Nielsen v. Preap

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NIELSEN, SECRETARY OF HOMELAND SECURITY,
ET AL. v. PREAP ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 16–1363. Argued October 10, 2018—Decided March 19, 2019*
Federal immigration law empowers the Secretary of Homeland Security
to arrest and hold a deportable alien pending a removal decision, and
generally gives the Secretary the discretion either to detain the alien
or to release him on bond or parole. 8 U. S. C. §1226(a). Another
provision, §1226(c)—enacted out of “concer[n] that deportable crimi-
nal aliens who are not detained continue to engage in crime and fail
to appear for their removal hearings,” Demore v. Kim, 538 U. S. 510,
513—sets out four categories of aliens who are inadmissible or de-
portable for bearing certain links to terrorism or for committing spec-
ified crimes. Section 1226(c)(1) directs the Secretary to arrest any
such criminal alien “when the alien is released” from jail, and
§1226(c)(2) forbids the Secretary to release any “alien described in
paragraph (1)” pending a determination on removal (with one excep-
tion not relevant here).
Respondents, two classes of aliens detained under §1226(c)(2), al-
lege that because they were not immediately detained by immigra-
tion officials after their release from criminal custody, they are not
aliens “described in paragraph (1),” even though all of them fall into
at least one of the four categories covered by §§1226(c)(1)(A)–(D). Be-
cause the Government must rely on §1226(a) for their detention, re-
spondents argue, they are entitled to bond hearings to determine if
they should be released pending a decision on their status. The Dis-
trict Courts ruled for respondents, and the Ninth Circuit affirmed.
——————
* Together with Wilcox, Acting Field Office Director, Immigration and
Customs Enforcement, et al. v. Khoury et al. (see this Court’s Rule 12.4),
also on certiorari to the same court.
2 NIELSEN v. PREAP
Syllabus
Held: The judgments are reversed, and the cases are remanded.
831 F. 3d 1193 and 667 Fed. Appx. 966, reversed and remanded.
JUSTICE ALITO delivered the opinion of the Court with respect to
Parts I, III–A, III–B–1, and IV, concluding that the Ninth Circuit’s
interpretation of §1226(c) is contrary to the plain text and structure
of the statute. Pp. 10–17, 20–26.
(a) The statute’s text does not support the argument that because
respondents were not arrested immediately after their release, they
are not “described in” §1226(c)(1). Since an adverb cannot modify a
noun, §1226(c)(1)’s adverbial clause “when . . . released” does not
modify the noun “alien,” which is modified instead by the adjectival
clauses appearing in subparagraphs (A)–(D). Respondents contend
that an adverb can “describe” a person even though it cannot modify
the noun used to denote that person, but this Court’s interpretation
is not dependent on a rule of grammar. The grammar merely com-
plements what is conclusive here: the meaning of “described” as it
appears in §1226(c)(2)—namely, “to communicate verbally . . . an ac-
count of salient identifying features,” Webster’s Third New Interna-
tional Dictionary 610. That is the relevant definition since the indis-
putable job of the “descri[ption] in paragraph (1)” is to “identif[y]” for
the Secretary which aliens she must arrest immediately “when [they
are] released.” Yet the “when . . . released” clause could not possibly
describe aliens in that sense. If it did, the directive given to the Sec-
retary in §1226(c)(1) would be incoherent. Moreover, Congress’s use
of the definite article in “when the alien is released” indicates that
the scope of the word “alien” “has been previously specified in con-
text.” Merriam-Webster’s Collegiate Dictionary 1294. For that noun
to have been previously specified, its scope must have been settled by
the time the “when . . . released” clause appears at the end of para-
graph (1). Thus, the class of people to whom “the alien” refers must
be fixed by the predicate offenses identified in subparagraphs (A)–
(D). Pp. 10–14.
(b) Subsections (a) and (c) do not establish separate sources of ar-
rest and release authority; subsection (c) is a limit on the authority
conferred by subsection (a). Accordingly, all the relevant detainees
will have been arrested by authority that springs from subsection (a),
and that fact alone will not spare them from subsection (c)(2)’s prohi-
bition on release. The text of §1226 itself contemplates that aliens
arrested under subsection (a) may face mandatory detention under
subsection (c). If §1226(c)’s detention mandate applied only to those
arrested pursuant to subsection (c)(1), there would have been no need
for subsection (a)’s sentence on the release of aliens to include the
words “[e]xcept as provided in subsection (c).” It is also telling that
subsection (c)(2) does not limit mandatory detention to those arrested
Cite as: 586 U. S. ____ (2019) 3
Syllabus
“pursuant to” subsection (c)(1) or “under authority created by” sub-
section (c)(1), but to anyone so much as “described in” subsection
(c)(1). Pp. 15–17.
(c) This reading of §1226(c) does not flout the interpretative canon
against surplusage. The “when . . . released” clause still functions to
clarify when the duty to arrest is triggered and to exhort the Secre-
tary to act quickly. Nor does this reading have the incongruous re-
sult of forbidding the release of a set of aliens whom there is no duty
to arrest in the first place. Finally, the canon of constitutional avoid-
ance does not apply where there is no ambiguity. See Warger v.
Shauers, 574 U. S. 40, 50. Pp. 20–26.
JUSTICE ALITO, joined by THE CHIEF JUSTICE and JUSTICE
KAVANAUGH, concluded in Parts II and III–B–2:
(a) This Court has jurisdiction to hear these cases. The limitation
on review in §1226(e) applies only to “discretionary” decisions about
the “application” of §1226 to particular cases. It does not block law-
suits over “the extent of the Government’s detention authority under
the ‘statutory framework’ as a whole.” Jennings v. Rodriguez, 583
U. S. ___, ___. For reasons stated in Jennings, Ҥ1252(b)(9) does not
present a jurisdictional bar.” See id., at ___. Whether the District
Court in the Preap case had jurisdiction under §1252(f)(1) to grant in-
junctive relief is irrelevant because the court had jurisdiction to en-
tertain the plaintiffs’ request for declaratory relief. And, the fact that
by the time of class certification the named plaintiffs had obtained ei-
ther cancellation of removal or bond hearings did not make these
cases moot. At least one named plaintiff in both cases could have
been returned to detention and then denied a subsequent bond hear-
ing. Even if that had not been so, these cases would not be moot be-
cause the harms alleged are transitory enough to elude review.
County of Riverside v. McLaughlin, 500 U. S. 44, 52. Pp. 7–10.
(b) Even assuming that §1226(c)(1) requires immediate arrest, the
result below would be wrong, because a statutory rule that officials
“ ‘shall’ act within a specified time” does not by itself “preclud[e] ac-
tion later,” Barnhart v. Peabody Coal Co., 537 U. S. 149, 158. This
principle for interpreting time limits on statutory mandates was a
fixture of the legal backdrop when Congress enacted §1226(c). Cf.
Woodford v. Garceau, 538 U. S. 202, 209. Pp. 17–20.
JUSTICE THOMAS, joined by JUSTICE GORSUCH, concluded that three
statutory provisions—8 U. S. C. §§1252(b)(9), 1226(e), and
1252(f)(1)—limit judicial review in these cases and it is unlikely that
the District Courts had Article III jurisdiction to certify the classes.
Pp. 1–6.
ALITO, J., announced the judgment of the Court and delivered the
4 NIELSEN v. PREAP
Syllabus
opinion of the Court with respect to Parts I, III–A, III–B–1, and IV, in
which ROBERTS, C. J., and THOMAS, GORSUCH, and KAVANAUGH, JJ.,
joined, and an opinion with respect to Parts II and III–B–2, in which
ROBERTS, C. J., and KAVANAUGH, J., joined. KAVANAUGH, J., filed a con-
curring opinion. THOMAS, J., filed an opinion concurring in part and
concurring in the judgment, in which GORSUCH, J., joined. BREYER, J.,
filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN,
JJ., joined.
Cite as: 586 U. S. ____ (2019) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1363
_________________
KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND
SECURITY, ET AL., PETITIONERS v.
MONY PREAP, ET AL.
BRYAN WILCOX, ACTING FIELD OFFICE DIRECTOR,
IMMIGRATION AND CUSTOMS ENFORCEMENT,
ET AL., PETITIONERS v. BASSAM YUSUF
KHOURY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 19, 2019]
JUSTICE ALITO announced the judgment of the Court
and delivered the opinion of the Court with respect to
Parts I, III–A, III–B–1, and IV, and an opinion with re-
spect to Parts II and III–B–2, in which THE CHIEF JUSTICE
and JUSTICE KAVANAUGH join.
Aliens who are arrested because they are believed to be
deportable may generally apply for release on bond or
parole while the question of their removal is being de-
cided. These aliens may secure their release by proving to
the satisfaction of a Department of Homeland Security
officer or an immigration judge that they would not en-
danger others and would not flee if released from custody.
Congress has decided, however, that this procedure is
too risky in some instances. Congress therefore adopted a
special rule for aliens who have committed certain dan-
gerous crimes and those who have connections to terror-
ism. Under a statutory provision enacted in 1996, 110
2 NIELSEN v. PREAP
Opinion of the Court
Stat. 3009–585, 8 U. S. C. §1226(c), these aliens must be
arrested “when [they are] released” from custody on crim-
inal charges and (with one narrow exception not involved
in these cases) must be detained without a bond hearing
until the question of their removal is resolved.
In these cases, the United States Court of Appeals for
the Ninth Circuit held that this mandatory-detention
requirement applies only if a covered alien is arrested by
immigration officials as soon as he is released from jail. If
the alien evades arrest for some short period of time—
according to respondents, even 24 hours is too long—the
mandatory-detention requirement is inapplicable, and the
alien must have an opportunity to apply for release on
bond or parole. Four other Circuits have rejected this
interpretation of the statute, and we agree that the Ninth
Circuit’s interpretation is wrong. We therefore reverse the
judgments below and remand for further proceedings.
I
A
Under federal immigration law, aliens present in this
country may be removed if they fall “within one or more
. . . classes of deportable aliens.” 8 U. S. C. §1227(a). In
these cases, we focus on two provisions governing the
arrest, detention, and release of aliens who are believed to
be subject to removal.
The first provision, §1226(a),1 applies to most such
——————
1 This
provision states:
“(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)
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 with security approved by, and containing
conditions prescribed by, the Attorney General; or
Cite as: 586 U. S. ____ (2019) 3
Opinion of the Court
aliens, and it sets out the general rule regarding their
arrest and detention pending a decision on removal.
Section 1226(a) contains two sentences, one dealing with
taking an alien into custody and one dealing with deten-
tion. The first sentence empowers the Secretary of Home-
land Security2 to arrest and hold an alien “pending a
decision on whether the alien is to be removed from the
United States.” The second sentence generally gives the
Secretary the discretion either to detain the alien or to
release him on bond or parole. If the alien is detained, he
may seek review of his detention by an officer at the
Department of Homeland Security and then by an immi-
gration judge (both exercising power delegated by the
Secretary), see 8 CFR §§236.1(c)(8) and (d)(1), 1003.19,
1236.1(d)(1) (2018); and the alien may secure his release if
he can convince the officer or immigration judge that he
poses no flight risk and no danger to the community. See
§§1003.19(a), 1236.1(d); Matter of Guerra, 24 I. & N. Dec.
37 (BIA 2006). But while 8 U. S. C. §1226(a) generally
permits an alien to seek release in this way, that provi-
sion’s sentence on release states that all this is subject to
an exception that is set out in §1226(c).
Section 1226(c) was enacted as part of the Illegal Immi-
gration Reform and Immigrant Responsibility Act of 1996,
and it sprang from a “concer[n] that deportable criminal
——————
“(B) conditional parole; but
“(3) may not provide the alien with work authorization (including an
‘employment authorized’ endorsement or other appropriate work
permit), unless the alien is lawfully admitted for permanent residence
or otherwise would (without regard to removal proceedings) be provided
such authorization.”
2 We replace “Attorney General” with “Secretary” because Congress
has empowered the Secretary to enforce the Immigration and National-
ity Act, 8 U. S. C. §1101 et seq., though the Attorney General retains
the authority to administer removal proceedings and decide relevant
questions of law. See, e.g., 6 U. S. C. §§202(3), 251, 271(b), 542 note,
557; 8 U. S. C. §§1103(a)(1) and (g), 1551 note.
4 NIELSEN v. PREAP
Opinion of the Court
aliens who are not detained continue to engage in crime
and fail to appear for their removal hearings in large
numbers.” Demore v. Kim, 538 U. S. 510, 513 (2003). To
address this problem, Congress mandated that aliens who
were thought to pose a heightened risk be arrested and
detained without a chance to apply for release on bond or
parole.
Section 1226(c) consists of two paragraphs, one on the
decision to take an alien into “[c]ustody” and another on
the alien’s subsequent “[r]elease.”3 The first paragraph
(on custody) sets out four categories of covered aliens,
namely, those who are inadmissible or deportable on
specified grounds. It then provides that the Secretary
must take any alien falling into one of these categories
“into custody” “when the alien is released” from criminal
custody.
The second paragraph (on release from immigration
custody) states that “an alien described in paragraph (1)”
may be released “only if [the Secretary] decides” that
release is “necessary to provide protection” for witnesses
or others cooperating with a criminal investigation, or
their relatives or associates. That exception is not impli-
cated in the present cases.
The categories of predicates for mandatory detention
identified in subparagraphs (A)–(D) generally involve the
commission of crimes. As will become relevant to our
analysis, however, some who satisfy subparagraph (D)—
e.g., close relatives of terrorists and those who are thought
likely to engage in terrorist activity, see 8 U. S. C.
§1182(a)(3)(B)(i)(IX)—may never have been charged with
any crime in this country.4 Still, since the vast majority of
——————
3 The
full text of §1226(c) is set out infra, at 10–11.
4 Nevertheless,such cases appear to be rare. See Straker v. Jones,
986 F. Supp. 2d 345, 357, n. 8 (SDNY 2013) (citing Gomez v. Napoli-
tano, 2012 U. S. App. LEXIS 27076 (CA2, June 5, 2012)). But see
Alafyouny v. Chertoff, 2006 WL 1581959, *3, *24 (ND Tex., May 19,
Cite as: 586 U. S. ____ (2019) 5
Opinion of the Court
mandatory-detention cases do involve convictions, we
follow the heading of subsection (c), as well as our cases
and the courts below, in referring to aliens who satisfy
subparagraphs (A)–(D) collectively as “criminal aliens.”
The Board of Immigration Appeals has held that subsec-
tion (c)(2), which requires the detention of aliens “de-
scribed in” subsection (c)(1), applies to all aliens who fall
within subparagraphs (A)–(D), whether or not they were
arrested immediately “when [they were] released” from
criminal custody. Matter of Rojas, 23 I. & N. Dec. 117(BIA 2001) (en banc).
B
Respondents in the two cases before us are aliens who
were detained under §1226(c)(2)’s mandatory-detention
requirement—and thus denied a bond hearing—pending a
decision on their removal. See Preap v. Johnson, 831 F. 3d
1193 (CA9 2016); Khoury v. Asher, 667 Fed. Appx. 966(CA9 2016). Though all respondents had been convicted of
criminal offenses covered in §§1226(c)(1)(A)–(D), none
were arrested by immigration officials immediately after
their release from criminal custody. Indeed, some were
not arrested until several years later.
Respondent Mony Preap, the lead plaintiff in the case
that bears his name, is a lawful permanent resident with
two drug convictions that qualify him for mandatory
detention under §1226(c). Though he was released from
criminal custody in 2006, immigration officials did not
detain him until 2013, when he was released from jail
after an arrest for another offense. His co-plaintiffs Juan
Lozano Magdaleno and Eduardo Vega Padilla were taken
into immigration detention, respectively, 5 and 11 years
after their release from custody for a §1226(c) predicate
——————
2006) (an alien was subject to mandatory detention based on a deter-
mination that the alien had solicited funds for a terrorist group).
6 NIELSEN v. PREAP
Opinion of the Court
offense. Preap, Magdaleno, and Padilla filed habeas peti-
tions and a class-action complaint alleging that because
they were not arrested “immediately” after release from
criminal custody, they are exempt from mandatory deten-
tion under §1226(c) and are entitled to a bond hearing to
determine if they should be released pending a decision on
their status.
Although the named plaintiffs in Preap were not taken
into custody on immigration grounds until years after
their release from criminal custody, the District Court
certified a broad class comprising all aliens in California
“ ‘who are or will be subjected to mandatory detention
under 8 U. S. C. section 1226(c) and who were not or will
not have been taken into custody by the government im-
mediately upon their release from criminal custody for a
[s]ection 1226(c)(1) offense.’ ” 831 F. 3d, at 1198 (emphasis
added). The District Court granted a preliminary injunc-
tion against the mandatory detention of the members of
this class, holding that criminal aliens are exempt from
mandatory detention under §1226(c) (and are thus entitled
to a bond hearing) unless they are arrested “ ‘when [they
are] released,’ and no later.” Preap v. Johnson, 303
F. R. D. 566, 577 (ND Cal. 2014) (quoting 8 U. S. C.
§1226(c)(1)). The Court of Appeals for the Ninth Circuit
affirmed.
Khoury, the other case now before us, involves habeas
petitions and a class-action complaint filed in the Western
District of Washington. The District Court certified a
class comprising all aliens in that district “who were sub-
jected to mandatory detention under 8 U. S. C. §1226(c)
even though they were not detained immediately upon
their release from criminal custody.” 667 Fed. Appx., at
967. The District Court granted summary judgment for
respondents, and the Ninth Circuit again affirmed, citing
its decision on the same day in Preap.
Because Preap and Khoury created a split with four
Cite as: 586 U. S. ____ (2019) 7
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Opinion of
of the Court
ALITO, J.
other Courts of Appeals, we granted certiorari to review
the Ninth Circuit’s ruling that criminal aliens who are not
arrested immediately upon release are thereby exempt
from mandatory detention under §1226(c). 583 U. S. ___
(2018). We now reverse.
II
Before addressing the merits of the Court of Appeals’
interpretation, we resolve four questions regarding our
jurisdiction to hear these cases.
The first potential hurdle concerns §1226(e), which
states:
“The [Secretary’s] discretionary judgment regarding
the application of [§1226] shall not be subject to re-
view. No court may set aside any action or decision by
the [Secretary] under this section regarding the de-
tention or release of any alien or the grant, revocation,
or denial of bond or parole.” (Emphasis added.)
As we have held, this limitation applies only to “discre-
tionary” decisions about the “application” of §1226 to
particular cases. It does not block lawsuits over “the
extent of the Government’s detention authority under the
‘statutory framework’ as a whole.” Jennings v. Rodriguez,
583 U. S. ___, ___–___ (2018) (slip op., at 11–12) (quoting
Demore, 538 U. S., at 517). And the general extent of the
Government’s authority under §1226(c) is precisely the
issue here. Respondents’ argument is not that the Gov-
ernment exercised its statutory authority in an unreason-
able fashion. Instead, they dispute the extent of the statu-
tory authority that the Government claims. Because this
claim of authority does not constitute a mere “discretion-
ary” “application” of the relevant statute, our review is not
barred by §1226(e).
Nor are we stripped of jurisdiction by §1252(b)(9), which
provides:
8 NIELSEN v. PREAP
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Opinion of
of the Court
ALITO, J.
“Judicial review of all questions of law and fact, in-
cluding interpretation and application of constitu-
tional and statutory provisions, arising from any action
taken or proceeding brought to remove an alien from
the United States under this subchapter [including
§§1225 and 1226] shall be available only in judicial
review of a final order under this section.” (Emphasis
added.)
As in Jennings, respondents here “are not asking for
review of an order of removal; they are not challenging the
decision to detain them in the first place or to seek removal
[as opposed to the decision to deny them bond hearings];
and they are not even challenging any part of the process
by which their removability will be determined. Under
these circumstances,” we held in Jennings, see 583 U. S.,
at ___–___ (slip op., at 10–11), “§1252(b)(9) does not pre-
sent a jurisdictional bar.”
The Government raised a third concern before the Dis-
trict Court in Preap: that under 8 U. S. C. §1252(f )(1), that
court lacked jurisdiction to enter the requested injunction.
As §1252(f )(1) cautions:
“Regardless of the nature of the action or claim or of
the identity of the party or parties bringing the action,
no court (other than the Supreme Court) shall have
jurisdiction or authority to enjoin or restrain the op-
eration of [§§1221–1232] other than with respect to
the application of such provisions to an individual al-
ien against whom proceedings under such part have
been initiated.”
Did the Preap court overstep this limit by granting injunc-
tive relief for a class of aliens that includes some who have
not yet faced—but merely “will face”—mandatory deten-
tion? The District Court said no, but we need not decide.
Whether the Preap court had jurisdiction to enter such an
injunction is irrelevant because the District Court had
Cite as: 586 U. S. ____ (2019) 9
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Opinion of
of the Court
ALITO, J.
jurisdiction to entertain the plaintiffs’ request for declara-
tory relief, and for independent reasons given below, we
are ordering the dissolution of the injunction that the
District Court ordered.
Finally, and again before the Preap District Court, the
Government raised a fourth potential snag: mootness.
Class actions are “[n]ormally . . . moot if no named class
representative with an unexpired claim remain[s] at the
time of class certification.” United States v. Sanchez-
Gomez, 584 U. S. ___, ___ (2018) (slip op., at 4). But that
general norm is no hurdle here.
The suggestion of mootness in these cases was based on
the fact that by the time of class certification the named
plaintiffs had obtained either cancellation of removal or
bond hearings. See 831 F. 3d, at 1197–1198; Khoury v.
Asher, 3 F. Supp. 3d 877, 879–880 (WD Wash. 2014). But
those developments did not make the cases moot because
at least one named plaintiff in both cases had obtained
release on bond, as opposed to cancellation of removal, and
that release had been granted following a preliminary
injunction in a separate case. Unless that preliminary
injunction was made permanent and was not disturbed on
appeal, these individuals faced the threat of re-arrest and
mandatory detention. And indeed, we later ordered that
that injunction be dissolved. See Jennings, 583 U. S., at
___ (slip op., at 31). Thus, in both cases, there was at least
one named plaintiff with a live claim when the class was
certified.
Even if that had not been so, these cases would not be
moot because the fact that a class “was not certified until
after the named plaintiffs’ claims had become moot does
not deprive us of jurisdiction” when, as in these cases, the
harms alleged are transitory enough to elude review.
County of Riverside v. McLaughlin, 500 U. S. 44, 52 (1991)
(affirming jurisdiction over a class action challenging a
county’s failure to provide “prompt” determinations of
10 NIELSEN v. PREAP
Opinion of the Court
probable cause for those subjected to warrantless arrest
and detention). Respondents claim that they would be
harmed by detention without a hearing pending a decision
on their removal. Because this type of injury ends as soon
as the decision on removal is made, it is transitory. So the
fact that the named plaintiffs obtained some relief before
class certification does not moot their claims.
III
Having assured ourselves of our jurisdiction, we turn to
the merits. Respondents contend that they are not prop-
erly subject to §1226(c)’s mandatory-detention scheme, but
instead are entitled to the bond hearings available to
those held under the general arrest and release authority
provided in §1226(a). Respondents’ primary textual ar-
gument turns on the interaction of paragraphs (1) and (2)
of §1226(c). Recall that those paragraphs govern, respec-
tively, the “[c]ustody” and “[r]elease” of criminal aliens
guilty of a predicate offense. Paragraph (1) directs the
Secretary to arrest any such alien “when the alien is re-
leased,” and paragraph (2) forbids the Secretary to release
any “alien described in paragraph (1)” pending a determi-
nation on removal (with one exception not relevant here).
Because the parties’ arguments about the meaning of
§1226(c) require close attention to the statute’s terms and
structure, we reproduce the provision in full below. But
only the portions of the statute that we have highlighted
are directly relevant to respondents’ argument. Section
1226(c) provides:
“(c) Detention of criminal aliens
“(1) Custody
“The [Secretary] 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
Cite as: 586 U. S. ____ (2019) 11
Opinion of the Court
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 [Secretary] may release an alien described in
paragraph (1) only if the [Secretary] 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 [Sec-
retary] 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 re-
lating to such release shall take place in accordance
with a procedure that considers the severity of the of-
fense committed by the alien.” (Emphasis added.)
Respondents argue that they are not subject to manda-
tory detention because they are not “described in”
§1226(c)(1), even though they (and all the other members
of the classes they represent) fall into at least one of the
12 NIELSEN v. PREAP
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categories of aliens covered by subparagraphs (A)–(D) of
that provision. An alien covered by these subparagraphs
is not “described in” §1226(c)(1), respondents contend,
unless the alien was also arrested “when [he or she was]
released” from criminal custody. Indeed, respondents
insist that the alien must have been arrested immediately
after release. Since they and the other class members
were not arrested immediately, respondents conclude,
they are not “described in” §1226(c)(1). So to detain them,
the Government must rely not on §1226(c) but on the
general provisions of §1226(a). And thus, like others
detained under §1226(a), they are owed bond hearings in
which they can earn their release by proving that they
pose no flight risk and no danger to others—or so they
claim. But neither the statute’s text nor its structure
supports this argument. In fact, both cut the other way.
A
First, respondents’ position runs aground on the plain
text of §1226(c). Respondents are right that only an alien
“described in paragraph (1)” faces mandatory detention,
but they are wrong about which aliens are “described in”
paragraph (1).
Paragraph (1) provides that the Secretary “shall take”
into custody any “alien” having certain characteristics and
that the Secretary must do this “when the alien is re-
leased” from criminal custody. The critical parts of the
provision consist of a verb (“shall take”), an adverbial
clause (“when . . . released”), a noun (“alien”), and a series
of adjectival clauses (“who . . . is inadmissible,” “who . . . is
deportable,” etc.). As an initial matter, no one can deny
that the adjectival clauses modify (and in that sense “de-
scrib[e]”) the noun “alien” or that the adverbial clause
“when . . . released” modifies the verb “shall take.” And
since an adverb cannot modify a noun, the “when released”
clause cannot modify “alien.” Again, what modifies (and
Cite as: 586 U. S. ____ (2019) 13
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in that sense “describe[s]”) the noun “alien” are the adjec-
tival clauses that appear in subparagraphs (A)–(D).
Respondents and the dissent contend that this gram-
matical point is not the end of the matter—that an adverb
can “describe” a person even though it cannot modify the
noun used to denote that person. See post, at 5–6 (opinion
of BREYER, J.). But our interpretation is not dependent on
a rule of grammar. The preliminary point about grammar
merely complements what is critical, and indeed conclu-
sive in these cases: the particular meaning of the term
“described” as it appears in §1226(c)(2). As we noted in
Luna Torres v. Lynch, 578 U. S. ___, ___ (2016) (slip op., at
6), the term “ ‘describe’ takes on different meanings in
different contexts.” A leading definition of the term is “to
communicate verbally . . . an account of salient identifying
features,” Webster’s Third New International Dictionary
610 (1976), and that is clearly the meaning of the term
used in the phrase “an alien described in paragraph (1).”
(Emphasis added.) This is clear from the fact that the
indisputable job of the “descri[ption] in paragraph (1)” is to
“identif[y]” for the Secretary—to list the “salient . . . fea-
tures” by which she can pick out—which aliens she must
arrest immediately “when [they are] released.”
And here is the crucial point: The “when . . . released”
clause could not possibly describe aliens in that sense; it
plays no role in identifying for the Secretary which aliens
she must immediately arrest. If it did, the directive in
§1226(c)(1) would be nonsense. It would be ridiculous to
read paragraph (1) as saying: “The Secretary must arrest,
upon their release from jail, a particular subset of criminal
aliens. Which ones? Only those who are arrested upon
their release from jail.” Since it is the Secretary’s action
that determines who is arrested upon release, “being ar-
rested upon release” cannot be one of her criteria in figur-
ing out whom to arrest. So it cannot “describe”—it cannot
give the Secretary an “identifying featur[e]” of—the rele-
14 NIELSEN v. PREAP
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vant class of aliens. On any other reading of paragraph
(1), the command that paragraph (1) gives the Secretary
would be downright incoherent.
Our reading is confirmed by Congress’s use of the defi-
nite article in “when the alien is released.” Because
“[w]ords are to be given the meaning that proper grammar
and usage would assign them,” A. Scalia & B. Garner,
Reading Law: The Interpretation of Legal Texts 140
(2012), the “rules of grammar govern” statutory interpre-
tation “unless they contradict legislative intent or pur-
pose,” ibid. (citing Costello v. INS, 376 U. S. 120, 122–126
(1964)). Here grammar and usage establish that “the” is
“a function word . . . indicat[ing] that a following noun or
noun equivalent is definite or has been previously speci-
fied by context.” Merriam-Webster’s Collegiate Dictionary
1294 (11th ed. 2005). See also Work v. United States
ex rel. McAlester-Edwards Co., 262 U. S. 200, 208 (1923)
(Congress’s “use of the definite article [in a reference to
“the appraisement”] means an appraisement specifically
provided for”). For “the alien”—in the clause “when the
alien is released”—to have been previously specified, its
scope must have been settled by the time the “when . . .
released” clause appears at the tail end of paragraph (1).
For these reasons, we hold that the scope of “the alien”
is fixed by the predicate offenses identified in subpara-
graphs (A)–(D).5 And since only those subparagraphs
settle who is “described in paragraph (1),” anyone who fits
their description falls under paragraph (2)’s detention
mandate—even if (as with respondents) the Secretary did
not arrest them immediately “when” they were “released.”
——————
5 For this reason, it is irrelevant that (as the dissent notes, see post,
at 8) paragraph (2) applies to aliens described in “paragraph (1)” and
not “subparagraphs (A)–(D).” These two phrases denote the same
category, so nothing can be gleaned from Congress’s choice of one over
the other.
Cite as: 586 U. S. ____ (2019) 15
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B
In reaching the contrary conclusion, the Ninth Circuit
thought that the very structure of §1226 favors respond-
ents’ reading. In particular, the Ninth Circuit reasoned,
each subsection’s arrest and release provisions must work
together. Thus, aliens must be arrested under the general
arrest authority in subsection (a) in order to get a bond
hearing under subsection (a)’s release provision. And in
order to face mandatory detention under subsection (c),
criminal aliens must have been arrested under subsection
(c). But since subsection (c) authorizes only immediate
arrest, the argument continues, those arrested later fall
under subsection (a), not (c). Accordingly, the court con-
cluded, those arrested well after release escape subsection
(c)’s detention mandate. See 831 F. 3d, at 1201–1203. But
this argument misreads the structure of §1226; and in any
event, the Ninth Circuit’s conclusion would not follow even
if we granted all its premises about statutory structure.
1
Although the Ninth Circuit viewed subsections (a) and
(c) as establishing separate sources of arrest and release
authority, in fact subsection (c) is simply a limit on the
authority conferred by subsection (a).
Recall that subsection (a) has two sentences that pro-
vide the Secretary with general discretion over the arrest
and release of aliens, respectively. We read each of sub-
section (c)’s two provisions—paragraph (1) on arrest, and
paragraph (2) on release—as modifying its counterpart
sentence in subsection (a). In particular, subsection (a)
creates authority for anyone’s arrest or release under
§1226—and it gives the Secretary broad discretion as to
both actions—while subsection (c)’s job is to subtract some
of that discretion when it comes to the arrest and release
of criminal aliens. Thus, subsection (c)(1) limits subsec-
tion (a)’s first sentence by curbing the discretion to arrest:
16 NIELSEN v. PREAP
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The Secretary must arrest those aliens guilty of a predi-
cate offense. And subsection (c)(2) limits subsection (a)’s
second sentence by cutting back the Secretary’s discretion
over the decision to release: The Secretary may not release
aliens “described in” subsection (c)(1)—that is, those guilty
of a predicate offense. Accordingly, all the relevant de-
tainees will have been arrested by authority that springs
from subsection (a), and so, contrary to the Court of Ap-
peals’ view, that fact alone will not spare them from sub-
section (c)(2)’s prohibition on release. This reading com-
ports with the Government’s practice of applying to the
arrests of all criminal aliens certain procedural require-
ments, such as the need for a warrant, that appear only in
subsection (a). See Tr. of Oral Arg. 13–14.
The text of §1226 itself contemplates that aliens ar-
rested under subsection (a) may face mandatory detention
under subsection (c). The second sentence in subsection
(a)—which generally authorizes the Secretary to release
an alien pending removal proceedings—features an excep-
tion “as provided in subsection (c).” But if the Court of
Appeals were right that subsection (c)(2)’s prohibition on
release applies only to those arrested pursuant to subsec-
tion (c)(1), there would have been no need to specify that
such aliens are exempt from subsection (a)’s release provi-
sion. This shows that it is possible for those arrested
under subsection (a) to face mandatory detention under
subsection (c). We draw a similar inference from the fact
that subsection (c)(2), for its part, does not limit manda-
tory detention to those arrested “pursuant to” subsection
(c)(1) or “under authority created by” subsection (c)(1)—
but to anyone so much as “described in” subsection (c)(1).
This choice of words marks a contrast with Congress’s
reference—in the immediately preceding subsection—to
actions by the Secretary that are “authorized under” sub-
section (a). See §1226(b). Cf. 18 U. S. C. §3262(b) (refer-
ring to “a person arrested under subsection (a)” (emphasis
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ALITO, J.
added)). These textual cues indicate that even if an alien
was not arrested under authority bestowed by sub-
section (c)(1), he may face mandatory detention under
subsection (c)(2).
2
But even if the Court of Appeals were right to reject this
reading, the result below would be wrong. To see why,
assume with the Court of Appeals that only someone
arrested under authority created by §1226(c)(1)—rather
than the more general §1226(a)—may be detained without
a bond hearing. And assume that subsection (c)(1) re-
quires immediate arrest. Even then, the Secretary’s fail-
ure to abide by this time limit would not cut off her power
to arrest under subsection (c)(1). That is so because, as we
have held time and again, an official’s crucial duties are
better carried out late than never. See Sylvain v. Attorney
General of U. S., 714 F. 3d 150, 158 (CA3 2013) (collecting
cases). Or more precisely, a statutory rule that officials
“ ‘shall’ act within a specified time” does not by itself “pre-
clud[e] action later.” Barnhart v. Peabody Coal Co., 537
U. S. 149, 158 (2003).
Especially relevant here is our decision in United States
v. Montalvo-Murillo, 495 U. S. 711 (1990). There we held
that “a provision that a detention hearing ‘shall be held
immediately upon the [detainee’s] first appearance before
the judicial officer’ did not bar detention after a tardy
hearing.” Barnhart, 537 U. S., at 159 (quoting Montalvo-
Murillo, 495 U. S., at 714). In that case, we refused to
“bestow upon the defendant a windfall” and “visit upon the
Government and the citizens a severe penalty by mandat-
ing release of possibly dangerous defendants every time
some deviation from the [statutory] strictures . . . oc-
cur[red].” Montalvo-Murillo, 495 U. S., at 720. Instead,
we gave effect to the principle that “ ‘if a statute does not
specify a consequence for noncompliance with statutory
18 NIELSEN v. PREAP
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of the Court
ALITO, J.
timing provisions, the federal courts will not in the ordi-
nary course impose their own coercive sanction.’ ” Barn-
hart, 537 U. S., at 159 (quoting United States v. James
Daniel Good Real Property, 510 U. S. 43, 63 (1993)).
This principle for interpreting time limits on statutory
mandates was a fixture of the legal backdrop when Con-
gress enacted §1226(c). Cf. Woodford v. Garceau, 538
U. S. 202, 209 (2003) (relying on the “legal backdrop”
against which “Congress legislated” to clarify what Con-
gress enacted). Indeed, we have held of a statute enacted
just four years before §1226(c) that because of our case law
at the time—never since abrogated—Congress was “pre-
sumably aware that we do not readily infer congressional
intent to limit an agency’s power to get a mandatory job
done merely from a specification to act by a certain time.”
Barnhart, 537 U. S., at 160 (relying on Brock v. Pierce
County, 476 U. S. 253 (1986)). Here this principle entails
that even if subsection (c)(1) were the sole source of au-
thority to arrest aliens without granting them hearings,
that authority would not evaporate just because officials
had transgressed subsection (c)(1)’s command to arrest
aliens immediately “when . . . released.”
Respondents object that the rule invoked in Montalvo-
Murillo and related cases does not apply here. In those
cases, respondents argue, the governmental authority at
issue would have disappeared entirely if time limits were
enforced—whereas here the Secretary could still arrest
aliens well after their release under the general language
in §1226(a).
But the whole premise of respondents’ argument is that
if the Secretary could no longer act under §1226(c), she
would lose a specific power—the power to arrest and
detain criminal aliens without a bond hearing. If that is
so, then as in other cases, accepting respondents’ deadline-
based argument would be inconsistent with “the design
and function of the statute.” Montalvo-Murillo, 495 U. S.,
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Opinion of
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ALITO, J.
at 719. From Congress’s perspective, after all, it is irrele-
vant that the Secretary could go on detaining criminal
aliens subject to a bond hearing. Congress enacted man-
datory detention precisely out of concern that such indi-
vidualized hearings could not be trusted to reveal which
“deportable criminal aliens who are not detained” might
“continue to engage in crime [or] fail to appear for their
removal hearings.” Demore, 538 U. S., at 513. And having
thus required the Secretary to impose mandatory deten-
tion without bond hearings immediately, for safety’s sake,
Congress could not have meant for judges to “enforce” this
duty in case of delay by—of all things—forbidding its
execution. Cf. Montalvo-Murillo, 495 U. S., at 720 (“The
end of exacting compliance with the letter” of the Bail
Reform Act’s requirement that a defendant receive a
hearing immediately upon his first appearance before a
judicial officer “cannot justify the means of exposing the
public to an increased likelihood of violent crimes by per-
sons on bail, an evil the statute aims to prevent”).
Especially hard to swallow is respondents’ insistence
that for an alien to be subject to mandatory detention
under §1226(c), the alien must be arrested on the day he
walks out of jail (though respondents allow that it need
not be at the jailhouse door—the “parking lot” or “bus
stop” would do). Tr. of Oral Arg. 44. “Assessing the situa-
tion in realistic and practical terms, it is inevitable that”
respondents’ unsparing deadline will often be missed
for reasons beyond the Federal Government’s control.
Montalvo-Murillo, 495 U. S., at 720. Cf. Regions Hospital
v. Shalala, 522 U. S. 448, 459, n. 3 (1998) (“The Secre-
tary’s failure to meet the deadline, a not uncommon occur-
rence when heavy loads are thrust on administrators, does
not mean that [she] lacked power to act beyond it”). To
give just one example, state and local officials sometimes
rebuff the Government’s request that they give notice
when a criminal alien will be released. Indeed, over a
20 NIELSEN v. PREAP
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span of less than three years (from January 2014 to Sep-
tember 2016), the Government recorded “a total of 21,205
declined [requests] in 567 counties in 48 states including
the District of Columbia.” ICE, Fiscal Year 2016 ICE Enf.
and Removal Operations Rep. 9. Nor was such local re-
sistance unheard of when Congress enacted the language
of §1226(c) in 1996. See S. Rep. No. 104–48, p. 28 (1995).
Under these circumstances, it is hard to believe that Con-
gress made the Secretary’s mandatory-detention authority
vanish at the stroke of midnight after an alien’s release.
In short, the import of our case law is clear: Even if
subsection (c) were the only font of authority to detain
aliens without bond hearings, we could not read its “when
. . . released” clause to defeat officials’ duty to impose such
mandatory detention when it comes to aliens who are
arrested well after their release.
IV
Respondents protest that reading §1226(c) in the man-
ner set forth here would render key language superfluous,
lead to anomalies, and violate the canon of constitutional
avoidance. We answer these objections in turn.
A
According to respondents, the Government’s reading of
§1226(c) flouts the interpretive canon against surplus-
age—the idea that “every word and every provision is to be
given effect [and that n]one should needlessly be given an
interpretation that causes it to duplicate another provision
or to have no consequence.” Scalia, Reading Law, at 174.
See Kungys v. United States, 485 U. S. 759, 778 (1988)
(plurality opinion of Scalia, J.) (citing the “cardinal rule of
statutory interpretation that no provision should be con-
strued to be entirely redundant”). Respondents’ surplus-
age argument has two focal points.
First, respondents claim that if they face mandatory
Cite as: 586 U. S. ____ (2019) 21
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detention even though they were arrested well after their
release, then “when . . . released” adds nothing to para-
graph (1). In fact, however, it still has work to do. For one
thing, it clarifies when the duty to arrest is triggered:
upon release from criminal custody, not before such re-
lease or after the completion of noncustodial portions of a
criminal sentence (such as a term of “parole, supervised
release, or probation,” as the paragraph goes on to empha-
size). Thus, paragraph (1) does not permit the Secretary
to cut short an alien’s state prison sentence in order to
usher him more easily right into immigration detention—
much as another provision prevents officials from actually
removing an alien from the country “until the alien is
released from imprisonment.” 8 U. S. C. §1231(a)(4)(A).
And from the other end, as paragraph (1)’s language
makes clear, the Secretary need not wait for the sentenc-
ing court’s supervision over the alien to expire.
The “when . . . released” clause also serves another
purpose: exhorting the Secretary to act quickly. And this
point answers respondents’ second surplusage claim: that
the “Transition Period Custody Rules” enacted along with
§1226(c) would have been superfluous if §1226(c) did not
call for immediate arrests, since those rules authorized
delays in §1226(c)’s implementation while the Government
expanded its capacities. See Matter of Garvin-Noble, 21 I.
& N. Dec. 672, 675 (BIA 1997). This argument again
confuses what the Secretary is obligated to do with the
consequences that follow if the Secretary fails (for what-
ever reason) to fulfill that obligation. The transition rules
delayed the onset of the Secretary’s obligation to begin
making arrests as soon as covered aliens were released
from criminal custody, and in that sense they were not
superfluous.6 This is so even though, had the transition
——————
6 The dissent asks why Congress would have felt the need to provide
for a delay if it thought that either way, the Secretary would get to
22 NIELSEN v. PREAP
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rules not been adopted, the Secretary’s failure to make an
arrest immediately upon a covered alien’s release would
not have exempted the alien from mandatory detention
under §1226(c).
B
The Court of Appeals objected that the Government’s
reading of §1226(c) would have the bizarre result that
some aliens whom the Secretary need not arrest at all
must nonetheless be detained without a hearing if they
are arrested. 831 F. 3d, at 1201–1203. This rather com-
plicated argument, as we understand it, proceeds as fol-
lows. Paragraph (2) requires the detention of aliens “de-
scribed in paragraph (1).” While most of the aliens
described there have been convicted of a criminal offense,
this need not be true of aliens captured by subparagraph
(D) in particular—which covers, for example, aliens who
are close relatives of terrorists and those who are believed
likely to commit a terrorist act. See §1182(a)(3)(B)(i)(IX).
But if, as the Government maintains, any alien who falls
under subparagraphs (A)–(D) is thereby ineligible for
release from immigration custody, then the Secretary
would be forbidden to release even these aliens who were
——————
deny a hearing to aliens arrested well after release. Post, at 10; see
also post, at 13–14. The answer is that Congress does not draft legisla-
tion in the expectation that the Executive will blow through the dead-
lines it sets. That is why Congress specifies any deadlines for executive
duties at all; and here it explains why Congress furthermore provided
that the deadline it set for this particular duty (to arrest criminal aliens
upon their release) would not take effect right away.
In fact, if the dissent’s argument from the transition rules were
sound—i.e., if textual evidence that Congress expects the Executive to
meet a deadline (once it officially takes effect) were proof that Congress
wanted the deadline enforced by courts—then every case involving an
express statutory deadline would be one in which Congress intended for
courts to enforce the deadline. But this would include, by definition, all
of the loss-of-authority cases we discussed above, see Part III–B–2,
supra—a long line of precedent that the dissent does not question.
Cite as: 586 U. S. ____ (2019) 23
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never convicted or perhaps even charged with a crime,
once she arrested them. Yet she would be free not to
arrest them to begin with (or so the Court of Appeals
assumed), since she is obligated to arrest aliens “when . . .
released,” and there was no prior custody for these aliens
to be “released” from. Therefore, the court concluded, the
Government’s position has the absurd implication that
aliens who were never charged with a crime need not be
arrested pending a removal determination, but if they are
arrested, they must be detained and cannot be released on
bond or parole.
We agree that it would be very strange for Congress to
forbid the release of aliens who need not be arrested in the
first place, but the fact is that the Government’s reading
(and ours) does not have that incongruous result. The real
anomalies here would flow instead from the Court of
Appeals’ interpretation.
To begin with the latter point: Under the Court of Ap-
peals’ reading, the mandatory-detention scheme would be
gentler on terrorists than it is on garden-variety offenders.
To see why, recall first that subparagraphs (A)–(C) cover
aliens who are inadmissible or deportable based on the
commission of certain criminal offenses, and there is no
dispute that the statute authorizes their mandatory de-
tention when they are released from criminal custody.
And the crimes covered by these subparagraphs include,
for example, any drug offense by an adult punishable by
more than one year of imprisonment, see §§1182(a)(2),
1226(c)(1)(A), as well as a variety of tax offenses, see
§§1226(c)(1)(B), 1227(a)(2)(A)(iii); Kawashima v. Holder,
565 U. S. 478 (2012). But notice that aliens who fall
within subparagraph (D), by contrast, may never have been
arrested on criminal charges—which according to the
court below would exempt them from mandatory deten-
tion. Yet this subparagraph covers the very sort of aliens
for which Congress was most likely to have wanted to
24 NIELSEN v. PREAP
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require mandatory detention—including those who are
representatives of a terrorist group and those whom the
Government has reasonable grounds to believe are likely
to engage in terrorist activities. See §§1182(a)(3)(B)(i)(III),
(IV), 1226(c)(1)(D).7 Thus, by the Court of Appeals’ logic,
Congress chose to spare terrorist aliens from the rigors of
mandatory detention—a mercy withheld from almost all
drug offenders and tax cheats. See Brief for National
Immigrant Justice Center as Amicus Curiae 7–8. That
result would be incongruous.
Along similar lines, note that one §1226(c)(1) predicate
reaches aliens who necessarily escape conviction: those
“for whom immunity from criminal jurisdiction was exer-
cised.” §1182(a)(2)(E)(ii). See §1226(c)(1)(A). And other
predicates sweep in aliens whom there is no reason to
expect police (as opposed to immigration officials) will
have reason to arrest: e.g., the “spouse or child of an
alien” who recently engaged in terrorist activity.
§1182(a)(3)(B)(i)(IX); see §1226(c)(1)(D). It would be point-
less for Congress to have covered such aliens in subsec-
tions (c)(1)(A)–(D) if subsection (c)’s mandates applied only
to those emerging from jail.
Thus, contrary to the Court of Appeals’ interpretation of
the “when released” clause as limiting the class of aliens
subject to mandatory detention, we read subsection (c)(1)
to specify the timing of arrest (“when the alien is re-
leased”) only for the vast majority of cases: those involving
criminal aliens who were once in criminal custody. The
paragraph simply does not speak to the timeline for ar-
resting the few who had no stint in jail. (And why should
——————
7 In Alafyouny, 2006 WL 1581959, for example, an alien subject to
mandatory detention had not been charged with any crime. Rather, in
a hearing to consider his application for adjustment of status, an
immigration judge found that the alien had engaged in terrorism-
related activity identified in §1182(a)(3)(B)(iv)(IV)(cc), which qualified
him for mandatory detention under §1226(c)(1)(D). Id., at *3, *24.
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it? Presumably they—unlike those serving time—are to
be detained as they come across the Government’s radar
and any relevant evidentiary standards are satisfied.8)
In short, we read the “when released” directive to apply
when there is a release. In other situations, it is simply
not relevant. It follows that both of subsection (c)’s man-
dates—for arrest and for release—apply to any alien
linked with a predicate offense identified in subpara-
graphs (A)–(D), regardless of exactly when or even whether
the alien was released from criminal custody.
C
Finally, respondents perch their reading of §1226(c)—
unsteadily, as it turns out—on the canon of constitutional
avoidance. This canon provides that “[w]hen ‘a serious
doubt’ is raised about the constitutionality of an act of
Congress, ‘. . . this Court will first ascertain whether a
construction of the statute is fairly possible by which the
question may be avoided.’ ” Jennings, 583 U. S., at ___
(slip op., at 12) (quoting Crowell v. Benson, 285 U. S. 22,
62 (1932)).
Respondents say we should be uneasy about endorsing
any reading of §1226(c) that would mandate arrest and
detention years after aliens’ release from criminal cus-
tody—when many aliens will have developed strong ties to
the country and a good chance of being allowed to stay if
given a hearing. At that point, respondents argue, man-
datory detention may be insufficiently linked to public
benefits like protecting others against crime and ensuring
that aliens will appear at their removal proceedings. In
respondents’ view, detention in that scenario would raise
——————
8 See n. 7, supra. Detainees who deny that they satisfy any §1226(c)
predicate may challenge their mandatory detention in a Joseph hear-
ing. See Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999). See also
Jennings v. Rodriguez, 583 U. S. ___, ___, n. 1 (2018) (slip op., at 5,
n. 1).
26 NIELSEN v. PREAP
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constitutional doubts under Zadvydas v. Davis, 533 U. S.
678 (2001), which held that detention violates due process
absent “adequate procedural protections” or “special justi-
fication[s]” sufficient to outweigh one’s “ ‘constitutionally
protected interest in avoiding physical restraint,’ ” id., at
690 (quoting Kansas v. Hendricks, 521 U. S. 346, 356
(1997)). Thus, respondents urge, we should adopt a read-
ing of §1226(c)—their reading—that avoids this result.
The trouble with this argument is that constitutional
avoidance “ ‘comes into play only when, after the applica-
tion of ordinary textual analysis, the statute is found to be
susceptible of more than one construction.’ ” Jennings, 583
U. S., at ___ (slip op., at 12). The canon “has no applica-
tion” absent “ambiguity.” Warger v. Shauers, 574 U. S. 40,
50 (2014) (internal quotation marks omitted). See also
Zadvydas, 533 U. S., at 696 (“Despite this constitutional
problem, if Congress has made its intent in the statute
clear, we must give effect to that intent” (internal quota-
tion marks omitted)). Here the text of §1226 cuts clearly
against respondents’ position, see Part III, supra, making
constitutional avoidance irrelevant.
We emphasize that respondents’ arguments here have
all been statutory. Even their constitutional concerns are
offered as just another pillar in an argument for their
preferred reading of the language of §1226(c)—an idle
pillar here because the statute is clear. While respondents
might have raised a head-on constitutional challenge to
§1226(c), they did not. Our decision today on the meaning
of that statutory provision does not foreclose as-applied
challenges—that is, constitutional challenges to applica-
tions of the statute as we have now read it.
* * *
The judgments of the Court of Appeals for the Ninth
Circuit are reversed, and the cases are remanded for
further proceedings.
It is so ordered.
Cite as: 586 U. S. ____ (2019) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1363
_________________
KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND
SECURITY, ET AL., PETITIONERS v.
MONY PREAP, ET AL.
BRYAN WILCOX, ACTING FIELD OFFICE DIRECTOR,
IMMIGRATION AND CUSTOMS ENFORCEMENT,
ET AL., PETITIONERS v. BASSAM YUSUF
KHOURY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 19, 2019]
JUSTICE KAVANAUGH, concurring.
I write separately to emphasize the narrowness of the
issue before us and, in particular, to emphasize what this
case is not about.
This case is not about whether a noncitizen may be
removed from the United States on the basis of criminal
offenses. Under longstanding federal statutes, the Execu-
tive Branch may remove noncitizens from the United
States when the noncitizens have been convicted of certain
crimes, even when the crimes were committed many years
ago.
This case is also not about whether a noncitizen may be
detained during removal proceedings or before removal.
Congress has expressly authorized the Executive Branch
to detain noncitizens during their removal proceedings
and before removal. 8 U. S. C. §§1226(a), (c), and 1231(a).
This case is also not about how long a noncitizen may be
detained during removal proceedings or before removal.
We have addressed that question in cases such as
Zadvydas v. Davis, 533 U. S. 678 (2001), Clark v. Mar-
2 NIELSEN v. PREAP
KAVANAUGH, J., concurring
tinez, 543 U. S. 371 (2005), and Jennings v. Rodriguez, 583
U. S. ___ (2018).
This case is also not about whether Congress may man-
date that the Executive Branch detain noncitizens during
removal proceedings or before removal, as opposed to
merely giving the Executive Branch discretion to detain.
It is undisputed that Congress may mandate that the
Executive Branch detain certain noncitizens during re-
moval proceedings or before removal. Congress has in fact
mandated detention of certain noncitizens who have been
in criminal custody and who, upon their release, would
pose a danger to the community or risk of flight. As
relevant here, Congress has mandated detention “when”
such noncitizens are “released” from criminal custody.
8 U. S. C. §1226(c)(1).
The sole question before us is narrow: whether, under
§1226, the Executive Branch’s mandatory duty to detain a
particular noncitizen when the noncitizen is released from
criminal custody remains mandatory if the Executive
Branch fails to immediately detain the noncitizen when
the noncitizen is released from criminal custody—for
example, if the Executive Branch fails to immediately
detain the noncitizen because of resource constraints or
because the Executive Branch cannot immediately locate
and apprehend the individual in question. No constitu-
tional issue is presented. The issue before us is entirely
statutory and requires our interpretation of the strict 1996
illegal-immigration law passed by Congress and signed by
President Clinton. Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996, 110 Stat. 3009–546.
It would be odd, in my view, if the Act (1) mandated
detention of particular noncitizens because the noncitizens
posed such a serious risk of danger or flight that they
must be detained during their removal proceedings, but (2)
nonetheless allowed the noncitizens to remain free during
their removal proceedings if the Executive Branch failed
Cite as: 586 U. S. ____ (2019) 3
KAVANAUGH, J., concurring
to immediately detain them upon their release from crimi-
nal custody. Not surprisingly, the Act does not require
such an odd result. On the contrary, the relevant text of
the Act is relatively straightforward, as the Court ex-
plains. Interpreting that text, the Court correctly holds
that the Executive Branch’s detention of the particular
noncitizens here remained mandatory even though the
Executive Branch did not immediately detain them. I
agree with the Court’s careful statutory analysis, and I
join the Court’s opinion in full.
Cite as: 586 U. S. ____ (2019) 1
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1363
_________________
KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND
SECURITY, ET AL., PETITIONERS v.
MONY PREAP, ET AL.
BRYAN WILCOX, ACTING FIELD OFFICE DIRECTOR,
IMMIGRATION AND CUSTOMS ENFORCEMENT,
ET AL., PETITIONERS v. BASSAM YUSUF
KHOURY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 19, 2019]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
concurring in part and concurring in the judgment.
I continue to believe that no court has jurisdiction to
decide questions concerning the detention of aliens before
final orders of removal have been entered. See Jennings v.
Rodriguez, 583 U. S. ___, ___–___ (2018) (THOMAS, J.,
concurring in part and concurring in judgment) (slip op.,
at 1–11). By my count, Congress has erected at least three
barriers to our review of the merits, and I also question
whether Article III jurisdiction existed at the time of class
certification. Nonetheless, because the Court has held
that we have jurisdiction in cases like these, and because I
largely agree with the Court’s resolution of the merits, I
join all but Parts II and III–B–2 of the Court’s opinion.
I
Respondents consist of two classes of aliens who com-
mitted criminal offenses that require the Secretary of
Homeland Security to detain them without a bond hearing
2 NIELSEN v. PREAP
Opinion of THOMAS, J.
under 8 U. S. C. §1226(c), but who were not detained
immediately upon release from criminal custody. Re-
spondents argued that, by failing to immediately detain
them, the Secretary lost the authority to deny them a bond
hearing when they were rearrested.
The first class action was brought in the Northern Dis-
trict of California and has three class representatives.
One of the plaintiffs, Mony Preap, received cancellation of
removal and was not in immigration custody at the time of
certification. The other two, Eduardo Vega Padilla and
Juan Lozano Magdaleno, had received bond hearings as
required by a Ninth Circuit decision, Rodriguez v. Rob-
bins, 715 F. 3d 1127, 1138 (2013); Padilla had been re-
leased, while Magdaleno was denied release. The District
Court certified a class of all aliens in California who are or
will be subjected to mandatory detention under §1226(c)
and who were not or will not have been taken into custody
by the Government immediately upon their release from
criminal custody for a §1226(c)(1) offense. The court is-
sued a preliminary injunction requiring the Government
to provide all class members with bond hearings under
§1226(a).
The second class action was brought in the Western
District of Washington and also has three class represent-
atives: Bassam Yusuf Khoury and Alvin Rodriguez Moya,
who had been released on bond before class certification
after their Rodriguez hearings, and Pablo Carrera Zavala,
who was released before class certification because the
Department of Homeland Security determined that he had
not committed a predicate §1226(c)(1) offense. The Dis-
trict Court certified a class of all aliens in its judicial
district who were not detained immediately upon their
release from criminal custody but were subjected to man-
datory detention under §1226(c). The court entered a
declaratory judgment barring the Government from sub-
jecting class members to detention under §1226(c) unless
Cite as: 586 U. S. ____ (2019) 3
Opinion of THOMAS, J.
it took the alien into custody immediately upon release.
II
At least three statutory provisions limit judicial review
here, and I am skeptical whether the District Courts had
Article III jurisdiction to certify the classes.
A
First, §1252(b)(9) bars judicial review of “all questions of
law and fact, including interpretation and application of
constitutional and statutory provisions, arising from any
action taken or proceeding brought to remove an alien
from the United States,” except for review of “a final or-
der” or other circumstances not present here. These cases
raise questions of law or fact arising from removal pro-
ceedings—“[d]etention is necessarily a part of [the] depor-
tation procedure” that culminates in the removal of the
alien, Carlson v. Landon, 342 U. S. 524, 538 (1952)—and
they do not come to us on review of final orders of removal.
Thus, for the reasons I set forth in Jennings, supra, at
___–___ (slip op., at 1–11), no court has jurisdiction over
these class actions.
B
Second, §1226(e) provides that “[n]o court may set aside
any action or decision by the [Secretary] under this section
regarding the detention or release of any alien or the
grant, revocation, or denial of bond or parole.” (Emphasis
added.) This provision “unequivocally deprives federal
courts of jurisdiction to set aside ‘any action or decision’ by
the [Secretary]” regarding detention, discretionary or
otherwise. Demore v. Kim, 538 U. S. 510, 533 (2003)
(O’Connor, J., concurring in part and concurring in judg-
ment); see Jennings, supra, at ___, n. 6 (slip op., at 11,
n. 6). The Court once again reads this language as per-
mitting judicial review for challenges to the “statutory
framework as a whole.” Ante, at 7 (internal quotation
4 NIELSEN v. PREAP
Opinion of THOMAS, J.
marks omitted). But the text of the statute contains no
such exception. Accordingly, I continue to think that no
court has jurisdiction over these kinds of actions.
C
Third, §1252(f )(1) deprives district courts of “jurisdic-
tion or authority to enjoin or restrain the operation of
[§§1221–1232] other than with respect to the application
of such provisions to an individual alien against whom
proceedings under [§§1221–1232] have been initiated.”
The text of §1252(f )(1) explicitly prohibits the classwide
injunctive relief ordered by the Northern District of Cali-
fornia in this instance, given that the class includes fu-
ture, yet-to-be detained aliens against whom proceedings
have not been initiated. See Reno v. American-Arab Anti-
Discrimination Comm., 525 U. S. 471, 481 (1999) (explain-
ing that §1252(f )(1) “prohibits federal courts from grant-
ing classwide injunctive relief against the operation of
§§1221–1231”). The District Court relied on Rodriguez v.
Hayes, 591 F. 3d 1105 (CA9 2010), which held that this
provision does not affect authority to enjoin alleged viola-
tions of the specified statutes because those claims do not
“seek to enjoin the operation of the immigration detention
statutes, but to enjoin conduct . . . not authorized by the
statutes.” Id., at 1120. This reasoning is circular and
unpersuasive. Many claims seeking to enjoin or restrain
the operation of the relevant statutes will allege that the
Executive’s action does not comply with the statutory
grant of authority, but the text clearly bars jurisdiction to
enter an injunction “[r]egardless of the nature of the ac-
tion or claim.” Although the Court avoids deciding whether
§1252(f )(1) prevented the District Court’s injunction here,
ante, at 8, I would hold that it did.
D
Finally, I harbor two concerns about whether the class
Cite as: 586 U. S. ____ (2019) 5
Opinion of THOMAS, J.
actions were moot at the time of certification. First, as the
Court recognizes, class actions are ordinarily “moot if no
named class representative with an unexpired claim re-
main[s] at the time of class certification.” United States v.
Sanchez-Gomez, 584 U. S. ___, ___ (2018) (slip op., at 4);
ante, at 9. At the time of class certification, all six of the
named plaintiffs had received bond hearings or cancella-
tion of removal. As I understand the plaintiffs’ argu-
ments, that was the full relief that they sought: “individu-
alized bond hearings where they may attempt to prove
that their release would not create a risk of flight or dan-
ger to the public.” Motion for Class Certification in Preap
v. Beers, No. 4:13–cv–5754 (ND Cal.), Doc. 8, p. 8; see
Complaint for Injunctive and Declaratory Relief in Preap,
supra, Doc. 1, p. 3 (seeking “immediate individualized
bond hearings”); First Amended Class Action Complaint in
Khoury v. Asher, No. 2:13–cv–1367 (WD Wash.), Doc. 19,
p. 13 (requesting relief of “individualized bond hearings to
all Plaintiffs”). The Court concludes that some of the
named plaintiffs still faced the threat of rearrest and
mandatory detention at the time of class certification
because the bond hearings that they received were pro-
vided as part of a preliminary injunction in a separate case
that was later dissolved. But whether the plaintiffs actu-
ally faced that threat has not been addressed by the par-
ties, and I question whether this future contingency was
sufficiently imminent to support Article III jurisdiction.
If the threat of rearrest and mandatory detention was
too speculative to support jurisdiction, I disagree with the
Court that our jurisdiction would be saved by our prece-
dent on transitory claims. Ante, at 9–10. We have held
that a court has Article III jurisdiction to certify a class
action when the named plaintiffs’ claims have become
moot if the claim is “so inherently transitory that the trial
court will not have even enough time to rule on a motion
for class certification before the proposed representative’s
6 NIELSEN v. PREAP
Opinion of THOMAS, J.
individual interest expires.” United States Parole Comm’n
v. Geraghty, 445 U. S. 388, 399 (1980). The “inherently
transitory” exception is measured from the time that the
complaint is filed to the court’s ruling on the motion for
class certification. See Genesis HealthCare Corp. v.
Symczyk, 569 U. S. 66, 75–77 (2013). In other words, the
named plaintiff ’s standing in a class action need not exist
throughout the lifecycle of the entire lawsuit. Here, Mem-
bers of the Court have recognized that aliens are held, on
average, for one year, and sometimes longer. See Jen-
nings, 583 U. S., at ___ (BREYER, J., dissenting) (slip op.,
at 3) (noting that detention for aliens is “often lengthy,”
sometimes lasting years). I am not persuaded that the
plaintiffs’ claims are so “inherently transitory” as to pre-
clude a ruling on class certification, especially since both
District Courts certified the classes here within a year of
the filing of the complaints. Cf. County of Riverside v.
McLaughlin, 500 U. S. 44, 47, 52 (1991) (finding jurisdic-
tion over a class action that challenged a county’s failure
to provide “prompt” probable-cause hearings within the
48-hour window for arraignments, as required by state
law).
* * *
Because three statutes deprive courts of jurisdiction
over respondents’ claims, I would have vacated the judg-
ments below and remanded with instructions to dismiss
the cases for lack of jurisdiction. But because the Court
has held otherwise and I agree with the Court’s disposi-
tion of the merits, I concur in all but Parts II and III–B–2
of its opinion.
Cite as: 586 U. S. ____ (2019) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1363
_________________
KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND
SECURITY, ET AL., PETITIONERS v.
MONY PREAP, ET AL.
BRYAN WILCOX, ACTING FIELD OFFICE DIRECTOR,
IMMIGRATION AND CUSTOMS ENFORCEMENT,
ET AL., PETITIONERS v. BASSAM YUSUF
KHOURY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 19, 2019]
JUSTICE BREYER, with whom JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
A provision of the Immigration and Nationality Act, 8
U. S. C. §1226(c), focuses upon potentially deportable
noncitizens who have committed certain offenses or have
ties to terrorism. It requires the Secretary of Homeland
Security to take those aliens into custody “when . . . re-
leased” from prison and to hold them without a bail hear-
ing until Government authorities decide whether to deport
them. The question is whether this provision limits the
class of persons in the “no-bail-hearing” category to only
those aliens who were taken into custody “when . . . re-
leased” from prison, or whether it also places in that “no-
bail-hearing” category those aliens who were taken into
custody years or decades after their release from prison.
The critical statutory language is contained in para-
graph (2) of this provision. That paragraph says (with one
exception not relevant here) that “an alien described in
paragraph (1)” must be held without a bail hearing. Here
we must decide what these words mean. Do the words “an
2 NIELSEN v. PREAP
BREYER, J., dissenting
alien described in paragraph (1)” refer only to those aliens
whom the Secretary, following paragraph (1)’s instruc-
tions, has “take[n] into custody . . . when the alien is re-
leased” from, say, state or federal prison? Or do these
words refer instead to all aliens who have ever committed
one of the offenses listed in paragraph (1), regardless of
when these aliens were “released” from prison?
For present purposes, I accept the Court’s holding in
Jennings v. Rodriguez, 583 U. S. ___ (2018), that para-
graph (2) forbids bail hearings for aliens “described in
paragraph (1).” But see id., at ___ (BREYER, J., dissenting)
(slip op., at 2) (interpreting paragraph (2) as not forbid-
ding bail hearings, as the Constitution likely requires
them); id., at ___ (majority opinion) (slip op., at 29) (declin-
ing to reach constitutional question). Here, however, the
Court goes much further. The majority concludes that
paragraph (2) forbids bail hearings for aliens regardless of
whether they are taken into custody “when . . . released”
from prison. Under the majority’s view, the statute for-
bids bail hearings even for aliens whom the Secretary has
detained years or decades after their release from prison.
The language of the statute will not bear the broad
interpretation the majority now adopts. Rather, the ordi-
nary meaning of the statute’s language, the statute’s
structure, and relevant canons of interpretation all argue
convincingly to the contrary. I respectfully dissent.
I
A
The relevant statute, 8 U. S. C. §1226, is entitled “Ap-
prehension and detention of aliens.” See Appendix A,
infra. Its first subsection, subsection (a), is entitled “Ar-
rest, detention, and release.” Subsection (a) sets forth the
background rule. It gives the Secretary of Homeland
Security (formerly the Attorney General) the authority to
“arres[t] and detai[n]” an “alien . . . pending a decision on
Cite as: 586 U. S. ____ (2019) 3
BREYER, J., dissenting
whether the alien is to be removed from the United
States.” §1226(a). See ante, at 3, n. 2. It adds that the
Secretary “may release the alien” on “bond” or “conditional
parole.” §1226(a)(2). Federal regulations provide that a
person detained under this subsection must receive a bail
hearing. 8 CFR §§236.1(d)(1), 1236.1(d)(1) (2018). With
respect to release, however, subsection (a) adds the words
“[e]xcept as provided in subsection (c).” 8 U. S. C.
§1226(a).
The subsection containing the exception to which (a)
refers—namely, subsection (c)—is entitled “Detention of
criminal aliens.” It consists of two paragraphs.
Paragraph (1), entitled “Custody,” says that the Secre-
tary “shall take into custody any alien who” is “inadmissi-
ble” or “deportable” (by reason of having committed cer-
tain offenses or having ties to terrorism) “when the alien is
released,” presumably from local, state, or federal criminal
custody. §1226(c)(1) (emphasis added). Because the rele-
vant offenses are listed in four subparagraphs headed by
the letters “A,” “B,” “C,” and “D,” I shall refer to the rele-
vant aliens as “ABCD” aliens. Thus, for present purposes,
paragraph (1) says that the Secretary “shall take into
custody any” ABCD alien “when the alien is released” from
criminal custody.
Paragraph (2), entitled “Release,” says that the Secre-
tary “may release an alien described in paragraph (1) only
if ” the alien falls within a special category—not relevant
here—related to witness protection. §1226(c)(2) (emphasis
added). We held last Term in Jennings that paragraph (2)
forbids a bail hearing for “an alien described in paragraph
(1)” unless the witness protection exception applies. 583
U. S., at ___–___ (majority opinion) (slip op., at 20–22).
Here we focus on the meaning of a key phrase in para-
graph (2): “an alien described in paragraph (1).” This is
the phrase that identifies the aliens to whom paragraph
(2) (and its “no-bail-hearing” requirement) applies. Does
4 NIELSEN v. PREAP
BREYER, J., dissenting
paragraph (1) “describ[e]” all ABCD aliens, even those
whom the Secretary has “take[n] into custody” many years
after their release from prison? Or does it “describ[e]” only
those aliens whom the Secretary has “take[n] into cus-
tody . . . when the alien [was] released” from prison?
B
The issue may sound technical. But it is extremely
important. That is because the Government’s reading of
the statute—namely, that paragraph (2) forbids bail hear-
ings for all ABCD aliens regardless of whether they were
detained “when . . . released” from criminal custody—
would significantly expand the Secretary’s authority to
deny bail hearings. Under the Government’s view, the
aliens subject to detention without a bail hearing may
have been released from criminal custody years earlier,
and may have established families and put down roots in a
community. These aliens may then be detained for
months, sometimes years, without the possibility of re-
lease; they may have been convicted of only minor
crimes—for example, minor drug offenses, or crimes of
“moral turpitude” such as illegally downloading music or
possessing stolen bus transfers; and they sometimes may
be innocent spouses or children of a suspect person.
Moreover, for a high percentage of them, it will turn out
after months of custody that they will not be removed from
the country because they are eligible by statute to receive
a form of relief from removal such as cancellation of re-
moval. These are not mere hypotheticals. See Appendix
B, infra. Thus, in terms of potential consequences and
basic American legal traditions, see infra, at 11–12, the
question before us is not a “narrow” one, ante, at 2
(KAVANAUGH, J., concurring).
Why would Congress have granted the Secretary such
broad authority to deny bail hearings, especially when
doing so would run contrary to basic American and
Cite as: 586 U. S. ____ (2019) 5
BREYER, J., dissenting
common-law traditions? See Jennings, supra, at ___–___
(BREYER, J., dissenting) (slip op., at 8–10). The answer is
that Congress did not do so. Ordinary tools of statutory
interpretation demonstrate that the authority Congress
granted to the Secretary is far more limited.
II
The statute’s language, its structure, and relevant
canons of interpretation make clear that the Secretary
cannot hold an alien without a bail hearing unless the
alien is “take[n] into custody . . . when the alien is re-
leased” from criminal custody. §1226(c)(1).
A
Consider the statute’s language. Paragraph (1) of sub-
section (c) provides that the Secretary “shall take into
custody” any ABCD alien—that is, any alien who is “in-
admissible” or “deportable” under the subparagraphs
labeled “A,” “B,” “C,” and “D”—“when the alien is released”
from, say, state or federal prison. Ibid. Paragraph (2),
meanwhile, generally forbids a bail hearing for “an alien
described in paragraph (1).” §1226(c)(2).
The key phrase in paragraph (2) is “an alien described in
paragraph (1).” As a matter of ordinary meaning and
usage, the words “take into custody . . . when the alien is
released” in paragraph (1) form part of the description of
the “alien”: An “alien described in paragraph (1)” is an
ABCD alien whom the Secretary has “take[n] into cus-
tody . . . when the alien is released” from prison.
The majority emphasizes a grammatical point—namely,
that ordinarily only adjectives or adjectival phrases “modify”
nouns. Ante, at 12. But the statute does not use the word
“modify.” It uses the word “described.” While the word
“describe” will in some contexts refer only to the words
that directly “modify” a noun, normally it has a broader
meaning. Compare American Heritage Dictionary 490
6 NIELSEN v. PREAP
BREYER, J., dissenting
(5th ed. 2011) (to “describe” is to “convey an idea or im-
pression of ”) and Webster’s Third New International
Dictionary 610 (1986) (to “describe” is to “convey an image
or notion of ”) with P. Peters, The Cambridge Guide to
English Usage 355 (2004) (defining a “modifie[r]” as a
word that “qualifies” a noun).
The common rules of grammar make the broad scope of
the word “described” obvious. They demonstrate that a
noun often is “described” by more than just the adjectives
that modify it. Consider the following sentence: “The well-
behaved child was taken by a generous couple to see Ham-
ilton.” That sentence, written in the passive voice, de-
scribes the “child” not only as “well-behaved” but also as
someone “taken by a generous couple to see Hamilton.”
The description of the child would not differ were we to
write the sentence in the active voice: “The generous
couple took the well-behaved child to see Hamilton.” The
action taken by the “generous couple” (“took . . . to see
Hamilton”) still “describes” the “child,” even though these
words do not “modify” the word “child.” That is because a
person who has been subjected to an action can be de-
scribed by that action no less than by an adjective. See
Peters, supra, at 386 (describing such a person as someone
“affected by the action”); B. Garner, The Chicago Guide to
Grammar, Usage, and Punctuation 452 (2016) (describing
such a person as someone who “is acted on by or receives
the action”); see also R. Huddleston & G. Pullum, The
Cambridge Grammar of the English Language 1436 (2002)
(noting the “large-scale overlap” between adjectives and
certain verb forms).
An example illustrates how these principles apply to the
statute at issue here. Imagine the following cookbook
recipe. Instruction (1) says: “(1) Remove the Angus steak
from the grill when the steak is cooked to 120 degrees
Fahrenheit.” Instruction (4) says: “(4) Let the steak de-
scribed in Instruction (1) rest for ten minutes and then
Cite as: 586 U. S. ____ (2019) 7
BREYER, J., dissenting
serve it.” What would we say of a chef who grilled an
Angus steak to 185 degrees Fahrenheit, served it, and
then appealed to these instructions—particularly the word
“described” in Instruction (4)—as a justification? That he
was not a good cook? That he had an odd sense of humor?
Or simply that he did not understand the instructions?
The chef would have no good textual defense: The steak
“described in Instruction (1)” is not just an “Angus” steak,
but an “Angus” steak that must be “remove[d] . . . when
the steak is cooked to 120 degrees Fahrenheit.” By the
same logic, the alien in paragraph (1) is “described” not
only by the four clauses—A, B, C, and D—that directly
modify the word “alien,” but also by the verb (“shall take”)
and that verb’s modifier (“when the alien is released”).
The majority argues that “the crucial point” is that the
phrase “when the alien is released” plays “no role in iden-
tifying for the Secretary which aliens she must immediately
arrest.” Ante, at 13. That may be so. But why is that a
“crucial point” in the majority’s favor? After all, in the
example above, the words “[r]emove . . . from the grill
when the steak is cooked to 120 degrees Fahrenheit” do
not tell our chef what kind of steak to cook in the first
place. (The word “Angus” does that.) Even so, those
words still “describe” the steak that must be served in
Instruction (4). Why? Because by the time our chef gets
to Instruction (4), the recipe contemplates that the action
in Instruction (1) has been completed. At that point, the
“steak described in Instruction (1)” is a steak that has
been cooked in the manner mandated by Instruction (1).
The same is true of the two paragraphs before us. The
key word “described” appears not in paragraph (1), but in
paragraph (2). Paragraph (2) refers back to the entirety of
paragraph (1). And because paragraph (2) is the release
provision, it contemplates that the action mandated by
paragraph (1)—namely, detention—has already occurred.
Thus, the function of the phrase “an alien described in
8 NIELSEN v. PREAP
BREYER, J., dissenting
paragraph (1)” is not to describe who must be detained,
but instead to describe who must be denied bail.
In short, the language demonstrates that an alien is
“described in paragraph (1)”—and therefore subject to
paragraph (2)’s bar on bail hearings—only if the alien is
“take[n] into custody . . . when the alien is released.”
B
The statute’s structure and context support this reading
of the phrase “an alien described in paragraph (1).”
First, “Congress often drafts statutes with hierarchical
schemes—section, subsection, paragraph, and on down the
line.” NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017)
(slip op., at 9). Congress employed that structure “to make
precise cross-references” throughout the immigration code.
Ibid. As relevant here, in a different detention provision
enacted alongside the provision at issue here, Congress
said that the Government “may release the alien only if
the alien is an alien described in subparagraph (A)(ii) or
(A)(iii).” Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), §303(b)(3)(B), 110
Stat. 3009–587. Yet Congress did not make such a precise
cross-reference in paragraph (2): It did not refer to “an
alien described in subparagraphs (A)–(D) of paragraph
(1),” as it could have—and would have—done had it in-
tended the majority’s narrow interpretation. Instead, it
referred to aliens “described” in the entirety of paragraph
(1).
We usually “presume differences in language like this
convey differences in meaning.” Henson v. Santander
Consumer USA Inc., 582 U. S. ___, ___ (2017) (slip op., at
6). The cross-reference to all of paragraph (1) reinforces
that “an alien described in paragraph (1)” is not just an
ABCD alien, but an ABCD alien whom (in the words of
paragraph (1)) the Secretary “take[s] into custody . . .
when the alien is released” from criminal confinement.
Cite as: 586 U. S. ____ (2019) 9
BREYER, J., dissenting
Second, consider the structural similarity between
subsections (a) and (c). See Appendix A, infra. The first
sentence of subsection (a) sets forth a detention rule: An
“alien may be arrested and detained” pending a decision
on the alien’s removal. 8 U. S. C. §1226(a). And the sec-
ond sentence sets forth a release rule that allows for re-
lease on bond and parole. Ibid. Subsection (c) has a paral-
lel structure. The first sentence (namely, paragraph (1))
says that the Secretary must “take into custody” a subset
of those aliens “when the alien is released” from criminal
custody. §1226(c)(1). And the second sentence (namely,
paragraph (2)) sets forth the rule that “an alien described
in paragraph (1)” generally may not be released.
§1226(c)(2).
It is obvious that the second sentence of (a) applies only
to those aliens who are detained following the rule in (a)’s
first sentence. Parallel structure suggests that the same
is true in (c): The second sentence of (c) applies only to
those detained following the rule in (c)’s first sentence.
Subsection (a)’s reference to (c) strengthens this structural
inference: Subsection (a) says that its release rule applies
“[e]xcept as provided in subsection (c)”—that is, except as
provided in the whole of subsection (c), not simply para-
graph (2) or the few lines the majority picks from (c)’s text.
Thus, the release rule in each subsection (the second
sentence) applies only if the Secretary complies with the
detention rule in that subsection (the first sentence). In
light of “the parallel structures of these provisions,” it
would “flou[t] the text” to find that an alien is subject to
(c)’s release rule, which forbids release, without also find-
ing that the alien was detained in accordance with (c)’s
detention rule, which requires the alien to be detained
“when . . . released.” Chan v. Korean Air Lines, Ltd., 490
U. S. 122, 132 (1989).
The majority responds that subsections (a) and (c) do
not “establis[h] separate sources of arrest and release
10 NIELSEN v. PREAP
BREYER, J., dissenting
authority,” and that (c) is merely “a limit” on the authority
granted by (a). Ante, at 15. But even if (c) were treated as
a “limit” on the authority granted by (a), the parallel
structure of the statute would still point to the same con-
clusion: The Secretary must comply with the limit on
detention in the first sentence of (c) in order to invoke the
rule on release in the second sentence of (c).
Third, Congress’ enactment of a special “transition”
statute strengthens the point. When Congress enacted
subsection (c), it recognized that there might be “insuffi-
cient detention space” and “personnel” to carry out subsec-
tion (c)’s requirements. IIRIRA, §303(b)(2), 110 Stat.
3009–586. It therefore authorized the Government to
delay implementation of subsection (c)—initially for one
year, then for a second year. Ibid.If the majority were correct that the “when . . . released”
provision does not set a time limit on the Secretary’s
authority to deny bail hearings, then a special transition
statute delaying implementation for one year would have
been unnecessary. To avoid overcrowding, the Govern-
ment simply could have delayed arresting aliens for 1, 2,
5, or 10 years, as the majority believes it can do, and then
deny them bail hearings. What need for a 1-year transi-
tion period? The majority responds that the transition
statute still served a purpose: to “dela[y] the onset of the
Secretary’s obligation to begin making arrests.” Ante, at
21. But that just raises the question: Why would Congress
have needed to “dela[y] the onset of the Secretary’s obliga-
tion” if it thought that the Secretary could detain aliens
without a bail hearing after a year-long delay? The major-
ity offers no good answer. The transition statute therefore
strongly suggests that Congress viewed the “when . . .
released” provision as a constraint on the Secretary’s
authority to deny a bail hearing.
The transition statute also supports this conclusion in
another respect: It demonstrates that Congress anticipated
Cite as: 586 U. S. ____ (2019) 11
BREYER, J., dissenting
that subsection (c) would apply only to aliens “released”
from state or federal prison. As noted, clauses A, B, C,
and D in paragraph (1) cover some aliens who have never
been in criminal custody. Supra, at 4. Even the majority
acknowledges that it would be bizarre if these aliens could
be detained without a bail hearing. Ante, at 23. The
transition statute confirms as much: It indicates that “the
provisions of [subsection (c)] shall apply to individuals
released after” the transition period concludes. IIRIRA,
§303(b)(2), 110 Stat. 3009–586 (emphasis added). From
this it follows that Congress saw paragraph (2) as forbid-
ding bail hearings only for aliens who have been “re-
leased.” That, however, can be true only if the “when . . .
released” provision limits the class of aliens subject to
paragraph (2)’s “no-bail-hearing” requirement. The major-
ity’s contrary reading, under which paragraph (2) applies
“regardless of . . . whether the alien was released from
criminal custody,” ante, at 25, conflicts with how Congress
itself described the scope of subsection (c) when it enacted
the statute.
C
Even if statutory text and structure were not enough to
resolve these cases, the Government’s reading would fail
for another reason. A well-established canon of statutory
interpretation provides that, “if fairly possible,” a statute
must be construed “so as to avoid not only the conclusion
that it is unconstitutional but also grave doubts upon that
score.” United States v. Jin Fuey Moy, 241 U. S. 394, 401
(1916). See Edward J. DeBartolo Corp. v. Florida Gulf
Coast Building & Constr. Trades Council, 485 U. S. 568,
575 (1988) (using word “serious” instead of “grave”). The
Government’s reading of the statute, which the majority
adopts, construes the statute in a way that creates serious
constitutional problems. That reading would give the
Secretary authority to arrest and detain aliens years after
12 NIELSEN v. PREAP
BREYER, J., dissenting
they have committed a minor crime and then hold them
without a bail hearing for months or years. This possibil-
ity is not simply theoretical. See Appendix B, infra.
In Jennings, I explained why I believe the practice of
indefinite detention without a bail hearing likely deprives
a “person” of his or her “liberty . . . without due process of
law.” U. S. Const., Amdt. 5. See 583 U. S., at ___ (dissent-
ing opinion) (slip op., at 5). This practice runs counter to
“those settled usages and modes of proceeding existing in
the common and statute law of England, before the emi-
gration of ” the Founders’ “ancestors.” Murray’s Lessee v.
Hoboken Land & Improvement Co., 18 How. 272, 277
(1856). It runs counter to practices well established at the
time of the American Revolution. Jennings, supra, at ___–
___ (slip op., at 9–10). And it runs counter to common
sense: Why would the law grant a bail hearing to a person
accused of murder but deny it to a person who many years
before committed a crime perhaps no greater than pos-
sessing a stolen bus transfer? See Appendix B, infra.
I explained much of the constitutional problem in my
dissent in Jennings. Rather than repeat what I wrote
there, I refer the reader to that opinion. See Jennings,
supra, at ___ (slip op., at 1). I add only the obvious point
that a bail hearing does not mean release on bail. It simply
permits the person held to demonstrate that, if released,
he will neither run away nor pose a threat. It is especially
anomalous to take this opportunity away from an alien
who committed a crime many years before and has since
reformed, living productively in a community.
The majority’s reading also creates other anomalies. As
I have said, by permitting the Secretary to hold aliens
without a bail hearing even if they were not detained
“when . . . released,” the majority’s reading would allow
the Secretary to hold indefinitely without bail those who
have never been to prison and who received only a fine or
probation as punishment. Supra, at 4, 10–11. See, e.g.,
Cite as: 586 U. S. ____ (2019) 13
BREYER, J., dissenting
§1226(c)(1)(A) (incorporating §1182(a)(2), which covers
controlled substance offenses for which the maximum
penalty exceeds one year); Brief for Advancement Project
et al. as Amici Curiae 19, 24, 29 (describing examples).
That fact simply aggravates the constitutional problem.
III
Although the Court of Appeals correctly concluded that
paragraph (2)’s prohibition on release applies only to an
alien whom the Secretary “take[s] into custody . . . when
the alien is released” from criminal custody, it also held
that the phrase “when the alien is released” means that
the Secretary must grant a bail hearing to any alien who
is not “ ‘immediately detained’ when released from crimi-
nal custody.” Preap v. Johnson, 831 F. 3d 1193, 1207 (CA9
2016). I disagree with the Court of Appeals as to the
meaning of the phrase “when the alien is released.”
A
As an initial matter, the phrase “when the alien is
released” imposes an enforceable statutory deadline. I
cannot agree with JUSTICE ALITO, who writes for a plurality
of the Court on this point, that our cases holding certain
statutory deadlines unenforceable are applicable here.
Ante, at 17. See, e.g., Barnhart v. Peabody Coal Co., 537
U. S. 149, 152 (2003) (holding that the Government’s
untimeliness did not bar it from taking action beyond the
statutory deadline); United States v. Montalvo-Murillo,
495 U. S. 711, 713–714 (1990) (holding that a provision
requiring a detention hearing to “ ‘be held immediately’ ”
did not bar detention in the event of a late hearing); Brock
v. Pierce County, 476 U. S. 253, 266 (1986) (holding that
the Government’s failure to observe a 120-day statutory
deadline did not deprive it of authority under the statute).
I disagree with the plurality on this point because our
case law makes clear that a statutory deadline against the
14 NIELSEN v. PREAP
BREYER, J., dissenting
Government must be enforced at least in contexts where
“other part[s]” of the relevant statutes indicate that the
time limit must be enforced, Montalvo-Murillo, supra, at
717; see also Barnhart, supra, at 161, 163; Dolan v. United
States, 560 U. S. 605, 613 (2010); where the statute
“ ‘specif[ies] a consequence for noncompliance’ ” with the
time limit, Barnhart, supra, at 159 (quoting United States
v. James Daniel Good Real Property, 510 U. S. 43, 63
(1993)); or where the harms caused by the Government’s
delay are likely to be serious, see Dolan, supra, at 615–
616; Montalvo-Murillo, supra, at 719–720.
Here, the special transition statute Congress enacted
alongside subsection (c) makes clear that Congress ex-
pected that the mandate that an alien be detained
“when . . . released” would be enforceable. Congress nei-
ther wished for nor expected the Secretary to detain aliens
more than a year after their release from criminal custody.
IIRIRA, §303(b)(2), 110 Stat. 3009–586. Why else would
Congress have enacted a statute permitting the Govern-
ment, due to “insufficient detention space and Immigra-
tion and Naturalization Service personnel,” to delay im-
plementation of the entirety of subsection (c) for one year?
Ibid. As I have said, had Congress read the phrase “when
the alien is released” as the plurality now reads it, the
Government could have delayed implementation for as
long as it liked without the need for any transition statute.
Supra, at 10. The transition statute demonstrates that
Congress viewed the phrase “when the alien is released”
as imposing a deadline. Based on the transition statute,
the Secretary may not delay detention under subsection (c)
for longer than one year.
Moreover, the statute does “ ‘specify a consequence’ ” for
the Secretary’s failure to detain an alien “when the alien is
released.” Barnhart, supra, at 159 (quoting James Daniel
Good, supra, at 63). In that case, subsection (c) will not
apply, and the Secretary must fall back on subsection (a),
Cite as: 586 U. S. ____ (2019) 15
BREYER, J., dissenting
the default detention and release provision. Critically,
subsection (a) does not guarantee release. Rather, it
leaves much to the Government’s judgment: By regulation,
aliens who are subject to subsection (a)’s default detention
and release rules will simply receive a hearing at which
they can attempt to demonstrate that, if released, they
will not pose a risk of flight or a threat to the community.
8 CFR §§236.1(d)(1), 1236.1(d)(1).
Finally, I have already mentioned the many harms that
could befall aliens whom the Secretary does not detain
“when . . . released.” They range from long periods of
detention, to detention years or even decades after the
alien’s release from criminal custody, to the risk of split-
ting up families that are long established in a community.
Supra, at 4. Thus, unlike some of our prior cases, the
harm from a missed deadline hardly can be described as
“insignificant.” Montalvo-Murillo, supra, at 719.
The plurality objects that “Congress could not have
meant for judges to ‘enforce’ ” the mandatory detention
requirement “in case of delay by—of all things—forbidding
its execution.” Ante, at 19. But treating the “when the
alien is released” clause as an enforceable limit does not
prohibit the Secretary from detaining the aliens that
subsection (c) requires her to detain. Rather, the Secre-
tary’s failure to comply with the “when the alien is re-
leased” clause carries only one consequence: The Secretary
cannot deny a bail hearing.
B
So what does the phrase “when the alien is released”
mean? The word “when” can, but does not always, mean
“[a]t the time that,” American Heritage Dictionary, at
1971, or “just after the moment that,” Webster’s Third
New International Dictionary, at 2602. But the word only
“[s]ometimes impl[ies] suddenness.” 20 Oxford English
Dictionary 209 (2d ed. 1989). It often admits of at least
16 NIELSEN v. PREAP
BREYER, J., dissenting
some temporal delay. A child who is told to “mow the
lawn, please, when you get home from school” likely does
not have to mow the lawn the second she comes into the
house. She can do a few other things first.
Mindful of “the greater immigration-related expertise of
the Executive Branch” and “the serious administrative
needs and concerns inherent in the necessarily extensive
[Government] efforts to enforce this complex statute,” I
would interpret the word “when” in the same manner as
we interpreted other parts of this statute in Zadvydas v.
Davis, 533 U. S. 678, 700 (2001). The words “when the
alien is released” require the Secretary to detain aliens
under subsection (c) within a reasonable time after their
release from criminal custody—presumptively no more
than six months. If the Secretary does not do so, she must
grant a bail hearing. This presumptive 6-month limit is
consistent with how long the Government can detain
certain aliens while they are awaiting removal from the
country. Id., at 682, 701 (interpreting a different provi-
sion, §1231(a)(6)). To insist upon similar treatment in this
context would give the Government sufficient time to
detain aliens following their release from local, state, or
federal criminal custody. It would also ensure that the
Government does not fall outside the 1-year maximum
dictated by the transition statute. See supra, at 10, 14.
IV
To reiterate: The question before us is not “narrow.”
Ante, at 2 (KAVANAUGH, J., concurring). See supra, at 4.
That is because we cannot interpret the words of this
specific statute without also considering basic promises
that America’s legal system has long made to all persons.
In deciphering the intent of the Congress that wrote this
statute, we must decide—in the face of what is, at worst,
linguistic ambiguity—whether Congress intended that
persons who have long since paid their debt to society
Cite as: 586 U. S. ____ (2019) 17
BREYER, J., dissenting
would be deprived of their liberty for months or years
without the possibility of bail. We cannot decide that
question without bearing in mind basic American legal
values: the Government’s duty not to deprive any “person”
of “liberty” without “due process of law,” U. S. Const.,
Amdt. 5; the Nation’s original commitment to protect the
“unalienable” right to “Liberty”; and, less abstractly and
more directly, the longstanding right of virtually all per-
sons to receive a bail hearing.
I would have thought that Congress meant to adhere to
these values and did not intend to allow the Government
to apprehend persons years after their release from prison
and hold them indefinitely without a bail hearing. In my
view, the Court should interpret the words of this statute
to reflect Congress’ likely intent, an intent that is con-
sistent with our basic values. To speak more technically, I
believe that aliens are subject to paragraph (2)’s bar on
release only if they are detained “when . . . released” from
criminal custody. To speak less technically, I fear that the
Court’s contrary interpretation will work serious harm to
the principles for which American law has long stood.
For these reasons, with respect, I dissent.
18 NIELSEN v. PREAP
AppendixBA , J.,
to the
REYER dissenting
opinion of BREYER, J.
APPENDIXES
A
8 U. S. C. §1226. “Apprehension and detention of aliens
“(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) 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 with security approved by,
and containing conditions prescribed by, the Attorney
General; or
“(B) conditional parole;
. . . . .
“(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,
“(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 proba-
tion, and without regard to whether the alien may be
arrested or imprisoned again for the same offense.
Cite as: 586 U. S. ____ (2019) 19
AppendixBA , J.,
to the
REYER dissenting
opinion of BREYER, J.
“(2) Release
“The Attorney General may release an alien described in
paragraph (1) only if the Attorney General decides pursu-
ant 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 investiga-
tion 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 ac-
cordance with a procedure that considers the severity of
the offense committed by the alien.” (Emphasis added.)
20 NIELSEN v. PREAP
AppendixBB , J.,
to the
REYER dissenting
opinion of BREYER, J.
B
The following citations support the claims made supra,
at 4, regarding the breadth of the Government’s reading of
the statute. I do not intend to suggest that these citations
provide a complete description of the many aliens who are
detained without a bail hearing under 8 U. S. C. §1226(c).
See Jennings v. Rodriguez, 583 U. S. ___, ___ (2018)
(BREYER, J., dissenting) (slip op., at 3) (indicating that
thousands of aliens are eligible to be detained under sub-
section (c), that many are held for six months or longer,
and that “[n]early 40% of those who have served criminal
sentences receive relief from removal”); Preap v. Johnson,
831 F. 3d 1193, 1197 (CA9 2016) (noting that one respond-
ent was detained 11 years after his release from prison);
Brief for Advancement Project et al. as Amici Curiae 12
(presenting data from a recent lawsuit in Massachusetts
indicating that more than one in five aliens detained
under subsection (c) were taken into custody more than
five years after their release from prison); §1226(c)(1)(A)
(referencing §1182(a)(2), which includes aliens who have
committed federal or state controlled substance offenses
for which the maximum term of imprisonment exceeds one
year); §1226(c)(1)(C) (referencing §1227(a)(2)(A)(i), which
applies to aliens convicted of certain crimes “involving
moral turpitude”); Hashish v. Gonzales, 442 F. 3d 572, 576
(CA7 2006) (illegally downloading music is a crime of
“moral turpitude”); Michel v. INS, 206 F. 3d 253, 261 (CA2
2000) (possessing stolen bus transfers is a crime of “moral
turpitude”); §1226(c)(1)(D) (referencing §1182(a)(3)(B),
which covers the “spouse or child” of certain aliens en-
gaged in terrorist activity); §1229b (identifying the re-
quirements for obtaining cancellation of removal).