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Supreme Court to hear another immigration imprisonment case

On the heels of its decision allowing prolonged confinement in an ICE detention center to continue, the U.S. Supreme Court decided to hear arguments in another case about the federal government’s practice or locking up migrants. Every day, the Department of Homeland Security detains roughly 34,000 individuals. At a cost of at least $126 per day per person, ICE spends more than $4 million daily to incarcerate.

In Nielsen v. Preap, No. 14-16326, the Court will decide whether ICE is required to detain migrants who have served their jail or prison time for a laundry list of crimes and have successfully resettled in the community. The federal government argues that Congress mandates their detention. In its petition to the Supreme Court, the government argued that INA § 236(c), 8 U.S.C. § 1226(c), mandates detention of anyone who has been convicted of just about all the crime-based grounds of removal. In the government’s view, almost everyone who is potentially removable from the United States because of a criminal conviction must be detained while an immigration judge decides whether he will in fact be removed.

As with Mony Preap, a refugee who fled to the United States to escape the Khmer Rouge and has been a lawful permanent resident since 1981, often potential removable based on criminal convictions involves minor offenses. Preap was convicted twice of misdemeanor possession of marijuana. Despite his crimes, an immigration judge granted him cancellation of removal which allows him to continue living and working in the United States. Another named plaintiff in the lower court’s decision, Juan Lozano Magdaleno, also a longtime lawful permanent resident, has a firearm possession conviction and a simple possession of marijuana conviction. Five years after he was released from the drug conviction, ICE picked him up and confined him pending removal proceedings. He was later released under the limits on prolonged detention recently overturned in Jennings v. Rodriguez, suggesting he spent at least six months in an ICE prison.

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In contrast to the position that the government advocates, the Ninth Circuit—plus numerous federal district courts—have concluded that detention is required only when ICE takes custody of migrants upon their release from criminal confinement. The court concluded that the “when released” clause is a temporal condition on mandatory custody that Congress imposed. As such, there is no wiggle room for interpretation. If ICE doesn’t take someone into custody “when released” from criminal confinement, then it has failed to implement 236(c).

Except for the Ninth Circuit, all the circuit courts to have decided the issue agree with the government’s position, though they have not agreed on the reasoning. The First Circuit split evenly. The Supreme Court will now weigh in on the breadth of detention power that Congress has granted to ICE. Given the size of ICE’s detention system, this is an enormously important prospect. The country’s immigration detention population grew to unprecedented heights under President Obama. Those record-setting years haven’t stopped continued growth. Trump administration officials have expressed a desire to increase the number of people locked up pending immigration court proceedings.

Under Presidents Obama and Trump, government officials repeatedly claim immigration detention protects the public and ensures that migrants appear to removal hearings in immigration court. In Demore v. Kim, 538 U.S. 510, 513 (2003), the Supreme Court embraced these twin rationales, explaining that Congress enacted § 236(c) because it was “justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers.” The government’s petition for Supreme Court review reiterates this view. It claims, for example, that “[t]he Ninth Circuit’s interpretation…ensures that many criminal aliens…will be given bond hearings, and a significant portion of those will be released, thus creating the very risk of recidivism and flight that Section 1226(c) [INA § 236(c)] would otherwise foreclose.”

Both claims are largely red herrings. A wealth of evidence indicates that migrants commit relatively little crime, especially when compared to people born inside the United States. Moreover, most people do appear for their court dates and Congress has at its disposal options to increase attendance that are less invasive and less costly than detention. Lastly, the Ninth Circuit’s interpretation does not mean that migrants cannot be detained. It only means that they are given the opportunity to ask an immigration judge for their release. As it has done for many years, though, the federal government takes the view that if given the chance, immigration judges’ decisions will endanger the public and subvert the immigration courts’ operations.

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Posted by César on March 20, 2018 on 5:28 am 4 Comments
Filed Under: alternatives to detention, bond, imprisonment, mandatory detention, U.S. Supreme Court

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  1. People Law | Wednesday round-up says:
    March 21, 2018 at 5:04 am

    […] Crimmigration, Cesar Hernandez looks at Monday’s cert grant in Nielsen v. Preap, which asks whether a […]

    Reply
  2. Marshall Geisser Law | Wednesday round-up says:
    March 21, 2018 at 5:06 am

    […] Crimmigration, Cesar Hernandez looks at Monday’s cert grant in Nielsen v. Preap, which asks whether a […]

    Reply
  3. Lawyers Planet | Wednesday round-up says:
    March 21, 2018 at 5:19 am

    […] Crimmigration, Cesar Hernandez looks at Monday’s cert grant in Nielsen v. Preap, which asks whether a […]

    Reply
  4. A California mother and a Kansas dad reunited with their families | Immigration news says:
    March 22, 2018 at 5:20 am

    […] Supreme Court to hear another immigration imprisonment case (crImmigration blog, 3/20/18) In this blog post, attorney César Cuauhtémoc García Hernández explains the case granted certiorari by the Supreme Court this week. […]

    Reply

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César’s Recent Media

April 18: Quoted talking about ICE's efforts to conceal contents of training manuals used by its largest division, Homeland Security Investigations Read article here]

April 12: Discussed legal limits on deploying troops inside United States and the memory of Esequiel Hernández, Jr., teen shot by Marines in 1997 [Read article here (in Spanish)]

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March 29: Quoted in article about Fourth Amendment and ICE attempts to enter homes [Read article here]

March 16: Quoted discussing shifts between Obama and Trump administration immigration policing practices [Listen here]

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February 5: Quoted in article about Indiana death in drunk driving incident allegedly caused by unauthorized migrant [Read article here]

January 31: I'm quoted in San Francisco Chronicle about ICE's policy of arresting people in and near courthouses [Read article here]

January 18: I talked to CityLab about symbolic value of ICE raids on 7-11 stores [Read article here]

January 8: I'm quoted in Governing talking about ICE head's threats to imprison elected officials who support policies limiting cooperation with ICE [Read article here]

January 5: I'm quoted in article about San Antonio Police Department decision to prosecute alleged migrant smuggler under state law rather than hand over to ICE for federal prosecution [Read article here]

January 3: Quoted in article about ICE chief's threats to imprison elected officials who support migrant-friendly policies [Read article here]

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December 30: I'm quoted in The Atlantic discussing the special impact crimmigration policies have on black migrants [Read article here]

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December 20: Interviewed in Philadelphia NPR affiliate WHYY story about ICE arrests in area courthouses [Listen to story here]

December 12: My three-part white paper series on immigration detention published by Latino Community Foundation of Colorado [Read articles on adults, children and families, and vulnerable populations]

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