This is what you should know about Brett Kavanaugh’s first hot-button Supreme Court case

The Court will determine whether the government can arbitrarily detain undocumented immigrants.

UNITED STATES - OCTOBER 9: Police stand guard near protesters in front of the Supreme Court on the day new associate justice, Brett Kavanaugh, will hear his first arguments on October 9, 2018. (Photo By Tom Williams/CQ Roll Call)
UNITED STATES - OCTOBER 9: Police stand guard near protesters in front of the Supreme Court on the day new associate justice, Brett Kavanaugh, will hear his first arguments on October 9, 2018. (Photo By Tom Williams/CQ Roll Call)

The Supreme Court is slated to hear a case Wednesday that would determine whether longtime residents of the United States would face indefinite detention for years-old minor criminal convictions.

Nielsen v. Preap is a class-action lawsuit against the federal government brought on behalf of a group of immigrants who have been detained under a provision of the Immigration and Nationality Act that authorizes the detention of any undocumented immigrant who may be subject to removal — the legal term for deportation.

Under the statute, there are two different classes of undocumented immigrants who are classified as “removable” — 1) people who haven’t committed crimes but are facing deportation for another reason and 2) people who are facing deportation because of their criminal convictions.

Undocumented immigrants in that first group face a “bond hearing” once they are detained for removal. Bond hearings are essential because this process allows immigrants to appeal to an immigration judge — arguing that their release poses no threat and that they will show up for their “removal hearing,” where they must prove to a judge why they should not be deported.


If they are granted bond, undocumented immigrants can return to their families and go on with their lives until they need to appear at their removal hearing. If they win their removal hearing, they are free. If their appeal fails, they can still try to prove that they are eligible for a “cancellation of removal” based on how long they have lawfully lived in the U.S. or if returning to their country would put them in danger. If these arguments successfully convince immigration authorities, an undocumented immigrant will be allowed to remain in the country and “adjust” their legal status.

Those are a lot of “ifs,” even for an individual who successfully navigates the U.S. immigration system.

At issue in Nielsen, however, is what happens to undocumented immigrants in the second, “criminal” group. “Criminal aliens” convicted of statutory crimes like drug, sex, or firearm offenses get no bond hearing and are held in detention until their cases are resolved, which can take months or years. They can challenge their order of removal, but have to remain in government custody for the entire lengthy process.

Because the law does not clearly state when immigration law enforcement officials can detain “criminal” undocumented immigrants, Immigration and Customs Enforcement (ICE) agents have interpreted the statute to mean they can target undocumented immigrants and even immigrants with green cards for years-old offenses. In some cases, these offenses are relatively minor, including traffic violations. This approach to the law has resulted in a huge increase in immigrant detention, from a daily average of 7,474 in 1996 to a daily average of 39,322 in 2017.


During the SCOTUS hearing Wednesday, the plaintiffs will argue that if ICE wants to detain an immigrant without bail, they must detain them at the moment of release — instead of waiting years after they have successfully built a life in the country.

According to the ACLU, the current interpretation of the law means 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.”

Immigration activists say that detaining immigrants for decades-old offenses for months on end unnecessarily rips apart families.

“This interpretation is forcing families to live in limbo,” Liz Martinez, the director of advocacy and strategic communications at Freedom for Immigrants, told ThinkProgress. “It impacts families who are just out there living their lives, even green card holders, and are suddenly taken away from their loved ones.”

“This interpretation is forcing families to live in limbo.”

That’s what happened to Monty Preap, one of the lead plaintiffs in Nielsen. Preap, who was born in a Cambodian refugee camp, has lived in the United States since the 1980s. In 2006, he was convicted on two misdemeanor counts of possessing marijuana, but was ultimately released to his community. In 2013, he was convicted of battery — which is a non-deportable offense — and ICE took him to a detention center because of his earlier drug conviction, where he was held for months without a bond hearing. Ultimately, Preap was released after he was able to demonstrate to a judge that he was eligible for a cancellation of removal.


Eduardo Vega Padilla, another plaintiff in the case, has lived in the United States for five decades and has raised a large family of U.S. citizens. In 1997 and 1999, he was placed on probation for controlled-substance convictions. When ICE agents arrested him at his home in 2013, he was denied a bond hearing due to the years-old minor drug charges. Ultimately, a district court judge ruled he should be provided a hearing, and he was eventually granted release.

Nielsen v. Preap was originally filed in 2013. As it comes before the Supreme Court, the current administration is toeing the line of Trump’s anti-immigrant agenda, arguing that crimes committed by any undocumented immigrant at any time should result in bondless detention.

In an amicus brief  Republican members of Congress argued that the Trump administration “must continue to be afforded broad power to detain, pending completion of removal proceedings, those aliens who have been convicted of serious crimes.”

“Experience has demonstrated that if those aliens are not detained, a large percentage of them will abscond, and a significant majority will commit new crimes before they can be apprehended and their removal proceedings completed.”

The outcome of Nielsen is not only consequential for the thousands of undocumented immigrants who could receive bond hearings, but will also provide a window into the judicial style of the Court’s newest justice, Brett Kavanaugh. Nielsen is the first controversial case of Kavanaugh’s SCOTUS session and the first test for whether the self-proclaimed “independent, impartial” judge will act out of partisanship.