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The U.S. Supreme Court, in a 5-4 ruling in Nielsen v. Preap, rejected an interpretation of federal law adopted by some lower courts and re-expanded the reach of “mandatory detention.” Immigrants subject to mandatory detention are jailed for the duration of their immigration court proceedings, without access to custody hearings where judges could consider whether they are eligible for release on recognizance, bond, or other conditions. Some lower courts, including the Court of Appeals for the Ninth Circuit, had held that mandatory detention did not apply where the person committed an offense long before they were placed into removal proceedings and had not been taken directly into immigration detention from criminal custody. Today the Supreme Court rejected that holding.

“This is one more sad example of the Supreme Court allowing immigrants’ rights to be trampled,” said NIJC Director of Appellate Litigation Chuck Roth. “We will continue to argue that mandatory detention is unconstitutional and un-American. We hope the next time the issue reaches the Court, it will change course to vindicate the human rights of all people.”

The National Immigrant Justice Center filed an amicus brief in the case, explaining that the government inappropriately and unnecessarily interpreted the law to apply even to individuals convicted of minor criminal offenses such as illegally downloading music. NIJC’s brief explained that the effects of mandatory detention are felt most grievously by immigrants with minor offenses, who otherwise would stand a good chance of obtaining a bond so they could pursue their immigration cases from outside detention. NIJC’s brief was cited by the Court, but to no avail. The Supreme Court acknowledged that its decision will result in the mandatory detention of individuals convicted of minor offenses, but found that the statute permitted no other reading.

The Supreme Court emphasized that it was not deciding whether the statute is constitutional as it is currently being used against immigrants. This follows its approach in Jennings v. Rodriguez, decided in 2018, where the Supreme Court overturned a statutory rule that moderated the mandatory detention regime, but declined to decide opine on constitutional arguments.  Lower courts are now considering constitutional claims.

Elaine Goldenberg and Celia Choy, of the law firm of Munger, Tolles, & Olson, LLP, represented NIJC on its amicus brief.