Migrant Detention following Criminal Convictions

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On October 10th, the U.S. Supreme Court heard an appeal (16-1363 Nielsen v Preap) which considers whether undocumented immigrants released from criminal custody—who are not immediately taken into immigration custody by the Department of Homeland Security—are entitled to bond hearings prior to mandatory detention under 8 U.S. Code §1226 (c). The government found that the lower court ruling, in favor of immigrants, undermined its ability to deport immigrants who committed crimes.

The case before the justices is an important one, since section 1226 (c) is a broad mandatory detention provision. Immigrants with past criminal convictions can be held indefinitely, without a bond hearing, years after completing their sentences. Section 1226 (c) of the U.S. Code is a mandatory detention provision, which requires the Attorney General to take into custody undocumented immigrants regardless of whether the person is released on parole, probation, or whether the person is likely to be arrested again for the same offence. Justice Stephen Breyer expressed concern about this practice, noting that hearings for those held in detention is a long-established right “in this country, [where] a triple axe murderer is given bail [and] a hearing.” Breyer continued by raising the question of why the government would be opposed to a bail hearings, for it would allow them to more accurately distinguish between those who are and are not a risk.

A key issue in the case is what a reasonable period of time, following criminal convictions and sentences, would be. The American Civil Liberties Union asked that the court affirm the 9th Circuit ruling in this case, which stated that a “reasonable degree of immediacy is appropriate when arresting an immigrant after s/he was released from jail.” The Union further argued that unless the government puts them in immigration custody immediately after they’ve finished their sentences, immigrants should be entitled to hearings where they can argue for release. Justice Roberts suggested a month as a reasonable period of time, while Justice Breyer suggested six months (subject to the severity of the crime). The holding of the case is to be determined, pending adjudication before the U.S. Supreme Court.

This post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.