Supreme Court Ruling Allows for Detention of Criminal Immigrants Long After Completion of Sentences

The Supreme Court of the United States recently issued a ruling that is thought to broaden the power of immigration officials to detain criminal immigrants. In the 5-4 decision, Nielsen, et al. v. Preap, et al., the Court ruled that immigration officials are not required to detain an immigrant with a criminal conviction immediately upon their release from criminal custody.

The legal issue surrounds the language of 8 U.S.C. § 1226(c), which directs immigration officials to arrest certain criminal immigrants “when the alien is released” from jail, and which prohibits immigration officials from releasing any such immigrant until a final decision is made about whether the immigrant can be removed from the United States. The statute at issue applies to only certain criminal immigrants, including those convicted of certain drug-related, violent, and fraud/theft-related crimes, among others.

Although the Trump administration, and the Obama administration before it, have long-believed it to be within immigration officials’ power to arrest criminal immigrants even years after the conclusion of their criminal sentences, some courts had disagreed. Opponents of the ruling believe the decision will give immigration officials too much power to detain immigrants, who may be without the right to bail and subject to immigration detention for lengthy periods of time, even years in some cases. This is particularly troubling, opponents believe, because in some cases those immigrants will ultimately be successful in their cases and ultimately not subject to removal from the United States.