How Nielsen v. Preap Could Lead To More Family Separations

This Immigration Case Before The Supreme Court Could Lead To More Family Separations

Nielsen v. Preap Would Determine Whether Immigrants With Past Convictions Are Subject To Mandatory Detention

Today, the Supreme Court will hear arguments in Nielsen v. Preap. At the heart of the case is whether individuals with past criminal convictions are subject to mandatory detention without a bond hearing if they are not taken into Immigration and Customs Enforcement (ICE) custody immediately after their conviction.

Without a bond hearing, a person cannot challenge their mandatory detention and is forced to languish indefinitely in immigration detention, which is rife with human and civil rights abuses.

“Congress never intended to strip access to bond hearings away from people who are living peacefully in their communities for years following a past conviction,” said Alina Das, NYU Professor of Clinical Law and Co-Director of the NYU Immigrant Rights Clinic“By applying mandatory detention to snatch people out of their homes and workplaces with no review, ICE is stretching a bad law beyond all recognition.”

"This is one of the first cases that our Supreme Court will hear since Justice Kavanaugh was sworn in. The Supreme Court has a duty to protect the due process rights of all people, including immigrants and minorities. Mandatory immigration detention, particularly as applied here, is unconstitutional," said Christina Fialho, an attorney and the co-executive director of Freedom for Immigrants.

The justices will review the scope of the immigration provision, 8 U.S.C. §1226(c), which federal immigration agents have used since 1996 to detain immigrants who have previous, often years-old, convictions, but who have rebuilt their lives following their release from criminal custody. In many cases, they haven’t even served time in prison and are put directly on probation or pay fines. 

One of those individuals impacted by this interpretation of the law is Khalil Cumberbatch, a legal permanent resident from Guyana who is now Associate Vice President at the Fortune Society in New York City.

He decided to turn his life around after being convicted for robbery at age 20 and serving time. He worked hard to finish college and obtain a graduate degree in social work. He also was married and had two daughters.

Four years had passed since his release from prison, and he was one week from graduating from his master's. But then, ICE agents knocked on his door and reminded him of his old conviction, arresting him and locking him up for five months in New Jersey. He was released from detention after an outpouring of community support and eventually pardoned by Gov. Andrew Cuomo.

"One of the founding principles and beliefs of the United States of America is the idea that everyone has the ability and the right to redeem themselves. At the crux of Nielsen v. Preap is the denial of that most basic right,” said Cumberbatch. “A positive ruling of this case would potentially address not only a flawed and damaging policy that ICE implements with impunity, but also protect and safeguard the ability for a person to access redemption."

“Justice Kavanaugh has a dangerous track record of protecting the establishment over the rights of vulnerable people like immigrants,” said Liz Martinez, Director of Advocacy for Freedom for Immigrants. “If the Supreme Court rules in favor of the government, the decision would severely impact thousands of immigrant families. People would be forced to live in a constant state of limbo, fearing that at any moment they could be torn apart from their families and communities.”