Leiticia CASTAÑEDA v. Steve SOUZA, Superintendent, Bristol County House of Corrections, John T. Morton, Jeh Johnson, Loretta E. Lynch; Clayton Richard Gordon v. Loretta E. Lynch, Sarah Saldana, Sean Gallagher, Christopher J. Donelan, Michael G. Bellotti, Steven W. Tompkins, Thomas M. Hodgson, Joseph D. McDonald, Jr., Rand Beers
Nos. 13-1994, 13-2509
United States Court of Appeals, First Circuit
Dec. 23, 2015
III.
For the reasons above, we grant the petitions for review and vacate the Commission‘s order.
Leiticia CASTAÑEDA, Petitioner, Appellee,
v.
Steve SOUZA, Superintendent, Bristol County House of Corrections, in his official capacity and his successors and assigns, Respondent, Appellant,
Bruce E. Chadbourne, Field Office Director, Boston Field Office, Office of Detention and Removal, U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, in his official capacity and his successors and assigns; John T. Morton, Director, U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security, in his official capacity and his successors and assigns; Jeh Johnson, Secretary, U.S. Department of Homeland Security, in his official capacity and his successors and assigns; Loretta E. Lynch, Attorney General, U.S. Department of Justice, in her official capacity and her successors and assigns, Respondents.
Clayton Richard Gordon, on behalf of himself and others similarly situated, Petitioner, Appellee,
Preciosa Antunes; Gustavo Ribeiro Ferreira; Valbourn Sahidd Lawes; Nhan Phung Vu, Petitioners,
v.
Loretta E. Lynch, Attorney General; Sarah Saldana, Director of Immigration and Customs Enforcement; Sean Gallagher, Acting Field Office Director; Christopher J. Donelan; Michael G. Bellotti, Sheriff; Steven W. Tompkins, Sheriff; Thomas M. Hodgson, Sheriff; Joseph D. McDonald, Jr., Sheriff; Rand Beers, Acting Secretary of Homeland Security, Respondents, Appellants.
Leon Fresco, Deputy Assistant Attorney General, Office of Immigration Litigation, with whom Sarah B. Fabian, Senior Litigation Counsel, United States Department of Justice; Civil Division, Office of Immigra-
Gregory Romanovsky, with whom Livia Lungulescu and Romanovsky Law Offices were on brief, for petitioner-appellee Castañeda.
Matthew R. Segal, with whom Adriana Lafaille, American Civil Liberties Union Foundation of Massachusetts, Judy Rabinovitz, Michael Tan, Anand Balakrishnan, ACLU Foundation Immigrants’ Rights Project, Elizabeth Badger, and Kids in Need of Defense c/o Nutter McClennan & Fish LLP, were on brief, for petitioner-appellee Gordon.
Alina Das, Esq., and Washington Square Legal Services, Inc., Immigrant Rights Clinic, on brief for Immigration Law Professors, American Immigration Lawyers Association, Boston College Law School Immigration Clinic, Boston University Law School International Human Rights Clinic, Detention Watch Network, Families for Freedom, Greater Boston Legal Services, Harvard Immigration and Refugee Clinical Program, Immigrant Defense Project, Immigrant Legal Resource Center, Immigrant Rights Clinic, National Immigrant Justice Center, National Immigration Project of the National Lawyers Guild, Political Asylum/Immigration Representation Project, Suffolk University Law School Immigration Clinic, and University of Maine School of Law Immigrant and Refugee Rights Clinic, as amici curiae in support of petitioners-appellees and in support of affirmance.
Matthew E. Price, Lindsay C. Harrison, and Jenner & Block LLP, on brief for amici curiae Former Immigration Judges and Department of Homeland Security Officials in support of petitioners-appellees.
Before HOWARD, Chief Judge, TORRUELLA, LYNCH, THOMPSON, KAYATTA, and BARRON, Circuit Judges.
Opinion En Banc
The judgments entered in the district courts are affirmed by an equally divided en banc court. See Savard v. Rhode Island, 338 F.3d 23, 25 (1st Cir. 2003) (en banc).
Opinions follow.
BARRON, Circuit Judge, with whom TORRUELLA and THOMPSON, Circuit Judges, join.
Congress has long given the Attorney General discretion to decide whether to take aliens who are subject to removal into immigration custody. Congress also has long given the Attorney General discretion to decide whether to release on bond aliens who are in immigration custody while their removal proceedings are pending. Nearly thirty years ago, however, Congress began enacting a succession of similar but slightly revised immigration detention mandates that limited the Attorney General‘s detention discretion in certain respects. These consolidated appeals require us to decide the scope of the present version of this detention mandate, codified in
Much like its precursors, this detention mandate first directs that the Attorney General shall take into custody certain “criminal aliens“—as defined by their commission of specified offenses—“when [they are] released” from criminal custody. And, much like its precursors, this detention mandate then bars the Attorney Gen-
We conclude that Congress intended for the present detention mandate to operate like its precursors and thus that its bar to bonded release applies only to those specified criminal aliens whom the Attorney General took into custody “when [they were] released” from criminal custody. We further conclude that the two aliens who bring these habeas petitions were not taken into immigration custody “when [they were] released” from criminal custody because they had been released from criminal custody years before their immigration custody started. As a result, we conclude that the present detention mandate does not bar either petitioner from seeking release on bond pursuant to the Attorney General‘s discretionary release authority.
Two district courts of this Circuit reached the same conclusion in granting the petitioners the right to an individualized bond hearing at which they could seek release prior to the completion of the removal process. See Gordon v. Johnson, 991 F. Supp. 2d 258 (D. Mass. 2013); Castañeda v. Souza, 952 F. Supp. 2d 307 (D. Mass. 2013). A panel of this Circuit affirmed. See Castañeda v. Souza, 769 F.3d 32 (1st Cir. 2014). This Court then agreed to rehear the case en banc, and is now, by a vote of three to three, evenly divided.
In consequence, the judgments of the district courts are affirmed, as we believe they should be given Congress‘s evident intention not to deny aliens like petitioners the chance to seek bonded release, the consequential nature of the decision to deny aliens such a chance, and the reality that removal proceedings can stretch on for months or even years.
I.
The key parts of the Immigration and Nationality Act are codified in
To govern the exercise of this release power, the Attorney General issued regulations pursuant to subsection (a). These regulations authorize immigration judges (subject to review by the Board of Immigration Appeals (BIA) and ultimately the Attorney General) to make individualized bond determinations based on a detainee‘s flight risk and danger to the community. See
As a result of
The question arises due to the contested scope of the limited exception to
Together, the paragraphs establish the latest version of a detention mandate Congress first enacted in 1988. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), tit. III § 303, Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-585. In each prior version, Congress required first that the Attorney General “shall take into [immigration] custody any alien convicted” of an enumerated felony offense “upon completion” of the alien‘s sentence (1988 mandate) or “upon [the alien‘s] release” from criminal custody (later mandates). And, in each prior version, Congress then required that the Attorney General “shall not release such felon from [immigration] custody.” See Anti-Drug Abuse Amendments Act of 1988, § 7343(a), Pub. L. No. 100-690, 102 Stat. 4181, 4470; Immigration Act of 1990, § 504(a), Pub. L. No. 101-649, 104 Stat. 4978, 5049-50; Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), § 440(c), Pub. L. No. 104-132, 110 Stat. 1214, 1277.
The version of the detention mandate that is at issue here was enacted in 1996 and follows this same structure. The first paragraph, identified as
The second paragraph, identified as
Under petitioners’ view, (c)(1) and (c)(2) operate in tandem just as the earlier detention mandates did. In consequence of the words “when” and “released” in the first paragraph, the Attorney General must timely take specified aliens coming out of criminal custody into immigration custody. The second paragraph, by referring to the prior paragraph, then requires the Attorney General not to release on bond the specified aliens that she has timely taken into immigration custody following their release from criminal custody in accordance with the directive in (c)(1).
Petitioners contend that this reading of
On the basis of this reading of
The government counters that petitioners’ argument fails at the threshold on the basis of the interpretation of
The government contends we must defer to Rojas‘s conclusion that whatever limitations the words “when” and “released” impose on
In the alternative, the government asserts that even if Rojas is wrong and the “when ... released” clause is relevant to (c)(2), the petitioners were in fact taken into immigration custody “when ... released.” The government argues that the word “when” is best read in context to mean “if” or “any time after.” As a fallback, the government argues that the word “when” at most triggers a duty to act promptly that persists indefinitely. Either way, the government argues,
We consider each argument in turn. We explain first why we conclude that the “when ... released” clause in
II.
We start with the question whether we must defer to Rojas‘s reading of
Our focus is on step one, which is where we conclude Rojas went wrong.10 For while Chevron is a famous doctrine, much precedent cautions us not to be so star-struck by it that we must defer to the agency at the first sign of uncertainty about the meaning of the words that Congress chose. Rather, under Chevron, we must be mindful that “a statute may foreclose an agency‘s preferred interpretation despite such textual ambiguities if its structure, legislative history, or purpose
And that is the case here. In light of both the Act‘s structure, see F.D.A. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-34 (2000) (analyzing the words of a statute in view of the “overall statutory scheme” at Chevron step one); Saysana, 590 F.3d at 13-15 (emphasizing the structure of
A.
Rojas identified a clear choice between two possible readings of the words in the cross-reference in
This choice matters because it determines whether the “when ... released” clause—and whatever limits it imposes through the words “when” and “released“—modifies the scope of
In our view, the words “an alien described in paragraph (1)” comfortably support petitioners’ reading. Consistent with the ordinary meaning of the word “described,”
No rule of grammar counsels against this reading. Antecedents to cross-references may be found in verbal and adverbial phrases in prior paragraphs not just because (as our colleagues suggest) users of English sometimes use language awkwardly. Antecedents to cross-references may be found in such places because people also use language efficiently.11
One thus commits no offense against the English language by saying that the narrator “described in” Frost‘s famous poem is the one who “took the road less travelled,” even though the narrator‘s first-person account of his past actions in the poem is not cast in what our colleagues would consider inherently descriptive terms. And, in fact, Congress has itself relied on the “described in paragraph (1)” formulation to refer not just to the inherently descriptive adjectival portion of the prior paragraph but to the adverbial portion, too. See
The petitioners’ reading finds additional support in the fact that the text of the cross-reference does not expressly state, as one might have expected if Rojas were right, that the only part of
Nevertheless, we agree that, standing alone, the words “an alien described in paragraph (1)” could be read as Rojas reads them. As a textual matter, the “described in” language in the cross-reference could be read to refer the reader only to subparagraphs (A)-(D) of paragraph (1), as they plainly do describe the alien in (c)(1). One could thus read this cross-reference as directing the reader to identify the alien whom (c)(1) itself refers to in characteristically descriptive terms, rather than directing the reader to identify the alien whom (c)(1) as a whole calls to mind.13
To determine if Congress chose between the two possible antecedents to the cross-reference in
B.
A key part of that context is the structure of the IIRIRA as a whole, as we are obliged to construe
We start first with the structure of
Rojas has this effect because, for example, as the government has previously informed us, “there are a variety of offenses for which an alien may be ... subject to mandatory detention under [
In consequence, some aliens who fall within subparagraphs (A)-(D) will not be subject to (c)(1) because they will never have even been “released” from criminal custody as the “when ... released” clause requires. See Rojas, 23 I. & N. Dec. at 122.15 According to Rojas, however, such aliens—if taken into custody pursuant to
Rojas necessarily would apply the bar to bonded release to such aliens because Rojas makes an alien‘s “release” from criminal custody irrelevant to the application of
Petitioners’ reading avoids this oddly half-hearted understanding of the detention mandate. Petitioners read the release-from-criminal-custody constraint that appears outside subparagraphs (A)-(D) and in the “when ... released” clause to limit both the “Custody” and “Release” aspects of the detention mandate. Under this more natural reading,
See Saysana, 590 F.3d at 9, 13-16 (analyzing the meaning of the “when ... released” clause and its trailing language in (c)(1) in order to determine whether an alien was properly held without bond under (c)(2)). In this way, Congress would have crafted a detention mandate that, from start to finish, covers the same class of aliens (whatever the word “when” might mean) that it had identified as a cause for concern.18
Two other parts of the IIRIRA lend further support to petitioners’ reading of the cross-reference, in which the “when ... released” clause in (c)(1) applies as a constraint across the whole of (c). These parts of the IIRIRA are set forth in the Transition Period Custody Rules (TPCR). These rules apply instead of
The first instructive part lies in the TPCR‘s parallel detention mandate. The TPCR‘s mandate shares the same structure as
Tellingly, the TPCR presents its custody directive (including its “when ... released” clause) under the heading “In General” and the bar to bonded release under the subsequent heading, “Release.” This presentation indicates that the “when ... released” clause constrains both the custody directive and the bar to bonded release, such that the bar applies to the very people encompassed by the “General” directive, rather than to some people who were not encompassed by that directive at all because they were never “released” from criminal custody.
The second instructive part of the IIRIRA lies in section 303(b)(2), Pub. L. No. 104-208, 110 Stat. at 3009-586. This TPCR provision mediates the shift from the transition rules to the permanent regime. The provision clearly provides that
If we applied Rojas‘s analysis of (c)(2) to the TPCR‘s equivalent to (c)(2), however, no such “released” constraint would limit the scope of that portion of the TPCR‘s detention mandate because the “when ... released” clause in its custody directive would not apply to the mandate as a whole. Under Rojas, therefore, the “released after” clause would—in this key respect—make the permanent mandate‘s bar to bonded release less sweeping than the supposedly more flexible TPCR mandate‘s bar had been, even though Congress clearly intended the latter to be less encompassing.21 No such anomalous narrowing of the detention mandate would occur upon the expiration of the TPCR if, by contrast, the “when ... released” clause limits the bar to bonded release that appears in both the transition and the permanent rules.22
C.
The legislative history confirms that Congress intended the cross-reference in
es—applies across the whole of (c). This conclusion follows from the legislative history directly tied to the IIRIRA and from the many precursors to
1.
The title to
But even if, as our colleagues contend, the report‘s reference to “[t]his detention mandate” is only to the differently worded and more limited duty to “take into custody” certain aliens set forth only in
Just prior to conference, a leading Senate sponsor of the IIRIRA described the bill as “ensur[ing] that aliens who commit serious crimes are detained upon their release from prison until they can be deported . . . .” 142 Cong. Rec. S10572-01 (daily ed. Sept. 16, 1996), 1996 WL 522794 (statement of Sen. Simpson) (emphasis added). And it should be no surprise that Senator Simpson described the bill this way. Congress stated in a key report right before conference that the new measure was intended to “restate[]” the provisions of the old statute “regarding the detention of an alien convicted of an aggravated felony . . . .” See H.R. Rep. 104-469(I) (1996), 1996 WL 168955, at *230. And, as we next explain, each prior version of the detention mandate (including the immediate precursor to the IIRIRA) similarly treated the two analogous directives to the ones that subsection (c) contains as operating in tandem.
2.
The text and legislative history to the precursors to
We start with the 1988 mandatory detention statute, which provided: “The Attorney General shall take into custody any alien convicted of an aggravated felony upon completion of the alien‘s sentence for such conviction. Notwithstanding subsection (a) [the then-equivalent of
The 1990 amendments to the 1988 statute then codified Eden, which was decided months earlier, and the House report to the amendments espoused that same view of the relationship between the two clauses. That report characterized “current law” (that is, the detention mandate set forth in the 1988 statute) as “requir[ing] [the government] to incarcerate alien aggravated felons without bond immediately upon completion of the alien‘s criminal ‘sentence.’” H.R. Rep. No. 101-681(I), § 1503, at 148 (1990) (emphasis added); cf. United States v. Bd. of Comm‘rs of Sheffield, Ala., 435 U.S. 110, 129-35 (1978).
Moreover, in codifying Eden, Congress modified the then-equivalent of
Finally, in 1996, not long before the IIRIRA‘s enactment, Congress further amended the mandatory detention statute while again retaining the same structure, which again naturally reads as if those barred from release are those that must be picked up. See AEDPA, § 440(c), Pub. L. No. 104-132, 110 Stat. 1214, 1277 (retaining “upon release“/“such felon” structure). And prior to the passage of
We generally “assume that Congress is aware of existing law when it passes legislation,” see Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990), so we should assume that Congress understood the prevailing interpretation of the relationship between the custody directive and the bar to bonded release to be a linked one. After all, courts were consistently interpreting that relationship post-AEDPA in the same way Congress and the BIA had interpreted that relationship in the similarly worded clauses pre-AEDPA.29
And while Congress broadened the cross-reference in the present detention mandate to account for the fact that not all aliens subject to the present mandate qualify as “felons,” we do not think Congress thereby intended to alter fundamentally the relationship between the custody directive and the bar to bonded release. In fact, the evidence is to the contrary. See H.R. Rep. 104-469(I) (1996), 1996 WL 168955, at *230 (stating that
3.
In countering the substantial evidence from the legislative history that points against Rojas, the government and our colleagues give great weight to an April 1995 report from the Senate Committee on Governmental Affairs. See S. Rep. No. 104-48 (1995), 1995 WL 170285. The Supreme Court relied on that report in Demore, 538 U.S. at 518-22, to explain why Congress could have had a reason for mandating the detention without bond of criminal aliens in order to respond to the contention that such mandatory detention was inherently arbitrary. In ad-
dressing that constitutional challenge to Congress‘s power to enact a detention mandate of any scope, the Supreme Court did not purport to enlist that report to describe the class of aliens subject to the mandate
That 1995 report was not linked to any particular bill. And that report predates not only
And, in fact, the report does not speak to that issue at all. To be sure, that report does show that its authors were “concerned with detaining and removing all criminal aliens,” Rojas, 23 I. & N. Dec. at 122 (emphasis in original); see also Sylvain v. Attorney Gen. of U.S., 714 F.3d 150, 160 (3d Cir. 2013). But in stating that general concern, the report does not demonstrate that Congress intended to paint with the broad brush the government suggests that it used in enacting
The report does also suggest a variety of ways to address the concern that “criminal aliens” (i.e., aliens with deportable offenses) do not show up to removal proceedings. These suggestions range from increasing detention bed space to accommodate enhanced detention efforts generally, to expediting the removal process so that final adjudication occurs while an alien is still in criminal custody, to expanding the role of mandatory detention (
In sum, Rojas offers only one reason for concluding that these petitioners may not be given a bond hearing and that reason has nothing to with what the word “when” means. On Rojas‘s view,
After applying the traditional tools of statutory interpretation, we conclude that Congress did clearly speak to the precise issue Rojas addressed regarding the relevance of the “when ... released” clause to the bar to bonded release in
In concluding that Rojas does warrant deference, our colleagues repeatedly emphasize that it is reasonable to conclude that the timeliness of an alien‘s immigration custody is not determinative of whether the detention mandate applies. But it is important not to confuse the outcome that results from Rojas‘s interpretation of the mandate‘s scope with the interpretation itself.
For while it is true that Rojas‘s conclusion that the “when ... released” clause as a whole is irrelevant to
For Chevron purposes, therefore, the contention that the legislative history or the structure of the IIRIRA does not compel the timing-based outcome that the petitioners favor amounts to a non sequitur. What matters is that Rojas implausibly ascribes an intention to Congress to place greater limits on the Attorney General‘s discretion to take aliens into custody in the first place than on the Attorney General‘s discretion to release them once they are in custody. And so, having determined under Chevron step one that Rojas‘s interpretation of the relationship between (c)(1) and (c)(2) conflicts with Congress‘s evident intent and thus does not merit deference, we now turn to the question that remains: the meaning of (c)(1)‘s “when ... released” clause.
III.
In taking up this issue, we confront the question that Rojas never reaches: does “when” impose a time limit for taking
The government argues that the word “when” imposes no such time limit, either because “when” means “if” or “any time after” or because Congress at most used the word “when” to trigger a duty to act promptly that persists indefinitely. The BIA, however, has never adopted either view, and such litigating positions are not entitled to Chevron deference.31 See United States v. Mead Corp., 533 U.S. 218, 231 (2001). We thus must decide the clause‘s meaning on our own. See Santana v. Holder, 731 F.3d 50, 53 (1st Cir. 2013).
To do so, we first consider whether the word “when” as used here is merely a synonym for “if” or “any time after” and consequently conveys no sense of immediacy at all. We then consider whether, even if Congress intended for the word “when” to convey immediacy, the word merely reflects a legislative preference for timely action and thus does not impose a true time limit.
A.
We begin our analysis of the first issue with the observation that Congress chose a word, “when,” that naturally conveys some degree of immediacy, Castañeda, 769 F.3d at 42-44, as opposed to a purely conditional word, such as “if.” See Webster‘s Third New International Dictionary 2602 (2002) (defining “when” as “just after the moment that“). Consistent with the conclusion that this choice indicates that Congress intended for “when” to convey immediacy,
As to just how promptly Congress intended for the government to act, there is more uncertainty, as the panel recognized when it construed the word “when” to mean “within a reasonable time after.” See Castañeda, 769 F.3d at 44. But given the unexplained, years-long gap between when these petitioners were released from criminal custody and when they were taken into immigration custody, we need not define the bounds of reasonableness in this case as they were plainly exceeded.33 Thus, for present purposes, it is enough to conclude that Congress used the word “when” to convey some degree of immediacy and not simply to set forth a condition.34
The part of the conference report to the IIRIRA that describes
The conference report states that “[t]his detention mandate applies whenever such an alien is released from imprisonment, regardless of the circumstances of the release.” H.R. Conf. Rep. No. 104-828 (1996), 1996 WL 563320, at *210-11 (emphasis added). As used in that report, “whenever” is most plausibly read to mean at the time that the alien is released from imprisonment, whenever that event may occur, rather than simply “if” that event occurs. Indeed, had Congress intended by the use of “whenever” to mean “if” or “any time after,” we again would expect the report to have said “after such alien is released” or “whenever such an alien has been released.”
Consistent with this conclusion, the legislative history to the subsection that would become
168955, at *230. And that direct precursor, which is codified in the AEDPA, used the word “upon,” which was used in and understood to have conveyed immediacy in all the detention mandates preceding
For example, the House Report on the 1990 amendments to the 1988 mandatory detention statute characterized “current law” as “requir[ing] [the] INS to incarcerate alien aggravated felons without bond immediately upon completion of the alien‘s criminal ‘sentence.‘” H.R. Rep. No. 101-681(I), § 1503, at 148 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6554, 1990 WL 188857 (emphasis added); cf. Sheffield, 435 U.S. at 129-35. And the district courts that construed the word “upon” in the AEDPA‘s detention mandate reached the same conclusion as Congress had about the 1988 measure—its use of the word “upon” conveyed immediacy. See, e.g., DeMelo v. Cobb, 936 F. Supp. 30, 36 (D. Mass. 1996), vacated as moot after the IIRIRA‘s passage, 108 F.3d 328 (1st Cir. 1997).
In sum, the legislative history as a whole indicates that Congress used the word “when” just as it had used the word “upon“: to convey a sense of immediacy. We thus conclude that the legislative history reinforces the textual indication that Congress did not intend for the word “when” to be merely a synonym for “if” or “any time after.”
That brings us to the question of whether Congress intended for the word “when” merely to express a legislative preference for timely action or whether it was instead intended to impose a deadline for the application of the bar to bonded release set forth in
That interpretive aid comes into play where Congress has mandated that the government “shall” do something within a certain time frame and there is a question about the consequence Congress intends for the government‘s failure to complete the required action within that time frame. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 158-59 (2003). The canon generally counsels that: “[i]f a statute does not specify a consequence for noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction.” Id. at 159. The animating principle behind this canon is one of plausibility given the context: “if Congress had meant to set a counterintuitive limit on authority to act, it would have said more than it did.” Id. at 163 (emphasis added).
The government contends that
This case is not like those in which enforcement of a time limit would require a court to fashion a coercive sanction that appears nowhere in the text and that would completely strip the government of authority “to get [the] ... job done,” Peabody Coal Co. v. Barnhart, 537 U.S. 149, 160 (2003). See, e.g., id. at 156 (proposed sanction was complete loss of ability to direct award of retirement benefits to late-assigned beneficiaries); Brock v. Pierce Cty., 476 U.S. 253, 258 (1986) (proposed sanction was complete loss of ability to recover misused federal funds); Dolan v. United States, 560 U.S. 605, 609 (2010)
Given this distinct context, the key question is whether Congress intended for the requirement that the Attorney General timely take aliens into immigration custody to circumscribe the scope of this exception. As a textual matter, there is no indication that Congress intended for subparagraphs (A)-(D) in
There remains the question whether it nevertheless would be counterintuitive to read “when” to circumscribe the exception‘s scope. The express presentation of
Thus, in this context, we conclude that the timing word “when” is best read
To be sure, Congress was concerned about criminal aliens failing to show up for removal proceedings. See Rojas, 23 I. & N. Dec. at 122. But Congress expressly directed the executive to address that concern by complying with the mandate to pick up aliens within a reasonable time frame. In fact, Congress established transition rules that the Attorney General could invoke to ensure the government would be prepared to comply promptly with
As a result, we do not believe Congress intended that the executive could fail to pick up an alien within a reasonable time and then, despite that unexplained delay, deny that alien the chance to seek bonded release notwithstanding that alien‘s years of living freely. See Castañeda, 952 F. Supp. 2d at 318 n.10 (“[T]he experience of having one‘s liberty stripped away is drastically different from the experience of not having it restored.“); cf. DeWitt v. Ventetoulo, 6 F.3d 32, 34-36 (1st Cir. 1993) (holding that revoking a mistakenly granted suspension of sentence and re-imprisoning a defendant after years of being free violated due process). And there certainly is nothing in the legislative history to indicate that Congress did have that specific intention.40
For these reasons, the principal precedent that the government, like the Third Circuit in Sylvain, 714 F.3d at 158-61, relies on, United States v. Montalvo-Murillo, 495 U.S. 711 (1990), is not to the contrary. That case concerned whether the government‘s failure to hold a bond hearing in a timely fashion barred the government from assuming pre-trial custody of a criminal defendant under the Bail Reform Act (BRA). See Montalvo-Murillo, 495 U.S. at 717. Notably, but not surprisingly, the BRA specified no consequence for holding a hearing late. And
Here, however, the putative time limit appears within an express exception to a grant of authority. So
Thus, at least absent an authoritative agency construction of
IV.
The current version of the detention mandate requires that aliens who have committed certain offenses be taken into immigration custody in a timely manner following their release from criminal custody. The detention mandate further provides that only such aliens must then be held without bond until the completion of the removal process. These petitioners were released from criminal custody years before they were first placed in immigration custody. For that reason, they clearly do not fall within “this detention mandate.” H.R. Conf. Rep. No. 104-828 (1996), 1996 WL 563320, at *210-11. Accordingly, we agree with the two district courts that these petitioners have the right to individualized bond hearings at which they can make the case that they do not pose sufficient bond risks, just as the Attorney General specified in the regulations that she issued pursuant to
TORRUELLA, Circuit Judge
(Concurring).
I recognize that the Supreme Court has determined that Congress may, “[i]n the
I am compelled to suggest that the indefinite detention without access to bond or bail of any person in the United States violates due process. See Wong Wing v. United States, 163 U.S. 228, 238 (1896) (“[A]ll persons within the territory of the United States are entitled to the protection guarantied by th[e Fifth and Sixth] amendments....“); Yick Wo v. Hopkins, 118 U.S. 356, 369-70 (1886) (applying Fourteenth Amendment due process and equal protection provisions “to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality“). The U.S. Constitution specifically addresses the right to bail. It is the first concern of an amendment that names just three subject matters. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
When the government exercises its discretion to subject a person to detention without access to a bond hearing after the condition justifying detention has been in existence for a considerable period of time, it disregards what is by then self-evident—that said subject is neither a flight risk nor a danger to society, the primary reasons for denying bail. See
I write separately to ensure that the constitutional concerns raised by
KAYATTA, Circuit Judge, with whom HOWARD, Chief Judge, and LYNCH, Circuit Judge, join.
Congress enacted what is now
With its evenly divided vote, our court leaves in place two district court decisions holding that, to the extent the Attorney General fails to comply promptly with the custody mandate, immigration judges will find themselves back in the position of predicting which criminal aliens will present themselves for removal if they are released on bail pending the conclusion of their removal proceedings. Indeed, as we understand the reasoning of our colleagues who would affirm the decisions below, any failure by the Attorney General to achieve prompt compliance with the custody mandate renders both the custody and the no-release mandates inapplicable. For the reasons we explain in this opinion, we would instead join all four other circuits that have considered this issue by sustaining the Board‘s current practice in complying with
I. Discussion
We begin by explaining our view that the statute‘s mandates apply to petitioners, using the same tools of statutory construction that our colleagues employ to decide this case at step one of the Chevron analysis. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). We also explain why our colleagues’ parsing of
A. The Language and Structure of the Statute
(a) Arrest, detention, and release
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General—
(1) may continue to detain the arrested alien; and
(2) may release the alien on—
(A) bond of at least $1,500 ...; or
(B) conditional parole....
For certain aliens classified by Congress as “criminal aliens,” however,
(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 [sic] to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
(2) Release
The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.
All members of our en banc panel appear to agree that the mandate of paragraph (2) of
This attempt at deputizing an adverbial phrase into service as a description of the noun “alien” pays little heed to customary conventions of grammar and syntax. “An adverb, an adverbial phrase, or an adverbial clause may qualify several parts of speech, but a noun is not one of them.” Theodore M. Bernstein, The Careful Writer, A Modern Guide to English Usage 23 (1965). Conversely, adjectives (like those in subparagraphs (A)-(D)) are “good friends of the noun.” H.W. Fowler, A Dictionary of Modern English Usage 10 (Sir Ernest Gowers ed., 2d ed. 1965); see also Merriam-Webster‘s Collegiate Dictionary 19 (11th ed. 2012). We do not mean to say that there are never circumstances in which writers might employ an adverbial phrase in the manner employed by our colleagues. Poetic license, after all, knows few bounds. Rather, we say merely that if a straightforward reading of the text employing basic, conventional usages of grammar points directly at a given interpretation, it should take some pretty heavy lifting to reject that interpretation, much less to reject it as not even within the zone of reasonableness.
Nor is grammar the only enemy of petitioners’ preferred reading of the text. Structure argues against petitioners as well. After stating what the Attorney General must do to “any alien who—,” paragraph (1) sets down in four separately indented and lettered subsections the four clauses that plainly describe an alien, relegating the adverbial “when” phrase back to unlettered and unindented text. We thus not only have four adjectival clauses that obviously describe the noun “alien” and one adverbial phrase that less readily does so, but we also have a format that literally and visually sets the four descriptions apart from the adverbial phrase. This structure directly reinforces the reading of the “when” phrase as qualifying the verb “take” in the clause “[t]he Attorney General shall take into custody” rather than as describing “any alien[s].”
We also find it significant that the language and structure of
We have good company in concluding that it is reasonable to read
In gauging the import of the foregoing textual analysis, we must also express a reservation concerning our colleagues’ interpretative methodology. At several steps in their analysis, they confront an interpretative guide that cuts against them (e.g., adverbs usually do not describe nouns, the layout of the subheadings supports a grammatical reading, the Supreme Court‘s short-hand summary of the statute is informative). In each case, our colleagues correctly note that the guide is not
This is not to say that we end our own inquiry at this point. To the contrary, we accept the notion that most statutes must be read with a sense of what Congress was trying to do, and that such a sense may be derived from knowledge gained outside the four corners of the text, keeping in mind the weighty role that the text must continue to play. We also agree with our colleagues—and with the BIA—that the statutory language is not so plain as to foreclose all extra-textual inquiry. So, for that reason, and particularly because the actual language at issue touches upon matters of both personal liberty and the control of our nation‘s borders, we think it reasonable to look next at the legislative history to determine whether one can say that the straightforward, grammatically conventional reading of the statute comports with a reasonable interpretation of what Congress was trying to accomplish.
B. Legislative History
Our review of the legislative history begins with the most directly pertinent legislative history: the conference report to the IIRIRA. Regarding
New section 236(c) provides that the Attorney General must detain an alien who is inadmissible under section 212(a)(2) or deportable under new section 237(a)(2). This requirement does not apply to an alien deportable under section 237(a)(2)(A)(i) on the basis of an offense for which the alien has not been sentenced to at least 1 year in prison. This detention mandate applies whenever such an alien is released from imprisonment, regardless of the circumstances of the release. This subsection also provides that such an alien may be released from the Attorney General‘s custody only if the Attorney General decides in accordance with 18 U.S.C. 3521 that release is necessary to provide protection to a witness, potential witness, a person cooperating with an investigation into major criminal activity, or a family member or close associate of such a witness or cooperator, and such release will not pose a danger to the safety of other persons or of property, and the alien is likely to appear for any scheduled proceeding.
H.R. Rep. No. 104-828, 1996 WL 563320, at *210-11 (1996) (Conf. Rep.).
It is beyond dispute that the phrase “such an alien” as used in the third sentence of the conference report refers back to the aliens who are described in the first two sentences, neither of which contains (as either adjective or adverb) any requirement that the person be recently released. The third sentence simply tells us when the new custody mandate applies to “such an alien.” It is also entirely fair to presume that the same phrase “such an alien” means the same thing in the fourth sentence‘s description of what the statute
We recognize that our colleagues manage to read even this directly authoritative legislative history as indicating that Congress intended to leave the no-release mandate contingent on how quickly the Attorney General complied with the detention mandate. While we have much difficulty seeing this, we need only for present purposes protest that such a reading is hardly compelling. It is our colleagues, not us, who must claim a monopoly on reasonableness.
We move next to the 1995 Senate Report that directly sets forth the substance of congressional concerns resulting in the enactment of the IIRIRA. S. Rep. No. 104-48 (1995). Treating the report as if it were Oz‘s man behind the green curtain, our colleagues urge the reader to pay no attention to it. But the Supreme Court itself in Demore directly turned to this report for precisely the same purpose that guides us to look at the report: understanding the aims of Congress in enacting
Nor did Congress give any reason to think that this concern disappeared merely because the criminal alien was not detained for a period of time before deportation proceedings began. To the contrary, the “deportable criminal aliens [who] failed to appear for their removal hearings,” Demore, 538 U.S. at 519, were all those aliens who were not being held in INS custody. In this respect, it is helpful to keep in mind the actual interpretation of the statute that petitioners urge. They repeatedly argue that Congress would not have been concerned about allowing immigration judges to predict flight risk for criminal aliens who have “long since returned to their communities.” But their reading of the statute would mean that all criminal aliens who avoid detention “when ... released” would be entitled to a shot at convincing an immigration judge that the alien would voluntarily surrender if removal is ordered. And this would be so whether the alien has been free from prior criminal custody for a week or for five
Of course, one could argue that the immigration judges will not release obvious flight risks. But that is presumably what immigration judges were trying to do before Congress concluded that it had insufficient confidence in the immigration judges’ ability to make ad hoc predictions, and opted for the categorical treatment of four groups of aliens who are most likely to be removed. To now say that the executive, merely by failing to detain a criminal alien promptly, can revive the immigration judges’ ability to pick and choose who gets released on bail would be a result directly at odds with what Congress plainly sought to achieve. Cf. King v. Burwell, 576 U.S. 473, 135 S. Ct. 2480, 2496 (2015) (rejecting an interpretation of the Affordable Care Act that would lead to the “result that Congress plainly meant to avoid“).
Nor does it help petitioners to argue that Congress‘s concern about recidivism is somehow inapplicable categorically for those criminal aliens who have “lived in the community” for some undefined period of time post-release. In the first place, there is no compelling evidence in the record that Congress meant
The legislative record, like Conan Doyle‘s dog that did not bark, also conveys much by what it does not say. See Chisom v. Roemer, 501 U.S. 380, 396 & n.23 (1991). Imagine, for example, that petitioners were correct: if a criminal alien were not detained immediately upon release from prison, that alien would have a right to convince an immigration judge that the alien is not a flight risk. And, as our colleagues read the statute, this right would belong to every alien not detained upon release, whether or not the alien settled in any community, or took efforts to hide, or even went on a crime spree. If that had been Congress‘s aim, it is unlikely that there would be no acknowledgement of such a loophole, nor any language in the statute defining and limiting the loophole.
Similarly, if the entire mandatory detention regime hinged on whether the criminal alien was detained “when ... released,” one would have expected Congress to pay some attention to defining that term. How much time is too much? What if the alien hides? What if the alien commits a new crime? What if the state prison does not cooperate, making it impossible for federal agents to know when the alien will leave state custody? There is no evidence that Congress viewed its legislation as raising such questions, all of which have been nose-on-the-face obvious had Congress intended the statute to be read as petitioners would have us read it. Precisely to the contrary, the entire focus was broadly and categorically on “[u]ndetained criminal aliens.” See S. Rep. No. 104-48, at 2.
Particularly noteworthy in this regard is the fact that the drafters were well aware
Our knowledge of how Congress chooses to affect the removal process of criminal aliens in other provisions of the U.S. Code dovetails with our understanding of Congress‘s purpose in enacting
Congress‘s focus in related legislation on making it more difficult for criminal aliens to successfully contest a removal order also reinforces the view that Congress aimed to deal with such aliens categorically. In saddling criminal aliens with many burdens not imposed on aliens who reside in the United States without committing crimes viewed by Congress as especially relevant to immigration status, see supra note 43, Congress has drawn no distinction based on when the alien is detained. Evidence of living in the community for years post-release does not eliminate the legal disabilities in removal proceedings imposed by the prior commission of certain criminal acts. On the contrary, during the years preceding the IIRIRA and within the IIRIRA itself, Congress actively sought to narrow the group of criminal aliens eligible for relief based on duration of residency. For example, prior to the IIRIRA, many aliens with “a lawful unrelinquished domicile of seven consecutive years” could seek relief from removal despite their prior criminal activity. See INS v. St. Cyr, 533 U.S. 289, 295 (2001) (quoting sec
We have also considered the language governing
Most notably, the effective date provision states that
That thumb is particularly large in this case, where (unlike in King), Chevron applies. See King, 135 S. Ct. at 2488-89 (declining to apply the Chevron two-step framework because if “Congress wished to assign [interpretation] to an agency, it surely would have done so expressly“). Here, we are first asked whether Congress has spoken clearly and directly to the question at issue, and second whether the BIA‘s interpretation is a reasonable one. The surplusage caused by petitioners’ interpretation at once makes the interpretative path they walk less direct and the BIA‘s reading in Rojas more reasonable. Cf. Nat‘l Credit Union Admin. v. First Nat‘l Bank & Tr. Co., 522 U.S. 479, 501 (1998) (reject-that
Even putting to one side the surplusage ramification, the TPCR provides no support for petitioners’ position because it simply raises the same interpretative question that
First, they point out that the transition rules set forth in the TPCR contain language stating that, should the Attorney General as anticipated invoke the transition rules,
In this manner, our colleagues imagine a problem that does not exist in order to advocate a solution that is not required. There is no need to interpret the TPCR in this manner to make its duties “less sweeping” than those imposed by
More fundamentally, our colleagues’ premise that language in the TPCR need be rendered superfluous in order to cure a perceived “anomaly” between the TPCR and
Second, our colleagues complain that, in some instances, the BIA‘s reading of
Our colleagues also lean hard on the meaning they derive from
(A) The Attorney General shall take into custody any alien convicted of an aggravated felony upon release of the alien (regardless of whether or not such release is on parole, supervised release, or probation, and regardless of the possibility of rearrest or further confinement in respect of the same offense). Notwithstanding [the equivalent of section 1226(a)] ... but subject to subparagraph (B), the Attorney General shall not release such felon from custody.
(B) The Attorney General may not release from custody any lawfully admitted alien who has been convicted of an aggravated felony, either before or after a determination of deportability, unless the alien demonstrates to the satisfaction of the Attorney General that such alien is not a threat to the community and that the alien is likely to appear before any scheduled hearings.
INA § 242(a)(2) (1991) (emphasis added).
Under subparagraph (B) (the equivalent of
Our colleagues point, instead, only to an off-point BIA opinion, Matter of Eden, 20 I. & N. Dec. 209 (BIA 1990), as reflecting the pre-IIRIRA law that Congress sought to preserve. But the question of whether a delay in detaining a criminal alien eliminated the Attorney General‘s obligation to deny bond once the alien was detained was not even raised as an issue in Eden. Rather, the case involved an alien who had been taken into immigration custody while on “special parole” as part of his criminal sentence. The question posed was whether subjecting such a person to mandatory immigration custody without bond was inconsistent with “Congress’ decision to allow [an] alien serving time in [a] state or local facility to finish out that time before the Service assumes responsibility for his incarceration.” Id. at 214.
It is true that, under Rojas‘s reasoning, the BIA perhaps could have reached the same result in Eden merely by saying that once a criminal alien was detained, he could not be granted bond regardless of whether he had yet been released from prior custody. Even under that approach, though, the BIA would have had an interest in clarifying the scope of the Attorney General‘s statutorily mandated duty to detain a criminal alien—and, namely, in clarifying whether conceiving of a duty on the Attorney General to detain a person too soon (i.e., during the course of a prior sentence) ran up against the congressional intent expressed through the 1988 legislation‘s “upon release” provision. In any event, the simpler point is that there is no holding in Eden, either express or implied, that addresses the issue posed here.48
Compounding their attempt to glean a holding—much less settled law—from Eden, our colleagues then simply misread the House report to the 1990 legislation that revised the clause “upon completion of the alien‘s criminal sentence” to read “upon release of the alien (regardless of whether or not release is on parole, supervised release, or probation ....).” Rightly or wrongly, the report plainly states that Congress was concerned that “[a]t least one immigration judge has ruled that an aggravated felon who has been paroled by the sentencing court continues to serve his ‘sentence’ [and therefore] INS has no authority to incarcerate this alien until
This type of error (presuming that any reference to “immediate” detention without bond implies that a delay in detention makes a bond possible) pervades our colleagues’ entire discussion of the legislative record. When we see Congress repeatedly emphasizing that the government must take criminal aliens into custody “when,” “upon,” or “immediately upon” their release, and then not release them, we see no implied loophole. Rather, we see an increasingly urgent expectation that criminal aliens should be found in custody when the removal decision issues.
We stress, too, that even if one were to ignore these defects in our colleagues’ survey of the legislative history, the most one ends up with are efforts to infer an answer to the question at hand from statements made in addressing other issues where the resolution of those other issues did not require or even call upon a degree of precision that would be necessary to confirm the force of the inference. And in each instance, the actual resolution of the issue at hand is completely compatible with the BIA‘s conclusion in Rojas. Inferences of this type, whether reasonable or not, seem to us to fall far short of the “clear” legislative record one should require to end the inquiry at Chevron step one.
Turning their focus from the 1991 amendment and its predecessors, our colleagues repeat their error in claiming that we should presume that, in enacting the IIRIRA, Congress was aware of the fact that “district courts ... treated the retained ‘upon release’ clause [of AEDPA] as if it conditioned the retained ‘such felon clause.‘” Supra at 33. Our colleagues cite five district court cases as constituting this “existing law” of which Congress was supposedly aware. Three are actually holdings that address retroactivity under AEDPA. Montero v. Cobb, 937 F. Supp. 88 (D. Mass. 1996); Villagomez v. Smith, No. C96-1141C, 1996 WL 622451 (W.D. Wash. July 31, 1996) (unpublished); DeMelo v. Cobb, 936 F. Supp. 30 (D. Mass. 1996), vacated, 108 F.3d 328 (1st Cir. 1997) (per curiam). As for the fourth, we sincerely doubt that Congress managed to dredge up an obscure unpublished opinion from the Southern District of Texas, which to this day remains difficult to locate. See In re Reyes, Case No. B-94-80 (S.D. Tex. May 31, 1996). The fifth, Grodzki v. Reno, 950 F. Supp. 339 (N.D. Ga. 1996), is arguably on point, but was not issued until September 20, 1996, just ten days before the already drafted IIRIRA was passed into law. See Pub. L. No. 104-208, 110 Stat. 3009. In any event, even were all five cases square-ly apposite, five district court opinions
In sum, against a legislative backdrop thick with indications that Congress aimed to ensure that criminal aliens not go free prior to the conclusion of their removal proceedings, our colleagues stake their reading of the statute on one off-point BIA ruling, one district court decision issued ten days prior to the IIRIRA‘s enactment, and the supposedly anomalous results derived from reading
C. Our Colleagues’ Conclusion Falls Short of the Mark
We have explained our disagreement with our colleagues’ argument that no reasonable jurist can read the phrase “as described in paragraph 1” as not incorporating into paragraph 2 the phrase “when released....” Even if we are wrong, though, we agree with the Second, Third, Fourth, and Tenth Circuits that the Attorney General‘s delay in detaining petitioners does not render the no-release mandate inapplicable. Our sister circuits have explained why this is so under the loss-of-authority rubric. See Lora, 804 F.3d at 611-12; Olmos, 780 F.3d at 1324-26; Sylvain, 714 F.3d at 157-61; Hosh, 680 F.3d at 381-83. We prefer to reframe the point as a matter of interpreting the text consistently with the purpose manifest in the text. The key point here is that even if the no-release mandate of paragraph (c)(2) applied by its terms only to persons who have been released from criminal custody, there is no good reason to say also that it applies only when the Attorney General complies with the custody mandate by detaining the criminal aliens right when they are released.
Consider the following example that we have crafted so that its substance and evident purpose invite the type of reading that our colleagues insist is applicable to
(1) Please give an especially thorough watering to any plant that is:
(A) a sunflower, or
(B) a hibiscus
when it is planted for the garden show.
(2) Do not let a plant described in paragraph (1) go any day without water unless you are certain that it is dead.
Under the scenario posed by this example, we would agree that it is reasonable to read the reference to plants “described in paragraph (1)” as indicating not all sunflower or hibiscus plants, but rather as indicating sunflower or hibiscus plants that are newly planted for the garden show. This is because our knowledge that certain new plantings need prompt and regular watering gives us a clue for resolving any
Nevertheless, even in this example designed to welcome the type of reading that our colleagues give to
Of course, this conclusion, too, follows in great part from an assumption that the principal purpose of the mandates is to keep the new plants alive. In the case of
D. The Constitutional Avoidance Canon
Since our colleagues rest their decision on Chevron‘s first step, they do not reach the constitutional avoidance argument principally relied upon by petitioners and by the panel opinion we vacated prior to hearing this appeal en banc. See Warger v. Shauers, 574 U.S. 40, 135 S. Ct. 521, 529, 190 L. Ed. 2d 422 (2014) (constitutional avoidance canon “has no application in the absence of ... ambiguity” (omission in original) (internal quotation marks omitted)); Olmos, 780 F.3d at 1321 (citing Warger in declining to consider the canon for purposes of Chevron step one). Because we disagree with our colleagues’ conclusion that no reasonable person can read the statute other than as they read it, we explain why the constitutional avoidance canon, even if it may be appropriately applied at Chevron step two,50 does not
Petitioners’ basic claim in favor of applying the canon is that a statutory command to detain aliens such as petitioners who had peacefully resided in the community for years after their release from criminal custody would raise serious constitutional due process concerns. In accepting this claim, the panel opinion relied on what seems to us to be a doubly flawed reading of Justice Kennedy‘s concurring opinion in Demore.
First, the panel viewed Justice Kennedy‘s concurrence as limiting the Demore majority‘s rationale for upholding section 1226(c). See Castañeda, 769 F.3d at 39 & n.4. The panel appeared to be (erroneously) applying the Supreme Court‘s Marks principle, which instructs that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977) (internal quotation marks omitted). But Justice Kennedy‘s concurrence in Demore explicitly stated that he joined the majority‘s “careful opinion ... in full,” Demore, 538 U.S. at 533 (Kennedy, J., concurring), so nothing therein limits the majority‘s rationale for upholding section 1226(c).
canon‘s precise relevance to the Chevron analysis.
Nor does Justice Kennedy‘s concurrence provide persuasive authority in favor of petitioners’ due process argument. That concurrence expressed no reservation at all, constitutional or otherwise, about the amount of time that passed between the moment an alien became released and the moment of the alien‘s detention. Rather, Justice Kennedy wrote separately to address a concern (which we share) about the amount of time an alien spends in immigration detention while he waits for his removal proceeding. See id. at 532 (“[S]ince the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident alien such as respondent could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” (emphasis added)). The concurrence‘s three citations to Zadvydas v. Davis, 533 U.S. 678 (2001), a case dealing with the constitutional limits upon the duration of post-removal-period detention (and the only court case cited by the concurrence), support that limited reading.
To be sure, the Demore majority addressed only the general application of section 1226(c) to an alien who had committed an (A)-(D) offense, without considering the precise constitutional consideration—the length of time an alien managed to avoid detention post-release—that petitioners now claim requires a resolution in their favor.52 But for the following reasons, we view this as a distinction without a differ
Petitioners’ argument rests on the premise that, once a law-breaking alien has been out of custody for several years, one can no longer regard him as presenting a sufficiently heightened risk of danger or flight, even once the alien finds out ICE now wants to deport him on grounds that will be hard to successfully contest. Neither petitioners nor the vacated panel opinion cite any controlling authority for this proposition, and we have great difficulty accepting this view of flight risk as a matter of common sense. See Olmos, 780 F.3d at 1323 (“[W]e do not abandon Chevron deference at the mere mention of a possible constitutional problem.” (alteration in original) (quoting Kempthorne, 512 F.3d at 711)). It seems to us that Congress could have and did reasonably regard this group of aliens as categorically posing a flight risk because their commission of the designated crimes makes it highly likely that they will be deported if ICE comes knocking. Hence, there is little to lose by trying to hide, especially once a removal order issues. See S. Rep. No. 104-48, at 2-3 (“Undetained criminal aliens with deportation orders often abscond upon receiving a final notification [of removal].... Too often, as one frustrated INS official told the Subcommittee staff, only the stupid and honest get deported.“).
The incentive to flee peaks once the criminal alien knows that ICE has decided to come after him. And while the incentive may be depressed while ICE ignores the alien, once ICE manifests an intention to proceed forthwith, the incentive to flee before the deportation proceeding ends would seem to be unrelated to any delay in making that manifestation.53
The view of petitioners and of the vacated panel opinion on this point is effectively that, if there is an individual fact showing a person poses a lesser risk of flight or danger (e.g., has been living in a community for years), then that person is constitutionally entitled to a bail hearing. See Castañeda, 769 F.3d at 47-48 (“Mandatory detention of individuals such as the petitioners appears arbitrary on its face.“). This view fundamentally pushes back on Congress‘s ability (affirmed in Demore) to say categorically that criminal aliens should not have the ability to flee while awaiting the reasonably prompt conclusion of their deportation hearings.54 We would therefore reject it.
We note, finally, that petitioners have raised no argument based on the duration of their detention, nor have they produced evidence that the BIA‘s interpretation of section 1226(c) will subject them to systemic delays or otherwise prolong the length of their detention prior to a hearing. Cf. Demore, 538 U.S. at 532 (Kennedy, J., concurring). As
II. Conclusion
For the foregoing reasons, we would hold that petitioners have the characteristics of “an alien described in”
UNITED STATES of America, Appellee,
v.
Héctor CORTÉS-MEDINA, Defendant, Appellant.
No. 14-1101.
United States Court of Appeals, First Circuit.
Jan. 6, 2016.
Notes
(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 [
(B) is deportable by reason of having committed any offense covered in [
(C) is deportable under [
(D) is inadmissible under [
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
(2) Release
The Attorney General may release an alien described in paragraph (1) only if ... release of the alien from custody is necessary to provide protection to a witness . . . .
(A) IN GENERAL.—During the period in which this paragraph is in effect pursuant to paragraph (2), the Attorney General shall take into custody any alien who—
(i) has been convicted of an aggravated felony . . . ,
(ii) is inadmissible by reason of . . . ,
(iii) is deportable by reason of having committed any offense covered in . . . , or
(iv) is inadmissible under . . . ,
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
(B) RELEASE.—The Attorney General may release the alien only if the alien is an alien described in subparagraph (A)(ii) or (A)(iii) and—
(i) the alien was lawfully admitted to the United States and satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding, or
(ii) the alien was not lawfully admitted to the United States, cannot be removed because the designated country of removal will not accept the alien, and satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.
Our colleagues, but not the government or Rojas itself, contend that the canon against surplusage supports Rojas‘s reading of the cross-reference in