Nielsen v. Preap: Supreme Court Grants Cert in New Mandatory Detention (236(c)) Case

Melsida Asatrian's picture


On March 19, 2018, the Supreme Court of the United States granted certiorari in Nielsen v. Preap, Docket No. 16-1363 [PDF version]. The case is on appeal by the Government from the decision of the United States Court of Appeals for the Ninth Circuit in Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016) [PDF version]. The Supreme Court will consider whether an alien who has been released from criminal custody but who was then was not immediately taken into immigration custody by the Department of Homeland Security (DHS)is exempt from mandatory detention under section 236(c) of the Immigration and Nationality Act (INA). In this article, we will briefly examine the Ninth Circuit decision and what the Supreme Court's decision to take the case may mean going forward.

The Supreme Court recently reversed the Ninth Circuit in a separate immigration detention case involving a different section 236(c) question in Jennings v. Rodriguez, 583 U.S. __ (2018). Please see our full article to learn more about that decision [see article].

Questions Presented

The Supreme Court will consider the following question in Nielsen v. Preap [PDF version]:

Whether a criminal alien becomes exempt from mandatory detention under [section 236(c) of the INA] if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.

Section 236(c) of the INA is a mandatory detention provision. The statute requires the Attorney General to take into custody any alien who is subject to one of the mandatory detention grounds “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested and imprisoned again for the same offense.”

The Supreme Court will consider whether an alien becomes exempt from such mandatory detention if the DHS fails to take him or her into custody at the time he or she is released, but rather leaves a gap in time between the alien's release from criminal custody and his or her immigration arrest.

Interestingly, the Court did not agree to hear the question of whether courts have jurisdiction over the respondent's appeals. The Ninth Circuit found that it had jurisdiction, as did many other courts that have heard similar claims. Although it arose in a different context, jurisdiction over section 236(c) detention claims was discussed in a concurring opinion in Rodriguez [see article].

Decision Below

In Preap v. Johnson, a three-judge panel of the Ninth Circuit held that the section 236(c) mandatory detention provision “applies only to those criminal aliens who are detained promptly after their release from criminal custody, not to those detained long after.” 831 F.3d at 1206. The Court found that the use of the word “when” in the statutory phrase “when the alien is released” entailed “some degree of immediacy.” Id. at 1203-04 (internal citation omitted). Because the Ninth Circuit determined that the statutory language was unambiguous, it did not proceed to the second step of Chevron analysis to determine whether the DHS's differing interpretation of the statute was reasonable. Id. at 1203 n.14.

Other Decisions on the Issue

On May 18, 2001, the Board of Immigration Appeals (BIA) held in Matter of Rojas, 23 I&N Dec. 117 (BIA 2001) [PDF version], that an alien is subject to mandatory detention even if he or she is not taken into immigration custody immediately after release from incarceration. The Board has never overruled this precedent, and it remains good law outside of the Ninth Circuit.

In Castaneda v. Souza, 810 F.3d 15 (1st Cir. 2015) (en banc) [PDF version], the full six-judge panel of the First Circuit sitting en banc split evenly on the question resolved by the Ninth Circuit in Preap v. Johnson. As a result of the split, the First Circuit left intact a district court decision that interpreted section 236(c) as requiring the DHS to detain an alien immediately upon his or her release from detention, but this decision did not create binding precedent. It is worth noting that the Ninth Circuit decision in Preap v. Johnson borrowed heavily from the decision of Judge David J. Barron in Casteneda.

In Gordon v. Lynch, 842 F.3d 66 (1st Cir. 2016) [PDF version], a three-judge panel of the First Circuit rejected the imposition of a class-wide bright line rule of 48 hours for the DHS to detain an alien after his or her release from criminal custody. However, the First Circuit remanded for consideration in the first instance of what would constitute a “reasonable custody gap.”

However, notwithstanding the decisions of the Ninth and First Circuits, several other Circuits have upheld the Government's reading of section 236(c) as not requiring immediate detention. The Ninth Circuit noted that this included the decisions in Lora v. Shanahan, 804 F.3d 601, 612 (2d Cir. 2015) [PDF version]; Sylvain v. Att'y Gen. of United States, 714 F.3d 150, 157 (3d Cir. 2013) [PDF version]; Hosh v. Lucero, 680 F.3d 375, 380-81 (4th Cir. 2012) [PDF version]; and Olmos v. Holder, 780 F.3d 1313, 1322 (10th Cir. 2015) [PDF version]. 831 F.3d at 1196. Outside of the circuit courts, the Ninth Circuit noted in Preap v. Johnson, most district courts that have considered the question have rejected the Government's position. Id.

Although the Supreme Court does not state why it grants certiorari any given case, it is likely that the growing circuit split on this issue played a role in the Court's decision to do so in Preap v. Johnson and reflects a perceived need to provide a uniform rule on the meaning of “when” in section 236(c).


The question of whether an alien is subject to section 236(c) mandatory detention if there is a gap between his or her release from criminal custody and the ensuing arrest and detention by DHS is a significant one, for section 236(c) is a broad mandatory detention provision. Although most circuit courts that have decided the issue have sided with the Government, the Ninth Circuit is by far the largest circuit in terms of both the number of individuals under its jurisdiction and the number of immigration cases that arise in its jurisdiction. Accordingly, the Supreme Court's ultimate decision on the issue will reach a significant number of immigration cases regardless of the decision. In conjunction with the recent Jennings v. Rodriguez decision, which may itself return to the Supreme Court in the foreseeable future, the grant of cert in Preap suggests that several justices have an interest in resolving issues relating to the INA's mandatory detention provisions.

We will update the website with more information on the proceedings in Nielsen v. Preap as it becomes available.

Nielsen v. Preap:  Supreme Court Grants Cert in New Mandatory Detention (236(c)) Case