Castaneda v. Souza , 769 F.3d 32 ( 2014 )

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., United States Attorney General; JOHN
SANDWEG, Acting Director; SEAN GALLAGHER, Acting Field Office
Director; CHRISTOPHER J. DONELAN; MICHAEL G. BELOTTI, 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
Torruella, Dyk,* and Thompson,
Circuit Judges.
Elianis N. Pérez, Senior Litigation Counsel, United States
Department of Justice, Civil Division, Office of Immigration
Litigation, with whom Sarah B. Fabian, Trial Attorney, District
Court Section, Stuart F. Delery, Assistant Attorney General, Civil
Division, Colin A. Kisor, Director, Office of Immigration
Litigation, and Elizabeth J. Stevens, Assistant Director, were on
brief, for respondents-appellants Steve Souza, Eric H. Holder, Jr.,
John Sandweg, Sean Gallagher, Christopher J. Donelan, Michael G.
Bellotti, Steven W. Tompkins, Thomas M. Hodgson, Joseph D.
McDonald, Jr., and Jeh C. Johnson.
Gregory Romanovsky, with whom Livia Lungulescu and Romanovsky
Law Offices were on brief, for appellee Castañeda.
Matthew R. Segal, with whom Adriana Lafaille, American Civil
Liberties Union of Massachusetts, Judy Rabinovitz, Eunice Lee,
Michael Tan, ACLU Foundation Immigrants’ Rights Project, Elizabeth
Badger, and Lutheran Social Services were on brief, for appellee
Gordon.
Alina Das, Sean McMahon, Legal Intern, Etan Newman, Legal
Intern, and Washington Square Legal Services, Inc., Immigrant
Rights Clinic, on brief for Detention Watch Network, Families for
Freedom, Greater Boston Legal Services, Harvard Immigration and
Refugee Clinical Program, Immigrant Defense Project, Immigrant
Rights Clinic, Maine People’s Alliance, National Immigrant Justice
*
Of the Federal Circuit, sitting by designation.
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Center, Political Asylum/Immigration Representation (PAIR) Project,
University of Maine School of Law Immigrant and Refugee Rights
Clinic, as amici curiae in support of petitioners-appellees
Castañeda & Gordon.
Prasant D. Desai and Iandoli & Desai, P.C., on brief for
American Civil Liberties Union Foundation, American Civil Liberties
Union Foundation of Massachusetts, American Immigration Lawyers
Association, and the National Immigration Project of the National
Lawyers Guild, as amici curiae in support of petitioner-appellee
Castañeda.
October 6, 2014
DYK, Circuit Judge. In these consolidated habeas cases,
we must determine whether the petitioners, two aliens, are subject
to the mandatory detention provision of the Immigration and
Nationality Act, 8 U.S.C. § 1226(c). Subsection 1226(c) provides
that the Attorney General “shall take into custody any alien,” who
has committed certain predicate crimes, “when the alien is
released.” Unlike other aliens facing the possibility of removal
from the United States, aliens subject to mandatory detention are
generally ineligible for bail even if they show to the Attorney
General’s satisfaction that they are not dangerous and are likely
to appear at removal hearings.
Each of the petitioners here committed a predicate crime
listed in § 1226(c)1 but was not taken into custody by the Attorney
General until years after being released from state custody.
Because § 1226(c) only applies to aliens detained “when . . .
released” from criminal custody, and because the petitioners were
not timely detained under any reasonable interpretation of the
statute, we conclude that the petitioners are not subject to
mandatory detention under § 1226(c) and are entitled to an
individualized bail hearing under § 1226(a). We therefore affirm
the district court’s grant of habeas corpus relief in each case.
1
Predicate crimes under § 1226(c) cover a variety of
offenses. Of note in this case, non-violent drug possession is a
predicate act. See 8 U.S.C. §§ 1226(c)(1)(B), 1227(A)(2)(B)(i).
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I.
A.
The mandatory detention provision of section 1226,
subsection (c), is part of a section of the Immigration and
Nationality Act which governs the arrest and detention of aliens
subject to removal from the United States. See generally 8 U.S.C.
§ 1226. The general rule under that section is that aliens
arrested and charged with removal may be released on bond pending
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) [the
mandatory detention provision] 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 . . . .
Id. § 1226(a) (emphasis added). The statute thus provides that
after an alien’s arrest the Attorney General “may continue to
detain the arrested alien” or “may release the alien” on bond or
parole. Id. § 1226(a)(1), (2).2 We refer to this provision,
2
Although the Attorney General now shares these
responsibilities with the Secretary of Homeland Security (see
Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 402, 441,
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subsection (a), as the general detention provision. The general
detention provision does not require the Attorney General to
release an alien under any particular circumstances, nor does it
limit the factors that the Attorney General may consider in
deciding whether to detain or release an alien. See id.
The process by which the Attorney General determines
whether an alien will be released on bond pursuant to subsection
(a) is governed by administrative regulations. See generally 8
C.F.R. § 1236.1. The first step in the process is a bond
determination by an immigration enforcement officer. See id.
§ 1236.1(c)(8). To be released, an alien must prove “to the
satisfaction of the officer” that his release would not endanger
other persons or property and that he is likely to appear for any
future proceedings. Id. Release may be revoked (if it is granted
at all) “at any time in the discretion of” the immigration
enforcement officer. Id. § 1236.1(c)(9).
An alien dissatisfied with his initial bond determination
may request a redetermination of bond by an administrative
immigration judge. Id. § 1236.1(d)(1). The immigration judge
applies the same standard as the enforcement officials and reaches
an independent judgment about the alien’s eligibility for release.
See id. If the alien is still dissatisfied with his bond decision,
116 Stat. 2135 (Nov. 25, 2002)), for convenience, we will refer to
this authority as residing in the Attorney General and his assigns.
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he may take a further appeal to the Board of Immigration Appeals
(BIA). Id. § 1236.1(d)(3).
No judicial review is available for an alien’s bond
determination. The statute provides:
The Attorney General’s discretionary judgment regarding
the application of this section shall not be subject to
review. No court may set aside any action or decision by
the Attorney General under this section regarding the
detention or release of any alien or the grant,
revocation, or denial of bond or parole.
8 U.S.C. § 1226(e). Thus, the exclusive authority to make and
review bond determinations lies with the executive branch, whose
discretionary decisions are generally immune from review in Article
III courts.
B.
The mandatory detention provision, § 1226(c), is framed
as an exception to § 1226(a)’s general detention provision. See
id. § 1226(a) (“Except as provided in subsection (c) . . . .”).
Under this exception, aliens who have committed one or more
predicate crimes are to be detained by the Attorney General
“when . . . released” from criminal custody, and may not be
released on bond except in rare circumstances not present here.3
3
An alien may be released if the Attorney General
concludes that his release is necessary for witness protection
purposes related to a major criminal prosecution or investigation.
8 U.S.C. § 1226(c)(2). The alien must also demonstrate that he is
not dangerous or a flight risk, as he would under general
detention. Id.
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The sole procedural safeguard for such aliens is 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 the INS [now ICE] 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); see also 8 C.F.R.
§ 3.19(h)(2)(ii); In re Joseph, 22 I. & N. Dec. 799 (BIA 1999).
The predicate crimes for mandatory detention include
aggravated felonies, crimes of moral turpitude, human trafficking,
certain firearm offenses, treason, espionage, terrorism, and
various others. See id. § 1226(c)(1)(A)-(D). Of relevance here,
they also include violations of state, federal, or foreign laws
relating to controlled substances, from drug trafficking to simple
possession. See id. §§ 1226(c)(1)(A), 1182(a)(2). As this court
held in Saysana v. Gillen, 590 F.3d 7, 15-17 (1st Cir. 2009),
mandatory detention is limited to situations in which the alien is
released from custody related to one of the predicate crimes.
The relevant text of subsection (c) reads as follows:
(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,
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(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,
(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[d] 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 [18 U.S.C. § 3521] that release of the alien
from custody is necessary [for witness protection in a
major criminal case], 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.
8 U.S.C. § 1226(c) (emphasis added). Thus, the effect of § 1226(c)
is to deny individualized bond hearings during which the Attorney
General has the discretion to determine whether to detain the
individual. The central issue in this case relates to the phrase
“when the alien is released.”
C.
In Demore v. Kim, 538 U.S. 510, the Supreme Court held
that § 1226(c)’s mandatory detention scheme is not facially
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unconstitutional. The alien in Demore had been detained the day
after his release from state custody. Kim v. Ziglar, 276 F.3d 523,
526 (9th Cir. 2002). He argued that § 1226(c) violates due process
because it allows the Attorney General to detain an alien
indefinitely without a finding that the alien is dangerous or a
flight risk. Demore, 538 U.S. at 514. The Supreme Court rejected
that argument, concluding that aliens falling under § 1226(c) may
constitutionally be detained “for the brief period necessary for
their removal proceedings.” Id. at 513. The Court distinguished
an earlier case, Zadvydas v. Davis, 533 U.S. 678 (2001), which held
that aliens whose deportation is unfeasible (e.g., because no
country will accept them) cannot be held indefinitely unless the
government demonstrates a continued need for their detention.
Demore, 538 U.S. at 528. “While the period of detention at issue
in Zadvydas [after the statutory deadline for an alien’s removal
has passed] was ‘indefinite’ and ‘potentially permanent,’ the
detention [under § 1226(c)] is of a much shorter duration.” Id.
(citation omitted). Statistics cited by the Court showed that most
removal cases were completed in a few months and the remainder, on
average, were completed in just four months more. Id. at 529.
While the Court’s opinion in Demore did not articulate
limits on the permissibility of mandatory detention, Justice
Kennedy in joining the majority opinion made clear that in his view
§ 1226(c) should be construed in light of constitutional concerns
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if an alien’s detention became unreasonable or unjustified.
Demore, 538 U.S. at 532 (Kennedy, J., concurring). Since Justice
Kennedy’s vote was necessary to the majority, his limiting
rationale is binding on us.4
Justice Kennedy began his concurrence by noting that,
since mandatory detention under § 1226(c) is “premised upon the
alien’s deportability,” due process requires “individualized
procedures” such as a Joseph hearing to ensure that the alien is in
fact deportable. Id. At 531-32 (Kennedy, J., concurring). “For
similar reasons,” he continued, “since 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.” Id. at 532. “Were there to be an unreasonable delay
by [ICE] in pursuing and completing deportation proceedings, it
could become necessary then to inquire whether the detention is not
to facilitate deportation, or to protect against risk of flight or
4
See Bruno & Stillman, Inc. v. Globe Newspaper Co., 633
F.2d 583, 594-95 (1st Cir. 1980) (construing the Supreme Court’s 5-
4 decision in Branzburg v. Hayes, 408 U.S. 665 (1972), to be
limited by the concurring opinion of Justice Powell); accord, e.g.,
United States v. Smith, 135 F.3d 963, 968-69 (5th Cir. 1998); see
also United States v. District of Columbia, 654 F.2d 802, 806-07
(D.C. Cir. 1981) (giving similar treatment to National League of
Cities v. Usery, 426 U.S. 833 (1976), in light of Justice
Blackmun’s necessary concurrence).
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dangerousness, but to incarcerate for other reasons.” Id. at 532-
33 (emphasis added).
Justice Kennedy’s concurrence thus suggests that an
“unreasonable delay by [ICE] in pursuing . . . deportation
proceedings” could make mandatory detention under subsection (c)
constitutionally suspect and requires a limiting construction. We
must determine here whether the government’s years-long delay means
that the petitioners are entitled to an individualized bond hearing
under § 1226(a), or if they are subject to mandatory detention
under § 1226(c).
II.
A.
Leiticia Castaneda is a native and citizen of Brazil.
Castaneda entered the United States without inspection (illegally,
that is) in 2000. Castaneda was seventeen years old at the time.
In 2008, Castaneda was arrested for possession of cocaine, a
misdemeanor under Massachusetts law and listed predicate for
mandatory detention under § 1226(c). See Mass. Gen. Laws Ch. 94C,
§ 34; 8 U.S.C. §§ 1226(c)(1)(A), 1182(a)(2)(A)(i)(II) (listing as
a predicate for mandatory detention “a[ny] violation of . . . any
law or regulation . . . relating to a controlled
substance . . . .”). It is unclear whether Castaneda remained in
police custody or pretrial detention after her arrest. On October
6, 2008, Castaneda was convicted and released on probation, from
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which she was discharged in February 2010. Since her release,
according to the Detention Watch Network Amici Br. at 16-18,
Castaneda has begun living with her son, has been working as a
night cleaner, has cooperated with police in an effort to prosecute
a man who had abused her, and has applied for a U Visa (a type of
visa set aside for victims of certain crimes).
In March 2013, four and a half years after her conviction
and release in 2008, Castaneda was arrested, detained, and charged
with removal by ICE agents.5 The stated ground for removal was
Castaneda’s inadmissibility due to her cocaine possession
conviction. Castaneda appears not to have disputed her criminal
status or removability. She did, however, seek release on bond for
the duration of her removal proceedings under § 1226(a). An
immigration judge denied her request for release, finding that she
was subject to mandatory detention under § 1226(c).
Castaneda then filed a petition for writ of habeas corpus
in the District of Massachusetts. The petition alleged that
Castaneda’s detention without opportunity for release on bond was
unauthorized by law because she was not detained
“when . . . released” from criminal custody as required by
5
The statute provides that Castaneda’s period of probation
is not to be considered in determining her date of release.
§ 1226(c)(1) (“. . . when the alien is released, without regard to
whether the alien is released on parole, supervised release, or
probation . . . .”).
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§ 1226(c). The petition requested that the district court order an
individualized bond hearing and bond redetermination before an
immigration judge.
After a hearing, the district court granted Castaneda’s
petition and issued a writ of habeas corpus ordering the government
to release Castaneda unless it provided her a bond hearing within
ten days. The court reasoned that the most natural reading of
“when released” was “immediately upon release,” and therefore, in
light of the statutory context, statutory structure, the rule of
lenity, and the absence of congressional intent to the contrary,
section 1226(c) applies only to criminal aliens who have been
detained immediately upon release from criminal custody or within
a reasonable time thereafter. A few days later, prior to the
scheduled hearing, the government released Castaneda on her own
recognizance.
B.
Clayton Gordon is a native and citizen of Jamaica.
Gordon arrived in the United States as a lawful permanent resident
in 1982, at the age of six. Between 1994 and 1999, Gordon served
in the National Guard and on active duty with the U.S. Army. He
received an honorable discharge in 1999.
Gordon was arrested in 2008 after police found cocaine in
his home. He was released from custody later that day. He
subsequently pled guilty to possession of narcotics with intent to
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sell, a violation of Connecticut law. See Conn. Gen. Stat. § 21a-
277(a). On September 30, 2009, Gordon was sentenced to seven years
imprisonment, execution suspended, with a three-year probationary
term. He completed his probation in October 2012. Since 2008, he
has developed significant ties to the community--in 2008, he met
the woman who has since become his fiance; they have a child
together, born in 2010; they own a home in Bloomfield, Connecticut;
he has developed a successful business; and he has worked on a
project to open a halfway house for women released from
incarceration.
Gordon was arrested and detained by ICE on June 20, 2013,
more than four years after his release from state custody. The
stated basis for removal was 8 U.S.C. § 1227(a)(2)(A)(iii), which
states than an alien shall be deportable if he is convicted of any
aggravated felony after being admitted to the United States.
Gordon challenged his deportability, but was denied relief after an
immigration judge agreed that Gordon’s cocaine conviction was an
aggravated felony under § 1227(a)(2)(A)(iii). Thereafter, Gordon
was held pursuant to the mandatory detention provision without
opportunity for a bond hearing to establish whether he may be
released during the removal proceedings.
On August 8, 2013, Gordon filed a petition for writ of
habeas corpus in the District of Massachusetts. The petition
argued that he was not subject to the mandatory detention provision
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because he was not taken into immigration custody “when . . .
released” from state criminal custody. Gordon sought an
individualized bond hearing at which he could establish his
entitlement to release on bond.
After a hearing, the district court granted Gordon’s
petition for writ of habeas corpus, instructing the government to
provide Gordon with a bond hearing. The court held that “when
released” should be interpreted to mean “at the time of release,”
plus a reasonable time thereafter. The court rejected the idea
that a five year gap was reasonable and rejected the government’s
argument that “when released” indicated the time at which it can
begin to act as “flatly implausible.” Gordon was given a bond
hearing and was released on bond of $25,000 on November 18, 2013.6
C.
The government appeals, and we have jurisdiction under 28
U.S.C. § 1291. We note that subsection 1226(e) prohibits judicial
review of “[t]he Attorney General’s discretionary judgment
regarding the application of [§ 1226],” including “any action or
decision . . . regarding the detention or release of any alien or
the grant, revocation, or denial of bond or parole.” 8 U.S.C.
6
Gordon’s petition also sought class-wide relief for all
similarly situated individuals, but that claim is not before us.
The decision on appeal is the district court’s grant of Gordon’s
individual petition. The class-wide claims remain pending before
the district court.
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§ 1226(e). But subsection (e) does not bar our review of this case
because Castaneda and Gordon do not challenge any “discretionary
judgment” of the Attorney General; rather, they challenge the
statutory basis for their detention. Habeas petitions bringing
legal or constitutional challenges to an alien’s detention under
§ 1226 are not subject to subsection (e)’s prohibition of judicial
review. Sylvain v. Attorney General, 714 F.3d 150, 155 n.4 (3d
Cir. 2013); Singh v. Holder, 638 F.3d 1196, 1200-01 (9th Cir.
2011); Al-Siddiqi v. Achim, 531 F.3d 490, 494 (7th Cir. 2008);
Demore, 538 U.S. at 517.
III.
In these appeals the government asks for reversal of the
grant of habeas corpus to Castaneda and Gordon and a determination
that they are subject to mandatory detention. In the government’s
view, § 1226(c) subjects an alien to detention without bail at any
time after release, including years later, and detention can
continue years after release while the alien fights removal. We
think the government’s view of § 1226(c) is incorrect, and that in
Justice Kennedy’s phrase the government in these cases has
“unreasonabl[y] delay[ed] . . . in pursuing . . . deportation
proceedings.” Demore, 538 U.S. at 532.
A.
We first address the meaning of the “when . . . released”
clause in § 1226(c). The government admits that this language
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could mean immediately after release, but contends that this
language is ambiguous because it could also mean any time after,
but not before, release. According to the government,‘when
released’ can plausible be read to “signif[y] that Congress did not
want DHS to preempt state and federal law enforcement officials by
trying to take criminal aliens into immigration custody before they
[c]ompleted their term of non-DHS criminal custody. . . .” Gov’t
Gordon Br. 24. The government argues that Chevron deference
requires adopting this construction. The petitioners contend that
it unambiguously means “immediately” and no later than 48 hours.
We think neither interpretation is correct.
The government’s proposed interpretation--“at any time
after release,” but not before release--is simply inconsistent with
the plain meaning of the term “when” in this context. To be sure,
the term “when” can be used in different ways. The Random House
Dictionary of the English Language lists three potentially relevant
senses: “at the time or in the event that,” “at any time that;
whenever,” and “upon or after which; and then.” Random House
Dictionary of the English Language 1626 (1981 ed.). See also
Webster’s Third New International Dictionary 2602 (1993 ed.)
(listing four: “at or during the time that,” “just after the moment
that,” “at any and every time that,” and “in the event that”);
American Heritage Dictionary 2032 (3d ed. 1992) (listing four: “at
the time that,” “as soon as,” “whenever,” and “during the time
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which; while”); 20 Oxford English Dictionary (“OED”) 209 (2d ed.
1989) (listing two principal senses: “[a]t the (or a) time at
which; on the (or an) occasion on which”).
The government is correct in its assertion that one sense
of “when” is similar in meaning to the word “after,” that is, not
before. The government contends that it is in this conditional
sense that the word “when” is used in this statute. The government
relies on dictionary definitions and cases pertaining to the use of
“when” in the conditional sense--meaning, roughly, “if” or “in the
event that.” See Random House, supra, at 1626 (“at any time;
whenever”); 20 OED, supra, at 209 (“[i]ndefinitely or generally:
[a]t any time, or at the several times, at which; on any occasion
that”); Webster’s Third, supra, at 2602 (“in the event that : on
condition that”); American Heritage, supra, at 2032 (“[w]henever”);
Random House, supra, at 1626 (“upon or after which”).
The Supreme Court’s decision in United States v. Willings
demonstrates both that the word “when” is not used in § 1226(c) in
the conditional sense and that, even if it were, the statute would
require detention within a reasonable period of time after release.
There, a federal maritime statute provided that “when any ship or
vessel . . . registered pursuant to this act . . . shall in whole
or in part be sold or transferred to a citizen, or citizens of the
United States . . . , in every such case the said ship or vessel
shall be registered anew.” 8 U.S. (4 Cranch) 48, 49 (1807)
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(quoting Act of Dec. 31, 1792, § 14). In subsequent sentences, the
statute used the phrase “in every such case” or “in every case”
repeatedly. See id. Chief Justice Marshall explained that the
correct understanding of the word “when” in that statute was “that
it describes the occurrence which shall render [re-registration]
necessary,” rather than “designat[ing] the precise time when [re-
registration] must be performed.” Id. at 55-56.
In contrast to the statute at issue here, the statute in
Willings repeatedly employed the phrase “in every such case,”
strongly suggesting that “when” was intended in the conditional
sense, rather than the temporal sense. We think it clear that
§ 1226(c) does not use the word “when” in the conditional sense, as
if to distinguish between a case where the alien is released from
state custody and a case where he is not. The detention and
deportation of an alien under § 1226(c) is premised on the notion
that the alien has been released from state custody; there is no
need for § 1226(c) to specify it. There was no congressional
concern in connection with subsection 1226(c) that the Attorney
General might detain the alien before release from state custody.
Indeed, Congress has already provided in 8 U.S.C. § 1231(a)(4)(A)
that an alien typically could not be detained before release from
state or federal custody.
Willings, moreover, makes clear that “when,” used in the
conditional sense, means that the specified action must be taken
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within a reasonable period of time after the triggering event or
condition. Id. at 56 (rejecting that “when” means the “precise
time,” and explaining that a ship must be allowed “a reasonable
interval” of time after transfer or sale in which to register,
“depend[ing] on the nature of the case”). There is no textual
support for the government’s argument that “when . . . released”
means “at any time after release.”
Nor do the structure, purpose, or legislative history of
the statute suggest that Congress contemplated automatic
detention’s being imposed years after an alien’s release from
custody. The § 1226(c) cases on which the government relies for
support merely describe Congress’s generalized intent to detain
criminal aliens in order to protect the community and ensure swift
deportation. See, e.g., Demore, 538 U.S. at 518-21; Sylvain, 714
F.3d at 159; Hosh v. Lucero, 680 F.3d 375, 381 (4th Cir. 2012).
But this court explained in Saysana that such generalized
statements of legislative intent “paint[] with far too broad a
brush” to be given controlling weight in interpreting § 1226. 590
F.3d at 17. “The mandatory detention provision does not reflect a
general policy in favor of detention; instead, it outlines
specific, serious circumstances under which the ordinary procedures
for release on bond at the discretion of the immigration judge
should not apply.” Id. at 17. So too here, we cannot adopt the
government’s interpretation of the statute just because Congress
-21-
had a general concern for detaining criminal aliens “when . . .
released” from custody.
When the government has delayed several years before
arresting an alien, the presumption of dangerousness and flight
risk is eroded by the years in which the alien lived peaceably in
the community. As this court explained in Saysana,
it is counter-intuitive to say that aliens with
potentially longstanding community ties are, as a class,
poor bail risks. The affected aliens are individuals who
committed an offense, and were released from custody for
that offense, more than a decade ago. They have
continued to live in the United States. 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.
590 F.3d at 17.7
Finding no support in the statute’s text, structure,
purpose, or legislative history, we reject the government’s
argument that “when . . . released” could mean “at any time after
release,” but not before release.8
7
The government contends that “[u]pon initiation of
removal proceedings, however, the threat of removal becomes real,
and the likelihood that a criminal alien will flee to evade
proceedings only begins at that moment.” Gordon Reply Br. at 10.
This theory is speculative and exists with respect to all
detainees, not only to detainees who have been convicted of a
predicate offense. Congress made no decision to apply mandatory
detention to all detainees who become potential flight risks when
detained. Rather, Congress focused on the predicate offense.
8
The government relies on In re Rojas, 23 I. & N. Dec. 117
(BIA 2001) for this construction, claiming that “[t]he BIA []
recognized that ‘when’ could mean . . . at or after the specified
point in time.” Gov’t Gordon Br. 17. We do not read Rojas as
-22-
This leads us to the petitioner’s interpretation. While
we reject the “at any time after” interpretation, we also think
that, contrary to the petitioners, “when . . . released” does not
mean “immediately upon release, without interruption.” Nothing in
subsection 1226(c) compels such a reading of the phrase. As the
dictionaries show, the temporal sense of “when” typically connotes
a degree of immediacy. See American Heritage, supra, at 2032
(defining “when” as “as soon as” and giving the following example:
“I’ll call you when I get there.”); 20 OED, supra, at 209
(“[s]ometimes implying suddenness: = and just then, and at that
moment”); Webster’s Third, supra, at 2602 (“just after the moment
that”). This is confirmed by common usage. One would not say
“stop writing when the bell rings” to mean “any time after the bell
rings, even hours later.” See Webster’s Third, supra, at 2602
Thus, “when” in this context connotes temporal immediacy. See
Random House, supra, at 1626; 20 OED, supra, at 209; Webster’s
Third, supra, at 2602; American Heritage, supra, at 2032. But,
what constitutes immediacy is be determined by context.
It seems quite unlikely that Congress intended § 1226(c)
to require the strict immediacy advocated by the petitioners.
interpreting “when” to mean “any time after.” Accord Sylvain v.
Attorney Gen., 714 F.3d 150, 157 n.9 (3d Cir. 2013) (“The Board [in
Rojas] did not explicitly interpret the word ‘when.’ If anything,
it suggested that ‘when’ denotes immediacy.”).
-23-
Practically speaking, the government cannot always detain criminals
at the precise moment of their release from state custody. For one
thing, such immediate detention requires foreknowledge of an
alien’s impending release from custody, for which the government
must depend on the cooperation of state and local authorities.
This cooperation is often less than perfect. Indeed, at least one
state adjacent to this circuit recently passed legislation
curtailing its cooperation with ICE in detaining aliens convicted
of crimes. See An Act Concerning Civil Immigration Detainers, Pub.
Act No. 13-155, § 1 (Conn. 2013) (codified at Conn. Gen. Stat.
§ 54-192h). The government credibly argues that such action has
“great potential to impact ICE’s ability to identify criminal
aliens in state and local criminal custody.” Castaneda Reply Br.
9 n.5. It would make little sense to interpret the statute to
strictly require immediate detention in all cases, since that is an
impossible task, as Congress recognized.
“Words, like syllables, acquire meaning not in isolation
but within their context.” K-Mart v. Cartier, 486 U.S. 281, 319
(1988) (Scalia, J., concurring in part and dissenting in part).9
Based on the textual context, we interpret § 1226(c) as requiring
that criminal aliens be detained within a reasonable time after
9
“[Text] should be construed reasonably, to contain all
that it fairly means.” Scalia, J., A Matter of Interpretation,
(1997).
-24-
their release from state criminal custody, and that what is a
reasonable time must account for the inherent difficulties in
identifying and locating an alien upon release from state custody.
The statute does not tolerate unreasonable delays, but neither does
it require strict immediacy.
As in Willings, the reasonable time within which the
government must detain an alien to satisfy the “when . . .
released” clause will depend on the practical necessities at hand.
Since what is reasonable under the circumstances is not defined in
the statute, we think the statute is ambiguous in that respect. As
in other cases of statutory ambiguity, the Attorney General
therefore has considerable latitude to define what constitutes a
reasonable time under the Chevron framework.
Under Chevron, the interpretation must be a reasonable
interpretation of the statute. Chevron, U.S.A. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 845 (1984). As discussed above,
“when . . . released” cannot mean “any time after release.” Nor do
we think it would be a reasonable interpretation to view a
reasonable period of time as including a delay of several years.
As we discuss below, the objectives of the statute are inapplicable
in such situations and enforcing such detentions would be arbitrary
in the extreme. We think it plain that the petitioners were not
detained within a reasonable time after their detention, and that
-25-
the “when . . . released” clause was not satisfied here.10 Here, as
in Saysana, this court is “not persuaded that the legislature was
seeking to justify mandatory immigration custody many months or
even years after an alien had been released from state custody.”
10
The government’s briefs focus on the question of whether
the “when . . . released” clause is satisfied by the detention of
an alien years after release from state custody. In the
alternative, the government argues that paragraph (2) of subsection
(c), bars release of the alien regardless whether the alien was
taken into custody pursuant to paragraph (1). See 8 U.S.C.
§ 1226(c)(2) (“The Attorney General may release an alien described
in paragraph (1) only if [narrow conditions are met].”). The
government argues that the statute is ambiguous in that respect and
that we must therefore defer to the BIA’s decision in Rojas that
paragraph (2) works independently of paragraph (1). We reject this
argument because it is inconsistent with the language of the
statute. On its face, paragraph (2) refers to aliens taken into
custody pursuant to paragraph (1). If Congress had wanted to
include a provision barring release of any alien who had committed
a predicate act, Congress could simply have said “Any alien
described in paragraphs (A) through (D) . . . .” The fact that
Congress did not use the more natural and condensed wording
suggests it had another purpose. Congress’ decision to only make
1226(c) apply prospectively to predicate offenses committed after
enactment also refutes the government’s construction.
Moreover, this court already rejected that argument in
Saysana. In that case, the issue was “whether the mandatory
detention provision applies only when an alien is released from a
criminal custody the basis for which is one of the [listed
predicate offenses]; or, [] whether it applies whenever [such] an
alien . . . is released from any criminal custody regardless of the
reason for that detention.” 590 F.3d at 11. The court emphasized
“[r]esolution of this issue centers on the ‘when released’ language
in § 1226(c).” Id. Saysana thus recognized that the “when . . .
released” language of paragraph (1) is essential to determining
whether an alien is subject to mandatory detention. If paragraph
(2) operated independently of paragraph (1), as Rojas and the
government would have it, there would have been no reason for
Saysana to consider the “when . . . released” language in its
analysis.
-26-
Saysana, 590 F.3d at 16 (quoting Quezada-Bucio v. Ridge, 317 F.
Supp. 2d 1221, 1230 (W.D. Wash. 2004)).11
B.
Notwithstanding our conclusion that the
“when . . . released” requirement was not met here, the government
claims support in a line of Supreme Court cases holding that
failure to comply with a statutory deadline did not deprive the
government of authority to act. See, e.g., Barnhart v. Peabody
Coal Co., 537 U.S. 149, 158-63 (2003); United States v. Montalvo-
Murillo, 495 U.S. 711, 717-720 (1990). Those so-called “loss of
authority” cases do not support the government’s view that aliens
are subject to mandatory detention even when the requirements of
§ 1226(c) are not complied with.
In our view, those loss of authority cases fall into two
discrete categories. On the one hand there are cases that involve
housekeeping provisions--that is, time limitations that are
procedural, horatory, advisory, or precatory, and are designed to
regulate the functioning of the government and “spur” the
government into action (see Brock v. Pierce Cnty. 476 U.S. 253, 265
11
We do not read Hosh or Sylvain as coming to a contrary
conclusion. Hosh only addressed whether “when” meant immediately,
and, as we do today, held that “when,” in this context, does not
require strict immediacy. Hosh never stated that “when” is an
entirely open-ended time period; indeed, the court acknowledged
that the statute “connotes some degree of immediacy”. Hosh, 680
F.3d at 381. Sylvain failed to even address the meaning of “when.”
Sylvain, 714 F.3d at 157.
-27-
(1986)), rather than to confer rights on regulated parties. An
example of such a case is Barnhart, where the Court held that the
Commissioner of Social Security retained authority to take certain
actions under the Coal Industry Retiree Health Benefit Act despite
failure to comply with the statutory deadline. 537 U.S. at 158-63.
Similarly, in Brock, the Court upheld the Secretary of Labor’s
authority to order the repayment of misused grant funds even though
the audit that led to the repayment order was not completed within
the time given by the statute. 476 U.S. at 266. The general rule
in such cases is that, “if 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.” United States v. James Daniel Good Real Property, 510
U.S. 43, 63 (1993).
On the other hand, there is another category of cases
such as Montalvo-Murillo, in which the statute is not a
housekeeping provision but is rather designed to protect the rights
of individuals. In such circumstances a more nuanced approach is
required.12
12
See French v. Edwards, 80 U.S. 506, 511 (1871), which
explained that provisions “designed to secure order, system, and
dispatch proceedings” “are not usually regarded as mandatory unless
accompanied by negative words,” “[b]ut when the requisitions
prescribed are intended for the protection of the citizen,” and
that “a disregard of which his rights might be and generally would
be injuriously affected,” the provisions “are not directory but
mandatory.” Id.
-28-
We first address whether this statute falls in the
housekeeping category. Two other circuits have concluded that it
does, and therefore ruled that aliens such as the petitioners were
subject to mandatory detention despite years-long delays by the
government. See Sylvain, 714 F.3d at 159 (“[T]he mandatory-
detention statute is intended to protect only the public . . . .”);
Hosh, 680 F.3d at 382 (“[Section] 1226 was undeniably not written
for the benefit of criminal aliens facing deportation like Hosh.”
(emphasis removed)). We disagree.
In determining the congressional purpose behind § 1226(c)
we must consider not only the provision’s legislative history
(which admittedly does not suggest a purpose to benefit alien
detainees) but also constitutional considerations. We think the
“when . . . released” clause must be construed as benefitting
aliens detained years after release in order to avoid
constitutional doubts. Avoidance of constitutional doubt is a
“cardinal principle of statutory interpretation.” Zadvydas, 533
U.S. at 689 (quoting Crowell v. Benson, 285 U.S. 22, 62, (1932)
(internal quotation marks omitted)). As the Supreme Court has
explained countless times, “when an Act of Congress raises a
serious doubt as to its constitutionality, this Court will first
ascertain whether a construction of the statute is fairly possible
by which the question may be avoided.” Id. (quoting Crowell, 285
U.S. at 62 (internal quotation marks omitted)). This obligation
-29-
requires us to attempt to find a constitutional purpose as well as
a constitutional construction of the words of the statute. SKF
USA, Inc. v. U.S. Customs and Border Protection, 556 F.3d 1337,
1353 (Fed. Cir. 2009). We follow that guidance here.
Justice Kennedy cautioned in Demore that, “since the Due
Process Clause prohibits arbitrary deprivations of liberty, a
lawful permanent resident alien . . . could be entitled to an
individualized determination as to his risk of flight and
dangerousness if the continued detention became unreasonable or
unjustified.” 538 U.S. at 532 (Kennedy, J., concurring). He
continued: “Were there to be an unreasonable delay by [ICE] in
pursuing and completing deportation proceedings, it could become
necessary then to inquire whether the detention is not to
facilitate deportation, or to protect against risk of flight or
dangerousness, but to incarcerate for other reasons.” Id.13 As a
constitutional matter, mandatory detention can only be justified by
the presumption of dangerousness and flight risk posed by newly
released criminal defendants. But those who have resided in the
community for years after release cannot reasonably be presumed
either to be dangerous or flight risks. This is particularly so
13
While Justice Kennedy’s concerns were limited to the case
of “a lawful permanent resident alien,” id. at 532, which Castaneda
is not, we do not interpret the mandatory detention provision
differently as to her or other unlawful or non-permanent resident
aliens. The text of the statute provides no basis for such a
distinction.
-30-
given the breadth of offenses to which 1226(c) applies, and the
inclusion of offenses such as non-violent drug possession.
Mandatory detention of such individuals years after release for
such crimes raises serious constitutional questions. The
government acknowledged at oral argument the harsh consequences of
“uprooting these individuals from the community,” a feature which
only underscores the arbitrary nature of the detention.14
Despite its years-long delay in bringing removal
proceedings after the petitioners’ release from criminal custody,
the government has offered no explanation for either the delay or
the eventual decision to prosecute in these individual cases or,
for that matter, in the other cases where individuals have been
detained years after release. Indeed, when the district court
ordered that the petitioners be given bond hearings, the government
released each one, thereby indicating that the government actually
viewed them as neither dangerous nor likely to flee. Castaneda was
even released on her own recognizance (i.e., without a monetary
bond) and before her bond hearing even took place.
Mandatory detention of individuals such as the
petitioners appears arbitrary on its face. We are left to wonder
14
We also note other circuits have raised significant
constitutional concerns associated with arbitrary application of
the statute where long-term detention occurs and have construed
1226(c) as not applying in such circumstances. See Casas-
Castrillon v. Dept. of Homeland Sec., 535 F.3d 942, 950 (9th Cir.
2008); Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003).
-31-
whether the petitioners’ sudden arrest and detention is not “to
facilitate deportation, or to protect against risk of flight or
dangerousness, but to incarcerate for other reasons,” which would
offend due process. Zadvydas, 533 U.S. at 690. Under these
circumstances, we think § 1226(c) must be interpreted as designed
to benefit alien detainees who were detained years after release
from criminal custody in order to avoid constitutional concerns.
The government argues that even if § 1226(c) is not a
housekeeping provision, but instead is read to benefit aliens who
were released years earlier, Montalvo-Murillo supports its
position. There, the Supreme Court addressed the Bail Reform Act’s
requirement that a suspect held in pretrial custody must be given
a bail hearing “immediately upon the person’s first appearance,” a
provision designed to protect the rights of criminal defendants.
495 U.S. at 714 (quoting 18 U.S.C. § 3142(f) (1988)). The Supreme
Court nevertheless concluded that the failure to provide an
immediate bail hearing did not deprive the government of all
authority to hold the defendant. The Court expressed concern that,
in ordering the suspect’s release, the lower courts had
“invent[ed]” a remedy unsupported by the statutory text: “Neither
the timing requirements nor any other part of the Act can be read
to require, or even suggest, that a timing error must result in
release of a person who should otherwise be detained.” Id. at 716-
17, 721. Even if some remedy were required, the Court explained,
-32-
“[w]e need seek only a practical remedy, not one that strips the
Government of all authority to act.” Id. at 719. “When, as here,
there are less drastic remedies available for failure to meet a
statutory deadline, courts should not assume that Congress intended
the agency to lose its power to act.” Id. at 718 (quoting Brock,
476 U.S. at 260 (internal quotation marks omitted)).
The cases before us stand in stark contrast to Montalvo-
Murillo, and the absence of the factors the Court found compelling
there dictates the opposite result here. First, the district
courts here did not “invent” a remedy unsupported by the statute’s
text. Rather, the grant of limited habeas relief requiring a bond
hearing reflected the structure of the detention provisions as a
whole. Mandatory detention under subsection (c) is an exception;
general detention under subsection (a) is the default rule. See
§ 1226(a) (“Except as provided in subsection (c) . . . .”). If
subsection (c) does not apply, it follows naturally that subsection
(a) does, and that the petitioners must be given a bond hearing.
So unlike in Montalvo-Murillo, the remedy here comports with the
text and structure of the statute.
Second, unlike Montalvo-Murillo, the district court
decisions here did not strip the Attorney General of authority to
detain the petitioners. Under section 1226(a) the Attorney General
has broad and unreviewable discretion to determine whether
individual aliens should be afforded release on bond. 8 U.S.C.
-33-
§ 1226(a)(1)-(2) (stating that the Attorney General “may continue
to detain the arrested alien” and “may release the alien” on bond
or parole, but placing no constraints on the Attorney General’s
decision); id § 1226(e) (prohibiting judicial review). In
exercising this discretion, the Attorney General may adopt any
regulation that “has a ‘reasonable foundation,’” meaning that it
“rationally pursues a purpose that it is lawful . . . to seek.”
Reno v. Flores, 507 U.S. 292, 309 (1993) (quoting Carlson v.
Landon, 342 U.S. 524, 541 (1952)). The grant of habeas relief in
these cases merely forced the Attorney General to consider
releasing the petitioners. He retained full authority to decline.
Third, unlike Montalvo-Murillo, the remedy here is not
drastic. The lower courts in Montalvo-Murillo “mandat[ed] release
of possibly dangerous defendants.” Montalvo-Murillo, 495 U.S. at
720. The district courts here did no such thing. They did not
order the petitioners’ release; they ordered that the petitioners
be given a hearing at which the government has discretion to
continue their detention if it finds them dangerous or a flight
risk. It was the government itself that determined to release
Castaneda and Gordon.
In light of these significant differences, we think that
Montalvo-Murillo does not apply here, and that violating the
command of the statute for detention “when . . . released” is
properly enforced by requiring an individualized hearing.
-34-
IV.
Section 1226(c) requires detention of aliens such as the
petitioners “when . . . released.” Because the petitioners were
not timely detained under any reasonable interpretation of the
statute, we conclude that the petitioners are not subject to
mandatory detention under § 1226(c). They are not subject to an
irrebuttable presumption of dangerousness and flight risk, but are
rather entitled to an individualized determination by the Attorney
General of such factors. We therefore affirm the decisions of the
district courts granting habeas relief to the petitioners.15
AFFIRMED
Costs to appellees.
15
We note in conclusion that many district courts across
the country have adopted the interpretation of § 1226(c) that we
adopt today. See, e.g., Alikhani v. Fasano, 70 F. Supp. 2d 1124,
1130 (S.D. Cal. 1999); Ortiz v. Holder, No. 2:11-cv-1146 DAK, 2012
WL 893154, at *3-4 (D. Utah Mar. 14 2012); Harris v. Lucero, Civil
Action No. 1:11-cv-692, 2012 WL 603949, at *3 (E.D. Va. Feb 23,
2012); Parfait v. Holder, Civil No. 11-4877 (DMC), 2011 WL 4829391,
at *4-9 (D.N.J. Oct. 11, 2011); Rianto v. Holder, No. CV-11-0137-
PHX-FJM, 2011 WL 3489613, at *3 (D. Ariz. Aug. 9, 2011). Indeed,
that interpretation appears to be the majority view. See Sylvain,
714 F.3d at 157 (collecting cases).
-35-