On March 19, 2019, the Supreme Court overruled a Ninth Circuit ruling that had granted certain protections to immigrants in Nielsen v. Preap. Previously, mandatory detention without a bond hearing only applied when immigrants were detained immediately after their release from criminal custody. This 5-4 ruling has opened the floodgates for potentially indefinite detention for immigrants with any criminal history, even from many years ago.
The crux of this case was a linguistic analysis of the statutory empowering Immigration and Customs Enforcement to detain immigrants “when the alien is released” from jail. This analysis of the definition of “when” and “is released” is what has changed years of procedure when an immigrant is detained with an only prior criminal history.
Previously this had been interpreted as meaning mandatory detention without a bond hearing was only for those immigrants that were detained immediately after being released from jail or prison. Writing for the majority of the court, Justice Alito stated that such interpretation could be construed to mean that “even 24 hours is too long” to be considered immediately after release.
The lead plaintiff, in this case, was apprehended by the Department of Homeland Security seven years after he had been released from criminal custody for minor drug charges. In this ruling Justice Alito affirmed that “(a)s we have held time and again, an official’s duties are better carried out late than never,” and that mandatory criminal detention without a bond hearing for “deportable criminal aliens” even many years after the immigrant is released from criminal custody is the intent of the statute.
For most immigrants, with or without status, this case is a wake-up call that no matter how minor their past criminal history it is important to speak to an attorney that can clearly and effective guide you to make the best decision regarding your status. If you have a family member currently detained there is still a chance to fight their case.
At Wilner & O’Reilly, we understand the complexities of the immigration laws and their consequences on families and individuals. We are experienced and are here to help. If you have any questions about unlawful voting or any other immigration matters, please do not hesitate to contact us. We offer free, in-person consultations at our offices in Orange, Fresno, Riverside, Sacramento, and San Bruno, California, as well as Orem and Salt Lake City, Utah, and Boise, Idaho.
ABOUT THE AUTHOR(S)
DANNY CHRISNEY – ATTORNEY
Danny Chrisney is an associate attorney at the Wilner & O’Reilly Fresno office. The son of a Guatemalan immigrant he speaks fluent Spanish and Portuguese. He studied at Brigham Young University where he earned a Bachelor of Arts in Linguistics with a Minor in Portuguese. Danny received his Juris Doctor degree from the Sandra Day O’Connor College of Law at Arizona State University where he graduated with Highest Pro Bono Distinction. While attending law school Danny worked with USCIS at the Phoenix Field Office. He also worked as a law clerk for the Florence Immigrant and Refugee Rights Project, Children’s Division, a non-profit organization dedicated to providing legal services to unaccompanied minors and other refugees.
KELLY S. O’REILLY – FOUNDING PARTNER
Kelly O’Reilly is a founding partner with Wilner & O’Reilly, APLC, and a former Immigration Officer with Citizenship and Immigration Services in Los Angeles and Orange County. With over 18 years working as an immigration attorney, he is an expert in all facets of Immigration Law and one of the best immigration attorneys serving Orange County and Riverside County. A native of Fresno, California, Mr. O’Reilly received his law degree from the University of La Verne, College of Law and his Bachelor of Science degree from Brigham Young University. A former missionary in Hong Kong, Mr. O’Reilly has a great love of Chinese culture and is conversant in Cantonese.