Castaneda v. SouzaCastaneda v. Souza
Case Information
*4 DYK, Circuit Judge.
In these consolidated habeas cases,
we must determine whether the petitioners, two aliens, are subject
to the mandatory detention provision of the Immigration and
Nationality Act,
Each of the petitioners here committed a predicate crime
listed in
A.
The mandatory detention provision of
(a) Arrest, detention, and release
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) [the mandatory detention provision] of this section and pending such decision, the Attorney General— (1) may continue to detain the arrested alien; and (2) may release the alien on—
(A) bond of at least $1,500 . . . ; or (B) conditional parole . . . .
The process by which the Attorney General determines
whether an alien will be released on bond pursuant to subsection
(a) is governed by administrative regulations. See generally
An alien dissatisfied with his initial bond determination
may request a redetermination of bond by an administrative
immigration judge.
No judicial review is available for an alien’s bond determination. The statute provides:
The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.
B.
The mandatory detention provision,
The predicate crimes for mandatory detention include
aggravated felonies, crimes of moral turpitude, human trafficking,
certain firearm offenses, treason, espionage, terrorism, and
various others. See
The relevant text of subsection (c) reads as follows: (c) Detention of criminal aliens
(1) Custody
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, (C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
(2) Release
The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to [18 U.S.C. § 3521 ] that release of the alien from custody is necessary [for witness protection in a major criminal case], and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.
C.
In Demore v. Kim,
While the Court’s opinion in Demore did not articulate
limits on the permissibility of mandatory detention, Justice
Kennedy in joining the majority opinion made clear that in his view
Justice Kennedy began his concurrence by noting that,
since mandatory detention under
Justice Kennedy’s concurrence thus suggests that an
“unreasonable delay by [ICE] in pursuing . . . deportation
proceedings” could make mandatory detention under subsection (c)
constitutionally suspect and requires a limiting construction. We
must determine here whether the government’s years-long delay means
that the petitioners are entitled to an individualized bond hearing
under
II.
A.
Leiticia Castaneda is a native and citizen of Brazil.
Castaneda entered the United States without inspection (illegally,
that is) in 2000. Castaneda was seventeen years old at the time.
In 2008, Castaneda was arrested for possession of cocaine, a
misdemeanor under Massachusetts law and listed predicate for
mandatory detention under
In March 2013, four and a half years after her conviction
and release in 2008, Castaneda was arrested, detained, and charged
with removal by ICE agents.
[5]
The stated ground for removal was
Castaneda’s inadmissibility due to her cocaine possession
conviction. Castaneda appears not to have disputed her criminal
status or removability. She did, however, seek release on bond for
the duration of her removal proceedings under
Castaneda then filed a petition for writ of habeas corpus
in the District of Massachusetts. The petition alleged that
Castaneda’s detention without opportunity for release on bond was
unauthorized by law because she was not detained
“when . . . released” from criminal custody as required by
*14
After a hearing, the district court granted Castaneda’s
petition and issued a writ of habeas corpus ordering the government
to release Castaneda unless it provided her a bond hearing within
ten days. The court reasoned that the most natural reading of
“when released” was “immediately upon release,” and therefore, in
light of the statutory context, statutory structure, the rule of
lenity, and the absence of congressional intent to the contrary,
B.
Clayton Gordon is a native and citizen of Jamaica. Gordon arrived in the United States as a lawful permanent resident in 1982, at the age of six. Between 1994 and 1999, Gordon served in the National Guard and on active duty with the U.S. Army. He received an honorable discharge in 1999.
Gordon was arrested in 2008 after police found cocaine in
his home. He was released from custody later that day. He
subsequently pled guilty to possession of narcotics with intent to
*15
sell, a violation of Connecticut law. See
Gordon was arrested and detained by ICE on June 20, 2013,
more than four years after his release from state custody. The
stated basis for removal was
On August 8, 2013, Gordon filed a petition for writ of habeas corpus in the District of Massachusetts. The petition argued that he was not subject to the mandatory detention provision *16 because he was not taken into immigration custody “when . . . released” from state criminal custody. Gordon sought an individualized bond hearing at which he could establish his entitlement to release on bond.
After a hearing, the district court granted Gordon’s petition for writ of habeas corpus, instructing the government to provide Gordon with a bond hearing. The court held that “when released” should be interpreted to mean “at the time of release,” plus a reasonable time thereafter. The court rejected the idea that a five year gap was reasonable and rejected the government’s argument that “when released” indicated the time at which it can begin to act as “flatly implausible.” Gordon was given a bond hearing and was released on bond of $25,000 on November 18, 2013. [6]
C.
The government appeals, and we have jurisdiction under
III.
In these appeals the government asks for reversal of the
grant of habeas corpus to Castaneda and Gordon and a determination
that they are subject to mandatory detention. In the government’s
view,
A.
We first address the meaning of the “when . . . released”
clause in
The government’s proposed interpretation--“at any time after release,” but not before release--is simply inconsistent with the plain meaning of the term “when” in this context. To be sure, the term “when” can be used in different ways. The Random House Dictionary of the English Language lists three potentially relevant senses: “at the time or in the event that,” “at any time that; whenever,” and “upon or after which; and then.” Random House Dictionary of the English Language 1626 (1981 ed.). See also Webster’s Third New International Dictionary 2602 (1993 ed.) (listing four: “at or during the time that,” “just after the moment that,” “at any and every time that,” and “in the event that”); American Heritage Dictionary 2032 (3d ed. 1992) (listing four: “at the time that,” “as soon as,” “whenever,” and “during the time *19 which; while”); 20 Oxford English Dictionary (“OED”) 209 (2d ed. 1989) (listing two principal senses: “[a]t the (or a) time at which; on the (or an) occasion on which”).
The government is correct in its assertion that one sense of “when” is similar in meaning to the word “after,” that is, not before. The government contends that it is in this conditional sense that the word “when” is used in this statute. The government relies on dictionary definitions and cases pertaining to the use of “when” in the conditional sense--meaning, roughly, “if” or “in the event that.” See Random House, supra, at 1626 (“at any time; whenever”); 20 OED, supra, at 209 (“[i]ndefinitely or generally: [a]t any time, or at the several times, at which; on any occasion that”); Webster’s Third, supra, at 2602 (“in the event that : on condition that”); American Heritage, supra, at 2032 (“[w]henever”); Random House, supra, at 1626 (“upon or after which”).
The Supreme Court’s decision in United States v. Willings
demonstrates both that the word “when” is not used in
In contrast to the statute at issue here, the statute in
Willings repeatedly employed the phrase “in every such case,”
strongly suggesting that “when” was intended in the conditional
sense, rather than the temporal sense. We think it clear that
Willings, moreover, makes clear that “when,” used in the conditional sense, means that the specified action must be taken *21 within a reasonable period of time after the triggering event or condition. Id. at 56 (rejecting that “when” means the “precise time,” and explaining that a ship must be allowed “a reasonable interval” of time after transfer or sale in which to register, “depend[ing] on the nature of the case”). There is no textual support for the government’s argument that “when . . . released” means “at any time after release.”
Nor do the structure, purpose, or legislative history of
the statute suggest that Congress contemplated automatic
detention’s being imposed years after an alien’s release from
custody. The
When the government has delayed several years before arresting an alien, the presumption of dangerousness and flight risk is eroded by the years in which the alien lived peaceably in the community. As this court explained in Saysana,
it is counter-intuitive to say that aliens with potentially longstanding community ties are, as a class, poor bail risks. The affected aliens are individuals who committed an offense, and were released from custody for that offense, more than a decade ago. They have continued to live in the United States. By any logic, it stands to reason that the more remote in time a conviction becomes and the more time after a conviction an individual spends in a community, the lower his bail risk is likely to be.
Finding no support in the statute’s text, structure, purpose, or legislative history, we reject the government’s argument that “when . . . released” could mean “at any time after release,” but not before release. [8]
*23 This leads us to the petitioner’s interpretation. While we reject the “at any time after” interpretation, we also think that, contrary to the petitioners, “when . . . released” does not mean “immediately upon release, without interruption.” Nothing in subsection 1226(c) compels such a reading of the phrase. As the dictionaries show, the temporal sense of “when” typically connotes a degree of immediacy. See American Heritage, supra, at 2032 (defining “when” as “as soon as” and giving the following example: “I’ll call you when I get there.”); 20 OED, supra , at 209 (“[s]ometimes implying suddenness: = and just then, and at that moment”); Webster’s Third, supra, at 2602 (“just after the moment that”). This is confirmed by common usage. One would not say “stop writing when the bell rings” to mean “any time after the bell rings, even hours later.” See Webster’s Third, supra, at 2602 Thus, “when” in this context connotes temporal immediacy. See Random House, supra, at 1626; 20 OED, supra, at 209; Webster’s Third, supra, at 2602; American Heritage, supra, at 2032. But, what constitutes immediacy is be determined by context.
It seems quite unlikely that Congress intended
“Words, like syllables, acquire meaning not in isolation
but within their context.” K-Mart v. Cartier,
As in Willings, the reasonable time within which the government must detain an alien to satisfy the “when . . . released” clause will depend on the practical necessities at hand. Since what is reasonable under the circumstances is not defined in the statute, we think the statute is ambiguous in that respect. As in other cases of statutory ambiguity, the Attorney General therefore has considerable latitude to define what constitutes a reasonable time under the Chevron framework.
Under Chevron, the interpretation must be a reasonable
interpretation of the statute. Chevron, U.S.A. v. Natural Res.
Def. Council, Inc.,
B.
Notwithstanding
our
conclusion
that
the
“when . . . released” requirement was not met here, the government
claims support in a line of Supreme Court cases holding that
failure to comply with a statutory deadline did not deprive the
government of authority to act. See, e.g., Barnhart v. Peabody
Coal Co.,
In our view, those loss of authority cases fall into two
discrete categories. On the one hand there are cases that involve
housekeeping provisions--that is, time limitations that are
procedural, horatory, advisory, or precatory, and are designed to
regulate the functioning of the government and “spur” the
government into action (see Brock v. Pierce Cnty.
On the other hand, there is another category of cases such as Montalvo-Murillo, in which the statute is not a housekeeping provision but is rather designed to protect the rights of individuals. In such circumstances a more nuanced approach is required. [12]
*29
We first address whether this statute falls in the
housekeeping category. Two other circuits have concluded that it
does, and therefore ruled that aliens such as the petitioners were
subject to mandatory detention despite years-long delays by the
government. See Sylvain, 714 F.3d at 159 (“[T]he mandatory-
detention statute is intended to protect only the public . . . .”);
Hosh,
In determining the congressional purpose behind
Justice Kennedy cautioned in Demore that, “since the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident alien . . . could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” 538 U.S. at 532 (Kennedy, J., concurring). He continued: “Were there to be an unreasonable delay by [ICE] in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons.” Id. [13] As a constitutional matter, mandatory detention can only be justified by the presumption of dangerousness and flight risk posed by newly released criminal defendants. But those who have resided in the community for years after release cannot reasonably be presumed either to be dangerous or flight risks. This is particularly so *31 given the breadth of offenses to which 1226(c) applies, and the inclusion of offenses such as non-violent drug possession. Mandatory detention of such individuals years after release for such crimes raises serious constitutional questions. The government acknowledged at oral argument the harsh consequences of “uprooting these individuals from the community,” a feature which only underscores the arbitrary nature of the detention. [14]
Despite its years-long delay in bringing removal proceedings after the petitioners’ release from criminal custody, the government has offered no explanation for either the delay or the eventual decision to prosecute in these individual cases or, for that matter, in the other cases where individuals have been detained years after release. Indeed, when the district court ordered that the petitioners be given bond hearings, the government released each one, thereby indicating that the government actually viewed them as neither dangerous nor likely to flee. Castaneda was even released on her own recognizance (i.e., without a monetary bond) and before her bond hearing even took place.
Mandatory detention of individuals such as the
petitioners appears arbitrary on its face. We are left to wonder
*32
whether the petitioners’ sudden arrest and detention is not “to
facilitate deportation, or to protect against risk of flight or
dangerousness, but to incarcerate for other reasons,” which would
offend due process. Zadvydas, 533 U.S. at 690. Under these
circumstances, we think
The government argues that even if
The cases before us stand in stark contrast to Montalvo-
Murillo, and the absence of the factors the Court found compelling
there dictates the opposite result here. First, the district
courts here did not “invent” a remedy unsupported by the statute’s
text. Rather, the grant of limited habeas relief requiring a bond
hearing reflected the structure of the detention provisions as a
whole. Mandatory detention under subsection (c) is an exception;
general detention under subsection (a) is the default rule. See
Second, unlike Montalvo-Murillo, the district court
decisions here did not strip the Attorney General of authority to
detain the petitioners. Under
Third, unlike Montalvo-Murillo, the remedy here is not
drastic. The lower courts in Montalvo-Murillo “mandat[ed] release
of possibly dangerous defendants.” Montalvo-Murillo,
In light of these significant differences, we think that Montalvo-Murillo does not apply here, and that violating the command of the statute for detention “when . . . released” is properly enforced by requiring an individualized hearing.
IV.
AFFIRMED
Costs to appellees.
Notes
[1] Predicate crimes under
[2] Although the Attorney General now shares these responsibilities with the Secretary of Homeland Security (see Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 402, 441,
[3] An alien may be released if the Attorney General
concludes that his release is necessary for witness protection
purposes related to a major criminal prosecution or investigation.
[4] See Bruno & Stillman, Inc. v. Globe Newspaper Co., 633
F.2d 583, 594-95 (1st Cir. 1980) (construing the Supreme Court’s 5-
4 decision in Branzburg v. Hayes, 408 U.S. 665 (1972), to be
limited by the concurring opinion of Justice Powell); accord, e.g.,
United States v. Smith,
[5] The statute provides that Castaneda’s period of probation
is not to be considered in determining her date of release.
[6] Gordon’s petition also sought class-wide relief for all similarly situated individuals, but that claim is not before us. The decision on appeal is the district court’s grant of Gordon’s individual petition. The class-wide claims remain pending before the district court.
[7] The government contends that “[u]pon initiation of removal proceedings, however, the threat of removal becomes real, and the likelihood that a criminal alien will flee to evade proceedings only begins at that moment.” Gordon Reply Br. at 10. This theory is speculative and exists with respect to all detainees, not only to detainees who have been convicted of a predicate offense. Congress made no decision to apply mandatory detention to all detainees who become potential flight risks when detained. Rather, Congress focused on the predicate offense.
[8] The government relies on In re Rojas, 23 I. & N. Dec. 117 (BIA 2001) for this construction, claiming that “[t]he BIA [] recognized that ‘when’ could mean . . . at or after the specified point in time.” Gov’t Gordon Br. 17. We do not read Rojas as
[9] “[Text] should be construed reasonably, to contain all that it fairly means.” Scalia, J., A Matter of Interpretation , (1997).
[10] The government’s briefs focus on the question of whether
the “when . . . released” clause is satisfied by the detention of
an alien years after release from state custody. In the
alternative, the government argues that paragraph (2) of subsection
(c), bars release of the alien regardless whether the alien was
taken into custody pursuant to paragraph (1). See
[11] We do not read Hosh or Sylvain as coming to a contrary
conclusion. Hosh only addressed whether “when” meant immediately,
and, as we do today, held that “when,” in this context, does not
require strict immediacy. Hosh never stated that “when” is an
entirely open-ended time period; indeed, the court acknowledged
that the statute “connotes some degree of immediacy”. Hosh, 680
F.3d at 381. Sylvain failed to even address the meaning of “when.”
Sylvain ,
[12] See French v. Edwards, 80 U.S. 506, 511 (1871), which explained that provisions “designed to secure order, system, and dispatch proceedings” “are not usually regarded as mandatory unless accompanied by negative words,” “[b]ut when the requisitions prescribed are intended for the protection of the citizen,” and that “a disregard of which his rights might be and generally would be injuriously affected,” the provisions “are not directory but mandatory.” Id.
[13] While Justice Kennedy’s concerns were limited to the case of “a lawful permanent resident alien,” id. at 532, which Castaneda is not, we do not interpret the mandatory detention provision differently as to her or other unlawful or non-permanent resident aliens. The text of the statute provides no basis for such a distinction.
[14] We also note other circuits have raised significant
constitutional concerns associated with arbitrary application of
the statute where long-term detention occurs and have construed
1226(c) as not applying in such circumstances. See Casas-
Castrillon v. Dept. of Homeland Sec.,
[15] We note in conclusion that many district courts across
the country have adopted the interpretation of