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Nielsen v. Preap - SCOTUS Case, Kavanaugh and Immigration

After a contentious confirmation process in the Senate that sparked fierce national debate, Brett Kavanaugh was sworn in on Saturday, October 6th, 2018. On Wednesday, October 10, the Supreme Court heard arguments for the case of Nielsen v. Preap. This is one of the first cases to be argued before the Supreme Court with Kavanaugh on the bench and may be one of the first on which he will vote in a decision. For anyone interested in the potential legacy of this justice, it is something to be followed. Most importantly for us, though, this case relates to immigration, so it is something that we have been following closely.

The issue on the table here is Title 8 U.S. Code Section 1226(c) that essentially states that the Attorney General shall take into custody any alien who is ‘inadmissible’ due to having committed a crime when the alien is released (emphasis added). So, what does “when the alien is released” mean? Does it have to be instant? Can ICE wait a few days? A week? A year? Ten years? Or even, as Justice Gorsuch asked on Wednesday, thirty years? If the government waits too long, does it still have the power to detain someone? “Is there any limit on the government’s power?” Gorsuch asked.

Our own Mr. Scott Bratton noted that he has argued the ambiguity of this phrase many times over the years on behalf of clients and has met with varying results. This issue has been argued and ruled on back and forth in courts across the country and has now finally made its way to the Supreme Court.

These are important questions that could impact the future of many. The government contends that “when the alien is released” constitutes a “continuing obligation” and that therefore it does not matter how long it takes for ICE to actually find the person in question and thus they are justified in their current practice. Kavanaugh seems to agree with the government, noting, “Congress would have known or thought that it [detention] wasn't going to be immediate in many cases…and yet Congress did not put in a time limit… And so, when you combine those two points: Congress knew it wouldn't be immediate, and yet Congress did not put in a time limit, that raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so.”

One of the questions raised about Kavanaugh are his views on the scope of presidential and government power, which are considered to be expansive. This case will provide an early look into his views on the subject. From this argument, it seems that he leans on the side of more government power.

The reader may be wondering: what are these crimes that can lead to deportation? Any noncitizen immigrant, even if they have a green card, can be deported if they are convicted of an aggravated felony. When the average person hears the phrase “aggravated felony,” they may imagine that this applies to serious crimes like assault, rape, or murder. However, current draconian practice holds that almost any crime, down to running a red light, can be cause for detention and deportation. Immigrants are then unceremoniously swept away from their lives, jobs, and families to be detained indefinitely without bond. This case could change that.

One of the cases from the lower courts was that of Mr. Clayton Gordon, who had served honorably in the U.S. military and had been living in Connecticut for many years, and was convicted of a drug offense in 2009. In the next few years, he dutifully completed his probation, got married, and had two children. Mr. Gordon was working as a contractor and serving his community by helping to build a halfway house for women released from prison. In short, Mr. Gordon had put his past behind him and was building a good life here in the United States for himself and his family while helping his community.

There was only one problem. Mr. Gordon was not a United States Citizen; he was born in Jamaica and came to the U.S. when he was six years old as a lawful permanent resident. After leaving for work one summer morning in 2013, Mr. Gordon was picked up by Immigration and Customs Enforcement (ICE). Because of his drug offense, he was considered a danger and detained without bond. Mr. Gordon would be one of many affected by this case and we will continue to watch it closely.

A complete transcript of the arguments on Wednesday can be found here: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/16-1363_h315.pdf

Justin Faulhaber