Supreme Court Weighs US Right to Detain Criminal Aliens Long After Prison

By Matthew Vadum
Matthew Vadum
Matthew Vadum
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.
October 11, 2018 Updated: October 11, 2018

The government loses the right under federal immigration law to detain for deportation proceedings a lawful permanent resident convicted of a serious crime, if it fails to arrest the person the day he completes his criminal sentence, an ACLU lawyer told the assembled justices of the Supreme Court.

It is “appropriate” for the government to detain the person “the same day,” Cecillia D. Wang, deputy legal director of the American Civil Liberties Union, said Oct. 10 during oral arguments before the court. Wang previously worked for left-leaning Justice Stephen Breyer.

The ACLU is the left-wing civil-rights group that spent more than $1 million opposing the nomination of Justice Brett Kavanaugh, who participated in the oral arguments. It was Kavanaugh’s second day of hearing cases at the Supreme Court after being confirmed by the Senate on Oct. 6.

The case comes from California, a hotbed of resistance to President Donald Trump’s drive to enforce the nation’s immigration laws and to undermine the practice of cities declaring themselves sanctuaries that harbor illegal aliens.

The enforcement of long-neglected immigration laws is a priority of the Trump administration, which has intensified immigration-enforcement efforts in California.

California isn’t lifting a finger to help. The state now largely forbids cooperation with federal immigration authorities, presumably a violation of the U.S. Constitution’s Supremacy Clause. State law there now imposes drastic restrictions on communications between local police and federal immigration authorities, including information regarding when criminal aliens are scheduled to be released from local jails.

For years, jailers in California and in other sanctuary jurisdictions have been refusing to honor requests from U.S. Immigration Customs and Enforcement (ICE), a division of the Department of Homeland Security (DHS), to continue to detain persons scheduled to be released, pending transfer to ICE.

In a high-profile case, felon and serial deportee Jose Ines Garcia Zarate was charged with killing Kate Steinle, 32, on a tourist-packed pier on July 1, 2015, after then-San Francisco Sheriff Ross Mirkarimi, a Democrat, defied an ICE detainer notice and put the Mexican national back on the streets.

There was widespread outrage when the defendant was acquitted on serious charges and convicted by a state jury on a mere charge of unlawfully possessing a firearm. Trump spoke of the case repeatedly on the campaign trail.


The case heard by the Supreme Court was an appeal of a decision rendered Aug. 4, 2016, by the oft-overturned U.S. Court of Appeals for the Ninth Circuit. The Supreme Court agreed to review the case on March 19 of this year at the request of the federal government.

With few exceptions, a federal legal provision cited as 8 U.S.C. § 1226(c) directs the government to detain for removal proceedings green-card holders immediately upon completion of their sentences for serious crimes.

The relevant part of the law states the U.S. “shall take into custody any alien who … is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,” which covers crimes of “moral turpitude,” as well as attempts or conspiracies to commit such crimes.

Aliens convicted of other serious crimes, including those for which the person “has been sentenced to a term of imprisonment of at least 1 year,” shall be deemed deportable and taken into custody “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.”

In the opinion that gave rise to the case at hand, the Ninth Circuit ruled immigration law “unambiguously imposes mandatory detention without bond only on those aliens taken … 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 government rejects this immediacy argument, arguing in a court brief dated Sept. 5, that it’s common sense “that important governmental action is better late than never.” The brief approvingly cites a 2013 case in which the Third Circuit held “[b]ureaucratic inaction—whether the result of inertia, oversight, or design—should not rob the public of statutory benefits.”

The entire purpose of the law under attack “is to protect the public from criminal aliens by keeping them detained during their removal proceedings, without the prospect of release.”

The Meaning of ‘When’

But what happens if, contrary to the requirements of the law, the government fails to arrest potentially deportable criminal aliens when they complete their sentences?

The court heard a litany of examples of bureaucratic incompetence, in which ICE has failed to detain criminal aliens when they finished their custodial sentences, sometimes waiting years to reincarcerate such individuals. Sometimes, as Justice Sonia Sotomayor noted, ICE files a detainer request and doesn’t even bother to show up to take the person into custody.

A visibly annoyed Justice Breyer asked lawyer Zachary D. Tripp, assistant to the Solicitor General, “Is the government’s position that this paragraph, which says ‘shall be arrested upon release,’ applies to a person who has been released 50 years before?”

Tripp sheepishly replied, “Our position is absolutely that this applies, regardless of the time in.”

During Wang’s rebuttal arguments, Justice Kavanaugh noted that, “Congress did not put in a time limit, whether it’s reasonable time, as Justice Breyer says, or a year or two years or six months or 48 hours.”

“Congress knew it wouldn’t be immediate, and yet, Congress did not put in a time limit. That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so.”

The authority of the federal government to detain lawfully admitted immigrants with serious criminal records for the duration of their removal proceedings, without affording them a detention review, itself was barely discussed during the one hour of oral arguments.

At issue was whether the government forfeits its statutory power to indefinitely detain such permanent residents if it fails to take those individuals into custody immediately after they complete their sentences.

Although the plain wording of the statute doesn’t give the government discretionary authority to refrain from detaining the individuals concerned, the government argues that the act of failing to detain in a timely manner doesn’t irrevocably deprive it of its power to do so later. The green-card holders in the case disagree with this better-late-than-never approach, arguing that the detention must take place promptly upon release or not at all.

Green Card Holders

The case involves three lawful permanent residents of the United States residing in California, who were taken into custody by ICE years after completing sentences for crimes that triggered the mandatory-detention provisions of the immigration statute.

The first individual facing deportation is Mony Preap, a green-card holder since he came to the U.S. as an infant in 1981. He has two 2006 misdemeanor convictions for possession of marijuana and a later conviction for simple battery. Preap was detained by ICE after the battery sentence was complete, even though it was insufficiently serious to trigger the mandatory-detention provision.

The second person concerned is Eduardo Vega Padilla, a lawful permanent resident since he came to the U.S. in 1966 as an infant. He has a drug possession conviction from 1997 and another from 1999. In 2002, he was convicted of owning a firearm despite having a prior felony conviction. ICE detained him 11 years after he finished his sentence for the firearm offense.

The third litigant is Juan Lozano Magdaleno, a green-card holder since 1974 when he came to the U.S. as a teenager. He has a conviction from 2000 for owning a firearm, despite a prior felony conviction. He was convicted in 2007 of for simple possession of a controlled substance and released from jail in January 2008. More than five years later, ICE detained him and held him without bond.


A case decided seven months ago may offer a clue as to how the Supreme Court will decide the case.

In Jennings v. Rodriguez, decided Feb. 27 by the high court, the court examined a Ninth Circuit decision upholding a lower court ruling that mandated that immigration detainees be given bond hearings every six months. While that mandate of a bail review every six months may sound reasonable to many, it doesn’t appear in the statute.

In Jennings, Justice Samuel Alito wrote the majority opinion for a 5–3 court, finding the Circuit Court had acted more like a legislature than a court by inventing the requirement of bond hearings every six months. Because the wording of the statute was clear-cut, the Circuit Court erred in filling in the blanks with a detention-review scheme of its own design. A court “relying on that canon … must interpret the statute, not rewrite it,” Alito wrote.

Justice Elena Kagan recused herself in the Jennings case because she acted in it, when she served as President Barack Obama’s solicitor general. But Kagan participated in the oral arguments on Oct. 10.

The case heard Oct. 10 is cited at the Supreme Court’s website as Nielsen v. Preap, No. 16-1363.

Matthew Vadum
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.