Detention Law Bars Immigrant Bond Hearings, High Court Told

Law360 (June 4, 2018, 5:53 PM EDT)

The Trump administration told the U.S. Supreme Court on Friday that all convicted immigrants may be detained without bond hearings regardless of when they enter immigration custody after being released from criminal custody, urging the justices to overturn a Ninth Circuit ruling.

The case hinges on the proper application of the Immigration and Nationality Act’s mandatory detention provision, also known as Section 1226(c), which requires that a noncitizen be detained without any bond hearing even if an immigration judge would find that they do not pose a risk of fleeing or danger to public safety. The government argues the statute does not require the U.S. Department of Homeland Security to grant convicted immigrants a bond hearing regardless of when or how they were taken into custody, citing a Board of Immigration Appeals ruling.

“A detained criminal alien is subject to mandatory detention under Section 1226(c), regardless of whether DHS arrested him immediately upon his release from criminal custody,” the brief states. “Once DHS has arrested a covered criminal alien, DHS must continue detaining him, regardless of when the arrest occurred.”

The government had petitioned for certiorari in May 2017, arguing the Ninth Circuit wrongly found that the provision only applied to criminally convicted immigrants who were promptly detained by federal immigration authorities after their release from prison. The immigrant respondents in the cases, however, told the high court in August that the government was trying to advance an overly expansive view of immigration detention, and that the Ninth Circuit had reached the correct construction of the provision.

The high court agreed to take up the case in March.

The government argued Friday that Section 1226(c) requires that DHS arrest “any alien who … is inadmissible” or “deportable” because of their criminal history or terrorist activities, meaning that such immigrants cannot be released from custody. It also asserted that statutory context and purpose indicate that DHS must indefinitely detain such individuals, noting that Congress was “justifiably concerned that [they would] continue to engage in crime and fail to appear for their removal hearings in large numbers.”

“Section 1226(c) eliminates the need for immigration judges to make inherently difficult predictions about which criminal aliens will flee or reoffend, and entirely eliminates the risk that criminal aliens will do so by mandating continued detention of any alien with the requisite criminal history,” the brief states.

The government said that, under a 2001 BIA decision known as Rojas, convicted immigrants cannot become excluded from mandatory detention due to the fact that DHS does not immediately take them into immigration custody after their release from criminal custody.

Moreover, it would be impractical to expect the government to “stand at the jailhouse door” awaiting an immigrant’s release from criminal custody to immediately take them into immigration custody, it argued. Jurisdictions often do not send DHS information as to when and where convicted immigrants will be released, making it “effectively impossible for DHS to arrest every criminal alien immediately upon his release,” the government said.

The government does not comment on pending litigation. Counsel for the respondents did not immediately respond to requests for comment Monday.

The government is represented by Solicitor General Noel J. Francsico, acting Assistant Attorney General Chad A. Readler, Deputy Solicitor General Edwin S. Kneedler, and Troy D. Liggett of the U.S. Department of Justice.

The respondents are represented by Michael King Thomas Tan of the American Civil Liberties Union.

The case is Nielsen et al. v. Preap et al., case number 16-1363, in the U.S. Supreme Court.

https://www.law360.com/immigration/a...igh-court-told