United States Court of Appeals

For the First Circuit

No. 13-1994
LEITICIA CASTAEDA,
Petitioner, Appellee,
v.
STEVE SOUZA, Superintendent, Bristol County House of
Corrections, in his official capacity and his successors and
assigns,
Respondent, Appellant,
BRUCE E. CHADBOURNE, Field Office Director, Boston Field Office,
Office of Detention and Removal, U.S. Immigrations and Customs
Enforcement, U.S. Department of Homeland Security, in his
official capacity and his successors and assigns; JOHN T.
MORTON, Director, U.S. Immigration and Customs Enforcement, U.S.
Department of Homeland Security, in his official capacity and
his successors and assigns; JEH JOHNSON, Secretary, U.S.
Department of Homeland Security, in his official capacity and
his successors and assigns; ERIC H. HOLDER, JR., Attorney
General, U.S. Department of Justice, in his official capacity
and his successors and assigns,
Respondents.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]

No. 13-2509
CLAYTON RICHARD GORDON, on behalf of himself
and others similarly situated,
Petitioner, Appellee,

PRECIOSA ANTUNES; GUSTAVO RIBEIRO FERREIRA;

VALBOURN SAHIDD LAWES; NHAN PHUNG VU,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General; SARAH SALDANA, Director
of Immigration and Customs Enforcement; SEAN GALLAGHER, Acting
Field Office Director; CHRISTOPHER J. DONELAN; MICHAEL G.
BELLOTTI, Sheriff; STEVEN W. TOMPKINS, Sheriff; THOMAS M.
HODGSON, Sheriff; JOSEPH D. MCDONALD, JR., Sheriff; RAND BEERS,
Acting Secretary of Homeland Security,
Respondents, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]

Before
Howard, Chief Judge,
Torruella, Lynch, Thompson, Kayatta, and Barron,
Circuit Judges.

Leon Fresco, Deputy Assistant Attorney General, Office of

Immigration Litigation, with whom Sarah B. Fabian, Senior
Litigation Counsel, United States Department of Justice, Civil
Division, Office of Immigration Litigation, Elianis N. Perez,
Senior Litigation Counsel, Joyce R. Branda, Acting Attorney
General, Benjamin C. Mizer, Acting Assistant Attorney General,
Civil Division, William C. Peachy, Director, Office of Immigration
Litigation, District Court Section, Elizabeth Stevens, Assistant
Director, Hans. H. Chen, Trial Attorney, were on brief, for
respondents-appellants.
Gregory Romanovsky, with whom Livia Lungulescu and Romanovsky
Law Offices were on brief, for petitioner-appellee Castaeda.
Matthew R. Segal, with whom Adriana Lafaille, American Civil
Liberties Union Foundation of Massachusetts, Judy Rabinovitz,
Michael Tan, Anand Balakrishnan, ACLU Foundation Immigrants
Rights Project, Elizabeth Badger, and Kids in Need of Defense c/o
Nutter McClennan & Fish LLP, were on brief, for petitioner-appellee
Gordon.
Alina Das, Esq., and Washington Square Legal Services, Inc.,
- 2 -

Immigrant Rights Clinic, on brief for Immigration Law Professors,

American Immigration Lawyers Association, Boston College Law School
Immigration Clinic, Boston University Law School International
Human Rights Clinic, Detention Watch Network, Families for Freedom,
Greater Boston Legal Services, Harvard Immigration and Refugee
Clinical Program, Immigrant Defense Project, Immigrant Legal
Resource Center, Immigrant Rights Clinic, National Immigrant
Justice Center, National Immigration Project of the National
Lawyers
Guild,
Political
Asylum/Immigration
Representation
Project, Suffolk University Law School Immigration Law Clinic, and
University of Maine School of Law Immigrant and Refugee Rights
Clinic, as amici curiae in support of petitioners-appellees and in
support of affirmance.
Mathew E. Price, Lindsay C. Harrison, and Jenner & Block LLP,
on brief for amici curiae Former Immigration Judges and Department
of Homeland Security Officials in support of petitionersappellees.

Opinion En Banc

December 23, 2015

- 3 -

The

judgments

entered

in

the

district

affirmed by an equally divided en banc court.

courts

are

See Savard v. Rhode

Island, 338 F.3d 23, 25 (1st Cir. 2003) (en banc).

Opinions follow.
BARRON, Circuit Judge, with whom TORRUELLA and THOMPSON,
Circuit Judges, join. Congress has long given the Attorney General
discretion to decide whether to take aliens who are subject to
removal into immigration custody.

Congress also has long given

the Attorney General discretion to decide whether to release on

bond aliens who are in immigration custody while their removal
proceedings

are

pending.

Nearly

thirty

years

ago,

however,

Congress began enacting a succession of similar but slightly

revised immigration detention mandates that limited the Attorney
General's

detention

discretion

in

certain

respects.

These

consolidated appeals require us to decide the scope of the present

version of this detention mandate, codified in 8 U.S.C 1226(c).
Much like its precursors, this detention mandate first
directs that the Attorney General shall take into custody certain
"criminal aliens" -- as defined by their commission of specified
offenses -- "when [they are] released" from criminal custody. And,
much like its precursors, this detention mandate then bars the
Attorney General from releasing certain aliens on bond once they
have been placed in immigration custody.

- 4 -

The key point of dispute

concerns the class of aliens to whom this bar to bonded release

applies.
We

conclude

that

Congress

intended

for

the

present

detention mandate to operate like its precursors and thus that its
bar to bonded release applies only to those specified criminal
aliens whom the Attorney General took into custody "when [they
were] released" from criminal custody.

We further conclude that

the two aliens who bring these habeas petitions were not taken
into immigration custody "when [they were] released" from criminal
custody because they had been released from criminal custody years
before their immigration custody started. As a result, we conclude
that the present detention mandate does not bar either petitioner
from seeking release on bond pursuant to the Attorney General's
discretionary release authority.
Two district courts of this Circuit reached the same
conclusion

in

granting

the

petitioners

the

right

to

an

individualized bond hearing at which they could seek release prior

to the completion of the removal process.

See Gordon v. Johnson,

991 F. Supp. 2d 258 (D. Mass. 2013); Castaeda v. Souza, 952 F.

Supp. 2d 307 (D. Mass. 2013).

A panel of this Circuit affirmed.

See Castaeda v. Souza, 769 F.3d 32 (1st Cir. 2014).

This Court

then agreed to rehear the case en banc, and is now, by a vote of

three to three, evenly divided.

In consequence, the judgments of

the district courts are affirmed, as we believe they should be

- 5 -

given

Congress's

evident

intention

not

to

deny

aliens

like

petitioners the chance to seek bonded release, the consequential

nature of the decision to deny aliens such a chance, and the
reality that removal proceedings can stretch on for months or even
years.
I.
The key parts of the Immigration and Naturalization Act
are

codified

in

U.S.C.

subsections of it: (a) and (c).1

1226,

and,

in

particular,

two

Through subsection (a), Congress

gave the Attorney General broad discretion to decide whether to

take into custody an alien who is in the removal process. Congress
also gave the Attorney General, through that same subsection, broad
discretion to release on bond those aliens whom she had placed in
custody so that they would not have to be detained for the often
lengthy removal process.2

This authorization, located in 8 U.S.C. 1226(a), provides:

"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 . . . may continue to detain the arrested
alien . . . and . . . may release the alien on . . . bond . . . ."
2 Although the Attorney General now shares responsibilities
under 1226(a) with the Secretary of Homeland Security and the
Under Secretary for Border and Transportation Security, see
Homeland Security Act of 2002, Pub. L. No. 107296, 402, 441,
116 Stat. 2135, we will for convenience refer to this authority as
being vested in the Attorney General.
- 6 -

To

govern

the

exercise

of

this

release

power,

the

Attorney General issued regulations pursuant to subsection (a).

These regulations authorize immigration judges (subject to review
by the Board of Immigration Appeals (BIA) and ultimately the
Attorney General) to make individualized bond determinations based
on a detainee's flight risk and danger to the community.

See 8

C.F.R. 1236.1(c)(8), (d)(1), and (d)(3).

As

result

of

1226(a)

and

its

implementing

regulations, these two petitioners, Leiticia Castaeda and Clayton

Gordon, plainly may be detained for the entirety of the removal
process if they are found to pose sufficient bond risks.

There is

a question, however, whether they must be detained for the entirety

of that process regardless of the showing they could make at a
bond hearing.
The question arises due to the contested scope of the
limited exception to 1226(a) that is carved out by 1226(c).
The exception appears in two paragraphs of subsection (c) under
the single heading, "Detention of Criminal Aliens."3

Section 1226(c) provides:

(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 [8 U.S.C. 1182(a)(2)],
(B) is deportable by reason of having committed any
offense covered in [8 U.S.C. 1227(a)(2)(A)(ii)(iii),(B)-(D)],
- 7 -

Together, the paragraphs establish the latest version of

a detention mandate Congress first enacted in 1988.
Immigration

Reform

and

Immigrant

Responsibility

Act

Illegal
of

1996

(IIRIRA), tit. 111 303, Pub. L. No. 104-208, 110 Stat. 3009-546,
3009-585.

In each prior version, Congress required first that the

Attorney General "shall take into [immigration] custody any alien

convicted" of an enumerated felony offense "upon completion" of
the alien's sentence (1988 mandate) or "upon [the alien's] release"
from criminal custody (later mandates).

And, in each prior

version, Congress then required that the Attorney General "shall

not release such felon from [immigration] custody."

See Anti-Drug

Abuse Amendments Act of 1988, 7343(a), Pub. L. No. 100-690, 102

Stat. 4181, 4470; Immigration Act of 1990, 504(a), Pub. L. No.
101-649, 104 Stat. 4978, 5049-50; Antiterrorism and Effective

(C)
is
deportable
under
[8
U.S.C.
1227(a)(2)(A)(i)] on the basis of an offense for which
the alien has been sentenced to a term of imprisonment
of at least 1 year, or
(D)
is
inadmissible
under
[8
U.S.C.
1182(a)(3)(B)] or deportable under [8 U.S.C.
1227(a)(4)(B)],
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 . . . release of the alien from custody
is necessary to provide protection to a witness . . . .
- 8 -

Death Penalty Act of 1996 (AEDPA), 440(c), Pub. L. No. 104-132,

110 Stat. 1214, 1277.
The version of the detention mandate that is at issue
here was enacted in 1996 and follows this same structure.

The

first paragraph, identified as 1226(c)(1), appears under the

heading "Custody."

Like the portion of the earlier enacted

detention mandates that contained the "upon completion" or "upon

release" clauses, this paragraph sets forth the following custody
directive: the Attorney General "shall take into [immigration]
custody" an alien who has committed certain offenses or engaged in
certain concerning behavior -- specified in subparagraphs (A)-(D)
of (c)(1) -- "when the alien is released, without regard to whether
the alien is released on parole, supervised release, or probation
. . . ."4

As these petitioners were released from prison sentences,

there is no question they were "released" within the meaning of
1226(c)(1). With respect to the precise requirement the word
"released" imposes, the Second Circuit recently held in Lora v.
Shanahan that a convicted alien who receives a non-carceral
sentence has also been "released."
Lora v. Shanahan, 2015 WL
6499951, at *6 (2d Cir. Oct. 28, 2015).
The Second Circuit
concluded that this interpretation of "released" "avoids
nullifying" the trailing language in (c)(1), which, through its
reference to "probation," "clearly contemplates non-carceral
sentences."
Id.
In effect, the Second Circuit interprets
"released" to mean "release from the technical custody of the
criminal court" (i.e., at the end of the sentencing proceeding),
a position that the government has elsewhere advanced. See In re
West, 22 I. & N. Dec. 1405, 1408 (BIA 2000). In so doing, the
Second Circuit did not address the BIA's view that "released" means
even release from pre-conviction arrest. See In re Kotliar, 24 I.
- 9 -

The
follows

second

directly

"Release."

paragraph,

after

(c)(1)

identified

and

appears

as

under

1226(c)(2),
the

heading

Like the portion of the earlier enacted detention

mandates that contained the "such felon" clause, this paragraph

sets forth the following bar to bonded release from immigration
custody: the Attorney General "may release an alien described in
paragraph (1) only if" the alien satisfies certain limited criteria
not at issue here.5
Under petitioners' view, (c)(1) and (c)(2) operate in
tandem just as the earlier detention mandates did.

In consequence

of the words "when" and "released" in the first paragraph, the

Attorney General must timely take specified aliens coming out of
criminal custody into immigration custody.

The second paragraph,

by referring to the prior paragraph, then requires the Attorney

General not to release on bond the specified aliens that she has
timely taken into immigration custody following their release from
criminal custody in accordance with the directive in (c)(1).

& N. Dec. 124, 125 (BIA 2007); West, 22 I. & N. Dec. at 1410; see
also Saysana, 590 F.3d at 14 (suggesting, more broadly, that an
alien could be arrested and not convicted and yet still fall within
1226).
5 Aliens taken into custody pursuant to 1226(c) are entitled
to a "Joseph" hearing at which the alien "may avoid mandatory
detention by demonstrating that he is not an alien, was not
convicted of the predicate crime, or that [U.S. Immigrations and
Customs Enforcement] is otherwise substantially unlikely to
establish that he is in fact subject to mandatory detention."
Demore v. Kim, 538 U.S. 510, 514 n.3 (2003).
- 10 -

Petitioners contend that this reading of 1226(c) makes

sense not only as a matter of text, structure, and history, but
also on its own terms.
differences

between

Petitioners point to the substantive

aliens

taken

into

immigration

custody

"when . . . released" from criminal custody and those aliens who

are taken into immigration custody some time after they have been
"released" from criminal custody.

Petitioners emphasize that "the

experience of having one's liberty stripped away is drastically

different from the experience of not having it restored."

See

Castaeda v. Souza, 952 F. Supp. 2d 307, 318 n.10 (D. Mass. 2013).
They also note that their intervening period of freedom makes it
possible

to

take

account

of

their

post-release

evaluating the flight risk or danger they may pose.6

conduct

in

And amici

contend that Congress had practical reasons to limit the scope of

the mandate in this way, given resource constraints on detention
capacity.

See Amicus Br. of Frm. Imm. Judges and DHS Sec.

Officials at 17-20.
On the basis of this reading of 1226(c), petitioners
contend that the exception to 1226(a) that (c) carves out does
not apply to them due to the remoteness of their release from

For example, since his release from criminal custody in

2008, petitioner Clayton Gordon has become a father, bought a
house, developed a successful business, and worked on a project to
open up a halfway house for women. Castaeda, 769 F.3d at 40.
- 11 -

criminal custody.7

Accordingly, petitioners argue they may seek

discretionary release on bond under (a) just like any other alien
placed

in

custody

by

the

Attorney

General

pursuant

to

that

subsection.
The government counters that petitioners' argument fails
at the threshold on the basis of the interpretation of 1226(c)(2)
that the BIA set forth in In re Rojas, 23 I. & N. Dec. 117 (BIA
2001).

The BIA held in Rojas that only subparagraphs (A)-(D) of

(c)(1) (which enumerate predicate offenses and other qualifying

misconduct) limit (c)(2).

Rojas thus makes the rest of (c)(1) --

including the "when . . . released" clause and its trailing

language specifying what counts as a "release[]" from criminal
custody -- irrelevant to the application of (c)(2).

See Rojas, 23

I. & N. Dec. at 121 ("The 'when released' clause is no more a part

of the description of an alien who is subject to detention than
are the other concluding clauses." (emphasis in original)).

Leiticia Castaneda, a native of Brazil, was arrested in

Massachusetts for misdemeanor possession of cocaine, sentenced to
probation, and released from custody in 2008. Castaeda, 769 F.3d
at 39.
Clayton Gordon, a native of Jamaica, was arrested in
Connecticut for possession of cocaine with intent to distribute
and was thereupon released from custody in 2008.
Id. at 40.
Gordon subsequently pled guilty and received a suspended prison
sentence and three-year probationary term in 2009. More than four
years after their respective releases from criminal custody, the
government took each of the petitioners into immigration custody
and charged them with removal due to their convictions. Id.
- 12 -

The
conclusion

government

that

whatever

contends

we

must

defer

to

Rojas's

limitations

the

words

"when"

and

"released" impose on 1226(c)(1) do not matter for (c)(2) because

the text of (c)(2) is not clear on that key point.

The government

claims we must do so because Rojas reasonably construed (c)(2) to

reduce the chance that an alien with an (A)-(D) offense might be
released due to a mistaken evaluation of bond risk. The government
therefore

argues

that

Rojas

requires

petitioners'

mandatory

detention without bond -- notwithstanding their years of living

freely -- because each petitioner committed an (A)-(D) offense and
nothing more is required for (c)(2) to apply.
In the alternative, the government asserts that even if
Rojas is wrong and the "when . . . released" clause is relevant to
(c)(2), the petitioners were in fact taken into immigration custody
"when . . . released."

The government argues that the word "when"

is best read in context to mean "if" or "any time after."

As a

fallback, the government argues that the word "when" at most

triggers a duty to act promptly that persists indefinitely. Either
way, the government argues, 1226(c)(2) applies to aliens with
predicate offenses who were taken into immigration custody even
years after their release from criminal custody.8

After the panel ruled for the petitioners, the government

scheduled bond hearings for each one.
Before Castaeda's bond
hearing took place, the government, of its own accord, concluded
- 13 -

We consider each argument in turn.

We explain first why

we conclude that the "when . . . released" clause in 1226(c)(1)

also modifies the scope of (c)(2). We then explain why we conclude
that the "when . . . released" clause imposes a deadline for
picking up an alien coming out of criminal custody that limits the
application of (c)(2)'s bar to bonded release.9
II.
We start with the question whether we must defer to
Rojas's

reading

of

1226(c)(2),

under

which

the

"when . . . released" clause in (c)(1) is wholly irrelevant to the

scope of (c)(2).

In undertaking this inquiry, we apply the two-

that she did not pose a flight risk or a danger to the community
and released her.
Gordon, by contrast, made his case to an
immigration judge at a bond hearing, prevailed, and was released
as well. These decisions to release the petitioners do not render
the present appeal moot. See Sylvain v. Attorney Gen. of U.S.,
714 F.3d 150, 161 n.12 (3d Cir. 2013).
9 Four other circuits have addressed the issues we address
here. In Hosh v. Lucero, 680 F.3d 375, 378-381 (4th Cir. 2012),
the Fourth Circuit claimed to defer to Rojas. But, contra Rojas,
Hosh actually assumed the "when . . . released" clause limited
1226(c)(2) and concluded that the word "when" is not timelimited -- a view that the BIA has never adopted. In Sylvain v.
Attorney Gen. of U.S., 714 F.3d 150, 161 (3d Cir. 2013), the Third
Circuit avoided deciding the meaning of "an alien described in
paragraph (1)" by holding for the government on the basis of lossof-authority principles. More recently, in Olmos v. Holder, 780
F.3d 1313, 1324 (10th Cir. 2015), the Tenth Circuit deferred to
Rojas, as did the Second Circuit in in Lora, 2015 WL 6499951, at
*6. Numerous district courts have addressed the issue, and most
have gone the other way. See Immig. Law Profs. et al. Amicus Br.
at A-xxii-xxix (assembling eighty-nine cases that have rejected
Rojas).
- 14 -

step test set forth in Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984).

At step one, we must

decide whether Congress spoke clearly to the precise question at

issue.

Id. at 842.

If so, that ends the matter.

Id. at 842-43.

If not, then, at step two, we must defer to the administering

agency's interpretation if it is reasonable.

Id. at 843.

Our focus is on step one, which is where we conclude

Rojas went wrong.10

For while Chevron is a famous doctrine, much

precedent cautions us not to be so star-struck by it that we must

defer to the agency at the first sign of uncertainty about the
meaning of the words that Congress chose.

Rather, under Chevron,

we must be mindful that "a statute may foreclose an agency's

preferred interpretation despite such textual ambiguities if its
structure, legislative history, or purpose makes clear what its
text leaves opaque."

See Council for Urological Interests v.

Burwell, 790 F.3d 212, 221 (D.C. Cir. 2015) (quoting Catawba Cnty.,

10

The line between step one and step two of the Chevron
analysis is not always clear. See Saysana v. Gillen, 590 F. 3d 7,
13-18 (1st Cir. 2009) (in declining to defer to the BIA's
interpretation of 1226(c), the court relied on both step one and
step two); Patricia M. Wald, Judicial Review in Midpassage: The
Uneasy Partnership Between Courts and Agencies Plays On, 32 Tulsa
L.J. 221, 243 (1996) (noting that whether a case is decided at
step one depends on "how judges identify the precise question at
issue, since at one level of generality the statute may answer it
under Chevron step one, but at [another] level there may be an
ambiguity"). Because we conclude that Congress spoke clearly to
the relationship between 1226(c)(1) and (c)(2), and because the
precise issue Rojas decided concerned that relationship, we
resolve this issue under step one.
- 15 -

N.C. v. E.P.A, 571 F.3d 20, 35 (D.C. Cir. 2009)); see also Chemical
Manufacturers Ass'n v. N.R.D.C., 470 U.S. 116, 126 (1984) ("We
should defer to [the administering agency's view of the statutory
language]

unless

the

legislative

history

or

the

purpose

and

structure of the statute clearly reveal a contrary intent.").

And that is the case here.

In light of both the Act's

structure, see F.D.A. v. Brown & Williamson Tobacco Co., 529 U.S.
120, 132-34 (2000) (analyzing the words of a statute in view of
the "overall statutory scheme" at Chevron step one); Saysana, 590
F.3d at 13-15 (emphasizing the structure of 1226(c) in declining
to defer to the BIA's interpretation by noting that "the 'plain
meaning' of a statutory provision is often made clear not only by
the

words

of

the

statute

but

by

its

structure"),

and

the

legislative history, see I.N.S. v. Cardoza-Fonseca, 480 U.S. 421,

448-49 (1987) (considering legislative history at step one of the
Chevron

analysis

in

declining

to

defer

to

Immigration

and

Naturalization Service (INS) interpretation of statute); Succar v.

Ashcroft, 394 F.3d 8, 31 (1st Cir. 2005) ("Our view is that where
traditional doctrines of statutory interpretation have permitted
use of legislative history, its use is permissible and even may be
required at stage one of Chevron."), we conclude that Congress
plainly intended for the "when . . . released" clause in (c)(1) to
apply to (c)(2) as well.

- 16 -

A.
Rojas identified a clear choice between two possible
readings of the words in the cross-reference in 1226(c)(2), "an
alien described in paragraph (1)."
119.

See Rojas, 23 I. & N. Dec. at

Given the text of the cross-reference, the alien to whom

(c)(2) refers is either (as Rojas held) an alien who has committed
an offense specified in subparagraphs (A)-(D) of (c)(1) or (as
petitioners contend) an alien who was taken into custody pursuant
to the duty imposed by paragraph (1) as a whole.
This choice matters because it determines whether the
"when . . . released" clause -- and whatever limits it imposes
through the words "when" and "released" -- modifies the scope of
1226(c)(2).

If "an alien described in paragraph (1)" refers to

an alien who was taken into custody pursuant to the duty imposed
by (c)(1) as a whole, then the cross-reference would not merely
refer to an alien who has committed an (A)-(D) offense.

It would

instead refer to an alien who has committed an (A)-(D) offense and

whom the Attorney General took into immigration custody "when" the
alien

was

"released"

from

criminal

custody,

as

the

"when . . . released" clause sets forth the conditions under which

that duty applies.

Rojas, 23 I. & N. Dec. at 121-22.

And (c)(2),

then, would come into play as a bar to the release of only those
aliens picked up after the duty in (c)(1) had been discharged.
See id. at 119 (noting that the cross-reference in (c)(2) could be
- 17 -

read to "refer[] to an alien who is taken into [immigration

custody] 'when the alien is released'").
In our view, the words "an alien described in paragraph
(1)" comfortably support petitioners' reading.

Consistent with

the ordinary meaning of the word "described," 1226(c)(2) refers

to a "mental image, an impression, or an understanding of the
nature and characteristics," see Webster's Third New International
Dictionary 610 (2002), of the alien whom (c)(1) as a whole calls
to mind.

And thus "an alien described in paragraph (1)" refers to

an alien who has committed an enumerated offense and whom the

Attorney General has taken into immigration custody "when . . .
released" from criminal custody.

See also The American Heritage

Dictionary of the English Language 476 (5th ed. 2011) (defining

"describe" as "[t]o convey an idea or impression of" or "[t]o trace
the form or outline of").
No
Antecedents

rule
to

of

grammar

counsels

cross-references

may

against

be

found

this
in

reading.

verbal

and

adverbial phrases in prior paragraphs not just because (as our

colleagues

suggest)

users

of

English

sometimes

use

language

awkwardly.

Antecedents to cross-references may be found in such

places because people also use language efficiently.11

11

According to linguists, "probably the most important thing

to understand" about antecedents "is that [antecedents] are not
the elements in the text but are those suggested by it, those
- 18 -

One thus commits no offense against the English language

by saying that the narrator "described in" Frost's famous poem is
the one who "took the road less travelled," even though the
narrator's first-person account of his past actions in the poem is
not

cast

in

what

descriptive terms.

our

colleagues

would

consider

inherently

And, in fact, Congress has itself relied on

the "described in paragraph (1)" formulation to refer not just to

the

inherently

descriptive

adjectival

portion

paragraph but to the adverbial portion, too.

of

the

prior

See 28 U.S.C

1441(c)(1)-(2) (in referring to an "action described in paragraph

(1)," Congress clearly intended to capture the trailing adverbial
portion of paragraph (1), which states that the "entire action may
be removed if the action would [otherwise] be removable").
The petitioners' reading finds additional support in the
fact that the text of the cross-reference does not expressly state,
as one might have expected if Rojas were right, that the only part
of 1226(c)(1) that is relevant to (c)(2) is the part that

concepts being evoked or constructed in the reader's mind." Bonnie

Lynn Nash-Webber, Anaphora: A Cross-Disciplinary Survey 6 (Apr.
1977), http://hdl.handle.net/2142/17886.
For discussions about
how parts of speech do not dictate resolution of the linguistic
issue presented here, see Barbara Lust, Introduction, in 1 Studies
in the Acquisition of Anaphora: Defining the Constraints 9 (Barbara
Lust, ed., 1986); Ruslan Mitkov, Anaphora Resolution 1.8, at 17
(2013); and Gillian Brown & George Yule, Discourse Analysis 203
(1983) (offering examples in which the antecedent is a part of
speech that, if substituted in to the place of the cross-reference,
would not yield a well-constructed sentence).
- 19 -

denominates the (A)-(D) offenses.12

Rather than straightforwardly

refer to "an alien described in subparagraphs (A)-(D)," Congress

instead expressly referred to "an alien described in paragraph
(1)," even though Congress singled out similar offenses to those
set forth in (A)-(D) in the parallel detention mandate set forth
elsewhere in the IIRIRA.

See IIRIRA 303(b)(3), 110 Stat. 3009-

587 ("The Attorney General may release the alien only if the alien
is

an

alien

described

in

subparagraph

(A)(ii)

or

(A)(iii)."

(emphasis added)).
Nevertheless, we agree that, standing alone, the words
"an alien described in paragraph (1)" could be read as Rojas reads
them.

As a textual matter, the "described in" language in the

cross-reference

could

be

read

to

refer

the

reader

only

to

subparagraphs (A)-(D) of paragraph (1), as they plainly do describe

the alien in (c)(1).

One could thus read this cross-reference as

12

Our colleagues argue that Rojas's reading is reinforced by

the fact that the "when . . . released" clause is not aligned with
subparagraphs (A)-(D), as if the indentation means to tell the
reader of the cross-reference in 1226(c)(2) where to look in
(c)(1) for the antecedent. See infra at 72-73. But we do not see
how that form of presentation has any helpful bearing on the
meaning of (c)(2)'s cross-reference. The limits imposed by the
unindented language, including the "when . . . released" clause,
affect all aliens who come within the scope of (c)(1).
The
predicate offenses identified in the indented subparagraphs, by
contrast, serve as independent triggers. The alignment thus flows
from the structure of (c)(1) without regard to the cross-reference
in the follow-on paragraph and thus offers little support for
Rojas's reading of that cross-reference.
- 20 -

directing the reader to identify the alien whom (c)(1) itself

refers to in characteristically descriptive terms, rather than
directing the reader to identify the alien whom (c)(1) as a whole
calls to mind.13
To determine if Congress chose between the two possible
antecedents to the cross-reference in 1226(c)(2), we thus must
do what Rojas did: look beyond the words of the cross-reference.
See Rojas, 23 I. & N. Dec. at 121-24 (reviewing the structure of
the act in which 1226 appears and its legislative history, as
well as the predecessor provisions to 1226).

And it makes

particular sense to do so here, as there is good reason to question

whether Congress would have intended to leave the precise issue
unresolved.

To find that Congress did not intend to choose an

antecedent, one would have to believe Congress was content to

let the very executive branch officials that it did not trust to

13

Our colleagues suggest that the Supreme Court has

interpreted 1226(c) as Rojas did, infra at 74-75, in Demore, 538
U.S. at 513. But although the Supreme Court cited (c) as a whole
in the first sentence of its opinion, the Court then went on to
quote in that sentence the leading language of (c)(1) -- "[t]he
Attorney General shall take into custody any alien who" -- without
referencing (implicitly or otherwise) any of the language in
(c)(2). Our colleagues do not -- and cannot -- argue that the
"when . . . released" clause is irrelevant to even (c)(1). We
thus do not see how the Court's failure to refer expressly to a
clause that obviously applies to (c)(1) in its fly-by paraphrasing
of (c)(1) could possibly be said to provide support for the
government's view of the particular issue we must decide, which is
the relationship between (c)(1) and (c)(2).
And that is
particularly true as the relationship between the two paragraphs
was not even at issue in Demore.
- 21 -

make certain detention decisions determine the extent of that

distrust

through

antecedents.

their

choice

between

the

two

possible

See American Bar Ass'n v. F.T.C., 430 F.3d 457, 469

(D.C. Cir. 2005) (noting that "the sort of ambiguity giving rise
to

Chevron

deference

is

creature

not

of

definitional

possibilities, but of statutory context" and declining to defer to

an

agency's

issue

interpretation

(quotation

marks

and

given

the

citation

sort

of

omitted)).

ambiguity

at

Accordingly,

before we conclude that Congress did not speak to this issue, we

need to consider the relevant words in context, as is required
under Chevron step one.
B.
A key part of that context is the structure of the IIRIRA
as a whole, as we are obliged to construe 1226(c) in light of
the whole act in which that provision appears.
Trucking Ass'ns, 531 U.S. 457, 484 (2001).

See Whitman v. Am.

The structure of that

act, however, is hard to square with Rojas. And thus the structure
of the IIRIRA supports the conclusion that Congress chose to refer
to

an

alien

"described

in

paragraph

(1)"

rather

than

more

specifically to an alien "described in subparagraphs (A)-(D)"

because Congress intended to refer to an alien called to mind by
the paragraph as a whole.
We start first with the structure of 1226, which is
oddly misaligned unless we look beyond subparagraphs (A)-(D) of
- 22 -

(c)(1) to the "when . . . released" clause to identify the alien

to whom (c)(2) refers.

Cf. Whitman, 531 U.S. at 484-86 (declining

to defer to an agency's interpretation under Chevron where such

interpretation was "so at odds with [the statute's] structure," in
that it rendered certain parts of a carefully delimited exception
to the agency's otherwise broad discretion "nugatory").

The

misalignment arises because Rojas necessarily reads the crossreference to de-link the "Custody" directive in 1226(c)(1) from
the bar to "Release" in (c)(2).
Rojas has this effect because, for example, as the
government has previously informed us, "there are a variety of
offenses for which an alien may be . . . subject to mandatory
detention under [ 1226(c)(1)(A)], but that may never give rise to
a formal charge, let alone an indictment, trial or conviction."
See Saysana, 590 F.3d at 14 (quotation marks omitted) (restating
the government's argument).14

In consequence, some aliens who fall

within subparagraphs (A)-(D) will not be subject to (c)(1) because

they will never have even been "released" from criminal custody as
the "when . . . released" clause requires.

14

See Rojas, 23 I. & N.

For example, an alien may fall within 1226(c)(1)(A) after

receiving a summons and paying a fine for marijuana possession.
See Immig. Law Profs. et al. Amicus Br. at 5-6.
In addition,
aliens defined in 1226(c)(1)(D) are inadmissible or deportable
solely for having engaged in certain terrorist conduct, and so
criminal custody is not a necessary precondition to qualifying as
a (D)-type alien.
- 23 -

Dec. at 122.15

According to Rojas, however, such aliens -- if

taken into custody pursuant to 1226(a) -- would still be subject

to the bar to bonded release that (c)(2) establishes.
Rojas necessarily would apply the bar to bonded release
to such aliens because Rojas makes an alien's "release" from
criminal custody irrelevant to the application of 1226(c)(2).
After all, it is the "when . . . released" clause and not
subparagraphs (A)-(D) that ensures that an alien taken into custody
pursuant to (c)(1) is an alien who has been "released" from
criminal custody.

Thus, Rojas incongruously (and without even

acknowledging

incongruity)

the

requires

one

to

believe

that

Congress was so concerned about certain aliens who had never been
in

criminal

custody,

as

the

"when

released"

clause

contemplates, being out and about that it directed the Attorney

General to hold them without bond even though Congress left her

15

Under any interpretation of "released," see H.R. Rep. No.

101-681(I), 1503, at 148 (1990), reprinted in 1990 U.S.C.C.A.N.
6472, 6554, 1990 WL 188857 (stating that the trailing language in
1226(c)(1) was intended to clarify that the Attorney General
must "incarcerate aggravated felons upon release from confinement,
regardless of whether such release involves parole, probation, or
other forms of supervision." (emphasis added)); Lora, 2015 WL
6499951, at *6; Kotliar, 24 I. & N. Dec. at 125; West, 22 I. & N.
Dec. at 1410, some aliens who fall within the definition of
subparagraphs (A)-(D) will not have been "released" as they will
not have been in criminal custody of any sort.
- 24 -

complete discretion to decide not to take them into immigration

custody at all.16
Petitioners'

reading

avoids

this

understanding of the detention mandate.

release-from-criminal-custody

constraint

oddly

half-hearted

Petitioners read the

that

appears

outside

subparagraphs (A)-(D) and in the "when . . . released" clause to

limit both the "Custody" and "Release" aspects of the detention
mandate.

Under this more natural reading, 1226 as a whole

coheres quite well.

Pursuant to 1226(a), the Attorney General

would have the discretion to release on bond those aliens she had
the discretion not to take into custody.

And, pursuant to

1226(c), the Attorney General would be mandated to keep in custody

16

Tellingly, there is no indication in the record or

legislative history to the IIRIRA that Congress was any more
worried about the release by immigration authorities of criminal
aliens already in immigration custody than about the failure of
immigration authorities to take criminal aliens into custody in
the first place. And thus we do not see a basis for concluding
that a Congress concerned about "[u]ndetained aliens," S. Rep. No.
104-48 (1995), 1995 WL 170285, at *2, would be inclined to place
a release-from-criminal-custody constraint on the discretion to
take aliens into immigration custody but not on the discretion to
release aliens from such custody.
The puzzle, then, is why
Congress would have wanted to express its unhappiness with both
forms of executive discretion in the partial way Rojas favors.
Notably, such different treatment would apply not only to the one
type of alien who has never been released from criminal custody
that our colleagues choose to mention, see infra at 90, but it
would also implicate myriad other types of aliens that the
government itself has consistently identified as falling within
subparagraphs (A)-(D) but not within the (c)(1) custody directive
more broadly. See, e.g., Saysana, 590 F.3d at 14.
- 25 -

only those she was mandated to take into custody.17

See Saysana,

590 F.3d at 9, 13-16 (analyzing the meaning of the "when . . .

released" clause and its trailing language in (c)(1) in order to
determine whether an alien was properly held without bond under
(c)(2)).

In this way, Congress would have crafted a detention

mandate that, from start to finish, covers the same class of aliens
(whatever the word "when" might mean) that it had identified as a
cause for concern.18
Two other parts of the IIRIRA lend further support to
petitioners'

reading

of

the

cross-reference,

in

which

the

"when . . . released" clause in (c)(1) applies as a constraint

17

Our colleagues note that the description in 1226(c)(2)

of when aliens subject to that provision may qualify for release
from
immigration
custody
-when
necessary
for
witness
protection -- does not refer expressly to the "when . . . released"
clause. See infra at 74. But (c)(2) also does not expressly refer
to subparagraphs (A)-(D), yet our colleagues would not dispute
that a person with no such predicate offense could not be subject
to (c)(2). We thus do not believe this exception clarifies the
precise issue at hand in any respect.
18 In describing the "mandatory detention provision" (i.e.,
1226(c)), the panel in Saysana concluded that "the 'when
released' language serves th[e] . . . limited but focused purpose
of preventing the return to the community of those released in
connection with the enumerated offenses [in subparagraphs (A)(D)] . . . ."
590 F.3d at 17 (emphasis added).
Saysana thus
viewed the "when . . . released" clause as limiting (c) as a whole,
including the piece of (c) that "prevents the return to the
community" (i.e., prohibits the bonded release) of certain aliens.
See also Matter of Garca-Arreola, 25 I. & N. Dec. 267, 270-71 &
n.4 (BIA 2010) (concluding that Saysana held that (c)(2) refers to
and incorporates the "when . . . released" clause as a constraint
and thereby recognizing the conflict between Saysana and Rojas).
- 26 -

across the whole of (c).

These parts of the IIRIRA are set forth

in the Transition Period Custody Rules (TPCR).

These rules apply

instead of 1226(c) for a one- or two-year transition period, but

only

if

they

are

invoked

by

the

Attorney

General.

IIRIRA

303(b)(2), Pub. L. No. 104-208, 110 Stat. at 3009-586.

The first instructive part lies in the TPCR's parallel
detention mandate.
as 1226(c).19

The TPCR's mandate shares the same structure

And, notably, like 1226(c), the predicate

19

The TPCR, enacted in IIRIRA 303(b)(3), Pub. L. No. 104208, 110 Stat. at 3009-587, provides in part:
(A) IN GENERAL. -- During the period in which this
paragraph is in effect pursuant to paragraph (2), the Attorney
General shall take into custody any alien who -(i) has been convicted of an aggravated felony . . . ,
(ii) is inadmissible by reason of . . . ,
(iii) is deportable by reason of having committed any
offense covered in . . . , or
(iv) is inadmissible under . . . ,
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.
(B) RELEASE. -- The Attorney General may release the alien
only if the alien is an alien described in subparagraph
(A)(ii) or (A)(iii) and-(i) the alien was lawfully admitted to the United States
and 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, or
(ii) the alien was not lawfully admitted to the United
States, cannot be removed because the designated country
of removal will not accept the alien, and 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.
- 27 -

offenses that trigger the custody directive in the TPCR do not

require an alien to have been "released" from criminal custody.
See Matter of Garvin-Noble, 21 I. & N. Dec. 672, 680-81 (BIA 1997).
The TPCR's mandate thus presents the same interpretive question
that 1226(c) presents as to whether the "when . . . released"
clause -- and thus its release-from-criminal-custody constraint - in that mandate's custody directive limits that mandate's followon bar to bonded release.

And because this mandate presents the

same interpretive question, it also presents the same potential

structural misalignment.20
Tellingly,

the

TPCR

presents

its

custody

directive

(including its "when . . . released" clause) under the heading "In

General" and the bar to bonded release under the subsequent
heading,

"Release."

This

presentation

indicates

that

the

"when . . . released" clause constrains both the custody directive

and the bar to bonded release, such that the bar applies to the
very people encompassed by the "General" directive, rather than to
some people who were not encompassed by that directive at all
because they were never "released" from criminal custody.

20

The two paragraphs in the transition rules are linked by a

cross-reference ("the alien") that differs from the one our
colleagues
mistakenly
assign
such
weight
in
construing
1226(c)(2) and that is, as a purely textual matter, also not
clear.
- 28 -

The second instructive part of the IIRIRA lies in section

303(b)(2), Pub. L. No. 104-208, 110 Stat. at 3009-586.

This TPCR

provision mediates the shift from the transition rules to the

permanent regime.

The provision clearly provides that 1226(c)

as a whole -- both with respect to its custody directive and its

bar to bonded release -- applies only to aliens "released after"
the TPCR expires.

And the BIA has rightly read this "released

after" clause to mean that an alien must have been "released" from
criminal custody to be subject to 1226(c) going forward.
re Adeniji, 22 I. & N. Dec. 1102, 1108-11 (BIA 1999).

See In

This clause

thus ensures that a release-from-criminal-custody constraint does

now limit the scope of both (c)(1) and (c)(2).
If we applied Rojas's analysis of (c)(2) to the TPCR's
equivalent to (c)(2), however, no such "released" constraint would
limit the scope of that portion of the TCPR's detention mandate
because the "when . . . released" clause in its custody directive
would not apply to the mandate as a whole. Under Rojas, therefore,
the "released after" clause would -- in this key respect -- make
the permanent mandate's bar to bonded release less sweeping than
the supposedly more flexible TPCR mandate's bar had been, even
though

Congress

clearly

intended

- 29 -

the

latter

to

be

less

encompassing.21
mandate

would

No such anomalous narrowing of the detention

occur

upon

the

expiration

of

the

TPCR

if,

by

contrast, the "when . . . released" clause limits the bar to bonded

release that appears in both the transition and the permanent
rules.22
For these reasons, the structure of the IIRIRA as a whole
strongly

indicates

that

Congress

did

intend

for

the

cross-

reference in 1226(c)(2) to reach beyond subparagraphs (A)-(D) to

the "when . . . released" clause and thus to refer to an alien
taken into custody pursuant to the duty imposed by (c)(1) as a
whole.23

And thus the IIRIRA's structure indicates that Congress

21

See 142 Cong. Rec. S11838-01, 1996 WL 553814 (daily ed.

Sept. 30, 1996) (statement of Sen. Hatch) (explaining that one of
the IIRIRA's managers and conferees agreed to the TPCR because of
the INS's pleas of insufficient resources to comply with the
AEDPA); Garvin-Noble, 21 I. & N. Dec. at 675 (same).
22 Our colleagues try to downplay this anomaly by emphasizing
the carve-outs in the TPCR's bar to bonded release. See infra at
88-89.
But these carve-outs are limited ones.
IIRIRA
303(b)(3)(B), Pub. L. No. 104-208, 110 Stat. at 3009-587. And
we think it unlikely that Congress would have intended for only
the detention mandate in the transition regime -- and not the
detention mandate in the permanent regime -- to apply to some
aliens in such classes of potentially dangerous criminal aliens as
unlawfully admitted aliens with a 1226(c)(1)(A) predicate and
aliens with a 1226(c)(1)(D) predicate. It is especially unlikely
that Congress would have intended the TPCR, but not 1226(c), to
operate without a release-from-criminal-custody constraint on its
detention mandate when the preceding detention mandate did embody
such a constraint. See AEDPA, 440(c), Pub. L. No. 104-132, 110
Stat. 1214, 1277; see Grodzki v. Reno, 950 F. Supp. 339, 342 (N.D.
Ga. 1996).
23
The "released after" clause would minimize the strange
disjuncture between 1226(c)(1) and (c)(2) that Rojas unavoidably
- 30 -

referred to paragraph (1) rather than more specifically to the

subparagraphs within in it because Congress intended to link the
"Custody" and "Release" aspects of the detention mandate so that
they would work together. Before we conclude that Congress clearly
chose the broader antecedent to "an alien described in paragraph
(1)," however, we must still "exhaust the traditional tools of
statutory construction."
1027 (D.C. Cir. 2008).

See Sierra Club v. EPA, 551 F.3d 1019,

And so we now turn to the legislative

history.
C.
The legislative history confirms that Congress intended
the cross-reference in 1226(c)(2) to refer to an alien taken
into custody pursuant to the duty imposed by (c)(1) as a whole

creates, but we presume the coherence of the permanent detention

mandate was not intended to depend on the triggering of an
ancillary and potentially never operative clause in the TPCR.
Whitman, 531 U.S. at 468. Regardless, the "released after" clause
would do nothing to avoid the anomaly of the permanent mandate
being less sweeping in a key respect than the transition mandate
had been.
Our colleagues, but not the government or Rojas itself,
contend that the canon against surplusage supports Rojas's reading
of the cross-reference in 1226(c)(2) because otherwise
"when . . . released" would be duplicative of "released after."
See infra at 75-76. But to the extent this argument has any force,
it has it only if "when" has a time-limited meaning.
The
surplusage concern thus provides no basis for concluding that Rojas
is right to treat the "when . . . released" clause as a whole as
irrelevant to (c)(2). As a result, we consider this surplusage
argument when we turn to the issue of what "when" means -- an issue
on which we owe the BIA no deference and which we must confront
only if the "when . . . released" clause does apply to all of (c).
- 31 -

rather than only to an alien described in subparagraphs (A)-(D).

And thus the legislative history helps to make clear that the
"when . . . released" clause -- and whatever limitations it
imposes -- applies across the whole of (c).

This conclusion

follows from the legislative history directly tied to the IIRIRA

and from the many precursors to 1226(c).

The text and history

of those precursors show that Congress intended for those versions

of

the

detention

mandate

to

operate

in

just

the

linked

manner that Rojas rejects in construing (c), and the evidence also
indicates that Congress did not mean to alter this aspect of the
longstanding scheme in passing the IIRIRA.

Milner v. Department

of the Navy, 562 U.S. 562, 572 (2011) ("Those of us who make use
of

legislative

congressional

history

intent

may

believe

that

illuminate

clear

evidence

of

ambiguous

text.");

see

also Goldings v. Winn, 383 F.3d 17, 21 (1st Cir. 2004) ("[I]f the
statute's legislative history reveals an unequivocal answer as to
the

statute's

meaning,

we

do

not

look

to

the [agency's] interpretation . . . .").

1.
The title to 1226(c) -- encompassing both (c)(1)'s
"Custody" directive and (c)(2)'s "Release" bar -- is "Detention of
Criminal Aliens."

The conference report to the IIRIRA follows the

language of that overarching title in describing in unqualified

terms the "subsection" as providing that the Attorney General "must
- 32 -

detain"

certain

aliens.

The

report

then

sets

forth

one

qualification to that requirement in the next sentence and another

qualification

in

the

third

sentence,

stating

that

"[t]his

detention mandate applies whenever such an alien is released from

imprisonment,
release."

regardless
H.R.

563320, at *210-11.

Conf.

of
Rep.

the
No.

circumstances
104-828

(1996),

of
1996

the
WL

And finally, the report states that "[t]his

subsection also provides" for the "release[]" of aliens "from the

Attorney General's custody" in one limited circumstance.

See id.

In keeping with the title to 1226(c), we thus understand the use

of the phrase "[t]his detention mandate" to refer to a start-tofinish detention regime that is limited across-the-board by the
"when . . . released" clause.
122-23

(describing

the

See Rojas, 23 I. & N. Dec. at 119,

"mandatory

detention

aspects

of

the

statute" as arising from both the bar to bonded release and the
custody directive).

After all, the report expressly attributes

the mandate to the "subsection" it describes rather than to only

part of it.
But even if, as our colleagues contend, the report's
reference to "[t]his detention mandate" is only to the differently
worded and more limited duty to "take into custody" certain aliens
set forth only in 1226(c)(1), see infra at 77-78, the report
would then merely restate the question that we must decide: whether
Congress intended for the bar to bonded release set forth in (c)(2)
- 33 -

to incorporate the conditions that plainly limit the application

of the custody directive in (c)(1).24
legislative

history

that

actually

If so, the remaining

concerns

the

relationship

between the custody and release aspects of the detention mandate

convinces us that Congress clearly did so intend, when this history
is read against the strong structural reasons to conclude that
Congress chose to refer in (c)(2) to "paragraph (1)" rather than
subparagraphs (A)-(D) in order to encompass the same aliens under
both (c)(1) and (c)(2).
Just prior to conference, a leading Senate sponsor of
the IIRIRA described the bill as "ensur[ing] that aliens who commit
serious crimes are detained upon their release from prison until
they can be deported . . . ."

142 Cong. Rec. S10572-01 (daily ed.

Sept. 16, 1996), 1996 WL 522794 (statement of Sen. Simpson)

(emphasis added).

24

And it should be no surprise that Senator

Our colleagues' reading of the fourth sentence of the

report, see infra at 77-78, takes "the Attorney General's custody"
referenced in that sentence to be any custody, even if effected as
a matter of discretion under 1226(a), rather than to be the
mandatory custody of the Attorney General under 1226(c) that -on our colleagues' reading of the report -- the preceding sentences
had necessarily just referenced.
And our colleagues read the
reference to "such an alien" in that sentence to be a reference
only to an alien who has committed an (A)-(D) offense rather than
to an alien who was taken into custody pursuant to the duty imposed
by (c)(1) as a whole.
See id.
But the text does not resolve
whether our colleagues are right to read these words this way, as
these words on their own do not tell us whether the report treats
the "when . . . released" clause as if it were incorporated as a
limitation on the bar to bonded release.
- 34 -

Simpson described the bill this way.

Congress stated in a key

report right before conference that the new measure was intended
to "restate[]" the provisions of the old statute "regarding the
detention of an alien convicted of an aggravated felony . . . ."
See H.R. Rep. 104-469(I) (1996), 1996 WL 168955, at *230.

And, as

we next explain, each prior version of the detention mandate

(including

the

immediate

precursor

to

the

IIRIRA)

similarly

treated the two analogous directives to the ones that subsection

(c) contains as operating in tandem.
2.
The text and legislative history to the precursors to
1226(c) clearly show that Congress intended to link the custody
directive and the bar to bonded release in these prior detention
mandates

in

1226(c).

just

the

way

that

Rojas

rejects

in

construing

And interpreters of those precursors - including both

the BIA and the district courts - so read them.

We start with the 1988 mandatory detention statute,
which provided: "The Attorney General shall take into custody any
alien convicted of an aggravated felony upon completion of the
alien's sentence for such conviction.

Notwithstanding subsection

(a) [the then-equivalent of 1226(a)], the Attorney General shall

not release such felon from custody." Anti-Drug Abuse Act of 1988,
7343(a), Pub. L. No. 100-690, 102 Stat. 4470.

The text is most

naturally read as limiting the bar to bonded release to the

- 35 -

"felons" whom the Attorney General was required to "take into

custody."
provision

And not long after its enactment, the BIA read the
just

that

way,

by

treating

the

"upon

completion"

clause (the then-equivalent of the "when . . . released" clause) in

the 1988 mandate's custody directive as if it conditioned that
mandate's "such felon" clause (the then-equivalent of "an alien
described

in

paragraph

(1)")

in

bonded release from immigration custody.

the

follow-on

bar

to

Matter of Eden, 20 I. &

N. Dec. 209, 211 (BIA 1990).25

25

The BIA's decision in Eden, as our colleagues point out,

did not involve the particular timing element involved in this
case. But that is no matter as Eden is directly on point as to
the precise issue for which the government seeks Chevron
deference -- that is, the relationship between the "custody" and
"release" aspects of the present detention mandate. Our colleagues
contend otherwise as follows. Our colleagues suggest that even if
the BIA in Eden had reached the same result by concluding, instead,
that once an aggravated felon was in immigration custody he could
not then be released on bond (regardless of whether he had ever
been released from criminal custody), the BIA still would have had
reason to consider the meaning of the "upon completion" clause.
And that is because, our colleagues contend, the BIA would have
had an interest in clarifying whether the Attorney General had the
authority to place an alien in immigration custody at all, even
discretionarily, while that alien was still serving his criminal
sentence. See infra at 93-94. But the BIA had no need to clarify
the meaning of the "upon completion" clause for that distinct
purpose. And that is because, as the BIA in Eden acknowledged, an
alien could have been taken into immigration custody under the
discretionary detention authority conferred by then-equivalent to
1226(a).
In fact, the immigration judge in Eden granted
discretionary bond to the alien in that case under the thenequivalent of 1226(a), which occasioned the appeal to the BIA by
the executive. See Eden, 20 I. & N. Dec. at 210, 212 (noting that
the immigration judge had concluded that the alien "had been
properly detained under [the then-equivalent of 1226(a)]" and
- 36 -

The 1990 amendments to the 1988 statute then codified

Eden, which was decided months earlier, and the House report to
the amendments espoused that same view of the relationship between
the two clauses.

That report characterized "current law" (that

is, the detention mandate set forth in the 1988 statute) as

"requir[ing] [the government] to incarcerate alien aggravated
felons without bond immediately upon completion of the alien's
criminal 'sentence.'"

H.R. Rep. No. 101-681(I), 1503, at 148

(1990) (emphasis added); cf. United States v. Bd. of Comm'rs of

Sheffield, Ala., 435 U.S. 110, 129-35 (1978).
Moreover, in codifying Eden, Congress modified the thenequivalent of 1226(c)(1) in order to clarify the scope of the
then-equivalent of (c)(2).

Congress did so by making clear that

aliens were "released" from criminal custody and thus could be

held

without

bond

at

the

moment

they

were

released

from

incarceration, even though they might still be on parole or

supervised release.26
Congress

necessarily

In revising the "upon completion" clause,

treated

the

then-equivalent

of

the

framing the question on appeal in terms of whether "authority to

detain [an alien while he was on parole] pursuant to [the thenequivalent of 1226(c)] . . . exist[ed]" (emphasis added)).
26 Congress replaced the "upon completion" clause with "upon
release of the alien (regardless of whether or not such release is
on parole, supervised release, or probation, and regardless of the
possibility of rearrest or further confinement in respect of the
same offense)." Immigration Act of 1990, 504(a), Pub. L. No.
101-649, 104 Stat. 4978, 5049-50; H.R. Rep. No. 101-681(I), 1503,
at 148 (1990).
- 37 -

"when . . . released" clause and its trailing language as limiting

the follow-on bar to bonded release.

Otherwise, Congress would

have had no need to tinker with that language at all in light of

the discretion to place aliens in immigration custody that the
Attorney General otherwise had.
Congress

necessarily

retained

And, by passing the amendments,

(albeit

in

revised

form)

that

limitation on the operation of both the custody directive and the

bar to bonded release.27
Finally,
enactment,

in

Congress

1996,

further

not

long

amended

the

before

the

mandatory

IIRIRA's
detention

statute while again retaining the same structure, which again

naturally reads as if those barred from release are those that
must be picked up.

See AEDPA, 440(c), Pub. L. No. 104-132, 110

27

We do not find our colleagues' contrary reading of the 1990

House report -- in which Congress was supposedly responding to a
concern that the "upon completion" clause might be read to
displace, as to aliens on parole, the Attorney General's general
and unqualified grant of discretionary authority to take aliens
into immigration custody, see infra at 94-95 -- persuasive.
Congress was responding to Eden and the immigration judge in that
case did clearly conclude that the Attorney General had the
authority to place an alien on parole in immigration custody under
the then-equivalent of 1226(a). See Eden, 20 I. & N. Dec. at
210. In offering a contrary reading of the report, our colleagues
ignore the introductory sentence of the relevant portion of the
report, which we read to supply the context for the sentences that
follow: "Current law . . . requires INS to incarcerate alien
aggravated felons without bond immediately upon completion of the
alien's criminal 'sentence.'" H.R. Rep. No. 101-681(I), 1503,
at 148 (1990) (emphasis added). We therefore read the sentences
that follow to be referring to the authority to incarcerate aliens
without bond under the mandatory detention provision. See id.
- 38 -

Stat.

1214,

1277

(retaining

"upon

release"/"such

felon"

structure). And prior to the passage of 1226(c), district courts

not surprisingly treated the retained "upon release" clause as if
it conditioned the retained "such felon" clause, just as the BIA
and Congress itself had treated the analogous clauses in prior
detention mandates.28
We generally "assume that Congress is aware of existing
law when it passes legislation," see Miles v. Apex, 498 U.S. 19,
32 (1990), so we should assume that Congress understood the
prevailing interpretation of the relationship between the custody

28

District courts held that the AEDPA did not apply

retroactively to aliens who had been convicted and released from
incarceration before its enactment in part because the "upon
release" clause implicitly limited the application of the
detention mandate, including the aspect of the mandate governing
bonded release, to people taken into custody after the AEDPA's
passage. See, e.g., DeMelo v. Cobb, 936 F. Supp. 30, 36 (D. Mass.
1996), vacated as moot after the IIRIRA's passage, 108 F.3d 328
(1st Cir. 1997) (per curiam) (concluding "that the language 'upon
release of the alien from incarceration' implies a time of release
after the effective date of the Act" and thus makes the detention
mandate as a whole prospective in application); Villagomez v.
Smith, No. C96-20 1141C, 1996 WL 622451, at *2 (W.D. Wash. July
31, 1996) (unpublished) (stating that the AEDPA's detention
mandate as a whole cannot apply to aliens convicted and released
before its enactment because of the "straightforward" "upon
release" language); Montero v. Cobb, 937 F. Supp. 88, 95 (D. Mass.
1996); In re Reyes, Case No. B-94-80 (S.D. Tex. May 31, 1996); see
also Grodzki, 950 F. Supp. at 342 (holding that the "upon release"
language "at least implies that custody commence within a
reasonable time after release from incarceration" and thus that
petitioner was entitled to individualized bond hearing given the
lapse in time between when he was released from incarceration and
when he was taken into immigration custody).
- 39 -

directive and the bar to bonded release to be a linked one.

After

all, courts were consistently interpreting that relationship postAEDPA in the same way Congress and the BIA had interpreted that
relationship in the similarly worded clauses pre-AEDPA.29
while

Congress

29

broadened

the

cross-reference

in

the

And

present

Our colleagues, see infra at 91-92, following Rojas's lead,

see Rojas, 23 I. & N. Dec. at 122-24, find instructive the 1991
revision to an exception to the bar to bonded release contained in
the 1990 detention mandate. See Immigration Act of 1990, 504(a),
Pub. L. No. 101-649, 104 Stat. 4978, 5049-50; Miscellaneous and
Technical Immigration and Naturalization Amendments of 1991,
306(a)(4), Pub. L. No. 102-232, 105 Stat. 1733, 1751.
Rojas
contends that the text of the exception to the bar to bonded
release (set forth in the revised version of paragraph (B)) shows
that the "upon release" constraint in the then-effective detention
mandate (set forth in paragraph (A)) limited neither the class of
lawfully admitted aliens referenced in (B)'s exception nor "such
felon[s]" referenced in (A)'s bar to bonded release. 23 I. & N.
Dec. at 124. But as the legislative history just described shows,
in crafting that 1990 detention mandate, Congress plainly did
intend for the "upon release" requirement to modify the "such
felon[s]" who were subject to (A)'s bar to bonded release.
We
thus see no basis for concluding that Congress suddenly intended
to alter the relationship between the "upon release" and "such
felon" clauses in paragraph (A) in 1991 by way of a technical
amendment to paragraph (B) that does not appear to have been made
for any such consequential purpose.
See Cong. Research Serv.,
Summaries for Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991 (H.R. 3049, 102nd Cong.),
https://www.govtrack.us/congress/bills/102/hr3049/summary
(summarizing the 1991 revision as applying the exception in (B) to
all "lawfully admitted aliens" as opposed to just aliens "lawfully
admitted for permanent residence").
Consistent with a modest
understanding of the 1991 technical revision's import, we read
(B) -- by virtue of the fact that (A) is "subject to paragraph
(B)" -- to refer merely to a subset of "such felon[s]" in (A),
which is to say felons taken into immigration custody "upon
release." In any event, we question the salience of paragraph (B)
for present purposes given that it had been deleted by the AEDPA
by the time Congress got around to enacting the IIRIRA, see AEDPA
440(c), 110 Stat. at 1277.
- 40 -

detention mandate to account for the fact that not all aliens
subject to the present mandate qualify as "felons," we do not think
Congress thereby intended to alter fundamentally the relationship
between the custody directive and the bar to bonded release.
fact, the evidence is to the contrary.

In

See H.R. Rep. 104-469(I)

(1996), 1996 WL 168955, at *230 (stating that 1226(c) was

intended

to

"restate[]"

the

provisions

of

the

immediately

preceding detention mandate codified in the AEDPA).

3.
In

countering

the

substantial

evidence

from

the

legislative history that points against Rojas, the government and

our colleagues give great weight to an April 1995 report from the
Senate Committee on Governmental Affairs.
(1995), 1995 WL 170285.

See S. Rep. No. 104-48

The Supreme Court relied on that report

in Demore v. Kim, 538 U.S. 510, 518-22 (2003), to explain why

Congress could have had a reason for mandating the detention
without

bond

of

contention

that

arbitrary.

In

criminal
such

aliens

in

mandatory

addressing

that

order

to

detention

respond
was

constitutional

to

the

inherently

challenge

to

Congress's power to enact a detention mandate of any scope, the

Supreme Court did not purport to enlist that report to describe
the class of aliens subject to the mandate 1226(c) actually
imposed.

And for good reason.

- 41 -

That
bill.

1995

report

was

not

linked

to

any

particular

And that report predates not only 1226(c) but also the

immediate precursor to (c), which used the same "upon"/"such felon"

language that tracked the 1988 mandate and its revisions that we
have just described.

The 1995 Senate report cannot offer any

support, therefore, for the suggestion that the present detention

mandate must have de-linked the custody directive and bar to bonded
release that had been linked in those prior versions.
And, in fact, the report does not speak to that issue at
all.

To be sure, that report does show that its authors were

"concerned

with

detaining

and

removing

all

criminal

aliens,"

Rojas, 23 I. & N. Dec. at 122 (emphasis in original); see also

Sylvain v. Attorney Gen. of U.S., 714 F.3d 150, 160 (3d Cir. 2013).
But

in

stating

that

general

concern,

the

report

does

not

demonstrate that Congress intended to paint with the broad brush

the government suggests that it used in enacting 1226(c)(2).
See Saysana, 590 F.3d at 16-18 ("The mandatory detention provision
does not reflect a general policy in favor of detention . . . .").
The report does also suggest a variety of ways to address
the concern that "criminal aliens" (i.e., aliens with deportable
offenses) do not show up to removal proceedings. These suggestions
range from increasing detention bed space to accommodate enhanced
detention efforts generally, to expediting the removal process so
that final adjudication occurs while an alien is still in criminal
- 42 -

custody, to expanding the role of mandatory detention ( 1226(c))

in relation to discretionary detention ( 1226(a)) by subjecting
all criminal aliens to (c).

See S. Rep. No. 104-48 (1995), 1995

WL

*23,

170285,

at

*3-4,

*21,

*31-32.

The

report

nowhere

indicates, however, that Congress wanted to expand the role of

mandatory detention haphazardly by de-linking (c)(1) and (c)(2),
such that the bar to bonded release would apply to persons who
were not even subject to the custody directive at all because they
had never been in the criminal custody from which they were then
"released" as (c)(1) contemplates.

30

See generally id.30

Our colleagues find support for Rojas in Congress's evident

intent to make it more difficult for certain criminal aliens to
obtain relief from a final order of removal, see infra at 82-84,
on the apparent assumption that the risk of flight is greater for
aliens who are more certain to be removed (and this class is an
especially dangerous one). But the petitioners have not yet faced
a definitive adverse judgment in their removal proceedings and so
may not in fact be removed. Moreover, aliens taken into custody
under 1226(c) may also have a basis for discretionary relief in
the form of cancellation of removal, see Lora, 2015 WL 6499951, at
*3, *12, or some other form of relief, such as a U Visa (a type of
visa set aside for victims of certain crimes). We thus see no
justification for the inference that Congress, in making it harder
to get relief from a final removal order, must have intended to
deny bond to those who might not be ordered removed at all. In
fact, as Congress surely knows, an alien's inability to get bonded
release can limit the alien's capacity to obtain legal
representation or otherwise obtain relief from removal, see Robert
A. Katzmann, The Legal Profession and the Unmet Needs of the
Immigrant Poor, 21 Geo. J. Legal Ethics 3, 10 (2008); Moncrieffe
v. Holder, 133 S. Ct. 1678, 1690 (2013), making the impact of
mandatory detention prior to a final removal order especially harsh
in cases where avenues for relief following such order have been
curtailed.
- 43 -

4.
In sum, Rojas offers only one reason for concluding that
these petitioners may not be given a bond hearing and that reason
has nothing to with what the word "when" means.

On Rojas's view,

1226(c)(2) applies to any alien who has committed an (A)-(D)

offense, regardless of whether the alien was ever in and "released"
from criminal custody as (c)(1) requires, let alone "when" the
alien was released from it.

And that is because Rojas holds that

the "when . . . released" clause as a whole is irrelevant to

(c)(2).

But when we consider the text of (c)(2) in light of the

structure of the IIRIRA as a whole and the legislative history, we

do not believe that Rojas offers a tenable construction of the
detention mandate.
After

applying

the

traditional

tools

of

statutory

interpretation, we conclude that Congress did clearly speak to the

precise issue Rojas addressed regarding the relevance of the
"when . . . released" clause to the bar to bonded release in
1226(c)(2).
way from Rojas.

And Congress clearly addressed it in the opposite

That is, Congress clearly intended for the cross-

reference in (c)(2) to refer to aliens who have committed (A)-(D)

offenses

and

who

have

been

taken

into

immigration

custody

"when . . . released" from criminal custody, in accordance with

the Attorney General's duty under (c)(1).

- 44 -

In concluding that Rojas does warrant deference, our

colleagues repeatedly emphasize that it is reasonable to conclude
that the timeliness of an alien's immigration custody is not
determinative of whether the detention mandate applies.

But it is

important not to confuse the outcome that results from Rojas's

interpretation of the mandate's scope with the interpretation
itself.
For while it is true that Rojas's conclusion that the
"when

1226(c)(2)

released"
necessarily

clause
makes

as

whole

timeliness

is

irrelevant

irrelevant

to

to
the

operation of (c)(2), Chevron is clear that it is the agency's

interpretation of the statute and not the outcome that follows
from that interpretation that deserves our deference.
U.S.

Dep't

of

Justice,

416

F.3d

184,

191-92

(2d

See Lin v.
Cir.

2005)

(declining to defer to BIA's summary affirmance of an immigration

judge decision because summary affirmance indicates approval of
only "the result reached in the decision" rather than "all of the
reasoning of that decision" and thus does not contain "the sort of
authoritative and considered statutory construction that Chevron
deference was designed to honor").

And that must be the case, as

the reason we defer to agency interpretations is precisely because

we are supposed to give weight to their reasoned judgment.
For Chevron purposes, therefore, the contention that the
legislative history or the structure of the IIRIRA does not compel
- 45 -

the timing-based outcome that the petitioners favor amounts to a

non sequitur.

What matters is that Rojas implausibly ascribes an

intention to Congress to place greater limits on the Attorney

General's discretion to take aliens into custody in the first place
than on the Attorney General's discretion to release them once
they are in custody.

And so, having determined under Chevron step

one that Rojas's interpretation of the relationship between (c)(1)

and (c)(2) conflicts with Congress's evident intent and thus does
not merit deference, we now turn to the question that remains: the
meaning of (c)(1)'s "when . . . released" clause.
III.
In taking up this issue, we confront the question that
Rojas never reaches: does "when" impose a time limit for taking an
alien into custody pursuant to (c)(1) that renders (c)(2)'s bar to
bonded

release

inapplicable

to

these

petitioners

remoteness of their release from criminal custody?

due

to

the

See Sylvain,

714 F.3d at 157 n.9 (stating that Rojas "did not explicitly
interpret" the word "when").
The government argues that the word "when" imposes no
such time limit, either because "when" means "if" or "any time
after" or because Congress at most used the word "when" to trigger
a duty to act promptly that persists indefinitely.
however,

has

never

adopted

either

- 46 -

view,

and

such

The BIA,
litigating

positions are not entitled to Chevron deference.31

States v. Mead Corp., 533 U.S. 218, 231 (2001).
decide the clause's meaning on our own.

See United
We thus must

See Santana v. Holder,

731 F.3d 50, 53 (1st Cir. 2013).

To do so, we first consider whether the word "when" as
used here is merely a synonym for "if" or "any time after" and
consequently conveys no sense of immediacy at all.

We then

consider whether, even if Congress intended for the word "when" to

convey

immediacy,

the

word

merely

reflects

legislative

preference for timely action and thus does not impose a true time
limit.

31

Although the government suggests that Rojas construed

"when" to mean, in effect, "any time after," Rojas did not, as it
held that the word was irrelevant to 1226(c)(2)'s operation.
The government reads too much into Rojas's assertion that the
"when . . . released" clause "specifies[s] the point in time at
which [the Attorney General's] duty [under (c)(1)] arises." See
Rojas, 23 I. & N. Dec. at 121.
In so stating, Rojas merely
clarified that "when . . . released" modifies "take into custody"
rather than the "alien" in (c)(1), not that "when" imposes no
deadline. In fact, the BIA has seemed to set forth a time-limited
meaning of "when" several times. See id. at 122; see also Matter
of Saysana, 24 I. & N. Dec. 602, 607 (BIA 2008); Matter of ValdezValdez, 21 I. & N. Dec. 703, 708 (BIA 1997). The government's
interpretation of the meaning of the word "when" is thus not
entitled to Chevron deference. Given that the BIA's position on
the meaning of "when" is at worst inconsistent and at best
consonant with petitioners' time-limited reading, we also would
not defer under Skidmore to such an interpretation, assuming
Skidmore deference even applies to the government's litigating
position in this case. See Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944) (stating that the opinion of an agency is entitled to
respect only to the extent it has the "power to persuade").
- 47 -

A.
We begin our analysis of the first issue with the
observation that Congress chose a word, "when," that naturally
conveys some degree of immediacy, Castaeda, 769 F.3d at 42-44, as
opposed to a purely conditional word, such as "if."

See Webster's

Third New International Dictionary 2602 (2002) (defining "when" as

"just after the moment that").

Consistent with the conclusion

that this choice indicates that Congress intended for "when" to

convey immediacy, 1226(c)(1) says "when the alien is released,"
not "when the alien has been released" or "after the alien is
released."

Similarly,

the

structural

placement

of

the

"when . . . released" clause suggests Congress did not use "when"

simply to announce a condition, as the clause does not directly
follow "any alien who."

Cf. Rojas, 23 I. & N. Dec. at 128-29.32

If 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.

32

See, e.g., 8 U.S.C. 1231(a)(5) ("[T]he alien shall be

The
Rojas
concurrence
suggested
that
the
"when . . . released" clause in (c)(1) does not impose a timing
constraint because it modifies only the offenses denominated in
subparagraphs (A)-(D) of (c)(1), rather than the duty to "take
into custody." See Rojas, 23 I. & N. Dec. at 128-29 (Moscato,
concurring and dissenting). Neither the BIA, the government, nor
our colleagues advance this view, however, and we see no basis for
this view given the structural placement of the clause.
- 48 -

removed under the prior order at any time after the reentry."
(emphasis added)); cf. United States v. Willings, 8 U.S. (4 Cranch)
48, 54 (1807) (concluding that Congress intended the word "when"
in a federal maritime statute to mean "if" or "in case" because
the statute contained clear indicia of conditional intent (for
example, the phrase "in every such case" recurred)).

In fact, the

BIA itself noted in Rojas that "[ 1226(c)] does direct the
Attorney General to take custody of aliens immediately upon their
release from criminal confinement."

Rojas, 23 I. & N. Dec. at 122

(emphasis added).
As
government

to

to

just

act,

how

there

promptly

Congress

is

uncertainty,

more

intended
as

for

the

the

panel

recognized when it construed the word "when" to mean "within a

reasonable time after."

See Castaeda, 769 F.3d at 44.

But given

the unexplained, years-long gap between when these petitioners

were released from criminal custody and when they were taken into
immigration

custody,

we

need

not

define

the

bounds

reasonableness in this case as they were plainly exceeded.33

33

of

Thus,

The government and our colleagues contend that it is

implausible that Congress would have exempted aliens from 1226(c)
merely in consequence of the remoteness of their release from
criminal custody given that such a gap in custody might be
attributable to other forces. See Gov. Br. at 8-9; see infra at
83.
For example, the government and our colleagues point to
evidence that some state and local authorities may frustrate the
ability of the Attorney General to place aliens in custody in a
timely fashion under (c)(1).
Id.
But the agency charged with
- 49 -

for present purposes, it is enough to conclude that Congress used

the word "when" to convey some degree of immediacy and not simply
to set forth a condition.34

administering the Act has not purported to define the word "when"
or its temporal bounds, let alone how such period of time should
be tolled in the circumstances the government and our colleagues
identify or in other circumstances that might arise, such as when
an alien receives a non-carceral sentence.
See Lora, 2015 WL
6499951, at *6; Kotliar, 24 I. & N. Dec. at 125; West, 22 I. & N.
Dec. at 1410. We do not believe that such fact-specific questions
about tolling provide a basis for concluding that "when" is best
read in context to mean "if" or "any time after," given the other
evidence of legislative intent.
34 Our colleagues contend that the petitioners' view of "when"
would be at odds with the canon against surplusage in light of the
"released after" clause of the IIRIRA 303(b)(2). But we do not
see how. At worst, the "released after" clause is a clarifying
provision in an ancillary and potentially never operative measure.
Cf. In re Fahey, 779 F.3d 1, 7 (1st Cir. 2015) (indicating that
language that is not strictly speaking necessary, if nonetheless
clarifying, need not be thought to run afoul of the canon against
surplusage). That is because the "released after" clause appears
to have been intended to clarify which rules would apply to
existing detainees when the TPCR expired.
Aliens who were
immediately taken into immigration custody upon their release from
criminal custody during the transition period were subject to the
restrictions on bonded release imposed by the TPCR.
While the
IIRIRA 303(b)(2) did state the effective date of the new
permanent rules 1226(c) set forth, the "effective date" clause
did not make clear whether the permanent rules or the by-thenexpired TPCR rules would govern those persons in mandatory
detention when the TPCR expired. Thus, the "released after" clause
in the IIRIRA 303(b)(2) would seem to have been intended to
perform the useful function of making clear -- as part of a savings
clause, see Garvin-Noble, 21 I. & N. Dec. at 681; Adeniji, 22 I.
& N. Dec. at 1110-11 (emphasizing "uncertainty . . . in discerning
how Congress expected the [released after] provision to operate,"
given that Congress may have "intended" but inadvertently
"neglected" to incorporate this provision into a broader savings
clause in the TPCR) -- that 1226(c) would apply only to aliens
released from criminal custody "after" the transition period.
Conversely, the old TPCR rules for mandatory detention would
- 50 -

B.
The part of the conference report to the IIRIRA that
describes 1226(c) supports the conclusion that Congress did not
intend for the word "when" to have a purely conditional meaning.
And so, too, does the legislative history to (c) that indicates it
was meant to mirror the precursor mandates, each of which used a
timing word that was understood to convey immediacy.
The conference report states that "[t]his detention
mandate

applies

whenever

such

an

alien

is

released

from

imprisonment, regardless of the circumstances of the release."

H.R. Conf. Rep. No. 104-828 (1996), 1996 WL 563320, at *210-11
(emphasis added).

As used in that report, "whenever" is most

plausibly read to mean at the time that the alien is released from
imprisonment, whenever that event may occur, rather than simply
"if" that event occurs.

Indeed, had Congress intended by the use

of "whenever" to mean "if" or "any time after," we again would

expect the report to have said "after such alien is released" or
"whenever such an alien has been released."

continue to govern aliens held in mandatory detention pursuant to

those transition rules. Thus, the "released after" clause is by
no means unnecessary if "when" conveys immediacy.
A misplaced
concern about surplusage thus should not dictate a meaning of the
word "when" that is so at odds with the text, structure, and
legislative history. See King v. Burwell, 135 S. Ct. 2480, 249293 (2015).
- 51 -

Consistent with this conclusion, the legislative history

to the subsection that would become 1226(c) indicates that
Congress intended to "restate[]" the provisions of the direct
precursor to (c) "regarding the detention of an alien."

See H.R.

Rep. No. 104-469(I) (1996), 1996 WL 168955, at *230.

And that

direct precursor, which is codified in the AEDPA, used the word

"upon," which was used in and understood to have conveyed immediacy
in all the detention mandates preceding 1226(c).35
For example, the House Report on the 1990 amendments to
the 1988 mandatory detention statute characterized "current law"
as "requir[ing] [the] INS to incarcerate alien aggravated felons
without bond immediately upon completion of the alien's criminal
'sentence.'"

H.R. Rep. No. 101-681(I), 1503, at 148 (1990),

reprinted in 1990 U.S.C.C.A.N. 6472, 6554, 1990 WL 188857 (emphasis

added); cf. Sheffield, 435 U.S. at 129-35. And the district courts
that construed the word "upon" in the AEDPA's detention mandate
reached

the

same

conclusion

as

Congress

had

about

the

measure -- its use of the word "upon" conveyed immediacy.

1988
See,

e.g., DeMelo, 936 F. Supp. 30, 36 (D. Mass. 1996), vacated as moot
after the IIRIRA's passage, 108 F.3d 328 (1st Cir. 1997).

35

In fact, as we have noted, just prior to conference on the

IIRIRA, a leading Senate sponsor of the IIRIRA described 1226(c)
as "ensur[ing] that aliens who commit serious crimes are detained
upon their release from prison until they can be deported . . . ."
142 Cong. Rec. S10572-01 (daily ed. Sept. 16, 1996), 1996 WL 522794
(statement of Sen. Simpson) (emphasis added).
- 52 -

In sum, the legislative history as a whole indicates

that Congress used the word "when" just as it had used the word
"upon": to convey a sense of immediacy.
legislative

history

reinforces

the

We thus conclude that the

textual

indication

that

Congress did not intend for the word "when" to be merely a synonym
for "if" or "any time after."
C.
That brings us to the question of whether Congress
intended for the word "when" merely to express a legislative
preference for timely action or whether it was instead intended to
impose a deadline for the application of the bar to bonded release
set forth in 1226(c).

To answer this question, we consult the

principles underlying the so-called loss-of-authority canon.36

36

Our colleagues, in concluding that "when" merely expresses

a preference for timely action, do not rely on loss-of-authority
principles. See infra at 98-99. They instead reason that even if
Rojas is wrong, whether an alien was timely taken into immigration
custody is just an exogenous fact and thus does not have any
bearing on the class of aliens to whom 1226(c) applies. See id.
If we follow, the suggestion appears to be that the word "released"
and the trailing portions of the "when . . . released" clause do
refer to something endogenous to the alien and thus do characterize
the alien to whom (c) applies, even though the word "when" does
not.
But aliens do not release themselves any more than they
choose when they are released. We thus do not see how the line
between exogenous and endogenous facts could be drawn so finely as
to
attribute
to
Congress
an
intent
to
carve
up
the
"when . . . released" clause in this odd way, even if there were
any textual basis for construing the Attorney General's duty under
(c) as being limited by facts endogenous to the alien rather than
by all relevant ones. And, as noted, there is no textual basis
for concluding that the word "when" -- and whatever limitations
- 53 -

That interpretive aid comes into play where Congress has

mandated that the government "shall" do something within a certain
time frame and there is a question about the consequence Congress
intends for the government's failure to complete the required
action within that time frame.
537 U.S. 149, 158-59 (2003).

See Barnhart v. Peabody Coal Co.,

The canon generally counsels 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."
159.

The

animating

principle

behind

this

canon

is

Id. at
one

of

plausibility given the context: "if Congress had meant to set a

counterintuitive limit on authority to act, it would have said
more than it did."

Id. at 163 (emphasis added).

The government contends that 1226(c) "contains no

sanction for late executive action," Gov. Br. at 10, and that it
would be counterintuitive to render (c) inapplicable when the

that word imposes -- does not constrain the application of (c)(1),

as the word clearly and unconditionally modifies the Attorney
General's directive to "take into custody."
The only possible
textual hook for distinguishing between endogenous and exogenous
facts, therefore, resides in (c)(2)'s "described in" language.
But making a distinction on this basis for the purpose of
understanding the bounds of the Attorney General's duty under (c)
would still create an arbitrary line-drawing problem. And such a
distinction would also incongruously de-link the custody directive
in (c)(1) from the bar to bonded release in (c)(2) by subjecting
the custody directive to a timing constraint not applicable to the
bar to release.
- 54 -

executive is late in taking an alien into custody given the

detention-maximizing purpose underlying (c).

But we do not agree.

This case is not like those in which enforcement of a

time limit would require a court to fashion a coercive sanction
that appears nowhere in the text and that would completely strip
the government of authority "to get [the] . . . job done," id. at
160.

See, e.g., id. at 156 (proposed sanction was complete loss

of ability to direct award of retirement benefits to late-assigned

beneficiaries); Brock v. Pierce Cty., 476 U.S. 253, 258 (1986)
(proposed sanction was complete loss of ability to recover misused
federal funds); Dolan v. United States, 560 U.S. 605, 609 (2010)
(proposed sanction was complete loss of ability to order persons
convicted

of

certain

crimes

to

pay

restitution

to

victims).

Rather, the putative time limit at issue here appears in an express

exception, 1226(c), to an otherwise broad grant of discretionary
authority, 1226(a), regarding the custody and release of aliens
awaiting the outcome of removal proceedings, just as all the
precursors

to

1226(c)

equivalents of 1226(a).
here,

unlike

principles

in

were

the

were

as

exceptions

to

then-

Thus, enforcement of the time limit

other

applied,

framed

cases

would

in

merely

which
render

loss-of-authority
inapplicable

an

express limit on a grant of authority and thus necessarily result

in a reversion to that authority.

- 55 -

Given this distinct context, the key question is whether

Congress intended for the requirement that the Attorney General
timely take aliens into immigration custody to circumscribe the
scope of this exception.

As a textual matter, there is no

indication that Congress intended for subparagraphs (A)-(D) in

1226(c)(1) but not the "when . . . released" clause to define
the outer limit of the Attorney General's discretion that the
exception in (c) establishes. The text of (c) also does not itself
indicate that the timeliness of an alien's custody is merely a
procedural requirement that need not be complied with in a strict
sense.
There remains the question whether it nevertheless would
be counterintuitive to read "when" to circumscribe the exception's
scope.

The express presentation of 1226(c) as an exception to

(a) that applies only if all of its conditions are met accords
with the quite sensible intuition that Congress did mean to
distinguish between aliens who fall within the scope of (a) and
aliens who fall within the scope of (c) on the basis of the
timeliness of their immigration custody.37

37

In construing the

That Congress intended to craft a relatively narrow

detention mandate is hardly implausible. After all, Congress did
not adopt the recommendation in the 1995 Senate report to expand
the class of aliens subject to mandatory detention to "all criminal
aliens." See S. Rep. No. 104-48 (1995), 1995 WL 170285. Rather,
setting aside any limitations imposed by the "when . . . released"
clause, Congress limited mandatory detention under 1226(c) to
- 56 -

intended scope of another aspect of 1226(c), we explained in

Saysana that "[i]t is counter-intuitive to say the least to say
that aliens with potentially longstanding community ties are, as
a class, poor bail risks."

See Saysana, 590 F.3d at 17.

And we

added that "by any logic, it stands to reason that the more remote
in time a conviction becomes and the more time after a conviction
an individual spends in a community the lower his bail risk is
likely to be."

See id. at 17-18.38

Thus, in this context, we conclude that the timing word

"when" is best read to impose an outer limit on the exception to
the

categorical

1226(c).

bar

to

discretionary

release

carved

out

by

In consequence, aliens like petitioners, who due to

the unexplained years-long gap between their criminal custody and

aliens who have committed certain enumerated offenses and who were
"released after" the TPCR expired (by virtue of the IIRIRA
303(b)(2)); see also Saysana, 590 F.3d at 15-16 (holding that
1226(c)(1) is not triggered until an alien is released from
custody for having committed an offense specified in subparagraphs
(A)-(D), as opposed to being triggered by release from any type of
criminal custody).
38
The Second Circuit held that, to avoid "serious
constitutional concerns," 1226(c) "must be read as including an
implicit temporal limitation," such that aliens taken into
immigration custody pursuant to 1226(c) cannot be held without
a bond hearing for more than six months. Lora, 2015 WL 6499951,
at *10-11. In so holding, the Second Circuit noted that indefinite
detention "has real-life consequences for immigrants and their
families," and that it is particularly concerning when "[n]o
principled argument has been mounted for the notion that [the
detainee] is either a risk of flight or is dangerous." Id. at
*12.
- 57 -

their immigration custody have had the opportunity to re-establish

community ties, are not subject to the bar to release set forth in
(c). They are subject instead to the default rule of discretionary
release set forth in (a).39
To be sure, Congress was concerned about criminal aliens
failing to show up for removal proceedings.
Dec. at 122.

See Rojas, 23 I. & N.

But Congress expressly directed the executive to

address that concern by complying with the mandate to pick up

aliens

within

established

reasonable

transition

rules

time
that

frame.
the

In

Attorney

fact,

Congress

General

could

invoke to ensure the government would be prepared to comply

promptly with 1226(c) by the time those rules expired.

See

Adeniji, 22 I. & N. Dec. at 1110.

As a result, we do not believe Congress intended that
the executive could fail to pick up an alien within a reasonable
time and then, despite that unexplained delay, deny that alien the
chance to seek bonded release notwithstanding that alien's years
of living freely.

39

See Castaeda, 952 F. Supp. 2d at 318 n.10

Our colleagues' gardening example is of little help in

establishing the context for discerning Congress's intent in
enacting a detention mandate that "touches upon matters of both
personal liberty and the control of our nation's borders." See
infra at 76. As for our colleagues' suggestion that Congress had
"no good reason" to distinguish between aliens timely taken into
custody and aliens not timely taken into custody, our prior
decision in Saysana supplies a compelling reason, see Saysana, 590
F.3d at 17, as does Congress's treatment of 1226(a) as a backstop
source of detention authority.
- 58 -

("[T]he

experience

drastically

of

different

having
from

one's

the

liberty

experience

stripped
of

not

away

is

having

it

restored."); cf. DeWitt v. Ventetoulo, 6 F.3d 32, 34-36 (1st Cir.

1993) (holding that revoking a mistakenly granted suspension of
sentence and re-imprisoning a defendant after years of being free
violated due process).

And there certainly is nothing in the

legislative

indicate

history

to

that

Congress

did

have

that

specific intention.40
For these reasons, the principal precedent that the
government, like the Third Circuit in Sylvain, 714 F.3d at 15861, relies on, United States v. MontalvoMurillo, 495 U.S. 711
(1990), is not to the contrary.

That case concerned whether the

government's failure to hold a bond hearing in a timely fashion

barred the government from assuming pre-trial custody of a criminal
defendant under the Bail Reform Act (BRA).

40

See Montalvo-Murillo,

In fact, the legislative history accords with the notion

that Congress wanted to limit 1226(c) to aliens coming right out
of criminal custody in order to help immigration authorities
conserve scarce detention bed space so that aliens who needed to
be detained under 1226(a) could be. See Criminal and Illegal
Aliens: Hearings Before the Subcomm. on Immigration and Claims of
the House Comm. on the Judiciary, 104th Cong. (Sept. 5, 1996)
(statement of David Martin, General Counsel of INS) (noting that
criminal aliens subject to the AEDPA's detention mandate imposed
severe burdens on detention bed space and crowded out space for
aliens who did not come within such mandate and only discussing
efforts by immigration authorities to take aliens into custody
just as they were leaving incarceration); Amicus Br. of Frm. Imm.
Judges and DHS Sec. Officials at 17-20 (describing scarce detention
bed space).
- 59 -

495 U.S. at 717.

Notably, but not surprisingly, the BRA specified

no consequence for holding a hearing late.

And the Court thus

held that such failure should not be deemed to have the drastic
and disproportionate consequence of depriving the government of
its power to place a criminal defendant in custody at all by
mandating the release of the criminal defendant.

See id. at 719-

20.41
Here, however, the putative time limit appears within an
express exception to a grant of authority.

So 1226 itself makes

clear what consequence would follow if such time limit is not met.
Moreover, that consequence would not strip the executive of the
power to assume custody of a potentially dangerous or flight-prone
criminal defendant.

Instead, the Attorney General would merely

retain her otherwise broad discretion to decide whether to assume

and maintain custody of an alien pursuant to whatever rules she

41

The Supreme Court's decision in Barnhart, 537 U.S. at 152,

is similar. The appellants argued that a certain provision of the
Coal Act specified the consequence for the government's failure to
timely comply with another provision, id. at 153, 163, but the
Court rejected this argument because the Coal Act's text did not
expressly link the two provisions and there was evidence to suggest
that Congress did not think of the two provisions as related. Id.
at 163-65. Moreover, the Court reasoned that it was implausible
to think that Congress would have wanted that separate provision
to control as a policy matter, so the consequence was untenable.
Id. at 164. Here, of course, Congress expressly styled 1226(c)
as an exception that restricts the power otherwise granted under
(a), so the asserted consequence is clearly linked to the asserted
act of noncompliance. And, for the reasons discussed, we hardly
think it is counterintuitive for Congress to have intended that
(a) would control if (c)'s conditions are not met.
- 60 -

may lawfully establish for exercising such discretion under (a).

Because this consequence follows from the text and because the
text accords with the reasonable and intuitive understanding that
Congress intended to distinguish between aliens like petitioners
and aliens who were taken into custody "when . . . released," see
Saysana, 590 F.3d at 17, we read the timing condition at issue
here as circumscribing the Attorney General's duty under (c).
Thus,

at

least

absent

an

authoritative

agency

construction of 1226(c)(2), we conclude that the word "when"

does set forth a time constraint on (c) that expires after a
reasonable time.

And for that reason, we reject the government's

contention

"when"

that

must

be

read

merely

to

trigger

an

indefinitely persisting duty, such that it imposes no outer bound

on the scope of the exception 1226(c) sets forth.
IV.
The current version of the detention mandate requires
that aliens who have committed certain offenses be taken into
immigration custody in a timely manner following their release
from criminal custody.

The detention mandate further provides

that only such aliens must then be held without bond until the
completion of the removal process. These petitioners were released
from criminal custody years before they were first placed in
immigration custody.

For that reason, they clearly do not fall

within "this detention mandate."

- 61 -

H.R. Conf. Rep. No. 104-828

(1996), 1996 WL 563320, at *210-11.

Accordingly, we agree with

the two district courts that these petitioners have the right to
individualized bond hearings at which they can make the case that
they do not pose sufficient bond risks, just as the Attorney
General specified in the regulations that she issued pursuant to
1226(a).

- 62 -

TORRUELLA, Circuit Judge (Concurring).

I recognize that

the Supreme Court has determined that Congress may, "[i]n the
exercise of its broad power over naturalization and immigration,
. . . regularly make[] rules that would be unacceptable if applied
to citizens," Mathews v. Diaz, 426 U.S. 67, 79-80 (1976); see also
Demore v. Kim, 538 U.S. 510, 521 (2003), and that the right to
bail is not absolute.
754-55 (1987).

United States v. Salerno, 481 U.S. 739,

Yet, I must register my discomfort with respect to

8 U.S.C. 1226(c).
I am compelled to suggest that the indefinite detention
without access to bond or bail of any person in the United States
violates due process.

See Wong Wing v. United States, 163 U.S.

228, 238 (1896) ("[A]ll persons within the territory of the United
States are entitled to the protection guarantied [sic] by th[e
Fifth and Sixth] amendments [sic] . . . ."); Yick Wo v. Hopkins,
118 U.S. 356, 369-70 (1886) (applying Fourteenth Amendment due
process and equal protection provisions "to all persons within the
territorial jurisdiction, without regard to any differences of
race, of color, or of nationality").

The U.S. Constitution

specifically addresses the right to bail.

It is the first concern

of an amendment that names just three subject matters.

"Excessive

bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted."

U.S. Const. amend. VIII.

As

the Supreme Court has elsewhere noted, "[b]ail is basic to our

- 63 -

system of law."

Herzog v. United States, 75 S. Ct. 349, 351

(Douglas, Circuit Justice, 9th Cir. 1955) (citing U.S. Const.

amend. VIII; Stack v. Boyle, 342 U.S. 1 (1951)).

The Fifth

Amendment mandates that no "person . . . be deprived of life,

liberty, or property, without due process of law."

U.S. Const.

amend. V.
When the government exercises its discretion to subject
a person to detention without access to a bond hearing after the
condition

justifying

detention

has

been

in

existence

for

considerable period of time, it disregards what is by then selfevident -- that said subject is neither a flight risk nor a danger
to society, the primary reasons for denying bail.

See 18 U.S.C.

3142(e)(1); cf. Carlson v. Landon, 342 U.S. 524, 542 (1952)

("There is no denial of the due process of the Fifth Amendment
under circumstances where there is reasonable apprehension of hurt
from aliens charged with a philosophy of violence against this
Government.").

Although Judge Kayatta, Chief Judge Howard, and

Judge Lynch view this issue differently, infra at 104-05, this

Court has elsewhere described their views as counter-intuitive.
Saysana v. Gillen, 590 F.3d 7, 17-18 (1st Cir. 2009) ("[I]t is
counter-intuitive to say that aliens with potentially longstanding
community ties are, as a class, poor bail risks. . . . By any
logic,

it

conviction

stands
becomes

to

reason

and

the

that
more
- 64 -

the
time

more
after

remote
a

in

time

conviction

a
an

individual spends in a community, the lower his bail risk is likely

to be.").

Affirming the government's prerogative to incarcerate

persons in defendants' situation without bail or bond hearing is

not only to allow arbitrary and abusive government action but to
condone acts that run contrary to the Constitution.

See Herzog,

75 S. Ct. at 351; see also Wong Wing, 163 U.S. at 237.

I write separately to ensure that the constitutional
concerns raised by 1226(c) and the government conduct it commands
-- the ongoing, institutionalized infringement of the right to
bail and right to due process -- are formally acknowledged.
Notwithstanding these concerns, we reach the conclusion we must in
light of Congress's laws, legislative history, and the Supreme
Court's holdings.

I thus concur in the judgment.

- 65 -

KAYATTA, Circuit Judge, with whom HOWARD, Chief Judge,

and LYNCH, Circuit Judge, join.

Congress enacted what is now

8 U.S.C. 1226(c) because of its concern that immigration judges

had proven to be insufficiently accurate predictors of which aliens
would "engage in crime and fail to appear for their removal
hearings."

Demore v. Kim, 538 U.S. 510, 513 (2003); see S. Rep.

No. 104-48, at 2 (1995) ("Despite previous efforts in Congress to

require detention of criminal aliens while deportation hearings
are pending, many who should be detained are released on bond.").
To address this concern, Congress identified four categories of
what Congress called "criminal aliens."

8 U.S.C. 1226(c).

Section 1226(c), as signed by the President on September 30, 1996,

as

part

of

the

Illegal

Immigration

Reform

and

Immigrant

Responsibility Act of 1996 ("IIRIRA"), mandates, first, that the

Attorney General "take into custody" these criminal aliens "when
the alien is released" from criminal detention (the "custody
mandate").

See id. 1226(c)(1).

Section 1226(c) then mandates,

second, an end to the practice of immigration judges trying to

predict which of those criminal aliens will appear for removal
proceedings if ordered to do so.
this

latter

mandate

(the

See id. 1226(c)(2).

"no-release

mandate"),

the

Under

Attorney

General must not release the criminal alien from the Attorney
General's

custody

pending

resolution

of

the

alien's

removal

proceeding, unless release is necessary for protection of certain

- 66 -

persons in connection with an investigation into a major crime.

See id.

The alien is, however, entitled to an immediate hearing

to adjudicate any contention that the alien is not a criminal alien

subject

to

section

1226(c)'s

mandates.

See

C.F.R.

1003.19(h)(2)(ii).
With its evenly divided vote, our court leaves in place
two district court decisions holding that, to the extent the
Attorney General fails to comply promptly with the custody mandate,
immigration judges will find themselves back in the position of
predicting

which

criminal

aliens

will

present

themselves

for

removal if they are released on bail pending the conclusion of

their removal proceedings.

Indeed, as we understand the reasoning

of our colleagues who would affirm the decisions below, any failure
by the Attorney General to achieve prompt compliance with the
custody

mandate

renders

both

the

custody

and

the

no-release

mandates inapplicable. For the reasons we explain in this opinion,

we would instead join all four other circuits that have considered
this issue by sustaining the Board's current practice in complying
with section 1226(c).

See Lora v. Shanahan, No. 14-2343-PR, 2015

WL 6499951, at *89 (2d Cir. Oct. 28, 2015); Olmos v. Holder, 780
F.3d 1313, 1327 (10th Cir. 2015); Sylvain v. Attorney General, 714
F.3d 150, 161 (3d Cir. 2013); Hosh v. Lucero, 680 F.3d 375, 384
(4th Cir. 2012).

- 67 -

I.

Discussion

We begin by explaining our view that the statute's

mandates apply to petitioners, using the same tools of statutory
construction that our colleagues employ to decide this case at
step one of the Chevron analysis.

See Chevron, U.S.A., Inc. v.

Nat. Res. Def. Council, Inc., 467 U.S. 837, 84243 (1984).

We

also explain why our colleagues' parsing of section 1226(c), even

if correct, fails to support the conclusion that the Attorney
General's failure to take a criminal alien into custody immediately
upon release somehow eliminates any further requirement to comply
with Congress's mandates set forth in section 1226(c).

Finally,

although our colleagues do not reach Chevron step two, see id.
at 843, and therefore do not consider the constitutional avoidance
argument that was relied upon in the vacated panel opinion, we do
reach step two, and therefore briefly explain why that avoidance
argument is not a valid basis for setting aside the Board of
Immigration Appeals' ("BIA") reasonable interpretation of section
1226(c).

- 68 -

A.

The Language and Structure of the Statute

8 U.S.C. 1226(a) grants the Attorney General the

discretion whether to take into custody aliens charged with removal

and whether to continue that custody pending the completion of
removal proceedings:
(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 . . . ;
or
(B) conditional parole . . . .
For

certain

aliens

classified

by

Congress

as

"criminal

aliens," however, 8 U.S.C. 1226(c) requires the Attorney General

both to take the alien into custody and to maintain that custody
without release subject to a narrow exception.

Section 1226(c)

states in full:
(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,
- 69 -

(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
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.
Each of the petitioners in this case, after arriving in
this country, was convicted of one of the criminal acts listed in
section 1226(c)(1)(A)-(D).

See Castaeda v. Souza, 769 F.3d 32,

36 (1st Cir. 2014), reh'g granted en banc.

- 70 -

There is no dispute

among the parties that section 1226(c) therefore plainly required

the Attorney General: (1) to take petitioners into custody when
they were released from incarceration, and (2) to detain them until
the conclusion of their respective removal proceedings.

The

question under consideration is what happens when, as here, the

Attorney General does not manage to detain the criminal alien until
after the alien's release from incarceration.
All members of our en banc panel appear to agree that
the mandate of paragraph (2) of section 1226(c) strictly limiting
the release of certain persons once detained applies to anyone who
is "an alien described in paragraph (1)."

So this case pivots, at

least in the first instance, on determining the meaning of that

phrase.

The BIA, in a quite straightforward fashion, construed

that phrase to mean any alien who satisfies one of the adjectival
descriptions set forth in subparagraphs (A)-(D) of paragraph (1)
("any alien who" "is inadmissible" or "is deportable" under the
specified laws).

In re Rojas, 23 I. & N. Dec. 117, 121 (BIA 2001).

Petitioners, and now three of our colleagues, argue instead--and

this is crucial to their entire argument--that the pertinent
description of the aliens in paragraph (1) clearly includes as
well the adverbial phrase "when the alien is released" (emphasis
added).

In this manner, our colleagues reason that if an alien

was not detained by the Attorney General immediately "when the

- 71 -

alien [was] released," then that alien is not an alien "described"

in paragraph (1).
This attempt at deputizing an adverbial phrase into
service as a description of the noun "alien" pays little heed to
customary conventions of grammar and syntax.

"An adverb, an

adverbial phrase, or an adverbial clause may qualify several parts

of speech, but a noun is not one of them."

Theodore M. Bernstein,

The Careful Writer, A Modern Guide to English Usage 23 (1965).

Conversely, adjectives (like those in subparagraphs (A)-(D)) are
"good friends of the noun."

H.W. Fowler, A Dictionary of Modern

English Usage 10 (Sir Ernest Gowers ed., 2d ed. 1965); see also
Merriam-Webster's Collegiate Dictionary 19 (11th ed. 2012).

We do

not mean to say that there are never circumstances in which writers
might employ an adverbial phrase in the manner employed by our
colleagues.

Poetic license, after all, knows few bounds.

Rather,

we say merely that if a straightforward reading of the text

employing basic, conventional usages of grammar points directly at
a given interpretation, it should take some pretty heavy lifting
to reject that interpretation, much less to reject it as not even
within the zone of reasonableness.
Nor is grammar the only enemy of petitioners' preferred
reading of the text. Structure argues against petitioners as well.
After stating what the Attorney General must do to "any alien
who--," paragraph (1) sets down in four separately indented and
- 72 -

lettered subsections the four clauses that plainly describe an

alien, relegating the adverbial "when" phrase back to unlettered
and unindented text. We thus not only have four adjectival clauses
that obviously describe the noun "alien" and one adverbial phrase
that less readily does so, but we also have a format that literally
and visually sets the four descriptions apart from the adverbial
phrase.

This structure directly reinforces the reading of the

"when" phrase as qualifying the verb "take" in the clause "[t]he

Attorney General shall take into custody" rather than as describing
"any alien[s]."
In so observing, we do not mean to overstate the case.
Our colleagues make a fair point that the statute might have been
more

clear

(A)-(D).

had

paragraph

(2)

referred

only

to

subparagraphs

Of course, the fact that language might have been more

clear--as it always could be--does not mean that it is not clear

enough.

See Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 132 S.

Ct. 1670, 1682 (2012) ("[T]he mere possibility of clearer phrasing

cannot defeat the most natural reading of a statute . . . ."); cf.
In re Fahey, 779 F.3d 1, 6 (1st Cir. 2015) (explaining that a
statute's meaning was clear even though the statutory language
could not "be read as entirely excluding the possibility" that a
competing--but

ultimately

unpersuasive--interpretation

was

correct). Relatedly, we note that Congress has on occasion, within

the Immigration and Nationality Act ("INA"), referenced a general
- 73 -

subparagraph while clearly intending to refer only to the inset

subclauses

within

1153(b)(5)(B)(i)

that

subparagraph.

(referencing

See,

U.S.C.

e.g.,

U.S.C.

1153(b)(5)(A)

but

clearly intending to cross-reference only the inset clauses (i)(iii) within (A)).
We

also

find

it

significant

that

the

language

and

structure of section 1226(c) as a whole reveals that Congress

actually

did

specify

which

criminal

aliens

described

in

paragraph (1) may be released notwithstanding those aliens' prior

commission of (A)-(D) crimes.
paragraph (2).

It described those aliens in

And that description (of persons connected to

government witnesses or investigations) plainly does not include

petitioners.

Cf. TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001)

("Where Congress explicitly enumerates certain exceptions to a

general prohibition, additional exceptions are not to be implied,
in the absence of evidence of a contrary legislative intent."
(quoting Andrus v. Glover Constr. Co., 446 U.S. 608, 616617
(1980))).
We have good company in concluding that it is reasonable
to read section 1226(c) in this manner.

In describing the statute

in the first sentence of Demore, the Supreme Court stated that

section 1226(c) "provides that '[t]he Attorney General shall take
into custody any alien who' is removable from this country because
he has been convicted of one of a specified set of crimes." Demore,
- 74 -

538 U.S. at 513.

As petitioners would have it, the Court should

have added "and has just been released" as part of its description
of the alien to whom the mandates were intended to apply.

But it

did not, presumably because it was focused on its recognition that

Congress's goal was to end the practice of "releasing deportable
criminal aliens on bond" in order to avoid what Congress decided
was "an unacceptable rate of flight."

Id. at 520.

Of course, the

Court's description of the statute was not a holding. It certainly

shows, though, that a pretty good reader of statutes easily reads
the language as we do.

Cf. S.D. Warren Co. v. Me. Bd. of Envtl.

Prot.,

377

547

U.S.

370,

(2006)

(looking

to

how

the

court

previously tended to use the term "discharge" in dicta under the

Clean Water Act).
In gauging the import of the foregoing textual analysis,
we must also express a reservation concerning our colleagues'
interpretative methodology.

At several steps in their analysis,

they confront an interpretative guide that cuts against them (e.g.,

adverbs

usually

do

not

describe

nouns,

the

layout

of

the

subheadings supports a grammatical reading, the Supreme Court's

short-hand summary of the statute is informative).
our

colleagues

correctly

note

that

the

guide

In each case,
is

not

always

dispositive. So far, so good. They then, however, proceed forward

as if the import of those guides carries no continuing weight in
the analysis and so does not undermine a conclusion that the
- 75 -

statute is actually plainly to the contrary.

We view that import,

instead, as an accumulating weight capable of being offset only by

evidence that speaks directly and unambiguously to the contrary.
Silence,

assumptions,

inferences,

and

ambitiously

constructed

lines of reasoning that were likely never within the contemplation

of any drafter serve poorly as substitutes for such evidence.

See

Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 698 (1st

Cir. 1994) ("[L]egislative history that is in itself inconclusive
will rarely, if ever, overcome the words of a statute.").
This is not to say that we end our own inquiry at this
point.

To the contrary, we accept the notion that most statutes

must be read with a sense of what Congress was trying to do, and
that such a sense may be derived from knowledge gained outside the
four corners of the text, keeping in mind the weighty role that
the

text

must

continue

to

play.

We

also

agree

with

our

colleagues--and with the BIA--that the statutory language is not

so plain as to foreclose all extra-textual inquiry.

So, for that

reason, and particularly because the actual language at issue

touches upon matters of both personal liberty and the control of
our nation's borders, we think it reasonable to look next at the
legislative history to determine whether one can say that the
straightforward, grammatically conventional reading of the statute
comports with a reasonable interpretation of what Congress was
trying to accomplish.
- 76 -

B.

Legislative History
Our review of the legislative history begins with the

most directly pertinent legislative history: the conference report

to the IIRIRA.

Regarding section 1226(c) (i.e., section 236(c) of

the law), the report states in full:

New section 236(c) provides that the Attorney
General
must
detain
an
alien
who
is
inadmissible under section 212(a)(2) or
deportable under new section 237(a)(2). This
requirement does not apply to an alien
deportable under section 237(a)(2)(A)(i) on
the basis of an offense for which the alien
has not been sentenced to at least 1 year in
prison.
This
detention
mandate
applies
whenever such an alien is released from
imprisonment, regardless of the circumstances
of the release. This subsection also provides
that such an alien may be released from the
Attorney General's custody only if the
Attorney General decides in accordance with 18
U.S.C. 3521 that release is necessary to
provide protection to a witness, potential
witness,
a
person
cooperating
with
an
investigation into major criminal activity, or
a family member or close associate of such a
witness or cooperator, and such release will
not pose a danger to the safety of other
persons or of property, and the alien is
likely to appear for any scheduled proceeding.
H.R. Rep. No. 104-828, 1996 WL 563320, at *210-11 (1996) (Conf.
Rep.).
It is beyond dispute that the phrase "such an alien" as
used in the third sentence of the conference report refers back to
the aliens who are described in the first two sentences, neither
of which contains (as either adjective or adverb) any requirement
- 77 -

that the person be recently released.

The third sentence simply

tells us when the new custody mandate applies to "such an alien."

It is also entirely fair to presume that the same phrase "such an
alien" means the same thing in the fourth sentence's description
of what the statute "also" provides for: the no-release mandate.
This is, of course, simply another way of saying that the alien
"described" in section 1226(c)(2)'s no-release mandate is an alien
described in 1226(c)(1)(A)-(D)--the same class of alien who is
subject to the custody mandate whenever released.

And since

petitioners were admittedly subject to the custody mandate (i.e.,

each is "such an alien") they are therefore subject to what section
1226(c)(2) also provides for such an alien: the no-release mandate.
We recognize that our colleagues manage to read even
this directly authoritative legislative history as indicating that
Congress intended to leave the no-release mandate contingent on
how quickly the Attorney General complied with the detention
mandate.
for

While we have much difficulty seeing this, we need only

present

compelling.

purposes

protest

that

such

reading

is

hardly

It is our colleagues, not us, who must claim a

monopoly on reasonableness.
We move next to the 1995 Senate Report that directly
sets forth the substance of congressional concerns resulting in
the enactment of the IIRIRA.

S. Rep. No. 104-48 (1995).

Treating

the report as if it were Oz's man behind the green curtain, our
- 78 -

colleagues urge the reader to pay no attention to it.

But the

Supreme Court itself in Demore directly turned to this report for

precisely the same purpose that guides us to look at the report:
understanding the aims of Congress in enacting section 1226(c).
See Demore, 538 U.S. at 51821 & n.4.

The Court--like us--has

read this legislative history as plainly evidencing "Congress'

concern

that,

even

with

individualized

screening,

releasing

deportable criminal aliens on bond would lead to an unacceptable

rate of flight."

Id. at 520.

For example, the Senate Report

emphasized that "[u]ndetained criminal aliens with deportation

orders often abscond upon receiving [a notice of removal]. . . .
(This notice is humorously referred [to] by some INS personnel as
the 72 hours 'run notice.')"

S. Rep. No. 104-48, at 2-3; see

Demore, 538 U.S. at 518-19 & n.4, 521.

likewise

supported

its

concern

that

The data before Congress

immigration

judges

fared

poorly in trying to predict which aliens would take flight once

INS took steps to remove them.
percent

of

deportation

nondetained

S. Rep. No. 104-48, at 2 ("Over 20

criminal

proceedings.").

aliens
And

fail

the

to

Senate

appear

for

Report's

recommendation that "Congress should consider requiring that all

aggravated felons be detained pending deportation" due to "the
high rate of no-shows for those criminal aliens released on bond,"

- 79 -

S. Rep. No. 104-48, at 32 (emphasis added), directly addressed-and is certainly entirely consistent with--this concern.
Nor did Congress give any reason to think that this
concern disappeared merely because the criminal alien was not
detained for a period of time before deportation proceedings began.
To the contrary, the "deportable criminal aliens [who] failed to
appear for their removal hearings," Demore, 538 U.S. at 519, were
all those aliens who were not being held in INS custody.

In this

respect, it is helpful to keep in mind the actual interpretation

of the statute that petitioners urge.

They repeatedly argue that

Congress would not have been concerned about allowing immigration

judges to predict flight risk for criminal aliens who have "long
since returned to their communities."

But their reading of the

statute would mean that all criminal aliens who avoid detention
"when . . . released" would be entitled to a shot at convincing an
immigration judge that the alien would voluntarily surrender if
removal is ordered.

And this would be so whether the alien has

been free from prior criminal custody for a week or for five years,
and no matter what the alien has done post-release.
Of course, one could argue that the immigration judges
will not release obvious flight risks.

But that is presumably

what immigration judges were trying to do before Congress concluded

that it had insufficient confidence in the immigration judges'
ability to make ad hoc predictions, and opted for the categorical
- 80 -

treatment of four groups of aliens who are most likely to be

removed.

To now say that the executive, merely by failing to

detain a criminal alien promptly, can revive the immigration

judges' ability to pick and choose who gets released on bail would
be a result directly at odds with what Congress plainly sought to
achieve.

Cf. King v. Burwell, 135 S. Ct. 2480, 2496 (2015)

(rejecting an interpretation of the Affordable Care Act that would

lead to the "result that Congress plainly meant to avoid").
Nor does it help petitioners to argue that Congress's
concern about recidivism is somehow inapplicable categorically for
those criminal aliens who have "lived in the community" for some
undefined period of time post-release.

In the first place, there

is no compelling evidence in the record that Congress meant

section 1226(c) to apply only when both reasons for its enactment
--avoiding flight and re-offense--would be served.

Second, just

as Congress found unacceptable the mere possibility of recidivism

among this category of criminal aliens during the period between
release from criminal custody and removal adjudication, there is
no basis in the record for presuming that Congress felt that
immigration

judges

would

be

in

position

to

discount

that

possibility merely by noting that the criminal alien had been

released some time ago.

The immigration judges will both lack

much knowledge about what the criminal alien has been doing since
release and have no ability to predict future behavior that is
- 81 -

materially greater than the ability found by Congress to be

insufficient.
The legislative record, like Conan Doyle's dog that did
not bark, also conveys much by what it does not say.
v. Roemer, 501 U.S. 380, 396 & n.23 (1991).

See Chisom

Imagine, for example,

that petitioners were correct: if a criminal alien were not

detained immediately upon release from prison, that alien would
have a right to convince an immigration judge that the alien is
not a flight risk.

And, as our colleagues read the statute, this

right would belong to every alien not detained upon release,

whether or not the alien settled in any community, or took efforts
to hide, or even went on a crime spree. If that had been Congress's
aim, it is unlikely that there would be no acknowledgement of such
a loophole, nor any language in the statute defining and limiting
the loophole.
Similarly, if the entire mandatory detention regime
hinged on whether the criminal alien was detained "when . . .
released," one would have expected Congress to pay some attention
to defining that term.
alien hides?

How much time is too much?

What if the alien commits a new crime?

What if the
What if the

state prison does not cooperate, making it impossible for federal

agents to know when the alien will leave state custody?

There is

no evidence that Congress viewed its legislation as raising such

questions, all of which would have been nose-on-the-face obvious
- 82 -

had Congress intended the statute to be read as petitioners would

have us read it.

Precisely to the contrary, the entire focus was

broadly and categorically on "[u]ndetained criminal aliens."

See

S. Rep. No. 104-48, at 2.

Particularly noteworthy in this regard is the fact that
the drafters were well aware of--and concerned about--the fact
that criminal aliens were avoiding detention because some state
and local authorities refused to let INS know when criminal aliens
were being released.

See S. Rep. No. 104-48, at 16-17, 22.

Yet,

if petitioners are correct, Congress gave the state and local

authorities

hostile

to

Congress's

aim

complete

ability

to

frustrate pursuit of that aim.

Our knowledge of how Congress chooses to affect the
removal process of criminal aliens in other provisions of the U.S.
Code dovetails with our understanding of Congress's purpose in
enacting section 1226(c).

For example, Congress, in the IIRIRA,

barred from eligibility for cancellation of removal any permanent

resident alien convicted of an aggravated felony.42

See Pub. L.

No. 104-208, 110 Stat. 3009-594 (creating 8 U.S.C. 1229b(a)(3));

Rojas, 23 I. & N. Dec. at 121-22.

Congress also stripped courts

of jurisdiction "to review any final order of removal against an

42

An alien who is "deportable by reason of having committed"

an aggravated felony falls under section 1226(c)(1)(B). Compare
8 U.S.C. 1226(c)(1)(B), with id. 1227(a)(2)(A)(iii).
- 83 -

alien who is removable by reason of having committed" certain

criminal offenses that are also listed as predicate offenses under
section 1226(c)(1)(A)-(C).
23 I & N Dec. at 122.43

See 8 U.S.C. 1252(a)(2)(C); Rojas,

The aliens described in (A)-(D) are

therefore more likely to lose--and more likely to expect to lose

--in a removal proceeding, thus increasing the incentive to flee
once they are on Immigration and Customs Enforcement's ("ICE")
radar. It therefore seems natural to conclude that Congress wanted
these

aliens

to

be

in

custody

when

the

removal

proceeding

concluded, whether or not they were taken into custody right when
previously released.
Congress's focus in related legislation on making it
more difficult for criminal aliens to successfully contest a
removal order also reinforces the view that Congress aimed to deal
with such aliens categorically.

In saddling criminal aliens with

many burdens not imposed on aliens who reside in the United States

43

The INA contains numerous other examples of ways in which

Congress has made it more difficult for criminal aliens to avoid
removal. For instance, in removal proceedings, lawful permanent
residents convicted of crimes involving moral turpitude may not
qualify for a discretionary waiver of removability, because
commission of a crime of moral turpitude tolls the accrual of the
seven years of residence required for cancellation of removal.
See 8 U.S.C. 1229b(d)(1).
Other aliens convicted of a crime
involving moral turpitude may not qualify for cancellation and
adjustment to lawful permanent resident status.
See id.
1229b(b)(1)(C). Additionally, aggravated felons may not seek
asylum, see id. 1158(b)(2)(A)(ii), (b)(2)(B)(i), nor may they
seek persecution-based withholding of removal if they have been
sentenced to five years or more in prison, see id. 1231(b)(3)(B).
- 84 -

without

committing

crimes

viewed

by

Congress

as

especially

relevant to immigration status, see supra note 43, Congress has

drawn

no

distinction

based

on

when

the

alien

is

detained.

Evidence of living in the community for years post-release does

not

eliminate

the

legal

disabilities

in

removal

proceedings

imposed by the prior commission of certain criminal acts.

On the

contrary, during the years preceding the IIRIRA and within the
IIRIRA itself, Congress actively sought to narrow the group of
criminal aliens eligible for relief based on duration of residency.
For example, prior to the IIRIRA, many aliens with "a lawful
unrelinquished domicile of seven consecutive years" could seek
relief from removal despite their prior criminal activity.

See

INS v. St. Cyr, 533 U.S. 289, 295 (2001) (quoting section 212(c)
of the INA, formerly codified as 8 U.S.C. 1182(c)).

This sort

of relief had "great practical importance," id., and "the class of

aliens whose continued residence in this country . . . depended on
their eligibility for 212(c) relief [was] extremely large, and
not surprisingly, a substantial percentage of their applications"
were granted, id. at 295-96.

After amendments to the INA in 1990

and 1996 narrowed the availability of section 212(c) relief, the

IIRIRA eliminated it and replaced it with an even narrower class
of

lawfully

admitted

permanent

resident

aliens

who

had

been

lawfully present for at least five years and had not been convicted
of an aggravated felony.

See id. at 297; 8 U.S.C. 1229b(a).

- 85 -

We

have

also

considered

the

language

governing

section 1226(c)'s effective date, IIRIRA, 303(b)(2), 110 Stat.

3009, 3009-586, and the IIRIRA's Transition Period Custody Rules
("TPCR"), IIRIRA, 303(b)(3), 110 Stat. at 3009-586 to -587.44

We

agree with our colleagues that such language, as part of the very
statute at issue, provides a source of potential insight into the
meaning of its companion terms.
250, 255 (2000).

See Gutierrez v. Ada, 528 U.S.

That insight runs in favor of the interpretation

we adopt.
Most notably, the effective date provision states that
section 1226(c) "shall apply to individuals released after" the
expiration of the TPCR.
586.

IIRIRA, 303(b)(2), 110 Stat. at 3009-

That clause would be superfluous if petitioners were correct

that the detention-without-release mandate applies only to aliens

who are picked up right away, because immediate detention would be
impossible for aliens who had already been released prior to the
TPCR's expiration date.

See Nat'l Ass'n of Home Builders v. Defs.

of Wildlife, 551 U.S. 644, 669 (2007) ("[W]e have cautioned against
reading a text in a way that makes part of it redundant.").

While

we acknowledge the Supreme Court's recent reiteration that its

44

The TPCR imposed a more permissive regime that, due to

Congress's concerns about bed space shortages, governed bond
determinations for two years after the IIRIRA's effective date and
prior to section 1226(c)'s full implementation.
See IIRIRA,
303(b)(3), 110 Stat. at 3009-586 to -587.
- 86 -

"preference

for

avoiding

surplusage

constructions

is

not

absolute," King, 135 S. Ct. at 2492 (internal quotation mark

omitted), the canon provides at the very least yet another thumb
to be added to grammar, structure, and legislative purpose on the
scale in favor of our interpretation.45
That thumb is particularly large in this case, where
(unlike in King), Chevron applies.

See King, 135 S. Ct. at 2488

89 (declining to apply the Chevron two-step framework because if

"Congress wished to assign [interpretation] to an agency, it surely
would have done so expressly").

Here, we are first asked whether

Congress has spoken clearly and directly to the question at issue,

and second whether the BIA's interpretation is a reasonable one.
The surplusage caused by petitioners' interpretation at once makes
the interpretative path they walk less direct and the BIA's reading
in Rojas more reasonable.

Cf. Nat'l Credit Union Admin. v. First

Nat'l Bank & Tr. Co., 522 U.S. 479, 501 (1998) (rejecting, under
Chevron step one, agency's interpretation in part because it made
"the phrase 'common bond' surplusage").

45

We agree with the actual holding in Saysana v. Gillen, 590

F.3d 7, 18 (1st Cir. 2009), that section 1226(c) does not apply to
aliens released from custody for their (A) through (D) offenses
prior to the IIRIRA's effective date. To the extent that one might
glean from Saysana any inferences concerning the issue presented
here for the first time, such inferences would not be binding on
our en banc court.
See United States v. Gonzalez-Arimont, 268
F.3d 8, 13 (1st Cir. 2001).
- 87 -

Even putting to one side the surplusage ramification,

the TPCR provides no support for petitioners' position because it
simply

raises

the

same

interpretative

question

that

section

1226(c) poses: do the custody and no-release mandates during the

transition period apply if there is a delay in detaining the alien?
Our colleagues nevertheless attempt to glean from the TPCR two
points of support that warrant our consideration.
First, they point out that the transition rules set forth
in the TPCR contain language stating that, should the Attorney
General as anticipated invoke the transition rules, 1226(c) will
apply only to persons released after expiration of the transition
period.

The rules contain no similar provision stating that the

mandates in the transition rules themselves apply only to aliens

released after the transition rules become effective.

This means,

our colleagues reason, that under our interpretation the breadth

of the mandate's duty imposed on the Attorney General under the
permanent rules of section 1226(c) would be "less sweeping than
the supposedly more flexible TPCR mandate's bar had been" even
though the TPCR was intended to accommodate the Attorney General's
need to ramp up resources. The way to fix this "anomalous" result,
our colleagues argue, is to read the TPCR's bar on releasing aliens
to apply only to those taken into custody "when . . . released."
And if one reads the TPCR that way, by analogy one should read
section 1226(c) that way.

Anomaly cured.
- 88 -

In this manner, our colleagues imagine a problem that

does not exist in order to advocate a solution that is not
required.

There is no need to interpret the TPCR in this manner

to make its duties "less sweeping" than those imposed by section

1226(c).

The TPCR, unlike section 1226(c), expressly allows the

Attorney General to release any detained aliens who fall into two
of the four groups of aliens described in both the TPCR and section
1226(c).

Our colleagues offer no evidence at all establishing

that the effect of this categorical exclusion does not swamp

whatever

burden

might

arise

as

result

of

the

theoretical

possibility that the Attorney General within the brief two-year

transition period might pick up criminal aliens who had not been
released from criminal custody during that period.
More

fundamentally,

our

colleagues'

premise

that

language in the TPCR need be rendered superfluous in order to cure

a

perceived

"anomaly"

between

the

TPCR

and

section

1226(c)

incorrectly presumes that it was possible to start up a new regime,

with differing transition rules, and not have some "anomalies."
For example, what was to be done with an alien who was released
from prison during the transition period, and who then moved for
bail after the expiration of the transition period?

Under the

language of the transition rules--and under either interpretation

of section 1226(c) proffered in this case--such a person would
suddenly have a shot at bonded release that he might not have had
- 89 -

if he had moved for bail before the transition period had expired
(i.e., the section 1226(c) detention mandates would be "less
sweeping").
1999).

See In re Adeniji, 22 I. & N. Dec. 1102, 1110-11 (BIA

Certainly such an anomaly provides no license to re-write

section 1226(c).

It does, however, make clear that some such

anomalies arise inevitably from the need to have some arbitrary

cut-offs for implementing new programs.
Second, our colleagues complain that, in some instances,
the BIA's reading of section 1226(c) would have "de-linked" or
"misaligned" the custody and no-release aspects of section 1226 if
the TPCR transition rules had not been invoked because the clause
in the TPCR limiting section 1226(c) as a whole to persons released
after the TPCR became effective would not have been triggered.

As

an example, our colleagues point to a suspected terrorist described

in subsection 1226(c)(1)(D) who has never been imprisoned and who
is roaming the streets.

Under the BIA's interpretation, the

Attorney General would reserve the ability to decide whether to

arrest such a person because the custody mandate would not have
been triggered by a prior release.

Once the Attorney General

decided the suspected terrorist should be detained, under the BIA's

reading of section 1226(c)(2), as it would apply had the transition
period not been implemented, no immigration judge would have the
discretion to release the alien unless the alien prevailed in the
removal proceeding.

Our colleagues apparently think this is an

- 90 -

obviously unsound result, and that Congress must have intended

that immigration judges could second guess the Attorney General
and order such an alien released.

How one reads Congress's

manifest unhappiness with the predictive failure of immigration

judges as supporting such a conclusion puzzles us.46
Our colleagues also lean hard on the meaning they derive
from section 1226(c)'s predecessors.

We agree with the BIA's

position in Rojas that, while none of the other predecessor

provisions shed helpful light on the issue to be decided in this
case, the post-1991, pre-AEDPA version of the custody and norelease mandates is instructive.
24.

Rojas, 23 I & N. Dec. at 123-

That version, embodied in section 242(a)(2) of the INA

following the 1990 and 1991 amendments,47 provided that:

46

Our colleagues point out that there is no legislative

history suggesting that Congress was more hostile to the discretion
of immigration judges in determining whether to grant bonded
release to a criminal alien than to the discretion of immigration
enforcement in determining whether to bring a criminal alien into
immigration custody in the first place. But this is immaterial.
Given that we apply Chevron deference, it is incumbent on our
colleagues to demonstrate that it clearly lay outside of Congress's
intent to adopt a statutory scheme that would not require
immigration enforcement to track down and detain each and every
criminal alien, including the low-level narcotics offender, but
that would allow immigration enforcement to rest assured that
efforts to detain those criminal aliens who do represent
enforcement priorities would not go for naught due to the
miscalculation of an immigration judge at the alien's bond hearing.
47 Immigration Act of 1990, 504, Pub. L. No. 101-649, 104
Stat. 4978, 5049; Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991, 306(a)(4), Pub. L. No. 102232, 105 Stat. 1733, 1751 (effective as if included in the 1990
Act).
- 91 -

(A) The Attorney General shall take into

custody any alien convicted of an aggravated
felony upon release of the alien (regardless
of whether or not such release is on parole,
supervised
release,
or
probation,
and
regardless of the possibility of rearrest or
further confinement in respect of the same
offense). Notwithstanding [the equivalent of
section 1226(a)] . . . but subject to
subparagraph (B), the Attorney General shall
not release such felon from custody.
(B) The Attorney General may not release from
custody any lawfully admitted alien who has
been convicted of an aggravated felony, either
before
or
after
a
determination
of
deportability, unless the alien demonstrates
to the satisfaction of the Attorney General
that such alien is not a threat to the
community and that the alien is likely to
appear before any scheduled hearings.
INA 242(a)(2) (1991) (emphasis added).
Under

subparagraph

(B)

(the

equivalent

of

section 1226(c)(2)), whether the alien is subject to that statute's

mandate limiting release prior to his hearing turns entirely on
whether the alien was convicted of an aggravated felony, "unless"
the alien is able to demonstrate that he is not a bond risk.

There

is nothing in that version of the statute that even remotely

suggests that a lapse in establishing custody removes an alien
from the scope of subparagraph (B)'s coverage.

And notably absent

from subparagraph (B) is any mention of subparagraph (A) or its

"upon release" language (i.e., the "when . . . released" clause's
equivalent).

This is a problem for our colleagues and petitioners

because, once again, that textual reference point is the only hook
- 92 -

they latch on to in concluding that the description of aliens

subject to the no-release mandate includes a timing element.
Simply put, the language of the most long-standing version of the
no-release mandate prior to the IIRIRA does not appear to contain
any of the ambiguity that section 1226(c) arguably possesses with
respect to the relevance of the timing of release.

None of the

language in the predecessor provisions to which our colleagues

point contains this level of clarity on this key point.

And if

our colleagues' position that Congress has never sought to alter

the relationship between the custody and no-release mandates is
correct, this would seem to doom their argument.
Our colleagues point, instead, only to an off-point BIA
opinion, Matter of Eden, 20 I. & N. Dec. 209 (BIA 1990), as
reflecting the pre-IIRIRA law that Congress sought to preserve.
But the question of whether a delay in detaining a criminal alien
eliminated the Attorney General's obligation to deny bond once the
alien was detained was not even raised as an issue in Eden. Rather,
the case involved an alien who had been taken into immigration
custody while on "special parole" as part of his criminal sentence.
The

question

posed

was

whether

subjecting

such

person

to

mandatory immigration custody without bond was inconsistent with

"Congress' decision to allow [an] alien serving time in [a] state
or local facility to finish out that time before the Service
assumes responsibility for his incarceration."
- 93 -

Id. at 214.

It is true that, under Rojas's reasoning, the BIA perhaps

could have reached the same result in Eden merely by saying that
once a criminal alien was detained, he could not be granted bond
regardless of whether he had yet been released from prior custody.
Even under that approach, though, the BIA would have had an
interest

in

clarifying

the

scope

of

the

Attorney

General's

statutorily mandated duty to detain a criminal alien--and, namely,

in clarifying whether conceiving of a duty on the Attorney General
to detain a person too soon (i.e., during the course of a prior
sentence)

ran

up

against

the

congressional

intent

expressed

through the 1988 legislation's "upon release" provision.

In any

event, the simpler point is that there is no holding in Eden,

either express or implied, that addresses the issue posed here.48
Compounding their attempt to glean a holding--much less
settled law--from Eden, our colleagues then simply misread the
House report to the 1990 legislation that revised the clause "upon
completion of the alien's criminal sentence" to read "upon release
of the alien (regardless of whether or not release is on parole,
supervised release, or probation . . . .)."

Rightly or wrongly,

the report plainly states that Congress was concerned that "[a]t
least one immigration judge has ruled that an aggravated felon who
has been paroled by the sentencing court continues to serve his

48

Not even the dissent in Rojas cites Matter of Eden.

- 94 -

'sentence' [and therefore] INS has no authority to incarcerate

this alien until his period of parole has ended."

H.R. Rep. No.

101-681, pt. 1, at 148 (1990), as reprinted in 1990 U.S.C.C.A.N.

6472, 6554 (emphasis added).

In short, Congress was fearful that

its mandate to take criminal aliens into custody without bond upon
completion of the sentence was being construed as divesting INS of
any authority to detain an alien while the alien was on parole.
Restoring that authority implied a "link" to the no-release mandate
only in the obvious sense that any elimination of INS's authority
even to take a person into custody obviously frustrates any mandate
that the person be kept in custody.

Nothing in this sort of

logical link in any way implies (much less compels) a conclusion

that the custody and the no-release mandates are "linked" in the
sense that our colleagues' analysis requires.

To the contrary,

the fact that Congress wanted even those criminal aliens who would
otherwise be subject to parole reporting and supervision to be
detained during their removal proceedings would seem to cut against
our colleagues' assumption that a brief period of unsupervised
living in the community eliminated the need for detention.
This type of error (presuming that any reference to
"immediate"

detention

without

bond

implies

that

delay

in

detention makes a bond possible) pervades our colleagues' entire

discussion of the legislative record.

When we see Congress

repeatedly emphasizing that the government must take criminal

- 95 -

aliens into custody "when," "upon," or "immediately upon" their

release, and then not release them, we see no implied loophole.
Rather, we see an increasingly urgent expectation that criminal
aliens should be found in custody when the removal decision issues.
We stress, too, that even if one were to ignore these
defects in our colleagues' survey of the legislative history, the
most one ends up with are efforts to infer an answer to the question
at hand from statements made in addressing other issues where the
resolution of those other issues did not require or even call upon
a degree of precision that would be necessary to confirm the force
of the inference.
the

issue

at

And in each instance, the actual resolution of

hand

conclusion in Rojas.

is

completely

compatible

with

the

BIA's

Inferences of this type, whether reasonable

or not, seem to us to fall far short of the "clear" legislative

record one should require to end the inquiry at Chevron step one.
Turning their focus from the 1991 amendment and its
predecessors, our colleagues repeat their error in claiming that
we should presume that, in enacting the IIRIRA, Congress was aware
of the fact that "district courts . . . treated the retained 'upon
release' clause [of AEDPA] as if it conditioned the retained 'such
felon clause.'" Supra at 38-39. Our colleagues cite five district
court cases as constituting this "existing law" of which Congress
was supposedly aware.

Three are actually holdings that address

retroactivity under AEDPA.

Montero v. Cobb, 937 F. Supp. 88 (D.

- 96 -

Mass. 1996); Villagomez v. Smith, No. C96-1141C, 1996 WL 622451

(W.D. Wa. July 31, 1996) (unpublished); DeMelo v. Cobb, 936 F.
Supp. 30 (D. Mass. 1996), vacated, 108 F.3d 328 (1st Cir. 1997)
(per curiam).

As for the fourth, we sincerely doubt that Congress

managed to dredge up an obscure unpublished opinion from the

Southern District of Texas, which to this day remains difficult to
locate.
1996).

See In re Reyes, Case No. B-94-80 (S.D. Tex. May 31,

The fifth, Grodzki v. Reno, 950 F. Supp. 339 (N.D. Ga.

1996), is arguably on point, but was not issued until September 20,
1996, just ten days before the already drafted IIRIRA was passed
into law.

See Pub. L. No. 104-208, 110 Stat. 3009.

In any event,

even were all five cases squarely apposite, five district court
opinions

could

not

establish

the

type

of

"settled

judicial

construction" as to which we presume congressional awareness.

See

United States v. Powell, 379 U.S. 48, 55 n.13 (1964) (four lower
court opinions, including two by circuit courts, insufficient).
In

sum,

against

legislative

backdrop

thick

with

indications that Congress aimed to ensure that criminal aliens not

go free prior to the conclusion of their removal proceedings, our
colleagues stake their reading of the statute on one off-point BIA
ruling, one district court decision issued ten days prior to the
IIRIRA's enactment, and the supposedly anomalous results derived
from

reading

section

1226(c)

in

conjunction

with

what

our

colleagues themselves describe as "an ancillary and potentially

- 97 -

never operative clause in the TPCR," supra at 30-31 n.23.

of

the

foregoing,

legislative

one

history

might

actually

argue

that

compels

section

In view

1226(c)'s

finding

that

the

straightforward, grammatically conventional reading of the statute

must be correct.

Instead, tempering our confidence in our own

interpretative analysis, we need opine at this point only that the

legislative history is not so clearly to the contrary as to compel
a finding that "Congress has directly spoken to the precise
question at issue" (much less that it spoke with the intent our
colleagues claim is clearly apparent).
C.

Chevron, 467 U.S. at 842.

Our Colleagues' Conclusion Falls Short of the Mark

We have explained our disagreement with our colleagues'

argument

that

no

reasonable

jurist

can

read

the

phrase

"as

described in paragraph 1" as not incorporating into paragraph 2

the phrase "when released . . . ."

Even if we are wrong, though,

we agree with the Second, Third, Fourth, and Tenth Circuits that
the Attorney General's delay in detaining petitioners does not
render the no-release mandate inapplicable.

Our sister circuits

have explained why this is so under the loss-of-authority rubric.

See Lora, 2015 WL 6499951, at *8; Olmos, 780 F.3d at 132426;
Sylvain, 714 F.3d at 15761; Hosh, 680 F.3d at 38183.

We prefer

to

the

reframe

the

point

as

matter

of

interpreting

consistently with the purpose manifest in the text.

text

The key point

here is that even if the no-release mandate of paragraph (c)(2)

- 98 -

applied by its terms only to persons who have been released from
criminal custody, there is no good reason to say also that it
applies only when the Attorney General complies with the custody
mandate by detaining the criminal aliens right when they are
released.
Consider the following example that we have crafted so
that its substance and evident purpose invite the type of reading
that our colleagues insist is applicable to section 1226(c).
(1) Please give an especially thorough watering to any
plant that is:
(A) a sunflower, or
(B) a hibiscus
when it is planted for the garden show.
(2) Do not let a plant described in paragraph (1) go
any day without water unless you are certain that
it is dead.
Under the scenario posed by this example, we would agree
that it is reasonable to read the reference to plants "described
in paragraph (1)" as indicating not all sunflower or hibiscus
plants, but rather as indicating sunflower or hibiscus plants that
are newly planted for the garden show.

This is because our

knowledge that certain new plantings need prompt and regular

watering gives us a clue for resolving any ambiguity created by
the structure and awkward syntax of the mandates.
Nevertheless, even in this example designed to welcome
the type of reading that our colleagues give to section 1226(c),
it simply does not follow that the mandate of section (2) is also
- 99 -

contingent upon prompt compliance with the mandate of section (1).

No reasonable person would let the plants in question continue to
go without water merely because impediment or neglect unduly
postponed the first watering.
Of course, this conclusion, too, follows in great part
from an assumption that the principal purpose of the mandates is
to keep the new plants alive.

In the case of section 1226(c), an

analogous (and actual) purpose is manifest in the legislative

history discussed in this opinion and in Demore.

In repeatedly

and even more broadly expressing dissatisfaction with criminal

aliens not being in custody when removal is ordered, Congress did
not order the Attorney General to detain such aliens only if she
chose to do so right away.

Rather, we read section 1226(c) as

ordering the Attorney General to detain such persons, and to do it

right away.

The question whether the Attorney General complied

with that mandate right away--like the question whether the plants
were watered promptly when planted--is simply an exogenous and
independent fact that is not part of the description of those to
whom either mandate applies.49

49

Our colleagues suggest that our distinction between

exogenous and endogenous characteristics cuts too fine. We will
simplify. Section 1226(c)(1), under any reading, both creates a
duty and describes a group of people as to whom that duty must be
carried out. We see how section 1226(c)(2)'s reference to a person
"described in" section 1226(c)(1) could reasonably be understood
to refer to a member of the delineated group as to whom the duty
- 100 -

D.

The Constitutional Avoidance Canon

Since our colleagues rest their decision on Chevron's

first step, they do not reach the constitutional avoidance argument

principally relied upon by petitioners and by the panel opinion we
vacated prior to hearing this appeal en banc.

See Warger v.

Shauers, 135 S. Ct. 521, 529 (2014) (constitutional avoidance canon

"has no application in the absence of . . . ambiguity" (omission
in original) (internal quotation marks omitted)); Olmos, 780 F.3d
at 1321 (citing Warger in declining to consider the canon for
purposes of Chevron step one).

Because we disagree with our

colleagues' conclusion that no reasonable person can read the

statute

other

than

as

they

read

it,

we

explain

why

the

constitutional avoidance canon, even if it may be appropriately

applied at Chevron step two,50 does not remove the BIA's decision

exists.
But we simply fail to see how a reasonable reader
construes the cross-reference as referring to a member of the
delineated group as to whom the duty was in fact immediately
executed.
Section 1226(c)(1), which creates a forward-facing
duty, is of course powerless to "describe" the class of people as
to whom that duty will in fact be carried out.
50 An en banc panel of the Ninth Circuit determined that the
constitutional avoidance canon "plays no role in the second Chevron
inquiry." Morales-Izquierdo v. Gonzales, 486 F.3d 484, 493 (9th
Cir. 2007) (en banc).
The Tenth Circuit in Olmos cited that
opinion approvingly, Olmos, 780 F.3d at 1323 & n.2, but also
appeared to reject the merits of petitioner's constitutional
avoidance argument in its step two analysis, id. at 1324. As the
D.C. Circuit has noted (in a case also cited in Olmos), the Supreme
Court has at least once indicated that the "canon of constitutional
avoidance trumps Chevron deference."
Nat'l Mining Ass'n v.
Kempthorne, 512 F.3d 702, 711 (D.C. Cir. 2008) (citing Edward J.
- 101 -

in Rojas from the range of permissible interpretations requiring

deference.51
Petitioners' basic claim in favor of applying the canon
is that a statutory command to detain aliens such as petitioners
who had peacefully resided in the community for years after their
release from criminal custody would raise serious constitutional
due process concerns.

In accepting this claim, the panel opinion

relied on what seems to us to be a doubly flawed reading of Justice

Kennedy's concurring opinion in Demore.
First, the panel viewed Justice Kennedy's concurrence as
limiting the Demore majority's rationale for upholding section
1226(c).

See Castaeda, 769 F.3d at 39 & n.4.

The panel appeared

to be (erroneously) applying the Supreme Court's Marks principle,

which instructs that "[w]hen a fragmented Court decides a case and
no single rationale explaining the result enjoys the assent of
five Justices, the holding of the Court may be viewed as that
position taken by those Members who concurred in the judgments on

DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council,
485 U.S. 568, 575 (1988)). Since we see no basis for the canon's
application regardless, we decline to take any position on the
canon's precise relevance to the Chevron analysis.
51
The Third and Fourth Circuits did not address the
constitutional avoidance argument that petitioners press here.
See Sylvain, 714 F.3d 150; Hosh, 680 F.3d 375. The Second and
Tenth Circuits rejected it, see Lora, 2015 WL 6499951, at *9 n.20;
Olmos, 780 F.3d at 132224, but the Tenth Circuit noted in a
footnote that "[c]onstitutional considerations could become
greater when the gap in custody is considerably longer than six
days." Olmos, 780 F.3d at 1324 n.5.
- 102 -

the narrowest grounds."

Marks v. United States, 430 U.S. 188, 193

(1977) (internal quotation marks omitted).

But Justice Kennedy's

concurrence

that

in

Demore

explicitly

stated

he

joined

the

majority's "careful opinion . . . in full," Demore, 538 U.S. at

533 (Kennedy, J., concurring), so nothing therein limits the
majority's rationale for upholding section 1226(c).
Nor

does

Justice
in

Kennedy's

favor

of

concurrence

petitioners'

provide

persuasive

authority

due

process

argument.

That concurrence expressed no reservation at all,

constitutional or otherwise, about the amount of time that passed

between the moment an alien became released and the moment of the
alien's detention.

Rather, Justice Kennedy wrote separately to

address a concern (which we share) about the amount of time an

alien spends in immigration detention while he waits for his
removal proceeding.
Clause

prohibits

See id. at 532 ("[S]ince the Due Process

arbitrary

deprivations

of

liberty,

lawful

permanent resident alien such as respondent could be entitled to

an individualized determination as to his risk of flight and
dangerousness if the continued detention became unreasonable or
unjustified."

(emphasis

added)).

The

concurrence's

three

citations to Zadvydas v. Davis, 533 U.S. 678 (2001), a case dealing

the constitutional limits upon the duration of post-removal-period
detention (and the only court case cited by the concurrence),
support that limited reading.
- 103 -

To be sure, the Demore majority addressed only the

general

application

of

section

1226(c)

to

an

alien

who

had

committed an (A)-(D) offense, without considering the precise

constitutional consideration--the length of time an alien managed
to

avoid

detention

post-release--that

requires a resolution in their favor.52

petitioners

now

claim

But for the following

reasons, we view this as a distinction without a difference with

respect to whether the delay in commencing detention experienced
by petitioners raises constitutional concerns.
Petitioners' argument rests on the premise that, once a
law-breaking alien has been out of custody for several years, one
can no longer regard him as presenting a sufficiently heightened
risk of danger or flight, even once the alien finds out ICE now
wants to deport him on grounds that will be hard to successfully
contest.

Neither petitioners nor the vacated panel opinion cite

any controlling authority for this proposition, and we have great

difficulty accepting this view of flight risk as a matter of common
sense.

See Olmos, 780 F.3d at 1323 ("[W]e do not abandon Chevron

deference

at

the

mere

mention

of

possible

constitutional

problem." (alteration in original) (quoting Kempthorne, 512 F.3d

at 711)).

52

It seems to us that Congress could have--and did--

Perhaps since he was detained the day after his release,

Kim v. Ziglar, 276 F.3d 523, 526 (9th Cir. 2002), the petitioner
in Demore made no argument about the timing of his release.
- 104 -

reasonably regard this group of aliens as categorically posing a

flight risk because their commission of the designated crimes makes
it highly likely that they will be deported if ICE comes knocking.
Hence, there is little to lose by trying to hide, especially once
a

removal

order

issues.

See

S.

Rep.

No.

104-48,

at

2-3

("Undetained criminal aliens with deportation orders often abscond

upon receiving a final notification [of removal]. . . . Too often,
as one frustrated INS official told the Subcommittee staff, only
the stupid and honest get deported."). The incentive to flee peaks
once the criminal alien knows that ICE has decided to come after
him.

And while the incentive may be depressed while ICE ignores

the alien, once ICE manifests an intention to proceed forthwith,

the incentive to flee before the deportation proceeding ends would
seem to be unrelated to any delay in making that manifestation.53
The view of petitioners and of the vacated panel opinion
on this point is effectively that, if there is an individual fact
showing a person poses a lesser risk of flight or danger (e.g.,
has been living in a community for years), then that person is

53

Imagine Aliens A and B in a detention center, each having

committed the same section 1226(c) offense, and each similar in
all ways, except ICE detained Alien A one day after release from
state custody, and Alien B four years after release. Now imagine
that each was suddenly released pending completion of his removal
hearing. We can see no reason why we can say that, as a matter of
constitutional law, Congress could not have reasonably viewed A
and B as posing similar flight risks during the period between
release and removal hearing.
- 105 -

constitutionally entitled to a bail hearing.

See Castaeda, 769

F.3d at 47-48 ("Mandatory detention of individuals such as the

petitioners
fundamentally

appears
pushes

arbitrary
back

on

on

its

Congress's

face.").

This

view

ability

(affirmed

in

Demore) to say categorically that criminal aliens should not have

the ability to flee while awaiting the reasonably prompt conclusion
of their deportation hearings.54
We

note,

finally,

We would therefore reject it.

that

petitioners

have

raised

no

argument based on the duration of their detention, nor have they

produced evidence that the BIA's interpretation of section 1226(c)
will subject them to systemic delays or otherwise prolong the
length of their detention prior to a hearing.
U.S. at 532 (Kennedy, J., concurring).

Cf. Demore, 538

As of the time that the

Supreme Court last considered the statute, "in 85% of the cases in
which

aliens

[were]

detained

pursuant

to

1226(c),

removal

proceedings [were] completed in an average time of 47 days and a

median of 30 days."

Demore, 538 U.S. at 529.

To the extent that

the Attorney General would attempt to use section 1226(c) to detain

54

Many statutes and cases in the criminal sentencing area

give equal weight to prior criminal convictions irrespective of
whether the individual was recently released from custody.
A
person qualifies, for example, for mandatory life imprisonment as
a "violent felon" whether his predicate convictions occurred last
year or six years ago. See 18 U.S.C. 3559(c)(1). Accordingly,
we cannot say that Congress could not regard the danger risk as
materially reduced merely because the alien has spent some time
out of custody.
- 106 -

persons for materially more extended durations, see Lora, 2015 WL

6499951, at *12, we offer in this opinion no blessing of such
detentions.

Rather,

we

opine

only

that

the

constitutional

arguments raised by petitioners here do not make impermissible the

BIA's interpretation of section 1226(c), either facially or as
applied to petitioners.
II.
For

the

foregoing

Conclusion
reasons,

we

would

hold

that

petitioners have the characteristics of "an alien described in"

section 1226(c)(1), and that the Attorney General is correct in
concluding that she therefore lacks the discretion to grant them
a bond hearing.55

55

Petitioners do not argue that they qualify for the witness

protection exception in section 1226(c)(2).
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