Castañeda v. SouzaCastañeda v. Souza
Lead Opinion
Opinion En Banc
The judgments entered in the district courts are affirmed by an equally divided en banc court. See Savard v. Rhode Island,
Opinions follow.
with whom TORRUELLA and THOMPSON, Circuit Judges, join.
Congress has long given the Attorney General discretion to decide whether to take aliens who are subject to removal into immigration custody. Congress also has long given the Attorney General discretion to decide whether to release on bond aliens who are in immigration custody while their removal proceedings are pending. Nearly thirty years ago, however, Congress began enacting a succession of similar but slightly revised immigration detention mandates that limited the Attorney General’s detention discretion in certain respects. These consolidated appeals require us to decide the scope of the present version of this detention mandate, codified in 8 U.S.C § 1226(c).
Much like its precursors, this detention mandate first directs that the Attorney General shall take into custody certain “criminal aliens” — as defined by their commission of specified offenses — “when [they are] released” from criminal custody. And, much like its precursors, this detention mandate then bars the Attorney 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,
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
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. Ill § 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 Genera] “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; An-titerrorism 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
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
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.
And that is the case here. In light of both the Act’s structure, see F.D.A. v. Brown & Williamson Tobacco Corp.,
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.
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.
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 [
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,
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 IIRI-RA 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.
C.
The legislative history confirms that Congress intended the cross-reference in
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 “ensuring] 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),
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 “requirfing] [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.,
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
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),
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.,
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)(l)’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.
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,
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,
The part of the conference report to the IIRIRA that describes
The conference report states that “[tjhis 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),
Consistent with this conclusion, the legislative history to the subsection that would become
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(1), § 1503, at 148 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6554,
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.,
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,” id. at 160,
Given this distinct context, the key question is whether Congress intended for the requirement that the Attornéy 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 sub-paragraphs (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,
For these reasons, the principal precedent that the government, like the Third Circuit in Sylvain,
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),
Notes
. This authorization, located in
. Although the Attorney General now shares responsibilities under
.
(c) Detention of criminal aliens
(1) Custody
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any offense covered in [8 U.S.C. § 1182(a)(2) ],
(B) is deportable by reason of having committed any offense covered in [8 U.S.C. § 1227(a)(2)(A)(ii) -(iii),(B)-(D)],
(C) is deportable under [8 U.S.C. § 1227(a)(2)(A)(i) ] on the basis of an offense for which the alien has been sentence [sic] to a term of imprisonment of at least 1 year, or
(D) is inadmissible under [8 U.S.C. § 1182(a)(3)(B) ] or deportable under [8 U.S.C. § 1227(a)(4)(B) ],
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
(2) Release
The Attorney General may release an alien described in paragraph (1) only if ... release of the alien from custody is necessary to provide protection to a witness....
. As these petitioners were released from prison sentences, there is no question they were "released” within the meaning of
.Aliens taken into custody pursuant to
. For example, since his release from criminal custody in 2008, petitioner Clayton Gordon has become a father, bought a house, developed a successful business, and worked on a project to open up a halfway house for women. Castañeda,
. Leiticia Castaneda, a native of Brazil, was arrested in Massachusetts for misdemeanor possession of cocaine, sentenced to probation, and released from custody in 2008. Castañe-da,
. After the panel ruled for the petitioners, the government scheduled bond hearings for each one. Before Castafieda’s bond hearing took place, the government, of its own accord, concluded that she did not pose a flight risk or a danger to the community and released her. Gordon, by contrast, made his case to an immigration judge at a bond hearing, prevailed, and was released as well. These decisions to release the petitioners do not render the present appeal moot. See Sylvain v. Attorney Gen. of U.S.,
. Four other circuits have addressed the issues we address here. In Hosh v. Lucero,
. The line between step one and step two of the Chevron analysis is not always clear. See Saysana,
. According to linguists, "probably the most important thing to understand” about antecedents "is that [antecedents] are not the elements in the text but are those suggested by it, those concepts being evoked or constructed in the reader’s mind.” Bonnie Lynn Nash-Web-ber, Anaphora: A Cross-Disciplinary Swvey 6 (Apr. 1977), http://hdl.handle.net/2142/17886. For discussions about how parts of speech do not dictate resolution of the linguistic issue
. Our colleagues argue that Rojas’s reading is reinforced by the fact that the "when ... released” clause is not aligned with subpara-graphs (A)-(D), as if the indentation means to tell the reader of the cross-reference in
. Our colleagues suggest that the Supreme Court has interpreted
. For example, an alien may fall within
. Under any interpretation of "released,” see H.R.Rep. No. 101-681(1), § 1503, at 148 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6554,
. Tellingly, there is no indication in the record or legislative history to the IIRIRA that Congress was any more worried about the release by immigration authorities of criminal aliens already in immigration custody than about the failure of immigration authorities to take criminal aliens into custody in the first place. And thus we do not see a basis for concluding that a Congress concerned about "[ulndetained aliens,” S.Rep. No. 104-48 (1995),
.Our colleagues note that the description in
. In describing the "mandatory detention provision” (i.e.,
. The TPCR, enacted in IIRIRA § 303(b)(3), Pub.L. No. 104208,
(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.
. The two paragraphs in the transition rules are linked by a cross-reference ("the alien”) that differs from the one our colleagues mistakenly assign such weight in construing
. See 142 Cong. Rec. S11838-01,
. Our colleagues try to downplay this anomaly by emphasizing the carve-outs in the TPCR's bar to bonded release. See infra at 54. But these carve-outs are limited ones. IIRIRA § 303(b)(3)(B), Pub.L. No. 104-2.08,
. The "released after” clause would minimize the strange disjuncture between
Our colleagues, but not the government or Rojas itself, contend that the canon against surplusage supports Rojas’s reading of the cross-reference in
. Our colleagues’ reading of the fourth sentence of the report, see infra at 49-50, takes "the Attorney General’s custody” referenced in that sentence to be any custody, even if effected as a matter of discretion under
. The BIA’s decision in Eden, as our colleagues point out, did not involve the particular timing element involved in this case. But that is no matter as Eden is directly on point as to the precise issue for which the government seeks Chevron deference — that is, the relationship between the "custody” and "release” aspects of the present detention mandate. Our colleagues contend otherwise as follows. Our colleagues suggest that even if the BIA in Eden had reached the same result by concluding, instead, that once an aggravated felon was in immigration custody he could not then be released on bond (regardless of whether he had ever been released from criminal custody), the BIA still would have had reason to consider the meaning of the "upon completion” clause. And that is because, our colleagues contend, the BIA would have had an interest in clarifying whether the Attorney General had the authority to place an alien in immigration custody at all, even discretionarily, while that alien was still serving his criminal sentence. See infra at 56. But the BIA had no need to clarify the meaning of the “upon completion” clause for that distinct purpose. And that is because, as the BIA in Eden acknowledged, an alien could have been taken intp immigration custody under the discretionary detention authority conferred by the then-equivalent to
. Congress replaced the “upon completion’’ clause with “upon release of the alien (regardless of whether or not such release is on parole, supervised release, or probation, and regardless of the possibility of rearrest or further confinement in respect of the same offense).” Immigration Act of 1990, § 504(a), Pub.L. No. 101-649, 104 Stat. 4978, 5049-50; H.R.Rep. No. 101-681(1), § 1503, at 148 (1990).
. We do not find our colleagues’ contrary reading of the 1990 House report — in which Congress was supposedly responding to a concern that the "upon completion” clause might be read to displace, as to aliens on parole, the Attorney General’s general and unqualified grant of discretionary authority to take aliens into immigration custody, see infra at 56-57 — persuasive. Congress was responding to Eden and the immigration judge in that case did clearly conclude that the Attorney General had the authority to place an alien on parole in immigration custody under the then-equivalent of
.District courts held that the AEDPA did not apply retroactively to aliens who had been convicted and released from incarceration before its enactment in part because the "upon release” clause implicitly limited the application of the detention mandate, including the aspect of the mandate governing bonded release, to people taken into custody after the AEDPA’s passage. See, e.g., DeMelo v. Cobb,
. Our colleagues, see infra at 55-56, following Rojas's lead, see Rojas, 23 I. & N. Dec. at 122-24, find instructive the 1991 revision to an exception to the bar to bonded release contained in the 1990 detention mandate. See Immigration Act of 1990, § 504(a), Pub.L. No. 101-649, 104 Stat. 4978, 5049-50; Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, § 306(a)(4), Pub.L. No. 102-232, 105 Stat. 1733, 1751. Rojas contends that the text of the exception to the bar to bonded release (set forth in the revised version of paragraph (B)) shows that the "upon release” constraint in the then-effective detention mandate (set forth in paragraph (A)) limited neither the class of lawfully admitted aliens referenced in (B)’s exception nor "such felon[s]” referenced in (A)'s bar to bonded release. 23 I. & N. Dec. at 124. But as the legislative history just described shows, in crafting that 1990 detention mandate, Congress plainly did intend for the "upon release” requirement to modify the “such felon[s]” who were subject to (A)'s bar to bonded release. We thus see no basis for concluding that Congress suddenly intended to alter the relationship between the "upon release” and "such felon” clauses in paragraph (A) in 1991 by way of a technical amendment to paragraph (B) that does not appear to have been made for any such consequential purpose. See Cong. Research Serv., Summaries for Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (H.R.3049, 102nd Cong.), https:// www. govtrack.us/congress/bills/102/hr3049/ summary (summarizing the 1991 revision as applying the exception in (B) to all "lawfully-admitted aliens” as opposed to just aliens "lawfully admitted for permanent residence”). Consistent with a modest understanding of the 1991 technical revision’s import, we read (B)- — by virtue of the fact that (A) is "subject to paragraph (B)” — to refer merely to a subset of "such felon[s]” in (A), which is to say felons taken into immigration custody "upon release.” In any event, we question the salience of paragraph (B) for present purposes given that it had been deleted by the AEDPA by the time Congress got around to enacting the IIRIRA, see AEDPA § 440(c),
. Our colleagues find support for Rojas in Congress’s evident intent to make it more difficult for certain criminal aliens to obtain relief from a final order of removal, see infra at 51-52, on the apparent assumption that the risk of flight is greater for aliens who are more certain to be removed (and this class is an especially dangerous one). But the petitioners have not yet faced a definitive adverse judgment in their removal proceedings and so may not in fact be removed. Moreover, aliens taken into custody under
. Although the government suggests that Rojas construed "when” to mean, in effect, "any time after,” Rojas did not, as it held that the word was irrelevant to
. The Rojas concurrence suggested that the "when ... released” clause in (c)(1) does not impose a timing constraint because it modifies only the offenses denominated in subpar-agraphs (A)-(D) of (c)(1), rather than the duty to "take into custody." See Rojas, 23 I. & N. Dec. at 128-29 (Moscato, concurring and dissenting). Neither the BIA, the government, nor our colleagues advance this view, however, and we see no basis for this view given the structural placement of the clause.
. The government and our colleagues contend that it is implausible that Congress would have exempted aliens from
. Our colleagues contend that the petitioners’ view of "when” would be at odds with the canon against surplusage in light of the "released after” clause of the IIRIRA § 303(b)(2). But we do not see how. At worst, the "released after” clause is a clarifying provision in an ancillary and potentially never operative measure. Cf. In re Fahey,
. In fact, as we have noted, just prior to conference on the IIRIRA, a leading Senate sponsor of the IIRIRA described
. Our colleagues, in concluding that "when” merely expresses a preference for timely action, do not rely on loss-of-authority principles. See infra at 58-59. They instead reason that even if Rojas is wrong, whether an alien was timely taken into immigration custody is just an exogenous fact and thus does not have any bearing on the class of aliens to whom
. That Congress intended to craft a relatively narrow detention mandate is hardly implausible: After all, Congress did not adopt the recommendation in the 1995 Senate report to expand the class of aliens subject to mandatory detention to "all criminal aliens.” See S.Rep. No. 104-48 (1995),
. The Second Circuit held that, to avoid "serious constitutional concerns,”
. Our colleagues’ gardening example is of little help in establishing the context for discerning Congress’s intent in enacting a detention mandate that "touches upon matters of both personal liberty and the control of our nation's borders.” See infra at 49. As for our colleagues' suggestion that Congress had "no good reason” to distinguish between aliens timely taken into custody and aliens not timely taken into custody, our prior decision in Saysana supplies a compelling reason, see Saysana,
. In fact, the legislative history accords with the notion that Congress wanted to limit
. The Supreme Court's decision in Barnhart,
Concurrence Opinion
(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,
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
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.,
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 insection 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered insection 1227(a)(2)(A)(ii) , (A)(iii), (B), (C), or (D) of this title,
(C) is deportable undersection 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 undersection 1182(a)(3)(B) of this title or deporta-ble undersection 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 Modem 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 Modem 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)® 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,
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,
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, — U.S. -,
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,
Similarly, if the entire mandatory detention regime hinged on whether the criminal alien was detained “when ... released,” one would have expected Congress to pay some attention to defining that term. How much time is too much? What if the alien hides? What if the alien commits a new crime? What if the state prison does not cooperate, making it impossible for federal agents to know when the alien will leave state custody? There is no evidence that Congress viewed its legislation as raising such questions, all of which would have been nose-on-the-face obvious 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 “[ujndetained 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 aliéns who reside in the United States without committing crimes viewed by Congress as especially relevant to immigration status, see swpra 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,
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,
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 ofsection 1226(a) ] ... but subject to subpara-graph (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.
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,
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,
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, — U.S. -,
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,
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,
To be sure, the Demore majority addressed only the general application of
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,
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,
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
II. Conclusion
For the foregoing reasons, we would hold that petitioners have the characteristics of “an alien described in”
. An alien who is "deportable by reason of having committed” an aggravated felony falls under
. The INA contains numerous other examples of ways in which Congress has made it more difficult for criminal aliens to avoid removal. For instance, in removal proceedings, lawful permanent residents convicted of crimes involving moral turpitude may not qualify for a discretionary waiver of remova-bility, because commission of a crime of moral turpitude tolls the accrual of the seven years of residence required for cancellation of removal. See
. The TPCR imposed a more permissive regime that, due to Congress’s concerns about bed space shortages, governed bond determinations for two years after the IIRIRA’s effective date and prior to
. We agree with the actual holding in Saysa-na v. Gillen,
. Our colleagues point out that there is no legislative history suggesting that Congress was more hostile to the discretion of immigration judges in determining whether to grant bonded release to a criminal alien than to the discretion of immigration enforcement in determining whether to bring a criminal alien into immigration custody in the first place. But this is immaterial. Given that we apply Chevron deference, it is incumbent on our colleagues to demonstrate that it clearly lay outside of Congress’s intent to adopt a statutory scheme that would not require immigration enforcement to track down and detain each and every criminal alien, including the low-level narcotics offender, but that would allow immigration enforcement to rest assured that efforts to detain those criminal aliens who do represent enforcement priorities would not go for naught due to the miscalculation of an immigration judge at the alien’s bond hearing.
. Immigration Act of 1990, § 504, Pub.L. No. 101-649, 104 Stat. 4978, 5049; Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, § 306(a)(4), Pub.L. No. 102232, 105 Stat. 1733, 1751 (effective as if included in the 1990 Act).
. Not even the dissent in Rojas cites Matter of Eden.
. Our colleagues suggest that our distinction between exogenous and endogenous characteristics cuts too fine. We will simplify.
. An en banc panel of the Ninth Circuit determined that the constitutional avoidance canon “plays no role in the second Chevron inquiry.” Morales-Izquierdo v. Gonzales,
. The Third and Fourth Circuits did not address the constitutional avoidance argument that petitioners press here. See Sylvain,
. Perhaps since he was detained the day after his release, Kim v. Ziglar,
. Imagine Aliens A and B in a detention center, each having committed the same
. Many statutes and cases in the criminal sentencing area give equal weight to prior criminal convictions irrespective of whether the individual was recently released from custody. A person qualifies, for example, for mandatory life imprisonment as a "violent felon” whether his predicate convictions occurred last year or six years ago. See
. Petitioners do not argue that they qualify for the witness protection exception in