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NIELSEN V. PREAP,

No. 16-1363, 2019 WL 1245517, at *4 (U.S. Mar. 19, 2019)

Background of the case

Generally deportable aliens may apply for bond in cases involving less serious offenses:

Under immigration law, aliens who are arrested because they are believed to be deportable may generally apply for release on bond or parole while the question of their removal is being decided. Such aliens will be released if the department of homeland security officer or the immigration judge is satisfied that the alien would not endanger others and would not flee if released from custody.

Adoption of special rule for dangerous crimes

However for the reason that this procedure involves risks, a special rule was adopted for aliens who have committed certain dangerous crimes and those who have connections to terrorism. If the alien is involved in dangerous crimes, the alien must be arrested when released from custody on criminal charges and must be detained without a bond hearing until the question of their removal is resolved.

United States Court of Appeals for the Ninth Circuit judgment’s interpretation of this provision

• This mandatory-detention requirement applies only if a covered alien is arrested by immigration officials as soon as he is released from jail.
• If the alien evades arrest for some short period of time—even 24 hours is considered too long—the mandatory-detention requirement is inapplicable, and the alien must have an opportunity to apply for release on bond or parole.
• Four other Circuits have rejected this interpretation of the statute
• Supreme Court of United States reviews this holding by Ninth Circuit.

FACTS

Two cases were heard in this case.  Respondents in both cases were detained under § 1226(c)(2)’s mandatory-detention requirement—and thus denied a bond hearing—pending a decision on their removal. Though all respondents had been convicted of criminal offenses covered in §§ 1226(c)(1)(A)–(D), none were arrested by immigration officials immediately after their release from criminal custody. Indeed, some were not arrested until several years later.
Respondent Mony Preap, the lead plaintiff in this case is a lawful permanent resident with two drug convictions that qualify him for mandatory detention under § 1226(c). He was released from criminal custody in 2006 but was not detained by immigration officials until 2013, when he was released from jail after an arrest for another offense. His co-plaintiffs were taken into immigration detention, respectively, 5 and 11 years after their release from custody for a § 1226(c) predicate offense.  These Plaintiffs together filed habeas corpus petitions and class actions on the ground that they were not arrested “immediately” after release from criminal custody, they are exempt from mandatory detention under § 1226(c) and are entitled to a bond hearing to determine if they should be released pending a decision on their status.
Although the named plaintiffs in Preap were not taken into custody on immigration grounds until years after their release from criminal custody, the District Court certified a broad class comprising all aliens in California “ ‘who are or will be subjected to mandatory detention under 8 U.S.C. section 1226(c) and who were not or will not have been taken into custody by the government immediately upon their release from criminal custody for a [s]ection 1226(c)(1) offense.’ ”  The District Court granted a preliminary injunction against the mandatory detention of the members of this class, holding that criminal aliens are exempt from mandatory detention under § 1226(c) (and are thus entitled to a bond hearing) unless they are arrested “ ‘when [they are] released,’ and no later.” Preap v. Johnson, 303 F.R.D. 566, 577 (N.D. Cal. 2014) (quoting 8 U.S.C. § 1226(c)(1)). The Court of Appeals for the Ninth Circuit affirmed.
Khoury, the other case, involves habeas petitions and a class-action complaint filed in the Western District of Washington. The District Court certified a class comprising all aliens in that district “who were subjected to mandatory detention under 8 U.S.C. § 1226(c) even though they were not detained immediately upon their release from criminal custody.. The District Court granted summary judgment for respondents, and the Ninth Circuit again affirmed, citing its decision on the same day in Preap.
Because Preap and Khoury created a split with four other Courts of Appeals, a certiorari was granted to review the Ninth Circuit’s ruling that criminal aliens who are not arrested immediately upon release are thereby exempt from mandatory detention under § 1226(c). .

Statutes referred

8 U.S.C.A. § 1226 (a) Arrest, detention, and release

On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General–
(1) may continue to detain the arrested alien; and
(2) may release the alien on–

(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or

(B) conditional parole; but

(3) may not provide the alien with work authorization (including an “employment authorized” endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization.

8 U.S.C.A. § 1226 (c) Detention of criminal aliens

(1) Custody
The Attorney General shall take into custody any alien who–

(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,

(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,

(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence1 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.

8 U.S.C.A. § 1226 (e) Judicial review

The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.

8 U.S.C.A.§ 1252(b)(9), provides:

“Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including §§ 1225 and 1226] shall be available only in judicial review of a final order under this section.”

ISSUES:

Issues relating to jurisdiction:

• Whether 8 U.S.C.A. § 1226 (e) bars the Supreme Court review of the Ninth Circuit Court holding?
• Whether 8 U.S.C.A. § 1252(b)(9) bars the Supreme Court review of the Ninth Circuit Court holding?
• Whether this case is made mute due to the general rule of the mootness of class actions if no named class representative with an unexpired claim remains at the time of class certification

Issues relating to whether the holding by the Ninth Circuit Court has to be reversed

• Whether respondents are not subject to mandatory detention because they are not “described in” § 1226(c)(1), even though they (and all the other members of the classes they represent) fall into at least one of the categories of aliens covered by subparagraphs (A)–(D) of that provision.
• Whether merely because respondents were not arrested immediately on release from custody entitles them to be released after a bond hearing.

Discussion

Jurisdiction related discussion

This review is not barred by 8 U.S.C.A. § 1226 (e).

As this review is not a claim of authority that constitutes a mere “discretionary” “application” of the relevant statute, this review is not barred by § 1226(e). The limitation under 8 U.S.C.A. § 1226 (e) applies only to “discretionary” decisions about the “application” of § 1226 to particular cases. It does not block lawsuits over “the extent of the Government’s detention authority under the ‘statutory framework’ as a whole.” And the general extent of the Government’s authority under § 1226(c) is precisely the issue here.

This review is not barred by 8 U.S.C.A. § 1252(b)(9)

Respondents in the present case “are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal [as opposed to the decision to deny them bond hearings]; and they are not even challenging any part of the process by which their removability will be determined, so 8 U.S.C.A.§ 1252(b)(9) does not bar the review.

This case is not made moot by this general rule of mootness of class actions if no named class representative with an unexpired claim remains at the time of class certification

This case is not made moot by this general rule because at least one named plaintiff in both cases had obtained release on bond, as opposed to cancellation of removal, and that release had been granted following a preliminary injunction in a separate case.  Only if the preliminary injunction was made permanent and was not disturbed on appeal, these individuals faced the threat of re-arrest and mandatory detention. The Supreme Court later ordered that that injunction be dissolved. So, in both cases, there was at least one named plaintiff with a live claim when the class was certified.

Interpretation of § 1226(c)(1)

Respondents are subject to mandatory detention though they contend they are not “described in” § 1226(c)(1) and are not entitled to bond hearing

Court held that the Ninth Circuit’s interpretation of § 1226(c) is contrary to the plain text and structure of the statute. The statute’s text does not support the argument that because respondents were not arrested immediately after their release, they are not “described in” § 1226(c)(1). Since an adverb cannot modify a noun, § 1226(c)(1)’s adverbial clause “when … released” does not modify the noun “alien,” which is modified instead by the adjectival clauses appearing in subparagraphs (A)–(D).
Respondents contend that an adverb can “describe” a person even though it cannot modify the noun used to denote that person, but the Court’s interpretation is not dependent on a rule of grammar. The grammar merely complements what is conclusive: the meaning of “described” as it appears in § 1226(c)(2)—namely, “to communicate verbally … an account of salient identifying features,”That is the relevant definition since the indisputable job of the “descri[ption] in paragraph (1)” is to “identif[y]” for the Secretary which aliens she must arrest immediately “when [they are] released.” Yet the “when … released” clause could not possibly describe aliens in that sense. If it did, the directive given to the Secretary in § 1226(c)(1) would be incoherent. Moreover, Congress’s use of the definite article in “when the alien is released” indicates that the scope of the word “alien” “has been previously specified in context.”  For that noun to have been previously specified, its scope must have been settled by the time the “when … released” clause appears at the end of paragraph (1). Thus, the class of people to whom “the alien” refers must be fixed by the predicate offenses identified in subparagraphs (A)–(D).
Subsections (a) and (c) do not establish separate sources of arrest and release authority; subsection (c) is a limit on the authority conferred by subsection (a). Accordingly, all the relevant detainees will have been arrested by authority that springs from subsection (a), and that fact alone will not spare them from subsection (c)(2)’s prohibition on release. The text of § 1226 itself contemplates that aliens arrested under subsection (a) may face mandatory detention under subsection (c). If § 1226(c)’s detention mandate applied only to those arrested pursuant to subsection (c)(1), there would have been no need for subsection (a)’s sentence on the release of aliens to include the words “[e]xcept as provided in subsection (c).” It is also telling that subsection (c)(2) does not limit mandatory detention to those arrested “pursuant to” subsection (c)(1) or “under authority created by” subsection (c)(1), but to anyone so much as “described in” subsection (c)(1).
This reading of § 1226(c) does not flout the interpretative canon against surplusage. The “when … released” clause still functions to clarify when the duty to arrest is triggered and to exhort the Secretary to act quickly. Nor does this reading have the incongruous result of forbidding the release of a set of aliens whom there is no duty to arrest in the first place.
Based on these reasons the court held that just because respondents were not arrested immediately on release from custody they are not entitled to be released after a bond hearing
The Ninth Circuit Court’s holding was reversed and Supreme Court held that the INA’s mandatory-detention requirement, without release on bond or parole, is not limited to situations in which a covered alien is taken into custody by immigration officials as soon as the alien in released from criminal custody. C