Nielsen v. Preap (16-1363)

argument 16-1363

Nielsen v. Preap

Supreme Court of the United States 1h 1m 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the statutory text that defines mandatory detention of criminal aliens?

John G. Roberts 0:00

We'll hear argument first this morning in case sixteen thirteen sixty three, Nielsen, Secretary of Homeland Security versus PREAP. Mr Tripp?

Jeffrey B. Tripp 0:14

Uh Mr Chief Justice, and may it please the court. Uh a criminal alien does not become exempt from mandatory detention by the happenstance that DHS did not arrest them immediately or promptly after they got out of jail or prison. And the best way to illustrate this point is just to look at the statutory text. And the the key provision we are talking about here is twelve twenty six C two. This is the prohibition against releasing a detained criminal alien. And this is on page four of our merits brief. Uh and what it says is that uh the Secretary may release an alien described in paragraph one only if It is for witness protection. And it's undisputed here that the witness protection exception does not apply and that this categorically prohibits the release on bond of anybody who is an alien described in paragraph one.

Jeffrey B. Tripp 1:01

So then the question is who are those aliens? And on in in paragraph one, it's on the prior page And it just answers that in no uncertain terms. It says, uh the Secretary shall take into custody, quote, any alien who is inadmissible or is deportable under these different provisions that relate to their uh criminal history or terrorist activities. And so an alien described in t in paragraph one is any alien who is inadmissible or is deportable under one of these provisions. In the next part of the statute

Elena Kagan 1:30

do you give The alien is released. command you to do anything?

Jeffrey B. Tripp 1:35

Yeah, the the the the key function of that uh so the uh is to tell the Secretary when to act, right? So it's a line flush left. So

Elena Kagan 1:45

you don't see any uh sense of Uh urgency in your acting, no sense of encouraging you absolutely in some way to uh actually do what the statute says.

Jeffrey B. Tripp 2:07

You know this is an urgent priority, it's a mandate, you know, and and it and it kicks in, it is triggered uh as soon as the alien is released. It it is our our our our key point is that the phrase when the alien is released. So tell

Elena Kagan 2:19

me why would you have need transition rules? under your reading of this statute, which there were. And the transition rules said you have two years essentially. to put in place enough personnel and facilities. to do what the statute requires you to do. Why did you need that two year period? If in your view you have absolute discretion to pick an alien up whenever you want it to anyway.

Jeffrey B. Tripp 2:48

I I I think that's really not a a fair characterization of our position. Our our understanding is that this is a mandate, it it it it is triggered immediately. In a very large number of cases, the arrest is going to occur immediately. This is a mandate and this statute was going to direct that many more aliens be arrested. And so under our stan our you know and and the the real concern with the transition period rules was a lack of bed space, uh and under both of our interpretations this is going to drive up uh the number of aliens who are arrested.

Elena Kagan 3:17

But why did you need the transition rules at all? If you have discretion, as you claim to have, to decide when you're gonna pick up an alien. either the day of release or in one case before us eleven years later. You didn't need the transition rules. You could have just done what you needed to do to create the bed space or get the personnel. And start arresting people when you thought you could.

Jeffrey B. Tripp 3:42

But again, I I I want to be clear, r we don't interpret this to say that we can arrest the person whenever we want. We we understand this to be a continuing urgent obligation to arrest them right now. We need to arrest them when they get out. We need to arrest them the next day, the next month, uh whenever it happens. Uh but uh you know sometimes it may not occur for years because DHS doesn't know where the person is.

Elena Kagan 4:09

Paragraph one. is an entire paragraph. It describes a type of alien. and an alien who's picked up at a particular time. So if The statute intended this uh lack of authority to kick in. If for the alien uh only met. A through D. Why doesn't the statute say that?