"Nielsen v. Preap." Oyez, 10 Oct. 2018, www.oyez.org/cases/2018/16-1363.

Petitioner
Kirstjen Nielsen, Secretary of Homeland Security, et al.

Respondent
Mony Preap, et al.

Docket no.
16-1363

Decided by
Case pending

Lower court
United States Court of Appeals for the Ninth Circuit

Citation
Citation pending

Granted
Mar 19, 2018

Facts of the case

Three lawful permanent residents filed a class action for habeas relief in the US District Court for the Northern District of California when immigration authorities took them into custody and detained them without bond hearings years after they had been released from serving criminal sentences for offenses that could lead to removal. The plaintiffs’ position was that they were not detained “when . . . released” from criminal custody, and thus were not subject to mandatory detention under 8 U.S.C. § 1226(c).

The district court certified the class, which included “[i]ndividuals in the state of California who are or will be subjected to mandatory detention under 8 U.S.C. section 1226(c) and who were not or will not have been taken into custody by the government immediately upon their release from criminal custody for a Section 1226(c)(1) offense.” The court also issued a preliminary injunction directing the government to provide all class members with a bond hearing pursuant to § 1226(a).

The Ninth Circuit affirmed, agreeing with the First Circuit and rejecting reasoning followed in four other circuits, holding that the immigration detention at issue under § 1226(c) must take place promptly upon the noncitizen’s release from criminal custody. The appellate court explained that the statute’s plain language reflected an immediacy with regard to when the immigration detention must take place in relation to the release from custody, and rejected arguments by the government that would allow for detentions to occur following significant delays.

Question

Does a noncitizen released from criminal custody become exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the noncitizen is released from criminal custody, the Department of Homeland Security does not take the noncitizen into immigration custody immediately?

Newly seated Justice Brett Kavanaugh spoke up Wednesday in defense of the Trump administration’s view that legal immigrants with criminal records can be arrested and held for deportation, even years after they were convicted and completed their sentences.

Just common sense. You are immigrant and you could not live under our laws you need to go home!

Newly seated Justice Brett Kavanaugh spoke up Wednesday in defense of the Trump administration’s view that legal immigrants with criminal records can be arrested and held for deportation, even years after they were convicted and completed their sentences.

Maybe the Paultards are upset at this too?

Does a noncitizen released from criminal custody become exempt

The only thing worse than a criminal cocksucker is an illegal alien criminal cocksucker.

Common sense dictates that non Americans, have ZERO constitutional rights. The only thing they deserve is basic human rights.

Maybe the Paultards are upset at this too?

[lowercase]libertarians are ambivalent about your suggestive comment, you silly little, state appointed elementary school-guard traffix guard.

Shame on you, baittrap.

Just common sense. You are immigrant and you could not live under our laws you need to go home!

Some reference material, just for information. Alito wrote for the court in the prior case of Jennings v. Rodriguez, short quote below with link to opinion. Also, I give a couple of quotes from oral argument (Oct 10), with link to full transcript. This may be assigned to Alito to write a slam dunk of the 9th Circuit.

Some of the Oral Argument reminds of Bill Clinton and what the meaning of the word is is.

- - - - - - - - - -

https://www.leagle.com/decision/infdco20140516737

District Court, Northern District of California

Preap v. Johnson, CAND 13-cv-5754 (15 May 2014)

- - - - - - - - - -

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/04/14-16326.pdf

U.S. Circuit Court, 9th Circuit

Preap v. Johnson, (9th Cir., 4 Aug 2016)

- - - - - - - - - -

https://www.supremecourt.gov/DocketPDF/16/16-1363/62824/20180905175727148_16-1363rbUnitedStates.pdf

At United States Supreme Court, No. 16-1363, Nielsen v. Preap

REPLY BRIEF FOR THE PETITIONERS (5 Sep 2018)

The change in caption from Johnson to Neilsen reflects the change of the head of the Department of Homeland Security.

As the Court explained in Jennings, paragraph (1) mandates the arrest of any alien “who falls into one of the enumerated categories involving criminal offenses and terrorist activities,” and paragraph (2) “then goes on to specify that the [Secretary] ‘may release’ one of those aliens ‘only if ’ ” the witness-protection exception is satisfied. Id. at 846 (emphasis added) (quoting 8 U.S.C. 1226(c)(2)). Each respondent is “one of those aliens,” ibid., so their release is therefore prohibited.

Respondents nonetheless contend that the Secretary may release them on bond. Respondents rely on paragraph (1)’s language providing that the Secretary “shall take into custody any alien who—is inadmissible” or “is deportable” under the specified provisions, “when the alien is released.” 8 U.S.C. 1226(c)(1). Respondents interpret the timing clause to mean that, if the Secretary does not arrest a criminal alien until some (undefined) time after he is released, he becomes exempt from paragraph (2)’s prohibition against release.

But paragraph (2)’s prohibition against releasing a detained criminal alien is independent of the directive to the Secretary to arrest the alien, and it does not depend on when he was arrested. The prohibition applies to any “alien described in paragraph (1).” 8 U.S.C. 1226(c)(2). And the phrase “when the alien is released” in paragraph (1) does not describe an alien at all. 8 U.S.C. 1226(c)(1). Rather, it specifies when the Secretary is to act. The phrase “when the alien is released” takes as a given that “the alien” has already been fully described, namely, as an alien who is deportable or inadmissible under the preceding subparagraphs, (A) through (D). Ibid. (emphasis added).

Respondents have no real answer. Their most common response is to elide the words “the alien” so that the clause reads “when . . . released.” Indeed, they omit the words “the alien” more than 50 times in their brief. Resps. Br. 2, 3, 6, 7, 8, 11, 12, 15, 16, 17, 18 n.3, 19, 20, 21, 22, 24, 25, 26, 27, 29, 32 n.8, 40, 41, 42, 43, 44 n.14, 50. But the full statutory text—“when the alien is released”—makes little sense unless the Secretary already knows who “the alien” is. Otherwise, the Secretary would not know who to arrest in the first place.

- - - - - - - - - -

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/16-1363_h315.pdf

At United States Supreme Court, No. 16-1363, Nielsen v. Preap

TRANSCRIPT of Oral Arguments (10 Oct 2018)

At 41-42: [Ms. Wang for Preap]

JUSTICE ALITO: So the first part of your answer is that -- that the state -- the state governments, the municipal governments are going to provide this information to -- to the Department of Homeland Security?

MS. WANG: That is what Congress anticipated when it wrote this statute in '96, yes.

JUSTICE ALITO: And is that what is happening now?

MS. WANG: Your Honor, it's largely what is happening now. The government cites some data from 1996. There's also data we've cited that show that in fiscal years '15 through '17, 94 percent of federal requests to state and local jurisdictions were complied with.

But -- but I think the larger point, Justice Alito, is that Congress -- we have to read what Congress was doing in 1996. And whatever's happening today with controversies over so-called sanctuary jurisdictions don't really shed light on what Congress wanted in '96.

What does shed light on what Congress wanted in '96 is what they actually enacted.

JUSTICE ALITO: Yeah, and what they enacted was a provision that says the Attorney General, now, the Secretary shall take into custody any alien, who satisfies certain requirements, when the alien is released.

[nc] Note that the cited 94% state compliance is not the compliance rate of the Great Sanctuary State of Kookifornia. And all of this changes the plain text meaning of the statute, how?

At 64- [Mr. Tripp for DHS]

It may depend on whether an adverb modifies a verb or a noun.

MR. TRIPP: Thank you. Just a couple of points.

The key question here is not the meaning of when. It's who are the aliens described in paragraph 1? And the answer is it's an alien, any alien with the requisite criminal history. The time in is really not relevant.

JUSTICE SOTOMAYOR: This begs the question, because they didn't say sub -paragraph 1, A through D. They said the entire paragraph.

MR. TRIPP: That's right. But as --

JUSTICE SOTOMAYOR: And why isn't the verb, the adverb, part of the noun in that situation? Because if they wanted to limit it to that class of A-to-D, that's the easiest thing to have done.

MR. TRIPP: Because --

JUSTICE SOTOMAYOR: Your counsel -- your adversary is right, if they wanted to limit 1226(a) to (c)(2), they would have said (c)(2).

MR. TRIPP: So a couple of responses, but I think the main one is that the phrase "when the alien is released" does not modify who the alien is. It takes as a given he has already been fully described. And instead that

JUSTICE SOTOMAYOR: No, it is -- it is --

MR. TRIPP: -- just modifies the duties of the Secretary.

JUSTICE SOTOMAYOR: You are begging the question. When he is released identifies the alien that the statute is looking at.

MR. TRIPP: I -- I --

JUSTICE SOTOMAYOR: You by yourself -you say that there's a command that you have to follow to try to take these people into custody.

You say there's a command to do it, but you don't have to do it. You can choose not to do it. I don't know what kind of command that is. But you -- you at least recognize that there's a sense of urgency, you should do this.

So why doesn't that describe the noun?

MR. TRIPP: So I -- I think three responses --

JUSTICE SOTOMAYOR: The noun and the verb, I should say.

MR. TRIPP: So, first, we just -- don't think it modifies who the alien is at all.

Second, even if you think that it does, and there is some kind of timing requirement, this Court has said again and again and again that it's better to be late than never. And then A drives us home, right, because it has two sentences: The first is about arrest and the second is about custody. And it prohibits -- it has the exception for (c). And the only provision in (c) that talks about release is (c)(2). And that's the one --

JUSTICE KAVANAUGH: If --

MR. TRIPP: -- that categorically prohibits release.

JUSTICE KAVANAUGH: If reasonable amount of time, Justice Breyer's suggestion, were part of a ruling, what do you think is a reasonable amount of time or presumptively reasonable? I know that's not your preferred position, but do you have thoughts on that?

MR. TRIPP: I -- I think -- our -- our main answer is that would be really profoundly problematic because the gaps in custody are often very long. And -- and the basic reason --

JUSTICE KAVANAUGH: So, therefore, you would say a long period is a reasonable period but do you have any more meat you want to put on those bones of what a reasonable period of time would be, given all the circumstances?

MR. TRIPP: I guess I -- I would say that, I mean, what often happens is, you know, once -- once an alien gets out, so I -- I think this comes across in the brief, the alien is often released before DHS is even aware that that's going to happen, is even aware that the person is one of these aliens.

And once the person's out, it's going to be much more difficult to track them down. DHS might not know where they -- where they live, how to find them. And so, you know, what happens sometimes is that DHS doesn't become aware of them again until years later when they get arrested on a different offense. And so I -- I think it's difficult for me to give content to that. I think the force of that argument that, you know, maybe it would be different after the passage --

JUSTICE SOTOMAYOR: The problem is that --

MR. TRIPP: -- of some long period of time --

- - - - - - - - - -

https://www.supremecourt.gov/opinions/17pdf/15-1204_f29g.pdf

PRIOR CASE (one of several)

Jennings v. Rodriguez, 15-1204, 583 US ___ (27 Feb 2018) (5-3, Alito)

Syllabus, Slip Op at 1-2:

The Government is also authorized to detain certain aliens already in the country. Section 1226(a)’s default rule permits the Attorney General to issue warrants for the arrest and detention of these aliens pending the outcome of their removal proceedings. The Attorney General “may release” these aliens on bond, “[e]xcept as provided in subsection (c) of this section.” Section 1226(c) in turn states that the Attorney General “shall take into custody any alien” who falls into one of the enumerated categories involving criminal offenses and terrorist activities, §1226(c)(1), and specifies that the Attorney General “may release” one of those aliens “only if the Attorney General decides” both that doing so is necessary for witness-protection purposes and that the alien will not pose a danger or flight risk, §1226(c)(2).

After a 2004 conviction, respondent Alejandro Rodriguez, a Mexican citizen and a lawful permanent resident of the United States, was detained pursuant to §1226 while the Government sought to remove him. In May 2007, while still litigating his removal, Rodriguez filed a habeas petition, claiming that he was entitled to a bond hearing to determine whether his continued detention was justified. As relevant here, he and the class of aliens he represents allege that §§1225(b), 1226(a), and 1226(c) do not authorize “prolonged” detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that detentionremains justified. The District Court entered a permanent injunction, and the Ninth Circuit affirmed. Relying on the canon of constitutional avoidance, the Ninth Circuit construed §§1225(b) and 1226(c) as imposing an implicit 6-month time limit on an alien’s detention under those sections. After that point, the court held, the Government may continue to detain the alien only under the authority of §1226(a). The court then construed §1226(a) to mean that an alien must be given a bond hearing every six months and that detention beyond the initial 6-month period is permitted only if the Government proves by clear and convincing evidence that further detentionis justified.

Held: The judgment is reversed, and the case is remanded. 804 F. 3d 1060, reversed and remanded.

And?????

And they will issue an opinion shortly, bitch slapping the 9th Circuit.

And?????

And they will issue an opinion shortly, bitch slapping the 9th Circuit.

I must be really ignorant because I honestly can't understand why there was evern ANY question about them being deported. They are not US citizens,and they are here committing crimes.

I must be really ignorant because I honestly can't understand why there was evern ANY question about them being deported.

You're fine. It is just the 9th Circuit making shit up again.

And?????

And they will issue an opinion shortly, bitch slapping the 9th Circuit.

Ok,thanks.