Nielsen v. Preap

• Citation: 203 L.Ed.2d 333,139 S.Ct. 954
• Decision Date: 19 March 2019
• Docket Number: No. 16-1363,16-1363
• Parties: Kirstjen M. NIELSEN, Secretary of Homeland Security, et al., Petitioners v. Mony PREAP, et al. Bryan Wilcox, Acting Field Office Director, Immigration and Customs Enforcement, et al., Petitioners v. Bassam Yusuf Khoury, et al.
• Court: United States Supreme Court

139 S.Ct. 954

203 L.Ed.2d 333

Kirstjen M. NIELSEN, Secretary of Homeland Security, et al., Petitioners

v.Mony PREAP, et al.

Bryan Wilcox, Acting Field Office Director, Immigration and Customs Enforcement, et al., Petitioners

v.Bassam Yusuf Khoury, et al.

No. 16-1363

Supreme Court of the United States.

Argued October 10, 2018

Decided March 19, 2019¹

Zachary D. Tripp, Washington, DC, for Petitioners.

Cecillia Wang, New York, NY, for Respondents.

Noel J. Francisco, Solicitor General, Chad A. Readler, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Zachary D. Tripp, Assistant to the Solicitor General, Troy D. Liggett, Attorney, Department of Justice, Washington, DC, for Petitioners.

Matt Adams, Northwest Immigrant Rights Project, Robert Pauw, Gibbs Houston Pauw, Devin T. Theriot-Orr, Sunbird Law, PLLC, Emily Chiang, American Civil Liberties Union Foundation of Washington, Seattle, WA, Michael K.T. Tan, Cecillia Wang, Judy Rabinovitz, Omar C. Jadwat, American Civil Liberties Union Foundation, New York, NY, David D. Cole, American Civil Liberties Union Foundation, Washington, DC, Lucas Guttentag, Stanford, CA, Vasudha Talla, American Civil Liberties Foundation of Northern California, Anoop Prasad, Jingni (Jenny) Zhao, Asian Americans Advancing Justice-Asian Law Caucus, Daniel Purcell, Grace Y. Yang, Keker, Van Nest & Peters LLP, San Francisco, CA, for Respondents.

Justice ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III–A, III–B–1, and IV, and an opinion with respect to Parts II and III–B–2, in which THE CHIEF JUSTICE and Justice KAVANAUGH join.

Aliens who are arrested because they are believed to be deportable may generally apply for release on bond or parole while the question of their removal is being decided. These aliens may secure their release by proving to the satisfaction of a Department of Homeland Security officer or an immigration judge that they would not endanger others and would not flee if released from custody.

Congress has decided, however, that this procedure is too risky in some instances. Congress therefore adopted a special rule for aliens who have committed certain dangerous crimes and those who have connections to terrorism. Under a statutory provision enacted in 1996, 110 Stat. 3009–585, 8 U.S.C. § 1226(c), these aliens must be arrested "when [they are] released" from custody on criminal charges and (with one narrow exception not involved in these cases) must be detained without a bond hearing until the question of their removal is resolved.

In these cases, the United States Court of Appeals for the Ninth Circuit held that this mandatory-detention requirement applies only if a covered alien is arrested by immigration officials as soon as he is released from jail. If the alien evades arrest for some short period of time—according to respondents, even 24 hours is too long—the mandatory-detention requirement is inapplicable, and the alien must have an opportunity to apply for release on bond or parole. Four other Circuits have rejected this interpretation of the statute, and we agree that the Ninth Circuit's interpretation is wrong. We therefore reverse the judgments below and remand for further proceedings.

I

A

Under federal immigration law, aliens present in this country may be removed if they fall "within one or more ... classes of deportable aliens." 8 U.S.C. § 1227(a). In these cases, we focus on two provisions governing the arrest, detention, and release of aliens who are believed to be subject to removal.

The first provision, § 1226(a),¹ applies to most such aliens, and it sets out the general rule regarding their arrest and detention pending a decision on removal. Section 1226(a) contains two sentences, one dealing with taking an alien into custody and one dealing with detention. The first sentence empowers the Secretary of Homeland Security² to arrest and hold an alien "pending a decision on whether the alien is to be removed from the United States." The second sentence generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. If the alien is detained, he may seek review of his detention by an officer at the Department of Homeland Security and then by an immigration judge (both exercising power delegated by the Secretary), see 8 CFR §§ 236.1(c)(8) and (d)(1), 1003.19, 1236.1(d)(1) (2018) ; and the alien may secure his release if he can convince the officer or immigration judge that he poses no flight risk and no danger to the community. See §§ 1003.19(a), 1236.1(d) ; Matter of Guerra , 24 I. & N. Dec. 37 (BIA 2006). But while 8 U.S.C. § 1226(a) generally permits an alien to seek release in this way, that provision's sentence on release states that all this is subject to an exception that is set out in § 1226(c).

Section 1226(c) was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and it sprang from a "concer[n] that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers." Demore v. Kim , 538 U.S. 510, 513, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). To address this problem, Congress mandated that aliens who were thought to pose a heightened risk be arrested and detained without a chance to apply for release on bond or parole.

Section 1226(c) consists of two paragraphs, one on the decision to take an alien into "[c]ustody" and another on the alien's subsequent "[r]elease."³ The first paragraph (on custody) sets out four categories of covered aliens, namely, those who are inadmissible or deportable on specified grounds. It then provides that the Secretary must take any alien falling into one of these categories "into custody" "when the alien is released" from criminal custody.

The second paragraph (on release from immigration custody) states that "an alien described in paragraph (1)" may be released "only if [the Secretary] decides" that release is "necessary to provide protection" for witnesses or others cooperating with a criminal investigation, or their relatives or associates. That exception is not implicated in the present cases.

The categories of predicates for mandatory detention identified in subparagraphs (A)–(D) generally involve the commission of crimes. As will become relevant to our analysis, however, some who satisfy subparagraph (D)—e.g. , close relatives of terrorists and those who are thought likely to engage in terrorist activity, see 8 U.S.C. § 1182(a)(3)(B)(i)(IX) —may never have been charged with any crime in this country.⁴ Still, since the vast majority of mandatory-detention cases do involve convictions, we follow the heading of subsection (c), as well as our cases and the courts below, in referring to aliens who satisfy subparagraphs (A)–(D) collectively as "criminal aliens."

The Board of Immigration Appeals has held that subsection (c)(2), which requires the detention of aliens "described in" subsection (c)(1), applies to all aliens who fall within subparagraphs (A)–(D), whether or not they were arrested immediately "when [they were] released" from criminal custody. Matter of Rojas , 23 I. & N. Dec. 117 (BIA 2001) (en banc).

B

Respondents in the two cases before us are aliens who were detained under § 1226(c)(2)'s mandatory-detention requirement—and thus denied a bond hearing—pending a decision on their removal. See Preap v. Johnson , 831 F.3d 1193 (CA9 2016) ; Khoury v. Asher , 667 Fed. Appx. 966 (CA9 2016). Though all respondents had been convicted of criminal offenses covered in §§ 1226(c)(1)(A)–(D), none were arrested by immigration officials immediately after their release from criminal custody. Indeed, some were not arrested until several years later.

Respondent Mony Preap, the lead plaintiff in the case that bears his name, is a lawful permanent resident with two drug convictions that qualify him for mandatory detention under § 1226(c). Though he was released from criminal custody in 2006, immigration officials did not detain him until 2013, when he was released from jail after an arrest for another offense. His co-plaintiffs Juan Lozano Magdaleno and Eduardo Vega Padilla were taken into immigration detention, respectively, 5 and 11 years after their release from custody for a § 1226(c) predicate offense. Preap, Magdaleno, and Padilla filed habeas petitions and a class-action complaint alleging that because they were not arrested "immediately" after release from criminal custody, they are exempt from mandatory detention under § 1226(c) and are entitled to a bond hearing to determine if they should be released pending a decision on their status.

Although the named plaintiffs in Preap were not taken into custody on immigration grounds until years after their release from criminal custody, the District Court certified a broad class comprising all aliens in California " ‘who are or will be subjected to mandatory detention under 8 U.S.C. section 1226(c) and who were not or will not have been taken into custody by the government immediately upon their release from criminal custody for a [s]ection 1226(c)(1) offense.’ " 831 F.3d at 1198 (emphasis added). The District Court granted a preliminary injunction against the mandatory detention of the members of this class, holding that criminal aliens are exempt from mandatory detention under § 1226(c) (and are thus entitled to a bond hearing) unless they are arrested " ‘when [they are] released,’ and no later." Preap v. Johnson , 303 F.R.D. 566, 577 (N.D. Cal. 2014) (quoting 8 U.S.C. § 1226(c)(1) ). The Court of Appeals for the Ninth Circuit affirmed.

Khoury , the other case now before us, involves habeas petitions and a class-action complaint filed in the Western District of Washington. The District Court certified a class comprising all aliens in that district "who were subjected to mandatory detention under 8 U.S.C. § 1226(c) even though they were not detained immediately...