Up for appeal:
Supreme Court to rule on bail for criminal immigrants
After expanding the government’s authority to hold undocumented immigrants without bail, the U.S. Supreme Court agreed Monday to hear an appeal by the Trump administration of another immigrant detention case from the federal courts in San Francisco, this one raising a potential conflict with “sanctuary cities.”
The issue is whether immigration officials can jail noncitizens for days, months or years, without bail, after they’ve served time for criminal convictions that make them deportable. The immigrants would include legal U.S. residents as well as those who are undocumented who have been convicted for crimes that range from serious felonies to simple drug possession.
Federal law requires officials to seize those people, and hold them without bond, “when (they are) released” from their criminal sentences. In August, the Ninth U.S. Circuit Court of Appeals ruled that immigrants who had been released after serving their sentences, and then were picked up by immigration officers months or years later, were not covered by the federal detention law and were entitled to bail unless they were dangerous or likely to flee.
The phrase “when released” means the government must take “immediate action” in order to hold the noncitizen without bond, Judge Jacqueline Nguyen said in the appeals court’s 3-0 ruling. For example, she said, if a teacher told the class to stop writing “when the exam ends,” or a woman told her husband to pick up the kids “when they finish school,” they would expect a prompt response.
But other appeals courts have interpreted the law to allow no-bail detention regardless of timing. On Monday, the high court granted review of the case, with a hearing planned for the term that starts in October.
The action comes in the wake of the court’s 5-3 ruling last month that overturned another Ninth Circuit decision and allowed the government to detain undocumented immigrants indefinitely, without eligibility for bail, until hearings on their requests for political asylum or other exemptions from deportation.
“Trying to read the tea leaves, the result (in last month’s case) does not bode well” for the noncitizens seeking to avoid detention in Monday’s case, said Pratheepan Gulasekaram, an immigration law professor at Santa Clara University.
The case is separate from the Trump administration’s legal challenges to the “sanctuary” policies of California and San Francisco that limit local law enforcement cooperation with immigration enforcement.
But the case could impact sanctuary laws, because those policies make state and local governments less willing to hold noncitizens for delivery to immigration officers after they serve their criminal sentences.
Under Ninth Circuit ruling, “if a sanctuary jurisdiction lets the person out, then after that (Immigration and Customs Enforcement) comes to your home to arrest you, you are not subject to mandatory detention,” said Bill Hing, a University of San Francisco immigration law professor.
The lead plaintiff in the class-action suit, Mony Preap, was born in a Cambodian refugee camp and came to the U.S. with his family in 1981 as an infant and a legal resident. He had two misdemeanor convictions for marijuana possession in 2006, making him subject to deportation, then was released and turned over to immigration officers years later after serving 90 days in jail for battery in Sonoma County.
Preap later won the right to remain in the country legally but remains part of the lawsuit seeking to make all such detainees eligible for bail hearings.
The case is Nielsen vs. Preap, 16-1363.