In Nielsen v. Preap, 139 S. Ct. 954 (2019), the Supreme Court held that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(c), imposes mandatory detention on a noncitizen subject to a criminal ground of removal—regardless of when U.S. Immigration and Customs Enforcement (“ICE”) takes him or her into custody. Thus, the statute authorizes ICE to impose mandatory detention any time after an individual’s predicate criminal offense—even if that person committed that offense years or decades in the past, and has long since returned to the community and rehabilitated themselves.

Critically, however, Preap reserved the question of whether the Constitution prohibits mandatory detention based on temporally distant offenses. See Preap, 139 S. Ct. at 972. Thus, an individual may still pursue as-applied due process challenges to mandatory detention based solely on past offenses through an individual habeas petition in federal district court. In many cases, there are strong arguments that such mandatory detention violates the Due Process Clause.