The U.S. Supreme Court agreed Monday to delineate the federal government’s power to detain foreign nationals convicted of crimes after they are released from prison.
The case is the latest iteration of the ongoing conflict between the hawkish Trump administration and sanctuary jurisdictions who decline to cooperate with immigration enforcement.
Federal law allows the U.S. Department of Homeland Security to detain non-citizens convicted of certain crimes after they are released from jail, pending deportation proceedings. The Trump administration says the law requires the detention of all applicable aliens, while a group of non-citizens argues it applies only to those seized immediately after their release from prison. Foreign nationals released from jail sometimes return to normal living for a significant period of time before immigration authorities detain them.
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The 9th U.S. Circuit Court of Appeals ruled in the immigrant’s favor, provided they do not pose a threat to public safety. Their decision is at odds with four other federal courts of appeal, which reached the opposite conclusion. The Supreme Court is likely to review cases in which multiple circuit courts disagree over the same question of law.
The lead plaintiff, Mony Preap, is a Cambodian-born lawful permanent resident convicted of two misdemeanor marijuana offenses.
“Under the 9th Circuit’s rule, many criminal aliens will become exempt from mandatory custody for a reason — a gap in custody — that is ‘irrelevant for all other immigration purposes’ and often outside DHS’s control,” Principal Deputy Solicitor General Jeffrey Wall wrote in the government’s petition to the high court.
The government also says the administrative body which interprets and applies federal immigration law, the Board of Immigration Appeals (BIA), has endorsed their reading of the statute, and the courts must defer to their findings.
The justices ruled that aliens held in immigration jails before deportation or asylum hearings do not have a statutory right to a bond hearing on Feb. 27. The 9th Circuit will now decide whether the Constitution provides such a right.
The case, Nielsen v. Preap, will be heard during the high court’s next term, which begins in October.
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