High Court Takes Up New Immigrant Bond Challenge

WASHINGTON (CN) – The Supreme Court agreed Monday to decide whether detained immigrants should get a bond hearing if the U.S. government delayed taking them into custody after they committed a criminal offense.

Language from the mandatory-detention provision of the Immigration and Naturalization Act inspired the underlying challenge. This law requires immigration authorities to detain aliens “when [they are] released from criminal custody, but federal appeals courts have come to different conclusions over the years about the meaning of the phrase “when [they are] released.”

Though the statute subjects so-called criminal aliens to detention without bond, the case taken up by the Supreme Court on Monday asks whether an alien must be detained without bond even if he has resettled into the community after release from criminal custody.

The lead plaintiff in the case is Mony Preap, a lawful permanent resident of the United States who was born in a refugee camp after his family fled Cambodia’s Khmer Rouge.

When the U.S. government took him into immigration detention, Preap had just served a short sentence for simple battery, but this is not one of the classes of offenses covered by the INA’s mandatory-detention scheme.

Rather Preap was subject to detention because of offenses committed years earlier — in 2006, Preap served time for two misdemeanor convictions for possession of marijuana.

After being held without a bond hearing, Preap was granted cancellation of removal and released from immigration custody.

He filed suit in California with two other lawful permanent residents subjected to similar holds, Eduardo Vega Padilla and Juan Lozano Magdaleno.

In addition to certifying them as a class, the lower court issued an injunction that required the government to provide similarly situated persons with bond hearings.

The Department of Homeland Security appealed to the U.S. Supreme Court after the Ninth Circuit affirmed in August 2016.

Michael Tan, staff attorney with the ACLU’s Immigrants’ Rights Project, emphasized the importance of their challenge.

“Bond hearings are necessary to prevent pointless and arbitrary detention,” Tan said in a statement. “While the Supreme Court’s decision to review this case is unsurprising given lower courts’ opposing rulings, there is no reason or authorization for the government to refuse to provide bond hearings to individuals like the class members in this case.”

Though the high court took up the case without comment Monday, as is its custom, the Ninth Circuit’s ruling noted a circuit split.

Though four out of five courts had sided with the government before the Ninth Circuit, “there is no consensus in the reasoning of these courts,” U.S. Circuit Judge Jacqueline Nguyen wrote for a three-judge panel. “The Second and Tenth Circuits found that the phrase ‘an alien described in paragraph (1)’ was ambiguous, and thus deferred to the BIA’s interpretation of the phrase to mean ‘an alien described in subparagraphs (A)–(D) of paragraph (1).’ The Fourth Circuit has held that ‘when … released’ means any time after release, but it did so under a misconception that the BIA had so interpreted the phrase. Finally, the Second, Third, and Tenth Circuits applied the loss-of-authority rule, finding that the AG’s duty to detain criminal aliens under § 1226(c)(1) continues even if the government fails to comply with the ‘when … released’ condition.”

Nguyen’s ruling continues with the finding that most district courts to consider the question have rejected the government’s position.

In 2015, three of six judges sitting en banc in the First Circuit case Castaneda v. Souza did as well.

Agreeing with these First Circuit judges, Nguyen said “the statute unambiguously imposes mandatory detention without bond only on those aliens taken by the AG into immigration custody ‘when [they are] released’ from criminal custody.”

“And because Congress’s use of the word ‘when’ conveys immediacy, we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody,” Nguyen added.

Preap and the other aliens are represented by Michael King Thomas Tan with the American Civil Liberties Union Foundation.

U.S. Solicitor General Noel Francisco represents the government.

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