Nielsen v. Preap
203 L. Ed. 2d 333, 2019 U.S. LEXIS 2088, 139 S. Ct. 954 (2019)
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Rule of Law:
The mandatory detention requirement of 8 U.S.C. § 1226(c) applies to aliens convicted of specified offenses regardless of whether immigration authorities arrest them immediately upon their release from criminal custody. The government's authority to detain such aliens without a bond hearing does not expire due to a delay in their arrest.
Facts:
- Mony Preap, a lawful permanent resident, was convicted of a controlled substance offense and released from state custody in 2006.
- Bassam Khoury, a lawful permanent resident, was convicted of manufacturing a controlled substance and was released from state custody in 2011.
- Eduardo Vega Padilla, a lawful permanent resident, was convicted of possessing a controlled substance and was released from state custody in 2002.
- The United States government did not take these individuals into immigration custody on the day they were released from state criminal custody.
- Years after their respective releases, Immigration and Customs Enforcement (ICE) officials arrested Preap, Khoury, and Vega Padilla.
- Upon their arrests, the government detained them and determined they were subject to mandatory detention without a bond hearing under 8 U.S.C. § 1226(c) due to their prior criminal convictions.
Procedural Posture:
- Mony Preap and others filed a class action lawsuit in the U.S. District Court for the Northern District of California against immigration officials.
- Bassam Khoury and others filed a separate class action lawsuit in the U.S. District Court for the Western District of Washington.
- Both lawsuits alleged that the government's failure to arrest them immediately upon release from criminal custody meant they were not subject to mandatory detention under § 1226(c) and were entitled to bond hearings.
- The district courts in both cases ruled in favor of the aliens, certifying classes and ordering the government to provide bond hearings.
- The U.S. government, the appellant, appealed the decisions to the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit affirmed the district courts' rulings, holding that § 1226(c)'s mandatory detention applies only when an alien is taken into custody immediately upon release.
- The U.S. Supreme Court granted certiorari to resolve a split among the circuit courts.
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Issue:
Does the mandatory detention requirement of 8 U.S.C. § 1226(c) apply only to criminal aliens who are taken into immigration custody immediately upon their release from criminal custody?
Opinions:
Majority - Justice Alito
No. The mandatory detention requirement of 8 U.S.C. § 1226(c) is not limited to aliens arrested immediately upon release from criminal custody. The court's reasoning is primarily textual. The phrase 'an alien described in paragraph (1)' of § 1226(c), who is subject to mandatory detention, refers to aliens who have committed one of the predicate offenses listed in subparagraphs (A)-(D). The clause 'when the alien is released' is an adverbial phrase that modifies the verb 'shall take'; it dictates when the Secretary's duty to arrest arises, but it does not describe or define the category of aliens subject to the provision. The court rejected the argument that a failure to act immediately strips the government of its authority, citing precedent that a statutory directive for an official to act 'shall' not preclude later action unless Congress specifies a consequence for the delay. The canon of constitutional avoidance is inapplicable because the statutory text is unambiguous.
Concurring - Justice Kavanaugh
Yes, I agree with the majority. The statutory question is narrow and does not concern whether an alien may be removed or detained in general, but only whether the mandatory detention duty remains if not executed immediately. It would be an odd result if Congress mandated detention for aliens considered a risk of danger or flight, only to allow them to remain free if the Executive Branch failed to detain them immediately. The Court's straightforward textual analysis correctly concludes that the detention remains mandatory even if delayed.
Concurring - Justice Thomas
Yes, I agree with the majority's conclusion on the merits, but I write separately to reiterate my belief that federal courts lack jurisdiction to decide these cases. Statutory provisions such as 8 U.S.C. §§ 1252(b)(9), 1226(e), and 1252(f)(1) erect barriers to judicial review of detention decisions made before a final order of removal. Because the Court has previously held that jurisdiction exists in similar cases, I concur in the judgment and join most of the majority's opinion.
Dissenting - Justice Breyer
Yes. The mandatory detention requirement of § 1226(c) should apply only to aliens taken into custody 'when... released' from criminal custody. The phrase 'an alien described in paragraph (1)' refers to the entire paragraph, including the timing element, not just the list of offenses. The statute's structure, including a parallel between subsections (a) and (c) and the existence of a special transition rule for implementing the law, supports this reading. Furthermore, the majority's interpretation raises serious constitutional doubts under the Due Process Clause by authorizing indefinite detention without a bail hearing for individuals arrested years after release, who may have reformed and established deep community ties. The canon of constitutional avoidance compels a narrower reading of the statute.
Analysis:
This decision resolves a circuit split and significantly strengthens the federal government's authority to enforce mandatory immigration detention. By holding that the power to detain under § 1226(c) does not expire, the Court provides immigration officials with broad latitude, removing any 'use it or lose it' pressure to make arrests immediately upon an alien's release. The ruling creates a uniform, stricter national standard, rejecting the Ninth Circuit's more lenient approach. While the majority declined to apply the canon of constitutional avoidance, it explicitly left the door open for future as-applied constitutional challenges to the statute, particularly in cases involving extreme delays between criminal release and immigration detention.
