On October 10, 2018, the Supreme Court heard the case of Nielsen v. Preap. At issue is whether an alien is subject to mandatory detention under section 236(c) of the Immigration and Nationality Act (INA), notwithstanding the fact that the alien was not immediately taken into custody after being released from criminal custody. The fact that the issue has gotten this far points out how finely amenable courts can parse the INA, as well as the difficulties that attach to the application of amendments to that act in the absence of robust legislative history.
The provision in question, section 236(c) states:
Detention of Criminal Aliens.-
(1) Custody.-The Attorney General shall take into custody any alien who-
(A) is inadmissible by reason of having committed any offense covered in section 212(a)(2),
(B) is deportable by reason of having committed any offense covered in section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D),
(C) is deportable under section 237(a)(2)(A)(i) on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 212(a)(3)(B) or deportable under section 237(a)(4)(B),
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
(2) Release.-The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of title 18, United States Code, that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien. [Emphasis added.]
The sections of the INA referenced therein relate to the criminal and terrorist grounds of admissibility and deportability under the act. This language was added to the INA by section 303 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The critical language at issue in Preap is highlighted above.
In 2001, in Matter of Rojas, the Board of Immigration Appeals (BIA) held that an alien removable under one of the referenced sections within section 236(c)(1)(A) through (D) is subject to mandatory detention "even if the alien is not immediately taken into custody by the Immigration and Naturalization Service when released from incarceration." The BIA reasoned:
There is no connection in the Act between the timing of an alien's release from criminal incarceration, the assumption of custody over the alien by the Service, and the applicability of any of the criminal charges of removability. Furthermore, the Act does not tie an alien's eligibility for any form of relief from removal to the timing of the alien's release from incarceration and the assumption of custody by the Service. In other words, the "when released" issue is irrelevant for all other immigration purposes. The changes made by the IIRIRA to expedite removal are not limited to aliens coming into Service custody immediately upon release from criminal incarceration. Instead, the amendments made by the IIRIRA cover criminal aliens regardless of when they were released from criminal confinement and regardless of whether they had been living within the community for years after their release.
We understand, in this regard, that Congress was frustrated with the ability of aliens, and particularly criminal aliens, to avoid deportation if they were not actually in Service custody when their proceedings were completed. ... The statute does direct the Attorney General to take custody of aliens immediately upon their release from criminal confinement. But Congress was not simply concerned with detaining and removing aliens coming directly out of criminal custody; it was concerned with detaining and removing all criminal aliens.
Most logically, the BIA concluded:
It would therefore be inconsistent with our understanding of the statutory design to construe section 236(c) of the Act in a way that permits the release of some criminal aliens, yet mandates the detention of others convicted of the same crimes, based on whether there is a delay between their release from criminal custody and their apprehension by the Service.
Notwithstanding this sensible interpretation of section 236(c), the Court of Appeals for the Ninth Circuit disagreed. In Preap vs. Johnson, the circuit court held that as read unambiguously, under this provision the Department of Homeland Security (DHS) could only detain an alien without bond that entered into "immigration custody promptly upon their release from the triggering criminal custody," and not long thereafter.
In reaching this conclusion, the Ninth Circuit rejected contrary findings by the Second Circuit, Tenth Circuit, Third Circuit, and Fourth Circuit, each of which ruled that a gap in custody was irrelevant to the application of the mandatory detention provisions in section 236(c) of the INA.
The Department of Justice (DOJ) did not pull any punches in its petition for writ of certiorari from the Ninth Circuit's decision and from that circuit's companion unpublished decision in Khoury v. Asher. It argued that in addition to creating a "lopsided circuit" split, the Ninth Circuit's decision was "wrong".
Specifically, it argued, that section 236(c)(2) of the INA prevents DHS from releasing any alien who is described in section 236(c)(1), and that section 236(c)(1) of the INA simply "describes aliens based on their criminal history." In particular, DOJ argued that section 236(c)(1) provides that DHS has to "take into custody 'any alien who' is inadmissible or deportable because of certain criminal offenses or terrorist conduct":
Therefore, "any alien who" is removable because of a predicate offense is subject to mandatory detention. The further phrase "when the alien is released" in paragraph (1) simply identifies when the Secretary's duty to take the alien into custody is triggered. At most, [section 236(c) of the INA] is ambiguous in this respect, and the BIA has held that a gap between criminal and immigration custody is irrelevant.
DOJ's interpretation by analogy of section 236(c) of the INA is instructive on this point:
A practical example illustrates the structural point. If somebody gave you a two-paragraph shopping list saying "(1) Pick up milk, eggs, and cheese when the groceries are available for sale at the store"; and "(2) refrigerate the groceries described in paragraph (1)," no sensible person would believe that, if you did not pick up the milk, eggs, or cheese until long after the store opened, you could leave them out on the counter rather than put them in the refrigerator. Here, Congress's use of lettered subparagraphs to enumerate which criminals and terrorists the Secretary should take into custody makes the statute somewhat more dense, but it does not alter this basic structural point.
Interestingly, DOJ argued that certain sanctuary policies would make it difficult for DHS to comply with the requirements set by the Ninth Circuit:
Indeed, gaps in custody are often caused by reasons outside DHS's control. To facilitate its efforts to take criminal aliens into custody, U.S. Immigration and Customs Enforcement (ICE) often sends requests to state or local jurisdictions to notify it in advance when a particular criminal alien will be released from custody, and often sends requests that the custodian hold the alien in custody for up to 48 hours to enable ICE officers to effectuate an arrest. See 8 C.F.R. 287.7(a) and (d). State and local jurisdictions do not always cooperate with those requests, however. For example, ICE reported in fiscal year 2016 that its enforcement and removal officers "documented a total of 21,205 declined detainers in 567 counties in 48 states including the District of Columbia between January 1, 2014, and September 30, 2016." ... "Declined detainers result in convicted criminals being released back into U.S. communities," thus creating gaps in custody "notwithstanding ICE's requests for transfer of those individuals." ... The Ninth Circuit's interpretation thus would frustrate DHS's ability to remove deportable criminal aliens from the United States, in contravention of Congress's basic purpose.
With due respect to the Ninth Circuit, its interpretation does not make any sense. It is unclear, from a law-enforcement or public-safety standpoint, what difference it makes whether DHS apprehends an alien removable under one of the referenced provisions the moment that alien is released from criminal custody, a block away from the jailhouse door, two hours after release, or 10 years later. Rather, the most logical reading of section 236(c) of the INA is that Congress did not intend criminal aliens to get a break from serving their criminal sentences simply because they were aliens and could be deported. The most rational direction to take away from that provision is that DHS should not take custody of any alien in the middle of that alien's sentence, but await the completion of that sentence and thereafter detain the alien.
Moreover, no conviction is necessary for an alien to be removable under certain of the terrorism grounds of inadmissibility under section 212(a)(3)(B) of the INA or of removability under section 237(a)(4)(B) of the INA. No one could seriously argue, however, that Congress did not intend that such aliens be subject to mandatory detention. But that would be the practical effect of the Ninth Circuit's decision for an alien terrorist without a conviction.
One reason why this is still in question after 22 years is the fact that, as DOJ alludes to in its petition, the language in question could be more clear. Having drafted legislative language, however, I can state that it is often difficult to write a provision that could not be misinterpreted in some way. Moreover, the process by which legislative language is agreed to (particularly in a massive piece of legislation like IIRIRA) can leave some lingering ambiguity.
Congress could have avoided many of these issues by providing a more robust legislative history. For example, the REAL ID Act of 2005 contains a comprehensive committee report that plainly and dispositively explains Congress' intent for each of the provisions therein. That said, as a participant in the drafting of that report, it is so comprehensive and explicit because of Congress' experience with the courts of appeals' mincing of IIRIRA.
Is unclear when the Supreme Court will issue its decision in that matter, but I will update this post at that point.