Case Information
*2
NGUYEN, Circuit Judge:
Every day in the United States, the government holds over 30,000 aliens in prison-like conditions while determining whether they should be removed from the country. Some are held because they were found, in a bond hearing, to pose a risk of flight or dangerousness. 8 U.S.C. *3 § 1226(a); 8 C.F.R. § 1236.1(d). Others, however, are held without bond because they have committed an offense enumerated in a provision of the Immigration and Naturalization Act (“INA”). 8 U.S.C. § 1226(c). Aliens in this latter group are subject to the INA’s mandatory detention provision, which requires immigration authorities to detain them “when [they are] released” from criminal custody, 8 U.S.C. § 1226(c)(1), and to hold them without bond, 8 U.S.C. § 1226(c)(2). A broad range of crimes is covered under the mandatory detention provision, from serious felonies to misdemeanor offenses involving moral U.S. Immigration and Customs Enforcement, ERO Facts and Statistics 3 (2011), http://www.ice.gov/doclib/foia/reports/ero-facts- and-statistics.pdf.
turpitude and simple possession of a controlled substance. 8 U.S.C. §§ 1226(c)(1)(A)–(D).
This mandatory detention provision has been challenged
on various grounds.
See, e.g.
,
Demore v. Kim
,
Addressing this issue requires us to consider the
interaction of the two paragraphs of the mandatory detention
provision, 8 U.S.C. § 1226(c). Paragraph (1) requires the
Attorney General (“AG”) to “take into custody any alien
who [commits an offense enumerated in subparagraphs (A)–
(D)] when the alien is released [from criminal custody].”
8 U.S.C. § 1226(c)(1). Paragraph (2) prohibits the release of
“an alien described in paragraph (1)” except in limited
For a detailed history of decisions from the Supreme Court and this
court dealing with the various immigration detention statutes, see
Rodriguez III
,
circumstances concerning witness protection. 8 U.S.C.
§ 1226(c)(2). Plaintiffs argue that the phrase “when . . .
released” in paragraph (1) applies to paragraph (2) as well,
so that an alien must be held without bond only if taken into
immigration custody promptly upon release from criminal
custody for an enumerated offense. The government, by
contrast, argues that “an alien described in paragraph (1)” is
any alien who commits a crime listed in §§ 1226(c)(1)(A)–
(D) regardless of how much time elapses between criminal
custody and immigration custody. According to the
government, individuals not detained “when . . . released”
from criminal custody as required by paragraph (1) are still
considered “alien[s] described in paragraph (1)” for
purposes of the bar to bonded release in paragraph (2).
To date, five of our sister circuits have considered this
issue, and four have sided with the government.
Significantly, however, there is no consensus in the
reasoning of these courts. The Second and Tenth Circuits
found that the phrase “an alien described in paragraph (1)”
was ambiguous, and thus deferred to the BIA’s interpretation
of the phrase to mean “an alien described in subparagraphs
(A)–(D) of paragraph (1).”
See Lora v. Shanahan
, 804 F.3d
601, 612 (2d Cir. 2015) (“Consistent with
Chevron
, we are
not convinced that the interpretation is ‘arbitrary, capricious,
or manifestly contrary to the statute.’” (quoting
Adams v.
Holder
,
On the other hand, the government’s position has been
rejected by most district courts to consider the question and,
most recently, by three of six judges sitting en banc in the
First Circuit.
[4]
See Castañeda v. Souza
,
“when . . . released” from criminal custody, not if there is a lengthy gap after their release. See id. at 36, 38. We agree with Judge Barron and his two colleagues. The statute unambiguously imposes mandatory detention without bond only on those aliens taken by the AG into immigration custody “when [they are] released” from criminal custody. And because Congress’s use of the word “when” conveys immediacy, we conclude that the *6 immigration detention must occur promptly upon the aliens’ release from criminal custody.
I.
The named Plaintiffs in this case are lawful permanent residents who have committed a crime that could lead to removal from the United States. Plaintiffs served their criminal sentences and, upon release, returned to their families and communities. Years later, immigration authorities took them into custody and detained them without bond hearings under § 1226(c). Plaintiffs argue that because they were not detained “when . . . released” from criminal custody, they were not subject to mandatory detention under § 1226(c). [5]
Mony Preap, born in a refugee camp after his family fled
Cambodia’s Khmer Rouge, has been a lawful permanent
resident of the United States since 1981, when he
immigrated here as an infant. He has two 2006 misdemeanor
convictions for possession of marijuana. Years after being
Plaintiffs raised both a statutory challenge and a Due Process
challenge before the district court. The district court resolved the case
on statutory grounds, and thus did not reach the Due Process question.
Preap v. Johnson
,
released at the end of his sentences for these convictions, Preap was transferred to immigration detention upon serving a short sentence for simple battery (an offense not covered by the mandatory detention statute) and held without a bond hearing. Since the instant litigation began, Preap has been granted cancellation of removal and released from immigration custody.
*7
Eduardo Vega Padilla has been a lawful permanent
resident since 1966, shortly after he came to the United
States as an infant. Padilla also has two drug possession
convictions—one from 1997 and one from 1999—and a
2002 conviction for owning a firearm with a prior felony
conviction. Eleven years after finishing his sentence on that
last conviction, he was placed in removal proceedings and
held in mandatory detention. Padilla eventually obtained
release after receiving a bond hearing under our decision in
Rodriguez v. Robbins
(
Rodriguez II
),
Robbins
,
Juan Lozano Magdaleno has been a lawful permanent resident since he immigrated to the United States as a teenager in 1974. Magdaleno has a 2000 conviction for owning a firearm with a prior felony conviction, and a 2007 conviction for simple possession of a controlled substance. He was sentenced to six months on the possession charge and released from jail in January 2008. Over five years later, Magdaleno was taken into immigration custody and held without bond pursuant to § 1226(c). He also was later released from detention following a Rodriguez hearing. These three Plaintiffs filed a class action petition for habeas relief in the Northern District of California. The district court granted their motion for class certification, certifying a class of all “[i]ndividuals in the state of California who are or will be subjected to mandatory detention under 8 U.S.C. section 1226(c) and who were not or will not have been taken into custody by the government immediately upon their release from criminal custody for a Section 1226(c)(1) offense.” The district court also issued a preliminary injunction requiring the government to provide all class members with bond hearings under § 1226(a). Preap v. Johnson , 303 F.R.D. 566, 571, 584 (N.D. Cal. 2014). This appeal followed.
The district court held that if the named Plaintiffs prevailed in their interpretation of § 1226(c), then they would have met their burden under all four prongs of the preliminary injunction test set forth in Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7 (2008). The government has waived any challenge to that determination by declining to dispute it on appeal.
10 P REAP V . J OHNSON
II.
We have jurisdiction to review this class action habeas
petition under 28 U.S.C. § 1291. The jurisdiction-stripping
provision of 8 U.S.C. § 1226(e), which bars judicial review
of discretionary agency decisions regarding immigrant
detention, does not bar us from hearing “challenges [to] the
statutory framework that permits [petitioners’] detention
without bail.”
Demore v. Kim
,
III.
The government’s authority to detain immigrants in
removal proceedings arises from two primary statutory
sources.
[8]
The first, 8 U.S.C. § 1226(a), grants the AG
discretion to arrest and detain any alien upon the initiation of
removal proceedings.
[9]
Under this provision, the AG may
then choose to keep the alien in detention, or allow release
on conditional parole or bond. 8 U.S.C. § 1226(a)(1)–(2).
[10]
[8]
Other provisions of the Immigration and Nationality Act (INA)
govern the detention of individuals considered “applicants for
admission,”
see
8 U.S.C. § 1225(b), or those awaiting deportation after
entry of a final order of removal,
see
8 U.S.C. § 1231(a), among other
categories. These detention provisions are not implicated here.
The Homeland Security Act of 2002, Pub. L. No. 107-296 § 471, 116
Stat. 2135
(2002), moved many
immigration enforcement
responsibilities from the Department of Justice to the Department of
Homeland Security.
See Hernandez v. Ashcroft
,
*9 If the AG opts for detention, the alien may seek review of that decision at a hearing before an immigration judge (“IJ”), 8 C.F.R. § 236.1(d)(1), who may overrule the AG and grant release on bond, id. § 1003.19. The alien bears the burden of proving his suitability for release, and the IJ should consider whether he “is a threat to national security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk.” Matter of Guerra , 24 I. & N. Dec. 37, 40 (BIA 2006); see also 8 § C.F.R. 1236.1(c)(8).
The second provision is 8 U.S.C. § 1226(c), the mandatory detention provision at issue in this case. Importantly, this provision operates as a limited exception to § 1226(a). See 8 U.S.C. § 1226(a) . (“Except as provided in subsection (c) of this section . . .”). Section 1226(c) reads as follows:
(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 with security approved by, and containing conditions prescribed by, the Attorney General; or (B) conditional parole[.] 8 U.S.C. § 1226(a).
(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 *10 section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, (C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence [sic] to a term of imprisonment of at least 1 year, or (D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title when the alien is released , without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. (2) Release
The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to [the Federal Witness Protection Program] that release of the alien from custody is necessary . . . [and] the alien will not pose a danger to . . . safety . . . and is likely to appear for any scheduled proceeding.
8 U.S.C. § 1226(c) (emphases added) (footnote omitted). We must decide the proper scope of this mandatory detention exception, and specifically whether it applies to aliens who are not promptly placed in removal proceedings upon their release from criminal custody for an offense listed in § 1226(c)(1)(A)–(D).
The government advances three arguments to support its
view that Plaintiffs are subject to mandatory detention under
§ 1226(c). First, it argues that we should give
Chevron
deference, as have the Second and Tenth Circuits, to the
BIA’s interpretation that the phrase “an alien described in
Paragraph (1)” means “an alien described in subparagraphs
(A)–(D) of paragraph (1),” thus subjecting all criminal aliens
who have committed one of the listed crimes to mandatory
detention regardless of when they were taken into
*11
immigration custody.
See In re Rojas
, 23 I. & N. Dec. 117,
121 (BIA 2001). Second, the government argues that we
should follow the Fourth Circuit in holding that “when . . .
released” is a duty-triggering clause, not a time-limiting
clause, and that, as such, it merely informs the AG when the
duty to detain arises, not when the duty must be performed.
Hosh v. Lucero
,
We find all three arguments unpersuasive. We agree
with Judge Barron and his colleagues on the First Circuit in
Castañeda
,
A.
We first address the government’s argument that we
should defer to the BIA’s interpretation of § 1226(c)(2)’s
phrase “an alien described in paragraph (1)” to mean “an
alien described in subparagraphs (A)–(D) of paragraph (1).”
See Rojas
, 23 I. & N. Dec. at 125 (“We construe the phrasing
‘an alien described in paragraph (1),’ as including only those
aliens described in subparagraphs (A) through (D) of section
[(c)(1)], and as not including the ‘when released’ clause.”).
Under this interpretation, § 1226(c)(2)’s detention-without-
bond requirement applies to any alien who has committed an
offense enumerated in § 1226(c)(1), regardless of how long
after release from criminal custody he or she was taken into
immigration custody. This interpretation is at odds with the
statute, which unambiguously links the “when . . . released”
The Fourth Circuit incorrectly attributed this interpretation to the
BIA.
See Hosh
,
P REAP V . J OHNSON 15 custody instruction in § 1226(c)(1) to the without-bond instruction in § 1226(c)(2), such that the latter applies only after the former is satisfied.
When faced with a question of statutory interpretation,
our analysis begins “with the text of the statute.”
Yokeno v.
Sekiguchi
,
Starting with the text, we find that § 1226(c)(2) is
straightforward. It refers simply to “an alien described in
paragraph (1),” not to “an alien described in subparagraphs
(1)(A)–(D).” We must presume that Congress selected its
language deliberately, thus intending that “an alien described
in paragraph (1)” is just that—
i.e.
an alien who committed a
covered offense
and
who was taken into immigration
custody “when . . . released.”
See Int’l Ass’n of Machinists
& Aerospace Workers, Local Lodge 964 v. BF Goodrich
Aerospace Aerostructurers Grp.
,
As mentioned, there are two relevant sources of authority for the government’s detention of aliens in removal proceedings—§ 1226(a) and § 1226(c). Section 1226(a) provides for discretionary detention of any alien in removal proceedings, while § 1226(c) provides a limited exception of mandatory detention for a specified group of aliens. Thus, if the government is not authorized to detain an alien under the narrow exception of § 1226(c), it may only do so under the general rule of § 1226(a). Critically, however, each of these sections includes its own corresponding instructions for releasing detained aliens—§ 1226(a) provides for possible release on bond, while § 1226(c) forbids any release except under special circumstances concerning witness protection. There is one important consequence of this structure: under both the general detention provision in § 1226(a) and the mandatory detention provision in § 1226(c), the authority to detain and the authority to release go hand in hand. That is, an alien detained under § 1226(a) We are thus unpersuaded by the government’s argument that there is ambiguity in whether the phrase “when the alien is released” modifies the noun “alien” or only the verb “take into custody.” Even if we agreed that the phrase were ambiguous standing alone, it is not ambiguous within the section’s structure and surrounding language.
is clearly subject to the release provisions of § 1226(a),
whereas one detained under § 1226(c) is subject to the
release provisions in § 1226(c). Accordingly, if an alien is
not detained in immigration custody “when . . . released”
from criminal custody, as required under § 1226(c)(2), then
the government derives its sole authority to detain that alien
from § 1226(a)(1), and, as a consequence, it must provide
the alien with a bond hearing as required under § 1226(a)(2).
The BIA’s interpretation in
In re Rojas
flouts this
structure. The BIA held that the “when . . . released” clause
was “address[ed] . . . to the statutory command that the
‘Attorney General shall take into custody’ certain categories
of aliens,” but that it did not define the categories of aliens
subject to the prohibition on bonded release in § 1226(c)(2).
In re Rojas
, 23 I. & N. Dec. at 121. The BIA thereby held,
in essence, that the AG can fail to comply with the “when . . .
released” requirement of § 1226(c)(1)—thereby necessarily
*14
relying on § 1226(a) for its authority to take custody of an
alien—but still apply the release conditions of § 1226(c)(2).
In other words, even if § 1226(c)(1) authorizes the custody
of only those aliens who are detained “when [they are]
released” from criminal custody, not those who are detained
at a later time, the BIA would still apply § 1226(c)(2)’s
proscription on bonded release from immigration custody.
This reading simply fails to do justice to the statute’s
structure.
See Castañeda
,
Rojas
’s contrary reading, as Judge Barron explained,
would mean that Congress directed the AG to hold without
bond aliens “who had never been in criminal custody”—
because with the “when . . . released” clause rendered
inoperative for purposes of § 1226(c)(2), there would be
nothing to impose a requirement of the aliens ever having
been in custody.
Castañeda
,
discretion to decide not to take [such aliens] into immigration custody at all.” Id. These incongruous consequences further persuade us to reject the BIA’s reading.
Notably, neither the BIA nor those circuits that deferred to the BIA adequately addressed the structure of the relationship between § 1226(a) and § 1226(c). Indeed, the BIA and the Second Circuit failed to address it at all. See Lora v. Shanahan , 804 F.3d 601, 611 (2d Cir. 2015) (deeming it ambiguous whether the “when . . . released” clause “is part of the definition of aliens subject to mandatory detention” without considering statutory context); In re Rojas , 23 I. & N. Dec. at 121–22 (considering statutory context but failing to acknowledge the relationship between § 1226(a) and § 1226(c)). The Tenth Circuit did address it, and even seemed to agree with our conclusion that custody must be authorized under paragraph (1) of § 1226(c) in order for paragraph (2) to take effect. Olmos , 780 F.3d at 1321 (recognizing that the authority to detain “arises in Paragraph ‘1’” and that “the [AG] must exercise this responsibility ‘when the alien is released’”). But, applying the loss-of-authority doctrine, that court concluded that the government maintains its authority to take custody of an alien under § 1226(c)(1) even when it fails to comply with the “when . . . released” requirement. Olmos , 780 F.3d at 1321–22 (“With the alien in the [AG’s] custody under his delayed enforcement of § 1226(c)(1), there would be nothing odd about § 1226(c)(2)’s restrictions on when the alien can be released.”). Finding that the “when . . . released” requirement imposed no actual limitations on the government, the Tenth Circuit thus concluded that the BIA’s interpretation—reading out the “when . . . released” requirement—was reasonable. Id. We disagree. As we later explain, the loss-of-authority doctrine does not apply to *16 20 P REAP V . J OHNSON § 1226(c). And absent this doctrine, we are left with the conclusion that the AG must comply with § 1226(c)(1), including the “when . . . released” requirement, before it can apply § 1226(c)(2).
In sum, we conclude that paragraph (2)’s limitations on release unambiguously depend upon paragraph (1)’s mandate to take custody. “An alien described in paragraph (1)” is therefore one who is detained according to the requirements of paragraph (1). These requirements include the mandate that the government take the alien into custody “when . . . released.” The BIA’s interpretation to the contrary is impermissible.
B.
We must next decide whether the AG is in compliance
with § 1226(c)(1)’s
custody mandate—and
thus
§ 1226(c)(2)’s limitations on release apply—even if the AG
takes an alien into custody after substantial time has passed
since the alien’s release from criminal custody. Plaintiffs
argue that § 1226(c)(1)’s mandate requiring the AG to detain
criminal aliens “when [they are] released” from criminal
custody means that they must be taken into custody
promptly
after release, not years later, as were the named Plaintiffs
here. The government, on the other hand, argues that the
phrase “when . . . released” is ambiguous, supporting either
Plaintiffs’ reading or a broader reading requiring mandatory
detention of any criminal alien arrested by the AG at any
point after release from criminal custody. The government’s
“Because the statutory language is unambiguous, we end our inquiry
at
Chevron
’s first step, and need not reach the question [of] whether the
BIA’s approach is based on a permissible construction of the statute.”
Aragon-Salazar v. Holder
,
Again, we start with the plain language: “The Attorney
General shall take into custody any alien who [commits an
enumerated offense] when the alien is released [from
criminal custody].” 8 U.S.C. § 1226(c). As Judge Barron
observed, the first thing that leaps out is that “Congress
chose a word, ‘when,’ that naturally conveys some degree of
immediacy as opposed to a purely conditional word, such as
‘if.’”
Castañeda
, 810 F.3d at 37 (citation omitted). Of
course,
the word “when” has multiple dictionary
definitions. But looking to context, which of these
meanings is the intended one is clear. The word “when”
used in a command such as this one requires prompt action.
Consider a teacher’s common instruction to stop writing
when
the exam ends. There is no doubt that such an
instruction requires the student to immediately stop writing
See, e.g.
Black’s Law Dictionary 1842 (3d ed. 1933) (defining
“when” alternatively as “[i]mmediately after; as soon as” and as “[i]n
case of; on condition that; provided; if”);
see also Hosh
,
at the end of the exam period. Or as one district court noted,
“if a wife tells her husband to pick up the kids
when
they
finish school, implicit in this command . . . is the expectation
that the husband is waiting at the moment” school ends.
Sanchez-Penunuri v. Longshore
,
Indeed, “[i]f Congress really meant for the duty in (c)(1)
to take effect ‘in the event of’ or ‘any time after’ an alien’s
release from criminal custody, we would expect Congress to
have said so, given that it spoke with just such directness
elsewhere in the IIRIRA.”
Castañeda
,
Moreover, unlike the government’s interpretation, our reading is consistent with Congress’s purposes in enacting the mandatory detention provision—to address heightened risks of flight and dangerousness associated with aliens who commit certain crimes, which are serious enough to give rise to criminal custody. See Demore , 538 U.S. at 518–19 (describing evidence before Congress). These purposes are ill-served when the critical link between criminal detention and immigration detention is broken and the alien is set free for long stretches of time. Congress’s concerns over flight and dangerousness are most pronounced at the point when the criminal alien is released. Consequently, we can be certain that Congress did not intend to authorize delays in the detention of these criminal aliens. And correspondingly, without considering the aliens’ conduct in any intervening period of freedom, it is impossible to conclude that the risks that once justified mandatory detention are still present. These considerations are prudently reflected in Congress’s decision that these individuals must be detained “when . . . released,” and that if they aren’t, the AG may detain them only if warranted under the general detention provision of 8 U.S.C. § 1226(a), upon a bond hearing during which an individualized assessment of risks is conducted. We therefore conclude that the phrase “when . . . released” connotes some degree of immediacy.
C.
Finally, we turn to the government’s argument that even
if § 1226(c)(1) unambiguously requires prompt detention,
we should nonetheless uphold the AG’s authority to detain
without bond an alien who committed a covered offense
even when the AG has violated the mandate of § 1226(c)(1).
The government points to a line of cases holding that: “[i]f a
statute does not specify a consequence for noncompliance
with statutory timing provisions, the federal courts will not
in the ordinary course impose their own coercive sanction.”
Barnhart v. Peabody Coal Co.,
537 U.S. 149, 159 (2003)
*19
24
P REAP V . J OHNSON (quoting
United States v. James Daniel Good Real Property
,
510 U.S. 43, 63 (1993));
see also id.
at 158 (“Nor, since
Brock
[
v. Pierce County
,
The courts adopting this reasoning rely on
United States
v. Montalvo-Murillo
, 495 U.S. 711 (1990), in which the
Supreme Court interpreted a provision of the Bail Reform
Act that required judicial officers to hold a bond hearing
“immediately upon the [defendant]’s first appearance before
the judicial officer.” 18 U.S.C. § 3142(f)(2). Montalvo-
Murillo didn’t receive a timely hearing under this provision,
and the district court released him from custody. The
Supreme Court reversed, holding that “a failure to comply
with the first appearance requirement does not defeat the
government’s authority to seek detention of the person
charged.”
Critically, unlike in Montalvo-Murillo , the government here invokes the loss-of-authority doctrine to justify extending a statutory provision that in fact curtails, rather than expands, the government’s discretionary authority. See Farrin R. Anello, Due Process and Temporal Limits on Mandatory Immigration Detention , 65 Hastings L. J. 363, 367 (2014) (“The [mandatory detention provision] strips the immigration judge of her power to conduct a bond hearing and decide whether the individual poses any danger or flight risk, and likewise precludes DHS from making discretionary judgments about whether detention is appropriate.”). Indeed, the sole practical effect of the district court’s decision in this case is to reinstate the government’s general authority, under § 1226(a), to decline to detain, or to release on bond, those criminal aliens who are not timely detained under § 1226(c). In short, we decline to apply the loss-of- authority doctrine where, as here, there is no loss of authority.
Congress’s purposes in enacting the provision further demonstrate its desire to curtail the authority of the immigration judge and DHS to release recently incarcerated criminals from immigration custody. See Demore v. Kim , 538 U.S. 510, 518-19 (2003) (noting Congress’s concerns that immigration authorities had a “near-total inability to remove deportable criminal aliens” and often made detention decisions on the basis of “funding and detention space”).
Moreover, unlike the district court’s ruling in Montalvo- Murillo , our holding does not craft a new remedy inconsistent with the statutory scheme. Whereas in Montalvo-Murillo the statute at issue did not identify a remedy for a delayed hearing, see United States v. Montalvo- Murillo , 876 F.2d 826, 831 (10th Cir. 1989) (per curiam) (noting that “Congress did not provide . . . the remedy” for a violation of § 3142(f)), overruled by Montalvo-Murillo 495 U.S. at 722), here the statutory structure makes clear precisely what occurs in the absence of prompt detention under 8 U.S.C. § 1226(c): the general detention provision, 8 U.S.C. § 1226(a), applies. Far from imposing a judicially- created remedy for untimely detention, we are merely *21 holding that under the statute, the conditions for the mandatory detention exception are not met when detention is too long delayed. See Castañeda , 810 F.3d at 40–41 (distinguishing several cases where courts improperly fashioned their own sanctions).
We do not share the Third Circuit’s concern that failing
to apply the loss-of-authority doctrine “would lead to an
outcome contrary to the statute’s design: a dangerous alien
would be eligible for a hearing—which could lead to his
release—merely because an official missed the deadline.”
Sylvain
,
We therefore hold that the mandatory detention provision of 8 U.S.C. § 1226(c) applies only to those criminal aliens who are detained promptly after their release from criminal custody, not to those detained long after.
IV.
In so holding, we are not suggesting that the mandate to
detain “when . . . released” necessarily requires detention to
occur at the exact moment an alien leaves criminal custody.
The plain meaning of “when . . . released” in this context
suggests that apprehension must occur with a reasonable
degree of immediacy.
Accord Hosh
,
This appeal, however, does not present the question *22 exactly how quickly detention must occur to satisfy the “when . . . released” requirement. The class was defined as those who were not “immediately detained” but were still taken into mandatory custody, and the government did not challenge the class definition on the ground that it required further clarification as to the meaning of “immediately.” Nor did the government appeal class certification on the ground that the named class members were not typical of the class as a whole—even though the named Plaintiffs spent years in their home communities after completing their criminal sentences, whereas some class members presumably were released for shorter times. We thus need not decide for purposes of the instant appeal exactly how promptly an alien must be brought into immigration custody after being released from criminal custody for the transition to be immediate enough to satisfy the “when . . . released” requirement. The district court granted preliminary injunctive relief to a class of aliens who were not “immediately detained” when released from criminal custody, and that grant of relief accords with our interpretation of the statutory requirements.
* * *
Under the plain language of 8 U.S.C. § 1226(c), the government may detain without a bond hearing only those criminal aliens it takes into immigration custody promptly upon their release from triggering criminal custody. AFFIRMED.