The Supreme Court of the United States will hear oral arguments today in the case of Nielsen v. Preap (16-1363), a case in which the Court will decide the issue of “[w]hether 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 dispute arises from the language of the statute that identifies cases in which immigrants are subject to mandatory detention by the Department of Homeland Security while their removal proceedings are pending, 8 U.S.C. 1226(c). That statute states that some immigrants, including those with certain criminal convictions, “shall” be detained “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.”
The appeal arises from two class action lawsuits – one from the United States District Court for the Northern District of California, and another from the United States District Court for the Western District of Washington. Both cases involve classes of plaintiffs with criminal convictions that arguably render them subject to mandatory detention but who were not arrested by immigration officials immediately upon their release from criminal custody.
Kirstjen M. Nielsen, Secretary of Homeland Security, on behalf of the government, has taken the position that “[c]riminal aliens do not become exempt from mandatory detention if the Department of Homeland Security does not take them into immigration custody immediately upon their release from criminal custody.” The government’s position is based largely on a prior interpretation of the statute by the Board of Immigration Appeals and various practical and policy considerations.
The respondents have taken the position that the text and structure of the statute dictate that immigrants with criminal convictions do not fall under the purview of 8 U.S.C. 1226(c) unless the Department of Homeland Security takes them into immigration custody immediately upon their release from criminal custody. The respondents’ position is that this interpretation of the statute is consistent with congressional purpose.