When is someone subject to mandatory detention? The US Supreme Court on Wednesday heard arguments in a case which challenges the detention provisions of the Immigration and Nationality Act (INA)
In the first case, Nielson v. Preap, the court is asked to determine:
*Whether a criminal alien becomes exempt from mandatory detention under [INA] if, after the alien is released from criminal custody, the Department of Homeland Security [DHS] does not take him into immigration custody immediately.*
Subsection (c)(1) of the Act states: *The Attorney General shall take into custody any alien who * * is deportable or inadmissible for reasons related to offenses pending removal proceedings. The government argues that the provision mandates immediate arrest of such persons, but that *immediate* means DHS shall take into custody as soon as they are able to.
The respondents are individuals *who have served criminal sentences but who [were] not in criminal custody at the time that the government initiate[d] removal proceedings against them.* In fact, they had been released from custody long before the removal proceedings began against them. Their argument is that individuals released from criminal custody who have a pending removal proceeding, shall be immediately taken into DHS custody. Those who are not immediately taken into DHS custody shall have a hearing when they eventually are taken into custody for removal proceedings.
Unfortunately, Immigration and Customs Enforcement as well as CBP
treat anyone with a criminal record no matter when they were convicted as subject to mandatory detention. This attitude is not supported by the law.
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