Case No. 16-1363 | 9th Cir.
The Immigration and Nationality Act reads in relevant part that “[t]he Attorney General shall take into custody any alien who [meets the criteria listed in (A)–(D)] 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.” 8 U.S.C. § 1226(c) (2018).
One group of the respondents in Nielsen v. Preap filed a class action for habeas relief in the Northern District of California. Another group of the respondents similarly filed in the Western District of Washington. All are legal permanent residents whom immigration authorities took into custody, sometimes years after they had served out their sentences for criminal offenses that could lead to removal.
Thus, the issue before the Court is whether noncitizens who have been released from criminal custody become exempt from mandatory detention under 8 U.S.C. § 1226(c) if, following their release from criminal custody, the Department of Homeland Security does not immediately take them into immigration custody.
The district courts in California and Washington both certified the class and held “that Section 1226(c) unambiguously requires that individuals be detained immediately upon release from custody.” Preap v. Johnson, 303 F.R.D. 566, 577–88 (N.D. Cal. 2014); see also Khoury v. Asher, 3 F. Supp. 3d 877, 883–92 (W.D. Wash. 2014). The Ninth Circuit affirmed both decisions, furthering the circuit split regarding whether immigration detention under § 1226(c) must occur promptly after the noncitizen’s release from criminal custody.
The petitioners argue that that the Board of Immigration Appeals (“BIA”) in In Re Rojas, 23 I. & N. Dec. 117 (BIA 2001) (en banc), interpreted the language in question to identify “when the Secretary’s duty . . . is triggered” and not as limiting paragraph (2)’s bar on releasing detained individuals “during their removal proceedings.” Brief for the Petitioners at 4, Nielsen v. Preap, No. 16-1363 (U.S. filed June 1, 2018). The petitioners argue that this is consistent with Congress’s purpose to “detain[] and remov[e] all criminal aliens.” Brief for the Petitioners at 23 (quoting Rojas, 23 I. & N. Dec. at 122). Petitioners further argue that the Court should defer to the BIA’s interpretation pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
The respondents contend that the Ninth Circuit correctly interpreted § 1226(c), arguing that the conclusion reached below “is supported by the purpose of the statute” as well as the statute’s “plain meaning and structure.” Brief for Respondents at 11–12, Nielsen v. Preap, No. 12-1336 (U.S. filed Aug. 6, 2018).
The Court’s decision in this case should resolve the circuit split. Furthermore, because both sides claim their interpretation follows the plain language and construction of the statute, the Court’s decision may clarify the standard for statutory construction in similar instances where the statute at issue does not specify a timeframe for government action.