Gordon v. Lynch , 810 F.3d 15 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-1994
LEITICIA CASTAÑEDA,
Petitioner, Appellee,
v.
STEVE SOUZA, Superintendent, Bristol County House of
Corrections, in his official capacity and his successors and
assigns,
Respondent, Appellant,
BRUCE E. CHADBOURNE, Field Office Director, Boston Field Office,
Office of Detention and Removal, U.S. Immigrations and Customs
Enforcement, U.S. Department of Homeland Security, in his
official capacity and his successors and assigns; JOHN T.
MORTON, Director, U.S. Immigration and Customs Enforcement, U.S.
Department of Homeland Security, in his official capacity and
his successors and assigns; JEH JOHNSON, Secretary, U.S.
Department of Homeland Security, in his official capacity and
his successors and assigns; ERIC H. HOLDER, JR., Attorney
General, U.S. Department of Justice, in his official capacity
and his successors and assigns,
Respondents.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
No. 13-2509
CLAYTON RICHARD GORDON, on behalf of himself
and others similarly situated,
Petitioner, Appellee,
PRECIOSA ANTUNES; GUSTAVO RIBEIRO FERREIRA;
VALBOURN SAHIDD LAWES; NHAN PHUNG VU,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General; SARAH SALDANA, Director
of Immigration and Customs Enforcement; SEAN GALLAGHER, Acting
Field Office Director; CHRISTOPHER J. DONELAN; MICHAEL G.
BELLOTTI, Sheriff; STEVEN W. TOMPKINS, Sheriff; THOMAS M.
HODGSON, Sheriff; JOSEPH D. MCDONALD, JR., Sheriff; RAND BEERS,
Acting Secretary of Homeland Security,
Respondents, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella, Lynch, Thompson, Kayatta, and Barron,
Circuit Judges.
Leon Fresco, Deputy Assistant Attorney General, Office of
Immigration Litigation, with whom Sarah B. Fabian, Senior
Litigation Counsel, United States Department of Justice, Civil
Division, Office of Immigration Litigation, Elianis N. Perez,
Senior Litigation Counsel, Joyce R. Branda, Acting Attorney
General, Benjamin C. Mizer, Acting Assistant Attorney General,
Civil Division, William C. Peachy, Director, Office of Immigration
Litigation, District Court Section, Elizabeth Stevens, Assistant
Director, Hans. H. Chen, Trial Attorney, were on brief, for
respondents-appellants.
Gregory Romanovsky, with whom Livia Lungulescu and Romanovsky
Law Offices were on brief, for petitioner-appellee Castañeda.
Matthew R. Segal, with whom Adriana Lafaille, American Civil
Liberties Union Foundation of Massachusetts, Judy Rabinovitz,
Michael Tan, Anand Balakrishnan, ACLU Foundation Immigrants’
Rights Project, Elizabeth Badger, and Kids in Need of Defense c/o
Nutter McClennan & Fish LLP, were on brief, for petitioner-appellee
Gordon.
Alina Das, Esq., and Washington Square Legal Services, Inc.,
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Immigrant Rights Clinic, on brief for Immigration Law Professors,
American Immigration Lawyers Association, Boston College Law School
Immigration Clinic, Boston University Law School International
Human Rights Clinic, Detention Watch Network, Families for Freedom,
Greater Boston Legal Services, Harvard Immigration and Refugee
Clinical Program, Immigrant Defense Project, Immigrant Legal
Resource Center, Immigrant Rights Clinic, National Immigrant
Justice Center, National Immigration Project of the National
Lawyers Guild, Political Asylum/Immigration Representation
Project, Suffolk University Law School Immigration Law Clinic, and
University of Maine School of Law Immigrant and Refugee Rights
Clinic, as amici curiae in support of petitioners-appellees and in
support of affirmance.
Mathew E. Price, Lindsay C. Harrison, and Jenner & Block LLP,
on brief for amici curiae Former Immigration Judges and Department
of Homeland Security Officials in support of petitioners-
appellees.
Opinion En Banc
December 23, 2015
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The judgments entered in the district courts are
affirmed by an equally divided en banc court. See Savard v. Rhode
Island, 338 F.3d 23, 25 (1st Cir. 2003) (en banc).
Opinions follow.
BARRON, Circuit Judge, with whom TORRUELLA and THOMPSON,
Circuit Judges, join. Congress has long given the Attorney General
discretion to decide whether to take aliens who are subject to
removal into immigration custody. Congress also has long given
the Attorney General discretion to decide whether to release on
bond aliens who are in immigration custody while their removal
proceedings are pending. Nearly thirty years ago, however,
Congress began enacting a succession of similar but slightly
revised immigration detention mandates that limited the Attorney
General's detention discretion in certain respects. These
consolidated appeals require us to decide the scope of the present
version of this detention mandate, codified in 8 U.S.C § 1226(c).
Much like its precursors, this detention mandate first
directs that the Attorney General shall take into custody certain
"criminal aliens" -- as defined by their commission of specified
offenses -- "when [they are] released" from criminal custody. And,
much like its precursors, this detention mandate then bars the
Attorney General from releasing certain aliens on bond once they
have been placed in immigration custody. The key point of dispute
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concerns the class of aliens to whom this bar to bonded release
applies.
We conclude that Congress intended for the present
detention mandate to operate like its precursors and thus that its
bar to bonded release applies only to those specified criminal
aliens whom the Attorney General took into custody "when [they
were] released" from criminal custody. We further conclude that
the two aliens who bring these habeas petitions were not taken
into immigration custody "when [they were] released" from criminal
custody because they had been released from criminal custody years
before their immigration custody started. As a result, we conclude
that the present detention mandate does not bar either petitioner
from seeking release on bond pursuant to the Attorney General's
discretionary release authority.
Two district courts of this Circuit reached the same
conclusion in granting the petitioners the right to an
individualized bond hearing at which they could seek release prior
to the completion of the removal process. See Gordon v. Johnson,
991 F. Supp. 2d 258 (D. Mass. 2013); Castañeda v. Souza, 952 F.
Supp. 2d 307 (D. Mass. 2013). A panel of this Circuit affirmed.
See Castañeda v. Souza, 769 F.3d 32 (1st Cir. 2014). This Court
then agreed to rehear the case en banc, and is now, by a vote of
three to three, evenly divided. In consequence, the judgments of
the district courts are affirmed, as we believe they should be
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given Congress's evident intention not to deny aliens like
petitioners the chance to seek bonded release, the consequential
nature of the decision to deny aliens such a chance, and the
reality that removal proceedings can stretch on for months or even
years.
I.
The key parts of the Immigration and Naturalization Act
are codified in 8 U.S.C. § 1226, and, in particular, two
subsections of it: (a) and (c).1 Through subsection (a), Congress
gave the Attorney General broad discretion to decide whether to
take into custody an alien who is in the removal process. Congress
also gave the Attorney General, through that same subsection, broad
discretion to release on bond those aliens whom she had placed in
custody so that they would not have to be detained for the often
lengthy removal process.2
1
This authorization, located in 8 U.S.C. § 1226(a), provides:
"On a warrant issued by the Attorney General, an alien may be
arrested and detained pending a decision on whether the alien is
to be removed from the United States. Except as provided in
subsection (c) of this section and pending such decision, the
Attorney General . . . may continue to detain the arrested
alien . . . and . . . may release the alien on . . . bond . . . ."
2 Although the Attorney General now shares responsibilities
under § 1226(a) with the Secretary of Homeland Security and the
Under Secretary for Border and Transportation Security, see
Homeland Security Act of 2002, Pub. L. No. 107–296, §§ 402, 441,
116 Stat. 2135, we will for convenience refer to this authority as
being vested in the Attorney General.
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To govern the exercise of this release power, the
Attorney General issued regulations pursuant to subsection (a).
These regulations authorize immigration judges (subject to review
by the Board of Immigration Appeals (BIA) and ultimately the
Attorney General) to make individualized bond determinations based
on a detainee's flight risk and danger to the community. See 8
C.F.R. § 1236.1(c)(8), (d)(1), and (d)(3).
As a result of § 1226(a) and its implementing
regulations, these two petitioners, Leiticia Castañeda and Clayton
Gordon, plainly may be detained for the entirety of the removal
process if they are found to pose sufficient bond risks. There is
a question, however, whether they must be detained for the entirety
of that process regardless of the showing they could make at a
bond hearing.
The question arises due to the contested scope of the
limited exception to § 1226(a) that is carved out by § 1226(c).
The exception appears in two paragraphs of subsection (c) under
the single heading, "Detention of Criminal Aliens."3
3 Section 1226(c) provides:
(c) Detention of criminal aliens
(1) Custody
The Attorney General shall take into custody any alien who--
(A) is inadmissible by reason of having committed
any offense covered in [8 U.S.C. § 1182(a)(2)],
(B) is deportable by reason of having committed any
offense covered in [8 U.S.C. § 1227(a)(2)(A)(ii)-
(iii),(B)-(D)],
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Together, the paragraphs establish the latest version of
a detention mandate Congress first enacted in 1988. Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), tit. 111 § 303, Pub. L. No. 104-208, 110 Stat. 3009-546,
3009-585. In each prior version, Congress required first that the
Attorney General "shall take into [immigration] custody any alien
convicted" of an enumerated felony offense "upon completion" of
the alien's sentence (1988 mandate) or "upon [the alien's] release"
from criminal custody (later mandates). And, in each prior
version, Congress then required that the Attorney General "shall
not release such felon from [immigration] custody." See Anti-Drug
Abuse Amendments Act of 1988, § 7343(a), Pub. L. No. 100-690, 102
Stat. 4181, 4470; Immigration Act of 1990, § 504(a), Pub. L. No.
101-649, 104 Stat. 4978, 5049-50; Antiterrorism and Effective
(C) is deportable under [8 U.S.C.
§ 1227(a)(2)(A)(i)] on the basis of an offense for which
the alien has been sentenced to a term of imprisonment
of at least 1 year, or
(D) is inadmissible under [8 U.S.C.
§ 1182(a)(3)(B)] or deportable under [8 U.S.C.
§ 1227(a)(4)(B)],
when the alien is released, without regard to whether the
alien is released on parole, supervised release, or
probation, and without regard to whether the alien may be
arrested or imprisoned again for the same offense.
(2) Release
The Attorney General may release an alien described in
paragraph (1) only if . . . release of the alien from custody
is necessary to provide protection to a witness . . . .
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Death Penalty Act of 1996 (AEDPA), § 440(c), Pub. L. No. 104-132,
110 Stat. 1214, 1277.
The version of the detention mandate that is at issue
here was enacted in 1996 and follows this same structure. The
first paragraph, identified as § 1226(c)(1), appears under the
heading "Custody." Like the portion of the earlier enacted
detention mandates that contained the "upon completion" or "upon
release" clauses, this paragraph sets forth the following custody
directive: the Attorney General "shall take into [immigration]
custody" an alien who has committed certain offenses or engaged in
certain concerning behavior -- specified in subparagraphs (A)-(D)
of (c)(1) -- "when the alien is released, without regard to whether
the alien is released on parole, supervised release, or probation
. . . ."4
4 As these petitioners were released from prison sentences,
there is no question they were "released" within the meaning of
§ 1226(c)(1). With respect to the precise requirement the word
"released" imposes, the Second Circuit recently held in Lora v.
Shanahan that a convicted alien who receives a non-carceral
sentence has also been "released." Lora v. Shanahan, 2015 WL
6499951, at *6 (2d Cir. Oct. 28, 2015). The Second Circuit
concluded that this interpretation of "released" "avoids
nullifying" the trailing language in (c)(1), which, through its
reference to "probation," "clearly contemplates non-carceral
sentences." Id. In effect, the Second Circuit interprets
"released" to mean "release from the technical custody of the
criminal court" (i.e., at the end of the sentencing proceeding),
a position that the government has elsewhere advanced. See In re
West, 22 I. & N. Dec. 1405, 1408 (BIA 2000). In so doing, the
Second Circuit did not address the BIA's view that "released" means
even release from pre-conviction arrest. See In re Kotliar, 24 I.
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The second paragraph, identified as § 1226(c)(2),
follows directly after (c)(1) and appears under the heading
"Release." Like the portion of the earlier enacted detention
mandates that contained the "such felon" clause, this paragraph
sets forth the following bar to bonded release from immigration
custody: the Attorney General "may release an alien described in
paragraph (1) only if" the alien satisfies certain limited criteria
not at issue here.5
Under petitioners' view, (c)(1) and (c)(2) operate in
tandem just as the earlier detention mandates did. In consequence
of the words "when" and "released" in the first paragraph, the
Attorney General must timely take specified aliens coming out of
criminal custody into immigration custody. The second paragraph,
by referring to the prior paragraph, then requires the Attorney
General not to release on bond the specified aliens that she has
timely taken into immigration custody following their release from
criminal custody in accordance with the directive in (c)(1).
& N. Dec. 124, 125 (BIA 2007); West, 22 I. & N. Dec. at 1410; see
also Saysana, 590 F.3d at 14 (suggesting, more broadly, that an
alien could be arrested and not convicted and yet still fall within
§ 1226).
5 Aliens taken into custody pursuant to § 1226(c) are entitled
to a "Joseph" hearing at which the alien "may avoid mandatory
detention by demonstrating that he is not an alien, was not
convicted of the predicate crime, or that [U.S. Immigrations and
Customs Enforcement] is otherwise substantially unlikely to
establish that he is in fact subject to mandatory detention."
Demore v. Kim, 538 U.S. 510, 514 n.3 (2003).
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Petitioners contend that this reading of § 1226(c) makes
sense not only as a matter of text, structure, and history, but
also on its own terms. Petitioners point to the substantive
differences between aliens taken into immigration custody
"when . . . released" from criminal custody and those aliens who
are taken into immigration custody some time after they have been
"released" from criminal custody. Petitioners emphasize that "the
experience of having one's liberty stripped away is drastically
different from the experience of not having it restored." See
Castañeda v. Souza, 952 F. Supp. 2d 307, 318 n.10 (D. Mass. 2013).
They also note that their intervening period of freedom makes it
possible to take account of their post-release conduct in
evaluating the flight risk or danger they may pose.6 And amici
contend that Congress had practical reasons to limit the scope of
the mandate in this way, given resource constraints on detention
capacity. See Amicus Br. of Frm. Imm. Judges and DHS Sec.
Officials at 17-20.
On the basis of this reading of § 1226(c), petitioners
contend that the exception to § 1226(a) that (c) carves out does
not apply to them due to the remoteness of their release from
6 For example, since his release from criminal custody in
2008, petitioner Clayton Gordon has become a father, bought a
house, developed a successful business, and worked on a project to
open up a halfway house for women. Castañeda, 769 F.3d at 40.
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criminal custody.7 Accordingly, petitioners argue they may seek
discretionary release on bond under (a) just like any other alien
placed in custody by the Attorney General pursuant to that
subsection.
The government counters that petitioners' argument fails
at the threshold on the basis of the interpretation of § 1226(c)(2)
that the BIA set forth in In re Rojas, 23 I. & N. Dec. 117 (BIA
2001). The BIA held in Rojas that only subparagraphs (A)-(D) of
(c)(1) (which enumerate predicate offenses and other qualifying
misconduct) limit (c)(2). Rojas thus makes the rest of (c)(1) --
including the "when . . . released" clause and its trailing
language specifying what counts as a "release[]" from criminal
custody -- irrelevant to the application of (c)(2). See Rojas, 23
I. & N. Dec. at 121 ("The 'when released' clause is no more a part
of the description of an alien who is subject to detention than
are the other concluding clauses." (emphasis in original)).
7 Leiticia Castaneda, a native of Brazil, was arrested in
Massachusetts for misdemeanor possession of cocaine, sentenced to
probation, and released from custody in 2008. Castañeda, 769 F.3d
at 39. Clayton Gordon, a native of Jamaica, was arrested in
Connecticut for possession of cocaine with intent to distribute
and was thereupon released from custody in 2008. Id. at 40.
Gordon subsequently pled guilty and received a suspended prison
sentence and three-year probationary term in 2009. More than four
years after their respective releases from criminal custody, the
government took each of the petitioners into immigration custody
and charged them with removal due to their convictions. Id.
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The government contends we must defer to Rojas's
conclusion that whatever limitations the words "when" and
"released" impose on § 1226(c)(1) do not matter for (c)(2) because
the text of (c)(2) is not clear on that key point. The government
claims we must do so because Rojas reasonably construed (c)(2) to
reduce the chance that an alien with an (A)-(D) offense might be
released due to a mistaken evaluation of bond risk. The government
therefore argues that Rojas requires petitioners' mandatory
detention without bond -- notwithstanding their years of living
freely -- because each petitioner committed an (A)-(D) offense and
nothing more is required for (c)(2) to apply.
In the alternative, the government asserts that even if
Rojas is wrong and the "when . . . released" clause is relevant to
(c)(2), the petitioners were in fact taken into immigration custody
"when . . . released." The government argues that the word "when"
is best read in context to mean "if" or "any time after." As a
fallback, the government argues that the word "when" at most
triggers a duty to act promptly that persists indefinitely. Either
way, the government argues, § 1226(c)(2) applies to aliens with
predicate offenses who were taken into immigration custody even
years after their release from criminal custody.8
8 After the panel ruled for the petitioners, the government
scheduled bond hearings for each one. Before Castañeda's bond
hearing took place, the government, of its own accord, concluded
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We consider each argument in turn. We explain first why
we conclude that the "when . . . released" clause in § 1226(c)(1)
also modifies the scope of (c)(2). We then explain why we conclude
that the "when . . . released" clause imposes a deadline for
picking up an alien coming out of criminal custody that limits the
application of (c)(2)'s bar to bonded release.9
II.
We start with the question whether we must defer to
Rojas's reading of § 1226(c)(2), under which the
"when . . . released" clause in (c)(1) is wholly irrelevant to the
scope of (c)(2). In undertaking this inquiry, we apply the two-
that she did not pose a flight risk or a danger to the community
and released her. Gordon, by contrast, made his case to an
immigration judge at a bond hearing, prevailed, and was released
as well. These decisions to release the petitioners do not render
the present appeal moot. See Sylvain v. Attorney Gen. of U.S.,
714 F.3d 150, 161 n.12 (3d Cir. 2013).
9 Four other circuits have addressed the issues we address
here. In Hosh v. Lucero, 680 F.3d 375, 378-381 (4th Cir. 2012),
the Fourth Circuit claimed to defer to Rojas. But, contra Rojas,
Hosh actually assumed the "when . . . released" clause limited
§ 1226(c)(2) and concluded that the word "when" is not time-
limited -- a view that the BIA has never adopted. In Sylvain v.
Attorney Gen. of U.S., 714 F.3d 150, 161 (3d Cir. 2013), the Third
Circuit avoided deciding the meaning of "an alien described in
paragraph (1)" by holding for the government on the basis of loss-
of-authority principles. More recently, in Olmos v. Holder, 780
F.3d 1313, 1324 (10th Cir. 2015), the Tenth Circuit deferred to
Rojas, as did the Second Circuit in in Lora, 2015 WL 6499951, at
*6. Numerous district courts have addressed the issue, and most
have gone the other way. See Immig. Law Profs. et al. Amicus Br.
at A-xxii-xxix (assembling eighty-nine cases that have rejected
Rojas).
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step test set forth in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). At step one, we must
decide whether Congress spoke clearly to the precise question at
issue. Id. at 842. If so, that ends the matter. Id. at 842-43.
If not, then, at step two, we must defer to the administering
agency's interpretation if it is reasonable. Id. at 843.
Our focus is on step one, which is where we conclude
Rojas went wrong.10 For while Chevron is a famous doctrine, much
precedent cautions us not to be so star-struck by it that we must
defer to the agency at the first sign of uncertainty about the
meaning of the words that Congress chose. Rather, under Chevron,
we must be mindful that "a statute may foreclose an agency's
preferred interpretation despite such textual ambiguities if its
structure, legislative history, or purpose makes clear what its
text leaves opaque." See Council for Urological Interests v.
Burwell, 790 F.3d 212, 221 (D.C. Cir. 2015) (quoting Catawba Cnty.,
10 The line between step one and step two of the Chevron
analysis is not always clear. See Saysana v. Gillen, 590 F.3d 7,
13-18 (1st Cir. 2009) (in declining to defer to the BIA's
interpretation of § 1226(c), the court relied on both step one and
step two); Patricia M. Wald, Judicial Review in Midpassage: The
Uneasy Partnership Between Courts and Agencies Plays On, 32 Tulsa
L.J. 221, 243 (1996) (noting that whether a case is decided at
step one depends on "how judges identify the precise question at
issue, since at one level of generality the statute may answer it
under Chevron step one, but at [another] level there may be an
ambiguity"). Because we conclude that Congress spoke clearly to
the relationship between § 1226(c)(1) and (c)(2), and because the
precise issue Rojas decided concerned that relationship, we
resolve this issue under step one.
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N.C. v. E.P.A, 571 F.3d 20, 35 (D.C. Cir. 2009)); see also Chemical
Manufacturers Ass'n v. N.R.D.C., 470 U.S. 116, 126 (1984) ("We
should defer to [the administering agency's view of the statutory
language] unless the legislative history or the purpose and
structure of the statute clearly reveal a contrary intent.").
And that is the case here. In light of both the Act's
structure, see F.D.A. v. Brown & Williamson Tobacco Co., 529 U.S.
120, 132-34 (2000) (analyzing the words of a statute in view of
the "overall statutory scheme" at Chevron step one); Saysana, 590
F.3d at 13-15 (emphasizing the structure of § 1226(c) in declining
to defer to the BIA's interpretation by noting that "the 'plain
meaning' of a statutory provision is often made clear not only by
the words of the statute but by its structure"), and the
legislative history, see I.N.S. v. Cardoza-Fonseca, 480 U.S. 421,
448-49 (1987) (considering legislative history at step one of the
Chevron analysis in declining to defer to Immigration and
Naturalization Service (INS) interpretation of statute); Succar v.
Ashcroft, 394 F.3d 8, 31 (1st Cir. 2005) ("Our view is that where
traditional doctrines of statutory interpretation have permitted
use of legislative history, its use is permissible and even may be
required at stage one of Chevron."), we conclude that Congress
plainly intended for the "when . . . released" clause in (c)(1) to
apply to (c)(2) as well.
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A.
Rojas identified a clear choice between two possible
readings of the words in the cross-reference in § 1226(c)(2), "an
alien described in paragraph (1)." See Rojas, 23 I. & N. Dec. at
119. Given the text of the cross-reference, the alien to whom
(c)(2) refers is either (as Rojas held) an alien who has committed
an offense specified in subparagraphs (A)-(D) of (c)(1) or (as
petitioners contend) an alien who was taken into custody pursuant
to the duty imposed by paragraph (1) as a whole.
This choice matters because it determines whether the
"when . . . released" clause -- and whatever limits it imposes
through the words "when" and "released" -- modifies the scope of
§ 1226(c)(2). If "an alien described in paragraph (1)" refers to
an alien who was taken into custody pursuant to the duty imposed
by (c)(1) as a whole, then the cross-reference would not merely
refer to an alien who has committed an (A)-(D) offense. It would
instead refer to an alien who has committed an (A)-(D) offense and
whom the Attorney General took into immigration custody "when" the
alien was "released" from criminal custody, as the
"when . . . released" clause sets forth the conditions under which
that duty applies. Rojas, 23 I. & N. Dec. at 121-22. And (c)(2),
then, would come into play as a bar to the release of only those
aliens picked up after the duty in (c)(1) had been discharged.
See id. at 119 (noting that the cross-reference in (c)(2) could be
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read to "refer[] to an alien who is taken into [immigration
custody] 'when the alien is released'").
In our view, the words "an alien described in paragraph
(1)" comfortably support petitioners' reading. Consistent with
the ordinary meaning of the word "described," § 1226(c)(2) refers
to a "mental image, an impression, or an understanding of the
nature and characteristics," see Webster's Third New International
Dictionary 610 (2002), of the alien whom (c)(1) as a whole calls
to mind. And thus "an alien described in paragraph (1)" refers to
an alien who has committed an enumerated offense and whom the
Attorney General has taken into immigration custody "when . . .
released" from criminal custody. See also The American Heritage
Dictionary of the English Language 476 (5th ed. 2011) (defining
"describe" as "[t]o convey an idea or impression of" or "[t]o trace
the form or outline of").
No rule of grammar counsels against this reading.
Antecedents to cross-references may be found in verbal and
adverbial phrases in prior paragraphs not just because (as our
colleagues suggest) users of English sometimes use language
awkwardly. Antecedents to cross-references may be found in such
places because people also use language efficiently.11
11According to linguists, "probably the most important thing
to understand" about antecedents "is that [antecedents] are not
the elements in the text but are those suggested by it, those
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One thus commits no offense against the English language
by saying that the narrator "described in" Frost's famous poem is
the one who "took the road less travelled," even though the
narrator's first-person account of his past actions in the poem is
not cast in what our colleagues would consider inherently
descriptive terms. And, in fact, Congress has itself relied on
the "described in paragraph (1)" formulation to refer not just to
the inherently descriptive adjectival portion of the prior
paragraph but to the adverbial portion, too. See 28 U.S.C §
1441(c)(1)-(2) (in referring to an "action described in paragraph
(1)," Congress clearly intended to capture the trailing adverbial
portion of paragraph (1), which states that the "entire action may
be removed if the action would [otherwise] be removable").
The petitioners' reading finds additional support in the
fact that the text of the cross-reference does not expressly state,
as one might have expected if Rojas were right, that the only part
of § 1226(c)(1) that is relevant to (c)(2) is the part that
concepts being evoked or constructed in the reader's mind." Bonnie
Lynn Nash-Webber, Anaphora: A Cross-Disciplinary Survey 6 (Apr.
1977), http://hdl.handle.net/2142/17886. For discussions about
how parts of speech do not dictate resolution of the linguistic
issue presented here, see Barbara Lust, Introduction, in 1 Studies
in the Acquisition of Anaphora: Defining the Constraints 9 (Barbara
Lust, ed., 1986); Ruslan Mitkov, Anaphora Resolution § 1.8, at 17
(2013); and Gillian Brown & George Yule, Discourse Analysis 203
(1983) (offering examples in which the antecedent is a part of
speech that, if substituted in to the place of the cross-reference,
would not yield a well-constructed sentence).
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denominates the (A)-(D) offenses.12 Rather than straightforwardly
refer to "an alien described in subparagraphs (A)-(D)," Congress
instead expressly referred to "an alien described in paragraph
(1)," even though Congress singled out similar offenses to those
set forth in (A)-(D) in the parallel detention mandate set forth
elsewhere in the IIRIRA. See IIRIRA § 303(b)(3), 110 Stat. 3009-
587 ("The Attorney General may release the alien only if the alien
is an alien described in subparagraph (A)(ii) or (A)(iii)."
(emphasis added)).
Nevertheless, we agree that, standing alone, the words
"an alien described in paragraph (1)" could be read as Rojas reads
them. As a textual matter, the "described in" language in the
cross-reference could be read to refer the reader only to
subparagraphs (A)-(D) of paragraph (1), as they plainly do describe
the alien in (c)(1). One could thus read this cross-reference as
12
Our colleagues argue that Rojas's reading is reinforced by
the fact that the "when . . . released" clause is not aligned with
subparagraphs (A)-(D), as if the indentation means to tell the
reader of the cross-reference in § 1226(c)(2) where to look in
(c)(1) for the antecedent. See infra at 72-73. But we do not see
how that form of presentation has any helpful bearing on the
meaning of (c)(2)'s cross-reference. The limits imposed by the
unindented language, including the "when . . . released" clause,
affect all aliens who come within the scope of (c)(1). The
predicate offenses identified in the indented subparagraphs, by
contrast, serve as independent triggers. The alignment thus flows
from the structure of (c)(1) without regard to the cross-reference
in the follow-on paragraph and thus offers little support for
Rojas's reading of that cross-reference.
- 20 -
directing the reader to identify the alien whom (c)(1) itself
refers to in characteristically descriptive terms, rather than
directing the reader to identify the alien whom (c)(1) as a whole
calls to mind.13
To determine if Congress chose between the two possible
antecedents to the cross-reference in § 1226(c)(2), we thus must
do what Rojas did: look beyond the words of the cross-reference.
See Rojas, 23 I. & N. Dec. at 121-24 (reviewing the structure of
the act in which § 1226 appears and its legislative history, as
well as the predecessor provisions to § 1226). And it makes
particular sense to do so here, as there is good reason to question
whether Congress would have intended to leave the precise issue
unresolved. To find that Congress did not intend to choose an
antecedent, one would have to believe Congress was content to
let the very executive branch officials that it did not trust to
13 Our colleagues suggest that the Supreme Court has
interpreted § 1226(c) as Rojas did, infra at 74-75, in Demore, 538
U.S. at 513. But although the Supreme Court cited (c) as a whole
in the first sentence of its opinion, the Court then went on to
quote in that sentence the leading language of (c)(1) -- "[t]he
Attorney General shall take into custody any alien who" -- without
referencing (implicitly or otherwise) any of the language in
(c)(2). Our colleagues do not -- and cannot -- argue that the
"when . . . released" clause is irrelevant to even (c)(1). We
thus do not see how the Court's failure to refer expressly to a
clause that obviously applies to (c)(1) in its fly-by paraphrasing
of (c)(1) could possibly be said to provide support for the
government's view of the particular issue we must decide, which is
the relationship between (c)(1) and (c)(2). And that is
particularly true as the relationship between the two paragraphs
was not even at issue in Demore.
- 21 -
make certain detention decisions determine the extent of that
distrust through their choice between the two possible
antecedents. See American Bar Ass'n v. F.T.C., 430 F.3d 457, 469
(D.C. Cir. 2005) (noting that "the sort of ambiguity giving rise
to Chevron deference is a creature not of definitional
possibilities, but of statutory context" and declining to defer to
an agency's interpretation given the sort of ambiguity at
issue (quotation marks and citation omitted)). Accordingly,
before we conclude that Congress did not speak to this issue, we
need to consider the relevant words in context, as is required
under Chevron step one.
B.
A key part of that context is the structure of the IIRIRA
as a whole, as we are obliged to construe § 1226(c) in light of
the whole act in which that provision appears. See Whitman v. Am.
Trucking Ass'ns, 531 U.S. 457, 484 (2001). The structure of that
act, however, is hard to square with Rojas. And thus the structure
of the IIRIRA supports the conclusion that Congress chose to refer
to an alien "described in paragraph (1)" rather than more
specifically to an alien "described in subparagraphs (A)-(D)"
because Congress intended to refer to an alien called to mind by
the paragraph as a whole.
We start first with the structure of § 1226, which is
oddly misaligned unless we look beyond subparagraphs (A)-(D) of
- 22 -
(c)(1) to the "when . . . released" clause to identify the alien
to whom (c)(2) refers. Cf. Whitman, 531 U.S. at 484-86 (declining
to defer to an agency's interpretation under Chevron where such
interpretation was "so at odds with [the statute's] structure," in
that it rendered certain parts of a carefully delimited exception
to the agency's otherwise broad discretion "nugatory"). The
misalignment arises because Rojas necessarily reads the cross-
reference to de-link the "Custody" directive in § 1226(c)(1) from
the bar to "Release" in (c)(2).
Rojas has this effect because, for example, as the
government has previously informed us, "there are a variety of
offenses for which an alien may be . . . subject to mandatory
detention under [§ 1226(c)(1)(A)], but that may never give rise to
a formal charge, let alone an indictment, trial or conviction."
See Saysana, 590 F.3d at 14 (quotation marks omitted) (restating
the government's argument).14 In consequence, some aliens who fall
within subparagraphs (A)-(D) will not be subject to (c)(1) because
they will never have even been "released" from criminal custody as
the "when . . . released" clause requires. See Rojas, 23 I. & N.
14For example, an alien may fall within § 1226(c)(1)(A) after
receiving a summons and paying a fine for marijuana possession.
See Immig. Law Profs. et al. Amicus Br. at 5-6. In addition,
aliens defined in § 1226(c)(1)(D) are inadmissible or deportable
solely for having engaged in certain terrorist conduct, and so
criminal custody is not a necessary precondition to qualifying as
a (D)-type alien.
- 23 -
Dec. at 122.15 According to Rojas, however, such aliens -- if
taken into custody pursuant to § 1226(a) -- would still be subject
to the bar to bonded release that (c)(2) establishes.
Rojas necessarily would apply the bar to bonded release
to such aliens because Rojas makes an alien's "release" from
criminal custody irrelevant to the application of § 1226(c)(2).
After all, it is the "when . . . released" clause and not
subparagraphs (A)-(D) that ensures that an alien taken into custody
pursuant to (c)(1) is an alien who has been "released" from
criminal custody. Thus, Rojas incongruously (and without even
acknowledging the incongruity) requires one to believe that
Congress was so concerned about certain aliens who had never been
in criminal custody, as the "when . . . released" clause
contemplates, being out and about that it directed the Attorney
General to hold them without bond even though Congress left her
15Under any interpretation of "released," see H.R. Rep. No.
101-681(I), § 1503, at 148 (1990), reprinted in 1990 U.S.C.C.A.N.
6472, 6554, 1990 WL 188857 (stating that the trailing language in
§ 1226(c)(1) was intended to clarify that the Attorney General
must "incarcerate aggravated felons upon release from confinement,
regardless of whether such release involves parole, probation, or
other forms of supervision." (emphasis added)); Lora, 2015 WL
6499951, at *6; Kotliar, 24 I. & N. Dec. at 125; West, 22 I. & N.
Dec. at 1410, some aliens who fall within the definition of
subparagraphs (A)-(D) will not have been "released" as they will
not have been in criminal custody of any sort.
- 24 -
complete discretion to decide not to take them into immigration
custody at all.16
Petitioners' reading avoids this oddly half-hearted
understanding of the detention mandate. Petitioners read the
release-from-criminal-custody constraint that appears outside
subparagraphs (A)-(D) and in the "when . . . released" clause to
limit both the "Custody" and "Release" aspects of the detention
mandate. Under this more natural reading, § 1226 as a whole
coheres quite well. Pursuant to § 1226(a), the Attorney General
would have the discretion to release on bond those aliens she had
the discretion not to take into custody. And, pursuant to §
1226(c), the Attorney General would be mandated to keep in custody
16 Tellingly, there is no indication in the record or
legislative history to the IIRIRA that Congress was any more
worried about the release by immigration authorities of criminal
aliens already in immigration custody than about the failure of
immigration authorities to take criminal aliens into custody in
the first place. And thus we do not see a basis for concluding
that a Congress concerned about "[u]ndetained aliens," S. Rep. No.
104-48 (1995), 1995 WL 170285, at *2, would be inclined to place
a release-from-criminal-custody constraint on the discretion to
take aliens into immigration custody but not on the discretion to
release aliens from such custody. The puzzle, then, is why
Congress would have wanted to express its unhappiness with both
forms of executive discretion in the partial way Rojas favors.
Notably, such different treatment would apply not only to the one
type of alien who has never been released from criminal custody
that our colleagues choose to mention, see infra at 90, but it
would also implicate myriad other types of aliens that the
government itself has consistently identified as falling within
subparagraphs (A)-(D) but not within the (c)(1) custody directive
more broadly. See, e.g., Saysana, 590 F.3d at 14.
- 25 -
only those she was mandated to take into custody.17 See Saysana,
590 F.3d at 9, 13-16 (analyzing the meaning of the "when . . .
released" clause and its trailing language in (c)(1) in order to
determine whether an alien was properly held without bond under
(c)(2)). In this way, Congress would have crafted a detention
mandate that, from start to finish, covers the same class of aliens
(whatever the word "when" might mean) that it had identified as a
cause for concern.18
Two other parts of the IIRIRA lend further support to
petitioners' reading of the cross-reference, in which the
"when . . . released" clause in (c)(1) applies as a constraint
17 Our colleagues note that the description in § 1226(c)(2)
of when aliens subject to that provision may qualify for release
from immigration custody -- when necessary for witness
protection -- does not refer expressly to the "when . . . released"
clause. See infra at 74. But (c)(2) also does not expressly refer
to subparagraphs (A)-(D), yet our colleagues would not dispute
that a person with no such predicate offense could not be subject
to (c)(2). We thus do not believe this exception clarifies the
precise issue at hand in any respect.
18 In describing the "mandatory detention provision" (i.e.,
§ 1226(c)), the panel in Saysana concluded that "the 'when
released' language serves th[e] . . . limited but focused purpose
of preventing the return to the community of those released in
connection with the enumerated offenses [in subparagraphs (A)-
(D)] . . . ." 590 F.3d at 17 (emphasis added). Saysana thus
viewed the "when . . . released" clause as limiting (c) as a whole,
including the piece of (c) that "prevents the return to the
community" (i.e., prohibits the bonded release) of certain aliens.
See also Matter of García-Arreola, 25 I. & N. Dec. 267, 270-71 &
n.4 (BIA 2010) (concluding that Saysana held that (c)(2) refers to
and incorporates the "when . . . released" clause as a constraint
and thereby recognizing the conflict between Saysana and Rojas).
- 26 -
across the whole of (c). These parts of the IIRIRA are set forth
in the Transition Period Custody Rules (TPCR). These rules apply
instead of § 1226(c) for a one- or two-year transition period, but
only if they are invoked by the Attorney General. IIRIRA
§ 303(b)(2), Pub. L. No. 104-208, 110 Stat. at 3009-586.
The first instructive part lies in the TPCR's parallel
detention mandate. The TPCR's mandate shares the same structure
as § 1226(c).19 And, notably, like § 1226(c), the predicate
19The TPCR, enacted in IIRIRA § 303(b)(3), Pub. L. No. 104-
208, 110 Stat. at 3009-587, provides in part:
(A) IN GENERAL. -- During the period in which this
paragraph is in effect pursuant to paragraph (2), the Attorney
General shall take into custody any alien who --
(i) has been convicted of an aggravated felony . . . ,
(ii) is inadmissible by reason of . . . ,
(iii) is deportable by reason of having committed any
offense covered in . . . , or
(iv) is inadmissible under . . . ,
when the alien is released, without regard to whether the
alien is released on parole, supervised release, or
probation, and without regard to whether the alien may be
arrested or imprisoned again for the same offense.
(B) RELEASE. -- The Attorney General may release the alien
only if the alien is an alien described in subparagraph
(A)(ii) or (A)(iii) and--
(i) the alien was lawfully admitted to the United States
and satisfies the Attorney General that the alien will
not pose a danger to the safety of other persons or of
property and is likely to appear for any scheduled
proceeding, or
(ii) the alien was not lawfully admitted to the United
States, cannot be removed because the designated country
of removal will not accept the alien, and satisfies the
Attorney General that the alien will not pose a danger
to the safety of other persons or of property and is
likely to appear for any scheduled proceeding.
- 27 -
offenses that trigger the custody directive in the TPCR do not
require an alien to have been "released" from criminal custody.
See Matter of Garvin-Noble, 21 I. & N. Dec. 672, 680-81 (BIA 1997).
The TPCR's mandate thus presents the same interpretive question
that § 1226(c) presents as to whether the "when . . . released"
clause -- and thus its release-from-criminal-custody constraint -
- in that mandate's custody directive limits that mandate's follow-
on bar to bonded release. And because this mandate presents the
same interpretive question, it also presents the same potential
structural misalignment.20
Tellingly, the TPCR presents its custody directive
(including its "when . . . released" clause) under the heading "In
General" and the bar to bonded release under the subsequent
heading, "Release." This presentation indicates that the
"when . . . released" clause constrains both the custody directive
and the bar to bonded release, such that the bar applies to the
very people encompassed by the "General" directive, rather than to
some people who were not encompassed by that directive at all
because they were never "released" from criminal custody.
20The two paragraphs in the transition rules are linked by a
cross-reference ("the alien") that differs from the one our
colleagues mistakenly assign such weight in construing
§ 1226(c)(2) and that is, as a purely textual matter, also not
clear.
- 28 -
The second instructive part of the IIRIRA lies in section
303(b)(2), Pub. L. No. 104-208, 110 Stat. at 3009-586. This TPCR
provision mediates the shift from the transition rules to the
permanent regime. The provision clearly provides that § 1226(c)
as a whole -- both with respect to its custody directive and its
bar to bonded release -- applies only to aliens "released after"
the TPCR expires. And the BIA has rightly read this "released
after" clause to mean that an alien must have been "released" from
criminal custody to be subject to § 1226(c) going forward. See In
re Adeniji, 22 I. & N. Dec. 1102, 1108-11 (BIA 1999). This clause
thus ensures that a release-from-criminal-custody constraint does
now limit the scope of both (c)(1) and (c)(2).
If we applied Rojas's analysis of (c)(2) to the TPCR's
equivalent to (c)(2), however, no such "released" constraint would
limit the scope of that portion of the TCPR's detention mandate
because the "when . . . released" clause in its custody directive
would not apply to the mandate as a whole. Under Rojas, therefore,
the "released after" clause would -- in this key respect -- make
the permanent mandate's bar to bonded release less sweeping than
the supposedly more flexible TPCR mandate's bar had been, even
though Congress clearly intended the latter to be less
- 29 -
encompassing.21 No such anomalous narrowing of the detention
mandate would occur upon the expiration of the TPCR if, by
contrast, the "when . . . released" clause limits the bar to bonded
release that appears in both the transition and the permanent
rules.22
For these reasons, the structure of the IIRIRA as a whole
strongly indicates that Congress did intend for the cross-
reference in § 1226(c)(2) to reach beyond subparagraphs (A)-(D) to
the "when . . . released" clause and thus to refer to an alien
taken into custody pursuant to the duty imposed by (c)(1) as a
whole.23 And thus the IIRIRA's structure indicates that Congress
21 See 142 Cong. Rec. S11838-01, 1996 WL 553814 (daily ed.
Sept. 30, 1996) (statement of Sen. Hatch) (explaining that one of
the IIRIRA's managers and conferees agreed to the TPCR because of
the INS's pleas of insufficient resources to comply with the
AEDPA); Garvin-Noble, 21 I. & N. Dec. at 675 (same).
22 Our colleagues try to downplay this anomaly by emphasizing
the carve-outs in the TPCR's bar to bonded release. See infra at
88-89. But these carve-outs are limited ones. IIRIRA
§ 303(b)(3)(B), Pub. L. No. 104-208, 110 Stat. at 3009-587. And
we think it unlikely that Congress would have intended for only
the detention mandate in the transition regime -- and not the
detention mandate in the permanent regime -- to apply to some
aliens in such classes of potentially dangerous criminal aliens as
unlawfully admitted aliens with a § 1226(c)(1)(A) predicate and
aliens with a § 1226(c)(1)(D) predicate. It is especially unlikely
that Congress would have intended the TPCR, but not § 1226(c), to
operate without a release-from-criminal-custody constraint on its
detention mandate when the preceding detention mandate did embody
such a constraint. See AEDPA, § 440(c), Pub. L. No. 104-132, 110
Stat. 1214, 1277; see Grodzki v. Reno, 950 F. Supp. 339, 342 (N.D.
Ga. 1996).
23 The "released after" clause would minimize the strange
disjuncture between § 1226(c)(1) and (c)(2) that Rojas unavoidably
- 30 -
referred to paragraph (1) rather than more specifically to the
subparagraphs within in it because Congress intended to link the
"Custody" and "Release" aspects of the detention mandate so that
they would work together. Before we conclude that Congress clearly
chose the broader antecedent to "an alien described in paragraph
(1)," however, we must still "exhaust the traditional tools of
statutory construction." See Sierra Club v. EPA, 551 F.3d 1019,
1027 (D.C. Cir. 2008). And so we now turn to the legislative
history.
C.
The legislative history confirms that Congress intended
the cross-reference in § 1226(c)(2) to refer to an alien taken
into custody pursuant to the duty imposed by (c)(1) as a whole
creates, but we presume the coherence of the permanent detention
mandate was not intended to depend on the triggering of an
ancillary and potentially never operative clause in the TPCR.
Whitman, 531 U.S. at 468. Regardless, the "released after" clause
would do nothing to avoid the anomaly of the permanent mandate
being less sweeping in a key respect than the transition mandate
had been.
Our colleagues, but not the government or Rojas itself,
contend that the canon against surplusage supports Rojas's reading
of the cross-reference in § 1226(c)(2) because otherwise
"when . . . released" would be duplicative of "released after."
See infra at 75-76. But to the extent this argument has any force,
it has it only if "when" has a time-limited meaning. The
surplusage concern thus provides no basis for concluding that Rojas
is right to treat the "when . . . released" clause as a whole as
irrelevant to (c)(2). As a result, we consider this surplusage
argument when we turn to the issue of what "when" means -- an issue
on which we owe the BIA no deference and which we must confront
only if the "when . . . released" clause does apply to all of (c).
- 31 -
rather than only to an alien described in subparagraphs (A)-(D).
And thus the legislative history helps to make clear that the
"when . . . released" clause -- and whatever limitations it
imposes -- applies across the whole of (c). This conclusion
follows from the legislative history directly tied to the IIRIRA
and from the many precursors to § 1226(c). The text and history
of those precursors show that Congress intended for those versions
of the detention mandate to operate in just the linked
manner that Rojas rejects in construing (c), and the evidence also
indicates that Congress did not mean to alter this aspect of the
longstanding scheme in passing the IIRIRA. Milner v. Department
of the Navy, 562 U.S. 562, 572 (2011) ("Those of us who make use
of legislative history believe that clear evidence of
congressional intent may illuminate ambiguous text."); see
also Goldings v. Winn, 383 F.3d 17, 21 (1st Cir. 2004) ("[I]f the
statute's legislative history reveals an unequivocal answer as to
the statute's meaning, we do not look to
the [agency's] interpretation . . . .").
1.
The title to § 1226(c) -- encompassing both (c)(1)'s
"Custody" directive and (c)(2)'s "Release" bar -- is "Detention of
Criminal Aliens." The conference report to the IIRIRA follows the
language of that overarching title in describing in unqualified
terms the "subsection" as providing that the Attorney General "must
- 32 -
detain" certain aliens. The report then sets forth one
qualification to that requirement in the next sentence and another
qualification in the third sentence, stating that "[t]his
detention mandate applies whenever such an alien is released from
imprisonment, regardless of the circumstances of the
release." H.R. Conf. Rep. No. 104-828 (1996), 1996 WL
563320, at *210-11. And finally, the report states that "[t]his
subsection also provides" for the "release[]" of aliens "from the
Attorney General's custody" in one limited circumstance. See id.
In keeping with the title to § 1226(c), we thus understand the use
of the phrase "[t]his detention mandate" to refer to a start-to-
finish detention regime that is limited across-the-board by the
"when . . . released" clause. See Rojas, 23 I. & N. Dec. at 119,
122-23 (describing the "mandatory detention aspects of the
statute" as arising from both the bar to bonded release and the
custody directive). After all, the report expressly attributes
the mandate to the "subsection" it describes rather than to only
part of it.
But even if, as our colleagues contend, the report's
reference to "[t]his detention mandate" is only to the differently
worded and more limited duty to "take into custody" certain aliens
set forth only in § 1226(c)(1), see infra at 77-78, the report
would then merely restate the question that we must decide: whether
Congress intended for the bar to bonded release set forth in (c)(2)
- 33 -
to incorporate the conditions that plainly limit the application
of the custody directive in (c)(1).24 If so, the remaining
legislative history that actually concerns the relationship
between the custody and release aspects of the detention mandate
convinces us that Congress clearly did so intend, when this history
is read against the strong structural reasons to conclude that
Congress chose to refer in (c)(2) to "paragraph (1)" rather than
subparagraphs (A)-(D) in order to encompass the same aliens under
both (c)(1) and (c)(2).
Just prior to conference, a leading Senate sponsor of
the IIRIRA described the bill as "ensur[ing] that aliens who commit
serious crimes are detained upon their release from prison until
they can be deported . . . ." 142 Cong. Rec. S10572-01 (daily ed.
Sept. 16, 1996), 1996 WL 522794 (statement of Sen. Simpson)
(emphasis added). And it should be no surprise that Senator
24 Our colleagues' reading of the fourth sentence of the
report, see infra at 77-78, takes "the Attorney General's custody"
referenced in that sentence to be any custody, even if effected as
a matter of discretion under § 1226(a), rather than to be the
mandatory custody of the Attorney General under § 1226(c) that --
on our colleagues' reading of the report -- the preceding sentences
had necessarily just referenced. And our colleagues read the
reference to "such an alien" in that sentence to be a reference
only to an alien who has committed an (A)-(D) offense rather than
to an alien who was taken into custody pursuant to the duty imposed
by (c)(1) as a whole. See id. But the text does not resolve
whether our colleagues are right to read these words this way, as
these words on their own do not tell us whether the report treats
the "when . . . released" clause as if it were incorporated as a
limitation on the bar to bonded release.
- 34 -
Simpson described the bill this way. Congress stated in a key
report right before conference that the new measure was intended
to "restate[]" the provisions of the old statute "regarding the
detention of an alien convicted of an aggravated felony . . . ."
See H.R. Rep. 104-469(I) (1996), 1996 WL 168955, at *230. And, as
we next explain, each prior version of the detention mandate
(including the immediate precursor to the IIRIRA) similarly
treated the two analogous directives to the ones that subsection
(c) contains as operating in tandem.
2.
The text and legislative history to the precursors to
§ 1226(c) clearly show that Congress intended to link the custody
directive and the bar to bonded release in these prior detention
mandates in just the way that Rojas rejects in construing
§ 1226(c). And interpreters of those precursors –- including both
the BIA and the district courts –- so read them.
We start with the 1988 mandatory detention statute,
which provided: "The Attorney General shall take into custody any
alien convicted of an aggravated felony upon completion of the
alien's sentence for such conviction. Notwithstanding subsection
(a) [the then-equivalent of § 1226(a)], the Attorney General shall
not release such felon from custody." Anti-Drug Abuse Act of 1988,
§ 7343(a), Pub. L. No. 100-690, 102 Stat. 4470. The text is most
naturally read as limiting the bar to bonded release to the
- 35 -
"felons" whom the Attorney General was required to "take into
custody." And not long after its enactment, the BIA read the
provision just that way, by treating the "upon completion"
clause (the then-equivalent of the "when . . . released" clause) in
the 1988 mandate's custody directive as if it conditioned that
mandate's "such felon" clause (the then-equivalent of "an alien
described in paragraph (1)") in the follow-on bar to
bonded release from immigration custody. Matter of Eden, 20 I. &
N. Dec. 209, 211 (BIA 1990).25
25 The BIA's decision in Eden, as our colleagues point out,
did not involve the particular timing element involved in this
case. But that is no matter as Eden is directly on point as to
the precise issue for which the government seeks Chevron
deference -- that is, the relationship between the "custody" and
"release" aspects of the present detention mandate. Our colleagues
contend otherwise as follows. Our colleagues suggest that even if
the BIA in Eden had reached the same result by concluding, instead,
that once an aggravated felon was in immigration custody he could
not then be released on bond (regardless of whether he had ever
been released from criminal custody), the BIA still would have had
reason to consider the meaning of the "upon completion" clause.
And that is because, our colleagues contend, the BIA would have
had an interest in clarifying whether the Attorney General had the
authority to place an alien in immigration custody at all, even
discretionarily, while that alien was still serving his criminal
sentence. See infra at 93-94. But the BIA had no need to clarify
the meaning of the "upon completion" clause for that distinct
purpose. And that is because, as the BIA in Eden acknowledged, an
alien could have been taken into immigration custody under the
discretionary detention authority conferred by then-equivalent to
§ 1226(a). In fact, the immigration judge in Eden granted
discretionary bond to the alien in that case under the then-
equivalent of § 1226(a), which occasioned the appeal to the BIA by
the executive. See Eden, 20 I. & N. Dec. at 210, 212 (noting that
the immigration judge had concluded that the alien "had been
properly detained under [the then-equivalent of § 1226(a)]" and
- 36 -
The 1990 amendments to the 1988 statute then codified
Eden, which was decided months earlier, and the House report to
the amendments espoused that same view of the relationship between
the two clauses. That report characterized "current law" (that
is, the detention mandate set forth in the 1988 statute) as
"requir[ing] [the government] to incarcerate alien aggravated
felons without bond immediately upon completion of the alien's
criminal 'sentence.'" H.R. Rep. No. 101-681(I), § 1503, at 148
(1990) (emphasis added); cf. United States v. Bd. of Comm'rs of
Sheffield, Ala., 435 U.S. 110, 129-35 (1978).
Moreover, in codifying Eden, Congress modified the then-
equivalent of § 1226(c)(1) in order to clarify the scope of the
then-equivalent of (c)(2). Congress did so by making clear that
aliens were "released" from criminal custody and thus could be
held without bond at the moment they were released from
incarceration, even though they might still be on parole or
supervised release.26 In revising the "upon completion" clause,
Congress necessarily treated the then-equivalent of the
framing the question on appeal in terms of whether "authority to
detain [an alien while he was on parole] pursuant to [the then-
equivalent of § 1226(c)] . . . exist[ed]" (emphasis added)).
26 Congress replaced the "upon completion" clause with "upon
release of the alien (regardless of whether or not such release is
on parole, supervised release, or probation, and regardless of the
possibility of rearrest or further confinement in respect of the
same offense)." Immigration Act of 1990, § 504(a), Pub. L. No.
101-649, 104 Stat. 4978, 5049-50; H.R. Rep. No. 101-681(I), § 1503,
at 148 (1990).
- 37 -
"when . . . released" clause and its trailing language as limiting
the follow-on bar to bonded release. Otherwise, Congress would
have had no need to tinker with that language at all in light of
the discretion to place aliens in immigration custody that the
Attorney General otherwise had. And, by passing the amendments,
Congress necessarily retained (albeit in revised form) that
limitation on the operation of both the custody directive and the
bar to bonded release.27
Finally, in 1996, not long before the IIRIRA's
enactment, Congress further amended the mandatory detention
statute while again retaining the same structure, which again
naturally reads as if those barred from release are those that
must be picked up. See AEDPA, § 440(c), Pub. L. No. 104-132, 110
27We do not find our colleagues' contrary reading of the 1990
House report -- in which Congress was supposedly responding to a
concern that the "upon completion" clause might be read to
displace, as to aliens on parole, the Attorney General's general
and unqualified grant of discretionary authority to take aliens
into immigration custody, see infra at 94-95 -- persuasive.
Congress was responding to Eden and the immigration judge in that
case did clearly conclude that the Attorney General had the
authority to place an alien on parole in immigration custody under
the then-equivalent of § 1226(a). See Eden, 20 I. & N. Dec. at
210. In offering a contrary reading of the report, our colleagues
ignore the introductory sentence of the relevant portion of the
report, which we read to supply the context for the sentences that
follow: "Current law . . . requires INS to incarcerate alien
aggravated felons without bond immediately upon completion of the
alien's criminal 'sentence.'" H.R. Rep. No. 101-681(I), § 1503,
at 148 (1990) (emphasis added). We therefore read the sentences
that follow to be referring to the authority to incarcerate aliens
without bond under the mandatory detention provision. See id.
- 38 -
Stat. 1214, 1277 (retaining "upon release"/"such felon"
structure). And prior to the passage of § 1226(c), district courts
not surprisingly treated the retained "upon release" clause as if
it conditioned the retained "such felon" clause, just as the BIA
and Congress itself had treated the analogous clauses in prior
detention mandates.28
We generally "assume that Congress is aware of existing
law when it passes legislation," see Miles v. Apex, 498 U.S. 19,
32 (1990), so we should assume that Congress understood the
prevailing interpretation of the relationship between the custody
28
District courts held that the AEDPA did not apply
retroactively to aliens who had been convicted and released from
incarceration before its enactment in part because the "upon
release" clause implicitly limited the application of the
detention mandate, including the aspect of the mandate governing
bonded release, to people taken into custody after the AEDPA's
passage. See, e.g., DeMelo v. Cobb, 936 F. Supp. 30, 36 (D. Mass.
1996), vacated as moot after the IIRIRA's passage, 108 F.3d 328
(1st Cir. 1997) (per curiam) (concluding "that the language 'upon
release of the alien from incarceration' implies a time of release
after the effective date of the Act" and thus makes the detention
mandate as a whole prospective in application); Villagomez v.
Smith, No. C96-20 1141C, 1996 WL 622451, at *2 (W.D. Wash. July
31, 1996) (unpublished) (stating that the AEDPA's detention
mandate as a whole cannot apply to aliens convicted and released
before its enactment because of the "straightforward" "upon
release" language); Montero v. Cobb, 937 F. Supp. 88, 95 (D. Mass.
1996); In re Reyes, Case No. B-94-80 (S.D. Tex. May 31, 1996); see
also Grodzki, 950 F. Supp. at 342 (holding that the "upon release"
language "at least implies that custody commence within a
reasonable time after release from incarceration" and thus that
petitioner was entitled to individualized bond hearing given the
lapse in time between when he was released from incarceration and
when he was taken into immigration custody).
- 39 -
directive and the bar to bonded release to be a linked one. After
all, courts were consistently interpreting that relationship post-
AEDPA in the same way Congress and the BIA had interpreted that
relationship in the similarly worded clauses pre-AEDPA.29 And
while Congress broadened the cross-reference in the present
29
Our colleagues, see infra at 91-92, following Rojas's lead,
see Rojas, 23 I. & N. Dec. at 122-24, find instructive the 1991
revision to an exception to the bar to bonded release contained in
the 1990 detention mandate. See Immigration Act of 1990, § 504(a),
Pub. L. No. 101-649, 104 Stat. 4978, 5049-50; Miscellaneous and
Technical Immigration and Naturalization Amendments of 1991,
§ 306(a)(4), Pub. L. No. 102-232, 105 Stat. 1733, 1751. Rojas
contends that the text of the exception to the bar to bonded
release (set forth in the revised version of paragraph (B)) shows
that the "upon release" constraint in the then-effective detention
mandate (set forth in paragraph (A)) limited neither the class of
lawfully admitted aliens referenced in (B)'s exception nor "such
felon[s]" referenced in (A)'s bar to bonded release. 23 I. & N.
Dec. at 124. But as the legislative history just described shows,
in crafting that 1990 detention mandate, Congress plainly did
intend for the "upon release" requirement to modify the "such
felon[s]" who were subject to (A)'s bar to bonded release. We
thus see no basis for concluding that Congress suddenly intended
to alter the relationship between the "upon release" and "such
felon" clauses in paragraph (A) in 1991 by way of a technical
amendment to paragraph (B) that does not appear to have been made
for any such consequential purpose. See Cong. Research Serv.,
Summaries for Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991 (H.R. 3049, 102nd Cong.),
https://www.govtrack.us/congress/bills/102/hr3049/summary
(summarizing the 1991 revision as applying the exception in (B) to
all "lawfully admitted aliens" as opposed to just aliens "lawfully
admitted for permanent residence"). Consistent with a modest
understanding of the 1991 technical revision's import, we read
(B) -- by virtue of the fact that (A) is "subject to paragraph
(B)" -- to refer merely to a subset of "such felon[s]" in (A),
which is to say felons taken into immigration custody "upon
release." In any event, we question the salience of paragraph (B)
for present purposes given that it had been deleted by the AEDPA
by the time Congress got around to enacting the IIRIRA, see AEDPA
§ 440(c), 110 Stat. at 1277.
- 40 -
detention mandate to account for the fact that not all aliens
subject to the present mandate qualify as "felons," we do not think
Congress thereby intended to alter fundamentally the relationship
between the custody directive and the bar to bonded release. In
fact, the evidence is to the contrary. See H.R. Rep. 104-469(I)
(1996), 1996 WL 168955, at *230 (stating that § 1226(c) was
intended to "restate[]" the provisions of the immediately
preceding detention mandate codified in the AEDPA).
3.
In countering the substantial evidence from the
legislative history that points against Rojas, the government and
our colleagues give great weight to an April 1995 report from the
Senate Committee on Governmental Affairs. See S. Rep. No. 104-48
(1995), 1995 WL 170285. The Supreme Court relied on that report
in Demore v. Kim, 538 U.S. 510, 518-22 (2003), to explain why
Congress could have had a reason for mandating the detention
without bond of criminal aliens in order to respond to the
contention that such mandatory detention was inherently
arbitrary. In addressing that constitutional challenge to
Congress's power to enact a detention mandate of any scope, the
Supreme Court did not purport to enlist that report to describe
the class of aliens subject to the mandate § 1226(c) actually
imposed. And for good reason.
- 41 -
That 1995 report was not linked to any particular
bill. And that report predates not only § 1226(c) but also the
immediate precursor to (c), which used the same "upon"/"such felon"
language that tracked the 1988 mandate and its revisions that we
have just described. The 1995 Senate report cannot offer any
support, therefore, for the suggestion that the present detention
mandate must have de-linked the custody directive and bar to bonded
release that had been linked in those prior versions.
And, in fact, the report does not speak to that issue at
all. To be sure, that report does show that its authors were
"concerned with detaining and removing all criminal aliens,"
Rojas, 23 I. & N. Dec. at 122 (emphasis in original); see also
Sylvain v. Attorney Gen. of U.S., 714 F.3d 150, 160 (3d Cir. 2013).
But in stating that general concern, the report does not
demonstrate that Congress intended to paint with the broad brush
the government suggests that it used in enacting § 1226(c)(2).
See Saysana, 590 F.3d at 16-18 ("The mandatory detention provision
does not reflect a general policy in favor of detention . . . .").
The report does also suggest a variety of ways to address
the concern that "criminal aliens" (i.e., aliens with deportable
offenses) do not show up to removal proceedings. These suggestions
range from increasing detention bed space to accommodate enhanced
detention efforts generally, to expediting the removal process so
that final adjudication occurs while an alien is still in criminal
- 42 -
custody, to expanding the role of mandatory detention (§ 1226(c))
in relation to discretionary detention (§ 1226(a)) by subjecting
all criminal aliens to (c). See S. Rep. No. 104-48 (1995), 1995
WL 170285, at *3-4, *21, *23, *31-32. The report nowhere
indicates, however, that Congress wanted to expand the role of
mandatory detention haphazardly by de-linking (c)(1) and (c)(2),
such that the bar to bonded release would apply to persons who
were not even subject to the custody directive at all because they
had never been in the criminal custody from which they were then
"released" as (c)(1) contemplates. See generally id.30
30
Our colleagues find support for Rojas in Congress's evident
intent to make it more difficult for certain criminal aliens to
obtain relief from a final order of removal, see infra at 82-84,
on the apparent assumption that the risk of flight is greater for
aliens who are more certain to be removed (and this class is an
especially dangerous one). But the petitioners have not yet faced
a definitive adverse judgment in their removal proceedings and so
may not in fact be removed. Moreover, aliens taken into custody
under § 1226(c) may also have a basis for discretionary relief in
the form of cancellation of removal, see Lora, 2015 WL 6499951, at
*3, *12, or some other form of relief, such as a U Visa (a type of
visa set aside for victims of certain crimes). We thus see no
justification for the inference that Congress, in making it harder
to get relief from a final removal order, must have intended to
deny bond to those who might not be ordered removed at all. In
fact, as Congress surely knows, an alien's inability to get bonded
release can limit the alien's capacity to obtain legal
representation or otherwise obtain relief from removal, see Robert
A. Katzmann, The Legal Profession and the Unmet Needs of the
Immigrant Poor, 21 Geo. J. Legal Ethics 3, 10 (2008); Moncrieffe
v. Holder, 133 S. Ct. 1678, 1690 (2013), making the impact of
mandatory detention prior to a final removal order especially harsh
in cases where avenues for relief following such order have been
curtailed.
- 43 -
4.
In sum, Rojas offers only one reason for concluding that
these petitioners may not be given a bond hearing and that reason
has nothing to with what the word "when" means. On Rojas's view,
§ 1226(c)(2) applies to any alien who has committed an (A)-(D)
offense, regardless of whether the alien was ever in and "released"
from criminal custody as (c)(1) requires, let alone "when" the
alien was released from it. And that is because Rojas holds that
the "when . . . released" clause as a whole is irrelevant to
(c)(2). But when we consider the text of (c)(2) in light of the
structure of the IIRIRA as a whole and the legislative history, we
do not believe that Rojas offers a tenable construction of the
detention mandate.
After applying the traditional tools of statutory
interpretation, we conclude that Congress did clearly speak to the
precise issue Rojas addressed regarding the relevance of the
"when . . . released" clause to the bar to bonded release in
§ 1226(c)(2). And Congress clearly addressed it in the opposite
way from Rojas. That is, Congress clearly intended for the cross-
reference in (c)(2) to refer to aliens who have committed (A)-(D)
offenses and who have been taken into immigration custody
"when . . . released" from criminal custody, in accordance with
the Attorney General's duty under (c)(1).
- 44 -
In concluding that Rojas does warrant deference, our
colleagues repeatedly emphasize that it is reasonable to conclude
that the timeliness of an alien's immigration custody is not
determinative of whether the detention mandate applies. But it is
important not to confuse the outcome that results from Rojas's
interpretation of the mandate's scope with the interpretation
itself.
For while it is true that Rojas's conclusion that the
"when . . . released" clause as a whole is irrelevant to
§ 1226(c)(2) necessarily makes timeliness irrelevant to the
operation of (c)(2), Chevron is clear that it is the agency's
interpretation of the statute and not the outcome that follows
from that interpretation that deserves our deference. See Lin v.
U.S. Dep't of Justice, 416 F.3d 184, 191-92 (2d Cir. 2005)
(declining to defer to BIA's summary affirmance of an immigration
judge decision because summary affirmance indicates approval of
only "the result reached in the decision" rather than "all of the
reasoning of that decision" and thus does not contain "the sort of
authoritative and considered statutory construction that Chevron
deference was designed to honor"). And that must be the case, as
the reason we defer to agency interpretations is precisely because
we are supposed to give weight to their reasoned judgment.
For Chevron purposes, therefore, the contention that the
legislative history or the structure of the IIRIRA does not compel
- 45 -
the timing-based outcome that the petitioners favor amounts to a
non sequitur. What matters is that Rojas implausibly ascribes an
intention to Congress to place greater limits on the Attorney
General's discretion to take aliens into custody in the first place
than on the Attorney General's discretion to release them once
they are in custody. And so, having determined under Chevron step
one that Rojas's interpretation of the relationship between (c)(1)
and (c)(2) conflicts with Congress's evident intent and thus does
not merit deference, we now turn to the question that remains: the
meaning of (c)(1)'s "when . . . released" clause.
III.
In taking up this issue, we confront the question that
Rojas never reaches: does "when" impose a time limit for taking an
alien into custody pursuant to (c)(1) that renders (c)(2)'s bar to
bonded release inapplicable to these petitioners due to the
remoteness of their release from criminal custody? See Sylvain,
714 F.3d at 157 n.9 (stating that Rojas "did not explicitly
interpret" the word "when").
The government argues that the word "when" imposes no
such time limit, either because "when" means "if" or "any time
after" or because Congress at most used the word "when" to trigger
a duty to act promptly that persists indefinitely. The BIA,
however, has never adopted either view, and such litigating
- 46 -
positions are not entitled to Chevron deference.31 See United
States v. Mead Corp., 533 U.S. 218, 231 (2001). We thus must
decide the clause's meaning on our own. See Santana v. Holder,
731 F.3d 50, 53 (1st Cir. 2013).
To do so, we first consider whether the word "when" as
used here is merely a synonym for "if" or "any time after" and
consequently conveys no sense of immediacy at all. We then
consider whether, even if Congress intended for the word "when" to
convey immediacy, the word merely reflects a legislative
preference for timely action and thus does not impose a true time
limit.
31 Although the government suggests that Rojas construed
"when" to mean, in effect, "any time after," Rojas did not, as it
held that the word was irrelevant to § 1226(c)(2)'s operation.
The government reads too much into Rojas's assertion that the
"when . . . released" clause "specifies[s] the point in time at
which [the Attorney General's] duty [under (c)(1)] arises." See
Rojas, 23 I. & N. Dec. at 121. In so stating, Rojas merely
clarified that "when . . . released" modifies "take into custody"
rather than the "alien" in (c)(1), not that "when" imposes no
deadline. In fact, the BIA has seemed to set forth a time-limited
meaning of "when" several times. See id. at 122; see also Matter
of Saysana, 24 I. & N. Dec. 602, 607 (BIA 2008); Matter of Valdez-
Valdez, 21 I. & N. Dec. 703, 708 (BIA 1997). The government's
interpretation of the meaning of the word "when" is thus not
entitled to Chevron deference. Given that the BIA's position on
the meaning of "when" is at worst inconsistent and at best
consonant with petitioners' time-limited reading, we also would
not defer under Skidmore to such an interpretation, assuming
Skidmore deference even applies to the government's litigating
position in this case. See Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944) (stating that the opinion of an agency is entitled to
respect only to the extent it has the "power to persuade").
- 47 -
A.
We begin our analysis of the first issue with the
observation that Congress chose a word, "when," that naturally
conveys some degree of immediacy, Castañeda, 769 F.3d at 42-44, as
opposed to a purely conditional word, such as "if." See Webster's
Third New International Dictionary 2602 (2002) (defining "when" as
"just after the moment that"). Consistent with the conclusion
that this choice indicates that Congress intended for "when" to
convey immediacy, § 1226(c)(1) says "when the alien is released,"
not "when the alien has been released" or "after the alien is
released." Similarly, the structural placement of the
"when . . . released" clause suggests Congress did not use "when"
simply to announce a condition, as the clause does not directly
follow "any alien who." Cf. Rojas, 23 I. & N. Dec. at 128-29.32
If Congress really meant for the duty in (c)(1) to take
effect "in the event of" or "any time after" an alien's release
from criminal custody, we would expect Congress to have said so,
given that it spoke with just such directness elsewhere in the
IIRIRA. See, e.g., 8 U.S.C. § 1231(a)(5) ("[T]he alien shall be
32 The Rojas concurrence suggested that the
"when . . . released" clause in (c)(1) does not impose a timing
constraint because it modifies only the offenses denominated in
subparagraphs (A)-(D) of (c)(1), rather than the duty to "take
into custody." See Rojas, 23 I. & N. Dec. at 128-29 (Moscato,
concurring and dissenting). Neither the BIA, the government, nor
our colleagues advance this view, however, and we see no basis for
this view given the structural placement of the clause.
- 48 -
removed under the prior order at any time after the reentry."
(emphasis added)); cf. United States v. Willings, 8 U.S. (4 Cranch)
48, 54 (1807) (concluding that Congress intended the word "when"
in a federal maritime statute to mean "if" or "in case" because
the statute contained clear indicia of conditional intent (for
example, the phrase "in every such case" recurred)). In fact, the
BIA itself noted in Rojas that "[§ 1226(c)] does direct the
Attorney General to take custody of aliens immediately upon their
release from criminal confinement." Rojas, 23 I. & N. Dec. at 122
(emphasis added).
As to just how promptly Congress intended for the
government to act, there is more uncertainty, as the panel
recognized when it construed the word "when" to mean "within a
reasonable time after." See Castañeda, 769 F.3d at 44. But given
the unexplained, years-long gap between when these petitioners
were released from criminal custody and when they were taken into
immigration custody, we need not define the bounds of
reasonableness in this case as they were plainly exceeded.33 Thus,
33 The government and our colleagues contend that it is
implausible that Congress would have exempted aliens from § 1226(c)
merely in consequence of the remoteness of their release from
criminal custody given that such a gap in custody might be
attributable to other forces. See Gov. Br. at 8-9; see infra at
83. For example, the government and our colleagues point to
evidence that some state and local authorities may frustrate the
ability of the Attorney General to place aliens in custody in a
timely fashion under (c)(1). Id. But the agency charged with
- 49 -
for present purposes, it is enough to conclude that Congress used
the word "when" to convey some degree of immediacy and not simply
to set forth a condition.34
administering the Act has not purported to define the word "when"
or its temporal bounds, let alone how such period of time should
be tolled in the circumstances the government and our colleagues
identify or in other circumstances that might arise, such as when
an alien receives a non-carceral sentence. See Lora, 2015 WL
6499951, at *6; Kotliar, 24 I. & N. Dec. at 125; West, 22 I. & N.
Dec. at 1410. We do not believe that such fact-specific questions
about tolling provide a basis for concluding that "when" is best
read in context to mean "if" or "any time after," given the other
evidence of legislative intent.
34 Our colleagues contend that the petitioners' view of "when"
would be at odds with the canon against surplusage in light of the
"released after" clause of the IIRIRA § 303(b)(2). But we do not
see how. At worst, the "released after" clause is a clarifying
provision in an ancillary and potentially never operative measure.
Cf. In re Fahey, 779 F.3d 1, 7 (1st Cir. 2015) (indicating that
language that is not strictly speaking necessary, if nonetheless
clarifying, need not be thought to run afoul of the canon against
surplusage). That is because the "released after" clause appears
to have been intended to clarify which rules would apply to
existing detainees when the TPCR expired. Aliens who were
immediately taken into immigration custody upon their release from
criminal custody during the transition period were subject to the
restrictions on bonded release imposed by the TPCR. While the
IIRIRA § 303(b)(2) did state the effective date of the new
permanent rules § 1226(c) set forth, the "effective date" clause
did not make clear whether the permanent rules or the by-then-
expired TPCR rules would govern those persons in mandatory
detention when the TPCR expired. Thus, the "released after" clause
in the IIRIRA § 303(b)(2) would seem to have been intended to
perform the useful function of making clear -- as part of a savings
clause, see Garvin-Noble, 21 I. & N. Dec. at 681; Adeniji, 22 I.
& N. Dec. at 1110-11 (emphasizing "uncertainty . . . in discerning
how Congress expected the [released after] provision to operate,"
given that Congress may have "intended" but inadvertently
"neglected" to incorporate this provision into a broader savings
clause in the TPCR) -- that § 1226(c) would apply only to aliens
released from criminal custody "after" the transition period.
Conversely, the old TPCR rules for mandatory detention would
- 50 -
B.
The part of the conference report to the IIRIRA that
describes § 1226(c) supports the conclusion that Congress did not
intend for the word "when" to have a purely conditional meaning.
And so, too, does the legislative history to (c) that indicates it
was meant to mirror the precursor mandates, each of which used a
timing word that was understood to convey immediacy.
The conference report states that "[t]his detention
mandate applies whenever such an alien is released from
imprisonment, regardless of the circumstances of the release."
H.R. Conf. Rep. No. 104-828 (1996), 1996 WL 563320, at *210-11
(emphasis added). As used in that report, "whenever" is most
plausibly read to mean at the time that the alien is released from
imprisonment, whenever that event may occur, rather than simply
"if" that event occurs. Indeed, had Congress intended by the use
of "whenever" to mean "if" or "any time after," we again would
expect the report to have said "after such alien is released" or
"whenever such an alien has been released."
continue to govern aliens held in mandatory detention pursuant to
those transition rules. Thus, the "released after" clause is by
no means unnecessary if "when" conveys immediacy. A misplaced
concern about surplusage thus should not dictate a meaning of the
word "when" that is so at odds with the text, structure, and
legislative history. See King v. Burwell, 135 S. Ct. 2480, 2492-
93 (2015).
- 51 -
Consistent with this conclusion, the legislative history
to the subsection that would become § 1226(c) indicates that
Congress intended to "restate[]" the provisions of the direct
precursor to (c) "regarding the detention of an alien." See H.R.
Rep. No. 104-469(I) (1996), 1996 WL 168955, at *230. And that
direct precursor, which is codified in the AEDPA, used the word
"upon," which was used in and understood to have conveyed immediacy
in all the detention mandates preceding § 1226(c).35
For example, the House Report on the 1990 amendments to
the 1988 mandatory detention statute characterized "current law"
as "requir[ing] [the] INS to incarcerate alien aggravated felons
without bond immediately upon completion of the alien's criminal
'sentence.'" H.R. Rep. No. 101-681(I), § 1503, at 148 (1990),
reprinted in 1990 U.S.C.C.A.N. 6472, 6554, 1990 WL 188857 (emphasis
added); cf. Sheffield, 435 U.S. at 129-35. And the district courts
that construed the word "upon" in the AEDPA's detention mandate
reached the same conclusion as Congress had about the 1988
measure -- its use of the word "upon" conveyed immediacy. See,
e.g., DeMelo, 936 F. Supp. 30, 36 (D. Mass. 1996), vacated as moot
after the IIRIRA's passage, 108 F.3d 328 (1st Cir. 1997).
35In fact, as we have noted, just prior to conference on the
IIRIRA, a leading Senate sponsor of the IIRIRA described § 1226(c)
as "ensur[ing] that aliens who commit serious crimes are detained
upon their release from prison until they can be deported . . . ."
142 Cong. Rec. S10572-01 (daily ed. Sept. 16, 1996), 1996 WL 522794
(statement of Sen. Simpson) (emphasis added).
- 52 -
In sum, the legislative history as a whole indicates
that Congress used the word "when" just as it had used the word
"upon": to convey a sense of immediacy. We thus conclude that the
legislative history reinforces the textual indication that
Congress did not intend for the word "when" to be merely a synonym
for "if" or "any time after."
C.
That brings us to the question of whether Congress
intended for the word "when" merely to express a legislative
preference for timely action or whether it was instead intended to
impose a deadline for the application of the bar to bonded release
set forth in § 1226(c). To answer this question, we consult the
principles underlying the so-called loss-of-authority canon.36
36 Our colleagues, in concluding that "when" merely expresses
a preference for timely action, do not rely on loss-of-authority
principles. See infra at 98-99. They instead reason that even if
Rojas is wrong, whether an alien was timely taken into immigration
custody is just an exogenous fact and thus does not have any
bearing on the class of aliens to whom § 1226(c) applies. See id.
If we follow, the suggestion appears to be that the word "released"
and the trailing portions of the "when . . . released" clause do
refer to something endogenous to the alien and thus do characterize
the alien to whom (c) applies, even though the word "when" does
not. But aliens do not release themselves any more than they
choose when they are released. We thus do not see how the line
between exogenous and endogenous facts could be drawn so finely as
to attribute to Congress an intent to carve up the
"when . . . released" clause in this odd way, even if there were
any textual basis for construing the Attorney General's duty under
(c) as being limited by facts endogenous to the alien rather than
by all relevant ones. And, as noted, there is no textual basis
for concluding that the word "when" -- and whatever limitations
- 53 -
That interpretive aid comes into play where Congress has
mandated that the government "shall" do something within a certain
time frame and there is a question about the consequence Congress
intends for the government's failure to complete the required
action within that time frame. See Barnhart v. Peabody Coal Co.,
537 U.S. 149, 158-59 (2003). The canon generally counsels that:
"[i]f a statute does not specify a consequence for noncompliance
with statutory timing provisions, the federal courts will not in
the ordinary course impose their own coercive sanction." Id. at
159. The animating principle behind this canon is one of
plausibility given the context: "if Congress had meant to set a
counterintuitive limit on authority to act, it would have said
more than it did." Id. at 163 (emphasis added).
The government contends that § 1226(c) "contains no
sanction for late executive action," Gov. Br. at 10, and that it
would be counterintuitive to render (c) inapplicable when the
that word imposes -- does not constrain the application of (c)(1),
as the word clearly and unconditionally modifies the Attorney
General's directive to "take into custody." The only possible
textual hook for distinguishing between endogenous and exogenous
facts, therefore, resides in (c)(2)'s "described in" language.
But making a distinction on this basis for the purpose of
understanding the bounds of the Attorney General's duty under (c)
would still create an arbitrary line-drawing problem. And such a
distinction would also incongruously de-link the custody directive
in (c)(1) from the bar to bonded release in (c)(2) by subjecting
the custody directive to a timing constraint not applicable to the
bar to release.
- 54 -
executive is late in taking an alien into custody given the
detention-maximizing purpose underlying (c). But we do not agree.
This case is not like those in which enforcement of a
time limit would require a court to fashion a coercive sanction
that appears nowhere in the text and that would completely strip
the government of authority "to get [the] . . . job done," id. at
160. See, e.g., id. at 156 (proposed sanction was complete loss
of ability to direct award of retirement benefits to late-assigned
beneficiaries); Brock v. Pierce Cty., 476 U.S. 253, 258 (1986)
(proposed sanction was complete loss of ability to recover misused
federal funds); Dolan v. United States, 560 U.S. 605, 609 (2010)
(proposed sanction was complete loss of ability to order persons
convicted of certain crimes to pay restitution to victims).
Rather, the putative time limit at issue here appears in an express
exception, § 1226(c), to an otherwise broad grant of discretionary
authority, § 1226(a), regarding the custody and release of aliens
awaiting the outcome of removal proceedings, just as all the
precursors to § 1226(c) were framed as exceptions to then-
equivalents of § 1226(a). Thus, enforcement of the time limit
here, unlike in the other cases in which loss-of-authority
principles were applied, would merely render inapplicable an
express limit on a grant of authority and thus necessarily result
in a reversion to that authority.
- 55 -
Given this distinct context, the key question is whether
Congress intended for the requirement that the Attorney General
timely take aliens into immigration custody to circumscribe the
scope of this exception. As a textual matter, there is no
indication that Congress intended for subparagraphs (A)-(D) in
§ 1226(c)(1) but not the "when . . . released" clause to define
the outer limit of the Attorney General's discretion that the
exception in (c) establishes. The text of (c) also does not itself
indicate that the timeliness of an alien's custody is merely a
procedural requirement that need not be complied with in a strict
sense.
There remains the question whether it nevertheless would
be counterintuitive to read "when" to circumscribe the exception's
scope. The express presentation of § 1226(c) as an exception to
(a) that applies only if all of its conditions are met accords
with the quite sensible intuition that Congress did mean to
distinguish between aliens who fall within the scope of (a) and
aliens who fall within the scope of (c) on the basis of the
timeliness of their immigration custody.37 In construing the
37 That Congress intended to craft a relatively narrow
detention mandate is hardly implausible. After all, Congress did
not adopt the recommendation in the 1995 Senate report to expand
the class of aliens subject to mandatory detention to "all criminal
aliens." See S. Rep. No. 104-48 (1995), 1995 WL 170285. Rather,
setting aside any limitations imposed by the "when . . . released"
clause, Congress limited mandatory detention under § 1226(c) to
- 56 -
intended scope of another aspect of § 1226(c), we explained in
Saysana that "[i]t is counter-intuitive to say the least to say
that aliens with potentially longstanding community ties are, as
a class, poor bail risks." See Saysana, 590 F.3d at 17. And we
added that "by any logic, it stands to reason that the more remote
in time a conviction becomes and the more time after a conviction
an individual spends in a community the lower his bail risk is
likely to be." See id. at 17-18.38
Thus, in this context, we conclude that the timing word
"when" is best read to impose an outer limit on the exception to
the categorical bar to discretionary release carved out by
§ 1226(c). In consequence, aliens like petitioners, who due to
the unexplained years-long gap between their criminal custody and
aliens who have committed certain enumerated offenses and who were
"released after" the TPCR expired (by virtue of the IIRIRA
§ 303(b)(2)); see also Saysana, 590 F.3d at 15-16 (holding that
§ 1226(c)(1) is not triggered until an alien is released from
custody for having committed an offense specified in subparagraphs
(A)-(D), as opposed to being triggered by release from any type of
criminal custody).
38 The Second Circuit held that, to avoid "serious
constitutional concerns," § 1226(c) "must be read as including an
implicit temporal limitation," such that aliens taken into
immigration custody pursuant to § 1226(c) cannot be held without
a bond hearing for more than six months. Lora, 2015 WL 6499951,
at *10-11. In so holding, the Second Circuit noted that indefinite
detention "has real-life consequences for immigrants and their
families," and that it is particularly concerning when "[n]o
principled argument has been mounted for the notion that [the
detainee] is either a risk of flight or is dangerous." Id. at
*12.
- 57 -
their immigration custody have had the opportunity to re-establish
community ties, are not subject to the bar to release set forth in
(c). They are subject instead to the default rule of discretionary
release set forth in (a).39
To be sure, Congress was concerned about criminal aliens
failing to show up for removal proceedings. See Rojas, 23 I. & N.
Dec. at 122. But Congress expressly directed the executive to
address that concern by complying with the mandate to pick up
aliens within a reasonable time frame. In fact, Congress
established transition rules that the Attorney General could
invoke to ensure the government would be prepared to comply
promptly with § 1226(c) by the time those rules expired. See
Adeniji, 22 I. & N. Dec. at 1110.
As a result, we do not believe Congress intended that
the executive could fail to pick up an alien within a reasonable
time and then, despite that unexplained delay, deny that alien the
chance to seek bonded release notwithstanding that alien's years
of living freely. See Castañeda, 952 F. Supp. 2d at 318 n.10
39 Our colleagues' gardening example is of little help in
establishing the context for discerning Congress's intent in
enacting a detention mandate that "touches upon matters of both
personal liberty and the control of our nation's borders." See
infra at 76. As for our colleagues' suggestion that Congress had
"no good reason" to distinguish between aliens timely taken into
custody and aliens not timely taken into custody, our prior
decision in Saysana supplies a compelling reason, see Saysana, 590
F.3d at 17, as does Congress's treatment of § 1226(a) as a backstop
source of detention authority.
- 58 -
("[T]he experience of having one's liberty stripped away is
drastically different from the experience of not having it
restored."); cf. DeWitt v. Ventetoulo, 6 F.3d 32, 34-36 (1st Cir.
1993) (holding that revoking a mistakenly granted suspension of
sentence and re-imprisoning a defendant after years of being free
violated due process). And there certainly is nothing in the
legislative history to indicate that Congress did have that
specific intention.40
For these reasons, the principal precedent that the
government, like the Third Circuit in Sylvain, 714 F.3d at 158-
61, relies on, United States v. Montalvo–Murillo, 495 U.S. 711
(1990), is not to the contrary. That case concerned whether the
government's failure to hold a bond hearing in a timely fashion
barred the government from assuming pre-trial custody of a criminal
defendant under the Bail Reform Act (BRA). See Montalvo-Murillo,
40 In fact, the legislative history accords with the notion
that Congress wanted to limit § 1226(c) to aliens coming right out
of criminal custody in order to help immigration authorities
conserve scarce detention bed space so that aliens who needed to
be detained under § 1226(a) could be. See Criminal and Illegal
Aliens: Hearings Before the Subcomm. on Immigration and Claims of
the House Comm. on the Judiciary, 104th Cong. (Sept. 5, 1996)
(statement of David Martin, General Counsel of INS) (noting that
criminal aliens subject to the AEDPA's detention mandate imposed
severe burdens on detention bed space and crowded out space for
aliens who did not come within such mandate and only discussing
efforts by immigration authorities to take aliens into custody
just as they were leaving incarceration); Amicus Br. of Frm. Imm.
Judges and DHS Sec. Officials at 17-20 (describing scarce detention
bed space).
- 59 -
495 U.S. at 717. Notably, but not surprisingly, the BRA specified
no consequence for holding a hearing late. And the Court thus
held that such failure should not be deemed to have the drastic
and disproportionate consequence of depriving the government of
its power to place a criminal defendant in custody at all by
mandating the release of the criminal defendant. See id. at 719-
20.41
Here, however, the putative time limit appears within an
express exception to a grant of authority. So § 1226 itself makes
clear what consequence would follow if such time limit is not met.
Moreover, that consequence would not strip the executive of the
power to assume custody of a potentially dangerous or flight-prone
criminal defendant. Instead, the Attorney General would merely
retain her otherwise broad discretion to decide whether to assume
and maintain custody of an alien pursuant to whatever rules she
41
The Supreme Court's decision in Barnhart, 537 U.S. at 152,
is similar. The appellants argued that a certain provision of the
Coal Act specified the consequence for the government's failure to
timely comply with another provision, id. at 153, 163, but the
Court rejected this argument because the Coal Act's text did not
expressly link the two provisions and there was evidence to suggest
that Congress did not think of the two provisions as related. Id.
at 163-65. Moreover, the Court reasoned that it was implausible
to think that Congress would have wanted that separate provision
to control as a policy matter, so the consequence was untenable.
Id. at 164. Here, of course, Congress expressly styled § 1226(c)
as an exception that restricts the power otherwise granted under
(a), so the asserted consequence is clearly linked to the asserted
act of noncompliance. And, for the reasons discussed, we hardly
think it is counterintuitive for Congress to have intended that
(a) would control if (c)'s conditions are not met.
- 60 -
may lawfully establish for exercising such discretion under (a).
Because this consequence follows from the text and because the
text accords with the reasonable and intuitive understanding that
Congress intended to distinguish between aliens like petitioners
and aliens who were taken into custody "when . . . released," see
Saysana, 590 F.3d at 17, we read the timing condition at issue
here as circumscribing the Attorney General's duty under (c).
Thus, at least absent an authoritative agency
construction of § 1226(c)(2), we conclude that the word "when"
does set forth a time constraint on (c) that expires after a
reasonable time. And for that reason, we reject the government's
contention that "when" must be read merely to trigger an
indefinitely persisting duty, such that it imposes no outer bound
on the scope of the exception § 1226(c) sets forth.
IV.
The current version of the detention mandate requires
that aliens who have committed certain offenses be taken into
immigration custody in a timely manner following their release
from criminal custody. The detention mandate further provides
that only such aliens must then be held without bond until the
completion of the removal process. These petitioners were released
from criminal custody years before they were first placed in
immigration custody. For that reason, they clearly do not fall
within "this detention mandate." H.R. Conf. Rep. No. 104-828
- 61 -
(1996), 1996 WL 563320, at *210-11. Accordingly, we agree with
the two district courts that these petitioners have the right to
individualized bond hearings at which they can make the case that
they do not pose sufficient bond risks, just as the Attorney
General specified in the regulations that she issued pursuant to
§ 1226(a).
- 62 -
TORRUELLA, Circuit Judge (Concurring). I recognize that
the Supreme Court has determined that Congress may, "[i]n the
exercise of its broad power over naturalization and immigration,
. . . regularly make[] rules that would be unacceptable if applied
to citizens," Mathews v. Diaz, 426 U.S. 67, 79-80 (1976); see also
Demore v. Kim, 538 U.S. 510, 521 (2003), and that the right to
bail is not absolute. United States v. Salerno, 481 U.S. 739,
754-55 (1987). Yet, I must register my discomfort with respect to
8 U.S.C. § 1226(c).
I am compelled to suggest that the indefinite detention
without access to bond or bail of any person in the United States
violates due process. See Wong Wing v. United States, 163 U.S.
228, 238 (1896) ("[A]ll persons within the territory of the United
States are entitled to the protection guarantied [sic] by th[e
Fifth and Sixth] amendments [sic] . . . ."); Yick Wo v. Hopkins,
118 U.S. 356, 369-70 (1886) (applying Fourteenth Amendment due
process and equal protection provisions "to all persons within the
territorial jurisdiction, without regard to any differences of
race, of color, or of nationality"). The U.S. Constitution
specifically addresses the right to bail. It is the first concern
of an amendment that names just three subject matters. "Excessive
bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted." U.S. Const. amend. VIII. As
the Supreme Court has elsewhere noted, "[b]ail is basic to our
- 63 -
system of law." Herzog v. United States, 75 S. Ct. 349, 351
(Douglas, Circuit Justice, 9th Cir. 1955) (citing U.S. Const.
amend. VIII; Stack v. Boyle, 342 U.S. 1 (1951)). The Fifth
Amendment mandates that no "person . . . be deprived of life,
liberty, or property, without due process of law." U.S. Const.
amend. V.
When the government exercises its discretion to subject
a person to detention without access to a bond hearing after the
condition justifying detention has been in existence for a
considerable period of time, it disregards what is by then self-
evident -- that said subject is neither a flight risk nor a danger
to society, the primary reasons for denying bail. See 18 U.S.C.
§ 3142(e)(1); cf. Carlson v. Landon, 342 U.S. 524, 542 (1952)
("There is no denial of the due process of the Fifth Amendment
under circumstances where there is reasonable apprehension of hurt
from aliens charged with a philosophy of violence against this
Government."). Although Judge Kayatta, Chief Judge Howard, and
Judge Lynch view this issue differently, infra at 104-05, this
Court has elsewhere described their views as counter-intuitive.
Saysana v. Gillen, 590 F.3d 7, 17-18 (1st Cir. 2009) ("[I]t is
counter-intuitive to say that aliens with potentially longstanding
community ties are, as a class, poor bail risks. . . . By any
logic, it stands to reason that the more remote in time a
conviction becomes and the more time after a conviction an
- 64 -
individual spends in a community, the lower his bail risk is likely
to be."). Affirming the government's prerogative to incarcerate
persons in defendants' situation without bail or bond hearing is
not only to allow arbitrary and abusive government action but to
condone acts that run contrary to the Constitution. See Herzog,
75 S. Ct. at 351; see also Wong Wing, 163 U.S. at 237.
I write separately to ensure that the constitutional
concerns raised by § 1226(c) and the government conduct it commands
-- the ongoing, institutionalized infringement of the right to
bail and right to due process -- are formally acknowledged.
Notwithstanding these concerns, we reach the conclusion we must in
light of Congress's laws, legislative history, and the Supreme
Court's holdings. I thus concur in the judgment.
- 65 -
KAYATTA, Circuit Judge, with whom HOWARD, Chief Judge,
and LYNCH, Circuit Judge, join. Congress enacted what is now
8 U.S.C. § 1226(c) because of its concern that immigration judges
had proven to be insufficiently accurate predictors of which aliens
would "engage in crime and fail to appear for their removal
hearings." Demore v. Kim, 538 U.S. 510, 513 (2003); see S. Rep.
No. 104-48, at 2 (1995) ("Despite previous efforts in Congress to
require detention of criminal aliens while deportation hearings
are pending, many who should be detained are released on bond.").
To address this concern, Congress identified four categories of
what Congress called "criminal aliens." 8 U.S.C. § 1226(c).
Section 1226(c), as signed by the President on September 30, 1996,
as part of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA"), mandates, first, that the
Attorney General "take into custody" these criminal aliens "when
the alien is released" from criminal detention (the "custody
mandate"). See id. § 1226(c)(1). Section 1226(c) then mandates,
second, an end to the practice of immigration judges trying to
predict which of those criminal aliens will appear for removal
proceedings if ordered to do so. See id. § 1226(c)(2). Under
this latter mandate (the "no-release mandate"), the Attorney
General must not release the criminal alien from the Attorney
General's custody pending resolution of the alien's removal
proceeding, unless release is necessary for protection of certain
- 66 -
persons in connection with an investigation into a major crime.
See id. The alien is, however, entitled to an immediate hearing
to adjudicate any contention that the alien is not a criminal alien
subject to section 1226(c)'s mandates. See 8 C.F.R.
§ 1003.19(h)(2)(ii).
With its evenly divided vote, our court leaves in place
two district court decisions holding that, to the extent the
Attorney General fails to comply promptly with the custody mandate,
immigration judges will find themselves back in the position of
predicting which criminal aliens will present themselves for
removal if they are released on bail pending the conclusion of
their removal proceedings. Indeed, as we understand the reasoning
of our colleagues who would affirm the decisions below, any failure
by the Attorney General to achieve prompt compliance with the
custody mandate renders both the custody and the no-release
mandates inapplicable. For the reasons we explain in this opinion,
we would instead join all four other circuits that have considered
this issue by sustaining the Board's current practice in complying
with section 1226(c). See Lora v. Shanahan, No. 14-2343-PR, 2015
WL 6499951, at *8–9 (2d Cir. Oct. 28, 2015); Olmos v. Holder, 780
F.3d 1313, 1327 (10th Cir. 2015); Sylvain v. Attorney General, 714
F.3d 150, 161 (3d Cir. 2013); Hosh v. Lucero, 680 F.3d 375, 384
(4th Cir. 2012).
- 67 -
I. Discussion
We begin by explaining our view that the statute's
mandates apply to petitioners, using the same tools of statutory
construction that our colleagues employ to decide this case at
step one of the Chevron analysis. See Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). We
also explain why our colleagues' parsing of section 1226(c), even
if correct, fails to support the conclusion that the Attorney
General's failure to take a criminal alien into custody immediately
upon release somehow eliminates any further requirement to comply
with Congress's mandates set forth in section 1226(c). Finally,
although our colleagues do not reach Chevron step two, see id.
at 843, and therefore do not consider the constitutional avoidance
argument that was relied upon in the vacated panel opinion, we do
reach step two, and therefore briefly explain why that avoidance
argument is not a valid basis for setting aside the Board of
Immigration Appeals' ("BIA") reasonable interpretation of section
1226(c).
- 68 -
A. The Language and Structure of the Statute
8 U.S.C. § 1226(a) grants the Attorney General the
discretion whether to take into custody aliens charged with removal
and whether to continue that custody pending the completion of
removal proceedings:
(a) Arrest, detention, and release
On a warrant issued by the Attorney
General, an alien may be arrested and detained
pending a decision on whether the alien is to
be removed from the United States. Except as
provided in subsection (c) of this section and
pending such decision, the Attorney General--
(1) may continue to detain the arrested
alien; and
(2) may release the alien on--
(A) bond of at least $1,500 . . . ;
or
(B) conditional parole . . . .
For certain aliens classified by Congress as "criminal
aliens," however, 8 U.S.C. § 1226(c) requires the Attorney General
both to take the alien into custody and to maintain that custody
without release subject to a narrow exception. Section 1226(c)
states in full:
(c) Detention of criminal aliens
(1) Custody
The Attorney General shall take into
custody any alien who--
(A) is inadmissible by reason of
having committed any offense
covered in section 1182(a)(2)
of this title,
(B) is deportable by reason of
having committed any offense
covered in section
1227(a)(2)(A)(ii), (A)(iii),
(B), (C), or (D) of this title,
- 69 -
(C) is deportable under section
1227(a)(2)(A)(i) of this title
on the basis of an offense for
which the alien has been
sentence [sic] to a term of
imprisonment of at least 1
year, or
(D) is inadmissible under section
1182(a)(3)(B) of this title or
deportable under section
1227(a)(4)(B) of this title,
when the alien is released, without
regard to whether the alien is released
on parole, supervised release, or
probation, and without regard to whether
the alien may be arrested or imprisoned
again for the same offense.
(2) Release
The Attorney General may release an
alien described in paragraph (1) only if
the Attorney General decides pursuant to
section 3521 of title 18 that release of
the alien from custody is necessary to
provide protection to a witness, a
potential witness, a person cooperating
with an investigation into major criminal
activity, or an immediate family member
or close associate of a witness,
potential witness, or person cooperating
with such an investigation, and the alien
satisfies the Attorney General that the
alien will not pose a danger to the
safety of other persons or of property
and is likely to appear for any scheduled
proceeding. A decision relating to such
release shall take place in accordance
with a procedure that considers the
severity of the offense committed by the
alien.
Each of the petitioners in this case, after arriving in
this country, was convicted of one of the criminal acts listed in
section 1226(c)(1)(A)-(D). See Castañeda v. Souza, 769 F.3d 32,
36 (1st Cir. 2014), reh'g granted en banc. There is no dispute
- 70 -
among the parties that section 1226(c) therefore plainly required
the Attorney General: (1) to take petitioners into custody when
they were released from incarceration, and (2) to detain them until
the conclusion of their respective removal proceedings. The
question under consideration is what happens when, as here, the
Attorney General does not manage to detain the criminal alien until
after the alien's release from incarceration.
All members of our en banc panel appear to agree that
the mandate of paragraph (2) of section 1226(c) strictly limiting
the release of certain persons once detained applies to anyone who
is "an alien described in paragraph (1)." So this case pivots, at
least in the first instance, on determining the meaning of that
phrase. The BIA, in a quite straightforward fashion, construed
that phrase to mean any alien who satisfies one of the adjectival
descriptions set forth in subparagraphs (A)-(D) of paragraph (1)
("any alien who" "is inadmissible" or "is deportable" under the
specified laws). In re Rojas, 23 I. & N. Dec. 117, 121 (BIA 2001).
Petitioners, and now three of our colleagues, argue instead--and
this is crucial to their entire argument--that the pertinent
description of the aliens in paragraph (1) clearly includes as
well the adverbial phrase "when the alien is released" (emphasis
added). In this manner, our colleagues reason that if an alien
was not detained by the Attorney General immediately "when the
- 71 -
alien [was] released," then that alien is not an alien "described"
in paragraph (1).
This attempt at deputizing an adverbial phrase into
service as a description of the noun "alien" pays little heed to
customary conventions of grammar and syntax. "An adverb, an
adverbial phrase, or an adverbial clause may qualify several parts
of speech, but a noun is not one of them." Theodore M. Bernstein,
The Careful Writer, A Modern Guide to English Usage 23 (1965).
Conversely, adjectives (like those in subparagraphs (A)-(D)) are
"good friends of the noun." H.W. Fowler, A Dictionary of Modern
English Usage 10 (Sir Ernest Gowers ed., 2d ed. 1965); see also
Merriam-Webster's Collegiate Dictionary 19 (11th ed. 2012). We do
not mean to say that there are never circumstances in which writers
might employ an adverbial phrase in the manner employed by our
colleagues. Poetic license, after all, knows few bounds. Rather,
we say merely that if a straightforward reading of the text
employing basic, conventional usages of grammar points directly at
a given interpretation, it should take some pretty heavy lifting
to reject that interpretation, much less to reject it as not even
within the zone of reasonableness.
Nor is grammar the only enemy of petitioners' preferred
reading of the text. Structure argues against petitioners as well.
After stating what the Attorney General must do to "any alien
who--," paragraph (1) sets down in four separately indented and
- 72 -
lettered subsections the four clauses that plainly describe an
alien, relegating the adverbial "when" phrase back to unlettered
and unindented text. We thus not only have four adjectival clauses
that obviously describe the noun "alien" and one adverbial phrase
that less readily does so, but we also have a format that literally
and visually sets the four descriptions apart from the adverbial
phrase. This structure directly reinforces the reading of the
"when" phrase as qualifying the verb "take" in the clause "[t]he
Attorney General shall take into custody" rather than as describing
"any alien[s]."
In so observing, we do not mean to overstate the case.
Our colleagues make a fair point that the statute might have been
more clear had paragraph (2) referred only to subparagraphs
(A)-(D). Of course, the fact that language might have been more
clear--as it always could be--does not mean that it is not clear
enough. See Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 132 S.
Ct. 1670, 1682 (2012) ("[T]he mere possibility of clearer phrasing
cannot defeat the most natural reading of a statute . . . ."); cf.
In re Fahey, 779 F.3d 1, 6 (1st Cir. 2015) (explaining that a
statute's meaning was clear even though the statutory language
could not "be read as entirely excluding the possibility" that a
competing--but ultimately unpersuasive--interpretation was
correct). Relatedly, we note that Congress has on occasion, within
the Immigration and Nationality Act ("INA"), referenced a general
- 73 -
subparagraph while clearly intending to refer only to the inset
subclauses within that subparagraph. See, e.g., 8 U.S.C.
§ 1153(b)(5)(B)(i) (referencing 8 U.S.C. § 1153(b)(5)(A) but
clearly intending to cross-reference only the inset clauses (i)-
(iii) within (A)).
We also find it significant that the language and
structure of section 1226(c) as a whole reveals that Congress
actually did specify which criminal aliens described in
paragraph (1) may be released notwithstanding those aliens' prior
commission of (A)-(D) crimes. It described those aliens in
paragraph (2). And that description (of persons connected to
government witnesses or investigations) plainly does not include
petitioners. Cf. TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001)
("Where Congress explicitly enumerates certain exceptions to a
general prohibition, additional exceptions are not to be implied,
in the absence of evidence of a contrary legislative intent."
(quoting Andrus v. Glover Constr. Co., 446 U.S. 608, 616–617
(1980))).
We have good company in concluding that it is reasonable
to read section 1226(c) in this manner. In describing the statute
in the first sentence of Demore, the Supreme Court stated that
section 1226(c) "provides that '[t]he Attorney General shall take
into custody any alien who' is removable from this country because
he has been convicted of one of a specified set of crimes." Demore,
- 74 -
538 U.S. at 513. As petitioners would have it, the Court should
have added "and has just been released" as part of its description
of the alien to whom the mandates were intended to apply. But it
did not, presumably because it was focused on its recognition that
Congress's goal was to end the practice of "releasing deportable
criminal aliens on bond" in order to avoid what Congress decided
was "an unacceptable rate of flight." Id. at 520. Of course, the
Court's description of the statute was not a holding. It certainly
shows, though, that a pretty good reader of statutes easily reads
the language as we do. Cf. S.D. Warren Co. v. Me. Bd. of Envtl.
Prot., 547 U.S. 370, 377 (2006) (looking to how the court
previously tended to use the term "discharge" in dicta under the
Clean Water Act).
In gauging the import of the foregoing textual analysis,
we must also express a reservation concerning our colleagues'
interpretative methodology. At several steps in their analysis,
they confront an interpretative guide that cuts against them (e.g.,
adverbs usually do not describe nouns, the layout of the
subheadings supports a grammatical reading, the Supreme Court's
short-hand summary of the statute is informative). In each case,
our colleagues correctly note that the guide is not always
dispositive. So far, so good. They then, however, proceed forward
as if the import of those guides carries no continuing weight in
the analysis and so does not undermine a conclusion that the
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statute is actually plainly to the contrary. We view that import,
instead, as an accumulating weight capable of being offset only by
evidence that speaks directly and unambiguously to the contrary.
Silence, assumptions, inferences, and ambitiously constructed
lines of reasoning that were likely never within the contemplation
of any drafter serve poorly as substitutes for such evidence. See
Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 698 (1st
Cir. 1994) ("[L]egislative history that is in itself inconclusive
will rarely, if ever, overcome the words of a statute.").
This is not to say that we end our own inquiry at this
point. To the contrary, we accept the notion that most statutes
must be read with a sense of what Congress was trying to do, and
that such a sense may be derived from knowledge gained outside the
four corners of the text, keeping in mind the weighty role that
the text must continue to play. We also agree with our
colleagues--and with the BIA--that the statutory language is not
so plain as to foreclose all extra-textual inquiry. So, for that
reason, and particularly because the actual language at issue
touches upon matters of both personal liberty and the control of
our nation's borders, we think it reasonable to look next at the
legislative history to determine whether one can say that the
straightforward, grammatically conventional reading of the statute
comports with a reasonable interpretation of what Congress was
trying to accomplish.
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B. Legislative History
Our review of the legislative history begins with the
most directly pertinent legislative history: the conference report
to the IIRIRA. Regarding section 1226(c) (i.e., section 236(c) of
the law), the report states in full:
New section 236(c) provides that the Attorney
General must detain an alien who is
inadmissible under section 212(a)(2) or
deportable under new section 237(a)(2). This
requirement does not apply to an alien
deportable under section 237(a)(2)(A)(i) on
the basis of an offense for which the alien
has not been sentenced to at least 1 year in
prison. This detention mandate applies
whenever such an alien is released from
imprisonment, regardless of the circumstances
of the release. This subsection also provides
that such an alien may be released from the
Attorney General's custody only if the
Attorney General decides in accordance with 18
U.S.C. 3521 that release is necessary to
provide protection to a witness, potential
witness, a person cooperating with an
investigation into major criminal activity, or
a family member or close associate of such a
witness or cooperator, and such release will
not pose a danger to the safety of other
persons or of property, and the alien is
likely to appear for any scheduled proceeding.
H.R. Rep. No. 104-828, 1996 WL 563320, at *210-11 (1996) (Conf.
Rep.).
It is beyond dispute that the phrase "such an alien" as
used in the third sentence of the conference report refers back to
the aliens who are described in the first two sentences, neither
of which contains (as either adjective or adverb) any requirement
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that the person be recently released. The third sentence simply
tells us when the new custody mandate applies to "such an alien."
It is also entirely fair to presume that the same phrase "such an
alien" means the same thing in the fourth sentence's description
of what the statute "also" provides for: the no-release mandate.
This is, of course, simply another way of saying that the alien
"described" in section 1226(c)(2)'s no-release mandate is an alien
described in 1226(c)(1)(A)-(D)--the same class of alien who is
subject to the custody mandate whenever released. And since
petitioners were admittedly subject to the custody mandate (i.e.,
each is "such an alien") they are therefore subject to what section
1226(c)(2) also provides for such an alien: the no-release mandate.
We recognize that our colleagues manage to read even
this directly authoritative legislative history as indicating that
Congress intended to leave the no-release mandate contingent on
how quickly the Attorney General complied with the detention
mandate. While we have much difficulty seeing this, we need only
for present purposes protest that such a reading is hardly
compelling. It is our colleagues, not us, who must claim a
monopoly on reasonableness.
We move next to the 1995 Senate Report that directly
sets forth the substance of congressional concerns resulting in
the enactment of the IIRIRA. S. Rep. No. 104-48 (1995). Treating
the report as if it were Oz's man behind the green curtain, our
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colleagues urge the reader to pay no attention to it. But the
Supreme Court itself in Demore directly turned to this report for
precisely the same purpose that guides us to look at the report:
understanding the aims of Congress in enacting section 1226(c).
See Demore, 538 U.S. at 518–21 & n.4. The Court--like us--has
read this legislative history as plainly evidencing "Congress'
concern that, even with individualized screening, releasing
deportable criminal aliens on bond would lead to an unacceptable
rate of flight." Id. at 520. For example, the Senate Report
emphasized that "[u]ndetained criminal aliens with deportation
orders often abscond upon receiving [a notice of removal]. . . .
(This notice is humorously referred [to] by some INS personnel as
the 72 hours 'run notice.')" S. Rep. No. 104-48, at 2-3; see
Demore, 538 U.S. at 518-19 & n.4, 521. The data before Congress
likewise supported its concern that immigration judges fared
poorly in trying to predict which aliens would take flight once
INS took steps to remove them. S. Rep. No. 104-48, at 2 ("Over 20
percent of nondetained criminal aliens fail to appear for
deportation proceedings."). And the Senate Report's
recommendation that "Congress should consider requiring that all
aggravated felons be detained pending deportation" due to "the
high rate of no-shows for those criminal aliens released on bond,"
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S. Rep. No. 104-48, at 32 (emphasis added), directly addressed--
and is certainly entirely consistent with--this concern.
Nor did Congress give any reason to think that this
concern disappeared merely because the criminal alien was not
detained for a period of time before deportation proceedings began.
To the contrary, the "deportable criminal aliens [who] failed to
appear for their removal hearings," Demore, 538 U.S. at 519, were
all those aliens who were not being held in INS custody. In this
respect, it is helpful to keep in mind the actual interpretation
of the statute that petitioners urge. They repeatedly argue that
Congress would not have been concerned about allowing immigration
judges to predict flight risk for criminal aliens who have "long
since returned to their communities." But their reading of the
statute would mean that all criminal aliens who avoid detention
"when . . . released" would be entitled to a shot at convincing an
immigration judge that the alien would voluntarily surrender if
removal is ordered. And this would be so whether the alien has
been free from prior criminal custody for a week or for five years,
and no matter what the alien has done post-release.
Of course, one could argue that the immigration judges
will not release obvious flight risks. But that is presumably
what immigration judges were trying to do before Congress concluded
that it had insufficient confidence in the immigration judges'
ability to make ad hoc predictions, and opted for the categorical
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treatment of four groups of aliens who are most likely to be
removed. To now say that the executive, merely by failing to
detain a criminal alien promptly, can revive the immigration
judges' ability to pick and choose who gets released on bail would
be a result directly at odds with what Congress plainly sought to
achieve. Cf. King v. Burwell, 135 S. Ct. 2480, 2496 (2015)
(rejecting an interpretation of the Affordable Care Act that would
lead to the "result that Congress plainly meant to avoid").
Nor does it help petitioners to argue that Congress's
concern about recidivism is somehow inapplicable categorically for
those criminal aliens who have "lived in the community" for some
undefined period of time post-release. In the first place, there
is no compelling evidence in the record that Congress meant
section 1226(c) to apply only when both reasons for its enactment
--avoiding flight and re-offense--would be served. Second, just
as Congress found unacceptable the mere possibility of recidivism
among this category of criminal aliens during the period between
release from criminal custody and removal adjudication, there is
no basis in the record for presuming that Congress felt that
immigration judges would be in a position to discount that
possibility merely by noting that the criminal alien had been
released some time ago. The immigration judges will both lack
much knowledge about what the criminal alien has been doing since
release and have no ability to predict future behavior that is
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materially greater than the ability found by Congress to be
insufficient.
The legislative record, like Conan Doyle's dog that did
not bark, also conveys much by what it does not say. See Chisom
v. Roemer, 501 U.S. 380, 396 & n.23 (1991). Imagine, for example,
that petitioners were correct: if a criminal alien were not
detained immediately upon release from prison, that alien would
have a right to convince an immigration judge that the alien is
not a flight risk. And, as our colleagues read the statute, this
right would belong to every alien not detained upon release,
whether or not the alien settled in any community, or took efforts
to hide, or even went on a crime spree. If that had been Congress's
aim, it is unlikely that there would be no acknowledgement of such
a loophole, nor any language in the statute defining and limiting
the loophole.
Similarly, if the entire mandatory detention regime
hinged on whether the criminal alien was detained "when . . .
released," one would have expected Congress to pay some attention
to defining that term. How much time is too much? What if the
alien hides? What if the alien commits a new crime? What if the
state prison does not cooperate, making it impossible for federal
agents to know when the alien will leave state custody? There is
no evidence that Congress viewed its legislation as raising such
questions, all of which would have been nose-on-the-face obvious
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had Congress intended the statute to be read as petitioners would
have us read it. Precisely to the contrary, the entire focus was
broadly and categorically on "[u]ndetained criminal aliens." See
S. Rep. No. 104-48, at 2.
Particularly noteworthy in this regard is the fact that
the drafters were well aware of--and concerned about--the fact
that criminal aliens were avoiding detention because some state
and local authorities refused to let INS know when criminal aliens
were being released. See S. Rep. No. 104-48, at 16-17, 22. Yet,
if petitioners are correct, Congress gave the state and local
authorities hostile to Congress's aim complete ability to
frustrate pursuit of that aim.
Our knowledge of how Congress chooses to affect the
removal process of criminal aliens in other provisions of the U.S.
Code dovetails with our understanding of Congress's purpose in
enacting section 1226(c). For example, Congress, in the IIRIRA,
barred from eligibility for cancellation of removal any permanent
resident alien convicted of an aggravated felony.42 See Pub. L.
No. 104-208, 110 Stat. 3009-594 (creating 8 U.S.C. § 1229b(a)(3));
Rojas, 23 I. & N. Dec. at 121-22. Congress also stripped courts
of jurisdiction "to review any final order of removal against an
42An alien who is "deportable by reason of having committed"
an aggravated felony falls under section 1226(c)(1)(B). Compare
8 U.S.C. § 1226(c)(1)(B), with id. § 1227(a)(2)(A)(iii).
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alien who is removable by reason of having committed" certain
criminal offenses that are also listed as predicate offenses under
section 1226(c)(1)(A)-(C). See 8 U.S.C. § 1252(a)(2)(C); Rojas,
23 I & N Dec. at 122.43 The aliens described in (A)-(D) are
therefore more likely to lose--and more likely to expect to lose
--in a removal proceeding, thus increasing the incentive to flee
once they are on Immigration and Customs Enforcement's ("ICE")
radar. It therefore seems natural to conclude that Congress wanted
these aliens to be in custody when the removal proceeding
concluded, whether or not they were taken into custody right when
previously released.
Congress's focus in related legislation on making it
more difficult for criminal aliens to successfully contest a
removal order also reinforces the view that Congress aimed to deal
with such aliens categorically. In saddling criminal aliens with
many burdens not imposed on aliens who reside in the United States
43
The INA contains numerous other examples of ways in which
Congress has made it more difficult for criminal aliens to avoid
removal. For instance, in removal proceedings, lawful permanent
residents convicted of crimes involving moral turpitude may not
qualify for a discretionary waiver of removability, because
commission of a crime of moral turpitude tolls the accrual of the
seven years of residence required for cancellation of removal.
See 8 U.S.C. § 1229b(d)(1). Other aliens convicted of a crime
involving moral turpitude may not qualify for cancellation and
adjustment to lawful permanent resident status. See id.
§ 1229b(b)(1)(C). Additionally, aggravated felons may not seek
asylum, see id. § 1158(b)(2)(A)(ii), (b)(2)(B)(i), nor may they
seek persecution-based withholding of removal if they have been
sentenced to five years or more in prison, see id. § 1231(b)(3)(B).
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without committing crimes viewed by Congress as especially
relevant to immigration status, see supra note 43, Congress has
drawn no distinction based on when the alien is detained.
Evidence of living in the community for years post-release does
not eliminate the legal disabilities in removal proceedings
imposed by the prior commission of certain criminal acts. On the
contrary, during the years preceding the IIRIRA and within the
IIRIRA itself, Congress actively sought to narrow the group of
criminal aliens eligible for relief based on duration of residency.
For example, prior to the IIRIRA, many aliens with "a lawful
unrelinquished domicile of seven consecutive years" could seek
relief from removal despite their prior criminal activity. See
INS v. St. Cyr, 533 U.S. 289, 295 (2001) (quoting section 212(c)
of the INA, formerly codified as 8 U.S.C. § 1182(c)). This sort
of relief had "great practical importance," id., and "the class of
aliens whose continued residence in this country . . . depended on
their eligibility for § 212(c) relief [was] extremely large, and
not surprisingly, a substantial percentage of their applications"
were granted, id. at 295-96. After amendments to the INA in 1990
and 1996 narrowed the availability of section 212(c) relief, the
IIRIRA eliminated it and replaced it with an even narrower class
of lawfully admitted permanent resident aliens who had been
lawfully present for at least five years and had not been convicted
of an aggravated felony. See id. at 297; 8 U.S.C. § 1229b(a).
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We have also considered the language governing
section 1226(c)'s effective date, IIRIRA, § 303(b)(2), 110 Stat.
3009, 3009-586, and the IIRIRA's Transition Period Custody Rules
("TPCR"), IIRIRA, § 303(b)(3), 110 Stat. at 3009-586 to -587.44 We
agree with our colleagues that such language, as part of the very
statute at issue, provides a source of potential insight into the
meaning of its companion terms. See Gutierrez v. Ada, 528 U.S.
250, 255 (2000). That insight runs in favor of the interpretation
we adopt.
Most notably, the effective date provision states that
section 1226(c) "shall apply to individuals released after" the
expiration of the TPCR. IIRIRA, § 303(b)(2), 110 Stat. at 3009-
586. That clause would be superfluous if petitioners were correct
that the detention-without-release mandate applies only to aliens
who are picked up right away, because immediate detention would be
impossible for aliens who had already been released prior to the
TPCR's expiration date. See Nat'l Ass'n of Home Builders v. Defs.
of Wildlife, 551 U.S. 644, 669 (2007) ("[W]e have cautioned against
reading a text in a way that makes part of it redundant."). While
we acknowledge the Supreme Court's recent reiteration that its
44
The TPCR imposed a more permissive regime that, due to
Congress's concerns about bed space shortages, governed bond
determinations for two years after the IIRIRA's effective date and
prior to section 1226(c)'s full implementation. See IIRIRA,
§ 303(b)(3), 110 Stat. at 3009-586 to -587.
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"preference for avoiding surplusage constructions is not
absolute," King, 135 S. Ct. at 2492 (internal quotation mark
omitted), the canon provides at the very least yet another thumb
to be added to grammar, structure, and legislative purpose on the
scale in favor of our interpretation.45
That thumb is particularly large in this case, where
(unlike in King), Chevron applies. See King, 135 S. Ct. at 2488–
89 (declining to apply the Chevron two-step framework because if
"Congress wished to assign [interpretation] to an agency, it surely
would have done so expressly"). Here, we are first asked whether
Congress has spoken clearly and directly to the question at issue,
and second whether the BIA's interpretation is a reasonable one.
The surplusage caused by petitioners' interpretation at once makes
the interpretative path they walk less direct and the BIA's reading
in Rojas more reasonable. Cf. Nat'l Credit Union Admin. v. First
Nat'l Bank & Tr. Co., 522 U.S. 479, 501 (1998) (rejecting, under
Chevron step one, agency's interpretation in part because it made
"the phrase 'common bond' surplusage").
45We agree with the actual holding in Saysana v. Gillen, 590
F.3d 7, 18 (1st Cir. 2009), that section 1226(c) does not apply to
aliens released from custody for their (A) through (D) offenses
prior to the IIRIRA's effective date. To the extent that one might
glean from Saysana any inferences concerning the issue presented
here for the first time, such inferences would not be binding on
our en banc court. See United States v. Gonzalez-Arimont, 268
F.3d 8, 13 (1st Cir. 2001).
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Even putting to one side the surplusage ramification,
the TPCR provides no support for petitioners' position because it
simply raises the same interpretative question that section
1226(c) poses: do the custody and no-release mandates during the
transition period apply if there is a delay in detaining the alien?
Our colleagues nevertheless attempt to glean from the TPCR two
points of support that warrant our consideration.
First, they point out that the transition rules set forth
in the TPCR contain language stating that, should the Attorney
General as anticipated invoke the transition rules, § 1226(c) will
apply only to persons released after expiration of the transition
period. The rules contain no similar provision stating that the
mandates in the transition rules themselves apply only to aliens
released after the transition rules become effective. This means,
our colleagues reason, that under our interpretation the breadth
of the mandate's duty imposed on the Attorney General under the
permanent rules of section 1226(c) would be "less sweeping than
the supposedly more flexible TPCR mandate's bar had been" even
though the TPCR was intended to accommodate the Attorney General's
need to ramp up resources. The way to fix this "anomalous" result,
our colleagues argue, is to read the TPCR's bar on releasing aliens
to apply only to those taken into custody "when . . . released."
And if one reads the TPCR that way, by analogy one should read
section 1226(c) that way. Anomaly cured.
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In this manner, our colleagues imagine a problem that
does not exist in order to advocate a solution that is not
required. There is no need to interpret the TPCR in this manner
to make its duties "less sweeping" than those imposed by section
1226(c). The TPCR, unlike section 1226(c), expressly allows the
Attorney General to release any detained aliens who fall into two
of the four groups of aliens described in both the TPCR and section
1226(c). Our colleagues offer no evidence at all establishing
that the effect of this categorical exclusion does not swamp
whatever burden might arise as a result of the theoretical
possibility that the Attorney General within the brief two-year
transition period might pick up criminal aliens who had not been
released from criminal custody during that period.
More fundamentally, our colleagues' premise that
language in the TPCR need be rendered superfluous in order to cure
a perceived "anomaly" between the TPCR and section 1226(c)
incorrectly presumes that it was possible to start up a new regime,
with differing transition rules, and not have some "anomalies."
For example, what was to be done with an alien who was released
from prison during the transition period, and who then moved for
bail after the expiration of the transition period? Under the
language of the transition rules--and under either interpretation
of section 1226(c) proffered in this case--such a person would
suddenly have a shot at bonded release that he might not have had
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if he had moved for bail before the transition period had expired
(i.e., the section 1226(c) detention mandates would be "less
sweeping"). See In re Adeniji, 22 I. & N. Dec. 1102, 1110-11 (BIA
1999). Certainly such an anomaly provides no license to re-write
section 1226(c). It does, however, make clear that some such
anomalies arise inevitably from the need to have some arbitrary
cut-offs for implementing new programs.
Second, our colleagues complain that, in some instances,
the BIA's reading of section 1226(c) would have "de-linked" or
"misaligned" the custody and no-release aspects of section 1226 if
the TPCR transition rules had not been invoked because the clause
in the TPCR limiting section 1226(c) as a whole to persons released
after the TPCR became effective would not have been triggered. As
an example, our colleagues point to a suspected terrorist described
in subsection 1226(c)(1)(D) who has never been imprisoned and who
is roaming the streets. Under the BIA's interpretation, the
Attorney General would reserve the ability to decide whether to
arrest such a person because the custody mandate would not have
been triggered by a prior release. Once the Attorney General
decided the suspected terrorist should be detained, under the BIA's
reading of section 1226(c)(2), as it would apply had the transition
period not been implemented, no immigration judge would have the
discretion to release the alien unless the alien prevailed in the
removal proceeding. Our colleagues apparently think this is an
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obviously unsound result, and that Congress must have intended
that immigration judges could second guess the Attorney General
and order such an alien released. How one reads Congress's
manifest unhappiness with the predictive failure of immigration
judges as supporting such a conclusion puzzles us.46
Our colleagues also lean hard on the meaning they derive
from section 1226(c)'s predecessors. We agree with the BIA's
position in Rojas that, while none of the other predecessor
provisions shed helpful light on the issue to be decided in this
case, the post-1991, pre-AEDPA version of the custody and no-
release mandates is instructive. Rojas, 23 I & N. Dec. at 123-
24. That version, embodied in section 242(a)(2) of the INA
following the 1990 and 1991 amendments,47 provided that:
46 Our colleagues point out that there is no legislative
history suggesting that Congress was more hostile to the discretion
of immigration judges in determining whether to grant bonded
release to a criminal alien than to the discretion of immigration
enforcement in determining whether to bring a criminal alien into
immigration custody in the first place. But this is immaterial.
Given that we apply Chevron deference, it is incumbent on our
colleagues to demonstrate that it clearly lay outside of Congress's
intent to adopt a statutory scheme that would not require
immigration enforcement to track down and detain each and every
criminal alien, including the low-level narcotics offender, but
that would allow immigration enforcement to rest assured that
efforts to detain those criminal aliens who do represent
enforcement priorities would not go for naught due to the
miscalculation of an immigration judge at the alien's bond hearing.
47 Immigration Act of 1990, § 504, Pub. L. No. 101-649, 104
Stat. 4978, 5049; Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991, § 306(a)(4), Pub. L. No. 102-
232, 105 Stat. 1733, 1751 (effective as if included in the 1990
Act).
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(A) The Attorney General shall take into
custody any alien convicted of an aggravated
felony upon release of the alien (regardless
of whether or not such release is on parole,
supervised release, or probation, and
regardless of the possibility of rearrest or
further confinement in respect of the same
offense). Notwithstanding [the equivalent of
section 1226(a)] . . . but subject to
subparagraph (B), the Attorney General shall
not release such felon from custody.
(B) The Attorney General may not release from
custody any lawfully admitted alien who has
been convicted of an aggravated felony, either
before or after a determination of
deportability, unless the alien demonstrates
to the satisfaction of the Attorney General
that such alien is not a threat to the
community and that the alien is likely to
appear before any scheduled hearings.
INA § 242(a)(2) (1991) (emphasis added).
Under subparagraph (B) (the equivalent of
section 1226(c)(2)), whether the alien is subject to that statute's
mandate limiting release prior to his hearing turns entirely on
whether the alien was convicted of an aggravated felony, "unless"
the alien is able to demonstrate that he is not a bond risk. There
is nothing in that version of the statute that even remotely
suggests that a lapse in establishing custody removes an alien
from the scope of subparagraph (B)'s coverage. And notably absent
from subparagraph (B) is any mention of subparagraph (A) or its
"upon release" language (i.e., the "when . . . released" clause's
equivalent). This is a problem for our colleagues and petitioners
because, once again, that textual reference point is the only hook
- 92 -
they latch on to in concluding that the description of aliens
subject to the no-release mandate includes a timing element.
Simply put, the language of the most long-standing version of the
no-release mandate prior to the IIRIRA does not appear to contain
any of the ambiguity that section 1226(c) arguably possesses with
respect to the relevance of the timing of release. None of the
language in the predecessor provisions to which our colleagues
point contains this level of clarity on this key point. And if
our colleagues' position that Congress has never sought to alter
the relationship between the custody and no-release mandates is
correct, this would seem to doom their argument.
Our colleagues point, instead, only to an off-point BIA
opinion, Matter of Eden, 20 I. & N. Dec. 209 (BIA 1990), as
reflecting the pre-IIRIRA law that Congress sought to preserve.
But the question of whether a delay in detaining a criminal alien
eliminated the Attorney General's obligation to deny bond once the
alien was detained was not even raised as an issue in Eden. Rather,
the case involved an alien who had been taken into immigration
custody while on "special parole" as part of his criminal sentence.
The question posed was whether subjecting such a person to
mandatory immigration custody without bond was inconsistent with
"Congress' decision to allow [an] alien serving time in [a] state
or local facility to finish out that time before the Service
assumes responsibility for his incarceration." Id. at 214.
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It is true that, under Rojas's reasoning, the BIA perhaps
could have reached the same result in Eden merely by saying that
once a criminal alien was detained, he could not be granted bond
regardless of whether he had yet been released from prior custody.
Even under that approach, though, the BIA would have had an
interest in clarifying the scope of the Attorney General's
statutorily mandated duty to detain a criminal alien--and, namely,
in clarifying whether conceiving of a duty on the Attorney General
to detain a person too soon (i.e., during the course of a prior
sentence) ran up against the congressional intent expressed
through the 1988 legislation's "upon release" provision. In any
event, the simpler point is that there is no holding in Eden,
either express or implied, that addresses the issue posed here.48
Compounding their attempt to glean a holding--much less
settled law--from Eden, our colleagues then simply misread the
House report to the 1990 legislation that revised the clause "upon
completion of the alien's criminal sentence" to read "upon release
of the alien (regardless of whether or not release is on parole,
supervised release, or probation . . . .)." Rightly or wrongly,
the report plainly states that Congress was concerned that "[a]t
least one immigration judge has ruled that an aggravated felon who
has been paroled by the sentencing court continues to serve his
48 Not even the dissent in Rojas cites Matter of Eden.
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'sentence' [and therefore] INS has no authority to incarcerate
this alien until his period of parole has ended." H.R. Rep. No.
101-681, pt. 1, at 148 (1990), as reprinted in 1990 U.S.C.C.A.N.
6472, 6554 (emphasis added). In short, Congress was fearful that
its mandate to take criminal aliens into custody without bond upon
completion of the sentence was being construed as divesting INS of
any authority to detain an alien while the alien was on parole.
Restoring that authority implied a "link" to the no-release mandate
only in the obvious sense that any elimination of INS's authority
even to take a person into custody obviously frustrates any mandate
that the person be kept in custody. Nothing in this sort of
logical link in any way implies (much less compels) a conclusion
that the custody and the no-release mandates are "linked" in the
sense that our colleagues' analysis requires. To the contrary,
the fact that Congress wanted even those criminal aliens who would
otherwise be subject to parole reporting and supervision to be
detained during their removal proceedings would seem to cut against
our colleagues' assumption that a brief period of unsupervised
living in the community eliminated the need for detention.
This type of error (presuming that any reference to
"immediate" detention without bond implies that a delay in
detention makes a bond possible) pervades our colleagues' entire
discussion of the legislative record. When we see Congress
repeatedly emphasizing that the government must take criminal
- 95 -
aliens into custody "when," "upon," or "immediately upon" their
release, and then not release them, we see no implied loophole.
Rather, we see an increasingly urgent expectation that criminal
aliens should be found in custody when the removal decision issues.
We stress, too, that even if one were to ignore these
defects in our colleagues' survey of the legislative history, the
most one ends up with are efforts to infer an answer to the question
at hand from statements made in addressing other issues where the
resolution of those other issues did not require or even call upon
a degree of precision that would be necessary to confirm the force
of the inference. And in each instance, the actual resolution of
the issue at hand is completely compatible with the BIA's
conclusion in Rojas. Inferences of this type, whether reasonable
or not, seem to us to fall far short of the "clear" legislative
record one should require to end the inquiry at Chevron step one.
Turning their focus from the 1991 amendment and its
predecessors, our colleagues repeat their error in claiming that
we should presume that, in enacting the IIRIRA, Congress was aware
of the fact that "district courts . . . treated the retained 'upon
release' clause [of AEDPA] as if it conditioned the retained 'such
felon clause.'" Supra at 38-39. Our colleagues cite five district
court cases as constituting this "existing law" of which Congress
was supposedly aware. Three are actually holdings that address
retroactivity under AEDPA. Montero v. Cobb, 937 F. Supp. 88 (D.
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Mass. 1996); Villagomez v. Smith, No. C96-1141C, 1996 WL 622451
(W.D. Wa. July 31, 1996) (unpublished); DeMelo v. Cobb, 936 F.
Supp. 30 (D. Mass. 1996), vacated, 108 F.3d 328 (1st Cir. 1997)
(per curiam). As for the fourth, we sincerely doubt that Congress
managed to dredge up an obscure unpublished opinion from the
Southern District of Texas, which to this day remains difficult to
locate. See In re Reyes, Case No. B-94-80 (S.D. Tex. May 31,
1996). The fifth, Grodzki v. Reno, 950 F. Supp. 339 (N.D. Ga.
1996), is arguably on point, but was not issued until September 20,
1996, just ten days before the already drafted IIRIRA was passed
into law. See Pub. L. No. 104-208, 110 Stat. 3009. In any event,
even were all five cases squarely apposite, five district court
opinions could not establish the type of "settled judicial
construction" as to which we presume congressional awareness. See
United States v. Powell, 379 U.S. 48, 55 n.13 (1964) (four lower
court opinions, including two by circuit courts, insufficient).
In sum, against a legislative backdrop thick with
indications that Congress aimed to ensure that criminal aliens not
go free prior to the conclusion of their removal proceedings, our
colleagues stake their reading of the statute on one off-point BIA
ruling, one district court decision issued ten days prior to the
IIRIRA's enactment, and the supposedly anomalous results derived
from reading section 1226(c) in conjunction with what our
colleagues themselves describe as "an ancillary and potentially
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never operative clause in the TPCR," supra at 30-31 n.23. In view
of the foregoing, one might argue that section 1226(c)'s
legislative history actually compels a finding that the
straightforward, grammatically conventional reading of the statute
must be correct. Instead, tempering our confidence in our own
interpretative analysis, we need opine at this point only that the
legislative history is not so clearly to the contrary as to compel
a finding that "Congress has directly spoken to the precise
question at issue" (much less that it spoke with the intent our
colleagues claim is clearly apparent). Chevron, 467 U.S. at 842.
C. Our Colleagues' Conclusion Falls Short of the Mark
We have explained our disagreement with our colleagues'
argument that no reasonable jurist can read the phrase "as
described in paragraph 1" as not incorporating into paragraph 2
the phrase "when released . . . ." Even if we are wrong, though,
we agree with the Second, Third, Fourth, and Tenth Circuits that
the Attorney General's delay in detaining petitioners does not
render the no-release mandate inapplicable. Our sister circuits
have explained why this is so under the loss-of-authority rubric.
See Lora, 2015 WL 6499951, at *8; Olmos, 780 F.3d at 1324–26;
Sylvain, 714 F.3d at 157–61; Hosh, 680 F.3d at 381–83. We prefer
to reframe the point as a matter of interpreting the text
consistently with the purpose manifest in the text. The key point
here is that even if the no-release mandate of paragraph (c)(2)
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applied by its terms only to persons who have been released from
criminal custody, there is no good reason to say also that it
applies only when the Attorney General complies with the custody
mandate by detaining the criminal aliens right when they are
released.
Consider the following example that we have crafted so
that its substance and evident purpose invite the type of reading
that our colleagues insist is applicable to section 1226(c).
(1) Please give an especially thorough watering to any
plant that is:
(A) a sunflower, or
(B) a hibiscus
when it is planted for the garden show.
(2) Do not let a plant described in paragraph (1) go
any day without water unless you are certain that
it is dead.
Under the scenario posed by this example, we would agree
that it is reasonable to read the reference to plants "described
in paragraph (1)" as indicating not all sunflower or hibiscus
plants, but rather as indicating sunflower or hibiscus plants that
are newly planted for the garden show. This is because our
knowledge that certain new plantings need prompt and regular
watering gives us a clue for resolving any ambiguity created by
the structure and awkward syntax of the mandates.
Nevertheless, even in this example designed to welcome
the type of reading that our colleagues give to section 1226(c),
it simply does not follow that the mandate of section (2) is also
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contingent upon prompt compliance with the mandate of section (1).
No reasonable person would let the plants in question continue to
go without water merely because impediment or neglect unduly
postponed the first watering.
Of course, this conclusion, too, follows in great part
from an assumption that the principal purpose of the mandates is
to keep the new plants alive. In the case of section 1226(c), an
analogous (and actual) purpose is manifest in the legislative
history discussed in this opinion and in Demore. In repeatedly
and even more broadly expressing dissatisfaction with criminal
aliens not being in custody when removal is ordered, Congress did
not order the Attorney General to detain such aliens only if she
chose to do so right away. Rather, we read section 1226(c) as
ordering the Attorney General to detain such persons, and to do it
right away. The question whether the Attorney General complied
with that mandate right away--like the question whether the plants
were watered promptly when planted--is simply an exogenous and
independent fact that is not part of the description of those to
whom either mandate applies.49
49 Our colleagues suggest that our distinction between
exogenous and endogenous characteristics cuts too fine. We will
simplify. Section 1226(c)(1), under any reading, both creates a
duty and describes a group of people as to whom that duty must be
carried out. We see how section 1226(c)(2)'s reference to a person
"described in" section 1226(c)(1) could reasonably be understood
to refer to a member of the delineated group as to whom the duty
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D. The Constitutional Avoidance Canon
Since our colleagues rest their decision on Chevron's
first step, they do not reach the constitutional avoidance argument
principally relied upon by petitioners and by the panel opinion we
vacated prior to hearing this appeal en banc. See Warger v.
Shauers, 135 S. Ct. 521, 529 (2014) (constitutional avoidance canon
"has no application in the absence of . . . ambiguity" (omission
in original) (internal quotation marks omitted)); Olmos, 780 F.3d
at 1321 (citing Warger in declining to consider the canon for
purposes of Chevron step one). Because we disagree with our
colleagues' conclusion that no reasonable person can read the
statute other than as they read it, we explain why the
constitutional avoidance canon, even if it may be appropriately
applied at Chevron step two,50 does not remove the BIA's decision
exists. But we simply fail to see how a reasonable reader
construes the cross-reference as referring to a member of the
delineated group as to whom the duty was in fact immediately
executed. Section 1226(c)(1), which creates a forward-facing
duty, is of course powerless to "describe" the class of people as
to whom that duty will in fact be carried out.
50 An en banc panel of the Ninth Circuit determined that the
constitutional avoidance canon "plays no role in the second Chevron
inquiry." Morales-Izquierdo v. Gonzales, 486 F.3d 484, 493 (9th
Cir. 2007) (en banc). The Tenth Circuit in Olmos cited that
opinion approvingly, Olmos, 780 F.3d at 1323 & n.2, but also
appeared to reject the merits of petitioner's constitutional
avoidance argument in its step two analysis, id. at 1324. As the
D.C. Circuit has noted (in a case also cited in Olmos), the Supreme
Court has at least once indicated that the "canon of constitutional
avoidance trumps Chevron deference." Nat'l Mining Ass'n v.
Kempthorne, 512 F.3d 702, 711 (D.C. Cir. 2008) (citing Edward J.
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in Rojas from the range of permissible interpretations requiring
deference.51
Petitioners' basic claim in favor of applying the canon
is that a statutory command to detain aliens such as petitioners
who had peacefully resided in the community for years after their
release from criminal custody would raise serious constitutional
due process concerns. In accepting this claim, the panel opinion
relied on what seems to us to be a doubly flawed reading of Justice
Kennedy's concurring opinion in Demore.
First, the panel viewed Justice Kennedy's concurrence as
limiting the Demore majority's rationale for upholding section
1226(c). See Castañeda, 769 F.3d at 39 & n.4. The panel appeared
to be (erroneously) applying the Supreme Court's Marks principle,
which instructs that "[w]hen a fragmented Court decides a case and
no single rationale explaining the result enjoys the assent of
five Justices, the holding of the Court may be viewed as that
position taken by those Members who concurred in the judgments on
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council,
485 U.S. 568, 575 (1988)). Since we see no basis for the canon's
application regardless, we decline to take any position on the
canon's precise relevance to the Chevron analysis.
51 The Third and Fourth Circuits did not address the
constitutional avoidance argument that petitioners press here.
See Sylvain, 714 F.3d 150; Hosh, 680 F.3d 375. The Second and
Tenth Circuits rejected it, see Lora, 2015 WL 6499951, at *9 n.20;
Olmos, 780 F.3d at 1322–24, but the Tenth Circuit noted in a
footnote that "[c]onstitutional considerations could become
greater when the gap in custody is considerably longer than six
days." Olmos, 780 F.3d at 1324 n.5.
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the narrowest grounds." Marks v. United States, 430 U.S. 188, 193
(1977) (internal quotation marks omitted). But Justice Kennedy's
concurrence in Demore explicitly stated that he joined the
majority's "careful opinion . . . in full," Demore, 538 U.S. at
533 (Kennedy, J., concurring), so nothing therein limits the
majority's rationale for upholding section 1226(c).
Nor does Justice Kennedy's concurrence provide
persuasive authority in favor of petitioners' due process
argument. That concurrence expressed no reservation at all,
constitutional or otherwise, about the amount of time that passed
between the moment an alien became released and the moment of the
alien's detention. Rather, Justice Kennedy wrote separately to
address a concern (which we share) about the amount of time an
alien spends in immigration detention while he waits for his
removal proceeding. See id. at 532 ("[S]ince the Due Process
Clause prohibits arbitrary deprivations of liberty, a lawful
permanent resident alien such as respondent could be entitled to
an individualized determination as to his risk of flight and
dangerousness if the continued detention became unreasonable or
unjustified." (emphasis added)). The concurrence's three
citations to Zadvydas v. Davis, 533 U.S. 678 (2001), a case dealing
the constitutional limits upon the duration of post-removal-period
detention (and the only court case cited by the concurrence),
support that limited reading.
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To be sure, the Demore majority addressed only the
general application of section 1226(c) to an alien who had
committed an (A)-(D) offense, without considering the precise
constitutional consideration--the length of time an alien managed
to avoid detention post-release--that petitioners now claim
requires a resolution in their favor.52 But for the following
reasons, we view this as a distinction without a difference with
respect to whether the delay in commencing detention experienced
by petitioners raises constitutional concerns.
Petitioners' argument rests on the premise that, once a
law-breaking alien has been out of custody for several years, one
can no longer regard him as presenting a sufficiently heightened
risk of danger or flight, even once the alien finds out ICE now
wants to deport him on grounds that will be hard to successfully
contest. Neither petitioners nor the vacated panel opinion cite
any controlling authority for this proposition, and we have great
difficulty accepting this view of flight risk as a matter of common
sense. See Olmos, 780 F.3d at 1323 ("[W]e do not abandon Chevron
deference at the mere mention of a possible constitutional
problem." (alteration in original) (quoting Kempthorne, 512 F.3d
at 711)). It seems to us that Congress could have--and did--
52Perhaps since he was detained the day after his release,
Kim v. Ziglar, 276 F.3d 523, 526 (9th Cir. 2002), the petitioner
in Demore made no argument about the timing of his release.
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reasonably regard this group of aliens as categorically posing a
flight risk because their commission of the designated crimes makes
it highly likely that they will be deported if ICE comes knocking.
Hence, there is little to lose by trying to hide, especially once
a removal order issues. See S. Rep. No. 104-48, at 2-3
("Undetained criminal aliens with deportation orders often abscond
upon receiving a final notification [of removal]. . . . Too often,
as one frustrated INS official told the Subcommittee staff, only
the stupid and honest get deported."). The incentive to flee peaks
once the criminal alien knows that ICE has decided to come after
him. And while the incentive may be depressed while ICE ignores
the alien, once ICE manifests an intention to proceed forthwith,
the incentive to flee before the deportation proceeding ends would
seem to be unrelated to any delay in making that manifestation.53
The view of petitioners and of the vacated panel opinion
on this point is effectively that, if there is an individual fact
showing a person poses a lesser risk of flight or danger (e.g.,
has been living in a community for years), then that person is
53
Imagine Aliens A and B in a detention center, each having
committed the same section 1226(c) offense, and each similar in
all ways, except ICE detained Alien A one day after release from
state custody, and Alien B four years after release. Now imagine
that each was suddenly released pending completion of his removal
hearing. We can see no reason why we can say that, as a matter of
constitutional law, Congress could not have reasonably viewed A
and B as posing similar flight risks during the period between
release and removal hearing.
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constitutionally entitled to a bail hearing. See Castañeda, 769
F.3d at 47-48 ("Mandatory detention of individuals such as the
petitioners appears arbitrary on its face."). This view
fundamentally pushes back on Congress's ability (affirmed in
Demore) to say categorically that criminal aliens should not have
the ability to flee while awaiting the reasonably prompt conclusion
of their deportation hearings.54 We would therefore reject it.
We note, finally, that petitioners have raised no
argument based on the duration of their detention, nor have they
produced evidence that the BIA's interpretation of section 1226(c)
will subject them to systemic delays or otherwise prolong the
length of their detention prior to a hearing. Cf. Demore, 538
U.S. at 532 (Kennedy, J., concurring). As of the time that the
Supreme Court last considered the statute, "in 85% of the cases in
which aliens [were] detained pursuant to § 1226(c), removal
proceedings [were] completed in an average time of 47 days and a
median of 30 days." Demore, 538 U.S. at 529. To the extent that
the Attorney General would attempt to use section 1226(c) to detain
54
Many statutes and cases in the criminal sentencing area
give equal weight to prior criminal convictions irrespective of
whether the individual was recently released from custody. A
person qualifies, for example, for mandatory life imprisonment as
a "violent felon" whether his predicate convictions occurred last
year or six years ago. See 18 U.S.C. § 3559(c)(1). Accordingly,
we cannot say that Congress could not regard the danger risk as
materially reduced merely because the alien has spent some time
out of custody.
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persons for materially more extended durations, see Lora, 2015 WL
6499951, at *12, we offer in this opinion no blessing of such
detentions. Rather, we opine only that the constitutional
arguments raised by petitioners here do not make impermissible the
BIA's interpretation of section 1226(c), either facially or as
applied to petitioners.
II. Conclusion
For the foregoing reasons, we would hold that
petitioners have the characteristics of "an alien described in"
section 1226(c)(1), and that the Attorney General is correct in
concluding that she therefore lacks the discretion to grant them
a bond hearing.55
55Petitioners do not argue that they qualify for the witness
protection exception in section 1226(c)(2).
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