Case 2:13-cv-01367 Document 1 Filed 08/01/13 Page 1 of 15

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

FOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 9

Bassam Yusuf KHOURY; Alvin

10 RODRIGUEZ MOYA; Pablo CARRERA

ZAVALA, on behalf of themselves as 11 individuals and on behalf of others similarly

Civil Action No. _____________

situated, 12

CLASS ACTION COMPLAINT AND

Plaintiffs-Petitioners,

PETITION FOR WRIT OF HABEAS

13

CORPUS

v. 14

Nathalie ASHER, Field Office Director, ICE; 15 Lowell CLARK, Warden, NWDC; Juan P.

OSUNA, Director of EOIR; Eric H. 16 HOLDER, Jr., Attorney General of the

United States; Janet NAPOLITANO, 17 Secretary of the Department of Homeland

Security; and the UNITED STATES OF 18 AMERICA,

19

Defendants-Respondents.

20

I. Introduction

21

1. Plaintiffs-Petitioners Bassam Yusuf Khoury, Alvin Rodriguez Moya, and Pablo

22 Carrera Zavala and the class they propose to represent (“Plaintiffs”) are currently being held in

23 immigration detention without even the opportunity to demonstrate their eligibility for release

CLASS ACTION COMPLAINT – 1

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 1 Filed 08/01/13 Page 2 of 15

1 on bond or on their own recognizance. Many members of the proposed class have lived

2 lawfully and productively in the United States for many years; they live with family members

3 including U.S. citizens and/or permanent residents; and they work hard to support their

4 families. However, Defendants-Respondents (“Defendants”) maintain that Plaintiffs are

5 subject to mandatory detention during the pendency of their removal proceedings under the

6 Immigration and Nationality Act, 8 U.S.C. § 1226(c), based on a prior criminal conviction,

7 even though they were not detained by the immigration authorities “when [they were]

8 released” from custody for that conviction, as the statute requires. In many cases, the prior

9 criminal conviction occurred years ago, and Plaintiffs have returned to their families and

10 community since that time. Indeed, based on the BIA’s decision in Matter of Rojas, 23 I&N

11 Dec. 117 (BIA 2001) – a decision that has been overwhelmingly rejected by this court and

12 other district courts around the country – Defendants apply mandatory detention to individuals

13 any time after their release from criminal custody—even if that release took place almost 15

14 years ago, when the statute went into effect. Nonetheless, Defendants refuse to allow Plaintiffs

15 any opportunity to demonstrate eligibility for release.

16

2. Defendants assert this position even though this Court has repeatedly held that the

17 BIA’s decision in Matter of Rojas is wrong, and that individuals like Plaintiffs are not properly

18 included in the mandatory detention statute. Moreover, to Plaintiffs’ knowledge, the

19 government has never appealed this Court’s grants of individual habeas relief. Indeed,

20 Defendants themselves acquiesced to this Court’s interpretation of § 1226(c) for many years,

21 declining to apply mandatory detention to individuals who were not detained at the time of

22 their release from criminal custody.

23

CLASS ACTION COMPLAINT – 2

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 1 Filed 08/01/13 Page 3 of 15

1

3. Defendant’s application of the mandatory detention statute to Plaintiffs is unlawful.

2 As this Court and other courts have repeatedly held, Matter of Rojas is wrong: Plaintiffs are not

3 subject to § 1226(c) under the plain language of the statute because they were not detained

4 “when . . . released” from criminal custody for a removable offense listed in § 1226(c)(1). But

5 even assuming § 1226(c) did not plainly require that Defendants take custody at the time of

6 Plaintiffs’ release, it would be unreasonable to construe § 1226(c) to require the detention of

7 individuals who have been living in the community for months or years without incident, as

8 such individuals do not pose the categorical flight risk or danger that justifies application of

9 mandatory imprisonment. Indeed, mandatory detention in such circumstances raises serious

10 due process concerns.

11

4. Plaintiffs’ detention without a bond hearing where they have the opportunity to

12 demonstrate that they should be released on bond or on their own recognizance, violates both

13 the statute, 8 U.S.C. § 1226(c), and the United States Constitution. Through this action,

14 Plaintiffs respectfully request that this Court resolve once and for all that individuals who are

15 not taken into immigration custody “when [they are] released” from criminal custody for an

16 enumerated offense are not subject to mandatory detention, and order that Plaintiffs be

17 provided with individualized bond hearings to determine whether their continued detention is

18 justified.

19

II. Parties

20

5. Plaintiff-Petitioner Bassam Yusuf Khoury is a native of Palestine and a lawful

21 permanent resident of the United States who is presently detained at the Northwest Detention

22 Center in Tacoma, Washington.

23

CLASS ACTION COMPLAINT – 3

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 1 Filed 08/01/13 Page 4 of 15

1

6. Plaintiff-Petitioner Alvin Rodriguez Moya is a native and citizen of the Dominican

2 Republic and a lawful permanent resident of the United States who is presently detained at the

3 Northwest Detention Center in Tacoma, Washington.

4

7. Plaintiff-Petitioner Pablo Carrera Zavala is a native and citizen of Mexico who is

5 presently detained at the Northwest Detention Center in Tacoma, Washington.

6

8. Respondent-Defendant Nathalie Asher is the Field Office Director for the Seattle

7 District of Immigration and Customs Enforcement (“ICE”), an agency of the United States,

8 named in her official capacity. The Field Officer Director has custody of Plaintiff-Petitioners

9 and, on information and belief, other members of the proposed Class.

10

9. Respondent-Defendant Lowell Clark is the warden of the Northwest Detention

11 Center, operated by the GEO Group, Inc., under contract with the Department of Homeland

12 Security. Defendant Clark is sued in his official capacity because he has custody of Plaintiff-

13 Petitioners and, on information and belief, other members of the proposed Class.

14

10. Respondent-Defendant John Morton is the Director of ICE. ICE is the agency

15 within the Department of Homeland Security (“DHS”) that is responsible for apprehension,

16 detention, and removal of noncitizens from the United States. Director Morton is a legal

17 custodian of the plaintiffs. He is sued in his official capacity.

18

11. Respondent-Defendant Juan P. Osuna is the Director of the Executive Office for

19 Immigration Review (“EOIR”), an agency within the Department of Justice responsible for the

20 immigration courts and Board of Immigration Appeals (“BIA”). He is named in his official

21 capacity.

22

12. Respondent-Defendant Eric Holder is the Attorney General of the United States and

23 the most senior official in the Department of Justice. He has the authority to interpret the

CLASS ACTION COMPLAINT – 4

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 1 Filed 08/01/13 Page 5 of 15

1 immigration laws and adjudicate removal cases. By regulation, the Attorney General delegates

2 this responsibility to the immigration courts and the BIA, which are administered by EOIR. He

3 is named in his official capacity.

4

13. Respondent-Defendant Janet Napolitano is the Secretary of DHS, an agency of the

5 United States. She is named in her official capacity.

6

III. Jurisdiction and Venue

7

14. Jurisdiction is proper under 28 U.S.C. §§ 1331, 1361, 1651, and 2241.

8

15. Plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C. § 2202.

9

16. Venue is proper in the Western District of Washington under 28 U.S.C. §§ 1391(e)

10 and 1402 because the Plaintiffs are detained in this District and the United States government

11 is a Defendant.

12

IV. Factual Allegations

13 Plaintiff Khoury

14

17. Plaintiff Khoury is a native of Palestine and has been a lawful permanent resident of

15 the United States since April 28, 1976.

16

18. Mr. Khoury was convicted of attempted manufacture or delivery of a controlled

17 substance on May 9, 2011. He was sentenced to serve thirty days in jail for his offense.

18

19. Mr. Khoury was released from state custody in June 2011. Defendants did not take

19 him into custody at that time. Instead, Mr. Khoury returned to his home and employment. He

20 is close to his family and a positive member of the community. He has had no further brushes

21 with the law during that time.

22

23

CLASS ACTION COMPLAINT – 5

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 1 Filed 08/01/13 Page 6 of 15

1

20. On April 15, 2013, almost two years after his release from criminal custody, ICE

2 arrested Mr. Khoury at his home on the basis of his 2011 conviction, placed him in mandatory

3 detention at the Northwest Detention Center, and initiated removal proceedings against him.

4

21. Mr. Khoury has substantial community ties to the United States, and has no ties to

5 Jordan, the country to which ICE seeks to deport him. In particular, Mr. Khoury has a U.S.

6 citizen child, and a U.S. citizen grandchild. He has two U.S. citizen sisters, with whom he has

7 a close, supporting relationship.

8

22. Mr. Khoury is not a flight risk nor a danger to the community. He has steady

9 employment with Trade Recruiter CLP Resources In., a division of TrueBlue Inc., where he

10 continued to be employed until April 15, 2013.

11

23. After requesting a bond hearing, Mr. Khoury was scheduled for and attended a

12 hearing on June 27, 2013, before Immigration Judge Tammy L. Fitting in Tacoma,

13 Washington, to determine eligibility for bond or release.

14

24. The Immigration Judge held that the court lacked jurisdiction to determine whether

15 Mr. Khoury should be released under bond or his own recognizance because, as per the BIA’s

16 erroneous decision in Matter of Rojas, Mr. Khoury is subject to mandatory detention under 8

17 U.S.C. § 1226(c).

18

25. Mr. Khoury remains detained at the Northwest Detention Center, a period now

19 exceeding three and half months, far exceeding the 30-day sentence he was required to serve

20 for the conviction that serves as the basis of his mandatory detention. Because of his detention,

21 he has been unable to pay rent for his apartment and is currently making arrangements for his

22 family to move his things out.

23

CLASS ACTION COMPLAINT – 6

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 1 Filed 08/01/13 Page 7 of 15

1 Plaintiff Rodriguez Moya

2

26. Plaintiff Rodriguez Moya is a native and citizen of the Dominican Republic and has

3 been a lawful permanent resident of the United States since he immigrated as the child of a

4 lawful permanent resident on November 19, 1995.

5

27. Mr. Rodriguez was convicted of one count of third degree Misconduct Involving a

6 Controlled Substance on August 20, 2010, in Anchorage, Alaska, for which he received a

7 sentence of three years with two years suspended.

8

28. Mr. Rodriguez was released from state custody on or about August 20, 2010.

9 Defendants did not take him into custody at that time. Instead, Mr. Rodriguez returned to his

10 home.

11

29. On October 8, 2010, Immigration and Customs Enforcement detained Mr.

12 Rodriguez when he subsequently appeared at the State Office of Probation and Parole in

13 Anchorage, Washington, transferred him to the Northwest Detention Center, and initiated

14 removal proceedings against him.

15

30. After requesting a bond hearing, Mr. Rodriguez was scheduled for and attended a

16 hearing on November 30, 2010, before Immigration Judge Theresa M. Scala in Tacoma,

17 Washington.

18

31. The Immigration Judge held that, notwithstanding the BIA’s decision in Matter of

19 Rojas, Mr. Rodriguez was eligible for a bond hearing since he had not been taken into

20 immigration custody when released from criminal custody for the removable offense. Upon

21 information and belief this determination was made pursuant to the Immigration Court’s

22 practice of adhering to a local directive that acquiesced to this Court’s prior holdings

23 interpreting the mandatory detention statute in question.

CLASS ACTION COMPLAINT – 7

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 1 Filed 08/01/13 Page 8 of 15

1

32. On December 29, 2010, Mr. Rodriguez was released on a $12,000 bond and

2 returned to his home in Anchorage, Alaska, and has had no further incursions with the law.

3

33. On February 15, 2013, the Immigration Judge issued an order administratively

4 closing the removal proceedings against him.

5

34. On March 25, 2013, ICE sent Mr. Rodriguez a letter to appear at the ICE office in

6 Anchorage, Alaska, on April 3, 2013.

7

35. On April 3, 2013, Mr. Rodriguez appeared at the ICE office as instructed by the

8 letter. When he appeared, ICE detained Mr. Rodriguez, transferred him to the Northwest

9 Detention Center, and reinitiated the removal proceedings against him, based on the prior

10 charges.

11

36. Mr. Rodriguez is not a flight risk nor a danger to the community. It was precisely

12 for this reason that Defendants previously agreed to administratively close his removal

13 proceedings. He has had no subsequent offenses.

14

37. After requesting a bond hearing, Mr. Rodriguez attended a hearing on April 17,

15 2013, before Immigration Judge Theresa M. Scala in Tacoma, Washington.

16

38. The Immigration Judge held that, pursuant to the BIA’s erroneous decision in

17 Matter of Rojas, the court lacked jurisdiction to determine whether Mr. Rodriguez should be

18 released under bond or his own recognizance because Mr. Rodriguez was subject to mandatory

19 detention under 8 U.S.C. § 1226(c).

20

39. Mr. Rodriguez remains detained at the Northwest Detention Center, a period now of

21 almost 4 months – far more than he served for the criminal conviction that forms the alleged

22 basis for his mandatory immigration detention.

23

CLASS ACTION COMPLAINT – 8

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 1 Filed 08/01/13 Page 9 of 15

1 Plaintiff Carrera Zavala

2

40. Plaintiff Carrera Zavala is a native and citizen of Mexico who entered the United

3 States as a visitor in July of 1998. He has lived in the United States since that date.

4

41. Mr. Carrera was convicted on February 7, 2003, of unlawful imprisonment with

5 sexual motivation and refusal to give information to a police officer. He was sentenced to sixty

6 days with work release.

7

42. Mr. Carrera was released from state custody after serving his sentence on or about

8 April 29, 2003. Defendants did not take him into custody at that time. Instead, Mr. Carrera

9 returned to his family, home and employment. He has been employed at Rainier Tugs since

10 2007, where he performs electrical work on ships.

11

43. On April 7, 2013, ten years after Mr. Carrera was released from criminal custody,

12 ICE arrested him at his home on the basis of the 2002 conviction, placed him in mandatory

13 detention at the Northwest Detention Center, and initiated removal proceedings against him.

14

44. Mr. Carrera has substantial community ties to the United States. In particular, Mr.

15 Carrera has been married for thirteen years, has two U.S. citizen children, and is the sole

16 financial support for his family.

17

45. Mr. Carrera is not a flight risk nor a danger to the community. He has steady

18 employment as a mechanic at Rainier Tugs, and has no convictions since the 2002 offense.

19

46. After requesting a bond hearing, Mr. Carrera was scheduled for and attended a

20 hearing on June 19, 2013, before Immigration Judge Theresa M. Scala in Tacoma, Washington.

21

47. The Immigration Judge held that, pursuant to the BIA’s erroneous decision in

22 Matter of Rojas, the court lacked jurisdiction to determine whether Mr. Carrera should be

23

CLASS ACTION COMPLAINT – 9

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 1 Filed 08/01/13 Page 10 of 15

1 released under bond or his own recognizance because Mr. Carrera was subject to mandatory

2 detention under 8 U.S.C. § 1226(c).

3

48. Mr. Carrera remains detained at the Northwest Detention Center, a period already

4 greater than he was required to serve for the conviction that forms the basis for his mandatory

5 detention.

6

V. Class Action Allegations

7

49. Plaintiffs bring this action pursuant to Federal Rules of Civil Procedure 23(a) and

8 23(b) on behalf of themselves and all other persons similarly situated. The proposed class is

9 defined as follows:

10

All individuals in the Western District of Washington who are or will be

subject to mandatory detention under 8 U.S.C. § 1226(c) who were not

11

taken into immigration custody at the time of their release from criminal

custody for an offense referenced in § 1226(c)(1).

12

50. The requirements of Rule 23(a)(1) are met in this case because the class is so

13 numerous that joinder of all members is impracticable. Plaintiffs have identified at least 26

14 individuals at the Northwest Detention Center who presently satisfy the class definition, and

15 many more individuals will become class members in the future; moreover, the inherent

16 transitory state of the putative class members further demonstrates that joinder is impracticable.

17 51. The proposed class meets the commonality requirements of Federal Rule of Civil

18 Procedure 23(a)(2) because the mandatory detention of individuals within the proposed class is

19 the result of the same policy: Defendants’ interpretation that 8 U.S.C. § 1226(c) applies to

20 individuals with a predicate removal offense regardless of when they were released from the

21 related criminal custody, as long as it was post the statute’s effective date in October 1998,

22 nearly 15 years ago. This is a legal determination that is made by the Defendants and applies

23 to all members of the proposed class.

CLASS ACTION COMPLAINT – 10

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 1 Filed 08/01/13 Page 11 of 15

1

52. The proposed class meets the typicality requirements of Federal Rule of Civil

2 Procedure 23(a)(3) because the claims of the representative parties are typical of the claims of

3 the class. Plaintiffs and the class of individuals they seek to represent have all been subjected

4 to mandatory detention despite not having been detained by immigration authorities at the time

5 of their release from criminal custody for a removable offense enumerated in § 1226(c)(1).

6 Plaintiffs challenge their mandatory detention as violating the statute and the Due Process

7 Clause. The legal claims raised by the Plaintiffs are the same claims at issue in the class

8 claims.

9

53. The proposed class meets the requirements of Federal Rule of Civil Procedure

10 23(a)(4) on adequacy of representation. Plaintiffs seek the same relief as the other members of

11 the class, namely an individualized bond hearing, and they do not have any interests adverse to

12 those of the class as a whole. In addition, the proposed class is represented by counsel from the

13 Northwest Immigrant Rights Project; the American Civil Liberties Union Immigrants’ Rights

14 Project; the American Civil Liberties Union of Washington; and Gibbs Houston Pauw. These

15 Counsel have extensive experience litigating class action lawsuits, including lawsuits on behalf

16 of immigration detainees.

17

54. Finally, the proposed class satisfies Federal Rule of Civil Procedure 23(b)(2)

18 because the immigration authorities have acted on grounds generally applicable to the class in

19 applying an erroneous interpretation of § 1226(c) to members of the proposed class. Thus,

20 final injunctive and declaratory relief is appropriate with respect to the class as a whole. Cf.

21 Rodriguez v. Hayes, 591 F.3d 1105, 1119-20 (9th Cir. 2010) (8 U.S.C. § 1252(f) does not bar

22 declaratory relief, nor injunctive relief where “Petitioner here does not seek to enjoin the

23

CLASS ACTION COMPLAINT – 11

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 1 Filed 08/01/13 Page 12 of 15

1 operation of the immigration detention statutes, but to enjoin conduct it asserts is not

2 authorized by the statutes.”).

3

VI. Claims for Relief

4 First Cause of Action—Violation of 8 U.S.C. § 1226.

5

55. The foregoing allegations are realleged and incorporated herein.

6

56. Section 1226(a) authorizes Defendants to release non-citizens who are placed into

7 removal proceedings, including Plaintiffs and class members, on bond or conditional parole,

8 “[e]xcept as provided in [1226] subsection (c).” Section 1226(c) prohibits the release during

9 removal proceedings of noncitizens who were taken into immigration custody “when ...

10 released” from criminal custody for a removable offense. However, § 1226(c) does not apply

11 to individuals, such as Plaintiffs and class members, whom ICE did not take into immigration

12 custody at the time of their release from criminal custody.

13

57. Defendants’ policy and practice of detaining class members without an

14 individualized bond hearing violates 8 U.S.C. § 1226, and is therefore unlawful.

15 Second Cause of Action—Violation of Due Process Clause

16

58. The foregoing allegations are realleged and incorporated herein.

17

59. The Due Process Clause of the Fifth Amendment to the United States Constitution

18 requires that detention be limited to its purpose of preventing flight risk and danger to the

19 community, and is accompanied by “strong” procedural protections to ensure that detention is

20 serving those goals.

21

60. Mandatory detention is not reasonably related to its purpose when applied to

22 individuals such as Plaintiffs and class members, who are not detained at the time of their

23

CLASS ACTION COMPLAINT – 12

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 1 Filed 08/01/13 Page 13 of 15

1 release from criminal custody and have returned to their lives in the community, since these

2 individuals are less likely to be a danger or flight risk.

3

61. The Defendants’ policy and practice of mandatorily detaining Plaintiffs and class

4 members who were not taken into immigration custody when released from custody on the

5 underlying criminal conviction, but were taken into immigration custody months or years after

6 returning to their communities, violates the Due Process Clause of the United States

7 Constitution, and is therefore unlawful.

8

VII. Request for Relief

9

Plaintiffs request this Court to grant the following relief:

10

1. Certify this case is a class action lawsuit, as proposed herein, appoint the

11

Plaintiffs as class representatives, and appointed the undersigned counsel as

12

class counsel;

13

2. Declare Defendants’ policy and practice of applying mandatory detention to

14

Plaintiffs and others similarly situated who were not taken into immigration

15

custody “when . . . released” from criminal custody as described in this

16

Complaint to violate the Immigration and Nationality Act, or in the alternative,

17

the United States Constitution;

18

3. Order the Defendants to cease and desist from holding Plaintiffs and class

19

members in detention without bond;

20

4. Order the Defendants to provide individualized bond hearings to all Plaintiffs

21

and class members;

22

5. Grant Plaintiffs Khoury, Rodriguez and Carrera’s writ of habeas corpus and

23

order them individualized bond hearings.

CLASS ACTION COMPLAINT – 13

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 1 Filed 08/01/13 Page 14 of 15

1

6. Grant an award of attorneys’ fees and costs;

2

7. Grant such other relief as may be just and reasonable.

3 Dated this 1st day of August, 2013.
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

NORTHWEST IMMIGRANT RIGHTS PROJECT

/s/ Matt Adams

.

Matt Adams, WSBA No. 28287

/s/ Chris Strawn

.

Chris Strawn, WSBA No. 32243

615 Second Avenue, Suite 400 Seattle, WA 98104 (206) 957-8611

/s/ Betsy Tao

.

Betsy Tao, WSBA No. 33348

1331 G Street NW, Suite 200 Tacoma, WA (206) 957-8647

ACLU IMMIGRANTS’ RIGHTS PROJECT

/s/ Michael Tan

.

Michael Tan, Cal. Bar. No. 284869

Pro hac vice pending

39 Drumm St. San Francisco, CA 94111 (415) 343-0779

20

21

22

23

CLASS ACTION COMPLAINT – 14

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 1 Filed 08/01/13 Page 15 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
CLASS ACTION COMPLAINT – 15

/s/ Judy Rabinowitz

.

Judy Rabinovitz, NY Bar. No. JF-1214

Pro hac vice pending

/s/ Sarah Mehta

.

Sarah Mehta, NY Bar. No. 4929584

Pro hac vice pending

125 Broad Street New York, NY 10004 (212) 549-2619

ACLU OF WASHINGTON FOUNDATION

/s/ Sarah A. Dunne

.

Sarah A. Dunne, WSBA No. 34869

901 Fifth Avenue, Suite 630 Seattle, WA 98164 (206) 624-2184

GIBBS HOUSTON PAUW

/s/ Robert Pauw

.

Robert Pauw, WSBA No. 13613

/s/ Devin T. Theriot-Orr

.

Devin T. Theriot-Orr, WSBA No. 33995

1000 Second Avenue, Suite 1600 Seattle, WA 98104-1003 (206) 682-1080

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

 
 Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 1 of 22

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10

11 Bassam Yusuf KHOURY; Alvin RODRIGUEZ MOYA; Pablo CARRERA ZAVALA,
12 on behalf of themselves as individuals and on behalf of others similarly situated,
13

14

Plaintiff-Petitioners,

15

v.

Civil Action No.
PLAINTIFFS-PETITIONERS’ MOTION FOR CLASS CERTIFICATION

16 Nathalie ASHER, Field Office Director, ICE; 17 Lowell CLARK, Warden, NWDC; Juan P.
OSUNA, Director of EOIR; Eric H. HOLDER, 18 Jr., Attorney General of the United States; Janet
NAPOLITANO, Secretary of the Department of 19 Homeland Security; and the UNITED STATES 20 OF AMERICA,

Noted For Consideration On: August 23, 2013 Oral Argument Requested

21

Defendants-Respondents.

22

I. MOTION AND PROPOSED CLASS DEFINITION

23
Plaintiffs-Petitioners (“Plaintiffs”) bring this action to challenge Defendants-Respondents’
24

25 (“Defendants”) unlawful policies and practices applying the mandatory detention provision under

26 the Immigration and Nationality Act (INA) § 236(c), 8 U.S.C. § 1226(c), to Plaintiffs and others

27 similarly situated. Despite the plain language of the statute specifying that the mandatory detention

28
MOT. CLASS CERT. - 1 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 2 of 22

provision at § 1226(c) applies to those who have been taken into custody “when the alien is
1
2 released,” Defendants, relying on the Board of Immigration Appeals’ (BIA) decision in Matter of

3 Rojas, 23 I. & N. Dec. 117 (BIA 2001) (“Rojas”), have imposed the mandatory detention provision

4 on Plaintiffs and proposed class members even if they were not taken into immigration custody
5
“when . . . released” for an enumerated offense. Thus, they have applied mandatory detention to
6
7 individuals any time after their release from criminal custody for a predicate offense—even if that
8 release took place as long as nearly 15 years ago, when the statute went into effect.

9

This misinterpretation of the statute deprives Plaintiffs and other similarly situated of the

10
opportunity to seek release under conditional parole or by posting a bond, pursuant to the general
11
detention statute at INA § 236(a), 8 U.S.C. § 1226(a). Instead, Defendants refuse to even evaluate
12
13 whether Plaintiffs and others similarly situated present a flight risk or a threat to the community.

14 Defendants’ policies and practices create prolonged suffering for Plaintiffs and proposed class

15 members who are separated from their family members, home and work. Consequently, Plaintiffs

16
are forced to languish in immigration detention for months or even years, while their civil cases are
17
resolved.
18

19

Pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, Plaintiffs

20 respectfully move this Court to certify the following class with all named Plaintiffs being appointed

21 class representatives:

22

All individuals in the Western District of Washington who are or will be subject to

23

mandatory detention under 8 U.S.C. § 1226(c) and who were not taken into

24

immigration custody at the time of their release from criminal custody for an offense referenced in § 1226(c)(1).

25
The class consists of members who have been subjected to specific policies and practices of
26

27 Defendants, which putative class members challenge as violating their statutory and regulatory rights

28 to seek release under bond or conditional parole while in civil removal proceedings, and their

MOT. CLASS CERT. - 2 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400

SEATTLE, WA 98104

TELEPHONE (206) 957- 8611

FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 3 of 22

constitutional right to not be deprived of liberty without due process of law. But for Defendants’
1
2 unlawful policies and practices, Plaintiffs and proposed class members would be eligible to seek

3 release under bond or conditional parole while their civil immigration cases are pending. Plaintiffs

4 seek certification of a class under Rule 23(b)(2) in order to obtain class-wide injunctive relief,
5
requiring that the mandatory detention statute not be applied to individuals who were not taken into
6
7 immigration custody directly from criminal custody upon being released for an enumerated offense
8 under 8 U.S.C. § 1226(c)(1).

9

II. BACKGROUND

10
Plaintiffs are all persons who have been detained in the Western District of Washington at
11
the NWDC while in civil removal proceedings under the Immigration and Nationality Act, and have
12

13 been denied the opportunity to demonstrate that they should be released under bond or conditional

14 parole because they do not present a flight risk or a danger to the community. This case concerns the

15 proper reading of the statute that governs the arrest and detention of noncitizens pending their
16
removal proceedings, 8 U.S.C. § 1226. The statute provides that “on a warrant issued by the
17
Attorney General, an alien may be arrested and detained pending a decision [on removal].” 8 U.S.C.
18
19 § 1226(a). Individuals are generally entitled to seek release on bond or their own recognizance,

20 “[e]xcept as provided in subsection (c).” Id. (emphasis added). Section 1226(c) is thus an exception

21 to the Attorney General’s general authority to detain and release noncitizens pending removal

22
proceedings.
23

24

Section 1226(c)(1) provides:

25

(c) Detention of criminal aliens.

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

26

(A) is inadmissible by reason of having committed any offense covered in

27

section 212(a)(2), (B) is deportable by reason of having committed any offense covered in

28

section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D),

MOT. CLASS CERT. - 3 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400

SEATTLE, WA 98104

TELEPHONE (206) 957- 8611

FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 4 of 22

(C) is deportable under section 237(a)(2)(A)(i) on the basis of an offense for

1

which the alien has been sentenced to a term of imprisonment of at least one

2

year, or

(D) is inadmissible under section 212(a)(3)(B) or deportable under section

3

237(a)(4)(B),

when the alien is released, without regard to whether the alien is released on

4

parole, supervised release, or probation and without regard to whether the alien

5

may be arrested or imprisoned again for the same offense.

6 Id. (emphasis added). Section 1226(c)(2) further states that the Attorney General is
7 prohibited from releasing certain noncitizens “described in paragraph [1226(c)(1)]” except in
8
limited circumstances. As evident above, the “when . . . released” clause is a part of the
9
10 description of the individuals who are taken into custody pursuant to Section 1226(c)(1).

11 Section 1226(c)(2) then prohibits the release of persons defined under 1226(c)(1) from

12 custody during immigration removal proceedings except in certain limited circumstances.
13
Read in its entirety, 8 U.S.C. § 1226 thus provides DHS and the Attorney General
14
with the authority to arrest, detain, and release immigrants pending removal proceedings,
15
16 except for a specified class of noncitizens whom DHS detains at the time they are released

17 from custody for certain enumerated criminal offenses. Those individuals, described in

18 § 1226(c)(1), are subject to mandatory, no-bond detention pending their removal
19
proceedings, which may last months or even years.
20
Despite the plain language of the statute specifying that the mandatory detention
21
22 provision at § 1226(c) applies to those who have been taken into custody “when the alien is

23 released”, Defendants, relying on the Board of Immigration Appeals’ (BIA) decision in

24 Matter of Rojas, 23 I&N Dec. 117 (BIA 2001) (“Rojas”), have imposed the mandatory
25
detention provision on Plaintiffs and proposed class members even if they were not taken
26
27 into immigration custody “when . . . released” for an enumerated offense. Thus, they have

28 applied mandatory detention to individuals any time after their release from criminal custody

MOT. CLASS CERT. - 4 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400

SEATTLE, WA 98104

TELEPHONE (206) 957- 8611

FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 5 of 22

for a predicate offense—even if that release took place as long as nearly 15 years ago, when
1
2 the statute went into effect. This includes individuals like Plaintiffs who were released upon

3 the completion of the sentence for the enumerated offense, and returned to their families,

4 homes and communities, only to be subsequently arrested by Defendants, often years later,
5
and informed that Defendants would not provide them an opportunity to seek release on bond
6
7 or their own recognizance.

8

Defendants’ policies and practices unlawfully applying the mandatory detention

9 provision to persons who were not immediately taken into custody when released for an
10
enumerated offense sparked a long series of litigation before this court. This Court has
11
repeatedly and uniformly rejected Defendants’ polices and practices, based upon the plain
12
13 language of the statute: “the clear language of the statute indicates that the mandatory

14 detention of aliens ‘when’ they are released requires that they be detained at the time of

15 release.” Quezada-Bucio v. Ridge, 317 F. Supp. 2d 1221, 1230 (W.D. Wash. 2004) (J.
16
Lasnik) (internal quotation marks and citation omitted); see also, e.g., Castillo v. ICE Field
17
Office Dir., 907 F. Supp. 2d 1235, 1238 (W.D. Wash. 2012) (J. Pechman) (“[T]his Court has
18
19 repeatedly held that Congress intended mandatory detention to apply only to those aliens

20 taken into immigration custody immediately after their release from state custody.” (emphasis

21 added)); Gomez-Ramirez v. Asher, 2013 WL 2458756, at *4 (W.D. Wash. June 5, 2013) (J.
22
Jones); Deluis-Morelos v. ICE Field Office Director, 2013 WL 1914390, at *6 (W.D. Wash.
23
24 May 8, 2013) (J. Robart); Martinez-Cardenas v. Napolitano, 2013 WL 1990848, *3 (W.D.
25 Wash. Mar. 25, 2013) (J. Martinez); Bromfield v. Clark, 2007 WL 527511, at *5 (W.D.

26 Wash. Feb. 14, 2007) (J. Martinez); Roque v. Chertoff, 2006 WL 1663620, at *4 (W.D.
27

28
MOT. CLASS CERT. - 5 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 6 of 22

Wash. June 12, 2006) (J. Zilly); accord Pastor-Camarena v. Smith, 977 F. Supp. 1415, 1417
1
2 (W.D. Wash. 1997) (J. Dwyer) (same, for transition rule for 1226(c)), IIRIRA § 303(b)(3)).

3

Notably, not once have Defendants ever sought appeal of any of this Court’s

4 decisions rejecting their arguments. Instead, for several years Defendants acquiesced to this
5
Court’s holdings, operating under a local directive clarifying that persons who were not
6
7 immediately taken into immigration custody when released from criminal custody for an
8 enumerated offense under § 1226(c)(1) were entitled to seek release under a bond or

9 conditional parole. See Exhibits D, E (Attorney Declarations). However, in sometime around
10
the beginning of 2012, Defendants determined that they would no longer abide by this
11
Court’s prior determinations, and instead, determined that they would apply the Board’s
12
13 interpretation in Matter of Rojas. Since that time, this Court has again repeatedly rejected

14 Defendants’ position, and again, Defendants have determined not to appeal any of this

15 Court’s decisions in this matter. However, Defendants continue to apply their repeatedly-

16
rejected interpretation of the statute to any person locked up who does not have the time or
17
resources to file for habeas relief in this Court.
18

19

Thus, this case is ideally suited for class certification as the government has uniform policies

20 and practices precluding Plaintiffs and others similarly situated from obtaining release from

21 immigration detention, instead forcing them to suffer prolonged periods of separation from their
22
families, homes, and employment, based on the unlawful application of the mandatory detention
23
24 prevision at § 1226(c). These policies and practices violate the Immigration and Nationality Act
25 (INA) and binding federal regulations, the Administrative Procedure Act (APA), and the Fifth

26 Amendment to the United States Constitution.
27

28
MOT. CLASS CERT. - 6 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 7 of 22

The core issues are pure questions of law well suited for resolution on a class wide basis. See
1
2 e.g., Unthaksinkun v. Porter, 2011 U.S. Dist. LEXIS 111099, at *38 (W.D. Wash. Sept. 28, 2011)

3 (finding that, because all class members were subject to the same process, the court’s ruling as to the

4 legal sufficiency of the process would apply to all). On behalf of themselves and others similarly
5
situated, Plaintiffs seek class certification to obtain declaratory and injunctive relief requiring DHS
6
7 and Executive Office of Immigration Review (“EOIR”) to conform their policies and practices to the
8 applicable statute and regulations, consistent with applicable due process requirements, so that

9 Plaintiffs and proposed class members are not unlawfully prevented from seeking release under bond
10
or on their own recognizance. Plaintiffs do not ask this Court to order their release. Rather, they ask
11
only that the Court determine whether Defendants’ policies and procedures are unlawful, and order
12
13 Defendants to apply legally proper procedures to Plaintiffs and proposed class members, thereby

14 providing them an opportunity to seek release under bond or their own recognizance.

15

III. CLASS CERTIFICATION

16
Upon a showing that the requirements of Rule 23(a) and (b)(2) were met, numerous district
17
courts within the Ninth Circuit have certified classes of noncitizens who challenge immigration policies
18

19 and practices. See, e.g., Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) (affirming preliminary

20 injunctive relief for certified class of immigration detainees); Roshandel v. Chertoff, 554 F.Supp.2d

21 1194 (W.D. Wash. 2008) (certifying district-wide class of delayed naturalization cases); Santillan v.
22
Ashcroft, 2004 U.S. Dist. LEXIS 20824, at *40 (N.D. Cal. 2004) (certifying nationwide class of lawful
23
24 permanent residents challenging delays in receiving documentation of their status); Ali v. Ashcroft, 213
25 F.R.D. 390, 409-10 (W.D. Wash. 2003), aff’d, 346 F.3d 873, 886 (9th Cir. 2003), vacated on other

26 grounds, 421 F.3d 795 (9th Cir. 2005) (certifying nationwide class of Somalis challenging legality of

27 removal to Somalia in the absence of a functioning government); Walters v. Reno, 1996 WL 897662,

28
MOT. CLASS CERT. - 7 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 8 of 22

No. 94-1204 (W.D. Wash. 1996), aff’d 145 F.3d 1032 (9th Cir. 1998), cert. denied, Reno v. Walters, 526
1
2 U.S. 1003 (1999) (certifying nationwide class of individuals challenging adequacy of notice in

3 document fraud cases); Gorbach v. Reno, 181 F.R.D. 642, 644 (W.D. Wash. 1998) aff’d, 219 F.3d 1087

4 (9th Cir. 2000) (certifying nationwide class of persons challenging validity of administrative
5
denaturalization proceedings); Gonzales v. U.S. Dept. of Homeland Sec., 239 F.R.D. 620, 628 (W.D.
6
7 Wash. 2006) (certifying Ninth Circuit wide class challenging USCIS policy contradicting binding
8 precedent), preliminary injunction vacated, 508 F.3d 1227 (9th Cir. 2007) (establishing new rule and

9 vacating preliminary injunction but no challenge made to class certification); Barahona-Gomez v. Reno,
10
236 F.3d 1115, 1118 (9th Cir. 2001) (finding district court had jurisdiction to grant injunctive relief in
11
certified class action challenging unlawful immigration directives issued by EOIR); Gete v. INS, 121
12
13 F.3d 1285, 1299 (9th Cir. 1997) (vacating district court’s denial of class certification in case challenging

14 inadequate notice and standards in INS vehicle forfeiture procedure).

15

Like the above cases, the instant action satisfies the requirements for class certification under

16
Rule 23(a) and (b)(2). Each of these requirements is discussed below. Where the class certification
17
determination is intertwined with the merits of the action, Plaintiffs address both. While Plaintiffs
18

19 demonstrate that they meet the class certification requirements under the required “rigorous

20 analysis,” Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S. Ct. 2541, 2551 (2011) (internal

21 quotations and citations omitted), such analysis does not “equate with an in-depth examination of the
22
underlying merits” of the case. Ellis v. Costco, 657 F.3d 970, 983 n.8 (9th Cir. 2011) (explaining
23
24 that a court need only examine the merits to determine whether common questions exist and not to
25 determine whether class members can actually prevail on the merits).1

26

27
1 In the alternative, Plaintiff-Petitioners seek certification of a habeas corpus class of detainees in the

28 NWDC. It is well-established that, in appropriate circumstances, a habeas corpus petition may

MOT. CLASS CERT. - 8 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400

SEATTLE, WA 98104

TELEPHONE (206) 957- 8611

FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 9 of 22

A.
1 2 3 4

THIS ACTION SATISFIES THE CLASS CERTIFICATION REQUIREMENTS OF FEDERAL RULE OF CIVIL PROCEDURE 23(a).
1. The Proposed Class Members Are So Numerous That Joinder Is Impracticable.
Rule 23(a)(1) requires that the class be “so numerous that joinder is impracticable.”

5 “[I]mpracticability does not mean ‘impossibility,’ but only the difficulty or inconvenience of joining

6 all members of the class.” Harris v. Palm Springs Alpine Est., Inc., 329 F.2d 909, 913-14 (9th Cir.
7 1964) (citation omitted). No fixed number of class members is required. Perez-Funez v. District
8
Director, INS, 611 F. Supp. 990, 995 (C.D. Cal. 1984); Hum v. Dericks, 162 F.R.D. 628, 634 (D.
9

10

11 proceed on a representative or class-wide basis. See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388,

393, 404 (1980) (holding that class representative could appeal denial of nationwide class 12 certification of habeas and declaratory judgment claims); Rodriguez v. Hayes, 591 F.3d 1105, 1117

13 (9th Cir. 2010) (“the Ninth Circuit has recognized that class actions may be brought pursuant to habeas corpus”); Ali v. Ashcroft, 346 F.3d 873, 886-91 (9th Cir. 2003) (affirming certification of

14 nationwide habeas and declaratory class), overruled on other grounds by Jama v. ICE, 543 U.S. 335

(2005); Williams v. Richardson, 481 F.2d 358, 361 (8th Cir. 1973) (holding that “under certain 15 circumstances a class action provides an appropriate procedure to resolve the claims of a group of

16 petitioners and avoid unnecessary duplication of judicial efforts in considering multiple petitions, holding multiple hearings, and writing multiple opinions”); Death Row Prisoners of Pennsylvania v.

17 Ridge, 169 F.R.D. 618, 620 (E.D. Pa. 1996) (certifying habeas class action challenging state’s status

under Antiterrorism and Effective Death Penalty Act). See also Yang You Yi v. Reno, 852 F. Supp. 18 316, 326 (M.D. Pa. 1994) (noting that “class-wide habeas relief may be appropriate in some

19 circumstances.”). The authority for such a proceeding is found in Federal Rule of Civil Procedure

81(a)(4), which provides that the Federal Rules of Civil Procedure are applicable to proceedings for

20 habeas corpus to the extent that the practice in such proceedings “is not specified in a federal statute,

21

the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Proceedings, and has previously conformed to the practice in civil actions.” Accordingly, the courts have held that even if

22 Rule 23 is technically inapplicable to habeas corpus proceedings, courts should look to Rule 23 and

apply an analogous procedure. See, e.g., Ali, 346 F.3d at 891 (rejecting argument that Rule 23

23 requirements could not be used for guidance in determining whether a habeas representative action

24 was appropriate); United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125-27 (2d Cir. 1974) (citing Harris v. Nelson, 394 U.S. 286, 294 (1969)) (finding in habeas action “compelling justification for

25 allowing a multi-party proceeding similar to the class action authorized by the Rules of Civil

Procedure”); United States v. Sielaff, 546 F.2d 218, 221-22 (7th Cir. 1976); Bijeol v. Benson, 513

26 F.2d 965, 967-68 (7th Cir. 1975); Fernandez-Roque v. Smith, 539 F. Supp. 925, 929 n.5 (N.D. Ga.

27 1982) (noting that “a number of circuit courts have upheld the notion of class certification in habeas cases, whether certification is accomplished under Fed. R. Civ. P. 23, or by analogy to Rule 23.”);

28 accord William B. Rubenstein, Newberg on Class Actions § 25.28 (4th ed. 2012).

MOT. CLASS CERT. - 9 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT

615 SECOND AVE., STE. 400

SEATTLE, WA 98104

TELEPHONE (206) 957- 8611

FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 10 of 22

Haw. 1995) (“There is no magic number for determining when too many parties make joinder
1
2 impracticable. Courts have certified classes with as few as thirteen members, and have denied

3 certification of classes with over three hundred members.” (citations omitted)). “Numerousness—

4 the presence of many class members—provides an obvious situation in which joinder may be
5
impracticable, but it is not the only such situation.” W. Rubenstein & A. Conte, 1 Newberg on Class
6
7 Actions § 3:11 (5th ed. 2013). “Thus, Rule 23(a)(1) is an impracticability of joinder rule, not a strict
8 numerosity rule. It is based on considerations of due process, judicial economy, and the ability of

9 claimants to institute suits.” Id. Where it is a close question, the Court should certify the class.
10
Stewart v. Associates Consumer Discount Co., 183 F.R.D. 189, 194 (E.D. Pa. 1998) (“where the
11
numerosity question is a close one, the trial court should find that numerosity exists, since the court
12
13 has the option to decertify the class later pursuant to Rule 23(c)(1)”).

14

Determining whether plaintiffs meet the test “requires examination of the specific facts of

15 each case and imposes no absolute limitations.” Troy v. Kehe Food Distributors, 276 F.R.D. 642,
16
652 (W.D. Wash. 2011) (citing Gen. Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330
17
(1980)). Thus, courts have found impracticability of joinder when relatively few class members are
18
19 involved. See Arkansas Educ. Ass’n v. Board of Educ., 446 F.2d 763, 765-66 (9th Cir. 1971)

20 (finding 17 class members sufficient); McCluskey v. Trustees of Red Dot Corp. Employee Stock

21 Ownership Plan and Trust, 268 F.R.D. 670, 674-76 (W.D.Wash. 2010) (certifying class with 27

22
known members).
23

24

Moreover, in certifying classes of noncitizens, courts have taken notice of circumstances in

25 which “INS [now DHS] is uniquely positioned to ascertain class membership.” Barahona-Gomez v.

26 Reno, 167 F.3d 1228, 1237 (9th Cir. 1999) (requiring Defendants to provide notice to class

27 members). Where DHS has control of the information proving the practicability of joinder and does

28
MOT. CLASS CERT. - 10 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 11 of 22

not make such information available, it would be improper to allow the agency to defeat class
1
2 certification on numerosity grounds. In this case, Defendants are knowledgeable as to the size of the

3 proposed class as they are uniquely positioned to know the number of persons currently in the

4 Western District of Washington who were determined by ICE and/or EOIR to be subject to the
5
mandatory detention provision even though they were not taken into immigration custody “when . . .
6
7 released” for an enumerated offense under § 1226(c)(1).

8

The attached attorney declarations demonstrate Plaintiffs’ counsel’s personal awareness of

9 approximately thirty cases of persons currently detained at the NWDC who satisfy the proposed
10
class definition. See Exhs. A, B, C, D (Attorney Declarations). This number does not reflect close
11
to the complete picture as about ninety percent of the approximately 1300 persons detained at the
12
13 NWDC do not have attorneys. Even for those that do have attorneys, Plaintiffs’ counsel are able to

14 only identify and contact a sampling of the detainees’ attorneys, particularly since access to court

15 records of these cases is restricted. Fed. R. Civ. P. 5.2(c) (limiting remote PACER access of
16
immigration case filings to the parties and their attorneys). For those without attorneys, Plaintiffs’
17
counsel are only able to get information from those who affirmatively seek out assistance from the
18
19 Northwest Immigrant Rights Project. Because these declarations represent only a small sample of

20 attorneys representing clients in the NWDC, and the declaration from Betsy Tao represents only a

21 small sample of the unrepresented individuals in the NWDC, it is reasonable to assume that these
22
numbers do not represent all the proposed class members. See Ali, 213 F.R.D. at 408 (“ . . . the
23
24 Court does not need to know the exact size of the putative class, ‘so long as general knowledge and
25 common sense indicate that it is large’” (citing Perez-Funez, 611 F. Supp. at 995)); Newberg on

26 Class Actions § 3:13 (“it is well settled that a plaintiff need not allege the exact number or specific

27 identity of proposed class members”).
28
MOT. CLASS CERT. - 11 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 12 of 22

Joinder is also inherently impractical because of the unnamed, unknown future class
1
2 members who will be subjected to Defendants’ unlawful, mandatory detention policy. Ali, 213

3 F.R.D. at 408-09 (citations omitted) (“‘where the class includes unnamed, unknown future members,

4 joinder of such unknown individuals is impracticable and the numerosity requirement is therefore
5
met,’ regardless of class size.”); see also Hawker v. Consovoy, 198 F.R.D. 619, 625 (D.N.J. 2001)
6
7 (“The joinder of potential future class members who share a common characteristic, but whose
8 identity cannot be determined yet is considered impracticable.”); Smith v. Heckler, 595 F.Supp.

9 1173, 1186 (E.D. Cal.1984) (“Joinder in the class of persons who may be injured in the future has
10
been held impracticable, without regard to the number of persons already injured”). Future unnamed,
11
unknown class members will be unlawfully detained under Defendants’ policies are as they are taken
12
13 into custody. The impracticability of joining future class members is particularly relevant with

14 inherently revolving detainee populations, such as those at the NWDC. See J.D. v. Nagin, 255

15 F.R.D. 406, 414 (E.D.La. 2009) (“The mere fact that the population of the [Youth Study Center] is
16
constantly revolving during the pendency of litigation renders any joinder impractical.”); Clarkson v.
17
Coughlin, 145 F.R.D. 339 (S.D. N.Y. 1993) (certifying classes of male and female deaf and hearing-
18
19 impaired inmates even though only seven deaf or hearing impaired female inmates were identified,

20 in part because the composition of the prison population is inherently fluid).

21

In addition to class size and future class members, factors that inform impracticability

22
include: (1) geographical diversity of class members; (2) the ability of individual claimants to
23

24 institute separate suits; and (3) the type of review sought. Jordan v. Co. of Los Angeles, 669 F.2d

25 1311, 1319 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982); see also Matyasovszky

26 v. Housing Auth. of the City of Bridgeport, 226 F.R.D. 35, 40 (D. Conn. 2005) (“when making a

27 determination of joinder impracticability, relevant considerations include judicial economy arising

28
MOT. CLASS CERT. - 12 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 13 of 22

from the avoidance of a multiplicity of actions, geographic dispersions of class members, financial
1
2 resources of class members, the ability of claimants to institute individual suits, and requests for

3 prospective injunctive relief which would involve future class members”) (citing Robidoux v. Celani,

4 987 F.2d 931 (2d Cir. 1993)); see also McCluskey v. Trustees of Red Dot Corp. Employee Stock
5
Ownership Plan and Trust, 268 F.R.D. 670, 674-76 (W.D. Wash. 2010) (considering judicial
6
7 economy; the class members’ geographic dispersion; their financial resources; the ability of the
8 members to file individual suits; and requests for prospective relief that may have an effect on future

9 class members).
10
Application of these factors shows impracticability of joinder in the present case. Most
11
importantly, joinder is impracticable when proposed class members, by reason of such factors as
12
13 financial inability, lack of representation, fear of challenging the government, and lack of

14 understanding that a cause of action exists, are unable to pursue their claims individually. Morgan

15 v. Sielaff, 546 F.2d 218, 222 (7th Cir. 1976) (“Only a representative proceeding avoids a multiplicity
16
of lawsuits and guarantees a hearing for individuals . . . who by reason of ignorance, poverty, illness
17
or lack of counsel may not have been in a position to seek one on their own behalf.” (internal citation
18
19 omitted)); Sherman v. Griepentrog, 775 F. Supp. 1383, 1389 (D. Nev. 1991) (holding that poor,

20 elderly plaintiffs dispersed over a wide geographic area could not bring multiple lawsuits without

21 great hardship).
22
Most of the detained noncitizens appearing in immigration court are unrepresented. See
23
24 Peter L. Markowitz, Barriers to Representation for Detained Immigrants Facing Deportation:
25 Varick Street Detention Facility, A Case Study, 78 Fordham L. Rev. 541, 542 n.8 (2009) (citations

26 omitted). The proposed class members are, by definition, detained, and not currently able to work to

27 support themselves or their family. The vast majority do not have the resources to retain legal

28
MOT. CLASS CERT. - 13 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 14 of 22

counsel, and free legal services are limited. Wong Yang Sung v. McGrath, 339 U.S. 33, 46 (1950) (“.
1
2 . . in . . . deportation proceeding[s], . . . we frequently meet with a voteless class of litigants who not

3 only lack the influence of citizens, but who are strangers to the laws and customs in which they find

4 themselves involved and … often do not even understand the tongue in which they are accused.”).
5
Equity favors certification where class members lack the financial ability to afford legal assistance.
6
7 Lynch v. Rank, 604 F. Supp. 30, 38 (N.D. Cal. 1984), aff'd 747 F.2d 528 (9th Cir. 1984) (certifying
8 class of poor and disabled plaintiffs represented by public interest law groups).

9

Judicial economy also favors certification. As noted above, in cases spanning over 15 years,

10
nearly every one of the Judges in the Western District of Washington – from the Chief, the active,
11
the senior, as well as in the case of Judge Dwyer, a former member of the bench – has made the
12
13 same legal ruling on the “when released” issue. However, since the agency has not appealed these

14 decisions, nor followed them outside of the individual cases presented to this Court, detained

15 individuals are forced to individually litigate each case. This is a waste of judicial resources. See
16
Abdalla v. Mukasey, 2008 WL 3540201, at *2 (W.D. Wash. Aug. 11, 2008) (“Government counsel
17
has largely chosen to rely on the same arguments and evidence that the court has already rejected. In
18
19 each such case, the court must devote resources to poring over Government counsel’s brief and

20 supporting evidence to determine if counsel has acknowledged the court’s prior rulings, and if

21 counsel has made any effort to offer new evidence or argument to warrant a different result. To date,

22
that expenditure of resources has been mostly fruitless.”) (delayed naturalization litigation).
23

24

In addition, where, as here, injunctive or declaratory relief is sought, the requirements of

25 Rule 23 are more flexible. See Goodnight v. Shalala, 837 F. Supp. 1564, 1582 (D. Utah 1993). In

26 particular, smaller classes are less objectionable and the plaintiffs’ burden to identify class members

27 is substantially reduced. Weiss v. York Hospital, 745 F.2d 786, 808 (3d Cir. 1984) (citing Horn v.

28
MOT. CLASS CERT. - 14 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 15 of 22

Associated Wholesale Grocers, Inc., 555 F.2d 270, 276 (10th Cir. 1977) and Jones v. Diamond, 519
1
2 F.2d 1090, 1100 (5th Cir. 1975)); Doe v. Charleston Area Medical Ctr., 529 F.2d 638, 645 (4th Cir.

3 1975) (“Where ‘the only relief sought for the class is injunctive and declaratory in nature . . .’ even

4 ‘speculative and conclusory representations’ as to the size of the class suffice as to the requirement
5
of many.” (citation omitted)). Plaintiffs here challenge DHS’ unlawful policies and practices and are
6
7 seeking declaratory and injunctive relief. Because Plaintiffs satisfy the stricter numerosity
8 requirement of Rule 23(a)(1), a fortiori, they meet the requirements of the rule when liberally

9 construed. While Defendants are in possession of the precise number of proposed class members,
10
Plaintiffs have demonstrated that the number of current and potential future class members, and the
11
impracticability of joining the current and future detainees held under this policy, makes class
12
13 certification appropriate as the class is “so numerous that joinder is impracticable.” Fed. R. Civ.

14 Proc. 23(a).

15

2. The Class Presents Common Questions of Law and Fact.

16
Rule 23(a)(2) requires that there be questions of law or fact common to the class. To satisfy
17
the commonality requirement, “[a]ll questions of fact and law need not be common.” Ellis, 657 F.3d
18

19 at 981 (quoting Hanlon v. Chrysler, 150 F.3d 1011, 1019 (9th Cir. 1998)). To the contrary, one

20 shared legal issue can be sufficient. See, e.g., Walters, 145 F.3d at 1046 (“What makes the

21 plaintiffs’ claims suitable for a class action is the common allegation that the INS’s procedures
22
provide insufficient notice.”); Rodriguez v. Hayes, 591 F.3d 1105, 1122 (9th Cir. 2010) (“[T]he
23
24 commonality requirement asks us to look only for some shared legal issue or a common core of
25 facts.”).

26

“Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the

27 same injury.’” Wal-Mart, 131 S. Ct. at 2551. In determining that a common question of law exists,

28
MOT. CLASS CERT. - 15 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 16 of 22

the putative class members’ claims “must depend upon a common contention” that is “of such a
1
2 nature that it is capable of classwide resolution—which means that determination of its truth or

3 falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.

4 Thus, “[w]hat matters to class certification is not the raising of common ‘questions’ . . . but, rather
5
the capacity of a class wide proceeding to generate common answers apt to drive the resolution of
6
7 the litigation.” Id. (internal citation and quotation marks omitted).

8

Here, Plaintiffs and the proposed class members all suffer from the same injury caused by the

9 uniform policies and practices of Defendants denying them an opportunity to seek release on bond or
10
conditional parole. The class limits membership to persons detained in the Western District of
11
Washington who have been or will be harmed by the application of one of the challenged policies
12
13 and practices to their cases. Consequently, the common question of law for each is whether the

14 policy and practice violates the relevant statute and Constitution. Should Plaintiffs prevail, all who

15 fall within the class and subclasses will benefit, in that they will be entitled to an individualized bond

16
hearing. Thus, a common answer as to the legality of each challenged policy and practice “will
17
drive the resolution of the litigation.” Ellis, 657 F.3d at 981 (citing Wal-Mart, 131 S. Ct. at 2551).
18

19

Although factual variations in individual cases may exist, these are insufficient to defeat

20 commonality. Califano v. Yamasaki, 442 U.S. 682, 701 (1979) (“It is unlikely that differences in the

21 factual background of each claim will affect the outcome of the legal issue.”); Walters, 145 F.3d at
22
1046 (“Differences among the class members with respect to the merits of their actual document
23
24 fraud cases, however, are simply insufficient to defeat the propriety of class certification”). Rather,
25 the legal policies and practices challenged here apply equally to all class members regardless of any

26 other factual differences. For this reason, questions of law are particularly well-suited to resolution

27 on a class-wide basis because “the court must decide only once whether the application” of

28
MOT. CLASS CERT. - 16 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 17 of 22

Defendants’ policies and practices “does or does not violate” the law. Troy, 276 F.R.D. 642, 654;
1
2 see also LaDuke v. Nelson, 762 F.2d 1318, 1332 (9th Cir. 1985) (holding that the constitutionality of

3 an INS procedure “plainly” created common questions of law and fact). As such, resolution on a

4 class-wide basis also serves a purpose behind the commonality doctrine: practical and efficient case

5
management. Rodriguez, 591 F.3d at 1122.
6

3. The Claims of the Named Plaintiffs are Typical of the Claims of the Members of

7

the Proposed Class.

8

Rule 23(a)(3) specifies that the claims of the representatives must be “typical of the claims ...

9
of the class.” Meeting this requirement usually follows from the presence of common questions of
10

11 law. Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 157 n.13 (1982). To establish

12 typicality, “a class representative must be part of the class and possess the same interest and suffer

13 the same injury as the class members.” Id. at 154. As with commonality, factual differences among
14
class members do not defeat typicality provided there are legal questions common to all class
15
members. La Duke, 762 F.2d at 1332 (“The minor differences in the manner in which the
16
17 representative’s Fourth Amendment rights were violated does not render their claims atypical of

18 those of the class.”); Smith v. U. of Wash. Law Sch., 2 F. Supp. 2d 1324, 1342 (W.D. Wash. 1998)

19 (“When it is alleged that the same unlawful conduct was directed at or affected both the named

20
plaintiff and the class sought to be represented . . . typicality . . . is usually satisfied, irrespective of
21
varying fact patterns which underlie individual claims.” (citation omitted)).
22

23

The claims of the named Plaintiffs are typical of the claims of the proposed class. All

24 Plaintiffs represent the proposed class as all have been denied the opportunity to seek release from

25 immigration custody pending the resolution of their lengthy civil proceedings, despite the fact that

26
they were not taken into immigration custody at the time of their release from criminal custody for
27

28 an offense referenced in § 1226(c)(1). See Exhs. F, G, H (Immigration Records demonstrating

MOT. CLASS CERT. - 17 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400

SEATTLE, WA 98104

TELEPHONE (206) 957- 8611

FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 18 of 22

Plaintiffs subject to mandatory detention under § 1226(c)). Thus Plaintiffs, like all members of the
1
2 proposed class, seek declaratory and injunctive relief from this Court clarifying that they are not

3 subject to § 1226(c), and consequently, ICE and if needed, EOIR, must determine whether they

4 should be released on bond or conditional parole.
5
Because the named Plaintiffs and the proposed class are united in their interest and injury and
6
7 raise common legal claims, the element of typicality is met.

8

4. The Named Plaintiffs Will Adequately Protect the Interests of the Proposed

Class and Counsel are Qualified to Litigate this Action.

9

10

Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the

11 interests of the class.” “Whether the class representatives satisfy the adequacy requirement depends

12 on ‘the qualifications of counsel for the representatives, an absence of antagonism, a sharing of

13
interests between representatives and absentees, and the unlikelihood that the suit is collusive.’”
14
Walters, 145 F.3d at 1046 (citation omitted).
15

16

a. Named Plaintiffs

17

The named Plaintiffs will fairly and adequately protect the interests of the proposed class

18 because they seek relief on behalf of the class as a whole and have no interest antagonistic to other
19
members of the class. Their mutual goal is to declare Defendants’ challenged policies and practices
20
unlawful and to enjoin further violations. The interest of the class representatives are not
21
22 antagonistic to those of the proposed class members, but in fact coincide.

23

All of the Plaintiffs are persons detained at the NWDC while in civil removal proceedings,

24 who have been unlawfully declared to be subject to the mandatory detention provision even though
25
they were not taken into immigration custody upon the release from criminal custody for an offense
26
27 enumerated under § 1226(c). See Exhs. F, G, H. All Plaintiffs contend that Defendants’ policies and

28 practices interpreting and applying the mandatory detention provision to them violate the statute and

MOT. CLASS CERT. - 18 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400

SEATTLE, WA 98104

TELEPHONE (206) 957- 8611

FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 19 of 22

implementing regulations, and the U.S. Constitution and all seek a bond hearing under § 1226(a).
1
2 Thus, in each case their respective goals are the same.

3

b. Counsel

4

The adequacy of Plaintiffs’ counsel is also satisfied here. Counsel are deemed qualified

5
when they can establish their experience in previous class actions and cases involving the same area
6

7 of law. Lynch v. Rank, 604 F. Supp. 30, 37 (N.D. Cal. 1984), aff'd 747 F.2d 528 (9th Cir. 1984),

8 amended on rehearing, 763 F.2d 1098 (9th Cir. 1985); Marcus v. Heckler, 620 F. Supp. 1218, 1223-

9 24 (N.D. Ill. 1985); Adams v. Califano, 474 F. Supp. 974, 979 (D. Md. 1979), aff'd without opinion,
10
609 F.2d 505 (4th Cir. 1979).
11
Plaintiffs are represented by Northwest Immigrant Rights Project, the ACLU Immigrants’
12
13 Rights Project, the ACLU of Washington State, and a private law firm that specializes in

14 immigration litigation. Counsel are able and experienced in protecting the interests of noncitizens

15 and, among them, have considerable experience in handling complex and class action litigation,
16
including litigation on behalf of immigration detainees. See Exh. I (Declarations of Matt Adams,
17
Chris Strawn, Sarah Dunne, Robert Pauw, and Devin Theriot-Orr). Counsel are able to demonstrate
18
19 that they are counsel of record in numerous cases focusing on immigration law that successfully

20 obtained class certification and class relief. In sum, Plaintiffs’ counsel will vigorously represent

21 both the named and absent class members.

22
B.
23

THIS ACTION SATISFIES THE REQUIREMENTS OF RULE 23(b)(2) OF THE FEDERAL RULES OF CIVIL PROCEDURE.

24

In addition to satisfying the four requirements of Rule 23(a), Plaintiffs also must meet one of

25
the requirements of Rule 23(b) for a class action to be certified. This action meets the requirements
26

27 of Rule 23(b)(2), namely “the party opposing the class has acted or refused to act on grounds

28 generally applicable to the class, thereby making appropriate final injunctive relief or corresponding

MOT. CLASS CERT. - 19 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400

SEATTLE, WA 98104

TELEPHONE (206) 957- 8611

FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 20 of 22

declaratory relief with respect to the class as a whole.” Plaintiffs challenge—and seek declaratory
1
2 and injunctive relief from—systemic policies and practices that deny them the right to seek release

3 from immigration custody, creating tremendous hardship as they are forced to sit in detention

4 separated from their families, homes and employment for months and sometimes even years. See
5
Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1195 (9th Cir. 2001) (finding certification
6
7 under Rule 23(b)(2) appropriate “where the primary relief sought is declaratory or injunctive.”).

8

In this case, Defendants have created and applied policies and practices that deny the same

9 relief to all proposed class members. The class describes a group of persons detained at the NWDC
10
who have been or will be subjected to Defendants’ unlawful policies and practices denying them
11
their statutory and regulatory right to seek release from immigration custody pending resolution of
12
13 their removal cases, a benefit for which they would otherwise be eligible. 8 U.S.C. § 1226; 8 C.F.R.

14 § 236.1; 8 C.F.R. § 1236.1.

15

The fact that Defendants’ polices and practices are predicated upon the BIA’s decision in

16
Rojas further demonstrates that Defendants have acted “on grounds generally applicable to the class,
17
thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to
18

19 the class as a whole.” Hence, the first requirement of Rule 23(b)(2) is met.

20

IV. CONCLUSION

21

Plaintiffs respectfully request that the Court grant this motion and enter the attached order

22
certifying this challenge to mandatory, no-bond detention as a class action and defining the class as
23

24 set forth in Section I of this Motion.

25

26

27

28
MOT. CLASS CERT. - 20 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 21 of 22

Dated this 1st day of August, 2013.
1
2 Respectfully submitted,

3 s/ Matt Adams

Matt Adams, WSBA No. 28287 4 Christopher Strawn, WSBA No. 32243

5 NORTHWEST IMMIGRANT

RIGHTS PROJECT

6 615 2nd Avenue, Suite 400

7

Seattle, WA 98104 (206) 587-4009 ext. 111

8 (206) 587-4025 (Fax)

matt@nwirp.org

9 chris@nwirp.org

10
Betsy Tao 11 NORTHWEST IMMIGRANT
RIGHTS PROJECT 12 1331 G Street NW, Suite 200 13 Tacoma, WA 98402
(206) 957-8647 14 (206) 383-0111 (Fax)
betsy@nwirp.org
15

16 Michael Tan ACLU IMMIGRANTS’ RIGHTS PROJECT

17 39 Drumm Street

San Francisco, CA 94709 18 (415) 343-0779

19 (415) 395-0950 (Fax) mtan@aclu.org

20

Judy Rabinovitz 21 Sarah Mehta

22 ACLU IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th floor
23 New York, NY 10004

24

(212) 549-2618 (212) 549-2654 (Fax)

25 jrabinovitz@aclu.org
smehta@aclu.org
26

27

28
MOT. CLASS CERT. - 21 of 22

Robert Pauw Devin Theriott-Orr GIBBS HOUSTON PAUW 1000 Second Avenue, Suite 1600 Seattle, WA 98104 (206) 224-8790 (206) 689-2270 (Fax) rpauw@ghp-law.net Sarah Dunne ACLU OF WASHINGTON 99 Chauncy Street, Suite 500 Seattle, WA 98104 (206) 357-0700 x. 331 (617) 357-0777 (Fax) sarah@aclu-wa.org
NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

Case 2:13-cv-01367 Document 2 Filed 08/01/13 Page 22 of 22

CERTIFICATE OF SERVICE
1

2

RE: Bassam Yusuf Khoury, et al., v. U.S. Immigration & Customs Enforcement, et al.

Case No.

3

4

I, Matt Adams, am an employee of Northwest Immigrant Rights Project. My business

5
address is 615 Second Ave., Ste. 400, Seattle, Washington, 98104. I hereby certify that on August 1,
6

7 2013, I electronically filed the foregoing motion and proposed order with the Clerk of the Court

8 using the CM/ECF system which will send notification of such filing to all registered partiers. In

9 addition I sent two copies by U.S. first class mail postage prepaid, to each of the following:

10
U.S. Attorney, W.D. Washington

11

700 Stewart Street, Suite 5220

Seattle, WA 98101
12

13

Office of the General Counsel

U.S. Department of Homeland Security

14

Mail Stop 3650

Washington, DC 20528
15

16

Eric H. Holder, Jr.

Attorney General

17

U.S. Department of Justice

950 Pennsylvania Avenue, NW

18

Washington, DC 20530-0001

19
Executed in Seattle, Washington, on August 1, 2013.
20

21 s/ Matt Adams

22 Matt Adams, WSBA No. 28287

NORTHWEST IMMIGRANT

23 RIGHTS PROJECT

24

615 2nd Avenue, Suite 400 Seattle, WA 98104

25 (206) 587-4009 ext. 111

(206) 587-4025 (Fax)

26

27

28
MOT. CLASS CERT. - 22 of 22

NORTHWEST IMMIGRANT RIGHTS PROJECT 615 SECOND AVE., STE. 400 SEATTLE, WA 98104 TELEPHONE (206) 957- 8611 FAX (206) 587-4025

 
 HONORABLE RICHARD A. JONES 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE 9

BASSAM YUSUF KHOURY, et al., 10

Plaintiffs, 11

CASE NO. C13-1367RAJ

v. 12

ORDER

NATHALIE ASHER, et al., 13

Defendants. 14

15

I. INTRODUCTION

16

This matter comes before the court on three motions: Plaintiffs’ motion to certify

17 a class, their motion for a preliminary injunction on behalf of that class, and Defendants’

18 motion to dismiss for failure to state a claim. Although the parties requested oral

19 argument, oral argument is unnecessary as to the rulings the court makes in this order.

20 For the reasons stated below, the court GRANTS Plaintiffs’ motion for class certification

21 (Dkt. # 2) and DENIES Defendants’ motion to dismiss (Dkt. # 28). The court directs the

22 clerk to TERMINATE Plaintiffs’ motion for a preliminary injunction. Dkt. # 14. The

23 parties shall meet and confer in accordance with this order to determine if Plaintiffs are

24 satisfied that the declaratory relief that the court issues today will suffice to afford

25 complete relief to Plaintiffs and the class they represent. If necessary, the court will

26 conduct a hearing to determine whether to impose a permanent injunction to ensure that

27 Defendants heed the court’s declaratory ruling.

28 ORDER – 1

1 A.
2

II. BACKGROUND
Plaintiffs Were Each Subject to Mandatory Detention As a Result of the Department of Homeland Security’s Interpretation of 8 U.S.C. § 1226(c).

3

The federal government routinely locks away certain aliens who are in removal

4 proceedings, denying them bond hearings via the so-called “mandatory detention”

5 authority in a provision of the Immigration and Naturalization Act (“INA”). 8 U.S.C.

6 § 1226(c)(2). Department of Homeland Security (“DHS”) officials arrest these aliens;

7 the Department of Justice immigration courts who oversee the confinement of aliens deny

8 them bond hearings. In the government’s view, an alien who has committed an offense

9 on a list at § 1226(c)(1) is subject to mandatory detention pending the resolution of

10 removal proceedings. There can be no serious question that some of these aliens present

11 no risk to their communities and no risk of flight, because some of them have been living

12 in this country for decades and have families and careers. What the government thinks

13 about a law that locks away peaceable family members without release, the court can

14 only guess. What is certain is that the government takes the position that Congress tied

15 its hands when it enacted the mandatory detention scheme. It asserts that it must detain

16 these aliens without bond, regardless of whether that is remotely sensible immigration

17 policy. But this case is not about whether mandatory detention makes sense; it is about

18 whether the government properly interprets the detention mandate of § 1226(c). The

19 government’s interpretation follows the interpretation of the Board of Immigration

20 Appeals (“BIA”) in In re Rojas, 23 I. & N. Dec. 117, 125 (BIA 2001), where the BIA

21 determined that any alien who had committed a listed offense was subject to mandatory

22 detention pending the completion of removal proceedings.

23

The Plaintiffs in this case are aliens who DHS locked away in the Northwest

24 Detention Center (“NWDC”), an alien detention facility located in this judicial district.

25 DHS locked Bassam Yusuf Khoury away in April 2013, and did not release him on bond

26 until October 2013. DHS locked Alvin Rodriguez Moya away in April 2013, and did not

27 release him on bond until October 2013. DHS locked Pablo Carrera Zavala away in

28 ORDER – 2

1 April 2013 and released him on bond in August 2013 after it decided that he was not

2 actually subject to mandatory detention. Asher Decl. (Dkt. # 36-1) ¶ 9. DHS

3 commenced removal proceedings for each Plaintiff at about the time it took them into

4 custody. So far as the court is aware, those proceedings have not reached a resolution

5 even though they have been pending for nearly a year.

6

At the risk of understatement, the court observes that locking people up without

7 bond hearings presents substantial Due Process concerns. The Supreme Court has held

8 that the mandatory detention scheme of § 1226(c) is not a per se violation of the Due

9 Process Clause of the Fifth Amendment. Demore v. Kim, 538 U.S. 510, 531 (2003). The

10 Court grounded its holding, however, in its view that the average period of mandatory

11 detention would be six weeks (the average time to complete removal proceedings in

12 which the alien did not appeal) or “about five months” (in the event that the alien

13 appealed an adverse removal ruling). Id. at 530. In Rodriguez v. Robbins, 715 F.3d

14 1127, 1137 (9th Cir. 2013), the court detailed Ninth Circuit rulings establishing that

15 “Demore’s holding is limited to detentions of brief duration.” In light of those rulings,

16 the Rodriguez court upheld an injunction requiring aliens subject to mandatory detention

17 within the Central District of California to receive a bond hearing within six months, and

18 to be released on bond unless the government demonstrates that the alien presents a

19 danger to the community or a risk of flight. Id. at 1131. It the government’s apparent

20 deference to Rodriguez and the precedent cited therein that allowed Mr. Khoury and Mr.

21 Rodriguez to win release on bond after six months of mandatory detention.

22

Release after six months of mandatory detention is better than no release at all, but

23 Plaintiffs argue that it is unlawful nonetheless. To understand their argument and the

24 government’s counterargument, the court considers in detail Plaintiffs’ encounters with

25 the mandatory detention scheme of § 1226(c).

26

27

28 ORDER – 3

1

Each Plaintiff committed a state crime, was convicted, and served his sentence.

2 Each was released. Each returned to his family and community. Each was arrested years

3 later by agents from Immigration and Customs Enforcement (“ICE”), an agency within

4 DHS. Mr. Khoury, a native of Palestine and lawful permanent resident of the United

5 States since 1976, was released from state custody in June 2011 after serving a 30-day

6 sentence on a drug charge. ICE agents arrested him in April 2013. Mr. Rodriguez, a

7 native of the Dominican Republic and a lawful permanent resident of the United States

8 since 1995, served the non-suspended portion of a three-year sentence on a drug charge

9 and was released in August 2010. ICE agents arrested him in April 2013. Mr. Carrera, a

10 native of Mexico who has lived in the United States since 1998, finished a 60-day

11 sentence in February 2003. ICE agents arrested him in April 2013.

12

No one disputes, at least for purposes of this case, that Plaintiffs were deemed

13 removable for committing crimes within the scope of 8 U.S.C. § 1226(c), the subsection

14 of the INA that authorizes mandatory detention. Congress amended § 1226 as part of the

15 Illegal Immigration Reform and Immigration Responsibility Act of 1996. In section 303

16 of that Act, it revised the existing detention scheme for aliens subject to removal and

17 imposed a mandatory detention requirement for some of those aliens. It allowed for a

18 transition period to implement mandatory detention. After two years in which the

19 government operated under transitional rules, § 1226(c) took effect in 1998. Saysana v.

20 Gillen, 590 F.3d 7, 10 n.2 (1st Cir. 2009). Its first paragraph provides as follows:

21

(1) Custody

22

The Attorney General1 shall take into custody any alien who—

23

(A) is inadmissible by reason of having committed any offense

24

covered in section 1182(a)(2) of this title,

25

26 1 The Secretary of Homeland Security is now the official who bears the duties that Congress

27

assigned to the Attorney General in § 1226(c). See 6 U.S.C. § 557 (describing catchall transferof-duty to Secretary of Homeland Security in the wake of the creation of that Department).

28 ORDER – 4

1

(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

2

this title,

3

(C) is deportable under section 1227(a)(2)(A)(i) of this title on the

basis of an offense for which the alien has been sentence[d] to

4

a term of imprisonment of at least 1 year, or

5

(D) is inadmissible under section 1182(a)(3)(B) of this title or

6

deportable under section 1227(a)(4)(B) of this title,

7

when the alien is released, without regard to whether the alien is

released on parole, supervised release, or probation, and without

8

regard to whether the alien may be arrested or imprisoned again for

9

the same offense.

10 That Mr. Rodriguez and Mr. Khoury committed an offense listed in subparagraphs (A)

11 through (D) is not in dispute, at least not in this case. DHS’s initial determination that

12 Mr. Carrera committed one of those offenses was apparently an error, albeit one that

13 DHS did not correct until Mr. Carrera had been confined for four months.

14

The first paragraph of § 1226(c) does not mandate detention without bond. The

15 next paragraph does, at least in some circumstances:

16

(2) Release

17

The Attorney General may release an alien described in paragraph

(1) only if the Attorney General decides [that the alien’s release is

18

necessary to protect a witness in a major criminal investigation].

19 In other words, unless he meets an exceedingly narrow witness-protection exception that

20 is not at issue in this case, every alien “described in paragraph (1)” is statutorily ineligible

21 for release from DHS custody in advance of the resolution of his removal proceedings.

22

By contrast, § 1226 ensures that all aliens who are not “described in paragraph

23 (1)” are eligible for release on bond. Its first paragraph declares that “an alien may be

24 arrested and detained pending a decision on whether the alien is to be removed from the

25 United States,” but elaborates that “except as provided in subsection (c),” aliens detained

26 pending removal may be released on bond or conditional parole. § 1226(a)(2).

27

28 ORDER – 5

1

Plaintiffs contend that they are not subject to mandatory detention because they

2 are not aliens “described in paragraph (1)” because ICE agents took them into custody

3 well after their release from state custody, not “when [they were] released,” as paragraph

4 (1) requires. In their view, mandatory detention in accordance with § 1226(c)(2) is

5 available only for aliens who have committed an offense described in paragraphs (A)

6 through (D) and who were taken into ICE custody immediately upon their release from

7 state custody. DHS disagrees, taking the position that § 1226(c) mandates detention of

8 any alien who committed an offense described in paragraphs (A) through (D), regardless

9 of when ICE took the alien into custody.

10 B. Plaintiffs’ Statutory Interpretation Claim Is Ripe for a Final Ruling.

11

Before considering the merits of each party’s interpretation of § 1226, the court

12 reviews the procedural posture of this action.

13

Plaintiffs sued the Secretary of Homeland Security, a host of ICE officials

14 responsible for detaining aliens in the Western District of Washington, and the warden at

15 the NWDC. In addition, they sued the Attorney General in his capacity as head of the

16 Department of Justice, as well as the Director of the Executive Office for Immigration

17 Review (“EOIR”). The EOIR encompasses both the BIA, which is the Justice

18 Department agency responsible for interpreting and applying immigration laws, as well

19 as the immigration courts who preside over alien bond hearings. The Department of

20 Justice and EOIR are Defendants because they abet DHS’s execution of its interpretation

21 of mandatory detention. Although aliens in mandatory detention are not entitled to bond

22 hearings, they may receive hearings before an immigration judge where they can contest

23 whether they are properly subject to mandatory detention. 8 C.F.R. § 1003.19(h)(2)(ii);

24 In re Joseph, 22 I. & N. Dec. 799, 805 (BIA 1999) (explaining that the “purpose of the

25 regulation . . . is to provide an alien . . . with the opportunity to offer evidence and legal

26 authority on the question whether [DHS] has properly included him within a category

27 that is subject to mandatory detention”). Each of the three Plaintiffs appeared at this

28 ORDER – 6

1 hearing, each argued that he was not subject to mandatory detention because DHS did not

2 take him into custody when he was released from state custody, and each received a

3 ruling from an immigration judge that he was nonetheless subject to mandatory detention.

4 Throughout this order, the court uses the term “the government” to apply to Defendants

5 collectively.

6

Plaintiffs styled their suit as both a petition for writs of habeas corpus on their own

7 behalf and as a suit for declaratory and injunctive relief not only on their own behalf, but

8 on behalf of a class of all aliens who are or will be detained without bond as a result of

9 the government’s expansive view of § 1226(c) mandatory detention. They stated two

10 claims for relief: one that the government violates § 1226(c) by subjecting them to

11 mandatory detention; and one that mandatory detention, as the government envisions it,

12 violates the Due Process Clause.

13

Plaintiffs have not only filed a motion to certify that class, but also a motion for a

14 preliminary injunction that would require the government to provide bond hearings in

15 accordance with § 1226(a) within 30 days of an alien’s arrest. A motion for a

16 preliminary injunction requires, among other things, that the Plaintiffs demonstrate that

17 they are likely to succeed on the merits of their claims. The government, not content

18 simply to argue in opposition to the injunction motion that Plaintiffs are unlikely to

19 succeed on the merits, filed a motion to dismiss Plaintiffs’ suit for failure to state a claim.

20 Plaintiffs countered by moving for summary judgment and a permanent injunction. The

21 government was prepared to file a cross-motion for summary judgment before the parties

22 reconsidered their more-motions-are-better approach. They agreed that this case turns

23 not on disputed facts, but on a “pure question of law” – specifically the interpretation of

24 § 1226(c). Gov’t Mot. (Dkt. # 37) at 3. The parties further agreed that unless the court

25 found a dispute of material fact, it could enter permanent injunctive relief if it resolved

26 that pure question of law in Plaintiffs’ favor. Oct. 7, 2013 ord. (Dkt. # 38).

27

28 ORDER – 7

1

The parties focus virtually all of their attention on Plaintiffs’ claim that DHS

2 misinterprets § 1226(c). In their motion to dismiss, Defendants made a cursory effort to

3 target Plaintiffs’ Due Process claim, contending that Demore has put that claim to rest.

4 Plaintiffs scarcely responded. Although the parties were never explicit, it is possible that

5 their agreement to focus on the “pure issue of law” that their statutory interpretation

6 dispute raises represents an agreement to leave Plaintiffs’ Due Process claim for another

7 day. In any event, the parties have done so little to address that claim that the court will

8 not address its merits. For the remainder of this order, the court will ignore Plaintiff’s

9 Due Process claim and treat this case as if it raised only a challenge to the government’s

10 interpretation of § 1226(c). This order will conclude with instructions to Plaintiffs to

11 indicate whether they still wish to pursue their Due Process claim.

12

The procedural route to relief thus cleared of obstacles, the court now turns to the

13 issue at the heart of this case: does § 1226(c) permit the government to subject to

14 mandatory detention aliens who it arrested months, years, or (in Mr. Carrera’s case) more

15 than a decade after their release from state custody?

16

III. ANALYSIS

17 A. 18

Section 1226(c)(2) Unambiguously Conditions Mandatory Detention on DHS Custody That Commences Immediately Upon the End of Non-DHS Custody.
The interpretation of a statute is a question of law whose answer begins with an

19 examination of the plain meaning of the statute. United States v. Gomez-Osorio, 957

20 F.2d 636, 639 (9th Cir. 1992). Words in a statute take on their “ordinary, contemporary,

21 common meaning,” unless the statute otherwise defines them. Miranda v. Anchondo, 684

22 F.3d 844, 849 (9th Cir. 2012) (citation omitted). The court must read the words of a

23 statute “in their context and with a view to their place in the overall statutory scheme.”

24 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2001); see also United

25 States v. Morton, 467 U.S. 822, 828 (1984) (“[W]e do not . . . construe statutory phrases

26 in isolation; we read statutes as a whole.”). If the statutory language is unambiguous, and

27

28 ORDER – 8

1 the statutory scheme is coherent and consistent, that is the end of the court’s

2 interpretative inquiry. Miranda, 684 F.3d 844, 849 (9th Cir. 2012). The parties debate to

3 what extent the court must defer to the BIA’s interpretation of § 1226(c) in Rojas. But it

4 is settled that a court owes no deference to any agency’s statutory interpretation unless

5 the statute fails to clearly express the intent of Congress. Chevron USA, Inc. v. Natural

6 Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); INS v. Cardoza-Fonseca, 480 U.S.

7 421, 447-48 (1987) (“The judiciary is the final authority on issues of statutory

8 construction and must reject administrative constructions which are contrary to clear

9 congressional intent.”).

10

There are two potential ambiguities in § 1226(c). One is the meaning of the

11 phrase “when the alien is released” in § 1226(c)(1). That phrase might mean something

12 akin to “at the moment of release.” It might also mean “at any time after release.” The

13 other potential ambiguity arises from the interrelationship of paragraphs (1) and (2) of

14 § 1226(c). Paragraph (2), which is the sole authority for mandatory detention, applies

15 only to “an alien described in paragraph (1).” If an alien “described in paragraph (1)” is

16 merely an alien who has committed one of the offenses listed in subparagraphs (1)(A)

17 through (1)(D), then mandatory detention is available regardless of when DHS takes an

18 alien into custody. That was the view of the BIA in Rojas. But if an alien “described in

19 paragraph (1)” is an alien who has both committed one of the enumerated offenses and

20 has been taken into DHS custody “when . . . released” from non-DHS custody, the timing

21 of the DHS arrest (and the meaning of “when . . . released”) is critical to determining

22 whether the alien is subject to mandatory detention. As the court will soon discuss,

23 neither of these potential ambiguities is an actual ambiguity: the meaning of both phrases

24 is plain in the context of § 1226.

25

26

27

28 ORDER – 9

1. No Binding Precedent Dictates this Court’s Interpretation of § 1226(c),

1

But Many Courts Have Considered the Issue.

2

In considering these potential ambiguities, the court does not write on a blank

3 slate. The Ninth Circuit, unfortunately, has yet to interpret § 1226 in a manner that bears

4 on its interpretation in this case. Three other federal appeals courts have. Two of them,

5 in turn, have at least acknowledged the BIA’s 2001 interpretation in Rojas. There, a

6 majority of the en banc BIA concluded that the phrase “an alien described in paragraph

7 (1)” includes only those aliens described in subparagraphs (1)(A) through 1(D). 23 I. &

8 N. Dec. at 125. The BIA did not decide what “when . . . released” means.

9

In Hosh v. Lucero, 680 F.3d 375, 378 (4th Cir. 2012), the Fourth Circuit purported

10 to defer to the BIA’s interpretation of § 1226 in Rojas. But it did not. Instead, it

11 interpreted the meaning of “when the alien is released,” concluding that although the

12 command to arrest certain criminal aliens “‘when . . . released’ from other custody

13 connotes some degree of immediacy,” it could not “conclude that Congress clearly

14 intended to exempt a criminal alien from mandatory detention and make him eligible for

15 release on bond if the alien is not immediately taken into federal custody.” Id. at 381

16 (emphasis in original). Alternatively, the Hosh court concluded that even if it were to

17 interpret “when . . . released” more stringently, § 1226(c) specifies no consequence for a

18 failure to arrest an alien “when . . . released,” and thus does not prohibit mandatory

19 detention for qualifying aliens arrested after their release from non-DHS custody. Id. at

20 381 (“[E]ven if we assume that the statute commands federal authorities to detain

21 criminal aliens at their exact moment of release from other custody, we still conclude that

22 a criminal alien who is detained after that exact moment is not exempt from mandatory

23 detention.”) (emphasis in original).

24

In Sylvain v. Attorney General of the United States, 714 F.3d 150 (3d Cir. 2013),

25 the Third Circuit focused its attention on whether § 1226(c) conditions mandatory

26 detention on the timing of an alien’s arrest. It concluded that it does not. Id. at 157

27 (“Even if the statute calls for detention ‘when the alien is released,’ . . . nothing in the

28 ORDER – 10

1 statute suggests that immigration officials lose authority if they delay.”). It noted that the

2 Hosh court had not deferred to the BIA’s interpretation of “an alien described in

3 paragraph (1)” in Rojas, and had instead crafted its own interpretation of “when . . .

4 released” in § 1226(c)(1). Sylvain, 714 F.3d at 157 n.9.

5

Before Sylvain and Hosh addressed the issue at the heart of this case, the First

6 Circuit addressed a different interpretative question arising from § 1226(c) in Saysana v.

7 Gillen, 590 F.3d 7 (1st Cir. 2009). The Saysana court rejected the BIA’s determination

8 that an alien released from custody for an offense described in subparagraphs (1)(A)

9 through (1)(D) before the effective date of § 1226(c) could nonetheless be subject to

10 mandatory detention if he was released after the effective date from custody for an

11 offense beyond the scope of those subparagraphs. Id. at 18. As the court will later

12 discuss, in reaching that conclusion, the Saysana court interpreted § 1226(c) in a way that

13 implicitly rejects the BIA’s holding in Rojas. Indeed, even the BIA, which issued the

14 decision that led to the First Circuit’s ruling, interpreted § 1226(c) in a way that implicitly

15 rejects its holding in Rojas.

16

While the Ninth Circuit has yet to address the interpretation of § 1226(c), its

17 district courts have resoundingly rejected the government’s position. From the enactment

18 of § 1226(c) in 1996 to the present, almost every district court to consider that position –

19 that the government can arrest aliens who have committed an offense described in

20 § 1226(c)(1) whenever it prefers and subject them to mandatory detention – has rejected

21 it. The Honorable William J. Dwyer of this District was among the first to consider the

22 issue, albeit in the context of transitional rules that applied between the enactment of

23 § 1226(c) in 1996 and its effective date in 1998. Pastor-Camarena v. Smith, 977 F.

24 Supp. 2d 1415 (W.D. Wash. 1997). He concluded that the transitional rules made

25 mandatory detention applicable only to aliens taken into federal custody immediately

26 after their release from non-federal custody. Id. at 1418. Since then, every judge in this

27 District has reached the same conclusion as to § 1226(c). E.g., Quezada Bucio v. Ridge,

28 ORDER – 11

1 317 F. Supp. 2d 1221, 1231 (W.D. Wash. 2004) (“[T]he mandatory detention statute . . .

2 does not apply to aliens who have been taken into immigration custody several months or

3 several years after they have been released from state custody.”) (Theiler, M.J.); Castillo

4 v. ICE Field Office Dir., 907 F. Supp. 2d 1235, 1240 (W.D. Wash. 2012) (reaching same

5 conclusion, declining to follow Hosh) (Pechman, J.); Deluis-Morelos v. ICE Field Office

6 Dir., No. C12-1905JLR, 2013 U.S. Dist. LEXIS 65862, at *13, 22 (W.D. Wash. May 8,

7 2013) (reaching same conclusion, declining to follow Hosh or Sylvain). Other district

8 courts in the Ninth Circuit are in accord. E.g., Mejia Espinoza v. Aitken, No. 5:13-cv-

9 512EJD, 2013 U.S. Dist. LEXIS 34919, at *13-16, 21 (N.D. Cal. Mar. 13, 2013) (citing

10 various district court rulings). The court is aware of just one district court within the

11 Ninth Circuit who has ruled to the contrary. Quiroz Gutierrez v. Holder, No. 13-cv-

12 5478-JST, 2014 U.S. Dist. LEXIS, at *24-25 (N.D. Cal. Jan. 2, 2014) (following

13 Sylvain). Although district courts outside the Ninth Circuit have usually rejected the

14 government’s position, some have not. See Sylvain, 714 F.3d at 156 & n.5-6 (listing

15 district courts around the country who have adopted or rejected government’s view of

16 mandatory detention); Gordon v. Johnson, No. 13-cv-30146-MAP, 2013 U.S. Dist.

17 LEXIS 181980, at *22 (D. Mass. Dec. 31, 2013) (citing cases).

18

Considering the foregoing precedent as persuasive authority, and paying particular

19 attention to the views of the First, Third, and Fourth Circuits, the court rules as follows.

20 First, the mandatory detention authority provided in § 1226(c)(2) unambiguously applies

21 only to aliens who have been detained “when . . . released” from state custody. The court

22 does not agree with the BIA’s determination in Rojas that the phrase “alien described in

23 paragraph (1)” is ambiguous, and thus the court does not defer to the BIA’s interpretation

24 of that phrase. Second, an alien is detained “when . . . released” only if DHS detains him

25 immediately upon his release from non-DHS custody for an offense specified in

26 subparagraphs (1)(A) through (1)(D). Third, for any alien taken into federal custody at a

27 time other than “when . . . released” from state custody, § 1226 unambiguously requires

28 ORDER – 12

1 that the alien be given an opportunity to win release on bond. To summarize, only aliens

2 who have both committed an offense specified in subparagraphs (1)(A)-(1)(D) and have

3 been taken into DHS custody immediately upon their release from non-DHS custody for

4 one of those offenses are subject to mandatory detention. The court now explains its

5 conclusions.

6

2. An Alien “Described in Paragraph (1)” is An Alien Who Has Both

Committed a Qualifying Offense and Been Taken Into Federal

7

Custody “When . . . Released” From State Custody.

8

So far as the court is aware, no court has ever adopted the holding from Rojas:

9

We construe the phrasing “an alien described in paragraph (1),” as

10

including only those aliens described in subparagraphs (A) through (D) of

section [1226(c)(1)], and as not including the “when released” clause.

11 23 I & N Dec. at 18. That is with good reason, because Rojas interprets § 1226(c) in a

12 way that makes the release of the alien from non-DHS custody irrelevant. Were Rojas an

13 accurate interpretation of the law, the government could subject to mandatory detention

14 any alien who committed an offense described in subparagraphs (1)(A) through (1)(D).

15 No one, not even the BIA, believes that to be a fair reading of the statute. In In re

16 Saysana, 24 I. & N. Dec. 602, 604 (BIA 2008), the BIA explained as follows:

17 The “released” language of section [1226(c)(1)] of the Act is not expressly

18

tied to any other language that would clarify whether it refers to release

from criminal custody, DHS custody, or some other form of detention.

19

However, we have interpreted this language to include a release from a

20

non-DHS custodial setting after the expiration of the [transitional rules

preceding the effective date of the amendments to § 1226].

21

That explanation was integral to the BIA’s holding that an alien who committed an

22

offense described in subparagraphs (1)(A) through (1)(D) was subject to mandatory

23

detention so long as the government detained him after release from any non-DHS

24

custody, even custody for an offense beyond the scope of those subparagraphs. Id. at

25

608. But if the BIA believed that it correctly interpreted § 1226(c) in Rojas, its ruling in

26 Saysana was unnecessary. If Rojas was rightly decided, then Saysana required nothing

27

28 ORDER – 13

1 more of the BIA than a simple statement that it makes no difference when or whether an

2 alien is released from non-DHS custody or for what crime, because the only precondition

3 to mandatory detention (according to Rojas) is commission of a crime listed in

4 subparagraphs (1)(A) through (1)(D).

5

No court has even suggested that it could decouple mandatory detention from the

6 requirement that an alien first be released from custody. When the First Circuit

7 considered the habeas petition of the alien detained in the wake of Saysana, the court

8 squarely rejected the notion that mandatory detention does not depend on a prior release

9 from custody. The court explained that a “natural reading” of § 1226(c) “makes clear

10 that the congressional requirement of mandatory detention is addressed to the situation of

11 an alien who is released from custody for one of the enumerated offenses [of

12 subparagraphs (1)(A) through (1)(D)].” Saysana, 590 F.3d at 13. Along the way, it

13 rejected the government’s argument that it should be able to detain any alien who

14 committed an offense listed in subparagraphs (1)(A) through (1)(D), even if that offense

15 never resulted in a form of non-DHS custody. Id. at 14. It explained that “the plain

16 language of the statute does not render the term ‘when released’ meaningless as applied

17 to the[] subsections [of § 1226(c)(1)] that do not require a conviction.” Id. The Saysana

18 court recognized that an alien who committed an offense described in subparagraphs

19 (1)(A) through (1)(D) but never came into non-DHS custody would not be subject to

20 mandatory detention. Id. It nonetheless declined to adopt the “strained” reading of the

21 statute that the government preferred. Id.

22

Although the Hosh court purported to follow Rojas, its holding was merely that

23 mandatory detention did not require DHS to “immediately” detain an alien upon his

24 release from non-DHS custody. 680 F.3d at 381. Had Hosh followed Rojas, it would

25 simply have held that release from non-DHS custody is not a precondition of mandatory

26 detention. The Sylvain court, acknowledging that the Hosh court did not actually follow

27

28 ORDER – 14

1 Rojas, declined to “take a stand on th[e]” issue of whether Rojas was rightly decided.

2 714 F.3d at 157 & n.9.

3

This court concludes that § 1226(c) unambiguously conditions the availability of

4 mandatory detention on an alien’s release from non-DHS custody. Rojas is entitled to no

5 deference. An alien “described in paragraph (1)” is an alien who both committed a

6 predicate offense and was taken into DHS custody “when . . . released” from non-DHS

7 custody.

8

3. Mandatory Detention Is Available Only When DHS Takes an Alien

Into Custody Immediately Upon His Release From Non-DHS Custody. 9
Having concluded that an alien’s release from non-DHS custody is a precondition

10 to mandatory detention, it remains to decide what it means that DHS must take the

11 petitioner into custody “when the alien is released.” Reading this phrase without

12

statutory context, it is possible to interpret it in a variety of ways. At one extreme, it

13

could mean “at the moment the alien is released”; at the other, it might mean “at any time

14

after the alien is released.” See, e.g., Gov’t Mot. (Dkt. # 28) at 9 (offering various

15

dictionary definitions of “when”); Hosh, 680 F.3d at 379-80 (reviewing dictionary

16

definitions of “when”). But read in the context of § 1226 as a whole, the latter

17

interpretation cannot stand. The phrase “when . . . released” appears not in a description

18

of conditions of mandatory detention, it appears in a mandate that the government “shall

19

take into custody” any alien who has committed certain offenses. § 1226(c)(1). A

20

mandate is meaningless if those subject to it can carry it out whenever they please. “Take

21

out the trash when you get home,” is not at all the same as “take out the trash at any time

22

after you get home, even months or years later.” The Fourth Circuit recognized as much

23

in Hosh, concluding that the mandate “connotes some degree of immediacy,” 680 F.3d at

24

381, but that it did not require DHS custody to follow immediately after non-DHS

25

custody. This interpretation cannot withstand scrutiny.

26

27

28 ORDER – 15

1

That § 1226(c) mandates detention without bond for certain aliens is proof enough

2 that the mandate requires immediate detention. Many courts considering the import of

3 the mandate have looked to the statute’s legislative history, observing that Congress was

4 concerned that deportable criminal aliens often committed additional crimes before their

5 removal and that many of them failed to appear for removal hearings. See Hosh, 680

6 F.3d at 381 (citing discussion of § 1226(c)’s legislative history from Demore, 538 U.S. at

7 518). But it is not necessary to know why Congress wanted immediate detention of

8 certain aliens without the possibility of bond to know that it did want it. Congress

9 created a non-mandatory detention scheme in § 1226(a). Any deportable alien, including

10 those who committed an offense enumerated in subparagraphs (1)(A) through (1)(D), is

11 subject to non-mandatory detention. That is to say that any alien subject to removal can

12 be taken into custody when DHS prefers. It defies logic to imagine that Congress would

13 have created a parallel system of mandatory detention without bond for certain categories

14 of aliens while permitting the government to give, through inaction, the very

15 unsupervised freedom that the mandate was designed to eliminate. A mandate to take an

16 alien subject to mandatory detention into DHS custody “at some undetermined point after

17 the alien is released from non-DHS custody” is not mandatory detention at all, or at least

18 it is not all the mandatory detention scheme that Congress imposed.

19

Because the court finds that a requirement of anything other than immediate DHS

20 custody following release from non-DHS custody is inconsistent with the mandatory

21 detention scheme that Congress created in § 1226, the court finds that the requirement

22 that the government take custody “when the alien is released” is a requirement for

23 detention immediately following release from non-DHS custody.

24

4. The Statute Recognizes that Ordinary Detention is Sufficient for Aliens

Who Are Not Taken into DHS Custody “When Released” from Non-

25

DHS Custody.

26

In the court’s view, the strongest argument in favor of the broad mandatory

27 detention scheme that the government advocates is one that the Hosh and Sylvain courts

28 ORDER – 16

1 recognized: better late than never. Put in more lawyerly fashion, a mandate that the

2 government shall act at a specified time is not, without more, a prohibition on acting after

3 that time. Sylvain, 714 F.3d at 158. Congress presumably issues mandates for the benefit

4 of a particular segment of the public, and thus it is typically inadvisable to interpret a

5 mandate to deprive that segment of that benefit merely because of “[b]ureaucratic

6 inaction – whether the result of inertia, oversight, or design . . . .” Id. at 158.

7

The so-called “better-late-than-never principle,” Sylvain, 714 F.3d at 158 (quoting

8 United States v. Dolan, 571 F.3d 1022, 1027 (10th Cir. 2009)), is a sensible canon of

9 statutory interpretation when a contrary interpretation would deprive the intended

10 beneficiaries of the benefits of a statute. That is not so in the case of mandatory

11 detention. By failing to detain an alien subject to mandatory detention immediately after

12 his release from non-DHS custody, DHS has already deprived the public of the benefits

13 of mandatory detention. It has allowed an alien to walk free for days, weeks, months, or

14 years, when Congress believes that alien presents such a presumptive risk of danger or

15 flight that he should be immediately confined upon his release from non-DHS custody.

16 Moreover, once an alien has left non-DHS custody, the need for a presumption of danger

17 or risk of flight is reduced or nonexistent. Saysana, 590 F.3d at 17 (“[I]t stands to reason

18 that the more remote in time a conviction becomes and the more time after a conviction

19 an individual spends in a community, the lower his bail risk is likely to be.”). In the time

20 since the alien’s release, he has either evaded custody or he has not, and he has either

21 demonstrated himself to be a danger to the community or he has not. He has, in other 22 words, given either himself or the government the fodder for a bond hearing.2

23

24

2 The government contends that a deportable alien has no incentive to flee until he knows the government has begun removal proceedings against him. That contention presumes that aliens

25

who have committed crimes listed in subparagraphs (1)(A) through (1)(D) are unaware of the potential immigration consequences. The court is unwilling to make that presumption.

26

Moreover, if Congress had wanted to condition mandatory detention upon the commencement or removal proceedings, it certainly could have done so. Instead, it conditioned it upon a release

27

from non-DHS custody. In any event, the government ignores that an alien is as much a danger to the community before removal proceedings have begun as after.

28 ORDER – 17

1 Conditioning mandatory detention on DHS custody immediately upon release from non-

2 DHS custody does not deprive the public of the benefit of detention, because detention

3 remains available via § 1226(a). The DHS’s failure to meet that condition deprives the

4 public of whatever additional benefit inures in mandatory detention.

5

Both the Hosh and Sylvain courts took guidance on their application of the better-

6 late-than-never principle from United States v. Montalvo-Murillo, 495 U.S. 711 (1990).

7 There, the Court considered whether the government lost the authority to detain a

8 criminal defendant without bail when it failed to hold a detention hearing within the time

9 specified by statute. Id. at 714-15. The Court concluded that the mandatory hearing

10 deadline did not “operate to bar all authority to seek pretrial detention once the time limit

11 has passed.” Id. at 718. But consider the distinction between Montalvo-Murillo and this

12 case: in Montalvo-Murillo, the government would have lost all power to detain the

13 defendant before trial; in this case the government loses nothing, it merely has to present

14 its case for pre-removal detention at a bond hearing. The “better-late-than-never”

15 principle is not itself a mandate, it is merely a specific application of the mandate to

16 construe a statute consistent with its design and purpose. See id. at 719. In the context of

17 § 1226, the availability of ordinary bond hearings is a satisfactory alternative to

18 mandatory detention in cases where DHS has already foregone the benefits of mandatory

19 detention through failure to detain the alien upon his release from non-DHS custody.

20

There is little question that Congress was aware that some aliens who commit

21 offenses described in subparagraphs (1)(A) through (1)(D) would avoid mandatory

22 detention and receive ordinary bond hearings. To begin, as even the BIA acknowledges,

23 Congress allowed all aliens who had committed such offenses and been released prior to

24 the 1998 effective date of the amendments to § 1226(c) to avoid mandatory detention.

25 Saysana, 24 I. & N. Dec. at 604; Saysana, 590 F.3d at 17 n.6 (“[I]n crafting the new

26 provisions, Congress . . . made explicit that only releases after the effective date would

27 trigger mandatory detention.”). This is further proof that Congress viewed a release from

28 ORDER – 18

1 non-DHS custody as a prerequisite of mandatory detention, as the court discussed in Part

2 III.A.2, supra. But it also demonstrates that Congress did not view ordinary bond

3 hearings as an invariably unacceptable outcome for aliens who committed the listed

4 crimes. Saysana, 590 F.3d at 17 (“Congress was no doubt aware that, under some

5 circumstances, aliens with criminal histories that predate the passage of IIRIRA remain

6 eligible for forms of relief not available to aliens with more recent criminal

7 convictions.”). Also escaping mandatory detention are aliens who commit offenses

8 described in subparagraphs (1)(A) through (1)(D), but are not taken into non-DHS

9 custody. For example, aliens who engage in terrorism are “inadmissible under section

10 1182(a)(3)(B),” as set out in subparagraph (1)(D). But, if DHS arrests an alien who has

11 “under circumstances indicating an intention to cause death or serious bodily harm,

12 incited terrorist activity,” 8 U.S.C. § 1182(a)(3)(B)(i)(III), before an entity other than the

13 DHS has taken the alien into custody, the alien must receive an ordinary bond hearing.

14 Congress could have avoided this result with ease by declaring that any alien who

15 commits an offense enumerated in subparagraphs (1)(A) through (1)(D) is subject to

16 mandatory detention. Instead, it tied mandatory detention to a release from non-DHS

17 custody. This is proof enough that Congress was not concerned with a comprehensive

18 mandatory detention scheme tied to certain offenses, but rather concerned with creating a

19 scheme that ensured that aliens who committed certain offenses could be transferred

20 seamlessly from non-DHS custody to mandatory detention. See Gordon, 2013 U.S. Dist.

21 LEXIS 181980, at *17 (“The obvious goal was to ensure the direct transfer of potentially

22 dangerous and elusive individuals from criminal custody to immigration authorities.”).

23

For all of these reasons, the court concludes that § 1226(c) unambiguously dictates

24 that only aliens who have committed offenses listed in subparagraphs (1)(A) through

25 (1)(d) and have been taken into DHS custody immediately upon their release from non-

26 DHS custody for one of those offenses are subject to mandatory detention.

27

28 ORDER – 19

B. 1 2

Plaintiffs Have Met the Requirements to Certify a Rule 23(b)(2) Class. Plaintiffs ask the court to certify a class defined as follows:

All individuals in the Western District of Washington who are or will be

3

subject to mandatory detention under 8 U.S.C. § 1226(c) and who were not

4

taken into immigration custody at the time of their release from criminal

custody for an offense referenced in § 1226(c)(1).

5 The court modifies that definition slightly, to emphasize that class members are aliens

6 who the government asserts are subject to mandatory detention, not necessarily aliens

7 who actually are subject to mandatory detention. It also modifies the phrase “at the time

8 of” to emphasize that DHS custody must occur immediately upon release from non-DHS

9 custody.

10

All individuals in the Western District of Washington who the government

11

asserts or will assert are subject to mandatory detention under 8 U.S.C.

12

§ 1226(c) and who were not taken into immigration custody immediately

upon their release from criminal custody for an offense referenced in

13

§ 1226(c)(1).

14

The court’s decision to certify a class is discretionary. Vinole v. Countrywide

15 Home Loans, Inc., 571 F.3d 935, 944 (9th Cir. 2009). Rule 23 of the Federal Rules of

16 Civil Procedure guides the court’s exercise of discretion. A plaintiff “bears the burden of

17 demonstrating that he has met each of the four requirements of Rule 23(a) and at least

18 one of the [three] requirements of Rule 23(b).” Lozano v. AT&T Wireless Servs., Inc.,

19 504 F.3d 718, 724 (9th Cir. 2007). Rule 23(a) requires a plaintiff to demonstrate that the

20 proposed class is sufficiently numerous, that it presents common issues of fact or law,

21 that it will be led by one or more class representatives with claims typical of the class,

22 and that the class representatives will adequately represent the class. Gen. Tel. Co. of the

23 S.W. v. Falcon, 457 U.S. 147, 161 (1982); Fed. R. Civ. P. 23(a)(1)-(4). If a plaintiff

24 satisfies the Rule 23(a) requirements, she must also show that the proposed class action

25 meets one of the three requirements of Rule 23(b). Zinser v. Accufix Research Inst., Inc.,

26 253 F.3d 1180, 1186 (9th Cir. 2001). Plaintiffs in this case invoke only Rule 23(b)(2),

27 which requires them to show that “the party opposing the class has acted or refused to act

28 ORDER – 20

1 on grounds that apply generally to the class, so that final injunctive relief or

2 corresponding declaratory relief is appropriate respecting the class as a whole.”

3

The government scarcely opposes Plaintiffs’ motion for class certification. It does

4 not, for example, dispute that the class is sufficiently numerous. Plaintiffs knew of at

5 least a dozen aliens at the time they moved for class certification who were being

6 detained without a bond hearing as a result of the government’s misinterpretation of

7 § 1226(c). It knew of at least a dozen more who had been wrongfully detained in the past

8 two years. Given that most aliens at the NWDC have no counsel, it is safe to assume that

9 there are many more class members. Moreover, the DHS has done nothing to assure

10 Plaintiffs or the court that it will not continue to take into custody aliens after their release

11 from non-DHS custody and subject them to mandatory detention. The class is

12 sufficiently numerous both as to aliens currently subject mandatory detention at the

13 NWDC and as to aliens who the government will subject to mandatory detention at the

14 NWDC. There is no dispute that the joinder of all of these class members as plaintiffs

15 would be impracticable, as Rule 23(a)(1) requires.

16

Each class member’s statutory claim presents questions of law or fact common to

17 the class. The relevant factual questions are the same for every class member. Is the

18 government holding the alien in mandatory detention (or will it seek to do so)? If so, did

19 the government arrest the alien immediately upon his release from non-DHS custody for

20 an offense described in subparagraphs (1)(A) through (1)(D)? The court has already

21 answered the legal question dispositive of each class member’s claim: may the

22 government lawfully subject to mandatory detention aliens for whom the answer to the

23 second question is “no”?

24

The government also contends that Plaintiffs’ claims (and the defenses to those

25 claims) are not typical of the class. That argument, however, depends on the

26 government’s view that the amount of time between a class member’s release from non-

27 DHS custody and DHS’s eventual arrest of the class member is relevant to whether he is

28 ORDER – 21

1 subject to mandatory detention. It is not. Plaintiffs are typical of class members in the

2 only way that matters: they are in mandatory detention even though DHS did not take

3 them into custody immediately upon their release from non-DHS custody.

4

The government contends that Plaintiffs are inadequate class representatives for

5 the same reason that their claims are allegedly atypical. That contention does not

6 withstand scrutiny, as the court has just explained. Plaintiffs are, however, atypical of

7 many class members in that they have now secured their release on bond, by virtue of the

8 government’s adherence to the six-month limit on mandatory detention from Rodriguez

9 and the authority on which Rodriguez relies. Even the government acknowledges,

10 however, that at least Mr. Khoury and Mr. Rodriguez may take advantage of an exception

11 to the mootness doctrine that ensures that courts can review “transitory claims” of class

12 representatives. See Haro v. Sebelius, No. 11-16606, 2014 U.S. App. LEXIS 61, at *21

13 (9th Cir. Jan. 2, 2014). Here, the government’s adherence to Rodriguez ensured that Mr.

14 Rodriguez’s and Mr. Khoury’s mandatory detention ended after six months, thereby

15 placing them squarely within the transitory claim exception. The court concludes that all 16 three Plaintiffs are adequate class representatives.3

17

What remains is to consider Rule 23(b)(2), which permits a court to certify a class

18 for injunctive or declaratory relief when that relief would apply equally to all class

19 members. Here, there is no question that all class members will benefit equally from the

20 court’s declaration that the government may not subject an alien to mandatory detention

21 via § 1226(c) unless the government took the alien into custody immediately upon his

22 release from custody for an offense described in subparagraphs (1)(A) through (1)(D).

23

24 3 Mr. Carrera’s mandatory detention ended after four months when DHS decided that he was not

25

actually subject to mandatory detention, regardless of the government’s erroneous interpretation of the mandatory detention statute. Before that, however, he was plainly subject to mandatory

26

detention because of the government’s erroneous interpretation of § 1226(c), and his claim is plainly transitory. The court is aware of nothing that would make Mr. Carrera an inadequate

27

class member. Even if the court were mistaken, Mr. Rodriguez and Mr. Khoury can adequately represent the class.

28 ORDER – 22

C. 1 2

The Court Will Impose Only Declaratory Relief At This Time, Although It Will Consider Injunctive Relief If Necessary.
As the court has explained, there are no barriers to entry of final relief on the

3 merits of Plaintiffs’ statutory claim. The court queries, however, whether it is necessary

4 to impose a permanent injunction in addition to the classwide declaratory relief that the

5 court has already awarded. The import of the court’s declaration is plain: the government

6 violates the law to the extent it continues to subject to mandatory detention aliens who it

7 did not take into custody at the proper time. The court has no reason to expect that the

8 government will not take appropriate action to end its violation of the law.

9

Accordingly, rather than impose an injunction, the court today will issue only its

10 declaratory ruling. The government will have two weeks from today to assess how it will

11 respond to that declaration. No later than March 26, 2014, it shall meet and confer with

12 counsel for Plaintiffs to reveal its plans for complying with the law. If Plaintiffs are

13 unsatisfied with those plans, or if they believe for another reason that injunctive relief is

14 necessary, they may file a statement of five pages or fewer explaining their position.

15 They must file that statement no later than April 2, 2014. Alternatively, the parties may

16 by the same deadline file a stipulated motion for a permanent injunction or a statement

17 that they agree that injunctive relief is unnecessary to afford complete relief to the class.

18 Finally, the parties shall meet and confer to discuss what, if anything, Plaintiffs wish to

19 do to pursue their Due Process claim to judgment. The parties shall share their views on

20 that subject in a joint statement they file no later than April 2, 2014. They may combine

21 that statement with any other pleading they file on April 2.

22

IV. CONCLUSION

23

For the reasons previously stated, the court GRANTS Plaintiffs’ motion for class

24 certification (Dkt. # 2) and certifies as class as defined in this order. The court DENIES

25 Defendants’ motion to dismiss. Dkt. # 28. The court directs the clerk to TERMINATE

26 Plaintiffs’ motion for injunctive relief (Dkt. # 14), without prejudice to renewing a

27 request for a permanent injunction in accordance with this order.

28 ORDER – 23

1

The court issues the following declaratory ruling on behalf of the class: The

2 government may not subject an alien to mandatory detention via 8 U.S.C. § 1226(c)

3 unless the government took the alien into custody immediately upon his release from

4 custody for an offense described in subparagraphs (1)(A) through (1)(D) of § 1226(c).

5

DATED this 11th day of March, 2014.

6

7 8

A

9

The Honorable Richard A. Jones

United States District Court Judge

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 ORDER – 24

 
 District Judge Richard A. Jones 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 BASSAM YUSEF KHOURY, et al.,

10 Plaintiffs-Petitioners,

11

v.

12 NATHALIE ASHER, et al.,
13 Defendants-Respondents.
14

) No. C13-1367-RAJ ) ) ) ) ) ORDER ADOPTING PARTIES’ ) STIPULATION AND DIRECTING ) ENTRY OF JUDGMENT ) ) )

15

In the wake of the court’s March 11 order, the parties have submitted a stipulation. Dkt. #

16 45. They agree that the court may dismiss Plaintiff’s claim invoking the Due Process clause of the

17 Fifth Amendment without prejudice. They further agree that the court need not enter a permanent

18 injunction, and that the Defendants will instead comply with the terms of the stipulation.

19

The court GRANTS the stipulation and orders as follows.

20

1) The court dismisses Plaintiffs’ Due Process claim without prejudice.

21

2) The parties are bound by the terms of their stipulation, as set forth below.

22

3) The clerk shall enter judgment for Plaintiffs, and that judgment shall incorporate the

23

court’s March 11 order certifying a class and granting declaratory relief in favor of the

24

class.

25

4) The clerk shall TERMINATE this civil action, although the court retains jurisdiction

26

for the purpose of enforcing the terms of the stipulation.

27

//

28

//

ORDER - 1 Case No. C13-1367-RAJ

1

The remainder of this order reproduces the parties’ stipulation as they submitted it.

2

Dated this 9th day of April, 2014.

3 4

A

5 The Honorable Richard A. Jones

6

United States District Court Judge

7

8

STIPULATION

9

Plaintiffs-Petitioners Bassam Yusef Khoury, et al. (“Plaintiffs”), and Defendants-

10 Respondents Nathalie Asher, et al. (“Defendants” and collectively with Plaintiffs, the “Parties”),

11 through counsel, submit the following stipulated statement and order (“Stipulation”) pursuant to

12 the Court’s March 11, 2014, order (ECF No. 44).

13 I. STIPULATION RELATING TO PLAINTIFFS’ DUE PROCESS CLAIM

14

Plaintiffs will take no further steps to pursue to judgment their Due Process claim set forth

15 as the Second Cause of Action in Plaintiffs’ First Amended Class Action Complaint and Petition

16 For Writ of Habeas Corpus, ECF No. 19 (“Due Process Claim”). Plaintiffs stipulate to voluntarily

17 dismiss without prejudice their Due Process Claim.

18 II. DEFINITIONS RELATING TO RELIEF

19

In addition to the capitalized terms defined above, the following terms shall have the

20 following meanings in this Stipulation:

21

1. “Order” means the order of the Court entered in this action on March 11, 2014,

22 ECF No. 44.

23

2. “ICE” means U.S. Immigration and Customs Enforcement.

24

3. “Current Class Detainee” means any individual/detainee deemed by ICE to be an

25 ‘alien’ currently in immigration detention whom ICE has been detaining in the Western District of

26 Washington pursuant to 8 U.S.C. § 1226(c) prior to March 11, 2014, but who was not taken into

27

28

ORDER - 2 Case No. C13-1367-RAJ

1 immigration custody immediately upon his or her release from criminal custody for an offense 2 referenced in 8 U.S.C. § 1226(c)(1).1

3

4. “New Class Detainee” means any individual/detainee deemed by ICE to be an

4 ‘alien’ whom ICE has taken or takes into immigration custody in the Western District of

5 Washington on or after March 11, 2014, but who was not taken into immigration custody

6 immediately upon his or her release from criminal custody for an offense referenced in 8 U.S.C. §

7 1226(c)(1).

8

5. “Form I-286” means Department of Homeland Security Form I-286, attached

9 hereto as Exhibit A.

10

6. “EOIR” means the United States Department of Justice Executive Office for

11 Immigration Review.

12

7. “Custody Redetermination” means an individualized review of ICE’s custody

13 determination for Current Class Detainees and New Class Detainees conducted by an immigration

14 judge pursuant to 8 U.S.C. § 1226(a), 8 C.F.R. § 1003.19, and 8 C.F.R. § 1236.1(d)(1).

15 III. STIPULATIONS RELATING TO RELIEF

16

The Parties stipulate that injunctive relief is unnecessary to afford complete relief to the

17 class in light of Defendants’ following response to the Order, which Defendants stipulate to

18 maintain for so long as the Order remains valid and enforceable:

19

1. ICE will detain all New Class Detainees subject to 8 U.S.C. § 1226(a), rather than

20 to 8 U.S.C. § 1226(c).

21

2. As of March 26, 2014, ICE has identified all Current Class Detainees, provided

22 Current Class Detainees with a custody determination pursuant to 8 U.S.C. § 1226(a) and 8 C.F.R

23 1 Plaintiffs note that they object to use of the term “alien” unless citing to the statute or case law.

24 As the Sixth Circuit recently stated, “[w]e recognize that using the term ‘alien’ to refer to other human beings is offensive and demeaning. We do not condone the use of the term and urge

25 Congress to eliminate it from the U.S. Code. We use it here, however, to be consistent with the

26

statutory language and to avoid any confusion in replacing a legal term of art with a more appropriate term.” Flores v. U.S. Citizenship and Immigration Services, 718 F.3d 548, 551 n.1

27 (6th Cir. 2013). Pointedly, the majority opinion of the Supreme Court’s most recent decision analyzing the Immigration and Nationality Act replaced any reference to “alien” with
28 “noncitizen.” Moncrieffe v. Holder, 133 S.Ct. 1678 (2013).

ORDER - 3 Case No. C13-1367-RAJ

1 § 1236.1(c)(8), and provided Current Class Detainees with notice of ICE’s custody determination

2 on Form I-286.

3

3. By May 2, 2014, EOIR will commence Custody Redeterminations for all Current

4 Class Detainees who request them pursuant to 8 C.F.R. § 1003.19(b) on or before April 2, 2014.

5

4. EOIR will provide Custody Redeterminations for all other Current Class Detainees

6 and for all New Class Detainees pursuant to 8 U.S.C. § 1226(a), 8 C.F.R. § 1003.19 and 8 C.F.R.

7 § 1236.1(d)(1).

8

5. By June 2, 2014, undersigned counsel for Defendants will file and serve a

9 certification that Current Class Detainees have been processed and treated as detainees subject to 8

10 U.S.C. § 1226(a) and that those who requested Custody Redeterminations pursuant to 8 C.F.R.

11 § 1003.19(b) on or before April 2, 2014, had their Custody Redeterminations commenced, with all

12 procedural protections allowable by law, by May 2, 2014.

13

6. By June 2, 2014, Defendants will provide class counsel with a list of (i) Current

14 Class Detainees, including full name, and A number; (ii) the date they were detained by

15 Defendants; (iii) information about Custody Redetermination hearings, including whether or not

16 one was conducted, and the date of hearing; and (iv) the result of any Custody Redetermination,

17 including specifying release on own recognizance and the amount of bond set by an immigration

18 judge.

19

7. By June 2, 2014, Defendants will provide class counsel with copies of all I-286 forms

20 provided to each Current Class Detainee.

21 Dated: April 2, 2014
22 NORTHWEST IMMIGRANT
23 RIGHTS PROJECT

24 /s/ Chris Strawn

25 Chris Strawn, WSBA No. 32243 Matt Adams, WSBA No. 28287
26 615 Second Avenue, Suite 400

27

Seattle, WA 98104 (206) 957-8611

28

Respectfully submitted,
STUART F. DELERY Assistant Attorney General Civil Division
COLIN A. KISOR Acting Director Office of Immigration Litigation District Court Section

ORDER - 4 Case No. C13-1367-RAJ

1

Betsy Tao, WSBA No. 33348 1331 G Street NW, Suite 200

2 Tacoma, WA (206) 957-8647
3

4

ACLU IMMIGRANTS’ RIGHTS PROJECT Michael Tan, Cal. Bar. No. 284869

5 Admitted pro hac vice

39 Drumm St. 6 San Francisco, CA 94111

7 (415) 343-0779

8 Judy Rabinovitz, NY Bar. No. JF-1214 Admitted pro hac vice
9 Sarah Mehta, NY Bar. No. 4929584 10 Admitted pro hac vice
125 Broad Street 11 New York, NY 10004
(212) 549-2619 12

13 ACLU OF WASHINGTON FOUNDATION Sarah A. Dunne, WSBA No. 34869
14 901 Fifth Avenue, Suite 630 Seattle, WA 98164
15 (206) 624-2184

16 GIBBS HOUSTON PAUW

17 Robert Pauw, WSBA No. 13613

18

Devin T. Theriot-Orr, WSBA No. 33995 1000 Second Avenue, Suite 1600

19 Seattle, WA 98104-1003 (206) 682-1080
20

21 ATTORNEYS FOR PLAINTIFFS-PETITIONERS

22

23

24

25

26

27

28

AARON S. GOLDSMITH Senior Litigation Counsel
TIMOTHY M. BELSAN Trial Attorney
LORI B WARLICK Trial Attorney
/s/ Hans H. Chen HANS H. CHEN Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 307-4469 Facsimile: (202) 305-7000 Email: hans.h.chen@usdoj.gov
ATTORNEYS FOR DEFENDANTSRESPONDENTS

ORDER - 5 Case No. C13-1367-RAJ

 
 KeyCite Yellow Flag - Negative Treatment Certiorari Granted by Nielsen v. Preap, U.S., March 19, 2018
667 Fed.Appx. 966 (Mem) This case was not selected for publication in West’s
Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of App. 9th Cir.
Rule 36-3. United States Court of Appeals,
Ninth Circuit.
Bassam Yusuf KHOURY; et al., Plaintiffs– Appellees, v.
Nathalie ASHER, Field Office Director, ICE; et al., Defendants–Appellants.
No. 14-35482 |
Argued and Submitted July 8, 2015 Seattle, Washington |
Filed August 4, 2016
Appeal from the United States District Court for the Western District of Washington, Richard A. Jones, District Judge, Presiding, D.C. No. 2:13–cv–01367–RAJ
Attorneys and Law Firms
Matt Adams, Attorney, Christopher Strawn, Attorney, Northwest Immigrant Rights Project, Seattle, WA, Robert Pauw, Gibbs Houston Pauw, Seattle, WA, Judy Rabinovitz, Attorney, ACLU Immigrants’ Rights Project, New York, NY, Michael K.T. Tan, ACLU–American Civil Liberties Union Foundation, New York, NY, Devin T. Theriot–Orr, Attorney, Sunbird Law, PLLC, Seattle, WA, for Plaintiffs–Appellees Bassam Yusuf Khoury, Alvin Rodriguez Moya, Pablo Carrera Zavala
Timothy Michael Belsan, Trial Attorney, Hans Harris Chen, Leon Fresco, Esquire, Lori Warlick, Trial Attorney, DOJ—U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Defendants–Appellants Nathalie Asher, Lowell Clark, Juan P. Osuna, Loretta E. Lynch, Janet Napolitano, United States of America, John Sandweg

Alina Das, Washington Square Legal Services, Inc., New York, NY, for Amicus Curiae Detention Watch Network, Families for Freedom, Florence Immigrant and Refugee Rights Project, Immigrant Defense Project, Immigrant Legal Resource Center, Immigration Equality, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area
Rebecca A. Sharpless, University of Miami School of Law, Coral Gables, FL, for Amicus Curiae Professors of Immigration and Constitutional Law
Before: KLEINFELD, NGUYEN, and FRIEDLAND, Circuit Judges.
*967 MEMORANDUM* Defendants appeal from the district court’s order certifying a class of alien detainees and declaring that the class was entitled to bond hearings. The class comprised aliens 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. In granting class certification and declaratory relief, the district court concluded that § 1226(c) applies only to aliens who are detained immediately upon their release from criminal custody. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The plain language of § 1226(c) makes clear that mandatory detention applies only to those aliens detained “when [they are] released” from criminal custody. See Preap v. Johnson, slip op. at ––––. Because the phrase “when ... released” conveys a degree of immediacy, “§ 1226(c) applies only to those criminal noncitizens who are detained promptly after their release from criminal custody, not to those detained long after.” Id. at ––––. We disagree with the government’s arguments under United States v. Montalvo–Murillo, 495 U.S. 711, 110 S.Ct. 2072, 109 L.Ed.2d 720 (1990), that it should nonetheless be allowed to hold without bond aliens whose detention is untimely under § 1226(c). Montalvo–Murillo is distinguishable. See Preap v. Johnson, slip op. at ––––.
AFFIRMED.
All Citations

667 Fed.Appx. 966 (Mem)

Footnotes

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36–3.

 
 139 S.Ct. 954 (2019)
Kirstjen M. NIELSEN, Secretary of Homeland Security, et al., Petitioners v.
Mony PREAP, et al. Bryan Wilcox, Acting Field Office Director, Immigration and Customs
Enforcement, et al., Petitioners v.
Bassam Yusuf Khoury, et al.
No. 16-1363.
Supreme Court of United States.
Argued October 10, 2018. Decided March 19, 2019.[1]
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
Zachary D. Tripp, Washington, DC, for Petitioners.
Cecillia Wang, New York, NY, for Respondents.
Noel J. Francisco, Solicitor General, Chad A. Readler, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Zachary D. Tripp, Assistant to the Solicitor General, Troy D. Liggett, Attorney, Department of Justice, Washington, DC, for Petitioners.
Matt Adams, Northwest Immigrant Rights Project, Robert Pauw, Gibbs Houston Pauw, Devin T. Theriot-Orr, Sunbird Law, PLLC, Emily Chiang, American Civil Liberties Union Foundation of Washington, Seattle, WA, Michael K.T. Tan, Cecillia Wang, Judy Rabinovitz, Omar C. Jadwat, American Civil Liberties Union Foundation, New York, NY, David D. Cole, American Civil Liberties Union Foundation, Washington, DC, Lucas Guttentag, Stanford, CA, Vasudha Talla, American Civil Liberties Foundation of Northern California, Anoop Prasad, Jingni (Jenny) Zhao, Asian Americans Advancing Justice-Asian Law Caucus, Daniel Purcell, Grace Y. Yang, Keker, Van Nest & Peters LLP, San Francisco, CA, for Respondents.
956*956 Syllabus[*]
Federal immigration law empowers the Secretary of Homeland Security to arrest and hold a deportable alien pending a removal decision, and generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. 8 U.S.C. § 1226(a). Another provision, § 1226(c)—enacted out of "concer[n] that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal

hearings," Demore v. Kim, 538 U.S. 510, 513, 123 S.Ct. 1708, 155 L.Ed.2d 724—sets out four categories of aliens who are inadmissible or deportable for bearing certain links to terrorism or for committing specified crimes. Section 1226(c)(1) directs the Secretary to arrest any such criminal alien "when the alien is released" from jail, and § 1226(c)(2) forbids the Secretary to release any "alien described in paragraph (1)" pending a determination on removal (with one exception not relevant here).
Respondents, two classes of aliens detained under § 1226(c)(2), allege that because they were not immediately detained by immigration officials after their release from criminal custody, they are not aliens "described in paragraph (1)," even though all of them fall into at least one of the four categories covered by §§ 1226(c)(1)(A)-(D). Because the Government must rely on § 1226(a) for their detention, respondents argue, they are entitled to bond hearings to determine if they should be released pending a decision on their status. The District Courts ruled for respondents, and the Ninth Circuit affirmed.
Held: The judgments are reversed, and the cases are remanded.
831 F.3d 1193 and 667 Fed.Appx. 966, reversed and remanded.
Justice ALITO delivered the opinion of the Court with respect to Parts I, III-A, III-B-1, and IV, concluding that the Ninth Circuit's interpretation of § 1226(c) is contrary to the plain text and structure of the statute. Pp. 963 — 967, 968 — 972.
(a) The statute's text does not support the argument that because respondents were not arrested immediately after their release, they are not "described in" § 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 this Court's interpretation is not dependent on a rule of grammar. The grammar merely complements what is conclusive here: the meaning of "described" as it appears in § 1226(c)(2)—namely, "to communicate verbally ... an account of salient identifying features," Webster's Third New International 957*957 Dictionary 610. 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." Merriam-Webster's Collegiate Dictionary 1294. 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). Pp. 963-965.
(b) Subsections (a) and (c) do not establish separate sources of arrest and release authority; subsection (c) is a limit on the authority conferred by subsection (a). Accordingly, all the relevant detainees will have been arrested by authority that springs from subsection

(a), and that fact alone will not spare them from subsection (c)(2)'s prohibition on release. The text of § 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). Pp. 966-967.
(c) 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. Finally, the canon of constitutional avoidance does not apply where there is no ambiguity. See Warger v. Shauers, 574 U.S. 40, 50, 135 S.Ct. 521, 190 L.Ed.2d 422. Pp. 968-972.
Justice ALITO, joined by THE CHIEF JUSTICE and Justice KAVANAUGH, concluded in Parts II and III-B-2:
(a) This Court has jurisdiction to hear these cases. The limitation on review in § 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." Jennings v. Rodriguez, 583 U.S. ___, ___, 138 S.Ct. 830, 841, 200 L.Ed.2d 122. For reasons stated in Jennings, "§ 1252(b)(9) does not present a jurisdictional bar." See id., at ___, 138 S.Ct., at 841. Whether the District Court in the Preap case had jurisdiction under § 1252(f)(1) to grant injunctive relief is irrelevant because the court had jurisdiction to entertain the plaintiffs' request for declaratory relief. And, the fact that by the time of class certification the named plaintiffs had obtained either cancellation of removal or bond hearings did not make these cases moot. At least one named plaintiff in both cases could have been returned to detention and then denied a subsequent bond hearing. Even if that had not been so, these cases would not be moot because the harms alleged are transitory enough to elude review. County of Riverside 958*958 v. McLaughlin, 500 U.S. 44, 52, 111 S.Ct. 1661, 114 L.Ed.2d 49. Pp. 961963.
(b) Even assuming that § 1226(c)(1) requires immediate arrest, the result below would be wrong, because a statutory rule that officials "`shall' act within a specified time" does not by itself "preclud[e] action later," Barnhart v. Peabody Coal Co., 537 U.S. 149, 158, 123 S.Ct. 748, 154 L.Ed.2d 653. This principle for interpreting time limits on statutory mandates was a fixture of the legal backdrop when Congress enacted § 1226(c). Cf. Woodford v. Garceau, 538 U.S. 202, 209, 123 S.Ct. 1398, 155 L.Ed.2d 363. Pp. 967-969.
Justice THOMAS, joined by Justice GORSUCH, concluded that three statutory provisions— 8 U.S.C. §§ 1252(b)(9), 1226(e), and 1252(f)(1)—limit judicial review in these cases and it is unlikely that the District Courts had Article III jurisdiction to certify the classes. Pp. 958-961.

ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-A, III-B-1, and IV, in which ROBERTS, C.J., and THOMAS, GORSUCH, and KAVANAUGH, JJ., joined, and an opinion with respect to Parts II and III-B2, in which ROBERTS, C.J., and KAVANAUGH, J., joined. KAVANAUGH, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.
Justice ALITO, announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-A, III-B-1, and IV, and an opinion with respect to Parts II and III-B2, in which THE CHIEF JUSTICE and Justice KAVANAUGH join.
Aliens who are arrested because they are believed to be deportable may generally apply for release on bond or parole while the question of their removal is being decided. These aliens may secure their release by proving to the satisfaction of a Department of Homeland Security officer 959*959 or an immigration judge that they would not endanger others and would not flee if released from custody.
Congress has decided, however, that this procedure is too risky in some instances. Congress therefore adopted a special rule for aliens who have committed certain dangerous crimes and those who have connections to terrorism. Under a statutory provision enacted in 1996, 110 Stat. 3009-585, 8 U.S.C., § 1226(c), these aliens must be arrested "when [they are] released" from custody on criminal charges and (with one narrow exception not involved in these cases) must be detained without a bond hearing until the question of their removal is resolved.
In these cases, the United States Court of Appeals for the Ninth Circuit held that this mandatory-detention requirement applies only if a covered alien is arrested by immigration officials as soon as he is released from jail. If the alien evades arrest for some short period of time—according to respondents, even 24 hours is too long— the mandatory-detention requirement is inapplicable, and the alien must have an opportunity to apply for release on bond or parole. Four other Circuits have rejected this interpretation of the statute, and we agree that the Ninth Circuit's interpretation is wrong. We therefore reverse the judgments below and remand for further proceedings.
I
A
Under federal immigration law, aliens present in this country may be removed if they fall "within one or more ... classes of deportable aliens." 8 U.S.C. § 1227(a). In these cases, we focus on two provisions governing the arrest, detention, and release of aliens who are believed to be subject to removal.
The first provision, § 1226(a),[1] applies to most such aliens, and it sets out the general rule regarding their arrest and detention pending a decision on removal. Section 1226(a)

contains two sentences, one dealing with taking an alien into custody and one dealing with detention. The first sentence empowers the Secretary of Homeland Security[2] to arrest and hold an alien "pending a decision on whether the alien is to be removed from the United States." The second sentence generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. If the alien is detained, he may seek review of his detention by an officer at the Department of Homeland Security and then by an immigration judge (both exercising power 960*960 delegated by the Secretary), see 8 CFR §§ 236.1(c)(8) and (d)(1), 1003.19, 1236.1(d)(1) (2018); and the alien may secure his release if he can convince the officer or immigration judge that he poses no flight risk and no danger to the community. See §§ 1003.19(a), 1236.1(d); Matter of Guerra, 24 I. & N. Dec. 37 (BIA 2006). But while 8 U.S.C. § 1226(a) generally permits an alien to seek release in this way, that provision's sentence on release states that all this is subject to an exception that is set out in § 1226(c).
Section 1226(c) was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and it sprang from a "concer[n] that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers." Demore v. Kim, 538 U.S. 510, 513, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). To address this problem, Congress mandated that aliens who were thought to pose a heightened risk be arrested and detained without a chance to apply for release on bond or parole.
Section 1226(c) consists of two paragraphs, one on the decision to take an alien into "[c]ustody" and another on the alien's subsequent "[r]elease."[3] The first paragraph (on custody) sets out four categories of covered aliens, namely, those who are inadmissible or deportable on specified grounds. It then provides that the Secretary must take any alien falling into one of these categories "into custody" "when the alien is released" from criminal custody.
The second paragraph (on release from immigration custody) states that "an alien described in paragraph (1)" may be released "only if [the Secretary] decides" that release is "necessary to provide protection" for witnesses or others cooperating with a criminal investigation, or their relatives or associates. That exception is not implicated in the present cases.
The categories of predicates for mandatory detention identified in subparagraphs (A)-(D) generally involve the commission of crimes. As will become relevant to our analysis, however, some who satisfy subparagraph (D)—e.g., close relatives of terrorists and those who are thought likely to engage in terrorist activity, see 8 U.S.C. § 1182(a)(3)(B)(i)(IX)— may never have been charged with any crime in this country.[4] Still, since the vast majority of mandatory-detention cases do involve convictions, we follow the heading of subsection (c), as well as our cases and the courts below, in referring to aliens who satisfy subparagraphs (A)-(D) collectively as "criminal aliens."
The Board of Immigration Appeals has held that subsection (c)(2), which requires the detention of aliens "described in" subsection (c)(1), applies to all aliens who fall within

subparagraphs (A)-(D), whether or not they were arrested immediately "when [they were] released" from criminal custody. Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001) (en banc).
B
Respondents in the two cases before us are aliens who were detained under § 1226(c)(2)'s mandatory-detention requirement 961*961 —and thus denied a bond hearing —pending a decision on their removal. See Preap v. Johnson, 831 F.3d 1193 (CA9 2016); Khoury v. Asher, 667 Fed.Appx. 966 (CA9 2016). 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 the case that bears his name, is a lawful permanent resident with two drug convictions that qualify him for mandatory detention under § 1226(c). Though he was released from criminal custody in 2006, immigration officials did not detain him until 2013, when he was released from jail after an arrest for another offense. His co-plaintiffs Juan Lozano Magdaleno and Eduardo Vega Padilla were taken into immigration detention, respectively, 5 and 11 years after their release from custody for a § 1226(c) predicate offense. Preap, Magdaleno, and Padilla filed habeas petitions and a class-action complaint alleging that because they were not arrested "immediately" after release from criminal custody, they are exempt from mandatory detention under § 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.'" 831 F.3d at 1198 (emphasis added). 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 now before us, involves habeas petitions and a class-action complaint filed in the Western District of Washington. The District Court certified a class comprising all aliens in that district "who were subjected to mandatory detention under 8 U.S.C. § 1226(c) even though they were not detained immediately upon their release from criminal custody." 667 Fed. Appx., at 967. 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, we granted certiorari to review the Ninth Circuit's ruling that criminal aliens who are not arrested immediately upon release are thereby exempt from mandatory detention under § 1226(c). 583 U.S. ___, 138 S.Ct. 1279, 200 L.Ed.2d 468 (2018). We now reverse.
II
Before addressing the merits of the Court of Appeals' interpretation, we resolve four questions regarding our jurisdiction to hear these cases.
The first potential hurdle concerns § 1226(e), which states:
"The [Secretary's] discretionary judgment regarding the application of [§ 1226] shall not be subject to review. No court may set aside any action or 962*962 decision by the [Secretary] under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." (Emphasis added.)
As we have held, this limitation applies only to "discretionary" decisions about the "application" of § 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." Jennings v. Rodriguez, 583 U.S. ___, ___ _ ___, 138 S.Ct. 830, 841, 200 L.Ed.2d 122 (2018) (quoting Demore, 538 U.S., at 517, 123 S.Ct. 1708). And the general extent of the Government's authority under § 1226(c) is precisely the issue here. Respondents' argument is not that the Government exercised its statutory authority in an unreasonable fashion. Instead, they dispute the extent of the statutory authority that the Government claims. Because this claim of authority does not constitute a mere "discretionary" "application" of the relevant statute, our review is not barred by § 1226(e).
Nor are we stripped of jurisdiction by § 1252(b)(9), which 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." (Emphasis added.)
As in Jennings, respondents here "are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal [as opposed to the decision to deny them bond hearings]; and they are not even challenging any part of the process by which their removability will be determined. Under these circumstances," we held in Jennings, see 583 U.S., at ___ _ ___, 138 S.Ct., at 841, "§ 1252(b)(9) does not present a jurisdictional bar."
The Government raised a third concern before the District Court in Preap: that under 8 U.S.C. § 1252(f)(1), that court lacked jurisdiction to enter the requested injunction. As § 1252(f)(1) cautions:

"Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [§§ 1221-1232] other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated."
Did the Preap court overstep this limit by granting injunctive relief for a class of aliens that includes some who have not yet faced—but merely "will face"—mandatory detention? The District Court said no, but we need not decide. Whether the Preap court had jurisdiction to enter such an injunction is irrelevant because the District Court had jurisdiction to entertain the plaintiffs' request for declaratory relief, and for independent reasons given below, we are ordering the dissolution of the injunction that the District Court ordered.
Finally, and again before the Preap District Court, the Government raised a fourth potential snag: mootness. Class actions are "[n]ormally ... moot if no named class representative with an unexpired claim remain[s] at the time of class certification." United States v. SanchezGomez, 584 U.S. ___, ___, 138 S.Ct. 1532, 1538, 200 L.Ed.2d 792 (2018). But that general norm is no hurdle here.
963*963 The suggestion of mootness in these cases was based on the fact that by the time of class certification the named plaintiffs had obtained either cancellation of removal or bond hearings. See 831 F.3d at 1197-1198; Khoury v. Asher, 3 F.Supp.3d 877, 879-880 (W.D. Wash. 2014). But those developments did not make the cases moot 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. Unless that preliminary injunction was made permanent and was not disturbed on appeal, these individuals faced the threat of re-arrest and mandatory detention. And indeed, we later ordered that that injunction be dissolved. See Jennings, 583 U.S., at ___, 138 S.Ct., at 852. Thus, in both cases, there was at least one named plaintiff with a live claim when the class was certified.
Even if that had not been so, these cases would not be moot because the fact that a class "was not certified until after the named plaintiffs' claims had become moot does not deprive us of jurisdiction" when, as in these cases, the harms alleged are transitory enough to elude review. County of Riverside v. McLaughlin, 500 U.S. 44, 52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (affirming jurisdiction over a class action challenging a county's failure to provide "prompt" determinations of probable cause for those subjected to warrantless arrest and detention). Respondents claim that they would be harmed by detention without a hearing pending a decision on their removal. Because this type of injury ends as soon as the decision on removal is made, it is transitory. So the fact that the named plaintiffs obtained some relief before class certification does not moot their claims.
III
Having assured ourselves of our jurisdiction, we turn to the merits. Respondents contend that they are not properly subject to § 1226(c)'s mandatory-detention scheme, but instead

are entitled to the bond hearings available to those held under the general arrest and release authority provided in § 1226(a). Respondents' primary textual argument turns on the interaction of paragraphs (1) and (2) of § 1226(c). Recall that those paragraphs govern, respectively, the "[c]ustody" and "[r]elease" of criminal aliens guilty of a predicate offense. Paragraph (1) directs the Secretary to arrest any such alien "when the alien is released," and paragraph (2) forbids the Secretary to release any "alien described in paragraph (1)" pending a determination on removal (with one exception not relevant here). Because the parties' arguments about the meaning of § 1226(c) require close attention to the statute's terms and structure, we reproduce the provision in full below. But only the portions of the statute that we have highlighted are directly relevant to respondents' argument. Section 1226(c) provides:
"(c) Detention of criminal aliens "(1) Custody "The [Secretary] shall take into custody any alien who— "(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, "(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, "(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or "(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, 964*964 "when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. "(2) Release "The [Secretary] may release an alien described in paragraph (1) only if the [Secretary] decides pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the [Secretary] that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien." (Emphasis added.)
Respondents argue that they are not subject to mandatory detention because they are not "described in" § 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. An alien covered by these subparagraphs is not "described in" § 1226(c)(1), respondents contend, unless the alien was also arrested "when [he or she was] released" from criminal custody. Indeed, respondents insist that the alien must have been arrested immediately after release. Since they and the other class members were not arrested immediately, respondents conclude, they are not "described in" § 1226(c)(1). So to detain them, the Government must rely not on § 1226(c) but on the general provisions of § 1226(a). And thus, like others detained under § 1226(a), they are owed bond hearings in which they can earn their release by proving that they pose no flight risk and no danger to

others—or so they claim. But neither the statute's text nor its structure supports this argument. In fact, both cut the other way.
A
First, respondents' position runs aground on the plain text of § 1226(c). Respondents are right that only an alien "described in paragraph (1)" faces mandatory detention, but they are wrong about which aliens are "described in" paragraph (1).
Paragraph (1) provides that the Secretary "shall take" into custody any "alien" having certain characteristics and that the Secretary must do this "when the alien is released" from criminal custody. The critical parts of the provision consist of a verb ("shall take"), an adverbial clause ("when... released"), a noun ("alien"), and a series of adjectival clauses ("who ... is inadmissible," "who ... is deportable," etc.). As an initial matter, no one can deny that the adjectival clauses modify (and in that sense "describ[e]") the noun "alien" or that the adverbial clause "when ... released" modifies the verb "shall take." And since an adverb cannot modify a noun, the "when released" clause cannot modify "alien." Again, what modifies (and in that sense "describe[s]") the noun "alien" are the adjectival clauses that appear in subparagraphs (A)-(D).
Respondents and the dissent contend that this grammatical point is not the end of the matter—that an adverb can "describe" a person even though it cannot modify the noun used to denote that person. See post, at 978-979 (opinion of BREYER, J.). But our interpretation is 965*965 not dependent on a rule of grammar. The preliminary point about grammar merely complements what is critical, and indeed conclusive in these cases: the particular meaning of the term "described" as it appears in § 1226(c)(2). As we noted in Luna Torres v. Lynch, 578 U.S. ___, ___, 136 S.Ct. 1619, 1625, 194 L.Ed.2d 737 (2016), the term "`describe' takes on different meanings in different contexts." A leading definition of the term is "to communicate verbally ... an account of salient identifying features," Webster's Third New International Dictionary 610 (1976), and that is clearly the meaning of the term used in the phrase "an alien described in paragraph (1)." (Emphasis added.) This is clear from the fact that the indisputable job of the "descri[ption] in paragraph (1)" is to "identif[y]" for the Secretary—to list the "salient ... features" by which she can pick out—which aliens she must arrest immediately "when [they are] released."
And here is the crucial point: The "when... released" clause could not possibly describe aliens in that sense; it plays no role in identifying for the Secretary which aliens she must immediately arrest. If it did, the directive in § 1226(c)(1) would be nonsense. It would be ridiculous to read paragraph (1) as saying: "The Secretary must arrest, upon their release from jail, a particular subset of criminal aliens. Which ones? Only those who are arrested upon their release from jail." Since it is the Secretary's action that determines who is arrested upon release, "being arrested upon release" cannot be one of her criteria in figuring out whom to arrest. So it cannot "describe"—it cannot give the Secretary an "identifying featur[e]" of—the relevant class of aliens. On any other reading of paragraph (1), the command that paragraph (1) gives the Secretary would be downright incoherent.

Our reading is confirmed by Congress's use of the definite article in "when the alien is released." Because "[w]ords are to be given the meaning that proper grammar and usage would assign them," A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 140 (2012), the "rules of grammar govern" statutory interpretation "unless they contradict legislative intent or purpose," ibid. (citing Costello v. INS, 376 U.S. 120, 122-126, 84 S.Ct. 580, 11 L.Ed.2d 559 (1964)). Here grammar and usage establish that "the" is "a function word ... indicat[ing] that a following noun or noun equivalent is definite or has been previously specified by context." Merriam-Webster's Collegiate Dictionary 1294 (11th ed. 2005). See also Work v. United States ex rel. McAlester-Edwards Co., 262 U.S. 200, 208, 43 S.Ct. 580, 67 L.Ed. 949 (1923) (Congress's "use of the definite article [in a reference to "the appraisement"] means an appraisement specifically provided for"). For "the alien"—in the clause "when the alien is released"—to have been previously specified, its scope must have been settled by the time the "when ... released" clause appears at the tail end of paragraph (1).
For these reasons, we hold that the scope of "the alien" is fixed by the predicate offenses identified in subparagraphs (A)-(D).[5] And since only those subparagraphs settle who is "described in paragraph (1)," anyone who fits their description falls under paragraph (2)'s detention mandate—even if (as with respondents) the Secretary did not arrest them immediately "when" they were "released."
B 966*966
In reaching the contrary conclusion, the Ninth Circuit thought that the very structure of § 1226 favors respondents' reading. In particular, the Ninth Circuit reasoned, each subsection's arrest and release provisions must work together. Thus, aliens must be arrested under the general arrest authority in subsection (a) in order to get a bond hearing under subsection (a)'s release provision. And in order to face mandatory detention under subsection (c), criminal aliens must have been arrested under subsection (c). But since subsection (c) authorizes only immediate arrest, the argument continues, those arrested later fall under subsection (a), not (c). Accordingly, the court concluded, those arrested well after release escape subsection (c)'s detention mandate. See 831 F.3d at 1201-1203. But this argument misreads the structure of § 1226; and in any event, the Ninth Circuit's conclusion would not follow even if we granted all its premises about statutory structure.
1
Although the Ninth Circuit viewed subsections (a) and (c) as establishing separate sources of arrest and release authority, in fact subsection (c) is simply a limit on the authority conferred by subsection (a).
Recall that subsection (a) has two sentences that provide the Secretary with general discretion over the arrest and release of aliens, respectively. We read each of subsection (c)'s two provisions—paragraph (1) on arrest, and paragraph (2) on release—as modifying its counterpart sentence in subsection (a). In particular, subsection (a) creates authority for anyone's arrest or release under § 1226—and it gives the Secretary broad discretion as

to both actions—while subsection (c)'s job is to subtract some of that discretion when it comes to the arrest and release of criminal aliens. Thus, subsection (c)(1) limits subsection (a)'s first sentence by curbing the discretion to arrest: The Secretary must arrest those aliens guilty of a predicate offense. And subsection (c)(2) limits subsection (a)'s second sentence by cutting back the Secretary's discretion over the decision to release: The Secretary may not release aliens "described in" subsection (c)(1)—that is, those guilty of a predicate offense. Accordingly, all the relevant detainees will have been arrested by authority that springs from subsection (a), and so, contrary to the Court of Appeals' view, that fact alone will not spare them from subsection (c)(2)'s prohibition on release. This reading comports with the Government's practice of applying to the arrests of all criminal aliens certain procedural requirements, such as the need for a warrant, that appear only in subsection (a). See Tr. of Oral Arg. 13-14.
The text of § 1226 itself contemplates that aliens arrested under subsection (a) may face mandatory detention under subsection (c). The second sentence in subsection (a)—which generally authorizes the Secretary to release an alien pending removal proceedings— features an exception "as provided in subsection (c)." But if the Court of Appeals were right that subsection (c)(2)'s prohibition on release applies only to those arrested pursuant to subsection (c)(1), there would have been no need to specify that such aliens are exempt from subsection (a)'s release provision. This shows that it is possible for those arrested under subsection (a) to face mandatory detention under subsection (c). We draw a similar inference from the fact that subsection (c)(2), for its part, 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 choice of 967*967 words marks a contrast with Congress's reference—in the immediately preceding subsection—to actions by the Secretary that are "authorized under" subsection (a). See § 1226(b). Cf. 18 U.S.C. § 3262(b) (referring to "a person arrested under subsection (a)" (emphasis added)). These textual cues indicate that even if an alien was not arrested under authority bestowed by subsection (c)(1), he may face mandatory detention under subsection (c)(2).
2
But even if the Court of Appeals were right to reject this reading, the result below would be wrong. To see why, assume with the Court of Appeals that only someone arrested under authority created by § 1226(c)(1)—rather than the more general § 1226(a)—may be detained without a bond hearing. And assume that subsection (c)(1) requires immediate arrest. Even then, the Secretary's failure to abide by this time limit would not cut off her power to arrest under subsection (c)(1). That is so because, as we have held time and again, an official's crucial duties are better carried out late than never. See Sylvain v. Attorney General of U.S., 714 F.3d 150, 158 (CA3 2013) (collecting cases). Or more precisely, a statutory rule that officials "`shall' act within a specified time" does not by itself "preclud[e] action later." Barnhart v. Peabody Coal Co., 537 U.S. 149, 158, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003).

Especially relevant here is our decision in United States v. Montalvo-Murillo, 495 U.S. 711, 110 S.Ct. 2072, 109 L.Ed.2d 720 (1990). There we held that "a provision that a detention hearing `shall be held immediately upon the [detainee's] first appearance before the judicial officer' did not bar detention after a tardy hearing." Barnhart, 537 U.S. at 159, 123 S.Ct. 748 (quoting Montalvo-Murillo, 495 U.S. at 714, 110 S.Ct. 2072). In that case, we refused to "bestow upon the defendant a windfall" and "visit upon the Government and the citizens a severe penalty by mandating release of possibly dangerous defendants every time some deviation from the [statutory] strictures ... occur[red]." Montalvo-Murillo, 495 U.S. at 720, 110 S.Ct. 2072. Instead, we gave effect to the principle that "`if a statute does not specify a consequence for noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction.'" Barnhart, 537 U.S. at 159, 123 S.Ct. 748 (quoting United States v. James Daniel Good Real Property, 510 U.S. 43, 63, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993)).
This principle for interpreting time limits on statutory mandates was a fixture of the legal backdrop when Congress enacted § 1226(c). Cf. Woodford v. Garceau, 538 U.S. 202, 209, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003) (relying on the "legal backdrop" against which "Congress legislated" to clarify what Congress enacted). Indeed, we have held of a statute enacted just four years before § 1226(c) that because of our case law at the time—never since abrogated —Congress was "presumably aware that we do not readily infer congressional intent to limit an agency's power to get a mandatory job done merely from a specification to act by a certain time." Barnhart, 537 U.S. at 160, 123 S.Ct. 748 (relying on Brock v. Pierce County, 476 U.S. 253, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986)). Here this principle entails that even if subsection (c)(1) were the sole source of authority to arrest aliens without granting them hearings, that authority would not evaporate just because officials had transgressed subsection (c)(1)'s command to arrest aliens immediately "when ... released."
Respondents object that the rule invoked in Montalvo-Murillo and related 968*968 cases does not apply here. In those cases, respondents argue, the governmental authority at issue would have disappeared entirely if time limits were enforced— whereas here the Secretary could still arrest aliens well after their release under the general language in § 1226(a).
But the whole premise of respondents' argument is that if the Secretary could no longer act under § 1226(c), she would lose a specific power—the power to arrest and detain criminal aliens without a bond hearing. If that is so, then as in other cases, accepting respondents' deadline-based argument would be inconsistent with "the design and function of the statute." Montalvo-Murillo, 495 U.S. at 719, 110 S.Ct. 2072. From Congress's perspective, after all, it is irrelevant that the Secretary could go on detaining criminal aliens subject to a bond hearing. Congress enacted mandatory detention precisely out of concern that such individualized hearings could not be trusted to reveal which "deportable criminal aliens who are not detained" might "continue to engage in crime [or] fail to appear for their removal hearings." Demore, 538 U.S. at 513, 123 S.Ct. 1708. And having thus required the Secretary to impose mandatory detention without bond hearings immediately, for safety's sake, Congress could not have meant for judges to "enforce" this duty in case of delay by— of all things—forbidding its execution. Cf. Montalvo-Murillo, 495 U.S. at 720, 110 S.Ct.

2072 ("The end of exacting compliance with the letter" of the Bail Reform Act's requirement that a defendant receive a hearing immediately upon his first appearance before a judicial officer "cannot justify the means of exposing the public to an increased likelihood of violent crimes by persons on bail, an evil the statute aims to prevent").
Especially hard to swallow is respondents' insistence that for an alien to be subject to mandatory detention under § 1226(c), the alien must be arrested on the day he walks out of jail (though respondents allow that it need not be at the jailhouse door—the "parking lot" or "bus stop" would do). Tr. of Oral Arg. 44. "Assessing the situation in realistic and practical terms, it is inevitable that" respondents' unsparing deadline will often be missed for reasons beyond the Federal Government's control. Montalvo-Murillo, 495 U.S. at 720, 110 S.Ct. 2072. Cf. Regions Hospital v. Shalala, 522 U.S. 448, 459, n. 3, 118 S.Ct. 909, 139 L.Ed.2d 895 (1998) ("The Secretary's failure to meet the deadline, a not uncommon occurrence when heavy loads are thrust on administrators, does not mean that [she] lacked power to act beyond it"). To give just one example, state and local officials sometimes rebuff the Government's request that they give notice when a criminal alien will be released. Indeed, over a span of less than three years (from January 2014 to September 2016), the Government recorded "a total of 21,205 declined [requests] in 567 counties in 48 states including the District of Columbia." ICE, Fiscal Year 2016 ICE Enf. and Removal Operations Rep. 9. Nor was such local resistance unheard of when Congress enacted the language of § 1226(c) in 1996. See S. Rep. No. 104-48, p. 28 (1995). Under these circumstances, it is hard to believe that Congress made the Secretary's mandatory-detention authority vanish at the stroke of midnight after an alien's release.
In short, the import of our case law is clear: Even if subsection (c) were the only font of authority to detain aliens without bond hearings, we could not read its "when... released" clause to defeat officials' duty to impose such mandatory detention when it comes to aliens who are arrested well after their release.
IV 969*969
Respondents protest that reading § 1226(c) in the manner set forth here would render key language superfluous, lead to anomalies, and violate the canon of constitutional avoidance. We answer these objections in turn.
A
According to respondents, the Government's reading of § 1226(c) flouts the interpretive canon against surplusage—the idea that "every word and every provision is to be given effect [and that n]one should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence." Scalia, Reading Law, at 174. See Kungys v. United States, 485 U.S. 759, 778, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988) (plurality opinion of Scalia, J.) (citing the "cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant"). Respondents' surplusage argument has two focal points.

First, respondents claim that if they face mandatory detention even though they were arrested well after their release, then "when ... released" adds nothing to paragraph (1). In fact, however, it still has work to do. For one thing, it clarifies when the duty to arrest is triggered: upon release from criminal custody, not before such release or after the completion of noncustodial portions of a criminal sentence (such as a term of "parole, supervised release, or probation," as the paragraph goes on to emphasize). Thus, paragraph (1) does not permit the Secretary to cut short an alien's state prison sentence in order to usher him more easily right into immigration detention—much as another provision prevents officials from actually removing an alien from the country "until the alien is released from imprisonment." 8 U.S.C. § 1231(a)(4)(A). And from the other end, as paragraph (1)'s language makes clear, the Secretary need not wait for the sentencing court's supervision over the alien to expire.
The "when ... released" clause also serves another purpose: exhorting the Secretary to act quickly. And this point answers respondents' second surplusage claim: that the "Transition Period Custody Rules" enacted along with § 1226(c) would have been superfluous if § 1226(c) did not call for immediate arrests, since those rules authorized delays in § 1226(c)'s implementation while the Government expanded its capacities. See Matter of GarvinNoble, 21 I. & N. Dec. 672, 675 (BIA 1997). This argument again confuses what the Secretary is obligated to do with the consequences that follow if the Secretary fails (for whatever reason) to fulfill that obligation. The transition rules delayed the onset of the Secretary's obligation to begin making arrests as soon as covered aliens were released from criminal custody, and in that sense they were not superfluous.[6] 970*970 This is so even though, had the transition rules not been adopted, the Secretary's failure to make an arrest immediately upon a covered alien's release would not have exempted the alien from mandatory detention under § 1226(c).
B
The Court of Appeals objected that the Government's reading of § 1226(c) would have the bizarre result that some aliens whom the Secretary need not arrest at all must nonetheless be detained without a hearing if they are arrested. 831 F.3d at 1201-1203. This rather complicated argument, as we understand it, proceeds as follows. Paragraph (2) requires the detention of aliens "described in paragraph (1)." While most of the aliens described there have been convicted of a criminal offense, this need not be true of aliens captured by subparagraph (D) in particular—which covers, for example, aliens who are close relatives of terrorists and those who are believed likely to commit a terrorist act. See § 1182(a)(3)(B)(i)(IX). But if, as the Government maintains, any alien who falls under subparagraphs (A)-(D) is thereby ineligible for release from immigration custody, then the Secretary would be forbidden to release even these aliens who were never convicted or perhaps even charged with a crime, once she arrested them. Yet she would be free not to arrest them to begin with (or so the Court of Appeals assumed), since she is obligated to arrest aliens "when ... released," and there was no prior custody for these aliens to be "released" from. Therefore, the court concluded, the Government's position has the absurd implication that aliens who were never charged with a crime need not be arrested pending a

removal determination, but if they are arrested, they must be detained and cannot be released on bond or parole.
We agree that it would be very strange for Congress to forbid the release of aliens who need not be arrested in the first place, but the fact is that the Government's reading (and ours) does not have that incongruous result. The real anomalies here would flow instead from the Court of Appeals' interpretation.
To begin with the latter point: Under the Court of Appeals' reading, the mandatory-detention scheme would be gentler on terrorists than it is on garden-variety offenders. To see why, recall first that subparagraphs (A)-(C) cover aliens who are inadmissible or deportable based on the commission of certain criminal offenses, and there is no dispute that the statute authorizes their mandatory detention when they are released from criminal custody. And the crimes covered by these subparagraphs include, for example, any drug offense by an adult punishable by more than one year of imprisonment, see §§ 1182(a)(2), 1226(c)(1)(A), as well as a variety of tax offenses, see §§ 1226(c)(1)(B), 1227(a)(2)(A)(iii); Kawashima v. Holder, 565 U.S. 478, 132 S.Ct. 1166, 182 L.Ed.2d 1 (2012). But notice that aliens who fall within subparagraph (D), by contrast, may never have been arrested on criminal charges—which according to the court below would exempt them from mandatory detention. Yet this subparagraph covers the very sort of aliens for which Congress was most likely to have wanted to require mandatory detention—including those who are representatives of a terrorist group and those whom the Government has reasonable grounds to believe are likely to engage in terrorist activities. See 971*971 §§ 1182(a)(3)(B)(i)(III), (IV), 1226(c)(1)(D).[7] Thus, by the Court of Appeals' logic, Congress chose to spare terrorist aliens from the rigors of mandatory detention—a mercy withheld from almost all drug offenders and tax cheats. See Brief for National Immigrant Justice Center as Amicus Curiae 7-8. That result would be incongruous.
Along similar lines, note that one § 1226(c)(1) predicate reaches aliens who necessarily escape conviction: those "for whom immunity from criminal jurisdiction was exercised." § 1182(a)(2)(E)(ii). See § 1226(c)(1)(A). And other predicates sweep in aliens whom there is no reason to expect police (as opposed to immigration officials) will have reason to arrest: e.g., the "spouse or child of an alien" who recently engaged in terrorist activity. § 1182(a)(3)(B)(i)(IX); see § 1226(c)(1)(D). It would be pointless for Congress to have covered such aliens in subsections (c)(1)(A)-(D) if subsection (c)'s mandates applied only to those emerging from jail.
Thus, contrary to the Court of Appeals' interpretation of the "when released" clause as limiting the class of aliens subject to mandatory detention, we read subsection (c)(1) to specify the timing of arrest ("when the alien is released") only for the vast majority of cases: those involving criminal aliens who were once in criminal custody. The paragraph simply does not speak to the timeline for arresting the few who had no stint in jail. (And why should it? Presumably they—unlike those serving time—are to be detained as they come across the Government's radar and any relevant evidentiary standards are satisfied.[8])
In short, we read the "when released" directive to apply when there is a release. In other situations, it is simply not relevant. It follows that both of subsection (c)'s mandates—for

arrest and for release—apply to any alien linked with a predicate offense identified in subparagraphs (A)-(D), regardless of exactly when or even whether the alien was released from criminal custody.
C
Finally, respondents perch their reading of § 1226(c)—unsteadily, as it turns out—on the canon of constitutional avoidance. This canon provides that "[w]hen `a serious doubt' is raised about the constitutionality of an act of Congress, `... this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.'" Jennings, 583 U.S., at ___, 138 S.Ct., at 842 (quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932)).
Respondents say we should be uneasy about endorsing any reading of § 1226(c) that would mandate arrest and detention years after aliens' release from criminal custody— when many aliens will have developed strong ties to the country and a good chance of being allowed to stay if given a hearing. At that point, respondents 972*972 argue, mandatory detention may be insufficiently linked to public benefits like protecting others against crime and ensuring that aliens will appear at their removal proceedings. In respondents' view, detention in that scenario would raise constitutional doubts under Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), which held that detention violates due process absent "adequate procedural protections" or "special justification[s]" sufficient to outweigh one's "`constitutionally protected interest in avoiding physical restraint,'" id., at 690, 121 S.Ct. 2491 (quoting Kansas v. Hendricks, 521 U.S. 346, 356, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). Thus, respondents urge, we should adopt a reading of § 1226(c)—their reading—that avoids this result.
The trouble with this argument is that constitutional avoidance "`comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.'" Jennings, 583 U.S., at ___, 138 S.Ct., at 842. The canon "has no application" absent "ambiguity." Warger v. Shauers, 574 U.S. 40, 50, 135 S.Ct. 521, 190 L.Ed.2d 422 (2014) (internal quotation marks omitted). See also Zadvydas, 533 U.S. at 696, 121 S.Ct. 2491 ("Despite this constitutional problem, if Congress has made its intent in the statute clear, we must give effect to that intent" (internal quotation marks omitted)). Here the text of § 1226 cuts clearly against respondents' position, see Part III, supra, making constitutional avoidance irrelevant.
We emphasize that respondents' arguments here have all been statutory. Even their constitutional concerns are offered as just another pillar in an argument for their preferred reading of the language of § 1226(c)—an idle pillar here because the statute is clear. While respondents might have raised a head-on constitutional challenge to § 1226(c), they did not. Our decision today on the meaning of that statutory provision does not foreclose asapplied challenges—that is, constitutional challenges to applications of the statute as we have now read it.
* * *

The judgments of the Court of Appeals for the Ninth Circuit are reversed, and the cases are remanded for further proceedings.
It is so ordered.
Justice KAVANAUGH, concurring.
I write separately to emphasize the narrowness of the issue before us and, in particular, to emphasize what this case is not about.
This case is not about whether a noncitizen may be removed from the United States on the basis of criminal offenses. Under longstanding federal statutes, the Executive Branch may remove noncitizens from the United States when the noncitizens have been convicted of certain crimes, even when the crimes were committed many years ago.
This case is also not about whether a noncitizen may be detained during removal proceedings or before removal. Congress has expressly authorized the Executive Branch to detain noncitizens during their removal proceedings and before removal. 8 U.S.C. §§ 1226(a), (c), and 1231(a).
This case is also not about how long a noncitizen may be detained during removal proceedings or before removal. We have addressed that question in cases such as Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), Clark v. Martinez, 543 U.S. 371, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005), and Jennings v. Rodriguez, 583 U.S. ___, 138 S.Ct. 830, 200 L.Ed.2d 122 (2018).
973*973 This case is also not about whether Congress may mandate that the Executive Branch detain noncitizens during removal proceedings or before removal, as opposed to merely giving the Executive Branch discretion to detain. It is undisputed that Congress may mandate that the Executive Branch detain certain noncitizens during removal proceedings or before removal. Congress has in fact mandated detention of certain noncitizens who have been in criminal custody and who, upon their release, would pose a danger to the community or risk of flight. As relevant here, Congress has mandated detention "when" such noncitizens are "released" from criminal custody. 8 U.S.C. § 1226(c)(1).
The sole question before us is narrow: whether, under § 1226, the Executive Branch's mandatory duty to detain a particular noncitizen when the noncitizen is released from criminal custody remains mandatory if the Executive Branch fails to immediately detain the noncitizen when the noncitizen is released from criminal custody—for example, if the Executive Branch fails to immediately detain the noncitizen because of resource constraints or because the Executive Branch cannot immediately locate and apprehend the individual in question. No constitutional issue is presented. The issue before us is entirely statutory and requires our interpretation of the strict 1996 illegal-immigration law passed by Congress and signed by President Clinton. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009-546.

It would be odd, in my view, if the Act (1) mandated detention of particular non-citizens because the noncitizens posed such a serious risk of danger or flight that they must be detained during their removal proceedings, but (2) nonetheless allowed the noncitizens to remain free during their removal proceedings if the Executive Branch failed to immediately detain them upon their release from criminal custody. Not surprisingly, the Act does not require such an odd result. On the contrary, the relevant text of the Act is relatively straightforward, as the Court explains. Interpreting that text, the Court correctly holds that the Executive Branch's detention of the particular noncitizens here remained mandatory even though the Executive Branch did not immediately detain them. I agree with the Court's careful statutory analysis, and I join the Court's opinion in full.
Justice THOMAS, with whom Justice GORSUCH joins, concurring in part and concurring in the judgment.
I continue to believe that no court has jurisdiction to decide questions concerning the detention of aliens before final orders of removal have been entered. See Jennings v. Rodriguez, 583 U.S. ___, ___ _ ___, 138 S.Ct. 830, 852-858, 200 L.Ed.2d 122 (2018) (THOMAS, J., concurring in part and concurring in judgment). By my count, Congress has erected at least three barriers to our review of the merits, and I also question whether Article III jurisdiction existed at the time of class certification. Nonetheless, because the Court has held that we have jurisdiction in cases like these, and because I largely agree with the Court's resolution of the merits, I join all but Parts II and III-B-2 of the Court's opinion.
I
Respondents consist of two classes of aliens who committed criminal offenses that require the Secretary of Homeland Security to detain them without a bond hearing under 8 U.S.C. § 1226(c), but who were not detained immediately upon release from criminal custody. Respondents argued that, by failing to immediately detain 974*974 them, the Secretary lost the authority to deny them a bond hearing when they were rearrested.
The first class action was brought in the Northern District of California and has three class representatives. One of the plaintiffs, Mony Preap, received cancellation of removal and was not in immigration custody at the time of certification. The other two, Eduardo Vega Padilla and Juan Lozano Magdaleno, had received bond hearings as required by a Ninth Circuit decision, Rodriguez v. Robbins, 715 F.3d 1127, 1138 (2013); Padilla had been released, while Magdaleno was denied release. The District Court certified a class of all aliens in California who are or will be subjected to mandatory detention under § 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 § 1226(c)(1) offense. The court issued a preliminary injunction requiring the Government to provide all class members with bond hearings under § 1226(a).
The second class action was brought in the Western District of Washington and also has three class representatives: Bassam Yusuf Khoury and Alvin Rodriguez Moya, who had been released on bond before class certification after their Rodriguez hearings, and Pablo

Carrera Zavala, who was released before class certification because the Department of Homeland Security determined that he had not committed a predicate § 1226(c)(1) offense. The District Court certified a class of all aliens in its judicial district who were not detained immediately upon their release from criminal custody but were subjected to mandatory detention under § 1226(c). The court entered a declaratory judgment barring the Government from subjecting class members to detention under § 1226(c) unless it took the alien into custody immediately upon release.
II
At least three statutory provisions limit judicial review here, and I am skeptical whether the District Courts had Article III jurisdiction to certify the classes.
A
First, § 1252(b)(9) bars 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," except for review of "a final order" or other circumstances not present here. These cases raise questions of law or fact arising from removal proceedings— "[d]etention is necessarily a part of [the] deportation procedure" that culminates in the removal of the alien, Carlson v. Landon, 342 U.S. 524, 538, 72 S.Ct. 525, 96 L.Ed. 547 (1952)—and they do not come to us on review of final orders of removal. Thus, for the reasons I set forth in Jennings, supra, at ___ _ ___, 138 S.Ct., at 836-841, no court has jurisdiction over these class actions.
B
Second, § 1226(e) provides that "[n]o court may set aside any action or decision by the [Secretary] under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." (Emphasis added.) This provision "unequivocally deprives federal courts of jurisdiction to set aside `any action or decision' by the [Secretary]" regarding detention, discretionary or otherwise. Demore v. Kim, 538 U.S. 510, 533, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (O'Connor, J., concurring in part and concurring in judgment); see Jennings, supra, 975*975 at ___, n. 6, 138 S.Ct. at 858, n. 6. The Court once again reads this language as permitting judicial review for challenges to the "statutory framework as a whole." Ante, at 962 (internal quotation marks omitted). But the text of the statute contains no such exception. Accordingly, I continue to think that no court has jurisdiction over these kinds of actions.
C
Third, § 1252(f)(1) deprives district courts of "jurisdiction or authority to enjoin or restrain the operation of [§§ 1221-1232] other than with respect to the application of such provisions to an individual alien against whom proceedings under [§§ 1221-1232] have been initiated."

The text of § 1252(f)(1) explicitly prohibits the classwide injunctive relief ordered by the Northern District of California in this instance, given that the class includes future, yet-to-be detained aliens against whom proceedings have not been initiated. See Reno v. AmericanArab Anti-Discrimination Comm., 525 U.S. 471, 481, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (explaining that § 1252(f)(1) "prohibits federal courts from granting classwide injunctive relief against the operation of §§ 1221-1231"). The District Court relied on Rodriguez v. Hayes, 591 F.3d 1105 (CA9 2010), which held that this provision does not affect authority to enjoin alleged violations of the specified statutes because those claims do not "seek to enjoin the operation of the immigration detention statutes, but to enjoin conduct ... not authorized by the statutes." Id., at 1120. This reasoning is circular and unpersuasive. Many claims seeking to enjoin or restrain the operation of the relevant statutes will allege that the Executive's action does not comply with the statutory grant of authority, but the text clearly bars jurisdiction to enter an injunction "[r]egardless of the nature of the action or claim." Although the Court avoids deciding whether § 1252(f)(1) prevented the District Court's injunction here, ante, at 962, I would hold that it did.
D
Finally, I harbor two concerns about whether the class actions were moot at the time of certification. First, as the Court recognizes, class actions are ordinarily "moot if no named class representative with an unexpired claim remain[s] at the time of class certification." United States v. Sanchez-Gomez, 584 U.S. ___, ___, 138 S.Ct. 1532, 1538, 200 L.Ed.2d 792 (2018); ante, at 962. At the time of class certification, all six of the named plaintiffs had received bond hearings or cancellation of removal. As I understand the plaintiffs' arguments, that was the full relief that they sought: "individualized bond hearings where they may attempt to prove that their release would not create a risk of flight or danger to the public." Motion for Class Certification in Preap v. Beers, No. 4:13-cv-5754 (ND Cal.), Doc. 8, p. 8; see Complaint for Injunctive and Declaratory Relief in Preap, supra, Doc. 1, p. 3 (seeking "immediate individualized bond hearings"); First Amended Class Action Complaint in Khoury v. Asher, No. 2:13-cv-1367 (WD Wash.), Doc. 19, p. 13 (requesting relief of "individualized bond hearings to all Plaintiffs"). The Court concludes that some of the named plaintiffs still faced the threat of rearrest and mandatory detention at the time of class certification because the bond hearings that they received were provided as part of a preliminary injunction in a separate case that was later dissolved. But whether the plaintiffs actually faced that threat has not been addressed by the parties, and I question whether this future contingency was sufficiently imminent to support Article III jurisdiction.
976*976 If the threat of rearrest and mandatory detention was too speculative to support jurisdiction, I disagree with the Court that our jurisdiction would be saved by our precedent on transitory claims. Ante, at 962-963. We have held that a court has Article III jurisdiction to certify a class action when the named plaintiffs' claims have become moot if the claim is "so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires." United States Parole Comm'n v. Geraghty, 445 U.S. 388, 399, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). The "inherently transitory" exception is measured from the time that the complaint is filed to the court's ruling on the motion for class certification. See Genesis

Healthcare Corp. v. Symczyk, 569 U.S. 66, 75-77, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013). In other words, the named plaintiff's standing in a class action need not exist throughout the lifecycle of the entire lawsuit. Here, Members of the Court have recognized that aliens are held, on average, for one year, and sometimes longer. See Jennings, 583 U.S., at ___, 138 S.Ct., at 860 (BREYER, J., dissenting) (noting that detention for aliens is "often lengthy," sometimes lasting years). I am not persuaded that the plaintiffs' claims are so "inherently transitory" as to preclude a ruling on class certification, especially since both District Courts certified the classes here within a year of the filing of the complaints. Cf. County of Riverside v. McLaughlin, 500 U.S. 44, 47, 52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (finding jurisdiction over a class action that challenged a county's failure to provide "prompt" probable-cause hearings within the 48-hour window for arraignments, as required by state law).
* * *
Because three statutes deprive courts of jurisdiction over respondents' claims, I would have vacated the judgments below and remanded with instructions to dismiss the cases for lack of jurisdiction. But because the Court has held otherwise and I agree with the Court's disposition of the merits, I concur in all but Parts II and III-B-2 of its opinion.
Justice BREYER, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN join, dissenting.
A provision of the Immigration and Nationality Act, 8 U.S.C. § 1226(c), focuses upon potentially deportable noncitizens who have committed certain offenses or have ties to terrorism. It requires the Secretary of Homeland Security to take those aliens into custody "when ... released" from prison and to hold them without a bail hearing until Government authorities decide whether to deport them. The question is whether this provision limits the class of persons in the "no-bail-hearing" category to only those aliens who were taken into custody "when ... released" from prison, or whether it also places in that "no-bail-hearing" category those aliens who were taken into custody years or decades after their release from prison.
The critical statutory language is contained in paragraph (2) of this provision. That paragraph says (with one exception not relevant here) that "an alien described in paragraph (1)" must be held without a bail hearing. Here we must decide what these words mean. Do the words "an alien described in paragraph (1)" refer only to those aliens whom the Secretary, following paragraph (1)'s instructions, has "take[n] into custody ... when the alien is released" from, say, state or federal prison? Or do these words refer instead to all aliens who have ever committed one of the offenses listed in paragraph (1), regardless 977*977 of when these aliens were "released" from prison?
For present purposes, I accept the Court's holding in Jennings v. Rodriguez, 583 U.S. ___, 138 S.Ct. 830, 200 L.Ed.2d 122 (2018), that paragraph (2) forbids bail hearings for aliens "described in paragraph (1)." But see id., at ___, 138 S.Ct., at 878 (BREYER, J., dissenting) (interpreting paragraph (2) as not forbidding bail hearings, as the Constitution likely requires

them); id., at ___, 138 S.Ct., at 851 (majority opinion) (declining to reach constitutional question). Here, however, the Court goes much further. The majority concludes that paragraph (2) forbids bail hearings for aliens regardless of whether they are taken into custody "when ... released" from prison. Under the majority's view, the statute forbids bail hearings even for aliens whom the Secretary has detained years or decades after their release from prison.
The language of the statute will not bear the broad interpretation the majority now adopts. Rather, the ordinary meaning of the statute's language, the statute's structure, and relevant canons of interpretation all argue convincingly to the contrary. I respectfully dissent.
I
A
The relevant statute, 8 U.S.C. § 1226, is entitled "Apprehension and detention of aliens." See Appendix A, infra. Its first subsection, subsection (a), is entitled "Arrest, detention, and release." Subsection (a) sets forth the background rule. It gives the Secretary of Homeland Security (formerly the Attorney General) the authority to "arres[t] and detai[n]" an "alien ... pending a decision on whether the alien is to be removed from the United States." § 1226(a). See ante, at 959, n. 2. It adds that the Secretary "may release the alien" on "bond" or "conditional parole." § 1226(a)(2). Federal regulations provide that a person detained under this subsection must receive a bail hearing. 8 CFR §§ 236.1(d)(1), 1236.1(d)(1) (2018). With respect to release, however, subsection (a) adds the words "[e]xcept as provided in subsection (c)." 8 U.S.C. § 1226(a).
The subsection containing the exception to which (a) refers—namely, subsection (c)—is entitled "Detention of criminal aliens." It consists of two paragraphs.
Paragraph (1), entitled "Custody," says that the Secretary "shall take into custody any alien who" is "inadmissible" or "deportable" (by reason of having committed certain offenses or having ties to terrorism) "when the alien is released," presumably from local, state, or federal criminal custody. § 1226(c)(1) (emphasis added). Because the relevant offenses are listed in four subparagraphs headed by the letters "A," "B," "C," and "D," I shall refer to the relevant aliens as "ABCD" aliens. Thus, for present purposes, paragraph (1) says that the Secretary "shall take into custody any" ABCD alien "when the alien is released" from criminal custody.
Paragraph (2), entitled "Release," says that the Secretary "may release an alien described in paragraph (1) only if" the alien falls within a special category—not relevant here—related to witness protection. § 1226(c)(2) (emphasis added). We held last Term in Jennings that paragraph (2) forbids a bail hearing for "an alien described in paragraph (1)" unless the witness protection exception applies. 583 U.S., at ___ _ ___, 138 S.Ct., at 846847 (majority opinion).

Here we focus on the meaning of a key phrase in paragraph (2): "an alien described in paragraph (1)." This is the phrase that identifies the aliens to whom paragraph (2) (and its "no-bail-hearing" 978*978 requirement) applies. Does paragraph (1) "describ[e]" all ABCD aliens, even those whom the Secretary has "take[n] into custody" many years after their release from prison? Or does it "describ[e]" only those aliens whom the Secretary has "take[n] into custody ... when the alien [was] released" from prison?
B
The issue may sound technical. But it is extremely important. That is because the Government's reading of the statute— namely, that paragraph (2) forbids bail hearings for all ABCD aliens regardless of whether they were detained "when ... released" from criminal custody—would significantly expand the Secretary's authority to deny bail hearings. Under the Government's view, the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community. These aliens may then be detained for months, sometimes years, without the possibility of release; they may have been convicted of only minor crimes—for example, minor drug offenses, or crimes of "moral turpitude" such as illegally downloading music or possessing stolen bus transfers; and they sometimes may be innocent spouses or children of a suspect person. Moreover, for a high percentage of them, it will turn out after months of custody that they will not be removed from the country because they are eligible by statute to receive a form of relief from removal such as cancellation of removal. These are not mere hypotheticals. See Appendix B, infra. Thus, in terms of potential consequences and basic American legal traditions, see infra, at 981-982, the question before us is not a "narrow" one, ante, at 972-973 (KAVANAUGH, J., concurring).
Why would Congress have granted the Secretary such broad authority to deny bail hearings, especially when doing so would run contrary to basic American and common-law traditions? See Jennings, supra, at ___ _ ___, 138 S.Ct., at 863-864 (BREYER, J., dissenting). The answer is that Congress did not do so. Ordinary tools of statutory interpretation demonstrate that the authority Congress granted to the Secretary is far more limited.
II
The statute's language, its structure, and relevant canons of interpretation make clear that the Secretary cannot hold an alien without a bail hearing unless the alien is "take[n] into custody ... when the alien is released" from criminal custody. § 1226(c)(1).
A
Consider the statute's language. Paragraph (1) of subsection (c) provides that the Secretary "shall take into custody" any ABCD alien—that is, any alien who is "inadmissible" or "deportable" under the subparagraphs labeled "A," "B," "C," and "D"—"when the alien is

released" from, say, state or federal prison. Ibid. Paragraph (2), meanwhile, generally forbids a bail hearing for "an alien described in paragraph (1)." § 1226(c)(2).
The key phrase in paragraph (2) is "an alien described in paragraph (1)." As a matter of ordinary meaning and usage, the words "take into custody ... when the alien is released" in paragraph (1) form part of the description of the "alien": An "alien described in paragraph (1)" is an ABCD alien whom the Secretary has "take[n] into custody ... when the alien is released" from prison.
The majority emphasizes a grammatical point—namely, that ordinarily only adjectives or adjectival phrases "modify" nouns. 979*979 Ante, at 964. But the statute does not use the word "modify." It uses the word "described." While the word "describe" will in some contexts refer only to the words that directly "modify" a noun, normally it has a broader meaning. Compare American Heritage Dictionary 490 (5th ed. 2011) (to "describe" is to "convey an idea or impression of") and Webster's Third New International Dictionary 610 (1986) (to "describe" is to "convey an image or notion of") with P. Peters, The Cambridge Guide to English Usage 355 (2004) (defining a "modifie[r]" as a word that "qualifies" a noun).
The common rules of grammar make the broad scope of the word "described" obvious. They demonstrate that a noun often is "described" by more than just the adjectives that modify it. Consider the following sentence: "The well-behaved child was taken by a generous couple to see Hamilton." That sentence, written in the passive voice, describes the "child" not only as "well-behaved" but also as someone "taken by a generous couple to see Hamilton." The description of the child would not differ were we to write the sentence in the active voice: "The generous couple took the well-behaved child to see Hamilton." The action taken by the "generous couple" ("took... to see Hamilton") still "describes" the "child," even though these words do not "modify" the word "child." That is because a person who has been subjected to an action can be described by that action no less than by an adjective. See Peters, supra, at 386 (describing such a person as someone "affected by the action"); B. Garner, The Chicago Guide to Grammar, Usage, and Punctuation 452 (2016) (describing such a person as someone who "is acted on by or receives the action"); see also R. Huddleston & G. Pullum, The Cambridge Grammar of the English Language 1436 (2002) (noting the "large-scale overlap" between adjectives and certain verb forms).
An example illustrates how these principles apply to the statute at issue here. Imagine the following cookbook recipe. Instruction (1) says: "(1) Remove the Angus steak from the grill when the steak is cooked to 120 degrees Fahrenheit." Instruction (4) says: "(4) Let the steak described in Instruction (1) rest for ten minutes and then serve it." What would we say of a chef who grilled an Angus steak to 185 degrees Fahrenheit, served it, and then appealed to these instructions—particularly the word "described" in Instruction (4)—as a justification? That he was not a good cook? That he had an odd sense of humor? Or simply that he did not understand the instructions? The chef would have no good textual defense: The steak "described in Instruction (1)" is not just an "Angus" steak, but an "Angus" steak that must be "remove[d] ... when the steak is cooked to 120 degrees Fahrenheit." By the same logic, the alien in paragraph (1) is "described" not only by the four clauses— A, B, C, and D—that directly modify the word "alien," but also by the verb ("shall take") and that verb's modifier ("when the alien is released").

The majority argues that "the crucial point" is that the phrase "when the alien is released" plays "no role in identifying for the Secretary which aliens she must immediately arrest." Ante, at 965. That may be so. But why is that a "crucial point" in the majority's favor? After all, in the example above, the words "[r]emove ... from the grill when the steak is cooked to 120 degrees Fahrenheit" do not tell our chef what kind of steak to cook in the first place. (The word "Angus" does that.) Even so, those words still "describe" the steak that must be served in Instruction (4). Why? Because by the time our chef gets to Instruction (4), the recipe contemplates that the action in Instruction (1) has been completed. At that point, the. "steak described 980*980 in Instruction (1)" is a steak that has been cooked in the manner mandated by Instruction (1).
The same is true of the two paragraphs before us. The key word "described" appears not in paragraph (1), but in paragraph (2). Paragraph (2) refers back to the entirety of paragraph (1). And because paragraph (2) is the release provision, it contemplates that the action mandated by paragraph (1)—namely, detention—has already occurred. Thus, the function of the phrase "an alien described in paragraph (1)" is not to describe who must be detained, but instead to describe who must be denied bail.
In short, the language demonstrates that an alien is "described in paragraph (1)"—and therefore subject to paragraph (2)'s bar on bail hearings—only if the alien is "take[n] into custody ... when the alien is released."
B
The statute's structure and context support this reading of the phrase "an alien described in paragraph (1)."
First, "Congress often drafts statutes with hierarchical schemes—section, subsection, paragraph, and on down the line." NLRB v. SW General, Inc., 580 U.S. ___ ___, 137 S.Ct. 929, 938-939, 197 L.Ed.2d 263 (2017). Congress employed that structure "to make precise cross-references" throughout the immigration code. Ibid. As relevant here, in a different detention provision enacted alongside the provision at issue here, Congress said that the Government "may release the alien only if the alien is an alien described in subparagraph (A)(ii) or (A)(iii)." Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), § 303(b)(3)(B), 110 Stat. 3009-587. Yet Congress did not make such a precise cross-reference in paragraph (2): It did not refer to "an alien described in subparagraphs (A)-(D) of paragraph (1)," as it could have—and would have—done had it intended the majority's narrow interpretation. Instead, it referred to aliens "described" in the entirety of paragraph (1).
We usually "presume differences in language like this convey differences in meaning." Henson v. Santander Consumer USA Inc., 582 U.S. ___, ___, 137 S.Ct. 1718, 1723, 198 L.Ed.2d 177 (2017). The cross-reference to all of paragraph (1) reinforces that "an alien described in paragraph (1)" is not just an ABCD alien, but an ABCD alien whom (in the words of paragraph (1)) the Secretary "take[s] into custody ... when the alien is released" from criminal confinement.

Second, consider the structural similarity between subsections (a) and (c). See Appendix A, infra. The first sentence of subsection (a) sets forth a detention rule: An "alien may be arrested and detained" pending a decision on the alien's removal. 8 U.S.C. § 1226(a). And the second sentence sets forth a release rule that allows for release on bond and parole. Ibid. Subsection (c) has a parallel structure. The first sentence (namely, paragraph (1)) says that the Secretary must "take into custody" a subset of those aliens "when the alien is released" from criminal custody. § 1226(c)(1). And the second sentence (namely, paragraph (2)) sets forth the rule that "an alien described in paragraph (1)" generally may not be released. § 1226(c)(2).
It is obvious that the second sentence of (a) applies only to those aliens who are detained following the rule in (a)'s first sentence. Parallel structure suggests that the same is true in (c): The second sentence of (c) applies only to those detained following the rule in (c)'s first sentence. Subsection (a)'s reference to (c) strengthens 981*981 this structural inference: Subsection (a) says that its release rule applies "[e]xcept as provided in subsection (c)"— that is, except as provided in the whole of subsection (c), not simply paragraph (2) or the few lines the majority picks from (c)'s text.
Thus, the release rule in each subsection (the second sentence) applies only if the Secretary complies with the detention rule in that subsection (the first sentence). In light of "the parallel structures of these provisions," it would "flou[t] the text" to find that an alien is subject to (c)'s release rule, which forbids release, without also finding that the alien was detained in accordance with (c)'s detention rule, which requires the alien to be detained "when... released." Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 132, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989).
The majority responds that subsections (a) and (c) do not "establis[h] separate sources of arrest and release authority," and that (c) is merely "a limit" on the authority granted by (a). Ante, at 966. But even if (c) were treated as a "limit" on the authority granted by (a), the parallel structure of the statute would still point to the same conclusion: The Secretary must comply with the limit on detention in the first sentence of (c) in order to invoke the rule on release in the second sentence of (c).
Third, Congress' enactment of a special "transition" statute strengthens the point. When Congress enacted subsection (c), it recognized that there might be "insufficient detention space" and "personnel" to carry out subsection (c)'s requirements. IIRIRA, § 303(b)(2), 110 Stat. 3009-586. It therefore authorized the Government to delay implementation of subsection (c)— initially for one year, then for a second year. Ibid.
If the majority were correct that the "when ... released" provision does not set a time limit on the Secretary's authority to deny bail hearings, then a special transition statute delaying implementation for one year would have been unnecessary. To avoid overcrowding, the Government simply could have delayed arresting aliens for 1, 2, 5, or 10 years, as the majority believes it can do, and then deny them bail hearings. What need for a 1-year transition period? The majority responds that the transition statute still served a purpose: to "dela[y] the onset of the Secretary's obligation to begin making arrests." Ante, at 969. But that just raises the question: Why would Congress have needed to "dela[y] the onset of the

Secretary's obligation" if it thought that the Secretary could detain aliens without a bail hearing after a year-long delay? The majority offers no good answer. The transition statute therefore strongly suggests that Congress viewed the "when ... released" provision as a constraint on the Secretary's authority to deny a bail hearing.
The transition statute also supports this conclusion in another respect: It demonstrates that Congress anticipated that subsection (c) would apply only to aliens "released" from state or federal prison. As noted, clauses A, B, C, and D in paragraph (1) cover some aliens who have never been in criminal custody. Supra, at 978. Even the majority acknowledges that it would be bizarre if these aliens could be detained without a bail hearing. Ante, at 970. The transition statute confirms as much: It indicates that "the provisions of [subsection (c)] shall apply to individuals released after" the transition period concludes. IIRIRA, § 303(b)(2), 110 Stat. 3009-586 (emphasis added). From this it follows that Congress saw paragraph (2) as forbidding bail hearings only for aliens who have been "released." That, however, can be true only if the "when ... released" provision limits the class of aliens subject to paragraph 982*982 (2)'s "no-bail-hearing" requirement. The majority's contrary reading, under which paragraph (2) applies "regardless of... whether the alien was released from criminal custody," ante, at 971, conflicts with how Congress itself described the scope of subsection (c) when it enacted the statute.
C
Even if statutory text and structure were not enough to resolve these cases, the Government's reading would fail for another reason. A well-established canon of statutory interpretation provides that, "if fairly possible," a statute must be construed "so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score." United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 60 L.Ed. 1061 (1916). See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988) (using word "serious" instead of "grave"). The Government's reading of the statute, which the majority adopts, construes the statute in a way that creates serious constitutional problems. That reading would give the Secretary authority to arrest and detain aliens years after they have committed a minor crime and then hold them without a bail hearing for months or years. This possibility is not simply theoretical. See Appendix B, infra.
In Jennings, I explained why I believe the practice of indefinite detention without a bail hearing likely deprives a "person" of his or her "liberty ... without due process of law." U.S. Const., Amdt. 5. See 583 U.S., at ___, 138 S.Ct., at 861 (dissenting opinion). This practice runs counter to "those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of" the Founders' "ancestors." Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 277, 15 L.Ed. 372 (1856). It runs counter to practices well established at the time of the American Revolution. Jennings, supra, at ___ _ ___, 138 S.Ct., at 840-841. And it runs counter to common sense: Why would the law grant a bail hearing to a person accused of murder but deny it to a person who many years before committed a crime perhaps no greater than possessing a stolen bus transfer? See Appendix B, infra.

I explained much of the constitutional problem in my dissent in Jennings. Rather than repeat what I wrote there, I refer the reader to that opinion. See Jennings, supra, at ___, 138 S.Ct., at 836. I add only the obvious point that a bail hearing does not mean release on bail. It simply permits the person held to demonstrate that, if released, he will neither run away nor pose a threat. It is especially anomalous to take this opportunity away from an alien who committed a crime many years before and has since reformed, living productively in a community.
The majority's reading also creates other anomalies. As I have said, by permitting the Secretary to hold aliens without a bail hearing even if they were not detained "when ... released," the majority's reading would allow the Secretary to hold indefinitely without bail those who have never been to prison and who received only a fine or probation as punishment. Supra, at 978, 981-982. See, e.g., § 1226(c)(1)(A) (incorporating § 1182(a)(2), which covers controlled substance offenses for which the maximum penalty exceeds one year); Brief for Advancement Project et al. as Amici Curiae 19, 24, 29 (describing examples). That fact simply aggravates the constitutional problem.
983*983 III
Although the Court of Appeals correctly concluded that paragraph (2)'s prohibition on release applies only to an alien whom the Secretary "take[s] into custody ... when the alien is released" from criminal custody, it also held that the phrase "when the alien is released" means that the Secretary must grant a bail hearing to any alien who is not "`immediately detained' when released from criminal custody." Preap v. Johnson, 831 F.3d 1193, 1207 (CA9 2016). I disagree with the Court of Appeals as to the meaning of the phrase "when the alien is released."
A
As an initial matter, the phrase "when the alien is released" imposes an enforceable statutory deadline. I cannot agree with Justice ALITO, who writes for a plurality of the Court on this point, that our cases holding certain statutory deadlines unenforceable are applicable here. Ante, at 967. See, e.g., Barnhart v. Peabody Coal Co., 537 U.S. 149, 152, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003) (holding that the Government's untimeliness did not bar it from taking action beyond the statutory deadline); United States v. MontalvoMurillo, 495 U.S. 711, 713-714, 110 S.Ct. 2072, 109 L.Ed.2d 720 (1990) (holding that a provision requiring a detention hearing to "`be held immediately'" did not bar detention in the event of a late hearing); Brock v. Pierce County, 476 U.S. 253, 266, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986) (holding that the Government's failure to observe a 120-day statutory deadline did not deprive it of authority under the statute).
I disagree with the plurality on this point because our case law makes clear that a statutory deadline against the Government must be enforced at least in contexts where "other part[s]" of the relevant statutes indicate that the time limit must be enforced, Montalvo-Murillo, supra, at 717, 110 S.Ct. 2072; see also Barnhart, supra, at 161, 163, 123 S.Ct. 748; Dolan v. United States, 560 U.S. 605, 613, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010); where the

statute "`specif[ies] a consequence for non-compliance'" with the time limit, Barnhart, supra, at 159, 123 S.Ct. 748 (quoting United States v. James Daniel Good Real Property, 510 U.S. 43, 63, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993)); or where the harms caused by the Government's delay are likely to be serious, see Dolan, supra, at 615-616, 130 S.Ct. 2533; Montalvo-Murillo, supra, at 719-720, 110 S.Ct. 2072.
Here, the special transition statute Congress enacted alongside subsection (c) makes clear that Congress expected that the mandate that an alien be detained "when ... released" would be enforceable. Congress neither wished for nor expected the Secretary to detain aliens more than a year after their release from criminal custody. IIRIRA, § 303(b)(2), 110 Stat. 3009-586. Why else would Congress have enacted a statute permitting the Government, due to "insufficient detention space and Immigration and Naturalization Service personnel," to delay implementation of the entirety of subsection (c) for one year? Ibid. As I have said, had Congress read the phrase "when the alien is released" as the plurality now reads it, the Government could have delayed implementation for as long as it liked without the need for any transition statute. Supra, at 981. The transition statute demonstrates that Congress viewed the phrase "when the alien is released" as imposing a deadline. Based on the transition statute, the Secretary may not delay detention under subsection (c) for longer than one year.
Moreover, the statute does "`specify a consequence'" for the Secretary's failure to detain an alien "when the alien is released." Barnhart, supra, at 159, 123 S.Ct. 984*984 748 (quoting James Daniel Good, supra, at 63, 114 S.Ct. 492). In that case, subsection (c) will not apply, and the Secretary must fall back on subsection (a), the default detention and release provision. Critically, subsection (a) does not guarantee release. Rather, it leaves much to the Government's judgment: By regulation, aliens who are subject to subsection (a)'s default detention and release rules will simply receive a hearing at which they can attempt to demonstrate that, if released, they will not pose a risk of flight or a threat to the community. 8 CFR §§ 236.1(d)(1), 1236.1(d)(1).
Finally, I have already mentioned the many harms that could befall aliens whom the Secretary does not detain "when ... released." They range from long periods of detention, to detention years or even decades after the alien's release from criminal custody, to the risk of splitting up families that are long established in a community. Supra, at 981. Thus, unlike some of our prior cases, the harm from a missed deadline hardly can be described as "insignificant." Montalvo-Murillo, supra, at 719, 110 S.Ct. 2072.
The plurality objects that "Congress could not have meant for judges to `enforce'" the mandatory detention requirement "in case of delay by—of all things— forbidding its execution." Ante, at 968. But treating the "when the alien is released" clause as an enforceable limit does not prohibit the Secretary from detaining the aliens that subsection (c) requires her to detain. Rather, the Secretary's failure to comply with the "when the alien is released" clause carries only one consequence: The Secretary cannot deny a bail hearing.
B

So what does the phrase "when the alien is released" mean? The word "when" can, but does not always, mean "[a]t the time that," American Heritage Dictionary, at 1971, or "just after the moment that," Webster's Third New International Dictionary, at 2602. But the word only "[s]ometimes impl[ies] suddenness." 20 Oxford English Dictionary 209 (2d ed. 1989). It often admits of at least some temporal delay. A child who is told to "mow the lawn, please, when you get home from school" likely does not have to mow the lawn the second she comes into the house. She can do a few other things first.
Mindful of "the greater immigration-related expertise of the Executive Branch" and "the serious administrative needs and concerns inherent in the necessarily extensive [Government] efforts to enforce this complex statute," I would interpret the word "when" in the same manner as we interpreted other parts of this statute in Zadvydas v. Davis, 533 U.S. 678, 700, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The words "when the alien is released" require the Secretary to detain aliens under subsection (c) within a reasonable time after their release from criminal custody—presumptively no more than six months. If the Secretary does not do so, she must grant a bail hearing. This presumptive 6-month limit is consistent with how long the Government can detain certain aliens while they are awaiting removal from the country. Id., at 682, 701, 121 S.Ct. 2491 (interpreting a different provision, § 1231(a)(6)). To insist upon similar treatment in this context would give the Government sufficient time to detain aliens following their release from local, state, or federal criminal custody. It would also ensure that the Government does not fall outside the 1-year maximum dictated by the transition statute. See supra, at 981, 983-984.
IV
To reiterate: The question before us is not "narrow." Ante, at 972-973 (KAVANAUGH, 985*985 J., concurring). See supra, at 978. That is because we cannot interpret the words of this specific statute without also considering basic promises that America's legal system has long made to all persons. In deciphering the intent of the Congress that wrote this statute, we must decide—in the face of what is, at worst, linguistic ambiguity—whether Congress intended that persons who have long since paid their debt to society would be deprived of their liberty for months or years without the possibility of bail. We cannot decide that question without bearing in mind basic American legal values: the Government's duty not to deprive any "person" of "liberty" without "due process of law," U.S. Const., Amdt. 5; the Nation's original commitment to protect the "unalienable" right to "Liberty"; and, less abstractly and more directly, the longstanding right of virtually all persons to receive a bail hearing.
I would have thought that Congress meant to adhere to these values and did not intend to allow the Government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing. In my view, the Court should interpret the words of this statute to reflect Congress' likely intent, an intent that is consistent with our basic values. To speak more technically, I believe that aliens are subject to paragraph (2)'s bar on release only if they are detained "when ... released" from criminal custody. To speak less technically, I fear that the Court's contrary interpretation will work serious harm to the principles for which American law has long stood.

For these reasons, with respect, I dissent.
APPENDIXES
A
8 U.S.C. § 1226. "Apprehension and detention of aliens
"(a) Arrest, detention, and release
"On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General—
"(1) may continue to detain the arrested alien; and
"(2) may release the alien on—
"(A) bond of at least $ 1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
"(B) conditional parole;
. . . . .
"(c) Detention of criminal aliens
"(1) Custody
"The Attorney General shall take into custody any alien who—
"(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title
"(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
"(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or
"(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under 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 986*986 arrested or imprisoned again for the same offense.

"(2) Release
"The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien." (Emphasis added.)
B
The following citations support the claims made supra, at 978, regarding the breadth of the Government's reading of the statute. I do not intend to suggest that these citations provide a complete description of the many aliens who are detained without a bail hearing under 8 U.S.C. § 1226(c). See Jennings v. Rodriguez, 583 U.S. ___, ___, 138 S.Ct. 830, 860, 200 L.Ed.2d 122 (2018) (BREYER, J., dissenting) (indicating that thousands of aliens are eligible to be detained under subsection (c), that many are held for six months or longer, and that "[n]early 40% of those who have served criminal sentences receive relief from removal"); Preap v. Johnson, 831 F.3d 1193, 1197 (CA9 2016) (noting that one respondent was detained 11 years after his release from prison); Brief for Advancement Project et al. as Amici Curiae 12 (presenting data from a recent lawsuit in Massachusetts indicating that more than one in five aliens detained under subsection (c) were taken into custody more than five years after their release from prison); § 1226(c)(1)(A) (referencing § 1182(a)(2), which includes aliens who have committed federal or state controlled substance offenses for which the maximum term of imprisonment exceeds one year); § 1226(c)(1)(C) (referencing § 1227(a)(2)(A)(i), which applies to aliens convicted of certain crimes "involving moral turpitude"); Hashish v. Gonzales, 442 F.3d 572, 576 (CA7 2006) (illegally downloading music is a crime of "moral turpitude"); Michel v. INS, 206 F.3d 253, 261 (CA2 2000) (possessing stolen bus transfers is a crime of "moral turpitude"); § 1226(c)(1)(D) (referencing § 1182(a)(3)(B), which covers the "spouse or child" of certain aliens engaged in terrorist activity); § 1229b (identifying the requirements for obtaining cancellation of removal).
[1] Together with Wilcox, Acting Field Office Director, Immigration and Customs Enforcement, et al. v. Khoury et al. (see this Court's Rule 12.4), also on certiorari to the same court.
[*] The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
[1] This provision states:
"(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."
[2] We replace "Attorney General" with "Secretary" because Congress has empowered the Secretary to enforce the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., though the Attorney General retains the authority to administer removal proceedings and decide relevant questions of law. See, e.g., 6 U.S.C. §§ 202(3), 251, 271(b), 542 note, 557; 8 U.S.C. §§ 1103(a)(1) and (g), 1551 note.
[3] The full text of § 1226(c) is set out infra, at 963-964.
[4] Nevertheless, such cases appear to be rare. See Straker v. Jones, 986 F.Supp.2d 345, 357, n. 8 (SDNY 2013) (citing Gomez v. Napolitano, 2012 U.S. App. LEXIS 27076 (CA2, June 5, 2012)). But see Alafyouny v. Chertoff, 2006 WL 1581959, *3, *24 (N.D. Tex., May 19, 2006) (an alien was subject to mandatory detention based on a determination that the alien had solicited funds for a terrorist group).
[5] For this reason, it is irrelevant that (as the dissent notes, see post, at 980) paragraph (2) applies to aliens described in "paragraph (1)" and not "subparagraphs (A)-(D)." These two phrases denote the same category, so nothing can be gleaned from Congress's choice of one over the other.
[6] The dissent asks why Congress would have felt the need to provide for a delay if it thought that either way, the Secretary would get to deny a hearing to aliens arrested well after release. Post, at 981; see also post, at 982-984. The answer is that Congress does not draft legislation in the expectation that the Executive will blow through the deadlines it sets. That is why Congress specifies any deadlines for executive duties at all; and here it explains why Congress furthermore provided that the deadline it set for this particular duty (to arrest criminal aliens upon their release) would not take effect right away.
In fact, if the dissent's argument from the transition rules were sound—i.e., if textual evidence that Congress expects the Executive to meet a deadline (once it officially takes effect) were proof that Congress wanted the deadline enforced by courts—then every case involving an express statutory deadline would be one in which Congress intended for courts to enforce the deadline. But this would include, by definition, all of the loss-of-authority cases we discussed above, see Part III-B-2, supra—a long line of precedent that the dissent does not question.
[7] In Alafyouny, 2006 WL 1581959, for example, an alien subject to mandatory detention had not been charged with any crime. Rather, in a hearing to consider his application for adjustment of status, an immigration judge found that the alien had engaged in terrorismrelated activity identified in § 1182(a)(3)(B)(iv)(IV)(cc), which qualified him for mandatory detention under § 1226(c)(1)(D). Id., at *3, *24.
[8] See n. 7, supra. Detainees who deny that they satisfy any § 1226(c) predicate may challenge their mandatory detention in a Joseph hearing. See Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999). See also Jennings v. Rodriguez, 583 U.S. ___, ___, n. 1, 138 S.Ct. 830, 838, n. 1, 200 L.Ed.2d 122 (2018).

 
 6/5/2020

WAWD CM/ECF Version 1.3

Query Reports Utilities Help Log Out

CLOSED,DOCUMENTS ARE RESTRICTED TO CASE PARTICIPANTS AND PUBLIC TERMINALS IN IMMIGRATION CASES

U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:13-cv-01367-RAJ

Khoury et al v. Asher et al Assigned to: Judge Richard A. Jones Cause: 28:1331 Fed. Question
Plaintiff Bassam Yusuf Khoury

Date Filed: 08/01/2013 Date Terminated: 05/31/2019 Jury Demand: None Nature of Suit: 463 Habeas Corpus - Alien Detainee Jurisdiction: U.S. Government Defendant
represented by Betsy P Tao NORTHWEST IMMIGRANT RIGHTS PROJECT (TAC) 402 TACOMA AVE S SUITE 300 TACOMA, WA 98402 206-957-8647 Email: betsy@nwirp.org TERMINATED: 01/30/2014 LEAD ATTORNEY
Christopher Strawn NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8628 Fax: 206-587-4025 Email: chris@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice Lee AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 BROAD ST 18TH FL NEW YORK, NY 10004 212-549-2676 Email: elee@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?368592807633265-L_1_0-1

1/14

6/5/2020

WAWD CM/ECF Version 1.3

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?368592807633265-L_1_0-1

Judy Rabinovitz AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 BROAD ST 18TH FL NEW YORK, NY 10004 212-549-2618 Email: jrabinovitz@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Tan AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 125 BROAD STREET FLOOR 18 NEW YORK, NY 10004 212-519-7848 Email: mtan@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Pauw GIBBS HOUSTON PAUW 1000 SECOND AVE STE 1600 SEATTLE, WA 98104 206-682-1080 Fax: 206-689-2270 Email: rpauw@ghp-law.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah A Dunne ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 PO BOX 2728 SEATTLE, WA 98111 206-624-2184 Email: sarahadunne@yahoo.com TERMINATED: 04/16/2015 LEAD ATTORNEY
Sarah Mehta AMERICAN CIVIL LIBERTIES UNION (NY) IMMIGRANTS' RIGHTS PROJECT 125 BROAD ST 18TH FLOOR NEW YORK, NY 10004-2400
2/14

6/5/2020

WAWD CM/ECF Version 1.3
212-519-7826 Email: smehta@aclu.org TERMINATED: 09/13/2013 LEAD ATTORNEY PRO HAC VICE

Devin T Theriot-Orr OPEN SKY LAW PLLC 20415 72ND AVE S STE 110 KENT, WA 98032 206-962-5052 Fax: 206-681-9663 Email: devin@opensky.law ATTORNEY TO BE NOTICED

Emily Chiang ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 SEATTLE, WA 98164 206-624-2184 Email: echiang@aclu-wa.org ATTORNEY TO BE NOTICED

La Rond Baker KING COUNTY DPD 710 SECOND AVE STE 200 SEATTLE, WA 98104 206-263-6884 Email: lbaker@kingcounty.gov TERMINATED: 05/28/2019

Plaintiff Alvin Rodriguez Moya

Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206-957-8611 Email: matt@nwirp.org ATTORNEY TO BE NOTICED
represented by Betsy P Tao (See above for address) TERMINATED: 01/30/2014 LEAD ATTORNEY

Christopher Strawn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eunice Lee

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?368592807633265-L_1_0-1

3/14

6/5/2020

WAWD CM/ECF Version 1.3
(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah A Dunne (See above for address) TERMINATED: 04/16/2015 LEAD ATTORNEY

Sarah Mehta (See above for address) TERMINATED: 09/13/2013 LEAD ATTORNEY PRO HAC VICE

Devin T Theriot-Orr (See above for address) ATTORNEY TO BE NOTICED

Emily Chiang (See above for address) ATTORNEY TO BE NOTICED

La Rond Baker (See above for address) TERMINATED: 05/28/2019

Matt Adams (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Pablo Carrera Zavala on behalf of themselves as individuals and on behalf of others similarly situated

represented by Betsy P Tao (See above for address) TERMINATED: 01/30/2014 LEAD ATTORNEY

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?368592807633265-L_1_0-1

4/14

6/5/2020

WAWD CM/ECF Version 1.3
Christopher Strawn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eunice Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Pauw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah A Dunne (See above for address) TERMINATED: 04/16/2015 LEAD ATTORNEY
Sarah Mehta (See above for address) TERMINATED: 09/13/2013 LEAD ATTORNEY PRO HAC VICE
Devin T Theriot-Orr (See above for address) ATTORNEY TO BE NOTICED
Emily Chiang (See above for address) ATTORNEY TO BE NOTICED
La Rond Baker (See above for address) TERMINATED: 05/28/2019
Matt Adams

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?368592807633265-L_1_0-1

5/14

6/5/2020

WAWD CM/ECF Version 1.3
(See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Lowell Clark Warden, NWDC

represented by Hans H. Chen US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-307-4469 Email: hans.h.chen@usdoj.gov ATTORNEY TO BE NOTICED

Lori B Warlick US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-532-4315 Email: lori.warlick2@usdoj.gov ATTORNEY TO BE NOTICED

Timothy Michael Belsan US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-532-4596 Email: timothy.m.belsan@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Nathalie R Asher Field Ofﬁce Director, ICE

Troy D. Liggett US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202-532-4765 Email: troy.liggett@usdoj.gov ATTORNEY TO BE NOTICED
represented by Hans H. Chen (See above for address) ATTORNEY TO BE NOTICED

Lori B Warlick (See above for address)

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?368592807633265-L_1_0-1

6/14

6/5/2020
Defendant Lowell Clark Warden, NWDC
Defendant Juan P Osuna Director of EOIR
Defendant Eric H Holder Jr Attorney General of the United States

WAWD CM/ECF Version 1.3
ATTORNEY TO BE NOTICED
Timothy Michael Belsan (See above for address) ATTORNEY TO BE NOTICED
Troy D. Liggett (See above for address) ATTORNEY TO BE NOTICED
represented by Hans H. Chen (See above for address) ATTORNEY TO BE NOTICED
Lori B Warlick (See above for address) ATTORNEY TO BE NOTICED
Timothy Michael Belsan (See above for address) ATTORNEY TO BE NOTICED
represented by Hans H. Chen (See above for address) ATTORNEY TO BE NOTICED
Lori B Warlick (See above for address) ATTORNEY TO BE NOTICED
Timothy Michael Belsan (See above for address) ATTORNEY TO BE NOTICED
Troy D. Liggett (See above for address) ATTORNEY TO BE NOTICED
represented by Hans H. Chen (See above for address) ATTORNEY TO BE NOTICED
Lori B Warlick (See above for address) ATTORNEY TO BE NOTICED
Timothy Michael Belsan (See above for address) ATTORNEY TO BE NOTICED

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?368592807633265-L_1_0-1

7/14

6/5/2020
Defendant Janet Napolitano Secretary of the Department of Homeland Security
Defendant United States of America
Defendant John Sandweg Acting Director, Immigration and Customs Enforcement (ICE)

WAWD CM/ECF Version 1.3
Troy D. Liggett (See above for address) ATTORNEY TO BE NOTICED
represented by Hans H. Chen (See above for address) ATTORNEY TO BE NOTICED
Lori B Warlick (See above for address) ATTORNEY TO BE NOTICED
Timothy Michael Belsan (See above for address) ATTORNEY TO BE NOTICED
Troy D. Liggett (See above for address) ATTORNEY TO BE NOTICED
represented by Hans H. Chen (See above for address) ATTORNEY TO BE NOTICED
Lori B Warlick (See above for address) ATTORNEY TO BE NOTICED
Timothy Michael Belsan (See above for address) ATTORNEY TO BE NOTICED
Troy D. Liggett (See above for address) ATTORNEY TO BE NOTICED
represented by Hans H. Chen (See above for address) ATTORNEY TO BE NOTICED
Lori B Warlick (See above for address) ATTORNEY TO BE NOTICED
Troy D. Liggett (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?368592807633265-L_1_0-1

8/14

6/5/2020
08/01/2013

WAWD CM/ECF Version 1.3
1 COMPLAINT class action against defendant(s) All Defendants (Receipt # 0981-3297684), ﬁled by Bassam Yusuf Khoury, Pablo Carrera Zavala, Alvin Rodriguez Moya. (Attachments: # 1 Civil Cover Sheet JS 44, # 2 Supplement JS 44 attachment, # 3 Summons Asher, # 4 Summons AUSA, # 5 Summons Clark, # 6 Summons Holder, # 7 Summons Napolitano, # 8 Summons OGC, # 9 Summons Osuna)(Adams, Matt) (Entered: 08/01/2013)

08/01/2013

2 MOTION to Certify Class by Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya. Oral Argument Requested. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit I, # 10 Proposed Order proposed order) Noting Date 8/23/2013, (Adams, Matt) (Entered: 08/01/2013)

08/02/2013

3 NOTICE of Appearance by attorney Devin T Theriot-Orr on behalf of Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya. (Theriot-Orr, Devin) (Entered: 08/02/2013)

08/02/2013

4 APPLICATION OF ATTORNEY Michael Tan FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya (Fee Paid) Receipt No. 0981-3298348. (Dunne, Sarah) (Entered: 08/02/2013)

08/02/2013

5 APPLICATION OF ATTORNEY Sarah Mehta FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya (Fee Paid) Receipt No. 0981-3298367. (Dunne, Sarah) (Entered: 08/02/2013)

08/02/2013

6 APPLICATION OF ATTORNEY Judy Rabinovitz FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya (Fee Paid) Receipt No. 0981-3298378. (Dunne, Sarah) (Entered: 08/02/2013)

08/02/2013

7 ORDER re 4 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Michael Tan for Pablo Carrera Zavala, Bassam Yusuf Khoury, and for Alvin Rodriguez Moya, by William M. McCool. (No document associated with this docket entry, text only.) (DS) (Entered: 08/02/2013)

08/02/2013

8 ORDER re 5 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Sarah Mehta for Pablo Carrera Zavala, Bassam Yusuf Khoury, and for Alvin Rodriguez Moya, by William M. McCool. (No document associated with this docket entry, text only.) (DS) (Entered: 08/02/2013)

08/02/2013

9 ORDER re 6 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Judy Rabinovitz for Pablo Carrera Zavala, Bassam Yusuf Khoury, and for Alvin Rodriguez Moya, by William M. McCool. (No document associated with this docket entry, text only.) (DS) (Entered: 08/02/2013)

08/02/2013

Hon. Mary Alice Theiler added. (RE) (Entered: 08/02/2013)

08/02/2013

10 NOTICE OF INITIAL ASSIGNMENT TO A US MAGISTRATE JUDGE AND CONSENT OR DECLINE FORM. If consent or decline, return the executed form by 9/13/2013. Please Note: Forms must not be electronically ﬁled with the Court. (RE) (Entered: 08/02/2013)

08/02/2013

11 Summons electronically issued as to defendant(s) Nathalie Asher, Lowell Clark(Warden, NWDC), Eric H Holder Jr, Janet Napolitano, Juan P Osuna, United States of America. (Attachments: # 1 Summons-US Atty, # 2 Summons-Clark, # 3 Summons-Holder, # 4 Summons-Napolitano, # 5 Summons-General Counsel, # 6 Summons-Osuna)(RE) (Entered: 08/02/2013)

08/02/2013 12 PRAECIPE to attach document (Exh. B, Dkt. 2-2) redacted Exhibit B, Dkt. 2-2 re 2

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?368592807633265-L_1_0-1

9/14

6/5/2020

WAWD CM/ECF Version 1.3
MOTION to Certify Class by Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya. (Attachments: # 1 Exhibit Redacted Exh. B, Dkt. 2-2)(Strawn, Christopher) (Entered: 08/02/2013)

08/05/2013

13 AFFIDAVIT of Mailing of Summons and Complaint to All Defendants on 8/2/2013, ﬁled by Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya. (Attachments: # 1 Exhibit Certiﬁed Mail Receipts)(Theriot-Orr, Devin) (Entered: 08/05/2013)

08/08/2013

14 MOTION for Preliminary Injunction by Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya. Oral Argument Requested. (Attachments: # 1 Exhibit Ex A (Jaeggli Aff.), # 2 Exhibit Ex B (Khoury Decl), # 3 Exhibit Ex C (Hurtado Decl), # 4 Exhibit Ex D (Rodriguez Decl), # 5 Exhibit Ex E part 1 (Kelly Decl), # 6 Exhibit Ex E part 2, # 7 Exhibit Ex E part 3, # 8 Exhibit Ex F (Carrera Decl), # 9 Exhibit Ex G (Tan Decl), # 10 Proposed Order Propsed order) Noting Date 8/30/2013, (Strawn, Christopher) (Entered: 08/08/2013)

08/09/2013

15 PRAECIPE to attach document (Motion for Preliminary Injunction) with corrected bottom notation re 14 MOTION for Preliminary Injunction by Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya. (Attachments: # 1 Errata Correct bottom notation, Prel. Inj. Motion)(Strawn, Christopher) (Entered: 08/09/2013)

08/09/2013

16 MINUTE ORDER REASSIGNING CASE by William M. McCool. Case reassigned to Judge Richard A Jones for all further proceedings. Hon. Mary Alice Theiler no longer assigned to case. (JT) (Entered: 08/09/2013)

08/14/2013 08/14/2013 08/14/2013 08/15/2013 08/15/2013

17 NOTICE of Appearance by attorney Hans H. Chen on behalf of Defendants Nathalie Asher, Lowell Clark, Lowell Clark, Eric H Holder Jr, Janet Napolitano, Juan P Osuna, United States of America. (Chen, Hans) (Entered: 08/14/2013)
18 NOTICE of Appearance by attorney Timothy Michael Belsan on behalf of Defendants Nathalie Asher, Lowell Clark, Lowell Clark, Eric H Holder Jr, Janet Napolitano, Juan P Osuna, United States of America. (Belsan, Timothy) (Entered: 08/14/2013)
19 AMENDED COMPLAINT CLASS ACTION against defendant(s) All Defendants, ﬁled by Bassam Yusuf Khoury, Pablo Carrera Zavala, Alvin Rodriguez Moya. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons)(Strawn, Christopher) (Entered: 08/14/2013)
20 NOTICE of Appearance by attorney Lori B Warlick on behalf of Defendants Nathalie Asher, Lowell Clark, Lowell Clark, Eric H Holder Jr, Janet Napolitano, Juan P Osuna, John Sandweg, United States of America. (Warlick, Lori) (Entered: 08/15/2013)
21 Summons electronically issued as to defendant(s) Nathalie Asher, Lowell Clark(Warden, NWDC), Eric H Holder Jr, Janet Napolitano, Juan P Osuna, John Sandweg, United States of America. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons) (CL) (Entered: 08/15/2013)

08/15/2013

22 AFFIDAVIT of Mailing of Summons and Complaint to All Defendants on 8/15/2013, ﬁled by Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya. (Attachments: # 1 Exhibit A)(Theriot-Orr, Devin) (Entered: 08/15/2013)

08/16/2013 08/19/2013 09/06/2013

23 STIPULATION of Motions Renoted by parties re 2 MOTION to Certify Class , 14 MOTION for Preliminary Injunction . (Chen, Hans) (Entered: 08/16/2013)
Noting Date Set/Reset re 2 MOTION to Certify Class , 14 MOTION for Preliminary Injunction : Noting Date 9/20/2013.(CL) (Entered: 08/19/2013)
24 ANSWER to 19 Amended Complaint, and Motion to Dismiss by Nathalie Asher, Lowell

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?368592807633265-L_1_0-1

10/14

6/5/2020

WAWD CM/ECF Version 1.3
Clark(Warden, NWDC), Eric H Holder Jr, Janet Napolitano, Juan P Osuna, John Sandweg, United States of America. (Attachments: # 1 Exhibit A - Bond order, # 2 Exhibit B Notice to appear, # 3 Exhibit C - Notice to appear, # 4 Exhibit D - Dictionary entries, # 5 Exhibit E - Order denying mot. for fees, # 6 Exhibit F - Dictionary entry, # 7 Proposed Order)(Chen, Hans) (Entered: 09/06/2013)

09/06/2013

25 RESPONSE, by Defendants Nathalie Asher, Lowell Clark, Lowell Clark, Eric H Holder Jr, Janet Napolitano, Juan P Osuna, John Sandweg, United States of America, to 14 MOTION for Preliminary Injunction . (Chen, Hans) (Entered: 09/06/2013)

09/06/2013

26 RESPONSE, by Defendants Nathalie Asher, Lowell Clark, Lowell Clark, Eric H Holder Jr, Janet Napolitano, Juan P Osuna, John Sandweg, United States of America, to 2 MOTION to Certify Class . (Belsan, Timothy) (Entered: 09/06/2013)

09/09/2013 27 MINUTE ORDER re: attorney appearance LR W.D. Wash LCR 83.1(b) by Richard A. Jones, United States District Judge. (CL) (Entered: 09/10/2013)

09/10/2013

28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendants Nathalie Asher, Lowell Clark, Lowell Clark, Eric H Holder Jr, Janet Napolitano, Juan P Osuna, John Sandweg, United States of America. Oral Argument Requested. (Attachments: # 1 Exhibit A - Bond order, # 2 Exhibit B - Notice to Appear, # 3 Exhibit C - Notice to Appear, # 4 Exhibit D - Dictionary entries, # 5 Exhibit E - Order Denying Mot. for EAJA Fees, # 6 Exhibit F - Dictionary entry, # 7 Proposed Order) Noting Date 10/4/2013, (Chen, Hans) (Entered: 09/10/2013)

09/13/2013

29 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Sarah Mehta for Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya. (Dunne, Sarah) (Entered: 09/13/2013)

09/13/2013

30 APPLICATION OF ATTORNEY Eunice Lee FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya (Fee Paid) Receipt No. 0981-3345353. (Dunne, Sarah) (Entered: 09/13/2013)

09/13/2013

31 ORDER re 30 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Eunice Lee for Pablo Carrera Zavala, Bassam Yusuf Khoury, and for Alvin Rodriguez Moya, by William M. McCool. (No document associated with this docket entry, text only.)(DS) (Entered: 09/13/2013)

09/20/2013

32 REPLY, ﬁled by Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya, TO RESPONSE to 2 MOTION to Certify Class (Adams, Matt) (Entered: 09/20/2013)

09/20/2013

33 REPLY, ﬁled by Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya, TO RESPONSE to 14 MOTION for Preliminary Injunction (Adams, Matt) (Entered: 09/20/2013)

09/20/2013

34 RESPONSE, by Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya, to 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . Oral Argument Requested. (Attachments: # 1 Exhibit Exhibit A)(Adams, Matt) (Entered: 09/20/2013)

09/26/2013

35 MOTION for Permanent Injunction by Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 10/18/2013, (Adams, Matt) (Entered: 09/26/2013)

10/04/2013

36 REPLY, ﬁled by Defendants Nathalie Asher, Lowell Clark, Lowell Clark, Eric H Holder Jr, Janet Napolitano, Juan P Osuna, John Sandweg, United States of America, TO RESPONSE to 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Attachments: # 1 Exhibit Declaration of N. Asher)(Chen, Hans) (Entered: 10/04/2013)

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?368592807633265-L_1_0-1

11/14

6/5/2020
10/04/2013 10/07/2013 10/25/2013 01/07/2014 01/08/2014
01/27/2014 01/30/2014 03/11/2014
04/02/2014 04/09/2014 04/09/2014 06/02/2014 06/05/2014

WAWD CM/ECF Version 1.3
37 Unopposed MOTION telephonic scheduling conference re 35 MOTION for Permanent Injunction by Defendants Nathalie Asher, Lowell Clark, Lowell Clark, Eric H Holder Jr, Janet Napolitano, Juan P Osuna, John Sandweg, United States of America. (Attachments: # 1 Proposed Order) Noting Date 10/4/2013, (Chen, Hans) (Entered: 10/04/2013)
38 MINUTE ORDER by Richard A. Jones, United States District Judge. The court TERMINATES Defendants' motion for a scheduling conference (Dkt. # 37 ) and Plaintiffs' motion for summary judgment and a permanent injunction (Dkt. # 35 ). (CL) (Entered: 10/07/2013)
39 NOTICE of Change of Custody Status ; ﬁled by Defendants Nathalie Asher, Lowell Clark, Lowell Clark, Eric H Holder Jr, Janet Napolitano, Juan P Osuna, John Sandweg, United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Chen, Hans) (Entered: 10/25/2013)
40 NOTICE of Supplemental Authority re 2 MOTION to Certify Class , 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 14 MOTION for Preliminary Injunction by Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya (Attachments: # 1 Supplement)(Adams, Matt) (Entered: 01/07/2014)
41 NOTICE of Supplemental Authority re 28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendants Nathalie Asher, Lowell Clark, Lowell Clark, Eric H Holder Jr, Janet Napolitano, Juan P Osuna, John Sandweg, United States of America (Attachments: # 1 Exhibit supplemental relevant authority)(Chen, Hans) (Entered: 01/08/2014)
42 MOTION to Withdraw as Attorney Betsy Tao by Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya. (Attachments: # 1 Proposed Order) Noting Date 1/27/2014, (Tao, Betsy) (Entered: 01/27/2014)
43 MINUTE ORDER by Richard A. Jones, United States District Judge. The court GRANTS Plaintiffs' motion to permit Betsy Tao to withdraw as counsel. Dkt. # 42 . Attorney Betsy P Tao terminated. (CL) (Entered: 01/30/2014)
44 ORDER denying 28 Motion to Dismiss for Failure to State a Claim; granting 2 Motion to Certify Class; terminating 14 Motion for Preliminary Injunction, by Judge Richard A Jones. The court certiﬁes a class and issues declaratory relief on its behalf. The parties shall meet and confer in accordance with this order, and shall submit statements no later than April 2, 2014 as described in order. (VE) (Entered: 03/11/2014)
45 STIPULATION AND PROPOSED ORDER by parties re 44 Order on Motion to Dismiss for Failure to State a Claim, Order on Motion to Certify Class, Order on Motion for Preliminary Injunction,,,. (Chen, Hans) (Entered: 04/02/2014)
46 ORDER Granting the parties' 45 Stipulation and Directing Entry of Judgment by Judge Richard A Jones. (CL) (Entered: 04/10/2014)
47 JUDGMENT BY COURT; As stated in its April 9, 2014 order, the court enters judgment for Plaintiffs. This judgment obligates the parties to comply with their ﬁnal stipulation, and incorporates the court's March 11, 2014 order certifying the following class; (See Jgm for complete details) (CL) (Entered: 04/10/2014)
48 CERTIFICATE of Compliance re 46 Order by Defendants Nathalie Asher, Lowell Clark, Lowell Clark, Eric H Holder Jr, Janet Napolitano, Juan P Osuna, John Sandweg, United States of America. (Chen, Hans) (Entered: 06/02/2014)
49 NOTICE OF APPEAL to Ninth Circuit (14-35482) re 46 Order, 47 Judgment by Court, by Defendants Nathalie Asher, Lowell Clark, Lowell Clark, Eric H Holder Jr, Janet

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?368592807633265-L_1_0-1

12/14

6/5/2020

WAWD CM/ECF Version 1.3
Napolitano, Juan P Osuna, John Sandweg, United States of America. (Chen, Hans) Modiﬁed on 6/6/2014, ADD CCA# (SA). (Entered: 06/05/2014)

06/06/2014

50 TIME SCHEDULE ORDER as to 49 Notice of Appeal ﬁled by Nathalie Asher, John Sandweg, Lowell Clark, Juan P Osuna, Janet Napolitano, Eric H Holder Jr, United States of America : Appellants opening brief due by 9/15/14; Appellees response brief due by 10/14/14; Appellants optional reply brief due within 14 days of service of the response brief. (SA) (Entered: 06/06/2014)

12/08/2014

51 ORDER of USCA (14-35482) as to 49 Notice of Appeal, ﬁled by Nathalie Asher, John Sandweg, Lowell Clark, Juan P Osuna, Janet Napolitano, Eric H Holder Jr, United States of America. Due to a clerical error, the August 19, 2014 motion has just come to the attention of the court. In that motion, appellees in No. 14-35482 request that appeal No. 14-35482 be heard by the same panel assigned to hear appeal No. 14- 16326. Appeal No. 14-16326 has since been consolidated with appeal Nos. 14-16709 and 14-16779.(SEE ORDER FOR FURTHER INSTRUCTION) (SA) (Entered: 12/08/2014)

04/16/2015

52 NOTICE of Appearance by attorney La Rond Baker on behalf of Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya. (Baker, La Rond) (Entered: 04/16/2015)

04/16/2015

53 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Sarah A Dunne for Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya. (Baker, La Rond) (Entered: 04/16/2015)

05/08/2015

54 NOTICE (supplemental) of Change of Custody Status ; ﬁled by Defendants Nathalie Asher, Lowell Clark, Lowell Clark, Eric H Holder Jr, Janet Napolitano, Juan P Osuna, John Sandweg, United States of America. (Attachments: # 1 Exhibit criminal complaint, # 2 Exhibit arrest warrant and return, # 3 Exhibit immigration detainer)(Chen, Hans) (Entered: 05/08/2015)

08/04/2016

55 MEMORANDUM of USCA (NOT THE MANDATE 14-35482) as to 49 Notice of Appeal, ﬁled by Nathalie Asher, John Sandweg, Lowell Clark, Juan P Osuna, Janet Napolitano, Eric H Holder Jr, United States of America. AFFIRMED. (RE) (Entered: 08/04/2016)

08/04/2016

56 ORDER of USCA (14-35482) as to 49 Notice of Appeal, ﬁled by Nathalie Asher, John Sandweg, Lowell Clark, Juan P Osuna, Janet Napolitano, Eric H Holder Jr, United States of America. (RE) (Entered: 08/04/2016)

09/13/2016

57 ORDER of USCA (14-35482) as to 49 Notice of Appeal, ﬁled by Nathalie Asher, John Sandweg, Lowell Clark, Juan P Osuna, Janet Napolitano, Eric H Holder Jr, United States of America. (RE) (Entered: 09/14/2016)

11/03/2016

58 ORDER of USCA (14-35482) as to 49 Notice of Appeal, ﬁled by Nathalie Asher, John Sandweg, Lowell Clark, Juan P Osuna, Janet Napolitano, Eric H Holder Jr, United States of America. (RE) (Entered: 11/03/2016)

01/11/2017

59 ORDER of USCA (14-35482) as to 49 Notice of Appeal, ﬁled by Nathalie Asher, John Sandweg, Lowell Clark, Juan P Osuna, Janet Napolitano, Eric H Holder Jr, United States of America. (RE) (Entered: 01/11/2017)

01/19/2017

60 MANDATE of USCA (14-35482) as to 49 Notice of Appeal, ﬁled by Nathalie Asher, John Sandweg, Lowell Clark, Juan P Osuna, Janet Napolitano, Eric H Holder Jr, United States of America. The judgment of this Court, entered August 04, 2016, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. AFFIRMED (CDA) (Entered: 01/19/2017)

05/25/2018 61 NOTICE of Appearance by attorney Troy D. Liggett on behalf of Defendants Nathalie

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?368592807633265-L_1_0-1

13/14

6/5/2020
05/01/2019
05/09/2019
05/13/2019 05/28/2019 05/28/2019 05/28/2019 05/31/2019

WAWD CM/ECF Version 1.3
Asher, Lowell Clark, Eric H Holder Jr, Janet Napolitano, Juan P Osuna, John Sandweg, United States of America. (Liggett, Troy) (Entered: 05/25/2018)
62 ORDER of USCA (NOT THE MANDATE 14-35482) as to 49 Notice of Appeal, ﬁled by John Sandweg, Nathalie R Asher, Lowell Clark, Juan P Osuna, Janet Napolitano, Eric H Holder Jr, United States of America. In light of the Supreme Courts decision in Nielsen v. Preap, 139 S. Ct. 954 (2019), the memorandum disposition of this Court dated August 4, 2016, is VACATED and judgment is entered REVERSING the district courts judgment. We remand this case to the district court for further proceedings consistent with the Supreme Courts opinion. REVERSED and REMANDED (CDA) (Entered: 05/01/2019)
63 MANDATE of USCA (14-35482) as to 49 Notice of Appeal, ﬁled by John Sandweg, Nathalie R Asher, Lowell Clark, Juan P Osuna, Janet Napolitano, Eric H Holder Jr, United States of America. The judgment of this Court, entered May 01, 2019, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. REVERSED and REMANDED (CDA)cc Case Admins (Entered: 05/09/2019)
64 MINUTE ORDER entered upon the authority of Judge Richard A. Jones. No later than 5/28/2019, the parties shall submit a joint statement to the Court setting forth the manner in which the parties wish to proceed. (VE) (Entered: 05/13/2019)
65 NOTICE of Appearance by attorney Emily Chiang on behalf of Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya. (Chiang, Emily) (Entered: 05/28/2019)
66 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney La Rond Baker for Plaintiffs Pablo Carrera Zavala, Bassam Yusuf Khoury, Alvin Rodriguez Moya. (Chiang, Emily) (Entered: 05/28/2019)
67 STIPULATION AND PROPOSED ORDER of Dismissal by parties re 64 Minute Order, Set Deadlines (Attachments: # 1 Proposed Order)(Liggett, Troy) (Entered: 05/28/2019)
***Civil Case Terminated. In accordance with Federal Rule of Civil Procedure 41(a)(1)(ii) and pursuant to the parties' 67 Stipulation, this case is DISMISSED. On 4/9/2014, the Court dismissed Plaintiffs' Second Cause of Action without prejudice. The Court hereby dismisses Plaintiffs' First Cause of Action with prejudice. Each party shall bear its own costs, fees, and expenses. (VE) (Entered: 05/31/2019)

PACER Service Center

Transaction Receipt

06/05/2020 14:12:33

PACER Login:

CRClearinghouse Client Code: Ruchita Coomar

Description:

Docket Report

Search Criteria:

2:13-cv-01367-RAJ

Billable Pages: 14

Cost:

1.40

Exempt ﬂag: Exempt

Exempt reason:

Exempt Court Order

https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?368592807633265-L_1_0-1

14/14