Cases to Watch: Nielsen v. Preap

On October 10, 2018, the Supreme Court heard argument in a critical case on immigration detention: Nielsen v. Preap. At issue in this class action brought on behalf of immigrant detainees is the meaning of the word “when” in a provision of the federal immigration statute that requires the mandatory detention (that is, detention in ICE custody with no possibility of release while removal proceedings are pending) of certain immigrants “when” they are released from criminal detention. The broader issue is whether ICE can detain an immigrant that it did not detain immediately upon the immigrant’s release from criminal detention. The plaintiffs argue that the mandatory detention provision should be interpreted to exclude immigrants who were not immediately detained upon release from criminal detention. The government argues that these immigrants are not excepted and that the government can detain them at any time after they are released from criminal detention. This distinction is critical for plaintiff Mony Preap and many other immigrants who were long ago released from criminal custody, sometimes for very minor crimes, and returned to their communities -- where they have built lives, families, and homes and contributed to their communities for years -- and who are now being detained by the government and held without any possibility of release while removal proceedings are pending.

Named plaintiff Mony Preap, a Cambodian American, was convicted in 2006 of an offense that would have triggered mandatory detention -- two counts of misdemeanor marijuana possession. However, the government did not detain him and he returned to his community. Seven years later, he was convicted of battery and detained by ICE. While battery is not an offense that triggers mandatory detention, Preap was denied a bond hearing based on his previous convictions for marijuana possession.

Nielsen v. Preap has enormous implications for Southeast Asian American communities. Due to immigration laws passed in 1996 that vastly expanded the definition of deportable crimes and crimes that require mandatory detention and deportation, 13,000 Cambodian, Laotian, and Vietnamese immigrants (including lawful permanent residents) have been issued final removal orders, and a large number of Southeast Asian Americans have been detained by ICE due to criminal convictions from years ago.

The effects of these laws have been devastating not only for the detainees themselves, but also for their families and communities. NAPAWF and the Southeast Asia Resource Action Center (SEARAC) recently released a report with the stories of Southeast Asian American women whose lives have been deeply impacted by the detention and/or deportation of loved ones, including husbands, brothers, and fathers. The report shows the deep and lasting harm to Southeast Asian American families torn apart by detention and deportation, including the loss of a loved one and the loss of emotional, financial, and physical support. These harms compound the trauma already experienced by immigrant and refugee families and severely affect the psychological and emotional well-being of the partners and children that are left behind. Families are forced to make difficult, often heartbreaking, decisions about their future and navigate a new reality in the absence of their loved one.

So, while Nielsen v. Preap focuses on the interpretation of one word in a statute, this case is about so much more than that. It is about Southeast Asian American women, children, and families and the devastating impact of family separations and unjust immigration laws and policies on entire communities. At the same time, the voices and experiences of Asian American women and children who endure the hardship of detention and deportation of family members are all too often excluded from the broader narrative and conversation about our country’s immigration policies. We must continue to push for these discussions to include and center the perspectives and experiences of women, children, and families that also suffer under our country’s broken immigration system. This is critical to ensuring that all Asian Americans have the power and agency to make their own decisions about their lives, families and communities.