Conference Report: March 16, 2018 Conference

On Monday, March 19, the Court released orders from the March 16 conference.

The Court granted certiorari for Nielson v. Preap, a case concerning whether a noncitizen, pursuant to 8 U.S.C. §1226(c) of the Immigration and Nationality Act, is exempt from mandatory detention if the Department of Homeland Security does not take him into immigration custody immediately after being released from criminal custody. The Ninth Circuit agreed with the respondents, a group of noncitizens, and concluded that the mandatory detention provision of 8 U.S.C. §1226(c) applies only to noncitizens detained by DHS promptly after their release from criminal custody. The petitioner, the Department of Homeland Security, disagreed, and argued that the Ninth Circuit’s interpretation of §1226(c) created “created a circuit conflict on an important and recurring issue of federal law.” The case had been relisted for conference since September 25, 2017, presumably in order for the Court to rule on Jennings v. Rodriguez, another immigration case concerning the Immigration and Nationality Act that was decided on February 27, 2018.

The Court also denied certiorari in Hidalgo v. Arizona, a case challenging the constitutionality of Arizona’s death penalty sentencing guidelines, which include so many aggravating factors that virtually every defendant convicted of first-degree murder is eligible for the death penalty. Hidalgo had been relisted for conference since November 21, 2017. Justice Breyer, joined by Justices Kagan, Sotomayor, and Ginsburg, filed a statement concluding that the Arizona Supreme Court had “misapplied” the Court’s prior precedent, but ultimately supported the denial of the writ because Abel Hidalgo did not develop the record supporting his claim that the sentencing guidelines were overbroad at an evidentiary hearing. Justice Breyer concludes, “[c]apital defendants may have the opportunity to fully develop a record with the kind of empirical evidence that the petitioner points to here. And the issue presented in this petition will be better suited for certiorari with such a record.” Justice Breyer’s opinion did not focus on Hidalgo’s claim that the death penalty itself is unconstitutional.

The Court met for Conference again on March 23, 2018. Orders are expected in the morning of March 26, 2018.

This post was written by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2019, edited by Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.


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