes I understand the differences. My point was that recently arrived migrants can be in more dire need of protection than those who came a long time ago. I do not understand what the "nuanced, decades old frame-work" that you refer to is. I never met an illegal immigrant who got status that way. The 1996 "anti-immigrant" law IIRIRA even probited/prohibits "undocumented" migrants who married US citizens to get a Green Card (as they first had to serve a TEN year ban in their home country). I also have not seen "nuanced" rules applied to the many legal immigrants who had to self-deport thanks to regulations and/or USCIS mistakes/backlogs ruining their procedure. Often they hired lawyers, contacted politicians, but all to no avail.
When you weigh it all and decide that someone who is here a longer time and has contributed etc. can stay (what else can you do) you basically void immigration rules for legal immigrants. H-1Bs from India currently have a waiting time of about a 100 years for their Green Card. So much for doing it legally.
We should treat one another the way we want to be treated. We are a blessed nation....we are better because of our differences/our experiences!
We are blessed! Let's continue sharing and giving and encouraging one another. We have freedom of religion.
"Red and Yellow, black and white...ALL ARE PRECIOUS IN GOD'S SIGHT!
Count the ways we have given to one another as human beings, bringing our love, our gifts of creativity, our doctors, our nurses, those who serve with their very lives in the military, our teachers, doctors, scientists, those who explore space, build our highways....etc!!!!
I love the sharing of culture, the freedoms we hold out to every citizen, the opportunity for education and advancement.
We need to honor these opportunities.
We are at fault for the lack of enough proper and legal entryways into our country. Can you even imagine all that each person has gone through to come to us???? and then we disrespect them, we harm them....when they have suffered so much to come to the "HOPE" they longed for!!!....as our ancestors long ago!
Alas, that is the way the US continues to advertise itself "We are a Nation of Immigrants!" Which gives the impression that migrants are still welcome. The horrible consequences of this we see currently happening. Please start telling people honestly that this country does not want (more) immigrants. Please.
I don’t disagree with you that the legal immigration system is badly broken. H‑1Bs stuck in quotas, people forced to self‑deport because of backlogs or agency mistakes, spouses trapped by bars—that’s all real. But that isn’t what this particular case, or this thread, is about.
This case is about bond and detention in the interior, not who ultimately gets a green card. It’s about whether the government can take someone who is already living in the U.S., arrest them inside the country, and then say: “Because you once entered without inspection, you will be locked up with no bond hearing at all—no chance to show you’re not dangerous, not a flight risk, and have real ties here.”
That’s a due‑process problem, not a line‑waiting problem. It would still be a problem even if Congress tomorrow fixed every H‑1B backlog and every family‑based quota. Bond is about basic procedural justice: do we allow a judge to exercise judgment before we jail someone indefinitely?
You’re also right that there are many people who tried to “do it legally” and got crushed by the system. But that’s precisely why it’s important not to turn every conversation about enforcement into a referendum on every other part of immigration law. There are “a zillion” different ways people try to get status. Some succeed, many don’t, and a lot of that has nothing to do with how we handle detention.
My point here is narrower and more modest than you’re reading it:
• I’m not saying long‑term undocumented people should leapfrog H‑1Bs or get automatic green cards.
• I am saying that when the government arrests someone in the interior, the law should not treat them exactly the same as someone stopped at the border yesterday and deny them any bond hearing at all.
That interior/border distinction isn’t sentimental; it’s baked into the statute and reflects reality. You simply cannot “enforce your way” out of an undocumented population that’s been accumulating for 30+ years. Even with perfect efficiency, mass enforcement alone will touch a small fraction of people—and if you try to make it broader and harsher, you will shred due process and civil liberties for everyone.
So yes, comprehensive reform has to address legal immigration, backlogs, and legalization. But until that happens, we still have to decide what kind of enforcement state we are. Allowing bond hearings and individualized judgment in the interior isn’t a reward for breaking the rules. It’s the bare minimum if we care about due process and don’t want “enforcement” to become an excuse for permanent, no‑questions‑asked detention of whoever happens to get picked up.
I understand that you do not want a referendum on immigration each and every time. But there is no "each and every time" when it comes to work-bound legal immigration. The issues that crush certain legal non-immigrants are seldomly properly discussed. E.g. is the right to work not a cilvil liberty?
Legal immigrants whose time has run out, often because of USCIS etc. mistakes/ backlogs, do not get hearings. The only right they have, is to pack up and leave. By threatening illegal migrants with arrest and detention, the US government tries to get them to self-deport too.
A solution would be to allow people who have been here a long time and have contributed/paid taxes etc. and/or are married to a US Citizen, a Green Card procedure. That way there is no costly detention needed, which will lead to even costlier litigation etc. Some migrants are older already, not completely healthy anymore, detaining them is asking for problems.
Many people who recently arrived have requested asylum, as was their right to do. Which means they are in a completely different "pipe-line". It seems that thanks to that request, just arrived migrants can have more rights than those who have been living here longer already.
Indeed the discussion here is important. But more important is legislation leading to possible legalization. Now. Some parts of the IIRIRA must be repealed. Now. And the deportations have to stop. Now.
And while we are discussing this, the young women that fled Afghanistan, arrived in the US, but were deported to Panama, must be brought back here.
I hear you that work-based legal immigration issues don’t get enough airtime, and that people whose status expires because of USCIS backlogs get a raw deal. But we’re now mixing at least four different legal situations, and that’s exactly how immigration debates spin out.
This thread—and the Fifth Circuit ruling—is about one specific thing: whether people arrested in the interior by ICE get a bond hearing, or whether the government can jail them indefinitely without any assessment of danger or flight risk.
When someone’s H-1B expires, they don’t typically get jailed—they’re told their time is up and must leave. That’s harsh, especially when it’s the government’s screwup. But it’s not the same as being arrested and thrown into detention. Most people whose status expires aren’t incarcerated. It’s an administrative problem, not a detention problem.
What the Fifth Circuit did is different: it said anyone arrested in the interior who once entered without inspection—30 years ago or yesterday—gets treated like they’re still at the border. No bond hearing. No chance to show they’re not dangerous, not a flight risk, have U.S. citizen kids, have worked for decades, have zero criminal record. The only thing that counts is how they first crossed.
That’s a due process problem, not a policy debate. It would still be a problem even if we fixed every H-1B backlog tomorrow.
You say the solution is legalization—just give long-term people green cards. I agree that would be better. But we don’t have that and won’t get it soon. So in the meantime, does ICE get to run indefinite detention with zero individualized judgment? That’s what the Fifth Circuit authorized.
Here’s the thing: we don’t even need massive comprehensive reform to solve a big chunk of this. Quietly extend the LIFE Act—let long-term residents with immediate relative connections pay a fine and adjust status. The public would barely notice, Congress could pick up a few Republican votes for a modest fix, and we’d give relief to millions without collapsing the entire system into one impossible omnibus bill. You can’t solve the enforcement problem by jamming every grievance and every structural issue into one legislative pie. Take the small fixes where you can get them. Right now Republicans have walked away entirely from any concept of justice in this space—some of that’s raw political anger at the 1965 Immigration Act opening the country to Asian, Hispanic, and African immigration, and some of it’s the genuine difficulty of enforcing temporary and permanent status in the interior while keeping the border secure but open enough for people, goods, and money to move. But none of that complexity justifies stripping bond hearings from people who’ve been here for decades.
Asylum seekers are in a completely different statutory pipeline. I’m not defending it as perfect. I’m saying people arrested under § 1226 in the interior are supposed to get bond hearings—Congress created that framework. The Fifth Circuit just collapsed it.
You want IIRIRA repealed, deportations stopped, legalization passed. So do I. But those are legislative fights that take years. What I’m talking about is what happens right now to people being detained under a theory that erases the interior/border distinction.
The Afghan women deported to Panama is an outrage. So are fifty other things. But the fact that there are multiple injustices doesn’t mean we can’t defend one narrow principle: people arrested in the interior should get a hearing before being jailed indefinitely.
That’s not a distraction from comprehensive reform. It’s the minimum floor of due process while we fight for the rest
People who run the risk of getting jailed now - because they are in the US without proper documentation - could prevent this from happening by leaving and going back to the home country. That is what the US government tries to achieve. Cheaper than deportation.
You are worried about the implications of the ruling. If government manages to interpret and stretch th law to meet their needs, without being stopped, that is scary not only for the people who get ensnared, but for US society as a whole.
You are right that mentioning too many immigration issues muddle the debate. But because nothing is being done thanks to inaction of politicians - who are afraid to tackle this issue - the problems are growing by the day. In the end, they are all part of the same issue.
By putting illegal migrants in Green Card proceedings, you are basically detaining them in their own homes. This means they pay for their own housing, food, upkeep. You order them to deliver - and pay for - proof they never had interaction with law enforcement, were never convicted. And that if it happened, it was a misdemeanor. They themselves have to bring proof of being useful, having paid taxes, etc. They have to pay for the med exam, the vaccinations, etc. Why is it so hard to realize a win-win situation.
Bytheway the people I mentioned that had to self-deport were H-1B workers in Green Card procedures. Work-bound people have no say in their procedure. Others I saw self-deport were E-2 visa holders, in the country for about 20 years already, having built two successful businesses.
Good column. We know what we’ve always known. We;have an evil;regime;that wants to detain indefinitely very large numv-bees of;p »lol »; a,d we,ts to do;it with as much,chaos as possible; and we have at least o,e appellate court that understands what the,regime;was,ts and is deter to help.
There needs to be a compromise regarding uninvited immigrants who are already here. Otherwise, ICE will remain too large, too powerful, and, ultimately, too great a threat to our democracy. Grant amnesty (but not citizenship) to uninvited immigrants who came here before Biden's presidency and who have lived productive lives ever since. But no amnesty -- only justified asylum hearings -- for uninvited immigrants who came here during Biden's presidency. I believe that would demonstrate that the Democratic party is not indifferent to illegal immigration; and it is a compromise that I believe a majority of the country would support.
That was in the worls while Trump was running for office. But Trump has always wanted the problem, not the solution to it. And so back the summer before last, while campaigning, he told Congressional Republicans not to pass the grand compromise immigration reform act that had already gained bipartisan support. He did not want the problem to go away.
Why ? Was it just so he could continue to rail against immigrants ? So he could get elected by claiming the country is under invasion ? Or does he still want the problem for a fundamental reason ? Could that be that rounding up aliens is a useful means by which he can disrupt elections and set aside the lawful and constitutional order of the United States.
No doubt re Trump! But I believe (without definitive proof at this time) that if Dem leaders proposed my compromise it would have so much public support that it would pass in Congress and even survive a Presidential veto...or, at least, that it would be a major campaign issue and advantage for the Dems in 2026.
Agreed. It brings pressure to bear. And would no doubt gain broad public support. But I doubt Mike Johnson would let it go anywhere. He answers to Trump. What Dems can do is "just say no". No more money for DHS. That is what is before them now. Its critical.
No amnesty. Just give the immigrants who came here to work, the Green Card they should have been issued right-away. That did not happen because the US immigration system is based on family-reunion only. (Few exceptions for which most migrants do not qualify). To immigrate into the US a job offer is rather useless, you need a US Citizen family member willing and able to sponsor you. No family member, no immigration possible. And that is the root of the problem, for 30 years already. Unless the US manages a reform towards an immigration system based on the economic needs of this country, the issue will not go away.
@ Tom. That would be the start of an idea. One problem: the number of migrants that arrived during the Biden administration numbers a few Million. It will take a long time to process them through immigration courts. And that is essentially what they were banking on, being able to work at least a few years and save some money. If you process these people quickly, they will not have an opportunity to earn the money to offset their investment (paid to coytes/ cartels) and often the loan(s) they took out in their home country (from family members).
There is another piece of case law adding to this problem which the author touches on in conclusion but which he does not identify, and that is the ruling by the Supreme Court (again on shadow docket, if I recall correctly) in Kilmar Abrego Garcia case that came before Judge Boasberg in Maryland and its companion cases, which incidentally could also have formed the basis for a class action. There are so many instances now in which administration officials have thumped their noses at federal judges. This is one, and thst is why Judge Boasberg still has the case, although he was stripped of his ability to do anything with it by the high court, rendering further proceedings a Kafkaeque exercise in absurdity. He is holding contempt hearings against those who left the barn door open while the horses are now all long gone.
Bankruptcy Court judges have nationwide jurisdiction. But not so Federal Disttict Court judges. And the Supreme Court in that case ruled that habeas corpus cases must be brought in the jurisdiction where the body is found, or might we say, is being hidden, rather than the jurisdiction in which he was (wrongfully as will be alleged in the petition) arrested. Not where he lived. Not where his legal residence was and where he rightfully should be.
Federal District Court judges have no long arm jurisdiction in such cases. And this of course opened the barn door wide to allow ICE officials and agents to engage in the very sorts of forum shopping shell games, wrongful detentions and concealment that have given to these great case load and procedural problems facing district court judges at over the country and the territories. It is not even clear at least to me at this time, that a judge can retain jurisdiction over a case already underway in which the body is transported out of it afterwards. If so, then what constitutes the point at which jurisdiction attaches ? When the petition is stamped in by the clerk ? When process is served ? When it is returned ? When the first hearing is scheduled ? When ?
And what bloody difference does it make if the person is truly disposed of, as in gone.....from the United States ? This was basically the "Sorry Charlie" argument offered right up to the Supreme Court, by the DOJ, after the 300 or so Venezuelans were flown off El Salvadore to be held indefinitely in a terrible prison, at Emile Bove's direction, after the writ had issued. "Fuck the judge" he is reported to have said. Now he is one. And the ever companionable John Sauer got up in front of the Supreme's and said "I know it was wrong your honor. But what do you all expect us to do about it now ? They are out of our hands and beyond our jurisdiction". Plus, "Judge Boasberg never had jurisdiction in the first place, since by the time his clerk called the case the bodies were in Texas".
Thus do the lawless, dishonest, and violent bear it away by making fools of judges. But in so far as the narrow problem brought to our attention by the author is concerned, of course, it should be noted that there are many ways in which the disabilities associated with having entered the country illegally can be CURED. To wit by:
1. Pardon.
2. Amnesty.
3. Grant of asylum.
4. Retroactive issuance of a visa.
5. Issuance of a Green Card
6. Award of Citizenship.
7. Or plain old arbitrary and capricious exercise of discretion by some nameless bureaucrat or the turning of a blind eye, rather like in the case of Elon Musk, I should think.
And this of course would make spicilege of the "Governments" position in this 5th Citcuit case that ICE has blanket authority to arrest and deny due process to all who can be found to have entered the country allegedly illegally at some point in the past.
Seems pretty clear there should be habeas jurisdiction in the district of arrest—if for no reason other than obviating fights about exactly when the plaintiff left the district, á là JGG.
I like your idea. When SCOTUS came out with the ruling in J.G.G. that habeas must be filed where detained, it seemed as if they were deliberately trying to make it a cat and mouse game.
If you issue a Green Card, it means the immigrant can after five years of presence (three in case of marriage to a US Citizen) request US Citizenship, if so desired. Some prefer to stay on LPR status, especially if their home country does not allow dual citizenship.
Some future (socialist?) government comes to power asserting that tax evasion is an existential threat to the US the way Trumpists claim illegal immigration is. They massively find the IRS and access all sorts of data to track down tax evasion at all levels (especially small business, and self-employed). They claim tax evasion is closely tied with organized crime and violent drug gangs, and foreign dictatorships using the US as a tax haven/laundromat, operations to corrupt US politicians, and manipulate markets. IRS sees a massive increase in funding and employees, IRS-CI are also massively increased in number and fitted out just like ICE. They start surging in massive numbers in states like Texas and Florida using the same tactics as ICE. There is no distinction drawn in practice between massive tax evasion operations and petty tax reporting infringements by individuals. Those arrested are kept for long periods awaiting trial in special purpose built detention camps to deal with the large numbers.
Question: Would the fifth circuit be happy with its precedents? (keep in mind most tax cases are civil not criminal - just like immigration).
Illegal immigrants can file and pay taxes using an ITIN (Individual Taxpayer ID#). It was created especially for people without a social security number (some of which are legal immigrants). The IRS stated the ITIN was for tax purposes only. But recentlly DHS/ICE seems to have gotten access to the system.
Judge Jones has deployed dishonest and strategic statutory interpretation in a results-oriented way. She has intentionally created a 5th Circuit safe space for a DHS policy that is very hard to square with the statutory text after application of the most standard and commonly used rules of statutory interpretation. I doubt SCOTUS will use its shadow docket to overturn this. This disingenuous opinion will fester for at least one year, and likely longer. DHS will spirit detained non-citizens into the 5th Circuit before detainees' families can find a lawyer to file a habeas petition.
Great piece. On your footnote 4, does that mean that if ICE were to nab Liam Conejo Ramos and his father again and rush them down Texas before a habeas petition could be filed such that they would have to file their habeas petition in Texas, the federal district court in Texas would be bound to follow this ruling just issued by this Fifth Circuit panel.
Thanks to the Federalist Society, and to the dixie irredentists and Trump bootlickers in the Senate, the American judicial system is now perfectly equipped to dispense equal injustice under law to all except those who are fat, white, male, obscenely wealthy, and/or speak with a southern accent.
When I briefly practiced immigration law back in 2011 I tried and failed to get my client released on bail. When I tried to find out what happened, I learned that an illegal alien out on bail had killed a nun in Illinois. It took about three months for the furor to die down. Then the immigration courts started granting bail again. My client eventually got deported despite my best efforts. This was prior to 2014 when the grounds for applying for asylum were expanded to include fear of gang violence or domestic violence. Unfortunately my client admitted that he had come to the U.S. just to seek a better life.
"And in J.G.G., a 5-4 majority rejected an attempt by individuals who the Trump administration was seeking to remove under the Alien Enemies Act to challenge their detention and removal through a nationwide class action under the Administrative Procedure Act—holding that they had to proceed through habeas petitions filed in the district(s) in which they were confined. (As Justice Sotomayor pointed out in her dissent, which was joined in these respects not just by Justices Kagan and Jackson, but also by Justice Barrett), this reading was “dubious,” all the more so given the Supreme Court’s 2020 conclusion that challenges to removal orders are not within the historical “core” of habeas corpus protected by the Constitution’s Suspension Clause.)"
First of all, I am impressed that you pulled off this cogent analysis off as many of us were drifting off to sleep last night.
Secondly, the two cases you mention, particularly the recent one alluded to above, seem to go some ways towards explaining why our courts are under such extreme stress right now (I believe one of our local judges in the Philly area compared their role vis a vis the administration to Hercules battling Hydra). It's really a disturbing phenomenon.
It sounds like we can't be confident that the Supreme Court will overrule this Fifth Circuit panel.
Am I wrong?
At the end of the day, why should they? If we rely on the courts to determine the rights that non-citizens, especially those here illegally, enjoy - rights which differ from the rights the constitution recognizes in respect of citizens - then, should the courts determine that these illegal aliens do not have certain rights, why should we think otherwise?
Thank you for continuing to address the historic departure of the once great Fifth Circuit Court of Appeals from the core principles of basic statutory interpretation, common sense and constitutional decency and order. Judge Edith Jones persistent references to “aliens” is deep projection from her alienation and career trajectory of transferring the Court from the rule of law to the rule of the lawless few. Judge Douglas’ dissent destroys the facade of warped and dishonest statutory interpretation wrapped in Jones’ MAGA cultism.
How does use of the term "alien" - a legally recognized term, used to describe those who are not citizens of a nation - constitute a "trajectory of transferring the Court from the rule of law to the rule of the lawless few"?
Thanks again for your timely and trenchant analysis; you are providing a valuable public service.
May I suggest a topic for a future piece? Given the govt’s headlong rush to build and acquire space to “warehouse” the people it’s snatching, it will become increasingly important for Americans to know how—in our names—those detained are being treated. At least one court has ordered the govt to allow Congress members to inspect facilities, but those orders appear to be ignored. What is the status of that legal battle?
In order to avoid the question of ill treatment, perhaps we should just then advocate for speedy removal? The faster the throughput, the less the inventory, the fewer the facilities required. Win-win?
wtf 😳 we can’t just lock people away!! That’s a concentration camp and cecot
This "crisis" about immigration manufactured by the Trump administration is wrecking our country in so many ways.
That’s the plan alright .
I agree that the response to immigration by the Trump administration is wrecking our country, and I agree that the Trump admin response is extreme. I cannot help but see as well that the issue of immigration has been boiling for long time because our legislators have not done the due diligence of follow up, building the infrastructure necessary to manage, and mindfully evolving with over time. Unfortunately, the pot boiled over when this administration came into power (they clearly turned up the burner). Our next leaders shooting for a November win have to be clear and serious about comprehensive immigration reform with clear rules, proper management, and humane actions.
America, like many other countries, has not been investing nearly enough in fixing it's immigration infrastructure and processes. But, immigrants should be celebrated, not vilified, and the rhetoric from Trump about immigrants being "murderers and rapists", "poisoning our country", and "eating dogs and cats" not only should have been more strongly-condemned, but should have, by itself, disqualified him from ever holding any public office, let alone the office of the President.
You could have just as well left off the first half and just said " ... the Trump administration is wrecking our country in so many ways."
Please be careful you do not break the strand clutching your pearls that tightly.
I risked my life in combat to preserve this nation. I believe in the basic goodness that existed before Trump undermined the Constitution and laws. That ain't clutching pears baby.
It isn't a crisis about immigration, it's a crisis about illegal aliens (I will not deign to call them immigrants).
It wasn't manufactured by the Trump administration, it was fomented by the Biden administration, which abandoned its responsibility to secure the southern border.
It isn't enforcing the laws that is "wrecking the country in so many ways", it's refusing to enforce the laws, and obstructing law enforcement when they attempt to enforce the laws.
Spare us your histrionics.
https://www.cato.org/blog/biden-didnt-cause-border-crisis-part-1-summary. It is not, and has never been, a "crisis". Undocumented immigrants are much less prone to commit crimes than "legal" citizens, pay more in taxes than they received in benefits, and have a higher labor force participation rate (65.7%) compared to native-born individuals (62.3%).
The suggestion that undocumented immigrants must commit some other crime before their presence is a problem is asinine. Because they are here illegally, none of the rest of that is relevant, and it is so dishonest of anyone to suggest otherwise.
And yes, Biden caused the crisis. Only a fool would refuse to recognize (1) the massive increase in illegal immigration, masquerading as asylum (which, when fleeing Honduras and other points south of Mexico, could have been obtained IN Mexico) during his administration; (2) his insistence that, absent new legislation, nothing could be done to staunch the flow; and (3) the decline, to almost zero, during the Trump administration, WITHOUT any new legislation.
Yeah, only a fool would refuse to acknowledge facts when staring them in the face. And only a fool would try and obfuscate, pointing out the immaterial and the irrelevant in defense of the indefensible.
We don't call people names in the comments here. But also, the post to which you are putatively responding explained (in footnote 1) why you're wrong about the "illegality" of being out of immigration status.
The coming Supreme Court case will determine whether Congress’s bond hearing framework survives or gets swallowed by an interpretation that converts nearly every undocumented immigrant into a permanently detainable “applicant for admission.”
The Statutory Interpretation dilemma : The government’s textualist reading faces three fatal problems. First, it nullifies § 236(a)—Congress’s general provision authorizing bond hearings for warrant-based arrests—by making it applicable to almost no one. Second, it produces absurd results: someone who entered 30 years ago, raised U.S. citizen children, and was arrested in Chicago is treated identically to someone apprehended at the border yesterday. Third, it collapses the border-interior distinction—treating interior enforcement as if it were border processing, despite Congress creating separate statutory frameworks for each.
The 1997 INS Got It Right: Facing the same statutory text, the INS made the sensible choice: § 235(b) applies to arriving aliens at or near the border; § 236(a) applies to interior arrests on warrants, regardless of original entry. This interpretation gave effect to both provisions, avoided absurdity, and preserved the statutory structure. It held for 28 years until the Trump administration abandoned it.
Constitutional Avoidance Demands Reversal: Zadvydas established that indefinite detention without individualized review raises “serious constitutional concerns,” requiring courts to read implicit limits even into mandatory language. The government’s interpretation authorizes exactly what Zadvydas forbade—indefinite imprisonment without any assessment of flight risk or dangerousness.
The Overwhelming Consensus: Over 3,000 district court rulings—from judges “across the ideological spectrum, including plenty of dyed-in-the-wool conservative stalwarts”—have rejected this interpretation. That’s not activism; it’s recognition that the government’s reading produces statutory incoherence, nullifies § 236(a), creates absurd results, and raises constitutional problems Congress didn’t intend.
Given Zadvydas, the § 236(a) nullification problem, the absurdity of treating decades-old entry as permanent “arriving” status, the INS’s 28-year interpretation, and 3,000+ judicial rejections, the Supreme Court should reverse. The votes will be close—likely 5-4 with Barrett as the swing—but the legal principles are clear: textualism means reading statutes as a whole, not nullifying provisions; statutory interpretation means avoiding absurd results; and constitutional avoidance means preserving judicial review, not blessing indefinite detention without hearings.
The question isn’t whether immigration enforcement matters—it’s whether Congress eliminated bond hearings for millions based solely on decades-old entry, regardless of ties, criminal history, or individualized assessment. The INS said no in 1997. Three thousand district judges said no since 2025. The Supreme Court should say no in 2026.
Someone who crossed the border about 30 years ago, usually came because of lack of opportunities in his home country. Migrants who arrived more recently are often fleeing oppression, hunger, violence.
Motivations have changed—decades ago many came for opportunity; today many flee violence. But that’s not the core legal question.
Our law draws a statutory line between being stopped at entry (§ 1225) and being arrested inside the U.S. after entry (§ 1226). Congress built two different frameworks because these are two different situations. Someone caught at the border yesterday and someone picked up after 30 years here are not in the same posture.
The real debate is what to do with that difference. One view says recognizing long residence and family ties “rewards” unlawful status. The other says it isn’t a reward at all—it’s an acknowledgment of what a person has built here: decades of work, U.S. citizen kids, taxes paid, clean record, community roots.
Matter of Marin isn’t about bond; it’s about discretionary relief. But it gives the core template: you balance adverse factors (the violation, any crimes) against favorable equities (length of residence, family, employment, community ties, hardship). The more serious the negatives, the stronger the positives must be. That’s judgment, not legalization/amnesty.
What the current approach does is try to wipe out that balancing test entirely. No real weighing of countervailing equities, no serious look at dangerousness, contribution, or roots—just a categorical rule that anyone who entered without inspection gets treated the same. That swaps a nuanced, decades‑old framework for a one‑factor test based only on how someone first crossed the border.
If you care about public safety and fairness, that’s backwards. The more rational proxy for who deserves discretion isn’t how they entered; it’s whether they’re dangerous and what they’ve contributed.
Yes I understand the differences. My point was that recently arrived migrants can be in more dire need of protection than those who came a long time ago. I do not understand what the "nuanced, decades old frame-work" that you refer to is. I never met an illegal immigrant who got status that way. The 1996 "anti-immigrant" law IIRIRA even probited/prohibits "undocumented" migrants who married US citizens to get a Green Card (as they first had to serve a TEN year ban in their home country). I also have not seen "nuanced" rules applied to the many legal immigrants who had to self-deport thanks to regulations and/or USCIS mistakes/backlogs ruining their procedure. Often they hired lawyers, contacted politicians, but all to no avail.
When you weigh it all and decide that someone who is here a longer time and has contributed etc. can stay (what else can you do) you basically void immigration rules for legal immigrants. H-1Bs from India currently have a waiting time of about a 100 years for their Green Card. So much for doing it legally.
Antoinette Uiterdilk,
We are a nation of immigrants!!!
We should treat one another the way we want to be treated. We are a blessed nation....we are better because of our differences/our experiences!
We are blessed! Let's continue sharing and giving and encouraging one another. We have freedom of religion.
"Red and Yellow, black and white...ALL ARE PRECIOUS IN GOD'S SIGHT!
Count the ways we have given to one another as human beings, bringing our love, our gifts of creativity, our doctors, our nurses, those who serve with their very lives in the military, our teachers, doctors, scientists, those who explore space, build our highways....etc!!!!
I love the sharing of culture, the freedoms we hold out to every citizen, the opportunity for education and advancement.
We need to honor these opportunities.
We are at fault for the lack of enough proper and legal entryways into our country. Can you even imagine all that each person has gone through to come to us???? and then we disrespect them, we harm them....when they have suffered so much to come to the "HOPE" they longed for!!!....as our ancestors long ago!
Alas, that is the way the US continues to advertise itself "We are a Nation of Immigrants!" Which gives the impression that migrants are still welcome. The horrible consequences of this we see currently happening. Please start telling people honestly that this country does not want (more) immigrants. Please.
I don’t disagree with you that the legal immigration system is badly broken. H‑1Bs stuck in quotas, people forced to self‑deport because of backlogs or agency mistakes, spouses trapped by bars—that’s all real. But that isn’t what this particular case, or this thread, is about.
This case is about bond and detention in the interior, not who ultimately gets a green card. It’s about whether the government can take someone who is already living in the U.S., arrest them inside the country, and then say: “Because you once entered without inspection, you will be locked up with no bond hearing at all—no chance to show you’re not dangerous, not a flight risk, and have real ties here.”
That’s a due‑process problem, not a line‑waiting problem. It would still be a problem even if Congress tomorrow fixed every H‑1B backlog and every family‑based quota. Bond is about basic procedural justice: do we allow a judge to exercise judgment before we jail someone indefinitely?
You’re also right that there are many people who tried to “do it legally” and got crushed by the system. But that’s precisely why it’s important not to turn every conversation about enforcement into a referendum on every other part of immigration law. There are “a zillion” different ways people try to get status. Some succeed, many don’t, and a lot of that has nothing to do with how we handle detention.
My point here is narrower and more modest than you’re reading it:
• I’m not saying long‑term undocumented people should leapfrog H‑1Bs or get automatic green cards.
• I am saying that when the government arrests someone in the interior, the law should not treat them exactly the same as someone stopped at the border yesterday and deny them any bond hearing at all.
That interior/border distinction isn’t sentimental; it’s baked into the statute and reflects reality. You simply cannot “enforce your way” out of an undocumented population that’s been accumulating for 30+ years. Even with perfect efficiency, mass enforcement alone will touch a small fraction of people—and if you try to make it broader and harsher, you will shred due process and civil liberties for everyone.
So yes, comprehensive reform has to address legal immigration, backlogs, and legalization. But until that happens, we still have to decide what kind of enforcement state we are. Allowing bond hearings and individualized judgment in the interior isn’t a reward for breaking the rules. It’s the bare minimum if we care about due process and don’t want “enforcement” to become an excuse for permanent, no‑questions‑asked detention of whoever happens to get picked up.
I understand that you do not want a referendum on immigration each and every time. But there is no "each and every time" when it comes to work-bound legal immigration. The issues that crush certain legal non-immigrants are seldomly properly discussed. E.g. is the right to work not a cilvil liberty?
Legal immigrants whose time has run out, often because of USCIS etc. mistakes/ backlogs, do not get hearings. The only right they have, is to pack up and leave. By threatening illegal migrants with arrest and detention, the US government tries to get them to self-deport too.
A solution would be to allow people who have been here a long time and have contributed/paid taxes etc. and/or are married to a US Citizen, a Green Card procedure. That way there is no costly detention needed, which will lead to even costlier litigation etc. Some migrants are older already, not completely healthy anymore, detaining them is asking for problems.
Many people who recently arrived have requested asylum, as was their right to do. Which means they are in a completely different "pipe-line". It seems that thanks to that request, just arrived migrants can have more rights than those who have been living here longer already.
Indeed the discussion here is important. But more important is legislation leading to possible legalization. Now. Some parts of the IIRIRA must be repealed. Now. And the deportations have to stop. Now.
And while we are discussing this, the young women that fled Afghanistan, arrived in the US, but were deported to Panama, must be brought back here.
I hear you that work-based legal immigration issues don’t get enough airtime, and that people whose status expires because of USCIS backlogs get a raw deal. But we’re now mixing at least four different legal situations, and that’s exactly how immigration debates spin out.
This thread—and the Fifth Circuit ruling—is about one specific thing: whether people arrested in the interior by ICE get a bond hearing, or whether the government can jail them indefinitely without any assessment of danger or flight risk.
When someone’s H-1B expires, they don’t typically get jailed—they’re told their time is up and must leave. That’s harsh, especially when it’s the government’s screwup. But it’s not the same as being arrested and thrown into detention. Most people whose status expires aren’t incarcerated. It’s an administrative problem, not a detention problem.
What the Fifth Circuit did is different: it said anyone arrested in the interior who once entered without inspection—30 years ago or yesterday—gets treated like they’re still at the border. No bond hearing. No chance to show they’re not dangerous, not a flight risk, have U.S. citizen kids, have worked for decades, have zero criminal record. The only thing that counts is how they first crossed.
That’s a due process problem, not a policy debate. It would still be a problem even if we fixed every H-1B backlog tomorrow.
You say the solution is legalization—just give long-term people green cards. I agree that would be better. But we don’t have that and won’t get it soon. So in the meantime, does ICE get to run indefinite detention with zero individualized judgment? That’s what the Fifth Circuit authorized.
Here’s the thing: we don’t even need massive comprehensive reform to solve a big chunk of this. Quietly extend the LIFE Act—let long-term residents with immediate relative connections pay a fine and adjust status. The public would barely notice, Congress could pick up a few Republican votes for a modest fix, and we’d give relief to millions without collapsing the entire system into one impossible omnibus bill. You can’t solve the enforcement problem by jamming every grievance and every structural issue into one legislative pie. Take the small fixes where you can get them. Right now Republicans have walked away entirely from any concept of justice in this space—some of that’s raw political anger at the 1965 Immigration Act opening the country to Asian, Hispanic, and African immigration, and some of it’s the genuine difficulty of enforcing temporary and permanent status in the interior while keeping the border secure but open enough for people, goods, and money to move. But none of that complexity justifies stripping bond hearings from people who’ve been here for decades.
Asylum seekers are in a completely different statutory pipeline. I’m not defending it as perfect. I’m saying people arrested under § 1226 in the interior are supposed to get bond hearings—Congress created that framework. The Fifth Circuit just collapsed it.
You want IIRIRA repealed, deportations stopped, legalization passed. So do I. But those are legislative fights that take years. What I’m talking about is what happens right now to people being detained under a theory that erases the interior/border distinction.
The Afghan women deported to Panama is an outrage. So are fifty other things. But the fact that there are multiple injustices doesn’t mean we can’t defend one narrow principle: people arrested in the interior should get a hearing before being jailed indefinitely.
That’s not a distraction from comprehensive reform. It’s the minimum floor of due process while we fight for the rest
People who run the risk of getting jailed now - because they are in the US without proper documentation - could prevent this from happening by leaving and going back to the home country. That is what the US government tries to achieve. Cheaper than deportation.
You are worried about the implications of the ruling. If government manages to interpret and stretch th law to meet their needs, without being stopped, that is scary not only for the people who get ensnared, but for US society as a whole.
You are right that mentioning too many immigration issues muddle the debate. But because nothing is being done thanks to inaction of politicians - who are afraid to tackle this issue - the problems are growing by the day. In the end, they are all part of the same issue.
By putting illegal migrants in Green Card proceedings, you are basically detaining them in their own homes. This means they pay for their own housing, food, upkeep. You order them to deliver - and pay for - proof they never had interaction with law enforcement, were never convicted. And that if it happened, it was a misdemeanor. They themselves have to bring proof of being useful, having paid taxes, etc. They have to pay for the med exam, the vaccinations, etc. Why is it so hard to realize a win-win situation.
Bytheway the people I mentioned that had to self-deport were H-1B workers in Green Card procedures. Work-bound people have no say in their procedure. Others I saw self-deport were E-2 visa holders, in the country for about 20 years already, having built two successful businesses.
Outstanding clarification here. Thank you.
It has to go to the Supreme Court. Human rights, decency and dignity must be protected and restored.
When it comes to (work-bound) immigration, these are in short supply.
Good column. We know what we’ve always known. We;have an evil;regime;that wants to detain indefinitely very large numv-bees of;p »lol »; a,d we,ts to do;it with as much,chaos as possible; and we have at least o,e appellate court that understands what the,regime;was,ts and is deter to help.
I,apologize to;anyone,who,read this incompreheibly spelled column. I’ll check better if I ever comme,t in the future
There needs to be a compromise regarding uninvited immigrants who are already here. Otherwise, ICE will remain too large, too powerful, and, ultimately, too great a threat to our democracy. Grant amnesty (but not citizenship) to uninvited immigrants who came here before Biden's presidency and who have lived productive lives ever since. But no amnesty -- only justified asylum hearings -- for uninvited immigrants who came here during Biden's presidency. I believe that would demonstrate that the Democratic party is not indifferent to illegal immigration; and it is a compromise that I believe a majority of the country would support.
That was in the worls while Trump was running for office. But Trump has always wanted the problem, not the solution to it. And so back the summer before last, while campaigning, he told Congressional Republicans not to pass the grand compromise immigration reform act that had already gained bipartisan support. He did not want the problem to go away.
Why ? Was it just so he could continue to rail against immigrants ? So he could get elected by claiming the country is under invasion ? Or does he still want the problem for a fundamental reason ? Could that be that rounding up aliens is a useful means by which he can disrupt elections and set aside the lawful and constitutional order of the United States.
No doubt re Trump! But I believe (without definitive proof at this time) that if Dem leaders proposed my compromise it would have so much public support that it would pass in Congress and even survive a Presidential veto...or, at least, that it would be a major campaign issue and advantage for the Dems in 2026.
Agreed. It brings pressure to bear. And would no doubt gain broad public support. But I doubt Mike Johnson would let it go anywhere. He answers to Trump. What Dems can do is "just say no". No more money for DHS. That is what is before them now. Its critical.
No amnesty. Just give the immigrants who came here to work, the Green Card they should have been issued right-away. That did not happen because the US immigration system is based on family-reunion only. (Few exceptions for which most migrants do not qualify). To immigrate into the US a job offer is rather useless, you need a US Citizen family member willing and able to sponsor you. No family member, no immigration possible. And that is the root of the problem, for 30 years already. Unless the US manages a reform towards an immigration system based on the economic needs of this country, the issue will not go away.
@ Tom. That would be the start of an idea. One problem: the number of migrants that arrived during the Biden administration numbers a few Million. It will take a long time to process them through immigration courts. And that is essentially what they were banking on, being able to work at least a few years and save some money. If you process these people quickly, they will not have an opportunity to earn the money to offset their investment (paid to coytes/ cartels) and often the loan(s) they took out in their home country (from family members).
tom litwack,
ICE needs to melt away!!!! Hitler is trying to rise from the dead!!!! I SAY NO!!!!!!!
Another variant of forum shopping, albeit at the appellate level. How did we eff all of this up so, so badly?
There is another piece of case law adding to this problem which the author touches on in conclusion but which he does not identify, and that is the ruling by the Supreme Court (again on shadow docket, if I recall correctly) in Kilmar Abrego Garcia case that came before Judge Boasberg in Maryland and its companion cases, which incidentally could also have formed the basis for a class action. There are so many instances now in which administration officials have thumped their noses at federal judges. This is one, and thst is why Judge Boasberg still has the case, although he was stripped of his ability to do anything with it by the high court, rendering further proceedings a Kafkaeque exercise in absurdity. He is holding contempt hearings against those who left the barn door open while the horses are now all long gone.
Bankruptcy Court judges have nationwide jurisdiction. But not so Federal Disttict Court judges. And the Supreme Court in that case ruled that habeas corpus cases must be brought in the jurisdiction where the body is found, or might we say, is being hidden, rather than the jurisdiction in which he was (wrongfully as will be alleged in the petition) arrested. Not where he lived. Not where his legal residence was and where he rightfully should be.
Federal District Court judges have no long arm jurisdiction in such cases. And this of course opened the barn door wide to allow ICE officials and agents to engage in the very sorts of forum shopping shell games, wrongful detentions and concealment that have given to these great case load and procedural problems facing district court judges at over the country and the territories. It is not even clear at least to me at this time, that a judge can retain jurisdiction over a case already underway in which the body is transported out of it afterwards. If so, then what constitutes the point at which jurisdiction attaches ? When the petition is stamped in by the clerk ? When process is served ? When it is returned ? When the first hearing is scheduled ? When ?
And what bloody difference does it make if the person is truly disposed of, as in gone.....from the United States ? This was basically the "Sorry Charlie" argument offered right up to the Supreme Court, by the DOJ, after the 300 or so Venezuelans were flown off El Salvadore to be held indefinitely in a terrible prison, at Emile Bove's direction, after the writ had issued. "Fuck the judge" he is reported to have said. Now he is one. And the ever companionable John Sauer got up in front of the Supreme's and said "I know it was wrong your honor. But what do you all expect us to do about it now ? They are out of our hands and beyond our jurisdiction". Plus, "Judge Boasberg never had jurisdiction in the first place, since by the time his clerk called the case the bodies were in Texas".
Thus do the lawless, dishonest, and violent bear it away by making fools of judges. But in so far as the narrow problem brought to our attention by the author is concerned, of course, it should be noted that there are many ways in which the disabilities associated with having entered the country illegally can be CURED. To wit by:
1. Pardon.
2. Amnesty.
3. Grant of asylum.
4. Retroactive issuance of a visa.
5. Issuance of a Green Card
6. Award of Citizenship.
7. Or plain old arbitrary and capricious exercise of discretion by some nameless bureaucrat or the turning of a blind eye, rather like in the case of Elon Musk, I should think.
And this of course would make spicilege of the "Governments" position in this 5th Citcuit case that ICE has blanket authority to arrest and deny due process to all who can be found to have entered the country allegedly illegally at some point in the past.
Seems pretty clear there should be habeas jurisdiction in the district of arrest—if for no reason other than obviating fights about exactly when the plaintiff left the district, á là JGG.
This should go on Dems wish list for funding.
I like your idea. When SCOTUS came out with the ruling in J.G.G. that habeas must be filed where detained, it seemed as if they were deliberately trying to make it a cat and mouse game.
If you issue a Green Card, it means the immigrant can after five years of presence (three in case of marriage to a US Citizen) request US Citizenship, if so desired. Some prefer to stay on LPR status, especially if their home country does not allow dual citizenship.
Here is a hypo for the law profs:
Some future (socialist?) government comes to power asserting that tax evasion is an existential threat to the US the way Trumpists claim illegal immigration is. They massively find the IRS and access all sorts of data to track down tax evasion at all levels (especially small business, and self-employed). They claim tax evasion is closely tied with organized crime and violent drug gangs, and foreign dictatorships using the US as a tax haven/laundromat, operations to corrupt US politicians, and manipulate markets. IRS sees a massive increase in funding and employees, IRS-CI are also massively increased in number and fitted out just like ICE. They start surging in massive numbers in states like Texas and Florida using the same tactics as ICE. There is no distinction drawn in practice between massive tax evasion operations and petty tax reporting infringements by individuals. Those arrested are kept for long periods awaiting trial in special purpose built detention camps to deal with the large numbers.
Question: Would the fifth circuit be happy with its precedents? (keep in mind most tax cases are civil not criminal - just like immigration).
Illegal immigrants can file and pay taxes using an ITIN (Individual Taxpayer ID#). It was created especially for people without a social security number (some of which are legal immigrants). The IRS stated the ITIN was for tax purposes only. But recentlly DHS/ICE seems to have gotten access to the system.
Judge Jones has deployed dishonest and strategic statutory interpretation in a results-oriented way. She has intentionally created a 5th Circuit safe space for a DHS policy that is very hard to square with the statutory text after application of the most standard and commonly used rules of statutory interpretation. I doubt SCOTUS will use its shadow docket to overturn this. This disingenuous opinion will fester for at least one year, and likely longer. DHS will spirit detained non-citizens into the 5th Circuit before detainees' families can find a lawyer to file a habeas petition.
Great piece. On your footnote 4, does that mean that if ICE were to nab Liam Conejo Ramos and his father again and rush them down Texas before a habeas petition could be filed such that they would have to file their habeas petition in Texas, the federal district court in Texas would be bound to follow this ruling just issued by this Fifth Circuit panel.
Yup. :-(
There needs to be an app for filing a habeas petition immediately upon arrest.
Thanks to the Federalist Society, and to the dixie irredentists and Trump bootlickers in the Senate, the American judicial system is now perfectly equipped to dispense equal injustice under law to all except those who are fat, white, male, obscenely wealthy, and/or speak with a southern accent.
When I briefly practiced immigration law back in 2011 I tried and failed to get my client released on bail. When I tried to find out what happened, I learned that an illegal alien out on bail had killed a nun in Illinois. It took about three months for the furor to die down. Then the immigration courts started granting bail again. My client eventually got deported despite my best efforts. This was prior to 2014 when the grounds for applying for asylum were expanded to include fear of gang violence or domestic violence. Unfortunately my client admitted that he had come to the U.S. just to seek a better life.