Nielsen v. Preap

LII note: The U.S. Supreme Court has now decided Nielsen v. Preap .


Does 8 U.S.C. 1226(c) require that the Government immediately transfer a criminal alien from criminal custody to immigration custody in order for the Government to subject the criminal alien to mandatory detention without a bond hearing?

Oral argument: 
October 10, 2018

This case asks the Supreme Court to interpret the statutory construction of 8 U.S.C. § 1226(c) and ultimately decide how easy it will be for the Government to begin deportation proceedings against criminal aliens. Section 1226(c)(1) provides for the mandatory detention of criminal aliens who commit certain offenses. Mony Preap, an alien with two drug convictions that triggered mandatory detention under § 1226(c), and two other similarly situated aliens contend that, under this statute, the Department of Homeland Security must immediately arrest criminal aliens upon their release from criminal custody in order for mandatory detention to apply. The Government counters that narrowly construing the statute, as Preap proposes, would contradict Congress’s intent to reduce the growing threat to public safety posed by dangerous criminal aliens and their high risk of flight. The outcome of this case has implications for the Government’s ability to detain aliens without a bond hearing under § 1226(c) following their release from criminal custody and affects the ease with which the Government can initiate deportation proceedings against aliens.

Questions as Framed for the Court by the Parties 

Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take the alien into immigration custody immediately.


This case involves three respondents, all who immigrated to the United States as children. Respondent Mony Preap was born in a refugee camp after his family escaped the Khmer Rouge in Cambodia and has been living in the United States as a lawful permanent resident since 1981. In 2006, he was convicted twice for the possession of marijuana and served prison sentences for these crimes. Preap later served a short prison sentence for battery and was transferred at the end of this sentence to immigration detention and held without a bond hearing. The other two respondents, Eduardo Vega Padilla and Juan Lozano Magdaleno, were similarly convicted of drug possession crimes, released following their sentences, and detained and held without bond hearings in immigration custody years after their release for those earlier drug crimes.

Preap and his fellow alien detainees (“Preap”) filed a class action petition asking for habeas relief in the Northern District of California. There, both the Government and Preap disputed how 8 U.S.C. § 1226(c), the statute the Government used as its basis for their detention, should be read. The statute states that the Attorney General “shall take into custody” any alien who meets the criteria in subsections (1)(A)–(D)—including criminal aliens—“when the alien is released.” Aliens referred to in subsections (1)(A)–(D) are subject to mandatory detention, meaning that the Government must detain these aliens upon their release without bond. Preap argued that for criminal aliens to fall within the purview of 8 U.S.C. § 1226(c)(1), making them subject to mandatory detention, they would need to be detained by the Government at the moment they were released from criminal custody because of the language “when the alien is released.” Therefore, Preap contended, they should not have been subject to mandatory detention and thus should have been entitled to a bond hearing before being placed in immigration custody.

The Government countered that § 1226(c)(1) applies to all criminal aliens who committed offenses enumerated within that paragraph of the statute, whether or not they are detained immediately following their release from criminal custody. Under this interpretation, even if the Government failed to immediately detain a criminal alien referred to in § 1226(c)(1) upon his or her release, if the Government later managed to detain the alien, he or she could be held without bond. The Government based its argument on a ruling by the Board of Immigration Appeals (“BIA”), Matter of Rojas, in which the Government’s claim echoed its interpretation of § 1226(c). The Government contended that because of the statute’s ambiguity, the BIA’s interpretation should be given deference.

The district court ultimately sided with Preap’s interpretation of § 1226(c) and ordered that they be released on their own recognizance, and if not, that they were entitled to a bond hearing. The Government then appealed the district court’s ruling to the Court of Appeals for the Ninth Circuit, which agreed with the district court’s reading of § 1226(c). The Ninth Circuit held that, because the Government lacked the authority to detain Preap under § 1226(c)(1), these individuals could be detained lawfully by the Government in this instance only under § 1226(a), which would then entitle them to a bond hearing. The Government now appeals the Court of Appeals’ ruling and the Supreme Court granted certiorari.


Interpreting § 1226(c)’s Text and Structure

The Government argues that mandatory detention under § 1226(c) should still apply to a criminal alien even if the Department of Homeland Security (“DHS”) does not arrest that alien immediately after the alien is released from criminal custody. According to the Government, the four subparagraphs in § 1226(c)(1)(A)–(D) describe only who is subject to mandatory detention. In contrast, the phrase “when the alien is released” in the following clause indicates only when the Secretary of Homeland Security (“Secretary”) should arrest a criminal alien. The Government, therefore, concludes that the timing of arrest should not be part of the analysis and that an alien’s criminal or terrorist act should be the sole basis of that alien’s mandatory detention under § 1226(c)(1). Moreover, § 1226(c)(2) provides that the Secretary may release an alien who is subject to mandatory detention under § 1226(c)(1) only if the Secretary determines that the release is necessary to ensure witness protection. The Government concludes that because Preap and other Respondents are not protected witnesses, they should be subject to mandatory detention.

Based on case law, the Government also contends that, in this context, the word “when” in the phrase “when the alien is released” is equivalent to “while.” Thus, the Government maintains, mandatory detention does not expire immediately after the moment of release but continues until DHS arrests the criminal alien. According to the Government, such an interpretation of the phrase does not make the phrase superfluous because DHS can always take an alien into custody during his criminal sentence.

The Government finally claims that, through § 1226(c)’s text and structure, Congress could have easily manifested its intent to subject only criminal aliens to mandatory detention without gaps in custody. The Government points out that Congress, for example, could have phrased a gap in custody as an additional exception as Congress did for the witness-protection exception § 1226(c)(2).

Preap counters that if the Secretary does not detain a criminal alien immediately after the alien is released, that alien should not be subject to § 1226(c)’s mandatory detention. Preap criticizes the Government’s attempt to distinguish the role of § 1226(c)(1)(A)–(D) from that of the phrase “when the alien is released,” which would effectively make the phrase “when the alien is released” void. Preap points out that despite their textual and structural differences, both § 1226(c)(1)(A)–(D) and the phrase “when the alien is released” describe who is subject to mandatory detention under § 1226(c).

Preap also argues that the phrase “when the alien is released” in § 1226(c)(1) should be interpreted as “at the time of the release” because, according to case law, the word “when” denotes immediacy. Congress could have used “if” or “after” if it had intended to grant the Secretary the authority to detain criminal aliens at any time after their release from criminal custody. Moreover, § 1226(c) is a specific exception to § 1226(a)’s general detention rule, and Preap notes that restricting § 1226(c) to the moment of release corresponds with the typical statutory principle that exceptions to general rules should be narrowly construed.

Preap finally contends that the Government’s reading of § 1226(c) would make the phrase “when the alien is released” superfluous, which violates the basic rule of statutory interpretation that no word should be treated as superfluous. According to Preap, had Congress meant that the Secretary should detain an alien only after the alien’s criminal sentence, Congress could have used the phrase “until the alien is released from imprisonment” as it did in other statutes.

Evaluating Congress’s Intent in Enacting § 1226(c)

To determine the parameters of § 1226(c), the Government maintains that Congress enacted the statute in response to increasing rates of flight and recidivism by criminal aliens. According to the Government, Congress intended to eliminate the growing threat posed by all removable criminal aliens during their removal proceedings. The Government reasons that releasing criminal aliens on bond just due to their gaps in custody would let dangerous criminal aliens loose in society. It would also encourage them to run away from DHS upon their release from criminal custody, thereby undermining Congress’s original intent. Moreover, the Government argues that if, as Preap proposes, Congress intended § 1226(c) to be effective only upon the criminal release of an alien, Congress would have clearly placed a time limit on § 1226(c)’s effectiveness.

The Government also states that § 1226(c)’s legislative history further shows congressional intent to include all aliens with the requisite criminal history. The Government points to 8 U.S.C. § 1252(a)(2) in the Anti-Drug Abuse Act of 1988, the predecessor statute to § 1226(c), which mandated detention of criminal aliens convicted of an aggravated felony and prohibited the Attorney General from releasing those aliens from custody. Because Congress later added an exception for lawfully admitted aliens to the statute, the Government argues that the all-inclusive scope of this exception shows that the predecessor statute applied to all criminal aliens with the requisite criminal history, not just to criminal aliens who were immediately arrested. Otherwise, the Government explains, the exception would have been broader than the statute. When Congress amended the statute to the current version of § 1226(c) by expanding the statute’s reach to other serious crimes and adding the witness-protection exception, the Government argues that the lack of any other material changes shows that the general prohibition against release remains intact. Therefore, the Government asserts that § 1226(c)’s legislative history shows that the application of § 1226(c) has nothing to do with when the Secretary arrests a criminal alien with the requisite criminal history.

Preap counters that Congress enacted § 1226(c) in the first place to ensure “the immediate transition from criminal to immigration custody” of criminal aliens. According to Preap, § 1226(c)’s legislative history shows such congressional intent. For example, the first mandatory detention statute in the Anti-Drug Abuse Act of 1988 required the immigration authorities to arrest criminal aliens “upon completion of the alien’s sentence,” and Preap argues that the phrase “upon completion” denotes immediacy. Also, Preap claims that Congress would not have enacted the Transition Period Custody Rules (“TPCR”), which allows the Attorney General to delay § 1226(c)’s effective date up to two years, if Congress had intended § 1226(c) to allow mandatory detention “at any time after” the release of a criminal alien.

Preap also argues that under the Government’s reading, § 1226(c) would authorize the Secretary to categorically detain criminal aliens, thereby raising serious constitutional questions. Preap points out that taking a criminal alien into custody after the alien has lived peacefully for years would violate due process, especially considering that the alien would not likely pose the same level of flight risk and recidivism as before the gap in custody due to communal ties that alien has built over time.

Deference to the BIA

The Government contends that under case law, courts should submit their judgments to the Board of Immigration Appeal (“BIA”) in interpreting § 1226(c). Under the BIA’s interpretation of § 1226(c), a gap in custody does not exempt a criminal alien from mandatory detention. The Government argues that the Attorney General of the United States, who administers removal proceedings, has entrusted the BIA with the authority to interpret § 1226(c) and other immigration laws.

Preap counters that courts do not need to follow the BIA’s interpretation. According to Preap, the BIA’s interpretation contradicts § 1226(c)’s very language that demands immediate arrest of criminal aliens by the DHS. Preap points out that the BIA is an agency in the Executive Branch and asserts that following the BIA’s interpretation undermines the separation of powers.


Danger to the Public and Risk of Flight

The Immigration Reform Law Institute (“IRLI”), in support of the Government, believes Preap’s statutory interpretation has dangerous implications; IRLI argues that aliens who have committed crimes reoffend at a frequency that puts the public’s safety in jeopardy and that these aliens will likely flee before their immigration proceedings. The Government contends that, due to these concerns, immigration judges and officials should not be responsible for predicting which aliens pose the greatest risks of flight or reoffending and that mandatory detention is thus necessary. According to the Criminal Justice Legal Foundation (“CJLF”), also in support of the Government, these risks do not decrease over time while these aliens are released among the general public. CJLF claims that formerly convicted aliens either evade arrest for crimes they commit soon after their release or eventually commit crimes later on.

In contrast, the Advancement Project argues in support of Preap that there is little benefit to detaining criminal aliens who have been released and have settled in communities. The Advancement Project claims that § 1226 was meant to aid law enforcement in targeting aliens seeking to avoid identification and detection. However, according to the Advancement Project, the aliens now targeted by the Government frequently self-report their residence to immigration officials and are usually found by the Government specifically due to this self-reporting. Former General Counsels for the Immigration and Naturalization Service (“INS”) and DHS (“former General Counsels”), supporting Preap, further suggest that many aliens with criminal records go on to live “law-abiding lives” after their release from criminal custody and become productive members of society. Moreover, the former General Counsels argue, many of these aliens never reoffend and some instances of past crimes can be attributed to mistakes they made as youths that do not reflect on their current dispositions.

Practicality of Compliance and Resource Constraints

The Government claims that it is impractical for immigration officials to be present for the release of every alien from criminal custody to transfer them to immigration detention. According to the Government, one reason for the resultant gap between criminal custody and mandatory detention is due to resource constraints—the inability of the Government to secure adequate funding or services for a particular need. IRLI argues that the Government’s resources are also significantly depleted chasing by aliens who flee after criminal release and that mandatory detention reduces this waste.

IRLI further asserts that a lack of cooperation from state and local governments can also cause this gap in custody. IRLI claims that state and local governments will often not comply with requests from Immigration and Customs Enforcement (“ICE”) to be notified of the aliens’ release from criminal custody and help effectuate a timely transfer to immigration detention. Finally, IRLI also notes that some jurisdictions, such as California, prohibit their local law enforcement from transferring custody of aliens to ICE, further complicating the feasibility of perfect federal compliance with §1226.

The National Immigrant Justice Center (“NIJC”) disagrees, maintaining, in support of Preap, that the Government has sufficient resources at its disposal to be in full compliance with §1226. According to NIJC, ICE’s Criminal Alien Program and Institutional Hearing Program are used to efficiently screen, monitor, and process potentially removable aliens within the criminal justice system. NIJC thus contends that these initiatives reduce the instances where a gap in custody could occur. Moreover, the former General Counsels add that bond hearings and custody determinations would not be overly costly or burdensome for the Government. The former General Counsels also warn that the immigration detention system could reach its full capacity if the Court accepts the Government’s interpretation of §1226. In this situation, they claim, the Government would be forced to prioritize the release of aliens who are not subject to mandatory detention over those aliens who are. This, according to the former General Counsels, could lead to cases where the aliens the Government is forced to mandatorily detain pose a lower threat to public safety and risk of flight than those the Government must release to make space for more aliens who must be placed in mandatory detention.

NIJC also contends that active noncompliance by state and local governments is overstated and that refusals to cooperate with federal immigration officials by these jurisdictions have remained consistently low. Additionally, the NIJC notes that even jurisdictions with a reputation for noncompliance, such as California, cooperate with ICE with respect to certain classes of criminal aliens, such as those who have committed serious or violent crimes. Finally, the NIJC argues that state and local governments may not always comply with ICE’s requests due to the fear of liability resulting from procedural missteps the Government may make when issuing those requests. Historically, and more recently, says the NIJC, state and local governments have faced civil rights lawsuits even with reforms the Government has made to try to mitigate their occurrence.

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