Noncitizens Can Be Held in Mandatory Detention Years After Criminal Conviction

In the case of Nielsen v. Preap, the Supreme Court ruled that noncitizens may be held mandatory detention for crimes committed, regardless of how long ago they occurred.

By , J.D.

In February 2019, the U.S. Supreme Court issued an opinion that will affect undocumented persons as well as green card holders who have been jailed or imprisoned for a crime. The court held that noncitizens can be subject to mandatory immigration detention even if they are not taken into immigration custody upon being released from jail or prison for a criminal offense.

Noncitizens who are held in mandatory detention—meaning detention without a chance to seek bond from an immigration judge while trying to defend against removal (deportation)—face significant obstacles to securing legal counsel and effectively presenting their defense to removal from the United States.

This recent Supreme Court case, Nielsen v. Preap, involved the legal interpretation of the federal statute that subjects noncitizens to mandatory immigration detention. Noncitizens with or without legal status can be subject to mandatory detention during removal proceedings based on having certain types of criminal conduct or convictions on their record. These include crimes involving moral turpitude, controlled substance offenses, firearms offenses, aggravated felonies, and other crimes.

The plaintiffs in the case (three lawful permanent residents) were taken into immigration custody by Immigration and Customs Enforcement (ICE) many years after having committed the criminal offenses that made them removable from the U.S. and were held without the right to a bond hearing before a judge.

These plaintiffs argued that the mandatory detention statute required that they be taken into immigration custody immediately after their release for a criminal offense, not many years later. Therefore, they argued, they should be given the right to a bond hearing before an immigration judge to determine whether they were a flight risk or a danger to the community and if not, potentially be released on bond.

The majority of Supreme Court Justices, in a 5-4 decision, found that the mandatory detention statute did not require that ICE act immediately, or indeed within any particular time frame, if it wants to take people into custody after their release from jail or prison for a crime.

This means that noncitizens without legal immigration status, as well as legal permanent residents, can be taken into immigration custody and be held without the right to a bond hearing for criminal conduct committed years prior, even if they have rehabilitated and not reoffended.

The consequences of being subject to mandatory detention are severe in immigration proceedings. Noncitizens can spend many months, or even years, in detention as they await a decision or appeal on their immigration case.

For this reason, it is important to consult an immigration attorney if you have been arrested for, or convicted of, a criminal offense in the U.S. and you are not a citizen. Consulting an attorney is especially important if you plan to travel outside of the U.S. as many green card holders are denied entry, detained, and subjected to mandatory detention based on past criminal convictions after returning to the U.S. from a trip abroad.

Effective Date: March 19, 2019