Updated: Nov 7
This ruling mainly affects non-citizens who have committed a criminal offense as defined in 8 U.S.C § 1226 (c). This includes both undocumented and legal immigrants currently in the U.S. Even if you have a Green Card, you could still be arrested if you have a criminal record.
In the recent Supreme Court case, Nielsen v Preap, decided on March 19th, 2019, a majority of justices sided with the Trump Administration in indefinitely detaining immigrants who have committed a criminal offense. This ruling also states that they are not entitled to a bond hearing while they remain in custody.
Immigration law, specifically 8 U.S.C § 1226 (c), says that immigration authorities can arrest those who have been in custody for committing a crime after they have served their sentence. Immigration authorities can detain them while an immigration court decides if they will be deported or not. It says, “The Attorney General shall take into custody any alien who- when the alien is released…” However, this part of the United States Code is ambiguous because it does not specify the time frame immigration authorities need to detain immigrants after their release from custody. Most of the time, immigration authorities detain those immigrants years after their release from custody. When they are detained by immigration authorities, they are not entitled to a hearing on whether or not they are a danger to the community and are unlikely to flee, something other immigrants are granted.
In Nielson v Preap, three lawful permanent residents argued that the statute mandated that immigration authorities detain immigrants immediately after being in custody, not months or years after. In the District Court and 9th Circuit Appellate Court, they both sided with the immigrants, arguing that immigration authorities cannot detain them if they were not taken immediately upon their release because the statue reflected an immediacy when it stated “when the alien is released.” The Supreme Court, however, reversed their rulings and argued that the federal government had the authority to detain them immediately upon their release and also whenever in the future. They argued that there was no time frame that immigration authorities had to follow. Because of this ruling, it broadened the federal government’s power to indefinitely detain immigrants because they do not have the right to have a hearing on whether or not they pose a threat to the community. Before, immigrants could have requested that hearing and the judge could have issued them a bond, where they were able to be released from detention until a judge decided on their deportation.
This ruling mainly affects non-citizens who have committed a criminal offense as defined in 8 U.S.C § 1226 (c). This includes both undocumented and legal immigrants currently in the U.S. Even if you have a Green Card, you could still be arrested if you have a criminal record. For example, those who have violated any law or regulation relating to a controlled substance, crimes involving human trafficking, or any firearm offenses are all subjected to this court ruling.
What could this mean for you? This ruling could restrict your ability to be released by bond awaiting the judge’s decision, especially if you fall within the jurisdiction of the US Code previously mentioned. We at Shan Potts Law Offices have been helping immigrants obtain relief from removal proceedings and avoid deportation. We help people clear their criminal records so they can avoid getting arrested by ICE. We are dedicated to fighting for you and will do everything in our power to help you achieve the best possible ruling. We can provide the legal analysis and assistance to represent you in court or on legal documentation, so you and your family can live and work legally in the U.S.
Contact us at 323-803-7147 if you or someone you know requires legal assistance.