Manuel OLMOS, Petitioner-Appellee, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent-Appellant.
No. 14-1085
United States Court of Appeals, Tenth Circuit
March 24, 2015
1313
Before BRISCOE, Chief Judge, HOLMES, and BACHARACH, Circuit Judges.
Asian Americans Advancing Justice; Asian Americans Advancing Justice-Asian Law Caucus; Detention Watch Network; Families for Freedom; Immigrant Rights Clinic; Immigration Equality; The Rocky Mountain Immigrant Advocacy Network; The University of Colorado Boulder Law School Criminal/Immigration Defense Clinic; The University of Denver Sturm College of Law Hybrid Immigration Program, Amici Curiae.
III. Conclusion
I agree with the majority that
Michael K.T. Tan, American Civil Liberties Foundation Immigrants’ Rights Project, San Francisco, CA (Eunice Lee, American Civil Liberties Foundation Immigrants’ Rights Project, San Francisco, CA, Judy Rabinovitz, American Civil Liberties Foundation Immigrants’ Rights Project, New York, New York, and Mark Silverstein, ACLU of Colorado, Denver, CO with him on the brief), for Petitioner-Appellee.
Jon Streeter, Stacy Chen, and Theresa H. Nguyen, Keker & Van Nest LLP, San Francisco, CA, filed an Amici Curiae brief for Asian Americans Advancing Justice and AAJC and Asian Americans Advancing Justice-Asian Law Caucus.
Alina Das, Washington Square Legal Services, Inc., Immigrant Rights Clinic, New York, New York, filed an Amici Curiae brief for Detention Watch Network, Families for Freedom, Immigrant Rights Clinic, Immigration Equality, The Rocky Mountain Immigrant Advocacy Network, The University of Colorado Boulder Law School Criminal/Immigration Defense Clinic, and the University of Denver Sturm College of Law Hybrid Immigration Program.
For aliens, a criminal conviction can often result in removal (deportation). When an alien is convicted and the federal government seeks removal, an immigration judge can ordinarily conduct a bond hearing to decide whether the alien should be released or detained while he waits for his removal hearing. But, in
Against the backdrop of this statutory framework, Mr. Manuel Olmos (a citizen of Mexico) was convicted in state court on charges involving identity theft, providing false information to a pawnbroker, and forgery of a government document. Mr. Olmos obtained probation, but was taken into federal custody six days later on the ground that his conviction triggered mandatory detention.
Mr. Olmos sought a writ of habeas corpus, arguing that he was entitled to a bond hearing, where he could seek release while his removal hearing was pending. The district court agreed with Mr. Olmos and granted a writ of habeas corpus, holding that he was entitled to a bond hearing. At the eventual bond hearing, Mr. Olmos was released on a $12,000 bond.
The government contends that the Attorney General had a statutory duty to detain Mr. Olmos (without a bond hearing) notwithstanding his six-day gap in custody. We agree with the government based on (1) deference to the way the Board of Immigration Appeals has interpreted
I. Jurisdiction
Though Mr. Olmos does not challenge jurisdiction, we must address the issue sua sponte. Weber v. GE Grp. Life Assurance Co., 541 F.3d 1002, 1009 (10th Cir.2008).
We would lack jurisdiction if the Attorney General had discretion in applying
II. Statutory Interpretation (the Statutory Reference to “Paragraph (1)“)
We must exercise this jurisdiction by deciding the extent of the Attorney General‘s authority. This authority is governed by two parts of
We must decide whether this restriction applies when there is a gap between expiration of the criminal sentence and confinement by the Attorney General. Mr. Olmos states that the restriction does not apply when there is a gap in custody; the government states that the restriction applies regardless of when the Attorney General takes the alien into custody.
A. Chevron Analysis
The Board of Immigration Appeals agreed with the government‘s interpretation, concluding that the statutory restriction on release applies even when there is a gap in custody. In re Rojas, 23 I. & N. Dec. 117, 125 (B.I.A.2001). To decide whether we should defer to the Board, we engage in a two-part inquiry under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The first step is to determine “whether Congress has directly spoken” on the issue. Chevron, 467 U.S. at 842. If Congress has directly spoken, we do not accord any deference to the Board‘s interpretation. Id. at 842-43. But, if Congress has not directly spoken on the issue, we must decide if the Board‘s interpretation is permissible. Id. at 843.
B. The First Step of Chevron: Whether Congress Has Directly Spoken
To determine whether Congress has directly spoken, we consider the statutory text and other clues regarding Congress‘s meaning.
1. The Statutory Text
We begin with the statutory language:
(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 [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 undersection 1227(a)(4)(B) of this title,when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
(2) Release
The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to
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. Adecision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.
The text makes clear that the Attorney General must take custody of aliens in four categories (“A” through “D” of Paragraph “1“) when they are released. Mr. Olmos argues that the Attorney General must exercise this statutory obligation immediately upon release from confinement in the criminal case. For the sake of argument, we may assume that Mr. Olmos is correct.
If Mr. Olmos is correct, he should have been kept in continuous custody, with the Attorney General taking custody immediately upon release in the state criminal case. That did not happen, for Mr. Olmos had six days of freedom before being taken into the Attorney General‘s custody. Thus, we must ask: Did the Attorney General lose this power through his six-day delay?
To answer this question, we turn to the statutory text. It provides the Attorney General with limited power to release aliens, stating: “The Attorney General may release an alien described in paragraph (1) only if” certain conditions are met.
Both interpretations are plausible because the statutory text is ambiguous in its reference to “an alien described in paragraph (1).”
2. Other Clues Regarding the Correct Interpretation
To do so, we use “traditional tools of statutory construction.” Anderson v. U.S. Dep‘t of Labor, 422 F.3d 1155, 1180 (10th Cir.2005). In this case, the parties point to tools of statutory construction involving grammatical structure, legislative history, generality of the statutory cross-reference to “paragraph (1),” and case law on the interpretation of “flush language.” These tools do not remove the existing ambiguity in the statute, for none definitively answer whether the reference to “paragraph (1)” incorporates the taking of custody “when the alien is released.”
a. Grammatical Structure
The government points to the grammatical structure of
- “when the alien is released,” and
- “an alien described in paragraph (1).”
The government states that the first phrase (“when the alien is released“) is an adverbial phrase, which must modify a verb rather than a noun. Thus, according to the government, a grammarian could reasonably conclude that the noun phrase (“an alien described in paragraph (1)“) could not be modified by an adverbial clause (“when the alien is released“). But, this argument begs the question: The phrase “when the alien is released” can be adjectival or adverbial, depending on its function in the sentence. As a result, the
This section contains three parts:
- the opening phrase (“The Attorney General shall take into custody any alien who—“)
- the middle part (“A” through “D,” referring to the reasons that a given alien might be considered “inadmissible” or “deportable“)
- the end phrase (“when the alien is released” without regard to the form of release or potential reincarceration for the same offense).
The end phrase can modify (1) the opening phrase (by describing the aliens who are to be taken into custody), or (2) the middle part (by describing the aliens considered inadmissible or deportable).
If the end phrase simply modifies the opening phrase, the government‘s interpretation would be correct. But, this is not the only possible reading: The end phrase can also be read as modifying the middle part (by clarifying the aliens who are identified in Paragraphs “A” through “D“). Under this interpretation, Mr. Olmos would prevail because aliens would be described in Paragraph “1” only if they were immediately taken into custody upon release in their criminal cases. Because either interpretation is plausible from the text alone, the government‘s grammatical characterization does not remove the ambiguity.
b. Legislative History
The government relies not only on the grammar, but also on the legislative history. In adopting
But, again, the government‘s reliance on congressional intent does not remove the ambiguity. Congress did not impose mandatory detention for all aliens guilty of crimes. Instead, Congress drew lines, imposing mandatory detention for some aliens and not for others. Congress could conceivably have been less concerned about the appearance of aliens who had been released and had not taken the opportunity to flee. Thus, the government‘s reliance on congressional intent does not remove the inherent ambiguity: Congress might or might not have wanted bond hearings for aliens like Mr. Olmos who had not fled after obtaining release.
c. Generality in the Statutory Cross-Reference to “Paragraph (1)”
Mr. Olmos points to other statutory clues. For example, he emphasizes that Congress referred to aliens “described in paragraph (1)” and that this paragraph went beyond identifying aliens considered “inadmissible” or “deportable.” The paragraph also directed the Attorney General to take custody of these aliens (the opening phrase) and told him when to do that (“when the alien is released“). Mr. Olmos argues that when Congress referred to aliens “described in paragraph (1),” Congress had to be referring to the entirety of Paragraph “1.” And, the entirety of Paragraph “1” contemplated continuous confinement of aliens identified in “A” through “D.”
To Mr. Olmos, the meaning is clear: If Congress wanted to focus exclusively on aliens identified in Paragraphs “A” through “D,” the statute would have re
But, the government points out that Congress has not always been consistent in how it refers to other subsections in the same statute. For example, in
d. The Interpretation of “Flush Language”
Mr. Olmos also points to case law on how to interpret “flush language.” As noted above,
But, these cases do not remove the ambiguity in whether the flush language (“when the alien is released“) was intended to qualify the list of aliens identified in “A” through “D.” As noted above, there are two flush clauses in
The two “flush” clauses might simply be read as two parts of a cohesive sentence. The sentence would read: “The Attorney General shall take into custody any alien who—[is identified in ‘A’ through ‘D‘] when the alien is released....”
e. Canon of Constitutional Avoidance
Mr. Olmos argues that
The problem with the argument is that it reflects a misapplication of the canon of constitutional avoidance. This canon provides that when a particular construction would raise serious constitutional problems, the court will avoid that construction unless doing so would plainly
But, at the first step of Chevron, we examine solely “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842. Thus, the canon of constitutional avoidance does not bear on our inquiry at step one. See Warger v. Shauers, 135 S.Ct. 521, 529, 190 L.Ed.2d 422 (2014) (stating that the canon of constitutional avoidance applies only if the statute is ambiguous).
f. Rule of Lenity
According to Mr. Olmos, the rule of lenity suggests that the statute is unambiguous. We disagree.
Mr. Olmos invokes lenity at step one, where we are determining only whether Congress has directly spoken. See Appellee‘s Resp. Br. at 33-37. But, the rule of lenity applies only if the statute is grievously ambiguous. Robers v. United States, — U.S. —, 134 S.Ct. 1854, 1859, 188 L.Ed.2d 885 (2014). Section
g. Interplay Between Paragraphs “1” & “2”
Mr. Olmos also points to the structure of Paragraphs “1” and “2” in
That authority also arises in Paragraph “1.” There the statute requires the Attorney General to take aliens into custody if they are covered by categories “A” through “D.”
That interpretation is plausible,1 making Mr. Olmos‘s argument irrelevant because the authority for mandatory detention would arise under
h. Summary
The text, the statutory clues, and canons of interpretation do not definitively clarify the meaning of
C. The Second Step of Chevron: Whether the Board‘s Statutory Interpretation Was Permissible
Because Congress has not directly spoken on the issue, we consider how the Board of Immigration Appeals interpreted the statute and decide whether this interpretation was permissible. See p. 1317, above. The Board‘s interpretation is permissible unless it is “arbitrary, capricious, or manifestly contrary to”
As noted above, the Board held in In re Rojas, 23 I. & N. Dec. 117, 125 (B.I.A.2001) that
1. The Alleged Irrationality of Rojas
Mr. Olmos and amici curiae contend that Rojas leads to unjust, irrational results, uprooting aliens from the community when they are the family‘s sole source of income, eligible for relief from removal, and tied to family in the United States. This contention overlooks Congress‘s policy determination that aliens in certain categories (Paragraphs “A” through “D“) must be detained without a bond hearing even when they are the family‘s sole source of income, are eligible for relief from removal, and have family ties in the United States. The Board of Immigration Appeals is not free to second-guess Congress‘s policy judgment; the Board‘s sole task was to determine whether Congress had intended to exempt aliens from mandatory detention when the Attorney General was slow to act. The alleged hardships flow from Congress‘s policy judgment, not from the Board‘s interpretation of the statute in Rojas.
2. The Rule of Lenity and Canon of Constitutional Avoidance
As discussed above, Mr. Olmos argued at step one of Chevron that
a. The Canon of Constitutional Avoidance
The canon of constitutional avoidance would not preclude the Board‘s interpretation of
“[W]e do not abandon Chevron deference at the mere mention of a possible constitutional problem,”3 and the Supreme Court has upheld the constitutionality of mandatory detention in Demore v. Kim, 538 U.S. 510, 531, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). Amici Asian Americans Groups argue that the Supreme Court‘s decision in Demore does not apply because there the alien‘s confinement was continuous. This argument is not correct. The Supreme Court did not state whether there had been a gap in custody. But, the Ninth Circuit Court of Appeals did, noting that the Attorney General had taken the alien into custody one day after his release. Kim v. Ziglar, 276 F.3d 523, 526 (9th Cir.2002) (“The day after his release from state custody, the Immigration and Naturalization Service ... detained Kim pursuant to
Mr. Olmos had six days of freedom, rather than one, after being released on probation in his criminal case.4 But, there is nothing in the Supreme Court‘s decision that would cast doubt on the constitutionality of mandatory detention for someone who had enjoyed six days (rather than one day) of freedom.
According to Mr. Olmos, Demore does not apply because it “involved a constitutional challenge brought by a noncitizen who conceded
Mr. Olmos also tries to narrow the scope of the holding in Demore based on Justice Kennedy‘s separate concurrence. The Court split 5–4 on the constitutionality of mandatory detention. Justice Kennedy, who was among the five justices in the majority, noted that due process concerns
In light of Demore, the canon of constitutional avoidance would not suggest congressional intent to excuse mandatory detention for a six-day gap in custody.5
b. Rule of Lenity
Mr. Olmos has not suggested that we apply lenity at step two. But, if we were to do so, we would be applying lenity only to decide whether the Board engaged in a permissible interpretation of
3. Summary
The Board of Immigration Appeals provided a permissible interpretation of
III. The Attorney General‘s Continued Duty to Impose Mandatory Detention
We also reverse for a second reason: Congress required the Attorney General to impose mandatory detention for aliens like Mr. Olmos who were convicted of certain crimes; even if the Attorney General failed to fulfill this requirement in a timely manner (as Mr. Olmos argues), the statutory requirement would not have disappeared. The requirement would have remained, and the Attorney General would eventually have had to detain Mr. Olmos under
As noted above,
The Supreme Court has repeatedly held that when a statute requires a governmental actor (like the Attorney General) to do something within a deadline and he fails to do it, the requirement continues. E.g., Barnhart v. Peabody Coal Co., 537 U.S. 149, 158-59, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003); Brock v. Pierce Cnty., 476 U.S. 253, 260, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986); see also pp. 1321-22 & note 1, above.
Mr. Olmos does not quarrel with this principle. Instead, he argues that a bond hearing would not strip the Attorney General of the ability to obtain detention, for he could still pursue detention through a bond hearing. This argument mischaracterizes the requirement imposed on the Attorney General in
The Supreme Court addressed an analogous situation in United States v. Montalvo-Murillo, 495 U.S. 711, 110 S.Ct. 2072, 109 L.Ed.2d 720 (1990). There the Bail Reform Act required the district court to conduct a detention hearing immediately upon the individual‘s initial appearance before a judge. Montalvo-Murillo, 495 U.S. at 714. The district court failed to timely conduct the detention hearing, ruling later that the government had lost its ability to order detention. Id. at 716.
Strict enforcement of the court‘s deadline would not have left the district court powerless. Without a detention hearing, the prosecutor could have sought “any conditions of release that [were] ‘reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community.‘” Id. at 727 (Stevens, J., dissenting) (quoting
The Supreme Court‘s rationale is equally applicable here. The duty here involves mandatory detention rather than the holding of a detention hearing (as in Montalvo-Murillo). The governmental actor here (the Attorney General) is similarly situated to the governmental actor in Montalvo-Murillo (the district court). There the governmental actor‘s delay did not vitiate the statutory duty, for the district court retained the duty to hold a detention hearing. Thus, the delay here by the governmental actor (the Attorney General) would not have vitiated his statutory duty to impose detention without a bond hearing even though the immigration judge might order detention after considering the options.
Mr. Olmos points out that even without mandatory detention, immigration judges might order detention. But, they might not. See
According to Mr. Olmos,
The Attorney General waited too long to carry out that requirement. Thus, Mr. Olmos argues that the statutory requirement would have disappeared. But, Congress‘s statutory command did not vanish as a result of the Attorney General‘s delay. That command was for the Attorney General to detain aliens in certain categories (Paragraphs “A” through “D” of
IV. The Petitioner‘s Alternative Argument (the Necessity of Confinement in the Criminal Case)
Mr. Olmos argues in the alternative that
Mr. Olmos forfeited this argument by failing to raise it in his habeas petition. We interpret the petition liberally because Mr. Olmos was pro se at the time. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005). Even with a liberal construction, however, we cannot fairly interpret the habeas petition to include this claim.
In the habeas petition, Mr. Olmos included the phrase “from incarceration” in a single sentence:
As more fully explained in the accompanying memorandum of law, the plain text, context, and structure of the statute make clear that the clause “when the alien is released” applies to aliens who are being released from incarceration on the underlying offense, not from any offense, and in close temporal proximity to the release for that underlying offense.
Appellant‘s App. at 13. But, Mr. Olmos never made any argument about the fact that he had not been incarcerated as part of his sentence. Instead, he argued that
Mr. Olmos also points to his oral argument in the district court. There Mr. Olmos began his argument: “I have been looking at this law, 8 U.S.C., but, you know, I haven‘t really spent time in jail, and I do have a possibility of staying in this country, because my wife is a U.S. citizen, my children are U.S. citizens.” Appellee‘s Supp. App. at 29. Through this comment, Mr. Olmos apparently was trying to tell the district court he had not been in serious trouble in his criminal cases. Whatever Mr. Olmos intended, however, his comment (“I haven‘t really spent time in jail“) could not have alerted either the district court or the respondent to an argument that
Because Mr. Olmos failed to present this argument in district court, it is forfeited. See United States v. Burke, 571 F.3d 1048, 1057 (10th Cir.2009). If Mr. Olmos had urged plain error, we could consider it. Id. But, he has not. As a result, we decline to consider the argument. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir.2011) (“[T]he failure to argue for plain error and its application ... surely marks the end of the road for an argument for reversal not first presented to the district court.“).
Mr. Olmos argues that we can entertain the argument because it is a central issue and important to the public interest. But, our discretion is limited. We can entertain new arguments only when they involve a matter of law and the proper resolution is certain. Geddes v. United Staffing Alliance Emp. Med. Plan, 469 F.3d 919, 931 (10th Cir.2006).
For the sake of argument, we can assume that this issue involves solely a matter of law. But, the outcome is uncertain. The Board of Immigration Appeals has held in precedential decisions that “release” under
V. Conclusion
Mr. Olmos was not entitled to a bond hearing because (1) we must defer to the Board‘s interpretation of
Notes
Morales-Izquierdo v. Gonzales, 486 F.3d 484, 493 (9th Cir.2007) (internal citation omitted).When Congress has explicitly or implicitly left a gap for an agency to fill, and the agency has filled it, we have no authority to re-construe the statute, even to avoid potential constitutional problems; we can only decide whether the agency‘s interpretation reflects a plausible reading of the statutory text.... [T]he constitutional avoidance doctrine plays no role in the second Chevron inquiry.
The parties apparently agree that physical custody is required to trigger