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.