Washington
There is a split in the lower courts on whether federal officials must act immediately after the person is released from criminal custody to detain them indefinitely as they await deportation proceedings. The case will be heard in the term that begins in October.
The U.S. Court of Appeals for the 9th Circuit said that unless the arrest is prompt, the detainee should receive a hearing to determine whether they may be freed awaiting the outcome of the deportation proceedings. The immigrant would have to convince an immigration judge that they posed no danger to others and was not a flight risk.
Other lower courts have agreed with the government’s reading that detention is mandatory no matter when the noncitizen is picked up.
The government claims the 9th Circuit’s approach will lead to a “gap in custody” and hamper the federal government’s ability to remove deportable immigrants.
The Trump administration said the efforts of “sanctuary cities” reluctant to cooperate with federal authorities escalates the difficulties.
The Obama administration took the same reading of the law, but the stakes are higher with President Donald Trump’s vow to remove more noncitizens who have committed crimes that make them deportable.
The 9th Circuit case involved two people in unrelated cases.
Mony Preap was born in a refugee camp after his parents fled Cambodia, and he has lived legally in the United States since 1981. He was convicted in 2006 of marijuana possession, but was not picked up by federal authorities after he was sentenced to time served.
He served another criminal sentence for battery in 2013, a charge that is not a deportable offense. He was detained for months, but was released and no longer faces deportation.
Bassam Yusuf Khoury has been a lawful permanent resident of the United States since 1976. In 2011, he was released after serving a 30-day sentence for a drug charge. Nearly two years later, federal authorities picked him up for deportation and he was detained for more than six months before a judge said he could be released.
The issue concerns language in the federal law that authorizes the U.S. Department of Homeland Security to seize someone for deportation “when the alien is released” from criminal custody.
The federal government says it could mean any time after the release, not just immediately after the release.
Lawyers for the detainees said that under the government’s reading, that would impose mandatory deportation “on individuals who have been released months, years, or even more than a decade earlier, and who therefore have an actual record of living at liberty in the community without posing any flight risk or danger to others.”
The court decided a related case last month. On a 5-to-3 vote, the court said federal law did not require a bond hearing even after months or years of detention of those facing deportation.
The case to be heard is Nielsen v. Preap.