SCOTUS Opinion: Court Rejects Narrow Reading Of Immigration Detention Statute

Federal immigration law provides that certain criminal aliens may be detained by the Secretary of the Department of Homeland Security and not released until a determination on deportation is made. The statute in question, 8 U.S.C. § 1226(c)(1), directs the Secretary to arrest the alien “when the alien is released” from jail, and Section 1226(c)(2) mandates that the Secretary keep such aliens in detention, denying any bond hearing, until pending a removal determination. In Nielsen v. Preap, the aliens in question were arrested years after release from jail. The Ninth Circuit, splitting from its sister circuits, held that the delay rendered Section 1226(c)(1) inapplicable, and thus the aliens were entitled to bond hearings. The Court, in a fractured majority opinion by Justice Alito, reversed. Five justices concluded that there was no requirement that the aliens be arrested immediately after release from jail in order for Section 1226(c)(2)’s mandate to apply. However, only three of those justices agreed that the Court had jurisdiction to resolve the issue—Justices Thomas and Gorsuch argued in a concurrence that the Court had no jurisdiction to rule until final orders of removal had been entered for each alien, and further doubted that the aliens in this case were properly a class subject to Article III standing. Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented, arguing that the statute’s language, structure, and use of canons of construction required that an alien must be arrested immediately upon release from jail for Section 1226(c)(2)’s mandate to apply.