A decision handed down recently from the U.S. Court of Appeals for the Ninth Circuit erodes the government’s ability to detain criminal aliens and must be challenged, according to Senate Judiciary Chairman Chuck Grassley (R-IA) and Sen. Jeff Sessions (R-AL).
Earlier this month, the U.S. Court of Appeals for the Ninth Circuit held that “[u]nder the plain language of 8 U.S.C. § 1226(c), the government may detain without a bond hearing only those criminal aliens it takes into immigration custody promptly upon their release from triggering criminal custody,” a holding essentially restricting mandatory detention without bond only to those aliens taken into custody immediately after their release from prison.
According to Grassley and Sessions, the court’s decision will allow criminal aliens to remain out on the streets in the nine states (Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, Hawaii, and several territories) and additional territories under its jurisdiction.
The pair are calling on the Justice Department to appeal the decision arguing that, not only is it the department’s duty to fight to uphold the statutes passed by Congress, but also that the Court’s decision is wrong as a matter of law and policy.
“It is a clear and unavoidable duty of the Department of Justice to defend vigorously the lawful statutes passed by Congress, and to have them interpreted as intended. We appreciate your work to defend DHS’s clear statutory authority to detain criminal aliens without the possibility of bond, and we ask that you continue to do so by seeking rehearing en banc, or by seeking Supreme Court review,” Grassley and Sessions wrote in a letter dated Friday to Attorney General Loretta Lynch.
On the law, Grassley and Sessions argued the Court’s opinion is in the minority among the circuit courts that have considered the issue and further diminishes Congress’s ability to determine immigration policy.
The Ninth Circuit’s decision is also problematic because it erodes the constitutional power of Congress to determine when criminal aliens are subject to the authority of United States immigration authorities. As the Third Circuit stated succinctly: “nothing in the statute suggests that immigration officials lose authority if they delay.” Sylvain v. Attorney General, 714 F.3d 150, 157 (3d Cir. 2013). Or, as the Fourth Circuit put it: “the Government’s supposed failure to comply with a statutory immediacy requirement—when the statute does not specify a consequence for such noncompliance—does not bestow a windfall upon criminal aliens.” Hosh v. Lucero, 680 F.3d 375, 383 (4th Cir. 2012).
On the question of policy, they said the holding “endangers the communities that members of the court were appointed to serve.”
The impact of this decision will be especially acute on immigration enforcement within the Ninth Circuit, which covers more sanctuary jurisdictions than any other circuit in the nation, including San Francisco, Los Angeles, Berkeley, Seattle, Portland, and dozens of others. These sanctuary jurisdictions refuse to hand over criminal aliens to DHS at all, much less immediately, meaning that the Ninth Circuit’s decision will prevent DHS from guaranteeing the detention of the most dangerous criminal aliens in those jurisdictions.
In conjunction with the letter, Sessions slammed the court’s ruling, calling it an act of judicial activism that “guaranteed that dangerous criminal aliens will be able to roam free.”
“This decision is just one more example of liberal courts abandoning the laws written by Congress to promote a radical, political agenda that the American people reject,” he said in a statement. “It also clearly shows the importance of appointing judges who will not rewrite duly enacted laws through judicial activism. It is incumbent upon the Department of Justice to ensure that this decision will not be allowed to stand.”