In the Nielsen v. Preap decision, released on Wednesday, March 20, Justices Thomas, Gorsuch, Kavanaugh, and Roberts joined Justice Alito in finding that a mandatory detention statute regarding potentially removable immigrants applied to a wider class of persons than previously found in Demore v. Kim (2003). The Constitutional issue surrounds 8 U.S.C. § 1226(c)(1), known as the “mandatory detention provision” of the Immigration and Nationality Act, states that “The Attorney General shall take into custody any alien who—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.” Immigrants who commit certain crimes, specified in the statute, are not entitled to a bond hearing and once detained can be held in federal custody until their removal proceedings are resolved.
In two Ninth Circuit decisions, Preap v. Johnson and Khoury v. Asher, it was ruled that criminals released but not immediately detained were entitled to a bond hearing. The ruling in Nielsen reverses these holdings, insofar as Justice Alito concluded that so long as the immigrants meet the criteria set forth in 8 U.S.C. § 1226, the period of time between release and detention is irrelevant. (DHS did not take Preap “into custody” until about seven years after Preap was released from criminal custody.) Justice Alito, writing for the majority, stated that it was “better late...than never” with regard to detention, supporting this conclusion with a grammatical analysis. Specifically, because “an adverb cannot modify a noun, the “when released” clause cannot modify ‘alien’”. In other words, nothing in the plain meaning of the text supports the Circuit Court’s decisions to differently apply the statute to those aliens who were not detained immediately on release from prison.
Featuring:
Greg Brower, Shareholder, Brownstein, Hyatt, Farber, Shreck

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