Amicus Brief

LDAD Files Amicus Brief in Federal Immigration Law Case (Victor Buenrostro-Mendez v. Pamela Bondi, et al.)

June 28, 2021

Apr 26, 2026

Editorial credit: Shuterstock

Lawyers Defending American Democracy has filed an amicus brief in the 5th Circuit Court of Appeals in a case challenging a reversal by the Department of Justice and the Department of Homeland Security Attached in how federal immigration law is interpreted.

For three decades, Congress, the federal courts, and the executive branch agreed that noncitizens already in the United States who had entered unlawfully and were later detained for deportation proceedings were entitled to seek release on bail during the pendency of those proceedings. The Trump administration has now abruptly determined that immigration law should be interpreted to permit detention without bail for these persons,  regardless of how long they have been here. Under its new interpretation, potentially millions of people could be held in detention for as long as proceedings take, which may be several months or longer – even if they are breadwinners, parents of minors, long-time employees, or have other strong ties that could make prolonged detention catastrophic. LDAD filed this brief in support of plaintiffs’ petition for rehearing the case before the full Fifth Circuit, after a three-judge panel upheld the government’s new interpretation.

At the request of the ACLU, LDAD argued that interpretation of a statutory provision with such dramatic and far-reaching consequence requires a clear indication that Congress intended to authorize the executive branch  to take an action of this magnitude.

LDAD argues that the court should apply this “major questions doctrine” as the Supreme Court did in decisions invalidating President Trump’ tariffs under the International Emergency Economic Powers Act and  President Biden’s student loan forgiveness plan. Moreover, the brief notes the panel’s decision conflicts with prior Fifth Circuit precedent in which the full court rejected agency action under the major questions doctrine in less consequential circumstances.

As LDAD’s brief emphasizes, “[t]he breadth and transformative nature of the asserted detention authority here is astonishing. Respondents’ interpretation entirely upends the existing statutory detention scheme and infrastructure by requiring mandatory detention, without possibility of bond, for millions of people.” The brief therefore concludes that “an interpretation of the immigration statute at issue here, informed by the major questions doctrine, calls for invalidation of the agencies’ radical action.”

Drafters included LDAD volunteer attorney Nancy Gordon (who served as the principal drafter) and law professors Peter Shane of NYU Law and Denise Gilman of the University of Texas School of Law, and volunteer attorney Jacob Rolls. The team was also assisted by Georgetown Law Center students Mikaylah Ladue and Molly Izer. The work was overseen by LDAD’s Amicus Working Group co-chairs and board members, Gary Ratner and Georgetown Law Center Professor Mitt Regan.

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