Argument preview: Justices once again consider proper scope of immigration law’s mandatory detention provision

Jennifer M. Chacón previews on SCOTUSBlog the oral arguments in Nielsen v. Preap, which presents the question whether a noncitizen exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately. Argument is set for October 10.

Immigrant detention has been challenged in the courts for many years, with the Court last Term (Jennings v. Rodriguez) deciding a question of the statutory authority for a statutory question and remanding the case for determining the constitutionality of the statute. The challenge in Nielsen v. Preap takes on added significance given President Trump’s expanded reliance on immigrant detention in enforcing the immigration laws.  From his first days in office, President Trump has ramped up the use of detention, announcing the end of “catch and release” in a January 2017 executive order and engaging in the mass detention of Central Americans (combined, for a time, with separating families inn detention), and efforts to abrogate the “Flores settlement,” which established the rules for detention and release of minor migrants.

KJ