Tuesday Talk*: When Is When Released?

The opinion in Nielson v. Preap would naturally be dreaded, given that Justice Sam Alito wrote for the majority. It does remarkably little to the law, essentially holding that “when released” under 8 U.S.C. § 1226(c)(1) means at any time after a non-citizen is released from criminal incarceration. The upshot is that once seized as deportable under a few subsections of law that cover essentially everything short of a speeding ticket, the person can be held without opportunity for bond in, essentially, perpetuity.

The opinion is beyond tedious, which may explain why this ‘splainer seems nearly unrecognizable to anyone who actually read the decision. Trigger warning: if you read this from the syllabus, you will hate yourself for not listening to my warning.

The statute’s text does not support the argument that because respondents were not arrested immediately after their release, they are not “described in” §1226(c)(1). Since an adverb cannot modify a noun, §1226(c)(1)’s adverbial clause “when . . . released” does not modify the noun “alien,” which is modified instead by the adjectival clauses appearing in subparagraphs (A)–(D). Respondents contend that an adverb can “describe” a person even though it cannot modify the noun used to denote that person, but this Court’s interpretation is not dependent on a rule of grammar. The grammar merely complements what is conclusive here: the meaning of  described” as it appears in §1226(c)(2)—namely, “to communicate verbally . . . an account of  salient identifying features,” Webster’s Third New International Dictionary 610. That is the relevant definition since the indisputable job of the “descri[ption] in paragraph (1)” is to “identif[y]” for the Secretary which aliens she must arrest immediately “when [they are] released.” Yet the “when . . . released” clause could not possibly describe aliens in that sense. If it did, the directive given to the Secretary in §1226(c)(1) would be incoherent. Moreover,  Congress’s use of the definite article in “when the alien is released” indicates that the scope of the word “alien” “has been previously specified in context.” Merriam-Webster’s Collegiate Dictionary 1294. For that noun to have been previously specified, its scope must have been settled by the time the “when . . . released” clause appears at the end of paragraph (1). Thus, the class of people to whom “the alien” refers must be fixed by the predicate offenses identified in subparagraphs (A)– (D).

I warned you. But here’s the hard problem, Alito’s folksy writing notwithstanding. For decades, a  non-citizen** convicted of a crime and imprisoned would have an immigration detainer lodged with the institution in which he was incarcerated. If, for whatever reason, there was gap, whether because the detainer wasn’t lodged, Immigration failed to come get him within 48 hours of being notified of release or just a crack in the system, and the non-citizen walked out of prison to breathe free air, he won. It’s not that it was impossible for him to be held by INS, but that they didn’t go out looking for their mistakes in general. If the person was re-arrested, he was fair game. If he happened to get caught in a sweep, bad things could happen. And if he left the country and re-entered, there was a good chance this would pop up to bite him in the butt.

And so, criminal defense lawyers advised their clients according to the extant practice to keep your nose clean, don’t tempt fate by international travel and chances are good you will get to grow old in America. That advice served people satisfactorily until Obama’s ICE became extremely aggressive in affirmatively cleaning up their mistakes. If you assumed this was some Trumpist abomination, Preap was released from criminal custody in 2006 and detained by ICE in 2013. Sorry to ruin your fantasies.

In dissent, Justice Breyer both recognizes the hard problem raised, as well as the “unpersoning” of the detained.

The question is whether this provision limits the class of persons in the “no-bail-hearing” category to only those aliens who were taken into custody “when . . . released” from prison, or whether it also places in that “no bail-hearing” category those aliens who were taken into custody years or decades after their release from prison.

Notably, the “decades after” language is not at all hyperbolic. A teenage weed bust can come back to bite a legal permanent resident, who lawfully arrived on our shores at age two months and has enjoyed an otherwise law-abiding life for the next 50 years.

Does “when release” mean at the moment of release or at any time after release? Is this, as Justice Alito appears to argue, left to pedants and whoever writes definitions at Merriam Webster? Did Congress once again blow the wording and create a vagary to be exploited by ICE and the Court? Is there some weighing of the equities here, that someone who was released 50 years ago gets a pass, but someone released yesterday gets crushed?

The problem from a practical point of view, is that lawyers can’t properly advise clients of consequences when they change after the fact. Did we do wrong by not anticipating the ruling in this case, despite the manner in which such cases had been handled for the decades preceding Preap? What are we supposed to do?

*Tuesday Talk rules apply. Be gentle, you animals.

**Note that this isn’t just about “illegals,” but totally legal immigrants who are convicted of what’s euphemistically called an “aggravated felony,” which is not necessarily aggravated or a felony.

17 thoughts on “Tuesday Talk*: When Is When Released?

  1. B. McLeod

    Being a non-citizen in a country has carried additional risks since classical times, and perhaps always. As for the ripples generated by this decision (and Obama/post-Obama practice), even if every CDL associated with an immigration attorney, the practical advice to the clients probably would not have been different. Still in the hopper is the randomness that comes of this being such a vast numbers game. Even though ICE is now making an effort to “correct its mistakes,” it will never manage to actually do so in more than a small fraction of cases. Some deportations that will occur as a result will naturally enough be seen by the media and some of the public as disproportionate to the offenses of conviction, especially as incongruous deportations of minor offenders occur, even as dangerous felons are missed. The opinion acknowledges there will still be room for “as-applied” constitutional challenges, so we will see where that goes. For now, this signifies to convicted non-citizens that after their discharge from the randomness of the criminal justice system, they will have the ongoing randomness of the deportation lottery.

  2. John Barleycorn

    I actually had a dream the other night where Samuel was kickin’ it back and spinning some original Curtis Mayfield vinyl.

    Nah, just fucking with you!

    He was actually bitching at Martha-Ann for not putting enough blueberries in his Malt-O-Meal while she was whispering under her breath, “I should have married a real Oatmeal Man.”

  3. szr

    I really like your note “this isn’t just about ‘illegals,’ but totally legal immigrants who are convicted of what’s euphemistically called an ‘aggravated felony,’ which is not necessarily aggravated or a felony.” I would add that it is also not necessarily a conviction.

    If I may engage in a bit of intersectionality, I am sure the day is coming when a Title IX investigation report will be the basis for deporting someone.

    1. SHG Post author

      “But it’s not a criminal trial,” as they persist in trying to make the penalties as bad or worse.

    1. SHG Post author

      I sometimes find that things that interest me don’t interest others. Don’t miss the opening monologue.

      1. ShootingHipster

        I read your blog daily. It’s because I care about you that I don’t always comment. Isn’t it bad enough that occasionally I do?

  4. Richard Kopf


    From the vantage point of a “fast track” departure court (that is I see tons of illegal reentry after deportation proseuctions), my guess is that things will not change all that much.

    ICE will fail to grab folks promptly when they jam their state time and they will be released to disappear (again) into the great American meat packing world or, if they are lucky, the roofing business.

    Thus, your prior advice, which was good when given, remains true today. Trust me. ICE can’t handle the load and will “screw up.” In short, as you say, “the decision did remarkably little to the law” and, in my opinion, remarkably little as a practical matter.

    All the best.


    1. SHG Post author

      Ironically, the ones who are most likely to suffer from it are the good guys, appreciated and established in their communities, nice family, good jobs, easy to find and nowhere to go.

      1. Patrick Maupin

        Ironic? Perhaps. As Deming may or may not have said, “Every system is perfectly designed to get the results it gets.”

        The current system was designed iteratively and incrementally. Like a trail of ants slowly rounding off the corners until they have achieved a straight path, it apparently gives successful results.

        If Machiavelli himself were to attempt to design a system that reliably delivered cut-rate labor to big agriculture, while simultaneously placating the conservative masses by proving (through liberal media sob stories about families ripped asunder) that the government was appropriately “doing something” about illegal immigration, could he do better than what we have now?

  5. David Meyer-Lindenberg

    Because I hate myself, I read the majority decision. Yeah, it’s a vast overexplanation of two fairly straightforward – if hard-to-answer – grammatical questions. Then, because I hate myself even more, I read MJS’ ‘splainer.

    I mean… damn, this is bad. It just bears next to no relation to Alito's actual reasoning. MJS gives a simplistic, depressingly ungrammatical explanation of part of Breyer's argument, completely elides Alito's, then disses those dumb "conservative" justices for not seeing the light and ruling as the ACLU demands. I never appreciated just how many people, every day, must be getting made dumber by this guy.

    1. SHG Post author

      MJS thinks I’m a really mean person for always saying mean things about him. But I wouldn’t if he didn’t write such stupid crap. If he hadn’t included the case name, you wouldn’t know he was talking about the same case. It was mind-numbing.

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