Courthouse Steps Teleforum: Nielsen v. Preap

Criminal Law & Procedure Practice Group Teleforum

Listen & Download

In the Nielsen v. Preap decision, released on Wednesday, March 20, Justices Thomas, Gorsuch, Kavanaugh, and Roberts joined Justice Alito in finding that a mandatory detention statute regarding potentially removable immigrants applied to a wider class of persons than previously found in Demore v. Kim (2003). The Constitutional issue surrounds 8 U.S.C. § 1226(c)(1),  known as the “mandatory detention provision” of the Immigration and Nationality Act, states that “The Attorney General shall take into custody any alien who—when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.” Immigrants who commit certain crimes, specified in the statute, are not entitled to a bond hearing and once detained can be held in federal custody until their removal proceedings are resolved.

In two Ninth Circuit decisions, Preap v. Johnson and Khoury v. Asher, it was ruled that criminals released but not immediately detained were entitled to a bond hearing. The ruling in Nielsen reverses these holdings, insofar as Justice Alito concluded that so long as the immigrants meet the criteria set forth in 8 U.S.C. § 1226, the period of time between release and detention is irrelevant. (DHS did not take Preap “into custody” until about seven years after Preap was released from criminal custody.) Justice Alito, writing for the majority, stated that it was “better late...than never” with regard to detention, supporting this conclusion with a grammatical analysis. Specifically, because “an adverb cannot modify a noun, the “when released” clause cannot modify ‘alien’”. In other words, nothing in the plain meaning of the text supports the Circuit Court’s decisions to differently apply the statute to those aliens who were not detained immediately on release from prison.


Greg Brower, Shareholder, Brownstein, Hyatt, Farber, Shreck


Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on the website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.


Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Thursday, March 28, 2019, during a live teleforum conference call held exclusively for Federalist Society members.          


Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's subject is a Courthouse Steps Teleforum on Nielsen v. Preap. My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society. 


As always, please note that all expressions of opinion are those of the expert on today's call.


Today we're very fortunate to have with us Mr. Greg Brower, who is a Shareholder, Brownstein, Hyatt, Farber, Shreck. After our speaker gives his remarks today, we will move to an audience Q&A, so please keep in mind what questions you have for this case or for our speaker. Thank you very much for sharing with us today, Greg. The floor is yours.


Greg Brower:  Thank you very much, Wes. This was not one of the highest profile cases so far this term, but interesting nevertheless in part because, as I will suggest, it was in my view a very simple case that at least the dissent tried to make, as is typical, much more complicated than it needed to be. So I'm going to run through the case in terms of a summary and talk about the majority decision, the dissent, and then hopefully we can have some Q&A at the end.


So this litigation began back in 2013 when the respondents brought a putative class action in the Northern District of California. The lead plaintiff, Preap, was a lawful, permanent resident alien who had been in U.S. criminal custody on drug convictions and was released from custody back in 2006. Pursuant to 8 U.S.C. § 1226, DHS took him into custody in 2013. The district court certified a class consistent of all aliens in California who, quote, “are or will be subjected to mandatory detention under [§ 1226(c) of Title 8] and who were not . . . taken into custody by [DHS] immediately upon their release from criminal custody.”


The plaintiffs in the case argued that they were exempt from mandatory detention – that is detention with no bond hearing – under § 1226(c) even though they had committed the predicate offense, or at least one of the predicate offenses lifted in § 1226(c) because, they argued, the statute's mandatory detention provision does not apply unless DHS taken the alien into custody immediately after release from criminal custody.


The district court in the case did, in fact, enter a preliminary injunction in favor of the respondents, agreeing with their reading of § 1226(c) and ordered that the government provide bond hearings to all class members. The Ninth Circuit then affirmed despite acknowledging that four other circuits had sided with the government's position that a gap in custody – that is a gap between the underlying criminal custody and DHS custody – is irrelevant under § 1226(c). Again, four other circuits had decided previously that such a gap is irrelevant under this statute.


The Supreme Court eventually granted cert, and as I said, this wasn't necessarily a high-profile case, but it did draw several amicus briefs, including an excellent by my friends at the Washington Legal Foundation who filed on behalf of several members of Congress.


The government argued in front of the Supreme Court that § 1226(c) clearly provides that a detained criminal alien is subject to mandatory detention – that is without bond – regardless of whether DHS takes him into custody immediately upon release from criminal custody or at some later time. The government further argued that beyond the plain language and meaning of the statute, the context and purpose of the statute reinforces the point that detention is mandatory regardless of the timing of the detention. It pointed to the Supreme Court's decision from 2003 in a case called Demore v. Kim, in which the Court referenced Congress's concern that deportable, criminal aliens who are not detained will, in many cases, fail to appear for their removal hearings. And thus, that was the policy position behind the statutory language.


The third point argued by the government was that the Ninth Circuit's interpretation would create practical problems for DHS because DHS cannot always be ready to immediately take every criminal alien into custody at the very moment that he or she is released from criminal custody, especially in light of the fact that many local jurisdictions around the country are increasingly not cooperating with DHS in that regard. Moreover, the government argued that if Congress had wanted to create a, quote, “gap in custody”, end quote, my quote: “exception to a no-bond, mandatory detention process,” it could have done so in the statute but clearly did not.


The respondent's argument centered around what I will call a convoluted analysis of the language and the grammar of § 1226(c). And this is what I alluded to earlier as -- it appeared to be an attempt by the dissenters to complicate a relatively simple statute in order to achieve, in their view, a more just result. But their argument centered on the grammar and the language focusing on the following language: quote, “when the alien is released” part of the statute. And they argued that that language must be read as immediately when the alien is released, despite the fact that the word immediately is not found anywhere in the statute, nor is there any other reference in the language of the statute to a time element that the government must meet in order to effectuate a no-bond detention.


The respondents further argued that a criminal alien could be taken into custody at a later time but only subject to a bond hearing. Predictably, respondents also maintained that congressional intent supported their interpretation, arguing that Congress's concern was that removable aliens coming out of criminal custody, such aliens who had been allowed to remain out of custody for some gap period of time -- let me try to rephrase that. What the respondents argued that Congress's concern was was that removable aliens coming out of criminal custody should not be picked up, should not be detained, if there was some gap period between the criminal custody and the DHS detention. At bottom, the respondent's argument was really, it seems to me, based on their position that detention without a bond hearing is simply an unfair violation of due process, even in the civil context.


The case was argued before the Supreme Court on October 10th. It was decided just a couple of weeks ago on March 19th, with Justice Alito writing for a 5-4 majority. Justice Alito first explained § 1226(c) by clarifying that most aliens detained by DHS are able to seek review of their detention in the form of a bond hearing, with the exception being provided by the statute for several specific types of aliens for whom detention is mandatory because of the nature of their offense. It was undisputed in this case that the respondents were aliens of the type that are subject to mandatory -- that is no-bond detention, leaving the only issue in the case the question of whether the timing of DHS's detention was relevant.


Now, there were some preliminary jurisdiction issues argued in the case as well. I'm not going to address those at this point. They were simply just irrelevant to the main point of the case. Justice Alito disagreed with the respondents' position. As he put it he disagreed with the position as, quote, “running aground” on the plain text of the statute, finding that it was the text was so plain that respondents' argument was simply illogical and nonsensical. He then ran through each of the respondents' sort of convoluted grammar-based arguments about why the statute -- how the statute should be read and dismissed each of them, again, finding that the plain, simple reading of the statute included no temporal element, and thus allowed for DHS to detain without bond, even if the DHS arrests occurred some even significant time after the alien's release from criminal custody.


Justice's Thomas, Gorsuch, Kavanaugh, and the Chief Justice joined in Justice Alito's opinion. Interestingly, Justice Kavanaugh wrote a concurring opinion to emphasize that he saw this case as presenting a sole, narrow question – that is whether detention under the statute is mandatory, even if not effected immediately upon the release of criminal custody. And he didn't see the case as being any more complicated than that, finding that the language of the statute was clear. He simply found it easy to reverse the Ninth Circuit Court of Appeals decision without getting into an exhaustive discussion of the language and the grammar and various canons of interpretation that both the majority opinion and the dissent spend a lot of time on.


Justice Thomas was joined by Justice Gorsuch in writing another concurrence that delved into the jurisdictional issues that I mentioned. And I won’t delve into those today.


On the other side, Justice Breyer wrote the dissent, joined by Justices Ginsburg, Sotomayor, and Kagan. The dissent focused on the, as I read it, really focused on the perceived unfairness of no-bond detention for aliens who are not immediately detained upon release from criminal custody. The dissent focused a lot on the familial and community connection realities that might exist for someone who has been living in the United States for a relatively long period of time between release from criminal custody and being picked up by DHS. The dissent, also as I mentioned, delved into the same grammar exercise undertaken by Justice Alito but goes even deeper, and I would submit makes the issue even more confusing but clearly not convincing to the majority. I suspect, as I'm sure many of you do, that Justice Alito decided to go into the grammar issues because that was clearly an issue for the likely dissenters, and he wanted to sort of shore up and preempt that argument in his own majority opinion.


So the bottom line, as I see it, from the decision is that the majority believe that the statute was clear, and indeed, as I mentioned Justice Kavanaugh thought it was even more than clear, and likely would have written, if he were writing the majority opinion, a very, very short, terse, concise opinion.


I guess another obvious takeaway from the decision as I read it is this was not a constitutional challenge, and as a result, Congress could simply change § 1226(c)(1) and presumably -- or (c)(2) -- and presumably, include a temporal element that would necessitate a bond hearing for those detainees who are not arrested immediately upon or within five days, or ten days, or whatever Congress would want to do, from their release from criminal custody. So I will stop there, Wes. Be happy to try to answer any questions that may be out there.


Wesley Hodges:  Wonderful. Well, thank you so much, Greg, for your remarks. Looks like we do have one question from the audience. Let’s go ahead and go to our first caller.


Caller 1:  Greg, thanks very much for a great summary of the Court’s decision. You mentioned, of course, that this is a statutory interpretation case and this allows the Ninth Circuit on remand to say that, “Well, it doesn’t make any difference was the statute says. We think that this kind of detention is unconstitutional.” And they’ve basically said that same thing in the past. So my question to you is it seems to be pretty clear that Congress has said courts should not be entering any types of class-wide injunctions that have one particular person being held unconstitutionally. The courts are entitled to order his release but they should not be doing so on a class-wide basis. The Ninth Circuit seems to regularly ignore that. Instead, they regularly issue these injunctions as they did in this case on a class-wide basis. I’m wondering first of all, do you agree with me that the statutes are pretty clear that you can’t enter a class-wide injunction against immigration enforcement, and secondly, what’s there to be done about the Ninth Circuit?


Greg Brower:  Well, Rich, thanks for the question. Of course, what’s to be done about the Ninth Circuit just in general is a bigger question for this discussion and one for which I really don’t have an answer. But I do agree with you on the first part. And it was emphasized by Justice Alito that although no constitutional arguments were made in this particular case, although they could have been raised, he did go on to opine that the Court’s statutory decision does not foreclose an as-applied constitutional challenge going forward. So it’ll be interesting to see if we see that. I suggest that we probably will.


What to do about the Ninth Circuit is I guess above my pay grade. Thanks for the question.


Wesley Hodges:  Thank you so much, caller. While we wait for any more questions from the audience, I do have a question for you, Greg. Was there a constitutional challenge to the statute made by the respondents?


Greg Brower:  Wes, yeah, that’s a great question. As I just mentioned, it was, although Justice Alito in his majority opinion did acknowledge, and I quote here, “while respondents might have raised a head-on constitutional challenge to § 1226(c), they did not.” And so there was not such a challenge made. But as I just mentioned, Justice Alito also opined that an as-applied challenge could be made based upon this statutory decision. I would think it likely that such a challenge will be made going forward.


Wesley Hodges:  Okay. Wonderful. Thank you. If we don’t see another question, Greg, I turn the mic back to you. Do you have any thoughts for us on the case before we close today?


Greg Brower:  Thank you very much, Wes. I guess I would just offer, again, my take on this case. I hadn’t followed it closely while it was being litigated, but as I read the majority and dissenting opinions, again, it seems like the dissenters just really think it’s unfair and violates due process even in the civil context for a detained alien to not be afforded a bond hearing. And while that may be a laudable policy goal, it’s certainly not required constitutionally. And, again, as the majority read the statute, it’s simply clear up to space. So I think as with many things that are litigated that are not constitutional matters, the dissenters don’t like the outcome, and there are certainly many people around the country, advocates and others, don’t like the outcome. It’s really in the first branch that their concerns should be addressed.


With that, I want to you, Wes, for the chance to present this case today and thank everybody for listening.


Wesley Hodges:  Well, thank you, Greg. Talking about federalism and the separation of powers is one of our favorite subjects to cover. So thank you so much for your work today. Everyone, I’d like to thank Greg on the behalf of The Federalist Society for his expertise and time today. We welcome all listener feedback by email at [email protected]. Thank you all for joining. The call is now adjourned.


Operator:  Thank you for listening. We hope you enjoyed this Practice Group Podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at