In another blow to the Ninth Circuit, on March 19, 2019, the Supreme Court ruled in Nielsen v. Preap that aliens removable under the grounds stated in section 236(c) of the Immigration and Nationality Act (INA) are subject to mandatory detention, even if they were not taken into immigration custody immediately after their release from criminal custody. In reaching this decision, the court held that the Ninth Circuit's interpretation of section 236(c) of the INA contradicted the plain text and structure of the statute.
The Supreme Court's decision consolidated two cases, Nielsen v. Preap and Wilcox v. Khoury. I detailed the Ninth Circuit's findings in Preap in a March 2018 post captioned "SCOTUS Takes Up Mandatory Detention Case, Not a good year for the Ninth Circuit":
Most recently, on March 19, 2018, the Court granted certiorari to review the Ninth Circuit's decision in Nielsen vs. Preap, the latest name for that circuit's decision in Preap v. Johnson. This case will give the Supreme Court the opportunity to restore order and common sense to the interpretation of the mandatory-detention requirements in section 236(c) of the Immigration and Nationality Act (INA), a provision that was also at issue in Rodriguez.
As noted, the question in Preap (as well as implicitly in Khoury, which relied on Preap) involved the proper interpretation of the mandatory-detention provisions in section 236(c) of the INA, which 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 sentence 2/ 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.]
As is clear from this provision, Congress intended that aliens who are removable under the grounds cited be detained and only be released when such release benefited the interests of the government in a criminal investgation.
Most of the provisions referenced in section 236(c)(1) of the INA are grounds of removal for aliens convicted of certain crimes, although section 212(a)(3)(B) of the INA and section 237(a)(4)(B) of the INA are grounds of removal related to "terrorist activities".
The operative language at issue is highlighted above. As the Ninth Circuit stated:
[W]e must decide whether an alien must be detained without bond even if he has resettled into the community after release from criminal custody. If the answer is no, then the alien may still be detained, but he may seek release in a bond hearing under [the general release provisions in section 236(a) of the INA] by showing that he poses neither a risk of flight nor a danger to the community.
The government had argued there that an alien who committed any crime enumerated under section 236(c)(1) of the INA was subject to mandatory detention even if the alien was not detained as soon as he or she was released from criminal custody.
The Ninth Circuit had admitted that five of its sister circuits had considered the issue, and that four had sided with the government's interpretation, albeit under different reasonings. It contended, however, that, "the government's position has been rejected by most district courts to consider the question and ... by three of six judges sitting en banc in the First Circuit." The Ninth Circuit agreed with that latter decision:
The statute unambiguously imposes mandatory detention without bond only on those aliens taken by the [Attorney General (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.
The respondents in Preap had been released from criminal custody and were only arrested by immigration authorities, as the Ninth Circuit termed it with respect to most of those cases, "[y]ears later". Preap was a lawful permanent resident (LPR), who had two 2006 misdemeanor convictions for possession of marijuana, but was only taken into immigration custody at some unspecified point after being released for a simple battery conviction, a crime not covered by the mandatory-detention provision. Padilla was an LPR with two drug convictions (from 1997 and 1999, respectively), as well as a 2002 conviction for owning a firearm with a prior felony conviction. He was taken into custody 11 years after finishing his sentence on that latter conviction. Magdaleno was an LPR with a 2000 conviction for owning a firearm with a prior (unspecified) felony conviction, as well as a 2000 conviction for simple possession of a controlled substance. He was taken into immigration custody more than five years after his release from a six-month sentence on that latter charge.
According to the 2014 order of Judge Richard Jones of the U.S. District Court for the Western District of Washington, respondent Khoury was a native of Palestine who had obtained LPR status in 1976. He was convicted on an unspecified drug charge, and "released from state custody in June 2011 after serving a 30-day sentence." He was ultimately arrested by ICE in April 2013. Respondent Rodriguez was an LPR since 1995 and a citizen of the Dominican Republic. He had served three years on a drug charge before he was released from incarceration in August 2010, and was ultimately arrested by ICE in April 2013. Respondent Carrera was a Mexican national who had "lived in the United States since 1998", before he "finished a 60-day sentence in February 2003." It is not clear whether he had any status in the United States, and he was arrested by ICE in April 2013.
Judge Jones' order was affirmed by the Ninth Circuit in an unpublished decision in August 2016. Relying on its decision in Preap, the Ninth Circuit held that section 236(c) of the INA "applies only to those criminal noncitizens who are detained promptly after their release from criminal custody, not to those detained long after."
Justice Alito, writing for the Supreme Court, rejected the Ninth Circuit's interpretation of that provision. Specifically, he concluded that mandatory detention under section 236(c) of the INA applies to any alien identified in subparagraphs 236(c)(1)(A) through (D) of the INA even if the Department of Homeland Security (DHS) "did not arrest them immediately 'when' they were 'released.'" In reaching this conclusion, he examined the text of section 236(c) of the INA in minute detail.
Specifically and initially, the Court rejected this interpretation by intricately parsing the grammar and logic of the provision in question. To understand the excruciating detail in which Justice Alito went, one need only review the following passage:
Respondents are right that only an alien "described in paragraph [236(c)(1) of the INA]" faces mandatory detention, but they are wrong about which aliens are "described in" paragraph (1). Paragraph (1) provides that the Secretary "shall take" into custody any "alien" having certain characteristics and that the Secretary must do this "when the alien is released" from criminal custody. The critical parts of the provision consist of a verb ("shall take"), an adverbial clause ("when ... released"), a noun ("alien"), and a series of adjectival clauses ("who ... is inadmissible," "who ... is deportable," etc.). As an initial matter, no one can deny that the adjectival clauses modify (and in that sense "describ[e]") the noun "alien" or that the adverbial clause "when ... released" modifies the verb "shall take." And since an adverb cannot modify a noun, the "when released" clause cannot modify "alien." Again, what modifies (and in that sense describe[s]") the noun "alien" are the adjectival clauses that appear in subparagraphs (A)–(D).
Respondents and the dissent contend that this grammatical point is not the end of the matter — that an adverb can "describe" a person even though it cannot modify the noun used to denote that person. ... But our interpretation is not dependent on a rule of grammar. The preliminary point about grammar merely complements what is critical, and indeed conclusive in these cases: the particular meaning of the term "described" as it appears in [paragraph 236(c)(2) of the INA]. As we [have] noted ... , the term "'describe' takes on different meanings in different contexts." A leading definition of the term is "to communicate verbally ... an account of salient identifying features," ... , and that is clearly the meaning of the term used in the phrase "an alien described in paragraph (1)." ... This is clear from the fact that the indisputable job of the "descri[ption] in paragraph (1)" is to "identif[y]" for the Secretary — to list the "salient ... features" by which she can pick out — which aliens she must arrest immediately "when [they are] released."
And here is the crucial point: The "when ... released" clause could not possibly describe aliens in that sense; it plays no role in identifying for the Secretary which aliens she must immediately arrest. If it did, the directive in [paragraph 236(c)(1) of the INA] would be nonsense. It would be ridiculous to read paragraph (1) as saying: "The Secretary must arrest, upon their release from jail, a particular subset of criminal aliens. Which ones? Only those who are arrested upon their release from jail." Since it is the Secretary's action that determines who is arrested upon release, "being arrested upon release" cannot be one of her criteria in figuring out whom to arrest. So it cannot "describe" — it cannot give the Secretary an "identifying featur[e]" of — the relevant class of aliens. On any other reading of paragraph (1), the command that paragraph (1) gives the Secretary would be downright incoherent.
As an aside, Justice Alito would have been a prized pupil of the Sisters of St. Francis, who forced me to diagram sentences ad nauseum in lower and middle school.
His logic did not rest there, however. Through reference to judicial precedent, he noted that the Ninth Circuit's decision would still be "wrong" because as the Court had "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 'preclud[e] action later.'" (Brackets in original.)
Still not done, he implicitly described the difficulties that the respondents' interpretation would pose given so-called "sanctuary policies":
Especially hard to swallow is respondents' insistence that for an alien to be subject to mandatory detention under [section 236(c) of the INA], 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). ... "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. ... 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. Indeed, over a span of less than three years (from January 2014 to September 2016), the Government recorded "a total of 21,205 declined [requests] in 567 counties in 48 states including the District of Columbia." ... Nor was such local resistance unheard of when Congress enacted the language of [section 236(c) of the INA] in 1996. ... Under these circumstances, it is hard to believe that Congress made the Secretary's mandatory-detention authority vanish at the stroke of midnight after an alien's release.
Finally, he noted the illogical nature of the Ninth Circuit's decision given the fact that criminal charges, arrest, and incarceration are not required in many cases covered by subparagraph 236(c)(1)(D) of the INA, "which covers, for example, aliens who are close relatives of terrorists and those who are believed likely to commit a terrorist act":
Under the Court of Appeals' reading, the mandatory-detention scheme would be gentler on terrorists than it is on garden-variety offenders. To see why, recall first that subparagraphs (A)–(C) cover aliens who are inadmissible or deportable based on the commission of certain criminal offenses, and there is no dispute that the statute authorizes their mandatory detention when they are released from criminal custody. And the crimes covered by these subparagraphs include, for example, any drug offense by an adult punishable by more than one year of imprisonment. ... But notice that aliens who fall within subparagraph (D), by contrast, may never have been arrested on criminal charges — which according to the court below would exempt them from mandatory detention. Yet this subparagraph covers the very sort of aliens for which Congress was most likely to have wanted to require mandatory detention — including those who are representatives of a terrorist group and those whom the Government has reasonable grounds to believe are likely to engage in terrorist activities. ... Thus, by the Court of Appeals' logic, Congress chose to spare terrorist aliens from the rigors of mandatory detention — a mercy withheld from almost all drug offenders and tax cheats. ... That result would be incongruous.
Justice Alito's decision did leave the door open to constitutional challenges of section 236(c) of the INA, but simply because those challenges were not raised by the respondents in that matter, as I explained to Law360. And, as I told that journal:
It's a plain statutory interpretation case ... In both Jennings [a Supreme Court decision that I described in a March 1, 2018 post] and Preap, the Ninth Circuit read requirements that Congress did not put into the law. It is regrettable that the Supreme Court has to explain the interpretations of these provisions.
In National Federation of Independent Business v. Sebelius (which involved the legality of portions of Obamacare), Chief Justice Roberts made clear:
Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
In section 236(c) of the INA, Congress made the decision that certain categories of aliens posed such a danger that they should be subject to mandatory detention pending completion of their removal proceedings. Even if federal judges disagree with that decision, they should follow Chief Justice Roberts' wise counsel, and not interpose themselves in issues in which they possess "neither expertise nor prerogative."
And perhaps seek remedial assistance from the Sisters of St. Francis — the "grammar hammers" of my youth.