“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Sixth Circuit judge Amul Thapar cast the deciding vote to allow the federal government’s continued detention of an immigrant who had fled to the United States, even though he had already been in custody for more than two years. A judge nominated by President George W. Bush dissented. The July 2020 decision is Martinez v LaRose.

Walter Melara Martinez had been deported to El Salvador and was preparing to marry his common-law wife, who (along with their two children) had become legal permanent US residents, so he could “begin the legal immigration process.” While in El Salvador, however, he was subjected to severe harassment and threats by government officials and the MS-13 gang, which wanted him to join them. At one point after he refused to work with the gang, police officers came to his home and “beat him with the butts of their rifles.” After continued threats to kill him. Martinez fled to the US.

Martinez was immediately apprehended by DHS when he reentered the US in December 2017. Since then, he has continually sought to prevent his deportation, as to which legal proceedings are continuing. After remaining in jail for 18 months, he filed a petition maintaining that his continued detention without an individualized hearing on whether he can be released on bond violates his due process rights under the Constitution. A lower court ruled for DHS, and Martinez appealed.

All three judges agreed that while Martinez does not have a statutory right to a bond hearing, under a recent Supreme Court decision, he cannot continue to be held without a bond hearing if there is “no significant likelihood of removal in the reasonably foreseeable future.” In a 2-1 decision in which Trump Judge Thapar provided the deciding vote, however, the court of appeals rejected Martinez’s due process argument and authorized his continued detention. The majority claimed that even though Martinez’s appeal on the merits of his claim was on hold and could easily take six months or more to process, his deportation was “reasonably foreseeable” assuming he loses his case and, if he prevails and even longer proceedings take place, he can then file another petition for an individualized bond hearing.

George W. Bush nominee Judge Julia Smith Gibbons firmly dissented, criticizing the majority’s decision because it “undervalues due process protections” and because Martinez’s continued detention “violates the Due Process Clause” in that his removal is not “reasonably foreseeable.” She pointed out that Martinez had already been detained “for over twenty-eight months” and that his imprisonment would continue for “an uncertain and indeterminate period” as administrative agencies consider the merits of Martinez’s claims that he will be subject to persecution if he is deported to El Salvador, and the case then possibly returns to the Sixth Circuit.

Gibbons strongly disagreed with the suggestion that Martinez can simply file another petition later contesting his continued detention without a bond hearing. The “current extended period of detention” and the likelihood that Martinez will “not be removed in the foreseeable future,” she explained, violates his “due process rights today.” Gibbons noted that the Supreme Court has recognized that “what counts as the ‘reasonably foreseeable’ future’ should shrink ‘as the period of…confinement grows,” but that in this case, the length of future detention “has increased during the pendency of this appeal.” While there may be some “difficult cases” in determining whether a noncitizen’s removal is “reasonably foreseeable” she went on , “a case where a noncitizen detained for over two years faces indeterminate and ever-increasing lengths of detention is not among them.”

Gibbons concluded that the Due Process Clause “does not countenance” Martinez’s continued detention without an individualized bond hearing. As a result of Thapar’s deciding vote, however, that is exactly what will occur.

One sentence: Trump Sixth Circuit judge Amul Thapar casts deciding vote to permit continued detention of immigrant who has been in custody for more than two years.