Noncitizens, who have been released from custody on criminal matters, can be held without bail pending removal proceedings, even if immigration authorities did not immediately take them into custody after their release, the U.S. Supreme Court held March 19 in Nielsen v. Preap.

Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provides that the Secretary of Homeland Security shall take into custody any alien who has committed certain crimes “when the alien is released” and must hold them without bail until the issue of their removal is resolved.

Monty Preap was a lawful permanent resident who was convicted of drug charges, and released from criminal custody in 2006.

In 2013, immigration authorities arrested him and held him without bail under Section 1226(c).

Preap argued his detention without bail was illegal because he was not “immediately” arrested upon his release from criminal custody in 2006.

The Ninth Circuit ruled in favor of Preap.  The Supreme Court granted cert to resolve a split among the circuits.


The Court, in a 5-4 opinion, held, as a matter of statutory interpretation, that a noncitizen need not be “immediately” arrested by immigration authorities in order for Section 1226(c) to require them to be held without bail.

“[N]either the statute’s text nor its structure supports [Preap’s] argument,” the Court ruled.

“Especially hard to swallow is [Preap’s] insistence that for an alien to be subject to mandatory detention under Section 1226(c), the alien must be arrested on the day he walks out of jail,” the Court said.

“Assessing the situation in realistic and practical terms, it is inevitable that [Preap’s] unsparing deadline will often be missed for reasons beyond the Federal Government’s control,” the Court said.  “To give just one example, state and local officials sometimes rebuff the Government’s request that they give notice when a criminal alien will be released.”

Preap also argued that, under a prior Supreme Court case, mandatory detention without bail for noncitizens who are arrested years after their original release may violate due process, because such noncitizens may ultimately be able to demonstrate grounds why they should not be removed.

But the majority emphasized that Preap did not previously raise his constitutional argument, so the Court would not consider it.

“We emphasize that [Preap’s] arguments here have all been statutory,” the Court said.  “While [Preap] might have raised a head-on constitutional challenge to Section 1226(c), [he] did not,” the Court said.  “Our decision today on the meaning of that statutory provision does not foreclose as-applied challenges – that is, constitutional challenges to application of the statute as we have now read it.”

Justice Breyer, joined by Justices Ginsburg, Sotomayor and Kagan, dissented.