Justices Parse Meaning of ‘When’ in Immigration Case

WASHINGTON (CN) - The Supreme Court grappled Wednesday with how quickly the government must pick up immigrants following their release from prison if it wants to initiate deportation proceedings, during which time these individuals would be held without bond.

As the justices took varying approaches to untangling the requirements of federal immigration law, Justice Neil Gorsuch even invoked the lessons of his fifth-grade grammar teacher.

The intense scrutiny of a two-paragraph section of the Immigration and Nationality Act came to the court via a pair of class actions brought by immigrants who committed crimes that triggered removal proceedings.

Lead plaintiffs Mony Preap and Bassam Yusuf Khoury each committed such crimes, but the federal government did not immediately take them into custody upon their release from prison.

Indeed it was years before immigration officers returned to pick them up, citing a federal authorization to detain immigrants convicted of certain crimes pending the outcome of removal proceedings.

The statute begins by detailing the types of crimes an immigrant must commit to be subject to mandatory detention following their release from prison and then says the government must take them into custody "when the alien is released."

Arguing for the United States this morning, Assistant to the Solicitor General Zachary Tripp said Congress did not use the word "when" to mean the exact instant immigrants cross the threshold of the prison door at the end of their sentences.

Tripp said there are numerous reasons the government might not be able to take people into custody as soon as they are released, including uncooperative local and state jurisdictions and the work required to determine whether the underlying crime qualifies for removal proceedings.

He argued Congress certainly could have included a time requirement in the law if it wanted to, but it instead remained silent on the issue, signaling the government's authority to pick up immigrants released from prison has no time limitation. He also said Congress' goal in the law was to ensure people who commit certain crimes remain in custody.

"Congress looked at this issue, they worked with it for years and years and years, and I think basically at the end of the day Congress' answer was enough is enough," Tripp said. "If you're an alien, you come here, you commit one of these crimes, you've effectively forfeited whatever right you have to remain at large in the community."

Justice Stephen Breyer found it difficult, however, to believe Congress could have wanted the government picking up people long after they had returned from prison to their communities.

"So you think a person 50 years later, who is on his death bed, after stealing some bus transfers,” Breyer said, “that this paragraph says the attorney general shall [detain] him and hold him without bail, even though in this country a triple ax murderer is given a hearing?"

Breyer also noted the government could still detain immigrants who commit certain crimes without relying on this specific statute, and all it would lose in doing so is the right to hold them without the possibility of release on bond.

Cecillia Wang, an attorney for Preap, told the justices Congress chose its words carefully when it required the government to take immigrants into custody "when" they are released. She argued any delay longer than 24 hours would be unreasonable.

"I think, your honor, that Congress in saying 'when' meant what 'when' means in the common sense - within a reasonable time of the event happening,'" Wang said.

Wang urged the justices to side with the Ninth Circuit and say the government must take immigrants into custody within a "reasonable degree of immediacy" in order to hold them during their removal proceedings.

But some justices, including Justice Samuel Alito and Chief Justice John Roberts, struggled with what that would mean in practical terms.

"Immediately?" Alito asked. "So as soon as the person walks out of the door of the prison or the jail, if ICE doesn't take the person into custody at that point, that's the end of it?"

Meanwhile, Justice Brett Kavanaugh questioned whether the court would be reading too much into the law if it found in it a time limit that Congress did not explicitly endorse.

"And so when you combine those two points, Congress knew it 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," Kavanaugh said.

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