Page:Kirstjen M. Nielsen, Secretary of Homeland Security, et al. v. Mony Preap, et al..pdf/9

Rh mandatory-detention cases do involve convictions, we follow the heading of subsection (c), as well as our cases and the courts below, in referring to aliens who satisfy subparagraphs (A)–(D) collectively as “criminal aliens.”

The Board of Immigration Appeals has held that subsection (c)(2), which requires the detention of aliens “described in” subsection (c)(1), applies to all aliens who fall within subparagraphs (A)–(D), whether or not they were arrested immediately “when [they were] released” from criminal custody. Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001) (en banc).

Respondents in the two cases before us are aliens who were detained under §1226(c)(2)’s mandatory-detention requirement—and thus denied a bond hearing—pending a decision on their removal. See Preap v. Johnson, 831 F. 3d 1193 (CA9 2016); Khoury v. Asher, 667 Fed. Appx. 966 (CA9 2016). Though all respondents had been convicted of criminal offenses covered in §§1226(c)(1)(A)–(D), none were arrested by immigration officials immediately after their release from criminal custody. Indeed, some were not arrested until several years later.

Respondent Mony Preap, the lead plaintiff in the case that bears his name, is a lawful permanent resident with two drug convictions that qualify him for mandatory detention under §1226(c). Though he was released from criminal custody in 2006, immigration officials did not detain him until 2013, when he was released from jail after an arrest for another offense. His co-plaintiffs Juan Lozano Magdaleno and Eduardo Vega Padilla were taken into immigration detention, respectively, 5 and 11 years after their release from custody for a §1226(c) predicate