Supreme Court Approves Broadened Government Power to Detain Criminal Immigrants

Criminal Immigrants Detained by U.S. Government

Written by: Taher Kameli, Esq.

If you oppose President Trump’s immigration policies, did you vote for Hillary Clinton in the 2016 presidential election?  One effect of President Trump being elected is that he is able to appoint Supreme Court justices who share his harsh views on immigration.  This point was evidenced in the March 19 Supreme Court decision in the case of Nielsen v. Preap (Case No. 16-1363), which held that the government has a broad right to detain immigrants with past criminal records under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA of 1996), without regard to how much time has elapsed since their release from criminal custody.

The Supreme Court reversed a decision of the 9th Circuit US Court of Appeals, which had ruled that immigrants could only be detained within 24 hours of their release from criminal custody, as the government could not wait weeks, months, or even years to assert its power to detain criminal immigrants.

The individuals in the subject case (one of whom was expressly described as a “lawful permanent resident”) were detained 5, 7, and 11 years after their release from relevant criminal custody.  IIRIRA of 1996 authorizes the government to detain certain immigrants with a criminal history without a bond hearing.

In a 5 to 4 decision, Justice Samuel Alito wrote the Supreme Court’s majority opinion, stating, “Especially hard to swallow is respondents’ insistence that for an alien to be subject to mandatory detention under [Section] 1226(c), the alien must be arrested on the day he walks out of jail . . . Under these circumstances, it is hard to believe that Congress made the Secretary’s mandatory-detention authority vanish at the stroke of midnight after an alien’s release.

In short,  the import of our case law is clear: Even if subsection (c) were the only font of authority to detain aliens without bond hearings, we could not read its “when . . . released” clause to defeat officials’ duty to impose such mandatory detention when it comes to aliens who are arrested well after their release”.  New Justice Brett Kavanaugh (‘the Court correctly holds that the Executive Branch’s detention of the particular noncitizens here remained mandatory even though the Executive Branch did not immediately detain them”) and Justice Clarence Thomas wrote concurring opinions.

Justice Stephen Breyer wrote a dissenting opinion, declaring, “Under the Government’s view, the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community.

These aliens may then be detained for months, sometimes years, without the possibility of release; they may have been convicted of only minor crimes . . . Why would Congress have granted the Secretary such broad authority to deny bail hearings, especially when doing so would run contrary to basic American and common-law traditions? . . . The answer is that Congress did not do so”.

Commenting on the decision, American Civil Liberties Union (ACLU) Deputy Legal Director Cecilia Wang said, “For two years in a row now, the Supreme Court has endorsed the most extreme interpretation of immigration detention statutes, allowing mass incarceration of people without any hearing, simply because they are defending themselves against a deportation charge. . . . We will continue to fight the gross overuse of detention in the immigration system”. Some observers believe the ACLU plans to file litigation challenging the constitutionality of IIRIRA of 1996 (an issue that the Supreme Court did not consider in the Nielsen v. Preap case).

Those who oppose the Nielsen v. Preap decision, and other immigration policies of President Trump, will have the opportunity to vote for a different President in year 2020.  With a different President appointing different Supreme Court justices, potentially over time you will see the Supreme Court adopt a different attitude on immigration issues. In the interim, Kameli Law will work to help immigrants adversely affected by the hostile policies of the Trump administration.  Please contact theKameli Law, at or 312-233-1000, for representation if your immigration rights are being attacked by the Trump administration.

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