Khoury v. Asher
3 F. Supp. 3d 877
W.D. Wash.2014Background
- Three lawful permanent residents (Khoury, Rodriguez, Carrera) were arrested by ICE months–years after serving state criminal sentences and detained without bond under 8 U.S.C. § 1226(c).
- Plaintiffs sued DHS, EOIR officials, and DOJ officials seeking habeas, declaratory and injunctive relief and moved to certify a class of similarly situated detainees.
- Plaintiffs’ core statutory claim: § 1226(c) mandatory detention applies only when DHS takes custody “when the alien is released” from non‑DHS custody; here DHS arrested them well after release.
- Government argued § 1226(c) applies to any alien who committed a listed offense regardless of timing of DHS custody (relies on BIA’s In re Rojas).
- Court treated the dispute as a pure question of law, denied the government’s motion to dismiss, certified a Rule 23(b)(2) class, and issued a declaratory judgment that mandatory detention under § 1226(c) requires immediate DHS custody upon release from non‑DHS custody; injunction deferred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1226(c) conditions mandatory detention on DHS taking custody “when the alien is released” | “When the alien is released” means DHS must take custody immediately upon release; if not, § 1226(a) bond procedures apply | § 1226(c) applies to any alien who committed a listed offense regardless of when DHS later arrests them; the timing clause is not a precondition | Court holds § 1226(c) unambiguously requires DHS custody immediately upon release from non‑DHS custody for mandatory detention to apply |
| Meaning of phrase “an alien described in paragraph (1)” and deference to BIA’s In re Rojas | It includes both the qualifying offense and the timing requirement (release → immediate DHS custody) | Rojas interpreted paragraph (1) to include only the offense categories, making timing irrelevant; government urges deference | Court rejects Rojas and finds no ambiguity requiring Chevron deference; paragraph (1) includes the timing clause |
| Whether late DHS arrests should nevertheless permit mandatory detention (better‑late‑than‑never) | Late arrest negates the purpose of mandatory detention; ordinary bond hearings remain available under § 1226(a) | Delayed detention still may serve public safety; statute does not strip authority to detain later | Court rejects a broad “better‑late‑than‑never” rule for mandatory detention; delayed arrests trigger § 1226(a) bond process, not § 1226(c) mandatory detention |
| Class certification under Rule 23(b)(2) | Class of detainees arrested after release meets numerosity, commonality, typicality, adequacy; declaratory/injunctive relief appropriate | Government raised limited opposition (timing variation argued atypical) | Court certifies the class (modified definition) under Rule 23(b)(2) and finds plaintiffs adequate representatives |
Key Cases Cited
- Demore v. Kim, 538 U.S. 510 (Sup. Ct. 2003) (upheld § 1226(c) in context of brief detentions but emphasized limited duration rationale)
- Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) (required bond hearings within six months for certain detainees subject to prolonged detention)
- Saysana v. Gillen, 590 F.3d 7 (1st Cir. 2009) (interpreted § 1226(c) to require a qualifying release to trigger mandatory detention)
- Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012) (construed “when released” to connote immediacy but declined to hold delayed arrests categorically exempt from mandatory detention)
- Sylvain v. Attorney General, 714 F.3d 150 (3d Cir. 2013) (held statute does not condition mandatory detention on timing of federal custody)
- United States v. Montalvo‑Murillo, 495 U.S. 711 (Sup. Ct. 1990) (better‑late‑than‑never principle: statutory timing defaults did not entirely divest detention authority after deadline)