Friday, October 12, 2018
Earlier today, I posted Jennifer Chacon's insights on the oral arguments in the Supreme Court in the case of Nielsen v. Preap. Here is my analysis for Law 360 (subscription required):
For years, the U.S. government has detained immigrants as a way of enforcing the U.S. immigration laws and to deter future flows of migrants to the United States. Over the last 20 years, the U.S. Supreme Court has regularly grappled with legal challenges to immigrant detention. Just last term, for example, the court in Jennings v. Rodriguez found that there was statutory authority for the detention of certain noncitizens without bond but remanded the case for the court of appeals to determine the constitutionality of the statutory provision in question.
From his first days in office, President Donald Trump as part of an aggressive immigration enforcement agenda has enthusiastically ramped up the use of immigrant detention. In a January 2017 executive order, he announced the end of “catch and release,” a phrase disparagingly referring to the conventional practice of arresting and then allowing noncitizens, who are not at risk of absconding or a threat to the public safety, to bond out of custody while awaiting a removal hearing. Detention became the norm. The Trump administration specifically has engaged in the aggressive use of detention (combined, for a time, with the controversial policy of separating families) in seeking to deter Central American asylum seekers from coming to the United States. Inevitable legal challenges followed and can be expected to continue.
In light of the Trump administration’s aggressive use of immigrant detention, the case of Nielsen v. Preap, which was argued in the Supreme Court on Oct. 10, takes on added significance. The question presented in the case is a technical one of statutory construction. However, the case raises broader questions about limits on the U.S. government in the enforcement of the immigration laws, in this instance the use (and limits) of detention. Oral argument received more public attention than normally received by ordinary immigration cases because newly confirmed Justice Brett Kavanaugh was participating in one of his first arguments. (Unlike Justice Clarence Thomas, Justice Kavanaugh asked questions.)
The statutory question presented in Nielsen v. Preap is whether an immigrant can be subject to mandatory detention under 8 U.S.C. Section 1226(c) if, after release from criminal custody by a state, the U.S. Department of Homeland Security does not immediately take the immigrant into custody. The statute provides that the U.S. government “shall take into custody any alien ... when the alien is released, without regard to whether the alien is released on parole, supervised release or probation ...” (emphasis added). As frequently occurs in immigration cases that come before the Supreme Court, the issues raised boil down to the interpretation of the immigration statute — infamous for its complexity — and the deference, if any, properly afforded the agency’s determination.
The plaintiffs in this case are lawful permanent residents who committed a crime, served their criminal sentences and, upon release, returned to their families and communities to rebuild their lives. Years later, immigration authorities took them into custody and detained them without bond hearings under Section 1226(c). Plaintiffs argue that, because they were not detained “when ... released” from custody, they were not subject to mandatory detention under the statute.
Born in a refugee camp after his family fled the Khmer Rouge in Cambodia, one of the named plaintiffs, Mony Preap has been a lawful permanent resident of the United States since 1981. He has two 2006 misdemeanor convictions for marijuana possession. Years after being released from custody for these convictions, Preap was transferred to immigration detention. Since then, Preap has been granted cancellation of removal, thus allowing him to remain in the United States indefinitely, and released from immigration custody.
Noting that “every day in the United States, the government holds over 30,000 aliens in prison-like conditions while determining whether they should be removed from the country,” the U.S. Court of Appeals for the Ninth Circuit held that the plain language of the statute controlled: “The statute unambiguously imposes mandatory detention without bond only on those aliens taken ... into immigration custody `when [they are] released’ from criminal custody. And because Congress’ use of the word `when’ conveys immediacy, we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.”
The Ninth Circuit’s holding conflicted with four circuits (First, Second, Third and Tenth), a fact noted by Chief Justice John Roberts during oral argument.
In its briefs before the Supreme Court, the United States argues that, properly interpreted, the statute allows for the noncitizen to be subject to mandatory detention under Section 1226(c), regardless of whether the U.S. government takes custody immediately after release from criminal custody. It further contends that the Board of Immigration Appeals has squarely rejected the Ninth Circuit’s interpretation of Section 1226(c) and that the agency’s interpretation deserves deference.
Arguing that the court of appeals correctly interpreted the statute, respondents argue that the statute imposes mandatory detention only upon an immediate transition from criminal to immigration custody. In their view, the plain language and structure of Section 1226(c) compel the court of appeals’ conclusion. Finally, respondents contend that, because the statute is clear and not ambiguous (a prerequisite for deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc.), deference is not justified.
Oral arguments in the case focused almost exclusively on the proper interpretation of the statute. Assistant to the Solicitor General Zachary Tripp argued on behalf of the U.S. government. Asking the very first question, Justice Sonia Sotomayor began by focusing on the proper interpretation of the statute. Tripp replied that the statute made detention mandatory but that there was no restriction on the timing when U.S. immigration authorities had to assume custody after release by state and local law enforcement.
Throughout the argument, questioning centered on the proper interpretation of the statute, with a focus on the language and structure of the particular provision in question, which states that the U.S. government “shall take into custody any alien ... when the alien is released” (emphasis added).
At various points, Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Neil Gorsuch expressed concern about the seeming unfairness of the possibility that, under the U.S. government’s interpretation, the noncitizen could be released and, many years later, put in mandatory detention by Immigration and Customs Enforcement. Justice Ginsburg specifically asked Tripp whether he truly was arguing that “it is totally irrelevant whether ... the change in custody is immediate or it’s seven years down the road?”
Justice Breyer also expressed concern about the length of time between a noncitizen's release and placement in mandatory detention, and mentioned that one of the cases discussed in the briefs mentioned a noncitizen who had been released for stealing bus transfers and the U.S. government arrested him 14 years later. He posed the hypothetical of a grandfather who, under the U.S. government’s interpretation of the statute, might be arrested 50 years after release from state custody. Justice Breyer suggesting that one way to avoid serious constitutional questions was to infer a reasonableness requirement into the statute — mandatory detention is permissible only when there are reasonable delays in the arrest of a noncitizen after release from state custody. Tripp rejected the compromise proposal, ardently resisted any limit on the U.S. government’s detention power under the statute and dismissed the possibility that the lack of a time limit raised a constitutional question.
In short, the justices pushed Tripp on the precise meaning of the statutory language. Throughout the arguments, he emphasized that the statutory language was mandatory and required the government to assume custody any time after the noncitizen's release from state custody; at the same time, Tripp fervently resisted any limits on the time when the U.S. government might assume custody, a position that seemed to trouble a number — perhaps even a majority — of the justices.
Concerns with indefinite detention like the type discussed last term in Jennings v. Rodriguez undoubtedly were on the minds of the justices. When the questioning swerved into the length of detention, Justice Samuel Alito sought to limit the inquiry to the statutory questions before the court.
Cecellia D. Wang, Deputy Legal Director of the ACLU, argued for respondents: Taking the opposite position of the U.S. government, she pressed the argument that the text and structure of the statute left no room for any but the shortest time between release from state custody and the federal government placing the noncitizen in mandatory detention.
Several justices queried Wang about the meaning of the statute. At one point, Justice Gorsuch seemed to enjoy the semantic give-and-take with her about the language and use of grammar. Chief Justice Roberts and Justices Alito and Kavanaugh seemed worried that respondents interpreted “when” in the statute as the same day as release. Justice Alito worried about forcing the U.S. government to act too quickly, especially if state — such as California, which he specifically mentioned — and local governments are not cooperating with the federal government.
In a most revealing part of the argument, Justice Kavanaugh pressed Wang on her interpretation of the statute and stated that, in passing the 1996 immigration reforms requiring mandatory detention, Congress would have known that the federal government would not assume immediate custody “in many cases” but, at the same time, did not place any time limit on the assumption of custody: “Congress knew [federal immigration detention] wouldn’t be immediate and yet Congress did not put in a time limit. That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so.” He later questioned whether, as Wang contended, the statute should be read narrowly because Congress was focused on “harshness” toward immigrants not generosity toward them (as her interpretation of the statute would offer). At the same time, Justice Kavanaugh explored on rebuttal with Tripp what he might view as a reasonable time limit for the U.S. government to assume custody of a noncitizen released by the state.
In questioning Wang, Justice Alito suggested that the options for the court in interpreting the statute are to take custody “within 48 hours as required by the Ninth Circuit, some reasonable period or after the alien is released.”
Importantly, there was no real discussion of deference to the agency’s interpretation of the statute. The justices apparently saw the statute as being subject to interpretation, but not having the ambiguity that might require some sort of deference to the agency.
Although it is hazardous to guess the outcome of a case from oral arguments, it struck me that the justices were troubled by what they viewed as the extreme positions posed by the opposing sides in Nielsen v. Preap. Interpreting the statute to allow federal arrest and detention many years after release from state custody, as advocated by the United States, seems unfair. At the same time, requiring immediate arrest by federal officers upon release from state custody, as argued by the ACLU, seems unrealistic. One possibility is that a majority could be cobbled around Justice Breyer’s suggestion that the U.S. government be permitted to subject a noncitizen to mandatory detention if taken into custody within a reasonable time of release from state custody. Such a compromise would perhaps avoid those disputes over the constitutionality of limits that made the case of Jennings v. Rodriguez so difficult to resolve, thus requiring re-argument.
Kevin R. Johnson is dean and Mabie-Apallas professor of public interest law and Chicana/o studies at University of California, Davis, School of Law.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Jennings v. Rodriguez, 138 S. Ct. 830 (2018). http://www.scotusblog.com/case-files/cases/jennings-v-rodriguez/
 Lora v. Shanahan, 804 F.3d 601, 612 (2d Cir. 2015); Olmos v. Holder, 780 F.3d 1313, 1322 (10th Cir. 2015); Hosh v. Lucero, 680 F.3d 375, 380–81 (4th Cir. 2012); Sylvain v. Atty Gen. of United States, 714 F.3d 150, 157 (3d Cir. 2013).
 Matter of Rojas, 23 I. & N. Dec. 117 (2001) (en banc).
 Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984).