supreme courtThe October 10 Supreme Court oral argument in Nielsen v. Preap demonstrated that the justices continue to be sharply, ideologically divided over the federal government’s authority to detain criminal aliens pending completion of removal proceedings. But contrary to some early post-argument commentary, the oral argument left little doubt about the likely outcome: Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh will vote to overturn the U.S. Court of Appeals for the Ninth Circuit’s constricted interpretation of the government’s detention authority. While the Court may impose some time limits on the authority to detain criminal aliens who were released from prison many years before the initiation of removal proceedings, those five justices expressed no support for the sweeping limitations imposed by the Ninth Circuit.The 1996 Immigration Reform Statute

At issue in Nielsen is the meaning of 8 U.S.C. § 1226(c), an immigration reform statute adopted by Congress in 1996. Section 1226(c) requires the detention, pending completion of removal proceedings, of aliens who have been convicted of certain serious crimes specified in the statute. Before 1996, immigration law generally permitted any alien facing removal to seek release on bond. Immigration judges granted release as a matter of course; aliens were denied release only if the government could demonstrate that the alien was either a flight risk or a danger to public safety.

Congress amended the law in 1996 after determining that the deportation of aliens convicted of serious crimes—one of the immigration laws’ major goals—was being undermined by failing to detain such aliens during removal proceedings. All too often, criminal aliens failed to appear on the day appointed for their removal, and a significant majority committed new felonies while free on bond. Congress concluded that a system of individual bond hearings was insufficient; it was simply too difficult for immigration judges to determine which criminal aliens, if released, would flee or commit new crimes. The Supreme Court rejected a substantive-due-process challenge to § 1226(c) in 2003, ruling in Demore v. Kim that aliens do not enjoy the same liberty interests possessed by citizens facing criminal charges.

The Ninth Circuit’s Narrow Construction of § 1226(c)

While nominally adhering to Demore, the Ninth Circuit has issued a series of decisions whose effect is to severely restrict the government’s ability to subject criminal aliens to mandatory detention. In Nielsen, it decreed that § 1226(c) mandatory detention is inapplicable unless the government takes the criminal alien into custody immediately following his release from state prison. As a practical matter, in the great majority of cases officials from the Immigration and Customs Enforcement Agency (ICE) are not in a position to locate and detain criminal aliens so quickly. As a result, few criminal aliens within the Ninth Circuit are subject to mandatory detention under § 1226(c).

The Ninth Circuit based its construction of § 1226(c) on a provision stating that “any alien” deportable by virtue of having committed certain enumerated crimes “shall” be taken into custody by ICE “when the alien is released” from state prison. The Ninth Circuit interpreted the “when … released” language as limiting § 1226(c) mandatory detention to those cases in which ICE acts immediately following release. It held that alien criminals not taken into custody until later are not subject to mandatory detention and instead must be released on bond in the absence of a showing that they are flight risks or pose a danger to public safety. Left unexplained by the Ninth Circuit was why Congress would have been less concerned about the release of a criminal alien in those cases in which ICE was tardy in taking him into custody.

The Ideological Divide

Justices Ginsburg, Breyer, Sotomayor, and Kagan left little doubt that they were in substantial agreement with the Ninth Circuit’s decision. Indeed, Ginsburg and Sotomayor joined a dissenting opinion issued last February by Justice Breyer in Jennings v. Rodriguez; the dissent argued that any law denying all opportunity for pre-hearing release raises grave constitutional concerns and implicitly called for overruling the 2003 Demore decision. Given their view that § 1226(c) is likely unconstitutional, it is hardly surprising that the four justices’ questioning during oral argument indicated a willingness to accept the Ninth Circuit’s limiting construction of the statute.

But the questioning from the other five justices exhibited no similar constitutional concerns. While several suggested that they may not accept the Solicitor General’s contention that § 1226(c) authorizes mandatory detention even if the government waits several decades after an alien is released from state prison before initiating removal proceedings, none appeared receptive to the Ninth Circuit’s far more limited construction of the statute.

A “Reasonable Degree of Immediacy”

A series of questions from Chief Justice Roberts best illustrated the five justices’ apparent rejection of the Ninth Circuit’s approach.  Both the Ninth Circuit and counsel for the Appellees (hundreds of aliens from California and Washington State who initially were detained under § 1226(c)) stated that the statute grants ICE a “reasonable time” to take criminal aliens into custody following release from state prison. But their understanding of “reasonable time” was quite constricted; the Ninth Circuit implied that a delay of up to 48 hours might be permissible, while counsel for Appellees argued that the statute was inapplicable unless the ICE took custody on the very same day.

Chief Justice Roberts responded that Appellees were not really advocating for a “reasonable time” standard, but rather for “a reasonable degree of immediacy.” He stated that a “reasonable time” standard would take into account all of the factors that ICE points to in asserting that it is reasonable for immigration officials to delay many months before taking criminal aliens into custody. These factors include the unwillingness of some States to report when they are preparing to release aliens from prison, a shortage of personnel, and the time necessary to determine whether the alien’s criminal offenses are sufficiently serious to render the alien subject to mandatory detention.

While the questions from Chief Justice Roberts and Justice Gorsuch suggested a potential willingness to read a “reasonable time” standard into § 1226(c), they were unreceptive to the “reasonable degree of immediacy” standard proposed by counsel for Appellees. Roberts indicated that he did not accept counsel’s contention that § 1226(c)’s “when the alien is released” language means that Congress was prohibiting mandatory detention unless ICE takes the alien into custody “immediately” following his release from state prison.

The Ninth Circuit’s Class-Wide Relief

The Ninth Circuit granted relief to two classes consisting of all criminal aliens held in mandatory detention in California or Washington under § 1226(c) and who were not taken into ICE custody immediately following their release from state custody. While a handful of class members had been living freely for many years before being taken into ICE custody, a significant majority were taken into custody within months of their release from state prison. For example, ICE detained the named plaintiff, Alvin Moya, soon after his release from prison.

As Washington Legal Foundation noted in its brief filed in support of ICE, following Moya’s release from federal custody pursuant to court order and while his removal proceedings were ongoing, a jury found him guilty of the attempted murder of his ex-girlfriend and the first-degree murder of her new boyfriend.

The Court majority gave every indication on Wednesday that it will reverse the Ninth Circuit’s class-wide relief. Even if the Court rules that § 1226(c) limits mandatory detention to criminal aliens taken into ICE within a “reasonable time” following release from state prison, the Court majority appeared satisfied that many if not most class members likely were taken into custody sufficiently soon.

Moreover, there is good reason to suspect that the Court will order decertification of the class in any remanded proceedings. Whether ICE has acted within a “reasonable time” in taking a criminal alien into mandatory custody can only be determined on a case-by-case basis. For example, while a ten-year ICE delay might be unreasonable if the alien criminal has been living openly and in a law-abiding manner throughout that period, ten years might well be a reasonable time if the alien took steps to avoid detection. Indeed, a federal statute, 8 U.S.C. § 1252(f), expressly prohibits federal courts from enjoining ICE operations on a class-wide basis.

The Court may rule that individual aliens, such as named plaintiff Eduardo Padilla (who was not taken into ICE custody until 11 years after completion of his last state-prison sentence) arguably are not subject to § 1226(c) detention if ICE’s delay was unreasonable. But the Court majority exhibited no inclination to significantly restrict the scope of mandatory detention by endorsing the Ninth Circuit’s constricted interpretation of the statute.

Also published by on WLF’s contributor page.