LEXIS HERNANDEZ AVILEZ, Petitioner-Appellee, v. MERRICK B. GARLAND, Attorney General; ALEJANDRO MAYORKAS, in his official capacity; TAE D. JOHNSON, in his official capacity; DAVID W. JENNINGS, Respondents-Appellants, and WENDELL ANDERSON, in his official capacity, Respondent.
No. 20-16142
D.C. No. 3:19-cv-08296-CRB
United States Court of Appeals for the Ninth Circuit
Charles R. Breyer, District Judge, Presiding
September 8, 2022
Argued and Submitted October 22, 2021 San Francisco, California
Before: Mary H. Murguia, Chief Judge, and Marsha S. Berzon and Carlos T. Bea, Circuit Judges.
Opinion by Chief Judge Murguia;
Concurrence by Judge Berzon;
Concurrence by Judge Bea
Habeas/Immigration
Vacating the district court‘s grant of habeas relief and remanding in a case in which Lexis Hernandez Avilez challenged her immigration detention, the panel held that a noncitizen of the United States—who initially was subject to mandatory detention under
Hernandez Avilez petitioned for habeas relief after being in immigration detention for over a year without a bond hearing. During her initial removal proceedings, she was subject to mandatory detention under
Under Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc), a three-judge panel may depart from circuit precedent only if the precedent is clearly irreconcilable with the reasoning or theory of intervening higher authority. Here, the panel observed that the Supreme Court‘s decision in Jennings does not directly address the question in Casas-Castrillon—when, if ever, mandatory detention under Subsection C ends. However, the panel explained that Jennings‘s reasoning makes clear that Subsection A and Subsection C apply to discrete categories of noncitizens, and not to different stages of a noncitizen‘s legal proceedings. Thus, if a noncitizen is initially detained under Subsection C, the authority to detain her cannot switch to Subsection A based on the stage of her case. Accordingly, the panel concluded that Jennings‘s reasoning is “clearly irreconcilable” with Casas-Castrillon‘s detention-shifting framework and held that Jennings abrogated this portion of Casas-Castrillon.
Next, the panel explained that Subsection A provides the Government with authority to detain noncitizens “pending a decision on whether the alien is to be removed from the United States,” and that Jennings provides that Subsection C authorizes detention during the same period as Subsection A, but does not define that period. The panel looked to
The panel recognized that there are reasons to doubt whether Subsection C extends to the judicial phase of removal proceedings. First, the panel observed that in Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court plainly assumed that detention under Subsection C applies solely to the administrative phase of removal proceedings. Second, the panel explained that Jennings referred to Demore‘s understanding of the scope of Subsection C, and Demore assumed that authority under Subsection C ended with the administrative phase. Noting that Prieto-Romero is in some tension with Demore, the panel explained that neither Demore nor Jennings squarely addressed the question and, accordingly, Prieto-Romero remains good law on this point.
Finally, the district court declined to reach Hernandez Avilez‘s alternative argument that she was entitled to habeas relief as a matter of due process. The panel remanded to the district court to consider this question in the first instance.
Concurring, Judge Berzon wrote separately to express her disquiet with the partial abrogation Miller v. Gammie compelled in this case, and to urge her colleagues to consider rehearing this case en banc. According to Judge Berzon, the result of the holding in this case was to save fragments of two opinions that were cohesively crafted—Prieto-Romero
Concurring, Judge Bea wrote that he concurred in the principal opinion, with two exceptions. First, Judge Bea wrote that there is not any meaningful “tension” between the holdings of Demore, Jennings, and Prieto-Romero with respect to the meaning of “pending a decision on whether the alien is to be removed from the United States,”
COUNSEL
Sarah S. Wilson (argued), Senior Litigation Counsel; Ernesto Molina, Deputy Director; Brian Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondents-Appellants.
Judah Lakin (argued) and Amalia Wille, Lakin & Wille LLP, Oakland, California; Hector A. Vega and Genna Ellis Beier, Public Defender‘s Office, San Francisco, California; for Petitioner-Appellee.
MURGUIA, Chief Circuit Judge:
Lexis Hernandez Avilez, a Mexican citizen, petitioned for habeas relief after being held in immigration detention for over a year without a bond hearing. A district court judge granted Hernandez Avilez‘s petition for relief and ordered the Government to provide her with a bond hearing on statutory grounds, relying on Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008). The Government appealed on the ground that Casas-Castrillon is no longer good law. For the following reasons, we vacate the district court‘s grant of habeas relief and remand for consideration of Hernandez Avilez‘s remaining constitutional argument.
I.
Lexis Hernandez Avilez has lived in the United States since infancy and became a lawful permanent resident in 2000. In 2006, Hernandez Avilez was convicted of assault with a firearm in violation of
Upon release from state prison in November 2018, Hernandez Avilez was immediately taken into ICE custody, served with a Notice to Appear, and placed in removal proceedings based on her felony assault conviction pursuant to Immigration & Nationality Act § 237(a)(2)(A)(iii), codified at
During removal proceedings, Hernandez Avilez conceded removability based on her criminal conviction. She sought relief, however, under the Convention Against Torture (“CAT“), which allows a noncitizen to remain in the United States if she can show that she is more likely than not
In December 2019, after spending more than a year in immigration detention, Hernandez Avilez filed a petition for
The Government conceded that under Casas-Castrillon, Hernandez Avilez would have been entitled to a bond hearing under Subsection A while her petition for review was pending in this court. The Government argued, however, that Casas-Castrillon was inapplicable because it was “clearly irreconcilable” with intervening Supreme Court authority—specifically, Jennings v. Rodriguez, 138 S. Ct. 830 (2018). In the Government‘s view, under Jennings, a noncitizen who has been convicted of a qualifying crime and who initially is detained under Subsection C, remains
The district court concluded that Casas-Castrillon remained good law; that, because Hernandez Avilez had filed a petition for review, her detention fell under Subsection A; that she thus no longer was subject to mandatory detention; and that the Government therefore was required to provide her a bond hearing. An IJ subsequently held a hearing and granted Hernandez Avilez bond in the amount of $10,000.5 Hernandez Avilez posted bond and is no longer in custody. The Government timely appealed the district court‘s order, again arguing that Casas-Castrillon is “clearly irreconcilable” with Jennings and that Hernandez Avilez therefore was not entitled to a bond hearing.
The question before us on appeal is whether the Supreme Court‘s decision in Jennings abrogated our circuit‘s precedent in Casas-Castrillon, thereby precluding noncitizens like Hernandez Avilez—who initially were detained under Subsection C based on a prior, qualifying criminal conviction—from receiving a bond hearing under Subsection A while awaiting a decision from this court on a petition for review.
We have jurisdiction pursuant to
A.
Noncitizens in the United States are removable if they fall within any of several statutory classes of removable individuals, one of which is noncitizens convicted of certain enumerated criminal offenses. See
Subsection A is the default detention statute for noncitizens in removal proceedings and applies to noncitizens “[e]xcept as provided in [Subsection C].”
Subsection C provides for the detention of “criminal aliens” and states that “[t]he Attorney General shall take into custody any alien who” is deportable or inadmissible based on a qualifying, enumerated offense.
(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 sentenced to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
(2) Release
The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of Title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance
The differences in the discretionary or mandatory language of Subsections A and C respectively have significant consequences. Under Subsection A—the default detention provision—a noncitizen is entitled to a bond hearing at which the IJ considers whether the noncitizen is a flight risk or a danger to the community. See Jennings, 138 S. Ct. at 847 (“Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention. See
Finally, Section 1231(a) applies to detention after the entry of a final order of removal. In contrast to Subsections A and C, Section 1231(a) does not apply to detention during the pendency of administrative or judicial removal proceedings. Section 1231 instead governs detention during a ninety-day “removal period” after the conclusion of removal proceedings.10
In 2008, this court addressed the interplay between these three detention provisions in two opinions published by the same panel on the same day: Prieto-Romero v. Clark, and Casas-Castrillon v. Department of Homeland Security.
Prieto-Romero interpreted the language in Subsection A authorizing the Government to detain noncitizens “pending a decision on whether [they are] to be removed from the United States.” See
Casas-Castrillon incorporated this understanding of Subsection A in its holding and involved facts very similar to those of the case at bar. Luis Felipe Casas-Castrillon was a legal permanent resident who had been convicted of crimes of moral turpitude under
From July 2002 through July 2008, Casas-Castrillon sought relief from removal in the federal courts.
In Casas-Castrillon, we reversed the district court‘s order denying habeas relief on the ground that the source of the Government‘s authority to detain Casas-Castrillon had shifted from Subsection C to Subsection A when the administrative phase of his removal proceedings ended—that is, upon the BIA‘s decision. We reached that conclusion by process of elimination as follows: First, we determined that Section 1231(a) was inapplicable to Casas-Castrillon because none of Section 1231(a)(1)(B)‘s conditions had been met—hence, the “removal period” had not begun.
Next, we concluded that Casas-Castrillon was not detained pursuant to Subsection C.
[Subsection C] was intended only to “govern[] detention of deportable criminal aliens pending their removal proceedings,” which the Court emphasized typically “lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal” his removal order to the BIA.
Casas-Castrillon, 535 F.3d at 948. Finally, we pointed to Department of Homeland Security regulations that supported interpreting Subsection C as applying only until
Casas-Castrillon concluded that “[b]ecause neither [Subsection A] nor [Subsection C] governs the prolonged detention of aliens awaiting judicial review of their removal orders,” the detention of noncitizens initially detained under Subsection C “was authorized during this period under the Attorney General‘s general, discretionary detention authority under [Subsection A].”
So, pursuant to Casas-Castrillon, the statutory regime authorizing detention of a noncitizen initially detained under Subsection C operated as follows: Once the BIA affirmed a final order of removal for a noncitizen detained under Subsection C, the Government‘s detention authority shifted either to Section 1231(a), or if the noncitizen filed a petition for review in federal court and received a stay of removal, to Subsection A. See
Finally, because Casas-Castrillon concluded that prolonged detention without an individualized determination “would be ‘constitutionally doubtful,‘” it interpreted Subsection A to require a bond hearing.
In Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the Supreme Court reversed this court‘s holding in Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015)—which had interpreted various immigration detention statutes. See 138 S. Ct. at 836. Our decision in Rodriguez held that Subsection C included “an implicit 6-month time limit on the length of mandatory detention.”
In addition, the Supreme Court acknowledged that Subsection A authorizes a noncitizen‘s release on bond but held that “there [was] no justification for any of the procedural requirements that the Court of Appeals layered onto [Subsection A] without any arguable statutory foundation.”
The question before us is whether Jennings abrogated Casas-Castrillon’s holding that, with respect to noncitizens subject to detention under Subsection C, detention authority shifts from Subsection C to Subsection A during the judicial phase of removal proceedings. A three-judge panel may depart from circuit precedent only if “our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority.” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). “[T]he ‘clearly irreconcilable’ requirement ‘is a high standard.’” FTC v. Consumer Def., LLC, 926 F.3d 1208, 1213 (9th Cir. 2019) (quoting Rodriguez v. AT&T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013)). “[I]f we can apply our precedent consistently with that of the higher authority, we must do so.” Id.
The holding of Jennings does not directly address the question considered in Casas-Castrillon—when, if ever, mandatory detention under Subsection C ends. But Jennings’s reasoning regarding
More specifically, in Jennings, the Court emphasized that “
The district court in this case concluded that Jennings and Casas-Castrillon are reconcilable because “[o]ne could reasonably interpret the language ‘together with [Subsection A] . . .’ to mean that the two statutory sections work together to ensure that a noncitizen remains in custody pending judicial review of a final order of removal.” Hernandez Avilez v. Barr, No. 19-CV-08296-CRB, 2020 WL 1704456, at *3 (N.D. Cal. Apr. 8, 2020). In other words, the district court read Jennings’s “together with” language to mean that Subsections A and C tag-team to ensure that a noncitizen can be held in custody pending judicial review of a final order of removal. On this interpretation, Subsection C “applies before the order of removal becomes final,” mandating detention during proceedings before the agency, “and [Subsection A] applies after the order of removal becomes final,” id., allowing, but not mandating, detention during litigation of a petition for review in the federal Courts of Appeals. We do not agree that Jennings can plausibly be so interpreted. Rather, Jennings makes clear that Subsection A and Subsection C alike—that is, each one, not in tandem—
Jennings, therefore, is clearly irreconcilable with Casas-Castrillon’s conclusion that a Subsection C detainee who pursues judicial review of an order of removal is detained first under Subsection C and later under Subsection A. We hold that Jennings abrogates this portion of our decision in Casas-Castrillon.
C.
Jennings’s holding that Subsection A and Subsection C govern during the same time period does not tell us what the time period is. Subsection A tells us that the Government has the authority to detain noncitizens “pending a decision on whether the alien is to be removed from the United States.”
Although Jennings did not grapple with this question, we did in Prieto-Romero. As we have explained, Prieto-Romero held that detention authority under Subsection A continues through judicial review because it “is reasonable
Although Prieto-Romero was focused on Subsection A, we know after Jennings that the time period defined by Subsection A—“pending a decision on whether the alien is to be removed from the United States”—applies to Subsection C as well. Accordingly, in light of Prieto-Romero, we hold that the Government’s authority to detain a noncitizen under Subsection C likewise applies during the administrative and judicial phases of removal proceedings. To the extent Casas-Castrillon held otherwise, see 535 F.3d at 948 (holding that the Government’s authority to detain a noncitizen under Subsection C ends “upon the dismissal of the alien’s appeal by the BIA”), it no longer is good law.
In sum, Jennings’s holding that Subsection C’s temporal scope is defined by Subsection A and Prieto-Romero’s holding that Subsection A applies throughout the administrative and judicial phases of removal proceedings together compel us to conclude that Subsection C applies throughout the administrative and judicial phases of removal proceedings as well. Consequently, noncitizens subject to mandatory detention under Subsection C are not statutorily eligible for release on bond during the judicial phase of the proceedings, except under the narrow circumstances defined by
We recognize that there are reasons to doubt whether Subsection C does extend to the judicial phase of removal
Under [Subsection C], not only does detention have a definite termination point, in the majority of cases it lasts for less than the 90 days we considered presumptively valid in Zadvydas. The Executive Office for Immigration Review has calculated that, in 85% of the cases in which aliens are detained pursuant to [Subsection C], removal proceedings are completed in an average time of 47 days and a median of 30 days. In the remaining 15% of cases, in which the alien appeals the decision of the Immigration Judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter.
. . . In sum, the detention at stake under [Subsection C] lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal [to the BIA].
Second, in Jennings the Supreme Court cited and discussed the foregoing passage in Demore. Jennings said:
[Subsection C] is not “silent” as to the length of detention. It mandates detention “pending a decision on whether the alien is to be removed from the United States,”
§ 1226(a) . . . .. . . In Demore v. Kim, 538 U.S., at 529, we distinguished [Subsection C] from the statutory provision in Zadvydas by pointing out that detention under [Subsection C] has “a definite termination point”: the conclusion of removal proceedings. As we made clear there, that “definite termination point”—and not some arbitrary time limit devised by
138 S. Ct. at 846. Thus, Jennings referred to Demore’s understanding as to the scope of Subsection C detention authority, and Demore assumed that the Government’s authority under Subsection C extended up to, but not beyond, the administrative phase of removal proceedings.
Jennings did not, however, specifically note or adopt Demore’s assumption as to the limited coverage of Subsection C. And the class representative in Jennings filed his habeas petition seeking a bond hearing while litigating his petition for review before this circuit. The class, the Government, and the Court all seem to have assumed during the Jennings litigation that Subsection C authorizes detention until a Court of Appeals reaches a decision. See id. at 839 (noting that the class at issue involved noncitizens—including those detained under Subsection C—“detained for longer than six months . . . pending completion of removal proceedings, including judicial review”).
Given the ambiguity in Jennings as to the length of
Setting aside Prieto-Romero, moreover, could leave a gaping hole in the statutory scheme. If detention under Subsection C ends when the BIA issues its decision, detention under Subsection A is coextensive with Subsection C (as Jennings tells us), and detention under Section 1231(a) begins only after judicial review, then there would be no authority to detain any noncitizens—whether with a criminal record or not—under Section 1231 during the judicial phase of removal proceedings.
To conclude, under Jennings, Subsection A and Subsection C alike authorize detention “pending a decision on whether the alien is to be removed from the United Sates.”
III.
Hernandez Avilez argued before the district court that even if her detention was governed by Subsection C, she was entitled to habeas relief as a matter of due process. The district court declined to reach this argument, and we make no determination regarding the issue here. We leave this question to the district court to decide in the first instance.
The district court’s order granting Hernandez Avilez habeas relief and ordering the Government to provide her with a bond hearing under Casas-Castrillon is VACATED. This case is REMANDED to the district court for consideration of Hernandez Avilez’s due process claim. Hernandez Avilez’s motion to take judicial notice (Doc. 42) is GRANTED. Each side shall bear its own costs of appeal.
BERZON, Circuit Judge, concurring:
I concur in the principal opinion. I write separately to express my disquiet with the partial abrogation Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), has compelled today, and to urge my colleagues to consider rehearing this case en banc.
As noted in the principal opinion, Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008), and Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008),
Since then, the Supreme Court has interpreted Subsections A and C as temporally coextensive. See Jennings v. Rodriguez, 138 S. Ct. 830, 847 (2018); Nielsen v. Preap, 139 S. Ct. 954, 959–60, 966–67 (2019). Whatever event marks “a decision on whether the alien is to be removed,” the temporal limit specified in Subsection A, that event marks the end of detention authority for noncitizens detained under Subsection C, too. So the “shift” in detention authority Casas-Castrillon described has been abrogated.
The question remains, as the principal opinion notes, what marks that endpoint? The Supreme Court has not squarely considered the question. We have, at least regarding Subsection A. So, under Miller v. Gammie we are bound by our partial answer in Prieto-Romero: detention authority for Subsection A continues through the end of judicial review. 534 F.3d at 1062. The Prieto-Romero panel, of course, never contemplated that its holding regarding Subsection A’s temporal reach would apply to Subsection C. To the contrary, it expected it would not, as Casas-Castrillon supplied a different endpoint.
That inquiry would invite full consideration of the statutory text and purpose, an exploration currently off limits because of Prieto-Romero. Such exploration might reveal, for example, that in other parts of the Immigration and Nationality Act (“INA”), Congress expressly specified when it intended a period of time to include judicial review. See, e.g.,
The inquiry would also allow deeper consideration of the Supreme Court’s understanding of the temporal endpoint of Subsection A and Subsection C. As the principal opinion today illustrates, interpreting the shared endpoint as the end of administrative review finds support in Demore v. Kim, 538 U.S. 510 (2003). See Principal Opinion 28–29. Demore
A later communication from the Solicitor General’s Office to the Supreme Court confirms that the executive branch also understood Subsection C to authorize detention only through administrative proceedings. In August 2016, while Jennings was pending before the Court, the Acting Solicitor General sent a letter to the Clerk of the Court acknowledging “significant errors” and the exclusion of “more than 15,000 cases that should have been counted” in the data it had presented to the Court in Demore.2
The Solicitor General’s letter enclosed an analysis from the Executive Office of Immigration Review detailing the miscalculations and stating: “Please note that the length of appeal time measures the time between when a party files a notice of appeal with the Board of Immigration Appeals (BIA) and when the BIA renders a decision on that appeal.”3
As the principal opinion notes, though, this interpretation of Subsection C creates an apparent problem: it could “leave a gaping hole in the statutory scheme” between when
Such an apparent gap in detention authority is indeed perplexing. But a review of Congress’s overhaul of the INA in 1996 reveals that Congress may have envisioned a removal system in which there was no need for such detention. First, Congress changed the INA to authorize the removal of noncitizens immediately upon a BIA decision, newly allowing a removed noncitizen to file and litigate a petition for review from outside the United States. Second, Congress expressly directed the executive branch to finish removal proceedings against noncitizens with criminal
More specifically: Before 1996, “courts of appeals lacked jurisdiction to review the deportation order of an alien who had already left the United States,” and most aliens were entitled to “an automatic stay of their removal order while judicial review was pending.” Nken v. Holder, 556 U.S. 418, 424 (2009) (citing
Additionally, Congress sought dramatically to reduce the number of noncitizens detained under Subsection C. Congress “directed the INS to identify and track deportable criminal aliens while they are still in the criminal justice system.” Demore, 538 U.S. at 530 n.13 (citing IIRIRA and the Antiterrorism and Effective Death Penalty Act of 1996).
Perhaps the court would not arrive at this interpretation on en banc review. But we should take the opportunity capaciously to consider all of
BEA, Circuit Judge, concurring:
I concur in the principal opinion, with the following two exceptions. First, for the reasons explained below, I do not believe there is any meaningful “tension” between the
1. In contrast to the principal opinion’s characterization, Demore did not “plainly assume” that detention authority under
In remarking on certain statistics provided by the Executive Office for Immigration Review (EOIR), Demore was in no way attempting to set the metes and bounds of the Government’s detention authority under
still, Demore offered the following observation concerning the tradeoffs an alien faces when contemplating a challenge to a removal order:
Prior to the enactment of
§ 1226(c) , when the vast majority of deportable criminal aliens were not detained during their deportation proceedings, many filed frivolous appeals in order to delay their deportation. See S. Rep. 104–48, at 2 (“Delays can earn criminal aliens more than work permits and wages—if they delay long enough they may even obtain U.S. citizenship”). Cf. Zadvydas, 533 U.S., at 713, (KENNEDY, J., dissenting) (“[C]ourt ordered release cannot help but encourage dilatory and obstructive tactics by aliens”). Respondent contends that the length of detention required to appeal may deter aliens from exercising their right to do so. Brief for Respondent 32. As we have explained before, however, “the legal system . . . is replete with situations requiring the making of difficult judgments as to which course to follow,” and, even in the criminal context, there is no constitutional prohibition against requiring parties to make such choices. McGautha v. California, 402 U.S. 183, 213 (1971) (internal quotation
marks omitted); accord, Chaffin v. Stynchcombe, 412 U.S. 17, 30–31 (1973).
Demore, 538 U.S. at 530 n.14 (emphases added). Demore recognized that the longer an alien wishes to challenge his removal order, the longer he will be detained under
Consider the alternative. While I generally do not find legislative history persuasive, Demore went out of its way to explain that
During the same period in which Congress was making incremental changes to the immigration laws, it was also considering wholesale reform of those laws. Some studies presented to Congress suggested that detention of criminal aliens during their removal proceedings might be the best way to ensure their successful removal from this country. See, e.g., 1989 House Hearing 75; Inspection Report, App. 46; S. Rep. 104-48,
at 32 (“Congress should consider requiring that all aggravated felons be detained pending deportation. Such a step may be necessary because of the high rate of no-shows for those criminal aliens released on bond”). It was following those Reports that Congress enacted 8 U.S.C. § 1226, requiring the Attorney General to detain a subset of deportable criminal aliens pending a determination of their removability.
Demore, 538 U.S. at 521 (emphases added). Reading Demore as suggesting that
For its part, Jennings says nothing about what “pending a decision on whether the alien is to be removed from the United States” actually means. Jennings simply referred back to Demore for the proposition that detention authority under
In Demore v. Kim, 538 U.S. at 529, we distinguished
§ 1226(c) from the statutory provision in Zadvydas [8 U.S.C.
§ 1231(a)(6) ] by pointing out that detention under§ 1226(c) has “a definite termination point”: the conclusion of removal proceedings. As we made clear there, that “definite termination point”—and not some arbitrary time limit devised by courts—marks the end of the Government’s detention authority under§ 1226(c) .
Jennings, 138 S. Ct. at 846. Holding that “the conclusion of removal proceedings” includes judicial review is as much a “definite termination point” as would be to hold that “the conclusion of removal proceedings” refers solely to agency proceedings—either definition is equally “definite” in providing a termination point.
Thus, nothing in Jennings forecloses Prieto-Romero’s holding that construes “the conclusion of removal proceedings” as encompassing judicial review. And for all the reasons highlighted above, Demore is entirely consistent with this reading of
2. It is an unfortunate trend in the caselaw that certain words and expressions are gaining continued acceptance to stand in place of terms and definitions put forth in binding statutes. In this regard, the non-statutory word “noncitizen”
Defenders of “noncitizen” sometimes claim that this word is interchangeable with alien because everyone is a citizen of somewhere, sans the unusual case of the individual who has somehow been rendered stateless. This contention is not an accurate excuse. For one, monarchies exist. A Spanish born person is a “subject” of the Kingdom of Spain, albeit he may have democratic rights. One born in Saudi Arabia is similarly a “subject” of the House of Saud. Even more, a person born in American Samoa or Swains Island is a U.S. national, but not a citizen; he or she cannot vote in federal elections nor hold federal office.3
These distinctions matter. Words matter. Our federal immigration statutes concern themselves with aliens. This word is not a pejorative nor an insult. I certainly did not consider it an insult to be referred to as an alien in my deportation proceedings. Nor is the use of the term “alien” wholly untethered from its judicial context that it permits being construed in the manner the principal opinion suggests. Principal Op. at 7 n.1. Alien is a statutory word defining a specific class of individuals. And when used in its statutory context, it admits of its statutory definition, not
I must note that the judiciary’s embrace of “noncitizen” also comes at a real cost to litigants, who are now forced to make a lose-lose choice. On the one hand, a litigant could decide to use the statutory term “alien” in his briefing before the court, which risks offending devotees to “noncitizen.” On the other hand, a litigant could decide to use the non-statutory term “noncitizen” in his briefing before the court, at the risk of showing a disdain for statutory definitions. Sadly, this quandary is laid bare by the principal opinion’s express association of the statutory term “alien” with the label “offensive.” Principal Op. at 7 n.1. By intimating that “alien” in its statutory context has this meaning, the majority has substantiated the concern that a contingent of judges will respond negatively to the term, even though its neutral, statutory definition governs this case. This situation is entirely unnecessary, and I hope my colleagues throughout the judiciary can be persuaded to dispense with such rhetoric altogether.
Perhaps one day the federal statutes will be changed to reference only “noncitizens.”4 And if that day comes, our decisions will respond accordingly to such changes. But until then, I respectfully suggest my colleagues hew closely to the laws as they are written, both in form and in substance.
Notes
(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) 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 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole; but
(3) may not provide the alien with work authorization (including an “employment authorized” endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization.
(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) Revocation of bond or parole
The Attorney General at any time may revoke a bond or parole authorized under subsection (a), rearrest the alien under the original warrant, and detain the alien.
with a procedure that considers the severity of the offense committed by the alien.