Release Date:  March 19, 2019
Contact:  Michael Rushford
(916) 446-0345

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Ninth Circuit Ruling Overturned in Nielsen v. Preap

In a 5-4 decision announced today, the U. S. Supreme Court overturned a 2016 Ninth Circuit ruling that restricted 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.

At issue in Nielsen v. Preap was 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 Sacramento-based Criminal Justice Legal Foundation had joined the case to encourage a decision overturning the Ninth Circuit’s ruling, noting that the federal law authorizing the arrest of alien criminals for deportation did not include a time limit.

Writing for the majority, Associate Justice Samuel Alito stated, “it is hard to believe that Congress made the Secretary’s mandatory detention authority vanish at the stroke of midnight after an alien’s release.”

The aliens in this case filed a lawsuit challenging their arrests and detention. Mony Preap came to the U. S. as a refugee 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 that a criminal alien will soon be released, and are not allowed to hold an alien for federal agents. Because of this, many criminal aliens have been 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.

Had the Ninth Circuit’s ruling been upheld, it would have permitted 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. The Foundation filed a scholarly amicus curiae (friend of the court) brief, arguing that the Ninth Circuit has misinterpreted federal law to create a time limit on the arrest of criminal aliens for deportation. Noting that Congress never intended that the arrest of a criminal alien be subject to a time limitation, 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 had misinterpreted 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. It was important to public safety for the Supreme Court to uphold this law,” he added.

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