Supreme Court to Decide Whether “When Released” Means Immediately Released from Criminal Custody

In Nielsen v. Preap, the U.S. Supreme Court granted the government’s petition for a writ of certiorari, Kelly v. Preap, in which the question presented is, “Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.” The statute in question provides that the Attorney General shall take certain non-citizens into custody “when the alien is released” from criminal custody.

As background, in Preap v. Johnson, 303 F.R.D. 566 (N.D. Cal. 2014), the district court held that INA § 236(c), the mandatory detention provision applicable to non-citizens who are convicted of enumerated criminal offenses, unambiguously requires mandatory detention without bond only for non-citizens detained immediately upon release from criminal custody. The Ninth Circuit affirmed this decision, creating a split among the Courts of Appeals: the Second, Third, Fourth, and Tenth Circuits, which do not require DHS to act immediately, versus the First and Ninth Circuits, which do.