9th Circuit Court of Appeals Upholds Bail for Illegal Immigrants

July 23, 2019 Updated: July 24, 2019

The 9th Circuit Court of Appeals barred the Trump administration from indefinitely detaining some asylum claimants while handing the administration a partial victory in the same ruling by striking down as unreasonable the fast-track processing requirements imposed by a lower court.

In an opinion released July 22, a three-judge panel of the circuit court struck down part of a July 2 ruling by Seattle-based U.S. District Judge Marsha Pechman, a Clinton appointee, who critics say effectively rewrote a 1996 law requiring the detention of asylum claimants, in a still-ongoing case known as Padilla v. ICE.

Pechman had ruled that the U.S. Constitution required the government to hold hearings for claimants within seven days or be forced to release them from detention, generate a verbatim transcript of hearings, and issue written decisions the same day a bond hearing was conducted. The judge also shifted the burden of proof in such cases from the claimants to the parent agency of the U.S. Immigration and Customs Enforcement, the U.S. Department of Homeland Security.

The appeals court found these procedural hurdles erected by Pechman to be unjustifiable.

“Although the government has not been able to quantify the number of individuals who have received credible fear determinations and are subject to detention, it nevertheless makes a persuasive showing that the requirements … are particularly burdensome,” the opinion states.

Asylum applicants have to demonstrate that they have a “credible fear of persecution” in their home country. ICE defines the phrase as meaning there is a “‘significant possibility’ that you can establish in a hearing before an Immigration Judge that you have been persecuted or have a well-founded fear of persecution on account of your race, religion, nationality, membership in a particular social group, or political opinion if returned to your country.”

Permitting these onerous “procedural requirements to take effect pending the outcome of this appeal—which would require the government to implement a set of rules that may be only temporary—would impose short-term hardship for the government and its immigration system” and not be in the public interest, the appeals court ruling stated.

At the same time, the appeals court judges, all of whom were appointed by Democratic presidents, rejected administration arguments that it could deny bail hearings for asylum claimants altogether.

“The government failed to show a likelihood of success on the merits of its underlying argument that the government may indefinitely detain the plaintiffs without affording bond hearings at all,” stated the order entered by Carter appointees Judges Mary Schroeder and William Canby, as well as Judge Morgan Christen, an Obama appointee.

The government failed to make a “persuasive showing that it will suffer irreparable harm if it is required to provide bond hearings pending the outcome of this appeal in the same way it had done for several years.”

Steven Groves, deputy press secretary at the White House, said the administration will challenge the portion of the ruling concerning bail hearings for would-be asylees, and it expects to win in the end.

The circuit court “allowed a radical decision from a district judge to go into effect during the pendency of the government’s appeal, which had held unconstitutional a section of the Immigration and Nationality Act,” Groves said in a statement.

“Based on the unprecedented theory that illegal aliens who recently entered the country have a constitutional right to be released on bond into the United States, the district court struck down a statute passed by bipartisan majorities in Congress during the Clinton administration specifically requiring certain aliens to be detained pending their asylum proceedings.”

Dan Stein, president of the Federation for American Immigration Reform (FAIR), wasn’t pleased by the ruling.

“This is just a continuation of a nonstop effort by a politicized Judiciary to rewrite the laws enacted by Congress and signed by earlier presidents in conformity with long-held constitutional precedent,” he told The Epoch Times in an emailed statement.

Curt Levey, president of the Committee for Justice, a Washington-based nonprofit concerned with legal issues, said the original ruling by Pechman was “outrageous.”

That all three Democrat-appointed appeals court judges overruled Pechman’s decision was “a pretty stinging rebuke to the district court judge,” he told The Epoch Times in an interview.

Shifting the burden of proof to DHS basically meant that “with limited information, the government has to prove that the claimants are not in danger back home,” he said, adding, “it seems almost impossible to comply” with the requirement.

Giving the immigration authorities only seven days to hold a hearing “is not a lot of time in an overworked system.”

“The 9th Circuit has been very solicitous to district courts when enjoining President Trump’s immigration policy,” but the “circuit doesn’t want to stand behind something that would embarrass it,” Levey said.

“It is happy to be part of the Trump ‘resistance’ as long as it can find some kind of legal justification for it, but if you’re asking it to do something that will make it look foolish, it’s not willing to do that.”

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