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On October 10, 2018, the Supreme Court heard argument in Nielsen v. Preap, a case involving the exemption of a criminal alien from mandatory detention without bond due to a delay in arrest after release from criminal custody. 

As codified, § 1226(c) of the Immigration and Naturalization Act (“INA”) provides for the mandatory detention of criminal aliens “when [they are] released” from criminal custody, and for the holding of these aliens without bond. The three plaintiffs in this case are lawful permanent residents who have committed crimes that could lead to their removal from the United States but after serving their criminal sentence were released and returned to their families and communities in the United States; however, years later, each was arrested by immigration authorities and detained without bond hearings under § 1226(c). The plaintiffs filed a class action petition for habeas relief in district court arguing that since they were not detained “when...released” from criminal custody, they are not subject to mandatory detention under § 1226(c). The district court granted their motion for class certification, issued a preliminary injunction requiring the government to provide all class members with bond hearings under § 1226(a), and concluded that under § 1226(c) aliens can be held without bound only if taken into immigration custody immediately upon release from criminal custody, not if there is a lengthy gap after their release. The government appealed to the US Court of Appeals for the Ninth Circuit, arguing that the statute “does not suggest that immigration officials lose authority if they delay.” The Ninth Circuit affirmed the district court’s class certification order and preliminary injunction, and held that the mandatory detention provision of § 1226(c) applies only to those criminal aliens detained promptly after their release from criminal custody, not to those detained long after. 

The US Supreme Court granted certiorari to determine whether a criminal alien becomes exempt from mandatory detention under § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.  

To the discuss the case, we have Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation. 

As always, the Federalist Society takes no position on particular legal or public policy issues. All opinions are those of the speaker.