Only the political branches — the President and Congress — have the authority to decide when aliens may enter the U.S., the Circuit Court concluded by a 2-1 vote. A third judge on the panel found that the judge’s release order was premature, but did not join in the ruling against release at this time.
The majority concluded that “it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the government to exclude a given alien. With respect to these seventeen petitioners, the Executive Branch has determined not to allow them to enter the United States.”
The Circuit Court said it was not deciding at this point whether the President “may ignore the immigration laws and release [the Uighurs] into the United States without the consent of Congress.”
Circuit Judge Judith W. Rogers, while voting to overturn the judge’s release order, denounced the majority’s reasoning. She said the majority’s analysis “is not faithful” to the Supreme Court’s ruling last June in Boumediene v. Bush on detainees’ rights, and “would compromise both the Great Writ as a check on arbitrary detention and the balance of powers over exclusion and admission and release of aliens into the United States recognized by the Supreme Court to reside in the Congress, the Executive and the habeas court.” She also said the ruling’s analysis was unnecessary because the court could not yet know whether detention was justified under immigration law.
The Circuit Court decision appeared to be confined closely to the single issue of whether a federal judge may order release into the U.S. of non-citizens being held outside U.S. territory. The majority noted that the only claim by detainees that was before it was not “simple release” from Guantanamo, but whether a court could order the Executive Branch “to release them into the United States outside the framework of the immigration laws….The question here is not whether petitioners should be released, but where.”
The extent of the victory for the Bush administration's detention policies depends on which side you're one I suppose. From one angle, the appellate decision checks the authority of the judiciary to order the release of detainees. The majority tries to confine the issue merely to whether the judiciary has the authority to order the release of detainees into the United States against the wishes of the executive and outside the scope of immigration law, but the dissenting judge seems to think that the ruling is in the vein of prior rulings that have upheld executive authority to hold detainees without reason indefinitely. Either way they demurred on the question of whether the Uighurs could be released into the United States under present immigration laws were they to apply for admission.