On Tuesday, the Supreme Court ruled against immigrants who argued that even if they had committed crimes that made them deportable, the Department of Homeland Security could only take them into immigration custody to decide what to do with them after they’ve finished their sentences after more than roughly one day has gone by since their release.
As the Supreme Court noted:
Federal immigration law empowers the Secretary of Homeland Security to arrest and hold a deportable alien pending a removal decision, and generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. unless they are taken into custody immediately. Another provision, §1226(c)—enacted out of ‘concer[n] that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings,’ Demore v. Kim, 538 U. S. 510, 513—sets out four categories of aliens who are inadmissible or deportable for bearing certain links to terrorism or for committing specified crimes.
Section 1226(c)(1) directs the Secretary to arrest any such criminal alien “when the alien is released” from jail, and §1226(c)(2) forbids the Secretary to release any “alien described in paragraph (1)” pending a determination on removal (with one exception not relevant here).
Reuters noted the remarks of Justice Samuel Alito, who wrote the opinion. Reuters wrote, "It is not the court’s job, Alito wrote, to impose a time limit for when immigrants can be detained after serving a prison sentence. Alito noted that the court has said in the past that 'an official’s crucial duties are better carried out late than never.'”
As NBC News reported, “… those affected by the law aren't always picked up immediately and are sometimes not detained until years later. In the case before the Supreme Court, a group of mostly green card holders argued that unless they're picked up essentially within a day of being released, they should be entitled to a hearing where they can argue that they aren't a danger to the community and are not likely to flee. If a judge were to agree, they would not have to remain in custody while their deportation case goes forward.”
Both the Obama administration and the Trump administration contended against hearings for immigrants convicted of crimes and affected by the law.
The Court broke along ideological lines in a 5-4 decision. Conservative justices Roberts. Alito, Thomas, Gorsuch and Kavanaugh concurred in the decision; the four other justices dissented.
The Court gave attorneys for the immigrants a lesson in grammar, pointing out:
The statute’s text does not support the argument that because respondents were not arrested immediately after their release, they are not “described in” §1226(c)(1). Since an adverb cannot modify a noun, §1226(c)(1)’s adverbial clause “when . . . released” does not modify the noun “alien,” which is modified instead by the adjectival clauses appearing in subparagraphs (A)–(D). Respondents contend that an adverb can “describe” a person even though it cannot modify the noun used to denote that person, but this Court’s interpretation is not dependent on a rule of grammar. The grammar merely complements what is conclusive here: the meaning of “described” as it appears in §1226(c)(2)—namely, “to communicate verbally . . . an ac- count of salient identifying features,” Webster’s Third New International Dictionary 610. That is the relevant definition since the indisputable job of the “description] in paragraph (1)” is to “identif[y]” for the Secretary which aliens she must arrest immediately “when [they are] released.” Yet the “when . . . released” clause could not possibly describe aliens in that sense. If it did, the directive given to the Secretary in §1226(c)(1) would be incoherent.
Moreover, Congress’s use of the definite article in “when the alien is released” indicates that the scope of the word “alien” “has been previously specified in context.” Merriam-Webster’s Collegiate Dictionary 1294. For that noun to have been previously specified, its scope must have been settled by the time the “when . . . released” clause appears at the end of paragraph (1). Thus, the class of people to whom “the alien” refers must be fixed by the predicate offenses identified in subparagraphs (A)– (D). Pp. 10–14.