The US Supreme Court [official website] on Monday granted certiorari [order list, PDF] in Nielsen v. Preap [docket; cert. petition, PDF] to rule on the mandatory detention of noncitizens who are released from criminal custody.

The question before the court is whether, “a criminal alien becomes exempt from mandatory detention under 8 USC § 1226(c) [materials] if, after the alien is released from criminal custody, the Department of Homeland Security (DHS) [official website] does not take him into immigration custody immediately.”

Under § 1226(c), DHS can take into custody any alien that has committed a specified offense and, “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 or imprisoned again for the same offense.”

In late 2013, the respondents to this case brought a putative class action in federal district court, arguing that despite committing a specified predicated offense under § 1226(c), they were exempt from mandatory detention under the law because DHS did not immediately take them into custody when released. The court found:

a class consisting of all aliens in California “who are or will be subjected to mandatory detention under 8 USC section 1226(c) and who were not or will not have been taken into custody by the government immediately upon their release from criminal custody for a Section 1226(c)(1) offense.”

Both the district court and the appeals court found in favor of the respondents, holding that they were exempt from mandatory detention because they were not taken into DHS custody immediately upon their release and granting a preliminary injunction requiring the government to provide bond hearings to all class members. In ruling so, the US Court of Appeals for the Ninth Circuit created a circuit split that the court will have to resolve.