Monday, March 19, 2018
Just a few weeks after deciding Jennings v. Rodriguez, the Supreme Court granted review today in Nielsen v. Preap, another immigrant detention case. The issue in the case is whether a criminal noncitizen 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 him into immigration custody immediately.
In an opinion by Judge Nguyen, joined by Judges Klienfeld and Friedland, the panel affirmed the district court’s class certification order and preliminary injunction in a class action habeas petition brought by criminal noncitizens subject to mandatory detention under 8 U.S.C. § 1226(c). The panel held that under the plain language of 8 U.S.C. § 1226(c), the government may detain without a bond hearing only those criminal aliens it takes into immigration custody promptly upon their release from the triggering criminal custody. The panel specified that it was holding 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.