Kelly v. Preap

Whether the mandatory detention provision of 18 U.S.C. § 1226(c) applies to an alien released from criminal custody where the Department of Homeland Security does not take the alien into custody immediately after their release.

Under 18 U.S.C. § 1226(c), the Immigration and Naturalization Act (INA), aliens in the United States convicted of enumerated crimes are to be held without bond by immigration authorities after their release from law enforcement custody. Respondents in this case are lawful permanent residents, who committed crimes listed in INA and served criminal sentences before returning to society. Respondents filed a class action petition in the Northern District of California after being taken into custody and held without bond pursuant to § 1226(c), several years after their release by law enforcement. The district court issued a preliminary injunction requiring that the United States hold bond hearings to determine whether each detainee posed a flight risk or a danger to the community, pursuant to § 1226(a). The United States appealed, and the Ninth Circuit affirmed the decision of the lower court, stating that under the INA mandatory detention without bond may only take effect where the individual is taken into INS custody “promptly” after their release from criminal custody. On appeal, the United States argues that the decision of the Ninth Circuit incorrectly interprets the ambiguity of the statement “when the alien is released” in § 1226(c). Further, the United States argues that under Barnhart v. Peabody Coal Co., 537 U.S. 149, 158 (2003) the government is not precluded from delayed action simply because the statute provides a timeframe for DHS action. Finally, the United States argues that gaps in custody are often out of DHS control and should not prevent the application of § 1226(c).