What Happened
The Supreme Court sided with the Trump administration today. In ruling that immigrants with criminal records can be detained and held indefinitely while they await deportation proceedings. SCOTUS again over ruled the Ninth Circuit in reversing and remanding Nielsen v. Preap. In the 5-4 decision which decided in 2016 that immigrants with criminal records can only be detained by federal authorities if the detention occurs soon after he or she is released from jail.
Scotus held: The judgments of the U.S. Court of Appeals for the 9th Circuit; that respondents, who are deportable for certain specified crimes, are not subject to 8 U. S. C. §1226(c)(2)’s mandatory-detention requirement because they were not arrested by immigration officials as soon as they were released from jail are reversed, and the cases are remanded.
The base in the Court
The decision was authored by Justice Alito who announced the judgment of the court. He delivered the opinion of the court with respect to Parts I, III-A, III-B-1, and IV. In those parts Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh joined. He also delivered an opinion with respect to Parts II and III-B-2, in which Chief Justice Roberts and Justice Kavanaugh joined. Justice Kavanaugh filed a concurring opinion. Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined.
The argument
In oral argument Zachary Tripp, representing the government, argued that the “key provision” at issue in the case is 8 U.S.C. S 1226(c)(2), which deals with the circumstances under which an individual otherwise subject to mandatory detention under Section (c)(1) may be released. Justice Sonia Sotomayor, asked him what meaning the government gave to the “when released” language of Section (c)(1). “So you don’t see any sense of urgency in your acting, no sense of encouraging you … in some way to actually do what the statute says?” she pressed. She noted that, at the time the statute was enacted, Congress also enacted a two-year transitional rule that would allow for a ramping-up period leading to the mandatory detention regime now in place. “Why did you need that two-year period if, in your view, you have absolute discretion … to pick up an alien whenever you want anyway”? Tripp responded that the government “understand[s] this to be a continuing and urgent obligation to arrest them right now,” but did not concede that the statute’s authorization of detention is tied to fulfilling that obligation.
Sotomayor’s questions highlighted continuities between this case and Pereira v. Sessions last term. In Pereira, the Supreme Court held that the government’s obligation was to serve a notice to appear that contained the date of appearance. Preap argues that the congressionally mandated procedure is to apprehend individuals released from criminal custody immediately upon their release. In this case as in Pereira, the government’s argument attempts to reframe this obligation as a charge to do its best, while imposing on immigrants the full burden of the statutory scheme.
Ref:
Breaking: Supreme Court Rules in Favor of Trump on Immigrant Detention
https://thehill.com/regulation/court-battles/434720-supreme-court-sides-with-trump-administration-in-immigrant-detention
https://www.supremecourt.gov/opinions/18pdf/16-1363_a86c.pdf
https://www.washingtonexaminer.com/policy/courts/supreme-court-sides-with-trump-on-detention-of-illegal-immigrants