Ninth Circuit Rules for Immigrant Class in Immigrant Detention Case
Law 360 (subscription required) reports on Preap v. Johnson, an immigrant detention case decided by the U.S. Court of Appeals for the Ninth Circuit.
In an opinion by Judge Jacqueline Nguyen, joined by Judges Andrew Kleinfeld and Michelle Friedland, the court held that only criminally convicted immigrants placed in immigration detention soon after being released from criminal custody can be detained without bond hearings.
Specifically, the panel affirmed the district court’s class certification order and preliminary injunction in a class action habeas petition brought by criminal aliens subject to mandatory detention under 8 U.S.C. § 1226(c). The court found that the plain language of 8 U.S.C. § 1226(c), the government may detain without a bond hearing only those criminal aliens it takes into immigration custody promptly upon their release from the triggering criminal custody. The panel specified that it was holding that the mandatory detention provision of § 1226(c) applies only to those criminal aliens detained promptly after their release from criminal custody, not to those detained long after.
“The statute unambiguously imposes mandatory detention without bond only on those aliens taken by the [Attorney General] into immigration custody ‘when [they are] released’ from criminal custody,” wrote the court. “And because Congress’s use of the word ‘when’ conveys immediacy, we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.”
he class action was filed by three immigrants in late 2013. Besides certifying the class, the lower court issued an injunction forcing the government to hold bond hearings for all the class members. The Ninth Circuit upheld the lower court’s class certification ruling and the preliminary injunction.
Keker & Van Nest LLP, ACLU Immigrants’ Rights Project, ACLU Foundation of Northern California, and the Asian Law Caucus served as counsel for the class.
In an unpublished disposition the same day in Khoury v. Asher, the same panel of Ninth Circuit judges also affirmed a lower court’s order certifying a class of immigrant detainees and finding the class could have bond hearings The class was comprised of noncitizens who were subjected to mandatory detention under 8 U.S.C. § 1226(c) even though they were not detained immediately upon their release from criminal custody. The court relied on its opinion in Preap v. Johnson.
The detention of immigrants continues to come under legal scrutiny. This Term, the U.S. Supreme Court in Jennings v. Rodriguez will consider a case about whether immigrants are entitled to a bond hearing after six months of detention.
KJ