WASHINGTON, DC – Criminal aliens are not shielded from a federal mandatory- detention law when federal agents do not arrest them immediately upon release from state prisons, according to a 5-4 Supreme Court decision on Wednesday, rejecting arguments from the ACLU and left-wing politicians.
The case involves a provision of federal law requiring federal detention of certain classes of aliens while the government seeks to deport them, both legal and illegal. The U.S. Court of Appeals for the Ninth Circuit interpreted the law in a way that severely limited the U.S. Department of Homeland Security’s authority to detain those aliens while deportation proceedings are underway.
“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,” Justice Samuel Alito began for the Court, citing 8 U.S.C. § 1226(a), which applies to most noncitizens. “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,” the Court continued, pivoting to the federal law at issue in this case. Under “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.”
Alito explained that § 1226(a) “applies to most … aliens, and it sets out the general rule regarding their arrest and detention pending a decision on removal.” This general section “generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole.”
“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),” he continued. “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.”
“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,” the Court explained. “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.”
Alito noted that although the plaintiffs in these cases were taken into custody years after their prison time was finished, the federal trial courts in California and Western Washington “certified a broad class comprising all aliens in who are or will be subjected to mandatory detention … and who were not … taken into custody by the government immediately upon their release from criminal custody.”
“Paragraph (1) provides that the Secretary ‘shall take’ into custody any ‘alien’ having certain characteristics,” Alito reasoned, diving into a very dense and detailed examination of the statute’s text, “and that the Secretary must do this ‘when the alien is released’ from criminal custody.”
Rejecting the ACLU’s argument that this provision means that the government has authority to detain the alien only if agents arrest him immediately upon release from prison, Alito declared that such an interpretation “would be downright incoherent.”
Not only would such a reading be inconsistent with the statute, it would also violate rules of basic grammar. The majority quoted a scholarly legal work from their recently departed colleague, quoting Justice Antonin Scalia, where he wrote that “rules of grammar govern” statutory interpretation “unless they contradict legislative intent or purpose.” In this case, they all point in the same direction.
Alito went on to quote the Court’s precedents to cast aside the idea that § 1226(c)’s language allows detention only if agents arrest the alien immediately upon release, saying, “as we have held time and again, an official’s crucial duties are better carried out late than never. Or more precisely, a statutory rule that officials ‘shall’ act within a specified time does not by itself preclude action later.”
“This principle for interpreting time limits on statutory mandates was a fixture of the legal backdrop when Congress enacted § 1226(c),” he noted. “Congress was presumably aware that we do not readily infer congressional intent to limit an agency’s power to get a mandatory job done merely from a specification to act by a certain time.”
“Especially hard to swallow is respondents’ insistence that for an alien to be subject to mandatory detention under § 1226(c), the alien must be arrested on the day he walks out of jail (though respondents allow that it need not be at the jailhouse door—the parking lot or bus stop would do),” Alito continued. “Assessing the situation in realistic and practical terms, it is inevitable that respondents’ unsparing deadline will often be missed for reasons beyond the Federal Government’s control.”
Then the Court majority flagged sanctuary cities, in what may bode well for the ongoing legal challenges on that front: “To give just one example, state and local officials sometimes rebuff the Government’s request that they give notice when a criminal alien will be released.”
Alito also noted that another part of § 1226(c) mandates holding persons with terrorist ties who have never been put in state prison, and thus they would not trigger this mandatory-detention power at all if the Ninth Circuit’s interpretation were correct.
“Under the Court of Appeals’ reading, the mandatory-detention scheme would be gentler on terrorists than it is on garden-variety offenders,” he reasoned. “Yet this subparagraph covers the very sort of aliens for which Congress was most likely to have wanted to require mandatory detention.”
The same would be true for “aliens who necessarily escape conviction: those for whom immunity from criminal jurisdiction was exercised,” he continued.
In the end, a five-justice majority accepted the Trump’s adiministration’s arguments, reversing the Ninth Circuit.
Justice Brett Kavanaugh wrote a concurring opinion, fully joining Alito’s opinion, but also writing separately to clarify the scope of the Court’s decision, in one of his first significant standalone opinions:
The sole question before us is narrow: whether, under § 1226, the Executive Branch’s mandatory duty to detain a particular noncitizen when the noncitizen is released from criminal custody remains mandatory if the Executive Branch fails to immediately detain the noncitizen when the noncitizen is released from criminal custody ….
It would be odd, in my view, if the Act (1) mandated detention of particular noncitizens because the noncitizens posed such a serious risk of danger or flight that they must be detained during their removal proceedings, but (2) nonetheless allowed the noncitizens to remain free during their removal proceedings if the Executive Branch failed to immediately detain them upon their release from criminal custody.
Justice Clarence Thomas wrote an opinion concurring in part, joined by Justice Neil Gorsuch.
“I continue to believe that no court has jurisdiction to decide questions concerning the detention of aliens before final orders of removal have been entered,” Thomas wrote, citing several statutory provisions that he believed deprived federal judges of the authority to review these detention determinations.
Thomas then added that seven of the nine justices believed they did have jurisdiction, and with that being a decision of the Court, he and Gorsuch joined most of Alito’s opinion siding with the U.S. government.
Justice Stephen Breyer dissented, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.
Even the liberal justices rejected the ACLU’s argument that aliens go scot-free if they are not arrested within 24 hours, but argued that the arrest must take place within one year. They argued that if a criminal alien can evade federal agents for 13 months, then the mandatory-detention provision would not apply. Otherwise, they contended, § 1226(c) would likely be unconstitutional.
Alito and the Court majority rejected that contention, arguing that there was no time limit on how long Congress could authorize the government to hold an alien while their deportation case progressed.
The case is Nielsen v. Preap, No. 16-1363 in the Supreme Court of the United States.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.