9th Circuit reversed. Criminal alien does not become exempt from mandatory detention after release from criminal custody just because DHS does not take him into immigration custody immediately.

The Trump administration scored a big win in the Supreme Court today in the case of Nielsen v. Preap. Equally important, the court’s focus on statutory language and interpretation bodes well for the Trump administration at such point as the litigation over Trump’s Declaration of National Emergency makes its way to the Supreme Court.

The Opinion is complicated, with multiple concurring opinions. But at a macro level, it split on the conservative-liberal line, with Chief Justice Roberts siding with the conservatives.

The issue before the Supreme Court was:

Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.

The importance of the case was previewed last October in The Atlantic, which noted the key importance of the statutory language:

The stakes are higher in a Supreme Court case to be heard next Wednesday. Nielsen v. Preap may determine whether thousands of longtime residents of the U.S. face indefinite detention without a hearing. And as in Frigaliment, the heart of the dispute is an everyday word: when. Does it mean “any time the government decides after a stated event, whether days, weeks, or years later” or “immediately upon the happening of the event”? Nielsen is a class action brought by a group of immigrants in the Ninth Circuit who have been or are being detained under 8 U.S.C. § 1226, a provision of the Immigration and Nationality Act. That section authorizes federal authorities to detain any alien who may be subject to “removal,” the technical term for deportation. The term covers a lot of immigrants—border crossers arrested after entering the U.S. illegally, tourists or students who have overstayed their visas, and lawful permanent residents who have committed certain crimes…. This is the issue in Nielsen v. Preap: It is not whether authorities can detain these aliens; they can. But does the statute really deny bond hearings to all of them—longtime residents of the U.S. who were convicted of minor offenses five, 10, 15, or more years ago? What if a person has long ago been released and has returned to a community, established a family and put down roots, and lived a blameless life since that brush with the law? In other words, what if the immigrant would otherwise be a prime candidate for bond? These aliens can be detained and deported. There is no question that iceagents can show up at their homes, arrest them, and hold them for removal proceedings. But does the when language mean they don’t get a bond hearing? If a noncitizen has left prison and established a new life, did Congress, in writing the statute, really mean to deny that person the chance to show an immigration court that he or she will show up for a removal hearing, the way other “noncriminal” aliens can?

The bottom line is that the government has the power to indefinitely hold criminal aliens who are released from custody, so that they can be deported, even if the alien was released from custody long ago, without providing a bond hearing. The 9th Circuit had ruled that the lapse of time between prison release and detention could require the government to provide a bond hearing. In a 5-4 vote, the Supreme Court reversed, relying on the statutory language.

Justice Alito wrote for the majority:

Aliens who are arrested because they are believed to be deportable may generally apply for release on bond or parole while the question of their removal is being decided. These aliens may secure their release by proving to the satisfaction of a Department of Homeland Security officer or an immigration judge that they would not endanger others and would not flee if released from custody. Congress has decided, however, that this procedure is too risky in some instances. Congress therefore adopted a special rule for aliens who have committed certain dangerous crimes and those who have connections to terrorism. Under a statutory provision enacted in 1996, 110 Stat. 3009–585, 8 U. S. C. §1226(c), these aliens must be arrested “when [they are] released” from custody on criminal charges and (with one narrow exception not involved in these cases) must be detained without a bond hearing until the question of their removal is resolved. In these cases, the United States Court of Appeals for the Ninth Circuit held that this mandatory-detention requirement applies only if a covered alien is arrested by immigration officials as soon as he is released from jail. If the alien evades arrest for some short period of time—according to respondents, even 24 hours is too long—the mandatory-detention requirement is inapplicable, and the alien must have an opportunity to apply for release on bond or parole. Four other Circuits have rejected this interpretation of the statute, and we agree that the Ninth Circuit’s interpretation is wrong. We therefore reverse the judgments below and remand for further proceedings.

Expect more litigation due to this paragraph near the end of the majority opinion;

We emphasize that respondents’ arguments here have all been statutory. Even their constitutional concerns are offered as just another pillar in an argument for their preferred reading of the language of §1226(c)—an idle pillar here because the statute is clear. While respondents might have raised a head-on constitutional challenge to §1226(c), they did not. Our decision today on the meaning of that statutory provision does not foreclose as-applied challenges—that is, constitutional challenges to applications of the statute as we have now read it.

Justice Kavanaugh wrote a concurring opinion again emphasizing the statutory basis for the ruling:

I write separately to emphasize the narrowness of the issue before us and, in particular, to emphasize what this case is not about…. The sole question before us is narrow: whether, under §1226, the Executive Branch’s mandatory duty to detain a particular noncitizen when the noncitizen is released from criminal custody remains mandatory if the Executive Branch fails to immediately detain the noncitizen when the noncitizen is released from criminal custody—for example, if the Executive Branch fails to immediately detain the noncitizen because of resource constraints or because the Executive Branch cannot immediately locate and apprehend the individual in question. No constitutional issue is presented.

Justice Thomas, with whom Justice Gorsuch joined, wrote that the courts have no business intervening at all:

I continue to believe that no court has jurisdiction to decide questions concerning the detention of aliens before final orders of removal have been entered. See Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 1–11). By my count, Congress has erected at least three barriers to our review of the merits, and I also question whether Article III jurisdiction existed at the time of class certification. Nonetheless, because the Court has held that we have jurisdiction in cases like these, and because I largely agree with the Court’s resolution of the merits, I join all but Parts II and III–B–2 of the Court’s opinion…. Because three statutes deprive courts of jurisdiction over respondents’ claims, I would have vacated the judgments below and remanded with instructions to dismiss the cases for lack of jurisdiction. But because the Court has held otherwise and I agree with the Court’s disposition of the merits, I concur in all but Parts II and III–B–2 of its opinion.

Justice Breyer wrote the dissent:

… The majority concludes that paragraph (2) forbids bail hearings for aliens regardless of whether they are taken into custody “when . . . released” from prison. Under the majority’s view, the statute forbids bail hearings even for aliens whom the Secretary has detained years or decades after their release from prison. The language of the statute will not bear the broad interpretation the majority now adopts. Rather, the ordinary meaning of the statute’s language, the statute’s structure, and relevant canons of interpretation all argue convincingly to the contrary. I respectfully dissent.

The is furious:

Oof. This is terrible news. SCOTUS rules 5–4 that ICE may arrest and detain an unauthorized immigrant *indefinitely* once he has been taken into criminal custody. Doesn't matter if he was released from custody months or even years ago. https://t.co/Ldw7cr9phY — Mark Joseph Stern (@mjs_DC) March 19, 2019

We've lost a valiant battle in Nielsen v. Preap today. Two terms in a row now, #SCOTUS has ruled in favor of the most extreme interpretation of the mandatory immigration detention statute – which results in detention without any individualized hearing on flight risk or danger. pic.twitter.com/erSHioBvhn — Cecillia Wang (@WangCecillia) March 19, 2019

The ruling, focused as it was on the statutory text, is another sign that Trump is likely to do well in the Supreme Court on the National Emergency Order litigation. In that case, Congress gave Trump the authority he has exercised. Congress will be made to live by what it wrote.



