A federal appeals court in Chicago handed down a divided ruling Tuesday on the Trump administration’s mass detention policy, deepening a split among the nation’s courts over whether the government can jail undocumented people without bond hearings.
The case sits at the center of a policy the administration adopted last summer and then used for months to keep thousands of people locked up, including some who had lived in the United States for years without incident, had no criminal histories and held work permits. By next week, judges in 11 of the 12 federal appeals circuits will either have ruled on the question or be hearing arguments about it, leaving only Washington, D.C., outside the fight because there is no immigration detention center there.
The ruling adds urgency to a dispute that has already divided the courts. Two appeals courts have sided with the Trump administration. One appeals court sided with immigration detainees last week. The Seventh Circuit panel in Chicago, which was part of a larger case, split three ways on the question Tuesday, underscoring how far apart judges remain on the government’s power to keep people detained while their immigration cases move forward.
The policy rests on the administration’s re-interpretation of a 30-year-old immigration law, the Illegal Immigration Reform and Immigration Responsibility Act, known as IIRAIRA. Under that reading, immigration authorities can treat some people who have lived in the country for decades without incident as if they had just crossed the border, making them eligible for detention by U.S. Immigration and Customs Enforcement.
Thousands of jailed undocumented people have challenged the policy through habeas corpus petitions, and the vast majority of several hundred district courts have ruled against the administration. A Politico tally found dozens of Trump appointees among the district judges who rejected it. That broad pushback, paired with the growing divide among appeals courts, is what makes the issue look headed toward the Supreme Court.
Michael Tan, who is involved in the litigation, said Wednesday that he thought it was likely the Supreme Court would ultimately resolve the issue. He added that his side was still considering whether to ask the high court to take it up, especially now that there is a circuit split.
The administration says it remains confident. A DHS spokesperson said the government is confident in its position, which a majority of courts of appeals have endorsed, and added that ICE has the law and the facts on its side and will be vindicated by higher courts. The clash now is not over whether the policy is important. It is over whether the courts will let the government keep using it while the justices decide who gets to go home and who stays in jail.