Weekly Blog for 3.22.19 Part I, by Merle D. Kahn, Esq.
This week the Supreme Court issued its long-awaited decision in Nielsen v. Preap about mandatory detention of noncitizens who have criminal convictions. In a five to four decision the Supreme Court held that noncitizens who have criminal convictions are subject to mandatory detention regardless of when they are placed in ICE custody. But the Court was clear that they were only addressing the statutory issues and were not addressing the Constitutional issues. They left the Constitutional arguments open for another day and another case.
Important Practice Pointer
Last week, we were able to make a successful argument in Adelanto, California, the Supreme Court’s opinion in Nielsen v. Preap did not apply. We argued that the mandate had not yet issued and that as our client was a member of the enumerated class in Preap he should be given a bond hearing under Ninth Circuit Preap. The IJ agreed. Under the Supreme Court Rules, Rule 45, we argued that the Supreme Court ruling does not become law until twenty-five days after the decision issues; in this case April 13, 2019. It’s a small victory but, it did help our client. A huge shout out to the ACLU who helped us craft this argument.
NINTH CIRCUIT NEWS
In Ninth Circuit news, the Ninth Circuit withdrew a decision holding that a conviction for Cal. Penal Code § 273A(a) (child abuse) was categorically a crime of child abuse and will be hearing the case en banc. The Ninth Circuit also held that death threats in and of themselves are not sufficient to establish a well-founded fear of persecution. Sigh. You can read about the Ninth Circuit decisions in Part II of this blog.
I would like to thank Karl Krooth for pointing out some errors in my last blog about the Suspension Clause and mandatory detention for arriving aliens. In my blog, I accidentally was referring back to the regulations in the halcyon days of 2004; instead of the reality of 2017. I have corrected my last post. It might take a village to raise a child; but can also take a village to write a blog; so, thank you Karl. Also, shout out to Lori Rosenberg for making a Suspension Clause argument in the 1990’s well before Thurgaissiam and for writing song lyrics about it called “I’ll Get Review” set to the tune of “Mr. Blue.” I just have to say; immigration lawyers are the best.
SUPREME COURT
Noncitizens Who are Removable for Having Been Convicted of Crimes are Subject to Mandatory Detention Under INA § 236(c) – Regardless of the Date of Conviction
The Supreme Court in a 5-4 decision found that noncitizens convicted of crimes that render them inadmissible or removable from the United States or who are suspected terrorists or are related to suspected terrorists are subject to mandatory detention. In a case that depends on grammar and then says that grammar does not matter and in a dissent that gives us a recipe for cooking an Angus steak, and cites Hamilton, the Supreme Court held that noncitizens who are removable for criminal convictions are subject to mandatory detention. But (and it’s a big but) the Supreme Court said that there might be constitutional arguments that the mandatory detention statute is unconstitutional. The Majority held:
“We emphasize that respondents’ arguments here have all been statutory. Even their constitutional concerns are offered as just another pillar in an argument for their preferred reading of the language of §1226(c)—an idle pillar here because the statute is clear. While respondents might have raised a head-on constitutional challenge to §1226(c), they did not. Our decision today on the meaning of that statutory provision does not foreclose as-applied challenges—that is, constitutional challenges to applications of the statute as we have now read it.”
Nielsen v. Preap, __ U.S. __ No. 16-1363, slip op. at *26 (March 19, 2019). Of equal importance, the Dissent gives us a road map for making these constitutional challenges.
Time for a History Lesson
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). They instituted mandatory detention for noncitizens who were removable for having been convicted of crimes. INA § 236(c). At the same time, they passed the Transition Period Custody Rules (TPCR) authorizing the government to delay the implementation of mandatory detention by one year. Congress recognized that there might be insufficient detention space and personnel to carry out the mandatory detention provisions of INA § 236(c). Nielsen v. Preap, No. 16-1363 slip op. at *10 (Breyer, J. dissenting). In or about 2013 or 2014, Mony Preap and some other noncitizens filed a class action lawsuit arguing that because they were not taken into ICE custody immediately after release from criminal custody, they were exempt from the mandatory detention provisions of INA § 236(c) and were entitled to a bond hearing under INA § 236(a). They filed their lawsuit in the District Court for the Northern District of California and the judge agreed. The District Court granted a preliminary injunction against the mandatory detention of the members of this case holding that the mandatory detention provisions of INA § 236(c) do not apply unless the noncitizen is placed in ICE custody when released from state custody. Preap v. Johnson, 303 F.R.D. 566 (N.D. Cal. 2014). Now, I cannot emphasize this point enough, these people were still placed in detention, but they were entitled to a request a bond. The immigration courts were to look at the normal considerations for bond. (i.e., Is the noncitizen a flight risk? Is the noncitizen a danger to society? Is the noncitizen a danger to security?) So, as the Dissent points out, it’s not a question about detention, but a question about bond.
The case went up to the Ninth Circuit, and the Ninth Circuit agreed with the District Court. Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016). At the same time, the District Court for the Western District of Washington ruled the same way as the Northern District of California. The Ninth Circuit also agreed with the Western District of Washington in an unpublished decision. Khoury v. Asher, 667 Fed. App’x 966 (9th Cir. 2016). The government appealed the case to the Supreme Court and the Supreme Court in a 5 (Alito, Roberts, Thomas, Gorsuch, and Kavanaugh) to 4 (Breyer, Ginsburg, Sotomayor, Kagan) overturned the Ninth Circuit.
The Statute
There are several different detention provisions in the INA. The provision here is the sibling of INA § 236(a). Section 236(a) allows for the detention of a noncitizen in proceedings but allows for the noncitizen to request a bond. Section 236(c) differs from Section 236(a) as detention is mandatory.
(c) Detention of criminal aliens
(1) CUSTODY The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence [1] to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,
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.
INA § 236(c) (emphasis added).
The entire question in this case is what does the phrase “when the alien is released” mean? Does it mean within minutes of the noncitizen being released from state custody? Does it mean within a reasonable period of let’s say six months? Or, does it mean whenever ICE gets around to arresting them? The Supreme Court held that it means whenever ICE gets around to arresting them.
Majority Decision
First, the majority found that they had jurisdiction over this case; and, that the case was not moot because the named plaintiffs were out of ICE detention. (Justice Thomas joined by Justice Gorsuch wrote a concurrence positing that the no courts had jurisdiction over immigration detention issues). The Majority did not address whether the District Court had jurisdiction to issue the original injunction because they were dissolving the injunction; so, they found that issue irrelevant. Once the Court found they had jurisdiction they started analyzing the case.
Grammar Police
Now, I had to get some help in analyzing this case from my go-to grammar expert, my sister. Yes, I called my sister (who is a director of product management at a large company) to ask her if the Supreme Court’s analysis of the grammar was correct. It’s all about who you trust. She agreed with Justice Alito’s grammatic analysis, so I trust it is true. Here is what the Court said:
Paragraph (1) provides that the Secretary “shall take” into custody any “alien” having certain characteristics and that the Secretary must do this “when the alien is released” from criminal custody. The critical parts of the provision consist of a verb (“shall take”), an adverbial clause (“when . . . released”), a noun (“alien”), and a series of adjectival clauses (“who . . . is inadmissible,” “who . . . is deportable,” etc.). As an initial matter, no one can deny that the adjectival clauses modify (and in that sense “describ[e]”) the noun “alien” or that the adverbial clause “when . . . released” modifies the verb “shall take.” And since an adverb cannot modify a noun, the “when released” clause cannot modify “alien.” Again, what modifies (and in that sense “describe[s]”) the noun “alien” are the adjectival clauses that appear in subparagraphs (A)-(D).
Preap, slip op. at *12-13. That part is true. Adverbs modify verbs and adjectives modify nouns. The opinion goes on:
Respondents and the dissent contend that this grammatical point is not the end of the matter—that an adverb can “describe” a person even though it cannot modify the noun used to denote that person. See post, at 5-6 (opinion of BREYER, J.).
Id., at *13.
According to my grammar expert, the dissent, and the respondents are also correct. You can have a sentence where an adverb is describing a person. For example, (and I am sure you will all enjoy this sentence) “Merle is skipping happily in the park.” (Thank you younger sister). Now here is where the case becomes golden! Alito then says, “But our interpretation is not dependent on a rule of grammar.” Id., at *13. What? I did not need to call my sister? I could have analyzed this case on my own? But, wait, not really, because then Alito then discusses the term “described” as it appears in INA § 236(c)(2) and notes that “describe” takes on different meanings in different contexts. “And here is the crucial point: The “when…released” clause could not possibly describe aliens in that sense; it plays no role in identifying for the Secretary which aliens she must immediately arrest.”
Id., at *13 (emphasis in the original). Then thee logic becomes even more tortured.
“Our reading is confirmed by Congress’s use of the definite article in “when the alien is released.” Because “[w]ords are to be given the meaning that proper grammar and usage would assign them,” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 140 (2012), the “rules of grammar govern” statutory interpretation “unless they contradict legislative intent or purpose,” ibid. (citing Costello v. INS, 376 U. S. 120, 122-126 (1964)). Here grammar and usage establish that “the” is “a function word . . . indicat[ing] that a following noun or noun equivalent is definite or has been previously specified by context.” Merriam-Webster’s Collegiate Dictionary 1294 (11th ed. 2005). See also Work v. United States ex rel. McAlester-Edwards Co., 262 U. S. 200, 208 (1923) (Congress’s “use of the definite article [in a reference to “the appraisement”] means an appraisement specifically provided for”). For “the alien”—in the clause “when the alien is released”—to have been previously specified, its scope must have been settled by the time the “when . . . released” clause appears at the tail end of paragraph (1).”
Id., at 14. It appears that the grammatical analysis is dispositive as long as the majority agrees with it. Otherwise…. I’m going to stop analyzing the tortured grammatical analysis and go on with the opinion. But, before the opinion gets a little more coherent, we do get one more gem.
“But even if the Court of Appeals were right to reject this reading, the result below would be wrong. To see why, assume with the Court of Appeals that only someone arrested under authority created by §1226(c)(1)—rather than the “more general §1226(a)—may be detained without a bond hearing. And assume that subsection (c)(1) requires immediate arrest. Even then, the Secretary’s failure to abide by this time limit would not cut off her power to arrest under subsection (c)(1). That is so because, as we have held time and again, an official’s crucial duties are better carried out late than never. See Sylvain v. Attorney General of U. S., 714 F. 3d 150, 158 (CA3 2013) (collecting cases). Or more precisely, a statutory rule that officials “`shall’ act within a specified time” does not by itself “preclud[e] action later.” Barnhart v. Peabody Coal Co., 537 U. S. 149, 158 (2003).”
Id., at *17 (emphasis added). It looks like the Court is going with the ‘better late than never’ defense.
The Supreme Court’s True Concerns
Then we get to what seems to be the Court’s true concerns. The Court notes that Congress enacted mandatory detention because individualized hearings could not be trusted to reveal which removable noncitizens who were not detained might continue to engage in crimes or fail to appear at their hearings. Plus, because many states are not honoring ICE detainers, the Court is concerned that noncitizens who are removable for having committed crimes could escape removable proceedings.
The Court then gives an alternate reading to the phrase “when…released.” The Court holds that “it clarifies when the duty to arrest is triggered: upon release from criminal custody, not before such release or after the completion of noncustodial portions of a criminal sentence….” Id., * 21. The Court notes that this sentence clarifies that the Secretary of Homeland Security cannot cut a noncitizen’s criminal sentence short to place them in ICE detention.
The Court concludes by stating that this decision is based on the statutory interpretation of the statutes at issue and does not consider the constitutional implications of mandatory detention. “While respondents might have raised a head-on constitutional challenge to § 1226(c) [§ 236(c], they did not.” Id., at * 26. While I might disagree with the Supreme Court’s decision as Elizabeth Bennet says to Mr. Darcy in Pride and Prejudice, “[Y]ou have chosen your fault well. I really cannot laugh at it. You are safe from me.” Pride and Prejudice, Ch. 11. I might disagree with the majority opinion, but I really cannot laugh at it.
Concurring Opinions
Kavanaugh wrote a concurring opinion that no one joined emphasizing the narrowness of the decision. Thomas, joined by Gorsuch, wrote a concurring opinion stating that the judiciary has no jurisdiction over these issues because of the jurisdiction stripping language of IIRIRA. Thomas and Gorsuch are arguing that no courts have jurisdiction to review immigration detention statutes. Then Breyer gives his dissent (which he read from the bench) arguing that the language of the statute cannot support the majority’s opinion.
Dissent
Justice Breyer notes the scope of people who might be harmed by this decision. He recognizes that this group includes people who years ago were convicted of illegally downloading music or possessing stolen bus passes. (Persons convicted of two or more crimes involving moral turpitude (CIMTs) are subject to mandatory detention). And, he is correct about the broad reach of this statute. I remember in the pre-Preap days, we had a client who had twice been convicted of petty theft. One time she stole tube socks for her children and the other time she stole picture frames. After months in ICE detention, she was finally released to her family including her husband, children, and grandchildren, when the IJ granted her cancellation of removal for lawful permanent residents. I am afraid that we will see many more cases like this one.
Justice Breyer argues the grammar and refers to the musical Hamilton to explain the word “describe.” Justice Breyer writes: “Consider the following sentence: “The well-behaved child was taken by a generous couple to see the musical Hamilton.” Preap, slip op. at *6 (Breyer, J. dissenting). And, truly, what dissent is complete absent a reference to Hamilton? He then uses the analogy of a recipe for cooking a steak to compare to the mandatory detention statute.
The Question is Not Who is Detained but Who is Denied Bail?
But then the time for silliness is over and Justice Breyer gets to the crux of the matter. The question is not who is detained, but who is denied bail. That frames the entire argument beautifully. We are arguing over who is denied bail. Justice Breyer argues that when Congress enacted IIRIRA there would have been no need for transitional detention rules if “when…released” meant whenever the government got around to picking up the noncitizen. Justice Breyer then helps us out by setting forth the Constitutional arguments including denial of due process and even, possibly, an Eighth Amendment argument that it is unconstitutional to subject people to excessive bail. Justice Breyer refers to his own dissent in Jennings v. Rodriguez, 138 S. Ct. 830 (2018) for the Constitutional arguments. He concludes by arguing that “when…released” refers to a reasonable period of time upon release from state custody. Justice Breyer recommends a reasonable period of time of six months. Preap, slip op. at *16 (Breyer, J. dissenting).