Updated:
October 2, 2018

Whether the government can require that certain people are detained for the duration of their deportation proceedings — without a hearing — because they have past criminal records.

This case challenges the government’s sweeping interpretation of a 1996 mandatory detention law, which requires that certain people are detained for the duration of their deportation proceedings — without a hearing — because they have past criminal records. The government interprets the law to require detention without a hearing in cases where the person committed an offense and served a sentence years or even decades ago.

The result is that people who have never reoffended, rebuilt their lives with their families, and become productive members of their communities are subject to mandatory imprisonment as their deportation case winds its way through the immigration court system, with no hearing to determine if they need to be locked up in the first place.

For further background on the case, please see the case page Preap v. Johnson, originally filed in the U.S. District Court for the Northern District of California in 2013, and Khoury v. Asher, filed in the U.S. District Court for the Western District of Washington in 2013. In 2016, the Ninth Circuit held that the government may only impose mandatory detention on immigrants whom it detains at the time of their release from criminal custody—and not months, years, or decades afterwards. Instead, if the government detains those immigrants, they must provide the a hearing to determine if their imprisonment is justified. The Trump administration sought review by the Supreme Court, and the case will be heard on October 10, 2018.

Counsel for plaintiffs in Preap are the American Civil Liberties Union, Asian Americans Advancing Justice-Asian Law Caucus, and Keker, Van Nest & Peters LLP.

Counsel for plaintiffs in Khoury are the American Civil Liberties Union, the Northwest Immigrant Rights Project, Gibbs Houston Pauw, and Sunbird Law, PLLC.

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