Supreme Court expands ICE detention power

In a split decision released today, the U.S. Supreme Court adopted a broad reading of federal statutes authorizing ICE to detain people. The Court’s reasoning in Nielsen v. Preap, No. 16-1363, slip op. (U.S. March 19, 2019), requires ICE to arrest people with certain criminal histories and keep them locked up while immigration judges review their right to remain in the United States. Federal law, five justices concluded, does not exempt people who have been living in the community, even if they have done so for years without incident since release from criminal custody.

The Court’s opinion adds to a string of decisions embracing a sweeping view of ICE’s power to confine migrants. As recently as last summer, the Court announced that ICE can detain many migrants without ever allowing them to appear before an immigration judge to request release on bond. Justice Alito wrote the majority opinion in last summer’s decision.

This week, Justice Alito again led the Court’s majority. In Preap, the Court considered whether ICE could arrest migrants who have been released from the criminal custody that justifies ICE’s detention, sometimes for years. The detention law at issue, INA § 236, 8 U.S.C. § 1226, consists of two parts. Section (a) grants ICE discretion to detain almost anyone who is potentially removable. Section (c) adds that ICE “shall take into custody” any migrant who is potentially removable for four groups of criminal activity “when the alien is released” from criminal confinement.

Sometimes there is a gap between release from criminal confinement and entry into an ICE detention center. Mony Preap, for example, lived in the community for seven years. He came onto ICE’s radar only when he was arrested for an offense that everyone agrees doesn’t trigger mandatory immigration detention. ICE arrested another plaintiff, Eduardo Vega Padilla, eleven years after his release from criminal custody for the offense that triggers mandatory detention.

Preap and the other migrants, represented by the ACLU, argued that the “when released” language limits 236(c)’s mandatory detention requirement. In their view, 236(c) applies only to people who are potentially removable for one of the four groups of criminal activity if they are taken into ICE custody immediately upon release from criminal custody described in one of those four groups. The government argued that immediate transfer of custody from state or local officials to ICE isn’t required. In the view of DHS, 236(c) requires ICE to lock up anyone who is potentially removable for one of the four criminal activity groups no matter when they show up on ICE’s radar—so long as it is sometime after release from criminal custody.

Reversing the Ninth Circuit, which had sided with Mr. Preap, the Supreme Court sided with the government. To reach its decision, the majority dove deep into rules of grammar. “The critical parts of the provision consist of a verb (‘shall take’), an adverbial clause (‘when…released’), a noun (‘alien’), and a series of adjectival clauses (‘who…is inadmissible,’ ‘who…is deportable,’ etc.),” Justice Alito explained on behalf of the five-vote majority. Despite Alito’s detailed explanation of grammar, “our interpretation is not dependent on a rule of grammar,” he added in the next paragraph.

Instead, the majority identified what, in its view, Congress intended to convey with the words it added to federal immigration law. Through the mandatory-detention provision, “Congress…adopted a special rule for aliens who have committed certain dangerous crimes and those who have connections to terrorism,” Alito wrote. Later, the majority acknowledged that many people who fall into the mandatory-detention law haven’t done anything that most people would consider dangerous. In 2012, for example, the Court concluded that Akio Kawashima and Fusako Kawashima, a restaurant-owning couple, were both convicted of aggravated felonies for filing false tax returns.

Despite that flaw in the Court’s description, the majority pushed forward with its interpretation of the detention law to clarify that mandatory-detention provision’s “when released” language creates a temporal relationship between confinement for criminal purposes and confinement for immigration purposes, but it doesn’t require an immediate transfer of custody. “It would be ridiculous to read paragraph (1) [of INA § 236(c), 8 U.S.C. § 1226(c)] as saying: ‘The Secretary must arrest, upon their release from jail, a particular subset of criminal aliens. Which ones? Only those who are arrested upon their release from jail.’”

The majority fails to acknowledge that what it deems “downright incoherent” might be perfectly rational. For example, Congress might have decided that people ought to be detained unless they prove themselves capable of living freely without endangering others. And what better proof of being able to live peaceably outside detention than time spent living peaceably outside detention? It doesn’t seem ludicrous to me that Congress would treat people differently based on their proven ability to avoid endangering others.

Today’s decision is likely to have a substantial impact on long-time lawful permanent residents for a couple of reasons. First, people who have been in the United States longer have had more time to develop the kinds of deep roots that incentivize fighting deportation. Second, those ties to the United States give them the money and social ties that many people need to wage an uphill battle to avoid deportation based on a criminal history. On the flip side, today’s decision is unlikely to have a significant impact on unauthorized migrants since they are often removable without regard to a criminal history.

Two caveats are worth mentioning. First, the Court noted that it didn’t address the constitutionality of 236(c), the mandatory-detention statute. “While respondents might have raised a head-on constitutional challenge to § 1226(c), they did not,” the Court explained. Second, the Court’s decision is heavily split. Though the reasoning described above received five votes, several sections saw the Court’s conservative majority part ways. Justices Thomas and Gorsuch would have adopted a more stringent view of migrants’ ability to challenge detention. In their view, Congress doesn’t even let them into court to complain about situations like this.