U.S. Supreme Court to Hear Crucial Immigration Case

How will the decision made in Nielsen v. Preap impact the lives of immigrants in the U.S.?

The United States Supreme Court is set to hear a high stakes immigration case that could determine whether certain classes of immigrants can be detained without a bail hearing. Nielsen v. Preap is a class action lawsuit filed by a group of immigrants in the Ninth Circuit. The plaintiffs in Nielsen are currently or have previously been detained under 8 U.S.C. § 1226, which authorizes federal authorities to detain any alien who may be subject to removal or deportation.  The broad law potentially allows detention of a wide array of immigrants, including students who have overstayed their visas, border crossers, and permanent residents who committed certain crimes.

Per 8 U.S.C. § 1226, immigrants subject to removal are divided into two main categories:  ordinary immigrants who are subject to removal not due to commission of crimes, but on other grounds and criminal aliens, who are facing removal because of criminal convictions.  Ordinary aliens are provided with a bond hearing upon detention, wherein they can try to convince a judge to allow for their release.  Evidence that they can be safely released includes family and community ties.  Should they succeed at the bond hearing, ordinary aliens can go back to their homes to await the next hearing.

So-called criminal aliens, on the other hand, are to be taken into custody when released from imprisonment.  Criminal aliens include immigrants who have been convicted of a wide array of crimes, including firearm, drug, and sex offenses.  These immigrants, per the current statute, are not afforded any bond hearing.  Rather, they are forcibly held until their immigration case is resolved, which can take some time.

In the case of Neilsen, the Supreme Court will take-up whether criminal aliens, who are often longtime U.S. residents, should truly be denied a chance at bond.  At issue is the use of the term “when,” as used in the statute to state that when the immigrant is released from prison, he or she shall be taken into custody.  One seemingly simple word could hold the fate for an entire group of immigrants who face potential detention without the right to a bond pending completion of their prison sentences.

The plaintiffs are urging that if ICE wants to detain a criminal alien without providing him or her a chance at bail, then the arrest must be made at the moment of release from prison.  To allow any other interpretation of the word “when” would mean that ICE could potentially wait years after the alien’s release to then detain the alien without bail pending removal. Now, immigrants nationwide are anxiously awaiting the Supreme Court’s decision on this case of monumental importance. 

If you need information or advice concerning an immigration matter, contact our full service immigration law firm a