Immigration Law Associates, PC

Ninth Circuit Rules that More Detained Immigrants Qualify for Bond Hearings in Preap v. Johnson

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Preap v. Johnson, 2016 U.S. App. LEXIS 14271 (9th Cir. Cal. Aug. 4, 2016)


Mony Preap, Eduardo Vega Padilla, and Juan Lozano Magdaleno are lawful permanent residents who had committed crimes that could lead to removal from the United States. They served their criminal sentences and, upon release, returned to their families and communities. Years later, immigration authorities took them into custody and detained them without bond hearings under the Immigration Nationality Act (“INA”) § 1226(c). Preap and others argued that because they had not been detained by immigration “when . . . released” from criminal custody, they were not subject to mandatory detention under § 1226(c).

The INA’s mandatory detention provision, which requires immigration authorities to detain them “when [they are] released” from criminal custody, 8 U.S.C. § 1226(c)(1), and to hold them without bond, 8 U.S.C. § 1226(c)(2). A broad range of crimes is covered under the mandatory detention provision, from serious felonies to misdemeanor offenses involving moral turpitude and simple possession of a controlled substance. 8 U.S.C. §§ 1226(c)(1)(A)-(D).

Preap and others filed a class action petition for habeas relief in the Northern District of California. The district court granted their motion for class certification and also issued a preliminary injunction requiring the government to provide all class members with bond hearings under § 1226(a). Preap v. Johnson, 303 F.R.D. 566, 571, 584 (N.D. Cal. 2014). The government appealed the decision to the Ninth Circuit.



Last week, the Ninth Circuit ruled that under the plain language of 8 U.S.C.S. § 1226(c), the government could detain without a bond hearing only those criminal aliens it took into immigration custody promptly upon their release from the triggering criminal custody. The mandatory detention provision of § 1226(c) applied only to those criminal aliens detained promptly after their release from criminal custody, not to those detained long after.

The question here was the interpretation of the phrase: “when [they are] released” in § 1226(c)(1), and whether it limits the category of aliens subject to detention without bond under § 1226(c)(2). Specifically, the Ninth Circuit had to decide whether an alien must be detained without bond even if he has resettled into the community after release from criminal custody. Preap argued that the phrase “when . . . released” means that an alien must be held without bond only if taken into immigration custody promptly upon release from criminal custody for an enumerated offense. The government, by contrast, argued that “an alien described ” is any alien who commits a crime listed in §§ 1226(c)(1)(A)-(D) regardless of how much time elapses between criminal custody and immigration custody and that individuals not detained “when . . . released” from criminal custody as required are still considered “alien[s] described in for purposes of the bar to bonded release.

Before this decision, five other circuits had considered this issue, and four have sided with the government. However, there has been no consensus in the reasoning of these courts.  The First Circuit in contrast, concluded that the statutory context and legislative history make clear that aliens can be held without bond under § 1226(c)(2) only if taken into immigration custody pursuant to § 1226(c)(1) “when . . . released” from criminal custody, not if there is a lengthy gap after their release. The Ninth Circuit agreed with the First Circuit’s conclusion that the statute unambiguously imposes mandatory detention without bond only on those aliens taken by the Attorney General into immigration custody “when released” from criminal custody. And because Congress’s use of the word “when” conveys immediacy, the Ninth Circuit concluded that the immigration detention must occur promptly upon the aliens’ release from criminal custody.




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