NIELSEN, SECRETARY OF HOMELAND SECURITY, ET AL. v. PREAP ET AL.
No. 16-1363
SUPREME COURT OF THE UNITED STATES
Decided March 19, 2019
586 U. S. ____ (2019)
Argued October 10, 2018
(Slip Opinion)
OCTOBER TERM, 2018
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Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NIELSEN, SECRETARY OF HOMELAND SECURITY, ET AL. v. PREAP ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 16-1363. Argued October 10, 2018—Decided March 19, 2019*
Respondents, two classes of aliens detained under
* Together with Wilcox, Acting Field Office Director, Immigration and Customs Enforcement, et al. v. Khoury et al. (see this Court‘s Rule 12.4), also on certiorari to the same court.
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Syllabus
Held: The judgments are reversed, and the cases are remanded.
831 F. 3d 1193 and 667 Fed. Appx. 966, reversed and remanded.
JUSTICE ALITO delivered the opinion of the Court with respect to Parts I, III–A, III–B–1, and IV, concluding that the Ninth Circuit‘s interpretation of
(a) The statute‘s text does not support the argument that because respondents were not arrested immediately after their release, they are not “described in”
(b) Subsections (a) and (c) do not establish separate sources of arrest and release authority; subsection (c) is a limit on the authority conferred by subsection (a). Accordingly, all the relevant detainees will have been arrested by authority that springs from subsection (a), and that fact alone will not spare them from subsection (c)(2)‘s prohibition on release. The text of
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Syllabus
“pursuant to” subsection (c)(1) or “under authority created by” subsection (c)(1), but to anyone so much as “described in” subsection (c)(1). Pp. 15–17.
(c) This reading of
JUSTICE ALITO, joined by THE CHIEF JUSTICE and JUSTICE KAVANAUGH, concluded in Parts II and III–B–2:
(a) This Court has jurisdiction to hear these cases. The limitation on review in
(b) Even assuming that
JUSTICE THOMAS, joined by JUSTICE GORSUCH, concluded that three statutory provisions—
ALITO, J., announced the judgment of the Court and delivered the
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Syllabus
opinion of the Court with respect to Parts I, III–A, III–B–1, and IV, in which ROBERTS, C. J., and THOMAS, GORSUCH, and KAVANAUGH, JJ., joined, and an opinion with respect to Parts II and III–B–2, in which ROBERTS, C. J., and KAVANAUGH, J., joined. KAVANAUGH, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.
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Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 16–1363
KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND SECURITY, ET AL., PETITIONERS v. MONY PREAP, ET AL.
BRYAN WILCOX, ACTING FIELD OFFICE DIRECTOR, IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL., PETITIONERS v. BASSAM YUSUF KHOURY, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[March 19, 2019]
JUSTICE ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III–A, III–B–1, and IV, and an opinion with respect to Parts II and III–B–2, in which THE CHIEF JUSTICE and JUSTICE KAVANAUGH join.
Aliens who are arrested because they are believed to be deportable may generally apply for release on bond or parole while the question of their removal is being decided. These aliens may secure their release by proving to the satisfaction of a Department of Homeland Security officer
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Stat. 3009–585,
In these cases, the United States Court of Appeals for the Ninth Circuit held that this mandatory-detention requirement applies only if a covered alien is arrested by immigration officials as soon as he is released from jail. If the alien evades arrest for some short period of time—according to respondents, even 24 hours is too long—the mandatory-detention requirement is inapplicable, and the alien must have an opportunity to apply for release on bond or parole. Four other Circuits have rejected this interpretation of the statute, and we agree that the Ninth Circuit‘s interpretation is wrong. We therefore reverse the judgments below and remand for further proceedings.
I
A
Under federal immigration law, aliens present in this country may be removed if they fall “within one or more classes of deportable aliens.”
The first provision,
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aliens, and it sets out the general rule regarding their arrest and detention pending a decision on removal. Section 1226(a) contains two sentences, one dealing with taking an alien into custody and one dealing with detention. The first sentence empowers the Secretary of Homeland Security2 to arrest and hold an alien “pending a decision on whether the alien is to be removed from the United States.” The second sentence generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. If the alien is detained, he may seek review of his detention by an officer at the Department of Homeland Security and then by an immigration judge (both exercising power
Section 1226(c) was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and it sprang from a “concer[n] that deportable criminal
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aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers.” Demore v. Kim, 538 U. S. 510, 513 (2003). To address this problem, Congress mandated that aliens who were thought to pose a heightened risk be arrested and detained without a chance to apply for release on bond or parole.
Section 1226(c) consists of two paragraphs, one on the decision to take an alien into “[c]ustody” and another on the alien‘s subsequent “[r]elease.”3 The first paragraph (on custody) sets out four categories of covered aliens, namely, those who are inadmissible or deportable on specified grounds. It then provides that the Secretary must take any alien falling into one of these categories “into custody” “when the alien is released” from criminal custody.
The second paragraph (on release from immigration custody) states that “an alien described in paragraph (1)” may be released “only if [the Secretary] decides” that release is “necessary to provide protection” for witnesses or others cooperating with a criminal investigation, or their relatives or associates. That exception is not implicated in the present cases.
The categories of predicates for mandatory detention identified in subparagraphs (A)–(D) generally involve the commission of crimes. As will become relevant to our analysis, however, some who satisfy subparagraph (D)—e.g., close relatives of terrorists and those who are thought likely to engage in terrorist activity, see
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mandatory-detention cases do involve convictions, we follow the heading of subsection (c), as well as our cases and the courts below, in referring to aliens who satisfy subparagraphs (A)–(D) collectively as “criminal aliens.”
The Board of Immigration Appeals has held that subsection (c)(2), which requires the detention of aliens “described in” subsection (c)(1), applies to all aliens who fall within subparagraphs (A)–(D), whether or not they were arrested immediately “when [they were] released” from criminal custody. Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001) (en banc).
B
Respondents in the two cases before us are aliens who were detained under
Respondent Mony Preap, the lead plaintiff in the case that bears his name, is a lawful permanent resident with two drug convictions that qualify him for mandatory detention under
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offense. Preap, Magdaleno, and Padilla filed habeas petitions and a class-action complaint alleging that because they were not arrested “immediately” after release from criminal custody, they are exempt from mandatory detention under
Although the named plaintiffs in Preap were not taken into custody on immigration grounds until years after their release from criminal custody, the District Court certified a broad class comprising all aliens in California “‘who are or will be subjected to mandatory detention under
Khoury, the other case now before us, involves habeas petitions and a class-action complaint filed in the Western District of Washington. The District Court certified a class comprising all aliens in that district “who were subjected to mandatory detention under
Because Preap and Khoury created a split with four
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Opinion of ALITO, J.
other Courts of Appeals, we granted certiorari to review the Ninth Circuit‘s ruling that criminal aliens who are not arrested immediately upon release are thereby exempt from mandatory detention under
II
Before addressing the merits of the Court of Appeals’ interpretation, we resolve four questions regarding our jurisdiction to hear these cases.
The first potential hurdle concerns
“The [Secretary‘s] discretionary judgment regarding the application of [§1226] shall not be subject to review. No court may set aside any action or
decision by the [Secretary] under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.” (Emphasis added.)
As we have held, this limitation applies only to “discretionary” decisions about the “application” of
Nor are we stripped of jurisdiction by
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Opinion of ALITO, J.
“Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including
§§1225 and1226 ] shall be available only in judicial review of a final order under this section.” (Emphasis added.)
As in Jennings, respondents here “are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal [as opposed to the decision to deny them bond hearings]; and they are not even challenging any part of the process by which their removability will be determined. Under these circumstances,” we held in Jennings, see 583 U. S., at ____–____ (slip op., at 10–11), ”
The Government raised a third concern before the District Court in Preap: that under
“Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [
§§1221 –1232 ] other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.”
Did the Preap court overstep this limit by granting injunctive relief for a class of aliens that includes some who have not yet faced—but merely “will face“—mandatory detention? The District Court said no, but we need not decide. Whether the Preap court had jurisdiction to enter such an injunction is irrelevant because the District Court had
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Opinion of ALITO, J.
jurisdiction to entertain the plaintiffs’ request for declaratory relief, and for independent reasons given below, we are ordering the dissolution of the injunction that the District Court ordered.
Finally, and again before the Preap District Court, the Government raised a fourth potential snag: mootness. Class actions are “[n]ormally . . . moot if no named class representative with an unexpired claim remain[s] at the time of class certification.” United States v. Sanchez-Gomez, 584 U. S. ____, ____ (2018) (slip op., at 4). But that general norm is no hurdle here.
Even if that had not been so, these cases would not be moot because the fact that a class “was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction” when, as in these cases, the harms alleged are transitory enough to elude review. County of Riverside v. McLaughlin, 500 U. S. 44, 52 (1991) (affirming jurisdiction over a class action challenging a county‘s failure to provide “prompt” determinations of
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probable cause for those subjected to warrantless arrest and detention). Respondents claim that they would be harmed by detention without a hearing pending a decision on their removal. Because this type of injury ends as soon as the decision on removal is made, it is transitory. So the fact that the named plaintiffs obtained some relief before class certification does not moot their claims.
III
Having assured ourselves of our jurisdiction, we turn to the merits. Respondents contend that they are not properly subject to
“(c) Detention of criminal aliens
“(1) Custody
“The [Secretary] 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
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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 thistitle, 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 [Secretary] may release an alien described in paragraph (1) only if the [Secretary] 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 [Secretary] 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.” (Emphasis added.)
Respondents argue that they are not subject to mandatory detention because they are not “described in”
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categories of aliens covered by subparagraphs (A)–(D) of that provision. An alien covered by these subparagraphs is not “described in”
A
First, respondents’ position runs aground on the plain text of
Paragraph (1) provides that the Secretary “shall take” into custody any “alien” having certain characteristics and that the Secretary must do this “when the alien is released” from criminal custody. The critical parts of the provision consist of a verb (“shall take“), an adverbial clause (“when . . . released“), a noun (“alien“), and a series of adjectival clauses (“who . . . is inadmissible,” “who . . . is deportable,” etc.). As an initial matter, no one can deny that the adjectival clauses modify (and in that sense “scrib[e]“) the noun “alien” or that the adverbial clause “when . . . released” modifies the verb “shall take.” And since an adverb cannot modify a noun, the “when released” clause cannot modify “alien.” Again, what modifies (and
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Opinion of the Court
in that sense “describe[s]“) the noun “alien” are the adjectival clauses that appear in subparagraphs (A)–(D).
Respondents and the dissent contend that this grammatical point is not the end of the matter—that an adverb can “describe” a person even though it cannot modify the noun used to denote that person. See post, at 5–6 (opinion of BREYER, J.). But our interpretation is
And here is the crucial point: The “when . . . released” clause could not possibly describe aliens in that sense; it plays no role in identifying for the Secretary which aliens she must immediately arrest. If it did, the directive in
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vant class of aliens. On any other reading of paragraph (1), the command that paragraph (1) gives the Secretary would be downright incoherent.
Our reading is confirmed by Congress‘s use of the definite article in “when the alien is released.” Because “[w]ords are to be given the meaning that proper grammar and usage would assign them,” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 140 (2012), the “rules of grammar govern” statutory interpretation “unless they contradict legislative intent or purpose,” ibid. (citing Costello v. INS, 376 U. S. 120, 122–126 (1964)). Here grammar and usage establish that “the” is “a function word . . . indicat[ing] that a following noun or noun equivalent is definite or has been previously specified by context.” Merriam-Webster‘s Collegiate Dictionary 1294 (11th ed. 2005). See also Work v. United States ex rel. McAlester-Edwards Co., 262 U. S. 200, 208 (1923) (Congress‘s “use of the definite article [in a reference to “the appraisement“] means an appraisement specifically provided for“). For “the alien” in the clause “when the alien is released“—to have been previously specified, its scope must have been settled by the time the “when . . . released” clause appears at the tail end of paragraph (1).
For these reasons, we hold that the scope of “the alien” is fixed by the predicate offenses identified in subparagraphs (A)–(D).5 And since only those subparagraphs settle who is “described in paragraph (1),” anyone who fits their description falls under paragraph (2)‘s detention mandate—even if (as with respondents) the Secretary did not arrest them immediately “when” they were “released.”
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In reaching the contrary conclusion, the Ninth Circuit thought that the very structure of
1
Although the Ninth Circuit viewed subsections (a) and (c) as establishing separate sources of arrest and release authority, in fact subsection (c) is simply a limit on the authority conferred by subsection (a).
Recall that subsection (a) has two sentences that provide the Secretary with general discretion over the arrest and release of aliens, respectively. We read each of subsection (c)‘s two provisions—paragraph (1) on arrest, and paragraph (2) on release—as modifying its counterpart sentence in subsection (a). In particular, subsection (a) creates authority for anyone‘s arrest or release under
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The Secretary must arrest those aliens guilty of a predicate offense. And subsection (c)(2) limits subsection (a)‘s second sentence by cutting back the Secretary‘s discretion over the decision to release: The Secretary may not release aliens “described in” subsection (c)(1)—that is, those guilty of a predicate offense. Accordingly, all the relevant detainees will have been arrested by authority that springs from subsection (a), and so, contrary to the Court of Appeals’ view, that fact alone will not spare them from subsection (c)(2)‘s prohibition on release. This reading comports with the Government‘s practice of applying to the arrests of all criminal aliens certain procedural requirements, such as the need for a warrant, that appear only in subsection (a). See Tr. of Oral Arg. 13–14.
The text of
2
But even if the Court of Appeals were right to reject this reading, the result below would be wrong. To see why, assume with the Court of Appeals that only someone arrested under authority created by
Especially relevant here is our decision in United States v. Montalvo-Murillo, 495 U. S. 711 (1990). There we held that “a provision that a detention hearing “shall be held immediately upon the [detainee‘s] first appearance before the judicial officer” did not bar detention after a tardy hearing.” Barnhart, 537 U. S., at 159 (quoting Montalvo-Murillo, 495 U. S., at 714). In that case, we refused to “bestow upon the defendant a windfall” and “visit upon the Government and the citizens a severe penalty by mandating release of possibly dangerous defendants every time some deviation from the [statutory] strictures occurred.” Montalvo-Murillo, 495 U. S., at 720. Instead, we gave effect to the principle 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.” Barnhart, 537 U. S., at 159 (quoting United States v. James Daniel Good Real Property, 510 U. S. 43, 63 (1993)).
This principle for interpreting time limits on statutory mandates was a fixture of the legal backdrop when Congress enacted
Respondents object that the rule invoked in Montalvo-Murillo and related
But the whole premise of respondents’ argument is that if the Secretary could no longer act under
Especially hard to swallow is respondents’ insistence that for an alien to be subject to mandatory detention under
In short, the import of our case law is clear: Even if subsection (c) were the only font of authority to detain aliens without bond hearings, we could not read its “when released” clause to defeat officials’ duty to impose such mandatory detention when it comes to aliens who are arrested well after their release.
Respondents protest that reading
A
According to respondents, the Government‘s reading of
First, respondents claim that if they face mandatory detention even though they were arrested well after their release, then “when . . . released” adds nothing to paragraph (1). In fact, however, it still has work to do. For one thing, it clarifies when the duty to arrest is triggered: upon release from criminal custody, not before such release or after the completion of noncustodial portions of a criminal sentence (such as a term of “parole, supervised release, or probation,” as the paragraph goes on to emphasize). Thus, paragraph (1) does not permit the Secretary to cut short an alien‘s state prison sentence in order to usher him more easily right into immigration detention—much as another provision prevents officials from actually removing an alien from the country “until the alien is released from imprisonment.”
The “when . . . released” clause also serves another purpose: exhorting the Secretary to act quickly. And this point answers respondents’ second surplusage claim: that the “Transition Period Custody Rules” enacted along with
B
The Court of Appeals objected that the Government‘s reading of
We agree that it would be very strange for Congress to forbid the release of aliens who need not be arrested in the first place, but the fact is that the Government‘s reading (and ours) does not have that incongruous result. The real anomalies here would flow instead from the Court of Appeals’ interpretation.
To begin with the latter point: Under the Court of Appeals’ reading, the mandatory-detention scheme would be gentler on terrorists than it is on garden-variety offenders. To see why, recall first that subparagraphs (A)-(C) cover aliens who are inadmissible or deportable based on the commission of certain criminal offenses, and there is no dispute that the statute authorizes their mandatory detention when they are released from criminal custody. And the crimes covered by these subparagraphs include, for example, any drug offense by an adult punishable by more than one year of imprisonment, see
Along similar lines, note that one
Thus, contrary to the Court of Appeals’ interpretation of the “when released” clause as limiting the class of aliens subject to mandatory detention, we read subsection (c)(1) to specify the timing of arrest (“when the alien is released“) only for the vast majority of cases: those involving criminal aliens who were once in criminal custody. The paragraph simply does not speak to the timeline for arresting the few who had no stint in jail. (And why should it? Presumably they—unlike those serving time—are to be detained as they come across the Government‘s radar and any relevant evidentiary standards are satisfied.)8
In short, we read the “when released” directive to apply when there is a release. In other situations, it is simply not relevant. It follows that both of subsection (c)‘s mandates—for arrest and for release—apply to any alien linked with a predicate offense identified in subparagraphs (A)-(D), regardless of exactly when or even whether the alien was released from criminal custody.
C
Finally, respondents perch their reading of
Respondents say we should be uneasy about endorsing any reading of
The trouble with this argument is that constitutional avoidance ““comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.“” Jennings, 583 U. S., at ___ (slip op., at 12). The canon “has no application” absent “ambiguity.” Warger v. Shauers, 574 U. S. 40, 50 (2014) (internal quotation marks omitted). See also Zadvydas, 533 U. S., at 696 (“Despite this constitutional problem, if Congress has made its intent in the statute clear, we must give effect to that intent” (internal quotation marks omitted)). Here the text of
We emphasize that respondents’ arguments here have all been statutory. Even their constitutional concerns are offered as just another pillar in an argument for their preferred reading of the language of
*
*
*
The judgments of the Court of Appeals for the Ninth Circuit are reversed, and the cases are remanded for further proceedings.
It is so ordered.
JUSTICE KAVANAUGH, concurring.
I write separately to emphasize the narrowness of the issue before us and, in particular, to emphasize what this case is not about.
This case is not about whether a noncitizen may be removed from the United States on the basis of criminal offenses. Under longstanding federal statutes, the Executive Branch may remove noncitizens from the United States when the noncitizens have been convicted of certain crimes, even when the crimes were committed many years ago.
This case is also not about whether a noncitizen may be detained during removal proceedings or before removal. Congress has expressly authorized the Executive Branch to detain noncitizens during their removal proceedings and before removal.
This case is also not about how long a noncitizen may be detained during removal proceedings or before removal. We have addressed that question in cases such as Zadvydas v. Davis, 533 U. S. 678 (2001), Clark v. Mar-tinez, 543 U. S. 371 (2005), and Jennings v. Rodriguez, 583 U. S. ___ (2018).
The sole question before us is narrow: whether, under
It would be odd, in my view, if the Act (1) mandated detention of particular noncitizens because the noncitizens posed such a serious risk of danger or flight that they must be detained during their removal proceedings, but (2) nonetheless allowed the noncitizens to remain free during their removal proceedings if the Executive Branch failed to immediately detain them upon their release from criminal custody. Not surprisingly, the Act does not require such an odd result. On the contrary, the relevant text of the Act is relatively straightforward, as the Court explains. Interpreting that text, the Court correctly holds that the Executive Branch‘s detention of the particular noncitizens here remained mandatory even though the Executive Branch did not immediately detain them. I agree with the Court‘s careful statutory analysis, and I join the Court‘s opinion in full.
I
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins, concurring in part and concurring in the judgment.
I continue to believe that no court has jurisdiction to decide questions concerning the detention of aliens before final orders of removal have been entered. See Jennings v. Rodriguez, 583 U. S. ___, ___ (2018) (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 1-11). By my count, Congress has erected at least three barriers to our review of the merits, and I also question whether Article III jurisdiction existed at the time of class certification. Nonetheless, because the Court has held that we have jurisdiction in cases like these, and because I largely agree with the Court‘s resolution of the merits, I join all but Parts II and III–B-2 of the Court‘s opinion.
I
Respondents consist of two classes of aliens who committed criminal offenses that require the Secretary of Homeland Security to detain them without a bond hearing under
The first class action was brought in the Northern District of California and has three class representatives. One of the plaintiffs, Mony Preap, received cancellation of removal and was not in immigration custody at the time of certification. The other two, Eduardo Vega Padilla and Juan Lozano Magdaleno, had received bond hearings as required by a Ninth Circuit decision, Rodriguez v. Robbins, 715 F. 3d 1127, 1138 (2013); Padilla had been released, while Magdaleno was denied release. The District Court certified a class of all aliens in California who are or will be subjected to mandatory detention under
The second class action was brought in the Western District of Washington and also has three class representatives: Bassam Yusuf Khoury and Alvin Rodriguez Moya, who had been released on bond before class certification after their Rodriguez hearings, and Pablo Carrera Zavala, who was released before class certification because the Department of Homeland Security determined that he had not committed a predicate
II
At least three statutory provisions limit judicial review here, and I am skeptical whether the District Courts had Article III jurisdiction to certify the classes.
A
First,
B
Second,
C
Third,
D
Finally, I harbor two concerns about whether the class actions were moot at the time of certification. First, as the Court recognizes, class actions are ordinarily “moot if no named class representative with an unexpired claim remain[s] at the time of class certification.” United States v. Sanchez-Gomez, 584 U. S. ___ (2018) (slip op., at 4); ante, at 9. At the time of class certification, all six of the named plaintiffs had received bond hearings or cancellation of removal. As I understand the plaintiffs’ arguments, that was the full relief that they sought: “individualized bond hearings where they may attempt to prove that their release would not create a risk of flight or danger to the public.” Motion for Class Certification in Preap v. Beers, No. 4:13–cv–5754 (ND Cal.), Doc. 8, p. 8; see Complaint for Injunctive and Declaratory Relief in Preap, supra, Doc. 1, p. 3 (seeking “immediate individualized bond hearings“); First Amended Class Action Complaint in Khoury v. Asher, No. 2:13–cv–1367 (WD Wash.), Doc. 19, p. 13 (requesting relief of “individualized bond hearings to all Plaintiffs“). The Court concludes that some of the named plaintiffs still faced the threat of rearrest and mandatory detention at the time of class certification because the bond hearings that they received were provided as part of a preliminary injunction in a separate case that was later dissolved. But whether the plaintiffs actually faced that threat has not been addressed by the parties, and I question whether this future contingency was sufficiently imminent to support Article III jurisdiction.
*
*
*
Because three statutes deprive courts of jurisdiction over respondents’ claims, I would have vacated the judgments below and remanded with instructions to dismiss the cases for lack of jurisdiction. But because the Court has held otherwise and I agree with the Court‘s disposition of the merits, I concur in all but Parts II and III–B–2 of its opinion.
JUSTICE BREYER, with whom JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
A provision of the Immigration and Nationality Act,
The critical statutory language is contained in paragraph (2) of this provision. That paragraph says (with one exception not relevant here) that “an alien described in paragraph (1)” must be held without a bail hearing. Here we must decide what these words mean. Do the words “an
BREYER, J., dissenting
alien described in paragraph (1) refer only to those aliens whom the Secretary, following paragraph (1)s instructions, has take[n] into custody . . . when the alien is released from, say, state or federal prison? Or do these words refer instead to all aliens who have ever committed one of the offenses listed in paragraph (1), regardless
For present purposes, I accept the Courts holding in Jennings v. Rodriguez, 583 U. S. ___ (2018), that paragraph (2) forbids bail hearings for aliens described in paragraph (1). But see id., at ___ (BREYER, J., dissenting) (slip op., at 2) (interpreting paragraph (2) as not forbidding bail hearings, as the Constitution likely requires them); id., at ___ (majority opinion) (slip op., at 29) (declining to reach constitutional question). Here, however, the Court goes much further. The majority concludes that paragraph (2) forbids bail hearings for aliens regardless of whether they are taken into custody when . . . released from prison. Under the majoritys view, the statute forbids bail hearings even for aliens whom the Secretary has detained years or decades after their release from prison.
The language of the statute will not bear the broad interpretation the majority now adopts. Rather, the ordinary meaning of the statutes language, the statutes structure, and relevant canons of interpretation all argue convincingly to the contrary. I respectfully dissent.
I
A
The relevant statute,
The subsection containing the exception to which (a) refers—namely,
Paragraph (1), entitled Custody, says that the Secretary shall take into custody any alien who is inadmissible or deportable (by reason of having committed certain offenses or having ties to terrorism) when the alien is released, presumably from local, state, or federal criminal custody.
Paragraph (2), entitled Release, says that the Secretary may release an alien described in paragraph (1) only if the alien falls within a special category—not relevant here—related to witness protection.
Here we focus on the meaning of a key phrase in paragraph (2): an alien described in paragraph (1). This is the phrase that identifies the aliens to whom paragraph (2) (and its no-bail-hearing
B
The issue may sound technical. But it is extremely important. That is because the Governments reading of the statute—namely, that paragraph (2) forbids bail hearings for all ABCD aliens regardless of whether they were detained when . . . released from criminal custody—would significantly expand the Secretarys authority to deny bail hearings. Under the Governments view, the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community.
These aliens may then be detained for months, sometimes years, without the possibility of release; they may have been convicted of only minor crimes—for example, minor drug offenses, or crimes of moral turpitude such as illegally downloading music or possessing stolen bus transfers; and they sometimes may be innocent spouses or children of a suspect person. Moreover, for a high percentage of them, it will turn out after months of custody that they will not be removed from the country because they are eligible by statute to receive a form of relief from removal such as cancellation of removal. These are not mere hypotheticals. See Appendix B, infra. Thus, in terms of potential consequences and basic American legal traditions, see infra, at 11–12, the question before us is not a narrow one, ante, at 2 (KAVANAUGH, J., concurring).
Why would Congress have granted the Secretary such broad authority to deny bail hearings, especially when doing so would run contrary to basic American and common-law traditions? See Jennings, supra, at ___ (BREYER, J., dissenting) (slip op., at 8–10). The answer is that Congress did not do so. Ordinary tools of statutory interpretation demonstrate that the authority Congress granted to the Secretary is far more limited.
II
The statutes language, its structure, and relevant canons of interpretation make clear that the Secretary cannot hold an alien without a bail hearing unless the alien is take[n] into custody . . . when the alien is released from criminal custody.
A
Consider the statutes language. Paragraph (1) of
The key phrase in paragraph (2) is an alien described in paragraph (1). As a matter of ordinary meaning and usage, the words take into custody . . . when the alien is released in paragraph (1) form part of the description of the alien: An alien described in paragraph (1) is an ABCD alien whom the Secretary has take[n] into custody . . . when the alien is released from prison.
The majority emphasizes a grammatical point—namely, that ordinarily only adjectives or adjectival phrases modify
The common rules of grammar make the broad scope of the word described obvious. They demonstrate that a noun often is described by more than just the adjectives that modify it. Consider the following sentence: The well-behaved child was taken by a generous couple to see Hamilton. That sentence, written in the passive voice, describes the child not only as well-behaved but also as someone taken by a generous couple to see Hamilton. The description of the child would not differ were we to write the sentence in the active voice: The generous couple took the well-behaved child to see Hamilton. The action taken by the generous couple (took . . . to see Hamilton) still describes the child, even though these words do not modify the word child. That is because a person who has been subjected to an action can be described by that action no less than by an adjective. See Peters, supra, at 386 (describing such a person as someone affected by the action); B. Garner, The Chicago Guide to Grammar, Usage, and Punctuation 452 (2016) (describing such a person as someone who is acted on by or receives the action); see also R. Huddleston & G. Pullum, The Cambridge Grammar of the English Language 1436 (2002) (noting the large-scale overlap between adjectives and certain verb forms).
An example illustrates how these principles apply to the statute at issue here. Imagine the following cookbook recipe. Instruction (1) says: (1) Remove the Angus steak from the grill when the steak is cooked to 120 degrees Fahrenheit. Instruction (4) says: (4) Let the steak described in Instruction (1) rest for ten minutes and then serve it. What would we say of a chef who grilled an Angus steak to 185 degrees Fahrenheit, served it, and then appealed to these instructions—particularly the word described in Instruction (4)—as a justification? That he was not a good cook? That he had an odd sense of humor? Or simply that he did not understand the instructions? The chef would have no good textual defense: The steak described in Instruction (1) is not just an Angus steak, but an Angus steak that must be remove[d] . . . when the steak is cooked to 120 degrees Fahrenheit. By the same logic, the alien in paragraph (1) is described not only by the four clauses—A, B, C, and D—that directly modify the word alien, but also by the verb (shall take) and that verbs modifier (when the alien is released).
The majority argues that the crucial point is that the phrase when the alien is released plays no role in identifying for the Secretary which aliens she must immediately arrest. Ante, at 13. That may be so. But why is that a crucial point in the majoritys favor? After all, in the example above, the words [r]emove . . . from the grill when the steak is cooked to 120 degrees Fahrenheit do not tell our chef what kind of steak to cook in the first place. (The word Angus does that.) Even so, those words still describe the steak that must be served in Instruction (4). Why? Because by the time our chef gets to Instruction (4), the recipe contemplates that the action in Instruction (1) has been completed. At that point, the steak described
The same is true of the two paragraphs before us. The key word described appears not in paragraph (1), but in paragraph (2). Paragraph (2) refers back to the entirety of paragraph (1). And because paragraph (2) is the release provision, it contemplates that the action mandated by paragraph (1)—namely, detention—has already occurred. Thus, the function of the phrase an alien described in paragraph (1) is not to describe who must be detained, but instead to describe who must be denied bail.
In short, the language demonstrates that an alien is described in paragraph (1)—and therefore subject to paragraph (2)s bar on bail hearings—only if the alien is take[n] into custody . . . when the alien is released.
B
The statutes structure and context support this reading of the phrase an alien described in paragraph (1).
First, Congress often drafts statutes with hierarchical schemes—section, subsection, paragraph, and on down the line. NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (slip op., at 9). Congress employed that structure to make precise cross-references throughout the immigration code. Ibid. As relevant here, in a different detention provision enacted alongside the provision at issue here, Congress said that the Government may release the alien only if the alien is an alien described in subparagraph (A)(ii) or (A)(iii). Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), §303(b)(3)(B), 110 Stat. 3009–587. Yet Congress did not make such a precise cross-reference in paragraph (2): It did not refer to an alien described in subparagraphs (A)–(D) of paragraph (1), as it could have—and would have done had it intended the majoritys narrow interpretation. Instead, it referred to aliens described in the entirety of paragraph (1).
We usually presume differences in language like this convey differences in meaning. Henson v. Santander Consumer USA Inc., 582 U. S. ___, ___ (2017) (slip op., at 6). The cross-reference to all of paragraph (1) reinforces that an alien described in paragraph (1) is not just an ABCD alien, but an ABCD alien whom (in the words of paragraph (1)) the Secretary take[s] into custody . . . when the alien is released from criminal confinement.
Second, consider the structural similarity between subsections (a) and (c). See Appendix A, infra. The first sentence of subsection (a) sets forth a detention rule: An alien may be arrested and detained pending a decision on the aliens removal.
It is obvious that the second sentence of (a) applies only to those aliens who are detained following the rule in (a)s first sentence. Parallel structure suggests that the same is true in (c): The second sentence of (c) applies only to those detained following the rule in (c)s first sentence. Subsection (a)s reference to (c) strengthens
Thus, the release rule in each subsection (the second sentence) applies only if the Secretary complies with the detention rule in that subsection (the first sentence). In light of the parallel structures of these provisions, it would flou[t] the text to find that an alien is subject to (c)s release rule, which forbids release, without also finding that the alien was detained in accordance with (c)s detention rule, which requires the alien to be detained when . . . released. Chan v. Korean Air Lines, Ltd., 490 U. S. 122, 132 (1989).
The majority responds that subsections (a) and (c) do not establis[h] separate sources of arrest and release authority, and that (c) is merely a limit on the authority granted by (a). Ante, at 15. But even if (c) were treated as a limit on the authority granted by (a), the parallel structure of the statute would still point to the same conclusion: The Secretary must comply with the limit on detention in the first sentence of (c) in order to invoke the rule on release in the second sentence of (c).
Third, Congress enactment of a special transition statute strengthens the point. When Congress enacted subsection (c), it recognized that there might be insufficient detention space and personnel to carry out subsection (c)s requirements. IIRIRA, §303(b)(2), 110 Stat. 3009–586. It therefore authorized the Government to delay implementation of subsection (c)—initially for one year, then for a second year. Ibid.
If the majority were correct that the when . . . released provision does not set a time limit on the Secretarys authority to deny bail hearings, then a special transition statute delaying implementation for one year would have been unnecessary. To avoid overcrowding, the Government simply could have delayed arresting aliens for 1, 2, 5, or 10 years, as the majority believes it can do, and then deny them bail hearings. What need for a 1-year transition period? The majority responds that the transition statute still served a purpose: to dela[y] the onset of the Secretarys obligation to begin making arrests. Ante, at 21. But that just raises the question: Why would Congress have needed to dela[y] the onset of the Secretarys obligation if it thought that the Secretary could detain aliens without a bail hearing after a year-long delay? The majority offers no good answer. The transition statute therefore strongly suggests that Congress viewed the when . . . released provision as a constraint on the Secretarys authority to deny a bail hearing.
The transition statute also supports this conclusion in another respect: It demonstrates that Congress anticipated that subsection (c) would apply only to aliens released from state or federal prison. As noted, clauses A, B, C, and D in paragraph (1) cover some aliens who have never been in criminal custody. Supra, at 4. Even the majority acknowledges that it would be bizarre if these aliens could be detained without a bail hearing. Ante, at 23. The transition statute confirms as much: It indicates that the provisions of [subsection (c)] shall apply to individuals released after the transition period concludes. IIRIRA, §303(b)(2), 110 Stat. 3009–586 (emphasis added). From this it follows that Congress saw paragraph (2) as forbidding bail hearings only for aliens who have been released. That, however, can be true only if the when . . . released provision limits the class of aliens subject to paragraph
C
Even if statutory text and structure were not enough to resolve these cases, the Governments reading would fail for another reason. A well-established canon of statutory interpretation provides that, if fairly possible, a statute must be construed so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score. United States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916). See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988) (using word serious instead of grave). The Governments reading of the statute, which the majority adopts, construes the statute in a way that creates serious constitutional problems. That reading would give the Secretary authority to arrest and detain aliens years after they have committed a minor crime and then hold them without a bail hearing for months or years. This possibility is not simply theoretical. See Appendix B, infra.
In Jennings, I explained why I believe the practice of indefinite detention without a bail hearing likely deprives a person of his or her liberty . . . without due process of law.
I explained much of the constitutional problem in my dissent in Jennings. Rather than repeat what I wrote there, I refer the reader to that opinion. See Jennings, supra, at ___ (slip op., at 1). I add only the obvious point that a bail hearing does not mean release on bail. It simply permits the person held to demonstrate that, if released, he will neither run away nor pose a threat. It is especially anomalous to take this opportunity away from an alien who committed a crime many years before and has since reformed, living productively in a community.
The majoritys reading also creates other anomalies. As I have said, by permitting the Secretary to hold aliens without a bail hearing even if they were not detained when . . . released, the majoritys reading would allow the Secretary to hold indefinitely without bail those who have never been to prison and who received only a fine or probation as punishment. Supra, at 4, 10–11. See, e.g.,
Although the Court of Appeals correctly concluded that paragraph (2)s prohibition on release applies only to an alien whom the Secretary take[s] into custody . . . when the alien is released from criminal custody, it also held that the phrase when the alien is released means that the Secretary must grant a bail hearing to any alien who is not immediately detained when released from criminal custody. Preap v. Johnson, 831 F. 3d 1193, 1207 (CA9 2016). I disagree with the Court of Appeals as to the meaning of the phrase when the alien is released.
A
As an initial matter, the phrase when the alien is released imposes an enforceable statutory deadline. I cannot agree with JUSTICE ALITO, who writes for a plurality of the Court on this point, that our cases holding certain statutory deadlines unenforceable are applicable here. Ante, at 17. See, e.g., Barnhart v. Peabody Coal Co., 537 U. S. 149, 152 (2003) (holding that the Governments untimeliness did not bar it from taking action beyond the statutory deadline); United States v. Montalvo-Murillo, 495 U. S. 711, 713–714 (1990) (holding that a provision requiring a detention hearing to be held immediately did not bar detention in the event of a late hearing); Brock v. Pierce County, 476 U. S. 253, 266 (1986) (holding that the Governments failure to observe a 120-day statutory deadline did not deprive it of authority under the statute).
I disagree with the plurality on this point because our case law makes clear that a statutory deadline against the Government must be enforced at least in contexts where other part[s] of the relevant statutes indicate that the time limit must be enforced, Montalvo-Murillo, supra, at 717; see also Barnhart, supra, at 161, 163; Dolan v. United States, 560 U. S. 605, 613 (2010); where the statute specif[ies] a consequence for noncompliance with the time limit, Barnhart, supra, at 159 (quoting United States v. James Daniel Good Real Property, 510 U. S. 43, 63 (1993)); or where the harms caused by the Governments delay are likely to be serious, see Dolan, supra, at 615–616; Montalvo-Murillo, supra, at 719–720.
Here, the special transition statute Congress enacted alongside subsection (c) makes clear that Congress expected that the mandate that an alien be detained when . . . released would be enforceable. Congress neither wished for nor expected the Secretary to detain aliens more than a year after their release from criminal custody. IIRIRA, §303(b)(2), 110 Stat. 3009–586. Why else would Congress have enacted a statute permitting the Government, due to insufficient detention space and Immigration and Naturalization Service personnel, to delay implementation of the entirety of subsection (c) for one year? Ibid. As I have said, had Congress read the phrase when the alien is released as the plurality now reads it, the Government could have delayed implementation for as long as it liked without the need for any transition statute. Supra, at 10. The transition statute demonstrates that Congress viewed the phrase when the alien is released as imposing a deadline. Based on the transition statute, the Secretary may not delay detention under subsection (c) for longer than one year.
Moreover, the statute does specify a consequence for the Secretarys failure to detain an alien when the alien is released. Barnhart, supra, at 159
Finally, I have already mentioned the many harms that could befall aliens whom the Secretary does not detain when . . . released. They range from long periods of detention, to detention years or even decades after the aliens release from criminal custody, to the risk of splitting up families that are long established in a community. Supra, at 4. Thus, unlike some of our prior cases, the harm from a missed deadline hardly can be described as insignificant. Montalvo-Murillo, supra, at 719.
The plurality objects that Congress could not have meant for judges to enforce the mandatory detention requirement in case of delay by—of all things—forbidding its execution. Ante, at 19. But treating the when the alien is released clause as an enforceable limit does not prohibit the Secretary from detaining the aliens that subsection (c) requires her to detain. Rather, the Secretarys failure to comply with the when the alien is released clause carries only one consequence: The Secretary cannot deny a bail hearing.
B
So what does the phrase when the alien is released mean? The word when can, but does not always, mean [a]t the time that, American Heritage Dictionary, at 1971, or just after the moment that, Websters Third New International Dictionary, at 2602. But the word only [s]ometimes impl[ies] suddenness. 20 Oxford English Dictionary 209 (2d ed. 1989). It often admits of at least some temporal delay. A child who is told to mow the lawn, please, when you get home from school likely does not have to mow the lawn the second she comes into the house. She can do a few other things first.
Mindful of the greater immigration-related expertise of the Executive Branch and the serious administrative needs and concerns inherent in the necessarily extensive [Government] efforts to enforce this complex statute, I would interpret the word when in the same manner as we interpreted other parts of this statute in Zadvydas v. Davis, 533 U. S. 678, 700 (2001). The words when the alien is released require the Secretary to detain aliens under subsection (c) within a reasonable time after their release from criminal custody—presumptively no more than six months. If the Secretary does not do so, she must grant a bail hearing. This presumptive 6-month limit is consistent with how long the Government can detain certain aliens while they are awaiting removal from the country. Id., at 682, 701 (interpreting a different provision,
IV
To reiterate: The question before us is not narrow. Ante, at 2 (KAVANAUGH,
I would have thought that Congress meant to adhere to these values and did not intend to allow the Government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing. In my view, the Court should interpret the words of this statute to reflect Congress likely intent, an intent that is consistent with our basic values. To speak more technically, I believe that aliens are subject to paragraph (2)s bar on release only if they are detained when . . . released from criminal custody. To speak less technically, I fear that the Courts contrary interpretation will work serious harm to the principles for which American law has long stood.
For these reasons, with respect, I dissent.
Appendix A to the opinion of BREYER, J.
APPENDIXES
A
(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;
. . . . .
(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 section1227(a)(4)(B) of this title,when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be
arrested or imprisoned again for the same offense. (2) Release
The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to
section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien. (Emphasis added.)
Appendix B to the opinion of BREYER, J.
B
The following citations support the claims made supra, at 4, regarding the breadth of the Governments reading of the statute. I do not intend to suggest that these citations provide a complete description of the many aliens who are detained without a bail hearing under
See Jennings v. Rodriguez, 583 U. S. ___ (2018) (BREYER, J., dissenting) (slip op., at 3) (indicating that thousands of aliens are eligible to be detained under subsection (c), that many are held for six months or longer, and that [n]early 40% of those who have served criminal sentences receive relief from removal); Preap v. Johnson, 831 F. 3d 1193, 1197 (CA9 2016) (noting that one respondent was detained 11 years after his release from prison); Brief for Advancement Project et al. as Amici Curiae 12 (presenting data from a recent lawsuit in Massachusetts indicating that more than one in five aliens detained under subsection (c) were taken into custody more than five years after their release from prison);
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.”