Release Date:  October8, 2018
Contact:  Michael Rushford
(916) 446-0345

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On Wednesday, October 10, 2018, the U. S. Supreme Court will hear a case on the Department of Homeland Security’s (DHS) ability to detain criminal aliens for deportation after they have been released from local police custody or state prison. The DHS appealed a 2016 Ninth Circuit Court of Appeals ruling that sharply limits a federal law that directs the Attorney General to arrest and detain aliens convicted of aggravated felonies, pending their deportation, and makes them ineligible for release during that time.

At issue in Nielsen v. Preap is the time it takes federal law enforcement to locate the aliens after their release. The Ninth Circuit held that if, following their release, the criminal aliens are not promptly arrested by federal agents, the government loses its authority to arrest and detain them later under the provision of law in question.

The aliens in this case filed a lawsuit challenging their arrests and detention. Mony Preap came to the U. S. as a refuge from Cambodia and had been convicted for drug possession. Eduardo Vega Padilla had convictions for drug possession and for being a felon in possession of a firearm. Juan Lozano Magdaleno had a conviction for illegal possession of a firearm and possession of drugs. All three were eventually released from federal detention.

In sanctuary cities, local police are forbidden from notifying federal immigration authorities when a criminal alien will be released and are not allowed to hold an alien for federal agents. Because of this, many criminal aliens are able to avoid arrest and blend into the community or move elsewhere. If they commit additional crimes in a sanctuary city they may still avoid arrest and deportation due to the local government’s noncooperation with immigration authorities. The Ninth Circuit’s ruling, if allowed to stand, would permit immigration judges to release detained aliens even if they have been convicted of the most serious crimes. Because released aliens facing deportation usually do not show up for their hearings, this typically means that they escape deportation altogether.

CJLF has joined the case, filing a scholarly amicus curiae (friend of the court) brief, arguing that the Ninth Circuit has misinterpreted federal law to make mandatory detention depend on the timing of arrest rather than the crime. Noting that Congress never intended that the detention of a criminal alien depend on the timing of arrest, the CJLF brief states, “The notion that a released criminal is no longer a danger simply because he is not rearrested soon after release is contrary to both common sense and established facts.”

“The Ninth Circuit’s ruling in this case misinterprets the law in order to allow alien criminals in sanctuary cities to avoid detention and deportation under federal law,” said CJLF Legal Director Kent Scheidegger. “Congress required mandatory detention for those convicted of aggravated felonies for good reason, and this law should not be negated by giving it a tortured interpretation,” he added.

CJLF Legal Director Kent Scheidegger is available for comment at (916) 446-0345.