Nielsen v. Preap, ___ U.S. ___, No. 16-1363 (19 March 2019)

If the government arrests an alien, because the government believes that the alien is in the United States illegally and therefore deportable, then generally the alien may apply for release on bond or parole while the question of his removal is being decided.  8 U.S.C. §1226(a). An alien may secure his release if he can convince an immigration official or immigration judge that he poses no risk of flight or danger to the community.

However, an alien’s right to a bond hearing is subject 8 U.S.C. §1226(c), which was enacted in 1996 and which applies to aliens who have committed specified crimes and then are later released from the criminal justice system. Section 1226(c)(1) provides that the Secretary of Homeland Security:

shall take into custody any alien who –

(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,

(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,

(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence [1] to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,

when the alien is released” by the criminal justice system. (Italics supplied.)

Section 1226(c)(2) provides that “an alien described in paragraph (1)” (italics supplied) may be released pending removal proceedings only under extraordinarily limited circumstances involving witness protection, not at issue in the instant case. The practical effect is that virtually all aliens who are taken into custody after release from the criminal justice system, and who are covered by one or more of the four categories described in §1226(c)(1), are denied a bond hearing because of the mandatory limitations of §1226(c)(2).

The respondents are aliens who were detained under §1226(c)(2)’s mandatory-detention requirement and denied a bond hearing pending decision on their removal. Though all respondents had been convicted of crimes covered in §1226(c)(1), none were taken into custody immediately after their release from criminal custody. Indeed, some were not taken into custody until several years later.

The respondents filed a class action in District Court, contending that they could not be denied a bond hearing under §1226(c)(2) even though they had committed crimes specified in §1226(c)(1)(A)-(D). They argued that §1226(c)(1) requires that an alien be taken into custody by the Secretary “when” released from criminal custody, and that means an alien must be taken into custody immediately upon release from the criminal justice system. If the Secretary fails to take them into custody immediately upon release, then the Secretary has no right under the statute to deny them a bond hearing. According to their complaint, only aliens who are arrested immediately upon release can be denied a bond hearing.

The District Court certified a class of all aliens who were not, or will not be, taken into custody immediately upon release from criminal custody for an offense described in §1226(c)(1); and the District Court granted a preliminary injunction against the mandatory detention of the members of the class, holding that criminal aliens are exempt from mandatory detention under §1226(c)(2), unless they are taken into custody at the time of release and no later. The Ninth Circuit affirmed. The Supreme Court reversed, in a five-to-four decision.

Justice Alito, writing the majority opinion, analyzed the grammar of §1226(c)(1) and concluded that the phrase “when the alien is released” is not part of the description of those aliens whom the Secretary must take into custody for removal proceedings after the alien is released from the criminal justice system.  The four subparagraphs (A)-(D) of Section 1226(c)(1) state the criteria defining the four categories of aliens who must be taken into custody.  The words “when the alien is released” are not part of those four subparagraphs and not part of the criteria defining the four categories of aliens who must be taken into custody.  Those words are not part of the description of the four categories, and they are not an additional element applying to all four categories. The scope of “any alien who” shall be taken into custody pursuant to §1226(c)(1) is fixed only by the predicate offenses identified in subparagraphs (A)-(D) of §1226(c)(1). Because those four defining subparagraphs do not include the words “when the alien is released,” anyone who fits the description in those four subparagraphs falls under paragraph (2)’s detention mandate – even if the Secretary did not take them into custody immediately when they were released from the criminal justice system. The practical effect of the Court’s opinion is that the statute’s words “when the alien is released” mean whenever the alien is released or no matter when the alien is released.

Justice Breyer dissented in a long opinion joined by Justices Ginsburg, Sotomayor and Kagan. Justice Breyer wrote, inter alia, that a well-established canon of statutory interpretation provides that, “if fairly possible,” a statute must be construed “so as to avoid not only the conclusion that it is unconstitutional but also grave doubts on that score.” United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916). Indefinite detention without a bond hearing likely deprives a person of his or her liberty without due process of law.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at [email protected].