What does a criminal record mean for non-U.S. citizen residents in the United States? As a recent U.S. Supreme Court ruling revealed, having even a long-ago criminal offense on your record could result in being taken into custody under 8 U.S.C. 1226(c), the mandatory detention provision of the Immigration and Naturalization Act (INA). This provision requires the government to detain noncitizen residents of the United States who were committed of certain crimes “when...released” from criminal custody.
The case, Nielsen v. Preap, was argued during the U.S. Supreme Court’s October 2018 term. At issue was the question of whether the mandatory detention provision of the INA applies to noncitizens who are not detained by immigration authorities immediately after being released from criminal custody.
The mandatory detention provision seems designed to promote public safety by ensuring that dangerous criminals are not released back into the public. But in the past few years, the government has been using this provision of the law to detain lawful permanent residents (green card holders), sometimes years after they were released from criminal custody. Often, there was no criminal or threatening activity in the time between the release from criminal custody and being taken into immigration custody.
Three individuals who had been taken into immigration custody filed suit against the government. They alleged that, because they were not taken into immigration custody immediately upon release from criminal custody, the mandatory detention provision of the INA did not authorize the government holding them without bond.
The Ninth Circuit Court of Appeals found this argument persuasive, and ruled that the mandatory detention provision only applies to non-citizens taken into immigration custody upon release from criminal custody. Therefore, the plaintiffs should not have been detained by the government under this provision.
The case was then appealed to the Supreme Court, which reversed the Ninth Circuit’s decision and remanded the case. The Supreme Court held that the mandatory detention provision of the INA applied to criminal defendants even if their detention for immigration purposes was not immediately following their release from criminal custody.
The Supreme Court interpreted the mandatory detention provision to not just allow, but require detention without a hearing when a non-citizen resident committed a criminal offense and served a sentence. This is true whether that sentence ended hours, weeks, months, or even years earlier, and whether the non-citizen is released on probation, parole, or supervised release.
In other words, if, ten years ago, you committed an offense, served a sentence, and were released, you could be picked up and detained indefinitely without a hearing. This is true even if you have led a blameless life since your criminal conviction.
Not all criminal convictions require mandatory detention, but many do. It is easy to imagine someone making a foolish mistake, getting convicted based on a momentary lapse of judgment, and forever having to look over his shoulder, knowing he could be detained by the government at any time. There is no provision in the law to distinguish between a dangerous repeat offender and someone who committed one crime, one time, learned his lesson, and moved on to become a productive member of the community.
If you or someone you love is a green card holder or other non-citizen with a criminal history, the best thing you can do is get the advice of an experienced immigration attorney. You cannot change the past, but an attorney can help you prepare for whatever the future might hold, and advocate for you as needed. Contact our law office to schedule a consultation.
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