Castaneda v. SouzaCastaneda v. Souza
In these consolidated habeas cases, we must determine whether the petitioners,
Each of the petitioners here committed a predicate crime listed in
I.
A.
The mandatory detention provision of section 1226, subsection (c), is part of a section of the Immigration and Nationality Act which governs the arrest and detention of aliens subject to removal from the United States. See generally
(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 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 [
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, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724, the Supreme Court held that
While the Court‘s opinion in Demore did not articulate limits on the permissibility
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
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
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, section 1226(c) applies only to criminal aliens who have been detained immediately upon release from criminal custody or within a reasonable time thereafter. A few days later, prior to the scheduled hearing, the government released Castaneda on her own recognizance.
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 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 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 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 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
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, 486 U.S. 281, 319, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988) (Scalia, J., concurring in part and dissenting in part).9 Based on the textual context, we interpret
As in Willings, the reasonable time within which the government must detain an alien to satisfy the “when ... released”
Under Chevron, the interpretation must be a reasonable interpretation of the statute. Chevron, U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 845, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). As discussed above, “when ... released” cannot mean “any time after release.” Nor do we think it would be a reasonable interpretation to view a reasonable period of time as including a delay of several years. As we discuss below, the objectives of the statute are inapplicable in such situations and enforcing such detentions would be arbitrary in the extreme. We think it plain that the petitioners were not detained within a reasonable time after their detention, and that the “when ... released” clause was not satisfied here.10 Here, as in Saysana, this court is “not persuaded that the legislature was seeking to justify mandatory immigration custody many months or even years after an alien had been released from state custody.” Saysana, 590 F.3d at 16 (quoting Quezada-Bucio v. Ridge, 317 F.Supp.2d 1221, 1230 (W.D.Wash.2004)).11
B.
Notwithstanding our conclusion that the “when ... released” requirement was not
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., 476 U.S. 253, 265, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986)), rather than to confer rights on regulated parties. An example of such a case is Barnhart, where the Court held that the Commissioner of Social Security retained authority to take certain actions under the Coal Industry Retiree Health Benefit Act despite failure to comply with the statutory deadline. 537 U.S. at 158-63, 123 S.Ct. 748. Similarly, in Brock, the Court upheld the Secretary of Labor‘s authority to order the repayment of misused grant funds even though the audit that led to the repayment order was not completed within the time given by the statute. 476 U.S. at 266, 106 S.Ct. 1834. The general rule in such cases is that, “if 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.” United States v. James Daniel Good Real Property, 510 U.S. 43, 63, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993).
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
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, 680 F.3d at 382 (“[Section] 1226 was undeniably not written for the benefit of criminal aliens facing deportation like Hosh.” (emphasis removed)). We disagree.
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, 123 S.Ct. 1708 (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 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
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 section 1226(a) the Attorney General has broad and unreviewable discretion to determine whether individual aliens should be afforded release on bond.
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, 495 U.S. at 720, 110 S.Ct. 2072. The district courts here did no such thing. They did not order the petitioners’ release; they ordered that the petitioners be given a hearing at which the government has discretion to continue their detention if it finds them dangerous or a flight risk. It was the government itself that determined to release Castaneda and Gordon.
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.
Section 1226(c) requires detention of aliens such as the petitioners “when ... released.” Because the petitioners were not timely detained under any reasonable interpretation of the statute, we conclude that the petitioners are not subject to mandatory detention under
AFFIRMED
Costs to appellees.
Notes
Moreover, this court already rejected that argument in Saysana. In that case, the issue was “whether the mandatory detention provision applies only when an alien is released from a criminal custody the basis for which is one of the [listed predicate offenses]; or, [] whether it applies whenever [such] an alien ... is released from any criminal custody regardless of the reason for that detention.” 590 F.3d at 11. The court emphasized “[r]esolution of this issue centers on the ‘when released’ language in