A recent decision by the U.S. Supreme Court makes it easier for the U.S. government to arrest and detain without bond noncitizens who have been convicted of certain crimes.
The statute that was the focus of the Supreme Court’s decision in Nielsen v. Preap is Section 236(c) of the Immigration and Nationality Act, 8 U.S.C. Section 1226(c). The statute states that the federal government “shall take into custody” a noncitizen who has been convicted of certain crimes “when … released.”
Many U.S. district courts around the country, including the federal district court in Detroit, interpreted the “when … released” language to mean that U.S. officials needed to arrest and detain a noncitizen when he or she is released from custody as a result of the criminal conviction, or at least shortly after release from criminal custody. If there was a significant gap in time between the release of the noncitizen from criminal custody and the federal government’s arrest of the noncitizen, many federal district courts ordered the federal government to release the noncitizen, because of the government’s failure to arrest and detain the noncitizen “when … released.”
But the U.S. Supreme Court, by a 5-4 decision, concluded that the federal government may arrest and detain a noncitizen in this situation at any time, including years or even decades after release from criminal custody.
In dissent, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, wrote that Congress “did not intend to allow the Government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing.”
Unfortunately, the Supreme Court’s 5-4 decision clears the way for the federal government to detain certain noncitizens without providing them the possibility of a bond hearing.